[Cite as Sabino v. Liberty Health Care Ctr., 2019-Ohio-1302.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


 ANTHONY SABINO, P.O.A. FOR                               :     OPINION
 HELEN ERWIN,
                                                          :
                  Plaintiff-Appellee,                           CASE NO. 2018-T-0059
                                                          :
         - vs -
                                                          :
 LIBERTY HEALTH CARE CENTER,
                                                          :
                  Defendant-Appellant.


 Civil Appeal from the Girard Municipal Court, Case No. 2017 CVF 00709.

 Judgment: Affirmed in part and reversed in part; remanded.


 Anthony Sabino, pro se, 1427 Hamilton Street, S.W., Warren, OH 44485 (Plaintiff-
 Appellee).

 Thomas F. Hull, II, and Karly B. Johnson, Manchester Newman & Bennett, 201 East
 Commerce Street, Atrium Level 2, Youngstown, OH 44503 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}      Appellee is Anthony Sabino (“Sabino”), who filed a small claims complaint

against appellant, Liberty Health Care Center (“Liberty”). He designated the plaintiff as

“Anthony Sabino, P.O.A. for Helen Erwin.” Liberty filed a counterclaim against Sabino on

an outstanding account for nursing home services provided to Helen Erwin, Sabino’s

mother. Liberty appeals a judgment in the Girard Municipal Court, that disposed of both

the claim and counterclaim.            We reverse the trial court’s decision disposing of the

counterclaim.
       {¶2}   The facts of the matter, as set out by Liberty in its answer to the complaint,

counterclaim, and a subsequently filed motion for summary judgment, have not been

disputed. They are as follows:

       {¶3}   On July 6, 2016, Liberty and Sabino, as attorney-in-fact for his mother Helen

Erwin, entered into an agreement for nursing home care and services for Ms. Erwin

provided by Liberty. Thereafter, a dispute as to payment for services arose between the

parties.

       {¶4}   On July 26, 2017, Sabino filed a small claims complaint in the Girard

Municipal Court, Small Claims Division.       The complaint, in its entirety, stated: “Did

unlawfuly detain my mother for a dispute with Medicaid, causing her to be denied threat

from being transferd. And demaning money they never put a request for.”                 (Sic

throughout.) The complaint requested judgment in the amount of $6,000.00. A trial was

set for September 7, 2017.

       {¶5}   Liberty filed motions for leave to plead and for a continuance on August 31,

2017, which were both granted by the trial court. Thereafter, Liberty filed its answer

instanter to the complaint on November 3, 2017, stating, as a defense, that Sabino did

not have standing to bring the suit as attorney-in-fact on behalf of his mother. Liberty also

brought a counterclaim against Sabino, alleging Helen Erwin owed Liberty on an

outstanding account for nursing home care services for which Sabino was responsible to

pay. Judgment was requested against Helen Erwin, by and through Sabino as her “Power

of Attorney,” in the amount of $13,731.14. Liberty attached as an Exhibit to the pleading

an account statement for Helen Erwin dated August 17, 2017, with a balance due of

$13,731.14 as of August 1, 2017.




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       {¶6}   On March 7, 2018, a pretrial was held in the matter. Sabino failed to appear,

and the trial court gave Liberty 30-45 days to file dispositive motions.

       {¶7}   On April 19, 2018, Liberty filed its motion for summary judgment with regard

to both Sabino’s claim and its counterclaim. Liberty argued that (1) the trial court should

grant summary judgment in favor of Liberty on Sabino’s claim, as he did not have standing

to bring an action on behalf of Helen Erwin in his capacity as attorney-in-fact; and (2) the

trial court should grant summary judgment in favor of Liberty on its counterclaim for

payment on an account balance for services rendered to Helen Erwin.                 Liberty

accompanied its motion for summary judgment with (a) an affidavit of Liberty

administrator Annalee E. Hutchinson; (b) Financial Terms sheets for Helen Erwin,

executed by Sabino as the “responsible party”; and (c) an account statement for Helen

Erwin containing a balance due of $14,139.00 as of January 1, 2018, despite the

counterclaim and previously submitted exhibit statement containing an amount due of

$13,731.14. The Financial Terms sheets indicated that the “resident” will be responsible

for medical costs of $161.00 per day and private room costs of $270.00 per day, totaling

$431.00 per day. The difference between the accounting statement attached to the

counterclaim and the accounting statement attached to the motion for summary judgment

is $407.86.

       {¶8}   On June 1, 2018, the trial court granted summary judgment in favor of

Liberty on Sabino’s claim, stating, “[Sabino] has brought the claim as a supposed Power

of Attorney for a third party. He did not appear for the pre-trial hearing scheduled for

March 9, 2018 and has never submitted any document suggesting that he is actually

Power of Attorney on behalf of his mother. The Plaintiff, therefore has no standing to




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bring an action on behalf of the third party, and his claim is dismissed.” Sabino has not

appealed that judgment.

       {¶9}   In addition, the trial court denied summary judgment with regard to Liberty’s

counterclaim. Further, the trial court dismissed Liberty’s counterclaim against Sabino

after determining there was no evidence that Sabino had “control of the assets of the

resident” through his relationship as attorney-in-fact. The trial court stated:

              The Defendant’s Motion for Summary Judgment is denied as to the
              Defendant’s counterclaim against the Plaintiff. Further, the Defendant has
              produced no evidence showing that the Plaintiff has control over any assets
              owned by the resident. This is an essential element of the Defendant’s
              counterclaim as to which it has the burden of proof. The counterclaim
              against the Plaintiff is found to be without merit and is hereby dismissed.

       {¶10} Liberty filed a timely notice of appeal and raises two assignments of error

for our review.

       {¶11} Liberty’s first assignment of error states:

       {¶12} “The trial court erred in sua sponte granting summary judgment to plaintiff-

appellee on defendant-appellant’s counterclaims [sic].”

       {¶13} The Ohio Rules of Civil Procedure authorize a court to dismiss an action on

its own motion. Civ.R. 4(E) and 41(B)(1). Nevertheless, such a dismissal may be entered

only after the affected party is given notice of the court’s intention. Perotti v. Ferguson, 7

Ohio St.3d 1, 2-3 (1983) (dismissal under Civ.R. 41(B)(1)).          Subsequently, in Ohio

Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101 (1986), the Ohio Supreme Court

concluded that “the notice requirement of Civ.R. 41(B)(1) applies to all dismissals with

prejudice[.]” (Emphasis in original.) The reasoning for this conclusion is that “[a] dismissal

on the merits is a harsh remedy that calls for the due process guarantee of prior notice.”

Id. Summary judgment on a claim under Civ.R. 56 also cannot be entered without notice.



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       {¶14} With respect to Liberty’s counterclaim, the language of the judgment entry

makes it unclear whether the trial court dismissed the counterclaim or granted judgment

in favor of Sabino on the merits. The trial court first addressed the “control of the assets”

element necessary for Liberty to bring its counterclaim and then determined there was no

evidence presented that Sabino had “control of the assets of the resident” through his

relationship as attorney-in-fact. In either instance, dismissal or judgment “on the merits”

without notice, was improper.

       {¶15} The only consequence of the determination that Liberty did not present

enough evidence to satisfy Civ.R. 56 should have been denial of Liberty’s motion for

summary judgment. If the moving party does not establish it is entitled to judgment, the

motion should simply be denied, and the claim should move forward.

       {¶16} Instead, the trial court impermissibly either granted judgment sua sponte in

favor of Sabino or dismissed the matter on the merits without notice. Sabino had not

responded to the motion for summary judgment nor had he moved the court to dismiss

or enter judgment on the counterclaim.

       {¶17} Any determination on the merits of Liberty’s counterclaim without notice was

error. Liberty’s first assignment of error has merit.

       {¶18} Liberty’s second assignment of error states:

       {¶19} “The trial court erred in denying defendant-appellant’s motion for summary

judgment on defendant-appellant’s counterclaims [sic].”

       {¶20} “Summary judgment is a procedural device intended to terminate litigation

and to avoid trial when there is nothing to try.” Frano v. Red Robin Internatl., Inc., 181

Ohio App.3d 13, 2009-Ohio-685, ¶12 (11th Dist.), citing Murphy v. Reynoldsburg, 65 Ohio

St.3d 356, 358 (1992). Summary judgment is proper when (1) no genuine issue of

                                              5
material fact remains to be litigated; (2) the moving party is entitled to judgment as a

matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party,

reasonable minds can come to only one conclusion, and that conclusion is adverse to the

nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing

Civ.R. 56(C).

       {¶21} The party seeking summary judgment bears the initial burden of informing

the trial court of the basis for the motion and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio

St.3d 280, 292 (1996). The moving party must point to some evidence of the type listed

in Civ.R. 56(C) (e.g., depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence, and written stipulations of fact) that affirmatively

demonstrates there is no genuine issue of material fact. Id. at 292-293.

       {¶22} If this initial burden is not met, the motion for summary judgment must be

denied. Id. at 293. If the moving party has satisfied its initial burden, however, the

nonmoving party then has a reciprocal burden, as outlined in Civ.R. 56(E), to set forth

specific facts showing there is a genuine issue for trial. Id. If the nonmovant does not so

respond, summary judgment, if appropriate, shall be entered against it. Id.

       {¶23} On appeal, we review a trial court’s entry of summary judgment de novo,

i.e., “independently and without deference to the trial court’s determination.” Brown v.

Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 711 (4th Dist.1993) (citation omitted);

see also Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).

       {¶24} “In an action on account, the account must show four things: (1) the

defendant’s name, (2) a beginning balance, (3) an itemized list of credits and debits, and

(4) a means of determining an amount alleged to be owed.” Hiram College v. Courtad,

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162 Ohio App.3d 642, 2005-Ohio-4331, ¶7 (11th Dist.), citing Raymond Builders Supply,

Inc. v. Slapnicker, 11th Dist., Ashtabula No. 2003-A-0040, 2004-Ohio-1437, ¶8. “The law

in Ohio is clear that in the absence of a contractual relationship between two parties, an

action on an account cannot be maintained by one against the other.” Laurelwood Hosp.

v. Lorenzo, 11th Dist. Lake No. 93-L-063, 1993 WL 548530 (Dec. 17, 1993) (citation

omitted). “An action on an account does not alleviate the plaintiff’s burden of showing

that the defendant was bound to pay the amounts listed on the account.” Hiram College,

supra, at ¶8.

       {¶25} Liberty contends it provided sufficient evidentiary material in support of its

counterclaim and, therefore, the trial court should have entered summary judgment in its

favor. We agree that Liberty provided evidence establishing some amount of money was

due.   However, Liberty did not meet its ultimate burden on summary judgment of

demonstrating no genuine issue existed as to the amount owed or that Sabino had control

over sufficient assets of Helen Erwin’s from which to satisfy the debt.

       {¶26} Liberty introduced signed writings indicating that Sabino, as representative

of Helen Erwin, agreed to pay Liberty for nursing home services provided to his mother.

On appeal, Liberty appears to agree that it is limited in what it can recover from Sabino

to those assets of Helen Erwin’s that were in his control. However, it did not produce

evidentiary material that established that amount.

       {¶27} In addition, the statement attached to the counterclaim and the statement

attached to the motion for summary judgment both fail to state a beginning balance and

fail to give an itemized list of credits and debits, two elements needed to establish an

account.




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       {¶28} Further, the statement Liberty attached to its motion for summary judgment

contained a different balance due than the statement attached to the counterclaim. These

conflicting totals differ by an amount not consistent with the monthly charges listed in the

Financial Terms sheets signed by Sabino. Therefore, this also brings into question

whether a means of determining an amount owed exists, which is the fourth element that

must be proven for an account claim.

       {¶29} Accordingly, when viewing the evidence most strongly in favor of the non-

moving party, the elements of an account claim have not been established as a matter of

law, and reasonable minds could have a genuine dispute of material fact as to the amount

owed under the contractual arrangement between Liberty and Sabino. Therefore, Liberty

failed to meet the burden required for granting summary judgment in its favor.

       {¶30} Liberty’s second assignment of error is without merit.

       {¶31} The judgment of the Girard Municipal Court, denying summary judgment in

favor of Liberty on its counterclaim is affirmed. The judgment disposing of Liberty’s

counterclaim is reversed, and the cause is remanded for proceedings consistent with this

court’s opinion.



MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.




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