Vancrest Mgmt. Corp. v. Mullenhour

Decision Date22 July 2019
Docket NumberNO. 1-18-59,1-18-59
Parties VANCREST MANAGEMENT CORP., Plaintiff-Appellant, v. Lisa MULLENHOUR, Defendant-Appellee.
CourtOhio Court of Appeals

140 N.E.3d 1051
2019 Ohio 2958

VANCREST MANAGEMENT CORP., Plaintiff-Appellant,
v.
Lisa MULLENHOUR, Defendant-Appellee.

NO. 1-18-59

Court of Appeals of Ohio, Third District, Allen County.

Date of Decision: July 22, 2019


Aaron M. Baker for Appellant

Zachary D. Maisch for Appellee

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).

140 N.E.3d 1056

{¶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 plaintiff's case." Mohn v. Ashland Cty. Chief Med. Examiner , 5th Dist. Ashland, 2015-Ohio-1985, 34 N.E.3d 137, ¶ 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, 409 N.E.2d 258 (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, 2014 WL 2859170, ¶ 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, 2014 WL 1384605, ¶ 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, 612 N.E.2d 369 (10th Dist.1992) and Harris v. Cincinnati , 79 Ohio App.3d 163, 168, 607 N.E.2d 15 (1st Dist.1992). See also Mueller at ¶ 40 (noting that the trial

140 N.E.3d 1057

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, 272 N.E.2d 635 (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, 2005 WL 3610352, ¶ 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, 272 N.E.2d 635 ; Mohn at ¶ 29, citing Ogan v. Ogan , 122 Ohio App.3d 580, 583, 702 N.E.2d 472 (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, 376 N.E.2d 578 (1978), syllabus; Univ. of Findlay v. Martin , 3d Dist. Hancock, 2017-Ohio-7016, 95 N.E.3d 715, ¶ 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, 2014 WL 5336507, ¶ 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, 2008 WL 754759, ¶ 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, 915 N.E.2d 665, ¶ 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

140 N.E.3d 1058

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....

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