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Vancrest Management Corp. v. Mullenhour

Court of Appeals of Ohio, Third District, Allen

July 22, 2019

VANCREST MANAGEMENT CORP., PLAINTIFF-APPELLANT,
v.
LISA MULLENHOUR, DEFENDANT-APPELLEE.

          Appeal from Allen County Common Pleas Court Trial Court No. CV 2017 0475

          Aaron M. Baker for Appellant

          Zachary D. Maisch for Appellee

          OPINION

          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).

         {¶4} 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).

         {¶5} 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).[1]

         {¶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 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.[2]

         Standard of Review

         {¶8} "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).

         {¶9} "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.

         {¶10} 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.

         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 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.

         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 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.).

         {¶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 R.C. 1337.092.

         {¶15} 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.

         R.C. 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.

         {¶16} 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, ΒΆ 43. "Generally, ...


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