from Allen County Common Pleas Court Trial Court No. CV 2017
M. Baker for Appellant
Zachary D. Maisch for Appellee
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
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).
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).
On March 30, 2018, Vancrest filed a second amended complaint
alleging causes of action for breach of contract, promissory
estoppel, unjust enrichment, fraudulent misappropriation, and
fraudulent misrepresentation. (Doc. No. 23). On April 4,
2018, Mullenhour filed her answer to Vancrest's second
amended complaint. (Doc. No. 24).
After a bench trial on October 4, 2018, the trial court
dismissed Vancrest's second amended complaint under
Civ.R. 41(B)(2). (Doc. No. 43).
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.
of Error No. I
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.
of Error No. II
Trial Court's Decision was Against the Manifest Weight of
the Evidence When No Evidence was Presented to Rebut
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 R.C. 1337.092 based on a
breach of the Consent to Treat and Admission Agreement (the
"agreement"). In the alternative, Vancrest argues
that it presented unrebutted evidence that Mullenhour can be
held personally liable for Hohlbein's debt under theories
of fraudulent misrepresentation, fraudulent misappropriation,
or unjust enrichment.
"Civil Rule 41(B)(2) permits a defendant in a nonjury
action to move for dismissal of the action after the close of
the plaintiffs case." Mohn v. Ashland Cty. Chief
Med. Examiner, 5th Dist. Ashland No. 14-COA-031,
2015-Ohio-1985, ¶ 28. "Dismissals under Civil Rule
41(B)(2) are similar in nature to a directed verdict in jury
actions; however, because a Civil Rule 41(B)(2) dismissal is
used in nonjury actions, it requires the trial court and
reviewing courts to apply different tests."
Id., citing Cent. Motors Corp. v. Pepper
Pike, 63 Ohio App.2d 34, 48 (8th Dist.1979).
"Under Civ.R. 41(B)(2), a trial court may consider
'both the law and the facts.'" Mueller v.
All-Temp Refrig., Inc., 3d Dist. Van Wert No. 15-13-08,
2014-Ohio-2718, ¶ 39, quoting Ohio Valley Associated
Bldrs. & Constrs. v. Rapier Elec., Inc.,
12th Dist. Butler Nos. CA2013-07-110 and CA2013-07-121,
2014-Ohio-1477, ¶ 23. "Therefore, under the rule,
the trial judge as the trier of fact does not view the
evidence in a light most favorable to plaintiff, but instead
actually determines whether the plaintiff has proven the
necessary facts by the appropriate evidentiary
standard." Mohn at ¶ 28, citing L.W.
Shoemaker, M.D., Inc. v. Connor, 81 Ohio App.3d 748, 752
(10th Dist.1992) and Harris v. Cincinnati, 79 Ohio
App.3d 163, 168 (1st Dist.1992). See also Mueller at
¶ 40 (noting that the trial court does not review
"'the evidence in the light most favorable to the
plaintiff but is required only to determine whether the
plaintiff has made out his case by a preponderance of the
evidence.'"), quoting Jacobs v. Bd. of Cty.
Commrs. of Auglaize Cty., 27 Ohio App.2d 63, 65 (3d
Dist.1971). "Even if the plaintiff has presented a prima
facie case, dismissal is still appropriate where the trial
court determines that the necessary quantum of proof makes it
clear that plaintiff will not prevail." Mohn at
¶ 28, citing Fenley v. Athens Cty. Genealogical
Chapter, 4th Dist. Athens No. 97CA36, 1998 WL 295496, *3
(May 29, 1998). See also Mueller at ¶ 39
("'"The premise behind the rule is if the court
in a bench trial disbelieves the plaintiff's facts or
disagrees with the plaintiff's urged application of the
law, then there is no reason to hear the defendant's
case."'"), quoting Ohio Valley Associated
Bldrs. at ¶ 22, quoting Martin v. Lake Mohawk
Property Owner's Assn., 7th Dist. Carroll No. 04 CA
815, 2005-Ohio-7062, ¶ 19.
A dismissal under Civ.R. 41(B)(2) will be reversed on appeal
only if it is erroneous as a matter of law or against the
manifest weight of the evidence. Mueller at ¶
40, citing Jacobs at 65; Mohn at ¶ 29,
citing Ogan v. Ogan, 122 Ohio App.3d 580, 583 (12th
Dist.1997). Under the manifest-weight standard, this court
neither weighs the evidence nor judges the credibility of
witnesses; rather, our role is to determine whether the trial
court's judgment is supported by some competent, credible
evidence. Mohn at ¶ 29, citing C.E. Morris
Co. v. Foley Constr., 54 Ohio St2d 279 (1978), syllabus;
Univ. of Findlay v. Martin, 3d Dist. Hancock No.
5-17-02, 2017-Ohio-7016, ¶ 10 ("Judgments supported
by some competent, credible evidence will not be reversed on
appeal as being against the manifest weight of the
evidence."), citing Phillimore v. Butterbaugh,
5th Dist. Richland No. 14CA32, 2014-Ohio-4641, ¶ 25.
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.
Moreover, it is illogical to even contend that-under the
standard of review applied to motions to dismiss under Civ.R.
41(B)(2)-a dismissed action is reversible because the defense
did not present rebuttal evidence. In other words, the
purpose of Civ.R. 41(B)(2) is to preserve judicial economy by
permitting a trial court to assess whether the plaintiff has
established the elements of its case under the appropriate
quantum of evidence before moving forward with the trial.
Accordingly, the focus of an appellate court's review of
a trial court's dismissal of an action under Civ.R.
41(B)(2) assesses the trial court's analysis of the
plaintiffs case. That is, we review whether the trial
court's conclusion that the plaintiff
failed to establish the appropriate quantum of proof
for each element of its case is supported by some competent,
credible evidence or whether the trial court erroneously
applied the law. Therefore, applying the appropriate
standard-of-review, we will address Vancrest's argument
that the trial court erred by dismissing its complaint.
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 v. Saxon Mtge.
Servs., 10th Dist. Franklin No. 12AP-556, 2013-Ohio-949,
¶ 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.).
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 R.C. 1337.092.
R.C. 1337.092 provides, in its relevant part, that "the
attorney in fact is not personally liable on the contract,
unless the contract otherwise specifies." R.C.
1337.092(A). The statute also sets forth exceptions to that
general rule and provides, in its relevant part, as follows:
(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.
1337.092(B)(1), (3). In this case, Vancrest contends that
Mullenhour could be held personally liable for Hohlbein's
debt (1) because "the [contract] specifically provided
for personal liability" or (2) because Mullenhour's
negligence gave rise to or resulted in the debt.
As an initial matter, Mullenhour contends that Vancrest
waived any argument relative to R.C. 1337.092 for purposes of
appeal because it did not raise the applicability of the
statute in its second amended complaint or in its
case-in-chief. "An appellant cannot change the theory of
his case and present new arguments for the first time on
appeal." Gilchrist at ¶ 22, citing
Havely v. Franklin Cty., 10th Dist. Franklin No.
07AP-1077, 2008-Ohio-4889, ¶ 53, fn. 3 and Brewer v.
Brewer, 10th Dist. Franklin No. 09AP-146,
2010-Ohio-1319, ¶ 23. See also Dunkerton at
¶ 31 ("Due process requires notice and an
opportunity to be heard at a meaningful time and in
sufficient time to permit a party to defend the allegations
against him."), citing Bd. of Trustees of Columbia
Twp. v. Albertson, 9th Dist. Lorain No. 01 CA007785,
2001 WL 1240135, *5 (Oct. 17, 2001), citing State v.
Hochhausler,76 Ohio St.3d 455, 459 (1996), and citing
W. Chester Twp. Bd. of Trustees v. Speedway Superamerica,
L.L.C, 12th Dist. Butler No CA2006-05-104,
2007-Ohio-2844, ¶ 43. "Generally, ...