         [Cite as Forbes v. Showmann, Inc., 2019-Ohio-2362.]




                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO

AMANDA FORBES,                                   :         APPEAL NO. C-180325
                                                           TRIAL NO. 17CV-20441
        Plaintiff-Appellant,                     :
                                                               O P I N I O N.
  vs.                                            :

SHOWMANN, INC., d.b.a. THE                       :
WOODHOUSE DAY SPA,

    Defendant-Appellee.                          :




Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: June 14, 2019


Gary F. Franke Co., L.P.A., and Gary F. Franke, for Plaintiff-Appellant,

Reminger Co., L.P.A., Chad E. Willits and Adair M. Smith, for Defendant-Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MOCK, Presiding Judge.


       {¶1}   Plaintiff-appellant Amanda Forbes appeals the trial court’s judgment

granting summary judgment in favor of defendant-appellee Showmann, Inc., d.b.a.

The Woodhouse Day Spa (“Showmann”) on Forbes’s claims of breach of contract,

conversion and a violation of R.C. 4113.15. Because we find that there is a genuine

issue of material fact with respect to Forbes’s conversion claim, we reverse the trial

court’s grant of summary judgment on that claim, but affirm the trial court’s

judgment in all other respects.

                            Relevant Facts and Background

       {¶2}   Forbes was hired as a nail technician by Showmann in 2011. On

January 28, 2017, Forbes attended a work-related holiday party where Showmann

distributed raffle tickets for employees to place in various containers in order to win

certain prizes. It is undisputed that Forbes did not pay for her raffle ticket. One of

the raffle prizes offered was a cruise package that included a $2000 Carnival Cruise

gift card, a $500 Southwest Airlines gift card and a $200 Uber gift card (“the cruise

package”). Only employees who had worked for Showmann for at least two years

were eligible to enter the raffle for the cruise package. Forbes entered the raffle, and

Chris Wood, the owner of Showmann, announced at the party that Forbes had won

the cruise package. Forbes stated in her affidavit that she requested her prize the day

after the raffle but she did not receive it.        Showmann terminated Forbes’s

employment a few weeks after the holiday party. Wood testified in his deposition

that Forbes was not given the cruise package because that specific raffle prize was

conditioned on the recipient being an employee at the time the cruise was taken.

Forbes testified in her affidavit that she was not told that the prize was conditioned

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upon being an employee at the time the trip was to be taken until after she was

terminated.

       {¶3}   Forbes sued Showmann for breach of contract, conversion and a

violation of R.C. 4113.15, alleging that the cruise package she had won had been

wrongfully withheld from her. Showmann moved for summary judgment on all of

Forbes’s claims, which the trial court granted.

       {¶4}   Forbes now appeals that judgment, arguing in a single assignment of

error that the trial court erred by granting summary judgment in favor of

Showmann.

       {¶5}   Our review of the trial court’s decision to grant summary judgment is

de novo. See Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162, 703

N.E.2d 841 (4th Dist.1997). Civ.R. 56(C) provides that summary judgment may be

granted when the moving party demonstrates that (1) there is no genuine issue of

material fact, (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 but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made. See State ex rel. Grady v.

State Emp. Relations Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997); Harless v.

Willis Day Warehousing Co., 54 Ohio St.2d 64, 375 N.E.2d 46 (1978).

                                    Breach of Contract

       {¶6}    A contract consists of an offer, an acceptance, and consideration. See

Tersigni v. Gen. Tire, Inc., 91 Ohio App.3d 757, 760, 633 N.E.2d 1140 (9th

Dist.1993).

              Without consideration, there can be no contract. Under

              Ohio law, consideration consists of either a benefit to the

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              promisor or a detriment to the promisee. To constitute

              consideration, the benefit or detriment must be

              “bargained for.”    Something is bargained for if it is

              sought by the promisor in exchange for his promise and

              is given by the promisee in exchange for that promise.

(Citations omitted.) Carlisle v. T & R Excavating, Inc., 123 Ohio App.3d 277, 704

N.E.2d 39 (9th Dist.1997). Whether there is consideration supporting a contract is a

question of law. Irving Leasing Corp. v. M & H Tire Co., 16 Ohio App.3d 191, 475

N.E.2d 127 (2d Dist.1984).

       {¶7}    Here, there is no evidence in the record of any benefit accruing to

Showmann or any detriment suffered by Forbes by her accepting a complimentary

raffle ticket for the cruise package that would constitute consideration for a contract.

It is undisputed that Forbes did not pay for the ticket to enter the raffle. Forbes

argues that the consideration she gave in exchange for the cruise package was

working for Showmann for two years. But that was not consideration; it was merely

a condition to being eligible to receive a complimentary raffle ticket for the cruise

package.

       {¶8}   Because Forbes did not bargain, i.e., pay, for the ticket used to enter

the raffle for the cruise package, there was no consideration and, thus, no contract

was formed. See, e.g., Scott v. Sons of Am. Legion Agnew Shinabarger Post 307, 6th

Dist. Williams No. WM02017, 2003-Ohio-3106 (holding that a contract was formed

where a raffle sponsor made an offer of a grand prize, plaintiff accepted the offer by

paying $100 for a raffle ticket, and the raffle sponsor benefitted from that purchase

because it had received money to put in its scholarship fund). Because no contract



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                     OHIO FIRST DISTRICT COURT OF APPEALS



was formed, Forbes cannot sustain her breach-of-contract claim, and the trial court

properly granted summary judgment to Showmann on that claim.

                                        R.C. 4113.15

       {¶9}   In her complaint, Forbes claims that Showmann violated R.C. 4113.15,

Ohio’s Prompt Pay Act, by failing to give her the raffle prize she had won. Forbes

maintains that the raffle prize is a “fringe benefit” she was entitled to receive. We are

unpersuaded. R.C. 4113.15(D)(2) defines “fringe benefits” as “includ[ing] but not

limited to health, welfare, or retirement benefits, * * * or vacation, separation, or

holiday pay.” All of the examples of fringe benefits listed are items that are typically

part of an employment relationship; a random, gratuitous raffle prize is not and is

simply not on par with the type of benefits listed in the statute. Because we hold that

the raffle prize is not a fringe benefit in this case, the trial court properly entered

summary judgment in favor of Showmann on Forbes’s claim of a violation of R.C.

4113.15.

                                         Conversion

       {¶10} Conversion is “the wrongful exercise of dominion over property to the

exclusion of the rights of the owner, or withholding it from [her] possession under a

claim inconsistent with [her] rights.” Alexander v. Motorists Mut. Ins. Co., 1st Dist.

Hamilton No. C-110836, 2012-Ohio-3911, ¶ 20. To prevail on a conversion claim, a

plaintiff must show: “(1) the plaintiff’s ownership or right to possession of the

property at the time of the conversion; (2) defendant’s conversion by a wrongful act

or disposition of the plaintiff’s property right, and (3) damages.” Id.

       {¶11} Showmann argues in its motion for summary judgment that Forbes

cannot prove the first or second elements of conversion. Showmann claims that

Forbes had no physical ownership of or right to possess the cruise package attached

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to her winning raffle ticket.     Showmann considers the winning raffle ticket a

conditional gift. With respect to conditional gifts, an individual does not have true

possession of the gift until the condition has been satisfied. See Wilkin v. Wilkin, 116

Ohio App.3d 315, 688 N.E.2d 27 (4th Dist.1996) (a father’s gift of funds in a

certificate of deposit to his daughter “on the condition she would use the money to

take a French course” created an obligation for the daughter to return the gift when

the condition was not met); Kelly v. Kelly, 163 Ohio App.3d 260, 2005-Ohio-4740,

837 N.E.2d 811, ¶ 17 (2d Dist.) (“engagement rings are normally regarded as

conditional gifts that must be returned to the donor if the contemplated marriage

does not occur”). Thus, Showmann maintains that even though Forbes received the

winning raffle ticket the night of the raffle, Forbes was not entitled to possess the

prize attached to that winning ticket because she had not fulfilled the condition of

being an employee at the time that she was going to take the cruise.

       {¶12} However, there is a dispute as to what specific conditions applied to

the winning raffle ticket. Both parties agree that one condition to receiving the prize

attached to the winning ticket was that the winner had to have been an employee of

Showmann for two years at the time of the raffle. The parties agree that Forbes met

that condition. They disagree over whether a second condition to the winning raffle

ticket applied: that the winner had to be an employee of Showmann at the time the

cruise was taken. Wood testified in his deposition that this was a condition to

receiving the prize attached to the winning ticket. Forbes testified in her affidavit

that winning the cruise package in the raffle was not conditioned on the winner being

a current employee at the time the cruise was taken.

       {¶13} If, as Forbes claims, there was no condition attached to the winning

raffle ticket that she be an employee at the time the cruise is taken, then she may be

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                     OHIO FIRST DISTRICT COURT OF APPEALS



able to prove that she was entitled to possession of the cruise package on the night of

the raffle and that Showmann wrongfully withheld it from her. Thus, given that

there is a dispute over a genuine issue of material fact, and construing the evidence

most strongly in favor of Forbes, the nonmoving party, we hold that summary

judgment was improperly granted to Showmann on Forbes’s claim of conversion.

       {¶14} Accordingly, we sustain Forbes’s assignment of error as to her

conversion claim and overrule it in all other respects. The trial court’s judgment

granting summary judgment to Showmann on Forbes’s conversion claim is reversed

and this cause is remanded for further proceedings consistent with the law and this

opinion on that claim. The court’s judgment is affirmed in all other respects.

                   Judgment affirmed in part, reversed in part, and cause remanded.

MYERS and BERGERON, JJ., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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