Cristino v. Ohio Bur. of Workers' Comp.

[Cite as Cristino v. Ohio Bur. of Workers' Comp., 2014-Ohio-1383.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Pietro Cristino, :

Plaintiff-Appellant, : No. 13AP-772

(Ct. of Cl. No. 2008-10773)

v. :

(REGULAR CALENDAR)

Ohio Bureau of Workers' Compensation, :

Defendant-Appellee. :

D E C I S I O N

Rendered on March 31, 2014

Bashein & Bashein Co., L.P.A., and W. Craig Bashein, Esq.;

Plevin & Gallucci Co., L.P.A., and Frank Gallucci, III, Esq.;

Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for

appellant.

Michael DeWine, Attorney General, Mark E. Mastrangelo,

Randall W. Knutti, and Emily M. Simmons; Cavitch Familo &

Durkin Co., LPA, Ronald D. Holman, II, Alexander E.

Goetsch, and Max E. Dehn, outside counsel to Michael

DeWine, Attorney General, for appellee.

APPEAL from the Court of Claims of Ohio.

BROWN, J.

{¶ 1} Pietro Cristino, plaintiff-appellant, appeals from the judgment of the Court

of Claims of Ohio, in which the court granted the motion for summary judgment filed by

the Ohio Bureau of Workers' Compensation ("bureau"), defendant-appellee.

{¶ 2} In 1994, the Industrial Commission of Ohio ("commission") determined

that appellant was permanently and totally disabled ("PTD"), which entitled appellant to

receive monthly PTD compensation for the rest of his life. In October 1998, appellant

No. 13AP-772 2

agreed to accept a "present value," lump-sum settlement of his claim for $115,000. On

November 2, 1998, appellant deposited a check from the bureau for that amount. The

parties dispute how the agreement came about, who initiated contact to discuss a

settlement, and the content of communications between the parties.

{¶ 3} On June 22, 2001, appellant filed a class action complaint against the

bureau in the Cuyahoga County Court of Common Pleas on behalf of himself and a

putative class, asserting breach of fiduciary duty, fraud, unjust enrichment, violation of

constitutional and statutory rights, declaratory relief, and injunctive relief. Appellant

alleged that the bureau, without his knowledge or the knowledge of other potential class

members, reduced the "present value" of the lump-sum settlement amount by at least 30

percent and used inaccurate mortality data in calculating the "present value." The bureau

filed a motion to dismiss, claiming that the common pleas court lacked subject-matter

jurisdiction. The trial court dismissed for lack of jurisdiction, and the court of appeals

affirmed in Cristino v. Ohio Bureau of Workers' Comp., 8th Dist. No. 80619, 2003-Ohio-

766. In a one sentence decision in Cristino v. Ohio Bur. of Workers' Comp., 101 Ohio

St.3d 97, 2004-Ohio-201, that court reversed the appellate court's judgment and

remanded the case to the trial court on the authority of Santos v. Ohio Bur. of Workers'

Comp., 101 Ohio St.3d 74, 2004-Ohio-28.

{¶ 4} Upon remand, the trial court denied the bureau's motion to dismiss but

certified the class action, and the court of appeals affirmed the trial court's decision in

Cristino v. Admr., Ohio Bureau of Workers' Comp., 8th Dist. No. 87567, 2006-Ohio-

5921. The bureau appealed, and the Supreme Court of Ohio reversed in Cristino v. Ohio

Bur. of Workers' Comp., 118 Ohio St.3d 151, 2008-Ohio-2013 ("Cristino I"), finding that

the class action complaint included a legal contract claim for money due under the parties'

agreement; thus, the common pleas court lacked subject-matter jurisdiction over the

action, and the matter must be filed in the Court of Claims.

{¶ 5} On November 10, 2008, appellant filed a complaint in the Court of Claims.

The complaint was the same as the complaint filed in the common pleas court except it

also asserted a claim for breach of contract. On December 16, 2008, the bureau filed a

motion to dismiss pursuant to Civ.R. 12(B)(1) and (6). On July 7, 2009, the court granted

No. 13AP-772 3

the bureau's motion to dismiss as to all claims except the breach of contract claim and the

claim for declaratory judgment.

{¶ 6} On April 29, 2010, the bureau filed a motion for summary judgment

regarding the breach of contract claim. On October 21, 2011, the trial court granted the

bureau's motion for summary judgment with regard to the breach of contract claim,

finding that the statute of limitations had expired as to that claim on November 2, 2000.

{¶ 7} On November 1, 2011, the bureau filed a motion to dismiss the declaratory

judgment claim pursuant to Civ.R. 12(C). On January 9, 2012, the court granted the

bureau's motion to dismiss the claim for declaratory judgment.

{¶ 8} Appellant appealed the judgment of the Court of Claims with respect to the

trial court's dismissal of all of his claims against the bureau. In Cristino v. Admr., Ohio

Bureau of Workers' Comp., 10th Dist. No. 12AP-60, 2012-Ohio-4420 ("Cristino II"), this

court sustained the court's dismissal of the breach of contract and fiduciary duty claims,

but we reversed the court's dismissal of the fraud and unjust enrichment claims, as well as

reversed the dismissal of the declaratory judgment action.

{¶ 9} Upon remand, appellant voluntarily dismissed his fraud claim. On

February 15, 2013, the bureau filed a motion for summary judgment, seeking dismissal of

the claims for unjust enrichment and declaratory relief. On March 5, 2013, appellant filed

a motion to transfer the case to the Cuyahoga County Court of Common Pleas, arguing

that the Court of Claims lost jurisdiction when the claims for monetary damages were

terminated or withdrawn.

{¶ 10} On August 2, 2013, the trial court granted the bureau's motion for summary

judgment. The court found that appellant's claim for unjust enrichment was barred by the

statute of limitations. The court also dismissed his claim for declaratory judgment finding

that any declaration of the rights and duties of the parties would be purely advisory after

his unjust enrichment and fraud claims were dismissed. The court also denied appellant's

motion to transfer the case to the Cuyahoga County Court of Common Pleas on the basis

that the Supreme Court had already found that jurisdiction was proper in the Court of

Claims. Appellant appeals the trial court's judgment, asserting the following assignments

of error:

I. ONCE ONLY CLAIMS FOR EQUITABLE, DECLARATORY,

AND INJUNCTIVE RELIEF REMAINED, THE COURT OF

No. 13AP-772 4

CLAIMS LOST SUBJECT MATTER JURISDICTION OVER

THE CIVIL ACTION.

II. THE COURT OF CLAIMS JUDGE ERRED, AS A MATTER

OF LAW, BY GRANTING SUMMARY JUDGMENT UPON

THE CLAIM OF UNJUST ENRICHMENT.

III. SUMMARY JUDGMENT WAS ALSO IMPROVIDENTLY

GRANTED, AS A MATTER OF LAW, UPON THE

REMAINING STAND-ALONE CLAIM FOR DECLARATORY

RELIEF.

{¶ 11} Appellant argues in his first assignment of error that, once only claims for

equitable, declaratory, and injunctive relief remained, the Court of Claims lost subject-

matter jurisdiction over the civil action. In its decision, the Court of Claims found that it

still retained jurisdiction over the unjust enrichment and declaratory judgment claims

even after the dismissal of the fraud claim because the Supreme Court already ruled that

appellant's claims belonged in the Court of Claims and not in the common pleas court.

Cristino I. Appellant argues that the Supreme Court found only that some of his claims

sounded in contract and, thus, belonged in the Court of Claims, and the Supreme Court's

finding was made when the complaint included theories of recovery that allowed damages

to be awarded under principles of contract. Appellant asserts that, with the contract claim,

fiduciary duty claim, and fraud claim being dismissed, the scenario before the Court of

Claims was different from the one addressed earlier by the Supreme Court. Appellant

contends the Supreme Court never suggested that the Court of Claims possessed

jurisdiction to adjudicate civil actions that are reduced to claims for equitable,

declaratory, and injunctive relief. Appellant urges that his claim for unjust enrichment did

not seek damages and was purely equitable because it requested only restitution of the

difference between the amount represented by the bureau and the actual present value of

the PTD claims without the discounts and using the proper actuarial tables.

{¶ 12} In the Court of Claims Act, R.C. Chapter 2743, the General Assembly waived

the state's immunity from liability, created the Court of Claims, and invested the Court of

Claims with exclusive, original jurisdiction over civil actions permitted by the waiver of

sovereign immunity. State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty., 121

Ohio St.3d 507, 2009-Ohio-1523, ¶ 28. The act, however, does not apply "[t]o the extent

No. 13AP-772 5

that the state ha[d] previously consented to be sued" in the courts of common pleas. R.C.

2743.02(A)(1). Thus, if, prior to the state's waiver of immunity, the law permitted a party

to pursue a particular type of action against the state, then the Court of Claims lacks

jurisdiction to hear that type of action. Selective Ins. Co. of Am. v. Ohio Dept. of Rehab. &

Corr., 10th Dist. No. 11AP-597, 2012-Ohio-1314, ¶ 20; Interim Healthcare of Columbus,

Inc. v. Ohio Dept. of Adm. Servs., 10th Dist. No. 07AP-747, 2008-Ohio-2286, ¶ 12. 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 (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 (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, ¶ 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.

{¶ 13} However, not every claim seeking monetary relief is a claim for money

damages. Id. 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, ¶ 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,

¶ 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 (10th

No. 13AP-772 6

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 at ¶ 14.

{¶ 14} In the present case, we agree with the Court of Claims that the Supreme

Court has already spoken to the issue raised by appellant in his first assignment of error.

That is, the Supreme Court has explicitly held that appellant's current claims are based in

contract; thus, they seek money damages that sound in law. In Cristino I at ¶ 12, the

Supreme Court found that the present case involved a claim against the state for money

due under a contract and was not a claim of equitable restitution. Id. at ¶ 16. The court

found it was not a claim for restitution because the plaintiffs were not seeking the return

of funds that had once been in their possession and so belonged to them in good

conscience. Id. at ¶ 15. The court concluded:

In the present case, Cristino's own argument reveals that the

basis for his action is his agreement with the bureau: "The

crux of the instant Complaint is that the Bureau agreed to

provide hundreds of recipients of permanent total disability

(PTD) benefits with a lump sum payment of the 'present

value' of their claims." (Emphasis added.) Although the exact

nature of the agreement is disputed, it is clear that Cristino

seeks to enforce this agreement and provide class members

with the "actual present value" of their claims. His recovery

depends upon the interpretation of the term "present value"

in his agreement with the bureau. Cristino thus claims

entitlement to the funds pursuant to his agreement with the

bureau.

Id. at ¶ 12.

{¶ 15} Accordingly, the Supreme Court has clearly found that appellant's present

claims are legal in nature based upon his agreement with the bureau. At issue in Cristino I

were claims for breach of fiduciary duty, fraud, unjust enrichment, violation of

constitutional and statutory rights, declaratory relief, and injunctive relief. Contrary to

appellant's contention that the Supreme Court was referring to only some of his claims in

its holding, we find no place in Cristino I where the court set out any claims as not being

legal claims based upon the agreement. Therefore, regardless of which claims might have

survived dismissal in the present action filed in the Court of Claims, the Court of Claims

No. 13AP-772 7

would have retained jurisdiction over the entire matter. As relevant to this case, the

Supreme Court clearly did not indicate that the claims for unjust enrichment or

declaratory relief were anything but legal claims based upon the terms of a contract.

Therefore, we find that, based upon the Supreme Court's findings in Cristino I, appellant's

claims for unjust enrichment and declaratory judgment were claims for legal restitution

based upon a contract, and, thus, the Court of Claims had subject-matter jurisdiction.

{¶ 16} Although this conclusion renders appellant's remaining arguments under

this assignment of error untenable, even if appellant's claims were equitable, we would

reject appellant's reliance upon Upjohn Co. v. Ohio Dept. of Human Servs., 77 Ohio

App.3d 827 (10th Dist.1991). Appellant relies upon the holding in Upjohn that, once the

Court of Claims determined that it could grant no relief on the plaintiffs' negligence claim,

it no longer had jurisdiction over the plaintiffs' claims for declaratory judgment,

injunctive relief, and constitutional violations. However, what distinguishes Upjohn from

the present case is that, in Upjohn, we found the Court of Claims lacked jurisdiction over

the plaintiffs' claims for injunctive relief and declaratory relief because the plaintiffs' claim

for money damages was not permitted by the state's waiver of immunity. In other words,

the Court of Claims never had subject-matter jurisdiction over the claim for money

damages in Upjohn. To the contrary, in the present case, there was no dispute that

appellant's claims for breach of contract and fraud were permitted by the state's waiver of

immunity, and the Court of Claims had subject-matter jurisdiction over them. Therefore,

the facts in Upjohn are inapposite. For these reasons, appellant's first assignment of error

is overruled.

{¶ 17} Appellant argues in his second assignment of error that the trial court erred

when it granted summary judgment on the unjust enrichment claim. In granting

summary judgment, the trial court found that, because this court already held that

appellant's claim for breach of contract accrued on November 2, 1998—the date appellant

received his final payment from the bureau—appellant's claim for unjust enrichment also

accrued on that date, inasmuch as it arose from the same conduct that is the basis for

appellant's breach of contract claim. The court concluded that, because appellant initially

filed suit against the bureau in the Cuyahoga County Court of Common Pleas on June 22,

No. 13AP-772 8

2001, and did not file his action in the Court of Claims until 2008, his claims were filed

more than two years after they accrued.

{¶ 18} R.C. 2743.16(A) provides:

Subject to division (B) of this section, 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.

{¶ 19} Appellant's argument that the Court of Claims erred in finding his claim for

unjust enrichment was filed beyond the statute of limitations is based upon the same

reasoning he presents under this first assignment of error; that is, his claim for unjust

enrichment was not seeking money damages. Appellant asserts that, because his claim for

unjust enrichment was not seeking money damages, it was not a claim permitted against

the state and, thus, is not subject to the two-year statute of limitations. However, because

we have already found that appellant's unjust enrichment claim was based upon the

agreement between the parties and upon the same conduct underlying the breach of

contract claim, it is subject to the same two-year statute of limitations in R.C. 2743.16(A).

{¶ 20} Appellant's contentions that R.C. 2743.16(A) does not control all actions in

the Court of Claims and that longer statutes of limitations exist for certain causes of action

are unfounded. As we found in Cargile v. Ohio Dept. of Adm. Servs., 10th Dist. No. 11AP-

743, 2012-Ohio-2470, ¶ 12:

The General Assembly "clearly intended for [the] two-year

limitation period [set forth in R.C. 2743.16(A)] to take

precedence over all other statutes of limitation in the Revised

Code at large." Simmons v. Ohio Rehab. Servs. Comm., 10th

Dist. No. [09]AP-1034, 2010-Ohio-1590, ¶ 6; see also Grenga

v. Youngstown State Univ., 10th Dist. No. 11AP-165, 2011-

Ohio-5621, ¶ 17; Windsor House, Inc. v. Ohio Dept. of Job &

Family Servs., 10th Dist. No. 09AP-584, 2010-Ohio-257, ¶ 20.

Therefore, the longest limitations period applicable to actions

in the Court of Claims is two years. Grenga at ¶ 18.

See also U.W. v. Dept. of Youth Servs., 10th Dist. No. 12AP-959, 2013-Ohio-1779, ¶ 6 (the

statutory framework enacted when the state of Ohio partially waived governmental

No. 13AP-772 9

immunity has not been amended to allow any claims to be pursued against the state of

Ohio more than two years after the claims accrued).

{¶ 21} Therefore, based upon our reasoning under appellant's first assignment of

error that his claim for unjust enrichment was based in contract and stemmed from the

same conduct underlying the contract claim, we find appellant's claim for unjust

enrichment was also subject to the two-year statute of limitations in R.C. 2743.16(A). For

these reasons, appellant's second assignment of error is overruled.

{¶ 22} Appellant argues in his third assignment of error that the trial court erred

when it granted summary judgment to the bureau on the remaining claim for declaratory

relief. A declaratory judgment action is a civil action that provides a remedy in addition to

other legal and equitable remedies available. Aust v. Ohio State Dental Bd., 136 Ohio

App.3d 677, 681 (10th Dist.2000). " 'The essential elements for declaratory relief are (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.' " Walker v. Ghee,

10th Dist. No 01AP-960 (Jan. 28, 2002), quoting Aust at 681. For a cause to be justiciable,

there must exist a real controversy presenting issues that are ripe for judicial resolution

and which will have a direct and immediate impact on the parties. Stewart v. Stewart,

134 Ohio App.3d 556, 558 (4th Dist.1999), citing State v. Stambaugh, 34 Ohio St.3d 34,

38 (1987). In order for a justiciable question to exist, the danger or dilemma of the

plaintiff must be present, not contingent on the happening of hypothetical future events,

and the threat to his position must be actual and genuine and not merely possible or

remote. League for Preservation of Civ. Rights & Internal Tranquility v. Cincinnati, 64

Ohio App. 195, 197 (1st Dist.1940).

{¶ 23} In the present case, the trial court determined that, because appellant's

claim for unjust enrichment was barred by the two-year statute of limitations, his claim

for declaratory judgment was also barred inasmuch as any declaration by the court of the

respective rights and duties of the parties would be purely advisory. Appellant argues

herein that his claim is premised upon R.C. 2721.02(A), which allows legal rights and

obligations to be established without a binding contract. Appellant contends that he can

potentially demonstrate entitlement to a judicial declaration that would terminate

controversies irrespective of whether any enforceable contract existed between the

No. 13AP-772 10

parties. Appellant also asserts that the declaration he seeks will not be purely advisory

because it will require the bureau to release the portion of the properly calculated PTD

benefits that remain owed to him and the class members without unauthorized discounts.

{¶ 24} This court has already addressed the same issue in Cristino II. In Cristino

II, we initially noted that the trial court properly granted the bureau judgment on the

pleadings with regard to appellant's claim for declaratory relief because the trial court had

previously disposed of all the claims underlying the parties' controversy, which ended the

controversy and left no justiciable issues for adjudication. However, we then determined

that, because we had concluded on appeal in Cristino II that the trial court had erred in

dismissing appellant's fraud and unjust enrichment claims, the parties' controversy was

resurrected, thereby also resurrecting the declaratory judgment claim.

{¶ 25} The circumstances we face here are the same faced by the trial court in

Cristino II. In the present case, we have disposed of all of appellant's claims underlying

the parties' controversy; thus, the controversy is over and no justiciable issues remain for

adjudication. As a result, appellant's claim for declaratory relief is no longer viable. In

Cristino II, we found the trial court properly made the same determination. In doing so,

we approved the trial court's reliance upon our decision in Schaub v. Div. of State Hwy.

Patrol, 10th Dist. No. 95APE08-1107 (Mar. 5, 1996). In Schaub, the plaintiff's cause of

action was filed outside of the two-year statute of limitations in R.C. 2743.16(A). The

plaintiff then filed a declaratory judgment action in the common pleas court, which the

trial court dismissed. In finding the trial court properly dismissed the declaratory

judgment action, this court found the plaintiff had attempted to do, by means of a

declaratory judgment, that which he was barred from doing because of the statute of

limitations. We pointed out that there was no real controversy or justiciable issue in the

case, and a declaratory judgment would not terminate a controversy because any possible

controversy was already terminated by the statute of limitations of the Court of Claims.

We concluded that a declaratory judgment would be nothing more than an advisory

opinion. The same reasoning in Schaub and Cristino II applies to the present case.

{¶ 26} Appellant attempts to distinguish his case from Schaub by arguing that the

declaration he seeks in the present case would not be purely advisory. Appellant contends

that a declaration would terminate controversies irrespective of whether any enforceable

No. 13AP-772 11

contractual arrangements exist between the parties. However, it is clear from appellant's

complaint that he sought declaratory relief based upon the contract between the parties.

In his complaint, he alleged that he and the class members were entitled to declaratory

judgment "voiding the settlements that were procured under false pretenses, and

otherwise confirming that they have yet to receive the 'actual present value' of their PTD

claims as promised by the Bureau." These claims are clearly based upon the agreement

entered into between the parties and the promises contained in the agreement. Thus,

appellant's arguments are unpersuasive. For these reasons, we find the trial court did not

err when it granted summary judgment to the bureau on the claim for declaratory relief,

and we overrule appellant's third assignment of error.

{¶ 27} Accordingly, appellant's three assignments of error are overruled, and the

judgment of the Court of Claims of Ohio is affirmed.

Judgment affirmed.

SADLER, P.J., and DORRIAN, J., concur.

_____________________