[Cite as Extendicare Health Servs., Inc. v. Dunkerton, 2017-Ohio-427.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY, OHIO 

 EXTENDICARE HEALTH SERVICES, 

INC., d.b.a. MAPLEWOOD CARE 

CENTRE, 

: 

: 

O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2015-P-0004

 - vs - : 

HERBERT DUNKERTON, : 

 Defendant, : 

MICHAEL DUNKERTON, : 

 Defendant-Appellant. : 

Civil Appeal from the Portage County Court of Common Pleas, Case No. 2014 CV 

01161. 

Judgment: Reversed and judgment entered for appellant. 

Sara M. Donnersback and Matthew G. Burg, Weltman, Weinberg & Reis Co., L.P.A., 

323 West Lakeside Avenue, Suite 200, Cleveland, OH 44113-1099 (For PlaintiffAppellee). 

Terry G.P. Kane, Kane & Kane, 111 East Main Street, Suite B, P.O. Box 167, 

Ravenna, OH 44266 and Timothy R. Thomas, 402 South Chestnut Street, Ravenna, 

OH 44266 (For Defendant-Appellant). 

THOMAS R. WRIGHT, J. 

{¶1} Appellant, Michael Dunkerton, appeals the trial court’s decision holding 

him responsible for $25,228.43 in nursing home expenses incurred for the care of his 

father, Herbert Dunkerton. For the following reasons, we reverse. 
2 

{¶2} Herbert broke his leg in 2010 and was initially transferred to the 

Woodlands nursing home. His Medicare coverage was terminated, so appellant had 

his father transferred to appellee’s facility, Maplewood Care Centre in May of 2010. On 

June 3, 2010, appellant executed Herbert’s admission agreement with Maplewood as 

his “Legal Representative for Financial Decisions.” 

{¶3} The admissions officer advised appellant that she would seek 

reinstatement of Herbert’s Medicare coverage. This reinstatement was eventually 

denied. Despite repeated requests by Maplewood, neither appellant nor his wife, 

Andrea Dunkerton, applied for Medicaid on Herbert’s behalf. 

{¶4} Appellant also executed a payor confirmation agreement with Maplewood 

on July 20, 2010 as his father’s “Legal Representative for Financial Decisions.” This 

agreement indicated that Herbert owned a home valued at $75,000 and that he had 

monthly income of $1,800 from social security and a pension. It also stated that 

Herbert would be subject to the private pay rates and that the current amount due was 

$6,510. 

{¶5} Appellant paid appellee $3,225 from Herbert’s funds when he was 

admitted in May of 2010. Appellant paid appellee another $4,000 in July of 2010 at 

about the same time as the execution of the payor confirmation. Appellee discharged 

Herbert in October 2010 for nonpayment. 

{¶6} Appellee, Extendicare Health Services dba Maplewood Care Centre, filed 

suit against Herbert and Michael Dunkerton. Appellee secured a default judgment 

against Herbert in 2011. Appellee filed its amended complaint in 2014 against Michael 

alleging breach of contract and the fraudulent conveyance of Herbert’s funds. The 

case proceeded to bench trial before a magistrate, who recommended judgment in 

appellee’s favor. Appellant filed objections to the magistrate’s decision and 
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supplemental objections to the magistrate’s decision, which were overruled. The trial 

court agreed with the magistrate and entered judgment for appellee in the amount of 

$25,228.43. Appellant filed a motion for reconsideration, which was denied. The trial 

court held that appellant breached his duty as his father’s attorney-in-fact when he 

refused to apply for Medicaid for his father. 

{¶7} Appellant asserts three assignments of error, which we collectively 

address on appeal: 

{¶8} “The trial court erred to the prejudice of defendant-appellant Michael 

Dunkerton in finding that he violated his contractual duties as a financial representative 

of his father in the management of his father’s financial resources for the payment of 

services provided to the father as a resident of appellee Maplewood Care Center. 

{¶9} “The trial court erred to the prejudice of defendant-appellant Michael 

Dunkerton in granting appellee judgment in the amount of $25,228.43. 

{¶10} “The trial court erred to the prejudice of defendant-appellant in finding him 

personally liable for the payment of $25,228.43 for services provided to his father while 

a resident of appellee Maplewood Care Center.” 

{¶11} To establish a claim for breach of contract, a plaintiff must prove the 

existence of a contract, performance by the plaintiff, breach by the defendant, and 

resulting damages to the plaintiff. Powell v. Grant Med. Ctr., 148 Ohio App.3d 1, 2002-

Ohio-443, ¶27, 771 N.E.2d 874 (10th Dist.2000). If a written agreement is clear and 

unambiguous, its interpretation is a matter of law, which we review de novo. Inland 

Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc., 15 Ohio St.3d 321, 

322, 474 N.E.2d 271 (1984); Nationwide Mut. Ins. Co. v. Godwin, 11th Dist. Lake No. 

2005-L-183, 2006-Ohio-4167, at ¶27. 
4 

{¶12} Appellant argues that the trial court’s decision erroneously holds him 

responsible as his father’s surety, which is contrary to the agreements. He also asserts 

that the agreements do not authorize the imposition of personal liability on appellant as 

Herbert’s attorney-in-fact. We agree. 

{¶13} Appellant executed the two contractual agreements as his father’s 

attorney-in-fact. Appellant signed the admission agreement as Herbert’s “Legal 

Representative for Financial Decisions” upon his father’s admission into appellee’s 

facility. The last paragraph of this twelve-page agreement states in part on the 

signature page: 

{¶14} “By our signatures, we acknowledge that we have received, read, and 

executed this Admission Agreement * * *. EXCEPT IN THE CASE OF A 

FINANCIALLY RESPONSIBLE SPOUSE, AND EXCEPT FOR THE LEGAL 

REPRESENTATIVE FOR FINANCIAL DECISION’S OBLIGATIONS UNDER THIS 

AGREEMENT, THE LEGAL REPRESENTATIVE IS AWARE THAT THE CENTER 

MAY NOT REQUIRE HIM/HER TO ASSUME PERSONAL FINANCIAL 

RESPONSIBILITY FOR THE RESIDENT’S CARE, UNLESS HE/SHE HAS 

OTHERWISE AGREED TO BE THE RESIDENT’S VOLUNTARY GUARANTOR.” 

(Emphasis in original.) 

{¶15} The fourth section of the admission agreement provides in part: 

“IV. Financial Agreement and Provisions

{¶16} “1. The Resident directs the designated legal representative to ensure that 

all payment obligations under this Agreement are met from the Resident’s assets and 

to cooperate in obtaining, where applicable, coverage through Medicaid if necessary to 

meet the Resident’s obligations under this Agreement.” 
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{¶17} The admission agreement does not include any language stating that 

appellant is Herbert’s guarantor or surety. In fact, it clearly provides that appellant, who 

signed as Herbert’s legal representative for financial decisions, is not personally 

responsible for the costs associated with Herbert’s care. 

{¶18} Appellant also signed the payor confirmation agreement as his father’s 

attorney-in-fact in July of 2010. Appellant listed Herbert’s income and assets on the 

first page of this agreement, which included a checking account with no balance listed, 

real estate listed at a value of $75,000, and monthly income in the amount of $1,800. 

Appellant identified himself as the individual who controlled Herbert’s monthly income 

and his checking account. The payor confirmation agreement states Herbert was 

subject to private pay: “The resident is not covered by any of the previous listed 

payor types or has indicated a Medicaid application will be submitted. Advance 

payment for the remainder of the current month and the following month are due upon 

admission. The amount due now is $6,510.00.” (Emphasis in original.) It also states: 

“The resident or responsible party is responsible to notify the Center 

Administrator when private funds are depleting so that the Center can assist the 

resident/responsible party with identifying other financial arrangements. It 

should be noted, however, that the obligations for payment sources always 

remain with the resident or responsible party.” (Emphasis in original.) 

{¶19} Thus, as appellant contends, there is likewise no language in the payor 

confirmation agreement making appellant Herbert’s guarantor. Instead, it also contains 

language to the contrary, i.e., that responsibility for payment remains with the resident 

or the responsible party. Appellant was neither. 

{¶20} At the commencement of trial, appellee’s counsel summarized the claims 

against appellant as breach of contract and the fraudulent conveyance of funds. 
6 

Appellant and his wife, Andrea, testified. Appellee’s administrator also testified as a 

rebuttal witness. 

{¶21} Appellant testified that Herbert entered appellee’s facility to secure therapy 

and upper body strengthening to enable him to use a wheelchair so that he could 

eventually return home and live on his own. 

{¶22} Appellant informed appellee’s representative that his father could not 

afford to pay the private pay rates at the time of his admission. Appellant explained 

that he chose appellee’s facility because they indicated that they would have Herbert’s 

Medicare coverage reinstated. This never occurred. Neither appellant nor his wife 

appealed the denial of Medicare coverage for Herbert’s stay at Maplewood. Michael 

assumed that Maplewood would have appealed. 

{¶23} Appellee’s admission officer repeatedly told Michael to apply for Medicaid 

for Herbert after Medicare refused to reinstate his coverage. Appellee’s administrator 

confirmed that a resident’s family must appeal a denial of coverage, and that Herbert 

was required to go on private pay status until appellant submitted his Medicaid 

application. The administrator also called appellant to follow up on the status of 

Herbert’s Medicaid application, but he never received a response. The administrator 

explained that once a resident is approved for Medicaid benefits, all of that resident’s 

income is paid directly to the state to offset the taxpayer dollars spent on his care and 

medical expenses. Appellant never submitted the requisite Medicaid application on his 

father’s behalf and never appealed the denial of his Medicare coverage for his stay and 

care at Maplewood. 

{¶24} Appellant confirmed that his father transferred the title of his home to him 

approximately one year before Herbert entered Maplewood. Half of this real property 

was already subject to a Medicaid lien as a result of nursing home care expenses 
7 

incurred by appellant’s mother before she died. Andrea testified that they never 

attempted to sell Herbert’s house because of this lien. On cross examination she 

denied knowing about Medicaid’s five-year look back period on the transfer of assets. 

She also denied understanding that an individual’s receipt of Medicaid benefits is 

based on his income and assets. 

{¶25} Appellant paid his father’s household expenses, utilities, and Andrea $200 

per month for assisting Herbert from his father’s monthly income during his stay at 

appellee’s facility. Andrea was not a licensed caregiver, but explained that she ran 

errands for Herbert, cooked for him, and scheduled and attended doctor’s 

appointments with him. Appellant confirmed that he received appellee’s monthly billing 

statements, but did not pay them. Instead, he chose to maintain his father’s residence 

since he believed he would eventually return home. No one else resided in the home. 

Appellant also spent his father’s income caring for his father’s pets and purchasing 

candy, food, and clothing to take to his father. Appellant and Andrea admitted that they 

benefitted from the large grocery store purchases that were paid for with Herbert’s 

income. Appellant also paid his personal credit card statement with his father’s funds 

and explained that he was paying himself back for the $4,000 credit card charge for his 

father’s care at Maplewood. 

{¶26} Appellee discharged Herbert in October of 2010 based on nonpayment. 

He spent approximately one week at his home until he was admitted into a VA facility, 

where he passed away in 2012. 

{¶27} Once it was clear that Herbert’s Medicare coverage would not be 

reinstated, appellant had an obligation, pursuant to his status as his father’s attorneyin-fact and signator to the agreements with appellee, to submit an application for 

Medicaid on Herbert’s behalf, to pay appellee’s bills from his father’s income and 
8 

assets, or to secure his father’s care elsewhere. He failed to do any of these and 

instead allowed his father to incur additional debt at appellee’s facility. Appellant’s 

failures constitute a breach of his obligations as his father’s attorney-in-fact. 

{¶28} Notwithstanding appellant’s breach of his obligations, the contractual 

agreements governing the parties’ relationship do not make appellant his father’s 

guarantor. Appellant signed the admission agreement and the payor confirmation as 

his father’s attorney-in-fact, and neither document provides that appellant was 

Herbert’s voluntary guarantor. Accordingly, the trial court’s conclusion finding appellant 

responsible for his father’s debt pursuant to these agreements is contrary to law. 

Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc., 15 Ohio St.3d 

321, 322, 477 N.E.2d 271 (1984); Nationwide Mut. Ins. Co. v. Godwin, 11th Dist. Lake 

No. 2005-L-183, 2006-Ohio-4167, at ¶27. 

{¶29} Further, R.C. 1337.092, “When attorney in fact is not personally liable on 

contract for debt of principal” states in part: “(A) If an attorney in fact enters into a 

contract in the representative capacity of the attorney in fact, if the contract is within the 

authority of the attorney in fact, and if the attorney in fact discloses in the contract that it 

is being entered into in the representative capacity of the attorney in fact, the attorney 

in fact is not personally liable on the contract, unless the contract otherwise specifies.” 

(Emphasis added.) 

{¶30} R.C. 1337.092(B) states in part: “An attorney in fact is not personally 

liable for a debt of the attorney in fact’s principal unless one or more of the following 

applies: * * * (3) The negligence of the attorney in fact gave rise to or resulted in the 

debt. * * * (4) An act of the attorney in fact that was beyond the attorney in fact’s 

authority gave rise to or resulted in the debt.” 
9 

{¶31} Here, appellee did not plead R.C. 1337.092 in its complaint nor did it raise 

the statute at trial. Appellee only pursued breach of contract and misappropriation 

claims. The trial court also never considered R.C. 1337.092 at trial, and neither party 

raises the same on appeal. Appellee’s choice not to employ R.C. 1337.092 and the 

exceptions to an attorney-in-fact’s liability in R.C. 1337.092(B)(1)-(5) as a basis for 

recovery precludes its application. Gilchrist v. Saxon Mortgage, 10th Dist. Franklin No. 

12AP-556, 2013-Ohio-949, ¶22. Due process requires notice and an opportunity to be 

heard at a meaningful time and in sufficient time to permit a party to defend the 

allegations against him. Bd. of Trustees of Columbia Twp. v. Albertson, 9th Dist. 

Lorain No. 01 CA007785, 2001 WL 1240135, *5 (Oct. 17, 2001), citing State v. 

Hochhausler, 76 Ohio St.3d 455, 459, 668 N.E.2d 457 (1996); W. Chester Twp. Bd. of 

Trustees v. Speedway Superamerica, L.L.C., 12th Dist. Butler No CA2006–05–104, 

2007-Ohio-2844, 2007 WL 1662242, ¶43. 

{¶32} Accordingly, appellant’s assignments of error have merit, and the 

judgment of the Portage County Court of Common Pleas is reversed and judgment is 

entered for appellant. 

CYNTHIA WESTCOTT RICE, P.J. 

COLLEEN MARY O’TOOLE, J., 

concur.