Cristino v. Ohio Bur. of Workers' Comp.

[Cite as Cristino v. Ohio Bur. of Workers' Comp., 2013-Ohio-5936.]

Court of Claims of Ohio

The Ohio Judicial Center

65 South Front Street, Third Floor

Columbus, OH 43215

614.387.9800 or 1.800.824.8263

www.cco.state.oh.us

PIETRO CRISTINO

Plaintiff

v.

OHIO BUREAU OF WORKERS’ COMPENSATION

Defendant

Case No. 2008-10773

Judge Patrick M. McGrath

DECISION

{¶ 1} On February 15, 2013, defendant filed a motion for summary judgment as

to the statute of limitations. On March 5, 2013, plaintiff filed both a motion for leave to

file a memorandum in opposition and its memorandum in opposition to defendant’s

motion. Plaintiff’s March 5, 2013 motion is GRANTED instanter. On March 14, 2013,

defendant filed a motion for leave to file a reply brief, which is GRANTED instanter.

Defendant’s motion for summary judgment is now before the court for a non-oral

hearing pursuant to L.C.C.R. 4(D).

{¶ 2} Civ.R. 56(C) states, in part, as follows:

{¶ 3} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. No evidence or stipulation may be considered except as

stated in this rule. A summary judgment shall not be rendered unless it appears from

Case No. 2008-10773 -2- ENTRY

the evidence or stipulation, and only from the evidence or stipulation, that reasonable

minds can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being entitled to

have the evidence or stipulation construed most strongly in the party’s favor.” See also

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean

United, Inc., 50 Ohio St.2d 317 (1977).

{¶ 4} The gravamen of plaintiff’s complaint relates to defendant’s conduct in

settling his permanent total disability (PTD) claim. According to the complaint, plaintiff

applied for, and was granted, awards of workers’ compensation. On April 3, 1994,

defendant granted plaintiff PTD benefits, which entitled him to receive monthly disability

benefits for the rest of his life. At some point thereafter, an employee of defendant

contacted plaintiff about the possibility of settling his PTD. Plaintiff claims that in

reliance upon defendant’s representations, plaintiff accepted the $115,000 present

value valuation of the claim, accepted payment of the amount on November 2, 1998,

and executed releases supplied by defendant.1 Plaintiffs complaint alleges the

followings causes of action: (1) breach of contract; (2) breach of fiduciary duty; (3) fraud;

(4) unjust enrichment; (5) violation of constitutional and statutory rights; (6) declaratory

relief; (7) injunctive relief.

{¶ 5} On July 7, 2009, the court granted, in part, defendant’s motion to dismiss

and dismissed plaintiff’s claims for breach of fiduciary duty, fraud, unjust enrichment,

violation of constitutional and statutory rights, and injunctive relief. On October 21,

2011, the court granted defendant’s motion for summary judgment as to plaintiff’s claim

for breach of contract and determined that such claim was barred by the two-year

1

In support of its motion for summary judgment, defendant attached the affidavit of Kenneth M.

Brown, a claims supervisor for the Bureau of Workers’ Compensation, who authenticated a list of

payments made to plaintiff, with the last payment occurring on November 2, 1998.

Case No. 2008-10773 -2- ENTRY

statute of limitations. On January 9, 2012, the court granted defendant’s motion for

judgment on the pleadings as to plaintiff’s remaining claims for declaratory relief, at

which time plaintiff appealed this case to the Tenth District Court of Appeals.

{¶ 6} On September 27, 2012, the Tenth District Court of Appeals reversed the

decision of this court, in part. The Tenth District decision states:

{¶ 7} “The trial court found that the state’s discretionary immunity prevented

Cristino from stating a claim for fraud. * * *

{¶ 8} “Without an allegation establishing that the policy arose from a high degree

of official judgment or discretion, the complaint does not obviously or conclusively

establish the existence of the discretionary-immunity affirmative defense.

Consequently, we conclude that the trial court erred in dismissing Cristino’s fraud claim

based on it.

{¶ 9} “* * *

{¶ 10} “Because alternative pleading is permissible, a party may plead both a

breach-of-contract claim and an unjust-enrichment claim without negating the validity of

either claim. * * * The mere presence of both claims in a complaint does not warrant the

dismissal of the unjust-enrichment claim on a Civ.R. 12(B)(6) motion. Thus, the trial

court erred in dismissing Cristino’s claim for unjust enrichment.

{¶ 11} “In sum, we conclude that the trial court properly dismissed Cristino’s claim

for breach of fiduciary duty, but erred in dismissing Cristino’s claims for fraud and unjust

enrichment. * * *

{¶ 12} “Having reviewed Cristino’s challenge to the trial court’s ruling on the

Civ.R. 12(B)(6) motion, we turn to the trial court’s ruling on the Civ.R. 12(C) motion.

There, the trial court granted the Bureau a judgment on the pleadings with regard to

Cristino’s claim for declaratory relief. In so doing, the trial court relied on our opinion in

Schaub v. Div. of State Hwy. Patrol, 10th Dist. No. 95APE08-1107 (Mar. 5, 1996). * * *

Case No. 2008-10773 -2- ENTRY

{¶ 13} “Application of Schaub to terminate Cristino’s action was appropriate when

the trial court ruled on the Civ.R. 12(C) motion. Because the trial court had previously

disposed of all the claims underlying the parties’ controversy, the controversy was over

and no justiciable issue remained for adjudication. However, as we have found that the

trial court erred in dismissing Cristino’s fraud and unjust-enrichment claims, the parties’

controversy is resurrected. We thus must reverse judgment in favor of the Bureau [of

Workers’ Compensation] on Cristino’s claim for declaratory relief.

{¶ 14} “As a result of the foregoing analysis, we sustain in part and overrule in

part Cristino’s first assignment of error. We sustain the first assignment of error to the

extent that Cristino asserted error with regard to the rulings on his claims for fraud,

unjust enrichment, and declaratory relief. We overrule the first assignment of error to

the extent that Cristino asserted error with regard to the ruling on his claim for breach of

fiduciary duty.” Cristino v. Ohio Bur. of Workers’ Comp., 10th Dist. No. 12AP-60, 2012-

Ohio-4420, ¶ 21-22, 26-30 (“Cristino II”).2

{¶ 15} Accordingly, plaintiff’s claims for unjust enrichment, fraud, and declaratory

relief remain pending before this court. On January 18, 2013, the court granted

defendant leave to file an amended answer wherein defendant raised affirmative

defenses relevant to the claims that had previously been dismissed by this court

pursuant to Civ.R. 12(B)(6) prior to the filing of its answer. On February 15, 2013, the

court granted defendant leave to file a dispositive motion solely on the issue of the

statute of limitations.

{¶ 16} As an initial matter, the court notes that on February 8, 2013, the court

conducted a status conference with the parties. As a result of the conference, plaintiff

2

The Tenth District upheld this court’s decision granting summary judgment in favor of defendant

on plaintiff’s claim for breach of contract. Plaintiff’s other assignments of error were also overruled by the

Tenth District Court of Appeals.

Case No. 2008-10773 -2- ENTRY

orally represented to the court that he did not intend to pursue his fraud claim and that

he wished to withdraw such claim; the fraud claim was voluntarily dismissed pursuant to

the court’s February 15, 2013 entry.

{¶ 17} The court notes that “Civ.R. 41(A)(1) states that ‘a plaintiff, without order of

court, may dismiss all claims asserted by that plaintiff against a defendant by * * * filing

a notice of dismissal at any time before the commencement of trial.’” (Emphasis sic.)

Pattison v. W.W. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, ¶ 12. “It does

not allow for the dismissal of a portion of the claims against a certain defendant. Civ.R.

41(A) applies to discrete parties, not discrete causes of action.” (Emphasis sic.) Id. at

18. In Pattison, the court noted in dicta that several courts of appeal, including the

Tenth District, have held that “the proper procedure for a plaintiff to dismiss fewer than

all claims against a single defendant is to amend the complaint pursuant to Civ.R.

15(A).” Id. at ¶ 19, citing Lewis v. J.E. Wiggins & Co., 10th Dist. Nos. 04AP-469, 04AP-

544, and 04AP-668, 2004-Ohio-6724, ¶ 17. Accordingly, if plaintiff wished to no longer

pursue his fraud claim, the proper way would have been to file an amended complaint.

However, the court will proceed as though the fraud claim was properly dismissed.

{¶ 18} In its motion for summary judgment, defendant argues that it is entitled to

summary judgment based upon the undisputed facts and the law of the case as

established by the Tenth District Court of Appeals. Specifically, defendant contends

that all of plaintiff’s remaining claims are barred by the applicable two-year statute of

limitations.

{¶ 19} R.C. 2743.16(A) states, “civil actions against the state permitted by

sections 2743.01 to 2743.20 of the Revised Code shall be commenced no later than

two years after the date of accrual of the cause of action or within any shorter period

that is applicable to similar suits between private parties.”

{¶ 20} “[A]bsent extraordinary circumstances, such as an intervening decision by

this court, an inferior court has no discretion to disregard the mandate of a superior

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court in a prior appeal in the same case.” Nolan v. Nolan, 11 Ohio St.3d 1, 5 (1984).

“[W]here at a rehearing following remand a trial court is confronted with substantially the

same facts and issues as were involved in the prior appeal, the court is bound to adhere

to the appellate court’s determination of the applicable law. Moreover, the trial court is

without authority to extend or vary the mandate given.” (Citations omitted.) Id., at 3-4.

{¶ 21} The Tenth District Court of Appeals affirmed this court’s decision granting

defendant’s motion for summary judgment on plaintiff’s breach of contract claim. In

affirming this court, the Tenth District stated that the claim for breach of contract was

barred by the statute of limitations. The Tenth District decision states:

{¶ 22} “Cristino originally commenced his action in a court other than the Court of

Claims. Once Cristino filed his action in the Court of Claims, the Bureau [of Workers’

Compensation] moved for summary judgment on his breach-of-contract claim on

statute-of-limitations grounds. In such a situation, the saving statute only applies if

Cristino filed his original action within R.C. 2743.16(A)’s two-year statute of limitations.

Because Cristino waited over two years after the accrual of his claim to file his original

complaint, he cannot take advantage of the saving statute. * * *

{¶ 23} “Thus, a prudent person, when receiving an offer to settle his PTD claim

for a lump sump, could perform his own calculations to adjudge the present value of his

claim. Cristino, himself, belatedly did his own calculations * * *. [R]easonable minds

could only conclude that Cristino had constructive knowledge of the facts underlying his

claim on or about November 2, 1998. Therefore, even with the benefit of the discovery

rule, Cristino’s claim is still untimely.” Cristino II, supra, at ¶ 38, 42.

{¶ 24} The court of appeals upheld this court’s determination that plaintiff’s claims

for breach of contract accrued on or about November 2, 1998. Cristino II, supra, at ¶

42. In support of its motion for summary judgment, defendant attached documentation

showing that plaintiff received his final payment from defendant on November 2, 1998.

The only reasonable conclusion to be drawn from the undisputed facts is that plaintiff’s

Case No. 2008-10773 -2- ENTRY

claim for unjust enrichment also accrued on November 2, 1998 inasmuch as it arises

from the same conduct that is the basis for plaintiff’s breach of contract claim. Plaintiff

initially filed suit against defendant in the Cuyahoga County Court of Common Pleas on

June 22, 2001. (Complaint, ¶ 4.) Plaintiff filed this case on November 10, 2008.

Inasmuch as plaintiff’s claims were filed in the Cuyahoga County Court of Common

Pleas more than two years after they accrued, the only reasonable conclusion to be

drawn is that plaintiff’s claim for unjust enrichment is barred by the statute of limitations.

{¶ 25} Plaintiff argues that inasmuch as it dismissed his fraud claim, only

equitable claims remain and that this is no longer a case that is “‘permitted’ to be filed in

the Court of Claims that would be subject to the two-year” statute of limitations.

(Plaintiff’s Response, pg. 6-7.) Plaintiff contends that since only equitable claims

remain, such claims are subject to a ten year statute of limitations pursuant to R.C.

2305.14.

{¶ 26} Plaintiff originally filed an action against defendant in the Cuyahoga

County Court of Common Pleas. “Cristino asserted claims for breach of fiduciary duty,

fraud, unjust enrichment, and violation of constitutional and statutory rights. Cristino

sought several forms of relief, including full restitution of the difference between the

amount the defendants represented was the present value of his PTD claim and the

true present value. * * * [The Supreme Court of Ohio] held that Cristino sought legal, not

equitable, relief because he pleaded a claim for money due under a contract, not the

restitution of funds to which he was statutorily entitled. * * * The Supreme Court of Ohio

thus ruled that the Cuyahoga County Court of Common Pleas lacked subject-matter

jurisdiction over the action.” Cristino II, supra, at ¶ 3, 5.

{¶ 27} Therefore, even though plaintiff claims that only equitable claims remain

pending such that this court does not retain jurisdiction, the Supreme Court of Ohio has

already ruled that plaintiff’s claims belong in this court and not the common pleas court.

Cristino v. Ohio Bur. of Workers’ Comp., 118 Ohio St.3d 151, 2008-Ohio-2013, ¶ 1

Case No. 2008-10773 -2- ENTRY

(“Cristino I”). (“Pursuant to R.C. Chapter 2743, a civil claim against the state that

requests only equitable relief may be heard in the courts of common pleas, whereas all

other civil claims against the state fall within the exclusive, original jurisdiction of the

Court of Claims. R.C. 2743.03(A)(1) and (A)(2). We hold that the present claim against

the state is not an equitable claim of restitution and that the Cuyahoga County Court of

Common Pleas therefore lacks subject-matter jurisdiction over the action.”)

{¶ 28} In this case, the court of appeals stated that when Cristino filed his

complaint in the court of claims, he “asserted claims for breach of contract, breach of

fiduciary duty, fraud, unjust enrichment, and violation of constitutional and statutory

rights. In addition to money damages, Cristino also sought declaratory and injunctive

relief.” (Emphasis added.) Cristino II, supra, at ¶ 7. A claim for unjust enrichment can

be a claim for either money damages or an equitable remedy. “It is well established that

restitution can be either a legal or an equitable remedy.” Cristino I, supra, at ¶ 7. “In

general, a claim for restitution relating to a contract dispute constitutes an action in law.”

Windsor House, Inc. v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 11AP-367,

2011-Ohio-6459, ¶ 16.

{¶ 29} In this case, plaintiff’s claim for unjust enrichment seeks legal relief

inasmuch as he seeks a return of money due under a contract. See Cristino II, supra,

at ¶ 7; Cristino I, supra. In his complaint, plaintiff alleges that defendant discounted the

present value of his claim by an additional 30 percent when it calculated his lump sum

payment. (Complaint, ¶ 14-17.) Plaintiff alleges that he is entitled to the difference

between the amount defendant represented to be the present value and the true

present value of his PTD claim. (Complaint, ¶ 55-57.) “A claim against the state for

money due under a contract is not a claim of equitable restitution and must be brought

in the Ohio Court of Claims.” Cristino I, supra, at ¶ 11. Plaintiff’s claim for unjust

enrichment is a claim for monetary damages over which this court has jurisdiction.

Even though plaintiff has withdrawn his claim for fraud, his claim for unjust enrichment

Case No. 2008-10773 -2- ENTRY

and declaratory judgment remain pending and this court has jurisdiction over plaintiff’s

claims. Since plaintiff’s claims are legal in nature, proper jurisdiction is in the Court of

Claims and such claims are subject to a two-year statute of limitations. See R.C.

2743.16(A). Based on the accrual date of November 2, 1998, as affirmed by the Tenth

District Court of Appeals, the only reasonable conclusion to be drawn is that plaintiff’s

remaining claim for unjust enrichment is barred by the two-year statute of limitations.3

{¶ 30} Plaintiff argues that because defendant never argued in the common pleas

action that plaintiff’s claims were barred by a two-year statute of limitations, defendant is

estopped from raising such an argument at this time. However, the Tenth District Court

of Appeals already rejected this argument when it overruled plaintiff’s assignment of

error that its breach of contract claim was timely filed under the doctrines of judicial

estoppel and equitable estoppel. Cristino II, supra, at ¶ 43-51. Accordingly, construing

the facts most favorably for plaintiff, plaintiff’s claim for unjust enrichment is barred by

the statute of limitations and defendant is entitled to judgment as a matter of law.

{¶ 31} The Tenth District Court of Appeals also reinstated plaintiff’s claim for

declaratory judgment on the basis that some of the claims underlying the parties’

controversy remain pending before this court. Cristino II, supra, at ¶ 29. “The three

essential elements for declaratory relief are that (1) a real controversy exists between

the parties, (2) the controversy is justiciable in character, and (3) speedy relief is

necessary to preserve the rights of the parties.” Wilson v. Collins, 10th Dist. No. 10AP-

511, 2010-Ohio-6538, ¶ 8, citing State ex rel. Gelesh v. State Med. Bd. of Ohio, 172

Ohio App.3d 365, 2007-Ohio-3328, ¶ 7 (10th Dist.). “[T]wo criteria must be met in order

for a justiciable issue to exist: 1) plaintiff must have a right or duty owing by the

defendant; and 2) the denial of plaintiff’s right or duty by defendant must be a present

3

Additionally, even if plaintiff had not dismissed his fraud claim, the court concludes that this claim

is also barred by the two-year statute of limitations for the same reasons.

Case No. 2008-10773 -2- ENTRY

event and not a hypothetical future event.” Schaub v. Div. of State Hwy. Patrol, 10th

Dist. No. 95APE08-1107 (Mar. 5, 1996), citing Driskill v. City of Cincinnati, 66 Ohio App.

372 (1st Dist.1940).

{¶ 32} This court has determined that plaintiff cannot recover on his remaining

claim for unjust enrichment as a matter of law inasmuch as such claim is barred by the

two-year statute of limitations. Additionally, plaintiff dismissed his fraud claim.

Accordingly, plaintiff’s claim for declaratory judgment is also barred inasmuch as any

declaration by this court of the respective rights and duties of the parties would be

purely advisory. Id., citing Cincinnati Met. Housing Auth. v. Cincinnati Dist. Council No.

51, 22 Ohio App.2d 39 (1st Dist.1969).

{¶ 33} The court notes that plaintiff’s complaint also sought injunctive relief, which

was dismissed by this court on July 7, 2009. When plaintiff appealed his case to the

Tenth District Court of Appeals, his first assignment of error stated that this court erred

“by dismissing the claims for breach of fiduciary duty, unjust enrichment, fraud,

declaratory relief, and injunction * * *.” (Emphasis added.) Cristino II, supra, at ¶ 11.

The Tenth District found that this court erred in dismissing plaintiff’s claims for fraud,

unjust enrichment, and declaratory relief and remanded the case to this court for

consideration of such claims. See Id. at ¶ 12, 30. The Tenth District did not address

plaintiff’s claim for injunctive relief in its decision. See Id. Inasmuch as the claim for

injunctive relief was dismissed by this court and was not reinstated by the Tenth District

Court of Appeals, the court determines that the claim for injunctive relief is not before

the court.

{¶ 34} As a final matter, on March 5, 2013, plaintiff filed a motion to transfer this

case to the Cuyahoga County Court of Common Pleas. On March 14, 2013, defendant

filed a memorandum in opposition. In its motion, plaintiff seeks to “return this action to

the Cuyahoga County Court of Common Pleas” for proper venue and jurisdiction.

Plaintiff seeks to transfer this case to the common pleas court inasmuch as he

Case No. 2008-10773 -2- ENTRY

dismissed his fraud claim and no longer seeks monetary damages. In response,

defendant argues that the court of claims has jurisdiction over all claims inasmuch as

the Supreme Court of Ohio has previously established that all of plaintiff’s claims arise

from contract.

{¶ 35} The court disagrees with plaintiff’s contention that since only equitable

claims remain, this court lacks jurisdiction over such claims. When a plaintiff brings a

claim for money damages over which the court of claims has jurisdiction, the court

retains jurisdiction to determine the merits of all claims asserted therein, whether they

be legal or equitable. See R.C. 2743.03(A); see also Ohio Hosp. Assn. v. Ohio Dept. of

Human Servs., 62 Ohio St.3d 97 (1991); Racing Guild of Ohio, Local 304 v. Ohio State

Racing Comm., 28 Ohio St.3d 317, 320 (1986); Upjohn Co. v. Ohio Dept. of Human

Servs., 77 Ohio App.3d 827 (10th Dist.1991). Additionally, for the same reasons as

stated above, the court finds that plaintiff’s remaining claim for unjust enrichment arises

from a contract and the court has jurisdiction over such claim. Accordingly, even though

plaintiff has dismissed his fraud claim, the remaining claims for unjust enrichment and

declaratory judgment are properly before the court.

{¶ 36} The court of claims has original, exclusive jurisdiction over plaintiff’s

claims. Plaintiff has failed to provide support for the assertion that the court of claims

can “transfer” a case to a common pleas court when monetary damages are no longer

sought. “Subject-matter jurisdiction of a court connotes the power to hear and decide a

case upon its merits, while venue connotes the locality where the suit should be heard.

Subject-matter jurisdiction defines the competency of a court to render a valid judgment

in a particular action.” (Internal citations omitted.) Morrison v. Steiner, 32 Ohio St.2d

86, 87 (1972). Venue is proper in any court which has subject matter jurisdiction over

the claims. Subject matter jurisdiction must be established prior to determining the

proper venue. Here, the court of claims has subject matter jurisdiction over plaintiff’s

claims. Accordingly, the court cannot transfer this case to the Cuyahoga County

Case No. 2008-10773 -2- ENTRY

Common Pleas Court. Accordingly, for the reasons stated above, plaintiff’s motion to

transfer this case is without merit and plaintiff’s motion to transfer is DENIED.

{¶ 37} Based on the foregoing, construing the facts most strongly in plaintiffs

favor, the court finds that there is no genuine issue as to any material fact and that

defendant is entitled to judgment as a matter of law. Therefore, defendant’s motion for

summary judgment shall be granted and judgment shall be rendered in favor of

defendant.

_____________________________________

PATRICK M. MCGRATH

Judge

Case No. 2008-10773 -2- ENTRY

Court of Claims of Ohio

The Ohio Judicial Center

65 South Front Street, Third Floor

Columbus, OH 43215

614.387.9800 or 1.800.824.8263

www.cco.state.oh.us

PIETRO CRISTINO

Plaintiff

v.

OHIO BUREAU OF WORKERS’ COMPENSATION

Defendant

Case No. 2008-10773

Judge Patrick M. McGrath

JUDGMENT ENTRY

{¶ 38} A non-oral hearing was conducted in this case upon defendant’s motion for

summary judgment. For the reasons set forth in the decision filed concurrently

herewith, defendant’s motion for summary judgment is GRANTED and judgment is

rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk

shall serve upon all parties notice of this judgment and its date of entry upon the journal.

_____________________________________

PATRICK M. MCGRATH

Judge

Case No. 2008-10773 -2- ENTRY

cc:

Alexander E. Goetsch Emily M. Simmons

Max E. Dehn Randall W. Knutti

Ronald D. Holman II Assistant Attorneys General

Special Counsel to Attorney General 150 East Gay Street, 18th Floor

1300 East Ninth Street, 20th Floor Columbus, Ohio 43215-3130

Cleveland, Ohio 44114

Frank L. Gallucci III Mark E. Mastrangelo

55 Public Square, Suite 2222 Assistant Attorney General

Cleveland, Ohio 44113 Workers’ Compensation Section

State Office Bldg.

615 West Superior Avenue, 11th Floor

Cleveland, Ohio 44113-1899

Patsy A. Thomas Paul W. Flowers

Assistant Attorney General Terminal Tower, 35th Floor

Workers’ Compensation Section 50 Public Square

150 East Gay Street, 22nd Floor Cleveland, Ohio 44113-1901

Columbus, Ohio 43215-3130

W. Craig Bashein

Terminal Tower, 35th Floor

50 Public Square

Cleveland, Ohio 44113-2216

007

Filed August 2, 2013

Sent to S.C. Reporter April 30, 2014