[Cite as Clifton v. Johnson, 2016-Ohio-8120.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

PICKAWAY COUNTY 

RONALD L. CLIFTON, et al., : 

 : Case No. 15CA30 

Plaintiffs-Appellees, : 

 : 

vs. : DECISION AND JUDGMENT 

: ENTRY 

PEARL K. JOHNSON, et al., : 

 : 

Defendants-Appellants. : Released: 12/06/16 

_____________________________________________________________ 

APPEARANCES: 

James R. Kingsley, Kingsley Law Office, Circleville, Ohio, for Appellants. 

Michael N. Beekhuizen, Carpenter Lipps & Leland LLP, Columbus, Ohio, 

for Appellees. 

_____________________________________________________________ 

McFarland, J. 

{¶1} This is an appeal from a Pickaway County Common Pleas Court 

grant of summary judgment in favor of Appellees, Ronald L. Clifton and 

Robert W. Hamman, and against Appellants, Pearl K. Johnson, as well as 

Johnson's corporation, American Eagle Air, Inc. This case is before this 

Court for a second time, following our dismissal of Appellants' first direct 

appeal for lack of a final appealable order. Ronald L. Clifton, et al. v. Pearl 

K. Johnson, et al., 4th Dist. Pickaway No. 14CA22, 2015-Ohio-4246. 

Presently on appeal, Appellants contend that 1) the trial court committed 
Pickaway App. No. 15CA30 2

prejudicial error when it granted Appellees summary judgment upon unjust 

enrichment; 2) the trial court committed prejudicial error in awarding 

damages; and 3) the trial court committed prejudicial error when it did not 

dismiss the case with prejudice. Because we conclude that genuine issues of 

material fact exist which preclude summary judgment, we further conclude 

the trial court erred in granting summary judgment in favor of Appellees. 

Accordingly, the judgment of the trial court is reversed and this matter is 

remanded for further proceedings consistent with this opinion. 

FACTS 

{¶2} Here, Appellees, Ronald F. Clifton and Robert W. Hamman, 

filed a complaint against Appellants, Pearl K. Johnson and Johnson's 

corporation, American Eagle Air, Inc., alleging the formation of a 

partnership and that a joint venture was agreed upon whereby Clifton, 

Hamman and Johnson, using Clifton's plane, Hamman's camera equipment 

and Johnson's piloting skills, would jointly provide aerial imaging services 

for portions of the ATEX pipeline that was being routed through Ohio. 

Appellees' complaint contained claims for breach of contract and, 

alternatively, unjust enrichment, alleging that Johnson and American Eagle 

Air, Inc. collected more than $200,000 for work that was jointly performed 

by Appellees and Appellant Johnson, and that Appellants failed to pay 
Pickaway App. No. 15CA30 3

Appellees for work the parties mutually performed. Specifically, Appellees 

alleged that they had each only been paid $5,000.00 and that Appellants kept 

the rest of the money. 

{¶3} Appellees subsequently moved the court for summary judgment 

on the unjust enrichment claim alone, reserving the right to proceed on the 

breach of contract claim and alternatively the unjust enrichment claim at 

trial, in the event the motion for summary judgment was denied. Appellants 

opposed the motion, arguing, among other things, that the court could not 

grant summary judgment on the equitable remedy of unjust enrichment 

when a breach of contract claim covering the same subject matter had been 

pled and was still pending. Appellants also argued that the work performed 

by the parties jointly was rejected by ATEX and that the “prototype” that 

was eventually accepted by ATEX was created using a camera, aircraft and 

personnel from MANN Mapping, a corporation completely unrelated to 

Appellees. 

{¶4} Over the objection of Appellants, however, the trial court 

granted summary judgment in favor of Appellees on their unjust enrichment 

claim, and awarded them a joint share of the profits, in the amount of 

$68,282.00 each, for a total judgment of $136,564.00. Appellants filed a 

direct appeal from the trial court's decision; however, we dismissed the 
Pickaway App. No. 15CA30 4

appeal for lack of a final appealable order, based upon the fact that the 

breach of contract claim remained pending, and thus all of the claims had 

not been resolved. 

{¶5} Appellants filed a motion for reconsideration asking this Court 

to reconsider our decision that the trial court's order was not final and 

appealable, which this Court ultimately denied. Meanwhile, Appellees filed 

a motion for voluntary dismissal of their breach of contract claim and 

motion for entry of final judgment in the trial court. The trial court issued a 

decision and entry on October 29, 2015 dismissing Appellees' breach of 

contract claim with prejudice. On November, 12, 2015, the trial court went 

on to issue a final judgment entry entering final judgment in favor of 

Appellees on their unjust enrichment claim, determining damages in the 

same amount as before, and finding no just reason for delay. It is from these 

orders that Appellants now bring their timely appeal, setting forth three 

assignments of error for our review. 

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR 

WHEN IT GRANTED THE PLAINTIFF'S [SIC] SUMMARY 

JUDGMENT FOR UNJUST ENRICHMENT. 

II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN 

ITS AWARD OF DAMAGES. 
Pickaway App. No. 15CA30 5

III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR 

WHEN IT DID NOT DISMISS THE CASE WITH PREJUDICE.” 

ASSIGNMENT OF ERROR I 

{¶6} In their first assignment of error, Appellants contend that the 

trial court committed prejudicial error when it granted Appellees summary 

judgment based upon unjust enrichment. Appellants primarily argue that it 

was error to grant summary judgment based upon a claim of unjust 

enrichment when a claim for breach of contract had been previously pled, 

even though the breach of contract claim was subsequently dismissed with 

prejudice. Appellants further contend that even if summary judgment was 

not barred procedurally, it should not have been granted, as genuine issues 

of material fact exist which should have precluded summary judgment. 

{¶7} Initially we note that, contrary to Appellants' argument, because 

the claim for breach of contract was dismissed with prejudice below, postappeal, and because unjust enrichment is an alternative claim to breach of 

contract, we find no error in the trial court considering and ruling on 

Appellee's motion for summary judgment based upon unjust enrichment. 

As set forth in our decision issued in connection with Appellants' first direct 

appeal of this matter, a review of the record indicates that Appellees filed a 

complaint alleging the formation of a joint venture that contained claims 

based upon breach of contract and alternatively, unjust enrichment. Rather 
Pickaway App. No. 15CA30 6

than seeking a judgment based upon their primary claim, breach of contract, 

Appellees filed a motion for summary judgment on their alternative claim 

only, unjust enrichment. In moving the trial court for summary judgment 

based upon unjust enrichment only, Appellees made an express reservation 

in their motion as follows: 

"Breach of contract and unjust enrichment are alternative 

remedies. In the event this Court denies this motion, Plaintiffs 

reserve the right to present both their breach of contract and 

unjust enrichment claims, in the alternative, at the trial of this 

matter." 

{¶8} Thus, Appellees did not dismiss their breach of contract claim 

when they moved for summary judgment on unjust enrichment, nor had the 

trial court ruled on the pending claim. Instead, the legal claim for breach of 

contract had not been resolved when the trial court considered the equitable 

remedy of unjust enrichment. In our previous consideration of this matter, 

we stated that we agreed "with Appellants' argument that the trial court erred 

in granting summary judgment based upon unjust enrichment while a claim 

for breach of contract, covering the same subject matter, was still pending 

and unresolved," however, we dismissed the appeal for lack of a final 
Pickaway App. No. 15CA30 7

appealable order because the breach of contract claim remained unresolved 

and pending.1

{¶9} After our decision was issued in Appellant's first direct appeal, 

Appellees moved the trial court to dismiss their breach of contract claim. At 

the same time, Appellants filed a motion for reconsideration in this Court 

claiming that our determination that a final appealable order did not exist 

was in error. They also claimed that the legal effect of this Court's decision 

was that the trial court must proceed to jury trial on the breach of contract 

claim, arguing that the law does not permit double recovery on the same 

facts just because different causes of action have been stated. However, we 

rejected Appellants' argument, reasoning that "the dismissal of the pending 

breach of contract claim by either the trial court, or by Appellees, would 

resolve the claim and result in a final appealable order." Subsequently, the 

trial court granted Appellees' post-appeal motion to dismiss their breach of 

contract claim with prejudice. As a result, we conclude that the defect 

preventing a final appealable order has now been resolved and this Court can 

consider the arguments raised by Appellants on the merits. 

 

1

 In making this statement, we noted that a party generally cannot seek dual relief under contract and 

quasicontract theories. HAD Enterprises v. Galloway, et al., 192 Ohio App.3d 133, 2011-Ohio-57, 948 

N.E.2d 473, ¶ 10; Ryan v. Rival Mfg. Co., 1st Dist. Hamilton No. C–810032, 1981 WL 10160 (Dec. 16, 

1981) ("It 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 or a contract implied in fact. 

The mere fact that issues exist as to the creation of the contract or the construction of its terms does not 

alter this rule." 
Pickaway App. No. 15CA30 8

{¶10} As set forth above, Appellants contend that even if summary 

judgment was not barred procedurally, it should not have been granted, as 

genuine issues of material fact exist which should have precluded summary 

judgment. Appellants contend that the work performed by the parties jointly 

was rejected by ATEX and that the “prototype” that was eventually accepted 

by ATEX was created using a camera, aircraft and personnel from MANN 

Mapping, a corporation completely unrelated to Appellees. Based upon the 

following, we agree with this portion of Appellant's argument that this 

allegation creates a genuine issue of material fact which should have 

precluded summary judgment in favor of Appellees on their unjust 

enrichment claim. 

{¶11} Appellate review of summary judgment decisions is de novo, 

governed by the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio 

St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19. Summary judgment is 

appropriate if the party moving for summary judgment establishes that (1) 

there is no genuine issue of material fact, (2) reasonable minds can come to 

but one conclusion, which is adverse to the party against whom the motion is 

made, and (3) the moving party is entitled to judgment as a matter of law. 

Civ.R. 56; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 
Pickaway App. No. 15CA30 9

2011-Ohio-2266, 950 N.E.2d 157, ¶ 24; Chase Home Finance, LLC v. 

Dunlap, 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484, ¶ 26. 

{¶12} The moving party has the initial burden of informing the trial 

court of the basis for the motion by pointing to summary judgment evidence 

and identifying parts of the record that demonstrate the absence of a genuine 

issue of material fact on the pertinent claims. Dresher v. Burt, 75 Ohio St.3d 

280, 293, 662 N.E.2d 264 (1996); Chase Home Finance at ¶ 27. Once the 

moving party meets this initial burden, the nonmoving party has the 

reciprocal burden under Civ.R. 56(E) to set forth specific facts showing that 

there is a genuine issue remaining for trial. Dresher at 293. 

{¶13} Civ.R. 56(C) sets forth an exclusive list of evidentiary 

materials that a trial court may consider when ruling upon a summary 

judgment motion. Emerson Family Ltd. Partnership v. Emerson Tool, LLC, 

9th Dist. Summit No. 26200, 2012-Ohio-5647, ¶ 14; citing Spier v. 

American Univ. of the Caribbean, 3 Ohio App.3d 28, 29, 443 N.E.2d 1021 

(1st Dist.1981). The rule prohibits a trial court from considering any 

evidence or stipulation except the “pleadings, depositions, answers to 

interrogatories, written admissions, affidavits, transcripts of evidence in the 

pending case, and written stipulations of fact.” Civ.R. 56(C). Davis v. 

Eachus, 4th Dist. Pike No. 04CA725, 2004-Ohio-5720, ¶ 36; Wall v. 
Pickaway App. No. 15CA30 10

Firelands Radiology, Inc., 106 Ohio App.3d 313, 334, 666 N.E.2d 235 (6th 

Dist.1995). Furthermore, when ruling on a summary judgment motion, a 

court may consider only evidence that would be admissible at trial. 

Pennisten v. Noel, 4th Dist. Pike No. 01CA669, 2002 WL 254021 (Feb. 8, 

2002), *2. 

{¶14} As set forth above, the trial court granted Appellees summary 

judgment on their claim based upon unjust enrichment. Unjust enrichment 

occurs “ ‘when a party retains money or benefits which in justice and equity 

belong to another.’ ” HAD Ents. v. Galloway, 192 Ohio App.3d 133, 2011-

Ohio-57, 948 N.E.2d 473, ¶ 8 (4th Dist.); quoting Cooper v. Smith, 155 Ohio 

App.3d 218, 2003-Ohio-6083, 800 N.E.2d 372, ¶ 30 (4th Dist.), in turn 

citing Liberty Mut. Ins. Co. v. Indus. Comm., 40 Ohio St.3d 109, 111, 532 

N.E.2d 124 (1988). In order to prevail on an unjust enrichment theory, the 

plaintiff must establish three elements: “ ‘(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.’ ” Id. at ¶ 8; quoting 

Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465 N.E.2d 1298 

(1984). 
Pickaway App. No. 15CA30 11

{¶15} Appellants argue that the trial court erred in excluding portions 

of the affidavit of Pearl Johnson as being hearsay. We review the trial 

court's decision to exclude the affidavit testimony of Johnson for abuse of 

discretion. State ex rel. Mora v. Wilkinson, 105 Ohio St.3d 272, 2005-Ohio1509, 824 N.E.2d 1000. The trial court stated as follows with regard to its 

consideration of the Johnson affidavit: 

"Disregarding all the hearsay statements made in said affidavit, 

this Court is left with the following facts: (1) Ronald Clifton 

owns an airplane; (2) Robert Hamman owns a camera; (3) Pearl 

Johnson is a pilot; (4) there is no written agreement; (5) ATEX 

was installing a pipeline through Pickaway County; and (6) 

Pearl Johnson presented his prototype to ATEX." 

Thus, the trial court was not specific with regard to which of the twenty-four 

paragraphs in Johnson's five page affidavit it deemed to be hearsay and 

therefore excluded. 

{¶16} In their motion for summary judgment and on appeal, 

Appellees contend that the payment Appellants received from ATEX was 

for work performed to create aerial spreads one, two and three, which were 

performed with Clifton's plane and Hamman's camera. They supported this 

claim set forth in their motion for summary judgment with copies of flight 

dispatch questionnaire sheets, excerpts of Johnson's deposition testimony 
Pickaway App. No. 15CA30 12

and copies of invoices reflecting payments made to American Eagle Air, 

Inc.2 

{¶17} The flight sheets cover several dates in May and early June of 

2012, and indicate flights made by American Eagle Air, Inc., piloted by 

"Kevin Johnson" with "Robby Hamman" as a passenger, to perform aerial 

surveying for the customer, "ATEX." Some of the notes on the various 

forms include references to spreads one, two, or three. The excerpts from 

Johnson's deposition testimony include Johnson acknowledging he flew 

Clifton's plane, a Cessna model C172, for portions of spreads one, two and 

three, with Hamman as a passenger. The deposition testimony also includes 

acknowledgments by Johnson that American Eagle Air, Inc. received 

payments totaling $219,000.00; however, the excerpts do not identify what 

work the payments were for. Check stubs attached as exhibits to Appellees' 

motion for summary judgment indicate payments made to American Eagle 

Air, Inc. by Houston Inspection Field Services, LLC, but they do not specify 

for what work the payments were being made. 

{¶18} At both the trial court level and on appeal, Appellants contend 

that the payments they received from ATEX were a result of the "prototype" 

they submitted that was created without the use of Clifton's plane or 

 

2

 It does not appear Johnson's complete deposition transcript was made part of the record below and thus it 

is not presently before this Court on appeal. 
Pickaway App. No. 15CA30 13

Hamman's camera, rather than the work performed jointly with Clifton and 

Hamman for aerial spreads one, two and three. Johnson stated as much in 

his affidavit; however, it is apparently one of the statements deemed to be 

hearsay and excluded by the trial court. Initially, we note that Johnson's 

affidavit does not contain a general averment of personal knowledge. 

However, it does state, in pertinent part, as follows, with regard to the work 

he claims he performed separate and apart from the work performed with 

Clifton and Hamman: 

"14. I shopped many mapping imagery companies to obtain a 

suitable camera that produced acceptable imagery. 

15. I contracted with MANN Mapping * * *. 

16. MANN Mapping had its own aircraft and its own digital 

imagery system completely different from Hamman. A 

prototype was developed, presented and accepted." 

* * * 

19. I developed a prototype. It did not include anything from 

the Hamman prototype. I presented my separate prototype to 

ATEX who accepted it. 

20. A contract was issued to American Eagle Air, Inc. * * *." 

(Emphasis added.). 
Pickaway App. No. 15CA30 14

{¶19} As we have recently discussed, with regard to affidavit 

evidence: 

“To be considered in a summary judgment motion, Civ.R. 

56(E) requires an affidavit to be made on personal knowledge, 

set forth such facts as would be admissible in evidence, and 

affirmatively show that the affiant is competent to testify to the 

matters stated in the affidavit.” Fifth Third Mtge. Co. v. Bell, 

12th Dist. Madison No. CA2013–02–003, 2013-Ohio-3678 

[2013 WL 4647561], ¶ 27, citing Civ.R. 56(E); see also Wesley 

v. Walraven, 4th Dist. Washington No. 12CA18, 2013-Ohio473 [2013 WL 544053], ¶ 24. “ ‘Absent evidence to the 

contrary, an affiant's statement that his affidavit is based on 

personal knowledge will suffice to meet the requirement of 

Civ.R. 56(E).’ ” Bell at ¶ 27, quoting Wells Fargo Bank v. 

Smith, 12th Dist. Brown No. CA2012–04–006, 2013-Ohio-855 

[2013 WL 938069], ¶ 16. “Additionally, documents referred to 

in an affidavit must be attached and must be sworn or certified 

copies.” Id., citing Civ.R. 56(E). “Verification of these 

documents is generally satisfied by an appropriate averment in 

the affidavit, for example, that ‘such copies are true copies and 

reproductions.’ ” Id., quoting State ex rel. Corrigan v. 

Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981); 

see also Walraven at ¶ 31 (“Civ.R. 56(E)'s requirement that 

sworn or certified copies of all papers referred to in the affidavit 

be attached is satisfied by attaching the papers to the affidavit 

with a statement contained in the affidavit that the copies are 

true and accurate reproductions.”) U.S. Bank Natl. Assn. v. 

Bobo, 4th Dist. Athens No. 13CA45, 2014-Ohio-4975, 2014 

WL 5800399, ¶ 28; JPMorgan Chase Bank, Natl. Assn. v. 

Fallon, 4th Dist. Pickaway No. 13CA3, 2014-Ohio-525, 2014 

WL 588038, ¶ 16.” Whitt v. Wolfinger, 39 N.E.3d 8092015-

Ohio-2726, ¶ 23. 

{¶20} “If the affiant fails to state that the affidavit is based on 

personal knowledge, then personal knowledge may be inferred ‘if the nature 

of the facts in the affidavit combined with the identity of the affiant creates a 
Pickaway App. No. 15CA30 15

reasonable inference that the affiant has personal knowledge of the facts in 

the affidavit.’ ” Id. at ¶ 24; quoting Bobo, at ¶ 30, in turn quoting Freedom 

Mtge. Corp. v. Vitale, 5th Dist. Tuscarawas No. 2013 AP 08 0037, 2014-

Ohio-1549, ¶ 26 (Ohio law recognizes that personal knowledge may be 

inferred from the contents of an affidavit “if the nature of the facts in the 

affidavit combined with the identity of the affiant creates a reasonable 

inference that the affiant has personal knowledge of the facts in the 

affidavit”). 

{¶21} “Personal knowledge” for purposes of a summary judgment 

affidavit is defined as knowledge of the truth in regard to a particular fact or 

allegation that does not depend on information or hearsay, i.e. it is 

knowledge that is original to the affiant. See Parker Financial v. Matthews, 

4th Dist. Adams No. 97CA652, 1999 WL 74686 (Feb. 3, 1999) (affiant's 

knowledge was based upon information he received in conversations he had 

over telephone and therefore was not based on personal knowledge) citing 

Brannon v. Rinzler, 77 Ohio App.3d 749, 603 N.E.2d 1049 (2nd Dist.1991) 

(personal knowledge must be original and not depend on information or 

hearsay). 

{¶22} Further, we note that “[a]n affidavit of a party opposing 

summary judgment that contradicts former deposition testimony of that party 
Pickaway App. No. 15CA30 16

may not, without sufficient explanation, create a genuine issue of material 

fact to defeat a motion for summary judgment.” Byrd v. Smith, 110 Ohio 

St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, paragraph three of the syllabus. 

In Byrd, the Supreme Court of Ohio expressly adopted this Court's rationale 

in Lemaster v. Circleville Long Term Care, Inc., 4th Dist. Pickaway App. 

No. 87 CA 2, 1988 WL 17187, *3 (Feb. 22, 1988) where we held, 

“[o]rdinarily, under [Civ.R.] 56(C), when an affidavit is inconsistent with 

affiant's prior deposition testimony as to material facts and the affidavit 

neither suggests affiant was confused at the deposition nor offers a reason 

for the contradictions in her prior testimony, the affidavit does not create a 

genuine issue of fact which would preclude summary judgment.” 

{¶23} Here, based upon the record before, we conclude that the trial 

court erred when it excluded the above portions of Johnson's affidavit. 

Although Johnson's affidavit does not contain a general averment of 

personal knowledge, the trial court could infer Johnson had personal 

knowledge if the nature of the facts in the affidavit combined with Johnson's 

identity created a reasonable inference that he had personal knowledge. We 

conclude that the nature of the facts stated in paragraphs 14, 15, 16, 19 and 

20, combined with Johnson's identity as a participant in this matter and as 
Pickaway App. No. 15CA30 17

sole owner of American Eagle Air, Inc., permit an inference of his personal 

knowledge of these facts and were not inadmissible hearsay. 

{¶24} We further conclude that these statements create a genuine 

issue of material fact regarding which work was being compensated by 

ATEX: the work performed jointly between Appellants and Appellees to 

create spreads one, two and three; or the work performed separately by 

Johnson referred to by Johnson as a “prototype,” that “did not include 

anything from the Hamman prototype,” and which was created with aircraft 

owned by MANN Mapping, as well as MANN Mapping's digital imagery 

system. Importantly, not only do we conclude that the trial court could infer 

personal knowledge from the statements contained in Johnson's affidavit 

giving rise to this genuine issue of material fact, there is no indication, at 

least from the portions of the Johnson's deposition that are contained in the 

record before us, that these statements conflict with any prior deposition 

testimony given by Johnson. 

{¶25} Here, Appellees essentially contend that the moneys received 

by Appellants were payment for work performed by the parties jointly in the 

creation of aerial spreads one, two and three, while Appellants essentially 

contend that the payments were for the "prototype" created by Appellants 

alone, with the use of MANN Mapping's aircraft and digital imagery system. 
Pickaway App. No. 15CA30 18

Thus, Johnson's affidavit creates a genuine issue of material fact with regard 

to the nature of the payments Appellants received and whether Appellees, in 

fact, are entitled to a portion of those payments. 

{¶26} This genuine issue of material fact precludes a grant of 

summary judgment in favor of Appellees on their unjust enrichment claim, 

primarily because it is unclear from the evidence before us whether 

Appellees have demonstrated they conferred a benefit upon Appellants. 

Thus, we conclude that the trial court abused its discretion in excluding the 

above portions of the Johnson affidavit, which were based upon his personal 

knowledge and were not hearsay, and further erred in granting summary 

judgment in favor of Appellees on unjust enrichment. Accordingly, 

Appellants' first assignment of error is well taken and the decision of the 

trial court is reversed. 

ASSIGNMENT OF ERROR II 

{¶27} In their second assignment of error, Appellants contend that the 

trial court erred in awarding damages; however, in light of our disposition of 

Appellants' first assignment of error, which determined that the trial court 

erred in granting summary judgment in Appellee's favor, this assignment of 

error has been rendered moot. 

ASSIGNMENT OF ERROR III 
Pickaway App. No. 15CA30 19

{¶28} In their third assignment of error, Appellants contend that the 

trial court committed prejudicial error when it did not dismiss the case with 

prejudice. More specifically, Appellants contend that a voluntary dismissal 

by Appellees of their express contract claim with prejudice prevents a 

judgment for unjust enrichment. Appellants argue that “the voluntary 

dismissal of the express contract claim with prejudice operated upon the 

merits with the legal result that Defendants prevailed on the contract claim.” 

{¶29} Contrary to Appellants' argument, the trial court did dismiss 

Appellees' breach of contract claim with prejudice. Further, the case 

Appellants rely on in support of their argument, Caras v. Green & Green, et 

al., 2nd Dist. Montgomery No. 14943, 1996 WL 407861, does not support 

their argument. Appellants quote as follows from Caras to support their 

argument that the trial court's dismissal of Appellees' breach of contract 

claim effectively eliminated any claim based upon unjust enrichment as 

well: “When it granted summary judgment for the Defendants on Caras' 

action in quasi-contract the court eliminated the basis for relief on Caras' 

claim of unjust enrichment.” Appellants' argument, however, is misplaced. 

{¶30} The Caras case involved a judgment based upon unjust 

enrichment when a claim based upon quasi-contract, not an express contract, 

had been previously dismissed. That is not the situation here. Here, the trial 
Pickaway App. No. 15CA30 20

court dismissed with prejudice Appellees' breach of contract claim, which 

was based upon an express contract, not a theory of quasi-contract. Unjust 

enrichment is a remedy flowing from a claim based in quasi contract, as 

opposed to an express contract. In fact, the Caras court reasoned at length 

as follows: 

“A quasi-contract ‘is a legal fiction that does not rest upon the 

intention of the parties, but rather on equitable principles in 

order to provide a remedy. The two remedies most often 

associated with quasi-contracts are restitution and quantum 

meruit. Each of these remedies presupposes some type of 

unjust enrichment of the opposing party.’ Paugh & Farmer, 

Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St.3d 

44, 46 (emphasis in the original).” Caras at *3. 

Thus, Caras does not stand for the proposition that the trial court's dismissal 

of Appellees' breach of contract claim vitiates their alternative claim based 

upon unjust enrichment. Further, this Court is aware of no other law or 

guidance that supports Appellants' argument. Accordingly, we find no merit 

to Appellants' third assignment of error and it is overruled. 

{¶31} However, having found merit to Appellants' argument that the 

trial court erred in granting summary judgment to Appellees on unjust 

enrichment because genuine issues of material fact exist with respect to 

whether Appellees conferred a benefit upon Appellants, as it is unclear 

whether Appellants received payment for services rendered on their own, or 

for work performed jointly with Appellees, the judgment of the trial court is 
Pickaway App. No. 15CA30 21

reversed and this matter is remanded for further proceedings consistent with 

this opinion. 

JUDGMENT REVERSED AND 

CAUSE REMANDED FOR 

FURTHER PROCEEDINGS 

CONSISTENT WITH THIS 

OPINION. 
Pickaway App. No. 15CA30 22

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE REVERSED AND CAUSE 

REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH 

THIS OPINION and that Appellants recover of Appellees any costs herein. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Pickaway County Common Pleas Court to carry this judgment into 

execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

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

Rule 27 of the Rules of Appellate Procedure. 

Abele, J.: Concurs in Judgment Only. 

Hoover, J.: Dissents. 

 For the Court, 

 BY: _________________________ 

 Matthew W. McFarland, Judge 

 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk.