Preview
IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
BUILT-RITE BOX & CRATE, INC., CASENO. 12-CV-0407
i
Plaintiff, JUDGE WIEST
vs. '
'
'
MAVERICK INNOVATIVE ! MAVERICK INNOVATIVE
SOLUTIONS, LLC, 1 SOLUTIONS, LLC’S MOTION FOR
| SUMMARY JUDGMENT
Defendant. '
Now comes Defendant Maverick Innovative Solutions, LLC, by and through counsel,
and, pursuant to Rule 56 of the Ohio Rules of Civil Procedure, hereby moves this Court for an
Order granting it summary judgment as there are no issues of fact in dispute and Defendant is
entitled to summary judgment as a matter of law. The reasons supporting said Motion are set
forth in the Memorandum in Support attached hereto and made a part hereof.
Respectfully submitted,
‘aul L. Jackson (0040198)
pjackson@ralaw.com
Karen D. Adinolfi (0073693)
kadinolfi@ralaw.com
Roetzel & Andress, LPA
222 South Main Street
Akron, OH 44308
Telephone: 330.376.2700
Facsimile: 330.376.4577
Attorneys for Defendant MAVERICK
INNOVATIVE SOLUTIONS, LLCMEMORANDUM IN SUPPORT
I. FACTUAL BACKGROUND
On November 14, 2011, Tim Seggerson, who was at the time acting as a purchasing
agent for Maverick Stainless Fabrication, LLC contacted Plaintiff to order certain crates for
utilization by Maverick Stainless Fabrication, LLC. (Seggerson Affidavit, attached hereto as
Exhibit A). Mr. Seggerson was very clear in that telephone conversation that he was placing that
order on behalf of Maverick Stainless Fabrication, LLC. Jd. Later that same day, Mr. Seggerson
followed the telephone call up with a Purchase Order sent to Plaintiff. Jd.
That Purchase Order provided that the crates were to be shipped to Maverick Stainless
Fabrication, LLC and the bill for those crates was to be sent to Maverick Stainless Fabrication,
LLC. (Seggerson Affidavit, Exhibit A-1). At no time did Mr. Seggerson every make any
representation or statement that the goods were to be shipped to Maverick Innovative Solutions,
LLC, which is a separate entity and was operated in a completely separate facility from 2008
onward. (Id.; Jackson Affidavit, attached hereto as Exhibit B).
The crates were shipped to Maverick Stainless Fabrication, LLC and Maverick Stainless
Fabrication, LLC used those crates in its operations. (Jackson Affidavit; Exhibit B). In late
December of 2011, Huntington Bank, which held a lien as to all of Maverick Stainless
Fabrication, LLC’s property, executed upon that lien and required all of Maverick Stainless
Fabrication, LLC’s assets to be sold. Jd. Those assets were sold and there were not sufficient
funds from that sale to even pay Huntington in full, let alone Plaintiff. Jd. Plaintiff was
informed of the fact of the sale and the lack of assets by a letter sent in January of 2012. Jd. For
that reason, Plaintiff was not paid for the crates.
Notwithstanding those facts, Plaintiff has now commenced this action against Maverick
Innovative Solutions, LLC, a completely separate entity from Maverick Stainless Fabrication,
2LLC. Jd. Plaintiff has alleged that Maverick Innovative Solutions, LLC breached a contract
with Plaintiff and that Maverick Innovative Solutions, LLC has been unjustly enriched in this
situation. (Plaintiff's Complaint, {J 25-31; 32-36, respectively). For the reasons stated herein,
both of those claims fail as a matter of law given the undisputed facts of this case. Defendant
Maverick Innovative Solutions, LLC is therefore now entitled to summary judgment.
Il. LAW AND DISCUSSION
A. Introduction.
Ohio Rule of Civil Procedure 56(C) provides that “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
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Civ.R. 56(C). The moving party, here Maverick Innovative Solutions,
LLC, has the initial burden of pointing evidence of the type listed in Rule 56(C) which firmly
demonstrates that the non-moving party, here Plaintiff, lacks evidence to support its claims.
Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293.
Once Maverick Innovative Solutions, LLC has carried that burden, Rule 56(E) sets out
the obligations of the adverse party, here Plaintiff. That Rule provides:
an adverse party may not rest upon the mere allegations or denials
of his pleadings, but his response, by affidavit or as otherwise
provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the party does not so respond,
summary judgment, if appropriate, shall be entered against the
party.
Civ.R. 56(E). Unsupported allegations and pleadings do not suffice to allow a court to deny
summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66. The
adverse party must move beyond the pleadings.In the instant case, the undisputed evidence shows that no genuine issue of material fact
exists as to any of Plaintiffs claims. Therefore, Defendant Maverick Innovative Solutions, LLC
is now entitled to judgment as a matter of law.
B. Plaintiff's Claim of a Breach of Contract Fails as a Matter of Law.
In Count I of Plaintiff's Complaint, Plaintiff alleges that Plaintiff and Maverick
Innovative Solutions, LLC entered into some sort of contract relative to the purchase of the
crates and that Maverick Innovative Solutions, LLC has breached that contract. (Plaintiff's
Complaint, §{] 26 and 28). Nothing could be further from the truth.
As has been established by the evidence, the Purchase Order that was sent to Plaintiff
stated that the goods were to be delivered to Maverick Steel Fabrication, LLC. (Seggerson
Affidavit, Exhibit A). That Purchase Order also provided that the invoice was to be provided to,
and payment would therefore be made by, Maverick Steel Fabrication, LLC. Jd. Finally, the
crates were shipped to Maverick Steel Fabrication, LLC. It strains reason, therefore, for Plaintiff|
to make any sort of arguments that there was a contract between it and Maverick Innovative
Solutions, LLC relative to those crates.
The Ohio Supreme Court has held that the “[e]ssential elements of a contract include an
offer, acceptance, contractual capacity, and consideration (the bargain for legal benefit and/or
detriment), a manifestation of mutual assent and legality of object and of consideration.”
Kostelnik v. Helper (2002), 96 Ohio St. 3d at Paragraph 16. Additionally, the Ohio Supreme
Court held that a “meeting of the minds to the essential terms of the contract is a requirement to
enforcing the contract.” Id., citing Episcopal Retirement Homes, Inc. v. Ohio Department of|
Industrial Relations (1991), 61 Ohio St. 3d 366.
In the instant case, the Purchase Order that was sent on behalf of Maverick Stainless
Fabrication, LLC was for crates to be delivered to Maverick Stainless Fabrication, LLC.
4Payment for those crates was to be made by Maverick Stainless Fabrication, LLC. There was
nothing conditional or in doubt about that submission.
Plaintiff argues that the Purchase Order was actually faxed from Maverick Innovative
Solutions, LLC. This argument is a red herring. If Plaintiff had any doubt about who the goods
were being purchased by or to be delivered to (and from who that it could expect payment),
Plaintiff should have sought clarification. It did not. There was therefore no meeting of the
minds relative to any obligation by Maverick Innovative Solutions, LLC to make payment
relative to the crates that were delivered to Maverick Stainless Fabrication, LLC.
Under Ohio law, acceptance of an offer may be expressed by “word, sign, writing or act.”
Nilavar v. Osborn (1998), 127 Ohio App. 3d 1, 12. The offer that was made in this case came
from Maverick Stainless Fabrication, LLC. When Plaintiff shipped the crates to Maverick
Stainless Fabrication, LLC with the understanding that Maverick Stainless Fabrication, LLC was
going to be billed for those crates, it accepted that offer. That was in fact a contract in this
matter, but that contract did not involve Maverick Innovative Solutions, LLC in any way.
Therefore, Plaintiff's claim of breach of contract fails as a matter of law.
Cc. Plaintiff's Claim of Unjust Enrichment Fails As a Matter of Law.
In Count II of Plaintiff's Complaint, Plaintiff claims that Maverick Innovative Solutions,
LLC has been unjustly enriched and, therefore, is somehow liable to Plaintiff. (Plaintiffs
Complaint, {{ 33, 35). This claim, too, fails upon examination.
Plaintiffs claim first fails as there can be no recovery under an unjust enrichment theory
if there is an express contract between the parties. Hughes v. Oberholtzer (1954), 162 Ohio St.
330; Giles v. Hanning (2002) 2002 WL 1173512 (copy attached hereto as Exhibit C). Given that
Plaintiff has alleged that there was an express contract between Plaintiff and MaverickInnovative Solutions, LLC (which, as established above, is simply not true), this independent
reason negates Plaintiff's claim for unjust enrichment.
The undisputed evidence in this case is that the crates were shipped to Maverick Stainless
Fabrication, LLC and not Maverick Innovative Solutions, LLC. Moreover, Maverick Innovative
Solutions, LLC did not receive any benefit since the crates were sent to Maverick Stainless
Fabrication, LLC and utilized by Maverick Stainless Fabrication, LLC. (Jackson Affidavit, Ex.
B). Plaintiff alleges that Maverick Innovative Solutions, LLC was unjustly enriched because it
was involved in the sale of assets of Maverick Stainless Fabrication, LLC. (Plaintiffs
Complaint, { 35). That is simply not true and Plaintiff has no evidence to support such an
assertion. Maverick Innovative Solutions, LLC had nothing to do with that sale and received no
monies from the sale of the assets of Maverick Stainless Fabrication, LLC. Jd.
The doctrine of unjust enrichment provides an equitable remedy imposed to prevent
injustice. Unjust enrichment occurs when a party receives a benefit which, in justice and equity
belongs to another party. Adkins v. Thompson (1999), 1999 WL 689750. (copy attached hereto
as Exhibit D). Ohio courts repeatedly have recognized that the elements of unjust enrichment
are:
1. a benefit conferred by a plaintiff upon a defendant;
2. knowledge by the defendant of the benefit; and
3. retention of the benefit by the defendant under circumstances where it
would be unjust to do so without payment.
Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St. 3d 179, 183. A party must be enriched and
that enrichment must be unjust. Directory Services Group v. Staff Builders International, Inc.
(2001), 2001 WL 792715. (copy attached hereto as Exhibit E). Finally, a plaintiff must showthat, under the circumstances, he or she has a superior equity so that would be unconscionable
for the named defendant to retain the benefit. Katz v. Banning (1992), 84 Ohio App. 3d 543.
This case law leaves no doubt as to why Plaintiff's claim of unjust enrichment fails. First
of all, there was no benefit conferred by Plaintiff upon Maverick Innovative Solutions, LLC.
The crates were constructed for Maverick Stainless Fabrication, LLC, were shipped to Maverick
Stainless Fabrication, LLC., and were utilized by Maverick Stainless Fabrication, LLC. There
was simply no benefit conferred upon Maverick Innovative Solutions, LLC.
Also, Maverick Innovative Solutions, LLC retained no benefit relative to this situation.
Plaintiffs claim of unjust enrichment apparently relates to monies that it claims that Maverick
Innovative Solutions, LLC received from the sale of Maverick Stainless Fabrication, LLC. That
allegation is simply false. (Jackson Affidavit, Ex. B). The evidence in this case is that Maverick
Stainless Fabrication, LLC was sold because of the actions of its bank and that all of the
proceeds of that sale went to that bank. Jd. Maverick Innovative Solutions, LLC, which was a
separate entity, received no monies from that sale. Jd. There is no superior equity here by the
Plaintiff. Again, it must be remembered that, should Plaintiff have had any doubts about its
dealing with Maverick Stainless Fabrication, LLC, it could have insisted on some sort of
guarantee or written assurance as to any entity other than Maverick Stainless Fabrication, LLC
that would be paying. There are no documents evidencing that it did that and, for that reason,
there was simply no benefit that Maverick Innovative Solutions, LLC received in this case.
Therefore, Plaintiff's claim of unjust enrichment fails. Accord, Grothaus v. Warner (2008), 2008
WL 5265897, (copy attached hereto as Exhibit F).
Ill. CONCLUSION
The case before this Court comes down to two simple conclusions. Despite Plaintiffs
creative pleadings, Plaintiffs claim of breach of contract against Maverick Innovative Solutions,
7LLC fails given the course of dealings between Plaintiff and another, separate entity relative to
the crates in question. Moreover, Plaintiff's claim of unjust enrichment fails as a matter of law
as well.
WHEREFORE, for the reasons contained herein, Defendant Maverick Innovative
Solutions, LLC respectfully requests its Motion for Summary Judgment granted.
Respectfully submitted,
Paul L. Jackson (0040198)
pjackson@ralaw.com
Karen D. Adinolfi (0073693)
kadinolfi@ralaw.com
Roetzel & Andress, LPA
222 South Main Street
Akron, OH 44308
Telephone: 330.376.2700
Facsimile: 330.376.4577
Attorneys for Defendant MAVERICK.
INNOVATIVE SOLUTIONS, LLC
PROOF OF SERVICE
A copy of the foregoing has been served via regular U.S. mail, postage prepaid, to the
following on this | 84 day of October, 2012:
John H. Schaeffer, Esq. Attorney for Plaintiff
225 North Market Street
P.O. Box 599
A Z
ttorney at law
Wooster, OH 44691
6621351_1\110478.0016e@ @ EXHIBIT
loa
IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
BUILT-RITE BOX & CRATE, INC., CASE NO. 12-CV-0407
Plaintiff, JUDGE WIEST
'
vs. t
MAVERICK INNOVATIVE | AFFIDAVIT OF TIM SEGGERSON
SOLUTIONS, LLC, '
\
Defendant. |
Now comes Tim Seggerson who, after first being duly sworn accordingly to law deposes
and states that he is of full legal age, has full knowledge of all events stated herein, and is
competent to testify as to the matters set forth below.
Further, Affiant states that:
1. I am currently employed in the purchasing department at Maverick Innovative
Solutions, LLC.
2. I previously also performed purchasing functions for Maverick Stainless
Fabrication, LLC, when that entity was in business.
3. Maverick Innovative Solutions, LLC and Maverick Stainless Fabrication, LLC
were at all times separate companies.
4. In November of 2011, I placed an order on behalf of Maverick Stainless
Fabrication, LLC with Built-Rite Box & Crate for certain crates to be used by Maverick Stainless
Fabrication, LLC.
5. I was very clear in that telephone call that the order was being placed on behalf of© e
Maverick Stainless Fabrication, LLC.
6. I then memorialized that discussion with a Purchase Order that I sent to Built-Rite
Box & Crate.
7. That was my normal practice when placing orders.
8. A true and accurate copy of that Purchase Order is attached hereto as Exhibit 1.
9. That Purchase Order shows that the crates being order were to be shipped to and
billed to Maverick Stainless Fabrication, LLC.
10. At no time did I ever say that any of the items listed on Exhibit 1 were to be used
in any way by Maverick Innovative Solutions, LLC.
11. When I placed that order on behalf of Maverick Stainless Fabrication, LLC, I had
no idea that Huntington Bank was going to take the actions as to that entity that Huntington Bank
did.
FURTHER AFFIANT SAYETH NAUGHT.
TIM SEGGERSONSTATE OF OHIO )
) SS:
COUNTY OF ASHLAND _ )
BEFORE ME, A Notary Public, in and for said State, personally appeared TIM
SEGGERSON, who acknowledges the signing of the foregoing instrument to be his free act and
deed.
IN WITNESS WHEREOF, | have hereunto set my hand and notarial seal at fisy laucl
Ohio, this SM day of Oey , 2012.
Not:
ANN yy
wey, “ny,
S lr, MEGAN
THIS
MATHS
6620844_1.\110478.ave Statens Fbrertion
301 W. Prospect St.
Smithville, OH 44677-0186
Telephone: 330/669-2631
Fax: 330/669-3188
EXHIBIT
!
Purchase Order
Order Number : 422120 Reprint
BUILT-RITE BOX & CRATE
608 FREEDLANDER RD
WOOSTER, OH 44691
Supplier:
JOHN OR LINDA
330-263-0936
330-262-4252
Contact:
Tel No:
Fax No:
Buyer:
“| 400570
Supplier No.
tL Ship via.”
Maverick Stainless Fabrication, LLC
301 WEST PROSPECT
SMITHVILLE, OH 44677
Ship to:
Maverick Stainless Fabrication, LLC
301 WEST PROSPECT
SMITHVILLE, OH 44677
Bill to:
\ "FOB Type
DESTINATION
[ Stock Code / Description / Job
CULLUM CRATE
WITH SHELVES
(ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE)
Job # 631374
CULLUM CRATE
WITHOUT SHELVES
{ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE)
Job # 631374
CULLUM CRATES
WITH SHELVES
(ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE)
Job # 631375
CULLUM CRATES
WITHOUT SHELVES
{ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE)
Job # 631375
CULLUM CRATES
WITH SHELVES
(ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE)
Job # 631376
CULLUM CRATES
WITHOUT SHELVES
(ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE)
Job # 631376
Last printed 8/22/2012 11:07:00 AM
| Qty Ordered l
jo
Qo
20
vim | _UnitPrice | Extended | tem Due Date |
"$0.00 14/18/14
&
103 ln
‘$0.00
133%
EA $1,036.00
EA $916.00 1445/11
MAST
EA $1,036.00 $0.00
io3b
$0.00 1415/14
133
EA $916.00
$0.00
[oa
EA $1,036.00 11/15/11
$0.00 4415114
133
EA $916.00
Ayo
M0001 Page 1 of 2Purchase Order
voc Stans Faetetion
301 W. Prospect St. N : 10 ‘in
ate anes Order Number : 422120 Reprint
Telephone: 330/669-2631
Fax: 330/669-3188
Supplier: BUILT-RITE BOX & CRATE Ship to: Maverick Stainless Fabrication, LLC
608 FREEDLANDER RD 301 WEST PROSPECT
WOOSTER, OH 44691 SMITHVILLE, OH 44677
Contact: JOHN OR LINDA Billto: | Maverick Stainless Fabrication, LLC
Tel No: 330-263-0936 301 WEST PROSPECT
Fax No: 330-262-4252 SMITHVILLE, OH 44677
Buyer:
"Ship Via.
100570 L.
[ stock Code / Description / Job Qty Ordered | Uim | —_UnitPrice | Extended _| tem Due Date |
WILL NEED CONFIRMATION OF THE DELIVERY DATE IN THE FORM OF A FAX.
ANY DEVIATION FROM PRICES OR THIS DELIVERY DATE MUST BE NOTED ON THE FAX.
PO PRICE |S FINAL, IF PRICE VARIES ON INVOICE, PO AMOUNT WILL BE PAID.
1. Show Maverick Stainless Fabrication, LLC PO number and Stock Code numbers on all packing lists and invoice
documents.
2. All Maverick Stainless Fabrication, LLC terms & conditions apply unless otherwise agreed to in writing.
3. All shipments must be accompanied by an MSDS document, if applicable.
4. All metal shipments must be accompanied by a Certificate of Analysis.
Authorized By:
M 0002
Last printed 8/22/2012 11:07:00 AM Page 2 of 2e@ @ EXHIBIT
ls
IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
BUILT-RITE BOX & CRATE, INC., CASE NO, 12-CV-0407
'
'
Plaintiff, ' JUDGE WIEST
vs.
MAVERICK INNOVATIVE | AFFIDAVIT OF KEITH JACKSON
SOLUTIONS, LLC, 1
Defendant.
Now comes Keith Jackson who, after first being duly sworn accordingly to law deposes
and states that he is of full legal age, has full knowledge of all events stated herein, and is
competent to testify as to the matters set forth below.
Further, Affiant states that:
1. I am currently employed by Maverick Innovative Solutions, LLC and hold the
position of President of Operations.
2. I was previously employed at Maverick Stainless Fabrication, LLC in Smithville,
Ohio.
3. Maverick Innovative Solutions, LLC and Maverick Stainless Fabrication, LLC
were operated as two separate businesses at all times.
4. Those entities did share at times some functions such as purchasing.
5. When items were purchased, it is my belief that it was always made very clear to
which entity the items were to be shipped.
6. Maverick Innovative Solutions, LLC operated at the Smithville, Ohio address@ @
until April 23, 2008.
7. After that date, the only entity that used the Smithville, Ohio facility or address
was Maverick Stainless Fabrication, LLC.
8. In 2011, Huntington Bank had a lien as to all of Maverick Stainless Fabrication,
LLC.’s assets.
9. Huntington Bank executed on that lien in late 2011.
10. Huntington Bank caused all of the assets of Maverick Stainless Fabrication, LLC
to be sold.
11. The proceeds from that sale were insufficient to pay Huntington Bank in full.
Therefore, there were no funds available to pay general creditors.
12. Maverick Innovative Solutions, LLC had nothing to do with that sale and
certainly received no monies from that sale.
13. It is my understanding that all of the creditors of Maverick Stainless Fabrication,
LLC were informed of that fact by a letter sent out by counsel for Maverick Stainless
Fabrication, LLC on January 25, 2012. A true and accurate copy of that notification letter is
attached hereto as Exhibit 1.
FURTHER AFFIANT SAYETH NAUGHT.STATE OF OHIO )
) SS:
COUNTY OF ASHLAND _ )
BEFORE ME, A Notary Public, in and for said State, personally appeared KEITH
JACKSON, who acknowledges the signing of the foregoing instrument to be his free act and
deed.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal at Ashland
Ohio, this 15? day of Octokoer 2012.
MU
Notarfj Public
WWE
yt Ny
Sener. Ug,
MEGAN
MATHIS
OTARY PUBLIC,
Expires
Aug. 2, 2015EXHIBIT
Tv , DO3-7218 yene news A
McCARTHY LEONARD KAEMMERER, L.C.
C.
ATTORNEYS AT LAW Co
400 SouTH Woons MILL Roab, Surre 250 Py
CHESTERFIELD, MISSOURI 63017-3481
314-392-5200 / FAX 314-392-5221
www.miklaw.com
‘THOMAS W, MCCARTHY DT JAMES P, TOWEY, JR.’ MARK G. MCLEAN*
E-KAEMMERER Toppa. ° ANDREW M. LAMMERT”
ANDREW B. LEONARD ROBERT A. MILLER* $. ROGER DENNY,
rE. JAMES R. WALSH" LAURA H. STOBIE
ROBERT L. STRILER* KRISTEN L. MALY** AMANDA M. HAGER
‘MATTHEW D. MENGHINI**** PETER A. ROTE ‘TANYA CHARUMILIND
STEPHEN J. BRYAN M. KAEMMERER
‘TIMOTBY J. AHRENBOERSTERBAEUMER LICENSED IN ILLINOIS
ALSO LICENSED IN INDIANA
‘s*** ALSO LICENSED IN COLORADO
January 25, 2012
Creditor of Maverick Stainless Fabrication, LLC
Please be advised that the undersigned and this Firm represent Maverick Stainless
Fabrication, LLC (“Company”).
The Company has ceased operations and has sold all of its assets. The Company has
substantial secured debt. The proceeds from the sale were insufficient to satisfy the secured
creditors in full. Therefore, there will not be funds available to pay unsecured or general
creditors. It is my understanding that you are currently a general creditor of the Company. As
indicated, there will be no funds available to make payment to you as relates to the amounts due
and owing from the Company to you.
Should you have any questions with respect to the foregoing, please contact me: Please
do not contact the Company or any of its principals.
Very truly yours,
McCARTHY, LEONARD & MMERER, L.C.
Stephen J. Smith
SJS:pn
JAN 3.9 RECS
Built-Rite
0005Westlaw,
Page 1
Not Reported in N.E.2d, 2002 WL 1173512 (Ohio App. 11 Dist.), 2002 -Ohio- 2817
(Cite as: 2002 WL 1173512 (Ohio App. 11 Dist.))
c
CHECK OHIO SUPREME COURT RULES FOR
REPORTING OF OPINIONS AND WEIGHT OF
LEGAL AUTHORITY.
Court of Appeals of Ohio,
Eleventh District, Portage County.
Neumond GILES, Plaintiff-Appellant,
v.
Barbara HANNING, Defendant-Appellee.
No. 2001-P-0073.
May 31, 2002.
Father filed action for accounting against
daughter, his attorney-in-fact, claiming unjust en-
richment, and daughter counterclaimed for funds
she expended in caring for father. After bench trial,
the Court of Common Pleas, Portage County,
entered judgment for daughter on principal claim
and for father on counterclaim. Father appealed.
The Court of Appeals, Grendell, J., held that daugh-
ter was not unjustly enriched.
Affirmed.
West Headnotes
[1] Implied and Constructive Contracts 205H
55
205H Implied and Constructive Contracts
205HI Nature and Grounds of Obligation
205HI(D) Effect of Express Contract
205HkSS k. In General. Most Cited Cases
There can be no recovery under the theory of
unjust enrichment if there is an express agreement
between the parties.
[2] Implied and Constructive Contracts 205H
C333
205H Implied and Constructive Contracts
205HI Nature and Grounds of Obligation
205HI(A) In General
205Hk2 Constructive or Quasi Contracts
205Hk3 k. Unjust Enrichment. Most
Cited Cases
Daughter was not unjustly enriched by funds
father contributed toward construction of addition
to daughter's house; father agreed to pay for addi-
tion, which was constructed solely for his care.
[3] Implied and Constructive Contracts 205H
e333
205H Implied and Constructive Contracts
205HI Nature and Grounds of Obligation
205HI(A) In General
205Hk2 Constructive or Quasi Contracts
205Hk3 k. Unjust Enrichment. Most
Cited Cases
The doctrine of unjust enrichment provides an
equitable remedy imposed to prevent injustice.
[4] Implied and Constructive Contracts 205H
3
205H Implied and Constructive Contracts
20SHI Nature and Grounds of Obligation
205HI(A) In General
205Hk2 Constructive or Quasi Contracts
205Hk3 k. Unjust Enrichment. Most
Cited Cases
“Unjust enrichment” occurs when a party re-
ceives a benefit which, in justice and equity, be-
longs to another.
[5] Implied and Constructive Contracts 205H
3
205H Implied and Constructive Contracts
205HI Nature and Grounds of Obligation
205HI(A) In General
205Hk2 Constructive or Quasi Contracts
205Hk3 k. Unjust Enrichment. Most
Cited Cases
The elements of unjust enrichment are: (1) a
benefit conferred by a plaintiff upon a defendant,
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
EXHIBIT
Cc
http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07&destination=atp&mt=W... 10/11/2012http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07 &destination=atp&mt=W...
e@ Page 3 of 6
Page 2
Not Reported in N.E.2d, 2002 WL 1173512 (Ohio App. 11 Dist.), 2002 -Ohio- 2817
(Cite as: 2002 WL 1173512 (Ohio App. 11 Dist.))
(2) knowledge by the defendant of the benefit, and
(3) retention of the benefit by the defendant under
circumstances where it would be unjust to do so
without payment.
[6] Implied and Constructive Contracts 205H
e333
205H Implied and Constructive Contracts
205HI Nature and Grounds of Obligation
205HI(A) In General
205Hk2 Constructive or Quasi Contracts
205Hk3 k. Unjust Enrichment. Most
Cited Cases
For a claim of unjust enrichment to lie, a party
must be enriched, and that enrichment must be un-
just.
{7] Implied and Constructive Contracts 205H
3
205H Implied and Constructive Contracts
20S5HI Nature and Grounds of Obligation
205HI(A) In General
205Hk2 Constructive or Quasi Contracts
205Hk3 k. Unjust Enrichment. Most
Cited Cases
A plaintiff claiming unjust enrichment must
show that, under the circumstances, he or she has a
superior equity, so that it would be unconscionable
for the defendant to retain a benefit; further, a court
must consider whether the defendant was the party
responsible for the plaintiffs detrimental position.
[8] Appeal and Error 30 €=71012.1(8)
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and
Findings
30XVI(1)3 Findings of Court
30k1012 Against Weight of Evidence
30k1012.1 In General
30k1012.1(7) Particular Cases
and Issues
30k1012.1(8) k. Contracts in
General; Insurance; Sales. Most Cited Cases
A trial court's decision regarding unjust enrich-
ment will not be reversed if it is supported by the
manifest weight of the evidence.
[9] Appeal and Error 30 €=931(1)
30 Appeal and Error
30XVI Review
30XVI(G) Presumptions
30k931 Findings of Court or Referee
30k931(1) k. In General. Most Cited
Cases
Appeal and Error 30 €=71012.1(5)
30 Appeal and Error
30XVI Review
30XVI(I) Questions of Fact, Verdicts, and
Findings
30XVI(I)3 Findings of Court
30k1012 Against Weight of Evidence
30k1012.1 In General
30k1012.1(5) k,
Weight. Most Cited Cases
A reviewing court must be guided by a pre-
sumption that the findings of the trier of fact were
correct; accordingly, a judgment supported by some
competent, credible evidence going to all the essen-
tial elements of the case will not be reversed as be-
ing against the manifest weight of the evidence.
Manifest
Civil Appeal from the Court of Common Pleas,
Case No. 99 CV 0111.Atty. Kenneth Wood, Mace-
donia, OH, for Plaintiff-Appellant.
Atty. Joseph Giulitto, Giulitto & Berger, Ravenna,
OH, for Defendant-Appellee.
DIANE V. GRENDELL, J.
*1 {§ 1} Plaintiff-appellant, Neumond Giles
(“appellant”), appeals from the decision of the Port-
age County Court of Common Pleas finding appel-
lant did not sustain his burden of proof in showing
defendant-appellee, Barbara Hanning (“Hanning”),
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
10/11/2012@ Page 4 of 6
Page 3
Not Reported in N.E.2d, 2002 WL 1173512 (Ohio App. 11 Dist.), 2002 -Ohio- 2817
(Cite as: 2002 WL 1173512 (Ohio App. 11 Dist.))
retained funds which were lawfully his and be-
nefited from funds expended for an addition to her
home.
{J 2} On February 8, 1999, appellant filed a
complaint for an accounting against Hanning, his
stepdaughter. In the complaint, appellant averred he
gave Hanning a general power of attorney on June
6, 1997, causing her to become his agent and creat-
ing a fiduciary relationship between the two. Ap-
pellant claimed Hanning entered into a series of
transactions, resulting in her holding over $100,000
of his funds, which she refused to return. Appellant
asked the court to require Hanning to render an ac-
counting, account for the funds, and return the
funds, plus interest.
{§ 3} On March 9, 1999, Hanning answered
and counterclaimed for monies she expended in
constructing an addition to her home in order to fa-
cilitate caring for appellant, who required around
the clock nursing care. Hanning asked to be reim-
bursed for the reasonable value of the services she
rendered to appellant while he resided in her home.
{4 4} The parties stipulated Hanning sold ap-
pellant's residence and van because appellant would
not be able to care for himself or live independ-
ently. Hanning admitted to possessing $72,162.32
of appellant's funds. The parties agreed a $40,000
addition was built on the Hanning home in order to
meet the living needs of appellant. Appellant paid
$20,000 of the cost of the addition. Appellant lived
with Hanning from June 15, 1997 until April 24,
1998. Hanning provided around the clock care for
appellant for several months. The power of attorney
was revoked on May 26, 1998.
{§ 5} The matter came before the court for a
bench trial on March 20, 2001. Appellant denied
agreeing to financing any of the addition to the
Hanning home. Appellant claimed Hanning took
$153,000 from him. Hanning testified appellant did
discuss the addition with her, with the understand-
ing he could live there as long as he wished. Han-
ning denied having any need for an addition to her
residence other than for the use of appellant. Han-
ning admitted there was no agreement that appel-
lant would pay her for his care while he lived with
her.
{4 6} On March 27, 2001, the trial court issued
its judgment entry. The court found appellant did
authorize the sale of his home and the construction
of the addition. The court stated the addition only
added $20,000 in value to Hanning's residence, or
the same amount she expended on the project. The
trial court found in favor of Hanning as to appel-
lant's claims. Because there was no agreement
between the parties that appellant would pay Han-
ning for his care, the trial court found for appellant
on the counterclaim. On April 6, 2001, appellant
filed a motion to amend and supplement the court's
conclusions of law or, in the alternative, a motion
for new trial. Appellant asked that he receive at
least $10,000 as half of the increase in value to the
Hanning home. On June 18, 2001, the trial court
overruled the motion. Appellant has appealed the
trial court's judgment. On November 30, 2001, ap-
pellant's attorney filed a suggestion of death with
this court, stating appellant died on October 20,
2001. On December 24, 2001, this court ordered the
appeal to continue as if appellant was not deceased.
*2 {§ 7} Appellant assigns the following errors
for review:
{4 8} “[1.] The trial court erred to the prejudice
of plaintiff-appellant as a matter of law in not
awarding him at least $10,000.00 based upon evid-
ence that he contributed $20,000.00 to construct an
addition costing $40,000.00 to defendant-appellee's
home.
{§ 9} “[2.] The trial court's decision is against
the manifest weight of the evidence.”
{J 10} Appellant's assignments of error will be
addressed together as appellant did not argue the
assignments of error separately and similar issues
of law and fact are involved. Appellant claims his
$20,000 contribution to the construction of the ad-
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
http://web2. westlaw.com/print/printstream.aspx?rs=WL W 12.07 &destination=atp&mt=W...
10/11/2012e@ Page 5 of 6
Page 4
Not Reported in N.E.2d, 2002 WL 1173512 (Ohio App. 11 Dist.), 2002 -Ohio- 2817
(Cite as: 2002 WL 1173512 (Ohio App. 11 Dist.))
dition resulted in Hanning being unjustly enriched.
Appellant argues that Hanning retains the use and
enjoyment of the addition to her benefit. Appellant
further asserts the trial court's judgment was against
the manifest weight of the evidence.
{J 11} Appellant is arguing Hanning was un-
justly enriched by the addition to her home, con-
structed, at least partially, with his funds. The trial
court's judgment entry of March 27, 2001, found
that the parties agreed to build the addition, using
$20,000 of appellant's funds. The court also found
Hanning transferred the balance of appellant's funds
to him at a bank where the transfer was witnessed
and approved. Further, on March 15, 2001, the
parties stipulated that appellant consented to the ad-
dition being made to the Hanning home and that ap-
pellant consented to the use of $20,000 of his
money to assist in the construction costs.
[1][2] {4 12} There can be no recovery under
the theory of unjust enrichment if there is an ex-
press agreement between the parties. See Hughes v.
Oberholtzer (1954), 162 Ohio St. 330, 123 N.E.2d
393; Nye v. Craig (June 30, 1994), 11th Dist. No.
93-P-0094, 1994 Ohio App. LEXIS 2910. Accord-
ing to the parties’ stipulations, appellant agreed to
provide funds for the addition. This express agree-
ment negates any recovery by appellant under the
doctrine of unjust enrichment.
[3][4][5][6][7] {| 13} Even if appellant could
pursue his theory that Hanning was unjustly en-
riched by the addition to her home through the par-
tial use of his funds, appellant's argument still must
fail. The doctrine of unjust enrichment provides an
equitable remedy imposed to prevent injustice.
Banks v. Nationwide Mut. Fire Ins. Co. (Nov. 28,
2000), 10th Dist. No. 99AP-1413, 2000 Ohio App.
LEXIS 5504. Unjust enrichment occurs when a
party receives a benefit which, in justice and equity,
belongs to another. Adkins v. Thompson (Aug. 20,
1999), 11th Dist. No. 98-P-0045, 1999 Ohio App.
LEXIS 3882. The elements of unjust enrichment
are: “(1) a benefit conferred by a plaintiff upon a
defendant; (2) knowledge by the defendant of the
benefit; and (3) retention of the benefit by the de-
fendant under circumstances where it would be un-
just to do so without payment.” Hambleton v. R.G.
Barry Corp. (1984), 12 Ohio St.3d 179, 183, 465
N.E.2d 1298. A party must be enriched, and that
enrichment must be unjust. Directory Services
Group v. Staff Builders Int'l, Inc. (July 12, 2001),
8th Dist. No. 78611, 2001 Ohio App. LEXIS 3108.
The plaintiff must show that, under the circum-
stances, he or she has a superior equity so that it
would be unconscionable for the defendant to retain
the benefit. Katz v. Banning (1992), 84 Ohio
App.3d 543, 617 N.E.2d 729. Further, a court must
consider whether the defendant was the party re-
sponsible for the plaintiff's detrimental position.
There must be a tie of causation between the loss to
the plaintiff and the benefit to the defendant. U.S.
Health Practices, Inc. v. Byron Blake, M.D., Inc.
(Mar. 22, 2001), 10th Dist. No. OOAP-1002, 2001
Ohio App. LEXIS 1291.
*3 [8][9] {9 14} A trial court's decision regard-
ing unjust enrichment will not be reversed if it is
supported by the manifest weight of the evidence.
Dixon vy. Smith (1997), 119 Ohio App.3d 308, 318,
695 N.E.2d 284. A reviewing court must be guided
by a presumption that the findings of the trier of
fact were correct. Seasons Coal Co. v. Cleveland
(1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. Ac-
cordingly, a judgment, which is supported by some
competent, credible evidence going to all the essen-
tial elements of the case, will not be reversed as be-
ing against the manifest weight of the evidence. Id.
{§ 15} Appellant's stance is that he should be
reimbursed for half of the equity increase in the
Hanning residence. Appellant maintains each party
contributed half of the construction cost of the addi-
tion but Hanning retains the full benefit, while he
received no benefit.
{{ 16} The record shows, and the parties’ stipu-
lated, that the sole purpose of the addition was to
accommodate appellant's care. Hanning and her
family lived in the residence for years without
needing an addition. Appellant was free to stay with
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07&destination=atp&mt=W...
10/11/2012e@ e@ Page 6 of 6
Page 5
Not Reported in N.E.2d, 2002 WL 1173512 (Ohio App. 11 Dist.), 2002 -Ohio- 2817
(Cite as: 2002 WL 1173512 (Ohio App. 11 Dist.))
Hanning in the addition but voluntarily chose to
leave. Hanning was not the party responsible for
appellant's expenditure. Rather, appellant's physical
condition and needs were the catalyst for the de-
cision to add to the home. Hanning's enrichment,
under these circumstances, hardly was unjust. She
cared for appellant and expended funds to build an
addition because of appellant's presence in her
home and his poor physical condition.
{{ 17} Based upon the record, the decision of
the trial court is supported by the manifest weight
of the evidence. Appellant's first and second assign-
ments of error are overruled. The judgment of the
Portage County Court of Common Pleas is af-
firmed.
ROBERT A. NADER, J., concur.
Ohio App. 11 Dist.,2002.
Giles v. Hanning
Not Reported in N.E.2d, 2002 WL 1173512 (Ohio
App. 11 Dist.), 2002 -Ohio- 2817
END OF DOCUMENT
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07&destination=atp&mt=W... 10/11/2012Westlaw.
e@ EXHIBIT
lp
Page |
Not Reported in N.E.2d, 1999 WL 689750 (Ohio App. 11 Dist.)
(Cite as: 1999 WL 689750 (Ohio App. 11 Dist.))
Only the Westlaw citation is currently available.
CHECK OHIO SUPREME COURT RULES FOR
REPORTING OF OPINIONS AND WEIGHT OF
LEGAL AUTHORITY.
Court of Appeals of Ohio, Eleventh District, Port-
age County.
Harold K. ADKINS, d.b.a. A & S BRICKLAY-
ERS, INC., Plaintiff-Appellee,
Vv.
Woodson Mark THOMPSON, et al., Defendants-
Appellees,
Johns-Eagon Company, Defendant-Appellant.
No. 98-P-0045.
Aug. 20, 1999.
Civil Appeal from the Court of Common Pleas,
Case No. 95 CV 0554.
ATTY. THOMAS R. BUCHANAN, Ravenna, OH
(For Plaintiff-Appellee).
ATTY. DAVID E. WILLIAMS, Kent, OH (For De-
fendants-Appellees).
ATTY. JOHN CURTIS ALBERTI, Akron, OH (For
Defendant-Appellant).
Hon. DONALD R. FORD, P.J., Hon. ROBERT A.
NADER, J., Hon. WILLIAM M. O'NEILL, J.
OPINION
O'NEILL, J.
*1 Appellant, Johns-Eagon Company
(“Johns-Eagon”), has appealed a decision of the
Portage County Common Pleas Court denying its
motion to conform the pleadings to the evidence in
a contract case involving the construction of a
home. The following facts are relevant to a determ-
ination of this appeal.
Appellees, Mark and Christine Thompson (“the
Thompsons”), were in the process of building a
new home in Streetsboro, Ohio. As part of that pro-
cess, they contracted with appellee, Harold K.
Adkins, d.b.a. A & S Bricklayers, Inc. (“A & S”),
on July 30, 1994 to install the brick on the outside
of the home. A & S then contracted with Johns-
Eagon to supply the brick needed for the job. On or
about November 16, 1994, the first load of 6,020
bricks was delivered by Johns-Eagon to the job site.
A & S paid the Johns-Eagon driver $2,475.35 for
those bricks. By November 21, 1994, a second load
of bricks was required. Once again, Johns-Eagon
made the delivery and was paid $2,475.35 by A & S.
After 4,700 of the bricks from the second load
had been laid, the Thompsons noticed that the
second load of bricks did not match the bricks from
the first load. Johns-Eagon admitted that it de-
livered the wrong brick but claimed that A & S
should have realized the mistake when it started
laying the brick. David Derr from Derr Brick, a di-
vision of Boral Brick, who had supplied the brick to
Johns-Eagon, determined that the second load of
bricks had come from a different run than the first
load and that the second load of bricks had a coars-
er texture than those in the first load. A dispute
arose as to who was going to pay for the mistake.
As a result, the Thompsons did not pay A & S for
their work and, consequently, A & S stopped work
on the project.
On February 27, 1995, the Thompsons termin-
ated the contract with A & S because of its refusal
to continue to work on the project. The Thompsons
also contacted Boral Brick (“Boral”), who agreed to
reimburse the Thompsons for the cost of removing
the wrong brick and, additionally, gave the
Thompsons a discount on the purchase price of
brick to finish their house.
On July 31, 1995, A & S filed a mechanics lien
against the Thompsons’ home and then filed a fore-
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07&destination=atp&mt=W...
10/11/2012@ Page 3 of 4
Page 2
Not Reported in N.E.2d, 1999 WL 689750 (Ohio App. 11 Dist.)
(Cite as: 1999 WL 689750 (Ohio App. 11 Dist.))
closure action against the Thompsons. The
Thompsons filed a counterclaim against A & S for
breach of contract and negligence. Subsequently,
on May 21, 1996, A & S moved the trial court to
consolidate the instant matter with Portage County
Case No. 96 CV 405, a case in which A & S had
filed a complaint against Johns-Eagon based upon
breach of contract and negligently delivering the
wrong brick to the job site. The trial court granted
the motion to consolidate on June 17, 1996.
On March 10, 1997, the claims of all parties
were tried together before a magistrate in the trial
court. On June 23, 1997, the magistrate issued his
decision. Concerning the issue of the wrong brick,
the magistrate determined that the Thompsons
should not be held responsible for the cost of the
wrong brick or the labor to install the wrong brick.
The magistrate found that Johns-Eagon was liable
to A & S for the cost of the wrong brick and the
labor to install the wrong brick. However, the ma-
gistrate than incorrectly included in the award in fa-
vor of A & S against the Thompsons the cost of the
wrong brick and the labor for installing the wrong
brick.
*2 Both Johns-Eagon and the Thompsons filed
objections to the magistrate's report. On October
15, 1997, the trial court sent the matter back to the
magistrate for further findings of facts and conclu-
sions of law pertaining to the aforementioned ob-
jections. On February 24, 1998, the magistrate is-
sued a supplemental decision in which he made it
clear that Johns-Eagon was solely responsible for
the delivery of the wrong brick. Thus, the cost of
the wrong brick as well as the labor to install it was
deducted from the award against the Thompsons.
On March 11, 1998, Johns-Eagon filed a mo-
tion to conform its pleadings to the evidence, in ad-
dition to objections to the magistrate's supplemental
decision. On March 23, 1998, the trial court over-
ruled the objections and denied the motion of
Johns-Eagon to conform its pleadings to the evid-
ence. The trial court then adopted the magistrate's
supplemental decision.
Appellant, Johns-Eagon, timely filed a notice
of appeal and has now set forth the following as-
signments of error:
“1, The trial court erred to the prejudice of De-
fendant-Appellant in overruling its motion to
amend its pleadings to conform to the evidence
presented at trial.
“2. The trial court erred to the prejudice of De-
fendant-Appellant by adopting the Supplemental
Magistrate Decision, which refused to consider De-
fendant-Appellant's claims of unjust enrichment
against Defendant-Appellees Thompsons.”
In the first assignment of error, Johns-Eagon
contends that the trial court erred in overruling its
motion to amend its pleadings to conform to the
evidence presented at trial. In the second assign-
ment of error, Johns-Eagon asserts that the trial
court erred by adopting the magistrate's supple-
mental decision, which did not consider its claims
of unjust enrichment against the Thompsons. These
assignments of error are interrelated and, therefore,
will be addressed in a consolidated manner.
Civ.R. 15(B) addresses amendments to con-
form pleadings to the evidence. It provides, in rel-
evant part:
“When issues not raised by the pleadings are
tried by express or implied consent of the parties,
they shall be treated in all respects as if they had
been raised in the pleadings. Such amendment of
the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues
may be made upon motion of any party at any time,
even after judgment. Failure to amend as provided
herein does not affect the result of the trial of these
issues.”
Additionally, the decision to grant or deny a
motion to amend pleadings to conform to the evid-
ence is within the sound discretion of the trial
court. Spisak v. McDole (1984), 15 Ohio St.3d 62,
63, 472 N.E.2d 347; James Place Properties, Inc. v.
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07 &destination=atp&mt=W...
10/11/2012e Page 4 of 4
Page 3
Not Reported in N.E.2d, 1999 WL 689750 (Ohio App. 11 Dist.)
(Cite as: 1999 WL 689750 (Ohio App. 11 Dist.))
Madison Twp. Bd. of Trustees (Sept. 25, 1998),
Lake App. No. 97-L-143, unreported, at 12. In or-
der to establish an abuse of discretion, an appellant
must show that the trial court's ruling was unreas-
onable, arbitrary, or unconscionable. State v. Adams
(1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.
*3 In the present case, Johns-Eagon sought to
amend its pleadings to include a cross-claim against
the Thompsons based upon the theory of unjust en-
richment. Specifically, Johns-Eagon argues that the
Thompsons entered into a settlement agreement
with Boral under which the Thompsons were reim-
bursed for the cost of the wrong brick and the cost
of installing the wrong brick. Therefore, the
Thompsons, not Johns-Eagon, should be held liable
to A & S for that money to cover those costs. Oth-
erwise, the Thompsons will be unjustly enriched.
We disagree.
A review of the settlement agreement between
Boral and the Thompsons reveals that the money
received by the Thompsons was to cover the cost of
removing the wrong brick and the installation of
correct brick in its place. The removal and reinstall-
ation was performed by another subcontractor hired
and paid by the Thompsons after A & S was dis-
charged for failing to continue the job. The settle-
ment agreement did not involve the original cost of
the wrong brick or the cost of installing the wrong
brick. Hence, Johns-Eagon's argument that the
parties had expressly or impliedly tried this issue at
trial is not supported by the record.
Additionally, Johns-Eagon claims that without
permitting them to amend its pleading resulted in
the Thompsons being unjustly enriched by the
funds received from Boral. This is simply not true.
Unjust enrichment occurs when a party receives
some benefits which in justice and equity belong to
someone else. Liberty Mut. Ins. Co. v. Indus. Comm
- (1988), 40 Ohio St.3d 109, 110-11], 532 N.E.2d
124. In the case sub judice, it is clear that the
Thompsons did not receive any benefits that right-
fully belonged to Johns-Eagon. Because of the mix-
up, the Thompsons were forced to hire a subcon-
tractor to remove the non-conforming brick and in-
stall the proper brick. That is an expense that they
should not have incurred. Boral, recognizing its
part in the mix-up, agreed to pay those expenses.
Boral did not agree to assume the cost of the wrong
brick or the cost of installing the wrong brick.
Thus, this is not a case of unjust enrichment.
Based upon the foregoing analysis, the trial
court did not err in overruling Johns-Eagon's mo-
tion to amend its pleadings to conform to the evid-
ence. Nor was it error for the trial court to adopt the
magistrate's supplemental decision. Both assign-
ments of error are, therefore, without merit.
The judgment of the trial court is hereby af-
firmed.
FORD, P.J., NADER, J., concur.
Ohio App. 11 Dist.,1999.
Adkins v. Thompson
Not Reported in N.E.2d, 1999 WL 689750 (Ohio
App. 11 Dist.)
END OF DOCUMENT
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07&destination=atp&mt=W...
10/11/2012Westlaw,
e EXHIBIT
Not Reported in N.E.2d, 2001 WL 792715 (Ohio App. 8 Dist.)
(Cite as: 2001 WL 792715 (Ohio App. 8 Dist.))
Only the Westlaw citation is currently available.
CHECK OHIO SUPREME COURT RULES FOR.
REPORTING OF OPINIONS AND WEIGHT OF
LEGAL AUTHORITY.
Court of Appeals of Ohio, Eighth District,
Cuyahoga County.
DIRECTORY SERVICES GROUP, Plaintiff-
Appellant,
V.
STAFF B
Preview
IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO BUILT-RITE BOX & CRATE, INC., CASENO. 12-CV-0407 i Plaintiff, JUDGE WIEST vs. ' ' ' MAVERICK INNOVATIVE ! MAVERICK INNOVATIVE SOLUTIONS, LLC, 1 SOLUTIONS, LLC’S MOTION FOR | SUMMARY JUDGMENT Defendant. ' Now comes Defendant Maverick Innovative Solutions, LLC, by and through counsel, and, pursuant to Rule 56 of the Ohio Rules of Civil Procedure, hereby moves this Court for an Order granting it summary judgment as there are no issues of fact in dispute and Defendant is entitled to summary judgment as a matter of law. The reasons supporting said Motion are set forth in the Memorandum in Support attached hereto and made a part hereof. Respectfully submitted, ‘aul L. Jackson (0040198) pjackson@ralaw.com Karen D. Adinolfi (0073693) kadinolfi@ralaw.com Roetzel & Andress, LPA 222 South Main Street Akron, OH 44308 Telephone: 330.376.2700 Facsimile: 330.376.4577 Attorneys for Defendant MAVERICK INNOVATIVE SOLUTIONS, LLCMEMORANDUM IN SUPPORT I. FACTUAL BACKGROUND On November 14, 2011, Tim Seggerson, who was at the time acting as a purchasing agent for Maverick Stainless Fabrication, LLC contacted Plaintiff to order certain crates for utilization by Maverick Stainless Fabrication, LLC. (Seggerson Affidavit, attached hereto as Exhibit A). Mr. Seggerson was very clear in that telephone conversation that he was placing that order on behalf of Maverick Stainless Fabrication, LLC. Jd. Later that same day, Mr. Seggerson followed the telephone call up with a Purchase Order sent to Plaintiff. Jd. That Purchase Order provided that the crates were to be shipped to Maverick Stainless Fabrication, LLC and the bill for those crates was to be sent to Maverick Stainless Fabrication, LLC. (Seggerson Affidavit, Exhibit A-1). At no time did Mr. Seggerson every make any representation or statement that the goods were to be shipped to Maverick Innovative Solutions, LLC, which is a separate entity and was operated in a completely separate facility from 2008 onward. (Id.; Jackson Affidavit, attached hereto as Exhibit B). The crates were shipped to Maverick Stainless Fabrication, LLC and Maverick Stainless Fabrication, LLC used those crates in its operations. (Jackson Affidavit; Exhibit B). In late December of 2011, Huntington Bank, which held a lien as to all of Maverick Stainless Fabrication, LLC’s property, executed upon that lien and required all of Maverick Stainless Fabrication, LLC’s assets to be sold. Jd. Those assets were sold and there were not sufficient funds from that sale to even pay Huntington in full, let alone Plaintiff. Jd. Plaintiff was informed of the fact of the sale and the lack of assets by a letter sent in January of 2012. Jd. For that reason, Plaintiff was not paid for the crates. Notwithstanding those facts, Plaintiff has now commenced this action against Maverick Innovative Solutions, LLC, a completely separate entity from Maverick Stainless Fabrication, 2LLC. Jd. Plaintiff has alleged that Maverick Innovative Solutions, LLC breached a contract with Plaintiff and that Maverick Innovative Solutions, LLC has been unjustly enriched in this situation. (Plaintiff's Complaint, {J 25-31; 32-36, respectively). For the reasons stated herein, both of those claims fail as a matter of law given the undisputed facts of this case. Defendant Maverick Innovative Solutions, LLC is therefore now entitled to summary judgment. Il. LAW AND DISCUSSION A. Introduction. Ohio Rule of Civil Procedure 56(C) provides that “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 there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Civ.R. 56(C). The moving party, here Maverick Innovative Solutions, LLC, has the initial burden of pointing evidence of the type listed in Rule 56(C) which firmly demonstrates that the non-moving party, here Plaintiff, lacks evidence to support its claims. Dresher v. Burt (1996), 75 Ohio St. 3d 280, 293. Once Maverick Innovative Solutions, LLC has carried that burden, Rule 56(E) sets out the obligations of the adverse party, here Plaintiff. That Rule provides: an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party. Civ.R. 56(E). Unsupported allegations and pleadings do not suffice to allow a court to deny summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66. The adverse party must move beyond the pleadings.In the instant case, the undisputed evidence shows that no genuine issue of material fact exists as to any of Plaintiffs claims. Therefore, Defendant Maverick Innovative Solutions, LLC is now entitled to judgment as a matter of law. B. Plaintiff's Claim of a Breach of Contract Fails as a Matter of Law. In Count I of Plaintiff's Complaint, Plaintiff alleges that Plaintiff and Maverick Innovative Solutions, LLC entered into some sort of contract relative to the purchase of the crates and that Maverick Innovative Solutions, LLC has breached that contract. (Plaintiff's Complaint, §{] 26 and 28). Nothing could be further from the truth. As has been established by the evidence, the Purchase Order that was sent to Plaintiff stated that the goods were to be delivered to Maverick Steel Fabrication, LLC. (Seggerson Affidavit, Exhibit A). That Purchase Order also provided that the invoice was to be provided to, and payment would therefore be made by, Maverick Steel Fabrication, LLC. Jd. Finally, the crates were shipped to Maverick Steel Fabrication, LLC. It strains reason, therefore, for Plaintiff| to make any sort of arguments that there was a contract between it and Maverick Innovative Solutions, LLC relative to those crates. The Ohio Supreme Court has held that the “[e]ssential elements of a contract include an offer, acceptance, contractual capacity, and consideration (the bargain for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration.” Kostelnik v. Helper (2002), 96 Ohio St. 3d at Paragraph 16. Additionally, the Ohio Supreme Court held that a “meeting of the minds to the essential terms of the contract is a requirement to enforcing the contract.” Id., citing Episcopal Retirement Homes, Inc. v. Ohio Department of| Industrial Relations (1991), 61 Ohio St. 3d 366. In the instant case, the Purchase Order that was sent on behalf of Maverick Stainless Fabrication, LLC was for crates to be delivered to Maverick Stainless Fabrication, LLC. 4Payment for those crates was to be made by Maverick Stainless Fabrication, LLC. There was nothing conditional or in doubt about that submission. Plaintiff argues that the Purchase Order was actually faxed from Maverick Innovative Solutions, LLC. This argument is a red herring. If Plaintiff had any doubt about who the goods were being purchased by or to be delivered to (and from who that it could expect payment), Plaintiff should have sought clarification. It did not. There was therefore no meeting of the minds relative to any obligation by Maverick Innovative Solutions, LLC to make payment relative to the crates that were delivered to Maverick Stainless Fabrication, LLC. Under Ohio law, acceptance of an offer may be expressed by “word, sign, writing or act.” Nilavar v. Osborn (1998), 127 Ohio App. 3d 1, 12. The offer that was made in this case came from Maverick Stainless Fabrication, LLC. When Plaintiff shipped the crates to Maverick Stainless Fabrication, LLC with the understanding that Maverick Stainless Fabrication, LLC was going to be billed for those crates, it accepted that offer. That was in fact a contract in this matter, but that contract did not involve Maverick Innovative Solutions, LLC in any way. Therefore, Plaintiff's claim of breach of contract fails as a matter of law. Cc. Plaintiff's Claim of Unjust Enrichment Fails As a Matter of Law. In Count II of Plaintiff's Complaint, Plaintiff claims that Maverick Innovative Solutions, LLC has been unjustly enriched and, therefore, is somehow liable to Plaintiff. (Plaintiffs Complaint, {{ 33, 35). This claim, too, fails upon examination. Plaintiffs claim first fails as there can be no recovery under an unjust enrichment theory if there is an express contract between the parties. Hughes v. Oberholtzer (1954), 162 Ohio St. 330; Giles v. Hanning (2002) 2002 WL 1173512 (copy attached hereto as Exhibit C). Given that Plaintiff has alleged that there was an express contract between Plaintiff and MaverickInnovative Solutions, LLC (which, as established above, is simply not true), this independent reason negates Plaintiff's claim for unjust enrichment. The undisputed evidence in this case is that the crates were shipped to Maverick Stainless Fabrication, LLC and not Maverick Innovative Solutions, LLC. Moreover, Maverick Innovative Solutions, LLC did not receive any benefit since the crates were sent to Maverick Stainless Fabrication, LLC and utilized by Maverick Stainless Fabrication, LLC. (Jackson Affidavit, Ex. B). Plaintiff alleges that Maverick Innovative Solutions, LLC was unjustly enriched because it was involved in the sale of assets of Maverick Stainless Fabrication, LLC. (Plaintiffs Complaint, { 35). That is simply not true and Plaintiff has no evidence to support such an assertion. Maverick Innovative Solutions, LLC had nothing to do with that sale and received no monies from the sale of the assets of Maverick Stainless Fabrication, LLC. Jd. The doctrine of unjust enrichment provides an equitable remedy imposed to prevent injustice. Unjust enrichment occurs when a party receives a benefit which, in justice and equity belongs to another party. Adkins v. Thompson (1999), 1999 WL 689750. (copy attached hereto as Exhibit D). Ohio courts repeatedly have recognized that the elements of unjust enrichment are: 1. a benefit conferred by a plaintiff upon a defendant; 2. knowledge by the defendant of the benefit; and 3. retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment. Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St. 3d 179, 183. A party must be enriched and that enrichment must be unjust. Directory Services Group v. Staff Builders International, Inc. (2001), 2001 WL 792715. (copy attached hereto as Exhibit E). Finally, a plaintiff must showthat, under the circumstances, he or she has a superior equity so that would be unconscionable for the named defendant to retain the benefit. Katz v. Banning (1992), 84 Ohio App. 3d 543. This case law leaves no doubt as to why Plaintiff's claim of unjust enrichment fails. First of all, there was no benefit conferred by Plaintiff upon Maverick Innovative Solutions, LLC. The crates were constructed for Maverick Stainless Fabrication, LLC, were shipped to Maverick Stainless Fabrication, LLC., and were utilized by Maverick Stainless Fabrication, LLC. There was simply no benefit conferred upon Maverick Innovative Solutions, LLC. Also, Maverick Innovative Solutions, LLC retained no benefit relative to this situation. Plaintiffs claim of unjust enrichment apparently relates to monies that it claims that Maverick Innovative Solutions, LLC received from the sale of Maverick Stainless Fabrication, LLC. That allegation is simply false. (Jackson Affidavit, Ex. B). The evidence in this case is that Maverick Stainless Fabrication, LLC was sold because of the actions of its bank and that all of the proceeds of that sale went to that bank. Jd. Maverick Innovative Solutions, LLC, which was a separate entity, received no monies from that sale. Jd. There is no superior equity here by the Plaintiff. Again, it must be remembered that, should Plaintiff have had any doubts about its dealing with Maverick Stainless Fabrication, LLC, it could have insisted on some sort of guarantee or written assurance as to any entity other than Maverick Stainless Fabrication, LLC that would be paying. There are no documents evidencing that it did that and, for that reason, there was simply no benefit that Maverick Innovative Solutions, LLC received in this case. Therefore, Plaintiff's claim of unjust enrichment fails. Accord, Grothaus v. Warner (2008), 2008 WL 5265897, (copy attached hereto as Exhibit F). Ill. CONCLUSION The case before this Court comes down to two simple conclusions. Despite Plaintiffs creative pleadings, Plaintiffs claim of breach of contract against Maverick Innovative Solutions, 7LLC fails given the course of dealings between Plaintiff and another, separate entity relative to the crates in question. Moreover, Plaintiff's claim of unjust enrichment fails as a matter of law as well. WHEREFORE, for the reasons contained herein, Defendant Maverick Innovative Solutions, LLC respectfully requests its Motion for Summary Judgment granted. Respectfully submitted, Paul L. Jackson (0040198) pjackson@ralaw.com Karen D. Adinolfi (0073693) kadinolfi@ralaw.com Roetzel & Andress, LPA 222 South Main Street Akron, OH 44308 Telephone: 330.376.2700 Facsimile: 330.376.4577 Attorneys for Defendant MAVERICK. INNOVATIVE SOLUTIONS, LLC PROOF OF SERVICE A copy of the foregoing has been served via regular U.S. mail, postage prepaid, to the following on this | 84 day of October, 2012: John H. Schaeffer, Esq. Attorney for Plaintiff 225 North Market Street P.O. Box 599 A Z ttorney at law Wooster, OH 44691 6621351_1\110478.0016e@ @ EXHIBIT loa IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO BUILT-RITE BOX & CRATE, INC., CASE NO. 12-CV-0407 Plaintiff, JUDGE WIEST ' vs. t MAVERICK INNOVATIVE | AFFIDAVIT OF TIM SEGGERSON SOLUTIONS, LLC, ' \ Defendant. | Now comes Tim Seggerson who, after first being duly sworn accordingly to law deposes and states that he is of full legal age, has full knowledge of all events stated herein, and is competent to testify as to the matters set forth below. Further, Affiant states that: 1. I am currently employed in the purchasing department at Maverick Innovative Solutions, LLC. 2. I previously also performed purchasing functions for Maverick Stainless Fabrication, LLC, when that entity was in business. 3. Maverick Innovative Solutions, LLC and Maverick Stainless Fabrication, LLC were at all times separate companies. 4. In November of 2011, I placed an order on behalf of Maverick Stainless Fabrication, LLC with Built-Rite Box & Crate for certain crates to be used by Maverick Stainless Fabrication, LLC. 5. I was very clear in that telephone call that the order was being placed on behalf of© e Maverick Stainless Fabrication, LLC. 6. I then memorialized that discussion with a Purchase Order that I sent to Built-Rite Box & Crate. 7. That was my normal practice when placing orders. 8. A true and accurate copy of that Purchase Order is attached hereto as Exhibit 1. 9. That Purchase Order shows that the crates being order were to be shipped to and billed to Maverick Stainless Fabrication, LLC. 10. At no time did I ever say that any of the items listed on Exhibit 1 were to be used in any way by Maverick Innovative Solutions, LLC. 11. When I placed that order on behalf of Maverick Stainless Fabrication, LLC, I had no idea that Huntington Bank was going to take the actions as to that entity that Huntington Bank did. FURTHER AFFIANT SAYETH NAUGHT. TIM SEGGERSONSTATE OF OHIO ) ) SS: COUNTY OF ASHLAND _ ) BEFORE ME, A Notary Public, in and for said State, personally appeared TIM SEGGERSON, who acknowledges the signing of the foregoing instrument to be his free act and deed. IN WITNESS WHEREOF, | have hereunto set my hand and notarial seal at fisy laucl Ohio, this SM day of Oey , 2012. Not: ANN yy wey, “ny, S lr, MEGAN THIS MATHS 6620844_1.\110478.ave Statens Fbrertion 301 W. Prospect St. Smithville, OH 44677-0186 Telephone: 330/669-2631 Fax: 330/669-3188 EXHIBIT ! Purchase Order Order Number : 422120 Reprint BUILT-RITE BOX & CRATE 608 FREEDLANDER RD WOOSTER, OH 44691 Supplier: JOHN OR LINDA 330-263-0936 330-262-4252 Contact: Tel No: Fax No: Buyer: “| 400570 Supplier No. tL Ship via.” Maverick Stainless Fabrication, LLC 301 WEST PROSPECT SMITHVILLE, OH 44677 Ship to: Maverick Stainless Fabrication, LLC 301 WEST PROSPECT SMITHVILLE, OH 44677 Bill to: \ "FOB Type DESTINATION [ Stock Code / Description / Job CULLUM CRATE WITH SHELVES (ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE) Job # 631374 CULLUM CRATE WITHOUT SHELVES {ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE) Job # 631374 CULLUM CRATES WITH SHELVES (ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE) Job # 631375 CULLUM CRATES WITHOUT SHELVES {ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE) Job # 631375 CULLUM CRATES WITH SHELVES (ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE) Job # 631376 CULLUM CRATES WITHOUT SHELVES (ALL STAINLESS STEEL SHEET MUST HAVE PVC ONE-SIDE) Job # 631376 Last printed 8/22/2012 11:07:00 AM | Qty Ordered l jo Qo 20 vim | _UnitPrice | Extended | tem Due Date | "$0.00 14/18/14 & 103 ln ‘$0.00 133% EA $1,036.00 EA $916.00 1445/11 MAST EA $1,036.00 $0.00 io3b $0.00 1415/14 133 EA $916.00 $0.00 [oa EA $1,036.00 11/15/11 $0.00 4415114 133 EA $916.00 Ayo M0001 Page 1 of 2Purchase Order voc Stans Faetetion 301 W. Prospect St. N : 10 ‘in ate anes Order Number : 422120 Reprint Telephone: 330/669-2631 Fax: 330/669-3188 Supplier: BUILT-RITE BOX & CRATE Ship to: Maverick Stainless Fabrication, LLC 608 FREEDLANDER RD 301 WEST PROSPECT WOOSTER, OH 44691 SMITHVILLE, OH 44677 Contact: JOHN OR LINDA Billto: | Maverick Stainless Fabrication, LLC Tel No: 330-263-0936 301 WEST PROSPECT Fax No: 330-262-4252 SMITHVILLE, OH 44677 Buyer: "Ship Via. 100570 L. [ stock Code / Description / Job Qty Ordered | Uim | —_UnitPrice | Extended _| tem Due Date | WILL NEED CONFIRMATION OF THE DELIVERY DATE IN THE FORM OF A FAX. ANY DEVIATION FROM PRICES OR THIS DELIVERY DATE MUST BE NOTED ON THE FAX. PO PRICE |S FINAL, IF PRICE VARIES ON INVOICE, PO AMOUNT WILL BE PAID. 1. Show Maverick Stainless Fabrication, LLC PO number and Stock Code numbers on all packing lists and invoice documents. 2. All Maverick Stainless Fabrication, LLC terms & conditions apply unless otherwise agreed to in writing. 3. All shipments must be accompanied by an MSDS document, if applicable. 4. All metal shipments must be accompanied by a Certificate of Analysis. Authorized By: M 0002 Last printed 8/22/2012 11:07:00 AM Page 2 of 2e@ @ EXHIBIT ls IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO BUILT-RITE BOX & CRATE, INC., CASE NO, 12-CV-0407 ' ' Plaintiff, ' JUDGE WIEST vs. MAVERICK INNOVATIVE | AFFIDAVIT OF KEITH JACKSON SOLUTIONS, LLC, 1 Defendant. Now comes Keith Jackson who, after first being duly sworn accordingly to law deposes and states that he is of full legal age, has full knowledge of all events stated herein, and is competent to testify as to the matters set forth below. Further, Affiant states that: 1. I am currently employed by Maverick Innovative Solutions, LLC and hold the position of President of Operations. 2. I was previously employed at Maverick Stainless Fabrication, LLC in Smithville, Ohio. 3. Maverick Innovative Solutions, LLC and Maverick Stainless Fabrication, LLC were operated as two separate businesses at all times. 4. Those entities did share at times some functions such as purchasing. 5. When items were purchased, it is my belief that it was always made very clear to which entity the items were to be shipped. 6. Maverick Innovative Solutions, LLC operated at the Smithville, Ohio address@ @ until April 23, 2008. 7. After that date, the only entity that used the Smithville, Ohio facility or address was Maverick Stainless Fabrication, LLC. 8. In 2011, Huntington Bank had a lien as to all of Maverick Stainless Fabrication, LLC.’s assets. 9. Huntington Bank executed on that lien in late 2011. 10. Huntington Bank caused all of the assets of Maverick Stainless Fabrication, LLC to be sold. 11. The proceeds from that sale were insufficient to pay Huntington Bank in full. Therefore, there were no funds available to pay general creditors. 12. Maverick Innovative Solutions, LLC had nothing to do with that sale and certainly received no monies from that sale. 13. It is my understanding that all of the creditors of Maverick Stainless Fabrication, LLC were informed of that fact by a letter sent out by counsel for Maverick Stainless Fabrication, LLC on January 25, 2012. A true and accurate copy of that notification letter is attached hereto as Exhibit 1. FURTHER AFFIANT SAYETH NAUGHT.STATE OF OHIO ) ) SS: COUNTY OF ASHLAND _ ) BEFORE ME, A Notary Public, in and for said State, personally appeared KEITH JACKSON, who acknowledges the signing of the foregoing instrument to be his free act and deed. IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal at Ashland Ohio, this 15? day of Octokoer 2012. MU Notarfj Public WWE yt Ny Sener. Ug, MEGAN MATHIS OTARY PUBLIC, Expires Aug. 2, 2015EXHIBIT Tv , DO3-7218 yene news A McCARTHY LEONARD KAEMMERER, L.C. C. ATTORNEYS AT LAW Co 400 SouTH Woons MILL Roab, Surre 250 Py CHESTERFIELD, MISSOURI 63017-3481 314-392-5200 / FAX 314-392-5221 www.miklaw.com ‘THOMAS W, MCCARTHY DT JAMES P, TOWEY, JR.’ MARK G. MCLEAN* E-KAEMMERER Toppa. ° ANDREW M. LAMMERT” ANDREW B. LEONARD ROBERT A. MILLER* $. ROGER DENNY, rE. JAMES R. WALSH" LAURA H. STOBIE ROBERT L. STRILER* KRISTEN L. MALY** AMANDA M. HAGER ‘MATTHEW D. MENGHINI**** PETER A. ROTE ‘TANYA CHARUMILIND STEPHEN J. BRYAN M. KAEMMERER ‘TIMOTBY J. AHRENBOERSTERBAEUMER LICENSED IN ILLINOIS ALSO LICENSED IN INDIANA ‘s*** ALSO LICENSED IN COLORADO January 25, 2012 Creditor of Maverick Stainless Fabrication, LLC Please be advised that the undersigned and this Firm represent Maverick Stainless Fabrication, LLC (“Company”). The Company has ceased operations and has sold all of its assets. The Company has substantial secured debt. The proceeds from the sale were insufficient to satisfy the secured creditors in full. Therefore, there will not be funds available to pay unsecured or general creditors. It is my understanding that you are currently a general creditor of the Company. As indicated, there will be no funds available to make payment to you as relates to the amounts due and owing from the Company to you. Should you have any questions with respect to the foregoing, please contact me: Please do not contact the Company or any of its principals. Very truly yours, McCARTHY, LEONARD & MMERER, L.C. Stephen J. Smith SJS:pn JAN 3.9 RECS Built-Rite 0005Westlaw, Page 1 Not Reported in N.E.2d, 2002 WL 1173512 (Ohio App. 11 Dist.), 2002 -Ohio- 2817 (Cite as: 2002 WL 1173512 (Ohio App. 11 Dist.)) c CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY. Court of Appeals of Ohio, Eleventh District, Portage County. Neumond GILES, Plaintiff-Appellant, v. Barbara HANNING, Defendant-Appellee. No. 2001-P-0073. May 31, 2002. Father filed action for accounting against daughter, his attorney-in-fact, claiming unjust en- richment, and daughter counterclaimed for funds she expended in caring for father. After bench trial, the Court of Common Pleas, Portage County, entered judgment for daughter on principal claim and for father on counterclaim. Father appealed. The Court of Appeals, Grendell, J., held that daugh- ter was not unjustly enriched. Affirmed. West Headnotes [1] Implied and Constructive Contracts 205H 55 205H Implied and Constructive Contracts 205HI Nature and Grounds of Obligation 205HI(D) Effect of Express Contract 205HkSS k. In General. Most Cited Cases There can be no recovery under the theory of unjust enrichment if there is an express agreement between the parties. [2] Implied and Constructive Contracts 205H C333 205H Implied and Constructive Contracts 205HI Nature and Grounds of Obligation 205HI(A) In General 205Hk2 Constructive or Quasi Contracts 205Hk3 k. Unjust Enrichment. Most Cited Cases Daughter was not unjustly enriched by funds father contributed toward construction of addition to daughter's house; father agreed to pay for addi- tion, which was constructed solely for his care. [3] Implied and Constructive Contracts 205H e333 205H Implied and Constructive Contracts 205HI Nature and Grounds of Obligation 205HI(A) In General 205Hk2 Constructive or Quasi Contracts 205Hk3 k. Unjust Enrichment. Most Cited Cases The doctrine of unjust enrichment provides an equitable remedy imposed to prevent injustice. [4] Implied and Constructive Contracts 205H 3 205H Implied and Constructive Contracts 20SHI Nature and Grounds of Obligation 205HI(A) In General 205Hk2 Constructive or Quasi Contracts 205Hk3 k. Unjust Enrichment. Most Cited Cases “Unjust enrichment” occurs when a party re- ceives a benefit which, in justice and equity, be- longs to another. [5] Implied and Constructive Contracts 205H 3 205H Implied and Constructive Contracts 205HI Nature and Grounds of Obligation 205HI(A) In General 205Hk2 Constructive or Quasi Contracts 205Hk3 k. Unjust Enrichment. Most Cited Cases The elements of unjust enrichment are: (1) a benefit conferred by a plaintiff upon a defendant, © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. EXHIBIT Cc http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07&destination=atp&mt=W... 10/11/2012http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07 &destination=atp&mt=W... e@ Page 3 of 6 Page 2 Not Reported in N.E.2d, 2002 WL 1173512 (Ohio App. 11 Dist.), 2002 -Ohio- 2817 (Cite as: 2002 WL 1173512 (Ohio App. 11 Dist.)) (2) knowledge by the defendant of the benefit, and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment. [6] Implied and Constructive Contracts 205H e333 205H Implied and Constructive Contracts 205HI Nature and Grounds of Obligation 205HI(A) In General 205Hk2 Constructive or Quasi Contracts 205Hk3 k. Unjust Enrichment. Most Cited Cases For a claim of unjust enrichment to lie, a party must be enriched, and that enrichment must be un- just. {7] Implied and Constructive Contracts 205H 3 205H Implied and Constructive Contracts 20S5HI Nature and Grounds of Obligation 205HI(A) In General 205Hk2 Constructive or Quasi Contracts 205Hk3 k. Unjust Enrichment. Most Cited Cases A plaintiff claiming unjust enrichment must show that, under the circumstances, he or she has a superior equity, so that it would be unconscionable for the defendant to retain a benefit; further, a court must consider whether the defendant was the party responsible for the plaintiffs detrimental position. [8] Appeal and Error 30 €=71012.1(8) 30 Appeal and Error 30XVI Review 30XVI(I) Questions of Fact, Verdicts, and Findings 30XVI(1)3 Findings of Court 30k1012 Against Weight of Evidence 30k1012.1 In General 30k1012.1(7) Particular Cases and Issues 30k1012.1(8) k. Contracts in General; Insurance; Sales. Most Cited Cases A trial court's decision regarding unjust enrich- ment will not be reversed if it is supported by the manifest weight of the evidence. [9] Appeal and Error 30 €=931(1) 30 Appeal and Error 30XVI Review 30XVI(G) Presumptions 30k931 Findings of Court or Referee 30k931(1) k. In General. Most Cited Cases Appeal and Error 30 €=71012.1(5) 30 Appeal and Error 30XVI Review 30XVI(I) Questions of Fact, Verdicts, and Findings 30XVI(I)3 Findings of Court 30k1012 Against Weight of Evidence 30k1012.1 In General 30k1012.1(5) k, Weight. Most Cited Cases A reviewing court must be guided by a pre- sumption that the findings of the trier of fact were correct; accordingly, a judgment supported by some competent, credible evidence going to all the essen- tial elements of the case will not be reversed as be- ing against the manifest weight of the evidence. Manifest Civil Appeal from the Court of Common Pleas, Case No. 99 CV 0111.Atty. Kenneth Wood, Mace- donia, OH, for Plaintiff-Appellant. Atty. Joseph Giulitto, Giulitto & Berger, Ravenna, OH, for Defendant-Appellee. DIANE V. GRENDELL, J. *1 {§ 1} Plaintiff-appellant, Neumond Giles (“appellant”), appeals from the decision of the Port- age County Court of Common Pleas finding appel- lant did not sustain his burden of proof in showing defendant-appellee, Barbara Hanning (“Hanning”), © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 10/11/2012@ Page 4 of 6 Page 3 Not Reported in N.E.2d, 2002 WL 1173512 (Ohio App. 11 Dist.), 2002 -Ohio- 2817 (Cite as: 2002 WL 1173512 (Ohio App. 11 Dist.)) retained funds which were lawfully his and be- nefited from funds expended for an addition to her home. {J 2} On February 8, 1999, appellant filed a complaint for an accounting against Hanning, his stepdaughter. In the complaint, appellant averred he gave Hanning a general power of attorney on June 6, 1997, causing her to become his agent and creat- ing a fiduciary relationship between the two. Ap- pellant claimed Hanning entered into a series of transactions, resulting in her holding over $100,000 of his funds, which she refused to return. Appellant asked the court to require Hanning to render an ac- counting, account for the funds, and return the funds, plus interest. {§ 3} On March 9, 1999, Hanning answered and counterclaimed for monies she expended in constructing an addition to her home in order to fa- cilitate caring for appellant, who required around the clock nursing care. Hanning asked to be reim- bursed for the reasonable value of the services she rendered to appellant while he resided in her home. {4 4} The parties stipulated Hanning sold ap- pellant's residence and van because appellant would not be able to care for himself or live independ- ently. Hanning admitted to possessing $72,162.32 of appellant's funds. The parties agreed a $40,000 addition was built on the Hanning home in order to meet the living needs of appellant. Appellant paid $20,000 of the cost of the addition. Appellant lived with Hanning from June 15, 1997 until April 24, 1998. Hanning provided around the clock care for appellant for several months. The power of attorney was revoked on May 26, 1998. {§ 5} The matter came before the court for a bench trial on March 20, 2001. Appellant denied agreeing to financing any of the addition to the Hanning home. Appellant claimed Hanning took $153,000 from him. Hanning testified appellant did discuss the addition with her, with the understand- ing he could live there as long as he wished. Han- ning denied having any need for an addition to her residence other than for the use of appellant. Han- ning admitted there was no agreement that appel- lant would pay her for his care while he lived with her. {4 6} On March 27, 2001, the trial court issued its judgment entry. The court found appellant did authorize the sale of his home and the construction of the addition. The court stated the addition only added $20,000 in value to Hanning's residence, or the same amount she expended on the project. The trial court found in favor of Hanning as to appel- lant's claims. Because there was no agreement between the parties that appellant would pay Han- ning for his care, the trial court found for appellant on the counterclaim. On April 6, 2001, appellant filed a motion to amend and supplement the court's conclusions of law or, in the alternative, a motion for new trial. Appellant asked that he receive at least $10,000 as half of the increase in value to the Hanning home. On June 18, 2001, the trial court overruled the motion. Appellant has appealed the trial court's judgment. On November 30, 2001, ap- pellant's attorney filed a suggestion of death with this court, stating appellant died on October 20, 2001. On December 24, 2001, this court ordered the appeal to continue as if appellant was not deceased. *2 {§ 7} Appellant assigns the following errors for review: {4 8} “[1.] The trial court erred to the prejudice of plaintiff-appellant as a matter of law in not awarding him at least $10,000.00 based upon evid- ence that he contributed $20,000.00 to construct an addition costing $40,000.00 to defendant-appellee's home. {§ 9} “[2.] The trial court's decision is against the manifest weight of the evidence.” {J 10} Appellant's assignments of error will be addressed together as appellant did not argue the assignments of error separately and similar issues of law and fact are involved. Appellant claims his $20,000 contribution to the construction of the ad- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2. westlaw.com/print/printstream.aspx?rs=WL W 12.07 &destination=atp&mt=W... 10/11/2012e@ Page 5 of 6 Page 4 Not Reported in N.E.2d, 2002 WL 1173512 (Ohio App. 11 Dist.), 2002 -Ohio- 2817 (Cite as: 2002 WL 1173512 (Ohio App. 11 Dist.)) dition resulted in Hanning being unjustly enriched. Appellant argues that Hanning retains the use and enjoyment of the addition to her benefit. Appellant further asserts the trial court's judgment was against the manifest weight of the evidence. {J 11} Appellant is arguing Hanning was un- justly enriched by the addition to her home, con- structed, at least partially, with his funds. The trial court's judgment entry of March 27, 2001, found that the parties agreed to build the addition, using $20,000 of appellant's funds. The court also found Hanning transferred the balance of appellant's funds to him at a bank where the transfer was witnessed and approved. Further, on March 15, 2001, the parties stipulated that appellant consented to the ad- dition being made to the Hanning home and that ap- pellant consented to the use of $20,000 of his money to assist in the construction costs. [1][2] {4 12} There can be no recovery under the theory of unjust enrichment if there is an ex- press agreement between the parties. See Hughes v. Oberholtzer (1954), 162 Ohio St. 330, 123 N.E.2d 393; Nye v. Craig (June 30, 1994), 11th Dist. No. 93-P-0094, 1994 Ohio App. LEXIS 2910. Accord- ing to the parties’ stipulations, appellant agreed to provide funds for the addition. This express agree- ment negates any recovery by appellant under the doctrine of unjust enrichment. [3][4][5][6][7] {| 13} Even if appellant could pursue his theory that Hanning was unjustly en- riched by the addition to her home through the par- tial use of his funds, appellant's argument still must fail. The doctrine of unjust enrichment provides an equitable remedy imposed to prevent injustice. Banks v. Nationwide Mut. Fire Ins. Co. (Nov. 28, 2000), 10th Dist. No. 99AP-1413, 2000 Ohio App. LEXIS 5504. Unjust enrichment occurs when a party receives a benefit which, in justice and equity, belongs to another. Adkins v. Thompson (Aug. 20, 1999), 11th Dist. No. 98-P-0045, 1999 Ohio App. LEXIS 3882. The elements of unjust enrichment are: “(1) a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the de- fendant under circumstances where it would be un- just to do so without payment.” Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183, 465 N.E.2d 1298. A party must be enriched, and that enrichment must be unjust. Directory Services Group v. Staff Builders Int'l, Inc. (July 12, 2001), 8th Dist. No. 78611, 2001 Ohio App. LEXIS 3108. The plaintiff must show that, under the circum- stances, he or she has a superior equity so that it would be unconscionable for the defendant to retain the benefit. Katz v. Banning (1992), 84 Ohio App.3d 543, 617 N.E.2d 729. Further, a court must consider whether the defendant was the party re- sponsible for the plaintiff's detrimental position. There must be a tie of causation between the loss to the plaintiff and the benefit to the defendant. U.S. Health Practices, Inc. v. Byron Blake, M.D., Inc. (Mar. 22, 2001), 10th Dist. No. OOAP-1002, 2001 Ohio App. LEXIS 1291. *3 [8][9] {9 14} A trial court's decision regard- ing unjust enrichment will not be reversed if it is supported by the manifest weight of the evidence. Dixon vy. Smith (1997), 119 Ohio App.3d 308, 318, 695 N.E.2d 284. A reviewing court must be guided by a presumption that the findings of the trier of fact were correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. Ac- cordingly, a judgment, which is supported by some competent, credible evidence going to all the essen- tial elements of the case, will not be reversed as be- ing against the manifest weight of the evidence. Id. {§ 15} Appellant's stance is that he should be reimbursed for half of the equity increase in the Hanning residence. Appellant maintains each party contributed half of the construction cost of the addi- tion but Hanning retains the full benefit, while he received no benefit. {{ 16} The record shows, and the parties’ stipu- lated, that the sole purpose of the addition was to accommodate appellant's care. Hanning and her family lived in the residence for years without needing an addition. Appellant was free to stay with © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07&destination=atp&mt=W... 10/11/2012e@ e@ Page 6 of 6 Page 5 Not Reported in N.E.2d, 2002 WL 1173512 (Ohio App. 11 Dist.), 2002 -Ohio- 2817 (Cite as: 2002 WL 1173512 (Ohio App. 11 Dist.)) Hanning in the addition but voluntarily chose to leave. Hanning was not the party responsible for appellant's expenditure. Rather, appellant's physical condition and needs were the catalyst for the de- cision to add to the home. Hanning's enrichment, under these circumstances, hardly was unjust. She cared for appellant and expended funds to build an addition because of appellant's presence in her home and his poor physical condition. {{ 17} Based upon the record, the decision of the trial court is supported by the manifest weight of the evidence. Appellant's first and second assign- ments of error are overruled. The judgment of the Portage County Court of Common Pleas is af- firmed. ROBERT A. NADER, J., concur. Ohio App. 11 Dist.,2002. Giles v. Hanning Not Reported in N.E.2d, 2002 WL 1173512 (Ohio App. 11 Dist.), 2002 -Ohio- 2817 END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07&destination=atp&mt=W... 10/11/2012Westlaw. e@ EXHIBIT lp Page | Not Reported in N.E.2d, 1999 WL 689750 (Ohio App. 11 Dist.) (Cite as: 1999 WL 689750 (Ohio App. 11 Dist.)) Only the Westlaw citation is currently available. CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY. Court of Appeals of Ohio, Eleventh District, Port- age County. Harold K. ADKINS, d.b.a. A & S BRICKLAY- ERS, INC., Plaintiff-Appellee, Vv. Woodson Mark THOMPSON, et al., Defendants- Appellees, Johns-Eagon Company, Defendant-Appellant. No. 98-P-0045. Aug. 20, 1999. Civil Appeal from the Court of Common Pleas, Case No. 95 CV 0554. ATTY. THOMAS R. BUCHANAN, Ravenna, OH (For Plaintiff-Appellee). ATTY. DAVID E. WILLIAMS, Kent, OH (For De- fendants-Appellees). ATTY. JOHN CURTIS ALBERTI, Akron, OH (For Defendant-Appellant). Hon. DONALD R. FORD, P.J., Hon. ROBERT A. NADER, J., Hon. WILLIAM M. O'NEILL, J. OPINION O'NEILL, J. *1 Appellant, Johns-Eagon Company (“Johns-Eagon”), has appealed a decision of the Portage County Common Pleas Court denying its motion to conform the pleadings to the evidence in a contract case involving the construction of a home. The following facts are relevant to a determ- ination of this appeal. Appellees, Mark and Christine Thompson (“the Thompsons”), were in the process of building a new home in Streetsboro, Ohio. As part of that pro- cess, they contracted with appellee, Harold K. Adkins, d.b.a. A & S Bricklayers, Inc. (“A & S”), on July 30, 1994 to install the brick on the outside of the home. A & S then contracted with Johns- Eagon to supply the brick needed for the job. On or about November 16, 1994, the first load of 6,020 bricks was delivered by Johns-Eagon to the job site. A & S paid the Johns-Eagon driver $2,475.35 for those bricks. By November 21, 1994, a second load of bricks was required. Once again, Johns-Eagon made the delivery and was paid $2,475.35 by A & S. After 4,700 of the bricks from the second load had been laid, the Thompsons noticed that the second load of bricks did not match the bricks from the first load. Johns-Eagon admitted that it de- livered the wrong brick but claimed that A & S should have realized the mistake when it started laying the brick. David Derr from Derr Brick, a di- vision of Boral Brick, who had supplied the brick to Johns-Eagon, determined that the second load of bricks had come from a different run than the first load and that the second load of bricks had a coars- er texture than those in the first load. A dispute arose as to who was going to pay for the mistake. As a result, the Thompsons did not pay A & S for their work and, consequently, A & S stopped work on the project. On February 27, 1995, the Thompsons termin- ated the contract with A & S because of its refusal to continue to work on the project. The Thompsons also contacted Boral Brick (“Boral”), who agreed to reimburse the Thompsons for the cost of removing the wrong brick and, additionally, gave the Thompsons a discount on the purchase price of brick to finish their house. On July 31, 1995, A & S filed a mechanics lien against the Thompsons’ home and then filed a fore- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07&destination=atp&mt=W... 10/11/2012@ Page 3 of 4 Page 2 Not Reported in N.E.2d, 1999 WL 689750 (Ohio App. 11 Dist.) (Cite as: 1999 WL 689750 (Ohio App. 11 Dist.)) closure action against the Thompsons. The Thompsons filed a counterclaim against A & S for breach of contract and negligence. Subsequently, on May 21, 1996, A & S moved the trial court to consolidate the instant matter with Portage County Case No. 96 CV 405, a case in which A & S had filed a complaint against Johns-Eagon based upon breach of contract and negligently delivering the wrong brick to the job site. The trial court granted the motion to consolidate on June 17, 1996. On March 10, 1997, the claims of all parties were tried together before a magistrate in the trial court. On June 23, 1997, the magistrate issued his decision. Concerning the issue of the wrong brick, the magistrate determined that the Thompsons should not be held responsible for the cost of the wrong brick or the labor to install the wrong brick. The magistrate found that Johns-Eagon was liable to A & S for the cost of the wrong brick and the labor to install the wrong brick. However, the ma- gistrate than incorrectly included in the award in fa- vor of A & S against the Thompsons the cost of the wrong brick and the labor for installing the wrong brick. *2 Both Johns-Eagon and the Thompsons filed objections to the magistrate's report. On October 15, 1997, the trial court sent the matter back to the magistrate for further findings of facts and conclu- sions of law pertaining to the aforementioned ob- jections. On February 24, 1998, the magistrate is- sued a supplemental decision in which he made it clear that Johns-Eagon was solely responsible for the delivery of the wrong brick. Thus, the cost of the wrong brick as well as the labor to install it was deducted from the award against the Thompsons. On March 11, 1998, Johns-Eagon filed a mo- tion to conform its pleadings to the evidence, in ad- dition to objections to the magistrate's supplemental decision. On March 23, 1998, the trial court over- ruled the objections and denied the motion of Johns-Eagon to conform its pleadings to the evid- ence. The trial court then adopted the magistrate's supplemental decision. Appellant, Johns-Eagon, timely filed a notice of appeal and has now set forth the following as- signments of error: “1, The trial court erred to the prejudice of De- fendant-Appellant in overruling its motion to amend its pleadings to conform to the evidence presented at trial. “2. The trial court erred to the prejudice of De- fendant-Appellant by adopting the Supplemental Magistrate Decision, which refused to consider De- fendant-Appellant's claims of unjust enrichment against Defendant-Appellees Thompsons.” In the first assignment of error, Johns-Eagon contends that the trial court erred in overruling its motion to amend its pleadings to conform to the evidence presented at trial. In the second assign- ment of error, Johns-Eagon asserts that the trial court erred by adopting the magistrate's supple- mental decision, which did not consider its claims of unjust enrichment against the Thompsons. These assignments of error are interrelated and, therefore, will be addressed in a consolidated manner. Civ.R. 15(B) addresses amendments to con- form pleadings to the evidence. It provides, in rel- evant part: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. Failure to amend as provided herein does not affect the result of the trial of these issues.” Additionally, the decision to grant or deny a motion to amend pleadings to conform to the evid- ence is within the sound discretion of the trial court. Spisak v. McDole (1984), 15 Ohio St.3d 62, 63, 472 N.E.2d 347; James Place Properties, Inc. v. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07 &destination=atp&mt=W... 10/11/2012e Page 4 of 4 Page 3 Not Reported in N.E.2d, 1999 WL 689750 (Ohio App. 11 Dist.) (Cite as: 1999 WL 689750 (Ohio App. 11 Dist.)) Madison Twp. Bd. of Trustees (Sept. 25, 1998), Lake App. No. 97-L-143, unreported, at 12. In or- der to establish an abuse of discretion, an appellant must show that the trial court's ruling was unreas- onable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. *3 In the present case, Johns-Eagon sought to amend its pleadings to include a cross-claim against the Thompsons based upon the theory of unjust en- richment. Specifically, Johns-Eagon argues that the Thompsons entered into a settlement agreement with Boral under which the Thompsons were reim- bursed for the cost of the wrong brick and the cost of installing the wrong brick. Therefore, the Thompsons, not Johns-Eagon, should be held liable to A & S for that money to cover those costs. Oth- erwise, the Thompsons will be unjustly enriched. We disagree. A review of the settlement agreement between Boral and the Thompsons reveals that the money received by the Thompsons was to cover the cost of removing the wrong brick and the installation of correct brick in its place. The removal and reinstall- ation was performed by another subcontractor hired and paid by the Thompsons after A & S was dis- charged for failing to continue the job. The settle- ment agreement did not involve the original cost of the wrong brick or the cost of installing the wrong brick. Hence, Johns-Eagon's argument that the parties had expressly or impliedly tried this issue at trial is not supported by the record. Additionally, Johns-Eagon claims that without permitting them to amend its pleading resulted in the Thompsons being unjustly enriched by the funds received from Boral. This is simply not true. Unjust enrichment occurs when a party receives some benefits which in justice and equity belong to someone else. Liberty Mut. Ins. Co. v. Indus. Comm - (1988), 40 Ohio St.3d 109, 110-11], 532 N.E.2d 124. In the case sub judice, it is clear that the Thompsons did not receive any benefits that right- fully belonged to Johns-Eagon. Because of the mix- up, the Thompsons were forced to hire a subcon- tractor to remove the non-conforming brick and in- stall the proper brick. That is an expense that they should not have incurred. Boral, recognizing its part in the mix-up, agreed to pay those expenses. Boral did not agree to assume the cost of the wrong brick or the cost of installing the wrong brick. Thus, this is not a case of unjust enrichment. Based upon the foregoing analysis, the trial court did not err in overruling Johns-Eagon's mo- tion to amend its pleadings to conform to the evid- ence. Nor was it error for the trial court to adopt the magistrate's supplemental decision. Both assign- ments of error are, therefore, without merit. The judgment of the trial court is hereby af- firmed. FORD, P.J., NADER, J., concur. Ohio App. 11 Dist.,1999. Adkins v. Thompson Not Reported in N.E.2d, 1999 WL 689750 (Ohio App. 11 Dist.) END OF DOCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WL W 12.07&destination=atp&mt=W... 10/11/2012Westlaw, e EXHIBIT Not Reported in N.E.2d, 2001 WL 792715 (Ohio App. 8 Dist.) (Cite as: 2001 WL 792715 (Ohio App. 8 Dist.)) Only the Westlaw citation is currently available. CHECK OHIO SUPREME COURT RULES FOR. REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY. Court of Appeals of Ohio, Eighth District, Cuyahoga County. DIRECTORY SERVICES GROUP, Plaintiff- Appellant, V. STAFF B