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Kuempel Serv.2/28/1996
Per Curiam.
The plaintiff-appellant, Kuempel Service, Inc. ("Kuempel"), appeals from the judgment of the trial court, following a bench trial, in favor of the defendants-appellees, David E. Zofko, Zofko Construction Company, and Dezco Financial. Kuempel challenges the judgment as both contrary to the law and against the manifest weight of the evidence. Specifically, Kuempel argues that the trial court erred by refusing to hold the defendants-appellees liable for the judgmensKuempel had previously obtained against Dezcon, Inc., a corporation formerly half-owned by Zofko. For the reasons that follow, we affirm.
On or about September 22, 1988, Kuempel, a mechanical service contractor, entered into a subcontract with Dezcon to perform HVAC and plumbing work on a project at Kenwood Towne Centre called "Joe's Burgerama." After performing the work, Kuempel submitted invoices to Dezcon but received no payment. Kuempel thereafter filed suit against Dezcon on April 17, 1990. Dezcon filed an answer. On April 30, 1993, Kuempel received judgment against Dezcon because of the latter's failure to appear and defend the lawsuit. The amount of the judgment against Dezcon was $86,914.35.
Kuempel's attempts to satisfy the judgment were unsuccessful. Ultimately Kuempel obtained information that Dezcon had gone out of business and had no assets from which to satisfy the judgment. Kuempel learned that Randall J. Hake and David E. Zofko, who were each fifty percent shareholders in Dezcon, had separated and that both had formed new construction companies: Randall J. Hake Contracting Company, Zofko Construction Company, and Dezco Financial. Kuempel then filed the current action against Hake and Zofko and their companies on September 13, 1993.
Z & H Development ("Z & H"), Dezcon, and Dezcon Contractors, Inc. ("DCI") were created in 1983 by Hake and Zofko as part of a design and construction business. Dezcon operated as the general contractor. Z & H Development was created for the primary purpose of owning equipment that was leased to Dezcon and occasionally outside companies as well. Z & H owned the real property and structure housing Dezcon. DCI was established for the limited purpose of performing general contracting work involving unions in West Virginia.
Dezcon operated for eight years, building over two hundred fifty shops for The Limited clothing chain and twelve Burger King restaurants. Dezcon kept its own books and maintained a separate corporate checking account. The company advertised in the yellow pages, was a member of trade associations as well a signatory to union contracts, and maintained separate workers' compensation ansunemployment compensation accounts with the state of Ohio. The Dezcon logo was printed on baseball hats, matches, jackets, and other items. The company also sponsored trips to professional sports activities.
Dezcon's client on the Joe's Burgerama project was Fast Food Concepts ("FFC"). FFC suffered financial problems, and consequently Dezcon was paid only about thirty percent of the money it was due for the project. According to Zofko, that money was used to pay Dezcon's bills and its employees. The balance, amounting to approximately $220,000, remained unpaid when the project collapsed and FFC entered bankruptcy. Of that $220,000, approximately $10,000 represented profit to Dezcon and the balance of monies due to others, including Kuempel. Although Dezcon had received personal guarantees from the president of FFC, those guarantees became precarious when the president declared personal bankruptcy after the company went under. Zofko testified that Dezcon did no
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