[Cite as Queen City Cleaning, L.L.C. v. I74 Wired, L.L.C., 2024-Ohio-1761.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
QUEEN CITY CLEANING, LLC, : APPEAL NO. C-230331 TRIAL NO. A-2200140 Plaintiff-Appellant, :
vs. : O P I N I O N.
I74 WIRED, LLC, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: May 8, 2024
James R. Hartke for Plaintiff-Appellant,
Yonas and Phillabaum, LLC, and Hope Platzbecker for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} In this civil appeal, plaintiff-appellant Queen City Cleaning, LLC,
(“Queen City”) appeals the trial court’s grant of summary judgment in favor of
defendant-appellee I74 Wired, LLC, (“I74 Wired”) dismissing Queen City’s complaint
for breach of contract, promissory estoppel, unjust enrichment, and fraud. Queen City
raises two assignments of error, arguing that the trial court erred in not ruling on its
motion to compel discovery or extend the timeline for discovery and in granting
summary judgment. For the following reasons, we overrule the first assignment of
error, sustain the second assignment of error, reverse the judgment of the trial court,
and remand the cause for further proceedings.
Background
{¶2} I74 Wired owns a commercial office building and leases that space to
various business clients. On May 1, 2021, I74 Wired entered into a contract with
Queen City regarding the cleaning of its building and tenant spaces for a $3,900
monthly fee paid in two installments of $1,950 due on the 15th and 31st of each month.
The entirety of the parties’ relationship is contained in a brief, three-page contract.
{¶3} For about one month, Queen City cleaned the building, and the tenants
would message I74 Wired’s property manager or Queen City to arrange cleaning of
their offices or alert them of trash accumulation, bathroom issues, and the like.
However, the parties’ relationship quickly deteriorated. About two weeks into the
contract, on May 19, a tenant of I74 Wired complained that the tenant’s computer was
shattered and inoperable and blamed Queen City for destroying the computer. I74
Wired first asked Queen City to compensate the tenant for the cost of a replacement
computer and then later offered to split the cost. Queen City denied breaking the
2 OHIO FIRST DISTRICT COURT OF APPEALS
computer and the parties did not reach an agreement.1 The computer was eventually
replaced.
{¶4} On June 20, I74 Wired’s property manager communicated to Queen
City that “June 30 will be [Queen City’s] last day,” citing dissatisfaction with resolving
the tenant’s complaint about the computer and dissatisfaction with the cleaning of the
building’s parking lot. Queen City replied that the contract has a 30-day notice period
before the contract terminates and that it would continue cleaning until July 20. On
June 25, the owner of I74 Wired sent an email again terminating the contract and
Queen City again replied that they would continue to clean through the 30-day period.
I74 Wired responded by refusing those services, revoking Queen City’s access to the
building, and threatening to call the police for trespass if Queen City returned to clean
the building.
{¶5} That same day, Queen City sent I74 Wired a demand letter seeking
$5,874.19, the total for five days of cleaning from June 15 to June 20, the 30-day notice
period before termination, and costs of Queen City’s cleaning supplies still in I74
Wired’s building that were now inaccessible. On July 1, Queen City sent I74 Wired an
invoice for $6,477.38, the previous amount with a 2 percent late fee and tax added. At
some point prior to the lawsuit, I74 Wired offered to pay Queen City $1,950—the
installment owed for the period of June 1 to June 15—but refused to pay any other
amounts.
1 The parties dispute whether the damaged equipment was a “monitor” or a “computer” throughout
the litigation. However, both terms are correct: the damaged computer photographed in the appellate record is an Apple iMac where the desktop computer is integrated with the monitor all in one unit.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} On January 14, 2022, Queen City filed a complaint against I74 Wired,
alleging claims for breach of contract, breach of an implied-in-fact contract, unjust
enrichment, and fraud. I74 Wired initially responded with a motion to dismiss arguing
that Queen City lacked standing to sue because it was not a registered foreign limited
liability company with the state of Ohio. After Queen City registered with the state of
Ohio, the trial court dismissed I74 Wired’s motion and I74 Wired answered the
complaint and filed a counterclaim for breach of contract.
{¶7} The parties exchanged discovery that August, with discovery scheduled
to close on October 18, 2022, in advance of an initial March 1, 2023 trial date. Queen
City sent I74 Wired a set of 34 interrogatories on August 22. After I74 Wired
responded, Queen City sent a second set of 22 interrogatories with subparts on
October 11. I74 Wired objected to a number of these interrogatories, arguing they
exceeded the 40-interrogatory cap set by Civ.R. 33. The parties disagreed as to
whether the rule limited a party to 40 total interrogatories without leave of court or
limited a party to 40 interrogatories per set. On December 19, Queen City moved the
trial court to compel responses to the interrogatories.
{¶8} I74 Wired moved for summary judgment on all four of Queen City’s
claims on January 3, 2023. Queen City responded to the motion for summary
judgment and sought a continuance to take additional discovery under Civ.R. 56(F).
Queen City did not move for summary judgment on its claims.
{¶9} The trial court did not rule on either of Queen City’s pending motions.
Instead, the trial court held oral argument on I74 Wired’s motion for summary
judgment on May 15, 2023. At the close of the hearing, the trial court orally granted
I74 Wired’s motion in its entirety and requested I74 Wired’s counsel to draft the order.
4 OHIO FIRST DISTRICT COURT OF APPEALS
After the hearing, I74 Wired voluntarily dismissed its counterclaim. The trial court
adopted a brief one-paragraph order granting summary judgment in favor of I74
Wired on all of Queen City’s claims and dismissing the complaint in its entirety.
{¶10} Queen City now timely appeals.
Law and Analysis
{¶11} Queen City raises two assignments of error. First, Queen City argues
the trial court abused its discretion by not ruling on Queen City’s motion to compel
discovery or its Civ.R. 56(F) request for a continuance and instead ruling on I74
Wired’s dispositive motion for summary judgment. Second, Queen City argues the
trial court erred by granting I74 Wired’s motion for summary judgment.
I. The motion to compel discovery
{¶12} In its first assignment of error, Queen City argues the trial court abused
its discretion by failing to rule on Queen City’s motion to compel discovery and instead
ruling on I74 Wired’s dispositive motion for summary judgment. Queen City does not
argue the merits of the trial court’s decisions on its pending motions, it only assigns
error to the timing of those decisions.
{¶13} When a trial court does not rule on a pending pretrial motion, it may
ordinarily be presumed that the court overruled it. State ex rel. V Cos. v. Marshall,
81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998). Where a party opposing summary
judgment has a pending motion to compel, that party must either seek a continuance
under Civ.R. 56(F) or otherwise include in its response to the motion for summary
judgment some allegation that it is prejudiced because of the trial court’s failure to rule
on the pending motion to compel. See Rhododendron Holdings, LLC v. Harris, 2021-
Ohio-147, 166 N.E.3d 725, ¶ 16 (2d Dist.), quoting Polivka v. Cox, 10th Dist. Franklin
5 OHIO FIRST DISTRICT COURT OF APPEALS
No. 02AP-1364, 2003-Ohio-4371, ¶ 23. Here, Queen City sought a continuance under
Civ.R. 56(F). Because the trial court granted I74 Wired’s motion for summary
judgment, we presume the trial court denied the motion to compel and the requested
continuance.
{¶14} We review the trial court’s denial of both a motion to compel and a
requested continuance under Civ.R. 56(F) under an abuse-of-discretion standard.
Grace v. Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶ 13
(1st Dist.) (reviewing the disposition of a motion to compel under an abuse-of-
discretion standard), citing State ex rel. The V Cos at 469; Midland Funding LLC v.
Farrell, 1st Dist. Hamilton No. C-120674, 2013-Ohio-5509, ¶ 10 (the same for request
for a continuance under Civ.R. 56(F)). An “abuse of discretion” means an attitude that
is “unreasonable, arbitrary, or unconscionable.” AAAA Ents. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597
(1990). An appellate court will reverse a trial court’s decision that extinguishes a
party’s right to discovery where its decision is improvident and affects the discovering
party’s substantial rights. Mauzy v. Kelly Servs., 75 Ohio St.3d 578, 592,
664 N.E.2d 1272 (1996), quoting Rossman v. Rossman, 47 Ohio App.2d 103, 110,
352 N.E.2d 149 (8th Dist.1975).
{¶15} Under Civ.R. 56(F), a party opposing a motion for summary judgment
may move for a continuance where that party needs more time to conduct discovery.
The motion must be supported by an affidavit establishing the reasons for the
requested continuance. Civ.R. 56(F); Taft, Stettinius, & Hollister, LLP v. Calabrese,
2016-Ohio-4713, 69 N.E.3d 72, ¶ 28 (1st Dist.). “General averments requesting a
continuance for the purpose of discovery are insufficient as ‘the party seeking the
6 OHIO FIRST DISTRICT COURT OF APPEALS
Civ.R. 56(F) continuance must state a factual basis and reasons why the party cannot
present sufficient documentary evidence without a continuance.’ ” Farrell at ¶ 10,
quoting BAC Home Loans Servicing, LP. v. Kolenich, 194 Ohio App.3d 777,
2011-Ohio-3345, 958 N.E.2d 194, ¶ 18 (12th Dist.), quoting Silver v. Jewish Home of
Cincinnati, 190 Ohio App.3d 549, 2010-Ohio-5314, 943 N.E.2d 577, ¶ 20 (12th Dist.).
While Queen City made a separate motion, it did not support the motion with an
affidavit nor articulate any factual basis in that motion why it could not present
sufficient documentary evidence at the summary-judgment hearing. The trial court
would have been well within its discretion to deny the motion on this basis alone.
{¶16} Moreover, Queen City’s statements in its memorandum in opposition
to summary judgment suggested that its requested continuance or additional
discovery would be unnecessary:
Attached to this Memorandum are Answers of [Queen City] to discovery
requests that support the description of fact issues and demonstrate
that, not only has [I74 Wired] failed to carry its threshold burden to
show no factual issues, but support that [Queen City] has, through its
affidavit and Interrogatory, responses to Requests for Admission, and
Document Production, highlighted the factual issues that require the
Court to overrule [I74 Wired]’s motion.
These statements demonstrate Queen City believed it had sufficient evidence to defeat
I74 Wired’s motion for summary judgment based on the information it currently had.
Thus, Queen City’s substantial rights were not harmed by the court closing discovery
and ruling on the dispositive motion for summary judgment.
7 OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Consequently, the trial court did not abuse its discretion in impliedly
denying Queen City’s motion to compel or its Civ.R. 56(F) motion for a continuance
and instead ruling on the dispositive motion for summary judgment. Accordingly, we
overrule the first assignment of error.
II. The motion for summary judgment
{¶18} In its second assignment of error, Queen City argues the trial court
erred by granting summary judgment in favor of I74 Wired and dismissing Queen
City’s complaint. I74 Wired sought summary judgment against Queen City on its
claims for breach of contract, breach of an implied-in-fact contract, unjust
enrichment, and fraud. Because I74 Wired moved for summary judgment on all of
Queen City’s claims and the trial court’s brief order granted I74 Wired’s motion in its
entirety, we address each claim in turn.
{¶19} We review the trial court’s decision on summary judgment de novo.
Hefler v. Remke Mkts., Inc., 1st Dist. Hamilton No. C-200364, 2021-Ohio-2694, ¶ 7.
Summary judgment is appropriate where (1) no genuine issue of material fact exists
for trial, (2) the moving party is entitled to judgment as a matter of law, and
(3) reasonable minds can come to but one conclusion and that conclusion is adverse
to the nonmoving party, who is entitled to have the evidence construed most strongly
in his or her favor. Id., quoting Wal-Mart Realty Co. v. Tri-County Commons Assocs.,
LLC, 1st Dist. Hamilton No. C-160747, 2017-Ohio-9280, ¶ 8.
{¶20} In the construction of a contract, a court’s primary objective is to
ascertain and give effect to the parties’ intent, which can be found in the language they
chose to employ. Stride Studios, Inc. v. Alsfelder, 2023-Ohio-1502, 219 N.E.3d 986,
¶ 17 (1st Dist.); Hobart Corp. v. Waste Mgt. of Ohio, 758 F.3d 757, 768 (6th Cir.2014),
8 OHIO FIRST DISTRICT COURT OF APPEALS
quoting Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities
Auth., 78 Ohio St.3d 353, 361, 678 N.E.2d 519 (1997). The court will give common
words and phrases their ordinary meaning unless the totality of the contract reveals a
contrary intent or a manifest absurdity results. Foster Wheeler at 361, quoting
Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978),
paragraph one of the syllabus; In re Fifth Third Early Access Cash Advance Litigation,
925 F.3d 265, 276 (6th Cir.2019). The court will read the writing as a whole and gather
the intent of each from a consideration of the whole. Stride Studios at ¶ 17, citing
Foster Wheeler at 361.
A. Termination of the contract
{¶21} First, we address whether I74 Wired was entitled to summary
judgment that it properly terminated the contract. The contract sets only one method
of termination, providing “[t]he term of this agreement shall commence on
05/01/2021 and terminate upon either party providing 30 Day(s), written notice to
the other party.” The contract is silent on what grounds are appropriate or
inappropriate to terminate the contract. By its plain language, the contract begins on
May 1, 2021, and ends 30 days after one party sends notice to terminate the contract.
{¶22} I74 Wired tendered that termination notice when its property manager
sent a text message on June 20, 2021, to Queen City’s owners that Queen City was
“fired.”2 This demonstrated I74 Wired’s intent to terminate and satisfied the
contract’s requirements that the notice to terminate be in writing and provided to the
2 Queen City initially argued that there was a genuine issue of material fact whether the property
manager was duly authorized by I74 Wired to provide notice to terminate the contract on its behalf and consequently only the June 25 email from the owner of I74 Wired operated as written notice to terminate. However, at oral argument Queen City conceded the issue was irrelevant.
9 OHIO FIRST DISTRICT COURT OF APPEALS
other party. Thus, that text message operated to end the contract on July 20, 2021, 30
days from the date of the text message.
{¶23} Queen City argues that the termination clause must be read to only
permit termination of the contract for good cause because the contract contains an
implied covenant of good faith and fair dealing, citing this court’s decision in Littlejohn
v. Parrish, 163 Ohio App.3d 456, 2005-Ohio-4850, 839 N.E.2d 49, ¶ 27 (1st Dist.).
The implied covenant of good faith and fair dealing in Littlejohn requires “the parties
to deal reasonably with each other, and it applies where one party has discretionary
authority to determine certain terms of the contract.” Great Water Capital Partners,
LLC v. Down-Lite Internatl., Inc., 1st Dist. Hamilton Nos. C-150015 and C-150023,
2015-Ohio-4877, ¶ 13, quoting DavCo. Acquisition Holding, Inc. v. Wendy’s
Internatl., Inc., S.D.Ohio No. 2:07-cv-1064, 2008 U.S. Dist. LEXIS 27108, 17 (Mar. 19,
2008), citing Littlejohn. Because the termination clause does not put any limitation
on the reasons for termination, both parties must exercise their discretion in good
faith.
{¶24} Queen City argues that whether I74 Wired acted in good faith is a
mixed question of law and fact that cannot be resolved at summary judgment.
However, this misreads Littlejohn and the cases that followed it. In Littlejohn, the
issue was whether a lender who had a discretionary right to decline prepayment of a
mortgage note acted unreasonably in refusing the borrower’s offer to prepay.
Littlejohn at ¶ 12-13. This court held that the implied covenant of good faith and fair
dealing obligated the parties to deal reasonably with each other, but whether they did
so was an unresolved issue of fact that made summary judgment improper in that case.
Id. at ¶ 28. Littlejohn did not establish a rule barring summary judgment as a means
10 OHIO FIRST DISTRICT COURT OF APPEALS
to resolve breach-of-good-faith allegations and requiring those allegations to be
decided at trial only. See Sims Buick-GMC Truck, Inc. v. GM LLC, 876 F.3d 182, 187
(6th Cir.2017); see also Definitive Solutions Co. v. Sliper, 2016-Ohio-533, 60 N.E.3d
461, ¶ 17-18 (1st Dist.) (affirming summary judgment on the issue). To the contrary,
summary judgment is a permissible vehicle to resolve such claims. See O’Brien v.
Ravenswood Apts., Ltd., 169 Ohio App.3d 233, 2006-Ohio-5264, 862 N.E.2d 549,
¶ 38 (1st Dist.).
{¶25} There is no genuine issue of material fact that I74 Wired did not breach
the implied covenant of good faith and fair dealing in exercising the discretion in
determining whether to terminate the contract. As articulated in Littlejohn, “ ‘[g]ood
faith performance or enforcement of a contract emphasizes faithfulness to an agreed
common purpose and consistency with the justified expectations of the other party.’ ”
Littlejohn at ¶ 26, quoting Restatement of the Law 2d, Contracts, Section 205,
Comment a (1981). On the other hand, “bad faith may consist of inaction, or may be
the ‘abuse of a power to specify terms, [or] interference with or failure to cooperate in
the other party’s performance.’ ” Id., quoting Restatement of the Law 2d, Contracts,
Section 205, Comment d. It is not necessarily a breach of the implied covenant of good
faith and fair dealing when a party chooses to exercise discretion it bargains for. Great
Water Capital Partners at ¶ 14.
{¶26} In the first termination notice, I74 Wired stated it was dissatisfied with
Queen City’s resolution of a tenant’s complaint that Queen City broke the tenant’s
computer. Queen City denied breaking the computer, but who was at fault for the
damage is irrelevant to I74 Wired having a good-faith dissatisfaction with Queen City’s
handling of the issue. I74 Wired brought the complaint to Queen City directly with a
11 OHIO FIRST DISTRICT COURT OF APPEALS
proposed solution but was rebuffed. After Queen City refused, I74 Wired offered to
split the cost of replacing the computer, which Queen City also refused. These
undisputed facts demonstrate I74 Wired acted in good faith by attempting to resolve
the issue and when it was not resolved in a satisfactory manner, it used its discretion
to terminate the contract. Thus, I74 Wired did not breach the implied covenant of
good faith and fair dealing by tendering notice to terminate the contract.
{¶27} Consequently, the trial court correctly granted summary judgment to
I74 Wired and against Queen City on the issue of whether the contract was properly
terminated.
B. Payment under the contract
{¶28} Second, we address whether I74 Wired was entitled to summary
judgment that it did not breach the contract by not paying the $1,950 owed prior to
tendering the notice to terminate and the $3,900 owed for the 30-day notice period.
{¶29} We first address the $1,950 installment for services rendered prior to
I74 Wired tendering notice to terminate the contract. It is not disputed that when I74
Wired terminated the contract on June 20, 2021, the installment due on June 15 had
not yet been paid and that installment was owed as payment for cleaning services that
were rendered from June 1 to June 15. Thus, I74 Wired breached its duty to pay Queen
City for the work already completed. Consequently, the trial court erred in granting
I74 Wired’s motion for summary judgment because reasonable minds can come to but
one conclusion and that conclusion is not adverse to Queen City.
{¶30} During oral argument, I74 Wired asserted that Queen City is not owed
that installment because prior to the suit, I74 Wired offered to pay Queen City the
$1,950 and Queen City declined that offer and instead sued. However, “[a]n
12 OHIO FIRST DISTRICT COURT OF APPEALS
unaccepted settlement offer—like any unaccepted contract offer—is a legal nullity,
with no operative effect. * * * [T]he recipient’s rejection of an offer ‘leaves the matter
as if no offer had ever been made.’ ” Jones v. Sharefax Credit Union, Inc., 1st Dist.
Hamilton No. C-210260, 2022-Ohio-176, ¶ 16, quoting Campbell-Ewald Co. v. Gomez,
577 U.S. 153, 162, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016), quoting Minneapolis & St.
Louis Ry. Co. v. Columbus Rolling Mill, 119 U.S. 149, 151, 7 S.Ct. 168, 30 L.Ed. 376
(1886). There is simply no room for I74 Wired to argue that Queen City abandoned
its claim to that $1,950 because it rejected I74 Wired’s settlement offer and instead
chose to sue.
{¶31} Next, we address the payment of amounts owed under the contract
during the 30-day period after I74 Wired tendered the notice to terminate. As stated
previously, once I74 Wired tendered written notice to terminate the contract to Queen
City on June 20, 2021, the contract was set to terminate 30 days later on July 20.
During that 30-day period, the provisions of the contract remained in force. The
contract provides for a $3,900 monthly fee, paid in two installments of $1,950 due on
the 15th and 31st of each month, with a 2 percent daily fee for any late payment, in
exchange for cleaning services. Construing the contract as a whole, the parties’ intent
in the termination clause was for both get the benefit of their bargain for 30 days after
one party decides to terminate the agreement. Thus, during the 30-day notice period,
Queen City was still obligated to provide cleaning services and I74 Wired was still
obligated to pay for those services.
{¶32} I74 Wired argues that it does not owe payment for the 30-day notice
period because the contract contains a satisfaction clause. The contract provides,
“[a]ny compensation will be subject to [I74 Wired] inspecting the completed services,
13 OHIO FIRST DISTRICT COURT OF APPEALS
of [Queen City]. If any of the services performed by [Queen City] is incomplete, [I74
Wired] shall have the right to notify [Queen City], at which [sic] [Queen City] will
correct the matter promptly.” This clause governs incomplete work, not unsatisfactory
work, and does not permit I74 Wired to withhold payment but rather allows I74 Wired
to inspect Queen City’s work prior to payment. If Queen City’s work is incomplete, I74
Wired may complain prior to payment and Queen City is obligated to promptly resolve
those complaints. If Queen City fails to do so, I74 Wired may sue for breach of
contract, but there is no contractual right for I74 Wired to withhold payment.
{¶33} I74 Wired also argues that the contract cannot be read to require it have
Queen City continue to clean the building during the termination period because a
manifest absurdity would result as no reasonable commercial property owner would
allow a vendor that it believes to have destroyed tenant property to continue working
on its premises. A court will give common words “their ordinary meaning unless
manifest absurdity results.” Foster Wheeler, 78 Ohio St.3d at 361, 678 N.E.2d 519,
quoting Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1976),
paragraph two of the syllabus. No manifest absurdity exists in this scenario because
the contract does not require I74 Wired to allow Queen City to enter the premises to
clean. I74 Wired was free to bar Queen City from entering the building and refuse
further cleaning services to protect tenant property. But the contract that the parties
agreed to nevertheless requires I74 Wired to pay Queen City the contract rate during
the termination period and has no exception for refusing Queen City’s services.
{¶34} In sum, the trial court correctly granted summary judgment in favor of
I74 Wired that it did not breach the contract when it served written notice to
terminate. However, the trial court erred in granting summary judgment in favor of
14 OHIO FIRST DISTRICT COURT OF APPEALS
I74 Wired finding that it did not breach the contract by failing to pay either the $1,950
installment owed at the time of the notice of termination, or the amounts owed during
the 30-day notice period.
C. Queen City’s other claims
{¶35} The trial court also granted summary judgment in favor of I74 Wired
and dismissed Queen City’s other claims for breach of an implied-in-fact contract,
unjust enrichment, and fraud.
{¶36} Queen City’s claims for breach of an implied-in-fact contract and
unjust enrichment are both foreclosed by the existence of an express contract. There
is no dispute that the parties entered into an express contract when they both agreed
to the written contract and that contract contains an integration clause. Because the
parties expressed the terms of their agreement in writing, there is no implied contract.
See N. Columbiana Cty. Community Hosp. Assn. v. Ohio Dept. of Youth Servs.,
38 Ohio St.3d 102, 104, 526 N.E.2d 802 (1988), quoting Linn v. E. C. Ross & Co.,
10 Ohio 412, 414 (1841). Similarly, “[i]t 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[.]” Lehigh Gas-Ohio, LLC v. Cincy Oil
Queen City, LLC, 2016-Ohio-4611, 66 N.E.3d 1226, ¶ 24 (1st Dist.), quoting Ryan v.
Rival Mfg. Co., 1st Dist. Hamilton No. C-810032, 1981 Ohio App. LEXIS 14729
(Dec. 16, 1981). Thus, the trial court properly granted summary judgment against
Queen City on its breach-of-implied-in-fact-contract and unjust-enrichment claims.
{¶37} Queen City’s fraud claim is a recapitulation of its breach-of-contract
claim, seeking recovery for the same economic loss contemplated by the contract, but
recasting I74 Wired’s termination of the contract as fraudulently breaching the
15 OHIO FIRST DISTRICT COURT OF APPEALS
contract, which is not a recognized tort in Ohio. Gator Dev. Corp. v. VHH, Ltd., 1st
Dist. Hamilton No. C-080193, 2009-Ohio-1802, ¶ 18, citing Ketcham v. Miller,
104 Ohio St. 372, 372, 136 N.E. 145 (1922), and Textron Fin. Corp. v. Nationwide Mut.
Ins. Co., 115 Ohio App.3d 137, 151-154, 684 N.E.2d 1261 (1996). Consequently, the
trial court properly granted summary judgment against Queen City on its fraud claim.
Conclusion
{¶38} In conclusion, we overrule the first assignment of error and affirm the
trial court’s implicit denial of Queen City’s motion to compel discovery and its denial
of the motion for a continuance under Civ.R. 56(F). We overrule in part and sustain
in part the second assignment of error. We affirm the portion of trial court’s judgment
granting summary judgment in favor of I74 Wired with respect to the issue of whether
I74 Wired properly terminated the contract. We reverse the portion of the trial court’s
judgment granting summary judgment that I74 Wired did not breach the contract by
refusing to pay the first $1,950 installment owed at the time of termination and that
I74 Wired did not breach the contract by refusing to pay the amounts owed under the
contract during the 30-day notice period. We affirm the trial court’s judgment
dismissing Queen City’s claims for breach of an implied-in-fact contract, unjust
enrichment, and fraud. We remand the cause to the trial court for further proceedings
on the remaining claims.
Judgment affirmed in part, reversed in part, and cause remanded.
ZAYAS, P.J., and CROUSE, J., concur.
Please note: The court has recorded its entry on the date of the release of this opinion.