[Cite as Smith v. Lurie, 2012-Ohio-5082.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98577
SAMUEL L. SMITH, D.B.A. SMITH LIMO/TRAN
PLAINTIFF-APPELLEE
vs.
JOYCE LURIE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Lyndhurst Municipal Court
Case No. 10 CVF 00944
BEFORE: Kilbane, J., Boyle, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: November 1, 2012
ATTORNEYS FOR APPELLANT
Dennis A. Nevar
Kenneth J. Fisher
Kenneth J. Fisher Co., L.P.A.
2100 Terminal Tower
50 Public Square
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Robert M. Fertel
Zashin & Rich Co., L.P.A.
55 Public Square, 4th Floor
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} This is an accelerated appeal brought pursuant to App.R. 11.1 and
Loc.App.R. 11.1.
{¶2} Defendant-appellant, Joyce Lurie (“Lurie”), appeals the Lyndhurst
Municipal Court’s judgment adopting the magistrate’s decision in favor of
plaintiff-appellee, Samuel Smith d.b.a. Smith Limousine & Transportation Co. (“Smith”).
For the reasons set forth below, we affirm.
{¶3} The facts of the case were previously set forth by this court in Smith’s prior
appeal, Smith v. Lurie, 8th Dist. No. 97360, 2012-Ohio-499, ¶ 2-4:
In 2010, Smith filed an amended complaint against Lurie seeking payment
for transportation services rendered to Lurie. The complaint alleged causes
of action for breach of contract, action on an account, unjust enrichment
and/or quantum meruit, and promissory and/or equitable estoppel. In
Lurie’s amended answer, “she promised to compensated [sic] [Smith] for
services provided as alleged * * * but states the invoiced amounts do not
accurately reflect the services actually provided.” Included in the amended
answer, Lurie listed as an affirmative defense, “failure to state a claim upon
which relief may be granted.”
The trial court coordinated a case management schedule with the parties,
establishing the dispositive motion deadline as March 15, 2011. On April
14, 2011, Lurie requested leave from the trial court to file a Motion to
Dismiss pursuant to Civ.R. 12(B)(6). Over objection, the trial court granted
Lurie leave. The motion to dismiss asserted that Smith was not legally
permitted to operate a motor vehicle for the transportation of persons on the
public highways of the state of Ohio because Smith was not properly
registered with the Public Utilities Commission of Ohio (“PUCO”) pursuant
to R.C. 4923.04. In support of this argument, Lurie attached purported
email correspondence between her attorney and an individual from the
PUCO indicating that the PUCO Motor Carrier Section had no record of the
companies “Samuel L. Smith” and “Smith Limousine & Transportation
Company.”
After exhaustive briefing and a hearing on the motion, the trial court
granted Lurie’s motion and dismissed Smith’s complaint.
{¶4} Smith then appealed to this court, arguing that the trial court erred in
granting Lurie’s motion to dismiss because the court relied on an email containing matters
not included in the complaint. Id. at ¶ 12. We agreed, stating that: “[b]ecause this
email was the only document supporting Lurie’s assertion that Smith was not a registered
PUCO motor carrier and thus unable to assert his cause of action, it is clear that the trial
court considered matters outside the amended complaint in determining Smith’s motion to
dismiss.” Id. at ¶ 13.
{¶5} Following our remand, the parties proceeded to a hearing before a
magistrate, who issued a decision in favor of Smith. The magistrate found that Smith is
entitled to $5,435.55 under the theory of quantum meruit because Lurie breached a
contract with Smith when Smith provided Lurie transportation services and she did not
pay for them. Lurie objected, but the trial court adopted the magistrate’s decision and
overruled Lurie’s objections.
{¶6} Lurie now appeals raising the following sole assignment of error.
ASSIGNMENT OF ERROR
The Lyndhurst Municipal Court erred as a matter of law in granting
judgment to Plaintiff/Appellee [Smith] on the theory of quantum meruit
where [Smith] was admittedly not registered as a “private motor carrier” as
required by Ohio law.
{¶7} The standard of review on appeal from a decision of a trial court adopting a
magistrate’s decision is whether the trial court abused its discretion. Butcher v. Butcher,
8th Dist. No. 95758, 2011-Ohio-2550, ¶ 7, citing O’Brien v. O’Brien, 167 Ohio App.3d
584, 2006-Ohio-1729, 856 N.E.2d 274 (8th Dist.). An abuse of discretion “‘implies that
the court’s attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62
Ohio St.2d 151, 404 N.E.2d 144 (1980).
{¶8} Lurie, relying on Leatherbury v. Reagan, 34 Ohio App.3d 291, 518 N.E.2d
58 (2d Dist. 1987), argues that, under public policy grounds, Smith’s quantum meruit
cause of action fails because Smith was prohibited from providing transportation services
when it failed to obtain a permit from the PUCO. Thus, Lurie maintains that Smith
should not be able to recover for “illegal services” it rendered. We find Leatherbury
distinguishable.
{¶9} Leatherbury involved the issue of whether “appellant, who worked as a
sales manager in real estate activities for another as a regular employee, was entitled to
recover compensation without having a real estate license as required by R.C. 4735.21.”
Id. at 291. R.C. 4735.21 provides that “[n]o right of action shall accrue to any person,
partnership, association, or corporation for the collection of compensation * * * without
alleging and proving that such person, partnership, association, or corporation was
licensed as a real estate broker or foreign real estate dealer.” The Second District Court
of Appeals found that the section did not prohibit the filing of the lawsuit. Rather, it
added an essential element of the cause of action for a plaintiff to allege and prove. The
court further noted that appellant’s unjust enrichment cause of action was properly
dismissed because “[i]f the statute prohibited recovery, the court could not reach for
equitable or other forms of relief to defeat the public policy adopted by the legislature.”
Id. at 293.
{¶10} Unlike Leatherbury, in the instant case, there is no specific statutory
requirement in R.C. Chapter 4923 that Smith must allege or prove that it is registered as a
private motor carrier with the PUCO in order to bring its lawsuit. Lurie’s counsel
conceded the same at appellate oral argument. Rather, the record reflects that the parties
stipulated to the following:
1) [Smith] performed the services as outlined in [its] amended complaint.
2) * * * [T]he amount in controversy of $5,435.55 was performed by
[Smith].
3) * * *[Smith] performed services for [Lurie] during the period of August
31, 2009 through December 11, 2009, but was not paid for the services
preformed.
{¶11} We note that quantum meruit is awarded when one party confers some
benefit upon another without receiving just compensation for the reasonable value of
services rendered. Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51,
55, 544 N.E.2d 920 (1989). Lurie has stipulated that Smith performed $5,435.55 in
transportation services for Lurie and she did not pay for those services. Considering that
the elements of quantum meruit have been satisfied, we find Lurie has failed to
demonstrate that the trial court abused its discretion when it adopted the magistrate’s
decision.
{¶12} Accordingly, the sole assignment of error is overruled.
{¶13} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Lyndhurst Municipal Court to
carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR