[Cite as Univ. of Findlay v. Martin, 2017-Ohio-7016.]




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




UNIVERSITY OF FINDLAY,                                      CASE NO. 5-17-02

       PLAINTIFF-APPELLEE,

      v.
                                                            OPINION
BRAD MARTIN, ET AL.,

       DEFENDANTS-APPELLANTS.



                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2015-CV-00169

                     Judgment Affirmed in Part, Reversed in Part
                                 Cause Remanded

                                        Date of Decision:



APPEARANCES:

        Matthew T. Davis and Timothy C. James for Appellants

        Michael W. Regnier and Adam S. Nightingale for Appellee
Case No. 5-17-02


WILLAMOWSKI, J.

       {¶1} Defendants-appellants Brad Martin (“Martin”), USA Lawns, Inc.

(“USA”), and Pat McKinnis (“McKinnis”), collectively known as “the Appellants”,

bring this appeal from the judgment of the Court of Common Pleas of Hancock

County denying summary judgment to the Appellants, determining that plaintiff-

appellee the University of Findlay (“the University”) had standing to pursue the

claim, and for denying the Appellants’ motion to dismiss at trial. For the reasons

set forth below, the judgment is affirmed in part and reversed in part.

       {¶2} On December 10, 2013, the University contracted with USA to perform

lawn and landscape work on property owned by the University. Martin was the

president of USA at that time. The contract included the application of a weed

control herbicide to the lawns. On April 28, 2014, McKinnis was employed by USA

and applied the incorrect solution to the University’s lawns. Soon afterwards the

grass, as well as the weeds in the lawn, began to die. On June 16, 2014, the

University and USA entered into a Covenant Not to Execute Judgment in Excess of

Insurance Proceeds (“Covenant”). The Covenant provided that USA acknowledged

the damage to the lawns, its responsibility for the damage, and that the University

would bring suit to recover the damages. In exchange, USA would pay damages in

the amount of $250,000.00 divided between cash payments and labor. The cash

payments were made and the labor was provided as agreed.



                                         -2-
Case No. 5-17-02


      {¶3} On May 4, 2015, the University filed its complaint alleging the

Appellants were liable for general negligence, negligent supervision, and a failure

to carry insurance as required by Ohio law. Doc. 1. The Appellants filed their

answer to the University’s complaint on May 26, 2015, with an amended answer

being filed on September 3, 2015. Doc. 19 and 29. On November 25, 2015, the

Appellants filed a motion for summary judgment. Doc. 39. The University filed its

response to the motion and its own motion for partial summary judgment on May

27, 2016. Doc. 73 and 74. On September 20, 2016, the trial court denied the

Appellants’ motion for summary judgment and granted the University’s motion for

partial summary judgment. Doc. 81. A bench trial on the remaining issues was held

on December 1, 2016. On December 28, 2016, the trial court entered its final ruling

on the matter granting judgment in favor of the University on all claims. Doc. 93.

The Appellants filed a timely notice of appeal. Doc. 97. The Appellants raise the

following assignments of error on appeal.

                           First Assignment of Error

      The trial court erred when it denied [the Appellants’] motion for
      summary judgment regarding mootness of [the University’s]
      claims and that the parties had entered into an accord and
      satisfaction of [the University’s] claims.

                          Second Assignment of Error

      The trial court erred in determining [the University] had standing
      to pursue a claim for [the Appellants’] alleged failure to carry
      required insurance coverage.


                                        -3-
Case No. 5-17-02


                           Third Assignment of Error

      The trial court erred when it denied [the Appellants’] Civil Rule
      41(B) motion to dismiss at trial.

                            Summary Judgment

      {¶4} In the first assignment of error, the Appellants claim that the trial court

erred in denying its motion for summary judgment.

      An appellate court reviews a trial court’s summary judgment
      decision de novo, independently and without deference to the trial
      court's decision. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio
      St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, at ¶ 5, citing Comer
      v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, at
      ¶ 8. Summary judgment is appropriate only “when the
      requirements of Civ.R. 56(C) are met.” Adkins v. Chief
      Supermarket, 3d Dist. No. 11-06-07, 2007-Ohio-772, at ¶ 7. The
      party moving for summary judgment must establish: (1) that
      there are no genuine issues of material fact; (2) that the moving
      party is entitled to judgment as a matter of law; and (3) that
      reasonable minds can come to but one conclusion and that
      conclusion is adverse to the nonmoving party, said party being
      entitled to have the evidence construed most strongly in his favor.
      Id., citing Civ.R. 56(C); Horton v. Harwick Chem. Corp. (1995), 73
      Ohio St.3d 679, 653 N.E.2d 1196, at paragraph three of the
      syllabus. In ruling on a motion for summary judgment, a court
      may not “weigh evidence or choose among reasonable inferences
      * * *.” Id., at ¶ 8, 653 N.E.2d 1196, citing Jacobs v. Racevskis
      (1995), 105 Ohio App.3d 1, 7, 663 N.E.2d 653. Rather, the court
      must consider the above standard while construing all evidence in
      favor of the non-movant. Jacobs, at 7, 663 N.E.2d 653.

      The party moving for summary judgment must identify the basis
      of the motion to allow the non-movant a “meaningful opportunity
      to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 116,
      526 N.E.2d 798. In its motion, the moving party “must state
      specifically which areas of the opponent’s claim raise no genuine
      issue of material fact and such assertion may be supported by
      affidavits or otherwise as allowed by Civ.R. 56(C).” Id. at 115,

                                        -4-
Case No. 5-17-02


       526 N.E.2d 798, citing Harless v. Willis Day Warehousing Co.
       (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46, citing Hamlin v.
       McAlpin Co. (1964), 175 Ohio St. 517, 519-520, 196 N.E.2d 781;
       Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. If
       the moving party fails to meet its burden, summary judgment is
       inappropriate; however, if the moving party meets its initial
       burden, the non-moving party has a “reciprocal burden outlined
       in Civ.R. 56(E) to set forth specific facts showing that there is a
       genuine issue for trial * * *.” Dresher, at 294, 662 N.E.2d 264.

Lillie v. Meachem, 3d Dist. Allen No. 1-09-09, 2009-Ohio-4934, ¶ 21-22.

       {¶5} In this case, the Appellants claim that the trial court should have granted

their motion for summary judgment. The motion argued that since the parties had

entered the Covenant, the University can receive no award from the trial court. The

Appellants argued that “[e]ven assuming the University succeed[ed] on all accounts

and [was awarded a verdict] in this matter, the University has received the full

spectrum of relief it can receive from [the Appellants].” Doc. 39 at 7. The

Appellants also argue that the Covenant acted as an accord and satisfaction of the

claims. Id. at 10. The Covenant indicated that the University knew that the claim

had been submitted to Celina Mutual Insurance Company (“CMIC”), but that the

claim had been denied by the insurance company. Doc. 39, Ex.A at 1. The

Covenant then stated in pertinent part as follows.

       2. USA agrees to pay for and to perform the following services:

       a. USA possesses and has provided to the University, a report
          secured by [CMIC] from LWG Consulting (“the Report”)
          alleging that the cost of replacing the turf in Phase I and II was
          $342,534.99 and alleging that $249,164.85 was a reasonable
          amount to restore Phase I and II if 80% of Phase II is replaced

                                         -5-
Case No. 5-17-02


         with seed, rather than sod. For purposes of this Covenant, the
         University and USA do not agree with or disagree with the
         Report and the amount paid under this Covenant is not
         dependent upon the amount stated in the Report.

      b. USA will provide labor and money equal to $250,000.00 to
         cover fees and expenses other than those fees and expenses set
         forth in the Report. The $250,000.00 from USA to the
         University represents value to the University above and
         beyond the work and material set forth in the Report.

      c. Specifically, USA has already paid $68,845.00 to Maumee Bay
         on behalf of the University.

      d. Additionally, within 30 days of the Agreement, USA will
         provide $130,155.00 to the University.

      e. Further, as labor to represent cash value of $51,000, USA will
         provide services to the University, which the University
         requests and accepts as:

         (1) All of the labor associated with the removal of the old sod
            from the Phase 2 area and

         (2) Double aerify seeding of the Phase 3 area along with some
            slit seeding of the Phase 3 area, as agreed separately
            between the University and USA. The labor and materials
            in Phase 3 being provided by USA, with approval of the
            materials’ identities being reserved by the University.

      ***

      4. the parties understand and agree that the University will file
      suit against USA. Nothing in this Covenant should be construed
      as a release by the University of USA from any claims it has for
      damage caused by USA to the University grounds. If and when
      the University files suit against USA, it is understood that, if the
      University’s claim against USA is insured, USA will cooperate
      with its insurer in the defense of the University’s action.



                                      -6-
Case No. 5-17-02


       5. However, the University agrees to prepare, execute, and
       publicly disseminate a joint public statement agreed to in advance
       by the University and USA, which statement will affirm the
       University’s gratitude and agreement for USA’s good faith
       cooperation, responsiveness, labor, and payment(s) as described
       in this Covenant. Said joint statement will specifically explain
       that the purpose of the litigation against USA is to position the
       University to directly seek insurance proceeds from USA’s
       insurance carrier(s).

       6. If the University obtains a judgment against USA, the
       University agrees that it will not execute upon, or seek to enforce,
       the judgment against USA but will instead limit its recovery and
       collection efforts to any insurance proceeds that may be or are
       available to satisfy the judgment. This provision does not limit
       the University’s right to bring a direct action against any insurer
       who insured USA against loss from the University’s claims, and
       the parties understand and agree that the University maintains
       the right to bring said direct action.

       ***

       9. If USA’s insurers, including but not limited to CMIC refuse to
       defend and/or indemnify USA from the University’s claims, USA
       assigns to the University any and all claims for bad faith USA has
       against said insurers. USA will participate and cooperate in the
       prosecution of said claims to the extent necessary to maintain said
       claims.

Id. at 1-3. A clear reading of the Covenant indicates that the Appellants were fully

aware that the University would be bringing suit in order to recover any additional

damages from the insurance company. At oral argument, the Appellants admitted

that the only way to bring a claim against the insurance company is to sue the

tortfeasor. This suit was fully anticipated and was agreed upon by the parties in the




                                         -7-
Case No. 5-17-02


Covenant. Thus, based upon the undisputed evidence, the University’s suit was not

moot and was, in fact, required to recover additional damages.

       {¶6} The Appellants also claim that the suit is barred because there was an

accord and satisfaction. “For an accord and satisfaction to be established, it must

be shown (1) that ‘the parties went through a process of offer and acceptance—an

accord,’ (2) that the accord was ‘carried out—a satisfaction,’ and (3) that the

agreement was ‘supported by consideration.’” Citibank (South Dakota), N.A. v.

Perz, 191 Ohio App.3d 575, 2010-Ohio-5890, 947 N.E.2d 191, ¶ 42 (6th Dist.)

quoting Allen v. R.G. Indus. Supply, 66 Ohio St.3d. 229, 231–232, 1993-Ohio-43,

611 N.E.2d 794. As discussed above, part of the agreement was that the University

would bring suit against the Appellants in order to access insurance coverage. Since

the agreement included the lawsuit, the Appellants cannot claim that the suit violates

the agreement. The trial court did not err in denying the Appellants’ motion for

summary judgment. The first assignment of error is overruled.

                   Standing to Bring Suit Under R.C. 921.25(B)

       {¶7} In the second assignment of error, the Appellants claim that the

University lacked standing to bring a claim under R.C. 921.25(B). The University

claims that it has standing due to a right inferred from a reading of R.C. 921.25(B)

and Ohio Administrative Code 901:5-11-07. “The question of the existence of a

statutory cause of action is, of course, one of statutory construction.” Touche Ross

& Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). In

                                         -8-
Case No. 5-17-02


Cort v. Ash, the U.S. Supreme Court set forth relevant factors to be considered in

determining whether there is a private cause of action. Cort v. Ash, 422 U.S. 66, 95

S.Ct. 2080, 45 L.Ed.2d 26 (1975). These factors included whether 1) the plaintiff

is part of the class intended to benefit from the statute; 2) is there a legislative intent

to create a private cause of action; and 3) is implying a private cause of action

consistent with the purpose of the statute. Id. at 78. This opinion was partially

overruled by Touche Ross when the U.S. Supreme Court held that these factors were

not all of equal weight. Touche Ross supra at 575. “The central inquiry remains

whether Congress intended to create, either expressly or by implication, a private

cause of action.” Id.

       {¶8} Ohio Revised Code Chapter 921 sets forth the rules regarding pesticide

use. It requires that all pesticide application businesses be licensed by the director

of agriculture. R.C. 921.09. Additionally, the chapter requires all pesticide business

licenses only be issued after the business has provided evidence of liability

insurance. R.C. 921.10. If a requirement of the chapter is believed to have been

violated, the director of agriculture has the authority to conduct a hearing to

determine whether a violation has occurred. R.C. 921.25(A)(1).

       (1) In lieu of conducting a hearing under division (A) of this
       section, the director may refer the violation to the attorney
       general who, except as otherwise provided in division (B)(2) of this
       section, may bring a civil action against any employer of a person
       who violates this chapter or any rule or order adopted or issued
       under it. If the court determines that a violation has occurred,
       the court shall order the person to pay a civil penalty for each

                                           -9-
Case No. 5-17-02


       violation, not to exceed five thousand dollars for a first violation
       and not to exceed ten thousand dollars for each subsequent
       violation. Each day a violation continues constitutes a separate
       and distinct violation.

       (2) The civil action authorized under division (B)(1) of this section
       may be brought against the employer of a person who violates this
       chapter or any rule adopted or order issued under it rather than
       against the person.

       Divisions (B)(1) and (2) of this section do not affect, and shall not
       be construed as affecting any other civil or criminal liability of the
       employee or employer that may arise in consequence of the
       employer’s or employee’s violation of this chapter or any other
       law.

R.C. 921.25(B). A clear reading of the statute provides that the civil action for a

violation of Chapter 921 is to be brought by the attorney general. A party that is

injured as a consequence of a violation is free to bring a suit for the consequence,

not for the violation itself.

       {¶9} The Administrative Code requires all pesticide businesses to have both

a general liability insurance policy and specific insurance for the application of

pesticides, including for the damage from the application of the pesticide. Ohio

Adm. Code 901:5-11-07(B). The code also requires that each business applying for

a license must submit either a certificate of insurance or a binder verifying the

coverage.     Ohio Adm. Code 901:5-11-07(E).         Neither the statute nor the

administrative code provisions imply a legislative intent to create a private civil

remedy for failing to have insurance. The University was able to receive a judgment

for the admitted negligent application of the pesticide. To infer a private right to

                                       -10-
Case No. 5-17-02


bring a suit, as argued by the University in this case, is illogical. The statute

specifically provides that the attorney general is the person who may bring the suit

for a violation of the statute. The statute further states that other civil liability of the

employee or employer that may arise in consequence of the employee’s or

employer’s violation of this chapter is not affected. Thus, injured parties are free to

bring a civil suit for the damages suffered as a consequence of any violation. It does

not provide for the injured parties to bring a civil suit for the violation itself. To

allow the injured party to bring suit because, as alleged in this case, the pesticide

business did not have insurance as required by statute is illogical. The injured party

was not injured because of the lack of insurance, but because of the actions of the

pesticide business. The injured party thus can sue for the actions of the pesticide

business and recover under that cause of action, which was done in this case. There

was no showing that the legislature intended for injured parties to be able to sue to

recover pursuant to R.C. 921.25. Thus there was no right of private action inferred

by the statute and the trial court erred in finding that the University had standing to

bring this claim. The second assignment of error is sustained.

                                   Motion to Dismiss

       {¶10} In the third assignment of error, the Appellants argue that the trial

court erred in not granting the Civil Rule 41(B)(2) motion to dismiss.

       After the plaintiff, in an action tried by the court without a jury,
       has completed the presentation of the plaintiff’s evidence, the
       defendant, without waiving the right to offer evidence in the event

                                           -11-
Case No. 5-17-02


       the motion is not granted, may move for a dismissal on the ground
       that upon the facts and the law the plaintiff has shown no right to
       relief. The court as a trier of the facts may then determine them
       and render judgment against the plaintiff or may decline to
       render any judgment until the close of all the evidence.

Civ.R. 41(B)(2). The trial court is allowed to consider both the law and the facts

and does not view the evidence in a light most favorable to the plaintiff. Phillimore

v. Butterbaugh, 5th Dist. Richland No. 14CA32, 2014-Ohio-4641, ¶ 24.

       Even if the plaintiff has presented a prima facie case, dismissal is
       still appropriate where the trial court determines that the
       necessary quantum of proof makes it clear that plaintiff will not
       prevail. * * * Where the plaintiff's evidence is insufficient to
       sustain plaintiff's burden in the matter, the trial court may
       dismiss the case. * * * However, if the judge finds the plaintiff has
       proven the relevant facts by the necessary quantum of proof, the
       motion must be denied and the defendant is required to put on
       evidence.

Id. (citations omitted). Judgments supported by some competent, credible evidence

will not be reversed on appeal as being against the manifest weight of the evidence.

Id. at ¶ 25.

       {¶11} The University in this case was suing the Appellants for the negligent

application of pesticide to its lawns. The fact that the Appellants had negligently

applied the wrong product to the lawn was not disputed. The sole issue for the trial

court to determine was the amount of damages. The Appellants presented two

reasons to the trial court as to why the motion to dismiss should have been granted.

First, the Appellants argued that the University had already received all the damages

it was entitled to collect from them pursuant to the Covenant. This argument was

                                        -12-
Case No. 5-17-02


discussed above in the first assignment of error and found to be without merit.

Second, the Appellants argued that the University had not addressed the

reasonableness of the damages. Rather than rule on this issue at that time, the trial

court chose to take the matter under advisement and hear the rest of the testimony.

The Civil Rule specifically provides that the trial court has the option of hearing the

defense’s case-in-chief prior to rendering a verdict. Civ.R. 41(B)(2). Thus, the trial

court did not violate the rule by choosing to wait.

       {¶12} Additionally, the University presented the testimony of Martin at trial.

Martin admitted that the only way to have grass in the public areas within two

months was for the University to remove the dead grass and add sod. Tr. 18-22.

The University presented evidence as to what was paid to repair the damages. Ex.

1. That exhibit showed that the total paid by both the University and USA cost

$443,922.00. Tr. 27, Ex. 1. Given that Martin admitted that the only way to have

grass within two months was to replace the sod in the lawn, there was competent,

credible evidence presented from which a trial court could determine that the

University had set forth sufficient facts to satisfy its burden of proof and to require

the Appellants to put forth evidence. Thus, the trial court did not err in declining to

grant the motion to dismiss at the end of the University’s case-in-chief. The third

assignment of error is overruled.

       {¶13} Having found no error in the particulars assigned and argued in the

first and third assignments of error, the judgment as to those issues is affirmed.

                                         -13-
Case No. 5-17-02


Having found error in the particulars assigned and argued in the second assignment

of error, the judgment as to the standing of Appellee to challenge the lack of

insurance under R.C. 921.25(B) is reversed and remanded.

                                                      Judgment Affirmed in Part
                                                               Reversed in Part
                                                              Cause Remanded


ZIMMERMAN and SHAW, J.J., concur.

/hls




                                      -14-
