Barger v. Elite Mgmt. Servs., Inc.

2018 Ohio 3755, 119 N.E.3d 953
CourtOhio Court of Appeals
DecidedSeptember 19, 2018
DocketC-70322
StatusPublished
Cited by4 cases

This text of 2018 Ohio 3755 (Barger v. Elite Mgmt. Servs., Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barger v. Elite Mgmt. Servs., Inc., 2018 Ohio 3755, 119 N.E.3d 953 (Ohio Ct. App. 2018).

Opinions

Miller, Judge.

{¶ 1} Nicole Barger appeals from the trial court's Civ.R. 12(B)(6) dismissal of her putative class action lawsuit against appellee Elite Management Services, Inc., ("EMS"). We affirm the dismissal of Barger's claims for breach of contract, violations of the Ohio Consumer Sales Practices Act ("OCSPA") and the Ohio Planned *956Community Law ("OPCL"), and for declaratory judgment. We reverse the dismissal of Barger's unjust enrichment claim, and remand for further proceedings.

Facts and Procedural Posture

{¶ 2} Barger owned a home in the Fairfield Ridge Subdivision. As such, she was a member of the Fairfield Ridge Homeowners Association ("HOA"). The HOA is not a party to this lawsuit. As is customary, Barger was required to pay HOA assessments to cover the costs of operating, maintaining and governing the subdivision. According to Barger's complaint, to sell her house, Barger had to provide the title company a letter certifying the amount of any HOA fees Barger may have owed, or the sale would not have closed. Under the HOA's Declaration, the HOA could levy a "reasonable charge" to provide such certification letters to its members.

{¶ 3} The HOA had contracted with EMS to provide certain management services for the HOA. EMS provided Barger with the required certification letter. EMS allegedly charged Barger $395 for the letter, along with a $100 fee to expedite the letter for the closing. According to Barger, other companies typically charged $25 to $50 for this service, making EMS's fee unreasonable. Barger sued EMS on behalf of herself and others similarly situated. In pertinent part, she claimed that the fee breached EMS's management contract with the HOA and the HOA's Declaration, violated the OPCL and the OCSPA, and constituted unjust enrichment.

{¶ 4} EMS moved for and was granted dismissal of Barger's complaint under Civ.R. 12(B)(6) for the failure to state a claim upon which relief could be granted. In a sole assignment of error, Barger contends that the trial court erred, and its judgment must be reversed.

Standard of Review

{¶ 5} We review the granting of a Civ.R. 12(B)(6) motion to dismiss de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. In so doing, "we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party." Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). We may affirm the trial court's dismissal only if appears "beyond doubt" that Barger can prove no set of facts entitling her to relief. See id. We are also mindful that the complaint should contain "a short, plain statement of the claim," see Civ.R. 8(A), and "be simple, concise, and direct," see Civ.R. 8(E), and that all pleadings should "be construed as to do substantial justice." See Civ.R. 8(F). In short, Ohio is a notice pleading state.

Breach of Management Agreement Claim

{¶ 6} The HOA delegated a portion of its responsibilities to EMS in a management contract. Barger contends that she was a third-party beneficiary of the contract, and could therefore sue for breach of its provisions. This argument fails for two reasons. First, Barger was not an intended beneficiary of the management contract. Second, even if she was, the contract between the HOA and EMS did not require EMS to provide certification letters to HOA members at a reasonable cost.

{¶ 7} "Ohio law * * * requires that for a third party to be an intended beneficiary under a contract, there must be evidence that the contract was intended to directly benefit that third party. Generally, the parties' intention to benefit a third party will be found in the language of the agreement."

*957Huff v. FirstEnergy Corp. , 130 Ohio St.3d 196, 2011-Ohio-5083, 957 N.E.2d 3, ¶ 12 ; Blue Ash Auto Body, Inc. v. Progressive Cas. Ins. Co., 1st Dist. Hamilton No. C-110083, 2011-Ohio-5785, 2011 WL 5444201. Barger points out that, in its contract with the HOA, EMS agreed to the "maintenance of records and files for individual homeowners," and to collect and account for assessments. This apparently included the responsibility to provide certification letters since EMS provided one here. But this was for the benefit of the HOA, not the homeowners. Further, Barger advances no argument concerning how construing her as a beneficiary would be favorable to the HOA, which was party to the contract. See Westfield Ins. Co. v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 14 (where a plaintiff is not a party to a contract, she is not in a position to urge that a contract be strictly construed against a party to it).

{¶ 8} Also significant to our analysis is the fact that EMS was never limited by its management agreement with the HOA to furnish the certification letter at a reasonable cost to HOA members. Accordingly, there was no breach. Therefore, the breach of management agreement claim was properly dismissed under Civ.R. 12(B)(6).

Breach of Declaration Claim

{¶ 9} The obligation to charge a reasonable fee for certification letters was set forth under the HOA's Declaration. As a homeowner, Barger could enforce the Declaration as to the HOA, but the HOA is not a party to this lawsuit. Barger claims that, as the HOA's agent, EMS was automatically bound by the Declaration. EMS was not a party to the Declaration nor, as we have determined, was it bound by its management agreement to abide by the Declaration's reasonable fee requirement. Since it had no obligation to adhere to the Declaration, it could not breach it.

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Barger v. Elite Mgmt. Servs., Inc.
2018 Ohio 3755 (Ohio Court of Appeals, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
2018 Ohio 3755, 119 N.E.3d 953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barger-v-elite-mgmt-servs-inc-ohioctapp-2018.