2021 Ohio 4150
Ohio Ct. App.2021Background
- The City of Akron sued Mark Baum in Summit County Court of Common Pleas for action on an account and unjust enrichment, seeking $21,979.05 for unpaid water, sewer, and curbside services at 2349 19th Street SW.
- APUB created an account for Baum after a meter replacement in 2014; services ran through Feb. 21, 2018 when water/sewer were shut off for nonpayment of $370.38.
- After shutoff, APUB performed interim meter readings showing elevated usage; it billed Baum for those usages and sent notices, including an offer of a Claims Commission hearing.
- City supported its summary-judgment motion with the Utilities Accounting Supervisor’s affidavit, meter readings, bills, APUB rules, and Baum’s discovery admissions (Baum admitted ownership and responsibility but denied owing the full amount).
- Baum did not oppose the City’s summary-judgment motion; the trial court granted summary judgment for the City on both claims.
- On appeal the Ninth District affirmed summary judgment on the action-on-an-account claim but reversed the grant as to unjust enrichment because the court found an implied-in-fact contract existed (making unjust enrichment unavailable).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether City proved an action on an account for unpaid utility services | City: It had an implied-in-fact contract with Baum and produced account history, meter readings, billing, and an affidavit showing a $21,979.05 balance. | Baum: Denied owing the asserted balance (but did not oppose SJ and had admitted ownership/responsibility). | Court: Affirmed — City met its initial summary-judgment burden; no genuine issue of material fact on action on an account. |
| Whether City could recover under unjust enrichment | City: Alternatively, unjust enrichment recovery of $21,979.05 because City conferred benefits (services) Baum knew about and did not pay for. | Baum: (Implicit) Recovery barred if a contract (express or implied) governs the subject. | Court: Reversed — unjust enrichment unavailable where an enforceable implied-in-fact contract exists. |
| Whether summary judgment was properly entered when Baum did not respond | City: By meeting initial burden and attaching supporting evidence, SJ was proper; Baum’s failure to respond limits appellate review. | Baum: Did not file opposition below (pro se). | Court: Noted Baums’s failure to respond; review limited to whether City met its initial burden — held City did so for action on account. |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (Ohio 1996) (standard for de novo review of summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Ohio 1977) (elements of Civil Rule 56 summary-judgment test)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (moving party’s initial burden and nonmoving party’s reciprocal burden under Rule 56)
- Great Seneca Financial v. Felty, 170 Ohio App.3d 737 (Ohio Ct. App.) (elements for establishing prima facie case on an account)
- Dunn v. Bruzzese, 172 Ohio App.3d 320 (Ohio Ct. App.) (nature and proof of implied-in-fact contracts)
- Shaw v. J. Pollock & Co., 82 Ohio App.3d 656 (Ohio Ct. App. 1992) (legal equivalence of implied and express contracts)