Daily Servs., L.L.C. v. Ohio Bur. of Workers' Comp.

[Cite as Daily Servs., L.L.C. v. Ohio Bur. of Workers' Comp., 2013-Ohio-5716.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Daily Services, LLC, :
Plaintiff-Appellant, : No. 13AP-509
(C.P.C. No. 11CV-15913)
v. :
(REGULAR CALENDAR)
Ohio Bureau of Workers' Compensation, :
Defendant-Appellee. :
D E C I S I O N
Rendered on December 24, 2013
Law Office of W. Evan Price II, LLC, and W. Evan Price, II,
for appellant.
Porter, Wright, Morris & Arthur LLP, James A. King,
David S. Bloomfield, Jr., and Caitlin E. Chamberlin, for
appellee.
APPEAL from the Franklin County Court of Common Pleas
O'GRADY, J.
{¶ 1} Plaintiff-appellant, Daily Services, LLC ("Daily"), appeals from a judgment
of the Franklin County Court of Common Pleas granting defendant-appellee, Ohio Bureau
of Workers' Compensation ("BWC"), summary judgment on Daily's claim for unjust
enrichment. For the following reasons, we affirm the trial court's judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} BWC is responsible for the collection, administration, and enforcement of
the payment of workers' compensation premiums to the state insurance fund by
employers. Daily provides temporary staffing services to businesses located in central
Ohio. I-Force, LLC ("I-Force") formerly provided these same services, and both Daily and
I-Force were owned by Ryan Mason.
No. 13AP-509 2
{¶ 3} In March 2009, I-Force's workers' compensation policy became delinquent.
For I-Force's policy, the BWC certified two debt transactions for collection by the Ohio
Attorney General. The attorney general's office designated two collection accounts for the
I-Force debtaccount #7982177 and #7886021. The attorney general's office recorded
liens in the county recorder's office against I-Force in April 2009 (for account #7886021)
and June 2009 (for account #7982177). BWC also filed judgment liens against I-Force for
these accounts on May 20, and June 25, 2009, in the Franklin County Court of Common
Pleas ("common pleas court").
{¶ 4} According to the affidavit of Barbara Ingram, the BWC's director of
accounting, on May 22, 2009, BWC updated its system to reflect its determination that
Daily was a successor to I-Force effective March 23, 2009. Thus, BWC combined I-
Force's workers' compensation policy into Daily's policy. The result of this combination
was BWC determined Daily was liable for all debt on I-Force's BWC policy. In May and
June 2009, BWC sent invoices to Daily assigning all delinquent premiums owed on the I-
Force policy to Daily's policy. The invoices indicated Daily was responsible for the
premiums as I-Force's successor. Daily protested this determination on June 15, 2009.
{¶ 5} On September 1, 2009, BWC filed an action in common pleas court assigned
case No. 09CVH-13229 against Mason, Daily, I-Force, and another staffing agency owned
by Mason. Also in September 2009, in connection with its combination of the I-Force
policy into Daily's policy, BWC cancelled the two I-Force collection accounts by reducing
the balance on these accounts to $0 and transferring the old balances to a new account
certified for collection against Daily, account #8184884. According to Ingram, because
the I-Force collection account balances were $0, on September 25, 2009, BWC
"automatically issued releases of the I-Force liens with both the Franklin County Court of
Common Pleas and the Franklin County Recorder's Office." (R. 117, exhibit B, Ingram
affidavit, at ¶ 12.)
{¶ 6} Two of these releases were journal entries filed in the common pleas court
on October 13, 2009, one entry for each I-Force collection account. The entries state BWC
finds its judgment liens are "no longer to be considered in effect against the real and
personal property of the above mentioned defendant," i.e., I-Force. (Ingram affidavit,
exhibit B-1.) BWC instructed the clerk of courts, "upon the payment of the court costs to
No. 13AP-509 3
enter satisfaction and discharge of the judgment of record." (Exhibit B-1.) Then, on
November 6, 2009, BWC filed a judgment lien in another common pleas court case
against Daily for over $54 million for collection in account #8184884.
{¶ 7} On March 31, 2010, in Franklin C.P. No. 09CVH-13229, the common pleas
court issued an agreed preliminary injunction pursuant to Civ.R. 65. Paragraph 6 of the
injunction states: "The Mason Companies shall make monthly payments in the amount of
$35,000.00 toward past due premiums or claim costs owed beginning May 1, 2010." (R.
5, exhibit No. 6, at ¶ 6.) The defendants also agreed to refrain from other activities, such
as transferring assets among themselves. BWC agreed to "not seek to execute on existing
liens it has against the Mason Companies as long as the payments referenced in
paragraph 6, that arose from the liens, are being made on a timely basis." (Exhibit No. 6,
at ¶ 11.)
{¶ 8} On July 13, 2010, BWC filed another judgment lien against Daily in the
common pleas court for over $3 million. On October 4, 2010, the common pleas court
vacated that judgment lien. Then, on February 8, 2011, the common pleas court vacated
the $54 million judgment lien against Daily. On February 18, 2011, BWC filed another
judgment lien against Daily for over $3 million. The parties engaged in additional
proceedings regarding this lien and an Assessment Decision Judgment made by BWC.
See Ohio Bur. of Workers' Comp. v. Daily Servs., L.L.C., 10th Dist. No. 11AP-1122, 2012-
Ohio-4242.
{¶ 9} In March 2011, BWC voluntarily dismissed Franklin C.P. No. 09CVH-13229
under Civ.R. 41(A)(1)(a). The defendants, including Daily, filed a motion under that case
number for a return of $385,000, which they paid to BWC under the terms of the agreed
injunction. On August 16, 2011, the common pleas court denied the motion. The court
found it lacked jurisdiction to order return of the payments due to BWC's voluntary
dismissal. Additionally, the court found the defendants were not entitled to the return of
funds under the terms of the injunction. The court determined the injunction was "akin
to a contract," and the defendants, including Daily, had "unequivocally agreed to pay
$35,000 per month during the pendency of this case and that the payments were for
premiums and claim costs owed and that the agreement between the parties contains no
provision for the return of the money." (R. 113, exhibit No. 15, at 3, 4.)
No. 13AP-509 4
{¶ 10} On December 21, 2011, Daily filed the present case against BWC in Franklin
C.P. No. 11CV-15913. Daily alleged a claim of unjust enrichment and sought a declaratory
judgment. In its unjust enrichment claim, Daily alleged BWC's retention of the $385,000
in payments was without legal justification. Daily later filed a notice of voluntarily
dismissal without prejudice of the declaratory judgment count. BWC submitted an
answer and counterclaims.
{¶ 11} BWC filed a motion for summary judgment on Daily's unjust enrichment
claim, and Daily filed a motion for summary judgment on its claim of unjust enrichment
and BWC's counterclaims. In BWC's memorandum contra to Daily's motion for summary
judgment and in BWC's reply to Daily's memorandum contra to BWC's motion for
summary judgment, BWC specifically argued the doctrine of unjust enrichment could not
apply because the payments at issue were made pursuant to a valid contractthe agreed
injunction. In Daily's reply memorandum in support of its motion for summary
judgment, Daily specifically addressed BWC's contentions by arguing the agreed
injunction was not a contract for purposes of Daily's unjust enrichment claim.
{¶ 12} On May 15, 2013, the common pleas court granted BWC's motion for
summary judgment on Daily's unjust enrichment claim and dismissed the complaint.
The common pleas court rejected BWC's contention that the decision in Franklin C.P. No.
09CVH-13229 denying Daily's motion for return of the $385,000 in payments was
dispositive of the issues in this case because of collateral estoppel or res judicata.
Additionally, the common pleas court determined Daily's unjust enrichment claim lacked
merit. The common pleas court found the agreed injunction was "akin to a contract." (R.
130, at 7.) Under that agreement, Daily "expressly agreed to make monthly payments in
the amount of $35,000 toward past due premiums or claim costs." (R. 130, at 7.) The
agreement contained no provision for the return of the money and, because Daily made
the payments pursuant to the agreement, the court found Daily could not seek their
return by alleging unjust enrichment. The court also granted Daily's motion for summary
judgment in part, dismissing BWC's counterclaims. The court denied Daily's motion as to
the unjust enrichment claim.
No. 13AP-509 5
II. ASSIGNMENTS OF ERROR
{¶ 13} Daily appeals and presents this court with two assignments of error for our
review:
FIRST ASSIGNMENT OF ERROR: The Trial Court erred
when it sua sponte granted summary judgment to Appellee
Ohio Bureau of Workers' Compensation on Appellant Daily
Services, LLC's unjust enrichment claim on a ground that was
not argued in Appellee's Motion for Summary Judgment
without notifying Appellant of the alternate ground under
consideration and providing Appellant with an opportunity to
provide evidence and argument in response.
SECOND ASSIGNMENT OF ERROR: The Trial Court erred
when it granted summary judgment to Appellee Ohio Bureau
of Workers' Compensation and denied Appellant Daily
Services, LLC's Motion for Summary Judgment on Appellant's
unjust enrichment claim because the I-Force Satisfaction
discharged I-Force's liability for unpaid premiums and claim
costs so Appellee does not have any basis to retain the
injunction payments intended to be applied "toward past due
premiums and claim costs."
III. DISCUSSION
A. First Assignment of Error
{¶ 14} Under its first assignment of error, Daily contends the trial court erred
when it "sua sponte" granted summary judgment to BWC on a ground not argued in
BWC's motion for summary judgment. Specifically, Daily claims BWC never argued Daily
could not recover the payments at issue under the doctrine of unjust enrichment because
the payments were made pursuant to a contract, i.e., the agreed injunction. Daily
complains the court denied it the opportunity to provide evidence and argument on that
issue.
{¶ 15} "A party seeking summary judgment must specifically delineate the basis
upon which summary judgment is sought in order to allow the opposing party a
meaningful opportunity to respond." Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988),
syllabus. Therefore, it generally constitutes reversible error to award summary judgment
on grounds not raised in a summary judgment motion or related summary judgment
memoranda. See State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty., 121 Ohio
St.3d 507, 2009-Ohio-1523, ¶ 26-27.
No. 13AP-509 6
{¶ 16} Admittedly, BWC did not explicitly argue in its motion for summary
judgment that Daily's unjust enrichment must fail because the agreed injunction
constituted a contract. However, BWC did make this argument in other summary
judgment memoranda, and Daily addressed the issue in its reply memorandum in
support of its motion for summary judgment. Therefore, contrary to Daily's contention,
the trial court did grant BWC summary judgment on grounds argued by BWC, and Daily
did have a meaningful opportunity to respond to BWC's argument. To the extent Daily
challenges the merits of the court's summary judgment decision, we address that issue
under the second assignment of error. Accordingly, we overrule Daily's first assignment
of error.
B. Second Assignment of Error
{¶ 17} Under its second assignment of error, Daily contends the trial court erred
when it granted summary judgment in favor of BWC on the unjust enrichment claim and
denied Daily summary judgment on that claim.
{¶ 18} Appellate review of summary judgment is de novo, which necessitates an
independent review of the record without deference to the trial court's decision. New
Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, ¶ 24; Miller
v. J.B. Hunt Transport, Inc., 10th Dist. No. 13AP-162, 2013-Ohio-3892, ¶ 20. Under
Civ.R. 56(C), summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." "Accordingly, summary judgment is appropriate only under
the following circumstances: (1) no genuine issue of 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
but one conclusion, that conclusion being adverse to the nonmoving party." Brown v.
Ohio Dept. of Rehab & Corr., 10th Dist. No. 12AP-891, 2013-Ohio-4207, ¶ 20, citing
Stevens v. Ohio Dept. of Mental Health, 10th Dist. No. 12AP-1015, 2013-Ohio-3014, ¶ 11,
citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
No. 13AP-509 7
{¶ 19} Unjust enrichment occurs when a person or entity retains money or benefits
that in justice and equity belong to another. Johnson v. Microsoft Corp., 106 Ohio St.3d
278, 2005-Ohio-4985, ¶ 20, quoting Hummel v. Hummel, 133 Ohio St. 520, 528 (1938).
The three requirements of an unjust enrichment claim are " '(1) the plaintiff conferred a
benefit on the defendant, (2) the defendant knew of the benefit, and (3) it would be unjust
to permit the defendant to retain the benefit without payment.' " Garb-Ko, Inc. v.
Benderson, 10th Dist. No. 12AP-430, 2013-Ohio-1249, ¶ 25, quoting Meyer v. Chieffo, 193
Ohio App.3d 51, 2011-Ohio-1670, ¶ 37 (10th Dist.). However, the doctrine of unjust
enrichment "does not apply when a contract actually exists; it is an equitable remedy
applicable only when the court finds there is no contract." Corbin v. Dailey, 10th Dist.
No. 08AP-802, 2009-Ohio-881, ¶ 10, citing Hummel at 525-28.
{¶ 20} Here, Daily asserts it was entitled to summary judgment and BWC was not
because the "I-Force Satisfaction," i.e., one of the entries BWC filed in the common pleas
court on October 13, 2009,1 "Discharged I-Force's Liability For Unpaid Premiums and
Claim Costs So The BWC Does Not Have Any Basis To Retain The Injunction Payments."
(Appellant's brief, at 37.) The assigned error does not explicitly challenge the trial court's
finding that the agreed injunction constituted a contract. Nonetheless, Daily does argue
under its first assignment of error that the I-Force Satisfaction "should have fatally
undermined the trial court's conclusion that the Agreed Injunction constituted a valid
contract that would have justified the BWC's retention of $385,000 in payments 'towards
unpaid premiums and claim costs' supposedly owed by I-Force." (Appellant's brief, at 36-
37.) So, despite the confusing nature of Daily's arguments, we will interpret its second
assignment of error as a claim that the October 2009 entry precludes the agreed
injunction from being a contract.
{¶ 21} It is " 'well-settled that "[a]n agreed judgment entry is a contract that is
reduced to judgment by a court." ' " Padgett v. Padgett, 10th Dist. No. 08AP-269, 2008-
Ohio-6815, ¶ 28, quoting Nunnari v. Paul, 6th Dist. No. L-06-1281, 2007-Ohio-5591, ¶ 16,
quoting Sovak v. Spivey, 155 Ohio App.3d 479, 2003-Ohio-6717, ¶ 25 (7th Dist.).
Nonetheless, Daily argues the October 2009 entry BWC filed eliminated any debt I-Force
owed BWC. Daily argues BWC could, therefore, not collect the discharged debts from I-
1 See Franklin C. P. No. 09JG-26920.
No. 13AP-509 8
Force or from Daily. Daily suggests the October 2009 entry somehow precludes the
agreed injunction from being a contract but cites to no legal authority in support of its
position. Instead, Daily argues "[t]he principal that a party cannot enforce or otherwise
resurrect an obligation reduced to a judgment after a satisfaction has been filed is so
axiomatic that no Ohio statutes or cases even address the issue apart from noting that
fraudulently filed satisfactions of judgment are void and can be set aside." (Emphasis sic.)
(Appellant's brief, at 39.)
{¶ 22} Daily's claim lacks merit. According to Ingram's affidavit, BWC determined
Daily was liable for I-Force's debt by May 22, 2009. BWC sent invoices to Daily for I-
Force's debt in May and June 2009. Daily received these invoices (i.e., Daily had to
receive the invoices to protest them). In addition, in September 2009, BWC transferred
the balances of the I-Force collection accounts into an account certified for collection
against Daily. Thus, BWC determined Daily was liable for I-Force's debt before BWC filed
the October 2009 entry. Even if the entry discharged any liability I-Force had to BWC,
the entry says nothing about Daily and does not purport to discharge any responsibility
Daily had to pay I-Force's unpaid premiums. Thus, we fail to see how the entry precluded
Daily and BWC from entering into a valid contract, i.e., the agreed injunction.
{¶ 23} Because Daily made the payments at issue pursuant to a contract, i.e., the
agreed injunction, it cannot recover them under the doctrine of unjust enrichment. No
genuine issue of material fact exists, and the trial court correctly determined, viewing the
evidence most strongly in Daily's favor, that BWC was entitled to judgment as a matter of
law on the unjust enrichment claim. Accordingly, we overrule Daily's second assignment
of error.
IV. CONCLUSION
{¶ 24} Having overruled Daily's two assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and DORRIAN, JJ., concur.