[Cite as Akron v. Baum , 2021-Ohio-4150.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

CITY OF AKRON Appellee

v. MARK J. BAUM Appellant C.A. No. 29882

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2019 07 2588

DECISION AND JOURNAL ENTRY Dated: November 24, 2021

HENSAL, Presiding Judge. {¶1} Mark Baum appeals from the judgment of the Summit County Court of Common Pleas, granting summary judgment in favor of the City of Akron (“the City”). This Court affirms in part and reverses in part.

I. {¶2} The City filed a complaint against Mr. Baum for action on an ac count and unjust

enrichment. It later amended its complaint to correct a typogr aphical error. In its amended complaint, the City alleged that Mr. Baum was the owner of 2349 19th Street SW in Akron (the “Property”) at all relevant times. The City alleged that it en tered into an agreement with Mr. Baum whereby the City agreed to provide utility services to the Prop erty in exchange for payment from

Mr. Baum under account number 04-1469-303. The City alleged th at it provided the utility services to Mr. Baum, that Mr. B aum failed to pay for those ser vices, and that he owed $21,979.05 under his account. The City attached copies of Mr. Baum’s util ity bills to the complaint, which2

indicated that Mr. Baum’s balance was $21,979.05, and demonstra ted how that balance accrued over several months. In his answer, Mr. Baum admitted that he owned the Property during the relevant time period and that he was responsible for the paymen t of utility services, but denied that he owed the City $21,979.05. {¶3} The City then served discovery to Mr. Baum, including requests for admissions and interrogatories. Mr. Baum admitted that he owned the Property during the relevant time period and that the Property was occupi ed by tenants during part of th at time. He also admitted that he no longer owns the Property. He indicated that he donated the Property to the Summit County

Land Bank in December 2019 in excha nge for a write off of the w ater bill. {¶4} The City then moved for summary judgment, arguing that it was e ntitled to judgment as a matter of law on its claims for action on an acco unt and unjust enrichment. In support of its motion, the City r elied upon the affidavit of Du ane A. Smith. Mr. Smith averred that he is the Utilities Accounting Supe rvisor for the City, and tha t he is responsible for managing delinquent account balances and mai ntaining the records for the Akron Public Utilities Bureau (“APUB”). He averred that the City created Mr. Baum’s account after APUB received a request to replace the water meter at the Property in March 2014 and di scovered that the Property was occupied, that Mr. Baum was the owner, and that the water servi ce to the Property was turned on. {¶5} Mr. Smith averred that the City provided water service, sewer s ervice, and curbside service to the Property under Mr. Baum’s account from 2014 unti l February 21, 2018, when the City shut off water and sewer service due to a past due account balance of $370.38. He averred that when the City shuts off water service to a property, the C ity deems the property “Vacant/Shutoff.” When this occurs, the City completes interim readings at the property, which are consumption readings that are not billed. He averred that, when a consumption reading on a3

“Vacant/Shutoff” property shows elevated usage, the account for that property may be activated to bill for the elevated usage. {¶6} Mr. Smith averred that, after the City shut off water and sewer service to the Property on February 21, 2018, it co mpleted three interim readi ngs between March 2018 and October 2018, all of which showed elevated usage. After each r eading, the City discovered that

the water service had been tur ned on without authorization from the City. Mr. Smith averred that, after the first two interim readings, the City shut the water a nd sewer back off, deemed the Property “Vacant/Shutoff[,]” and then activated Mr. Baum’s account in or der to bill for usage. Mr. Smith averred that, after the third i nterim reading, the City activat ed Mr. Baum’s account in order to bill for usage. Unlike the first two interim readings, however, he did not aver that the City then shut

the water and sewer back off. {¶7} Mr. Smith averred that the City issued bills and letters to Mr. Baum regarding the delinquent balance, but that hi s account remained unpaid. Mr. Smith averred that one of the letters, which was sent in January 2019, ag ain informed Mr. Baum of the delinquent balance, as well as the fact that he could request a hearing before the City’s Clai ms Commission if he was unsatisfied with the explanati on of the account balanc e. Mr. Smith averred that Mr. Baum’s account balance continued to remain unpaid, and that the City sent Mr. Baum a b ill in February 2019 for $21,979.05. Mr. Smith supported his affidavit, in part, with c opies of the meter readings and bills associated with Mr. Baum’s account, which showed how the delinq uent balance accrued over the prior months. {¶8} Relying on Mr. Smith’s affidavit, Mr. Baum’s responses to its d iscovery requests, the meter readings and bills associated with Mr. Baum’s account , and APUB’s rules and regulations, the City argued that it was entitled to judgment a s a matter of law on its claims for4

action on an account and unjust enrichment. Regarding its clai m for action on an account, the City acknowledged that an action on an account is an action for brea ch of contract. It argued that it had an implied-in-fact contract with Mr. Baum because it provided w ater, sewer, and curbside service to the Property, and Mr. Baum accepted those services. The Cit y argued that Mr. Baum breached the implied-in-fact-contract by not paying for the services the City provided. {¶9} Having set forth its argument regarding Mr. Baum’s breach of a n implied-in-fact contract, the City then argued that it established a prima faci e case for action on an account because it established: (1) the existence of the account and Mr. Baum as the account’s owner; (2) a beginning balance showing a prov able sum that qualifies as an a ccount stated; (3) listed consumption amounts that represe nted new monthly charges on the account; and (4) a summarization of the developing ba lance calculated based on cur rent water and sewer consumption rates calculated monthly, past balances owed on the account, and any payments made on the account. The City argued that there was no genuine issu e of material fact that Mr. Baum has an unpaid account balance of $21,979.05, and, therefore, th at it was entitled to judgment as a

matter of law on its claim for action on an account. {¶10} Regarding its claim for unjust en richment, the City argued that it conferred the benefit of water service, sewer service, and curbside service o n Mr. Baum, which rendered the Property habitable for Mr. Baum’s tenants while Mr. Baum owned the Property. The City argued that Mr. Baum had knowledge of this benefit, yet failed to pay for those services. It concluded that there was no genuine issue of material fact that the City is entitled to compensation in the amount of $21,979.05 for the benefit the City conferred upon Mr . Baum. {¶11} Mr. Baum did not oppose the City’s motion, and the trial court granted summary judgment in favor of the City. In doing so, it concluded that Mr. Baum breached an implied-in-5

fact contract, and that he was unjustly enriched by receiving s ervices from the City without paying

for those services. Mr. Baum now appeals that order, raising o ne assignment of error for this

Court’s review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY RUL ING AGAINST THE APPELLANT ON AN UNPAID UTILITY BILL IN VIOLATION OF THE AKRON PUBLIC UTILITIES BUREAU RULES AND REGULATIONS. {¶12} In his assignment of error, Mr. Baum argues that the trial cour t erred by granting summary judgment in favor of the City on its claims for action on an account and unjust

enrichment. This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison

Co. , 77 Ohio St.3d 102, 105 (1996). P ursuant to Civil Rule 56(C), summary judgment is proper

if: (1) No genuine issue as to any mat erial fact remains to be liti gated; (2) the moving party is entitled to judgment as a matter of law; and (3) it ap pears from the evidence that reasonable minds can come to but one conclusion, and viewi ng such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327 (1977). {¶13} The party moving for summary j udgment bears the initial burden of demonstrating the absence of a genuine issue of material fact concerning the essential elements of the non-moving party’s case. Dresher v. Burt , 75 Ohio St.3d 280, 292 (1996). Specifically, the moving part y must support the motion by pointing to some evidence in the record o f the type listed in Civil Rule 56(C). Id. at 292-293. If the moving party satisfies this burden, then t he non-moving party has the reciprocal burden to demons trate a genuine issue for trial remains. Id. at 293. If the nonmoving party does not oppose the motion for summary judgment, t hen this Court’s review is6

limited to whether the moving party m et its initial summary jud gment burden. Bank of New York Mellon for Nationstar Home Equity Loan Tr. 2007-B v. Bridge , 9th Dist. Summit No. 28461, 2017- Ohio-7686, ¶ 11, 22. Here, by failing to respond to the City’s motion for summary judgment, Mr. Baum has forfeited the right to raise any argument on appeal th at he did not raise below. Id. at ¶ 22; Sovereign Bank, N.A. v. Singh , 9th Dist. Summit No. 27178, 2015-Ohio-3865, ¶ 11 (“When the non-moving party fails to ra ise an argument when responding to the motion for summary judgment, the party forfeits the r ight to raise that argument o n appeal.”). {¶14} This Court’s review of the City’s motion for summary judgment, and the materials attached thereto, indicates that the City demonstrated the abse nce of a genuine issue of material fact concerning the essential elements of an action on an accou nt. “An action on an account is appropriate where the parties ha ve conducted a series of transa ctions, for which a balance remains to be paid.” E. Ohio Gas Co. v. Kenmore Constr. Co. Inc. , 9th Dist. Summit Nos. 19567, 19790 2001 WL 302818, *5 (Mar. 28, 2021). “Such action is founded on a contract, express or implied.”

Id. Thus, to prevail on a claim for action on an account, a plain tiff “must establish each of the

essential elements of a contract claim.” Wadsworth Pointe Health Care Group, Inc. v. Baglia , 9th Dist. Medina No. 17CA0064-M, 2018-Ohio-1978, ¶ 9. {¶15} The trial court found that the City had an implied-in-fact co ntract with Mr. Baum. An implied-in-fact contract hi nges upon proof of all of the ele ments of a contract. Dunn v.

Bruzzese , 172 Ohio App.3d 320, 2007-Ohio-3500, ¶ 28 (7th Dist.2007). A n implied-in-fact contract diverges from an expre ss contract in the form of proof that is required to establish each

contractual element. Id. “In express contracts, assent to the terms of the contract is a ctually expressed in the form of an offer and an acceptance.” Id. “On the other hand, in implied-in-fact contracts the parties’ meeting of the minds is shown by the sur rounding circumstances, including7

the conduct and declarations of th e parties, that make it infer able that the contract exists as a matter of tacit understanding.” Id. ; accord E. Ohio Gas Co. at *5 (“To establish a contract implied in fact, a party must demonstrate that c ircumstances surrounding the par ties’ transactions make it reasonably certain that an agree ment was intended.”). Regardin g an action on an account, this

Court has stated: “To establish a prima facie case for money owed on an account, a plaintiff must demonstrate the existence of a n account, including that the acc ount is in the name of the party charged, and it must also establish (1) a beginnin g balance of zero, or a sum that can qualify as an ac count stated, or some other prov able sum; (2) listed items, or an item, dated and identifiable by number or otherwis e, representing charges, or debits, and credits ; and (3) summarization by means of a running or developing balance, or an arrange ment of beginning balance and items that permits the calculation of the a mount claimed to be due.” Schottenstein Zox & Dunn Co., L.P.A. v. Reineke , 9th Dist. Medina No. 10CA0138-M, 2011-Ohio6201, ¶ 18, quoting Great Seneca Fin. v. Felty , 170 Ohio App.3d 737, 2006-Ohio-6618, ¶ 6 (1st Dist.). {¶16} The City submitted evidence that it provided utility services t o the Property, which Mr. Baum accepted, and that the outstanding balance on Mr. Baum ’s account was $21,979.05. As previously noted, the City supported its motion for summary jud gment, in part, with copies of meter readings and bills associated with Mr. Baum’s account tha t dated back to when the City transferred the account from the previous owner of the Property to Mr. Baum. The City also supported its motion with a copy of APUB’s rules and regulation s that detailed quarterly water rates and billing practices, among other items. Having reviewe d the City’s motion for summary judgment and its attachments, thi s Court concludes that the Cit y met its initial burden of demonstrating the absence of a g enuine issue of material fact c oncerning the essential elements of its claim for action on an account. This Court, therefore, aff irms the trial court’s grant of summary judgment with respect to that claim. See Bridge , 2017-Ohio-7686, at ¶ 22 (noting that, when the8

non-moving party fails to respond to the moving party’s motion for summary judgment, this

Court’s review is limited to whether the movant met its initial summary judgment burden). {¶17} We now turn to the trial court’s grant of summary judgment on t he City’s claim for unjust enrichment. “‘A claim fo r unjust enrichment, or quantum meruit, is an equitable claim based on a contract implied in law, or a quasi-contract’ and ‘t he elements of [the claims] are identical.’” (Alterations sic.) Baglia , 2018-Ohio-1978, at ¶ 21, quoting Padula v. Wagner , 9th Dist. Summit No. 27509, 2015-Ohio-2374, ¶ 47. Generally, a par ty cannot recover under the theory of unjust enrichment when the subject matter of that cla im is covered by an express contract or an implied-in-fact contract. Deffren v. Johnson , 1st Dist. Hamilton No. C-200176, C-200183, 2021-Ohio-817, ¶ 10, citing Ryan v. Rival Mfg. Co. , 1st Dist. Hamilton No. C-810032, 1981 WL 10160, *1 (Dec. 16, 1981); Baglia at ¶ 21, quoting Padula at ¶ 48 (“Ohio law does not permit recovery under the theory of unjust enrichment when an express contract covers the same subject.”); see Shaw v. J. Pollock & Co. , 82 Ohio App.3d 656, 661 (9th Dist.1992) (“The legal effect of an implied contract and an express contract is identi cal[.]”); compare Zeck v. Sokol , 9th Dist. Medina No. 07CA0030-M, 2008- Ohio-727, ¶ 13-16 (analyzing a situation wherein claims for breach of contract and unjust enrichment are both viable). {¶18} The trial court determined that the City and Mr. Baum had an im plied-in-fact enforceable contract and granted summary judgment in favor of t he City on its claim for action on an account. Having determined tha t the parties had a contract, it erred by then granting summary judgment on the City’s claim for unjust enrichment, which appli es in the absence of an enforceable contract. This Court, therefore , reverses the trial court’s gr ant of summary judgment on the City’s claim for unjust enrichment. Mr. Baum’s first assignment of er ror is overruled in part and sustained in part.9

III. {¶19} Mr. Baum’s assignment of error is overruled with respect to the trial court’s grant of summary judgment on the City’s claim for action on an accoun t, and is sustained with respect to the trial court’s grant of summary judgment on the City’s cl aim for unjust enrichment. The judgment of the Summit County Cour t of Common Pl eas is affirmed in part and reversed in part. Judgment affirmed in part, and reversed in part.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State o f Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file sta mped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed equa lly to both parties.

JENNIFER HENSAL FOR THE COURT

TEODOSIO, J. CALLAHAN, J. CONCUR.10

APPEARANCES: MARK J. BAUM, pro se, Appellant. EVE V. BELFANCE, Director of Law , and KIRSTEN L. SMITH, Assista nt Director of Law, for Appellee.