[Cite as Morton v. Murray, 2018-Ohio-5178.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 106759 

J. ALEX MORTON

PLAINTIFF-APPELLANT 

vs. 

W. CHRISTOPHER MURRAY, II, ET AL.

DEFENDANTS-APPELLEES 

 

JUDGMENT: 

AFFIRMED

 

Civil Appeal from the 

Cleveland Heights Municipal Court 

Case No. CVF 1600571 

BEFORE: Stewart, J., Kilbane, P.J., and McCormack, J. 

 

RELEASED AND JOURNALIZED: December 20, 2018 
FOR APPELLANT

J. Alex Morton, pro se 

5247 Wilson Mills Road, Suite 334 

Richmond Heights, OH 44143 

ATTORNEYS FOR APPELLEES

Michael C. O’Malley 

Cuyahoga County Prosecutor 

Mark R. Greenfield 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 

John M. McCarty 

14805 Detroit Avenue, Suite 500-3 

Lakewood, OH 44107 

 
MELODY J. STEWART, J.: 

{¶1} Plaintiff-appellant J. Alex Morton claimed that his legal work before the board of 

revision led to a reduction of real estate taxes for property owned by Nancy and Thomas Ross. 

The Rosses, however, had been delinquent in paying property taxes at the rate applicable before 

the reassessment, so Cuyahoga County Treasurer W. Christopher Murray obtained a tax lien on 

their property and then sold the tax lien to Lakeview Holding, L.L.C. Morton brought this suit 

against both the treasurer and Lakeview for unjust enrichment, seeking to recover his attorney fee 

from the “fund of money” created from the Rosses’ property tax reduction. 

{¶2} The court granted summary judgment to the treasurer because the treasurer could 

only credit tax overpayment to the person who overpaid the taxes, and Morton stipulated that he 

never paid any tax on the property. The court denied Morton’s motion for summary judgment 

against Lakeview and conducted a trial on the unjust enrichment claims. It then granted 

judgment to Lakeview because Morton did not work for Lakeview and did not confer a benefit 

upon it. The court also found that, with respect to Morton’s work in obtaining a reassessment on 

the property, he did not have any agreement to provide the Rosses with legal services. Morton 

appeals. 

 I. Summary Judgment Against the Treasurer 

{¶3} Morton’s first assignment of error complains that the court erred by granting 

summary judgment to the treasurer. He maintains that the court ignored the fact that his claims 

against the treasurer were not based upon quasi-contract, but based on the fact that the treasurer 

was in possession of overpaid taxes on the property, making the treasurer a person needed for 

just adjudication of his unjust enrichment claim against Lakeview. 
{¶4} Contrary to Morton’s assertions, his first amended complaint states a claim of unjust 

enrichment against the treasurer — he styled the complaint as “First Amended Complaint for 

Unjust Enrichment.” He also alleged that the treasurer was in possession of approximately 

$12,000 that had been “created due to the legal services of Morton,” that the treasurer “has no 

legal right to the entire Fund; and has refused Morton’s request to distribute the portion of such 

Fund to Morton in an amount equal to the reasonable attorney’s [sic] fees of Morton for legal 

services rendered to create such Fund.” Morton alleged that his legal services had created a fund 

of money that benefitted some persons, “however the Treasurer is not one of such persons.” The 

amended complaint then lists the elements of unjust enrichment and that, because those elements 

of unjust enrichment existed, Morton was entitled to recover his legal fee “under the theory of 

quantum meruit.” 
{¶5} Putting aside Morton’s misapprehension that quantum meruit is a form of damages 

for unjust enrichment, see United States Health Practices v. Blake, 10th Dist. Franklin No. 

00AP-1002, 2001 Ohio App. LEXIS 1291, 5 (Mar. 22, 2001) (although similar claims, quantum 

meruit and unjust enrichment differ in the way their damages are calculated), the treasurer argues 

that the county is immune from assertions that rely on equity. We agree; the law is clear that a 

county, like a municipality, cannot be held liable for unjust enrichment.1

 See NaphCare, Inc. v. 

Cty. Council of Summit Cty. Ohio, 9th District Summit No. 24906, 2010-Ohio-4458, ¶ 23. See 

also Alpha Plaza Invests., Ltd. v. Cleveland, 8th Dist. Cuyahoga No. 105419, 2018-Ohio-486, ¶ 6 

(equitable claims of promissory estoppel, unjust enrichment, and quantum meruit are not 

actionable against a municipality). Morton did not further amend his complaint to assert any 

other claim against the treasurer, so he is confined to the unjust enrichment claim he raised in his 

complaint. His complaint cannot be enlarged absent additional amendment. See Flower v. 

Brunswick City School Dist. Bd. of Edn., 2015-Ohio-2620, 34 N.E.3d 973, ¶ 35 (9th Dist.) 

(appellate review limited by “narrow way” in which plaintiff framed a complaint). 

 

1

Even though the county treasurer is an individual, he acts as the county’s representative and was sued in his official 

capacity, so an action naming the treasurer is akin to suing the county. 
{¶6} Even if the treasurer could be held liable for unjust enrichment, the court did not err 

by finding that Morton had no right to any overpayment of real estate taxes because the credit for 

overpayment belongs to the person who made the payment. See R.C. 5715.22 (“If after such 

credit has been made, there remains any balance of such overpayment, or if there are no taxes, 

assessments, or charges due from such person, upon application of the person overpaying such 

taxes the auditor shall forthwith draw a warrant on the county treasurer in favor of the person 

who has made such overpayment for the amount of such balance.”). Morton stipulated that he 

“has not made a payment to the Defendant Treasurer of/for the real estate taxes” pertaining to the 

subject property. As a matter of law, that stipulation bars his claim that he had any right to an 

overpayment of real estate taxes. The court did not err by granting summary judgment to the 

treasurer. See Civ.R. 56(C). 

 II. Judgment in Favor of Lakeview 

{¶7} Morton next argues that the court erred by finding that Lakeview was not unjustly 

enriched by his legal services and entering judgment against him.2

 He claims, alternatively, that 

the court erred by refusing to grant his motion for a directed verdict at the close of his opening 

statement and that the court erred by rendering final judgment for Lakeview after all of the 

evidence had been heard. 

 

2

 Morton also argues that the court erred by refusing to grant his motion for summary judgment against Lakeview, 

but that motion was rendered moot by the subsequent judgment, issued after a trial, in favor of Lakeview. 

Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150, 642 N.E.2d 615 (1994), syllabus (“Any error by a trial court 

in denying a motion for summary judgment is rendered moot or harmless if a subsequent trial on the same issues 

raised in the motion demonstrates that there were genuine issues of material fact supporting a judgment in favor of 

the party against whom the motion was made”). 
{¶8} “A motion for a directed verdict may be on the opening statement of the 

opponent[.]” Civ.R. 50(A)(1). Similar to a Civ.R. 56 motion for summary judgment, a motion 

for a directed verdict can only be granted if, after construing the evidence most favorably to the 

nonmoving party, reasonable minds could come to but one conclusion upon the evidence 

submitted. See Civ.R. 50(A)(4). Obviously, a motion for a directed verdict made at the close 

of an opponent’s opening statement will not include any evidence because opening statements of 

counsel are not considered evidence. L&N Partnership v. Lakeside Forest Assn., 183 Ohio 

App.3d 125, 2009-Ohio-2987, 916 N.E.2d 500, ¶ 38 (10th Dist.). “Only if the opening 

statement shows that a party is completely unable to sustain a cause of action should the court 

take the case away from the jury by directing a verdict.” Parrish v. Jones, 138 Ohio St.3d 23, 

2013-Ohio-5224, 3 N.E.3d 155, ¶ 32. The court should “‘exercise great caution’” when 

deciding to grant a motion for a directed verdict on the opening statement of counsel. Id., at 

paragraph one of the syllabus, quoting Brinkmoeller v. Wilson, 41 Ohio St.2d 223, 325 N.E.2d 

233 (1975), syllabus. 

{¶9} Morton claimed that he was entitled to a directed verdict after opening statements 

(Lakeview told the court that it had “no intent to present today” and did not make an opening 

statement) because he believed he had established a prima facie case for liability in his motion 

for summary judgment, especially since Lakeview did not oppose his motion for summary 

judgment. He told the court that “I think I’m entitled to a directed verdict, at this point, based on 

all of the evidence presented on the Motion for Summary Judgment.” 
{¶10} Although no evidence will have been presented during opening statements, a trial 

judge may, but does not have to, consider the pleadings when ruling on a motion for a directed 

verdict made after opening statements. Parrish at paragraph two of the syllabus. A motion for 

summary judgment is not a pleading. See Civ.R. 7(A); Premium Bev. Supply, Ltd. v. TBK Prod. 

Works, Inc., 10th Dist. Franklin No. 15AP-495, 2016-Ohio-174, ¶ 12. The trial court could not 

consider Morton’s motion for summary judgment when ruling on the motion for a directed 

verdict. It follows that there was no basis whatsoever for Morton’s motion for a directed verdict 

made at the close of opening statement and the court did not err by denying it and continuing 

with the trial. 

{¶11} Finally, we find no error in the court’s decision to grant judgment to Lakeview 

because Morton had no viable claim of unjust enrichment. The court found as a matter of fact 

that “the taxes for ‘The Property’ were not paid by the property owners (the Rosses) or by anyone 

else for tax year 2011.” As with the claims against the treasurer, any overpayment of taxes must 

be credited to the person who made the overpayment. Morton did not make any payment on the 

taxes, so he had no right to collect any overpayment. In addition, Morton acknowledged in 

cross-examination that “[i]f [the Rosses] have not paid the taxes, then I would have to get [his 

attorney fee] from them.” 
{¶12} The court identified a second basis for granting judgment to Lakeview — that 

Morton had no equitable right to claim against the overpayment in order to recoup his legal fee 

because he failed to establish that he had any attorney-client relationship with the Rosses. 

Although Morton and the treasurer stipulated that “the Rosses retained Plaintiff as legal counsel 

for the purpose of filing a tax valuation complaint * * *,” Lakeview did not join that stipulation 

and was not bound by it. And Morton’s trial testimony contradicted his assertion that he had 

been retained by the Rosses — when asked if had a retainer agreement with the Rosses, Morton 

replied, “No, I didn’t.” He claimed that he dealt with the Rosses through a third person who 

“said he was their property manager.” Morton stated that he and the property manager had “an 

agreement” and conceded that he never had a conversation with the Rosses in which they agreed 

to Morton’s representation. By conceding that he had not been retained by the Rosses, Morton 

failed to show the existence of an attorney-client relationship that would entitle him to make an 

equitable claim for his unpaid attorney fee. 

{¶13} Judgment affirmed. 

It is ordered that appellees recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cleveland Heights 

Municipal Court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

______________________________________________ 

MELODY J. STEWART, JUDGE 
MARY EILEEN KILBANE, P.J., and 

TIM McCORMACK, J., CONCUR