[Cite as Cahill v. Owens, 2016-Ohio-4972.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Edward Cahill,                                     :

                Plaintiff-Appellant,               :
                                                                       No. 15AP-925
v.                                                 :              (M.C. No. 2014 CVF-30099)

Jason Owens, et al.,                               :           (REGULAR CALENDAR)

                Defendants-Appellees.              :



                                             D E C I S I O N

                                      Rendered on July 14, 2016


                On brief: The Fox Law Firm, LLC, and Justin M. Fox, for
                appellant. Argued: Justin M. Fox.


                      APPEAL from the Franklin County Municipal Court

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, Edward Cahill, appeals a judgment of the Franklin
County Municipal Court filed on September 10, 2015, following a bench trial.                  The
judgment ordered defendant-appellee, Jason Owens, to pay $1,000 plus interest and costs
and dismissed all of Cahill's other claims against both Owens and Owens' company, C & O
Property Services ("C & O"). Because we find that the trial court erred in disposing of
Cahill's unjust enrichment claim on the ground that Cahill failed to exercise "ordinary
diligence," we reverse and remand for proceedings consistent with this decision.
I. FACTS AND PROCEDURAL POSTURE
        {¶ 2} This case concerns the management and rental of a single-family residential
home located on Belcher Drive in Columbus, Ohio. On September 15, 2014, Cahill, who
was allegedly attorney-in-fact for the owner of the property (his mother), filed a complaint
against Owens and C & O alleging breach of contract, unjust enrichment, and fraud, all
based on Owens' management of the property. Owens and C & O answered on October 6,
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2014. On August 27, 2015, the parties tried the case to the bench of the Franklin County
Municipal Court.
       {¶ 3} Owens testified first in the trial as upon cross-examination. He explained
that he is a general contractor and part owner of C & O, and that he is licensed and
bonded to do contracting work within the city of Columbus. He also sometimes manages
properties, collecting rent, and performing maintenance. In the four and a half years that
C & O has been in business, he has managed three properties, including Cahill's.
       {¶ 4} Owens testified that he first met Cahill at the beginning of July 2012 when
Cahill asked him to finish a bathroom in a house Cahill was intending to let. Owens
finished the bathroom and Cahill paid Owens $2,000.00 for his work. In the fall of that
same year, Cahill contacted Owens again and asked him to repair a stoop at the same
property. Once again, Owens did the work and Cahill paid him, by Owens' reckoning,
approximately $2,000.00. Owens was also supposed to repair a window and was paid
$1,000.00 for doing so, but admitted that he never repaired the window. Owens testified
that in addition to the $2,000.00 he received for finishing the bathroom, he charged
Cahill's credit card a total of $4,000.68 for the stoop, the (uncompleted) window repair,
and other miscellaneous repairs.
       {¶ 5} Owens later explained on direct examination that Cahill initially asked him
to post an eviction notice, because the tenants of the house at the time of the stoop repair
were behind in the payment of rent. Owens testified that he posted the notice and then
was contacted by the tenants. The tenants said they had the necessary funds, and Owens
relayed that information to Cahill who requested that Owens manage the property and
make a lease with the tenants. The agreement between Owens and Cahill, according to
Owens' testimony on cross, was that Owens would collect rent from the tenants, take care
of the property, keep 10 percent of the rent as a fee for managing the property, and
forward the balance to Cahill. In approximately 14 months as property manager, Owens
collected $12,840 in rent and security deposit funds; yet, he never sent any of it to Cahill.
However, Owens testified that he and Cahill had an understanding that Cahill would only
get money for rent to the extent that rent monies exceeded the value of the services Owens
was providing in the upkeep of the property—as it turned out, Cahill never received any
money, because the house needed considerable upkeep. Owens admitted that he never
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No. 15AP-925
billed Cahill for any services during the period in which he managed the property and only
prepared invoices for the services he provided after the lawsuit was filed in the municipal
court.
         {¶ 6} The invoices were introduced into the record as exhibits at trial. The
services and fees Owens documented in the invoices he prepared after suit was filed are as
follows:
               [1.] Draft lease                                     $150.00

               [2.] Management fee                                  $1,144.00

               [3.] Lawn care at $75 per mow                        $2,400.00

               [4.] Replace hot and cold shower valves              $250.00

               [5.] Replace locks, repair closet doors, replace
               porch light, install smoke detectors, deliver and
               install refrigerator, replace hot water shut-off
               valve for washer, repair main water shut-off
               valve, replace furnace gas valve, repair toilet,
               repair electrical outlets in bedrooms, repair hall
               light, replace hall light switch                     $3,500.00

               [6.] Replace valve in kitchen faucet                 $107.00

               [7.] Snow removal at $75 per visit                   $2,700.00

               [8.] Furnace filter changes at $75 per visit         $375.00

               [9.] Leaf removal at $150.00 per visit               $450.00

               [10.] Drain cleaning at $200 per visit               $3,000.00
(Def.'s Exs. D1-D10, Aug. 27, 2015 Bench Trial.)
         {¶ 7} Cahill testified after Owens. He explained that he is a truck driver who lives
in North Carolina and rents the property at issue in his capacity as attorney-in-fact for his
mother. Cahill testified that Owens was property manager from November 2012 to March
2014. Cahill testified that, according to his understanding, Owens' responsibilities as
property manager were to inspect the property, and if something was wrong, to notify
Cahill. He claimed that he hired Owens to evict the tenants and look after the property.
He testified that he never gave Owens authority to enter into a lease on his behalf with the
tenants, and he never agreed to pay for, or authorized Owens to perform any of the
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No. 15AP-925
services Owens provided during his term as property manager. Owens' compensation,
according to Cahill, was to be 7 percent of rent. Cahill did acknowledge that he paid
Owens for the stoop repairs and the window repair. However, of the $4,000.68 collected
by Owens in credit card payments, $2,000.00, said Cahill, were unauthorized charges and
the window work was never completed. Cahill testified the house drains were in good
shape and that the tenants were provided with a new lawn mower; thus, there was no
reason that he would have paid Owens for services like mowing the lawn or snaking
drains.
      {¶ 8} Cahill admitted that he did not see or check on the property from July 1,
2012, until June 15, 2015, the latter date being nine months after he filed the complaint
against Owens that initiated this action. Under questioning from the trial judge, Cahill
elaborated that he, in fact, thought the house was vacant beginning on or about the 15th of
October 2012, when Owens first left the eviction notice on the door; Cahill did not learn
the property was occupied until he had a security system installed on the premises and it
sounded an alarm near the end of October or November 2013.
      {¶ 9} The final witness who testified at trial was Douglas Carter, a tenant of the
premises from July 2012 to June 2014. Carter testified that he helped Cahill renovate the
house and moved in with his family on July 1, 2012. Before Owens became involved in
managing the property, according to Carter, the relationship with Cahill as a landlord was
very confused, and Carter had trouble getting Cahill to acknowledge when payments had
been made or to agree on a system by which payments would be made. Carter testified
that during the time in which Owens managed the property, he saw Owens probably twice
a month or more often, that Owens promptly took care of any issues that arose on the
property, and that Owens collected rent and always gave him a receipt. Carter testified
that there was a lawn mower in a shed but that it was not new and did not work. He also
explained that the shed was full of Cahill's stuff, and that Cahill promised he would clean
it out so that Carter could use it for his own property care implements, but Cahill never
did. Carter also testified that the sewer drain for the house was a repetitive problem. It
back-flowed often and filled the basement with sewage containing human excrement and
resulting in Carter having to discard items stored there such as clothing and Christmas
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No. 15AP-925
presents. Carter testified that he had contacted Owens and the State of Ohio in an
attempt to deal with the ongoing problem.
       {¶ 10} Carter admitted that Cahill ultimately evicted him from the house and that,
as part of an eviction proceeding, he agreed to pay Cahill $1,900 (which he had not paid
as of the date of trial). Carter said, however, that he felt he was evicted even though he had
the money at the time, because Cahill wanted Carter and his family out of the house so
Cahill could sell the property.
       {¶ 11} On September 10, 2015, the trial court issued a written decision dismissing
all of Cahill's claims against Owens and C & O except that it required Owens to refund
$1000 plus interest to Cahill as a result of having accepted money for repairing a window
which, by his own admission, Owens never repaired.
       {¶ 12} Cahill now appeals.
II. ASSIGNMENTS OF ERROR
       {¶ 13} Cahill assigns two errors for our review:
               1. The Trial Court erred in not ordering disgorgement of
               $14,240.00 of rental proceeds collected by the
               Defendant/Appellee.

               2. The Trial Court erred, as a matter of law, in finding that the
               Plaintiff's claims were unenforceable pursuant to the Statute
               of Frauds.
III. DISCUSSION
   A. First Assignment of Error–Whether the Trial Court Erred in Failing to
      Order Disgorgement of All Rental Proceeds Collected by Owens
       1. Whether there was a Contract
       {¶ 14} Cahill first assigns error to the trial court's judgment on the grounds that
there was a contract between him and Owens and that the trial court erred in concluding
that the management agreement lacked sufficiently definite terms and a mutual
understanding.
       {¶ 15} On several occasions the Supreme Court of Ohio has set forth the
requirements of an enforceable contract:
               In Kostelnik v. Helper, 96 Ohio St.3d 1, 2002 Ohio 2985, 770
               N.E.2d 58, we described the requirements for formation of a
               contract:
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No. 15AP-925
               "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."

               Id. at ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc.,
               436 F.Supp. 409, 414 (N.D.Ohio 1976). We further explained
               that "[a] meeting of the minds as to the essential terms of the
               contract is a requirement to enforcing the contract." Id., citing
               Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus.
               Relations, 61 Ohio St. 3d 366, 369, 575 N.E.2d 134 (1991).
               And to be enforceable, "the contract must be definite and
               certain." Episcopal Retirement Homes at 369, citing James
               Ward & Co. v. Wick Bros. & Co. 17 Ohio St. 159 (1867).
Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-
Ohio-5676, ¶ 19. Here, there is no written contract between Cahill and Owens; thus, the
trial court was required to consider their testimony at trial to discern whether a contract
existed, and if so, what its terms were.
       {¶ 16} The testimony from Owens was to the general effect that he was engaged as
a property manager of the house. This, according to Owens, meant that he was to take
care of all maintenance and repairs, that he was entitled to 10 percent of the rent as a fee
for undertaking the responsibility, and that the costs of the individual tasks would be
billed against the rent collected. Cahill's testimony was that Owens was engaged for the
limited purpose of evicting the current tenants, that he was only supposed to "manage"
the property in the sense of inspecting it once in a while and letting Owens know about
any problems, and that he was entitled to 7 percent of the rent total as a fee. As a
preliminary matter, it is not clear how Owens was supposed to be paid under Cahill's
version of the contract once he evicted the tenants and the house stood vacant (as Cahill
testified he thought it was). Seven percent of zero rent is zero dollars. But aside from that
observation, the testimony indicates that Owens and Cahill had very different ideas to
what they were agreeing. They disagreed about the scope and type of responsibilities.
They disagreed about the nature and amount of fees. They even failed to agree about the
fundamental facts underlying the purported contract—whether the house was supposed to
be occupied or not.
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No. 15AP-925
       {¶ 17} In reviewing the trial court's decision on this evidence, "[w]e are guided by
the presumption that the jury, or the trial court in a bench trial, is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony and we afford great
deference to the fact finder's determination of witness credibility." (Internal quotations
marks omitted.) State v. Westmoreland, 10th Dist. No. 12AP-632, 2013-Ohio-1466, ¶ 13,
quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984); In re B.K., 10th Dist.
No. 12AP-343, 2012-Ohio-6166, ¶ 11; State v. Cattledge, 10th Dist. No. 10AP-105, 2010-
Ohio-4953, ¶ 6, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the
syllabus. Hearing the case in the posture of a bench trial, the trial court would, therefore,
have been within its fact-finding discretion to believe one, both, or neither of the versions
of the facts offered by Cahill and Owens.
       {¶ 18} Though the trial court summarized the testimony offered by both Cahill and
Owens in its decision, it did not expressly state whether it believed one witness over
another or which facts it found to have been established by the testimony and other
evidence. The trial court simply stated that, "The claimed property management contract
before the Court lacks definite terms and a mutual understanding. It is unenforceable."
(Sept. 10, 2015 Jgmt. Entry at 4.) Applying basic contract law to the evidence before it,
the trial court essentially reached the conclusion that there was no enforceable contract
between Owens and Cahill because of a lack of "definite terms and a mutual
understanding." (Id.)      Definite terms and mutual understanding are valid legal
requirements of a contract; thus, the trial court did not err legally in referencing those
concepts. See, e.g., Rayess at ¶ 19.        Nor did the trial court abuse its discretion to
determine the facts in this case and determine that they fell short of demonstrating a
"meeting of the minds as to the essential terms of the contract" which was "definite and
certain." Id.
       2. Conversion
       {¶ 19} Cahill's complaint did not assert a tort claim for conversion and neither the
parties nor anyone else mentioned conversion at trial. In fact, not once in the complaint,
the trial brief, Owens' deposition, or the entire trial transcript does the word "conversion"
appear. It was not error for the trial court to have failed to find in Cahill's favor on a claim
that was never once asserted in the case (but only in his brief on appeal). Sabouri v. Ohio
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No. 15AP-925
Dept. of Job & Family Servs., 145 Ohio App.3d 651, 654 (2001), citing State ex rel. Quarto
Mining Co. v. Foreman, 79 Ohio St.3d 78, 81 (1997) (holding that a cause of action failed
because it was not asserted in the trial court and was raised for the first time on appeal).
       3. Unjust Enrichment
       {¶ 20} The Supreme Court has explained:
               Unjust enrichment occurs when a person "has and retains
               money or benefits which in justice and equity belong to
               another," Hummel v. Hummel (1938), 133 Ohio St. 520, 528,
               11 O.O. 221, 14 N.E.2d 923, while restitution is the "common-
               law remedy designed to prevent one from retaining property
               to which he is not justly entitled," Keco Industries, Inc. v.
               Cincinnati & Suburban Bell Tel. Co. (1957), 166 Ohio St. 254,
               256, 2 O.O.2d 85, 141 N.E.2d 465. To establish a claim for
               restitution, therefore, a party must demonstrate "(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 ('unjust enrichment')."
               Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179,
               183, 12 OBR 246, 465 N.E.2d 1298.

                As this court has stated, the purpose of such claims "is not to
               compensate the plaintiff for any loss or damage suffered by
               him but to compensate him for the benefit he has conferred
               on the defendant." Hughes v. Oberholtzer (1954), 162 Ohio St.
               330, 335, 55 O.O. 199, 123 N.E.2d 393.
Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, ¶ 20-21.
       {¶ 21} The trial court found that Cahill failed to exercise "due diligence" in
discovering the claim for unjust enrichment and therefore was barred from asserting it.
(Jgmt. Entry at 6.) However, as Cahill correctly observes, diligence is not an element of
an unjust enrichment claim. Diligence was only discussed in the case cited by the trial
court in connection with determining at what point the plaintiff should have been charged
with knowledge of the claim such that the court should have concluded that it had accrued
for purposes of the statute of limitations. Hambleton v. R.G. Barry Corp., 12 Ohio St.3d
179, 181-82 (1984). No statute of limitations issue has been raised or is evident in this
case. Thus, this conclusion by the trial court was error.
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No. 15AP-925
          {¶ 22} We are mindful that courts are generally required "at every stage of the
proceeding[s]" to "disregard any error or defect in the proceeding which does not affect
the substantial rights of the parties." Civ.R. 61. The Supreme Court has explained,
                  In ascertaining whether prejudicial error exists, the court is
                  "bound by the disclosures of the record." Makranczy v.
                  Gelfand, 109 Ohio St. 325, 329, 2 Ohio Law Abs. 150, 2 Ohio
                  Law Abs. 183, 142 N.E. 688 (1924). To find that substantial
                  justice has not been done, a court must find (1) errors and (2)
                  that without those errors, the jury probably would not have
                  arrived at the same verdict. Hallworth v. Republic Steel
                  Corp., 153 Ohio St. 349, 91 N.E.2d 690 (1950), paragraph
                  three of the syllabus.
Hayward v. Summa Health Sys., 139 Ohio St.3d 238, 2014-Ohio-1913, ¶ 25. We examine
whether "without th[at] error[]" the factfinder "probably would not have arrived at the
same verdict." Id.
          {¶ 23} In determining whether prejudicial error exists in the trial court's
application of the equitable doctrine of unjust enrichment, the trial court appears to have
found that Owens had received a benefit by retaining rent and also that Cahill had
received an offsetting benefit by having his property cared for and maintained. However,
the trial court's analysis was more in line with a laches1 analysis as a defense in equity to

1   We have previously quoted the Supreme Court on the doctrine of laches as follows:
                  The doctrine of laches is based upon the maxim vigilantibus non
                  dormientibus jura subveniunt (the laws aid the vigilant, and not those who
                  slumber on their rights). In our unanimous opinion in Connin v. Bailey
                  (1984), 15 Ohio St.3d 34, 35, 15 Ohio B. 134, 472 N.E.2d 328, we set forth
                  the applicable law as follows:
                  " 'Laches is an omission to assert a right for an unreasonable and
                  unexplained length of time, under circumstances prejudicial to the adverse
                  party. It signifies delay independent of limitations in statutes. It is lodged
                  principally in equity jurisprudence.' "
                  In order to invoke the doctrine, the following must be established:
                  "Delay in asserting a right does not of itself constitute laches, and in order
                  to successfully invoke the equitable doctrine of laches it must be shown
                  that the person for whose benefit the doctrine will operate has been
                  materially prejudiced by the delay of the person asserting his claim." Smith
                  v. Smith (1959), 168 Ohio St. 447 [7 O.O.2d 276, 156 N.E.2d 113],
                  paragraph three of the syllabus, approved and followed in Connin, supra,
                  at 35-36. Accord Kinney v. Mathias (1984), 10 Ohio St.3d 72, 10 Ohio B.
                  361, 461 N.E.2d 901. The longstanding purpose of the doctrine is that a
                  court will not aid in enforcing " ' * * * stale demands, where the party has
                  slept upon his rights, or acquiesced for a great length of time. * * * ' " Piatt
                                                                                                        10
No. 15AP-925
unjust enrichment when it found Cahill did not exercise "due diligence." Because the trial
court found that "due diligence" was necessary for proof for recovery, we are unable to
find on review that the trial court would have reached the same result had it not made this
finding. Or, to frame the issue in the language of Hayward, we find on review that the
trial court "probably would not have arrived at the same verdict" had it not erred in
disposing of the unjust enrichment issue by mistakenly including a diligence element. Id.
         {¶ 24} Accordingly, we sustain Cahill's first assignment of error.
    B. Second Assignment of Error–Whether the Trial Court Erred in
       Referencing the Statute of Frauds
         {¶ 25} Cahill argues that the trial court erred in sua sponte observing that Cahill
had failed to comply with the statute of frauds in originally orally renting the real estate in
question to the Carters and that he failed to file his purported power of attorney in
accordance with R.C. 1337.04. Having sustained Cahill's first assignment of error, we find
this second assignment of error to be moot for now.
IV. CONCLUSION
         {¶ 26} The trial court erred in holding that Cahill could not prevail on his claim for
unjust enrichment because he had not exercised "ordinary diligence" in pursuing the
claim.    We, therefore, sustain Cahill's first assignment of error and find his second
assignment of error is moot for now. We reverse and remand to the Franklin County
Municipal Court for proceedings consistent with this decision.
                                                        Judgment reversed; and cause remanded.
                                 BROWN, J., concurs.
                       LUPER SCHUSTER, J., concurs in judgment only.


                v. Vattier (1835), 34 U.S. 405, 416, 9 L. Ed. 173. Justice Story, who
                delivered the opinion of the court in Vattier, explained that "'[n]othing can
                call forth this court into activity but conscience, good faith and
                reasonable diligence. Where these are wanting, the court is passive and
                does nothing; laches and neglect are always discountenanced; and
                therefore from the beginning of this jurisdiction there was always a
                limitation of suit in this court.' * * * " Id. at 416-417.
(Emphasis sic and added.) State ex rel. Allied Sys. Holdings v. Donders, 10th Dist. No. 11AP-960, 2012-
Ohio-5855, ¶ 18, quoting State ex rel. Case v. Indus. Comm., 28 Ohio St.3d 383, 385 (1986); accord Nob Hill
E. Condominium Owners' Assn. v. Vecchio, 8th Dist. No. 65512 (Dec. 9, 1993) ("The party against whom
the doctrine of laches is asserted must offer 'an acceptable explanation' for the delay in asserting its
rights.").
