[Cite as LeVangie v. Raleigh, 2019-Ohio-810.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
MICHAEL E. LEVANGIE, MANAGING : MEMBER : : Appellate Case No. 27946 Plaintiff-Appellee : : Trial Court Case No. 2016-CV-6116 v. : : (Civil Appeal from LINDA K. RALEIGH, et al. : Common Pleas Court) : Defendant-Appellant :
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OPINION
Rendered on the 8th day of March, 2019.
JOHN E. SHARTS, Atty. Reg. No. 0006905, 5 Fairway Drive, Springboro, Ohio 45066 Attorney for Plaintiff-Appellee
THOMAS W. KENDO, JR., Atty. Reg. No. 0058548 and GABRIELLE R. NEAL, Atty. Reg. No. 0092770, 7925 Paragon Road, Centerville, Ohio 45459 Attorneys for Defendant-Appellant
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TUCKER, J. -2-
{¶ 1} Defendant-appellant Linda Raleigh appeals from a judgment of the
Montgomery County Court of Common Pleas awarding damages to plaintiff-appellee
Michael LeVangie. For the reasons that follow, we affirm in part, reverse in part, and
remand for further proceedings.
I. Facts and Course of the Proceedings
{¶ 2} LeVangie is a general contractor and managing member of LeVangie
Construction, LLC. Linda Raleigh is the owner of a duplex housing unit located on Eby
Road in Germantown. In February 2014, a fire destroyed one of the duplex units and
caused serious damage to the other unit. Raleigh carried a policy of insurance on the
structure, and the insurance company gave her $177,897.39 to rebuild the structure.
{¶ 3} On November 14, 2014, Raleigh and LeVangie executed a contract to repair
and rebuild the duplex. The contract, which consisted of a handwritten page signed by
Raleigh and LeVangie, provided:
It is agreed to perform and complete all repairs required to complete
insurance all repairs on fire job at 10436 Eby Rd. and 10440. All materials
and labor will be supplied and installed according to codes compliance. A
reliese [sic] of lein [sic] will be furnished upon completion and final payment
and duly notarized. Total $177,647.34.1
1 LeVangie introduced into evidence another handwritten page that he claimed was part of the contract agreed to by Raleigh. The page was entitled “Scope of Work,” and set forth descriptions of the work to be performed. Raleigh denied seeing this page. The page was not signed by Raleigh and was on a different letterhead than the other page of the contract. It is clear that the trial court did not consider this page to be part of the -3-
{¶ 4} After the contract was signed, LeVangie began working to remove the burned
debris from the site. On December 9, 2014, LeVangie applied for a damage assessment
building permit and an electrical permit. Both permits were issued, and a damage
assessment was conducted by the Montgomery County Building Department on
December 10, 2014. That same day, the inspector issued a report which noted that
LeVangie would need to obtain electrical, mechanical, gas piping, plumbing and building
permits. The report also stated that LeVangie was required to submit construction
drawings in order to obtain a building permit.
{¶ 5} LeVangie began construction without obtaining a building permit. On
January 8, 2015, Raleigh disbursed approximately $52,520 to LeVangie.2 In May or
June 2015, LeVangie asked Raleigh for another disbursement of funds, but she did not
make any further disbursements.3
{¶ 6} LeVangie filed an application for a building permit on August 7, 2015.
LeVangie stopped work on August 15 because of Raleigh’s failure to make a further
monetary disbursement and, additionally, because a building permit had not been issued.
On September 8, 2015, the Montgomery County Building Regulations Division issued a
letter to LeVangie indicating six issues that needed to be addressed prior to issuance of
a building permit. The letter further indicated that review of the permit was suspended
contract.
2 From that disbursement, LeVangie issued a check to Raleigh in the sum of $10,000 in exchange for which Raleigh agreed to perform upkeep, such as mowing, of the premises.
3 According to Raleigh, she asked LeVangie to submit receipts for the work and materials prior to getting an additional disbursement. She testified that she never received the requested documentation. -4-
pending the submission of further information.
{¶ 7} On November 13, 2015, Raleigh sent a letter to LeVangie terminating his
services. Raleigh’s son and ex-husband hired an architect to draw plans for the project.
They then applied for a building permit which was issued on December 8, 2015. The
project was completed by Raleigh’s son and ex-husband. On December 17, 2015,
LeVangie filed a mechanic’s lien against the property.
{¶ 8} LeVangie filed a complaint for breach of contract and marshalling of liens on
December 2, 2016. Raleigh filed an answer and a counterclaim. In her counterclaim,
she asserted causes of action for breach of contract, negligence, unjust enrichment,
slander of title and fraud.
{¶ 9} A trial was conducted in October 2017, after which the trial court awarded
LeVangie $34,997.64. Raleigh filed a request for findings of fact and conclusions of law,
which were rendered on February 7, 2018. The trial court found that the parties had
entered into an express contract and that LeVangie had materially breached the contract
and, thus, was not entitled to recover under the contract. Specifically, the trial court
found that LeVangie failed to construct the house in a workmanlike manner according to
applicable building codes and that he began construction without obtaining a permit. The
trial court further found that the unrebutted evidence demonstrated that LeVangie’s work
had significant defects that had to be remedied by Raleigh’s ex-husband and son.
{¶ 10} However, the trial court went on to conclude that it believed it was
“appropriate under these circumstances to award [LeVangie] an amount for unjust
enrichment or quantum meruit. Since [LeVangie] cannot recover under the contract
because of his substantial breaches, he has, however, conferred a substantial benefit -5-
upon [Raleigh] for which he should be compensated.”4 Dkt. # 41, p. 3. The trial court
found that LeVangie had expended approximately $88,497 in labor and materials, and
thus, he should receive the difference between that amount and the $53,520 paid to him
by Raleigh, or $34,977.
{¶ 11} With respect to Raleigh’s counterclaims, the trial court found that Raleigh
had not proven her claims for breach of contract, negligence, unjust enrichment, slander
of title, or fraud. With respect to the breach of contract specifically, the court’s conclusion
was based on the evidence that, although LeVangie had breached the contract, Raleigh
had not proven any damages.
{¶ 12} On February 20, 2018, the trial court entered a “Judgment Entry and Decree
of Foreclosure,” which stated that the property would be foreclosed if Raleigh did not pay
the amount owed to LeVangie within 5 days.
{¶ 13} Raleigh appeals.
II. Unjust Enrichment
{¶ 14} Raleigh’s first assignment of error states as follows:
THE TRIAL COURT ERRED IN AWARDING PLAINTIFF DAMAGES
UNDER A THEORY OF UNJUST ENRICHMENT.
{¶ 15} Raleigh contends that a party cannot recover damages under a theory of
unjust enrichment for services that were provided for by an express contract. LeVangie
counters by arguing that it is inequitable for Raleigh to argue that she has not been
4 We note that during closing arguments, the trial court stated that recovery under the theory of quantum meruit is not allowed when the parties have entered into an express contract. Tr. p. 541-542. -6-
unjustly enriched.
{¶ 16} In Caras v. Green & Green, 2d Dist. Montgomery No. 14943, 1996 WL
407861 (June 28, 1996), this court stated:
A quasi-contract is a contract implied in law. Hummel v. Hummel,
133 Ohio St. 520, 525, 14 N.E.2d 923 (1938). Quasi-contracts are to be
distinguished from express contracts and contracts implied in fact.
There are three classes of simple contracts; express,
implied in fact, and implied in law. Keener on Quasi Contracts
(1893), 3. In express contracts the assent to its terms is actually
expressed in offer and acceptance. In contracts implied in fact
the meeting of the minds, manifested in express contracts by
offer and acceptance, is shown by the surrounding
circumstances which make it inferable that the contract exists as
a matter of tacit understanding. In contracts implied in law there
is no meeting of the minds, but civil liability arises out of the
obligation cast by law upon a person in receipt of benefits which
he is not justly entitled to retain and for which he may be made
to respond to another in an action in the nature of assumpsit.
Contracts implied in law are not true contracts; the relation
springing therefrom is not in a strict sense contractual but quasi-
contractual or constructively contractual.
Id.; see also Rice v. Wheeling Dollar Savings & Trust Co., 155 Ohio St. 391,
99 N.E.2d 301 (1951); 1 Williston on Contracts (4th Ed.1990), Sections 1:5 -7-
and 1:6.
“Quasi contracts developed from the desire of the law to bring about
justice without any reference to the intention of the parties, and sometimes
contrary to their intention. The principle upon which they are founded is
prevention of unjust enrichment, and the remedy provided is by an action
as though it were upon a contract.” Williams v. Goodyear Aircraft Corp.,
84 Ohio App. 113, 117; see also Hummel v. Hummel, supra, at 527-528;
Rice v. Wheeling Dollar Savings & Trust Co., supra, at 396.
A quasi-contract “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. The two remedies most often associated with quasi-contracts
are restitution and quantum meruit. Each of these remedies presupposes
some type of unjust enrichment of the opposing party.” Paugh & Farmer,
Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St.3d 44, 46
(emphasis in the original).
Quantum meruit means “as much as deserved.” Sonkin & Melena
Co., L.P.A. v. Zaransky (1992), 83 Ohio App.3d 169, 175. “[Q]uantum
meruit is a doctrine derived from the natural law of equity, the basic concept
of which is that no one should be unjustly enriched who benefits from the
services of another. In order to prevent such an unjust enrichment, the law
implied a promise to pay a reasonable amount for the services
rendered . . ., in the absence of a specific contract.” Id.
The elements of an action in quasi-contract on a claim of unjust -8-
enrichment are a benefit conferred, knowledge of the benefit by the
receiving party, and a retention of the benefit under circumstances which
would make it unjust to do so without payment. Advanced Marketing
Services, Inc. v. Dayton Data Processing, Inc. (March 6, 1992),
Montgomery App. No. 12607, unreported, at * 4 (March 6, 1992); see also
Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183.
From the foregoing, it is apparent that the concepts of quasi-contract,
unjust enrichment and quantum meruit are interrelated. A claim for unjust
enrichment arises when one person has unfairly benefited from the services
of another. In that event, courts have adopted a legal fiction, quasi-
contract, to provide a remedy allowing the aggrieved party to seek recovery
for as much as he deserves. That remedy is a claim for quantum meruit
relief.
***
“It is clearly the law in Ohio that an equitable action in quasi-contract
for unjust enrichment will not lie when the subject matter of that claim is
covered by an express contract or a contract implied in fact. The mere fact
that issues exist as to the creation of the contract or the construction of its
terms does not alter this rule.” Ryan v. Rival Manufacturing Company
(December 16, 1981), Hamilton App. No. C-810032, unreported, at 1. As
we have stated, “... the remedy of unjust enrichment is not available where
there is an express contract covering the same subject ... It is well-
established that ‘the theory of quasi-contract or unjust enrichment is not -9-
available when an express contract will afford the complainant the same
recovery.’ ” Joseph Oldsmobile/Nissan, Inc. v. Tom Harrigan Oldsmobile,
Inc. (May 10, 1995), Montgomery App. No. 14788, unreported, at 16
(Citations omitted). * * *
Caras at * 2 - 4.
{¶ 17} With these principles in mind, we first note that LeVangie did not make any
claim for unjust enrichment or the remedy of quantum meruit at any time during the
proceedings below. Further, the trial court found, and the facts demonstrate, that the
parties executed an express contract. Because LeVangie’s rights are contractual, he
has no right to the remedy of quantum meruit in order to effect a recovery for unjust
enrichment. Therefore, we conclude that the trial court erred by awarding damages to
LeVangie under the theory of unjust enrichment.
{¶ 18} Accordingly, the first assignment of error is sustained.
III. Second Assignment of Error is Moot
{¶ 19} Raleigh’s second assignment of error states:
THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT
RECEIVED A BENEFIT FROM PLAINTIFF IN THE AMOUNT OF
PLAINTIFF’S MONETARY OUTLAYS.
{¶ 20} Raleigh contends that the trial court erred in its determination of the amount
owed to LeVangie. We conclude that this assignment of error has been rendered moot
by our resolution of the first assignment of error.
{¶ 21} Accordingly, the second assignment of error is overruled as moot. -10-
IV. Breach of Contract Counterclaim
{¶ 22} The third assignment of error asserted by Raleigh states:
THE TRIAL COURT ERRED IN FINDING FOR PLAINTIFF ON RALEIGH’S
COUNTERCLAIM FOR BREACH OF CONTRACT.
{¶ 23} Raleigh contends that the trial court erred by denying her claim for damages
for breach of contract when it specifically found that LeVangie had breached the contract.
She contends that the evidence in the record demonstrates that she was entitled to
recover the amount of $7,207.42, which she claims constituted an overpayment she made
to LeVangie.
{¶ 24} To establish a claim for breach of contract, a plaintiff must prove: (1) the
existence of a contract, (2) the failure to perform by either party; and (3) damages or loss
resulting from the breach. Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d 453,
2018-Ohio-15, 97 N.E.3d 458, ¶ 41. “As a general rule, an injured party cannot recover
damages for breach of contract beyond the amount that is established by the evidence
with reasonable certainty, and generally, courts have required greater certainty in the
proof of damages for breach of contract than in tort.” Rhodes v. Rhodes Indus., Inc., 71
Ohio App.3d 797, 808-809, 595 N.E.2d 441 (8th Dist.1991), citing Kinetico, Inc. v. Indep.
Ohio Nail Co., 19 Ohio App.3d 26, 482 N.E.2d 1345 (1984), citing Restatement of the
Law 2d, Contracts (1981) 144, Section 352.
{¶ 25} LeVangie did not appeal the trial court’s findings that he materially breached
an express contract or the fact that the trial court did not find Raleigh in breach of contract.
Thus, we are constrained to the conclusion that all of the elements of Raleigh’s claim for -11-
breach of contract, except damages, have been properly established.
{¶ 26} With regard to the damages, Raleigh notes that the evidence demonstrated
that LeVangie had costs of $88,497. She further notes that there was evidence that her
ex-husband expended approximately $42,184, which represented the cost to fix the
construction mistakes made by LeVangie. Thus, she contends that the value of
LeVangie’s work was $46,313 ($88,497 minus $42,184). Because she paid him the sum
of $53,520, Raleigh claims LeVangie was overpaid the sum of $7,207, which she was
entitled to recover.
{¶ 27} However, we agree with the trial court that Raleigh failed to prove that she
sustained any damages by reason of LeVangie’s breach. The record demonstrates that
the insurance company paid Raleigh over $177,000 to repair and rebuild the duplex. Of
that amount, Raleigh paid LeVangie approximately $53,520. Raleigh testified that she
paid her ex-husband approximately $11,000 from the insurance proceeds.5 There was
no evidence that she otherwise paid her son or ex-husband. She also testified that she
incurred additional expenses in the sum of $1,400. Otherwise, there was no competent
evidence to explain how the remainder of the insurance proceeds were spent, or even
whether they actually were spent. Because Raleigh did not demonstrate that she
expended any funds other than those provided by the insurance company, she has failed
to prove that she suffered any monetary loss as a result of LeVangie’s breach.
{¶ 28} Based upon this record, we agree that Raleigh has failed to demonstrate
any damages flowing from LeVangie’s breach of the contract. Therefore, we conclude
5 Raleigh did not present any documentary evidence to support this claim, and her ex- husband did not testify that he received any monies from her. -12-
that the trial court did not err in denying this claim.
{¶ 29} The third assignment of error is overruled.
V. Slander of Title
{¶ 30} Raleigh states the following for her fourth assignment of error:
COUNTERCLAIM FOR SLANDER OF TITLE.
{¶ 31} Raleigh contends that the trial court should have ruled in her favor on her
claim for slander of title. In support, she argues that LeVangie failed to timely file his
mechanic’s lien on her property and that the lien was not valid because LeVangie
breached the construction contract.
{¶ 32} “Slander of title to real estate is a tort action against one who falsely and
maliciously defames title to property and causes some special pecuniary damages or
loss.” Hahn’s Elec. Co. v. Cochran, 10th Dist. Franklin Nos. 01AP-1391, 01AP-1394,
2002-Ohio-5009, ¶ 24, citing Green v. Lemarr, 139 Ohio App.3d 414, 430, 744 N.E.2d
212 (2d Dist.2000). “Generally, slander of title to real estate involves the wrongful
recording of an unfounded claim, such as a mechanic's lien, to the property of another.”
Id., citing Green at 433. “Thus, the gravamen of a claim of slander of title to real estate
is protection of economic interests in property * * *.” Id. at ¶ 25, citing Restatement of
the Law 2d, Torts (1977), 340-341, Section 623A, Comment g and 343 Section 624,
Comment a. In order to prevail on a slander of title claim, the plaintiff must prove “(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 -13-
disregard of its falsity; and (4) the statement caused actual or special damages.” (Citation
omitted.) Green at 430-431. “The filing of a mechanic's lien satisfies the publication
element.” Prater v. Dashkovsky, 10th Dist. Franklin No. 07AP-389, 2007-Ohio-6785,
¶ 13, citing W. Prosser, The Law of Torts § 122 at 939 (3 Ed.1964).
{¶ 33} Again, the trial court found that Raleigh failed to prove her counterclaims,
including her claim for slander of title, because she failed to prove that she incurred any
damages. We agree. There is no evidence that Raleigh attempted, or even intended,
to sell or mortgage the property after the lien was filed. Further, she presented no
evidence of any damages incurred because of the lien. Thus, we agree that Raleigh has
failed to establish the elements of slander of title.6
{¶ 34} The fourth assignment of error is overruled.
VI. Fifth Assignment of Error is Moot
{¶ 35} The fifth assignment of error states:
THE TRIAL COURT ERRED IN ENTERING JUDGMENT THAT
DIRECTED SALE OF PROPERTY WITH [SIC] COMPLIANCE WITH R.C.
2329.191.
{¶ 36} Raleigh contends that, because LeVangie failed to comply with the statutory
requirements for a judicial sale, the trial court erred by ordering the sale. Given our
disposition of the first assignment of error, and our finding that Raleigh is entitled to
6 However, given our disposition of Raleigh’s first assignment of error, we note that LeVangie now has no right to a mechanic’s lien on Raleigh’s property. Thus, Raleigh is entitled to an order of the trial court to quiet title and have the lien removed as an encumbrance upon her property. -14-
removal of the mechanic’s lien against her property, this assignment of error has been
rendered moot.
{¶ 37} Accordingly, the fifth assignment of error is overruled as moot.
VII. Conclusion
{¶ 38} Raleigh’s first assignment of error is sustained, and her other assignments
are overruled. The judgment of the trial court is reversed insofar as it awarded damages
to LeVangie, and it is affirmed with respect to Raleigh’s counterclaims. The matter is
remanded to the trial court with instructions to enter a judgment, including a judgment to
quiet title, consistent with this opinion.
WELBAUM, P.J. and FROELICH, J., concur.
Copies sent to:
John E. Sharts Thomas W. Kendo, Jr. Gabrielle R. Neal Jeffrey Helms Michele Phipps Hon. Dale A. Crawford, Visiting Judge