[Cite as Spalsbury v. Gill Construction Co., Inc., 2018-Ohio-2616.]


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

KELLY SPALSBURY, et al.                                     C.A. No.    17CA0030-M

        Appellants

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
GILL CONSTRUCTION CO., INC., et al.                         COURT OF COMMON PLEAS
                                                            COUNTY OF MEDINA, OHIO
        Appellees                                           CASE No.   16CIV0509

                                  DECISION AND JOURNAL ENTRY

Dated: July 2, 2018



        HENSAL, Presiding Judge.

        {¶1}     Kelly and Susan Spalsbury appeal a judgment of the Medina County Court of

Common Pleas that granted summary judgment to Gill Construction Co., Inc., Gill Design

Group, Inc., and David Gill on their breach of contract and unjust enrichment claims. For the

following reasons, this Court affirms.

                                                       I.

        {¶2}     According to the Spalsburys, they worked as sales agents for Gill Construction

Co., Inc. and Gill Design Group on various residential construction projects in 2008 and 2009.

They allege that they are still owed commissions for their work on several of those projects. In

May 2016, they sued the two Gill companies and David Gill (collectively “Gill”), alleging

breach of contract and unjust enrichment.              Following discovery, Gill moved for summary

judgment, arguing that the claims were time-barred. The Spalsburys opposed the motion and

moved to strike the exhibits attached to Mr. Gill’s affidavit, arguing that the exhibits did not
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meet the requirements of Civil Rule 56(E). The trial court denied the motion to strike and

granted Gill’s motion for summary judgment, concluding that the Spalsburys’ claims were

barred under the applicable statutes of limitations. The Spalsburys have appealed, assigning

three errors. For ease of consideration, we will address their first two assignments of error

together.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY DENYING PLAINTIFFS’ MOTION TO
       STRIKE THE AFFIDAVIT OF DAVID GILL AND THE MATERIALS
       SUBMITTED WITH THE AFFIDAVIT AS THE ATTACHMENTS DID NOT
       COMPLY WITH THE MANDATORY REQUIREMENTS FOR SUMMARY
       JUDGMENT AS SET FORTH IN OHIO CIVIL RULE 56(E).

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY IMPROPERLY SHIFTING THE BURDEN
       OF PROOF TO PLAINTIFFS EVEN THOUGH DEFENDANTS DID NOT
       FIRST MEET THEIR BURDEN OF PROOF UNDER OHIO CIVIL RULE 56.

       {¶3}    The Spalsburys argue that the trial court incorrectly denied their motion to strike

and incorrectly granted Gill’s motion for summary judgment. Under Civil Rule 56(C), summary

judgment is appropriate if:

       (1) [n]o genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for

summary judgment, the movant bears the initial burden of demonstrating that there are no

genuine issues of material fact concerning an essential element of the opponent’s case. Dresher

v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party
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“must set forth specific facts showing that there is a genuine issue for trial.” Id. at 293, quoting

Civ.R. 56(E). This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996).

       {¶4}    The Spalsburys argue that Gill did not meet their initial burden under Rule 56(C)

because the exhibits attached to Mr. Gill’s affidavit did not comply with Rule 56(E). In their

motion for summary judgment, Gill argued that all of the Spalsburys’ claims were barred by the

six-year statute of limitations that applies to oral contracts under Revised Code Section 2305.07.

In support of their argument, Gill submitted the affidavit of Mr. Gill, who asserted that the

Spalsburys worked for his companies under a verbal agreement. He asserted that Gill never had

any written contracts with the Spalsburys and that all of the transactions for which the

Spalsburys were seeking payment had concluded by the end of the first quarter of 2009. He

further asserted that Gill had finished paying the Spalsburys all of the commissions they were

owed by the end of February 2010. Attached to Mr. Gill’s affidavit were copies of the deeds of

the properties that the Spalsburys had helped sell for Gill, a copy of part of a home construction

contract that the Spalsburys had helped procure for Gill, and a copy of a letter that Mr. Gill had

written, allegedly listing all of Gill’s commission payments to the Spalsburys.

       {¶5}    It is not necessary to determine whether the attachments to Mr. Gill’s affidavit

were proper under Rule 56(E) because Mr. Gill’s affidavit was sufficient to satisfy his summary

judgment burden without them. The averments in Mr. Gill’s affidavit, which he asserted were

based on firsthand knowledge, demonstrated that the Spalsburys’ claims accrued, at the latest, in

February 2010 when Gill allegedly finished paying them for their work. Mr. Gill’s averments

also demonstrated that the Spalsburys’ breach of contract claims were based on oral contracts,

which are subject to a six-year limitations period under Section 2305.07. In light of the fact that
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the Spalsburys did not file their complaint until May 2016, which was more than six years after

February 2010, Mr. Gill’s affidavit, even without considering any of its attachments, established

that Gill was entitled to judgment on the Spalsburys’ breach of contract claims as a matter of

law, shifting the summary judgment burden to the Spalsburys.

       {¶6}    The Spalsburys attached affidavits with exhibits to their memorandum in

opposition to the motion for summary judgment, but the trial court determined that they failed to

create a genuine issue of material fact regarding whether the breach of contract claims were

based on a written contract. The Spalsburys have not contested the trial court’s conclusion.

Accordingly, upon review of the record, we conclude that the trial court correctly determined

that Gill satisfied their initial summary judgment burden under Rule 56(C) and that it correctly

granted summary judgment to Gill on the Spalsburys’ breach of contract claims. We also

conclude that any error by the trial court in considering the documents attached to Mr. Gill’s

affidavit or in denying the Spalsburys’ motion to strike was, at worst, harmless. Civ.R. 61. The

Spalsburys’ first and second assignments of error are overruled.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT ON
       BEHALF OF DEFENDANTS AS TO COUNT FOUR OF THE COMPLAINT
       FOR UNJUST ENRICHMENT WHEN DEFENDANTS DEFENDANTS’ (SIC)
       MOTION FOR SUMMARY JUDGMENT DID NOT SPECIFICALLY
       ADDRESS THE UNJUST ENRICHMENT COUNT OF THE COMPLAINT
       AND THE TRIAL COURT DID NOT SPECIFICALLY ADDRESS ANY ISSUE
       AS TO UNJUST ENRICHMENT IN THE MAY 3, 2017 JUDGMENT ENTRY.

       {¶7}    The Spalsburys also argue that the trial court incorrectly granted summary

judgment to Gill on their unjust-enrichment claim. The Spalsburys argue that Gill did not

specifically address the elements of an unjust enrichment claim in their motion for summary

judgment, meaning there was nothing to establish when the cause of action accrued. They also
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argue that the trial court should have specifically addressed the claim in its judgment entry

before granting Gill summary judgment on it.

       {¶8}      “[U]njust enrichment of a person occurs when [it] has and retains money or

benefits which in justice and equity belong to another.” Hummel v. Hummel, 133 Ohio St. 520,

528 (1938). To recover for unjust enrichment, a plaintiff must demonstrate: (1) that it conferred

a benefit upon the defendant; (2) that the defendant knew of the benefit; and (3) that, under the

circumstances, it would be unjust to allow the defendant to retain the benefit without payment.

Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183 (1984), citing Hummel at 525. “[T]he

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.’” Johnson v. Microsoft

Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, ¶ 21, quoting Hughes v. Oberholtzer, 162 Ohio St.

330, 335 (1954).

       {¶9}    The Spalsburys acknowledge in their brief that a claim for unjust enrichment

arises from a “contract implied in law, or quasi-contract.” This Court has held that quasi-

contract claims such as promissory estoppel and unjust enrichment apply only “in the absence of

a contract[.]” Glenmoore Builders, Inc. v. Smith Family Trust, 9th Dist. Summit No. 24299,

2009-Ohio-3174, ¶ 42, quoting Gevedon v. Gevedon, 167 Ohio App.3d 1, 2006-Ohio-2668, ¶ 21,

fn. 3. “The reason for this rule is that if the parties have fixed their contractual relationship in an

express contract, there is no reason or necessity for the law to supply an implied contractual

relationship between them.” Champion Contracting & Constr. Co. v. Valley City Post No. 5563,

9th Dist. Medina No. 03CA0092-M, 2004-Ohio-3406, ¶ 25, quoting Gehrke v. Smith, 12th Dist.

Madison No. CA92-10-027, 1993 Ohio App. LEXIS 3410, *6 (July 6, 1993). Accordingly, in

light of Gill’s establishment that the Spalsburys worked for them under an express oral
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agreement, the trial court did not err when it determined that Gill was entitled to summary

judgment on the Spalsburys’ unjust enrichment claim. The Spalsburys’ third assignment of error

is overruled.

                                                III.

       {¶10} The Spalsburys’ assignments of error are overruled. The judgment of the Medina

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 Medina, 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.

       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.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
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CALLAHAN, J.
CONCURS.

CARR, J.
DISSENTING.

          {¶11} I respectfully dissent. The Spalsburys have argued on appeal that the trial court

erred in granting summary judgment to Gill. They specifically allege that Gill did not meet its

initial Dresher burden. As such, I would conclude that they argued that the trial court erred in

determining a written contract did not exist. Accordingly, I would proceed to address the merits

and reverse as a genuine issue of fact exists.

          {¶12} Also, although the trial court granted summary judgment on the unjust enrichment

claim by finding that Gill was entitled to judgment on all claims, it did not mention specifically

the unjust enrichment claim. More importantly, Gill did not make any argument pertaining to

the unjust enrichment claim in its summary judgment motion. See Bentley v. Equity Trust Co.,

9th Dist. Lorain No. 14CA010630, 2015-Ohio-4735, ¶ 10 (noting that a trial court lacks

authority to grant summary judgment in the absence of motion or argument on a particular

claim).

          {¶13} Given the foregoing, I would reverse the judgment of the trial court.


APPEARANCES:

THOMAS M. WILSON and JOHN J. WARGO, JR., Attorneys at Law, for Appellants.

DANIEL F. LINDNER, Attorney at Law, for Appellees.
