Candlewood Custom Homes, Inc. v. Saunders

• Court: Ohio Court of Appeals
• Decided: May 27, 2026
• Docket: 25CA12
• Status: Published

Opinion

[Cite as Candlewood Custom Homes, Inc., v. Saunders, et al., 2026-Ohio-2038.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

CANDLEWOOD CUSTOM HOMES, INC., :

Plaintiff-Appellee and : CASE NO. 25CA12 Cross-Appellant, : v. : BRIAN SAUNDERS, et al., DECISION AND JUDGMENT ENTRY : Defendants-Appellants and Cross-Appellees. : ________________________________________________________________ APPEARANCES:

Brian S. Stewart, Circleville, Ohio, for appellants.

Joel E. Sechler, Columbus, Ohio, for appellee. ________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:5-27-26 ABELE, J.

{¶1} This is an appeal from a Pickaway County Common Pleas

Court judgment that awarded Candlewood Custom Homes, Inc.,

plaintiff below and appellee/cross-appellant herein, damages in

the amount of $20,544.

{¶2} Brian and Melissa Saunders, defendants below and

appellants/cross-appellees herein, assign the following errors

for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY DENYING DEFENDANTS’ MOTION FOR A NEW TRIAL, FILED ON OCTOBER 23, 2024.” Pickaway 25CA12 2

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY DENYING DEFENDANTS’ MOTION FOR RELIEF FROM JUDGMENT, FILED ON OCTOBER 23, 2024.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY ADOPTING PORTIONS OF THE MAGISTRATE’S DECISIONS OF MARCH 6, 2024 AND JULY 30, 2024 WHICH HELD DEFENDANTS’ [SIC] LIABLE FOR DAMAGES FOR UNJUST ENRICHMENT.”

FOURTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY ADOPTING PORTIONS OF THE MAGISTRATE’S DECISION OF MARCH 6, 2024 WHICH DENIED DEFENDANTS’ CLAIM FOR BREACH OF CONTRACT.”

FIFTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY ADOPTING PORTIONS OF THE MAGISTRATE’S DECISION OF MARCH 6, 2024 WHICH DENIED DEFENDANTS’ CLAIM FOR SLANDER OF TITLE.”

{¶3} Candlewood assigns the following errors for review:

FIRST CROSS-ASSIGNMENT OF ERROR:

“THE TRIAL COURT ABUSED ITS DISCRETION IN ADOPTING THE PORTION OF THE MAGISTRATE’S JULY 30, 2024 DECISION REDUCING THE UNJUST ENRICHMENT AWARD AGAINST BRIAN AND MELISSA SAUNDERS (THE ‘SAUNDERS’) AND IN FAVOR OF CANDLEWOOD CUSTOM HOMES, INC. (‘CANDLEWOOD’) BY $5,000.”

SECOND CROSS-ASSIGNMENT OF ERROR:

“THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING CANDLEWOOD’S MOTION FOR PREJUDGMENT INTEREST.”

{¶4} In 2018, the parties entered into a written agreement Pickaway 25CA12 3

for the construction of appellants’ home. The agreement

provided, in part, that (1) the estimated cost to build the home

would be $346,500, and (2) appellee would manage the

construction project in exchange for a $55,000 management fee.

{¶5} In July 2020, the parties’ relationship soured, and

appellee stopped work on the home.

{¶6} Appellee later filed a complaint against appellants

that asserted claims for breach of contract, unjust enrichment,

and fraudulent inducement.1 Appellee additionally sought to

foreclose on a mechanic’s lien.

{¶7} Appellants answered and filed counterclaims and a

third-party complaint against Mark Myers, appellee’s sole

shareholder. Appellants asserted counterclaims for breach of

contract, unjust enrichment, breach of duty to perform in a

workmanlike manner, and slander of title. Appellants’ third-

party complaint against Myers sought to hold him jointly and

severally liable with appellee.

{¶8} In January 2024, the trial court’s magistrate held a

bench trial. After the trial, the magistrate issued a decision

and recommended that the trial court (1) deny both parties’

claims for breach of contract, (2) deny appellants’ remaining

claims, (3) declare the mechanic’s lien invalid, and (4) grant

1 Appellee later abandoned its fraudulent inducement claim. Pickaway 25CA12 4

appellee damages for unjust enrichment. The magistrate

recommended that the court award appellee $25,544 in damages,

less the value of “punch-out” work, which the magistrate left to

be determined after an additional hearing.

{¶9} After the additional hearing, the magistrate reduced

appellee’s damage award for unjust enrichment by $5,000, the

amount that the magistrate determined to be the value of the

punch-out work. The magistrate thus determined that appellee is

entitled to $20,544 in damages for its unjust enrichment claim.

{¶10} Both parties filed objections to the magistrate’s

decision. On October 1, 2024, the trial court overruled the

parties’ objections and adopted the magistrate’s decision. The

court first pointed out that the parties did not support their

objections with a transcript of the proceedings held before the

magistrate. The court stated that without a transcript, it must

presume the regularity of the proceedings. The court thus

adopted the magistrate’s factual findings, except for a finding

that Myers, as opposed to appellee, is entitled to damages for

unjust enrichment.

{¶11} The trial court additionally overruled the parties’

objections to the magistrate’s conclusions of law. The court

determined that the magistrate correctly applied the law to the

facts. The court thus adopted the magistrate’s decision and

awarded appellee $20,544. Pickaway 25CA12 5

{¶12} Appellee subsequently filed a motion for prejudgment

interest.

{¶13} Shortly thereafter, appellants filed a motion for a

new trial under Civ.R. 59(A) or, alternatively, for relief from

judgment under Civ.R. 60(B)(5). Appellants asserted that the

court should either grant a new trial or grant relief from

judgment. Appellants alleged that they were entitled to a new

trial or to relief from judgment because the magistrate should

have disqualified herself from presiding over the trial due to a

$100 contribution that she made to the campaign of appellants’

counsel’s election opponent in the 2024 Republican primary for a

seat in the Ohio House of Representatives.

{¶14} On December 10, 2024, the trial court overruled

appellants’ motion for a new trial or for relief from judgment.

The court did not agree with appellants that the magistrate

should have disqualified herself from presiding over the trial

due to the $100 campaign contribution.

{¶15} Later, the trial court denied appellee’s motion for

prejudgment interest. The court determined that R.C.

1343.03(C)(1) applied to appellee’s request for prejudgment

interest and concluded that appellee did not satisfy the

statutory requirements to be entitled to prejudgment interest.

The court thus denied appellee’s motion for prejudgment

interest. This appeal followed. Pickaway 25CA12 6

I

{¶16} We initially observe that appellants’ brief does not

separately argue the first and second assignments of error.

App.R. 16(A)(7) requires an appellant’s brief to include “[a]n

argument containing the contentions of the appellant with

respect to each assignment of error presented for review and the

reasons in support of the contentions, with citations to the

authorities, statutes, and parts of the record on which

appellant relies.” App.R. 12(A)(2) permits us to “disregard an

assignment of error presented for review if the party raising it

. . . fails to argue the assignment separately in the brief, as

required under App.R. 16(A).”

{¶17} Consequently, in light of appellants’ failure to argue

each assignment separately in the brief, we would be well within

our discretionary authority to summarily overrule appellants’

first and second assignments of error. See Mtge. Electronic

Registrations Sys. v. Mullins, 2005-Ohio-2303, ¶ 22 (4th Dist.).

We generally prefer, however, to decide cases on their merits

rather than procedural technicalities. See DCI Rentals, LLC v.

Sammons, 2024-Ohio-1962, ¶ 7, fn. 2 (4th Dist.); see also

Barksdale v. Van’s Auto Sales, Inc., 38 Ohio St.3d 127, 128

(1988) (noting that a “basic tenet of Ohio jurisprudence [is]

that cases should be determined on their merits and not on mere

procedural technicalities”). We will therefore address Pickaway 25CA12 7

appellants’ first and second assignments of error, but, for ease

of discussion, we consider them separately.

II

{¶18} In their first assignment of error, appellants assert

that the trial court erred by denying their motion for a new

trial. Appellants contend that they are entitled to a new trial

pursuant to (1) Civ.R. 59(A)(1), which allows a court to grant a

new trial based upon an “[i]rregularity in the proceedings of

the court,” or (2) Civ.R. 59(A)’s catch-all provision, “for good

cause shown.”

A

{¶19} When “a trial court is authorized to grant a new trial

for a reason which requires the exercise of a sound discretion,

the order granting a new trial may be reversed only upon a

showing of abuse of discretion by the trial court.” Rohde v.

Farmer, 23 Ohio St.2d 82 (1970), paragraph one of the syllabus;

accord Harris v. Mt. Sinai Med. Ctr., 2007-Ohio-5587, ¶ 35.

When, however, “a new trial is granted by a trial court, for

reasons which involve no exercise of discretion but only a

decision on a question of law, the order granting a new trial

may be reversed upon the basis of a showing that the decision

was erroneous as a matter of law.” Rohde, paragraph two of the

syllabus; see also Sydnor v. Qualls, 2016-Ohio-8410, ¶ 41 (4th

Dist.). Pickaway 25CA12 8

{¶20} Civ.R. 59(A)(1) authorizes a trial court to grant a

new trial based upon an “[i]rregularity in the proceedings of

the court, jury, magistrate, or prevailing party, or any order

of the court or magistrate, or abuse of discretion, by which an

aggrieved party was prevented from having a fair trial[.]” Ohio

appellate courts routinely state that “Civ.R. 59(A)(1) provides

a trial court with discretion to grant a new trial when an

irregularity in a court proceeding prevents a party from having

a fair trial.” Wright v. Suzuki Motor Corp., 2005-Ohio-3494, ¶

114 (4th Dist.); see Westfield Ins. v. Chapel Elec. Co. LLC,

2024-Ohio-2736, ¶ 134 (2d Dist.); Wood v. Harborside Healthcare,

2012-Ohio-156, ¶ 17 (8th Dist.). Appellate courts thus review

trial court decisions regarding a Civ.R. 59(A)(1) new trial

motion for an abuse of discretion. See Koch v. Rist, 89 Ohio

St.3d 250, 252 (2000) (reviewing a new trial motion under Civ.R.

59(A)(1) and the catch-all provision for an abuse of

discretion);2 Gilbert v. Welter, 2025-Ohio-4887, ¶ 30 (1st

Dist.); Gallagher v. Fast, 2024-Ohio-1003, ¶ 16 (9th Dist.);

Waechter v. Laser Spine Institute, LLC, 2023-Ohio-3715, ¶ 34

2 We observe that in Jones v. Cleveland Clinic Found., 2020-Ohio-3780, ¶ 28-33, the court seemingly independently reviewed whether an irregularity occurred that warranted a new trial under Civ.R. 59(A)(1). Yet the court’s opinion did not explicitly state whether the court applied a de novo or an abuse-of-discretion standard of review to its review of the Civ.R. 59(A)(1) new trial motion. Absent more explicit guidance, we will continue to apply the abuse-of-discretion standard of review to Civ.R. 59(A)(1) new trial motions. Pickaway 25CA12 9

(8th Dist.); Cullimore v. Cullimore, 2022-Ohio-3208, ¶ 44 (4th

Dist.).

{¶21} Civ.R. 59(A) also contains a catch-all provision that

gives a trial court discretion to grant a party a new trial “for

good cause shown.” A trial court’s decision regarding a motion

for a new trial based upon the catch-all provision is a

discretionary decision that a reviewing court will not disturb

absent an abuse of discretion. See Jones v. Cleveland Clinic

Found., 2020-Ohio-3780, ¶ 33.

{¶22} Accordingly, we review the trial court’s decision

regarding appellants’ motion for a new trial under Civ.R.

59(A)(1) and the catch-all provision for an abuse of discretion.

A decision constitutes an abuse of discretion when it is

unreasonable, arbitrary, or unconscionable. State ex rel. Hicks

v. Adams Cty. Bd. of Elections, 2025-Ohio-4582, ¶ 23. Moreover,

when applying the abuse-of-discretion standard, a reviewing

court may not substitute its judgment for that of the trial

court. Whitt v. Wolfinger, 2015-Ohio-2726, ¶ 13 (4th Dist.),

citing Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990).

B

{¶23} In the case at bar, appellants assert that the trial

court abused its discretion by determining that the magistrate’s

failure to disqualify herself from hearing the matter did not

constitute an irregularity in the proceeding or good cause to Pickaway 25CA12 10

warrant a new trial.

{¶24} “In the context of a motion for new trial, an

‘irregularity’ is a departure from the due, orderly, and

established mode of proceeding, whereby a party, through no

fault of his own, is deprived of some right or benefit otherwise

available to him.” Gill v. Grafton Corr. Inst., 2011-Ohio-4251,

¶ 34 (10th Dist.). “The rule preserves the integrity of the

judicial system when the presence of serious irregularities in a

proceeding could have a material adverse effect on the character

of and public confidence in judicial proceedings.” Wright v.

Suzuki Motor Corp., 2005-Ohio-3494, ¶ 114 (4th Dist.).

{¶25} A magistrate’s failure to disqualify himself or

herself in accordance with the mandatory disqualification

provisions of the Code of Judicial Conduct may constitute an

irregularity that warrants a new trial. See James v. James, 101

Ohio App.3d 668 (2d Dist. 1995). As relevant here, Jud.Cond.R.

2.11(A)(1) requires a judge or magistrate to “disqualify himself

or herself in any proceeding in which the judge’s impartiality

might reasonably be questioned, including” in circumstances when

“[t]he judge has a personal bias or prejudice concerning a party

or a party’s lawyer. . . .”3

3 “As judicial officers, both full- and part-time magistrates appointed by judges in municipal, common pleas, or appellate courts are subject to the Code of Judicial Conduct. Jud.Cond.R., Application.” Board of Professional Conduct Opinion No. 2018-04, at 2. Pickaway 25CA12 11

{¶26} In the case sub judice, appellants first contend that

Jud.Cond.R. 2.11(A)(1) required the magistrate to disqualify

herself because a reasonable person would have questioned the

magistrate’s impartiality due to the $100 campaign contribution

that she made to appellants’ counsel’s opponent in the 2024

Republican primary. Appellants assert that the magistrate’s

failure to disqualify herself constituted an irregularity that

warrants a new trial. Appellants thus contend that the trial

court abused its discretion by overruling their motion for a new

trial.

{¶27} “‘The proper test for determining whether a judge’s

participating in a case presents an appearance of impropriety is

. . . an objective one.’” In re Disqualification of Gallagher,

2024-Ohio-6136, ¶ 45, quoting In re Disqualification of Lewis,

2004-Ohio-7359, ¶ 8. Under this test, “‘[a] judge should step

aside or be removed if a reasonable and objective observer would

harbor serious doubts about the judge’s impartiality.’” Id.,

quoting Lewis at ¶ 8.

{¶28} To support their argument that the magistrate was

required to disqualify herself to avoid an appearance of

impropriety, appellants cite James, 101 Ohio App.3d 668, and In

re Disqualification of Miller, 2022-Ohio-4674. In James,

defense counsel and the magistrate who presided over the Pickaway 25CA12 12

proceedings previously practiced law together. The appellate

court reversed the trial court’s decision that had denied the

appellant’s motion for a new trial based upon an irregularity in

the proceedings.

{¶29} The James court noted that former Canon 3(C) of the

Code of Judicial Conduct required a judicial officer to

“‘disqualify himself in a proceeding in which his impartiality

might reasonably be questioned.’” James, 101 Ohio App.3d at

676, quoting former Jud.Cond.Canon 3(C). The court noted that

this provision required disqualification when a reasonable

person, with knowledge of all the circumstances, would

reasonably question the judicial officer’s impartiality. Id.

{¶30} The James court also observed that former Canon

3(C)(1)(b) of the Code of Judicial Conduct required a judicial

officer to “disqualify himself from hearing a case in which his

impartiality might reasonably be questioned, including a

situation where ‘a lawyer with whom he previously practiced law

served during such association as a lawyer on the matter.’”

Id., quoting former Jud.Cond.Canon 3(C)(1)(b). The court

explained that the Code of Judicial Conduct recognized that “if

a judge were to hear a case that was handled by the judge’s

former legal associate during the time of their association, the

ability of the judge to be impartial would reasonably be

questioned.” Id. The court thus indicated that Pickaway 25CA12 13

disqualification in this situation was mandatory “to avoid

suspicion of the fairness and the integrity of the judicial

process that might result from the judge’s involvement in such a

case.” Id.

{¶31} The James court additionally concluded that the

“general disqualification standard” contained in former Canon

3(C) likewise required the magistrate to disqualify himself.

The court clarified, however, that a judicial officer need not

“disqualify himself every time a former associate appears before

him.” Id. at 677. Instead, the court indicated that

disqualification in this situation involves considering “the

totality of the facts surrounding the association . . .

including the nature and extent of the prior association, the

length of time since it has been terminated, and any tangential

personal association that may have sprung from the professional

association.” Id.

{¶32} Thus, the James court determined that the totality of

the facts surrounding the association between the magistrate and

the former associate indicated that the magistrate should have

disqualified himself. The court found that only seven months

had elapsed since the prior association ended and that this

amount of time was “not a sufficient lapse in time between the

time that the [magistrate] practiced law with [the attorney] and

the time that he acted in a formal judicial capacity in the Pickaway 25CA12 14

case.” Id. The court further observed that “[t]he association

clearly had not been severed in the eyes of the public, as

evidenced by the advertisement for their law firm, which ran

throughout the entire year of 1992.” Id.

{¶33} The James court thus decided “that the public’s

confidence in the [magistrate]’s impartiality in this case has

been undermined to an extent requiring reversal of the result”

and that disqualification was mandatory. Id. The court also

recognized that nothing in the record “suggest[ed] that the

[magistrate]’s prior association with defense counsel actually

influenced his disposition of the case in any way.” Id. The

court nevertheless determined that “the appearance of

impartiality . . . ha[d] been compromised to an impermissible

extent.” (Emphasis in original.) Id. The court therefore

concluded that the magistrate’s failure to disqualify himself in

accordance with the mandatory disqualification provisions of the

Code of Judicial Conduct constituted an irregularity that

warranted a new trial. Consequently, the court determined that

the trial court abused its discretion by denying the appellant’s

motion for a new trial.

{¶34} We do not, however, agree with appellants that James

dictates the outcome in the case at bar. James involved a

different set of facts than those present in the case sub

judice. In James, the magistrate who presided over the Pickaway 25CA12 15

proceedings previously practiced law with one of the lawyers

involved in the case. The case at bar involves a magistrate’s

$100 campaign contribution to appellants’ counsel’s election

opponent. We do not believe that James supports an argument

that the magistrate in the case at bar was required to

disqualify herself and that her failure to do so constituted an

irregularity that warrants a new trial.

{¶35} Appellants additionally contend that Miller, 2022-

Ohio-4674, shows that the magistrate was required to disqualify

herself. In Miller, the court recognized that it had decided

disqualification requests that involve “‘political and campaign

issues . . . on a case-by-case basis.’” Id. at ¶ 5, quoting In

re Disqualification of Burt, 2015-Ohio-5670, ¶ 6. The court

observed that “[u]nder longstanding precedent, it is

unreasonable to question a judge’s impartiality merely because

counsel or a litigant contributed to the judge’s election

campaign or because a lawyer campaigned for the judge’s election

opponent.” Id. at ¶ 5, citing In re Disqualification of Breaux,

2017-Ohio-7374, ¶ 10.

{¶36} The Miller court further stated, however, that certain

“political circumstances” may require disqualification “to avoid

an appearance of impropriety.” Miller, 2022-Ohio-4674, at ¶ 6.

For instance, “‘[w]hen a lawyer’s campaign activities evidence a

substantial political relationship with a judge, Pickaway 25CA12 16

disqualification is warranted during the campaign fundraising

period.’” Id., quoting Board of Professional Conduct Opinion

No. 2014-1.4

{¶37} In the case at bar, appellants contend that Miller

means that “a magistrate must be disqualified during a campaign

cycle in which that magistrate donated money against the

attorney appearing in front of her.” Appellants’ argument,

however, seems to overlook the important qualifying language in

Miller that the campaign activity must evidence “‘a substantial

political relationship with a judge.’” Id., quoting Board of

Professional Conduct Opinion No. 2014-1. Thus, even though we

agree that Miller recognized that judges must disqualify

themselves “‘[w]hen a lawyer’s campaign activities evidence a

substantial political relationship with a judge,’” the facts in

the case at bar do not reveal a substantial political

4 The Advisory Opinion lists several factors that are “relevant to

determining if a lawyer’s campaign activity creates a substantial political relationship with the judge,” such as “[a]ny political ties between the lawyer and judge occurring outside the campaign relationship” and

the length and level of campaign involvement, including whether the lawyer has campaign management responsibilities, the extent of the lawyer’s fundraising activities, whether the lawyer’s name appears on solicitation letters, emails, and the like, whether the election is contested, and the type of election (statewide, multi-county, or local).

Opinion No. 2014-1, at 5. The Advisory Opinion further suggests that “[a] lawyer’s title in a judicial campaign may be indicative of a substantial political relationship with the judge, but is not a determining factor in a disqualification analysis.” Pickaway 25CA12 17

relationship between the magistrate and appellants’ counsel’s

primary opponent. Instead, the facts indicate that the

magistrate contributed $100 to appellants’ counsel’s primary

opponent. Nothing about this de minimis campaign contribution

suggests a substantial political relationship so as to mandate

the magistrate’s disqualification. See In re Disqualification

of Wallace, 2019-Ohio-5452, ¶ 7 (“the agency’s attorney’s $100

contribution to Judge Wallace’s campaign does not create any

inference of an appearance of impropriety.”).

{¶38} Appellants also assert that Jud.Cond.R. 2.11(A)(1)

required the magistrate to disqualify herself because her $100

campaign contribution suggested that she had “a negative

opinion” of their lawyer and, hence, “a personal bias or

prejudice” concerning their lawyer.

{¶39} We recognize that preserving “public confidence in the

integrity of the judicial system is vitally important,” and that

“[a]n appearance of bias can be just as damaging to public

confidence as actual bias.” In re Disqualification of Murphy,

2005-Ohio-7148, ¶ 6. We further observe, however, that “‘[a]

judge is presumed to follow the law and not to be biased, and

the appearance of bias or prejudice must be compelling to

overcome these presumptions.’” In re Disqualification of

Saffold, 2006-Ohio-7225, ¶ 11, quoting In re Disqualification of Pickaway 25CA12 18

George, 2003-Ohio-5489, ¶ 5.

The term “bias or prejudice” “implies a hostile feeling or spirit of ill-will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.”

In re Disqualification of O’Neill, 2002-Ohio-7479, ¶ 14, quoting

State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956),

paragraph four of the syllabus.

{¶40} “A determination of whether a judge is biased or

prejudiced is based on the judge’s words and/or actions and

whether those words and/or actions convey that the judge is

predisposed to a particular outcome of a case.” In re

Disqualification of Gallagher, 2024-Ohio-6136, ¶ 43. Thus,

“‘[a]llegations that are based solely on hearsay, innuendo, and

speculation . . . are insufficient to establish bias or

prejudice.’” In re Disqualification of Breaux, 2017-Ohio-7374,

¶ 11, quoting In re Disqualification of Flanagan, 2009-Ohio-

7199, ¶ 4.

{¶41} In the case sub judice, appellants did not present any

specific evidence to suggest that the magistrate exhibited

hostile feelings, a spirit of ill-will, or undue favoritism so

as to require disqualification. They assert that the

magistrate’s act of contributing $100 to their lawyer’s

opponent’s campaign evidences the magistrate’s bias or Pickaway 25CA12 19

prejudice. Appellants do not cite any authority for this

proposition, however.

{¶42} Additionally, the supreme court appears to have

rejected the proposition that a party may establish the level of

bias or prejudice necessary for disqualification through

supposition. See generally In re Disqualification of Hurley,

2014-Ohio-5874, ¶ 7 (“absent some evidence of bias, the fact

that a party may have opposed a judge’s bid for elected office

is insufficient to require the judge’s disqualification”); In re

Disqualification of Osowik, 2006-Ohio-7224, ¶ 6 (“The fact that

the defendant may have opposed the judge’s bid for elected

office is insufficient to warrant disqualification, absent some

evidence of actual bias.”); In re Disqualification of Cleary, 77

Ohio St.3d 1246, 1247 (1996) (“Affiant speculates that his

support of Judge Cleary’s opponent was the cause of the adverse

ruling on the motion for a continuance (see paragraphs 1 and 7

of the affidavit), but he fails to substantiate this

assertion.”); In re Disqualification of Krueger, 74 Ohio St.3d

1267, 1268 (1995) (“Affiant has failed to demonstrate the

existence of bias or prejudice based on the fact that she and

Judge Krueger were opponents in the previous election”).

{¶43} Consequently, we do not believe that appellants have

established that the magistrate’s failure to disqualify herself

constituted an irregularity or good cause so as to warrant a new Pickaway 25CA12 20

trial. We therefore disagree with appellants that the trial

court abused its discretion by denying their motion for a new

C

{¶44} Within their first assignment of error, appellants

further argue that the trial court erred and abused its

discretion by independently investigating campaign contributions

made to another candidate, evidence that neither party had

submitted.

{¶45} Even if we assume for purposes of argument that the

trial court improperly considered outside evidence, we do not

believe that appellants can establish that this alleged error

affected the outcome of the proceedings. See App.R. 12(B)

(requiring affirmance when “the trial court committed no error

prejudicial to the appellant”); Civ.R. 61 (“The court at every

stage of the proceeding must disregard any error or defect in

the proceeding which does not affect the substantial rights of

the parties.”).

{¶46} Accordingly, based upon the foregoing reasons, we

overrule appellants’ first assignment of error.

III

{¶47} In their second assignment of error, appellants assert

that the trial court abused its discretion by denying their

Civ.R. 60(B)(5) motion for relief from judgment. They assert Pickaway 25CA12 21

that the magistrate’s failure to disqualify herself constitutes

“any other reason justifying relief from the judgment.”

{¶48} A trial court has discretion to grant a party relief

from judgment under Civ.R. 60(B). Thus, an appellate court will

not reverse a trial court’s decision regarding a Civ.R. 60(B)

motion for relief from judgment unless the court abused its

discretion. See Lundeen v. Turner, 2022-Ohio-1709, ¶ 11, citing

Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21 (1988)

(noting that the “court reviews a decision denying a Civ.R.

60(B) motion for an abuse of discretion”).

{¶49} To prevail on a motion under Civ.R. 60(B), the movant

must demonstrate that (1) the party has a meritorious defense or

claim to present if relief is granted, (2) the party is entitled

to relief under one of the grounds in Civ.R. 60(B)(1)-(5), and

(3) the motion is made within a reasonable time. GTE Automatic

Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150

(1976). A court must overrule the motion if the moving party

fails to establish any of these requirements. Rose Chevrolet,

36 Ohio St.3d at 20.

{¶50} In the case sub judice, appellants assert that they

are entitled to relief under the ground specified in Civ.R.

60(B)(5). That provision permits a court to relieve a party

from a final judgment for “any other reason justifying relief

from the judgment.” Civ.R. 60(B)(5). Pickaway 25CA12 22

{¶51} We, however, do not believe that the trial court

abused its discretion by denying appellants’ Civ.R. 60(B)(5)

motion for relief from judgment. As we explained in our

discussion of appellants’ first assignment of error, appellants

did not establish that the magistrate was required to disqualify

herself from hearing the matter. Thus, appellants have not

demonstrated any reason that would justify relief from the

judgment.

{¶52} Accordingly, based upon the foregoing reasons, we

overrule appellants’ second assignment of error.

IV

{¶53} In their third assignment of error, appellants assert

that the trial court erred by adopting the magistrate’s decision

that found appellants liable for unjust enrichment. Appellants

assert that the trial court found that a valid contract existed,

and, thus, the court could not award damages for unjust

enrichment. Appellants further argue that the trial court’s

judgment to award appellee damages for unjust enrichment

constitutes an error of law subject to de novo review.

{¶54} We initially do not agree with appellants that our

standard of review for this issue is de novo. The trial court’s

judgment arose from its adoption of the magistrate’s decision.

Appellants filed objections to the magistrate’s decision, but

appellants did not support their objections with a transcript of Pickaway 25CA12 23

{¶55} When a matter is tried to a court magistrate, Civ.R.

53(D)(3)(b)(iii) requires an objection to a factual finding to

“be supported by a transcript of all the evidence submitted to

the magistrate relevant to that finding or an affidavit of that

evidence if a transcript is not available.” If an objecting

party fails to submit a transcript or affidavit, “a trial court

is required to accept the magistrate’s findings of fact and may

only determine the legal conclusions drawn from those facts.”

(Citations omitted.) Hopkins v. Hopkins, 2014-Ohio-5850, ¶ 25

(4th Dist.); accord M.S. v. J.S., 2020-Ohio-5550, ¶ 9 (6th

Dist.), quoting In re M.W., 2012-Ohio-2959, ¶ 6 (6th Dist.)

(stating that “[w]ithout a transcript, ‘the trial court is

required to accept the magistrate’s findings of fact as true,

and is permitted to examine only the legal conclusions based on

those facts’ ”); Allread v. Allread, 2011-Ohio-1271, ¶ 18 (2d

Dist.), quoting Dayton Police Dept. v. Byrd, 2010-Ohio-4529, ¶ 8

(2d Dist.) (if the objecting party does not file a proper

transcript of all relevant testimony or an affidavit of

evidence, “‘a trial court’s review is necessarily limited to the

magistrate’s conclusions of law’”).

{¶56} An objecting party’s failure to object to a

magistrate’s decision in accordance with Civ.R. 53(D)(3)(b)

further limits appellate review. Civ.R. 53(D)(3)(b)(iv) states, Pickaway 25CA12 24

Except for a claim of plain error, a party shall not assign as error on appeal the court’s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).

{¶57} Consequently, if a party fails to support objections

to a magistrate’s factual finding with a transcript or

affidavit, “that party waives any appeal as to those findings

other than claims of plain error.” State ex rel. Pallone v.

Ohio Court of Claims, 2015-Ohio-2003, ¶ 11, citing Civ.R.

53(D)(3)(b)(iv); compare State ex rel. Duncan v. Chippewa Twp.

Trustees, 73 Ohio St.3d 728, 730 (1995) (when a party fails to

file a transcript of evidence or a Civ.R. 53(D)(3)(b)(iii)

affidavit, appellate review is limited to determining whether

the trial court abused its discretion when applying the law to

the facts). The lack of a transcript or affidavit ordinarily

does not, however, “‘preclude appellate review of a legal

determination, so long as the appellant complied with the

objection requirements of the applicable magistrate rule.’”

Redmond v. Wade, 2017-Ohio-7192, ¶ 16 (4th Dist.), quoting

App.R. 9 2013 Staff Notes.

{¶58} We additionally observe that Civ.R. 53(D)(3)(b)(ii)

requires objections to be “specific and state with particularity

all grounds for objection.” The failure to state with

particularity all grounds for objection results in a “[w]aiver” Pickaway 25CA12 25

of those particular issues on appeal. See Redmond, 2017-Ohio-

2877, at ¶ 31 (4th Dist.); accord State ex rel. Muhammad v.

State, 2012-Ohio-4767, ¶ 3 (a party waives an argument on appeal

if the party failed to specifically raise that issue in

objections to the magistrate’s decision).

{¶59} In the case at bar, appellants did not object to the

magistrate’s decision based upon the assertion raised in their

third assignment of error, i.e., the magistrate found the

existence of a valid contract, which precluded an award of

damages for unjust enrichment. Instead, appellants objected to

the magistrate’s unjust enrichment award based upon the argument

that appellee did not complete the services required under the

contract, and, thus, it would not be unjust to deny appellee

damages for any benefit conferred. Consequently, because

appellants did not state with particularity the ground now

asserted on appeal, that issue has been waived for purposes of

appeal. See Civ.R. 53(D)(3)(b)(iv).

{¶60} We may, however, arguably consider appellants’ third

assignment of error for plain error. See id. For the plain-

error doctrine to apply, the party claiming error must establish

(1) that “‘an error, i.e., a deviation from a legal rule’”

occurred, (2) that the error was “‘an “obvious” defect in the

trial proceedings,’” and (3) that this obvious error affected

substantial rights, i.e., the error “‘must have affected the Pickaway 25CA12 26

outcome of the trial.’” State v. Rogers, 2015-Ohio-2459, ¶ 22,

quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002); Schade v.

Carnegie Body Co., 70 Ohio St.2d 207, 209 (1982) (“A ‘plain

error’ is obvious and prejudicial although neither objected to

nor affirmatively waived which, if permitted, would have a

material adverse [e]ffect on the character and public confidence

in judicial proceedings.”).

{¶61} The plain-error doctrine is not, however, readily

invoked in civil cases. Instead, an appellate court “must

proceed with the utmost caution” when applying the plain-error

doctrine in civil cases. Goldfuss v. Davidson, 79 Ohio St.3d

116, 121 (1997). The Ohio Supreme Court has set a “very high

standard” for invoking the plain-error doctrine in a civil case.

Perez v. Falls Financial, Inc., 87 Ohio St.3d 371, 375 (2000).

Thus, the doctrine is sharply limited to

the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.

(Emphasis in original.) Goldfuss, 79 Ohio St.3d at 122-23;

accord Jones v. Cleveland Clinic Found., 2020-Ohio-3780, ¶ 24;

Gable v. Gates Mills, 2004-Ohio-5719, ¶ 43.

{¶62} In the case before us, we do not believe that the

trial court erred by awarding appellee damages for unjust Pickaway 25CA12 27

enrichment. In awarding appellee damages for unjust enrichment,

the trial court relied on our decision in Clifton v. Johnson,

2019-Ohio-2702 (4th Dist.). In that case, we stated the law

applicable to unjust enrichment claims as follows:

“An unjust enrichment claim is an alternative to a breach of contract claim.” MRI Software, L.L.C. v. W. Oaks Mall FL, L.L.C., 8th Dist. Cuyahoga No. 105846, 2018-Ohio-2190, 116 N.E.3d 694, ¶ 34. Consequently, “[w]hen an express contract exists, a party must pursue a breach of contract action.” Loop v. Hall, 4th Dist. Scioto No. 05CA3041, 2006-Ohio-4363, ¶ 23. For a contract to exist, each party must consent to the terms of the contract, the parties must have a meeting of the minds, and the contract must be definite and certain. Episcopal Retirement Homes, Inc., 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991), Farmers Comm. Co. v. Burks, 130 Ohio App.3d 158, 163-64, 719 N.E.2d 980 (3rd Dist. Sept. 30, 1998). “[T]he elements of a meeting of the minds [are] an offer, acceptance, and consideration.” Wandling v. Matthews, 4th Dist. Gallia No. 00CA12, 2001- Ohio-2512, *3, see Noroski v. Fallet, 2 Ohio St.3d 77, 442 N.E.2d 1302 (1982). However, “[w]hen a contract fails for a lack of a ‘meeting of the minds,’ equity should be imposed to prevent an unjust enrichment.” Myers v. Good, 4th Dist. Ross No. 06CA2939, 2007-Ohio-5361, ¶ 12, citing Hailey v. MedCorp., Inc., 6th Dist. Lucas App. No. L-05-1238, 2006-Ohio-4804, ¶ 17-18, Enright v. CSR Enterprises, 6th Dist. Wood No. WD-84-52, 1984 WL 14426.

Id. at ¶ 10-11.

{¶63} In the case sub judice, the trial court was not

convinced that the parties had “a genuine meeting of the minds.”

Given this finding, the court did not err, plainly or otherwise,

by awarding appellee damages for unjust enrichment. See Bender

v. Logan, 2016-Ohio-5317, ¶ 70 (4th Dist.) (a party may seek

alternative theories of relief and recover for unjust enrichment Pickaway 25CA12 28

if a contract fails for a lack of a meeting of the minds); J.

Bowers Constr. Co. v. Gilbert, 2014-Ohio-3576, ¶ 9 (9th Dist.)

(“[i]n the absence of a valid contract, a party may still

recover under a quasi-contract theory.”); see also Banks v.

Nationwide Mut. Fire Ins. Co., 2000 WL 1742064, *5 (10th Dist.

Nov. 28, 2000) (“if no remedy is available in contract or tort,

then the equitable remedy in unjust enrichment may be afforded

to prevent injustice”).

{¶64} Accordingly, based upon the foregoing reasons, we

overrule appellants’ third assignment of error.

V

{¶65} In their fourth assignment of error, appellants assert

that the trial court erred by concluding that appellants failed

to establish their claim for breach of contract based on

appellee’s alleged failure to perform in a workmanlike manner.

Appellants contend that the trial court found that appellee

failed to apply the siding in accordance with the manufacturer’s

specifications and that appellants’ experts testified that the

installation had numerous defects. Appellants assert that these

findings required the trial court to conclude that appellee

breached the duty to perform in a workmanlike manner.

{¶66} Appellants recognize, however, that the trial court

noted that Mr. Saunders was involved in making decisions

regarding the installation and that appellants failed to Pickaway 25CA12 29

mitigate their damages by not having the caulking completed.

They contend, however, that any failure to mitigate would relate

to the extent of their damages, not to the merits of their

claim.

{¶67} We first observe that appellants generally objected to

the magistrate’s legal conclusion that denied their claim for

breach of the duty to perform in a workmanlike manner. Their

objection reads, “The Magistrate erred in finding that

‘[appellants’] claim of breach of duty to perform in a

workmanlike manner is denied.’” Appellants did not present any

particular reason to support this objection, and they did not

raise the specific issues now raised in their fourth assignment

of error regarding the application of the facts to the law.

Because appellants did not state with particularity the ground

now asserted on appeal, that issue has been waived for purposes

of appeal. See Civ.R. 53(D)(3)(b)(iv). We thus limit our

review of the trial court’s decision to determining whether the

trial court plainly erred by concluding that appellants did not

establish that appellee breached the duty to perform in a

workmanlike manner. See id.

{¶68} “[I]n Ohio, a duty to construct houses in a

workmanlike manner using ordinary care is imposed by law on all Pickaway 25CA12 30

home builders.” Jones v. Centex Homes, 2012-Ohio-1001, ¶ 10.

This duty generally “requires a construction professional to act

reasonably and to exercise that degree of care which a member of

the construction trade in good standing in that community would

exercise under the same or similar circumstances.” (Citations

omitted.) Seff v. Davis, 2003-Ohio-7029, ¶ 19 (10th Dist.).

{¶69} To determine whether a builder breached its duty to

perform in a workmanlike manner, the fact finder must “‘assess

fault’” and evaluate whether the builder used “‘proper materials

and workmanlike skill and judgment.’” Gilham v. Stasiulewicz,

2010-Ohio-6407, ¶ 48 (7th Dist.), quoting John Snyder, Inc. v.

Cooper, 2001 WL 301419, *1 (7th Dist. Mar. 20, 2001), citing

Mitchem v. Johnson, 7 Ohio St.2d 66, 73 (1966); accord Landis v.

William Fannin Builders, Inc., 2011-Ohio-1489, ¶ 24 (10th

Dist.). Additionally, “[a]ny determination of whether the

services were performed in a workmanlike manner must be made in

reference to the actual bargain of the parties.” Vistein v.

Keeney, 71 Ohio App.3d 92, 105 (11th Dist. 1990).

{¶70} In the case at bar, we do not believe that the trial

court erred by concluding that appellee did not breach the duty

to perform in a workmanlike manner. The court found that,

although the builder testified that he did not install the

siding precisely in accordance with the manufacturer’s

instruction, he did install it in accordance with Mr. Saunders’s Pickaway 25CA12 31

directions. The court specifically found the builder’s

testimony more credible than Mr. Saunders’s testimony. The

court thus appears to have concluded that appellee did not

breach the duty to perform in a workmanlike manner because

appellee installed the siding in accordance with the parties’

actual bargain, i.e., appellee installed the siding as discussed

with Mr. Saunders. See Vistein, 71 Ohio App.3d at 105 (“if the

design of the bridge had been dictated by [the client] and the

subsequent failure was due solely to the design, then [the

contractor] would not be liable under the workmanlike

standard”).

{¶71} Moreover, we do not agree with appellants that the

trial court was required to find a breach based upon their

experts’ testimonies. The court did not indicate that it found

appellants’ experts’ testimonies regarding their perceived

defects to be dispositive of appellants’ claim. Instead, the

court pointed out that the parties presented conflicting expert

testimony. The court noted that appellants’ experts “testified

to numerous defects.” The court further stated, however, that

the builder, also recognized as an expert, testified that his

methods were superior to those appellants’ experts espoused.

The court did not indicate that it found appellants’ experts’

testimonies regarding the claimed defects to be more persuasive

than the builder’s expert testimony or otherwise explain how it Pickaway 25CA12 32

weighed appellants’ expert’s testimonies. In light of the above

findings, we do not believe that the trial court erred, plainly

or otherwise, by concluding that appellants failed to establish

their claim for breach of the duty to perform in a workmanlike

manner.

{¶72} Additionally, because the record supports the court’s

conclusion that appellants did not establish the elements of the

claim, any obvious error that the trial court may have made

regarding appellants’ failure to mitigate their damages did not

seriously affect the basic fairness, integrity, or public

reputation of the judicial process. See Goldfuss, 79 Ohio St.3d

at 122-23.

{¶73} Accordingly, based upon the foregoing reasons, we

overrule appellants’ fourth assignment of error.

VI

{¶74} In their fifth assignment of error, appellants assert

that the trial court erred by denying their claim for slander of

title. They assert that the court found all of the facts

necessary to establish a claim for slander of title, yet the

court denied their claim due to a finding that appellants did

not sustain any damages. Appellants contend that damages for

slander of title include damages for “special pecuniary loss.”

They assert that attorney fees are a special pecuniary loss and

that they thus are entitled to recover “the costs of Pickaway 25CA12 33

litigation.”

“Slander of title is a tort action ‘against one who falsely and maliciously defames title to property and causes some special pecuniary damages or loss.’ ” Bank of New York Mellon v. Floyd, 8th Dist. Cuyahoga No. 110248, 2021-Ohio-3736, 2021 WL 4901698, ¶ 58, quoting Acme Constr. Co. v. Continental Natl. Indemn. Co., 8th Dist. Cuyahoga No. 81402, 2003-Ohio-434, 2003 WL 194879, ¶ 46. To succeed, the claimant must prove that “‘(1) there was a publication of a slanderous statement disparaging claimant’s title; (2) the statement was false; (3) the statement was made with malice or made with reckless disregard of its falsity; and (4) the statement caused actual or special damages.’” Id., quoting Green v. Lemarr, 139 Ohio App.3d 414, 430-431, 744 N.E.2d 212 (2d Dist.2000).

Troon Mgt., Ltd. v. Adams Family Trust, 2023-Ohio-3489, ¶

31 (4th Dist.).

{¶75} We observe that “‘[m]alice is a necessary ingredient

in order to entitle plaintiff to recover for slander of title.’”

Buckeye Crude Expl., Inc. v. Ken Miller Supply, Inc., 1987 WL

12243, *13 (4th Dist. June 3, 1987), quoting 53 Corpus Jur.Sec.

394, § 274. Accordingly, a slander-of-title claim ordinarily

will not succeed “‘if the claim was asserted by defendant in

good faith, and if the act complained of was founded on probable

cause or was prompted by a reasonable belief, although the

statement may have been false.’” Id., quoting 53 Corpus

Jur.Sec. 394, § 274.

{¶76} In the case sub judice, appellants challenge the trial

court’s conclusion that they could not recover the costs of

litigation as special damages. During the trial, however, Pickaway 25CA12 34

appellants did not request an award of litigation costs or

present any evidence regarding the amount of litigation costs.

Instead, appellants claimed that they suffered damages due to an

inability to refinance their home. The court rejected

appellants’ argument by pointing out that they did not present

evidence to establish that they “would have been approved at any

lower interest rate but for the presence of the mechanic’s

lien.”

{¶77} Moreover, assuming, arguendo, that a prevailing party

may recover litigation costs for a slander-of-title claim, the

trial court nonetheless properly denied appellants’ claim. As

noted above, a successful slander-of-title claim requires the

claimant to establish, inter alia, that the statement was made

with malice or reckless disregard. In the case sub judice, the

trial court did not determine that appellee acted with malice or

reckless disregard. Instead, the court stated that it

“hesitate[d] to fault” appellee. Thus, in the absence of malice

or reckless disregard, appellants’ slander-of-title claim could

not succeed.

{¶78} Accordingly, based upon the foregoing reasons, we

overrule appellants’ fifth assignment of error.

VII

{¶79} In its first cross-assignment of error,

appellee/cross-appellant argues that the trial court abused its Pickaway 25CA12 35

discretion by adopting the magistrate’s decision to reduce its

unjust enrichment award by $5,000. Cross-appellant asserts that

the court decided to reduce the award by $5,000 based upon its

finding that cross-appellant agreed to “waive” the $5,000

payment. Cross-appellant claims that this finding contradicts

other findings, such as the court’s finding that cross-appellant

“only agreed to allow [appellants] to hold back paying the final

$5,000 until after punch-out was completed.” Cross-appellant

states that the facts contained in the magistrate’s decision

show that cross-appellant did not agree to waive the $5,000

payment but, instead, only agreed to delay the payment. Cross-

appellant thus contends that the magistrate’s legal conclusion

reducing its award by $5,000, and the trial court’s adoption of

that conclusion, have no factual basis.

{¶80} We initially note that “[a] trial court has broad

discretion when it fashions an equitable award.” Meridien Mktg.

Grp., Inc. v. J & E Bldg. Grp., Inc., 2011-Ohio-4872, ¶ 28 (2d

Dist.), citing Jon Harmon Ents. Ltd. v. Kinsey, 2009-Ohio-5655,

¶ 20-21 (5th Dist.). We therefore review a trial court’s damage

award for unjust enrichment for an abuse of discretion. Clifton

v. Johnson, 2019-Ohio-2702, ¶ 17 (4th Dist.); accord Continuum

Transportation Services, Ltd. v. Elite Internatl. Corp. L.L.C.,

2022-Ohio-3738, ¶ 32 (8th Dist.); Johnson’s Island Property

Owners’ Assoc. v. Cianciola, 2021-Ohio-1341, ¶ 49 (6th Dist.); Pickaway 25CA12 36

see Joseph J. Freed & Assoc., Inc. v. Cassinelli Apparel Corp.,

23 Ohio St.3d 94, 97 (1986) (reviewing a trial court’s balancing

of equities for an abuse of discretion). An “abuse of

discretion” implies that the court’s attitude is “unreasonable,

unconscionable, or arbitrary.” Smith v. Smith, 2019-Ohio-899, ¶

19 (4th Dist.), citing State v. Adams, 62 Ohio St.2d 151, 157

(1980).

{¶81} In the case at bar, we do not believe that the trial

court abused its discretion by awarding cross-appellant $20,544

in damages for its unjust enrichment claim. The court found

that, when the parties ended their relationship, cross-appellees

still owed cross-appellant $26,516 (less a $972 credit for

returned trim pieces). The court further found that this amount

included punch-out work. The court determined, however, that

cross-appellant did not complete the punch-out work. The court

thus reduced the award by the value of the punch-out work, which

it determined to be $5,000.

{¶82} Moreover, the trial court did not, as cross-appellant

claims, conclude that it waived the right to the $5,000 payment

for punch-out work. Instead, the court found that cross-

appellant did not complete the punch-out work and, therefore,

was not entitled to receive compensation for the uncompleted

punch-out work. Pickaway 25CA12 37

{¶83} Accordingly, based upon the foregoing reasons, we

overrule cross-appellant’s first cross-assignment of error.

VIII

{¶84} In its second cross-assignment of error, cross-

appellant asserts that the trial court abused its discretion by

denying its motion for prejudgment interest. Cross-appellant

argues that the trial court incorrectly applied R.C.

1343.03(C)(1) when determining whether to award prejudgment

interest. Cross-appellant contends that the court instead

should have applied R.C. 1343.03(A).

{¶85} R.C. 1343.03(C) governs the computation of interest

for a money judgment rendered in “a civil action that is based

on tortious conduct” and “that has not been settled by agreement

of the parties.” See State ex rel. Fenstermaker v. Phillips,

2025-Ohio-2081, ¶ 15 (“R.C. 1343.03(C)(1)(a) provides for the

award of prejudgment interest in certain circumstances when a

party in a ‘civil action that is based on tortious conduct’ has

failed to make a good-faith effort to settle the case.”). This

statute does not apply, however, when a civil action is not

“based on tortious conduct—i.e., ‘[a]n act or omission that

subjects the actor to liability under the principles of tort

law,’ Black’s Law Dictionary (12th Ed. 2024).” Fenstermaker at

¶ 15. Pickaway 25CA12 38

{¶86} In the case sub judice, the money judgment did not

spring from a civil action based on tortious conduct. A claim

for unjust enrichment is not a civil action based on tortious

conduct. Instead, a claim for unjust enrichment is an equitable

claim “based on quasi-contract.” Kent State Univ. v. Manley,

2023-Ohio-4650, ¶ 21 (8th Dist.). Thus, R.C. 1343.03(C), by its

plain terms, does not apply to cross-appellant’s request for

prejudgment interest. We therefore agree with cross-appellant

that the trial court incorrectly denied its request for

prejudgment interest based upon the court’s finding that R.C.

1343.03(C) governed cross-appellant’s request.

{¶87} The remaining question is whether the trial court

erred by failing to award cross-appellant prejudgment interest

under R.C. 1343.03(A).

{¶88} R.C. 1343.03(A) entitles a creditor to interest

when money becomes due and payable upon any bond, bill, note, or other instrument of writing, upon any book account, upon any settlement between parties, upon all verbal contracts entered into, and upon all judgments . . . for the payment of money arising out of tortious conduct or a contract or other transaction.

“The mandatory language of R.C. 1343.03(A) means that the trial

court must award prejudgment interest when appropriate.” Water

Works Supplies, Inc. v. Grooms Construction, Co., 2005-Ohio-

1292, ¶ 32 (4th Dist.). Pickaway 25CA12 39

{¶89} In the case sub judice, the parties dispute whether

R.C. 1343.03(A) applies to claims for unjust enrichment. Cross-

appellant asserts that our decision in Pickaway Cty. Ross-Co

Redi Mix Co. v. Steveco, Inc., 1996 WL 54174 (4th Dist. Feb. 6,

1996), demonstrates that R.C. 1343.03(A) applies to claims for

{¶90} In Steveco, this court upheld a trial court’s decision

to award a prevailing party prejudgment interest under R.C.

1343.03(A) for an unjust enrichment award when the parties did

not dispute the amount due and payable, but only liability for

the amount. We observed that R.C. 1343.03(A) entitled a

creditor to interest “‘when money becomes due and payable upon .

. . any book account.’” (Omission in original.) Steveco, 1996

WL 54174, at *4 (4th Dist.), quoting R.C. 1343.03(A). We

determined that the award of prejudgment interest was

appropriate because the amount of damages was clear and certain.

We distinguished previous cases that had disallowed prejudgment

interest for unjust enrichment claims when the amount of damages

was “unclear or uncertain.”5 Id.; see Advanced Marketing

5 We observe that the Ohio Supreme Court rejected the dichotomy between

liquidated and unliquidated damages for purposes of breach-of-contract claims. See Royal Elec. Constr. Corp. v. Ohio State Univ., 73 Ohio St.3d 110, 116 (1995) (“the focus in these types of cases should not be based on whether the claim can be classified as ‘liquidated,’ ‘unliquidated’ or ‘capable of ascertainment’”). The court’s decision did not, however, suggest that this same rule would apply to unjust enrichment claims. See Cantwell Mach. Co. v. Chicago Mach. Co., 2009-Ohio-4548, ¶ 34 (10th Dist.) (“Royal Elec. involved a breach-of-contract claim. Its holding regarding the significance of liquidated versus nonliquidated damages is not relevant to Pickaway 25CA12 40

Services, Inc. v. Dayton Data Processing, 1992 WL 41822, *10

(2nd Dist. Mar. 6, 1992) (“The amount of damages in an unjust

enrichment claim are by their very nature uncertain until the

court determines the amount to which the defendant has benefited

and it would be unjust not to award damages to the plaintiff.”).

{¶91} Later cases, however, have reached differing

conclusions. Compare Thrasher Dinsmore & Dolan, LPA v. Ross,

2024-Ohio-1594, ¶ 41, fn. 3 (8th Dist.) (“An unjust-enrichment

claim does not support an award of prejudgment interest under

R.C. 1343.03(A).”); KN Excavation LLC v. Rockmill Brewery LLC,

2022-Ohio-3414, ¶ 39 (5th Dist.) (“R.C. 1343.03(A) does not

allow for an award of prejudgment interest on a judgment for

unjust enrichment”); Cantwell Mach. Co. v. Chicago Mach. Co.,

2009-Ohio-4548, ¶ 31 (10th Dist.) (“a claim of unjust enrichment

does not support an award of prejudgment interest under R.C.

1343.03(A)”) with Zeck v. Sokol, 2008-Ohio-727, ¶ 43 (9th Dist.)

(“That the amount is unliquidated and/or not capable of

ascertainment prior to judgment, as in the case of a claim for

unjust enrichment, does not defeat a claim for prejudgment

interest.”).

the determinative question in this case: whether R.C. 1343.03(A) allows for an award of prejudgment interest on a claim for unjust enrichment.”). Pickaway 25CA12 41

{¶92} We additionally note that R.C. 1343.03(A) does not

state that a creditor is entitled to interest when money becomes

due and payable upon a quasi-contract like unjust enrichment,

see Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged, 15

Ohio St.3d 44, 46 (1984) (“A quasi-contract is a contract

implied so as to prevent injustice. It is a legal fiction that

does not rest upon the intention of the parties, but rather on

equitable principles in order to provide a remedy” [citations

omitted]); see generally State ex rel. Mun. Constr. Equip.

Operators' Labor Council v. Cleveland, 2007-Ohio-3831, ¶ 72 (a

creditor is not entitled to prejudgment interest under R.C.

1343.03(A) for a prevailing wage claim that arose as a matter of

law under a city charter because that type of claim is not

listed in the statute).

{¶93} Furthermore, “[p]rejudgment interest is not available

pursuant to R.C. 1343.03(A) unless there is an amount due and

payable . . .” (Citations omitted.) Worrell v. Multipress,

Inc., 45 Ohio St.3d 241, 249 (1989); see also Royal Elec.

Constr. Corp. v. Ohio State Univ., 73 Ohio St.3d 110, 115 (1995)

(R.C. 1343.03(A) indicates that “interest commences to run . . .

when the claim becomes ‘due and payable’”). The phrase “due and

payable” connotes “a debt” that is “owed and subject to

immediate collection because a specified date has arrived or

time has elapsed, or some other condition for collectibility has Pickaway 25CA12 42

been met.” Black’s Law Dictionary (12th ed. 2024); see RPM,

Inc. v. Oatey Co., 2005-Ohio-1280, ¶ 68 (9th Dist.) (the phrase

“due and payable,” as used in R.C. 1343.03(A), indicates that a

creditor is entitled to prejudgment interest for a debt that is

due); see generally 25 Williston on Contracts § 66:111, fn. 4

(4th ed.), quoting Restatement of the Law 2d, Contracts § 354,

Illustration 9 (“A contracts to build a bungalow for B for

$30,000. After completion but before B has paid the final

$6,000, B occupies the bungalow but refuses to pay the balance

because the workmanship and materials are unsatisfactory. A

sues B and recovers only $4,000 on the ground that B’s claim

entitles him to compensation in the amount of $2,000. The sum

of $4,000 was not sufficiently definite to give A a right to

interest on it.”).

{¶94} In the instant case, we do not believe that R.C.

1343.03(A) entitles cross-appellant to prejudgment interest for

its unjust enrichment claim. As we noted above, R.C. 1343.03(A)

does not state that a creditor is entitled to prejudgment

interest for money that is due and payable upon an unjust

enrichment claim. The statute lists specific situations that

entitle a creditor to prejudgment interest, and cross-

appellant’s unjust enrichment claim does not fall under any of

those situations: it is not a “bond, bill, note, or other

instrument of writing,” a “book account,” a “settlement between Pickaway 25CA12 43

parties,” or a verbal contract. Consequently, nothing in the

statute indicates that cross-appellant is entitled to

prejudgment interest for its unjust enrichment claim.

{¶95} We further distinguish the case at bar from Steveco,

1996 WL 54174, *4 (4th Dist.). In Steveco, at least part of our

rationale appears to have been based upon the language in R.C.

1343.03(A) that entitles a creditor to prejudgment interest when

money becomes due and payable upon a “book account.” Id. at *4.

Thus, Steveco ostensibly relied, at least in part, upon the

statutory language when deciding to uphold an award of

prejudgment interest. Additionally, in Steveco, the parties did

not dispute the amount owed. In the case sub judice, however,

the parties disputed both liability and the amount owed. Thus,

we do not agree with cross-appellant’s assertion that Steveco

governs and proves its entitlement to prejudgment interest.

{¶96} Accordingly, based upon the foregoing reasons, we

overrule cross-appellant’s second cross-assignment of error and

affirm the trial court’s judgment.

JUDGMENT AFFIRMED. Pickaway 25CA12 44

JUDGMENT ENTRY

It is ordered that the judgment be affirmed.

Appellee/cross-appellant shall recover of appellant/cross-

appellee the costs herein taxed.

The Court finds there were reasonable grounds for this

appeal.

It is ordered that a special mandate issue out of this

Court directing the Pickaway County Common Pleas Court to carry

this judgment into execution.

A certified copy of this entry shall constitute that

mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.