[Cite as J. Bowers Constr. Co., Inc. v. Gilbert, 2014-Ohio-3576.]


STATE OF OHIO                     )                          IN THE COURT OF APPEALS
                                  )ss:                       NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

J. BOWERS CONSTRUCTION CO., INC.                             C.A. No.   27044

        Appellee

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
EDWARD L. GILBERT, et al.                                    COURT OF COMMON PLEAS
                                                             COUNTY OF SUMMIT, OHIO
        Appellants                                           CASE No.   CV 2011 08 4841

                                  DECISION AND JOURNAL ENTRY

Dated: August 20, 2014



        WHITMORE, Judge.

        {¶1}     Defendant-Appellants, Edward and Delphenia Gilbert (collectively, “the

Gilberts”), appeal from the judgment of the Summit County Court of Common Pleas. This Court

affirms.

                                                        I

        {¶2}     In August 2009, the Gilberts received a call from their home security company

notifying them that an alarm had been activated. When the Gilberts arrived home, the police and

fire department were already on scene. The Gilberts discovered their home was flooded from a

burst water pipe in an upstairs room. Someone from the fire department recommended J.

Bowers Construction Company, Inc. (“Bowers”) to do emergency repairs.

        {¶3}     Bowers was contacted and sent an agent to the Gilberts’ that same day. Edward

Gilbert signed an authorization form for the emergency repairs and Bowers began work

immediately. The Gilberts had a home insurance policy with Travelers Insurance, and Travelers
                                                2


provided a written estimate for the repairs. At some point, it was determined that Bowers would

also do the necessary repairs to the home after the emergency repairs were completed. However,

the Gilberts did not sign any additional documentation.

       {¶4}    Over the next year-and-a-half, Bowers worked with the Gilberts and Travelers to

complete the repairs. During this process, the Gilberts chose not to repair certain things that

were covered by their insurance policy and to upgrade things that were not covered. While the

repairs were being made, Travelers issued partial payments to the Gilberts, and the Gilberts made

$65,000 in payments to Bowers. In February 2011, Travelers issued a final estimate totaling

$132,451.98. Bowers and Edward Gilbert met on March 2, 2011, and reviewed various credits

and charges for upgrades. Gilbert tendered a check for $6,624.89, and, it appears, both parties

believed the remaining balance of $67,451.98 would be paid by Travelers.

       {¶5}    In August 2011, having received no additional payments, Bowers filed a claim for

breach of contract and quantum meruit. The Gilberts counterclaimed alleging fraud, damage to

the property by the construction workers, and the use of substandard materials. After a bench

trial, the court entered a judgment in favor of Bowers for $67,451.98. The Gilberts now appeal

and raise seven assignments of error for our review.

                                                II

                               Assignment of Error Number One

       THE TRIAL COURT ERRED WHEN IT RULED THAT J. BOWERS WAS
       ENTITLED TO JUDGMENT BASED ON QUANTUM MERUIT WHEN IT
       ALREADY DETERMINED THAT THERE WAS AN EXPRESS CONTRACT.

       {¶6}    In their first assignment of error, the Gilberts argue that the court erred by

awarding judgment in favor of Bowers under the theory of quantum meruit because the court

found that there was an express contract between the parties.
                                                3


       {¶7}    The Gilberts’ first assignment of error raises a question of law, which this Court

reviews de novo. See Fuline v. Green, 9th Dist. Summit No. 26586, 2013-Ohio-2171, ¶ 6. In

conducting a de novo review, an appellate court does not give deference to the trial court’s

determination. Akron v. Frazier, 142 Ohio App.3d 718, 721 (9th Dist.2001).

       {¶8}    “A contract is generally defined as a promise, or a set of promises, actionable

upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity,

consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent

and legality of object and of consideration.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-

2985, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 414 (N.D.Ohio

1976). There is no valid contract where the parties have not had a meeting of the minds as to the

essential terms. See Minster Farmers Coop. Exchange Co., Inc. v. Meyer, 117 Ohio St.3d 459,

2008-Ohio-1259, ¶ 28.

       {¶9}    In the absence of a valid contract, a party may still recover under a quasi-contract

theory. “Recovery in quasi-contract prevents the defendant from unjustly enriching himself at

the expense of the plaintiff.” Bokar v. Lax, 9th Dist. Medina No. 2630-M, 1997 WL 557333, *2

(Sept. 3, 1997), citing Hughes v. Oberholtzer, 162 Ohio St.3d 330, 335 (1954). An example of a

quasi-contract claim is quantum meruit. See Hammontree & Associates, Ltd. v. Stephens, 9th

Dist. Wayne No. 2222, 1987 WL 15106, *2 (July 29, 1987).

       {¶10} Quantum meruit is an equitable remedy giving “rise to obligations imposed by

law, irrespective of the intentions of the parties, in order to prevent an injustice when one party

retains a benefit from another’s labors.” (Internal quotations and citations omitted.) In re

Suchodolski, 9th Dist. Lorain No. 10CA009833, 2011-Ohio-6333, ¶ 8, quoting In re Estate of

Kirkland, 175 Ohio App.3d 73, 2008-Ohio-421, ¶ 23 (2d Dist.). “Quantum meruit is generally
                                                 4


awarded when one party confers some benefit upon another without receiving just compensation

for the reasonable value of services rendered.” (Emphasis sic.)           Aultman Hosp. Assn. v.

Community Mut. Ins. Co., 46 Ohio St.3d 51, 55 (1989). To prevail on a claim of quantum

meruit, a plaintiff is required to show “(1) a benefit has been conferred by [the] plaintiff upon

[the] defendant; (2) the defendant had knowledge of the benefit; and (3) the defendant retained

the benefit under circumstances where it would be unjust to do so without payment.” In re

Suchodolski at ¶ 8, quoting Bldg. Industry Consultants, Inc. v. 3M Parkway, Inc., 182 Ohio

App.3d 39, 2009-Ohio-1910, ¶ 16 (9th Dist.).

       {¶11} Because a quasi-contract claim only exists when there is no valid contract, “a

party cannot claim that both an express contract and a quasi-contract exist over the same subject

matter.” (Emphasis omitted.) Champion Contracting Const. Co., Inc. v. Valley City Post No.

5563, 9th Dist. Medina No. 03CA0092-M, 2004-Ohio-3406, ¶ 25. “While it is true that a party

may not recover for the same services under both a contractual claim and a claim for quantum

meruit, a party is not barred from seeking alternative theories and recovering under a quantum

meruit theory if his contractual claim fails.” Bldg. Industry Consultants, Inc. at ¶ 17.

       {¶12} On September 12, 2009, the Gilberts received a call from their security company

that an alarm had been activated at their home. When the Gilberts arrived at their house, the

police and fire department were already there. The Gilberts opened the door and discovered that

their house was flooded from a burst water pipe. According to Edward Gilbert’s testimony,

someone from the fire department recommended Bowers to come out and perform emergency

repairs. There is some dispute about who actually contacted Bowers.             In any event, it is

undisputed that a representative of Bowers went to the Gilberts’ home that same day, and
                                               5


Edward Gilbert signed a document entitled “Access & Authorization for Emergency &

Temporary Repairs.” This authorization form provided:

       I hereby give access and authorization to J. Bowers Construction Inc. for the
       purpose of making necessary temporary emergency repairs to the above address
       as a result of 9-12-09, date of loss 9-12-09. It is my understanding that the
       services performed by J. Bowers Construction Inc. will be limited to those which
       are authorized by owner/agent or by my/our insurance company, unless other
       arrangements for payment are agreed upon in writing in advance. All charges will
       be based on time and material. All labor costs are charged portal to portal.

       {¶13} Stephen Hayes, Bowers’ project manager, testified that this authorization form

“g[a]ve [Bowers] permission to come into the home to do – dry-out mitigation.”            Hayes

explained that the emergency services performed at the Gilberts’ home involved “[w]ater

extraction, demolition, [and] dry-out.” Hayes further testified that these “emergency services”

did not involve the repairs to the home. According to Hayes, the emergency work, totaling

approximately $9,000, was completed and paid for.

       {¶14} Hayes testified that after the emergency repairs were complete, a request was

made for Bowers to perform repairs to the home. However, no contract for repairs was ever

drafted, and the Gilberts never signed any additional documentation. Over the next couple of

years, Hayes managed the repairs to the Gilberts’ home. In doing so, Hayes worked closely with

the Gilberts and the Gilberts’ insurance company, Travelers. Throughout the project Travelers

provided numerous estimates, at least some of which were shared with the Gilberts. The Gilberts

made decisions not to repair certain things that were covered under their insurance policy and

also to perform certain upgrades that were not covered.

       {¶15} The trial court found that “Mr. Gilbert entered into a contract with Bowers to

perform remedial work on the Gilbert home; that the contract was orally modified to include

upgrades to the kitchen countertops and the carpeting[.]” A review of the record supports the
                                                  6


finding that Edward Gilbert entered into contract for “necessary temporary emergency repairs.”

However, the record does not support a finding that a contract existed for the subsequent repairs

of the home. Hayes himself testified that the emergency services were separate and apart from

the repairs to the home.

       {¶16} While we conclude that the trial court erred in finding a valid contract for non-

emergency repairs existed, we also conclude that this error is not reversible under the facts of

this case. If an error is not prejudicial, an appellate court shall affirm the judgment of the trial

court. See Cook Family Invests. v. Billings, 9th Dist. Lorain Nos. 05CA008689 & 05CA008691,

2006-Ohio-764, ¶ 19.

       {¶17} The court ultimately found that “the Gilberts accepted the work performed and

materials provided and [that] Bowers [wa]s entitled to a judgment based on quantum meruit.”

After a careful review of the record, we agree. The record shows that Edward Gilbert was very

involved in selecting which repairs to make to the home. Further, Gilbert was corresponding

with Travelers and Hayes throughout the project about the insurance estimates and what was and

was not covered. Because we conclude that the court correctly determined that Bowers was

entitled to a judgment against the Gilberts based on a theory of quantum merit, the court’s

erroneous finding of a repair contract is not prejudicial.

       {¶18} The Gilberts’ first assignment of error is overruled.

                                Assignment of Error Number Two

       THE TRIAL COURT ERRED WHEN IT RULED THAT J. BOWERS WAS
       ENTITLED TO A JUDGMENT BASED ON QUANTUM MERUIT,
       ALTHOUGH J. BOWERS DID NOT PROVIDE SUFFICIENT EVIDENCE OF
       THE VALUE OF THE SERVICES RENDERED.
                                                7


       {¶19} In their second assignment of error, the Gilberts argue that Bowers failed to

provide sufficient evidence of the “reasonable value of the materials and services rendered.” We

disagree.

       {¶20} “In civil cases, as in criminal cases, the sufficiency of the evidence is

quantitatively and qualitatively different from the weight of the evidence.” Eastley v. Volkman,

132 Ohio St.3d 328, 2012-Ohio-2179, paragraph two of the syllabus. “‘[S]ufficiency’ is a term

of art meaning that legal standard which is applied to determine * * * whether evidence is legally

sufficient to support [a finding] as a matter of law.” (Alterations sic.) Raykov v. Raykov, 9th

Dist. Summit No. 26107, 2012-Ohio-2611, ¶ 8, quoting State v. Thompkins, 78 Ohio St.3d 380,

386 (1997). Sufficiency challenges the burden of production and is a test of adequacy. Eastley

at ¶ 11, quoting Thompkins at 386.

       {¶21} “Whether the evidence is legally sufficient to sustain a verdict is a question of

law.” Id. This Court reviews questions of law de novo. See Gugliotta v. Morano, 161 Ohio

App.3d 152, 2005-Ohio-2570, ¶ 56 (9th Dist.). In conducting a de novo review, this Court gives

no deference to the trial court’s legal conclusions. Lanning v. Stanford-Black, 9th Dist. Lorain

No. 09CA009561, 2009-Ohio-6022, ¶ 8. However, this Court will not reverse a trial court’s

factual finding if it is supported by competent, credible evidence. Maxwell v. Maxwell, 9th Dist.

Wayne No. 07CA0047, 2008-Ohio-1324, ¶ 6.

       {¶22} “The standard for review of the sufficiency of the evidence in a civil case is

similar to the standard for determining whether to sustain a motion for judgment notwithstanding

the verdict, which is whether the defendant is entitled to judgment as a matter of law when the

evidence is construed most strongly in favor of the prevailing party.” Warden v. Ohio Dept. of

Natural Resources, 10th Dist. Franklin No. 13AP-137, 2014-Ohio-35, ¶ 46, quoting In re J.B.,
                                                 8


10th Dist. Franklin Nos. 08AP-1108, 09AP-39, 08AP-1109 & 08AP-1122, 2009-Ohio-3083, ¶

20.

       {¶23} “To prove its claim [of quantum meruit], Bowers had to show that it conferred a

benefit on the [Gilberts], that they had knowledge of the benefit, and that they retained the

benefit under circumstances in which it would be unjust for them to do so without payment.”

Bowers Constr. Co., Inc. v. Chuparkoff, 9th Dist. Summit No. 24775, 2010-Ohio-419, ¶ 10.

Bowers also had to prove the reasonable value of the benefit conferred. Id., citing Stoebermann

v. Beacon Journal Publishing Co., 177 Ohio App.3d 360, 2008-Ohio-3769, ¶ 29 (9th Dist.).

       {¶24} The Gilberts argue that Bowers failed to provide sufficient evidence of the

reasonable value of the materials and services rendered.          Therefore, we limit our review

accordingly.

       {¶25} Stephen Hayes is an estimator with Bowers and served as the project manager for

the repairs to the Gilberts’ home. According to Hayes, Bowers specializes in insurance work.

Hayes testified that he has thirteen years of experience in writing estimates and currently writes

between 100 to 150 estimates a year. Hayes explained that if an insurance company is involved

in a case from the beginning, the insurance company will typically write the estimate.

       {¶26} Hayes testified that Bowers uses “Xactimate” when writing estimates. Hayes

stated that Xactimate is a software program that calculates the average cost of a repair based on

the county and the square footage. Hayes explained, “[i]f a wall needs to be torn out, you put in

that square footage of the wall and it calculates the pricing.” Hayes testified that the pricing used

by Xactimate is “somewhere in the middle of the pricing of the area” and is “basically an

industry standard.” Hayes further testified that most insurance companies write estimates in

Xactimate, but even those that do not “at least recognize what it is.”
                                                9


       {¶27} According to Hayes, an estimate is often modified throughout the project. For

example, it is common to have a situation where a homeowner does not want to make certain

repairs that are covered by the insurance policy and, at the same time, wants to make certain

upgrades that are not covered. In those circumstances, Hayes explained, “we’ll take what is in

the estimate and we’ll move things around to accommodate everybody.” In doing so, the

homeowner receives a credit for the work that is not done, which is then applied toward the cost

of any upgrade.

       {¶28} Hayes testified that the Gilberts had an insurance policy through Travelers and

that Travelers wrote the estimate for the repairs to the Gilberts’ home. Hayes further testified

that Travelers uses Xactimate in writing estimates. Travelers, working with the Gilberts and

Hayes, revised its estimate numerous times throughout the year-and-a-half project. In February

2011, the final estimate from Travelers was forty pages long and totaled $132,451.98. Hayes

testified that he went “through the estimate line by line by line” with Gilbert. As a result, Hayes

produced a typed, itemized list of credits, detailing the corresponding page and line number in

the estimate for which the credit was given. Additionally, the page contained a list of the various

charges for upgrades.

       {¶29} On March 2, 2011, Hayes and Gilbert met to review the itemized list of credits

and upgrade charges. According to Hayes, he agreed to two additional credits, handwrote them

on the sheet, and calculated the balance due. Hayes wrote on the sheet that the insurance

company owed $67,451.98, leaving a balance of $6,624.89. Gilbert immediately tendered a

check for $6,624.89 and signed the itemized list of credits and charges. Hayes testified that

because he had only received $65,000 from the Gilberts, he believed Travelers still owed

$67,451.98 to bring the total disbursement amount to the final estimate of $132,451.98.
                                                10


       {¶30} After a review of the record, we conclude Bowers provided sufficient evidence of

the reasonable cost of materials and services rendered. Bowers used Travelers’ written estimate

created through Xactimate. Hayes testified that the Xactimate software produces a mid-range

cost of repairs based on the county and square footage. Moreover, Hayes testified that Gilbert

agreed to the credits and upgrade charges on the itemized sheet when he signed the sheet and

tendered a check for the out-of-pocket expenses.

       {¶31} The Gilberts’ second assignment of error is overruled.

                              Assignment of Error Number Three

       THE TRIAL COURT ERRED WHEN IT RULED THAT J. BOWERS WAS
       ENTITLED TO A JUDGMENT BASED ON QUANTUM MERUIT AGAINST
       EDWARD GILBERT BECAUSE HE IS NOT THE OWNER OF THE
       RESIDENCE.

       {¶32} In the third assignment of error, Edward Gilbert argues that the court erred in

entering a judgment against him because Bowers “did not prove that it conferred a benefit upon

Edward Gilbert because he is not the owner of the property.” We disagree.

       {¶33} To prevail on a claim of quantum meruit, a plaintiff is required to show “(1) a

benefit has been conferred by [the] plaintiff upon [the] defendant; (2) the defendant had

knowledge of the benefit; and (3) the defendant retained the benefit under circumstances where it

would be unjust to do so without payment.” In re Suchodolski, 2011-Ohio-6333, at ¶ 8, quoting

Bldg. Industry Consultants, Inc., 182 Ohio App.3d 39, 2009-Ohio-1910, at ¶ 16. Quantum

meruit is intended to prevent “the defendant from unjustly enriching himself at the expense of

the plaintiff.” Bokar, 1997 WL 557333, at *2.

       {¶34} Knowing he was not the legal owner of the property, Gilbert signed the

emergency repair authorization. Additionally, he continued to work with Travelers and Hayes

for almost two years to repair the property and settle the related bills. Gilbert never informed
                                                 11


anyone involved that he did not legally own the property. While the property at issue is titled

solely in his wife’s name, there is no dispute that Edward Gilbert lives in the home with his wife.

Gilbert’s argument that he received no benefit from the repair of his primary residence simply

because he is not the person named on the deed is without merit.

       {¶35} The Gilberts’ third assignment of error is overruled.

                                Assignment of Error Number Four

       THE TRIAL COURT ERRED WHEN IT FOUND THAT THERE WAS A
       BINDING CONTRACT BETWEEN J. BOWERS AND EDWARD GILBERT,
       ALTHOUGH J. BOWERS FAILED TO PROVIDE THE REQUIRED THREE-
       DAY CANCELLATION NOTICE.

       {¶36} In their fourth assignment of error, the Gilberts argue that the trial court erred in

enforcing the contract between the Gilberts and Bowers because the contract failed to provide the

statutorily required three-day cancellation notice.

       {¶37} “A failure to provide a cancellation notice in a transaction covered by [The Home

Solicitation Act] constitutes a violation of the [Consumer Sales Practices Act] under R.C.

1345.02.” Garber v. STS Concrete Co., L.L.C., 8th Dist. Cuyahoga No. 99139, 2013-Ohio-2700,

¶ 19. Where there is a violation of R.C. 1345.02, “the consumer may, in an individual action,

rescind the transaction or recover the consumer’s actual damages * * *.” R.C. 1345.09(A). “The

Home Solicitation Act is designed to provide a consumer with a weapon against high pressure

sales tactics occurring in the home.” Carpet One Mentor, Inc. v. Bridge, 11th Dist. Lake No.

2006-L-005, 2007-Ohio-3028, ¶ 62.

       {¶38} In their counterclaim, the Gilberts requested damages based on fraud, damage

done to the property by the construction workers, and the use of substandard materials. The

Gilberts did not allege a violation of the Home Solicitation Act based on Bowers’ failure to
                                                 12


provide a three-day cancellation notice.      Because the Gilberts did not properly plead this

statutory violation, the court did not err in failing to award damages.

       {¶39} To the extent that the Gilberts argue that the court erred in enforcing the contract

because Bowers did not provide the three-day cancellation notice, we find this argument moot

because the judgment is affirmed base on quantum meruit, not on the enforcement of a contract.

       {¶40} The Gilberts’ fourth assignment of error is overruled.

                                Assignment of Error Number Five

       THE TRIAL COURT ERRED WHEN IT FAILED TO RULE THAT EDWARD
       GILBERT COULD RESCIND THE CONTRACT.

       {¶41} In their fifth assignment of error, the Gilberts argue that the court erred in finding

that they were not able to rescind the contract with Bowers.

       {¶42} Where there is a violation of the Consumer Sales Practices Act, “the consumer

may, in an individual action, rescind the transaction or recover the consumer’s actual damages *

* *.” R.C. 1345.09(A). However, “in any action for rescission, revocation of the consumer

transaction must occur within a reasonable time * * * and before any substantial change in

condition of the subject of the consumer transaction.” R.C. 1345.09(C).

       {¶43} The Gilberts argue that the court erred in not permitting them to rescind their

contract with Bowers. However, as discussed above, the Gilberts did not have a contract with

Bowers to repair the home. Therefore, there was no contract to rescind. Moreover, there is no

evidence in the record that the Gilberts ever sought to rescind the contract in the trial court. In

their counterclaim, the Gilberts requested damages based on fraud, damage done to the property

by the construction workers, and the use of substandard materials.

       {¶44} Assuming arguendo that the Gilberts had requested to rescind the transaction, the

statute requires that the buyer seek rescission prior to a “substantial change in condition.” See
                                                  13


R.C. 1345.09(C). Accord Garber, 2013-Ohio-2700, at ¶ 20, quoting Reichert v. Ingersoll, 18

Ohio St.3d 220, 224 (1985) (“rescission is not an appropriate remedy under the [Consumer Sales

Practices Act] where ‘there has been a substantial change in the subject of the consumer

transaction.’”). Here, Bowers had completed extensive repairs to the Gilberts’ home. Even if

the Gilberts had sought to rescind the transaction, we conclude that rescission would not be

appropriate because a substantial change in condition had already occurred.                See R.C.

1345.09(C).

       {¶45} The Gilberts’ fifth assignment of error is overruled.

                                  Assignment of Error Number Six

       THE TRIAL COURT ERRED WHEN IT FOUND THAT THERE WAS A
       BINDING CONTRACT, ALTHOUGH THE ALLEGED CONTRACT
       VIOLATED THE STATUTE OF FRAUDS.

       {¶46} In their sixth assignment of error, the Gilberts argue that the court erred in

enforcing a contract that did not satisfy the statute of frauds.

       {¶47} Because we have already concluded that there was no valid contract and that

Bowers was entitled to judgment based on quantum meruit, this assignment of error is moot and

we decline to address it. See App.R. 12(A)(1)(c).

                                Assignment of Error Number Seven

       THE TRIAL COURT ERRED WHEN IT RULED THAT TRAVELERS
       INSURANCE WAS NOT AN INDISPENSABLE PARTY.

       {¶48} In their seventh assignment of error, the Gilberts argue that the court erred in

finding that Travelers Insurance was not a necessary and indispensable party. We disagree.

       A person who is subject to service of process shall be joined as a party in the
       action if (1) in his absence complete relief cannot be accorded among those
       already parties, or (2) he claims an interest relating to the subject of the action and
       is so situated that the disposition of the action in his absence may (a) as a practical
       matter impair or impede his ability to protect that interest or (b) leave any of the
                                               14


       persons already parties subject to a substantial risk of incurring double, multiple,
       or otherwise inconsistent obligations by reason of his claimed interest, or (3) he
       has an interest relating to the subject of the action as an assignor, assignee,
       subrogor, or subrogee. If he has not been so joined, the court shall order that he
       be made a party upon timely assertion of the defense of failure to join a party as
       provided in Rule 12(B)(7).

Civ.R. 19(A). An indispensable party has been defined as:

       one whose absence seriously prejudices any party to the action or prevents the
       court from rendering any effective judgment between the parties, or is one whose
       interests would be adversely affected or jeopardized by the judgment rendered
       between the parties to the action. Mere avoidance of multiple litigation is not a
       sufficient basis to render one an indispensable party.

Englehart v. C.T. Taylor C., Inc., 9th Dist. Summit No. 19325, 1999 WL 1215110, *2, quoting

Layne v. Huffman, 43 Ohio App.2d 53, 59 (10th Dist.1974).

       {¶49} The Gilberts argue that “Bowers mainly dealt with Travelers Insurance with

regard to the goods purchased and services provided; therefore, it is a necessary and

indispensable party.” We disagree.

       {¶50} Bowers brought suit against the Gilberts to recover the costs associated with the

repairs it performed in the Gilberts’ home. Bowers had contact with Travelers Insurance to

discuss what repairs were necessary, determine what repairs were covered under the Gilberts’

policy, and to ensure the repair costs remained within the insurance estimate that had been

written by Travelers.     There is no evidence, however, of a contract between Bowers and

Travelers. The record shows that Bowers also worked closely with Edward Gilbert over the

course of the repairs. Gilbert received copies of at least some of the insurance estimates and

declined certain repairs that had been authorized by Travelers, opting instead to receive a credit

toward chosen upgrades.

       {¶51} At trial, Edward Gilbert testified that he had received money from Travelers for

the repairs to the home, but that he had concerns about whether the proper amount for the
                                                 15


building repair had been disbursed. Specifically, Gilbert averred that “the first adjuster [at

Travelers] included everything into the checks, contents, depreciation, building and so forth.

That was the confusion, and, quite frankly, still is the confusion, because there’s some question

as to what was allocated for what.” Even assuming Travelers has not distributed the full amount

owed to the Gilberts under their insurance policy, this does not make Travelers an indispensable

party to this action. See Englehart, 1999 WL 1215110, at *2. (“Mere avoidance of multiple

litigation is not a sufficient basis to render one an indispensable party.”). The Gilberts are free to

pursue a claim against Travelers if they feel their policy was breached by Travelers.

       {¶52} We cannot conclude that the absence of Travelers as a party “seriously

prejudice[d] any party to the action or prevent[ed] the court from rendering [an] effective

judgment between the parties.” See id. Nor is there any evidence that Travelers’ interests would

be adversely affected by a judgment between the parties.

       {¶53} The Gilberts’ seventh assignment of error is overruled.

                                                 III

       {¶54} The Gilberts’ sixth assignment of error is moot. Their remaining assignments of

error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                 16


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                      BETH WHITMORE
                                                      FOR THE COURT



HENSAL, J.
CONCURS.

BELFANCE, P. J.
DISSENTING.

       {¶55} I respectfully dissent.     The trial court in this case misapplied the law in its

judgment, and, therefore, the matter must be remanded so that the trial court may apply the law

correctly in the first instance and enter judgment.

       {¶56} The record reflects that the Gilberts suffered water damage at their home and that

they signed an agreement for J. Bowers Construction to perform the initial remediation work to

forestall any more damage by virtue of the water coming into the home. As this took place, the

Gilberts’ insurance company examined the damage and began the process of determining the

appropriate coverage for the damage. With the assistance of the insurance adjuster, the insurance

company used a computer program to create a document, which itemized the estimated cost of

repairs and reflected the sum the insurance company would pay the Gilberts for the water
                                                17


damage to the structure. Upon completing the water remediation work, J. Bowers Construction

proceeded to render services to the Gilberts; however, the company did not present the Gilberts

with a contract delineating the scope of the work to be performed or its cost. In particular, at the

outset, J. Bowers Construction did not enter into an agreement with the Gilberts providing that

the Gilberts would pay the amount ultimately authorized by the insurance company. Instead, it

began to render services without entering into a written contract.

       {¶57} After the work was completed, Mr. Hayes met with Mr. Gilbert as the

representative of J. Bowers Construction to discuss the final cost of the work. Mr. Hayes

explained that the insurance estimate had been for $132,451.98 but that the Gilberts had

requested upgrades beyond those provided for in the estimate, increasing the cost of the project

by $8,024.89. Mr. Hayes further explained that, since the insurance company had already paid

$65,000 for the work, it would only cover $67,451.98 of the outstanding balance, making the

Gilberts responsible for $6,624.89, which was the additional value of the work less credits for

damage to the home caused by employees of J. Bowers Construction and allegedly subpar carpet

used. Mr. Gilbert signed the document presented by Mr. Hayes containing all these numbers and

wrote a check for $6,624.89. Mr. Gilbert subsequently signed a form indicating that he was

satisfied with the work performed by J. Bowers Construction so that the insurance company

would release the final disbursement.

       {¶58} However, prior to giving J. Bowers Construction any of the insurance distribution,

the Gilberts requested to see the material and labor costs so that they could determine the actual

value of the services performed by J. Bowers Construction. J. Bowers Construction refused to

provide the information, stating that such information was proprietary, and brought suit against

the Gilberts, demanding payment based upon the values itemized by the insurance company in
                                                  18


its estimate. It appears that J. Bowers Construction believes that, at some point along the way, it

entered into an express contract with the Gilberts. The Gilberts deny that an express contract

existed and instead suggest that J. Bowers Construction was required to settle up with the

Gilberts through reviewing the labor and material costs actually expended by J. Bowers

Construction.

       {¶59} It is evident from the record that J. Bowers Construction performed services such

that payment is required. However, a critical threshold question for the trial court was whether

there existed an express contract between J. Bowers Construction and the Gilberts. In this

regard, the evidence reveals that there was an initial written document authorizing the initial

water remediation, and no other writings evidencing an agreement to pay J. Bowers Construction

a specific sum of money when it undertook the actual repair of the home. However, the trial

court found that a contract did exist. Notwithstanding this finding, it proceeded to award

damages based upon the remedy of quantum meruit.1 This was improper because quantum

meruit is an equitable remedy which is based upon the law implying an obligation and is founded

upon the absence of an express contract. See Zeck v. Sokol, 9th Dist. Medina No. 07CA0030-M,

2008-Ohio-727, ¶ 13 (noting that equitable recovery is inapplicable if an express agreement

exists concerning the services at issue); see also In re Estate of Kirkland, 175 Ohio App.3d 73,

2008-Ohio-421, ¶ 25 (2d Dist.), quoting Motzer v. Estate of Carpenter, 2d Dist. Montgomery

No. 11869, 1990 WL 68690, *2 (May 18, 1990), citing 18 Ohio Jurisprudence 3d, Contracts,

Section 314, 315 (“‘An action in quantum meruit is brought upon an implied promise to pay the

reasonable worth of services rendered or materials furnished by one person for another and


       1
          In addition, given its determination that a contract existed, the trial court did not address
all of the contractual issues raised by the Gilberts (e.g., whether they could rescind the contract
pursuant to R.C. 1345.22).
                                                 19


which are knowingly and voluntarily accepted by the recipient. Upon proof of those facts, the

law presumes that the services were given and received in the expectation of payment and

implies a promise to pay what they are reasonably worth.’”). Thus, the remedies available under

quantum meruit are substantively different than those under an express contract, which are

limited to the damages caused by the breach. See Schottenstein Zox & Dunn Co., L.P.A. v.

Reineke, 9th Dist. Medina No. 10CA0138-M, 2011-Ohio-6201, ¶ 12. Therefore, if an express

contract existed and was enforceable, the trial court was required to determine the damages

caused by the breach. Thus, I would reverse and remand the matter for the trial court to further

clarify its entry. To the extent that the trial court determined that an express contract existed, it

should clarify this finding and proceed to award contract damages. If such was not the intent of

the trial court, it should proceed to evaluate damages under quantum meruit.

       {¶60} In this regard, the record reflects that, because J. Bowers Construction believed it

had an express contract with the Gilberts, its focus was not upon demonstrating the reasonable

value of the services it actually rendered to the Gilberts for purposes of demonstrating recovery

under quantum meruit. Mr. Hayes testified that the values set forth in the insurance estimate

were merely the average expected cost for the work.2 However, the insurance company’s

estimate represents what it proposed to pay the Gilberts based upon the contract of insurance it

had with them rather than the value of the work specifically performed by J. Bowers

Construction. Thus, the Gilberts’ agreement with their insurer to accept the payout proposed by

the insurance company as reflected in its itemized estimate did not in any way bind them to pay

those same sums to J. Bowers Construction and was not dispositive of the damage award under

       2
         For example, J. Bowers Construction could have used inferior materials than those in
the insurance estimates, had subpar skill or had lower actual labor costs in installing the
materials, any of which could affect the determination of the reasonable value of the services it
rendered.
                                                 20


quantum meruit.3 However, although unclear, J. Bowers Construction may have convinced the

trial court to award it the theoretical value for its work rather than the reasonable value of the

services it actually rendered because the trial court simply awarded the value of the insurance

estimate.

       {¶61} The majority has determined that the trial court’s error in finding that J. Bowers

Construction had a contract with the Gilberts was harmless. However, in light of the trial court’s

erroneous analysis, which was based upon the intermingling of distinctly different legal theories

of recovery, the trial court’s decision should be reversed, and the matter should be remanded so

that the trial court may clarify and determine in the first instance the existence of any enforceable

contract. If there is a contract, the trial court should then determine the contractual damages, not

the reasonable value of the work. However, to the extent there is no enforceable contract, the

trial court should then consider whether J. Bowers Construction was entitled to recover under

quantum meruit upon consideration of appropriate evidence demonstrating the reasonable value

of the services J. Bowers Construction rendered.

       {¶62} Accordingly, I dissent.


APPEARANCES:

EDWARD L. GILBERT, Attorney at Law, for Appellants.

THOMAS C. LOEPP, Attorney at Law, for Appellee.




       3
          Of course, J. Bowers Construction and the Gilberts could have formed an express
contract that, in exchange for completing the work delineated in the insurance estimate, J.
Bowers Construction would receive all of the insurance distributions for the repairs delineated in
the insurance estimate.
