author: HORTON, J. SADLER, J., dissenting.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Lillie A. SCOTT, Defendant-Appellant.
    No. 16AP-233
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 21, 2017
    On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.
    On brief: Wolfe Van Wey & Associates, LLC, and Stephen T. Wolfe, Columbus, for appellant.
    DECISION
   HORTON, J.

{¶ 1} Defendant-appellant, Lillie A. Scott ("Scott"), appeals from a jury verdict finding her guilty of theft, in violation of R.C. 2913.02, of rent money owed to WC Management, a property management company. For the reasons set forth below, we reverse Scott's conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} A grand jury indicted Scott on one count of theft, in violation of R.C. 2913.02, on May 19, 2015. The indictment alleged that between September 2 and September 12, 2014, Scott:

[D]id with purpose to deprive the owner, WC Management, of property or services, to wit: US currency, did knowingly obtain or exert control over the property or services without the consent of the owner or person authorized to give consent and/or beyond the scope of the express or implied consent of the owner or person authorized to give consent and/or by deception.

{¶ 3} Because the indictment alleged that Scott had stolen property or services valued at more than $1,000, but less than $7,500, the theft was charged as a fifth degree felony. R.C. 2913.02(B)(2). (May 19, 2015 Indictment.)

{¶ 4} Trial commenced on February 22, 2016. After the jury was empaneled, but before opening arguments, Scott's attorney moved to exclude any mention of Close to Home Realty, another property management company, as a victim in the case. She noted that the indictment only identified WC Management as the victim of the alleged theft. (Feb. 23, 2016 Tr. Vol. 2 at 28-29.)

{¶ 5} The prosecutor argued that Scott had worked as an employee for both entities and that WC Management was the ultimate victim because both companies "were meshed together in such a way that WC Management did suffer the loss" from the theft. (Tr. Vol. 2 at 30.) Scott's attorney countered that the state was attempting to allow a third party, WC Management, to step into the shoes of the actual victim, Close to Home Realty, after reimbursing it for its loss. (Tr. Vol. 2 at 30-32.)

{¶ 6} The state then asserted that Scott's motion was untimely under Crim.R. 12(C)(2), and offered to amend the indictment under Crim.R. 7 so that Close to Home Realty would also be named as a victim. Scott's attorney noted that allowing such an amendment would prejudice the defense because she had been "not allowed to get any information off of that second subpoena, which was specifically for Close to Home." (Tr. Vol. 2 at 38.) The trial court expressed concern that if Close to Home Realty were the actual victim, "it would be prejudicial to your client to add that company now as a victim," and declined to allow an amendment of the indictment under Crim.R. 7. (Tr. Vol. 2 at 39.) After this discussion, Scott's trial began.

{¶ 7} Deborah Shannon, a bookkeeper, testified that WC Management was owned by Steve Close, while Close to Home Realty was owned by his son, Alex Close. (Tr. Vol. 2 at 68.) She testified that Steve Close received "all the income" from Close to Home Realty. (Tr. Vol. 2 at 72.) Shannon testified that although she had previously handled the books for Close to Home Realty while another bookkeeper, Sharon Halloy, kept the WC Management books, Shannon now handled the books for both companies. (Tr. Vol. 2 at 73-74.)

{¶ 8} Shannon described Scott as a receptionist who sat at the front desk and "took applications, greeted people when they came in the door, took work orders from tenants for maintenance," and received rent payments from tenants. (Tr. Vol. 2 at 74-75.) The process for accepting rent payments involved writing a receipt from a receipt book and then placing the money and a copy of the receipt in the upstairs accounting office. (Tr. Vol. 2 at 75.) The employee accepting payment placed the money in a safe. The same safe was used for the money for both WC Management and Close to Home Realty, but the bookkeepers would then separate the money before making each company's bank deposits, as the companies had accounts at separate banks. (Tr. Vol. 2 at 76, 135.) The office was locked when the bookkeepers left. Although the office had a security camera, it did not work. (Tr. Vol. 2 at 76-77.) After sending several emails to her coworkers stating that she was ill in September 2014, Scott left her employment at WC Management at the end of that month. (Tr. Vol. 2 at 84.)

{¶ 9} The month after Scott left, WC Management sent out eviction notices to several tenants who subsequently came to the office with receipts showing that they had paid the rent in question. (Tr. Vol. 2 at 89-92.) The tenant at 101 Woodcliff brought in a receipt numbered 329386 showing a payment of $386 on September 2, 2014. (State's Ex. A-3.) A tenant from 55 Woodcliff brought a receipt numbered 333246 showing that payment was made on September 2, 2014, in the amount of $773. (State's Ex. C-3.) A receipt numbered 333261 stated that $773 had been paid for rent at 97 Midcliff on September 5, 2014. (State's Ex. D-2.) A fourth receipt, numbered 333268 and dated September 5, 2014, showed payment for rent at 106 Woodcliff in the amount of $663. (State's Ex. B-2.)

{¶ 10} All the receipts were signed by Scott. Close to Home Realty had only one receipt in its records for these rent payments, numbered 329766 for the property at 55 Woodcliff, and it demonstrated partial payment in the amount of $200. It was also signed by Scott. (Feb. 24, 2016 Tr. Vol. 3 at 208.) The receipts were all from tenants who leased their properties from Close to Home Realty. (Feb. 23, 2016 Tr. Vol. 2 at 110.) The properties in question were owned and managed by Close to Home Realty. (Tr. Vol. 2 at 175.)

{¶ 11} Andrew Lawless also testified. He began working for WC Management at the end of September 2014 as Scott's replacement. (Feb. 24, 2016 Tr. Vol. 2 at 189-91.) Lawless sent out eviction notices in mid-October. (Tr. Vol. 2 at 192.) After tenants began bringing in the receipts to prove they had paid their rent, he began an "internal investigation" of the discrepancies. (Feb. 24, 2016 Tr. Vol. 3 at 206.) In addition to not finding any record of the payments on the tenants' receipts, Lawless also determined that the receipt book from which the receipts bearing the "333" prefix was missing from the office. (Tr. Vol. 3 at 213.) According to Lawless, the total amount of money that was missing was $2,375. (Tr. Vol. 3 at 214.)

{¶ 12} Sharon Halloy worked as an accountant for WC Management for two years until leaving in April 2015. (Tr. Vol. 3 at 241.) She left because she did not like how accounting procedures were handled there and because she did not approve of how Alex Close treated the tenants. (Tr. Vol. 3 at 241-42.) Halloy also stated that no one had been able to find the receipt book from which the receipts issued by Scott had been written. (Tr. Vol. 3 at 248.)

{¶ 13} Scott's defense consisted of two witnesses. First, she called Joe Durham, an attorney for the city of Whitehall that had been involved in litigation involving WC Management and its properties. (Tr. Vol. 3 at 298.) Durham testified that he had called Scott to testify in a contempt proceeding alleging that WC Management, Alex Close, and Steve Close had violated a court order not to rent or lease housing units without a certificate of occupancy issued by the city of Whitehall. (Tr. Vol. 3 at 301-02.)

{¶ 14} Second, Scott testified in her own defense. She stated that she worked for WC Management and Close to Home Realty from January until September 2014. (Tr. Vol. 3 at 305-06.) Scott unsuccessfully tried to get Alex Close and his father to take care of the tenants' maintenance issues. (Tr. Vol. 3 at 306-07.) She testified that rent collection was among her duties, and that she was often told by accountants to write up receipts in particular amounts after sending rent up to them. (Tr. Vol. 3 at 315-16.) Multiple receipts would indicate that a tenant's payment went towards something like a water bill in addition to rent. (Tr. Vol. 3 at 335.) Scott denied taking any of the money she was accused of, denied knowing where the receipt book was, and stated that she turned all amounts into the accounting office after receiving them from tenants. (Tr. Vol. 3 at 234, 338.) Scott believed that her accusers were motivated by the fact that Close to Home Realty lost its business managing a number of properties to the company that she immediately went to work for. (Tr. Vol. 3 at 334-35.)

{¶ 15} Scott's attorney moved the trial court for a judgment of acquittal under Crim.R. 29, which was denied. (Tr. Vol. 3 at 290-93.) The jury returned a verdict of guilty on the charge of theft, but as a first degree misdemeanor, as the jury found that the amount in question was less than $1,000. (Feb. 26, 2016 Verdict.) Scott received no jail time or fine, but was ordered to pay court costs. (Mar. 10, 2016 Am. Jgmt. Entry.)

{¶ 16} Scott filed a timely notice of appeal and asserts the following assignments of error:

[I.] THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS.
[II.] THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29.
[III.] THE JURY'S VERDICTS WERE AGAINST THE MANIFEST WIGHT OF THE EVIDENCE.

II. FIRST AND SECOND ASSIGNMENTS OF ERROR

{¶ 17} Because appellate review of "the denial of a Crim.R. 29 motion and of the sufficiency of the evidence apply the same standard," we jointly consider Scott's first two assignments of error. State v. Diggs , 10th Dist. No. 14AP-18, 2014-Ohio-3340, 2014 WL 3805764, ¶ 29, citing State v. Fugate , 10th Dist. No. 12AP-194, 2013-Ohio-79, 2013 WL 152271, ¶ 5.

{¶ 18} Under Crim.R. 29(A), a trial court must "order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses." Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Jennings , 10th Dist. No. 09AP-70, 2009-Ohio-6840, 2009 WL 5062117, ¶ 37, citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). "Sufficiency is a test of adequacy." Id. , citing Thompkins . "The standard when testing the sufficiency of the evidence ' "is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." ' " State v. Beverly , 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116, ¶ 15, quoting State v. McKnight , 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 70, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A reviewing court "will not disturb a verdict on appeal on sufficiency grounds unless 'reasonable minds could not reach the conclusion reached by the trier-of-fact.' " State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis , 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997).

{¶ 19} Scott makes two arguments to support her contention that the evidence was legally insufficient to support her conviction. First, she argues that the evidence was insufficient to demonstrate that she was responsible for the missing rent payments. (Appellant's Brief at 7.) Second, she argues that the evidence was insufficient to prove that any theft from WC Management occurred. (Appellant's Brief at 8.)

{¶ 20} A challenge to the legal sufficiency of the evidence implicates a defendant's right to due process. Tibbs v. Florida , 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) ; State v. Draper , 10th Dist. No. 01AP-237, 2001 WL 1631320 (2001). Among the due process protections enumerated in Article I, Section 10 of the Ohio Constitution is the following: "no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury." The purpose of this provision is to guarantee "the accused that the essential facts constituting the offense for which he is tried will be found in the indictment of the grand jury." State v. Headley , 6 Ohio St.3d 475, 478, 453 N.E.2d 716 (1983). The charging statement of the indictment may be made "in the words of the applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged." Crim.R. 7(B).

{¶ 21} In certain instances, "a material variance between the allegations in the indictment and the proof at trial" may be cause for dismissal. State v. Overholt , 9th Dist. No. 02CA0108-M, 2003-Ohio-3500, 2003 WL 21508774, ¶ 55, citing State v. Pittman , 9 Ohio St.2d 186, 224 N.E.2d 913 (1967). However, a verdict may not be "set aside, nor shall any judgment of conviction be reversed" based on any "variance between the allegations and the proof thereof, unless the defendant is misled or prejudiced thereby." Crim.R. 33(E).

{¶ 22} In language that largely tracked the statutory definition of theft, Scott's indictment alleged that she did "knowingly obtain or exert control over the property or services without the consent of the owner or person authorized to give consent and/or beyond the scope of the express or implied consent of the owner or person authorized to give consent and/or by deception." See R.C. 2913.02(A)(1) through (3). This language gave Scott sufficient "notice of all the elements of the offense" in question under Crim.R. 7(B).

{¶ 23} However, the indictment identified "the owner" of the stolen "property or services" as WC Management. This differed from the evidence of theft at trial. Close to Home Realty was the only entity owed the rent that Scott was charged with taking. She wrote receipts for rent to tenants of Close to Home Realty after accepting rent, and that entity, not WC Management, owned and managed those tenants' properties. Close to Home Realty and WC Management were unquestionably separate entities. In spite of the state's attempt to characterize them as intermingled, they were distinct entities with different owners, as well as separate bank accounts. For this reason, the state's evidence varied from the indictment.

{¶ 24} Standing alone, however, this variance is insufficient grounds to reverse Scott's conviction because a victim's name is not an element of the offense of theft. In State v. Shoemaker , 96 Ohio St. 570, 117 N.E. 958 (1917), the Supreme Court of Ohio reversed a trial court that had dismissed an indictment for vehicle theft that named the incorrect owner of the vehicle and held that the variance was "not fatal" without a showing of prejudice to the defendant, as "[t]he gist of the offense was not the particular ownership of the property, but the 'wrongful' taking."

{¶ 25} Similarly, in Overholt at ¶ 57, a defendant charged with receiving stolen property under R.C. 2913.51 argued that his indictment should have been dismissed because a variance between the indictment's misidentification of a vehicle's owner as his father and the evidence at trial was "material in nature." The Ninth District rejected this argument because "this minor variation, if a variation at all, made no difference to the nature of the charge. The identity of the owner of the stolen property is not an element of the offense and an addition or change thereof does not generally change the name or identity of the crime charged." Id. Here, as well, the victim's name is not an element of theft, the offense Scott was charged with. See R.C. 2913.02(A).

{¶ 26} As Crim.R. 33(E) states, a defendant must show that she was "misled or prejudiced" by the variance before a court may reverse her conviction. Scott's brief mentions one troubling circumstance. (Appellant's Brief at 1-2.) After finding out that the actual victim of the theft alleged against Scott was Close to Home Realty, her attorney subpoenaed, and was denied, records regarding that entity. (Feb. 23, 2016 Tr. Vol. 2 at 37-39.) The trial court stated that if Close to Home Realty was the actual victim of the theft, "then we have a dilemma because [Scott's attorney] was not provided full information with respect to Close to Home pursuant to her request." (Tr. Vol. 2 at 39-40.) The evidence at trial demonstrated that Close to Home Realty was the victim of the theft. Thus, Scott not only had a discovery request regarding the actual victim of the theft denied because the indictment named another victim, but had to mount a defense at trial after that denial. The state's brief is silent on these issues, and simply asserts that "the victim being WC Management is not an element of the offense." (Appellee's Brief at 8.)

{¶ 27} Accepting the trial court's assessment of this situation, we conclude that Scott suffered sufficient prejudice to warrant reversal of her conviction. Because reversal is warranted on these grounds, we need not reach her second argument in support of the first and second assignments of error, and her third assignment of error is moot.

{¶ 28} For the foregoing reasons, we sustain the first and second assignments of error and find the third assignment of error is rendered moot. Accordingly, Scott's conviction is reversed and this case is remanded.

Judgment reversed; case remanded.

DORRIAN, J., concurs.

SADLER, J., dissents.

SADLER, J., dissenting.

{¶ 29} Because I believe the majority has addressed an issue not raised or preserved by appellant on appeal, I respectfully dissent.

{¶ 30} "This court rules on assignments of error, not mere arguments." Huntington Natl. Bank v. Burda , 10th Dist. No. 08AP-658, 2009-Ohio-1752, 2009 WL 989127, ¶ 21, quoting App.R. 12(A)(1)(b) (stating that " 'a court of appeals shall * * * [d]etermine the appeal on its merits on the assignments of error set forth in the briefs' "); Williams v. Barrick , 10th Dist. No. 08AP-133, 2008-Ohio-4592, 2008 WL 4174146, ¶ 28 (holding that appellate courts "rule[ ] on assignments of error only, and will not address mere arguments").

{¶ 31} After finding that the identity of the owner of the stolen property is not an element of the offense, the majority reverses appellant's theft conviction finding that appellant suffered "sufficient prejudice to warrant reversal of her conviction." (Majority Decision at ¶ 27.) This stated basis for reversal and discussion of Crim.R. 33 does not address an issue preserved or argued on appeal by appellant. Simply put, appellant did not file a motion for a new trial in the trial court, and this is not an appeal from a trial court decision denying a motion for new trial. Appellant does not argue in her first or second assignments of error that she was prejudiced by a variance between the allegations in the indictment and the proof at trial, nor does appellant cite Crim.R. 33 as a basis for this appeal.

{¶ 32} Because appellant's first and second assignments of error challenge only the sufficiency of the evidence and the appropriateness of the court's overruling of appellant's motion for acquittal, I would consider only these questions when ruling on those assignments of error.

{¶ 33} Accordingly, I would address fully appellant's three assignments of error. Because the majority does not, I respectfully dissent.

      Typically, such variance is cured by amending the indictment, as Crim.R. 7(D) states that "[a] court may at any time before, during, or after a trial amend the indictment * * * in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged." With a theft offense, such amendment is allowable because "[t]he identity of the owner of the stolen property is not an element of the offense and an addition or change thereof does not generally change the name or identity of the crime charged." State v. Overholt , 9th Dist. No. 02CA0108-M, 2003-Ohio-3500, 2003 WL 21508774, ¶ 57. In this case, the trial court overruled the state's request to amend the indictment.

      The dissent's position that we have "addressed an issue not raised or preserved by appellant on appeal" is not supported by our opinion or the record. (Dissent at ¶ 1.) The dissent asserts that we have failed to "address the issues raised by appellant in her first and second assignments of error." Id. at ¶ 2. But the sole ground for reversal is the insufficiency of the evidence, the issue raised by the first and second assignments of error. Scott specifically argues in her brief that it was legally insufficient to convict her for theft from WC Management because the evidence only pertained to Close to Home Realty. (Appellant's Brief at 8.) The dissent appears to take issue with the reliance on Crim.R. 33(E)'s requirement of a showing of prejudice, but Scott's brief specifically mentions the prejudice she suffered by the denial of the discovery motion, which was argued in the trial court. (Appellant's Brief at 1-2; Feb. 23, 2016 Tr. at 38-39.)


source: Caselaw Access Project

author: TYACK, P.J.

license: Public Domain

text:
    BLUEMILE, INC., Plaintiff-Appellee, v. ATLAS INDUSTRIAL CONTRACTORS, LTD. et al., Defendants-Appellees,
    (Hartford Casualty Insurance Company, Defendant-Appellant).
    Bluemile, Inc., Plaintiff-Appellant, v. Atlas Industrial Contractors, Ltd. et al., Defendants-Appellees.
    No. 16AP-789 No. 16AP-791
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 21, 2017
    On brief: Rutter & Russin, LLC, Cleveland, Robert P. Rutter and Robert A. Rutter, for Bluemile, Inc. Argued: Robert A. Rutter.
    On brief: Mazza & Associates, LLC, and John P. Mazza, Columbus, for Atlas Industrial Contractors, LLC. Argued: John P. Mazza, Columbus.
    On brief: Smith, Rolfes & Skavdahl Co., LPA, Columbus, and James P. Nolan, Cincinnati; Robins Kaplan LLC, and Scott G. Johnson, for Hartford Casualty Insurance Company. Argued: Scott G. Johnson.
    DECISION
   TYACK, P.J.

{¶ 1} In this consolidated appeal, defendant-appellant, Hartford Casualty Insurance Company ("Hartford"), appeals from the February 25, 2014 decision and entry of the Franklin County Court of Common Pleas denying Hartford's motion for summary judgment and granting plaintiff-appellee's, Bluemile, Inc. ("Bluemile"), motion for partial summary judgment and declaratory relief. In addition, Bluemile appeals from the September 19, 2016 decision and entry of the Franklin County Court of Common Pleas granting defendant-appellee's, Atlas Industrial Contractors, Ltd. ("Atlas"), motion for judgment notwithstanding the verdict ("JNOV"). For the reasons that follow, we affirm in part and reverse in part the judgment of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Bluemile is a company that provides its clients cloud services, network services, data hosting, and voice services at its data center located at 226 North Fifth Street, Columbus, Ohio. On February 10, 2011, Bluemile suffered a temporary disruption in its service capabilities when an Atlas technician placed a noninsulated screwdriver into one of Bluemile's computer drives causing an electrical short and an interruption in Bluemile's service capabilities that lasted approximately two hours. During this period of time, Bluemile was unable to provide voice and other network services to its customers and as a result, customers left and Bluemile suffered a loss of voice and cloud business income.

{¶ 3} At the time of the incident, Bluemile had an effective insurance policy with Hartford and therefore Bluemile sought coverage from Hartford for its loss of business income. Hartford made some payments to Bluemile, but refused additional payments, and litigation ensued. Bluemile and Hartford disagreed about the duration of Extended Business Income ("EBI") coverage in the policy. After Bluemile submitted its claim, Hartford claimed that there was a typographical error in the policy and that EBI coverage was limited to a period of 90 days from the date of repair. Bluemile, however, claimed that there was no typographical error and the coverage was not limited to 90 days. The parties filed cross-motions for summary judgment on the issue of the duration of the EBI coverage. On February 25, 2014, the trial court granted Bluemile's motion for partial summary judgment and denied Hartford's motion. The trial court declined to correct the alleged typographical error, and ruled that Hartford had to pay based on the policy as written.

{¶ 4} While the litigation was pending, Bluemile and Hartford agreed that under the terms of the policy, an appraisal hearing was needed. The appraisal panel was to determine the relevant and material facts concerning the dispute and to determine the amount of loss of Bluemile's business income ("BI") and EBI claims submitted to Hartford. The insurance policy defines and treats BI and EBI losses differently.

{¶ 5} The appraisal panel awarded Bluemile a grand total of $1,861,450 broken down among voice and cloud business. The trial court found Bluemile entitled to judgment against Hartford for its claimed EBI loss of voice and cloud business in the amount of $1,861,450 less the pre-appraisal payment of $172,920 and the post-appraisal payment of $203,304 for a grand total of $1,485,226, plus prejudgment interest from April 3, 2015. (Jan. 29, 2016 Decision and Entry on Bluemile's Motion for Order Confirming Appraisal Award at 13, 15.) All told, Hartford paid Bluemile $718,202-$545,282 for loss of cell phone/voice income and $172,920 for loss of cloud income.

{¶ 6} Both Bluemile and Hartford sued Atlas. Bluemile alleged Atlas breached its duty to perform electrical work for Bluemile in a reasonable manner by negligently inserting a noninsulated screwdriver into one of Bluemile's computer drives.

{¶ 7} Hartford had a right of subrogation, and sought to collect the money it had paid Bluemile to date. However, prior to trial, Atlas settled with Hartford for $315,000. The settlement was a lump sum that encompassed all voice and cloud damages already paid by Hartford ($718,202) plus any voice or cloud damages Hartford would have to pay in the future if it lost its appeal concerning the duration of EBI coverage in the policy.

{¶ 8} The jury returned a verdict of $1,000,000 against Atlas for voice damages, and a verdict of zero for cloud damages. Atlas filed a motion for JNOV pursuant to Civ.R. 50(B) seeking a setoff. The trial court set off the entire $718,202 paid to date by Hartford against the $1,000,000 jury verdict.

II. ASSIGNMENTS OF ERROR

{¶ 9} Hartford appealed from the February 25, 2014 decision and entry of the trial court granting Bluemile's motion for partial summary judgment and declaratory relief and denying Hartford's motion for summary judgment. Hartford assigns the following as error:

The trial court erred in granting summary judgment to Appellee Bluemile, Inc. and denying summary judgment to Appellant Hartford Casualty Insurance Co. on the issue of the duration of the Extended Business Income coverage provided by the Hartford policy.

{¶ 10} Bluemile appealed from the September 19, 2016 decision and entry of the trial court granting Atlas' motion for JNOV and setting off $718,202 paid by Hartford to Bluemile against the $1,000,000 jury verdict. Bluemile assigns the following as errors:

[I.] The trial court erred in granting Atlas any setoff from the $1,000,000 verdict because Atlas did not prove that the damages awarded to Bluemile by the jury matched the damages for which Atlas paid Hartford.
[II.] Even if Atlas proved that it was entitled to some setoff, the trial court erred in how it calculated the setoff.

III. STANDARD OF REVIEW

{¶ 11} With respect to Hartford's appeal, we review a grant of summary judgment de novo, independently reviewing the record and affording no deference to the trial court's decision. Patel v. Univ. of Toledo , 2017-Ohio-7132, 95 N.E.3d 979, ¶ 9, citing Holt v. State , 10th Dist. No. 10AP-214, 2010-Ohio-6529, 2010 WL 5550693, ¶ 9. Therefore, we undertake an independent review to determine whether Bluemile was entitled to judgment as a matter of law. Civ.R. 56(C).

{¶ 12} A motion for JNOV is governed by Civ.R. 50(B). The test applied by a trial court in ruling on a motion for JNOV is the same test to be applied on a motion for a directed verdict. Kenner v. Grant/Riverside Med. Care. Found. , 2017-Ohio-1349, 88 N.E.3d 664, ¶ 22. The record must be construed most strongly in favor of the party against whom the motion is made and, where there is substantial evidence to support its side of the case, on which reasonable minds may reach different conclusions, the motion must be denied. Nickell v. Gonzalez , 17 Ohio St.3d 136, 137, 477 N.E.2d 1145 (1985). A ruling on a motion for JNOV is a question of law reviewed de novo on appeal. Kenner at ¶ 22, citing Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 25.

IV. DURATION OF EXTENDED BUSINESS COVERAGE

{¶ 13} The issue of the duration of the extended business coverage under the Hartford policy is one of contract construction and interpretation. The construction and interpretation of written contracts involves issues of law that an appellate court reviews de novo. Elec. Classroom of Tomorrow v. Ohio Dept. of Edn. , 2017-Ohio-5607, 92 N.E.3d 1269, ¶ 36.

{¶ 14} When parties to a contract dispute the meaning of the contract language, courts must first look to the four corners of the document to determine whether an ambiguity exists. KeyBank Natl. Assn. v. Columbus Campus, LLC , 2013-Ohio-1243, 988 N.E.2d 32, ¶ 27. "If the contract terms are clear and precise, the contract is not ambiguous and must be enforced as written." Id. In construing an insurance contract, the court is to look first at the plain and ordinary meaning of the language in the policy to understand the intent of the parties. Westfield Ins. Co. v. Galatis , 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11. Courts presume that the intent of the parties to a contract resides in the language they chose to employ in the agreement. Dodge v. Dodge , 2017-Ohio-7087, 95 N.E.3d 820, ¶ 24, citing Kelly v. Med. Life Ins. Co. , 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one of the syllabus. When the terms in a contract are unambiguous, courts will not in effect create a new contract by finding intent not expressed in the clear language employed by the parties. Alexander v. Buckeye Pipeline Co. , 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978). "A contract cannot be unilaterally modified, and parties to a contract must mutually consent to a modification." Hanna v. Groom , 10th Dist. No. 07AP-502, 2008-Ohio-765, 2008 WL 500530, ¶ 27.

{¶ 15} Contract language is ambiguous if its meaning cannot be determined from the four corners of the contract or if the contract language is susceptible to two or more conflicting, yet reasonable interpretations. Id ., citing Covington v. Lucia , 151 Ohio App.3d 409, 2003-Ohio-346, 784 N.E.2d 186, ¶ 18 (10th Dist.)

{¶ 16} The test to be applied in determining whether there is an ambiguity is not what the insurer intended it to mean, but what a reasonably prudent person applying for insurance would have understood. Snedegar v. Midwestern Indem. Co. , 64 Ohio App.3d 600, 604, 582 N.E.2d 617 (10th Dist.1989), citing 2 Couch on Insurance 2d (1984) 438, Section 15:92. "Thus, the criterion is ambiguity from the standpoint of a layman, not a lawyer." Id.

{¶ 17} In addition, Ohio follows the doctrine of contra proferentum, which means that "[l]anguage in a contract of insurance reasonably susceptible of more than one meaning will be construed liberally in favor of the insured and strictly against the insurer." Buckeye Union Ins. Co. v. Price , 39 Ohio St.2d 95, 313 N.E.2d 844 (1974), syllabus. "In the insurance context, the insurer customarily drafts the contract. Thus, an ambiguity in an insurance contract is ordinarily interpreted against the insurer and in favor of the insured." Westfield Ins. Co. at ¶ 13, citing King v. Nationwide Ins. Co. , 35 Ohio St.3d 208, 519 N.E.2d 1380 (1988), syllabus.

{¶ 18} In this case, one must consult three different sections of the policy to determine the relevant policy language: the Special Property Coverage Form, modified by the Actual Loss Sustained Business Income & Extra Expense-Specified Limit Coverage endorsement, which is further modified by the Super Stretch for Technology and Software Service Providers endorsement. After piecing together these provisions, the operative EBI language in the Hartford policy is as follows:

Extended Business Income
We will pay for the actual loss of Business Income you incur during the period that:
(1) Begins on the date property is actually repaired, rebuilt or replaced and "operations" are resumed; and
(2) Ends on the earlier of:
(a) The date you could restore your "operations" with reasonable speed, to the condition that would have existed if no direct physical loss or physical damage occurred; or
(b) 90 consecutive days after the date determined in (a) above.

(Emphasis omitted.) (Sept. 23, 2013, Joint Stip. Ex. A1, as modified by changing 30 days to 90 days at 2231, 2233 & 2241.)

{¶ 19} The parties dispute the language in subsection (2). Bluemile argues that subsection (2)(a) governs the length of the EBI coverage, while Hartford contends that there is a typographical error in subsection (2)(b) and that the "(a)" in subsection 2(b) should actually be "(1)," thus limiting the length of time for coverage to 90 days from the date of repair and resumption of operations.

{¶ 20} The plain language of the policy indicates that EBI coverage ends on the date Bluemile could restore its operations to the condition they were in prior to the service interruption or 90 consecutive days after such restoration, whichever is earlier. One can then infer that subsection (2)(b), the second of the two end dates, could never apply because that end date, 90 consecutive days after end date (a), could never be earlier than end date (a). Thus the policy, as written, provides EBI coverage until Bluemile is made whole. Bluemile asks the court to enforce the policy as written.

{¶ 21} Hartford however, contends that this is not the coverage it intended to provide, but is the result of a scrivener's error in drafting the policy. Hartford proposes that by changing the "(a)" in subsection (2)(b) to a "(1)" the provision makes sense and is the most reasonable interpretation as it gives effect to both (a) and (b) in subsection (2). Hartford argues that doing so is not resolving an ambiguity or rewriting the policy but simply correcting an obvious typographical error. Hartford claims it is not seeking reformation, but rather an alternative, more reasonable interpretation that would cut off EBI coverage 90 consecutive days after the property is repaired and operations are resumed.

{¶ 22} Hartford relies on the case of Farmers' Natl. Bank v. Delaware Ins. Co. , 83 Ohio St. 309, 94 N.E. 834 (1911) in which the Supreme Court of Ohio held at paragraph six of the syllabus:

In the construction of a contract courts should give effect, if possible, to every provision therein contained, and if one construction of a doubtful condition written in a contract would make that condition meaningless, and it is possible to give it another construction that would give it meaning and purpose, then the latter construction must obtain.

{¶ 23} Here, the only way to give subsection (2)(b) the meaning that Hartford wants is to alter the contract as written by deleting one character and inserting another into the provision. Changing the "a" to a "1" is not interpreting the contract, it is rewriting the contract. A court may not rewrite a contract under the guise of construing it. See Aultman Hospital Assn. at 51 ("The contract construction urged by the hospitals would not be a construction at all but would amount to the making of a new contract for the parties which is not the function of the court.").

{¶ 24} We believe the proper test to be applied is not what the insurer now says it intended the words to mean, but rather "a reasonable construction of the document in conformity with the intention of the parties as gathered from the ordinary and commonly understood meaning of the language actually employed." Royal Paper Stock Co. v. Robinson , 10th Dist. No. 12AP-455, 2013-Ohio-1206, 2013 WL 1286698, ¶ 30. Here, the alleged typographical error is not obvious, and it is not readily apparent that a layperson attempting to read three sections of the policy together would realize that the section contains an error. This is confirmed by the fact that the alleged typographical error had been in the policy for at least six years without discovery. (See Oct. 11, 2013 Reply of Defendant Hartford at 4.) Not until Bluemile made a claim for coverage did Hartford seek to interpret the policy to mean something other than what it says on the face of the contract. Thus, we will not rewrite the policy to conform to Hartford's interpretation.

{¶ 25} The actual language of the policy is clear, at least as clear as a policy can be where one must piece together multiple provisions. Applying the test set forth in Snedegar at 604, 582 N.E.2d 617, a reasonably prudent person applying for EBI coverage would have understood the policy to mean that EBI coverage would end on the date the insured could restore its operations with reasonable speed, to the condition that would have existed if no direct physical loss or physical damage occurred. If there is an ambiguity as to whether that date or 90 days after operations are restored is earlier, any such ambiguity should be resolved in favor of the insured. Accordingly, we overrule Hartford's assignment of error.

V. ENTITLEMENT TO SETOFF

{¶ 26} Bluemile contests the trial court's decision to setoff $718,202 from the jury award of $1,000,000.

{¶ 27} The parties agreed prior to trial that only Bluemile and Atlas would actively participate in the trial of the tort claim. The jury was not told that Hartford insured Bluemile and was seeking reimbursement from Atlas for the $718,202 it had paid Bluemile. Absent a settlement agreement, if a verdict were returned for Bluemile, Hartford's right of subrogation would be addressed by the trial court as a matter of law. However, prior to trial, Hartford settled with Atlas. In the release and waiver of all subrogation claims, Hartford agreed to accept $315,000 as full satisfaction of its subrogation claims against Atlas. Thus, Hartford extinguished all recovery or remedy rights it had against Atlas. The jury was not apprised of the settlement.

{¶ 28} The jury found damages in the amount of $1,000,000. Based on the interrogatories returned by the jury, the $1,000,000 jury award was for voice damages only. However, the $718,202 payment from Hartford to Bluemile was for both loss of voice and cloud business income, consisting of $545,282 paid for voice damages and $172,920 paid for cloud damages.

{¶ 29} Atlas moved for JNOV claiming that it was entitled to a setoff of $718,202 from the jury award of $1,000,000 based on the total amount Hartford had paid to Bluemile to date. Atlas argued it was entitled to the setoff to prevent double recovery by Bluemile of the same damages. The trial court agreed and ordered the full amount of $718,202 be set off to prevent Bluemile from reaping a double recovery.

{¶ 30} On appeal, Bluemile claims that the trial court erred in granting Atlas any setoff from the $1,000,000 verdict because Atlas did not prove that the damages awarded to Bluemile by the jury matched the damages for which Atlas paid Hartford. Alternatively, Bluemile argues that even if Atlas proved that it was entitled to some setoff, the trial court erred in how it calculated the setoff.

{¶ 31} Atlas claims that its $315,000 settlement with Hartford in exchange for Hartford agreeing not to seek recovery from Atlas of the $718,202 it had paid Bluemile or any amounts it might be required to pay in the future, is grounds for a setoff of $718,202, the amount paid up to this point by Hartford to Bluemile. Atlas has stated that it intends to seek additional setoff if Hartford's appeal is unsuccessful and Hartford must pay additional sums to Bluemile. Our resolution of the issue of the duration of EBI coverage raises the distinct possibility that Atlas will pursue additional setoff, and Bluemile's judgment against Atlas will be reduced to zero.

{¶ 32} There are a number of principles that apply to the issues of setoff and collateral benefits, and some of these principles are in conflict or tension with each other.

{¶ 33} In general, a tortfeasor can only be liable for 100 percent of the damages it proximately caused. Here, a jury determined that Atlas was liable for $1,000,000 of voice damages. Thus, even when, as here, a tortfeasor faces two claims, one by Bluemile, the insured victim, and another by Hartford, the victim's subrogated insurer, Atlas can only be liable for 100 percent of the damages it caused.

{¶ 34} The collateral source rule is an exception to the general rule of compensatory damages in a tort action. "The collateral source rule has been defined as 'the judicial refusal to credit to the benefit of the wrongdoer money or services received in reparation of the injury caused which emanates from sources other than the wrongdoer.' " Pryor v. Webber, 23 Ohio St.2d 104, 107, 263 N.E.2d 235 (1970), quoting Maxwell , The Collateral Source Rule in the American Law of Damages, 46 Minn. L.Rev. 669, 670. Therefore, benefits received by the plaintiff from a source collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. Under the common law collateral source rule, evidence of compensation a plaintiff received from collateral sources was not admissible to diminish the damages a tortfeasor was required to pay for his negligent act. Pryor at paragraph two of the syllabus. Thus, the collateral source rule operated to, at times, allow a plaintiff to receive double recovery on some items of damages. Adae v. State , 10th Dist. No. 12AP-406, 2013-Ohio-23, 2013 WL 85200, ¶ 17. Since Pryor , the General Assembly has enacted many statutes to limit the effect of the rule. Adae at ¶ 18.

{¶ 35} The rule is grounded in the policy that a tortfeasor should be liable for the damages caused by its wrongdoing, and if any windfall results because of an outside payment, it is the innocent party who should benefit and not the one whose wrongful act caused injury. 30 Ohio Jurisprudence 3d, Damages Section 106. Or stated another way, should Atlas receive a windfall because Bluemile was prudent and had the foresight to purchase insurance?

{¶ 36} The collateral source rule is in tension with the principle that the basis for granting a defendant a setoff for settlement funds is that a plaintiff should not receive more than one recovery for the same damages. See Celmer v. Rodgers , 11th Dist. No. 2004-T-0083, 2005-Ohio-7055, 2005 WL 3610479, ¶ 27 ("Setoff of settlement funds has been recognized as a means to protect against the danger of a double recovery in cases where settlement agreements have been entered into by co-defendants."); See also Herlihy Moving & Storage, Inc. v. Adecco USA, Inc. , 772 F.Supp.2d 898, 899 (S.D. Ohio 2011) ("the basis for granting a defendant a setoff in the amount of damages it owes is the notion that a plaintiff should not receive more than one recovery for the same damages."). Thus, on the one hand, a plaintiff should not receive more than one recovery for the same set of damages, but on the other hand, a tortfeasor should not be granted a windfall by allowing him credit for payments made by a third party. Here, an application of the collateral source rule would allow Bluemile to be compensated twice for some damages as long as the double recovery is not coming from Atlas.

{¶ 37} Another principle on the issue of setoff is that a defendant who seeks to take advantage of a setoff credit has the burden of proving the amount of credit to which he is entitled. Id. at 900 ; see also Goodrich Corp. v. Commercial Union Ins. Co. , 9th Dist. No. 23585, 2008-Ohio-3200, 2008 WL 2581579, ¶ 39. The party seeking setoff must prove that the loss for which the collateral benefit compensates is actually included in the jury award. Adae at ¶ 28 ; Buchman v. Bd. of Edn. , 73 Ohio St.3d 260, 269, 652 N.E.2d 952 (1995) (dealing with damages against a political subdivision); Holeton v. Crouse Cartage Co. , 92 Ohio St.3d 115, 122, 748 N.E.2d 1111 (2001) (discussing constitutionality of various collateral benefits offset statutes).

{¶ 38} Bluemile contends that Atlas did not prove that the damages awarded by the jury matched the damages paid for by Hartford. Atlas was allowed a setoff for the full amount of the insurer's subrogation claim, but $172,920 of that claim was for cloud damages. The jury did not award any sum for cloud damages. The $718,202 paid by Hartford was broken down to be $545,282 for voice damages in the first 90 days and $172,920 for cloud damages. It is undisputed that of the $718,202 setoff from the $1,000,000 verdict, $172,920 was for cloud damages. Therefore, at the very least, Atlas has failed to meet its burden of proving that $178,202 paid by Hartford for cloud damages was part of the jury's award.

{¶ 39} Atlas has stated that it intends to seek further setoff if Bluemile wins its appeal against Hartford. Atlas states that there is a strong public policy against double recovery, but to fully accept this argument would result in Atlas, the tortfeasor, having its judgment reduced to zero because Bluemile was prudent enough to purchase first-party property insurance from Hartford. Atlas would be able to satisfy the $1,000,000 jury verdict by paying only $315,000, the amount of its settlement with Hartford.

{¶ 40} Atlas should not have to pay more than 100 percent of the damages it proximately caused. A jury determined that Atlas was liable for $1,000,000 in voice damages. Hartford had a right of subrogation and settled with Atlas for $315,000 encompassing all voice and cloud damages previously paid and any additional damages that Hartford would have to pay if it lost its appeal against Bluemile. Any setoff should be limited to the amount Atlas paid to settle the subrogation claim. A setoff of $315,000 from the $1,000,000 verdict results in Atlas paying 100 percent of the damages a jury found it liable for.

{¶ 41} The case of Hayes Sight & Sound, Inc. v. ONEOK, Inc. , 281 Kan. 1287, 136 P.3d 428 (2006) is instructive on this point. In that case, a fire caused by ONEOK's negligence damaged two businesses, one insured by Hartford and one insured by State Farm. The businesses were compensated by their insurers and then filed suit against ONEOK. ONEOK settled with the insurance companies for undisclosed amounts. The businesses then obtained a verdict against ONEOK for an amount in excess of what they had been paid by their insurers. ONEOK asked for a setoff of the full amount the insurers had paid the businesses. The court held that the defendants were entitled to a setoff of the settlement amounts of the subrogation claims, not the full amount of the subrogation claims, explaining as follows:

We disagree with the defendants that the setoff should be in the amount of the insurer's subrogation claim. To do so would allow the defendants to escape paying the full amount of plaintiffs' damages. The defendants are entitled to a setoff in the amount they paid to the plaintiffs' insurers to settle the subrogation claim. If that payment was less than the amount of the insurers' subrogation claim, the plaintiffs can retain the difference, and to that extent double recovery is permissible.

Id. at 281 Kan. at 1306, 136 P.3d 428.

{¶ 42} We believe that a setoff in the amount of $315,000, the amount paid to settle the subrogation claim, strikes the appropriate balance between the collateral source rule and the principle that a plaintiff should not receive more than one recovery for the same set of damages. In this way, Atlas is held fully liable for its wrongdoing. Absent a setoff, Atlas will pay more than the amount of the jury award.

{¶ 43} Based on the foregoing, we overrule Bluemile's first assignment of error, and sustain the second assignment of error.

VI. CONCLUSION

{¶ 44} In summary, Hartford's sole assignment of error is overruled. Bluemile's first assignment of error is overruled and the second assignment of error is sustained.

The judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part, and the matter is remanded for further proceedings in accordance with law and consistent with this decision.

Judgment affirmed in part, reversed in part; cause remanded for further proceedings.

KLATT and HORTON, JJ., concur.


author: SADLER, J.

text:
    TLC HEALTH CARE SERVICES, LLC, Plaintiff-Appellant, v. OHIO DEPARTMENT OF JOB & FAMILY SERVICES et al., Defendants-Appellees.
    Medcorp, Inc. and Medcorp E.M.S. South, LLC, Plaintiffs-Appellants, v. Ohio Department of Job & Family Services et al., Defendants-Appellees.
    No. 17AP-181 No. 17AP-182
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 21, 2017
    On brief: Barkan & Robon, Ltd., and R. Ethan Davis, Maumee, for appellant TLC Health Care Services, LLC.
    On brief: Webster & Associates Co., LPA, Geoffrey E. Webster, and Bryan M. Pritikin, Columbus, for appellants Medcorp, Inc. and Medcorp E.M.S. South, LLC. Argued: Geoffrey E. Webster.
    On brief: Michael DeWine, Attorney General, and Rebecca L. Thomas, for appellees. Argued: Rebecca L. Thomas.
    DECISION
   SADLER, J.

{¶ 1} Plaintiffs-appellants, TLC Health Care Services, LLC ("TLC") and Medcorp, Inc. and Medcorp E.M.S. South, LLC ("Medcorp") (collectively "appellants"), appeal from a judgment of the Franklin County Court of Common Pleas dismissing their claims against defendants-appellees, Ohio Department of Job and Family Services ("ODJFS") and Helen E. Jones-Kelley, Director of ODJFS (collectively "appellees"), for lack of subject-matter jurisdiction. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} At all relevant times, appellants engaged in the business of providing both emergency and non-emergency ambulance services and emergency and non-emergency ambulette services (wheelchair van) for patients enrolled in the Ohio Medicaid program administered by appellees. In order for appellants to conduct such business, appellees required appellants to obtain Medicaid certification and to execute provider agreements setting forth the terms of service, including the rate of reimbursement for covered services provided. Ohio Adm.Code 5160-1-17.2 defines the provider agreement, in relevant part, as follows:

A provider agreement is a contract between the Ohio department of job and family services (ODJFS) And a provider of medicaid covered services. By signing this agreement the provider agrees to comply with the terms of the provider agreement, Revised Code, Administrative Code, and federal statutes and rules.

{¶ 3} Ohio Adm.Code 5160-1-60 sets forth the Medicaid payments providers are to receive for covered services, in relevant part, as follows:

(A) The medicaid payment for a covered procedure, service, or supply constitutes payment in full and may not be construed as a partial payment when the payment amount is less than the provider's submitted charge.
(B) * * * The medicaid payment amount for a covered service, procedure, or supply is the lesser of the submitted charge or the established medicaid maximum. Medicaid maximum payment amounts for many existing services, procedures, and supplies, particularly services rendered by practitioners of the healing arts, are set forth in the appendix to this rule.

{¶ 4} On December 11, 2007, Medcorp filed a complaint against appellees in the Lucas County Court of Common Pleas. The complaint alleges the Medicaid reimbursement rates set by appellees are so low as to violate state and federal statutory, regulatory, and constitutional provisions, including 42 U.S.C. 1983, 42 U.S.C. 1396a(a)-(30)(A), 42 C.F.R. 447.204, R.C. Chapter 5111, R.C. 5111.01 and 5111.02, the Due Process Clauses, the Equal Protection Clauses, and the Takings Clauses. The complaint further alleges the Medicaid reimbursement rates set by appellees constitute a breach of the provider agreement. On May 12, 2008, TLC filed a complaint against appellees in the Lucas County Court of Common Pleas alleging the same claims. Appellants' complaints seek declaratory and injunctive relief, as well as "just compensation for Medicaid reimbursement monies taken to which it is entitled." (TLC Compl. at 9; Medcorp Compl. at 10.)

{¶ 5} On appellees' motion, the Lucas County Court of Common Pleas transferred venue of the two cases to Franklin County, and the trial court in Franklin County consolidated the two cases pursuant to Civ.R. 42(A). On October 10, 2008 and January 20, 2009, appellees filed a motion to dismiss, pursuant to Civ.R. 12(B)(1), for lack of subject-matter jurisdiction. Appellees argued because appellants alleged claims for monetary relief against the state of Ohio sounding in breach of contract, the Court of Claims of Ohio had exclusive original jurisdiction of the complaints. Appellants argued even though the complaints seek monetary relief against appellees, the claims alleged in the complaints are purely equitable in nature and are, therefore, within the jurisdiction of the courts of common pleas.

{¶ 6} The trial court agreed with appellees and granted appellees' motion to dismiss on February 9, 2017. Appellants timely appealed to this court from the trial court judgment.

II. ASSIGNMENTS OF ERROR

{¶ 7} Appellants set forth the following two assignments of error:

[1.] THE FRANKLIN COUNTY COMMON PLEAS COURT ERRED IN FINDING IT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER THE CLAIMS IN THE UNDERLYING ACTION.
[2.] THE FRANKLIN COUNTY COURT OF COMMON PLEAS ERRED IN EXERCISING VENUE OVER THE UNDERLYING ACTION.

III. STANDARD OF REVIEW

{¶ 8} The issue of subject-matter jurisdiction involves " 'a court's power to hear and decide a case on the merits and does not relate to the rights of the parties.' " Columbus Green Bldg. Forum v. State , 10th Dist. No. 12AP-66, 2012-Ohio-4244, 980 N.E.2d 1, ¶ 14, quoting Vedder v. Warrensville Hts. , 8th Dist. No. 81005, 2002-Ohio-5567, 2002 WL 31320350, ¶ 14. " ' Civ.R. 12(B)(1) permits dismissal where the trial court lacks jurisdiction over the subject matter of the litigation.' " Patriot Water Treatment, LLC v. Ohio Dept. of Natural Resources , 10th Dist. No. 13AP-370, 2013-Ohio-5398, 2013 WL 6506561, ¶ 29, quoting PNC Bank, Natl. Assn. v. Botts , 10th Dist. No. 12AP-256, 2012-Ohio-5383, 2012 WL 5868891, ¶ 21. "When presented with a motion to dismiss for lack of subject matter jurisdiction pursuant to Civ.R. 12(B)(1), a trial court must determine 'whether any cause of action cognizable by the forum has been raised in the complaint.' " Interim HealthCare of Columbus, Inc. v. Ohio Dept. of Adm. Servs. , 10th Dist. No. 07AP-747, 2008-Ohio-2286, 2008 WL 2025153, ¶ 7, quoting PNP, Inc. v. Ohio Dept. of Job & Family Servs. , 10th Dist. No. 04AP-1294, 2006-Ohio-1159, 2006 WL 620914, ¶ 9, citing State ex rel. Bush v. Spurlock , 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). Appellate courts review de novo the issue of subject-matter jurisdiction without any deference to the trial court's determination. Cheap Escape Co., Inc. v. Tri-State Constr., LLC , 173 Ohio App.3d 683, 2007-Ohio-6185, 880 N.E.2d 122, ¶ 18 (10th Dist.).

IV. LEGAL ANALYSIS

A. First Assignment of Error

{¶ 9} In appellants' first assignment of error, appellants argue the trial court erred when it dismissed their complaints against appellees for lack of subject-matter jurisdiction because the claims alleged in the complaints are purely equitable in nature and, therefore, within the jurisdiction of the courts of common pleas. We disagree.

{¶ 10} R.C. 2743.03 created the Court of Claims and vested the court with jurisdiction of the following:

(A)(1) * * * The court of claims is a court of record and has exclusive, original jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in section 2743.02 of the Revised Code and exclusive jurisdiction of the causes of action of all parties in civil actions that are removed to the court of claims. The court shall have full equity powers in all actions within its jurisdiction and may entertain and determine all counterclaims, cross-claims, and third-party claims.

(Emphasis added.)

{¶ 11} R.C. 2743.02(A)(1) sets out the state's waiver of sovereign immunity, in relevant part, as follows:

The state hereby waives its immunity from liability, * * * and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties, except that the determination of liability is subject to the limitations set forth in this chapter * * *. To the extent that the state has previously consented to be sued, this chapter has no applicability.

{¶ 12} Pursuant to the statutory framework, the Ohio General Assembly vested the Court of Claims with exclusive, original jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in R.C. 2743.02 and full equity powers in all actions within its jurisdiction. State ex rel. Moritz v. Troop , 44 Ohio St.2d 90, 92, 338 N.E.2d 526 (1975). In Cristino v. Ohio Bur. of Workers' Comp. , 10th Dist. No. 13AP-772, 2014-Ohio-1383, 2014 WL 1347158, appeal not allowed , 140 Ohio St.3d 1416, 2014-Ohio-3785, 15 N.E.3d 884, this court defined the jurisdictional limits of the Court of Claims in terms of the particular relief sought as follows:

The [Court of Claims Act] does not apply "[t]o the extent that the state ha [d] previously consented to be sued" in the courts of common pleas. R.C. 2743.02(A)(1). * * * As a result, the Court of Claims has no jurisdiction over actions that only seek declaratory judgment or injunctive relief because, before the advent of the act, parties could sue the state for declaratory and injunctive relief in the courts of common pleas. Racing Guild of Ohio, Local 304, Serv. Emps. Internatl. Union, AFL-CIO, CLC v. Ohio Racing Comm. , 28 Ohio St.3d 317, 320, 28 Ohio B. 386, 503 N.E.2d 1025 (1986). Nevertheless, when a claim for declaratory judgment, injunctive relief or other equitable relief is ancillary to a claim over which the Court of Claims has jurisdiction, the Court of Claims possesses jurisdiction to adjudicate the entire action. R.C. 2743.03(A)-(2) ; Ohio Hosp. Assn. v. Ohio Dept. of Human Servs. , 62 Ohio St.3d 97, 103, 579 N.E.2d 695 (1991). The Court of Claims has exclusive jurisdiction over civil actions against the state for money damages that sound in law. Measles v. Indus. Comm. , 128 Ohio St.3d 458, 2011-Ohio-1523, 946 N.E.2d 204, ¶ 7. Thus, if a plaintiff asserts a legal claim for money damages in addition to a claim for declaratory and/or injunctive relief, and all of the asserted claims arise out of the same circumstances, then the Court of Claims can exercise jurisdiction over the entire action. Interim HealthCare at ¶ 13.

Id. at ¶ 12.

{¶ 13} In this instance, appellants acknowledge the complaints seek to compel the payment of money by appellees. Appellants argue, however, that even though their complaints seek monetary relief from appellees, their claims are purely equitable in nature, not claims for money damages at law. In Cristino , this court addressed the distinction between equitable claims seeking the payment of money and legal claims seeking monetary relief as follows:

[N]ot every claim seeking monetary relief is a claim for money damages. [ Interim HealthCare ] at ¶ 15. Even where a claimant seeks relief that will ultimately result in the payment of money by the state, "a cause of action will sound in equity if 'money damages' is not the essence of the claim." Id. , citing Ohio Academy of Nursing Homes v. Ohio Dept. of Job & Family Servs. , 114 Ohio St.3d 14, 2007-Ohio-2620, 867 N.E.2d 400, ¶ 15. For example, an equitable action for specific relief, seeking reimbursement of the compensation allegedly denied or retained, is not transformed into a claim for damages simply because it involves the payment of money. Zelenak v. Indus. Comm. , 148 Ohio App.3d 589, 2002-Ohio-3887, 774 N.E.2d 769, ¶ 18 (10th Dist.) (claim for specific temporary total disability compensation, to which plaintiffs were statutorily entitled, sought equitable relief and not monetary damages), citing Ohio Edison Co. v. Ohio Dept. of Transp. , 86 Ohio App.3d 189, 194, 620 N.E.2d 217 (10th Dist.1993). "Unlike a claim for money damages where a plaintiff recovers damages to compensate, or substitute, for a suffered loss, equitable remedies are not substitute remedies, but an attempt to give the plaintiff the very thing to which it was entitled." Interim HealthCare at ¶ 15, citing Santos [v. Ohio Bur. of Workers' Comp. , 101 Ohio St.3d 74, 2004-Ohio-28] at ¶ 14, 801 N.E.2d 441.

Id. at ¶ 13.

{¶ 14} In Interim HealthCare , this court further clarified the distinction between claims seeking an equitable remedy, which includes the payment of money, from legal claims seeking money damages. Therein, we noted "a claim that seeks to require a state agency to pay amounts it should have paid all along is a claim for equitable relief, not monetary damages." Id. at ¶ 17. If, on the other hand, a plaintiff "cannot assert title or right to possession of particular property," but he or she may, nevertheless, "be able to show just grounds for recovering money to compensate for some benefit the defendant has received from [the plaintiff]," the claim, however characterized by the plaintiff, is treated as a claim for legal remedy. Id.

{¶ 15} Appellants' argument in this case is that their complaints state claims for equitable restitution, rather than legal claims for money damages. For example, in addition to the claims for declaratory and injunctive relief, appellants argue that claims seeking reimbursement from ODJFS for funds wrongfully withheld by ODJFS, in violation of federal statutes and regulations pertaining to Medicaid reimbursement, are equitable in nature, even though the complaints seeks the payment of money. However, even if we were to agree with appellants that the complaints allege claims for equitable restitution, Count III of TLC's complaint in this case provides, in relevant part, as follows:

42. Pursuant to the provider agreements ("Provider Agreements") entered into between the Department and Plaintiff, Defendants are obligated to comply with all applicable state and federal laws and regulations. True and accurate copies of the Agreements are attached hereto and incorporated herein as Exhibits A and B.
43. Plaintiff has complied with all its terms and obligations under the Provider Agreements.
44. The Department has failed to comply with the terms and obligations and has breached the Provider Agreements with Plaintiff.
45. Plaintiff is entitled to the reasonable and adequate adjustment to the Medicaid reimbursement rate for medical transport providers.

(Emphasis added.) (TLC Compl. at 7.)

{¶ 16} TLC's prayer for relief states in pertinent part:

C. That Plaintiff be awarded just compensation for Medicaid reimbursement monies taken to which it is entitled, but which have been withheld in violation of state and federal law and in breach of contract , in an amount to be proven at trial, but in excess of Twenty Five Thousand Dollars ($25,000.00).

(Emphasis added.) (TLC Compl. at 9.)

{¶ 17} In Ohio Hosp. Assn. v. Ohio Dept. of Human Servs. , 62 Ohio St.3d 97, 103, 579 N.E.2d 695 (1991), the defendant-appellant, Ohio Department of Human Services ("ODHS"), appealed a judgment from the Court of Claims, which was entered in favor of the plaintiffs-appellees, hospitals and hospital associations, on their claim for injunctive, declaratory, and monetary relief. The complaint in that case alleged the plaintiffs-appellees incurred monetary damages as a result of newly implemented Ohio Adm.Code 5101:3-2-20, which reduced the period of time Medicaid reimbursed hospitals for outpatient services. According to the complaint, prior to the implementation of the new rule, ODHS reimbursed participating hospitals for outpatient services under a "cost-based reimbursement"

method, which entailed reimbursing each hospital for the costs of the resources directly and indirectly utilized in providing health care services. Ohio Hosp. Assn. v. Ohio Dept. of Human Servs. , 10th Dist. No. 88AP-1034, 1990 WL 85136 (June 21, 1990). Among the claims asserted in the complaint was a claim for reimbursement of monies withheld by ODHS pursuant to an invalid administrative rule.

{¶ 18} On appeal to this court, ODHS argued the Court of Claims did not have jurisdiction of the claims alleged in the complaint because the claims fell outside the state's waiver of immunity under R.C. 2743.02 and, in particular, because the claim reimbursement of monies withheld pursuant to an invalid administrative rule sounded in equitable restitution rather than monetary damages at law. This court affirmed the judgment of the Court of Claims. ODHS appealed from this court's judgment to the Supreme Court of Ohio.

{¶ 19} In the decision of the Supreme Court in Ohio Hosp. Assn. , one of the issues for the court was whether the Court of Claims Act waived sovereign immunity with respect to plaintiffs-appellees' claims alleging ODHS violated the Social Security Act and related federal regulations by enacting the new administrative rule. On this question, the court held that "reimbursement of monies withheld pursuant to an invalid administrative rule is equitable relief, not money damages, and is consequently not barred by sovereign immunity." Id. at 105, 579 N.E.2d 695. Appellants here argue this holding in Ohio Hosp. Assn. supports their contention that the complaints against appellees contain equitable claims for relief, even though the complaints also seek the payment of money. However, a determination that appellants' complaints contain equitable claims for relief against appellees does not resolve the question of jurisdiction presented herein. Of significance to the question of the Court of Claims' jurisdiction in this case is the following holding in Ohio Hosp. Assn. :

We hold that this suit is within the jurisdiction of the Court of Claims because of the nature of the claims raised and the relief sought. The hospitals initially sought relief for violations of their provider agreements and an earlier settlement agreement between certain of the parties, as well as for violations of federal law, state law, the United States Constitution, and the Ohio Constitution. The complaint sought declaratory, injunctive, and monetary relief. The claims for violation of the provider agreements and an earlier settlement agreement are within the exclusive jurisdiction of the Court of Claims to the extent that the hospitals allege that their contractual rights have been violated and seek monetary relief . R.C. 2743.02 and 2743.03.

(Emphasis added.) Id. at 104, 579 N.E.2d 695.

{¶ 20} In light of the allegations in Count III of appellants' complaints, we find the decision of the Supreme Court in Ohio Hosp. Assn. disposes of this appeal. Under Ohio Hosp. Assn. , the dispositive jurisdictional issue is whether the complaints state a claim for money damages at law. Id. at 104, 579 N.E.2d 695. If so, jurisdiction of the complaints is exclusive to the Court of Claims. Id. See also R.C. 2743.03(A)(1) ; Cristino at ¶ 12 ; Interim HealthCare at ¶ 13. It is axiomatic that a claim for money damages sounding in breach of contract is an action at law. Cheap Escape at ¶ 20 ; Stout v. M. Aron Corp. , 10th Dist. No. 92AP-1179, 1993 WL 169102 (May 13, 1993) ("Since laches is an equity defense, it is inapplicable to an action at law to recover damages for a breach of contract."). Appellants' complaints in this case seek recovery of money damages to compensate appellants for a loss of revenue resulting from allegedly inadequate reimbursement rates paid under the terms of the provider agreements. Pursuant to Ohio Hosp. Assn. , these allegations foreclose the common pleas court from exercising jurisdiction of the complaints in this case. Id. at 104, 579 N.E.2d 695. See also Cristino at ¶ 12, citing Interim HealthCare at ¶ 13 ; Bla-Con Industries v. Miami Univ. , 12th Dist. No. CA2006-06-127, 2007-Ohio-785, 2007 WL 572359, quoting State ex rel. Ferguson v. Shoemaker , 45 Ohio App.2d 83, 96, 341 N.E.2d 311 (10th Dist.1975) ("Regarding contract claims against the state, Ohio case law establishes that '[a] direct action on a contract with the state, seeking monetary relief from the state, must be commenced and prosecuted in the Court of Claims and cannot be brought in the Court of Common Pleas.' "). Accordingly, even if the allegations in appellants' complaints seeking reimbursement from ODJFS for funds wrongfully withheld by ODJFS in violation of federal Medicaid statutes and regulations are considered equitable in nature, when such claims are pleaded in conjunction with legal claims for breach of contract and arise out of the same operative facts, the complaints are within the exclusive jurisdiction of the Court of Claims, which has full equity powers in all actions within its jurisdiction. Ohio Hosp. Assn. at 104, 579 N.E.2d 695 ; Cristino at ¶ 12 ; Interim HealthCare at ¶ 13. Because there is no question in this case all the claims alleged in the complaints arise out of the same operative facts, the Court of Claims has exclusive jurisdiction of the complaints in this matter. Ohio Hosp. Assn. at 104, 579 N.E.2d 695 ; Cristino at ¶ 12 ; Interim HealthCare at ¶ 13.

{¶ 21} For the foregoing reasons, we hold the trial court did not err when it dismissed the complaints for lack of subject-matter jurisdiction. Furthermore, to the extent appellants contend the unavailability of a jury trial in the Court of Claims violates due process and equal protection, such a contention has been previously rejected by the Supreme Court. Botkin v. Univ. of Cincinnati College of Medicine , 10th Dist. No. 04AP-228, 2005-Ohio-1122, 2005 WL 590705, citing Conley v. Shearer , 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992). Accordingly, appellants' first assignment of error is overruled.

B. Second Assignment of Error

{¶ 22} Appellant's second assignment of error challenges the trial court's decision to exercise venue of this action. Having determined the trial court did not err when it dismissed the complaints in this case for lack of subject-matter jurisdiction and having further determined that the Court of Claims has exclusive jurisdiction of this action, appellants' second assignment of error is moot.

V. CONCLUSION

{¶ 23} Having overruled appellants' first assignment of error and having determined appellants' second assignment of error is moot, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

TYACK, P.J., and LUPER SCHUSTER, J., concur.

      Medcorp is a group of "affiliated companies which operate a private medical transport business in the state of Ohio." (Medcorp Compl. at 2.)

      Count III of the complaint filed by Medcorp contains the very same allegations and the same prayer for relief.

      Given our determination that the Court of Claims has exclusive jurisdiction of the complaints in this case, we express no opinion whether the complaints state viable claims for restitution based on appellees' alleged violations of federal Medicaid statutes and regulations, the United States and Ohio Constitutions, and the Ohio Revised Code.