2009 Ohio 1094 | Ohio Ct. App. | 2009
{¶ 2} Gallo asserts that under Section IV (Auto Liability), Coverage G (Supplementary Payments), the companies agreed to reimburse certain of the litigation-related expenses she and other purported class members incurred. Based upon these allegations, Gallo attempts to set forth four causes of action. The companies argue that Gallo failed to promptly give notice of her alleged expenses to the companies or their agent, thereby failing to trigger the reimbursement clauses in the policy. The companies further argue that this failure renders her complaint without cognizable claims under Civ. R. 12(B)(6).
{¶ 3} On February 28, 2008, Gallo filed a four-count complaint alleging breach of contract, bad faith and breach of the covenant of good faith and fair dealing, unjust enrichment/quantum meruit, and seeking declaratory relief.
{¶ 4} On June 16, 2008, after several leaves to plead, the companies filed their motion to dismiss. *4
{¶ 5} On July 10, 2008, Gallo filed her memorandum in opposition to defendants' motion to dismiss, or in the alternative motion for leave to amend complaint.
{¶ 6} On July 25, 2008, the trial court, without ruling on the plaintiff's motion for leave, granted the companies' motion to dismiss. This appeal followed.
{¶ 7} Gallo's first assignment of error states:
"The trial judge erred, as a matter of law, in dismissing the class action complaint for failure to allege a potentially valid claim for relief."
{¶ 8} An order granting a Civ. R. 12(B)(6) motion to dismiss is subject to de novo review. Perrysburg Twp. v. City of Rossford,
{¶ 9} While Gallo cannot survive a motion to dismiss through the mere incantation of an abstract legal standard, she can defeat such a motion if there is some set of facts consistent with her complaint, which would allow her to recover. See Byrd v. Faber (1991),
{¶ 11} The companies argue that Gallo fails to state a cognizable claim for relief because she failed to notify the companies of her alleged expenses. As a result, the companies argue that their duty to perform has not been triggered. They do not dispute that they owe Gallo the incurred expenses; they assert that they have not been notified of the expenses because Gallo has not made a proper demand for payment. On this basis, they urge this court to uphold the dismissal of Gallo's complaint. *6
{¶ 12} Gallo asserts, both in her complaint and her brief, that all duties imposed by the policy text have been fully satisfied and because of this, she urges reversal of the motion ruling.
{¶ 13} In order to state a claim for breach of contract under Ohio law, Gallo must establish: (1) the existence of a contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to the plaintiff. DPLJR, Ltd. v. Hanna, Cuyahoga App. No. 90883,
{¶ 14} Because Gallo has provided the companies with fair notice of this claim and the grounds upon which it rests, she has satisfied the liberal notice pleading requirements set forth in Civ. R. 8, both for herself and on behalf of those purporting to be similarly situated. See, e.g., Kavouras v. Allstate Ins. Co. (N.D. Ohio 2008), No. 1:08 CV 571, at 7. (Citations omitted.) As such, the trial court erred in dismissing the breach of contract claim on this basis.
{¶ 16} The companies argue that Gallo's claim fails because she did not allege that the companies ever received a request for reimbursement from Gallo or the putative class members. Such a request, according to the companies, is "a necessary prerequisite for [the companies] being guilty of a bad faith `refusal to reimburse.'"
{¶ 17} However, a review of the complaint indicates at ¶ 35-40 that Gallo generally avers and at ¶ 38 specifically avers that she and other putative class members have satisfied all conditions precedent to the insurance contracts. Such an averment is sufficient at this stage of the litigation. Kavouras at 7. Accordingly, the trial court erred in dismissing Gallo's complaint on this basis; the companies' motion to dismiss this count is without merit.
{¶ 19} Unjust enrichment operates in the absence of an express contract or a contract implied in fact to prevent a party from retaining money or benefits that in justice and equity belong to another. F LCtr Co. v. H. Goodman, Inc., Cuyahoga App. No. 83503, 2004-Ohio-5856, at ¶ 15, fn. 2, citing University Hosps. of Cleveland, Inc. v. Lynch,
{¶ 20} No party disputes the existence of an underlying insurance contract governing the issues in this case. Indeed, the enforceability of the provisions of the standard form contract, rather than the existence of the contract, are at issue. Because there is no question that an express written contract between Gallo and the putative class members and the companies exists covering the disputed reimbursement provision, Ohio law precludes a claim for unjust enrichment. Appellee's motion to dismiss this claim has merit. The trial court's decision to dismiss this count is therefore upheld.
{¶ 22} Aside from the exceptions noted below, it is error to dismiss a request for declaratory relief in the complaint at the pleadings stage, especially when it is unclear whether the plaintiff would prevail on her claims.
{¶ 23} In Ohio, courts are required to issue a judgment declaring the rights or legal relations, or both, of the parties, and it is error to dismiss the complaint for failure to state a claim under Civ. R. 12(B)(6) unless there is no real controversy or justiciable issue between the parties, or where the declaratory judgment will not terminate the uncertainty or controversy, under R.C.
{¶ 24} As the court's analysis with respect to Counts I through III indicates, there is clearly a justiciable controversy between the parties. Given the existence of this controversy, and since a ruling under R.C.
{¶ 25} Accordingly, we conclude that with the exception of Count III, Gallo's pleadings were sufficient to defeat a motion to dismiss under Civ. R. 12(B)(6). The trial court erred in dismissing counts I, II and IV of the Complaint. We sustain Gallo's first assignment of error in part. *10
{¶ 26} In her second assignment of error, Gallo argues as follows:
"The trial judge abused her discretion in denying Plaintiff an opportunity to amend her complaint to correct the pleading deficiencies identified by the court."
{¶ 27} The decision of whether to grant a motion for leave to amend a pleading is within the discretion of the trial court. Turner v. CentralLocal School Dist,
{¶ 28} However, Civ. R. 15(A) provides in part that "[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served ***." Under Ohio law, this right is absolute; no leave of court is required. See, e.g., Cashelmara VillasLtd. Partnership v. Dibenedetto (1993),
{¶ 29} A motion to dismiss under Civ. R. 12(B)(6) is not a "responsive pleading" for purposes of Civ. R. 15(A), nor is it a pleading pursuant to Civ. R. 7(A). See *11 Steiner v. Steiner (1993),
{¶ 30} Under the facts presented, the civil rules provide Gallo an absolute right to amend her complaint before a responsive pleading is filed. Having already determined that the trial court erred in dismissing the complaint, we also find that the trial court abused its discretion by concomitantly denying Gallo the opportunity to amend her complaint through the underlying dismissal of the action, given the nature of this right under the rules.
{¶ 31} Because of the existence of this absolute right, we find the companies' reliance on McSweeney v. Jackson (1996),
{¶ 32} Appellant's second assignment of error is well taken.
{¶ 33} Judgment is affirmed in part, reversed in part, and remanded to the trial court for further proceedings.
It is ordered that appellant recover from appellees the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR