[Cite as Smith v. Lurie, 2012-Ohio-5082.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98577



        SAMUEL L. SMITH, D.B.A. SMITH LIMO/TRAN
                                               PLAINTIFF-APPELLEE

                                                 vs.


                                        JOYCE LURIE
                                               DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                        Civil Appeal from the
                                      Lyndhurst Municipal Court
                                       Case No. 10 CVF 00944

        BEFORE: Kilbane, J., Boyle, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                      November 1, 2012
ATTORNEYS FOR APPELLANT

Dennis A. Nevar
Kenneth J. Fisher
Kenneth J. Fisher Co., L.P.A.
2100 Terminal Tower
50 Public Square
Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Robert M. Fertel
Zashin & Rich Co., L.P.A.
55 Public Square, 4th Floor
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} This is an accelerated appeal brought pursuant to App.R. 11.1 and

Loc.App.R. 11.1.

      {¶2} Defendant-appellant, Joyce Lurie (“Lurie”), appeals the Lyndhurst

Municipal Court’s judgment adopting the magistrate’s decision in favor of

plaintiff-appellee, Samuel Smith d.b.a. Smith Limousine & Transportation Co. (“Smith”).

For the reasons set forth below, we affirm.

      {¶3} The facts of the case were previously set forth by this court in Smith’s prior

appeal, Smith v. Lurie, 8th Dist. No. 97360, 2012-Ohio-499, ¶ 2-4:

      In 2010, Smith filed an amended complaint against Lurie seeking payment
      for transportation services rendered to Lurie. The complaint alleged causes
      of action for breach of contract, action on an account, unjust enrichment
      and/or quantum meruit, and promissory and/or equitable estoppel. In
      Lurie’s amended answer, “she promised to compensated [sic] [Smith] for
      services provided as alleged * * * but states the invoiced amounts do not
      accurately reflect the services actually provided.” Included in the amended
      answer, Lurie listed as an affirmative defense, “failure to state a claim upon
      which relief may be granted.”

      The trial court coordinated a case management schedule with the parties,
      establishing the dispositive motion deadline as March 15, 2011. On April
      14, 2011, Lurie requested leave from the trial court to file a Motion to
      Dismiss pursuant to Civ.R. 12(B)(6). Over objection, the trial court granted
      Lurie leave. The motion to dismiss asserted that Smith was not legally
      permitted to operate a motor vehicle for the transportation of persons on the
      public highways of the state of Ohio because Smith was not properly
      registered with the Public Utilities Commission of Ohio (“PUCO”) pursuant
       to R.C. 4923.04. In support of this argument, Lurie attached purported
       email correspondence between her attorney and an individual from the
       PUCO indicating that the PUCO Motor Carrier Section had no record of the
       companies “Samuel L. Smith” and “Smith Limousine & Transportation
       Company.”

       After exhaustive briefing and a hearing on the motion, the trial court
       granted Lurie’s motion and dismissed Smith’s complaint.

       {¶4} Smith then appealed to this court, arguing that the trial court erred in

granting Lurie’s motion to dismiss because the court relied on an email containing matters

not included in the complaint. Id. at ¶ 12. We agreed, stating that: “[b]ecause this

email was the only document supporting Lurie’s assertion that Smith was not a registered

PUCO motor carrier and thus unable to assert his cause of action, it is clear that the trial

court considered matters outside the amended complaint in determining Smith’s motion to

dismiss.” Id. at ¶ 13.

       {¶5} Following our remand, the parties proceeded to a hearing before a

magistrate, who issued a decision in favor of Smith. The magistrate found that Smith is

entitled to $5,435.55 under the theory of quantum meruit because Lurie breached a

contract with Smith when Smith provided Lurie transportation services and she did not

pay for them. Lurie objected, but the trial court adopted the magistrate’s decision and

overruled Lurie’s objections.

       {¶6} Lurie now appeals raising the following sole assignment of error.

                                ASSIGNMENT OF ERROR

       The Lyndhurst Municipal Court erred as a matter of law in granting
       judgment to Plaintiff/Appellee [Smith] on the theory of quantum meruit
       where [Smith] was admittedly not registered as a “private motor carrier” as
       required by Ohio law.

       {¶7} The standard of review on appeal from a decision of a trial court adopting a

magistrate’s decision is whether the trial court abused its discretion. Butcher v. Butcher,

8th Dist. No. 95758, 2011-Ohio-2550, ¶ 7, citing O’Brien v. O’Brien, 167 Ohio App.3d

584, 2006-Ohio-1729, 856 N.E.2d 274 (8th Dist.). An abuse of discretion “‘implies that

the court’s attitude is unreasonable, arbitrary or unconscionable.’”        Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62

Ohio St.2d 151, 404 N.E.2d 144 (1980).

       {¶8} Lurie, relying on Leatherbury v. Reagan, 34 Ohio App.3d 291, 518 N.E.2d

58 (2d Dist. 1987), argues that, under public policy grounds, Smith’s quantum meruit

cause of action fails because Smith was prohibited from providing transportation services

when it failed to obtain a permit from the PUCO. Thus, Lurie maintains that Smith

should not be able to recover for “illegal services” it rendered. We find Leatherbury

distinguishable.

       {¶9} Leatherbury involved the issue of whether “appellant, who worked as a

sales manager in real estate activities for another as a regular employee, was entitled to

recover compensation without having a real estate license as required by R.C. 4735.21.”

Id. at 291. R.C. 4735.21 provides that “[n]o right of action shall accrue to any person,

partnership, association, or corporation for the collection of compensation * * * without

alleging and proving that such person, partnership, association, or corporation was

licensed as a real estate broker or foreign real estate dealer.” The Second District Court
of Appeals found that the section did not prohibit the filing of the lawsuit. Rather, it

added an essential element of the cause of action for a plaintiff to allege and prove. The

court further noted that appellant’s unjust enrichment cause of action was properly

dismissed because “[i]f the statute prohibited recovery, the court could not reach for

equitable or other forms of relief to defeat the public policy adopted by the legislature.”

Id. at 293.

       {¶10} Unlike Leatherbury, in the instant case, there is no specific statutory

requirement in R.C. Chapter 4923 that Smith must allege or prove that it is registered as a

private motor carrier with the PUCO in order to bring its lawsuit. Lurie’s counsel

conceded the same at appellate oral argument. Rather, the record reflects that the parties

stipulated to the following:

       1) [Smith] performed the services as outlined in [its] amended complaint.

       2) * * * [T]he amount in controversy of $5,435.55 was performed by
       [Smith].

       3) * * *[Smith] performed services for [Lurie] during the period of August
       31, 2009 through December 11, 2009, but was not paid for the services
       preformed.

       {¶11} We note that quantum meruit is awarded when one party confers some

benefit upon another without receiving just compensation for the reasonable value of

services rendered. Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51,

55, 544 N.E.2d 920 (1989). Lurie has stipulated that Smith performed $5,435.55 in

transportation services for Lurie and she did not pay for those services. Considering that

the elements of quantum meruit have been satisfied, we find Lurie has failed to
demonstrate that the trial court abused its discretion when it adopted the magistrate’s

decision.

      {¶12} Accordingly, the sole assignment of error is overruled.

      {¶13} Judgment is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the Lyndhurst Municipal Court to

carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
