Vill. at Greene v. Smith

2020 Ohio 4088

VILLAGE AT THE GREENE Plaintiff-Appellant v. ROBERT SMITH, et al. Defendant-Appellee

Appellate Case No. 28762

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

August 14, 2020

Trial Court Case No. 2019-CV-2258

(Civil Appeal from Common Pleas Court)

OPINION

ROBERT C. WIESENMAYER, Atty. Reg. No. 0007207, 15 Willipie Street, Suite 300, P.O. Box 299, Wapakoneta, Ohio 45895 Attorney for Plaintiff-Appellant

DAVID D. BRANNON, Atty. Reg. No. 0079755, 130 West Second Street, Suite 900, Dayton, Ohio 45402 Attorney for Defendant-Appellee

FROELICH, J.

{¶ 1} HCF of Crestview, Inc., doing business as Village at the Greene ("Village"), appeals from the trial court's entry of summary judgment in favor of Robert D. Smith ("Smith") as to the unpaid account of Smith's father, Robert Smith ("Father"), a Village resident. The judgment of the trial court will be affirmed.

Factual and Procedural Background

{¶ 2} Village is a licensed skilled nursing facility located in Dayton, Ohio.. Smith is the adult son of Father, who on June 22, 2018, granted Smith power of attorney to act on Father's behalf. Father "is considered blind and deaf." (Complaint, ¶ 2 and Exh. C.)

{¶ 3} On October 10, 2018, Smith executed a "Consent to Treat & Admission Agreement" in order for Father to become a resident at Village. (Complaint, Exh. A.) Smith signed the first page of that six-page contract on the line designated for "REPRESENTATIVE." Among the provisions of the form contract, supplied by Village, were the following:

EXHIBIT A

Potential for Discharge & Personal Guarantee of Payment The Facility [Village] cannot continue to provide services without payment. If the Facility is not paid timely and in full by someone, then it will seek to discharge the Resident.

Many people wish to make sure that care and services to their loved ones are not terminated when the resident does not have the resources to pay for care. This could happen, for example, if third party payment (Medicare, Medicaid, Insurance) were to be temporarily interrupted, delayed, or not approved. Thus, we provide the opportunity for Representatives to make payments on the Resident's behalf.

If the Representative would like to protect the Resident from being discharged for non-payment by agreeing to pay on their behalf if it becomes necessary, then he/she should initial "yes" below.

If the Representative does not wish to protect the Resident from being discharged for non-payment by agreeing to pay on their behalf if it becomes necessary, then he/she should initial "no" below.

BY INITIALING "YES", THE REPRESENTATIVE IS AGREEING TO VOLUNTARILY PERSONALLY GUARANTEE PAYMENT TO THE FACILITY, BE JOINTLY AND SEVERALLY LIABLE FOR ALL SERVICES AND SUPPLIES RECEIVED BY THE RESIDENT, AND TO MAKE ALL PAYMENTS WHEN THEY COME DUE. THE REPRESENTATIVE UNDERSTANDS THAT HE OR SHE IS NOT REQUIRED BY LAW OR THE FACILITY TO PERSONALLY GUARANTEE PAYMENT. THE REPRESENTATIVE AGREES THAT THIS GUARANTEE WILL CONTINUE UNTIL ALL FINANCIAL OBLIGATIONS TO THE FACILITY HAVE BEEN PAID IN FULL.

Please initial below.

Representative Yes __________ No __________

(Emphasis sic.) (Complaint, Exh. A, attached Exh. A.) Smith placed his initials on the "no" line.

{¶ 4} An additional exhibit to the contract, entitled "Representative Authority & Duties," provided that, as Father's representative, Smith "ha[d] legal access to and control over" Father's assets and resources (Complaint, Exh. A, attached Exh. C, ¶ C3), and "shall act in a fiduciary capacity on [Father's] behalf to satisfy [Father's] financial obligations" under the contract with Village. (Id. at ¶ C2.) The contract provided that Smith, as Father's representative, could be personally liable for failing to pay Father's debt to Village from Father's resources under two circumstances:

* * * if any of [Father's] Resources transfer by operation of law while [Father] still has outstanding debts to [Village] and such transfer causes [Father's] remaining resources to be insufficient to pay the debt in full, then the Representative [Smith] agrees to be personally responsible for the remaining debt to [Village]. You agree that if You [sic] have misrepresented the Representative's legal authority to control [Father's] Resources or to enter into this Agreement on behalf of [Father], or if the Representative has misrepresented any information to [Village] as part of the admission process, then the Representative agrees to be personally liable for all of [Father's] responsibilities in this Agreement.

(Id. at ¶ C3.)

{¶ 5} Exhibit C to the contract also obligated Smith, as Father's representative, to "cooperate fully in any application, redetermination or appeals process related to Medicaid eligibility." (Id. at ¶ C6.) It further provided:

The Representative agrees to pay from his/her own resources any unpaid charges due to the Facility as a result of the Representative's failure to cooperate in the Medicaid eligibility or redetermination process, or appeals thereto. "Failure to cooperate" shall include, but is not limited to, failing to provide documentation to the Medicaid agency in the time frames defined by law or as indicated by the relevant representative of the Medicaid agency.

(Id.)

{¶ 6} On May 16, 2019, Village filed a complaint naming as defendants Father and Smith, as "Power of Attorney for [Father]," and setting forth claims for breach of contract and unjust enrichment. The complaint alleged that Father's account at Village was $63,860.21 in arrears as of March 20, 2019. As to Smith, the complaint alleged a breach of the contract with Village due to Smith's "fail[ing] to apply [Father's] personal funds" to pay Father's charges at Village and "fail[ing] to comply with the requirements of Medicaid so as to qualify [Father] for benefits of the Medicaid program" that would pay Father's long-term care expenses at Village. (Complaint, ¶ 14.) The complaint further alleged that Smith was unjustly enriched because Father received the benefit of Village's care and services without paying for such. Village sought judgment against Father and Smith in the amount of $63,860.21 plus interest, attorney's fees, and costs.

{¶ 7} Father did not respond to the complaint. On August 30, 2019, Smith filed an answer generally denying liability and asserting various affirmative defenses.¹ Thereafter, Smith filed a motion for summary judgment pursuant to Civ.R. 56(C). He asserted that he had resigned as Father's attorney-in-fact on August 9, 2019.² (SeeDefendant Robert D. Smith's Motion for Summary Judgment ("MSJ"), p. 2 and Exh. A, Affidavit of Robert D. Smith ("Smith Affid."), ¶ 2; see also Exh. C (copy of "Resi[g]nation of General Durable Power of Attorney".) Consequently, Smith maintained that he remained in this action only "in his own individual capacity" and that he bore no personal responsibility for Father's alleged indebtedness to Village. He also claimed that dismissal was warranted because Village had failed to effect service on Father, a "necessary party."

{¶ 8} On March 5, 2020, the trial court issued a decision granting Smith's motion for summary judgment. That decision indicated that it was "a final appealable order, and there is not just cause for delay for purposes of Civ.R. 54." Additionally, on March 18, 2020, the court entered default judgment against Father.

{¶ 9} Village filed a timely appeal from the judgment in Smith's favor, identifying these assignments of error:

1) The Trial Court erred when it found that [Smith] was not a party to the Contract, because [Smith] signed the Agreement as a Representative of [Father], and noted he did not want to be personally liable.

2) The Trial Court erred when it state[d:] "While this alleged failure of [Smith] (by failing to use [Father]'s resources to pay the expenses and failing to comply with the requirements of Medicaid) may be a breach of [Smith]'s obligations to [Father as] his father's attorney-in-fact, it does not create personal liability to [Village]."

3) The Trial Court erred by granting [Smith] Summary Judgment as to the claim for breach of contract based upon the evidence presented to the Trial Court.

(Parenthetical sic.)

{¶ 10} Despite setting forth those three assignments of error, Smith's appellate brief actually addresses only this single issue:

It [wa]s error for the Trial Court to deny Village at the Greene the right to the enforcement of the terms and obligations required of the Representative on page 4 (Exhibit C) of the Admission Agreement, which are expressly included to overcome the limitations existing in the inability of * * * Village at the Greene to enforce the fiduciary powers in the Resident's Power of Attorney granted to the Agent, who is also the Representative. The law of agency applies to the enforcement of the Power of Attorney while the law of contract applies to the enforcement of the Admission Agreement.³

Standard of Review

{¶ 11} We review the trial court's ruling on a motion for summary judgment de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42. De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence, without deference to the trial court, to determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.

{¶ 12} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds, after construing the evidence most strongly infavor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstrating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798...