Castro v. Hero Havens, L.L.C.

[Cite as Castro v. Hero Havens, L.L.C., 2026-Ohio-1354.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Patrick A. Castro, Jr.,                             :

                Plaintiff-Appellant,                :
                                                                     No. 25AP-397
v.                                                  :              (C.P.C. No. 23CV-63)

Hero Havens, LLC,                                   :         (REGULAR CALENDAR)

                Defendant-Appellee.                 :




                                           D E C I S I O N

                                      Rendered on April 14, 2026


                On brief: Dickie, McCamey & Chilcote, P.C., and
                Christopher R. Pettit, for appellant.

                On brief: Taft Stettinius & Hollister LLP, and Janica Pierce
                Tucker, for appellee.

                  APPEAL from the Franklin County Court of Common Pleas

LELAND, J.
        {¶ 1} This is an appeal by plaintiff-appellant, Patrick A. Castro, Jr., from orders
entered by the Franklin County Municipal Court (“municipal court”) on November 30 and
December 9, 2022, which (1) granted the motion of defendant-appellee, Hero Havens, LLC,
to amend its counterclaim, and (2) transferred the case to the Franklin County Court of
Common Pleas (“trial court” or “common pleas court”); additionally, appellant appeals
from decisions and entries of the common pleas court, entered on May 2, 2023 and
January 24, 2024, which (1) granted appellee’s motion for additional time under
Civ.R. 56(F), and (2) denied appellant’s motion for summary judgment. Appellant’s notice
of appeal references that all of the aforementioned orders and entries of the respective
courts merged into a final judgment of the common pleas court, entered on April 22, 2025,
No. 25AP-397                                                                                2


which found in favor of appellee on its counterclaim for breach of oral agreement against
appellant following a jury waived trial before a magistrate of the trial court.
I. Facts and Procedural History
       {¶ 2} On August 2, 2021, appellant filed a complaint in the municipal court against
appellee. According to the complaint, appellant is the owner of a residence on Arbutus
Avenue, Grove City, Ohio, and appellee is the owner of property on Columbus Street, Grove
City, Ohio, located on the same block and one parcel away from appellant’s property. In
January 2020, appellant engaged a company, Three Pillars Construction (“Three Pillars”),
to construct a residential home on his property. During the excavation process, a sewer line
on the property was inadvertently cut; the cut sewer line serviced, in part, appellee’s
property. While a temporary line tap was utilized for appellee’s property, “a permanent
solution was required as [appellee’s] sewer line had no legal right to cross [appellant’s]
[p]roperty in its then existing location.” (Compl. at ¶ 7.)
       {¶ 3} The complaint alleged appellant coordinated with the three surrounding
parcel owners serviced by the sewer line, and that appellant paid for a new sewer line to be
installed across all four parcels. Prior to the work, appellant had discussions with appellee
and other property owners regarding the sewer line. In September 2020, a verbal
agreement was reached between appellant and appellee whereby appellant would pay for
the entire line to be installed and appellee would reimburse appellant for its share. The cost
of the sewer line installation attributable to appellee’s property was $12,000. The complaint
alleged that two of the three neighboring property owners reimbursed appellant for the
funds he expended, but that appellee had not paid appellant in accordance with the parties’
agreement. The complaint asserted causes of action for breach of verbal contract and
unjust enrichment, and appellant sought judgment against appellee in the amount of
$13,794.55.
       {¶ 4} On September 21, 2021, appellant filed a motion for default judgment. On
September 28, 2021, the municipal court granted appellant’s motion for default judgment.
On October 6, 2021, appellee filed a motion for leave to file an answer and counterclaim,
which the court subsequently granted. Appellee filed its answer and counterclaim on
December 6, 2021.
No. 25AP-397                                                                                  3


       {¶ 5} In its counterclaim, appellee alleged appellant and his agents had damaged
appellee’s sewer drainage line and that appellant made oral promises to appellee that he
would remedy the damage by creating a permanent and effective solution. According to the
counterclaim, appellee, at its own cost, hired an excavating company, Edwards Excavating,
to temporarily restore sewer service to its residence, including installation of a six-inch
sewer line across the easement to effectuate a permanent line. It was alleged that appellant,
without the approval of appellee, hired a different contractor, Windsor Companies
(“Windsor”), who “ ‘tied into’ the temporary 80 foot level sewer line rather than the
permanent sewer line that would ensure the ‘proper fall’ for sewer line and permanent
solution that was promised by [appellant].” (Answer & Countercl. at 5.) It was further
alleged that, in order to “restore [appellee’s] irrigation system to its previous functionality,
[appellee] will incur future costs of $24,301.00.” (Answer & Countercl. at 6.) The
counterclaim asserted causes of action for breach of oral contract, unjust enrichment, and
quantum meruit.
       {¶ 6} On October 28, 2022, appellant filed a motion for summary judgment. On
November 10, 2022, appellee filed a motion for leave to file instanter an amended
counterclaim. On November 15, 2022, appellee filed a memorandum contra appellant’s
motion for summary judgment. Also on November 15, 2022, appellant filed a motion for
extension of time to respond to appellee’s motion for leave to amend its counterclaim. On
November 18, 2022, the trial court granted appellant’s motion for extension of time to
respond to the motion for leave. On November 23, 2022, the municipal court granted
appellee’s motion for leave to file instanter its amended counterclaim. Appellant filed a
memorandum in opposition to appellee’s motion for leave to amend its counterclaim on
November 30, 2022.
       {¶ 7} By entry filed December 9, 2022, the municipal court ordered transfer of the
case to the common pleas court. In its entry, the municipal court noted the counterclaim
“exceeds the monetary jurisdiction of this Court” and, additionally, appellee “is also
requesting a declaratory judgment and a preliminary injunction which both exceed this
Court’s jurisdiction.” (Dec. 9, 2022 Entry.)
       {¶ 8} On February 3, 2023, appellant filed with the common pleas court a notice of
filing of his motion for summary judgment previously filed in the municipal court. On
No. 25AP-397                                                                                 4


February 17, 2023, appellee filed a motion for continuance of the trial court’s ruling on
appellant’s motion for summary judgment pursuant to Civ.R. 56(F). On March 6, 2023,
appellant filed a memorandum in opposition to appellee’s motion for continuance. By entry
filed May 2, 2023, the trial court granted appellee’s motion for additional time to respond
to summary judgment.
       {¶ 9} On January 24, 2024, the trial court filed a decision and entry denying
appellant’s motion for summary judgment. The court found in part that “certain terms of
the oral agreement are clearly missing” from an email memorializing that agreement, and
that “these terms and the parties’ sparring viewpoints . . . create a dispute of material fact
regarding whether an oral agreement truly existed.” (Jan. 24, 2024 Decision at 6.) The
trial court further found “[a] dispute of material fact remains concerning the parties’ unjust
enrichment claims as well,” including “questions of material fact . . . concerning who, if any,
was unjustly enriched.” (Decision at 6.)
       {¶ 10} On August 19, 2024, the matter came before a magistrate of the trial court for
a jury waived trial. On January 31, 2025, the magistrate issued a decision on the merits,
finding in favor of appellee on its counterclaim based on a determination appellant
“breached the oral agreement and failed to effectuate the negotiated permanent solution to
[appellee’s] sewer line in the manner that was agreed upon.” (Mag.’s Decision at 18.) The
magistrate concluded appellee was entitled to a total damages award of $19,853.45 (after
crediting appellant the sum of $9,794.55 owed by appellee for “other components of the
oral agreement”). (Mag.’s Decision at 20.) By entry filed April 22, 2025, the trial court
entered judgment in favor of appellee in the amount of $19,853.45.
II. Assignments of Error
       {¶ 11} Appellant appeals and assigns the following three assignments of error for
our review:
              [I.] The Franklin County Municipal Court committed
              reversible error by granting Defendant-Appellee Hero Havens
              leave to amend its Counterclaim, instanter, on November 23,
              2022 and by transferring the case to the Franklin County,
              Ohio Court of Common Pleas on December 9, 2022.

              [II.] The Franklin County, Ohio Court of Common Pleas
              committed reversible error by granting Defendant-Appellee
              Hero Haven’s additional time to conduct discovery and
No. 25AP-397                                                                                5


              oppose Plaintiff-Appellant Patrick A. Castro, Jr.’s Motion for
              Summary Judgment pursuant to Rule 56(F) of the Ohio Rules
              of Civil Procedure on May 2, 2023.

              [III.] The Franklin County, Ohio Court of Common Pleas
              committed reversible error by denying Plaintiff-Appellant
              Patrick A. Castro, Jr.’s Motion for Summary Judgment on
              January 24, 2024.

III. Discussion
       {¶ 12} Under his first assignment of error, appellant argues the municipal court
erred by granting appellee’s motion for leave to file instanter its amended counterclaim,
which resulted in the case being transferred to the common pleas court. Appellant argues
the municipal court failed to consider arguments raised in his memorandum in opposition
to appellee’s motion for leave to amend, and further contends appellee’s motion was
untimely.
       {¶ 13} As outlined under the facts, on November 10, 2022, appellee filed with the
municipal court a motion for leave to file instanter an amended counterclaim. On
November 15, 2022, appellant filed a motion for extension of time to respond to appellee’s
motion for leave. On November 18, 2022, the municipal court granted appellant’s request
to extend the time to respond to appellee’s motion for leave (on or before November 30,
2022). By order filed November 23, 2022, the municipal court granted appellee’s motion
for leave to file instanter an amended counterclaim. Appellant filed his memorandum in
opposition to appellee’s motion for leave to amend its counterclaim on November 30, 2022.
By entry filed December 9, 2022, the municipal court ordered the case transferred to the
common pleas court, noting that appellee’s counterclaim exceeded the monetary
jurisdiction of the court and that appellee was “also requesting a declaratory judgment and
a preliminary injunction which both exceed this Court’s jurisdiction.” (Dec. 9, 2022 Entry.)
       {¶ 14} In seeking leave to amend its counterclaim, appellee noted that its original
counterclaim stated it would “ ‘incur future costs of $24,301.00.’ ” (Def.’s Mot. for Leave at
6.) Appellee argued that “[s]ince that time, however, [it] has received estimates and
incurred additional expenses as a result of the damage caused by [appellant] and his agents
and anticipates expending additional amounts to properly restore sewer service to its
property.” (Def.’s Mot. for Leave at 7.) Appellee asserted it had received two estimates by
No. 25AP-397                                                                                 6


a plumbing company for the replacement of the sewer line, the first estimate totaling
$74,029 and the second estimate totaling $84,508.
       {¶ 15} In opposing appellee’s motion for leave to amend its counterclaim, appellant
argued that appellee’s request to add two new causes of action 339 days after the original
counterclaim was untimely and prejudicial, and that the addition of these claims was futile
because appellee could not make a prima facie showing in support of the new causes of
action. Appellant further argued that granting leave to amend would result in the case
being transferred to the common pleas court, causing more delay, and that leave should be
denied because it was sought after appellant filed his motion for summary judgment.
       {¶ 16} This court “reviews a trial court’s decision on a motion for leave to file an
amended pleading under an abuse of discretion standard.” Gordon v. Dept. of Rehab. &
Corr., 2018-Ohio-2272, ¶ 9 (10th Dist.), citing Wilmington Steel Prods., Inc. v. Cleveland
Elec. Illum. Co., 60 Ohio St.3d 120, 122 (1991). Civ.R. 15(A), which governs the amendment
of pleadings, states in part: “A party may amend its pleading once as a matter of course . . .
[i]n all other cases, a party may amend its pleading only with the opposing party’s written
consent or the court’s leave. The court shall freely give leave when justice so requires.”
       {¶ 17} The Supreme Court of Ohio has held that Civ.R. 15(A) “expresses a liberal
policy toward the allowance of amendments,” and has observed the rule “ ‘was promulgated
to provide the maximum opportunity for each claim to be decided on its merits rather than
on procedural niceties.’ ” Hall v. Bunn, 11 Ohio St.3d 118, 121 (1984), quoting Hardin v.
Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982). Ohio courts recognize,
“[s]ince ‘the language of Civ.R. 15(A) favors a liberal amendment policy[,] . . . a motion for
leave to amend should be granted absent a finding of bad faith, undue delay or undue
prejudice to the opposing party.’ ” Simmons v. Am. Pacific Ents., L.L.C., 2005-Ohio-6957,
¶ 9 (10th Dist.), quoting Hoover v. Sumlin, 12 Ohio St.3d 1, 6 (1984). In this respect,
“[p]rejudice to an opposing party is the most critical factor to be considered in determining
whether to grant leave to amend.” Id., citing Frayer Seed, Inc. v. Century 21 Fertilizer &
Farm Chems., Inc., 51 Ohio App.3d 158, 165 (3d Dist. 1988).
       {¶ 18} Further, “[t]imeliness of the request is another factor to consider, but delay,
in itself, should not operate to preclude an amendment.” Id., citing Frayer Seed. Thus,
“[c]ourts have found that even where there is some delay in seeking to amend a pleading,
No. 25AP-397                                                                                   7


there is no abuse of discretion to grant leave where this did not result in prejudice to the
opposing party.” Shavel v. Shavel, 2023-Ohio-4876, ¶ 45 (11th Dist.), citing McConnell v.
Hunt Sports Ents., 132 Ohio App.3d 657, 679 (10th Dist. 1999).
       {¶ 19} In asserting the municipal court should have denied appellee’s motion for
leave to amend as untimely, appellant maintains appellee offered no explanation for its
delay in seeking leave to amend approximately 11 months after filing its initial answer and
counterclaim. The record indicates, however, appellee argued it was seeking leave based
on developments that occurred after the filing of that initial counterclaim. As set forth
above, appellee argued in its motion for leave that, since the time of the filing of its original
counterclaim, in which it alleged it would incur future costs of $24,301 due to the damage
to its sewer system, appellee had incurred additional expenses and had received estimates
above and beyond that original amount. Appellee attached as an exhibit to the motion two
separate estimates from a plumbing company, EcoPlumber, for the replacement of the
sewer line, totaling $74,029 and $84,508, respectively.
       {¶ 20} Also attached as an exhibit to appellee’s motion for leave to amend were
copies of still photographs from a video inspection of the sewer taken by EcoPlumber.
Appellee argued the exhibit indicated that both the temporary and permanent sewer lines
“have six (6) inch dips under the driveway, trapping both water and sewage,” and that
because of these dips both lines “must be repaired to code.” (Def.’s Mot. for Leave at 5.)
Appellee further argued it had hired a company (Capital City Mechanical) to jet clean and
flush out the temporary line, and that the company advised appellee the sewer line would
need to be jet cleaned approximately every six months if the sewer line was not repaired.
       {¶ 21} The first amended counterclaim, attached to the motion for leave, similarly
alleged that video footage of an inspection of the sewer “shows the improper fall of the sewer
line and at least one damaged pipe.” (First Am. Countercl. at 4.) It was alleged the sewer
line issues appeared to be located directly under the driveway appellant installed over the
easement. According to the amended counterclaim, appellant’s agents damaged the
temporary line when packing down gravel to pour a concrete driveway over the easement,
requiring appellee to hire a company to jet clean and flush out the temporary sewer line in
order for the line to work effectively, and that the estimated costs for necessary repairs,
based on information obtained from the video inspection, exceeded $70,000.
No. 25AP-397                                                                              8


       {¶ 22} As noted, courts are “guided by the concepts” that leave to amend “should be
freely given when ‘justice so requires,’ ” as well as “the Ohio Supreme Court’s admonition
that cases should be decided on their merits when possible, rather than pleading
technicalities.” Merchants Natl. Bank v. Overstake, 2012-Ohio-6309, ¶ 18 (4th Dist.).
       {¶ 23} Based on the record presented, and in light of the liberal amendment policy
of Civ.R. 15(A) and the preference to decide cases on their merits, we find the municipal
court did not abuse its discretion in permitting appellee leave to amend its counterclaim.
Here, in granting appellee’s motion for leave, the municipal court could have concluded any
purported delay was not undue but, rather, reasonable in light of new information and more
recent events/developments subsequent to the filing of the initial answer and counterclaim.
Nor does the record suggest bad faith on the part of appellee in attempting to amend based
on alleged additional expenses and new estimates not foreseen at the time of the original
filing. The municipal court could have also determined there would be no undue prejudice
in granting leave to amend as the claims and issues raised in the proposed amended
counterclaim arose out of the same purported oral agreement between the parties to reach
a permanent and effective solution regarding the damaged sewer line.
       {¶ 24} Appellant contends the municipal court erred by granting the motion for
leave prior to appellant’s deadline to respond. Appellant relies on case law holding that
where a trial court “ ‘disregards the response time created by the Ohio Rules of Civil
Procedure, that court has committed reversible error,’ absent a showing that the error was
harmless.” Watershed Mgt., L.L.C. v. Neff, 2012-Ohio-1020, ¶ 67 (4th Dist.), quoting
Gibson-Myers & Assocs. v. Pearce, 1999 Ohio App. LEXIS 5010, *13 (9th Dist. Oct. 27,
1999), citing In re Foreclosure of Liens for Delinquent Taxes, 79 Ohio App.3d 766, 771-72
(2d Dist. 1992).
       {¶ 25} In response, appellee notes the order issued by the municipal court “was an
extension of time, not a change in the time mandated by the Ohio Civil Rules,” i.e., the
municipal court granted appellant an extension of time “in excess of the time created by the
Ohio Rules of Civil Procedure.” (Appellee’s Brief at 16.) Appellee thus maintains the
municipal court did not disregard the response time created by the Rules of Civil Procedure,
but rather “issued a ruling after such time had elapsed but before the extension.”
(Appellee’s Brief at 17.)
No. 25AP-397                                                                                  9


       {¶ 26} In general, “[a] trial court has the inherent power to control its own orders
and may set aside such orders at its discretion.” In re Guardianship of Maurer, 108 Ohio
App.3d 354, 358 (6th Dist. 1995), citing First Natl. Bank of Dunkirk v. Smith, 102 Ohio St.
120 (1921), paragraph one of the syllabus. Further, a trial court’s inherent authority
includes the discretion to modify “their own interlocutory orders.” In re Disqualification
of Fuller, 2025-Ohio-5601, ¶ 60.
       {¶ 27} Here, accepting appellant’s contention that the municipal court acted
prematurely in granting leave to amend, we do not find reversible error. Rather, having
reviewed appellant’s response to the motion for leave, predicated primarily on the
timeliness of the motion, and given our determination the municipal court could have
reasonably concluded the request for leave to amend was not filed with undue delay, we
find any error to be harmless. Again, although timeliness is a factor, “delay, in itself, should
not operate to preclude an amendment.” Simmons, 2005-Ohio-6957, at ¶ 9 (10th Dist.).
       {¶ 28} Appellant also notes that a motion for summary judgment was pending at the
time appellee sought leave to amend, and argues the filing of a motion for leave under such
circumstances “raises the specter of prejudice.” (Appellant’s Brief at 32.) A trial court,
however, retains discretion to rule on a motion for leave under such circumstances, and we
find no abuse of discretion here. See, e.g., Thomas v. Shaevitz, 1999 Ohio App. LEXIS 4235
(10th Dist. Sept. 16, 1999) (finding no abuse of discretion by trial court in granting leave to
amend complaint despite the fact motion for summary judgment was pending before
court); Hollinghead v. Bey, 2000 Ohio App. LEXIS 3234, *17 (6th Dist. July 21, 2000) (trial
court did not abuse its discretion by “considering a motion for leave to file an amended
answer . . . before it ruled on cross-motions for summary judgment that were pending
before the motion for leave to file an amended answer [was] filed”).
       {¶ 29} Appellant also challenges the municipal court’s order transferring the case to
the common pleas court. The municipal court, having granted appellee leave to amend its
counterclaim, found that it lacked jurisdiction over the matter as the counterclaim “exceeds
the monetary jurisdiction of this Court.” (Dec. 9, 2022 Entry.) Appellee’s amended
counterclaim sought judgment on its claims for breach of oral contract and unjust
enrichment in excess of $15,000.
No. 25AP-397                                                                             10


       {¶ 30} Under Ohio law, “R.C. 1901.17 limits the municipal court’s monetary
jurisdiction to $15,000, [and] R.C. 1901.22(E) and Civ.R. 13(J) provide that if a
counterclaim claim exceeds the jurisdictional amount of the municipal court, the judge
shall certify the proceedings to the court of common pleas.” State ex rel. El Turk v.
Comstock, 2018-Ohio-2125, ¶ 6 (8th Dist.). See also Hall v. Silver, 2020-Ohio-2810, ¶ 16
(9th Dist.), citing R.C. 1901.17; Civ.R. 13(J) (“A municipal court lacks subject matter
jurisdiction over any case in which the amount claimed by any party exceeds $15,000.”).
       {¶ 31} Having found the municipal court did not abuse its discretion in granting
appellee leave to amend its counterclaim, we further find the municipal court did not err in
transferring the case to the common pleas court as the damages amount claimed in the
amended counterclaim exceeded the municipal court’s jurisdictional limit. Based on the
foregoing, appellant’s first assignment of error is not well-taken and is overruled.
       {¶ 32} Under the second assignment of error, appellant argues the trial court erred
by granting appellee additional time to conduct discovery and to oppose appellant’s motion
for summary judgment. Appellant maintains appellee did not fulfill its burden under
Civ.R. 56(F) to justify its request for a continuance, asserting the affidavit submitted by
appellee in support did not state sufficient reasons why appellee was not able to present
affidavit facts to oppose the motion for summary judgment in the first instance. According
to appellant, appellee’s motion for continuance “appeared to be nothing more than a
request to engage in a ‘fishing expedition’ undertaken in the hopes of finding some evidence
to support [appellee’s] opposition to” appellant’s motion for summary judgment.
(Appellant’s Brief at 46.)
       {¶ 33} As set forth under the facts, appellant initially filed his motion for summary
judgment in the municipal court on October 28, 2022. Following the municipal court’s
transfer (on January 5, 2023) of the case to the common pleas court, appellant filed with
the common pleas court (on February 3, 2023) notice of his filing of the motion for
summary judgment previously filed in the municipal court. On February 17, 2023, appellee
filed a motion for continuance of the trial court’s ruling on appellant’s motion for summary
judgment pursuant to Civ.R. 56(F). In support of its motion for continuance, appellee
submitted the affidavit of Lawrence Titus, the owner of Hero Havens, LLC.
No. 25AP-397                                                                              11


       {¶ 34} On March 6, 2023, appellant filed a memorandum in opposition to appellee’s
motion for continuance. In his memorandum in support, appellant argued appellee had
not shown sufficient reasons why it could not present affidavit facts to oppose appellant’s
motion for summary judgment. Appellant further argued appellee had not demonstrated
that additional discovery would aid in the demonstration or negation of a fact relevant to
an issue raised in appellant’s motion for summary judgment.
       {¶ 35} On March 13, 2023, appellee filed a reply to appellant’s memorandum in
opposition. On May 2, 2023, the trial court filed a decision and entry granting appellee’s
motion for additional time pursuant to Civ.R.56(F). The court’s entry provided appellee
had until July 7, 2023 to complete necessary discovery and to supplement its response to
the pending motion for summary judgment.
       {¶ 36} In circumstances where “a party opposing a summary judgment motion
needs further evidence to sustain its case, the proper remedy is to move the trial court to
delay judgment pursuant to Civ.R. 56(F).” Drake Constr. Co. v. Kemper House Mentor,
Inc., 2007-Ohio-120, ¶ 26 (11th Dist.). Civ.R. 56(F) states as follows:
              Should it appear from the affidavits of a party opposing the
              motion for summary judgment that the party cannot for
              sufficient reasons stated present by affidavit facts essential to
              justify the party’s opposition, the court may refuse the
              application for judgment or may order a continuance to
              permit affidavits to be obtained or discovery to be had or may
              make such other order as is just.

       {¶ 37} Under Ohio law, “the decision to grant or deny a continuance is generally
relegated to the sound discretion of the trial court.” Fiske v. Rooney, 126 Ohio App.3d 649,
654 (4th Dist. 1998), citing State v. Grant, 1993-Ohio-171. As set forth above, “the
provisions of Civ.R. 56(F) allow for the trial court to grant a continuance during summary
judgment proceedings so that additional discovery may be had to oppose a motion,” and
“[t]his too is relegated to the sound discretion of the trial court.” Id., citing Manofsky v.
Goodyear Tire & Rubber Co., 69 Ohio App.3d 663, 658 (9th Dist. 1990). A trial court’s
“discretion in granting continuances pursuant to Civ.R. 56(F) should be exercised liberally
in favor of the nonmoving party.” Id. at 655, citing Whiteleather v. Yosowitz, 10 Ohio
App.3d 272 (8th Dist. 1983); Carrier v. Weisheimer Cos., 1996 Ohio App. LEXIS 617 (10th
Dist. Feb. 22, 1996). A court’s order permitting additional time under Civ.R. 56(F) reflects
No. 25AP-397                                                                                 12


the general tenet that cases be decided on their “merits.” Hobson v. Morrow Cty. Commrs.,
2004-Ohio-6644, ¶ 19 (5th Dist.).
       {¶ 38} Civ.R. 56(F) requires the party requesting a continuance “to submit an
affidavit stating sufficient reasons why the party cannot present facts essential to justify the
party’s opposition to the summary judgment motion.” Perpetual Fed. Sav. Bank v. TDS2
Property Mgt., L.L.C., 2009-Ohio-6774, ¶ 13 (10th Dist.), citing ABN AMRO Mtge. Group,
Inc. v. Roush, 2005-Ohio-1763, ¶ 22 (10th Dist.). Thus, “[s]imply requesting a continuance
in order to conduct discovery is not a sufficient explanation for why a party cannot present
affidavits in opposition to the motion for summary judgment.” Id. Under Civ.R. 56(F), “ ‘a
party who seeks a continuance for further discovery is not required to specify what facts he
hopes to discover, especially where the facts are in the control of the party moving for
summary judgment,’ ” but “ ‘the court must be convinced that there is a likelihood of
discovering some such facts.’ ” Heimberger v. Zeal Hotel Group Ltd., 2015-Ohio-3845,
¶ 49 (10th Dist.), quoting Doriott v. M.V.H.E., Inc., 2004-Ohio-867, ¶ 41 (2d Dist.).
       {¶ 39} In its Civ.R. 56(F) motion, appellee argued that because appellant’s motion
for summary judgment was filed prior to the filing of appellee’s amended counterclaim, the
motion for summary judgment “did not address, and could not have addressed, or
otherwise resolve the issues asserted in the Amended Counterclaim.” (Appellee’s Mot. for
Continuance at 6-7.) Appellee further argued that since discovery had not been conducted
with respect to the counterclaims as set forth in its amended counterclaim, additional
discovery was necessary, including the need to investigate the sewer line “and extent of
damage currently known and damage or issues that may potentially arise in the future.”
(Appellee’s Mot. for Continuance at 7.) Appellee also maintained it needed additional
information to determine whether the work completed by a company hired by appellant
(Windsor) “comports with the parties’ agreement.” (Appellee’s Mot. for Continuance at 8.)
       {¶ 40} Appellee anticipated it would need to depose, “at least, [appellant], a
representative of [the] construction company hired by [appellant], and an individual with
regard to the sewer line.” (Appellee’s Mot. for Continuance at 8.) Appellee also requested
additional time “to conduct discovery to obtain documentary evidence concerning the
parties’ agreement, whether the terms of the agreement have been effectuated, and, if not,
No. 25AP-397                                                                                13


what steps are necessary to rectify the issues that continue to plague [appellee’s] property.”
(Appellee’s Mot. for Continuance at 8.)
       {¶ 41} In support of its Civ.R. 56(F) motion, appellee submitted the affidavit of
Lawrence Titus in which he averred that the company hired by appellant to install a new
sewer line had tied into the temporary (rather than the permanent) sewer line, causing
appellee’s sewer system to back up, and that a preliminary investigation indicated the
temporary line “is crushed, has since come apart, and is likely now leaking sewage under
[appellant’s] extended concrete driveway.” (Titus Aff. at ¶ 10.) Titus further averred that
his property “continues to experience issues with the improper sewer line,” and that he had
been advised that if the sewer line is not repaired, it will need to be flushed out every six
months and will continue to experience issues until a permanent and effective solution is
implemented. (Titus Aff. at ¶ 11.)
       {¶ 42} As noted, “[p]ursuant to Civ.R. 56(F), the trial court has discretion when
considering a motion for a continuance,” and “[w]here there is a realistic possibility that
genuine issues of material fact will require jury consideration that discretion should be
exercised liberally in favor of a nonmoving party who proposes any reasonable interval for
the production of those materials.” Beal Bank S.S.B. v. Means, 2011-Ohio-5922, ¶ 14 (8th
Dist.), citing Frost v. Cleveland Rehab. & Special Care Ctr., Inc., 2008-Ohio-1718, (8th
Dist.); Whiteleather, 10 Ohio App.3d at 272.
       {¶ 43} On review, we find the trial court did not err in its determination that appellee
provided a sufficient factual basis and justification to warrant additional time to complete
discovery under Civ.R. 56(F). Appellee’s Civ.R. 56(F) motion, supported by the affidavit of
Titus, maintained additional information was necessary to respond to summary judgment
and that such information would likely create a genuine issue of material fact. As indicated,
the affidavit of Titus averred that the sewer line installed by the company hired by appellant
(Windsor) was not consistent with the parties’ oral agreement to effectuate a permanent
solution, and appellee’s motion identified several individuals, including appellant and a
representative of the construction company hired by appellant, whom appellee wished to
depose in order to oppose the motion for summary judgment. In granting a continuance,
a trial court may consider how much of the information sought by a party was “ ‘in the
control of the party moving for summary judgment.’ ” Heimberger, 2015-Ohio-3845, at
No. 25AP-397                                                                                  14


¶ 49 (10th Dist.), quoting Doriott, 2004-Ohio-867, at ¶ 41 (2d Dist.). Given the discretion
of the trial court in discovery matters, and the basic tenet that cases should be decided on
the merits, we find no abuse of discretion by the trial court in granting appellee’s
Civ.R. 56(F) motion. Appellant’s second assignment of error is not well-taken and is
overruled.
       {¶ 44} Under the third assignment of error, appellant contends the trial court erred
in denying his motion for summary judgment. Appellant argues that, “[i]n the end, the gist
of [appellee’s] argument in opposition to [appellant’s] Motion for Summary Judgment was
based upon a difference of opinion between [appellant] and Mr. Titus as to what was
required of each party in terms of completing the work on the sewer line servicing
[appellee’s] property.” (Appellant’s Brief at 49.) According to appellant, he fulfilled his
obligations under the oral agreement as outlined in an email that Titus sent to Cindi
Fitzpatrick, a Grove City public service employee. Appellant argues appellee lacked any
objective evidence to show appellant “actually agreed to connect the sewer tap to the sewer
line running along the back of his property.” (Appellant’s Brief at 52.)
       {¶ 45} In response, appellee argues “[t]he difference of testimony and opinion
between [appellant] and [appellee] is the essence of what the law construes as a genuine
issue of material fact,” and therefore the trial court’s decision in denying appellant’s motion
for summary judgment “was appropriate.” (Appellee’s Brief at 24.)
       {¶ 46} This court reviews a trial court’s grant or denial of summary judgment “under
a de novo standard.” Premiere Radio Networks, Inc. v. Sandblast, L.P., 2019-Ohio-4015,
¶ 6 (10th Dist.), citing Capella III, L.L.C. v. Wilcox, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing
Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). Pursuant to Civ.R. 56(C),
“[s]ummary judgment is appropriate where ‘the moving party demonstrates that: (1) there
is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter
of law, and (3) reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is made.’ ” Id.,
quoting Capella III at ¶ 16, citing Gilbert v. Summit Cty., 2004-Ohio-7108, ¶ 6. In ruling
on a summary judgment motion, “the court must resolve all doubts and construe the
evidence in favor of the non-moving party.” Id., citing Pilz v. Dept. of Rehab. & Corr., 2004-
Ohio-4040, ¶ 8 (10th Dist.).
No. 25AP-397                                                                                   15


       {¶ 47} In the present case, appellant moved for summary judgment on his claims for
breach of contract and unjust enrichment, and also on appellee’s counterclaims for breach
of contract, unjust enrichment, declaratory judgment, and injunctive relief. Under Ohio
law, “[a] contract is defined to mean ‘a promise, or a set of promises, that is actionable upon
breach,’ ” and “[i]n order to succeed on a claim for breach of contract, ‘a party must prove
the existence of a contract, the party’s performance under the contract, the opposing party’s
breach, and resulting damage.’ ” Balalovski v. Tanevski, 2021-Ohio-3990, ¶ 41 (10th Dist.),
quoting Depompei v. Santabarbara, 2015-Ohio-18, ¶ 20-21 (8th Dist.). In order to prove
“the existence of a contract, the plaintiff must show both parties consented to the terms of
the contract, both parties had a ‘meeting of the minds,’ and the terms of the contract are
definite and certain.” Gates v. Praul, 2011-Ohio-6230, ¶ 18 (10th Dist.), quoting Blessing
v. Bowersock, 2000 Ohio App. LEXIS 5751, *5 (10th Dist. Dec. 12, 2000), citing
McSweeney v. Jackson, 117 Ohio App.3d 623, 631 (4th Dist. 1996). A determination as to
the terms of an oral contract “is a question for the trier of fact.” Id., citing Blessing. In this
respect, the “[t]erms of an oral contract may be determined from words, deeds, acts, and
silence of the parties.” (Internal quotation marks omitted.) Id. at ¶ 19, quoting Kostelnik v.
Helper, 2002-Ohio-2985, ¶ 15, quoting Rutledge v. Hoffman, 81 Ohio App. 85 (12th Dist.
1947), paragraph one of the syllabus.
       {¶ 48} Ohio law provides that an action for “[u]njust enrichment occurs. . . ‘ “when
a party retains money or benefits which in justice and equity belong to another.” ’ ” Padula
v. Wagner, 2015-Ohio-2374, ¶ 47 (9th Dist.), quoting Liberty Mut. Ins. Co. v. Indus. Comm.
of Ohio, 40 Ohio St.3d 109, 111 (1988), quoting Stan-Clean of Lexington, Inc. v. Stanley
Steemer Internatl., Inc., 2 Ohio App.3d 129, 131 (10th Dist. 1981). In order to “prevail on a
claim of unjust enrichment, a plaintiff must show: ‘(1) a benefit conferred by a plaintiff upon
a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit
by the defendant under circumstances where it would be unjust to do so without payment
. . .’ ” Id., quoting Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984).
       {¶ 49} While a party “may plead, in the alternative, both a breach of contract claim
and a claim for unjust enrichment . . . a party may not recover for the same services under
both a contractual claim and a claim for unjust enrichment, but may recover under an
unjust enrichment theory if the contractual claim fails.” Jones v. Carpenter, 2019-Ohio-
No. 25AP-397                                                                              16


619, ¶ 42 (1oth Dist.), citing Cristino v. Bur. of Workers’ Comp., 2012-Ohi0-4420, ¶ 26
(1oth Dist.).
       {¶ 50} As indicated, the trial court denied appellant’s motion for summary judgment
by entry filed January 24, 2024, finding “disputes of material fact remain concerning all
claims asserted.” (Jan. 24, 2024 Decision at 7.) In its decision, the court noted the parties
“agree the oral contract is memorialized in the September 2, 2020 email from Mr. Titus to
Grove City Public Service Director Cindi Fitzpatrick.” (Decision at 5.)
       {¶ 51} The September 2020 email from Lawrence Titus to Cindi Fitzpatrick states
in part as follows:
                Hi Cindy,

                Per our conversation yesterday about our sewer line being cut
                by 3 Pillars Consrtruction. I would like to have Michael
                Edwards Escavating temporarily hook my sewer line back up
                to keep the new Castro Home moving forward, give us time to
                get estimates and schedule my sewer line to modern code.

                1. Extend current 6” sewer line back through easement across
                Castro Property . . . at existing height.

                2. Provide Cleanout on Roach Property . . . and temporarily
                reattach my sewer line.

                3. Install new sewer line in easement on Castro Property
                starting 5’ in on my property and extending 5’ in to Roach
                property. This new line would be closer to the back fence line,
                capped on both ends and running at proper depth for future
                perminant connects.

                4. Remove current shed in the easement on Smith Property
                . . . to run (x2) new 6” perminant sewer taps. Castro and Titus
                providing new shed for Smith Family.

                5. Castro and Titus complete (x2) new 6” sewer taps in 2021
                within back easment.

                6. Cap Titus temporary sewer line at new cleanout on Roach
                Property.

(Sic passim.) (Sept. 2, 2020 email.)
No. 25AP-397                                                                               17


       {¶ 52} In its summary judgment decision, the trial court outlined the competing
positions of the parties, i.e., noting appellant’s contention “he complied with all noted
specifications,” and appellee’s assertion that appellant “failed to connect the Windsor sewer
line to the permanent sewer line on [appellee’s] property. (Jan. 24, 2024 Decision at 6.)
The court observed appellant “admits . . . the terms of the contract breakdown around the
parties’ understanding of the term ‘permanent,’ ” and that appellant “[a]dditionally . . .
admits that those terms specified within the . . . email did not necessarily pertain solely to
his obligations, but, in fact, contain matters [appellee] was responsible for.” (Decision at
6.) Thus, the court found, “although some terms may be contained within the 9/2/2020
email, certain terms of the oral agreement are clearly missing from the email,” and it is
“these terms and the parties’ sparring viewpoints that create a dispute of material fact
regarding whether an oral agreement truly existed.” (Decision at 6.)
       {¶ 53} The trial court further found “[a] dispute of material fact remains concerning
the parties’ unjust enrichment claims as well.” (Decision at 6.) Specifically, noting the
parties’ competing claims that each has been unjustly enriched by the installation of the
sewer lines and easements, the court held in part:
              Defendant claims Plaintiff has been unjustly enriched because
              Defendant paid for the completion of the temporary sewer line
              work that was later utilized by Plaintiff’s contractors. Plaintiff
              admits that a portion of the sewer line work was completed by
              Defendant’s contractor Edwards Excavating, and later
              connected to by his contractor Windsor. . . . Yet, because it is
              unclear what work was designated to which party and whether
              that party would assume the related costs, questions of
              material fact remain concerning who, if any, was unjustly
              enriched.

(Decision at 6.)
       {¶ 54} Based on this court’s de novo review of the evidence submitted on summary
judgment, including deposition testimony and the competing affidavits of appellant and
appellee, we find the record supports the trial court’s determination that genuine issues of
material fact remained for trial. In his motion for summary judgment, appellant submitted
his own affidavit in which he averred that “[t]o date, the sewer line that I had installed is
functioning and flowing properly to and from the connection point on the Roach property
at . . . Arbutus Avenue to the main line on Jackson Street, which services the Hero Havens
No. 25AP-397                                                                                18


property at . . . Columbus Street and the new sewer line to the Castro property.” (Castro
Aff. at ¶ 17.) Regarding the issue of unjust enrichment, appellant argued in his motion that
he conferred to appellee “the benefit of . . . a working replacement sewer line, which services
[appellee’s] property.” (Appellant’s Mot. for Summ. Jgmt. at 10.) Appellant also argued he
was not vicariously liable for the acts of his independent contractors, asserting he “did not
control the method and means” for how Three Pillars or Windsor performed their work.
(Castro Supp. Aff. at ¶ 11.)
       {¶ 55} In its response to appellant’s motion for summary judgment, appellee
submitted the affidavit of Lawrence Titus, who averred that his understanding of the
agreement between the parties was that Edwards Excavating would install two sewer lines,
one to be used temporarily until construction on appellant’s property was completed, and
a permanent line “with proper fall to code to be used once construction on [appellant’s]
property was completed.” (Titus Aff. at ¶ 14.) Titus stated that, after Edwards Excavating
installed the two sewer lines “to service my property,” appellant hired Windsor to install a
sewer line running from appellant’s property to Jackson Street. (Titus Aff. at ¶ 16.) Titus
averred that Windsor, “[w]hen connecting [appellee’s] sewer line to the Windsor sewer
line,” tied that line to the temporary sewer line rather than the permanent line. (Titus Aff.
at ¶ 19.) According to Titus, “Windsor should have connected the Windsor sewer line to
the permanent sewer line, rather than the temporary sewer line.” (Titus Aff. at ¶ 19.)
       {¶ 56} Appellee, in a supplement to its memorandum contra the motion for
summary judgment, cited the July 13, 2023 deposition testimony of appellant in support of
its contention genuine issues of material fact existed for trial. Specifically, appellee argued
that while appellant acknowledged appellee hired a contractor (Edwards Excavating) to run
two sewer lines, i.e., “ ‘a temporary line . . . and a supplemental, just-in-case line across’
[appellant’s] property, [appellant] had a different understanding than [appellee] of the
purpose of these two sewer lines.” (Supp. to Memo Contra Summ. Jgmt. at 4, quoting
Castro Depo. at 28.) Appellee further argued that appellant, “when asked about his
understanding of the purpose of the so-called supplemental line, . . . stated that ‘[t]he one
line would be hooked up. And in case of damage, the second line would be there for better
fall coming out of [appellee’s] house.’ ” (Supp. to Memo Contra Summ. Jgmt. at 4, quoting
Castro Depo. at 29.)
No. 25AP-397                                                                                19


       {¶ 57} Appellee maintained, however, “the second line was not created just in case
of damage to the temporary line” but, rather, the “second, permanent line was intended to
be used once construction on [appellant’s] property was completed.” (Supp. to Memo
Contra Summ. Jgmt. at 4.) Appellee further argued that appellant “repeatedly called what
Mr. Titus has called the temporary sewer line the ‘active sewer line’ throughout his
deposition, indicating his supposed belief that this temporary sewer line was the sewer line
that Windsor was supposed to tie into.” (Supp. to Memo Contra Summ. Jgmt. at 4.)
       {¶ 58} The record on summary judgment, which must be viewed in the light most
favorable to the non-moving party, demonstrates, as found by the trial court, genuine issues
of material fact existed as to the material terms of the agreement, including the
understanding of the parties with respect to the term “permanent.” As noted, while
appellant argued the sewer line he installed is functioning and that it allows adequate flow
with respect to appellee’s property, appellee asserted its sewer line did not function
properly after appellant’s contractor (Windsor) tied into the temporary sewer line instead
of the permanent line, and that this constituted a breach of the parties’ oral agreement to
provide a permanent and effective solution.         According to appellee, tying into the
permanent line was critical to the parties’ agreement as that line had the proper fall.
       {¶ 59} The record reflects the parties’ differing opinions as to the significance of the
two lines installed by Edwards Excavating and as to the subsequent “tie-in” to one of those
lines by Windsor. Appellant testified at his deposition that “[t]he excavator did a temporary
line, Larry Titus and Hero Havens hired a contractor to run a new line to tie in and a
supplemental, just-in-case line across my property.” (Castro Depo. at 28.) When asked
about his understanding of the supplemental line, appellant responded that “one line would
be hooked up,” and “in case of damage, the second line would be there for better fall coming
out of his house.” (Castro Depo. at 29.) According to appellant, the “supplemental” line
“would be the line that’s currently capped off and never used.” (Castro Depo. at 33.)
Appellant testified the company he hired (i.e., Windsor) tapped into “[t]he active line.”
(Castro Depo. at 33.) During his deposition, appellant identified an exhibit showing an
“orange line” as depicting the supplemental or backup line, and he identified a “purple line”
on the exhibit as depicting the “active line.” (Castro Depo. at 83.) Appellant acknowledged
No. 25AP-397                                                                              20


that his reference to the “active line” corresponded to what Titus represented as “a sewer
temp.” (Castro Depo. at 52-53.)
       {¶ 60} By contrast, according to the affidavit of Titus, “I did not have Edwards
[Excavating] create the permanent sewer line as back-up or just in case something
happened to the temporary line,” but, rather, “I had Edwards [Excavating] create the
permanent sewer line to service Hero Havens’ property on a permanent basis once
construction on Castro’s property was completed.” (Titus Aff. in Support of Appellee’s
Supp. to its Memo Contra Castro Mot. for Summ. Jgmt. at ¶ 17.) Titus averred that his
property “continues to experience issues with the sewer line due to Windsor tying the
Windsor sewer line into the temporary sewer line, rather than the permanent sewer line.”
(Titus Aff. in Support of Appellee’s Supp. to its Memo Contra Castro Mot. for Summ. Jgmt.
at ¶ 20.)
       {¶ 61} Here, while the intent of the parties with respect to the purported oral
agreement may have been to achieve a permanent and effective solution, the record on
summary judgment reflects disputed issues of material fact, including evidence regarding
the parties’ differing views as to the purpose of the two sewer lines and as to whether the
tie-in (connection) to appellee’s “active” line (rather than the “supplemental” line) by
appellant’s contractor (Windsor) was contrary to the terms of the agreement and the
understanding of the parties to bring about such a solution. Accordingly, the trial court did
not err in its determination that genuine issues of material fact precluded summary
judgment on the claim and counterclaim for breach of oral agreement.
       {¶ 62} Further, the record supports the trial court’s finding that questions of fact
remained as to who, if any, was unjustly enriched. While appellant asserted that he
conferred the benefit of a proper easement and working replacement sewer line that
services appellee’s property, appellee disputed that the sewer line functioned properly
because Windsor tied the connection to the temporary line rather than the permanent line
(i.e., appellee asserted the failure to provide an effective and permanent solution raised a
disputed issue of fact as to whether a benefit was conferred). Appellee also asserted the
work performed by its contractor, Edwards Excavating, benefited appellant by allowing
construction to proceed on appellant’s residence while the parties sought to resolve the
situation created by the severed sewer line.
No. 25AP-397                                                                           21


       {¶ 63} Here, the parties’ competing unjust enrichment claims are contingent upon
the “same evidence” that creates a genuine issue of material fact underlying the breach of
contract claims. Thyssen Krupp Elevator Corp. v. Constr. Plus, Inc., 2010-Ohio-1649, ¶ 27
(10th Dist.) (summary judgment improper as to plaintiff’s unjust enrichment claim because
it was dependent on same evidence that created a genuine issue of material fact regarding
plaintiff’s claim for breach of contract). On review, the trial court did not err in its
determination that “questions of material fact remain concerning who, if any, was unjustly
enriched.” (Decision at 6.)
       {¶ 64} Accordingly, because genuine issues of material fact remained as to the
claims for breach of oral contract and unjust enrichment, the trial court did not err in
denying appellant’s motion for summary judgment. Appellant’s third assignment of error
is not well-taken and is overruled.
IV. Conclusion
       {¶ 65} Based upon the foregoing, appellant’s three assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas is hereby
affirmed.
                                                                     Judgment affirmed.

                          EDELSTEIN and DINGUS, JJ., concur.