[Cite as Graham v. Perkins, 2015-Ohio-3943.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                   SANDUSKY COUNTY


Nathan Graham                                        Court of Appeals No. S-15-008

        Appellant                                    Trial Court No. 14 CV 340

v.

Artie Perkins                                        DECISION AND JUDGMENT

        Appellee                                     Decided: September 25, 2015

                                               *****

        Nathan Graham, pro se.

        Adam Martin and Joseph J. Darwal, for appellee.

                                               *****

        YARBROUGH, P.J.

                                           I. Introduction

        {¶ 1} Appellant, Nathan Graham, appeals the judgment of the Sandusky County

Court of Common Pleas, granting appellee’s, Artie Perkins, motion for partial judgment

on the pleadings. For the following reasons, we reverse.
                         A. Facts and Procedural Background

       {¶ 2} Graham is an inmate who is currently incarcerated in a state correctional

facility and acting pro se in these proceedings. The facts relevant to this appeal were

stated in Graham’s complaint, filed on April 23, 2014. According to the complaint,

Graham was informed in 2011 that his cellmate, William Perkins, owned certain property

that he wished to sell in order to raise the money necessary to retain an attorney for

assistance with his criminal case. Because William was incarcerated at the time, he

ordered appellee, his mother, to sell his property on his behalf. Although a portion of

William’s property was in the state’s custody at the time, a court had allegedly issued an

order directing that the property be released to appellee.

       {¶ 3} Upon learning of William’s intent to sell his property, Graham instructed his

girlfriend to deliver $3,500 to appellee in July 2011. Following “repeated problems with

either non delivery of the property * * * or the sheriff not releasing the property to

[appellee, Graham asked] that his money be returned to his power of attorney.” In

response, appellee transferred money to Graham’s power of attorney on four separate

occasions, in an amount totaling $750. However, at some point, Graham instructed

appellee to retain the remainder of his money because he still desired to purchase a

portion of William’s property if appellee was successful in having it released from the

sheriff.

       {¶ 4} Approximately one year later, Graham directed his brother to provide

appellee with a $200 money order. William was anticipating a visit from appellee at the




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prison and Graham wished to have appellee “put the money on his phone account.” The

money was never credited to Graham’s account.

       {¶ 5} As a result of the foregoing, Graham contacted appellee and demanded that

she return his money, totaling $2,950. According to the complaint, Graham made these

demands from October 2012 to January 2013, after which point appellee stopped

accepting his telephone calls. As of the date of the complaint, appellee had not returned

Graham’s money.

       {¶ 6} Subsequently, Graham filed a complaint asserting claims for breach of

contract, breach of bailment contract, unjust enrichment, conversion, and fraud. Three

months after the complaint was filed, appellee filed a “motion for partial judgment on the

pleadings” pursuant to Civ.R. 12(C). In her motion, appellee argued that Graham’s

claims for breach of contract and breach of bailment contract should be dismissed

because Graham failed to include allegations in the complaint concerning the

consideration given to support the contracts. Specifically, appellee contended that the

assurances alleged in the complaint, namely her promises to utilize Graham’s funds to

purchase William’s property, were really nothing more than gratuitous promises since she

would have received nothing in return. Moreover, appellee asserted that Graham’s

conversion claim should be dismissed because the complaint contained no allegations

that appellee committed a “wrongful act or disposition of [Graham’s] property.”

Notably, appellee’s motion to dismiss was silent as to Graham’s claims for unjust

enrichment and fraud.




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       {¶ 7} On August 4, 2014, Graham filed his memorandum in opposition to

appellee’s motion to dismiss. In his memorandum, Graham argued that the agreement

alleged in the complaint was supported by proper consideration, stating that he could “see

no logical way how [appellee] can claim she did not receive consideration or benefit on

the contract. The monies which [appellee] received from the Plaintiff were to be applied

against the purchase of several items from her son’s property.” As to the breach of

bailment contract claim, Graham seemingly conceded that there was no consideration to

support the alleged bailment contract. Nonetheless, Graham insisted that a bailment

contract need not be supported by consideration. Finally, Graham conceded that he

lacked factual support for his claim for conversion. Thus, he indicated his desire to

voluntarily dismiss the conversion claim.

       {¶ 8} Upon consideration of the foregoing, the trial court, on October 21, 2014,

issued its decision on appellee’s motion for partial judgment on the pleadings. In its

decision, the court found that the complaint failed to set forth facts that would

demonstrate that the alleged agreement between the parties was supported by

consideration. Further, the court found that there was no enforceable bailment contract

alleged. Consequently, the trial court granted appellee’s motion for partial judgment on

the pleadings.

       {¶ 9} Thereafter, Graham filed a motion for reconsideration with the trial court,

which was subsequently denied by the court on November 25, 2014. Additionally,

Graham filed a notice of appeal on November 17, 2014. On December 16, 2014, this




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court issued an order dismissing Graham’s appeal for lack of a final appealable order.

Consequently, on January 20, 2015, Graham filed a motion with the trial court seeking

the clarification of its judgment entry. In his motion, Graham sought the modification of

the court’s judgment entry to reflect whether the action was still pending before the court.

In response to Graham’s motion, the trial court issued another judgment entry on March

2, 2015, in which it stated the following:

              Upon a further review of [the October 21, 2014 judgment entry], it is

       apparent that the Court ruled against the plaintiff on the unjust enrichment

       claim but did not enumerate it in the entry. Therefore as a clarification, the

       Court grants defendant’s motion for partial judgment on the pleadings for

       breach of contract, breach of bailment contract, conversion, and unjust

       enrichment. There remains a fifth count alleging fraud which still pends.

              ***

              There is no just reason for delay.

       {¶ 10} On March 16, 2015, Graham filed a motion to reinstate his appeal with this

court, arguing that the trial court’s decision, as modified, was a final appealable order.

Subsequently, we issued an order denying Graham’s motion to reinstate the appeal upon

a finding that the prior appeal was previously dismissed. In our decision, we instructed

Graham to file a new appeal from the trial court’s March 2, 2015 order. On March 26,

2015, Graham filed a timely notice of appeal.




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                                  B. Assignment of Error

        {¶ 11} On appeal, Graham asserts the following assignment of error for our

review:

              THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

        WHEN IT FAILED TO APPLY THE PROPER STANDARD OF

        REVIEW BEFORE DISMISSING PLAINTIFF’S CLAIMS FOR

        BREACH OF CONTRACT AND UNJUST ENRICHMENT.

                                     II. Analysis

        {¶ 12} A trial court reviews a Civ.R. 12(C) motion for judgment on the pleadings

using the same standard of review as a Civ.R. 12(B)(6) motion for failure to state a claim

upon which relief may be granted. McMullian v. Borean, 6th Dist. Ottawa Nos. OT-05-

037, 040, 2006-Ohio-3867, ¶ 7. On appeal, we review the trial court’s decision de novo.

Id. at ¶ 8.

        {¶ 13} A Civ.R. 12(C) motion essentially tests the sufficiency of the complaint as

written. Review is limited to the face of the complaint and the court may not consider

any matters beyond the complaint. In order to prevail on a motion for judgment on the

pleadings pursuant to Civ.R. 12(C), “it must appear beyond doubt that [appellant] can

prove no set of facts warranting relief, after all factual allegations of the complaint are

presumed true and all reasonable inferences are made in [appellant’s] favor.” State ex

rel. Fuqua v. Alexander, 79 Ohio St.3d. 206, 207, 680 N.E.2d 985 (1997).




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       {¶ 14} In his sole assignment of error, Graham argues that the trial court erred in

dismissing his claims for breach of contract and unjust enrichment.

       {¶ 15} “The elements of a breach of contract action are ‘the existence of a

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

plaintiff.’ (Citations omitted.) Firelands Regional Med. Ctr. v. Jeavons, 6th Dist. Erie

No. E-07-068, 2008-Ohio-5031, ¶ 19.” Burroughs Framing Specialists, Inc. v. 505 W.

Main St., L.L.C., 2014-Ohio-3961, 18 N.E.3d 1253, ¶ 32 (6th Dist.). In the case sub

judice, the dispute centers on whether Graham’s complaint contained sufficient

allegations to establish the existence of a contract.

       {¶ 16} “A contract is generally defined as a promise, or a set of promises,

actionable upon breach. Essential elements of a contract include an offer, acceptance,

contractual capacity, consideration (the bargained for legal benefit and/or detriment), a

manifestation of mutual assent and legality of object and of consideration.” Kostelnik v.

Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16. “In order to declare the

existence of a contract, both parties to the contract must consent to its terms * * *; there

must be a meeting of the minds of both parties * * *; and the contract must be definite

and certain.” (Internal citations omitted.) Episcopal Retirement Homes, Inc. v. Ohio

Dept. of Indus. Relations, 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991).

       {¶ 17} In its decision on appellee’s motion for partial judgment on the pleadings,

the trial court determined that there were insufficient factual allegations contained in the

complaint on the issue of consideration. As noted above, consideration is defined as a




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“bargained for legal benefit and/or detriment.” Kostelnik at ¶ 16. “Consideration may

consist of either a detriment to the promisee or a benefit to the promisor. A benefit may

consist of some right, interest or profit accruing to the promisor, while a detriment may

consist of some forebearance, loss, or responsibility given, suffered, or undertaken by the

promisee.” Lake Land Emp. Group of Akron, LLC v. Columber, 101 Ohio St.3d 242,

2004-Ohio-786, 804 N.E.2d 27, ¶ 16.

       {¶ 18} Here, a review of the factual allegations contained in the complaint reveals

no evidence of a bargained for legal benefit on appellee’s behalf. Rather, the allegations

demonstrate that Graham, without solicitation from appellee, instructed his girlfriend to

deliver $3,500 to appellee for subsequent use in the purchase of William’s property. This

transaction would inure to William’s benefit, not to appellee, who was merely the

custodian of William’s property during his incarceration. The complaint does not allege

that appellee held an ownership interest in William’s property, nor does it allege that

appellee would receive any remuneration from the sale of such property. Thus, we find

that the breach of contract claim was properly dismissed by the trial court for lack of

consideration.

       {¶ 19} Turning to the unjust enrichment claim, Graham argues that the trial court

erred in granting judgment on the pleadings where appellee’s motion did not seek

judgment as to the unjust enrichment claim. Moreover, Graham notes that the trial

court’s October 21, 2014 order granting appellee’s motion was silent as to the unjust

enrichment claim. Indeed, no mention of the unjust enrichment claim is found in the




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record until the trial court issued its subsequent decision following Graham’s motion for

clarification. Thus, it appears that the trial court rendered judgment on the unjust

enrichment claim sua sponte.

       {¶ 20} In support of the trial court’s sua sponte dismissal of Graham’s unjust

enrichment claim, appellee cites the Supreme Court of Ohio’s decision in State ex rel.

Edwards v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 108, 647 N.E.2d 799

(1995). In that case, the court found that “[t]he Rules of Civil Procedure neither

expressly permit nor forbid courts to sua sponte dismiss complaints.” However, the court

went on to state:

              Generally, a court may dismiss a complaint on its own motion

       pursuant to Civ.R. 12(B)(6), failure to state a claim upon which relief may

       be granted, only after the parties are given notice of the court’s intention to

       dismiss and an opportunity to respond. However, some courts have

       recognized an exception to the general rule, allowing sua sponte dismissal

       without notice where the complaint is frivolous or the claimant obviously

       cannot possibly prevail on the facts alleged in the complaint. (Citations

       omitted.) Id.

       {¶ 21} The foregoing language, which is expressly applicable to motions to

dismiss under Civ.R. 12(B)(6), has been extended to motions under Civ.R. 12(C). Metro

v. Diplomat Healthcare, 8th Dist. Cuyahoga No. 100799, 2014-Ohio-3146, ¶ 5 (holding

that the trial court did not err in sua sponte granting judgment on the pleadings pursuant




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to Civ.R. 12(C)). Applying this standard, we find that the trial court erred in sua sponte

dismissing Graham’s unjust enrichment claim. As a threshold matter, we note that the

trial court did not notify Graham of its intention to take such action. Thus, we must

examine the allegations contained in the complaint to determine whether the unjust

enrichment claim is frivolous.

       {¶ 22} The elements of unjust enrichment require the showing of a benefit

conferred by a plaintiff upon a defendant, knowledge by the defendant of the benefit, and

retention of the benefit by the defendant under circumstances where it would be unjust to

do so without payment. Hammill Mfg. Co. v. Park-Ohio Industries, Inc., 6th Dist. Lucas.

No. L-12-1121, 2013-Ohio-1476.

       {¶ 23} In the present case, the factual allegations contained in the complaint are

sufficient to satisfy the elements of unjust enrichment. According to the complaint,

Graham provided a total of $3,700 to appellee, of which only $750 has been refunded

despite Graham’s repeated demands for the return of his funds.

       {¶ 24} Because the factual allegations in the complaint support Graham’s claim

for unjust enrichment, we conclude that the claim is not frivolous. Consequently, we find

that the trial court erred in sua sponte dismissing Graham’s unjust enrichment claim

without providing notice of its intent to do so and an opportunity for Graham to respond.

       {¶ 25} Accordingly, Graham’s sole assignment of error is well-taken.




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                                     III. Conclusion

       {¶ 26} The judgment of the Sandusky County Court of Common Pleas is reversed,

in part, and its decision dismissing Graham’s unjust enrichment claim is vacated. This

matter is remanded to the trial court for further proceedings consistent with this decision.

Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                       Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Stephen A. Yarbrough, P.J.                                  JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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