[Cite as City Rentals, Inc. v. Kesler, 191 Ohio App.3d 474, 2010-Ohio-6264.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               DEFIANCE COUNTY




CITY RENTALS, INC. et al.,

        APPELLANTS,                                                 CASE NO. 4-10-08

        v.

KESLER,                                                             OPINION

        APPELLEE.




                         Appeal from Defiance Municipal Court
                               Trial Court No. CI09-591

                                      Judgment Affirmed

                          Date of Decision: December 20, 2010




APPEARANCES:

        Timothy C. Holtsberry, for appellants.

        Elizabeth J. Schuller, for appellee
Case No. 4-10-08


       PRESTON, Judge.

       {¶ 1} Plaintiffs-appellants, City Rentals, Inc., and E.J. Zeller, Inc.

(collectively, “City Rentals”), appeal the judgment of the Defiance County

Municipal Court dismissing City Rentals’ case against Rodney Kesler. For the

reasons that follow, we affirm.

       {¶ 2} In the fall of 2008, City Rentals discovered that its former

bookkeeper, Robin Bauer, had embezzled several hundred thousand dollars from

the company. On July 29, 2009, Bauer was convicted in a separate criminal case

and ordered to pay $200,000 in restitution to City Rentals.

       {¶ 3} During the commission of the criminal offense, Bauer forged several

checks drawn on City Rentals’ bank account and issued them to various people

including Kesler. Kesler described Bauer as a neighbor and family friend whom

he had known for over 30 years. Kesler also explained that between 2005 and

2007, he had lent money to Bauer on several occasions in the form of personal

loans. Between June 2007 and July 2008, Bauer repaid some of the money she

owed to Kesler by directly depositing checks into his bank account or making

payments on his commercial and mortgage loans serviced by the bank. Kesler

admitted giving Bauer permission over the phone to make each deposit or

payment.




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      {¶ 4} However, Kesler stated that unbeknownst to him at the time, Bauer

made these deposits and payments using City Rentals’ checks. Kesler explained

that he never saw or endorsed the checks Bauer deposited into his account, and he

further denied having any knowledge that the checks used by Bauer had been paid

from City Rentals’ funds. Kesler maintained that he became aware of Bauer’s

wrongdoing only when the police questioned him about the checks in the fall of

2008 during their investigation of Bauer. Kesler was never charged in connection

with Bauer’s crime.

      {¶ 5} City Rentals claimed that Bauer was not authorized to write the

checks to Kesler. In addition, it is undisputed by the parties that Kesler never

provided any goods or services to City Rentals. After becoming aware of Bauer’s

embezzlement, City Rentals notified Kesler that Bauer had forged the checks

issued to him and demanded that he return the funds. Kesler refused City Rentals’

demands.

      {¶ 6} City Rentals subsequently filed this action in the Defiance County

Municipal Court, alleging that Kesler’s retention of the funds constituted unjust

enrichment. Kesler submitted his answer denying City Rentals’ allegation. On

March 10, 2010, City Rentals filed a motion for summary judgment. On April 10,

2010, Kesler also filed a motion for summary judgment.        In his motion for

summary judgment, Kesler asserted that the Uniform Commercial Code ( “UCC”),



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governed this case because Bauer had paid him with checks, which are negotiable

instruments. Kesler maintained that because he received the checks as payment on

an antecedent debt he was a holder in due course under the relevant provisions of

the UCC and therefore was under no obligation to return the funds to City Rentals.

       {¶ 7} The trial court subsequently overruled both parties’ motions for

summary judgment and stated that two genuine issues of material fact remained:

(1) whether Kesler “had no knowledge of [City Rentals’] checks being deposited

into his accounts and (2) the amount of [City Rentals’] funds received by

[Kesler].”

       {¶ 8} Prior to trial, the parties stipulated that Bauer deposited $13,420 of

City Rentals’ money into Kesler’s accounts.        On May 20, 2010, the court

conducted a bench trial. The only witnesses to testify were Kesler and his wife.

On June 10, 2010, the trial court issued its decision granting judgment in favor of

Kesler and dismissing City Rentals’ case. In rendering its decision, the trial court

concluded that the UCC, and not common-law principles, governed this case. The

trial court further stated that it was “convinced that Defendant Kesler had no

knowledge of Robin Bauer using money embezzled from the Plaintiffs.” The trial

court then concluded:

              With the evidence presented to the Court, case law mandates
       that Plaintiffs’ case be dismissed, the Defendant having received
       payment of an antecedent debt in good faith without knowledge of
       the funds having been embezzled by the payer [sic].


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              This is not to say that Plaintiffs don’t have further recourse as
      to the return of their money, as the Defiance County Common Pleas
      Court has already ordered the repayment of the money embezzled by
      their former employee.

      {¶ 9} On June 29, 2010, City Rentals filed its notice of appeal and

submitted the following three assignments of error for our review.

                        ASSIGNMENT OF ERROR NO. I
             The trial court erred as a matter of law denying the plaintiffs’
      motion for summary judgment as there were no material facts at
      issue and judgment was a matter of law.

      {¶ 10} In its first assignment of error, City Rentals argues that the trial court

erred in denying its motion for summary judgment. Specifically, City Rentals

contends that the court erred when it found that genuine issues of material fact

remained that warranted the denial of City Rentals’ motion for summary

judgment.

      {¶ 11} Generally, an appellate court reviews a lower court’s decision to

deny summary judgment de novo. Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390,

738 N.E.2d 1243. Summary judgment is proper where there is no genuine issue of

material fact, the moving party is entitled to judgment as a matter of law, and

reasonable minds can reach but one conclusion when viewing the evidence in

favor of the nonmoving party, and the conclusion is adverse to the nonmoving

party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn.

(1994), 69 Ohio St.3d 217, 219, 631 N.E.2d 150. De novo review is independent


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Case No. 4-10-08


and without deference to the trial court’s judgment. Monroeville v. Wheeling &

Lake Erie Ry. Co., 152 Ohio App.3d 24, 2003-Ohio-1420, 786 N.E.2d 504, ¶ 9

See also Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d 311, 313, 667 N.E.2d

949.

       {¶ 12} In order to prove its claim for unjust enrichment City Rentals had to

demonstrate that (1) it conferred a benefit upon Kesler, (2) Kesler had knowledge

of the benefit, and (3) Kesler had retained the benefit under circumstances where it

would be unjust to do so without payment. Hambleton v. R.G. Barry Corp.

(1984), 12 Ohio St.3d 179, 183, 465 N.E.2d 1298. Specifically, at issue in this

assignment of error is whether a genuine issue of material fact remained as to the

second element—whether Kesler knew that Bauer was depositing City Rentals’

checks into his account. City Rentals maintains that the trial court misconstrued

the knowledge requirement necessary to prove an unjust-enrichment claim when it

found that a genuine issue of material fact remained regarding this element.

However, after reviewing the evidence before the court in favor of Kesler, as the

nonmoving party, we find that the record supported the trial court’s determination

that summary judgment in this case was inappropriate.

       {¶ 13} Moreover, even assuming arguendo that we find error in the trial

court’s determination that a genuine issue of material fact remained, the error is

harmless and does not rise to the level of reversible error under these



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circumstances. The Supreme Court of Ohio has previously held that “any error by

a trial court in denying a motion for summary judgment is rendered moot or

harmless if a subsequent trial on the same issues raised in the motion demonstrates

that there were genuine issues of material fact supporting a judgment in favor of

the party against whom the motion was made.”               Continental Ins. Co. v.

Whittington (1994), 71 Ohio St.3d 150, 156, 642 N.E.2d 615. Here, the trial court

conducted a bench trial on the same issues raised by City Rentals in its motion for

summary judgment. The evidence adduced at trial demonstrated that there were

genuine issues of material fact supporting judgment in favor of Kesler on City

Rentals’ claim for unjust enrichment.

       {¶ 14} Accordingly, for the reasons stated above, City Rentals’ first

assignment of error is overruled.

                        ASSIGNMENT OF ERROR NO. II
              The trial court erred in the dismissal of the plaintiffs’ case as
       the decision was against the manifest weight of the evidence.

       {¶ 15} In its second assignment of error, City Rentals contends that the trial

court’s decision to dismiss its claim for unjust enrichment was against the manifest

weight of the evidence. In raising this assignment of error, City Rentals appears to

incorporate essentially the same argument from the previous assignment of error

that the trial court misconstrued the second element of unjust enrichment.

Specifically, this element requires a showing that Kesler had knowledge of a



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benefit conferred upon him by City Rentals. City Rentals maintains that Kesler’s

testimony demonstrated that he developed the requisite knowledge that City

Rentals had conferred a benefit to him when the police informed him of Bauer’s

embezzlement.

       {¶ 16} A civil judgment “supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed by a reviewing

court as being against the manifest weight of the evidence.” C.E. Morris Co. v.

Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus. “[W]hen

reviewing a judgment under a manifest-weight-of-the-evidence standard, a court

has an obligation to presume that the findings of the trier of fact are correct.”

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24,

citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d

1273. The rationale for this presumption is that the trial court is in the best

position to evaluate the evidence by viewing witnesses and observing their

demeanor, voice inflection, and gestures. Seasons Coal Co. v. Cleveland at 80. “A

reviewing court should not reverse a decision simply because it holds a different

opinion concerning the credibility of the witnesses and evidence submitted before

the trial court. A finding of an error in law is a legitimate ground for reversal, but

a difference of opinion on credibility of witnesses and evidence is not.” Id. at 81.




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       {¶ 17} Although the trial court did not explicitly indicate that it relied on

the UCC in rendering its decision, it is apparent that it followed the UCC doctrine

of holder in due course in making its ruling. In particular, the trial court in its

judgment entry dismissing City Rentals’ case quoted at length from Hinkle v.

Cornwell Quality Tool Co. (1987), 40 Ohio App.3d 162, 532 N.E.2d 772. In

Hinkle, the Ninth District Court of Appeals held that “only bad faith on the part of

a third person receiving stolen money or his failure to pay valuable consideration

therefor, will defeat his title thereto as against the true owner. Money and bank

notes are the exception to the general rule that no one can obtain title to stolen

property. A holder in due course of a stolen negotiable instrument can receive

good title thereto and is subject only to the defense that he was a party to the

theft.” (Citations omitted.) Id. at 166-167.

       {¶ 18} Despite City Rentals’ contentions that the common law should

control this case, we believe the trial court correctly determined that the facts of

this case fall under the province of the UCC. The payments at issue were made by

eight checks written on City Rentals’ account. Checks are negotiable instruments

falling within the scope of the UCC, which is codified in R.C. Chapter 13. See

R.C. 1303.02 (stating that R.C. Chapter 13 applies to negotiable instruments) and

1303.03(F)(1) (defining a check as a negotiable instrument that is a draft payable

on demand and drawn on a bank). R.C. 1301.03 further provides:



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              Unless displaced by the particular provisions of Chapters
       1301., 1302., 1303., 1304., 1305., 1307., 1308., 1309., and 1310. of
       the Revised Code, the principals of law and equity, including the law
       merchant and the law relative to capacity to contract, principal and
       agent, estoppel, fraud, misrepresentation, duress, coercion, mistake,
       bankruptcy, or other validating or invalidating cause shall
       supplement their provisions.

Moreover, “when the Ohio General Assembly has codified the law on a subject,

the statute governs to the exclusion of the common law, unless there is clear

legislative intent that the statutory provisions are merely duplicative. * * * There is

nothing in the Uniform Commercial Code which indicates that the Ohio General

Assembly intended its provisions to be duplicative of the common law it

supplanted.” Baggott v. Piper Aircraft Corp. (S.D.Ohio 1999), 101 F.Supp.2d

556, 561; see Amzee Corp. v. Comerica Bank-Midwest, 10th Dist. No. 01AP-465,

2002-Ohio-3084, ¶ 46 (finding that where a company’s employee forged company

checks to pay her personal charge account at a bank, the company could not sue

the bank on common-law claims for conversion, negligence, and unjust

enrichment because the UCC governed the transaction).

       {¶ 19} Having concluded that the provisions of the UCC govern the parties’

rights and responsibilities in this case, we must next determine whether the trial

court’s decision to dismiss City Rentals’ claim for unjust enrichment was

supported by some competent, credible evidence. Implicit in the trial court’s

ruling is its determination that Kesler was a holder in due course and, therefore,



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not subject to City Rentals’ claim for unjust enrichment. Generally speaking, a

holder in due course takes an instrument, in this instance a check, free from all

claims and defenses with certain limited exceptions. All Am. Fin. Co. v. Pugh

Shows, Inc. (1987), 30 Ohio St.3d 130, 131-132, 507 N.E.2d 1134. A person who

is not a holder in due course takes the instrument subject to all valid claims,

defenses available in an action on a simple contract, claims in recoupment, and

certain other specified defenses. Id.; see also R.C. 1303.35 (listing the claims and

defenses in recoupment).

       {¶ 20} In order to qualify as a holder in due course, a person must meet all

the statutory requirements. Arcanum Natl. Bank v. Hessler (1982), 69 Ohio St.2d

549, 552, 433 N.E.2d 204. “Under UCC 3-302, a holder becomes a holder in due

course if the holder takes the instrument (1) for value, (2) in good faith, (3) and

without notice of any claims or defenses otherwise available to the person

obligated on the instrument or various defects in the instrument.” Dice v. White

Family Cos., Inc., 173 Ohio App.3d 472, 2007-Ohio-5755, 878 N.E.2d 1105, ¶ 27,

citing R.C. 1303.32(A)(2).

       {¶ 21} At trial, Kesler testified that he had known Bauer for over 30 years.

Kesler explained that he and Bauer were raised in the same town, went to the same

primary and secondary schools, and had been neighbors at one point. Kesler




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testified that his family and Bauer’s family spent time together on several

occasions because their children were roughly the same ages.

      {¶ 22} Kesler recalled that the first time Bauer came to him asking to

borrow money, the amount was only $500. Kesler stated that Bauer repaid him in

cash a few weeks later. Kesler then described other specific instances in which he

lent Bauer money for her son’s graduation party and to buy a car for her oldest

daughter.   Kesler maintained that in each instance the loan amount was

somewhere between $500 to $1,100. Kesler testified that the largest amount he

lent to Bauer at one time was $5,000, which Bauer needed in order to get a

divorce. Kesler admitted that their arrangement remained informal and was never

reduced to writing.

      {¶ 23} Kesler testified that he did not hesitate in lending Bauer money

because he was aware that she was going through a difficult time with her

marriage and, based on the first few instances when he had lent her money, he

trusted that Bauer would promptly repay him.        Kesler stated that Bauer had

established a course of conduct in which she would repay him in person with

either cash or a check written on her personal checking account.

      {¶ 24} Kesler recalled that after he had lent Bauer some of the larger

amounts of money in the spring of 2007, she became less prompt with repayment.

Kesler described specific instances in which he resorted to calling Bauer asking



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for some of his money. The following is an excerpt from Kesler’s testimony at

trial:

             Q:       And so you had some discussion about, “When are you
         going to pay me?”

              A:      Yes. As a matter of fact, one time, I had to, I got
         pretty verbal, that I needed my money. Me and my wife were going
         to do something, some other business, and I had to have my money.
         And that time she put one of the larger amounts, I don’t remember
         the date of the check, but one time she put one of the larger
         amounts into the Huntington checking account. Because I went to
         the Huntington Bank to make sure that she did, before I left town.

             Q:       But you would just, after these conversations, direct
         her where to put the checks, or where to pay?

             A:       Right.

              Q:       You would say, “Just take it down to First Federal and
         put it into my checking account.”

             A:       Yes.

             Q:       And then—

             A:      She would call me first, and say, “Hey, I have X
         amount,” whatever that, say if it was Eleven Hundred Dollars, “I
         have the Eleven Hundred Dollars, Rodney,” and, “What do you
         want me to do with this?”

             Q:       Okay.

              A:       Because sometimes, I wanted my money right then,
         and a couple of times I drove back to Defiance, you know, prior to
         all this. And then I said, “Hey, just run it up to the bank and put it
         into my checking account.” My name is the only one on the
         checking account, so at First Federal, and that is when it first
         started, her going and putting something into my account.


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           Q:       And then, the times you would run back into Defiance
       to get the money, would she have paid you cash?

           A:      Yes. That or, there were a couple times when she gave
       me a personal check from her account.

           Q:      And then you’d check online?

           A:      Yes.

            Q:      Your online banking statement doesn’t have any
       images, imaging, of the checks that are deposited, or anything of
       that nature?

            A:     No, the only images it has are just my personal checks
       that come back to the bank.

           Q:       Okay, just opposed to sending you a bank statement,
       then, you can get online and see your checks that cleared?

           A:      Yes.

           Q:      So you can reconcile your checkbook?

           A:      Right. Correct.

            Q:       But as far as deposits, it wouldn’t show you a deposit
       slip and, like, a list of checks or currency that was deposited?

            A:     No, it just had, just a deposit, and like a slash mark,
       and then a date, and an amount. I believe it was about like the
       statements. That statement there has—

          Q:       Okay, So how would you keep track of the loan
       amounts, then?

            A:     Like I said, if I loaned her Five Hundred Dollars, for
       instance, she pulled back in my driveway and paid me Five
       Hundred Dollars back. So then she didn’t owe me anything


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       anymore, of course. You know, the next time she wanted to borrow
       some money, say it was one of the Eleven Hundred Dollar ones, she
       would come, and I would loan her the money, and within a few
       weeks, or sometimes a month, she would pay me back. Like I said
       I never got, or let it get out of control, or it never went a large
       amount of time, or it never went over the amount of the largest that
       we had loaned her.

              Q:     And that was the Five Thousand Dollars?

              A:     The Five Thousand Dollars.

       {¶ 25} Kesler maintained that when he was able to meet with Bauer she

would pay him in cash or with a personal check. It was only on the occasions that

he did not personally meet with Bauer that she repaid him by directly depositing

the checks into his accounts.

       {¶ 26} Kesler revealed that he was notified of Bauer’s wrongdoing several

months after Bauer’s last repayment when the police questioned him during their

investigation of Bauer. Kesler denied having any knowledge that Bauer had used

City Rentals’ checks to make repayment to him.

       {¶ 27} Kesler’s wife, Melinda, was the only other witness to testify.

Melinda described her relationship with Bauer as “just friendly neighbors.”

Melinda stated that she knew that Kesler had lent money to Bauer. Melinda

expressed empathy for Bauer’s poor marital situation and stated that she felt sorry

for Bauer’s children. Melinda further stated that she trusted that Bauer would

repay them.



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       {¶ 28} Based on the testimony elicited at trial, we find that the judgment of

the trial court was supported by some competent, credible evidence going to all of

the essential elements in this case. In reviewing the trial court’s application of the

holder-in-due-course doctrine to this case, we agree with the trial court that Kesler

paid value for the checks in question. Bauer deposited the checks into Kesler’s

account as repayment for an existing debt she owed to him. R.C. 1303.33(A)(3)

provides that “[a]n instrument is issued or transferred for value if * * * [t]he

instrument is issued or transferred as payment of, or as security for, an antecedent

claim against any person, whether or not the claim is due.”

       {¶ 29} Regarding the second holder-in-due-course element of good faith,

City Rentals presented no evidence that Kesler lacked good faith when he received

the checks. See Buckeye Check Cashing, Inc., v. Camp, 159 Ohio App.3d 784,

2005-Ohio-926, 825 N.E.2d 644 (stating that good faith is defined as the absence

of bad faith or dishonesty with respect to a party’s conduct in a commercial

transaction). On the contrary, Kesler’s testimony indicates that he was completely

unaware that Bauer used City Rentals’ checks to make the repayments that she

deposited into his accounts.

       {¶ 30} We also find that the evidence supported the trial court’s decision

with respect to the third holder-in-due-course element of notice.        In order to

prevent one from taking as a holder in due course, notice of claims or defenses of



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the person obligated on the instrument must be acquired at the time of the taking

or the time the instrument is transferred and not subsequently arising thereafter.

See 71 Ohio Jurisprudence 3d (2010), Negotiable Instruments and Other

Commercial Paper, Section 322. Kesler was consistent in his adamant denial of

having any knowledge that Bauer forged the checks she deposited into his

accounts at the time she made the repayments.           Furthermore, City Rentals

presented no evidence at trial to rebut Kesler’s testimony. After reviewing the

record before us it is evident that City Rentals simply failed to present any

evidence to overcome Kesler’s defense that he was a holder in due course under

these circumstances.

       {¶ 31} Moreover, although not mentioned by the parties, the UCC expressly

addresses the liability of the employer in a situation, such as this one, in which an

employee entrusted with the responsibility of issuing checks on behalf of the

employer has committed fraud.        R.C. 1303.47 (employer’s responsibility for

fraudulent endorsement by employee). This particular section adopts the principle

that the risk of loss for certain fraudulent conduct by employees who are entrusted

with the responsibility with respect to checks should fall on the employer rather

than on innocent third parties. The rationale for this position is that “the employer

is in a far better position to avoid the loss by care in choosing employees, in

supervising them, and in adopting other measures to prevent * * * fraud in the



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issuance of instruments in the name of the employer.” Official comment to UCC

Section 3-405; see R.C. 1303.47. Notwithstanding the above, we acknowledge

that Bauer was not a party to this case and that no evidence was presented at trial

regarding Bauer’s employment with City Rentals other than the fact that she was

employed as a bookkeeper for the company.

       {¶ 32} Nevertheless, for the reasons discussed above, we find no error in

the trial court’s decision to dismiss City Rentals’ case, having found that its

judgment was supported by some competent, credible evidence. Accordingly,

City Rentals’ second assignment of error is overruled.

                         ASSIGNMENT OF ERROR NO. III
               The trial court erred as a matter of law by applying the law of
        conversion in the dismissal of the plaintiffs’ case when the
        plaintiffs’ complaint and entire case prayed for relief under the
        theory of unjust enrichment.

       {¶ 33} In its third assignment of error, City Rentals claims that the trial

court erroneously applied the law of conversion rather the law of unjust

enrichment when it decided to dismiss its case. In raising this assignment of error,

City Rentals’ obfuscates the trial court’s ruling. As previously stated, the trial

court relied on the UCC holder-in-due-course doctrine when it dismissed City

Rentals’ case. A central tenent of the holder-in-due-course doctrine is that the

holder in due-course takes the instrument free of claims or defenses made by the

obligor, in this case City Rentals.



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       {¶ 34} Although the trial court in its judgment entry relied on case law

shielding a holder in due course from liability on a claim for conversion, the same

result is contemplated by the UCC regarding an obligor’s claim for unjust

enrichment against a holder in due-course.       Once a person has demonstrated

entitlement to holder-in-due-course status, he is immunized from most of the

obligor’s claims and defenses, including a claim for unjust enrichment. See Dice

v. White Family Cos., Inc., 173 Ohio App.3d 472, 2007-Ohio-5755, 878 N.E.2d

1105, ¶ 61 (stating that “[t]o permit a claim for unjust enrichment when the UCC

precludes liability is contrary to the ‘delicately balanced statutory scheme’ of the

UCC”). Accordingly, the trial court’s reliance on a case addressing an obligor’s

claim for conversion is inconsequential to the outcome of this case because the

same analysis is used when addressing an obligor’s claim for unjust enrichment

against a holder in due course. As a result, we find no error in the trial court’s

decision to dismiss City Rentals’ case on this basis.

       {¶ 35} Finally, in upholding the judgment of the trial court we are reminded

of the following. “[T]he Uniform Commercial Code is a delicately balanced

statutory scheme designed, in principle, to ultimately shift the loss occasioned by

negotiation of a forged instrument to the party bearing the responsibility for the

loss. Ideally, the thief is held accountable. The unfortunate reality is that the loss

is often shifted to the innocent party whose conduct or relationship with the forger



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most facilitated the risk of loss.” Ed Stinn Chevrolet, Inc. v. Natl. City Bank

(1986), 28 Ohio St.3d 221, 226, 503 N.E.2d 524.

         {¶ 36} With this in mind, we overrule City Rentals’ third assignment of

error.

         {¶ 37} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment affirmed.

         WILLAMOWSKI, P.J., concurs.

         ROGERS, J., concurs in judgment only.




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