[Cite as Musarra v. Griffin, 2011-Ohio-5002.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
LEAH MUSARRA, et al. C.A. No. 25571
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE ROGER GRIFFIN, EXECUTOR COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 09 03 2101
DECISION AND JOURNAL ENTRY
Dated: September 30, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Rosario Musarra began building a house for himself, his wife Leah, and his son
Mark. Because he wanted Mark to gain construction experience, he asked him to oversee the
project and granted him a power of attorney. Mr. Musarra also put money in a bank account for
Mark to use to pay contractors. Mr. Musarra died, however, a few months before the house was
finished. Despite Mr. Musarra’s death, Mark and Leah finished the house, allegedly using some
of their own money to pay contractors when the funds that were in the bank account ran out.
They filed a claim with the executor of Mr. Musarra’s estate, seeking to recover the amount they
paid contractors from their own assets and for any amounts that were still owed to contractors.
When the executor denied their claim, the Musarras sued the estate. The trial court assigned the
case to a magistrate, who determined that the Musarras could not recover from Mr. Musarra’s
estate. In particular, he determined that an agent cannot recover from his principal on behalf of 2
unpaid creditors. He also determined that there was no evidence that the Musarras used their
own funds to pay Mr. Musarra’s debts. The Musarras objected, but the trial court adopted the
magistrate’s decision and entered judgment for the estate. The Musarras have appealed, arguing
that the court incorrectly allowed the estate to withdraw a stipulation after they finished
presenting their case and that it incorrectly concluded that they could not collect on the contracts
Mark had entered into under the power of attorney. We affirm because the trial court did not
allow the estate to withdraw from a stipulation and it correctly determined that the Musarras
could not recover from the estate.
PROCEDURAL BACKGROUND
{¶2} The Musarras filed a complaint against Mr. Musarra’s estate, seeking to recover
for any construction expenses that were unpaid at the time of Mr. Musarra’s death. The estate
counterclaimed against Leah, alleging that, because ownership of the house transferred to her
upon Mr. Musarra’s death, she would be unjustly enriched if it had to pay all of the construction
costs. The case was heard by a magistrate, who determined that the Musarras could not recover
from the estate on behalf of its unpaid creditors. He also determined that the Musarras had failed
to prove that they used their own funds to pay contractors.
{¶3} Ten days after the magistrate entered his decision, the Musarras objected to it,
arguing that his findings were contrary to the weight of the evidence and that he had incorrectly
concluded that Mark could not sue the estate on behalf of the contractors. The Musarras also
requested additional time to file a memorandum in support of their objections until after the
transcript was filed. The trial court granted their motion. A month later, the Musarras filed
another “[o]bjection” to the magistrate’s decision, arguing that he had incorrectly determined
Finding of Fact #23, regarding whether they had paid any of the contractors from their own 3
funds. They also argued that the magistrate incorrectly decided Conclusion of Law #3, regarding
whether Mr. Musarra was indebted to the contractors, and Conclusion of Law #4, regarding
whether they could recover on their claims. They filed a memorandum of law in support of their
objection.
{¶4} The trial court reviewed the Musarras’ objections, but determined that there was
“no error of law or defect on the relevant facts in the Magistrate’s Decision.” It adopted the
magistrate’s decision, found in favor of the estate on the Musarras’ claims, and denied the
estate’s counterclaim as moot. The Musarras have appealed, assigning two errors.
STIPULATION
{¶5} Mark and Leah Musarra’s first assignment of error is that the trial court
incorrectly allowed the estate to withdraw from a stipulation too late during trial, which resulted
in unfair surprise and a finding that they had failed to present the evidence that they claim the
stipulation covered. According to the Musarras, the parties had stipulated that the invoices they
submitted established that the total amount of work performed by contractors that was unpaid at
the time of Mr. Musarra’s death was approximately $145,000. The Musarras have argued that
the purpose of the stipulation was so they would not have to call each of the individual
contractors as witnesses. After they rested, however, the estate argued that the Musarras should
have called the contractors to establish when the unpaid work was performed.
{¶6} The Musarras’ argument is without merit. At the beginning of the trial, the
Musarras’ lawyer explained that, regarding the contractor invoices, the parties were stipulating
“that the work was done, again, not who is responsible to pay it[.]” Neither side indicated that
there was a stipulation about when the contractors performed the work, only that the work had
been done. 4
{¶7} Only two of the twelve invoices submitted by the Musarras indicate the specific
date the described work was done. Accordingly, even if what the Musarras’ lawyer told the
court could be interpreted as a stipulation that everything that was written on the invoices was
true, it would not establish the dates on which most of the unpaid work was done. Mark Musarra
testified that he did not receive some of the invoices until many months after the work was
completed. Since the invoices themselves did not explain when the work was done, the court
correctly found that there could not have been a stipulation regarding that issue.
{¶8} We further note that whether there was a stipulation appears to have been
irrelevant. One of the issues at trial was whether the contractors did the unpaid work after Mark
Musarra received the power of attorney but before Rosario Musarra’s death. The magistrate
found that, despite the lack of a stipulation about when the work was done, “[b]ased on a review
of the invoices and testimony, it appears that the majority of the work on the subject house was
performed during the pendency of the power of attorney[.]” The magistrate’s finding was
consistent with Mark’s testimony that most of the work described in the invoices had been
performed before Mr. Musarra’s death. The court denied the Musarras’ claim, not because there
was no evidence about when work was done, but because they did not establish that they were
entitled to recover for the work, whenever it was done.
{¶9} The Musarras have also argued that they were prejudiced by the withdrawal of the
stipulation because, if the stipulation had remained in place, they would not have needed to
present evidence regarding which invoices they paid with their own assets. According to them,
“[i]t was error to base a decision upon the lack of cancelled checks or other evidence because the
parties had previously stipulated that the total amount of work completed on the project was
[approximately $145,000].” 5
{¶10} The Musarras’ argument is illogical.
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[Cite as Musarra v. Griffin, 2011-Ohio-5002.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
LEAH MUSARRA, et al. C.A. No. 25571
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE ROGER GRIFFIN, EXECUTOR COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 09 03 2101
DECISION AND JOURNAL ENTRY
Dated: September 30, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Rosario Musarra began building a house for himself, his wife Leah, and his son
Mark. Because he wanted Mark to gain construction experience, he asked him to oversee the
project and granted him a power of attorney. Mr. Musarra also put money in a bank account for
Mark to use to pay contractors. Mr. Musarra died, however, a few months before the house was
finished. Despite Mr. Musarra’s death, Mark and Leah finished the house, allegedly using some
of their own money to pay contractors when the funds that were in the bank account ran out.
They filed a claim with the executor of Mr. Musarra’s estate, seeking to recover the amount they
paid contractors from their own assets and for any amounts that were still owed to contractors.
When the executor denied their claim, the Musarras sued the estate. The trial court assigned the
case to a magistrate, who determined that the Musarras could not recover from Mr. Musarra’s
estate. In particular, he determined that an agent cannot recover from his principal on behalf of 2
unpaid creditors. He also determined that there was no evidence that the Musarras used their
own funds to pay Mr. Musarra’s debts. The Musarras objected, but the trial court adopted the
magistrate’s decision and entered judgment for the estate. The Musarras have appealed, arguing
that the court incorrectly allowed the estate to withdraw a stipulation after they finished
presenting their case and that it incorrectly concluded that they could not collect on the contracts
Mark had entered into under the power of attorney. We affirm because the trial court did not
allow the estate to withdraw from a stipulation and it correctly determined that the Musarras
could not recover from the estate.
PROCEDURAL BACKGROUND
{¶2} The Musarras filed a complaint against Mr. Musarra’s estate, seeking to recover
for any construction expenses that were unpaid at the time of Mr. Musarra’s death. The estate
counterclaimed against Leah, alleging that, because ownership of the house transferred to her
upon Mr. Musarra’s death, she would be unjustly enriched if it had to pay all of the construction
costs. The case was heard by a magistrate, who determined that the Musarras could not recover
from the estate on behalf of its unpaid creditors. He also determined that the Musarras had failed
to prove that they used their own funds to pay contractors.
{¶3} Ten days after the magistrate entered his decision, the Musarras objected to it,
arguing that his findings were contrary to the weight of the evidence and that he had incorrectly
concluded that Mark could not sue the estate on behalf of the contractors. The Musarras also
requested additional time to file a memorandum in support of their objections until after the
transcript was filed. The trial court granted their motion. A month later, the Musarras filed
another “[o]bjection” to the magistrate’s decision, arguing that he had incorrectly determined
Finding of Fact #23, regarding whether they had paid any of the contractors from their own 3
funds. They also argued that the magistrate incorrectly decided Conclusion of Law #3, regarding
whether Mr. Musarra was indebted to the contractors, and Conclusion of Law #4, regarding
whether they could recover on their claims. They filed a memorandum of law in support of their
objection.
{¶4} The trial court reviewed the Musarras’ objections, but determined that there was
“no error of law or defect on the relevant facts in the Magistrate’s Decision.” It adopted the
magistrate’s decision, found in favor of the estate on the Musarras’ claims, and denied the
estate’s counterclaim as moot. The Musarras have appealed, assigning two errors.
STIPULATION
{¶5} Mark and Leah Musarra’s first assignment of error is that the trial court
incorrectly allowed the estate to withdraw from a stipulation too late during trial, which resulted
in unfair surprise and a finding that they had failed to present the evidence that they claim the
stipulation covered. According to the Musarras, the parties had stipulated that the invoices they
submitted established that the total amount of work performed by contractors that was unpaid at
the time of Mr. Musarra’s death was approximately $145,000. The Musarras have argued that
the purpose of the stipulation was so they would not have to call each of the individual
contractors as witnesses. After they rested, however, the estate argued that the Musarras should
have called the contractors to establish when the unpaid work was performed.
{¶6} The Musarras’ argument is without merit. At the beginning of the trial, the
Musarras’ lawyer explained that, regarding the contractor invoices, the parties were stipulating
“that the work was done, again, not who is responsible to pay it[.]” Neither side indicated that
there was a stipulation about when the contractors performed the work, only that the work had
been done. 4
{¶7} Only two of the twelve invoices submitted by the Musarras indicate the specific
date the described work was done. Accordingly, even if what the Musarras’ lawyer told the
court could be interpreted as a stipulation that everything that was written on the invoices was
true, it would not establish the dates on which most of the unpaid work was done. Mark Musarra
testified that he did not receive some of the invoices until many months after the work was
completed. Since the invoices themselves did not explain when the work was done, the court
correctly found that there could not have been a stipulation regarding that issue.
{¶8} We further note that whether there was a stipulation appears to have been
irrelevant. One of the issues at trial was whether the contractors did the unpaid work after Mark
Musarra received the power of attorney but before Rosario Musarra’s death. The magistrate
found that, despite the lack of a stipulation about when the work was done, “[b]ased on a review
of the invoices and testimony, it appears that the majority of the work on the subject house was
performed during the pendency of the power of attorney[.]” The magistrate’s finding was
consistent with Mark’s testimony that most of the work described in the invoices had been
performed before Mr. Musarra’s death. The court denied the Musarras’ claim, not because there
was no evidence about when work was done, but because they did not establish that they were
entitled to recover for the work, whenever it was done.
{¶9} The Musarras have also argued that they were prejudiced by the withdrawal of the
stipulation because, if the stipulation had remained in place, they would not have needed to
present evidence regarding which invoices they paid with their own assets. According to them,
“[i]t was error to base a decision upon the lack of cancelled checks or other evidence because the
parties had previously stipulated that the total amount of work completed on the project was
[approximately $145,000].” 5
{¶10} The Musarras’ argument is illogical. The amount that they were seeking from the
estate was approximately $145,000. The amount that they claimed to have already paid to
contractors with their own funds was approximately $45,000. The fact that the overall cost of
work performed on the house was $145,000 does not establish that they paid $45,000 to
contractors for that work from their own funds. While it is true that some of the invoices
indicate that they were paid in part, they do not indicate whether they were paid with money
from the account Mr. Musarra funded, from Mark’s own funds, or from Leah’s own funds. The
Musarras could not reasonably have thought that they could rely on a stipulation regarding the
amount of work performed on the house to prove that they paid for that work with their own
funds. We, therefore, conclude that the trial court correctly determined that the stipulation had
“nothing to do” with whether the Musarras paid some of the contractors with their own funds.
The Musarras’ first assignment of error is overruled.
OUTSTANDING INVOICES
{¶11} The Musarras’ second assignment of error is that the trial court incorrectly
determined that they could not collect from the estate to satisfy contracts that Mark made for Mr.
Musarra under a valid power of attorney. They have argued that they should be able to collect
from the estate because they paid some of the debts off with their own funds and because they
are liable to the contractors for any unpaid balances.
{¶12} Regarding the Musarras’ argument that they paid contractors approximately
$45,000 with their own funds, we note that, even though Mark and Leah testified that they paid
contractors from their own funds, the magistrate found that they had not proved their claim by a
preponderance of the evidence. In particular, he rejected their claim because they had not
presented any cancelled checks to verify that they paid contractors or establish how much they 6
had paid. The trial court upheld the magistrate’s determination, finding that the Musarras did not
have “proof to support their claim that payments were indeed made.”
{¶13} The Musarras have not directed this Court to any evidence in the record, other
than their own testimony, that supports their claim that they paid the contractors with their own
funds. Rather, they argue, again, about the stipulation regarding the $145,000. As previously
explained, the stipulation, whether withdrawn or not, was insufficient to establish that the
Musarras paid contractors with their own funds for work approved by Mr. Musarra.
{¶14} The Musarras’ other argument is that they should be able to recover from the
estate because, if it does not pay, they will be liable to the contractors. Regarding Leah Musarra,
we note that she specifically argued in her post-trial brief to the magistrate that she cannot be
held liable for her husband’s contractual debts. Accordingly, she invited any error regarding this
issue. State ex rel. Bitter v. Missig, 72 Ohio St. 3d 249, 254 (1995) (“Under the invited-error
doctrine, a party will not be permitted to take advantage of an error which he himself invited or
induced the trial court to make.”).
{¶15} Regarding Mark Musarra, the magistrate noted that this “is not the typical breach
of contract action brought by a plaintiff creditor against the defendant agent / defendant principal
or where the defendant asserts an affirmative defense based upon the agency/principal
relationship.” Instead, Mark, as Mr. Musarra’s agent, sought a preemptive judgment against the
estate in case he was later found liable to the contractors. The magistrate noted, however, that he
had not identified any cases in which an agent had been allowed to stand in the shoes of a true
creditor. The magistrate was also unable to find any cases himself. He, therefore, concluded that
no such cause of action exists. 7
{¶16} At the time Mark Musarra hired the contractors, he was either acting as Mr.
Musarra’s agent or not. If he was not acting as Mr. Musarra’s agent, the estate cannot be liable
to the contractors, even under a theory of unjust enrichment, because, upon Mr. Musarra’s death,
his interest in the property transferred immediately to Leah Musarra by operation of a
survivorship deed. See Univ. Hosps. of Cleveland Inc. v. Lynch, 96 Ohio St. 3d 118, 2002-Ohio-
3748, at ¶60 (explaining that unjust enrichment requires retention of “money or benefits which in
justice and equity belong to another.”) (quoting Hummel v. Hummel, 133 Ohio St. 520, 528
(1938)). Mark Musarra, therefore, would not have had any shoes to step into. If he was acting
as Mr. Musarra’s agent, he is liable to the contractors only if he did not disclose that he was
acting on behalf of Mr. Musarra. See Sommer v. French, 115 Ohio App. 3d 101, 103-04 (1996)
(“It is an elemental principle of agency law that in order to preclude personal liability, an agent
must disclose not only his principal, but also the agency relationship.”); see also Plain Dealer
Publishing Co. v. Worrell, 178 Ohio App. 3d 485, 2008-Ohio-4846, at ¶10 (explaining difference
in agent’s liability depending on whether principal was disclosed, partially disclosed,
undisclosed, or fictitious) (quoting James G. Smith & Assocs. Inc. v. Everett, 1 Ohio App. 3d
118, 120-21 (1981)).
{¶17} Several of the invoices submitted by the Musarras contain only Mark Musarra’s
name, which could suggest that Mr. Musarra was an undisclosed principal. The contractors who
testified at trial, however, said that they knew that Mark was overseeing the construction project
on behalf of Mr. Musarra. Two of those contractors were among those that had only put Mark’s
name on their invoices. Upon review of the record, we conclude that it supports the trial court’s
conclusion that Mark Musarra failed to prove that he should be allowed to preemptively recover 8
from the estate because he might be liable to the contractors under agency law. The Musarras’
second assignment of error is overruled.
CONCLUSION
{¶18} The Musarras failed to prove that they paid contractors from their own funds or
that they had a right to recover from Mr. Musarra’s estate for his unpaid debts. The judgment of
the Summit County Common Pleas Court 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 Summit, 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.
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(E). 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 Appellant.
CLAIR E. DICKINSON FOR THE COURT 9
BELFANCE, P. J. CONCURS IN JUDGMENT ONLY
WHITMORE, J. CONCURS
APPEARANCES:
GREGORY T. PLESICH, Attorney at Law, for Appellant.
SANDY A. DIFIORE, Attorney at Law, for Appellee.