[Cite as Popp v. Patel, 2016-Ohio-559.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

DANNY POPP, 

 PLAINTIFF-APPELLEE, 

V. 

ARVIND PATEL, 

 DEFENDANT-APPELLANT. 

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CASE NO. 15 BE 14 

OPINION 

CHARACTER OF PROCEEDINGS: Civil Appeal from Belmont County Court 

Northern Division of Belmont County, 

Ohio 

Case No. 14CV100219 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee No brief filed 

For Defendant-Appellant Arvind Patel, Pro-se 

51659 National Road East 

St. Clairsville, Ohio 43950 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: February 8, 2016 
[Cite as Popp v. Patel, 2016-Ohio-559.]

DONOFRIO, P.J. 

{¶1} Defendant-appellant, Arvind Patel, appeals from a Belmont County 

Northern Division Court judgment in favor of plaintiff-appellee, Danny Popp, on 

appellee’s claim for breach of contract. 

{¶2} Appellee is an architect hired by appellant to perform work on hotel 

rooms at The Knights Inn in Wheeling, West Virginia. According to appellant, he has 

a minority interest in Nalini, LLC, which owns The Knights Inn. Appellant 

acknowledges that he entered into an agreement with appellee to perform work at 

The Knights Inn, but claims he was not acting in his personal capacity. Appellee 

submitted a proposal to appellant, but appellant never signed it. But appellant did 

issue a $900 check to appellee as an initial payment for the work. The check was 

written from a business called AMU and ANU, Inc. 

{¶3} Appellee filed a complaint against appellant in small claims court 

seeking reimbursement for work he performed at The Knights Inn. The complaint 

alleged that appellant owed appellee $976.46, plus interest. 

{¶4} Appellant filed a motion to dismiss on June 16, 2014. The motion 

asserted (1) the Belmont County Northern Division Court was an improper venue to 

bring this action, (2) appellant did not sign the contract at issue, (3) all actions 

undertaken by appellant were in his capacity as an officer of The Knights Inn, and (4) 

appellant is not an appropriate party because appellee’s dealings were with DDP & 

Associates and not appellant personally. 

{¶5} On June 19, 2014, a judgment entry was filed dismissing the case 

without prejudice. 

{¶6} On July 2, 2014, appellee sent a letter to the court asking what his 

recourse might be now that the court had dismissed his case. A copy of this letter 

was not served on appellant. 

{¶7} On July 7, 2014, the trial court put on a judgment entry stating the case 

“was dismissed incorrectly, due to Court error.” The judgment entry set the motion to 

dismiss for a hearing. 

{¶8} After the hearing, the trial court denied appellant’s motion to dismiss. It 
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noted that appellant resided in Belmont County and appellee had both Belmont 

County and Franklin County addresses. The court further noted that it had no other 

evidence before it. The court then set the matter for trial. 

{¶9} Appellant filed a notice of appeal from the court’s judgment denying his 

motion to dismiss. But this court dismissed the appeal for lack of a final appealable 

order. See Popp v. Patel, 7th Dist. No. 14 BE 43 (October 24, Judgment Entry). 

{¶10} The matter proceeded to a bench trial where both parties appeared pro 

se. The court listened to testimony from both parties. It then made the following 

findings. The parties entered into a contract. Although appellant did not sign the 

contract, it was clear the parties reached an agreement that appellee would provide 

architect services to appellant. The agreement provided for up to $2,300 to be paid. 

Appellant had already paid $1,220 to appellee. Appellant testified that appellee 

never finished the job, that the agreement amount of up to $2,300 did not match the 

amounts appellee sought, he never signed the contract, and he never received any 

receipts. The trial court found that appellant could be held personally responsible for 

the debt owed to appellee. Therefore, the trial court awarded appellee $976.46, plus 

interest from the date of judgment. 

{¶11} Appellant filed a timely notice of appeal. He is still acting pro se and 

now raises three assignments of error for our review. 

{¶12} Appellant’s first assignment of error states: 

 THE TRIAL COURT ERRED IN DENYING APPELLANT’S 

MOTION TO DISMISS, AND IN FINDING AGAINST APPELLANT, 

BECAUSE APPELLANT IS PROTECTED FROM ANY LIABILITY FOR 

CONTRACTS TAKEN ON BEHALF OF A BUSINESS BY THE 

FIDUCIARY SHIELD DOCTRINE. 

{¶13} The trial court found that appellant was personally liable for the money 

owed to appellee. In its judgment entry, the trial court found that the proposal, which 

appellant never signed, named appellant personally. All invoices were sent to 
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appellant personally. And appellee’s action was filed against appellant personally. 

The court went on to find that appellant never provided any documentation that his 

corporation actually existed. It stated the only documentation the court received that 

could indicate the existence of appellant’s corporation was one of checks that was 

issued to appellee, which was issued by AMU and ANU, Inc. The court also stated 

that appellant did not raise this issue until closing arguments. 

{¶14} Appellant argues that he, on behalf of his business, hired appellee to 

perform work at The Knights Inn. He claims that all actions that he undertook were in 

his capacity as an officer of Nalini LLC, dba The Knights Inn. He states that he is an 

officer of Nalini LLC. Appellant points out that appellee never challenged the 

existence of his corporation. Appellant also points out that a check that he wrote to 

appellee was from another one of his corporations, AMU and ANU, Inc., and not from 

him personally. Appellant notes that appellee acknowledged appellant never signed 

the proposal. And appellant states that he raised this issue well before closing 

arguments. He notes that he raised this issue in his motion to dismiss, which the 

court ruled upon prior to trial. Appellant argues that, for all of the above reasons, the 

fiduciary shield doctrine protects him from individual liability in this case. 

{¶15} Initially, we note appellant is correct in stating that he did raise the issue 

that he could not be personally liable on any debt owed to appellee prior to closing 

arguments. In fact, he raised it in his motion to dismiss as one of the bases for 

dismissal. He also raised it at the beginning of the trial. (Tr. 6). Therefore, the trial 

court was incorrect in stating that appellant did not raise this issue until his closing 

argument. 

{¶16} Appellant’s argument here is basically a weight of the evidence 

argument. He claims there is no evidence that he was personally liable on any debt 

owed to appellee. 

{¶17} The civil manifest weight of the evidence standard provides that 

judgments supported by some competent, credible evidence going to all the essential 

elements of the case will not be reversed by a reviewing court as being against the 
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manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 

279, 376 N.E.2d 578 (1978), syllabus. The reviewing court is obliged to presume that 

the findings of the trier of fact are correct. Seasons Coal Co., Inc. v. Cleveland, 10 

Ohio St.3d 77, 80-81, 461 N.E.2d 1273 (1984). This presumption arises in part 

because the fact-finder occupies the best position to watch the witnesses and 

observe their demeanor, gestures and voice inflections and to utilize these 

observations in weighing credibility. Id. at 80. “A reviewing court should not reverse a 

decision simply because it holds a different opinion concerning the credibility of the 

witnesses and evidence submitted before the trial court. A finding of an error in law is 

a legitimate ground for reversal, but a difference of opinion on credibility of witnesses 

and evidence is not.” Id. at 81. 

{¶18} At trial, appellee testified that he had worked on several projects in the 

past for appellant and appellant wanted him to do some work for “his hotel” in 

Wheeling. (Tr. 7). Appellee stated that he and appellant discussed issues dealing 

with updating kitchenette units and with sprinkler heads in the hotel rooms. (Tr. 7-8). 

Appellant told appellee to proceed and appellee had some further communication 

with one of appellant’s “subordinates.” (Tr. 8). Appellant then asked appellee to 

make some other improvements in the units. (Tr. 8). Appellee submitted a proposal 

to appellant personally. (Plaintiff Ex.). Appellant never signed the proposal. (Tr. 9). 

But appellant did pay appellee a deposit check of $900. (Tr. 9; Plaintiff Ex.). The 

check was written on an account for AMU and ANU, Inc. and was signed by 

appellant. (Tr. 13; Plaintiff Ex.). Appellee testified that he performed the work set out 

in the proposal. (Tr. 9). Appellee stated that after appellant learned he would have 

to put in sprinklers, however, he told appellee he would not pay him the balance 

owed. (Tr. 10). 

{¶19} Appellant testified that he believed the price was lower than what 

appellee was claiming. (Tr. 31). Moreover, he stated appellee never finished the job. 

(Tr. 31). And appellant stated, to which appellee agreed, that he also paid another 

$320 to appellee. (Tr. 38). Appellant stated that his son issued that check to 
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appellee. (Tr. 38). 

{¶20} As can be seen, the evidence demonstrates that appellant and appellee 

engaged in some negotiations. Appellee also communicated with appellant’s 

“subordinate.” And appellee gave a written proposal to appellant naming him 

personally. Appellant did not sign the proposal but did provide the initial deposit of 

$900 for appellee to start on the work. Appellant issued the deposit in the form of a 

check written on AMU and ANU, Inc.’s account. Appellant’s son also made a 

payment to appellee. 

{¶21} Appellant contends that he is not personally liable to appellee because 

he was acting as a shareholder in Nalini, LLC, dba The Knights Inn. But there was 

no mention whatsoever at trial regarding Nalini. The name was never brought up. 

Moreover, the deposit check that appellant issued to appellee, which appellant used 

to demonstrate he was not acting in his personal capacity, was written on AMU and 

ANU, Inc.’s account. And there was no testimony tying AMU and ANU, Inc. to Nalini 

or The Knights Inn. Thus, there was no evidence that Nalini contracted with appellee 

or that appellant contracted with appellee in his capacity as an officer of Nalini. 

Moreover, appellant stated that his son issued a second check to appellee in the 

amount of $320 for work done. Since there is no testimony tying appellant’s son to 

Nalini or AMU and ANU, appellant’s son’s payment to appellee tends to show that 

appellant contracted with appellee in his personal capacity. 

{¶22} Based on the above, there is “some” competent, credible evidence to 

support the court’s finding that appellant was personally liable to appellee. 

Accordingly, appellant’s first assignment of error is without merit. 

{¶23} Appellant’s second assignment of error states: 

 THE TRIAL COURT ERRED IN REVERSING THE DISMISSAL 

OF THE CASE AND SCHEDULING THE MOTION TO DISMISS FOR 

HEARING PURSUANT TO APPELLEE’S INAPPROPRIATE EX 

PARTE LETTER AFTER THE MOTION TO DISMISS HAD ALREADY 

BEEN GRANTED. FURTHER, THE EX PARTE LETTER WAS NOT 
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SERVED UPON APPELLANT AND NO CERTIFICATE OF SERVICE 

WAS ATTACHED. 

{¶24} Appellant filed a motion to dismiss on June 16, 2014. The motion was 

granted just three days later. The judgment entry granting the motion contained a 

stamp of the judge’s signature. 

{¶25} On July 2, 2014, the court received a letter from appellee asking what 

his recourse might be now that his lawsuit had been dismissed. On July 7, 2014, the 

trial court put on a judgment entry stating the case was “dismissed incorrectly, due to 

Court error.” The judgment entry set the motion to dismiss for a hearing. 

{¶26} After the hearing, the court entered a judgment denying the motion to 

dismiss. It did not address at this time why it had originally granted the motion. But 

in its judgment entry following the trial, the court stated: “The Court’s Clerk 

inadvertently put on an entry dismissing the action on 6/19/14. This was in error as 

the Plaintiff had not had an opportunity to respond.” 

{¶27} Here appellant argues that appellee sent an ex parte letter to the court, 

which led to the court reversing its decision to dismiss the complaint. Appellant 

points out that appellee’s letter was not accompanied by a certificate of service and 

he was not served with a copy of it. He asserts this letter should be stricken from the 

record and the trial court’s judgment dismissing the complaint should be reinstated. 

{¶28} Appellant’s motion to dismiss, although not titled as such, was a motion 

to dismiss under Civ.R. 12(B)(2) and (3). Civ.R. 12(B)(2) provides for a motion to 

dismiss for lack of jurisdiction over the person and Civ.R. 12(B)(3) provides for a 

motion to dismiss for improper venue. 

{¶29} Pursuant to Belmont County Local Rule 6.2, a party has 14 days from 

either the date of filing a motion or the date of service of the motion, whichever is 

later, to file an answer brief in opposition to the moving party’s motion. Pursuant to 

Civ.R. 6(E), the mailbox rule, when a motion has been served by mail, the party is 

afforded an additional three days to respond. 

{¶30} In this case, appellant filed his motion to dismiss on June 16, 2014. 
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The certificate of service attached to the motion indicates that a copy was mailed to 

appellee that same day. Thus, pursuant to Local Rule 6.2 and Civ.R. 6(E), appellee 

had until July 3, 2014, to respond to appellant’s motion to dismiss. 

{¶31} But the court granted the motion and dismissed the case on June 19, 

2014, just three days after it was filed. Thus, appellee was never given his 

opportunity to respond to the motion. Appellant sent a letter to the court filed on July 

2, 2014, seeking inquiry into what his recourse might be now that his case was 

dismissed. It seems that this letter brought to the court’s attention the fact that the 

case had been dismissed just three days after appellant filed his motion to dismiss. 

The court then set the matter for a hearing on the motion, which both parties 

attended. Given these circumstances, the trial court properly corrected its error of 

granting the motion to dismiss before giving appellee a chance to respond. And 

although appellant was not served with a copy of appellee’s letter, he was informed 

of and attended the hearing on the motion to dismiss. 

{¶32} Accordingly, appellant’s second assignment of error is without merit. 

{¶33} Appellant’s third assignment of error states: 

 THE TRIAL COURT ERRED BECAUSE IT DISPLAYED AN 

UNPRECEDENTED LEVEL OF BIAS AGAINST THE APPELLANT BY 

ESSENTIALLY LITIGATING THE PLAINTIFF’S CASE FOR HIM AND 

BASING ITS JUDGMENT ON SAME. 

{¶34} In its judgment entry, the court found that appellee never provided any 

documentation that his corporation actually existed. It stated that no motion was filed 

by appellant, nor was any further information provided documenting that a valid 

corporation existed. 

{¶35} In his final assignment of error, appellant argues that the court erred in 

finding that he did not provide any documentation that his corporation actually 

existed. He notes that appellee never challenged the validity of his corporation. 

Appellant asserts that his testimony, along with the fact that he paid appellee with a 
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corporate check, should be more than enough to establish a legitimate corporation 

since appellee never contested it. Appellant asserts the court demonstrated bias 

against him by deciding this case based on an issue that appellee did not even 

argue. 

{¶36} The trial court made unnecessary findings regarding appellant’s 

corporation. Whether appellant’s corporation existed does not impact the conclusion 

that the court’s judgment was supported by some competent, credible evidence 

finding appellant personally liable to appellee. As discussed above, one check 

issued to appellee from appellant was written from AMU and ANU, Inc.’s account. 

The other check issued to appellee on appellant’s behalf was from appellant’s son. 

The entity appellant asserts appellee was dealing with is Nalini, LLC dba The Knights 

Inn. But there is no evidence that this entity had any dealings with appellee or that 

appellant represented to appellee that he was acting on Nalini’s behalf. Nalini is 

never mentioned at the trial. Therefore, the trial court’s statements that appellant 

never provided documentation that his corporation existed were unnecessary. But 

they do not affect the judgment in this case. 

{¶37} Accordingly, appellant’s third assignment of error is without merit. 

{¶38} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

Waite, J., concurs. 

DeGenaro, J., concurs.