[Cite as Village at the Greene v. Smith, 2020-Ohio-4088.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

                                                       :
 VILLAGE AT THE GREENE                                 :
                                                       :    Appellate Case No. 28762
         Plaintiff-Appellant                           :
                                                       :    Trial Court Case No. 2019-CV-2258
 v.                                                    :
                                                       :    (Civil Appeal from
 ROBERT SMITH, et al.                                  :     Common Pleas Court)
                                                       :
         Defendant-Appellee                            :


                                               ...........

                                               OPINION

                            Rendered on the 14th day of August, 2020.

                                               ...........

ROBERT C. WIESENMAYER, Atty. Reg. No. 0007207, 15 Willipie Street, Suite 300, P.O.
Box 299, Wapakoneta, Ohio 45895
      Attorney for Plaintiff-Appellant

DAVID D. BRANNON, Atty. Reg. No. 0079755, 130 West Second Street, Suite 900,
Dayton, Ohio 45402
      Attorney for Defendant-Appellee

                                              .............

FROELICH, J.
                                                                                           -2-


       {¶ 1} HCF of Crestview, Inc., doing business as Village at the Greene (“Village”),

appeals from the trial court’s entry of summary judgment in favor of Robert D. Smith

(“Smith”) as to the unpaid account of Smith’s father, Robert Smith (“Father”), a Village

resident. The judgment of the trial court will be affirmed.

                          Factual and Procedural Background

       {¶ 2} Village is a licensed skilled nursing facility located in Dayton, Ohio.. Smith is

the adult son of Father, who on June 22, 2018, granted Smith power of attorney to act on

Father’s behalf. Father “is considered blind and deaf.” (Complaint, ¶ 2 and Exh. C.)

       {¶ 3} On October 10, 2018, Smith executed a “Consent to Treat & Admission

Agreement” in order for Father to become a resident at Village. (Complaint, Exh. A.) Smith

signed the first page of that six-page contract on the line designated for

“REPRESENTATIVE.” Among the provisions of the form contract, supplied by Village,

were the following:

                                         EXHIBIT A

               Potential for Discharge & Personal Guarantee of Payment

       The Facility [Village] cannot continue to provide services without payment.

       If the Facility is not paid timely and in full by someone, then it will seek to

       discharge the Resident.

       Many people wish to make sure that care and services to their loved ones

       are not terminated when the resident does not have the resources to pay

       for care. This could happen, for example, if third party payment (Medicare,

       Medicaid, Insurance) were to be temporarily interrupted, delayed, or not

       approved. Thus, we provide the opportunity for Representatives to make
                                                                                         -3-


        payments on the Resident’s behalf.

        If the Representative would like to protect the Resident from being

        discharged for non-payment by agreeing to pay on their behalf if it becomes

        necessary, then he/she should initial “yes” below.

        If the Representative does not wish to protect the Resident from being

        discharged for non-payment by agreeing to pay on their behalf if it becomes

        necessary, then he/she should initial “no” below.

        BY INITIALING “YES”, THE REPRESENTATIVE IS AGREEING TO

        VOLUNTARILY PERSONALLY GUARANTEE PAYMENT TO THE

        FACILITY, BE JOINTLY AND SEVERALLY LIABLE FOR ALL SERVICES

        AND SUPPLIES RECEIVED BY THE RESIDENT, AND TO MAKE ALL

        PAYMENTS WHEN THEY COME DUE. THE REPRESENTATIVE

        UNDERSTANDS THAT HE OR SHE IS NOT REQUIRED BY LAW OR THE

        FACILITY     TO     PERSONALLY        GUARANTEE         PAYMENT.        THE

        REPRESENTATIVE            AGREES     THAT    THIS    GUARANTEE         WILL

        CONTINUE UNTIL ALL FINANCIAL OBLIGATIONS TO THE FACILITY

        HAVE BEEN PAID IN FULL.

        Please initial below.

        Representative          Yes __________ No __________

(Emphasis sic.) (Complaint, Exh. A, attached Exh. A.) Smith placed his initials on the “no”

line.

        {¶ 4} An additional exhibit to the contract, entitled “Representative Authority &

Duties,” provided that, as Father’s representative, Smith “ha[d] legal access to and control
                                                                                           -4-


over” Father’s assets and resources (Complaint, Exh. A, attached Exh. C, ¶ C3), and

“shall act in a fiduciary capacity on [Father’s] behalf to satisfy [Father’s] financial

obligations” under the contract with Village. (Id. at ¶ C2.) The contract provided that Smith,

as Father’s representative, could be personally liable for failing to pay Father’s debt to

Village from Father’s resources under two circumstances:

       * * * if any of [Father’s] Resources transfer by operation of law while [Father]

       still has outstanding debts to [Village] and such transfer causes [Father’s]

       remaining resources to be insufficient to pay the debt in full, then the

       Representative [Smith] agrees to be personally responsible for the

       remaining debt to [Village]. You agree that if You [sic] have misrepresented

       the Representative’s legal authority to control [Father’s] Resources or to

       enter into this Agreement on behalf of [Father], or if the Representative has

       misrepresented any information to [Village] as part of the admission

       process, then the Representative agrees to be personally liable for all of

       [Father’s] responsibilities in this Agreement.

(Id. at ¶ C3.)

       {¶ 5} Exhibit C to the contract also obligated Smith, as Father’s representative, to

“cooperate fully in any application, redetermination or appeals process related to

Medicaid eligibility.” (Id. at ¶ C6.) It further provided:

       The Representative agrees to pay from his/her own resources any unpaid

       charges due to the Facility as a result of the Representative’s failure to

       cooperate in the Medicaid eligibility or redetermination process, or appeals

       thereto. “Failure to cooperate” shall include, but is not limited to, failing to
                                                                                          -5-


        provide documentation to the Medicaid agency in the time frames defined

        by law or as indicated by the relevant representative of the Medicaid

        agency.

(Id.)

        {¶ 6} On May 16, 2019, Village filed a complaint naming as defendants Father and

Smith, as “Power of Attorney for [Father],” and setting forth claims for breach of contract

and unjust enrichment. The complaint alleged that Father’s account at Village was

$63,860.21 in arrears as of March 20, 2019. As to Smith, the complaint alleged a breach

of the contract with Village due to Smith’s “fail[ing] to apply [Father’s] personal funds” to

pay Father’s charges at Village and “fail[ing] to comply with the requirements of Medicaid

so as to qualify [Father] for benefits of the Medicaid program” that would pay Father’s

long-term care expenses at Village. (Complaint, ¶ 14.) The complaint further alleged that

Smith was unjustly enriched because Father received the benefit of Village’s care and

services without paying for such. Village sought judgment against Father and Smith in the

amount of $63,860.21 plus interest, attorney’s fees, and costs.

        {¶ 7} Father did not respond to the complaint. On August 30, 2019, Smith filed an

answer generally denying liability and asserting various affirmative defenses.              1


Thereafter, Smith filed a motion for summary judgment pursuant to Civ.R. 56(C). He

asserted that he had resigned as Father’s attorney-in-fact on August 9, 2019. 2 (See


1The record indicates that Smith was not served until August 6, 2019. (See Return of
Service (Personal), 8/14/19.)
2 The record indicates that Father also granted power of attorney to Smith’s sister, Tiffany
Smith, who apparently remains available to serve in that capacity following Smith’s
resignation. (See [Village]’s Memorandum Contra [Smith]’s MSJ, Exh. A-1 (Smith’s
Answers to Interrogatories), ¶ 11, 20 and Exh. C-1.)
                                                                                           -6-


Defendant Robert D. Smith’s Motion for Summary Judgment (“MSJ”), p. 2 and Exh. A,

Affidavit of Robert D. Smith (“Smith Affid.”), ¶ 2; see also Exh. C (copy of “Resi[g]nation

of General Durable Power of Attorney”.) Consequently, Smith maintained that he

remained in this action only “in his own individual capacity” and that he bore no personal

responsibility for Father’s alleged indebtedness to Village. He also claimed that dismissal

was warranted because Village had failed to effect service on Father, a “necessary party.”

       {¶ 8} On March 5, 2020, the trial court issued a decision granting Smith’s motion

for summary judgment. That decision indicated that it was “a final appealable order, and

there is not just cause for delay for purposes of Civ.R. 54.” Additionally, on March 18,

2020, the court entered default judgment against Father.

       {¶ 9} Village filed a timely appeal from the judgment in Smith’s favor, identifying

these assignments of error:

       1) The Trial Court erred when it found that [Smith] was not a party to the

       Contract, because [Smith] signed the Agreement as a Representative of

       [Father], and noted he did not want to be personally liable.

       2) The Trial Court erred when it state[d:] “While this alleged failure of [Smith]

       (by failing to use [Father]’s resources to pay the expenses and failing to

       comply with the requirements of Medicaid) may be a breach of [Smith]’s

       obligations to [Father as] his father’s attorney-in-fact, it does not create

       personal liability to [Village].”

       3) The Trial Court erred by granting [Smith] Summary Judgment as to the

       claim for breach of contract based upon the evidence presented to the Trial

       Court.
                                                                                           -7-


(Parenthetical sic.)

       {¶ 10} Despite setting forth those three assignments of error, Smith’s appellate

brief actually addresses only this single issue:

       It [wa]s error for the Trial Court to deny Village at the Greene the right to the

       enforcement of the terms and obligations required of the Representative on

       page 4 (Exhibit C) of the Admission Agreement, which are expressly

       included to overcome the limitations existing in the inability of * * * Village

       at the Greene to enforce the fiduciary powers in the Resident’s Power of

       Attorney granted to the Agent, who is also the Representative. The law of

       agency applies to the enforcement of the Power of Attorney while the law

       of contract applies to the enforcement of the Admission Agreement.3

                                    Standard of Review

       {¶ 11} We review the trial court’s ruling on a motion for summary judgment de

novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42. De

novo review means that this court uses the same standard that the trial court should have

used, and we examine the evidence, without deference to the trial court, to determine

whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d Dist.

Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.

       {¶ 12} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a

matter of law, and (3) reasonable minds, after construing the evidence most strongly in


3 As neither Village’s assignments of error nor the actual argument in its brief appear to
challenge the trial court’s grant of summary judgment against Village on its unjust
enrichment claim, we will not address that claim on this appeal.
                                                                                          -8-


favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor

Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party

carries the initial burden of affirmatively demonstrating that no genuine issue of material

fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798

(1988). Once the moving party satisfies its burden, the burden shifts to the nonmoving

party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth

specific facts that show that there is a genuine issue of material fact for trial. Dresher v.

Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996); Civ.R. 56(E). Throughout, the

evidence must be construed in favor of the nonmoving party. Id.

                                     Village’s Appeal

       {¶ 13} Village contends that the trial court erred by finding that Smith was not

personally liable for Father’s debt pursuant to the contract provisions that required Smith,

as Father’s representative, both to use Father’s resources to pay his (Father’s) expenses

at Village and to cooperate in attempting to secure Medicaid benefits toward the payment

of Father’s expenses. Village maintains that enforcing such provisions would not make

Smith a personal guarantor as to Father’s expenses, but rather would hold Smith

personally liable for breaching his own contractual obligations to undertake measures to

assure that Father’s expenses were paid.

       a. Law applicable to breach of contract claim

       {¶ 14} “To prove a breach of contract claim, a plaintiff must show ‘the existence of

a contract, performance by the plaintiff, breach by the defendant, and damage or loss to

the plaintiff.’ ” Nilavar v. Osborn, 137 Ohio App.3d 469,483-484, 738 N.E.2d 1271 (2d

Dist.2000), quoting Doner v. Snapp, 98 Ohio App.3d 597, 600, 649 N.E.2d 42 (2d Dist.
                                                                                             -9-


1994). However, “ ‘[a] contract is binding only upon parties to a contract and those in

privity with them.’ ” Vancrest Mgt. Corp. v. Mullenhour, 2019-Ohio-2958, 140 N.E.3d

1051, ¶ 13 (3d Dist.), quoting Gilchrist v. Saxon Mtge. Servs., 10th Dist. Franklin No.

12AP-556, 2013-Ohio-949, ¶ 23.

       {¶ 15} When an individual acting on another’s behalf pursuant to a power of

attorney “discloses in the contract that it [the contract] is being entered into in the

representative capacity of the attorney in fact, the attorney in fact is not personally liable

on the contract, unless the contract otherwise specifies.” R.C. 1337.092(A).

       If the words or initialism “attorney in fact,” “as attorney in fact,” “AIF,” “power

       of attorney,” “POA,” or any other word or words or initialism indicating

       representative capacity as an attorney in fact are included in a contract

       following the name or signature of an attorney in fact, the inclusion is

       sufficient disclosure for purposes of this division that the contract is being

       entered into in the attorney in fact's representative capacity as attorney in

       fact.

Id.

       {¶ 16} An attorney in fact is not personally liable for a debt of his or her principal

unless one or more of the following applies:

       (1) The attorney in fact agrees to be personally responsible for the debt.

       (2) The debt was incurred for the support of the principal, and the attorney

       in fact is liable for that debt because of another legal relationship that gives

       rise to or results in a duty of support relative to the principal.

       (3) The negligence of the attorney in fact gave rise to or resulted in the debt.
                                                                                        -10-


      (4) An act of the attorney in fact that was beyond the attorney in fact’s

      authority gave rise to or resulted in the debt.

      (5) An agreement to assist in the recovery of funds under section 169.13

      [dealing with the collection of unclaimed funds] of the Revised Code was

      the subject of the power of attorney that gave rise to or resulted in the debt.

R.C. 1337.092(B).

      b.     Analysis

      {¶ 17} Both in opposing summary judgment in the trial court and on this appeal,

Village has maintained that Smith breached the contract with Village “in his individual

capacity, not as Power of Attorney for” Father, allegedly making Smith subject to

individual liability regardless of his later resignation as Father’s attorney-in-fact.

([Village]’s Memorandum Contra [Smith]’s MSJ filed on 2/28/20, p. 2; see also Brief of

Appellant [Village], p. 9 (noting that Smith signed the contract “under the heading of

‘Representative,’ ” not on the “Resident” line as power of attorney for Father)). Contrary

to that position, however, Village’s complaint identified Smith as a defendant exclusively

as “Power of Attorney for [Father],” not in his individual capacity (Complaint, p. 1) and

further alleged that Smith executed the contract with Village “acting by his Power of

Attorney” (id. at ¶ 6), and was bound by and breached the contract’s terms “in his capacity

as Power of Attorney for [Father].” (Id. at ¶ 9, 13, 14.) Village also acknowledged that it

was aware of and received a copy of Smith’s power of attorney. (Id. at ¶ 10, 15 and Exh.

C.)

      {¶ 18} Based on the record, despite Smith’s failure to sign the contract on the

“Resident” line and specifically designate himself as power of attorney for Father, Smith
                                                                                          -11-


was acting as Father’s attorney-in-fact rather than in his individual capacity when he

executed the contract with Village as Father’s “Representative.” Given that fact, Village

waived any argument that Smith is subject to individual liability under one of statutory

exceptions set forth at R.C. 1337.092(B), as Village “did not raise the applicability of the

statute in its * * * complaint” or in opposition to Smith’s motion for summary judgment.

See Vancrest Mgt. Corp., 2019-Ohio-2958, 140 N.E.3d 1051, at ¶ 16.

       {¶ 19} Furthermore, and perhaps most compellingly, we conclude that Smith, in

executing the contract with Village as Father’s representative (whether through his power

of attorney or otherwise), did not become subject to individual liability for the expenses

incurred for Father’s care. Smith specifically disclaimed in writing any intent or willingness

to assume personal responsibility for Father’s charges. (Complaint, Exh. A, attached Exh.

A.) Village attempted to override that declaration by arguing that Smith is personally liable

for the breach of contract terms that required him to pay Father’s expenses from Father’s

assets and for his alleged “failure to cooperate” in attempting to secure Medicaid benefits

for Father’s expenses. Reviewing the matter de novo, we agree with the trial court’s

conclusion that Village may not employ this “breach of contract” rationale to impose

personal liability on Smith where the involuntary imposition of such responsibility is

prohibited by both state and federal law.

       {¶ 20} Under 42 U.S.C. 1396r(c)(5)(A)(ii), “a nursing facility must * * * not require

a third party guarantee of payment to the facility as a condition of admission (or expedited

admission) to, or continued stay in, the facility.” That provision “shall not be construed as

preventing a facility from requiring an individual, who has legal access to a resident’s

income or resources available to pay for care in the facility, to sign a contract (without
                                                                                            -12-


incurring personal financial liability) to provide payment from the resident’s income or

resources for such care.” (Emphasis added.) 42 U.S.C. 1396r(c)(5)(B)(ii).

        {¶ 21} Further, under 42 C.F.R. 483.15(a)(3), a nursing facility

        must not request or require a third party guarantee of payment to the facility

        as a condition of admission or expedited admission, or continued stay in the

        facility. However, the facility may request and require a resident

        representative who has legal access to a resident’s income or resources

        available to pay for facility care to sign a contract, without incurring personal

        financial liability, to provide facility payment from the resident’s income or

        resources.

(Emphasis added.)

        {¶ 22} Similarly, Ohio’s administrative regulations governing “NFs” (nursing

facilities) state:

        A provider of a NF shall not:

             ***

             (4) [r]equire a third party to accept personal responsibility for paying

             the facility charges out of his or her own funds. However, the facility

             may require a representative who has legal access to an

             individual’s income or resources available to pay for facility care to

             sign a contract, without incurring personal financial liability, to

             provide facility payment from the individual’s income or resources if

             the individual’s medicaid application is denied and if the individual’s

             cost of care is not being paid by medicare or another third-party
                                                                                           -13-


           payor. A third-party guarantee is not the same as a third-party payor

           (i.e., an insurance company), and this provision does not preclude

           the facility from obtaining information about medicare and medicaid

           eligibility or the availability of private insurance. The prohibition

           against third-party guarantees applies to all individuals and

           prospective individuals in all certified NFs regardless of payment

           source. This provision does not prohibit a third party from voluntarily

           making payment on behalf of an individual.

(Emphasis added.) Ohio Adm.Code 5160-3-02(C)(4).

       {¶ 23} Although other Ohio appellate courts have alluded to the implications of 42

U.S.C. 1396r(c)(5)B)(ii) and Ohio Adm.Code 5160-3-02(C)(4) in this context, those

decisions ultimately did not determine whether such provisions prohibit the imposition of

personal liability on a third-party alleged to have breached an agreement to pay a nursing

facility from the nursing facility resident’s assets under the third-party’s control. See

Vancrest Mgt. Corp., 2019-Ohio-2958, 140 N.E.3d 1051, ¶ 19 (finding that nursing facility

“waived any argument” that would make such analysis necessary); Classic Healthcare

Sys., LLC v. Faun Miracle, 12th Dist. Warren No. CA2017-03-029, 2017-Ohio-8540, ¶ 21

(noting that defendant representative of nursing facility resident “neither appealed

[judgment at issue] nor * * * argued in defense of [nursing facility’s] appeal that the federal

and state regulations preclude his personal liability”).4


4  But see Faun Miracle at ¶ 29-33 (S. Powell, P.J., dissenting) (“Although [the
representative of the nursing facility resident] has not cross-appealed concerning this
issue, I am also compelled to disagree with the underlying conclusion that [the nursing
facility] was entitled to a personal judgment against [the representative] based upon his
breach of the agreement with [the nursing facility]. * * * [T]he agreement [for the
                                                                                           -14-


       {¶ 24} With that issue now squarely before us as a component of Smith’s defense,

we determine that a nursing facility may not accomplish through these types of contractual

provisions (i.e., requiring a third-party representative to pay the nursing facility from the

resident’s assets and/or to assist in obtaining government or insurance benefits to pay

such charges) what federal and Ohio law strictly forbid: imposing personal liability on a

resident’s representative who does not voluntarily agree to assume that responsibility.

While 42 U.S.C. 1396r(c)(5)(A)(ii) explicitly authorizes a nursing facility to require a third-

party with “legal access to a resident’s income or resources * * * to sign a contract * * * to

provide payment” to the nursing facility from the resident’s income or resources, that

authorization comes with the express proviso that the third-party signs any such contract

“without incurring personal financial liability.” 42 C.F.R. 483.15(a)(3), too, provides that a

third-party may be required to sign such a contract “without incurring personal financial

liability,” and Ohio Adm.Code 5160-3-02(C)(4) echoes the same “without incurring

personal financial liability” language.

       {¶ 25} In direct contravention of the provisions of 42 U.S.C. 1396r(c)(5)(A)(ii), 42

C.F.R. 483.15(a)(3), and Ohio Adm.Code 5160-3-02(C)(4), the form contract that Village

required Smith to sign in order to admit Father to Village’s care provided that Smith

“agree[d] to pay from his/her own resources any unpaid charges due to [Village] as a

result of the Representative’s [Smith’s] failure to cooperate in the Medicaid eligibility

process.” (Complaint, Exh. A, attached Exh. C, ¶ C6.) Village is not entitled to enforce

that provision.


representative to pay the nursing facility from the resident’s resources] allowed by [42
U.S.C. 1396r(c)(5)(A)(ii) and Ohio Adm.Code 5160-3-02(C)(4)] cannot create a personal
financial liability.” (Emphasis added.)
                                                                                          -15-


       {¶ 26} Furthermore, as to the contract terms that purported to subject Smith to

personal liability for failing to assure that Father’s charges were paid from Father’s

resources under Smith’s control (id. at ¶ C3), Village did not produce evidence in

opposition to Smith’s summary judgment motion that demonstrated Father’s resources

had “transfer[red] by operation of law while [Father] * * * ha[d] outstanding debts to

[Village],” or that Smith “misrepresented” to Village any information pertinent to Father’s

resources or admission. (See id.) Absent such evidence, Village failed to sustain its

burden to show that a genuine issue of material fact remained regarding Smith’s personal

liability, even if such personal liability could be imposed in circumstances this record does

not even suggest (e.g. self-serving malfeasance by the representative).

       {¶ 27} Given that Smith had resigned as Father’s attorney-in-fact and Village

demonstrated no valid factual or legal basis on which to hold Smith personally liable for

Father’s indebtedness to Village, the trial court did not err by entering summary judgment

in Smith’s favor as to Village’s complaint in its entirety.

       {¶ 28} Village’s assignments of error are overruled.

                                         Conclusion

       {¶ 29} For the foregoing reasons, the judgment of the trial court will be affirmed.

                                       .............



TUCKER, P.J. and HALL, J., concur.


Copies sent to:

Robert C. Wiesenmayer
David D. Brannon
Hon. Timothy N. O’Connell
