Nahas Constr. Corp. v. Brustoski

[Cite as Nahas Constr. Corp. v. Brustoski, 2026-Ohio-1362.]


STATE OF OHIO                    )                            IN THE COURT OF APPEALS
                                 )ss:                         NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

NAHAS CONSTRUCTION CORP.                                      C.A. No.   31600

        Appellant

        v.                                                    APPEAL FROM JUDGMENT
                                                              ENTERED IN THE
MIKE BRUSTOSKI, et al.                                        COURT OF COMMON PLEAS
                                                              COUNTY OF SUMMIT, OHIO
        Appellees                                             CASE No.   CV-2024-06-2479

                                 DECISION AND JOURNAL ENTRY

Dated: April 15, 2026



        SUTTON, Judge.

        {¶1}    Plaintiff-Appellant Nahas Construction Corp. (“Nahas”) appeals the judgment of

the Summit County Court of Common Pleas granting summary judgment in favor of Defendants-

Appellees Mike Brustoski and Janine Brustoski (“the Brustoskis”). For the reasons that follow,

this Court affirms in part and reverses in part.

                                                      I.

                                  Relevant Background Information

        {¶2}    This case arises from a construction contract between Nahas and the Brustoskis for

the construction of an addition to the Brustoskis’ residence. Pursuant to the contract, Nahas was

to build a single-story addition to the residence in exchange for the payment of $74,483.00, subject

to any change orders. During the course of construction, the Brustoskis made periodic payments

to Nahas. Not satisfied with the work done by Nahas, the Brustoskis withheld the final payment

to Nahas.
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        {¶3}    Nahas filed a complaint against the Brustoskis, alleging the Brustoskis breached

the contract by failing to make the final payment. Nahas alleged the Brustoskis owed a balance of

$23,612.73. The Brustoskis counterclaimed alleging Nahas breached the contract by defective

workmanship, structural deviations from engineered drawings, and property damage caused by

Nahas’s work.

        {¶4}    On January 30, 2025, the Brustoskis served Nahas with requests for admissions.

That same day, Nahas moved to extend the discovery deadline to March 4, 2025, which was

granted to allow the parties to respond to outstanding discovery requests. No further extensions

of time were sought by Nahas.

        {¶5}    On March 19, 2025, which was after the close of discovery, the Brustoskis moved

for summary judgment on Nahas’s complaint and on their counterclaim. As of the date the motion

for summary judgment was filed, Nahas had not responded to the requests for admissions.

        {¶6}    On April 18, 2025, Nahas filed its response to the motion for summary judgment

and moved for leave to file its responses to the requests for admissions instanter. The Brustoskis

opposed the motion. On May 28, 2025, the trial court denied the motion for leave, stating:

        [Nahas] asserts it was unable to respond to the request for admissions until “very
        recently” due to [its] work schedule being “extremely busy.”

        The [c]ourt has reviewed [the Brustoskis’] request for admissions, which are
        modest in number (11) and straightforward.

        {¶7}    The requests for admissions were therefore deemed admitted pursuant to Civ.R.

36(A)(1). On July 3, 2025, the trial court granted summary judgment in favor of the Brustoskis

and against Nahas on Nahas’s complaint and on the Brustoskis’ counterclaim. In doing so, the

trial court stated:

        Nahas’[s] causes of action are based on the Brustoskis’ failure to pay the balance.
        The Brustoskis’ counterclaim acknowledged they failed to pay the final balance
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       owed because Nahas breached the terms of the contract by not performing under
       the [c]ontract, were not provided credit for services Nahas did not perform, and
       Nahas’[s] damage to the Brustoski[s’] driveway. The [c]ontract provided for Nahas
       to build an addition on the Brustoskis’ existing home and Nahas would provide the
       materials and labor to perform all work shown in the specifications, drawings, and
       “everything required by the general conditions of the contract ***.” The [c]ontract
       also provided the work would be performed in a workmanlike manner and Nahas
       shall “repair or replace, without charge, any material which prove[s] not to be in
       specifications” as notified by the Brustoskis. In exchange, the Brustoskis agreed to
       pay $74,483.00 in stages upon the completion of the certain stages of the
       construction.

The trial court found there was no genuine issue of material fact that Nahas failed to perform in a

workmanlike manner pursuant to the terms of the contract, failed to perform its [c]ontractual

duties, and damaged the Brustoskis’ driveway during the performance of the contract. The trial

court also found the Brustoskis’ failure to make the final payment to Nahas was excused due to

Nahas’s failure to perform under the contract, causing the Brustoskis damages and loss in the

amount of $27,546.00, which was $7,608.00 in excess of the amount sought by Nahas in its

complaint. The trial court then awarded judgment in the amount of $7,608.00 in net damages in

favor of the Brustoskis and against Nahas.

       {¶8}    Nahas has appealed, raising one assignment of error for our consideration.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING [THE BRUSTOSKIS’]
       MOTION FOR SUMMARY JUDGMENT.

       {¶9}    In its sole assignment of error, Nahas argues the trial court erred in granting

summary judgment in favor of the Brustoskis on its complaint and on the Brustoskis’ counterclaim.

They argue the admissions deemed admitted were not sufficient to support the trial court’s grant

of summary judgment, and more specifically argue the Brustoskis submitted no Civ.R. 56(C)
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evidence as to the amount of damages they sustained. We agree with Nahas on its argument

concerning the amount of damages sustained.

       {¶10} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56

when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is

entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse

to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing Civ.R.

56(C). A court must view the facts in the light most favorable to the non-moving party and must

resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,

358-359 (1992). The party moving for summary judgment bears the initial burden of informing

the trial court of the basis for the motion and pointing to parts of the record that show the absence

of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).

Specifically, the moving party must support the motion by pointing to some evidence in the record

of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of supporting its

motion for summary judgment with acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 56(E)

provides that the non-moving party may not rest upon the mere allegations or denials of the moving

party’s pleadings. Id. at 293. Rather, the non-moving party has a reciprocal burden of responding

by setting forth specific facts, demonstrating that a “genuine triable issue” exists to be litigated at

trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996).

       {¶11} Civ.R. 56(C) provides in relevant part:

       Summary judgment shall be rendered forthwith if the pleadings, depositions,
       answers to interrogatories, written admissions, affidavits, transcripts of evidence,
       and written stipulations of fact, if any, timely filed in the action, show that there is
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        no genuine issue as to any material fact and that the moving party is entitled to
        judgment as a matter of law.

(Emphasis added.) Therefore, written admissions are allowable evidence in support of a motion

for summary judgment pursuant to Civ.R. 56(C). In this case, the admissions were deemed

admitted pursuant to Civ.R. 36(A)(1), which provides in relevant part:

        The matter is admitted unless, within a period designated in the request, not less
        than twenty-eight days after service of the request or within such shorter or longer
        time as the court may allow, the party to whom the request is directed serves upon
        the party requesting the admission a written answer or objection addressed to the
        matter, signed by the party or by the party’s attorney.

        {¶12} The only evidence submitted by the Brustoskis in support of their motion for

summary judgment consisted of the admissions deemed admitted. The Brustoskis did submit

repair estimates, invoices, and photographs as part of their counterclaim, and they filed an expert

report with additional documents concerning the amount of damages they are claiming, but they

did not include these documents as evidence in support of their motion for summary judgment,

and even if they had, they did not support the documents with an affidavit or any other evidence

allowed by Civ.R. 56(C). “The moving party bears the burden of demonstrating that there are no

genuine issues of material fact with reference to ‘appropriate evidentiary materials.’” Myers v.

Univ. Hosps. Health Sys., 2023-Ohio-3045, ¶ 7 (9th Dist.), citing Byrd v. Smith, 2006-Ohio-3455,

¶ 10. “Appropriate evidentiary materials” listed in Civ.R. 56(C) are: depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of

fact.

        {¶13} Nahas argued in its response in opposition to summary judgment that the

admissions deemed admitted did not satisfy the Brustoskis’ burden to show that there were no

genuine issues of material fact. Therefore, in undertaking our de novo review, we will determine
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whether the admissions alone support the judgment in favor of the Brustoskis and against Nahas

in the amount of $7,608.00 on the parties’ respective breach of contract claims.

          {¶14} “Generally, a breach of contract occurs when a party demonstrates the existence of

a binding contract or agreement; the non-breaching party performed its contractual obligations;

the other party failed to fulfill its contractual obligations without legal excuse; and the non-

breaching party suffered damages as a result of the breach.” (Emphasis added) (Internal quotations

and citations omitted.) Envision Waste Servs., LLC v. Cty. of Medina, 2017-Ohio-351, ¶ 14 (9th

Dist.).

          {¶15} Here, there is no dispute that a contract exists. Nahas alleged the Brustoskis failed

to perform their obligations under the contract by failing to pay the final installment. This fact is

not in dispute. Thus, the issues in contention are: (1) whether the Brustoskis had a legal excuse in

not making the final payment to Nahas because Nahas breached the contract; (2) whether the

Brustoskis suffered damages as a result of Nahas’s breach or breaches of the contract; and (3) the

amount of damages caused by the breach or breaches.

          {¶16} The Brustoskis alleged in their counterclaim that Nahas breached the contract in a

number of ways and they were damaged thereby. These items included failing to install the girder

truss as per the engineered drawing and failing to take proper precaution when pouring the concrete

basement floor and consequently cracking the Brustoskis’ driveway. The counterclaim then

alleged, “[a]s a direct proximate result of [Nahas’s] breach of contract, [the Brustoskis] have

sustained damages that exceed the amount claimed by [Nahas]. The exact amount of damages will

be determined based on pending repair estimates.” (Emphasis added).

          {¶17} The admissions deemed admitted relevant to the Brustoskis’ claim that Nahas

breached the contract include: (1) Nahas knew or should have known that work was not completed
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in accordance with the contract and/or industry standards; (2) the Brustoskis were entitled to

withhold final payment to Nahas due to Nahas’s failure to complete the work satisfactorily or in

accordance with the terms of the contract, including the failure to follow the engineered drawings

for the junction between the existing house and the addition; (3) the construction work on the

addition was incomplete, unsatisfactory, or deviated from the contract specifications, including

failing to meet the structural requirements outlined in the engineered drawings; (4) Nahas did not

follow the engineered drawings for the structural junction (girder/truss) between the existing house

and the addition; and (5) Nahas failed to repair the damage caused to the Brustoskis’ driveway

during the construction process.     These admissions admit the work was not completed in

accordance with the contract and the Brustoskis were entitled to withhold final payment. The

admissions therefore satisfy the “breach” element of the Brustoskis’ breach of contract

counterclaim and justify the Brustoskis’ withholding of the final payment to Nahas.

       {¶18} As for damages, however, the Brustoskis have not met their burden pursuant to

Civ.R. 56. In the body of their motion for summary judgment, the Brustoskis claim damages in

the amount of $7,608.00, but they did not attach evidence of the amount of damages they sustained

as a result of Nahas’s breach. The admissions deemed admitted did not admit the amount of

damages caused by Nahas’s breach of contract.

       {¶19} The trial court did not err in granting summary judgment to the Brustoskis on the

parties’ respective breach of contract claims. However, there remain genuine issues of material

fact as to the amount of damages caused by Nahas’s breach of contract.

       {¶20} Accordingly, Nahas’s assignment of error is overruled in part and sustained in part.

The assignment of error is overruled as to the issue of breach of contract, but sustained as to the

amount of damages caused thereby.
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                                                III.

       {¶21} For the forgoing reasons, Nahas’s assignment of error is overruled in part and

sustained in part. The judgment of the Summit County Court of Common Pleas is affirmed in part

and reversed in part and remanded for further proceedings to determine damages.

                                                                        Judgment affirmed in part,
                                                                             and reversed in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                       BETTY SUTTON
                                                       FOR THE COURT



HENSAL, P. J.
STEVENSON, J.
CONCUR.
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APPEARANCES:

DARREN W. DEHAVEN, Attorney at Law, for Appellant.

MICHAEL BRUSTOSKI and JANINE BRUSTOSKI, pro se, Appellees.