Vancrest Mgt. Corp. v. Mullenhour ( 2019 )

[Cite as Vancrest Mgt. Corp. v. Mullenhour, 2019-Ohio-2958.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
VANCREST MANAGEMENT CORP.,
PLAINTIFF-APPELLANT, CASE NO. 1-18-59
v.
LISA MULLENHOUR, OPINION
DEFENDANT-APPELLEE.
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 for Appellee
Case No. 1-18-59
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
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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
1
Mullenhour voluntarily dismissed her counterclaim prior to the start of trial. (Doc. No. 43); (Oct. 4, 2018
Tr. at 4).
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{¶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 plaintiff’s 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
2
Vancrest does not challenge the trial court’s decision as to its promissory-estoppel cause of action. See
Gilchrist v. Sax Mtge. Servs., 10th Dist. Franklin No. 12AP-556, 2013-Ohio-949, ¶ 13.
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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.
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{¶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
St.2d 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
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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 plaintiff’s
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
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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
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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.
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{¶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, ¶ 43. “Generally, appellate courts will not consider arguments
that were never presented to the trial court whose judgment is sought to be
reversed.” Gilchrist at ¶ 22, citing Brewer at ¶ 23, citing State ex rel. Quarto Mining
Co. v. Foreman, 79 Ohio St. 3d 78, 81 (1997).
{¶17} At best, Vancrest remotely mentioned the applicability of R.C.
1337.092—namely, the negligence exception—at trial in its response to
Mullenhour’s response to its opposition to Mullenhour’s motion to dismiss. (See
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Oct. 4, 2018 Tr. at 109). However, Vancrest did not allege the applicability of the
statute in its second amended complaint or in its case-in-chief. See Gilchrist at ¶
21; Dunkerton at ¶ 31. Indeed, in its opening statement, Vancrest stated that its
theory of the case was that Mullenhour is personally liable for Hohlbein’s debt based
on a breach of contract or, in the alternative, Vancrest theorized that she can be held
personally liable under theories of “promissory estoppel, fraudulent
misrepresentation, and fraudulent misappropriations [sic], and potentially some
unjust enrichment.” (Oct. 4, 2018 Tr. at 3-4). In other words, the record reflects
that Mullenhour did not have any meaningful opportunity to respond to any
argument regarding the applicability of R.C. 1337.092. See Dunkerton at ¶ 31.
Moreover, based on the omission of an argument concerning the applicability of
R.C. 1337.092 in Vancrest’s second amended complaint and its case-in-chief, the
trial court was not afforded an opportunity to address or to fully consider the
statute’s applicability. See Dunkerton at ¶ 31. Based on these facts, and the
precedent of our sister appellate districts, Vancrest waived any argument concerning
the applicability of R.C. 1337.092 for purposes of appeal. See Gilchrist at ¶ 22;
Dunkerton at ¶ 31.
{¶18} Nevertheless, we note that there may be an argument available
concerning the applicability of state and federal regulations under the Nursing Home
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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 (Iowa1996). 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
3
Based on the information contained within the record, we are presuming that the Federal Nursing Home
Act applies to Vancrest.
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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.” 42 U.S.C.
1396r(c)(5)(A)(ii). However,
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.) 42 U.S.C. 1396r(c)(5)(B)(ii).5 6 See Manahawkin Convalescent
at 116 (suggesting that the regulation distinguishes “between a nursing home
resident’s assets in the control of a third party, which may be pursued by the facility,
and that third party’s personal funds, which are beyond the facility’s reach”).
4
See Pearson, The Responsible Thing to Do About “Responsible Party” Provisions in Nursing Home
Agreements: A Proposal for Change on Three Fronts, 37 U. Mich. J.L. Reform 757, 777-778 (2004)
(discussing the application of traditional-agency theory to third-party liability provisions of nursing-facility
agreements); Heiby Oil Co. v. Pence, 3d Dist. Auglaize No. 2-99-02, 1999 WL 378370, *2 (June 3, 1999)
(discussing traditional agency law).
5
“Similar language appears in [42 U.S.C. 1395i-3(c)(5)(A)(ii) and (B)(ii)], which govern skilled nursing
facilities that accept Medicare.” Manahawkin Convalescent v. O’Neill, 217 N.J. 99, 116, 85 A.3d 947 (2014).
6
See, e.g., Va. Code Ann. 32.1-138.3 (defining a resident’s “income or resources” as “any amount deemed
to be income or resources of the resident for purposes of Medicaid eligibility and any resources transferred
by the resident to a third party if the transfer disqualifies the resident from Medicaid coverage for nursing
facility services”).
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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.) 42 C.F.R. 483.15(a)(3).7 Finally, Ohio’s regulation provides, in
its relevant part, as follows:
(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.
7
“42 C.F.R. 483.15(A)(3) * * * was amended in October 2016 to prohibit facilities from requesting a third-
party guarantee of payment.” (Emphasis added.) Montefiore Home v. O’Donnell, 8th Dist. Cuyahoga No.
107074, 2018-Ohio-5238, ¶ 6.
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(Emphasis added.) Ohio Adm.Code 5160-3-02(C)(4).8 9
However, because we
conclude that Vancrest waived any argument concerning the applicability of R.C.
1337.092, we are constricted by the notions of due process from addressing the
applicability of the Federal Nursing Home Reform Act and corresponding Ohio
regulations to the facts of this case.
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
presented evidence 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).
8
“‘Resources’ means cash, funds held within a financial institution, investments, personal property, and real
property an individual and/or the individual’s spouse has an ownership interest in, has the legal ability to
access in order to convert to cash, and is not legally prohibited from using for support and maintenance.”
Ohio Adm.Code 5160:1-1-01.
9
See Pearson, 37 U. Mich. J.L. Reform at 782-783 (suggesting that the “roles” of third-party signers can be
susceptible to “alternative, inconsistent meanings” and that roles identified, for instance, as “attorney in fact”;
“responsible party”; “representative”; “guarantor;” or “sponsor” are not mutually exclusive). See also
Meadowbrook Center, Inc. v. Buchman, 149 Conn.App. 177, 201-203, 90 A.3d 219 (2014) (addressing the
nuances of third-party identifiers in admission agreements); Manahawkin Convalescent, 217 N.J. at 120
(concluding that the “cause of action was not defined in sufficient detail * * * and was not properly pled”
because it was unclear whether the nursing home was asserting its claim against O’Neill in her fiduciary
capacity or against her individually).
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{¶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).
10
The elements of fraudulent misrepresentation are identical to the elements of fraud in the inducement.
Compare Funk v. Durant, 155 Ohio App. 3d 221, 2003-Ohio-5591, ¶ 20 with Countrymark Coop., Inc. v.
Smith, 124 Ohio App. 3d 159, 171 (3d Dist.1997).
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{¶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).
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{¶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).
11
Although we are expressing no opinion as to the propriety of this provision of the agreement, we again
note that there may be a cognizable argument pertaining to the provision under the Nursing Home Reform
Act.
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{¶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,
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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 R.C. Chapter 1336,
when “the annuity was effectively transferred by an operation of law to
[Mullenhour] despite the existence of a known creditor.” (Appellant’s Brief at 17).
{¶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-
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Case No. 1-18-59
Ohio-1905, ¶ 17, citing UAP-Columbus JV326132 v. Young, 10th Dist. Franklin No.
09AP-646, 2010-Ohio-485, ¶ 25. See also R.C. 1336.07. Under Ohio’s UFTA,
“‘fraud is imputed to the debtor when the statutory elements have been met.’”
Jeffery at ¶ 17, quoting In re Youngstown Osteopathic Hosp. Assn., 280 B.R. 400,
408 (Bankr.N.D.Ohio 2002), citing Comer v. Calim, 128 Ohio App. 3d 599, 606 (1st
Dist.1998).
{¶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 R.C. 1336.04 and R.C. 1336.05.”
Id. “[I]rrespective of when the debt arose, a creditor may prove that the contested
asset transfer met the R.C. 1336.04(A) elements, and, thus, was a fraudulent transfer
as defined by this provision.” Id., citing E. Savs. Bank v. Bucci, 7th Dist. Mahoning
No. 08 MA 28, 2008-Ohio-6363, ¶ 93 and In re Youngstown Osteopathic Hosp.
Assn. at 408-409. “As to a debt that existed when the debtor made the contested
asset transfer, a creditor may prove that the transfer met the R.C. 1336.05(A)
elements, and, thus, was a fraudulent transfer as statutorily defined.” Id., citing
Bucci at ¶ 93.
{¶30} Vancrest argues that it is entitled to recovery only under R.C. 1336.04,
which sets forth a provision for actual fraud as well as a provision for constructive
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Case No. 1-18-59
fraud. However, because it is the only provision under which Vancrest asserts that
it is entitled to recovery, we will address only whether it presented the sufficient
quantum of evidence of actual fraud under R.C. 1336.04(A)(1).
R.C. 1336.04(A)(1) provides as follows:
(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 R.C. 1336.04(A)(1), Ohio has recognized that proof of actual intent will often be
impossible to procure.” Blood v. Nofzinger, 162 Ohio App. 3d 545, 2005-Ohio-
3859, ¶ 36 (6th Dist.), citing Wagner v. Galipo, 97 Ohio App. 3d 302, 309 (8th
Dist.1994), citing Stein v. Brown, 18 Ohio St. 3d 305, 308 (1985). See also
Aristocrat Lakewood Nursing Home v. Mayne, 133 Ohio App. 3d 651, 673 (8th
Dist.1999), fn. 23. “Thus, direct evidence of fraudulent intent is not essential.”
Blood at ¶ 36, citing Galipo at 309. “A creditor may still establish a debtor’s actual
fraudulent intent if the circumstances demonstrate ‘badges of fraud.’” Id. The
traditional “badges of fraud,” which accompany actual fraudulent intent are
statutorily defined:
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(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.
R.C. 1336.04(B).
{¶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.
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Blood at ¶ 49, citing R.C. 1336.04(B), Mayne at 665, and Sanderson Farms, Inc. v.
Gasbarro, 10th Dist. Franklin No. 01AP-461, 2004-Ohio-1460, ¶ 41. “If the party
alleging fraud is able to demonstrate a sufficient number of ‘badges,’ an inference
of actual fraud arises and the burden then shifts to the defendant to prove that the
transfer was not fraudulent.” Id., citing Baker & Sons Equip. Co. v. GSO Equip.
Leasing, Inc., 87 Ohio App. 3d 644, 650 (10th Dist.1993), Mayne at 662, and Abood
v. Nemer, 128 Ohio App. 3d 151 (9th Dist.1998).
{¶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 R.C. Chapter 1336. Compare McGee, 332 Conn. at 17
(clarifying “that the CUFTA claim in this appeal does not allege that the
defendant/agent is personally liable on the claim (i.e., the debt for [his mother’s]
nursing home services) and hence legally is the debtor”). Ohio’s UFTA defines
“debtor” as “a person who is liable on a claim.” R.C. 1336.01(F). The Ohio UFTA
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Case No. 1-18-59
defines “claim” as “a right to payment, whether or not the right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured.” R.C. 1336.01(C).
{¶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 (concluding
“that none of the defendants in this case were a ‘debtor’ of Arrow”); McGee, 332
Conn. at 17. Rather, it presented evidence that Mullenhour declined to be personally
liable for Hohlbein’s debt. (See Doc. No. 23, Ex. A); (Oct. 4, 2018 Tr. at 25-26,
69). (See also Oct. 4, 2018 Tr. at 47). Indeed, Fairchild testified that Hohlbein,
who was competent at the time, executed the agreement in her individual capacity,
and (as we previously addressed) Mullenhour executed the agreement as Hohlbein’s
“Representative” in her capacity as Hohlbein’s attorney in fact. (Oct. 4, 2018 Tr. at
32-33, 36-37). See Presbyterian Med. Ctr. v. Budd, 2003 PA Super. 323, 832 A.2d
1066, ¶ 17, 19. Therefore, based on the evidence presented by Vancrest,
Hohlbein—not Mullenhour—is the debtor of Vancrest within the meaning of R.C.
Chapter 1336.12 See McGee, 332 Conn. at 18, 23. See also Arrow at ¶ 47-48; Budd
at ¶ 21.
12
Hohlbein—the debtor—is not a party to this case. Accordingly, we need not address whether the law of
agency applies. See Geriatrics Inc. v. McGee, 332 Conn. 1, 4-5, 17-18, 23, ___ A.3d ___ (2019).
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Case No. 1-18-59
{¶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 R.C. 1336.04(A)(1) concerning the existence of actual intent
to hinder, delay, or defraud the nursing home as a future creditor in the case at bar”).
See McGee, 332 Conn. at 23. Likewise, Fairchild testified that she did not have any
knowledge whether Mullenhour misappropriated any of Hohlbein’s assets. (Id. at
34).
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Case No. 1-18-59
{¶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 R.C. Chapter 1336. See McGee, 332 Conn.
at 17, 23; Woodard v. Funderburk, 846 So. 2d 363, 366 (Ala. App.2002) (concluding
that “the transferor/attorney-in-fact * * * was not [the] ‘debtor’ within the meaning
of the Alabama [UFTA]”); Hutchison v. Trilogy Health Servs., LLC, 2 N.E.3d 802,
807 (Ind.App.2014) (noting that “the facts of this case stand in contrast to a situation
in which a son or daughter possessed a power of attorney over the parent’s financial
affairs, or where that adult child misappropriated his or her parent’s bank account
funds rather than pay the nursing home facility”), citing Sunrise Healthcare Corp.
v. Azarigian, 76 Conn.App. 800, 821 A.2d 835, 837 (2003). See also Budd at ¶ 21;
Folmar & Assocs. LLP v. Holberg, 776 So. 2d 112, 117, (Ala.2000) (concluding that
“Holberg’s claims are missing one essential element for a cause of action pursuant
to the Alabama [UFTA]: The transfer of property by the debtor.”), overruled on
other grounds, White Sands Group, L.L.C. v. PRS II, LLC, 32 So. 3d 5 (Ala.2009);
Methodist Manor Health Center, Inc. v. Py, 307 Wis. 2d 501, 515, 746 N.W.2d 824
(2008) (rejecting an argument to extend Wisconsin’s UFTA to create liability of an
attorney in fact who is not a debtor within the meaning of the statute). For these
reasons, we conclude that the trial court did not err by dismissing Vancrest’s
fraudulent-misappropriation claim.
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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
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Case No. 1-18-59
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 the
benefit of the services and support of [sic] provided to her mother”; and that
[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.
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Case No. 1-18-59
(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’
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Case No. 1-18-59
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.
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Case No. 1-18-59
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 declaring the financial
obligations and responsibilities of [Mullenhour].” Id., citing Padula at ¶ 50. See
also Savage, 2013-Ohio-748, at ¶ 30. Accordingly, the trial court did not err by
dismissing Vancrest’s unjust-enrichment claim.
{¶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.
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{¶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.
/jlr
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