Vancrest Mgt. Corp. v. MullenhourVancrest Mgt. Corp. v. Mullenhour
OPINION
Appeal from Allen County Common Pleas Court Trial Court No. CV 2017 0475
Judgment Affirmed
Date of Decision: July 22, 2019
APPEARANCES:
Aaron M. Baker for Appellant
Zachary D. Maisch
ZIMMERMAN, P.J.
{1} Plaintiff-appellant, Vancrest Management Corporation (“Vancrest“), appeals the October 4, 2018 judgment of the Allen County Court of Common Pleas dismissing its complaint against defendant-appellee, Lisa Mullenhour (“Mullenhour“). For the reasons that follow, we affirm.
{2} On August 23, 2017, Vancrest filed a breach-of-contract complaint seeking damages from Mullenhour for services provided to Mullenhour‘s mother, Wanda Hohlbein (“Hohlbein“), for Hohlbein‘s nursing-facility care from January 4, 2017 through the date of Hohlbein‘s death on May 11, 2017. (Doc. No. 1). Although file stamped on September 14, 2017, Vancrest served an amended complaint on Mullenhour on September 11, 2017. (Doc. No. 4). (See also Appellee‘s Brief at 1). On September 13, 2017, Mullenhour filed her answer to Vancrest‘s amended complaint and filed a frivolous-conduct counterclaim. (Doc. No. 3). Vancrest filed an answer to Mullenhour‘s counterclaim on October 2, 2017. (Doc. No. 7).
{3} Mullenhour filed a motion for summary judgment on December 5, 2017. (Doc. No. 10). On December 26, 2017, Vancrest filed a memorandum in opposition to Mullenhour‘s motion for summary judgment and a motion for summary judgment as to its breach-of-contract claim. (Doc. No. 11). Mullenhour filed a memorandum in opposition to Vancrest‘s motion for summary judgment on December 28, 2017. (Doc. No. 13). Vancrest filed its response to Mullenhour‘s memorandum in opposition to its motion for summary judgment on January 16, 2018. (Doc. No. 14). That same day, the trial court denied Mullenhour‘s and Vancrest‘s motions for summary judgment. (Doc. No. 15).
{5} After a bench trial on October 4, 2018, the trial court dismissed Vancrest‘s second amended complaint under
{6} Vancrest filed its notice of appeal on November 2, 2018. (Doc. No. 45). It raises two assignments of error for our review, which we will address together.
Assignment of Error No. I
Trial Court Erred as a Matter of Law in its Application of Ohio Revised Code Section 1337.082(A) to the Determination of Whether Appellee Could Be Held Personally Liable.
Assignment of Error No. II
The Trial Court‘s Decision was Against the Manifest Weight of the Evidence When No Evidence was Presented to Rebut Appellant‘s Claims
{7} In its assignments of error, Vancrest argues that the trial court erred by dismissing its complaint against Mullenhour. Specifically, Vancrest argues that it presented unrebutted evidence that Mullenhour can be held personally liable for Hohlbein‘s debt by operation of
Standard of Review
{8} ”
{9} “Under
{10} A dismissal under
Analysis
{11} As an initial matter, Vancrest contends that the trial court committed reversible error because Mullenhour did “not present rebuttal evidence.” (Appellant‘s Brief at 7, citing Conti v. Spitzer Auto World Amherst Inc., 9th Dist. Lorain No. 07CA009121, 2008-Ohio-1320, ¶ 54 (Dickson, J., concurring)). Vancrest‘s assertion is erroneous for a number of reasons. Primarily, the alleged proposition of law to which Vancrest directs us appears in a concurring opinion (related to a case involving a jury trial), which discusses that appellate-court judge‘s opinion as to the criminal- and civil-manifest-weight standards of review. In that concurring opinion, that appellate-court judge cites to a more verbose concurring opinion (authored by the same appellate-court judge) explaining his disagreement with the Supreme Court of Ohio‘s recitation of the manifest-weight standard of review applied to civil cases in Ohio. See Huntington Natl. Bank v. Chappell, 183 Ohio App.3d 1, 2007-Ohio-4344, ¶¶ 17-75 (9th Dist.) (Dickson, J., concurring). Clearly, one appellate-court judge‘s opinion, appearing as a concurring opinion regarding the criminal- and civil-manifest-weight standards of review, does not rise to the level of an applicable statement of law.
{12} Moreover, it is illogical to even contend that─under the standard of review applied to motions to dismiss under
Breach of Contract
{13} We will begin by addressing Vancrest‘s argument that the trial court‘s dismissal of its breach-of-contract claim is in error and against the manifest weight of the evidence. “A cause of action for breach of contract requires the claimant to establish the existence of a contract, the failure without legal excuse of the other party to perform when performance is due, and damages or loss resulting from the breach.” Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453, 2018-Ohio-15, ¶ 41. However, “‘[a] contract is binding only upon parties to a contract and those in privity with them.‘” Gilchrist at ¶ 23, quoting DVCC, Inc. v. Med. College of Ohio, 10th Dist. Franklin No. 05AP-237, 2006-Ohio-945, ¶ 19, quoting Samadder v. DMF of Ohio, Inc., 154 Ohio App.3d 770, 2003-Ohio-5340, ¶ 25 (10th Dist.).
{14} On appeal, Vancrest does not dispute that Mullenhour did not execute the contract in her personal capacity; rather, it concedes that Mullenhour executed the contract in her representative capacity as attorney in fact for Hohlbein. (See Appellant‘s Brief at 8); (Appellant‘s Reply Brief at 2, 4). Compare Gilchrist at ¶ 18. Accordingly, because Mullenhour (in her personal capacity) was not a party to the contract, Vancrest acknowledges that its ability to recover from Mullenhour for Hohlbein‘s failure to pay is limited. Accord Huntington Natl. Bank v. A&J Plumbing, Inc., 11th Dist. Geauga No. 2011-G-3021, 2012-Ohio-526, ¶ 27. See Extendicare Health Servs., Inc. v. Dunkerton, 11th Dist. Portage No. 2015-P-0004, 2017-Ohio-427, ¶ 28. See also Gilchrist at ¶ 23. Nonetheless, Vancrest asserts that an avenue for recovery exists under
{15}
(B) An attorney in fact is not personally liable for a debt of the attorney in fact‘s principal, unless one or more of the following applies:
(1) The attorney in fact agrees to be personally responsible for the debt.
* * *
(3) The negligence of the attorney in fact gave rise to or resulted in the debt.
{16} As an initial matter, Mullenhour contends that Vancrest waived any argument relative to
{17} At best, Vancrest remotely mentioned the applicability of
{18} Nevertheless, we note that there may be an argument available concerning the applicability of state and federal regulations under the Nursing Home Reform Act.3 See, e.g., Classic Healthcare Sys., LLC v. Faun Miracle, 12th Dist. Warren No. CA2017-03-029, 2017-Ohio-8540, ¶ 33 (Powell, P.J., dissenting); Manor of Lake City, Inc. v. Hinners, 548 N.W.2d 573, 576 (Iowa 1996). See also Cook Willow Health Ctr. v. Andrien, 54 Conn. L. Rptr. 729, 2012 WL 5200369, *3 (Sept. 28, 2012) (noting that a nursing-facility agreement “unambiguously complies with” federal regulations when “‘it expressly prohibits personal liability on the part of the defendant for payments made to [a nursing facility] from [a resident‘s] account,’ and second, ‘the contract obligates the defendant to use [the resident‘s] assets for the payment of services‘“), quoting Sunrise Healthcare Corp. v. Azarigian, 76 Conn.App. 800, 808 (2003). See generally Manahawkin Convalescent v. O‘Neill, 217 N.J. 99, 116, 85 A.3d 947 (2014) (characterizing the Nursing Home Reform Act as “Congress‘s statutory scheme intended to protect nursing home residents and their families“), citing Omnibus Budget Reconciliation Act of 1987, Pub.L. No. 100203, § 4211, 101 Stat. 1330, 182-221 (1987). Indeed, “federal law has long barred nursing homes accepting either Medicaid or Medicare from compelling third party guarantees of resident payment, but permits such facilities to require individuals with legal access to the resident‘s assets to pay for the resident‘s care with such assets.” Manahawkin Convalescent at 116. See Inova Health Sys. Servs., Inc. v. Bainbridge, 81 Va. Cir. 39, 2010 WL 7765105, *4 (July
19, 2010) (“It is clear * * * that Congress did not want nursing homes to force others not in privity, such as a resident‘s family member, to assume personal financial responsibility for the care of the resident.“), citing H.R. Rep. No. 104-651 (1996).4
{19} In particular, one component of the federal-statutory scheme, provides that “[w]ith respect to admissions practices a nursing facility must * * * not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in the facility.”
Subparagraph (A)(ii) shall not be construed as preventing a facility from requiring an individual, who has legal access to a resident‘s income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident‘s income or resources for such care.
(Emphasis added.)
Somewhat more restrictively, the Code of Federal Regulations provides, in its relevant part, as follows:
(3) The facility must not request or require a third party guarantee of payment to the facility as a condition of admission or expedited admission, or continued stay in the facility. However, the facility may request and require a resident representative who has legal access to a resident‘s income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident‘s income or resources.
(Emphasis added.)
(C) A provider of a [nursing facility] shall not: * * *
(4) Require a third party to accept personal responsibility for paying the facility charges out of his or her own funds. However, the facility may require a representative who has legal access to an individual‘s income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the individual‘s income or resources if the individual‘s medicaid application is denied and if the individual‘s cost of care is not being paid by medicare or another third-party payor. A third-party guarantee is not the same as a third-party payor (i.e., an insurance company), and this provision does not preclude the facility from obtaining information about medicare and medicaid eligibility or the availability of private insurance. The prohibition against third-party guarantees applies to all individuals and prospective individuals in all certified [nursing facilities] regardless of payment source. This provision does not prohibit a third party from voluntarily making payment on behalf of an individual.
(Emphasis added.)
Fraudulent Misrepresentation
{20} Next, Vancrest argues that the trial court erred by dismissing its fraudulent-misrepresentation claim. In particular, Vancrest contends that the trial court‘s dismissal is against the manifest weight of the evidence because it presented undisputed evidence that Mullenhour fraudulently (intentionally) misrepresented her control over Hohlbein‘s resources. In other words, Vancrest contends that it was fraudulently induced to enter into the agreement based on Mullenhour‘s “represent[ation] that she had legal access and authority over all of the Resident‘s income, assets, and personal and real property.” (Appellant‘s Brief at 15).
{21} “Fraud in the inducement arises when a party is induced to enter into an agreement based on a misrepresentation.” Tesar Indus. Contrs., Inc. v. Republic Steel, 9th Dist. Lorain No. 16CA010957, 2018-Ohio-2089, ¶ 45, citing Terry v. Bishop Homes of Copley, Inc., 9th Dist. Summit No. 21244, 2003-Ohio-1468, ¶ 21. “The fraud relates not to the nature of the contract, but to the facts prompting its execution.” (Emphasis added.) Id., citing Terry at ¶ 21, citing Harper v. J.D. Byrider, 148 Ohio App.3d 122, 2002-Ohio-2657, ¶ 11 (9th Dist.).
{22} An action for fraud in the inducement requires proof of ““[1] a representation or, where there is a duty to disclose concealment of a fact, [2] which is material to the transaction at hand, [3] made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, [4] with the intent of misleading another into relying upon it, [5] justifiable reliance upon the representation or concealment, and [6] a resulting injury proximately caused by the reliance.‘“”10 Id., quoting Ponder v. Culp, 9th Dist. Summit No. 28184, 2017-Ohio-168, ¶ 11. See also Countrymark Coop., Inc. v. Smith, 124 Ohio App.3d 159, 171 (3d Dist.1997), citing Burr v. Stark Cty. Bd. of Commrs., 23 Ohio St.3d 69, 73 (1986).
{23} In this case, the trial court concluded that Vancrest “did not present any credible evidence that Mullenhour concealed or misrepresented any fact material to her mother‘s nursing home bill.” (Doc. No. 43). In our review, there is some competent, credible evidence in the record supporting the trial court‘s conclusion. Compare Geriatrics, Inc. v. McGee, Conn.Super.Ct. No. HHBCV155016441S, 2017 WL 715756, *9 (Jan. 11, 2017) (concluding that the nursing facility‘s fraudulent-misrepresentation claim was properly dismissed because “there [was] no evidence that [the attorney in fact] made any representations at all to the plaintiff prior to [his mother‘s] admission to [the nursing facility]“), overruled in part on other grounds, 332 Conn. 1, ___ A.3d ___ (2019). Specifically, Stacy Fairchild (“Fairchild“), a “registered social worker assistant” who “also help[s] with all the admissions and discharges” at Vancrest, testified that she met with Mullenhour on January 4, 2017 to effectuate the admission of Hohlbein. (Oct. 4, 2018 Tr. at 6, 12). Fairchild testified that Mullenhour asserted (by way of the agreement) that she had access to “her mother‘s funds.” (Id. at 15). Fairchild further testified on cross-examination that Mullenhour did not “make any misrepresentations about assets of her mother.” (Id. at 34). Likewise, Fairchild and Laura Brio (“Brio“), the accounts-receivable manager at Vancrest, testified that they never discussed Hohlbein‘s assets with Mullenhour. (Oct. 4, 2018 Tr. at 35-39, 43, 63).
{24} Nevertheless, Vancrest‘s argues that “[b]y executing the Agreement, [Mullenhour], by a positive statement, implied and affirmed knowledge concerning the nature and extent of [Hohlbein‘s] assets and her level of control over those assets” because
[p]aragraph C3 of the Agreement itself makes clear both an assertion of a fact (control over resources) and Vancrest‘s reliance:
Legal Authority to Access Resident‘s Funds. You have asserted that the Representative has legal access to and control over the Resident‘s income, assets, personal and real property, and resources, including but not limited to,
social security, pension or retirement funds, annuities, insurance, bank accounts, and mutual funds (collectively, “Resources“); and You understand that Vancrest is entering into this Agreement in reliance on that assertion. (Emphasis added.)
(Emphasis sic.) (Appellant‘s Reply Brief at 7, quoting Doc. No. 23, Ex. A).11 In support of its argument, Vancrest directs us to interrogatory responses of Mullenhour “demonstrat[ing] that [Mullenhour] asserted that she did not have control of her mother‘s finances, that she did not know who else had control of her mother‘s finances, and that she did not even know what assets her mother owned at the date of admission.” (Id., citing Oct. 4, 2018 Tr. at 71-80). (See also Plaintiff‘s Exs. 5, 6).
{25} However, contrary to Vancrest‘s argument, we are not convinced that this evidence reflects that Mullenhour fraudulently misrepresented anything regarding Hohlbein‘s “Resources“—that is, this evidence is not some competent, credible evidence that Mullenhour (1) knowingly (or with such utter disregard as to whether it is true or false that knowledge may be inferred) made any false representation or (2) made any false representation with the intent of misleading Vancrest into relying on it. Compare McGee, 2017 WL 715756, at *9 (concluding that the nursing facility failed to prove that “McGee knew at the time he completed the financial disclosure form that the information regarding his mother‘s financial condition was untrue“). Mullenhour testified on cross-examination that she had access to Hohlbein‘s “assets,” and that she agreed to pay Vancrest from her mother‘s “assets.” (Oct. 4, 2018 Tr. at 69). Although Mullenhour testified that she responded “no” to interrogatories asking whether she “controlled [her] mother‘s finances during her stay at Vancrest,” she clarified that her response meant that she had a “power of attorney for her, [she] did not control her finances.” (Id. at 71-72); (Plaintiff‘s Exs. 5, 6). (See also Oct. 4, 2018 Tr. at 73). She further testified that she answered the interrogatories truthfully. (Oct. 4, 2018 Tr. at 75).
{26} Moreover, Vancrest refutes its own argument with its assertion that Mullenhour “did not even know what assets her mother owned at the date of admission.” (Appellant‘s Reply Brief at 7, citing Oct. 4, 2018 Tr. at 78-79). Indeed, Mullenhour testified that she did not know what “Resources” her mother had at the time of her admission. (Oct. 4, 2018 Tr. at 78-79, 92). See McGee, 2017 WL 715756, at *9. In particular, she testified that she did not know that Hohlbein had an annuity at the time she was admitted to Vancrest. (Oct. 4, 2018 Tr. at 79). Therefore, we conclude that there is no evidence in the record that Mullenhour knowingly (or with such utter disregard as to whether it is true or false that knowledge may be inferred) made any false representation or that Mullenhour made any false representation with the intent of misleading Vancrest into relying on it. Accordingly, for these reasons, we conclude that the trial court did not err by dismissing Vancrest‘s fraudulent-misrepresentation claim.
Fraudulent Misappropriation
{27} Turning to Vancrest‘s fraudulent-misappropriation claim, we likewise conclude that the trial court did not err by dismissing it. Under its fraudulent-misappropriation claim, Vancrest argues that Mullenhour violated the Ohio Uniform Fraudulent Transfer Act (“UFTA“), codified under
{28} Ohio‘s UFTA “creates a right of action for a creditor to set aside a fraudulent transfer of assets to the extent necessary to satisfy the creditor‘s claim.” Kingston of Miamisburg LLC v. Jeffery, 2d Dist. Montgomery No. 28087, 2019-Ohio-
Ohio-1905, ¶ 17, citing UAP-Columbus JV326132 v. Young, 10th Dist. Franklin No. 09AP-646, 2010-Ohio-485, ¶ 25. See also
{¶29} “The Ohio [UFTA] provides various ways in which a creditor can prove that a debtor‘s transfer of property was fraudulent.” Id. at ¶ 17, quoting DiBlasio v. Sinclair, 7th Dist. Mahoning No. 08-MA-23, 2012-Ohio-5848, ¶ 34. The Ohio UFTA‘s “key operative provisions are
{¶30} Vancrest argues that it is entitled to recovery only under
(A) A transfer made or an obligation incurred by a debtor is fraudulent as to a creditor, whether the claim of the creditor arose before, or within a reasonable time not to exceed four years after, the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation in either of the following ways:
(1) With actual intent to hinder, delay, or defraud any creditor of the debtor.
“While the creditor seeking to set aside a transfer as fraudulent has the ultimate burden of proving, by clear and convincing evidence, the debtor‘s intent pursuant to
(B) In determining actual intent under division (A)(1) of this section, consideration may be given to all relevant factors,
including, but not limited to, the following: (1) Whether the transfer or obligation was to an insider;
(2) Whether the debtor retained possession or control of the property transferred after the transfer;
(3) Whether the transfer or obligation was disclosed or concealed;
(4) Whether before the transfer was made or the obligation was incurred, the debtor had been sued or threatened with suit;
(5) Whether the transfer was of substantially all of the assets of the debtor;
(6) Whether the debtor absconded;
(7) Whether the debtor removed or concealed assets;
(8) Whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
(9) Whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
(10) Whether the transfer occurred shortly before or shortly after a substantial debt was incurred;
(11) Whether the debtor transferred the essential assets of the business to a lienholder who transferred the assets to an insider of the debtor.
{¶31} Consideration of actual intent is not limited to the statutory factors; rather, actual intent is determined from the facts and circumstances of each case. Blood at ¶ 49, citing
{¶32} Contrary to Vancrest‘s contention that the trial court “made no specific reference to this cause of action, * * * other than to state that [Fairchild] had no knowledge of a misappropriation of funds,” Vancrest ignores the trial court‘s finding (based on the evidence presented by Vancrest) that Mullenhour “was not personally liable out of her own money to pay the bill.” (Appellant‘s Brief at 16-17); (Doc. No. 43). The trial court‘s finding that Mullenhour was not personally liable for Hohlbein‘s bill is supported by some, competent credible evidence. In other words, Vancrest did not present any evidence that Mullenhour is a debtor within the meaning of
{¶33} Here, Vancrest did not present any evidence that Mullenhour is liable on a claim—that is, Vancrest did not present any evidence that Mullenhour is personally liable for Hohlbein‘s nursing-facility bill. See Arrow Uniform Rental, L.P. v. Longazel, 8th Dist. Cuyahoga No. 91536, 2009-Ohio-868, ¶ 47
{¶34} Moreover, Vancrest did not present any evidence that Mullenhour caused Hohlbein‘s annuity to transfer; rather, the evidence is clear that the annuity transferred by operation of law to Mullenhour‘s father upon Hohlbein‘s death in accordance with the terms of the annuity as negotiated by the Hohlbeins. (Oct. 4, 2018 Tr. at 88-89). Indeed, Mullenhour testified that she did not speak with a representative from the company that managed the annuity until after Hohlbein‘s death, and her purpose for contacting the company at that time was to notify it that her mother had died. (Id. at 89). Here, the annuity did not transfer to Mullenhour until her father‘s death. (Id. at 88-89). In other words, there is no evidence of any intent (on the part of Mullenhour as the second transferee) that can be imputed to Hohlbein (the debtor). Compare Schempp v. Lucre Mgt. Group, LLC, 18 P.3d 762, 765 (Colo.App.2000) (concluding that “the intent of the transferee can be imputed to the debtor when the transferee is in a position to dominate or control the disposition of the debtor‘s property” for purposes of Colorado‘s UFTA); Mayne at 663-667 (discussing the transfers initiated by Mayne to herself as evidence “to raise a question of fact under
{¶35} Accordingly, based on the facts and circumstances presented by this case, there is no competent, credible evidence in the record that Mullenhour qualifies as a “debtor” for purposes of
Unjust Enrichment
{¶36} Finally, Vancrest argues that the trial court erred by dismissing its unjust-enrichment claim after concluding that it “did not prove that Mrs. Mullenhour was unjustly enriched.” (Doc. No. 43). Vancrest contends that the trial court improperly dismissed its unjust-enrichment claim because (1) its unjust-enrichment claim is an alternative claim to its breach-of-contract claim and (2) because it presented undisputed evidence that it “provided a significant benefit to [Mullenhour] by providing services for a loved member of her family.” (Appellant‘s Reply Brief at 9).
{¶37} “Unjust enrichment is an equitable doctrine based on a quasi-contract rather than contract law.” Smith Clinic v. Savage, 3d Dist. Marion No. 9-12-40, 2013-Ohio-748, ¶ 30, citing Homan, Inc. v. A1 AG Servs., L.L.C., 125 Ohio App.3d 51, 2008-Ohio-277, ¶ 21 (3d Dist.). See also Hummel v. Hummel, 133 Ohio St. 520, 525-528 (1938). “Unjust enrichment occurs under Ohio law ‘when a party retains money or benefits which in justice and equity belong to another.‘” Padula v. Wagner, 9th Dist. Summit No. 27509, 2015-Ohio-2374, ¶ 47, quoting Liberty Mut. Ins. Co. v. Indus. Commn. 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). To prevail on an unjust-enrichment claim, a plaintiff must prove: “(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 in which it would be unjust to do so without payment.” Savage at ¶ 30, quoting Warneck v. Chaney, 194 Ohio App.3d 459, 2011-Ohio-3007, ¶ 21 (3d Dist.), citing City Rentals, Inc. v. Kesler, 191 Ohio App.3d 474, 2010-Ohio-6264, ¶ 12 (3d Dist.), citing Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984).
{¶38} “Ohio law does not permit recovery under the theory of unjust enrichment when an express contract covers the same subject.” Padula at ¶ 48, citing Ullmann v. May, 147 Ohio St. 468 (1947), paragraph four of the syllabus, and Wochna v. Mancino, 9th Dist. Medina No. 07CA0059-M, 2008-Ohio-996, ¶ 18. See also Savage at ¶ 30 (“This Court has previously held that ‘the doctrine of unjust enrichment cannot apply when an express contract exists.‘“), quoting Nationwide Mutual Fire Insurance Co. v. Delacruz, 3d Dist. Hancock No. 5-10-17, 2010-Ohio-6068, ¶ 21, citing Bickham v. Standley, 183 Ohio App.3d 422, 2009-Ohio-3530, ¶ 14 (3d Dist.).
{¶39} In its second amended complaint, Vancrest alleged that it is entitled to recovery under the theory of unjust enrichment because it “provided healthcare services and support to Wanda Hohlbein“; that Mullenhour “knew and accepted
[i]t would be unjust and inequitable to allow [Mullenhour] to retain the benefit of the services provided to her mother, Wanda Hohlbein, and permit her to retain the remaining funds of Wanda Hohlbein without directing those funds to [Vancrest] for the remaining balance.
(Doc. No. 23). As an essential element of a claim for unjust enrichment, Vancrest was required to prove that it conferred a benefit upon Mullenhour. See Wadsworth Pointe Health Care Group, Inc. v. Baglia, 9th Dist. Medina No. 17CA0064-M, 2018-Ohio-1978, ¶ 22, citing Chaffee Chiropractic Clinic, Inc. v. Stiffler, 9th Dist. Wayne No. 16AP0033, 2017-Ohio-7790, ¶ 24. However, similar to the facts presented to our sister appellate district in Baglia, Vancrest‘s second amended complaint alleges only that Mullenhour obtained the benefit and value of nursing care services and support rendered to Hohlbein. Compare id. (“However, the complaint alleges only that Ms. Baglia obtained the benefit and value of nursing care and residence rendered to her mother.“). See also McGee, 2017 WL 715756, at *7 (addressing a nursing facility‘s unjust-enrichment claim and concluding that the nursing facility “failed to prove that it conferred any benefit directly upon [the resident‘s son]. Rather, the services for which [the nursing facility] seeks recovery are for benefits conferred directly upon” the resident). Here, Vancrest “did not allege any basis other than the admission agreement for holding [Mullenhour] personally liable for the benefit of services conferred, not on [Mullenhour], but on her mother.” Baglia at ¶ 22. See also Three-C Body Shops, Inc. v. Nationwide Mut. Fire Ins. Co., 10th Dist. Franklin No. 16AP-748, 2017-Ohio-1462, ¶ 27 (upholding the dismissal of an unjust-enrichment claim after concluding that “the connection between Three-C and Nationwide is too indirect to constitute a ‘benefit conferred’ for purposes of a common law claim of unjust enrichment“), citing Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, ¶ 20; Directory Servs. Group v. Staff Builders Intern., Inc., 8th Dist. Cuyahoga No. 78611, 2001 WL 792715, *2 (rejecting the plaintiff‘s unjust-enrichment claim based on an allegation of an indirect benefit conferred on the defendant).
{¶40} On appeal, although Vancrest contends that its unjust-enrichment claim is an alternative claim to its breach-of-contract claim, it nevertheless argues that it is entitled to recover from Mullenhour under the theory of unjust enrichment based on the provisions of the agreement. (See Appellant‘s Brief at 18). Vancrest‘s argument confuses the distinction between the existence of a contract and the ability to recover under a contract. Compare Baglia at ¶ 24 (noting that the nursing-facility‘s “argument appears to obscure the distinction between the existence of a contract and the ability to recover on a contract“). Importantly, as we previously addressed, there is no dispute that Mullenhour expressly declined personal liability for the charges and fees associated with the services provided to Hohlbein as a resident of Vancrest. See id. at ¶ 23. Even though there may be circumstances under which a party may be able to assert a claim for recovery under a theory of unjust enrichment where no valid agreement exists, “Ohio law does not permit [Vancrest] to maintain an equitable claim for unjust enrichment as a fail-safe in the event that it does not recover on its contract claim.” Id. at ¶ 24, citing Wochna at ¶ 18. Therefore, because Mullenhour‘s relationship with Vancrest is governed by an express agreement regarding the subject matter of the claim, Vancrest “may not invoke equity’ to circumvent the admission agreement
{¶41} In sum, we note that Vancrest had a remedy for the outstanding balance on Hohlbein‘s account; however, it chose not to pursue that remedy. See Budd, 2003 PA Super. 323, 832 A.2d 1066, at ¶ 21 (noting that the nursing-facility‘s claim was an issue to be “raised in Orphan‘s Court during an accounting of Mother‘s estate“). However, for the reasons discussed in this opinion, Vancrest is without the remedy it wants to have and now seeks. See Meadowbrook Ctr., Inc. v. Buchman, 149 Conn.App. 177, 222, 90 A.3d 219 (2014) (Schaller, J., concurring) (noting that the nursing facility “was not without a remedy for the defendant‘s breach but, instead, is simply without the remedy it wants to have and now seeks“).
{¶42} Therefore, we conclude that the trial court did not err by dismissing Vancrest‘s complaint and its assignments of error are overruled.
{¶43} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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