[Cite as Chaffee Chiropractic Clinic, Inc. v. Stiffler, 2017-Ohio-7790.]


STATE OF OHIO                      )                          IN THE COURT OF APPEALS
                                   )ss:                       NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                    )

CHAFFEE CHIROPRACTICE CLINIC,                                 C.A. No.     16AP0033
INC.

        Appellee
                                                              APPEAL FROM JUDGMENT
        v.                                                    ENTERED IN THE
                                                              COURT OF COMMON PLEAS
ERIN STIFFLER, et al.                                         COUNTY OF WAYNE, OHIO
                                                              CASE No.   2015 CVC-H 000275
        Appellants

                                  DECISION AND JOURNAL ENTRY

Dated: September 25, 2017



        CALLAHAN, Judge.

        {¶1}     Kenneth, Stephanie, and Erin Stiffler appeal from the judgment of the Wayne

County Court of Common Pleas denying the Stifflers’ motion for judgment on the pleadings and

granting Chaffee Chiropractic Clinic, Inc. (“Chaffee Chiropractic”) summary judgment.        This

Court affirms.

                                                         I.

        {¶2}     In September 2011, Erin Stiffler suffered injuries as a result of an automobile

accident caused by a third party. Kenneth and Stephanie Stiffler are Erin’s parents. Following

the accident, Erin sought and received treatment at Chaffee Chiropractic. Mrs. Stiffler and Erin

signed Chaffee Chiropractic’s financial policy concerning payment for the treatments.

        {¶3}     Later, Erin went to the hospital where she was diagnosed with a vertebral

compression fracture. She then ceased treatment with Chaffee Chiropractic for a period of time.

In January 2012, Erin resumed her treatments with Chaffee Chiropractic.
                                                 2


        {¶4}   Chaffee Chiropractic billed and was paid for a period of time by the third party’s

insurer. In March 2013, the third party’s insurer sent a letter to Chaffee Chiropractic stating that

no further payments would be made for Erin’s treatment. Mr. Stiffler was copied on the letter.

The final payment from the third party’s insurer covered services through part of November

2012.

        {¶5}   Erin continued to receive treatments from Chaffee Chiropractic. In April 2013,

Chaffee Chiropractic set up a new account number for Erin’s treatments going forward. In June

2013, Chaffee Chiropractic sent patient statements to the Stifflers’ address for both accounts.

The first account statement covered services from September 26, 2011 to April 22, 2013 and

showed an account balance of $8,425. The second account statement covered services from

April 26, 2013 to June 5, 2013 and showed an account balance of $0. Chaffee Chiropractic

continued to send statements seeking the balance on the first account, which the Stifflers did not

pay.

        {¶6}   In June 2015, Chaffee Chiropractic sued the Stifflers seeking the unpaid balance

on the first account. In its complaint, Chaffee Chiropractic alleged that the Stifflers had been

unjustly enriched and owed it money on an account.1

        {¶7}   The Stifflers answered, denying most of the allegations in the complaint. They

admitted that Erin was a minor in September 2011 and that Chaffee Chiropractic had made a




1
  The complaint is divided into three claims for relief, but the headings do not identify the
theories of recovery. On appeal, Chaffee Chiropractic states that it brought claims for “quantum
meruit, unjust enrichment, and outstanding payment(s) due upon account.” This Court has
previously noted, “The elements of unjust enrichment and quantum-meruit are identical.” Coyne
v. Hodge Constr., Inc., 9th Dist. Medina No. 03CA0061-M, 2004-Ohio-727, ¶ 5, fn. 3.
Accordingly, this Court treats the complaint as raising two claims.
                                               3


demand for payment. They raised the following defenses: (1) the complaint failed to state a

claim upon which relief could be granted; (2) Erin, as a minor, was incompetent to enter a

contract; (3) the charges were unnecessary; (4) the charges were unreasonable; (5) the exhibit to

the complaint was not an account; and (6) estoppel. They also asserted a counterclaim alleging

that Chaffee Chiropractic’s “employees told [them] that treatment charges would be billed and

paid by the insurance company that provided insurance coverage for the person at fault in the

accident.”

       {¶8}   Chaffee Chiropractic moved for summary judgment on its claims and the

Stifflers’ counterclaim. The Stifflers opposed the motion for summary judgment and also moved

for judgment on the pleadings.     The trial court granted Chaffee Chiropractic’s motion for

summary judgment and denied the Stifflers’ motion for judgment on the pleadings.

       {¶9}   The Stifflers appeal, raising nine assignments of error. For ease of analysis, this

Court combines and reorders several of the assignments of error.

                                               II.

                             ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING [THE]
       STIFFLERS’ MOTION FOR JUDGMENT ON THE PLEADINGS FOR THE
       REASON [THAT CHAFFEE CHIROPRACTIC] FAILED TO PLEAD THAT
       PERSONS WERE LICENSED TO PERFORM CHIROPRACTIC SERVICES;
       COMPLAINT FAILED TO STATE A VALID CLAIM.

                                 ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING []
       CHAFFEE [CHIROPRACTIC’S] MOTION FOR SUMMARY JUDGMENT
       WHERE THERE WAS A FAILURE OF PROOF THAT THE CHIROPRACTIC
       SERVICES WERE PERFORMED BY PERSONS LICENSED TO PERFORM
       CHIROPRACTIC SERVICES.
                                                    4


        {¶10} The Stifflers base their first and second assignments of error on the licensing

requirements for chiropractors explaining that, without a proper license, any contract for

chiropractic services is illegal. In their first assignment of error, they contend that, because

Chaffee Chiropractic did not plead in its complaint that its providers were licensed, the Stifflers

were entitled to judgment on the pleadings. In their second assignment of error, they contend that

Chaffee Chiropractic failed to present proof that its providers were properly licensed and,

therefore, was not entitled to summary judgment. This Court disagrees.

        {¶11} The resolution of these two assignments of error revolves around Ohio’s pleading

rules. The Stifflers contend that Chaffee Chiropractic failed to plead and establish a “necessary

element” of its claim. Notably, the Stifflers do not allege the providers were unlicensed, but only

that Chaffee Chiropractic failed to plead or present evidence of their licensure, and therefore,

“any contract, express or implied, is illegal and void.” Chaffee Chiropractic counters that the

Stifflers failed to assert the affirmative defense of “‘illegality.’”

        {¶12} In order that the parties have a fair opportunity to respond, Ohio’s pleading rules

require the parties provide notice of their claims and defenses to opposing parties. Thomas v.

Thomas, 9th Dist. Summit No. 27153, 2014-Ohio-1714, ¶ 6. First, the complaint shall include

“(1) a short and plain statement of the claim showing that the party is entitled to relief, and (2) a

demand for judgment for the relief to which the party claims to be entitled.” Civ.R. 8(A). Then,

the answer “shall state in short and plain terms the party's defenses to each claim asserted.”

Civ.R. 8(B). In addition:

        In pleading to a preceding pleading, a party shall set forth affirmatively accord
        and satisfaction, arbitration and award, assumption of risk, contributory
        negligence, discharge in bankruptcy, duress, estoppel, failure of consideration,
        want of consideration for a negotiable instrument, fraud, illegality, injury by
        fellow servant, laches, license, payment, release, res judicata, statute of frauds,
                                                5


        statute of limitations, waiver, and any other matter constituting an avoidance or
        affirmative defense.

(Emphasis added.) Civ.R. 8(C).

        {¶13} Contrary to the Stifflers’ contentions, the legality of the contract is not a

“necessary element” that Chaffee Chiropractic was required to plead and support with evidence.

Rather, any alleged illegality of the contract is an affirmative defense that the Stifflers were

required to plead in their answer. A challenge to the legal authority to enter into a contract is a

defense to enforcement of the contract. Allen v. Johnson, 9th Dist. Wayne Nos. 01CA0046 and

01CA0047, 2002-Ohio-3404, ¶ 22, rev’d in part on other grounds, 100 Ohio St.3d 276, 2003-

Ohio-5889. See also Cantleberry v. Holbrook, 5th Dist. Richland No. 12CA75, 2013-Ohio-

2675, ¶ 21 (An allegation that a contract is illegal is an affirmative defense). The party seeking

to avoid an obligation on the theory that the contract is illegal bears the burden of proving its

illegality. Cantleberry at ¶ 21. Because any alleged illegality of the contract was an affirmative

defense, Chaffee Chiropractic did not have to plead or prove the legality of the contract in order

to avoid judgment on the pleadings or to be entitled to summary judgment.

        {¶14} The Stifflers’ first and second assignments of error are overruled.

                                  ASSIGNMENT OF ERROR NO. 3

        THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
        SUMMARY JUDGMENT AGAINST ERIN STIFFLER WHERE SHE WAS A
        MINOR AND ANY CONTRACT WITH HER WAS VOID AS SHE
        DISAFFIRMED IT.

        {¶15} In their third assignment of error, the Stifflers argue that Erin could not be held

liable for the charges because she disaffirmed any agreement for services. This Court disagrees.

        {¶16} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is

proper if:
                                                 6


       (1) No 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 (1977).

       {¶17} The party moving for summary judgment bears the initial burden of informing the

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

demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280,

292 (1996).    Specifically, the moving party must support the motion by pointing to some

evidence of the type listed in Civ.R. 56(C). Id. at 292-293. If the moving party satisfies this

burden, then the non-moving party has the reciprocal burden to demonstrate a genuine issue for

trial remains. Id. at 293. The non-moving party may not rest upon the mere allegations or

denials in their pleadings, but must point to or submit evidence of the type specified in Civ.R.

56(C). Id. at 293; Civ.R. 56(E).

       {¶18} “‘Contracts of an infant except those authorized by law, those entered into in

performance of a legal duty and for the purchase of necessities, are voidable at the election of the

infant and may be disaffirmed by him at any time before or within a reasonable time after

reaching his majority.’” Weiand v. Akron, 13 Ohio App.2d 73, 75 (9th Dist.1968), quoting

Mestetzko v. Elf Motor Co., 119 Ohio St. 575 (1929), paragraph three of the syllabus.

       {¶19} The Stifflers argue that Erin disaffirmed any agreement for services by opposing

the collection complaint filed by Chaffee Chiropractic. Chaffee Chiropractic responds that Erin

did not disaffirm within a reasonable time after reaching the age of majority. Erin turned 18 on

March 4, 2013. Upon turning 18, Erin did not disaffirm any agreement for services with Chaffee

Chiropractic. Rather, she continued to treat (albeit under a different account number after April
                                                   7


26, 2013). She did not contest her liability for payment until filing an answer in this collection

action on July 6, 2015. Under these circumstances, there is no genuine issue of fact that Erin did

not disaffirm within a reasonable time of reaching the age of majority.

          {¶20} The Stifflers’ third assignment of error is overruled.

                                ASSIGNMENT OF ERROR NO. 9

          THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
          SUMMARY JUDGMENT AGAINST THE STIFFLERS ON AN ACCOUNT.

          {¶21} In their ninth assignment of error, the Stifflers argue that Mr. and Mrs. Stiffler

could not be liable because the account listed only Erin.

          {¶22} Generally, “an account must show the name of the party charged and detail a

balance that is a provable sum.” Barberton Hosp. v. Hughes, 9th Dist. Summit No. 26783, 2013-

Ohio-5800, ¶ 7. But see Mt. Sinai Hosp. of Cleveland v. McCurdy, 8th Dist. Cuyahoga Nos.

38799 and 38800, 1979 WL 210165, (July 3, 1979) (finding father liable on medical account for

child that was in mother’s name). The account that Chaffee Chiropractic sought to collect on

identifies “Erin Stiffler” as the patient and lists her name over the address. It does not list either

Mr. or Mrs. Stiffler. Consequently, Mr. and Mrs. Stiffler contend that they cannot be held

responsible for payment. This Court notes that an action on a medical account may be different

than an ordinary action on account in that parents are generally primarily liable for their

children’s medical expenses. But, this Court finds it unnecessary to decide this issue in this

appeal.

          {¶23} Although the Stifflers only challenge their liability on an account under this

assigned error, Chaffee Chiropractic moved for summary judgment based on both an account and

unjust enrichment. This Court is “required to affirm the trial court’s judgment if any valid

grounds are found on appeal to support it.” McKay v. Cutlip, 80 Ohio App.3d 487, 491 (9th
                                                 8


Dist.1992); see also State ex rel. McGrath v. Ohio Adult Parole Auth., 100 Ohio St.3d 72, 2003-

Ohio-5062, ¶ 8 (“Reviewing courts are not authorized to reverse a correct judgment on the basis

that some or all of the lower court’s reasons are erroneous.”). Thus, if the elements of unjust

enrichment were met, this Court must affirm the trial court’s decision.

       {¶24} To succeed on a claim for unjust enrichment, a plaintiff must show that (1) it

conferred a benefit upon the defendant; (2) the defendant knew of the benefit; and “(3) the

defendant retained the benefit under circumstances where it would be unjust to do so without

payment.” Magnum Steel & Trading, L.L.C. v. Mink, 9th Dist. Summit Nos. 26127 and 26231,

2013-Ohio-2431, ¶ 42. “As a general principle, parents are expected to provide for the medical

needs of their children. ‘Since medical services constitute necessaries, a parent having custody of

a child is * * * liable for the debt under an implied contract for the minor child’s medical care

because of the duty to support required by R.C. 3103.03.’” Children’s Hosp. Med. Ctr. v.

Bradley, 9th Dist. Summit No. 17723, 1996 WL 525854, *1, quoting Univ. of Cincinnati Hosp.

v. Cohen, 57 Ohio App.3d 30, 31 (1st Dist.1989).

       {¶25} In the present case, it is undisputed that Mr. and Mrs. Stiffler are the parents of

Erin, who was a minor when treatments began. The Stifflers do not dispute that they knew the

treatments were being provided. It is also undisputed that Erin received treatments that were not

paid for by the third party’s insurance. Both parties learned that the insurer had stopped paying

at the same time. The unpaid amounts included treatments both before and after the letter from

the third party’s insurer. Under these circumstances, it would be unjust for the Stifflers to retain

the benefit that they received in the treatment of their daughter without paying for the same.

       {¶26} The Stifflers’ ninth assignment of error is overruled.
                                                9


                              ASSIGNMENT OF ERROR NO. 6

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
       SUMMARY JUDGMENT BECAUSE THERE WERE QUESTIONS OF FACT
       AS TO WHETHER THE CHARGES FOR TREATMENTS TO ERIN
       [STIFFLER] WERE NECESSARY AND REASONABLE.

       {¶27} In their sixth assignment of error, the Stifflers argue that a question of fact

remains as to whether the Chaffee Chiropractic’s charges were reasonable and necessary. This

Court disagrees.

       {¶28} The reasonableness of a charge for medical services is determined by the usual

price paid for that type of service in the local community. Miami Valley Hosp. v. Middleton, 2d

Dist. Montgomery No. 24240, 2011-Ohio-5069, ¶ 20. While this is generally a question of fact,

“submission of the bill is prima facie evidence of the reasonableness of the charges and sufficient

for a grant of summary judgment absent evidence or other reason to infer to the contrary.” Id. at

¶ 21-22.

       {¶29} In the present case, Chaffee Chiropractic supported its motion for summary

judgment with a detailed bill specifying each service date, the treatment received, the provider,

and the billed amount. Consequently, Chaffee Chiropractic met its initial summary judgment

burden concerning the reasonableness of its charges. The burden then shifted to the Stifflers to

set forth specific facts showing that a genuine issue remained for trial. See Dresher, 75 Ohio

St.3d at 293.

       {¶30} In opposition to summary judgment, affidavits were provided from Mr. and Mrs.

Stiffler. Neither Mr. nor Mrs. Stiffler averred that they considered the medical services or

charges of Chaffee Chiropractic to be unnecessary or unreasonable. Mrs. Stiffler did aver that

they would not have continued treatments with Chaffee Chiropractic if they knew the insurance

company was not going to pay for the treatments. But, she also averred that they “would of
                                                10


sought other medical attention.” Therefore, her own statement establishes that medical care was

necessary for Erin.

       {¶31} The Stifflers did not present any evidence regarding the amount charged by other

chiropractors in the area or otherwise present any evidence that the fees charged by Chaffee

Chiropractic were unreasonable. In addition, Erin continued to seek and receive treatment after

she and her parents were informed that the third party’s insurer would no longer pay. This

further supports that the treatments were necessary and the charges were reasonable.

       {¶32} The Stifflers did not present any Civ.R. 56(C) evidence creating a genuine issue

of material fact regarding the reasonableness of the charges and the necessity of the treatments

provided by Chaffee Chiropractic to Erin.

       {¶33} The Stifflers’ sixth assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
       SUMMARY JUDGMENT BECAUSE CHAFFEE [CHIROPRACTIC] CANNOT
       RECOVER AGAINST ERIN [STIFFLER] OR [MRS. STIFFLER] ON THE
       WRITTEN “FINANCIAL POLICY” SIGNED BY THEM ON 9-27-11, AS THE
       SUBJECT AND TERMS OF THE POLICY IS APPLICABLE ONLY TO
       INSURANCE COVERAGE BY POLICIES UNDER WHICH ERIN
       [STIFFLER] IS INSURED AND NOT TO INSURANCE POLICIES THAT
       PROVIDE LIABILITY COVERAGE TO A THIRD PERSON.

       {¶34} In their fourth assignment of error, the Stifflers argue the financial policy that Erin

and Mrs. Stiffler signed does not support any recovery against them. This Court disagrees.

       {¶35} Chaffee Chiropractic’s financial policy contains several sections referring to

various scenarios whereby a patient might present herself in the office and the office might seek

payment for those services. Directly above the signature line, the policy states:

       I request that Chaffee Chiropractic Clinic prepare the customary forms at no
       charge so that I may obtain insurance benefits. I also understand if my insurance
       does not respond within 60 days, or if I suspend or terminate my schedule of care
                                                   11


        as prescribed by the doctors at Chaffee Chiropractic Clinic that fees will be
        immediately due and payable.

Under the section pertaining to personal injuries and automobile accidents, the policy requests

that the patient present “your auto insurance and your health insurance card.” That section

concludes: “Although you are ultimately responsible for your bill, we will wait for settlement of

your claim for up to [6] months after your care is completed. Once the claim is settled or if you

suspend or terminate care, any fees for services are due immediately.”

        {¶36} The Stifflers argue that, because the financial policy refers to “‘your insurance,’”

“‘my insurance policy,’” “‘your auto insurance,’” and “‘your health insurance,’” it is

inapplicable to them because they were relying on a third party’s insurance. The Stifflers have

not cited any legal authority to support their argument that the references to their insurance in the

financial policy somehow preclude Chaffee Chiropractic from proceeding against them when a

third-party insurer failed to pay the bills for Erin. See App.R. 16(A)(7). Although the financial

policy did not cover every possible scenario whereby Chaffee Chiropractic might be paid, the

Stifflers have not explained how the failure to do so absolves them of liability for the charges

Erin incurred. This Court will not create an argument on their behalf. See Cardone v. Cardone,

9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998) (“If an argument exists that

can support this assignment of error, it is not this [C]ourt’s duty to root it out.”).

        {¶37} Under this assignment of error, the Stifflers further argue that Mr. Stiffler created

a new contractual relationship with Chaffee Chiropractic during a meeting in January 2012. That

issue, however, will be addressed under the fifth assignment of error.

        {¶38} The Stifflers’ fourth assignment of error is overruled.
                                                12


                              ASSIGNMENT OF ERROR NO. 5

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
       SUMMARY JUDGMENT BECAUSE THERE IS A QUESTION OF FACT AS
       TO WHETHER [UNDER] THE EXPRESS TERMS OF THE CONTRACT
       CHAFFEE [CHIROPRACTIC] AGREED TO ONLY ACCEPT PAYMENT
       FROM THE INSURANCE COMPANY.

       {¶39} In their fifth assignment of error, the Stifflers argue that there are questions of fact

concerning an oral agreement they claim Mr. Stiffler entered into with Chaffee Chiropractic in

January 2012. This Court disagrees.

       {¶40} In opposing summary judgment, the Stifflers claimed that a meeting occurred

between Mr. Stiffler and Dr. Bryce Chaffee in January 2012 and a “new contractual relationship”

was formed between the parties. The Stifflers did not cite any legal authority to support this

argument below nor have they done so on appeal. See App.R. 16(A)(7).

       {¶41} Rather, the Stifflers rely on the conclusory assertion in Mr. Stiffler’s affidavit that

“Chaffee agreed to accept payments from the insurance company (Wayne Mutual) as full

payment for any and all services for Erin.” From this assertion, coupled with Erin’s resumption

of treatment visits on January 17, 2012, the Stifflers conclude that “[t]he terms of the parties[’]

oral agreement are questions of fact in dispute.” The Stifflers assume, without providing any

legal support, that there was an oral agreement between the parties. They have not explained

how an oral contract is formed legally, nor have they detailed how the elements were met during

Mr. Stiffler’s meeting with Dr. Chaffee. This Court will not develop an argument on their

behalf. See Cardone, 1998 WL 224934, at *8.

       {¶42} The Stifflers’ fifth assignment of error is overruled.
                                               13


                             ASSIGNMENT OF ERROR NO. 7

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
       SUMMARY JUDGMENT WHERE THERE ARE QUESTIONS OF DISPUTED
       FACTS WHETHER CHAFFEE [CHIROPRACTIC’S] CLAIMS ARE BARRED
       BY THE DOCTRINE OF EQUITABLE ESTOPPEL.

                             ASSIGNMENT OF ERROR NO. 8

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
       SUMMARY JUDGMENT WHERE THERE ARE QUESTIONS OF FACT
       WHETHER CHAFFEE [CHIROPRACTIC’S] CLAIMS ARE BARRED BY
       ESTOPPEL IN PAIS.

       {¶43} In their seventh and eighth assignments of error, the Stifflers argue that there is a

genuine issue of material fact concerning their equitable estoppel and estoppel in pais defenses.

This Court disagrees.

       {¶44} The terms equitable estoppel and estoppel in pais refer to the same legal concept.

See Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, ¶ 20. See also Black’s Law

Dictionary 590 (8th Ed.2004). In order to prevail the proponent must prove: “‘(1) that the

adverse party made a factual misrepresentation; (2) that the misrepresentation was misleading;

(3) that the misrepresentation induced actual reliance which was reasonable and in good faith;

and (4) the proponent suffered detriment due to the reliance.’” First Energy Solutions v. Gene B.

Glick Co., 9th Dist. Summit No. 23646, 2007-Ohio-7044, ¶ 13, quoting TBLD Corp. v. Ravenna

Invest. Co., Inc., 9th Dist. Summit No. 21043, 2002-Ohio-5265, ¶ 14. A misrepresentation may

occur through language or conduct. Hortman at ¶ 20.

       {¶45} Under these assignments of error, the Stifflers point to three distinct items that

they claim were misrepresentations. First, they point to the January 2012 meeting between Dr.

Chaffee and Mr. Stiffler. Next, they point to the lack of billing throughout Erin’s course of
                                                14


treatment. Finally, they point out that the first bill they received following the conclusion of

Erin’s treatment listed an insurance balance of $8,425 and a patient balance of $0.

       {¶46} As to the January 2012 meeting, Mr. Stiffler averred that “Chaffee agreed to

accept payments from insurance company (Wayne Mutual) as full payment for any and all

services to Erin.” An agreement refers to a future promise, not a representation of a past or

current fact. Thus, the Stifflers’ argument sounds in promissory estoppel, not equitable estoppel.

See Hortman at ¶ 24 (explaining the distinction between equitable estoppel and promissory

estoppel). This portion of the Stifflers’ argument fails to identify a factual misrepresentation to

support an equitable estoppel defense.      This Court will not create a promissory estoppel

argument on their behalf. See Cardone, 1998 WL 224934, at *8.

       {¶47} The Stifflers next point out that Chaffee Chiropractic did not send them a bill for

Erin’s treatments until after her treatments had stopped in June 2013. Chaffee Chiropractic

responds that its billing was consistent with its financial policy. The financial policy provides

for a delay to allow for insurance payments and settlement with third parties, but it also notifies

patients that they are ultimately responsible for the bill. With respect to insurance payments, the

policy provides: “I [] understand that if [] insurance does not respond within 60 days, or if I

suspend or terminate my schedule of care as prescribed by the doctors at Chaffee Chiropractic

Clinic[,] that fees will be due and payable immediately.” With respect to automobile accidents,

the policy allows 6 months to settle a claim and further provides: “Once the claim is settled or if

you suspend or terminate care, any fees for services are due immediately.” Both Erin and Mrs.

Stiffler signed the financial policy, and Mr. Stiffler did not aver that he was unaware of its

provisions. Contrary to the Stifflers’ argument, the lack of billing until the completion of Erin’s

treatment was not a misrepresentation, but was consistent with the financial policy.
                                                 15


       {¶48} Finally, the Stifflers point out that the first bill they received after Erin’s

treatments were completed showed an amount due of $0 and a patient balance of $0. That same

bill lists an insurance balance of $8,425 and an account balance of $8,425. Because Erin’s

treatments had terminated at this point in time, the bill should have shown the account balance as

being the amount owed by the Stifflers in accordance with Chaffee Chiropractic’s financial

policy. Construing the evidence most favorable to the Stifflers, the failure to do so was a factual

misrepresentation that was misleading. However, the Stifflers have not established that they

actually relied on this misrepresentation to their detriment. It is undisputed that the bill was sent

“[a]fter Erin’s treatments stopped.” Consequently, the Stifflers did not incur any additional

medical expenses in reliance on the statements on the bill as to the allocation of the account

balance. Therefore, with respect to the billing allocation, the Stifflers failed to establish the

reliance and detriment elements of an equitable estoppel claim.

       {¶49} The Stifflers’ seventh and eighth assignments of error are overruled.

                                                      III.

       {¶50} The Stifflers’ assignments of error are overruled. The judgment of the Wayne

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                16


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

CHARLES A. KENNEDY, Attorney at Law, for Appellants.

DAVID W. ZACOUR and WAYNE A. ZACOUR, Attorneys at Law, for Appellee.
