[Cite as Timmons v. Hull, 2024-Ohio-178.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
JAMES TIMMONS, ET AL. : : Appellees : C.A. No. 2023-CA-23 : v. : Trial Court Case No. 19-CV-0297 : JAMES HULL, ET AL. : (Civil Appeal from Common Pleas : Court) Appellants : :
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OPINION
Rendered on January 19, 2024
RYAN L. THOMAS, Attorney for Appellants
EDWARD A. FRIZZELL, Attorney for Appellees
.............
LEWIS, J.
{¶ 1} Defendants-Appellants James Hull and Tuara Hull (collectively “Defendants”)
appeal from a judgment of the Clark County Court of Common Pleas, which granted
summary judgment in favor of Plaintiffs-Appellees James Timmons and Larry Timmons
(collectively “Plaintiffs”) on their unjust enrichment claim and awarded damages. For the -2-
following reasons, we will reverse the judgment of the trial court and remand for further
proceedings.
I. Procedural History and Facts
{¶ 2} Plaintiffs, who are brothers, were equal partners in a farming business that
included buying and selling livestock. As part of that business, Plaintiffs sold cattle to
James Hull between approximately 2009 and 2017 based on a handshake agreement.
On June 10, 2019, Plaintiffs filed a civil action in the Clark County Court of Common Pleas
against the Defendants alleging breach of contract, unjust enrichment, and fraud relating
to the buying and selling of cattle during seven separate transactions that occurred over
the course of approximately one year.
{¶ 3} According to Plaintiffs, it was the practice of the parties for James Hull to
make payment for the cattle immediately upon delivery of the cattle to James Hull or within
30 days of delivery. James Hull was a middleman who purchased heifers from Plaintiffs
and resold the cows to other dairy farmers or at market. Around 2016, James Hull
purchased cattle from Plaintiffs on seven separate occasions in which he wrote checks
for each transaction but requested Plaintiffs not cash the checks due to having insufficient
funds. All the checks were written on a joint checking account in the name of James and
Tuara Hull, as husband and wife. Plaintiffs alleged that Defendants never made good
on the seven checks and therefore owed them $128,950, the aggregate amount of all the
checks. Although Plaintiffs attempted to collect the amount, Defendants denied that they
owed any payments to Plaintiffs and refused to pay, which led to the filing of the complaint.
{¶ 4} According to the Defendants’ answer to the complaint, James Hull admitted -3-
that he and Plaintiffs had engaged in the sale and purchase of cattle for several years.
However, Defendants denied that they owed Plaintiffs any money as all the transactions
had been paid in full, either by James Hull or a third party for the benefit of the Plaintiffs,
after evaluating the cattle.
{¶ 5} On February 26, 2021, Plaintiffs filed a motion for leave to file a motion for
summary judgment. Although the trial court sustained Plaintiffs’ motion for leave to file
a motion for summary judgment, additional discovery and depositions were completed
before Plaintiffs ultimately filed their motion.
{¶ 6} On November 12, 2021, Plaintiffs filed a motion for summary judgment as to
all claims. Following several joint continuances and additional discovery and
depositions, Defendants filed a response to the motion for summary judgment. In their
response, Defendants asserted that there was an issue of material fact in dispute and,
further, they requested that Tuara Hull be dismissed from the case as she had no
involvement in the purchasing and selling of any cattle.
{¶ 7} On February 4, 2022, the trial court granted Plaintiffs’ motion for summary
judgment solely on the claim of unjust enrichment against both James and Tuara Hull and
ordered a hearing to determine damages. Following a damages hearing and closing
arguments, the trial court issued a judgment that awarded damages to Plaintiffs in the
amount of $120,150.00. The remaining two claims for fraud and breach of contract were
voluntarily dismissed by Plaintiffs on April 21, 2023.
{¶ 8} Defendants filed a timely notice of appeal and raise the following two
assignments of error relating to the unjust enrichment claim: -4-
1. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS
IN GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
FOR UNJUST ENRICHMENT BY WEIGHING THE EVIDENCE TO
RESOLVE QUESTIONS OF FACT IN FAVOR OF THE MOVING
PARTY.
2. PLAINTIFFS FAILED TO SATISFY THE NECESSARY ELEMENTS
FOR THEIR CLAIM OF UNJUST ENRICHMENT AGAINST
DEFENDANT TUARA HULL AND THE TRIAL COURT ERRED TO THE
PREJUDICE OF DEFENDANT TUARA HULL BY GRANTING
SUMMARY JUDGMENT AGAINST HER.
{¶ 9} In their first assignment of error, Defendants argue that the trial court erred
in granting summary judgment against them for unjust enrichment when there remained
a genuine issue of material fact. We agree.
II. Summary Judgment Standard
{¶ 10} Appellate review of a trial court's ruling granting or denying a party’s motion
for summary judgment is de novo. Rhododendron Holdings, LLC v. Harris, 2021-Ohio-
147, 166 N.E.3d 725, ¶ 22 (2d Dist.), citing Schroeder v. Henness, 2d Dist. Miami No.
2012-CA-18, 2013-Ohio-2767, ¶ 42. De novo review requires an appellate court to apply
the same standard that the trial court should have used without deference to the trial
court’s findings. Riverside v. State, 2016-Ohio-2881, 64 N.E.3d 504, ¶ 21 (2d Dist.).
{¶ 11} Civ.R. 56(C) provides for summary judgment where: “the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of -5-
evidence, and written stipulations of fact, if any, timely filed in the action, show that there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” “Summary judgment will be granted only when there
remains no genuine issue of material fact and, when construing the evidence most
strongly in favor of the nonmoving party, reasonable minds can only conclude that the
moving party is entitled to judgment as a matter of law.” Byrd v. Smith, 110 Ohio St.3d
24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, citing Civ.R. 56(C). “Even the inferences to
be drawn from the underlying facts contained in the affidavits and depositions must be
construed in the nonmoving party's favor.” Turner v. Turner, 67 Ohio St.3d 337, 341,
617 N.E.2d 1123 (1993), citing Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 433,
424 N.E.2d 311 (1981).
{¶ 12} “The moving party carries the initial burden of affirmatively demonstrating
that no genuine issue of material fact remains to be litigated.” McAlpine v. McCloud,
2021-Ohio-2430, 175 N.E.3d 948, ¶ 11 (2d Dist.), citing Mitseff v. Wheeler, 38 Ohio St.3d
112, 115, 526 N.E.2d 798 (1988). “Once the moving party has satisfied its burden of
identifying those portions of the record that demonstrate the absence of a genuine issue
of material fact, the nonmoving party bears a reciprocal burden to set forth specific facts
showing a genuine issue for trial.” Shaeffer v. FC Industries Inc., 2d Dist. Montgomery
No. 29758, 2023-Ohio-3732, ¶ 15, citing Dresher v. Burt, 75 Ohio St.3d 280, 293, 662
N.E.2d 264 (1996). “However, when a motion for summary judgment is made and
supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere
allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. -6-
56, must set forth specific facts showing the existence of a genuine triable issue.”
(Citations omitted.) Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385, 667 N.E.2d 1197
(1996). “If no genuine issue of material fact exists, summary judgment must be awarded
as a matter of law.” Dayton v. Parson, 2023-Ohio-1509, 213 N.E.3d 1212, ¶ 6 (2d Dist.).
{¶ 13} “In a summary judgment review, the court may not weigh the proof or
choose among reasonable inferences, and the court is limited to examining the evidence
in the light most favorable to the non-moving party.” Coterel v. Reed, 2016-Ohio-7411,
72 N.E.3d 1159, ¶ 12 (2d Dist.), citing Dupler v. Mansfield Journal Co., Inc., 64 Ohio St.2d
116, 121, 413 N.E.2d 1187 (1980). “The purpose of summary judgment is not to try
issues of fact, but rather to determine whether triable issues of fact exist.” (Citation
omitted.) McGee v. Goodyear Atomic Corp., 103 Ohio App.3d 236, 242-243, 659 N.E.2d
317 (4th Dist.1995). Significantly, “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Byrd at ¶ 12, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[B]ecause summary judgment is a procedural
device to terminate litigation, it must be awarded with caution. Doubts must be resolved
in favor of the non-moving party.” Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 359, 604
N.E.2d 138 (1992), citing Osborne v. Lyles, 63 Ohio St.3d 326, 333, 587 N.E.2d 825
(1992).
III. Unjust Enrichment
{¶ 14} “Unjust enrichment occurs when a person ‘has and retains money or
benefits which in justice and equity belong to another[.]’ ” Johnson v. Microsoft Corp., -7-
106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 20, quoting Hummel v. Hummel,
133 Ohio St. 520, 528, 14 N.E.2d 923 (1938). “The elements of unjust enrichment
include: 1) a benefit conferred by a plaintiff upon a defendant; 2) knowledge by the
defendant of the benefit; and 3) retention of the benefit by the defendant under
circumstances where it would be unjust to do so without payment.” (Citations omitted.)
Harco Industries, Inc. v. Elco Textron, Inc., 2d Dist. Montgomery No. 19698, 2003-Ohio-
2397, ¶ 14. “Unjust enrichment is an equitable claim based on a contract implied in law,
* * * the purpose of which ‘is not to compensate the plaintiff for any loss or damage
suffered by him but to compensate him for the benefit he has conferred on the
defendant.’ ” (Citation omitted.) Bunta v. Superior VacuPress, L.L.C., 171 Ohio St.3d
464, 2022-Ohio-4363, 218 N.E.3d 838, ¶ 36, quoting Hughes v. Oberholtzer, 162 Ohio
St. 330, 335, 123 N.E.2d 393 (1954). Furthermore, “ ‘[a] person is not entitled to
compensation on the ground of unjust enrichment if he received from the other that which
it was agreed between them the other should give in return.’ ” Ullmann v. May, 147 Ohio
St. 468, 478, 72 N.E.2d 63 (1947), quoting Restatement of the Law, Restitution, Section
107, Comment a (1937).
IV. Analysis
{¶ 15} Plaintiffs asserted in their motion for summary judgment that for nearly
seven years, James Hull paid Plaintiffs in full upon delivery of the cattle, or no later than
30 days thereafter, by a personal check written on the joint account of Defendants.
However, in 2016, James Hull wrote seven checks that represented seven different
transactions for the sale of cattle. According to Plaintiffs, the seven checks at issue -8-
constituted negotiable instruments that represented an unconditional promise of James
Hull to pay Plaintiffs the amounts listed on the checks. At no time did Plaintiffs submit
the checks to a bank or attempt to cash them. However, Plaintiffs alleged that the checks
were not presented to a bank based on James Hull’s representation that, although he did
not have sufficient funds at the time he provided the checks, he would compensate them
later, and Plaintiffs did not want to pay any penalty fees if a check were rejected by the
bank for insufficient funds. Accordingly, Plaintiffs asserted that the amount listed on the
checks demonstrated the total debt owed and due. Plaintiffs pointed to James Hull’s
admissions that he received the cattle from Plaintiffs in the amounts identified on the
checks to demonstrate that he knowingly received the benefit of possession of the cattle.
Plaintiffs further submitted that Defendants made three subsequent payments via check
totaling $8,800 toward the amount due, which demonstrated that the Defendants admitted
to owing the debt.
{¶ 16} In opposing summary judgment as it related to the claim of unjust
enrichment, Defendants argued that there was a genuine issue of material fact. While
Defendants admitted that James Hull knowingly received cattle from Plaintiffs in the seven
transactions at issue, Defendants denied that Plaintiffs did not receive payment in full for
the actual value of the cattle, either through later payments or through third-party
payments. According to Defendants, James Hull purchased the cattle from James
Timmons and would provide a holder check at the time of receipt based on an agreed
course of conduct. Because Plaintiffs did not keep records of which cattle were provided
to James Hull, they requested a holder check to identify the number of cattle James Hull -9-
hauled away. After receiving the cattle, James Hull would check them at his own facilities
for any issues that might lessen their value. If all the cattle were determined to be
adequate, James Hull would tell James Timmons to cash the holder check. However, if
there were any problems with the heifers, James Hull would take the heifers to be sold at
third-party establishments where the highest prices could be obtained, and Plaintiffs
would receive payment directly from the third party for those heifers. Any difference in
the balance between the original check and the actual value of the heifers that James
Hull kept or sold to a third party would be addressed during the parties’ next transaction.
The original holder check would then be destroyed. Based on this course of conduct,
Defendants denied owing Plaintiffs any money.
{¶ 17} Defendants also argued in their response that Tuara Hull was not a proper
party and should be dismissed from the lawsuit. According to James Hull’s affidavit,
Tuara Hull was completely uninvolved in the cattle business. This was affirmed by
James Timmons’s deposition testimony stating that all transactions occurred between
him and James Hull and that he had not spoken with Tuara Hull since the 1980s. James
Timmons also testified during his deposition that he was “befuddled” that Tuara Hull’s
name was even on the complaint.
{¶ 18} The trial court granted summary judgment in favor of the Plaintiffs, finding
that:
the court is not persuaded that the seven (7) checks were merely “holder”
checks for purposes of documentation of the transaction and number of
cattle sold. First, it would have been quite easy, and more logical, to record -10-
the transactions, not with checks, but with a simple document. Second,
two of the checks, numbers 17113 and 17210, do not even identify the
number of cattle in the transaction. Third, it makes much more sense that
Defendants tendered the checks to Plaintiffs and told them to hold off
cashing or depositing them because Defendants did not have sufficient
funds to cover them at the time. Finally, Defendants have failed to produce
any checks they claim to have tendered to Plaintiffs bearing the adjusted
value. Defendants concede that the subsequent value determination
“almost always” resulted in at least some cattle being identified as having
blemishes/defects, and that when this occurred, the parties “would agree
upon the appropriate value and would exchange payment and/or settle up
during their next face-to-face interaction.” Defendants presented no
evidence that they exchanged payment or settled up on these seven (7)
transactions.
Summary Judgment Entry, February 4, 2022.
{¶ 19} The trial court then determined that the “only evidence before the Court”
was the seven checks presented by Plaintiffs, which constituted a promise by Defendants
to pay the specified sum on the checks. Accordingly, because the checks were never
deposited or cashed, Defendants were unjustly enriched “to some extent” and the trial
court granted summary judgment in favor of Plaintiffs.
{¶ 20} It is clear from the language in its decision that the trial court weighed the
credibility of the parties in support of their respective positions. “Credibility issues -11-
typically arise in summary judgment proceedings when one litigant's statement conflicts
with another litigant's statement over a fact to be proved. Since resolution of the factual
dispute will depend, at least in part, upon the credibility of the parties or their witnesses,
summary judgment in such a case is inappropriate.” Turner, 67 Ohio St.3d at 341, 617
N.E.2d 1123. Nevertheless, Plaintiffs argue that the trial court could weigh the credibility
of the parties because the Defendants did not submit any checks or bank records to
support their position and James Hull’s affidavit was self-serving. We do not agree.
{¶ 21} We have previously stated that “ ‘[a]n otherwise competent affidavit is not
invalid for the sole reason that it is executed by a party and submitted to aver facts in
opposition to summary judgment. To the contrary, a party's affidavit is competent to
create a genuine issue of material fact if made on personal knowledge.’ ” Smith v. CBert
Properties, LLC, 2d Dist. Montgomery No. 28058, 2019-Ohio-12, ¶ 11, quoting Fifth Third
Mtge. Co. v. Berman, 10th Dist. Franklin No. 11AP-637, 2012-Ohio-4411, ¶ 17.
Furthermore, Civ.R. 56 imposes no corroboration requirement. Id.
{¶ 22} James Hull’s affidavit averred that beginning in 2010, James Timmons
requested that he provide a holder check for the cattle he took back to his facilities for
inspection so that James Timmons would have proof that the cattle belonged to him until
they could settle-up on payment during their next transaction. If any of the cattle were
deemed undesirable after inspection, James Hull would inform James Timmons, who
would destroy the holder check, and James Hull would issue a replacement check based
on the actual value of the cattle. The undesirable cattle would be sold to a third-party
under James Timmons’s name and James Timmons would receive a check directly from -12-
the third-party. According to James Hull, the checks at issue were holder checks that
should have been destroyed and payment for those underlying transactions had been
completed based on subsequent transactions. James Hull denied ever telling James
Timmons that he did not have sufficient funds in his account to cover the cattle he
purchased and denied owing any money to the Plaintiffs.
{¶ 23} The deposition of James Timmons, as well as the affidavit of James Hull,
clearly reflect that all business transactions for cattle occurred solely between James
Timmons and James Hull via a handshake agreement. Both James Timmons and
James Hull indicated that the value of a heifer depended on various factors, such as how
close the heifer was to giving birth, whether the heifer had four good udders to produce
milk, and whether they were large, mature cows who had calved before. James
Timmons testified that James Hull determined what the value of the heifers was, not him.
He also testified that James Hull would take the cows back to Hull’s facilities to inspect
them, verify they were bred, and process them. While James Timmons claimed that Hull
paid him in full prior to James Hull’s evaluation of the cattle, James Hull claimed that he
provided a holder check as documentation for the amount of cattle he took, and the true
value of the heifers would be determined after he evaluated them. James Hull would
then provide replacement checks for the true value of the heifers and the holder checks
would be destroyed.
{¶ 24} Whether or not it would have been “quite easy, and more logical” for James
Timmons to keep documentation of all the cattle he sold in a simple document, James
Timmons testified in his deposition that he did not maintain business records to document -13-
either the number of cattle or which particular cattle were sold to James Hull. Instead,
he relied on the memo line of the checks James Hull wrote to identify how many of his
cattle were sold. Likewise, for any sales made to third parties, James Timmons would
receive payment directly from the third-party, and the check would list the tag numbers of
each of his cows sold in order for him to assess how many cows he sold. According to
James Timmons, only the checks from James Hull that had the number of cattle listed on
them in the memo line were direct transactions where James Hull gave him a check for
the cattle upon receipt. The other checks that did not list the number of cattle in the
memo line were still for cattle but were “replacement” checks rather than original purchase
checks. James Timmons admitted in his deposition and affidavit that he and James Hull
continued to do business together and engaged in more than just the seven transactions
at issue during the time frame in question. All of James Hull’s other checks were cashed
without issue. Marilyn Timmons, James Timmons’s wife and the bookkeeper for the
farm, testified in her deposition that when they received a “replacement” check, she would
destroy the original. However, she had no personal knowledge as to why they would
receive a replacement check. Notably, the basis for why James Timmons did not cash
the checks at issue was based on the allegation that James Hull told him not to cash them
due to having insufficient funds. James Hull, on the other hand, denied ever telling
James Timmons not to cash the checks due to insufficient funds.
{¶ 25} “In deciding whether an evidentiary conflict exists so as to preclude
summary judgment, a trial court must adhere to Civ.R. 56(C) and view the record in the
light most favorable to the party opposing the motion.” Turner, 67 Ohio St.3d at 341, 617 -14-
N.E.2d 1123, citing Kunkler v. Goodyear Tire & Rubber Co., 36 Ohio St.3d 135, 138, 522
N.E.2d 477 (1988). “The inferences to be drawn from the underlying facts contained in
the affidavits and other exhibits must be viewed in the light most favorable to the party
opposing the motion, and if when so viewed reasonable minds can come to differing
conclusions the motion should be overruled.” Hounshell, 67 Ohio St.2d at 433, 424
N.E.2d 311.
{¶ 26} In this case, because there was no written contract between the parties, the
only two individuals who had personal knowledge of the particulars of their handshake
agreement and the common practices between the parties were James Timmons and
James Hull. James Hull’s affidavit was based on personal knowledge regarding the
course of conduct between him and James Timmons. Even still, Defendants relied on
more than just James Hull’s affidavit in responding to summary judgment to raise a
genuine issue of material fact, most notably James Timmons’s deposition testimony. We
conclude that the trial court erred in its reasoning and ultimately in its decision that
summary judgment was appropriate. Construing James Hull’s affidavit and the evidence
in the record in a light most favorable to Defendants, we conclude that there remained a
genuine issue of material fact as to whether James Hull had made full payment for the
cattle he purchased pursuant to their oral contract. Thus, the trial court erred in granting
summary judgment on Plaintiffs’ unjust enrichment claim.
{¶ 27} Defendants’ first assignment of error is sustained.
V. Second Assignment of Error
{¶ 28} In their second assignment of error, Defendants contend that the trial court -15-
erred in granting summary judgment against Tuara Hull for unjust enrichment because
the Plaintiffs failed to establish the necessary elements of unjust enrichment as it pertains
specifically to her. Defendants request this Court reverse the trial court’s grant of
summary judgment and remand for further proceedings. Because we have concluded
that the trial court erred in granting summary judgment on Plaintiffs’ unjust enrichment
claim as detailed above, we need not address the merits of the second assignment of
error. App.R. 12(A)(1)(c).
{¶ 29} Defendants’ second assignment of error is overruled as moot.
VI. Conclusion
{¶ 30} Having sustained the first assignment of error, we reverse the judgment of
the trial court and remand this case to the trial court for further proceedings consistent
with this opinion.
WELBAUM, J. and HUFFMAN, J., concur.