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Forbes v. Showmann, Inc.

Court of Appeals of Ohio, First District, Hamilton

June 14, 2019

AMANDA FORBES, Plaintiff-Appellant,
v.
SHOWMANN, INC., d.b.a. THE WOODHOUSE DAY SPA, Defendant-Appellee.

          Civil Appeal From: Hamilton County Municipal Court TRIAL NO. 17CV-20441

          Gary F Franke Co., L.P.A., and Gary F Franke, for Plaintiff-Appellant

          Reminger Co., L.P.A., Chad E. Willits and Adair M. Smith, for Defendant-Appellee.

          OPINION

          MOCK, PRESIDING JUDGE.

         {¶1} Plaintiff-appellant Amanda Forbes appeals the trial court's judgment granting summary judgment in favor of defendant-appellee Showmann, Inc., d.b.a. The Woodhouse Day Spa ("Showmann") on Forbes's claims of breach of contract, conversion and a violation of R.C. 4113.15. Because we find that there is a genuine issue of material fact with respect to Forbes's conversion claim, we reverse the trial court's grant of summary judgment on that claim, but affirm the trial court's judgment in all other respects.

         Relevant Facts and Background

         {¶2} Forbes was hired as a nail technician by Showmann in 2011. On January 28, 2017, Forbes attended a work-related holiday party where Showmann distributed raffle tickets for employees to place in various containers in order to win certain prizes. It is undisputed that Forbes did not pay for her raffle ticket. One of the raffle prizes offered was a cruise package that included a $2000 Carnival Cruise gift card, a $500 Southwest Airlines gift card and a $200 Uber gift card ("the cruise package"). Only employees who had worked for Showmann for at least two years were eligible to enter the raffle for the cruise package. Forbes entered the raffle, and Chris Wood, the owner of Showmann, announced at the party that Forbes had won the cruise package. Forbes stated in her affidavit that she requested her prize the day after the raffle but she did not receive it. Showmann terminated Forbes's employment a few weeks after the holiday party. Wood testified in his deposition that Forbes was not given the cruise package because that specific raffle prize was conditioned on the recipient being an employee at the time the cruise was taken. Forbes testified in her affidavit that she was not told that the prize was conditioned upon being an employee at the time the trip was to be taken until after she was terminated.

         {¶3} Forbes sued Showmann for breach of contract, conversion and a violation of R.C. 4113.15, alleging that the cruise package she had won had been wrongfully withheld from her. Showmann moved for summary judgment on all of Forbes's claims, which the trial court granted.

         {¶4} Forbes now appeals that judgment, arguing in a single assignment of error that the trial court erred by granting summary judgment in favor of Showmann.

         {¶5} Our review of the trial court's decision to grant summary judgment is de novo. See Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162, 703 N.E.2d 841 (4th Dist.1997). Civ.R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that (1) there is no genuine issue of material fact, (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 party against whom the motion for summary judgment is made. See State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 375 N.E.2d 46 (1978).

         Breach of Contract

         {¶6} A contract consists of an offer, an acceptance, and consideration. See Tersigni v. Gen. Tire, Inc., 91 Ohio App.3d 757, 760, 633 N.E.2d 1140 (9th Dist.1993).

Without consideration, there can be no contract. Under Ohio law, consideration consists of either a benefit to the promisor or a detriment to the promisee. To constitute consideration, the benefit or detriment must be "bargained for." Something is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.

         (Citations omitted.) Carlisle v. T & R Excavating, Inc.,123 Ohio App.3d 277, 704 N.E.2d 39 (9th Dist.1997). Whether there is consideration supporting a contract is a question of law. Irving Leasing Corp. v. M & H Tire Co., ...


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