[Cite as Carter v. Children's Emergency Servs., Inc., 2020-Ohio-509.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 TAYLOR L. CARTER, et al.                              :
                                                       :
         Plaintiff-Appellant                           :     Appellate Case No. 28454
                                                       :
 v.                                                    :     Trial Court Case No. 2016-CV-4351
                                                       :
 CHILDREN’S EMERGENCY                                  :     (Civil Appeal from Common
 SERVICES INC., et al.                                 :     Pleas Court)
                                                       :
         Defendant-Appellee                            :


                                               ...........

                                               OPINION

                           Rendered on the 14th day of February, 2020.

                                               ...........

JOHN A. SMALLEY, Atty. Reg. No. 0029540, 131 North Ludlow Street, Suite 1400,
Dayton, Ohio 45402
      Attorney for Plaintiff-Appellant

JEFFREY R. TEETERS, Atty. Reg. No. 0061801, 600 Vine Street, Suite 2500, Cincinnati,
Ohio 45202
      Attorney for Defendants-Appellees, Blue Ribbon Billing Company and Children’s
Emergency Services

DAVID A. EBERLY, Atty. Reg. No. 0067007, 2321 Kemper Lane, Suite 100, Cincinnati,
Ohio 45206
      Attorney for Defendant-Appellee, Team Health Holdings, Inc.

                                              .............
                                                                                              -2-


HALL, J.

         {¶ 1} This case concerns 12 minors who, between 2012 and 2016, were injured

(most in auto accidents) and received medical treatment in the emergency department at

Dayton Children’s Medical Center.1 At that time, the emergency department was run by

Children’s Emergency Services, Inc. (CES). Each minor hired the law firm of Dyer

Garofalo Mann & Schultz to bring a personal-injury action against the defendants.

Ultimately, all the personal-injury actions were settled, and each settlement included an

amount to be paid to CES for the medical treatment that CES had rendered. Each minor

authorized his or her attorney to pay CES out of his or her settlement. Several of the

minors asked the probate court to approve their settlements.

         {¶ 2} In August 2016, the minors, or a parent,2 brought an action against CES,

Team Health Holdings, Inc. (which had purchased CES earlier that year), and Blue

Ribbon Billing, LLC (the defendants), alleging that the defendants had violated R.C.

1751.60 by seeking compensation for medical services from patients directly. 3 The

plaintiffs alleged that the defendants were required by statute to submit their bills to their

health insurance companies. The plaintiffs also alleged breach of contract, violations of

public policy, violations of the Ohio Consumer Sales Practices Act (OCSPA), violations

of the federal Fair Debt Collection Practices Act (FDCPA), fraud, conversion, and unjust



1The minors are referred to as T.C., D.G., A.E., K.K., J.G., S.P., S.B., M.L., B.D., R.N.,
C.L., and K.C.
2 The plaintiffs are T.C. individually, D.G. individually, A.E. individually, the mother of K.K.,
the mother of J.G., the father of S.P., the mother of S.B., M.L. individually, the mother of
B.D., the mother of R.N., the mother of C.L., and the mother of K.C.
3   The plaintiffs also requested class certification on behalf of all others similarly situated.
                                                                                             -3-


enrichment.

       {¶ 3} As the case progressed, many claims were voluntarily dismissed by the

plaintiffs, beginning with the claims for class certification. The OCSPA and FDCPA claims

were dismissed on CES’s motion for judgment on the pleadings. The claims of five

plaintiffs who had had their settlements approved by the probate court were dismissed on

CES’s motion for partial summary judgment, after the trial court concluded that the claims

were barred by collateral estoppel. Eventually, only the R.C. 1751.60 claims of three

plaintiffs remained. On these claims, the trial court granted the defendants summary

judgment, after concluding that there was no violation of the statute.

       {¶ 4} The plaintiffs appealed, challenging several of the trial court’s orders. We find

no error in any of them, so we affirm.

                                          Analysis

       {¶ 5} The plaintiffs assign four errors to the trial court. The first assignment of error

asserts that the trial court erred in granting the defendants’ motions for summary

judgment. The second asserts that the court erred in overruling the plaintiffs’ motion for

summary judgment. The third challenges the decision granting, in part, CES’s motion for

judgment on the pleadings, and the fourth challenges the trial court’s decision granting

CES’s motion for partial summary judgment. To facilitate our analysis, we consider the

assignments of error in the chronological order of the challenged judgments.

              A. Partial summary judgment based on collateral estoppel

       {¶ 6} The fourth assignment of error alleges that the trial court erred by granting

CES partial summary judgment on the claims associated with the minors who had had

their personal-injury settlements approved by the Montgomery County Probate Court.
                                                                                                -4-


           {¶ 7} The trial court, in a February 7, 2017 decision, found that for four of the

plaintiffs4 the legality of paying CES for medical services rendered out of the settlements

had been litigated and decided in their prior probate-court actions; thus, the court

concluded that the claims of these plaintiffs were barred by collateral estoppel. A fifth

plaintiff5 later dismissed her claims after acknowledging that the trial court’s decision also

applied to her, because she too had had her settlement approved by the probate court.

We agree with the trial court.

           {¶ 8} Under the doctrine of collateral estoppel, “if an issue of fact or law actually is

litigated and determined by a valid and final judgment, such determination being essential

to that judgment, the determination is conclusive in a subsequent action * * *, whether on

the same or a different claim[,] * * * with another person unless he lacked [a] full and fair

opportunity to litigate that issue in the first action, or unless other circumstances justify

according him an opportunity to relitigate that issue.” Hicks v. De La Cruz, 52 Ohio St.2d

71, 74, 369 N.E.2d 776 (1977). And we have said that a party may use “ ‘non-mutual

defensive collateral estoppel when a party against whom the doctrine is asserted

previously had his day in court and was permitted to fully litigate the specific issue sought

to be raised in a later action.’ ” Carpenter v. Long, 196 Ohio App.3d 376, 2011-Ohio-5414,

963 N.E.2d 857, ¶ 39 (2d Dist.), quoting Hoover v. Transcontinental Ins. Co., 2d Dist.

Greene No. 2003-CA-46, 2004-Ohio-72, ¶ 17.

           {¶ 9} Here, before the present action against CES was filed, each of the five minors

had filed an “Application to Settle Minor’s Claim(s)” in the probate court, which asked the


4   D.G., the mother of J.G., the father of S.P., and the mother of S.B.
5   A.E.
                                                                                          -5-


court to approve their personal-injury settlements under R.C. 2111.18. Each application

included a request that CES be paid unreimbursed medical expenses in full. The

settlement-disbursement sheets specifically identified CES and an amount that each

minor requested CES be paid out of his or her settlement proceeds. The probate court

approved all the proposed settlements. Later, each minor filed a distribution report stating

that CES had been paid the proposed amount. The probate court approved all the

distributions.

       {¶ 10} The evidence shows that the five minors were parties in separate probate-

court actions in which payment from their settlement proceeds to CES for medical

services rendered was directly litigated. These minors expressly asked the probate court

to order payments to CES out of their settlement proceeds, and the court granted their

requests. Plainly, the legality of paying CES out of the settlements was essential to the

probate court’s judgments. These minors had a full and fair opportunity to litigate before

the probate court the issue of whether CES should receive payment from their settlement

proceeds.

       {¶ 11} The plaintiffs argue that the issue was not actually litigated in the probate

court and that simply having an opportunity to litigate is not sufficient. We believe that an

opportunity to litigate is sufficient when the issue is essential to the court’s judgment. In

such cases, the issue is necessarily decided, if only implicitly. Here, the probate court

necessarily decided that it was not unlawful to pay CES out of settlement proceeds.

       {¶ 12} The plaintiffs also argue that the probate court was not a required or proper

venue to litigate this issue. We disagree. R.C. 2111.18 places the control and approval of

a minor’s personal-injury settlement and distribution of money under the probate
                                                                                           -6-


court’s jurisdiction. “The probate court has plenary power at law and in equity to dispose

fully of any matter that is properly before the court, unless the power is expressly

otherwise limited or denied by a section of the Revised Code.” R.C. 2101.24(C). We find

no statute that limits or denies the probate court’s power to decide the issue raised here.

      {¶ 13} Not only were these plaintiffs’ claims barred by collateral estoppel, but they

were also barred by judicial estoppel.

      “The doctrine of judicial estoppel ‘forbids a party “from taking a position

      inconsistent with one successfully and unequivocally asserted by the same

      party in a prior proceeding.” ’ ” Griffith v. Wal-Mart Stores, Inc. (C.A.6, 1998),

      135 F.3d 376, 380, quoting Teledyne Industries, Inc. v. Natl. Labor

      Relations Bd. (C.A.6, 1990), 911 F.2d 1214, 1217, quoting Reynolds v.

      Commr. of Internal Revenue (C.A.6, 1988), 861 F.2d 469, 472-473. “Courts

      apply judicial estoppel in order to ‘preserve[ ] the integrity of the courts by

      preventing a party from abusing the judicial process through cynical

      gamesmanship, achieving success on one position, then arguing the

      opposing to suit an exigency of the moment.’ ” Id., quoting Teledyne at

      1218. “The doctrine applies only when a party shows that his opponent: (1)

      took a contrary position; (2) under oath in a prior proceeding; and (3) the

      prior position was accepted by the court.” Griffith at 380.

Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 25.

      {¶ 14} In the probate-court actions here, the minors’ position was that CES should

be paid out of their settlement proceeds. Indeed, the minors expressly asked the probate

court to approve payment to CES out of their settlement proceeds. We note that no minor
                                                                                           -7-


objected to the proposal that CES be paid or appealed the probate court’s final judgment,

which explicitly stated that CES “shall be paid from the settlement proceeds.” In the

present action, though, the plaintiffs take the position that CES should not be paid out of

their settlement proceeds, and that doing so was unlawful. This new position is plainly

inconsistent with the prior position.

         {¶ 15} The fourth assignment of error is overruled.

                  B. Judgment on the pleadings on the OCSPA claims

         {¶ 16} The third assignment of error alleges that the trial court erred by granting,

in part, CES’s motion for judgment on the pleadings. In a February 1, 2017 order, the trial

court dismissed all the claims alleging that CES violated the OCSPA. CES contends that

this assignment of error is moot because all the OCSPA claims have been dismissed. We

agree.

         {¶ 17} The trial court’s order dismissed the OCSPA claims brought in the original

complaint by seven of the plaintiffs. The claims were reasserted in the amended complaint

by all 12 plaintiffs. But subsequently, each plaintiff’s OCSPA claim was dismissed. One

plaintiff voluntarily dismissed the claim6. The claims of five other plaintiffs were barred by

collateral estoppel. 7 The claims of the remaining six plaintiffs were dismissed by an

agreed order.8 No OCSPA claim remained, so no live controversy existed on the issues

raised in this assignment of error.


6   T.C. (Plaintiffs Notice of Voluntary Dismissal, Aug. 14, 2018).
7   D.G., the mother of J.G., the father of S.P., the mother of S.B., and A.E.
8 M.L., the mother of B.D., the mother of K.C., the mother of K.K., the mother of C.L., and
the mother of R.N. (Agreed Entry of Partial Dismissal of Claims, Jan. 8, 2019).
                                                                                          -8-


         {¶ 18} The third assignment of error is overruled.

                    C. Summary judgment on the R.C. 1751.60 claims

         {¶ 19} The first assignment of error alleges that the trial court erred by granting

CES’s, Blue Ribbon’s, and Team Health’s motions for summary judgment.

         {¶ 20} Summary judgment is appropriate if “(1) [n]o genuine issue as to any

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

matter of law; and (3) it appears from the evidence that reasonable minds can come to

but one conclusion, and viewing such evidence most strongly in favor of the party against

whom the motion for summary judgment is made, that conclusion is adverse to that party.”

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977); Civ.R.

56(C).

         {¶ 21} By the time the defendants moved for summary judgment, there were only

three plaintiffs’ left,9 and their only remaining claim alleged a violation of R.C. 1751.60.

On June 11, 2019, the trial court granted CES’s and Blue Ribbon’s motions for summary

judgment on these claims. Two days later, on June 13, the court granted Team Health’s

motion and entered summary judgment on the R.C. 1751.60 claims against it. The trial

court concluded that none of the defendants had violated the statute.

         {¶ 22} R.C. 1751.60(A) provides: “Except as provided for in divisions (E) and (F)

of this section, every provider or health care facility that contracts with a health insuring

corporation to provide health care services to the health insuring corporation’s enrollees

or subscribers shall seek compensation for covered services solely from the health

insuring corporation and not, under any circumstances, from the enrollees or subscribers,


9   The mother of K.K., the mother of C.L., and the mother of R.N.
                                                                                         -9-


except for approved copayments and deductibles.”

       {¶ 23} The plaintiffs argued that CES violated the statute by seeking compensation

for medical services rendered from the plaintiffs directly, out of their personal-injury

settlements, instead of from their health insurance companies. But the trial court

concluded that CES did not “seek compensation” from the plaintiffs. The court found that

the plaintiffs’ attorneys in their personal-injury actions requested account statements from

CES, and that the plaintiffs explicitly consented and authorized their attorneys to pay CES

the amounts listed in the statements out of their settlements. The court also concluded

that the statute did not apply to Blue Ribbon or Team Health because neither was a

“provider” or a “health care facility,” as those terms are statutorily defined. See R.C.

1751.01(Y) and (L). Finally, the trial court concluded that the plaintiffs’ claims failed

because, even if CES did violate the statute, the plaintiffs failed to present evidence that

they incurred any damages from the violation. While the plaintiffs challenge all three of

the trial court’s conclusions, we consider only the question of damages, because it is

dispositive.

       {¶ 24} Damages is an essential element of the plaintiffs’ R.C. 1751.60 claims. As

the trial court pointed out, unlike the Ohio Consumer Sales Practices Act, R.C. 1751.60

does not provide for statutory damages. Assuming that the defendants did violate the

statute, the plaintiffs could prevail only if they showed that they suffered compensable

harm. At this stage, the plaintiffs must show only that there is a genuine issue of material

fact as to their damages. Their claims cannot survive summary judgment if the plaintiffs

fail to present evidence of damages. See Doner v. Snapp, 98 Ohio App.3d 597, 601, 649

N.E.2d 42 (2d Dist.1994); Wilson v. Wilson, 2d Dist. Montgomery No. 21443, 2007-Ohio-
                                                                                           -10-


178, ¶ 5. Evidence of the mere “possibility” of damages is insufficient. Gibbons v.

Baltimore & O. R. Co., 92 Ohio App. 87, 100, 109 N.E.2d 511 (6th Dist.1952), citing

LoSchiavo v. N. Ohio Traction & Light Co., 106 Ohio St. 61,138 N.E. 372 (1922); Swartz

v. Steele, 42 Ohio App.2d 1, 5, 325 N.E.2d 910 (8th Dist.1974). “Probability, not

possibility, is requisite.” Gibbons at 100. The plaintiffs do not dispute that they must prove

damages to succeed on their claims. They argue, rather, that they satisfied this

requirement. On this, we must disagree.

        {¶ 25} Two of the plaintiffs10 were each specifically asked in an interrogatory to

identify their damages. Their identical responses were “Possible impact to credit if

Defendants claim bill to be due and owing.” But neither plaintiff presented any evidence

of credit damage. In a document request, each was asked to “[p]roduce all documents

related to damages that [the plaintiff] claims to have suffered as a result of the acts alleged

in the First Amended Complaint.” Each responded: “None in Plaintiff’s possession.” Thus,

any impact on their credit was purely speculative. As for the third plaintiff,11 while not

asked about damages in an interrogatory, the plaintiff was asked to “[p]roduce all

documents related to damages that [the plaintiff] claims to have suffered as a result of the

acts alleged in the Complaint.” The plaintiff responded simply, “Attached.” It is unclear

which documents in the record, if any are in the record, the plaintiff deemed responsive.

        {¶ 26} The plaintiffs also asserted other ways in which they were harmed. In the

amended complaint, the plaintiffs alleged that by not billing their health insurance

companies, CES caused the plaintiffs to pay more for medical services than the health


10   The mother of C.L. and the mother of R.N.
11   The mother of K.K.
                                                                                          -11-


insurance companies would have paid under their contracts with CES. The chief problem

with this allegation is that the plaintiffs presented no evidence that there would be a

disparity, let alone the amount of the disparity. The plaintiffs say that they were harmed

by being forced to pay CES out of their personal-injury settlements and by CES’s

aggressively seeking compensation from their attorneys. But the evidence, or rather lack

thereof, did not support these allegations. We see no evidence of any aggressive action

by CES. The plaintiffs admit that CES never contacted them directly demanding payment.

Rather, the record shows that the plaintiffs’ attorneys requested billing statements from

CES and that the plaintiffs voluntarily paid CES the amounts shown on the statements

out of their settlements.

       {¶ 27} The plaintiffs fail to show that a genuine issue of material fact existed as to

their damages from the defendants’ alleged violation of R.C. 1751.60. The record shows

that none of the minors’ bills was then due and owing. There was no evidence that CES

sought to collect money from any of the plaintiffs. It was undisputed that the minors, on

the advice of their attorney, knowingly and voluntarily authorized their attorney to pay

CES the amount owed out of their settlements. Given the lack of evidence of damages,

the trial court properly granted the defendants’ motions for summary judgment.

       {¶ 28} The first assignment of error is overruled.

                     D. Denying the plaintiffs summary judgment

       {¶ 29} The second assignment of error alleges that the trial court erred by

overruling the plaintiffs’ motion for summary judgment on their R.C. 1751.60 claims.12



12The plaintiffs who filed the motion are the mother of K.K., the mother of C.L., and the
mother of R.N.
                                                                                            -12-


        {¶ 30} On June 13, 2019, the trial court overruled the plaintiffs’ motion for summary

judgment against CES for the reasons stated in its decision granting the defendants’

motions for summary judgment. The court noted that the plaintiffs failed to show that CES

violated R.C. 1751.60, by failing to present evidence that CES sought compensation from

them.

        {¶ 31} We concluded in our review of the first assignment of error that the plaintiffs

failed to show that a genuine issue of material fact existed as to their damages for CES’s

alleged violation of R.C. 1751.60, an essential element of their claims. Because they

could not prevail on their claims, the trial court properly overruled the plaintiffs’ motion for

summary judgment.

        {¶ 32} The second assignment of error is overruled.

                                       III. Conclusion

        {¶ 33} We have overruled each of the four assignments of error presented. The

judgment of the trial court is affirmed.

                                       .............



FROELICH, J. and TUCKER, J., concur.


Copies sent to:

John A. Smalley
Jeffrey R. Teeters
David A. Eberly
Kenneth Ignozzi
Hon. Timothy N. O’Connell
