Sabino v. Liberty Health Care Ctr. , 2019 Ohio 1302 ( 2019 )

[Cite as Sabino v. Liberty Health Care Ctr., 2019-Ohio-1302.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
ANTHONY SABINO, P.O.A. FOR : OPINION
HELEN ERWIN,
:
Plaintiff-Appellee, CASE NO. 2018-T-0059
:
- vs -
:
LIBERTY HEALTH CARE CENTER,
:
Defendant-Appellant.
Civil Appeal from the Girard Municipal Court, Case No. 2017 CVF 00709.
Judgment: Affirmed in part and reversed in part; remanded.
Anthony Sabino, pro se, 1427 Hamilton Street, S.W., Warren, OH 44485 (Plaintiff-
Appellee).
Thomas F. Hull, II, and Karly B. Johnson, Manchester Newman & Bennett, 201 East
Commerce Street, Atrium Level 2, Youngstown, OH 44503 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellee is Anthony Sabino (“Sabino”), who filed a small claims complaint
against appellant, Liberty Health Care Center (“Liberty”). He designated the plaintiff as
“Anthony Sabino, P.O.A. for Helen Erwin.” Liberty filed a counterclaim against Sabino on
an outstanding account for nursing home services provided to Helen Erwin, Sabino’s
mother. Liberty appeals a judgment in the Girard Municipal Court, that disposed of both
the claim and counterclaim. We reverse the trial court’s decision disposing of the
counterclaim.
{¶2} The facts of the matter, as set out by Liberty in its answer to the complaint,
counterclaim, and a subsequently filed motion for summary judgment, have not been
disputed. They are as follows:
{¶3} On July 6, 2016, Liberty and Sabino, as attorney-in-fact for his mother Helen
Erwin, entered into an agreement for nursing home care and services for Ms. Erwin
provided by Liberty. Thereafter, a dispute as to payment for services arose between the
parties.
{¶4} On July 26, 2017, Sabino filed a small claims complaint in the Girard
Municipal Court, Small Claims Division. The complaint, in its entirety, stated: “Did
unlawfuly detain my mother for a dispute with Medicaid, causing her to be denied threat
from being transferd. And demaning money they never put a request for.” (Sic
throughout.) The complaint requested judgment in the amount of $6,000.00. A trial was
set for September 7, 2017.
{¶5} Liberty filed motions for leave to plead and for a continuance on August 31,
2017, which were both granted by the trial court. Thereafter, Liberty filed its answer
instanter to the complaint on November 3, 2017, stating, as a defense, that Sabino did
not have standing to bring the suit as attorney-in-fact on behalf of his mother. Liberty also
brought a counterclaim against Sabino, alleging Helen Erwin owed Liberty on an
outstanding account for nursing home care services for which Sabino was responsible to
pay. Judgment was requested against Helen Erwin, by and through Sabino as her “Power
of Attorney,” in the amount of $13,731.14. Liberty attached as an Exhibit to the pleading
an account statement for Helen Erwin dated August 17, 2017, with a balance due of
$13,731.14 as of August 1, 2017.
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{¶6} On March 7, 2018, a pretrial was held in the matter. Sabino failed to appear,
and the trial court gave Liberty 30-45 days to file dispositive motions.
{¶7} On April 19, 2018, Liberty filed its motion for summary judgment with regard
to both Sabino’s claim and its counterclaim. Liberty argued that (1) the trial court should
grant summary judgment in favor of Liberty on Sabino’s claim, as he did not have standing
to bring an action on behalf of Helen Erwin in his capacity as attorney-in-fact; and (2) the
trial court should grant summary judgment in favor of Liberty on its counterclaim for
payment on an account balance for services rendered to Helen Erwin. Liberty
accompanied its motion for summary judgment with (a) an affidavit of Liberty
administrator Annalee E. Hutchinson; (b) Financial Terms sheets for Helen Erwin,
executed by Sabino as the “responsible party”; and (c) an account statement for Helen
Erwin containing a balance due of $14,139.00 as of January 1, 2018, despite the
counterclaim and previously submitted exhibit statement containing an amount due of
$13,731.14. The Financial Terms sheets indicated that the “resident” will be responsible
for medical costs of $161.00 per day and private room costs of $270.00 per day, totaling
$431.00 per day. The difference between the accounting statement attached to the
counterclaim and the accounting statement attached to the motion for summary judgment
is $407.86.
{¶8} On June 1, 2018, the trial court granted summary judgment in favor of
Liberty on Sabino’s claim, stating, “[Sabino] has brought the claim as a supposed Power
of Attorney for a third party. He did not appear for the pre-trial hearing scheduled for
March 9, 2018 and has never submitted any document suggesting that he is actually
Power of Attorney on behalf of his mother. The Plaintiff, therefore has no standing to
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bring an action on behalf of the third party, and his claim is dismissed.” Sabino has not
appealed that judgment.
{¶9} In addition, the trial court denied summary judgment with regard to Liberty’s
counterclaim. Further, the trial court dismissed Liberty’s counterclaim against Sabino
after determining there was no evidence that Sabino had “control of the assets of the
resident” through his relationship as attorney-in-fact. The trial court stated:
The Defendant’s Motion for Summary Judgment is denied as to the
Defendant’s counterclaim against the Plaintiff. Further, the Defendant has
produced no evidence showing that the Plaintiff has control over any assets
owned by the resident. This is an essential element of the Defendant’s
counterclaim as to which it has the burden of proof. The counterclaim
against the Plaintiff is found to be without merit and is hereby dismissed.
{¶10} Liberty filed a timely notice of appeal and raises two assignments of error
for our review.
{¶11} Liberty’s first assignment of error states:
{¶12} “The trial court erred in sua sponte granting summary judgment to plaintiff-
appellee on defendant-appellant’s counterclaims [sic].”
{¶13} The Ohio Rules of Civil Procedure authorize a court to dismiss an action on
its own motion. Civ.R. 4(E) and 41(B)(1). Nevertheless, such a dismissal may be entered
only after the affected party is given notice of the court’s intention. Perotti v. Ferguson, 7
Ohio St.3d 1, 2-3 (1983) (dismissal under Civ.R. 41(B)(1)). Subsequently, in Ohio
Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101 (1986), the Ohio Supreme Court
concluded that “the notice requirement of Civ.R. 41(B)(1) applies to all dismissals with
prejudice[.]” (Emphasis in original.) The reasoning for this conclusion is that “[a] dismissal
on the merits is a harsh remedy that calls for the due process guarantee of prior notice.”
Id. Summary judgment on a claim under Civ.R. 56 also cannot be entered without notice.
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{¶14} With respect to Liberty’s counterclaim, the language of the judgment entry
makes it unclear whether the trial court dismissed the counterclaim or granted judgment
in favor of Sabino on the merits. The trial court first addressed the “control of the assets”
element necessary for Liberty to bring its counterclaim and then determined there was no
evidence presented that Sabino had “control of the assets of the resident” through his
relationship as attorney-in-fact. In either instance, dismissal or judgment “on the merits”
without notice, was improper.
{¶15} The only consequence of the determination that Liberty did not present
enough evidence to satisfy Civ.R. 56 should have been denial of Liberty’s motion for
summary judgment. If the moving party does not establish it is entitled to judgment, the
motion should simply be denied, and the claim should move forward.
{¶16} Instead, the trial court impermissibly either granted judgment sua sponte in
favor of Sabino or dismissed the matter on the merits without notice. Sabino had not
responded to the motion for summary judgment nor had he moved the court to dismiss
or enter judgment on the counterclaim.
{¶17} Any determination on the merits of Liberty’s counterclaim without notice was
error. Liberty’s first assignment of error has merit.
{¶18} Liberty’s second assignment of error states:
{¶19} “The trial court erred in denying defendant-appellant’s motion for summary
judgment on defendant-appellant’s counterclaims [sic].”
{¶20} “Summary judgment is a procedural device intended to terminate litigation
and to avoid trial when there is nothing to try.” Frano v. Red Robin Internatl., Inc., 181
Ohio App.3d 13, 2009-Ohio-685, ¶12 (11th Dist.), citing Murphy v. Reynoldsburg, 65 Ohio
St.3d 356, 358 (1992). Summary judgment is proper when (1) no genuine issue of
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material fact remains to be litigated; (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 only one conclusion, and that conclusion is adverse to the
nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing
Civ.R. 56(C).
{¶21} The party seeking summary judgment bears the initial burden of informing
the trial court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio
St.3d 280, 292 (1996). The moving party must point to some evidence of the type listed
in Civ.R. 56(C) (e.g., depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact) that affirmatively
demonstrates there is no genuine issue of material fact. Id. at 292-293.
{¶22} If this initial burden is not met, the motion for summary judgment must be
denied. Id. at 293. If the moving party has satisfied its initial burden, however, the
nonmoving party then has a reciprocal burden, as outlined in Civ.R. 56(E), to set forth
specific facts showing there is a genuine issue for trial. Id. If the nonmovant does not so
respond, summary judgment, if appropriate, shall be entered against it. Id.
{¶23} On appeal, we review a trial court’s entry of summary judgment de novo,
i.e., “independently and without deference to the trial court’s determination.” Brown v.
Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 711 (4th Dist.1993) (citation omitted);
see also Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
{¶24} “In an action on account, the account must show four things: (1) the
defendant’s name, (2) a beginning balance, (3) an itemized list of credits and debits, and
(4) a means of determining an amount alleged to be owed.” Hiram College v. Courtad,
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162 Ohio App.3d 642, 2005-Ohio-4331, ¶7 (11th Dist.), citing Raymond Builders Supply,
Inc. v. Slapnicker, 11th Dist., Ashtabula No. 2003-A-0040, 2004-Ohio-1437, ¶8. “The law
in Ohio is clear that in the absence of a contractual relationship between two parties, an
action on an account cannot be maintained by one against the other.” Laurelwood Hosp.
v. Lorenzo, 11th Dist. Lake No. 93-L-063, 1993 WL 548530 (Dec. 17, 1993) (citation
omitted). “An action on an account does not alleviate the plaintiff’s burden of showing
that the defendant was bound to pay the amounts listed on the account.” Hiram College,
supra, at ¶8.
{¶25} Liberty contends it provided sufficient evidentiary material in support of its
counterclaim and, therefore, the trial court should have entered summary judgment in its
favor. We agree that Liberty provided evidence establishing some amount of money was
due. However, Liberty did not meet its ultimate burden on summary judgment of
demonstrating no genuine issue existed as to the amount owed or that Sabino had control
over sufficient assets of Helen Erwin’s from which to satisfy the debt.
{¶26} Liberty introduced signed writings indicating that Sabino, as representative
of Helen Erwin, agreed to pay Liberty for nursing home services provided to his mother.
On appeal, Liberty appears to agree that it is limited in what it can recover from Sabino
to those assets of Helen Erwin’s that were in his control. However, it did not produce
evidentiary material that established that amount.
{¶27} In addition, the statement attached to the counterclaim and the statement
attached to the motion for summary judgment both fail to state a beginning balance and
fail to give an itemized list of credits and debits, two elements needed to establish an
account.
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{¶28} Further, the statement Liberty attached to its motion for summary judgment
contained a different balance due than the statement attached to the counterclaim. These
conflicting totals differ by an amount not consistent with the monthly charges listed in the
Financial Terms sheets signed by Sabino. Therefore, this also brings into question
whether a means of determining an amount owed exists, which is the fourth element that
must be proven for an account claim.
{¶29} Accordingly, when viewing the evidence most strongly in favor of the non-
moving party, the elements of an account claim have not been established as a matter of
law, and reasonable minds could have a genuine dispute of material fact as to the amount
owed under the contractual arrangement between Liberty and Sabino. Therefore, Liberty
failed to meet the burden required for granting summary judgment in its favor.
{¶30} Liberty’s second assignment of error is without merit.
{¶31} The judgment of the Girard Municipal Court, denying summary judgment in
favor of Liberty on its counterclaim is affirmed. The judgment disposing of Liberty’s
counterclaim is reversed, and the cause is remanded for proceedings consistent with this
court’s opinion.
MATT LYNCH, J.,
MARY JANE TRAPP, J.,
concur.
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