[Cite as Scott Charles Laundromat Inc. v. Akron,

.]

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

SCOTT CHARLES LAUNDROMAT, INC. C.A. No. 26125

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE CITY OF AKRON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2010 07 5174

DECISION AND JOURNAL ENTRY

Dated: June 27, 2012

DICKINSON, Judge.

INTRODUCTION

{¶1} Scott Charles Laundromat Inc. entered into a pair of contracts with the City of

Akron Public Utilities Bureau for water and sewer services for two of its Laundromats. The

contracts indicated that the buildings were “used for a[n] Industrial purpose” and that Scott

Charles would “pay for all of said services at the regular rates as they are now established or may

be revised . . . .” For close to 20 years, the Bureau charged Scott Charles the regular rate for an

industrial user. In 2010, Scott Charles sued the City for breach of contract, fraud, conversion,

and unjust enrichment, alleging that the City should have only charged it the rate for a

commercial user. The trial court granted summary judgment to the City. Scott Charles has

appealed, arguing that the trial court incorrectly granted summary judgment to the City. We

affirm because Scott Charles failed to demonstrate that there were any genuine issues of material

fact in dispute and the City was entitled to judgment on its claims as a matter of law. 2

BREACH OF CONTRACT

{¶2} In the first count of its complaint, Scott Charles alleged that the City breached

their contracts by overcharging it $84,609 for sewer services. It has argued that, even though the

contracts indicated that its buildings were going to be used for industrial purposes, the City

should have charged it the rate that was appropriate for the way the properties were actually

used, which was as commercial Laundromats.

{¶3} Under the City’s Code of Ordinances, the City charges users of its sewer system

different rates depending on whether the customer is a residential, commercial, or industrial user.

The Code defines an “[i]ndustrial [u]ser” as “[a]ny user who discharges to the sewage system

wastes, other than domestic waste, which are the result of any industrial manufacturing process,

trade, or business or the development of any natural resource.” Akron Codified Ordinances

50.20. It also includes “any user discharging 25,000 gallons per day or more of an equivalent

domestic waste, process waste, or a combination domestic-process waste. Any user shall not be

excluded from industrial cost recovery if he contributes any incompatible or toxic substances

which affect the efficiency or costs of the treatment works.”

The Code defines

“[c]ommercial [u]ser” as “[a]ny user of the sewage system not specifically categorized by the

Public Utilities Bureau as residential, industrial, or master-metered suburban. Commercial users

are generally, but not limited to, establishments engaged in the following: wholesale or retail

trade; public administration and government; general business offices; and service industries

such as food service, automotive repair, health services, and education services.”

{¶4} There was a place at the top of the contracts for the parties to designate whether

Scott Charles’s properties were going to be used for residential, commercial, or industrial

purposes. On both contracts, the parties selected “industrial.” Under the City’s code, a user is 3

only a “commercial user” if it is “not specifically categorized by the Public Utilities Bureau as

residential, industrial, or master-metered suburban.” Akron Codified Ordinances 50.20. In this

case, Scott Charles’s contract with the Public Utilities Bureau specifically categorized Scott

Charles’s use of the property as industrial. We, therefore, conclude that the City correctly billed

Scott Charles at the rate for an industrial user instead of a commercial user. As the Ohio

Supreme Court has noted, “[c]ourts do not relieve a party competent to contract from an

improvident agreement in the absence of fraud or bad faith.” Ullmann v. May,

,

paragraph two of the syllabus (1947). The trial court properly granted summary judgment to the

City on Scott Charles’s breach of contract claim.

FRAUD

{¶5} In the second count of its Complaint, Scott Charles alleged that the City’s

fraudulent conduct induced it to enter into the contract. “The elements of fraud are: (a) a

representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to

the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter

disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d)

with the intent of misleading another into relying upon it, (e) justifiable reliance upon the

representation or concealment, and (f) a resulting injury proximately caused by the reliance.”

Burr v. Stark County Bd. of Comm’rs,

, paragraph two of the syllabus (1986).

{¶6} In its Complaint, Scott Charles alleged that the City concealed the fact that

Laundromats are generally of a commercial, not industrial, nature. It also alleged that the City

concealed the fact that it charges industrial users a higher rate for sewer services than

commercial users. In his affidavit, Scott Charles’s president asserted that, at the time Scott

Charles entered into the contracts, it told the City’s employees that it was going to operate 4

Laundromats on its properties. He also asserted that City employees marked on the contracts

that the properties would be used for industrial purposes.

{¶7} At the time Scott Charles signed the contracts and throughout the contracts’

existence, the City’s sewer rates have been set out in the City’s Code of Ordinances. The Code

has also contained definitions of industrial, commercial, and residential user. Accordingly, Scott

Charles had, at the very least, constructive notice of those provisions. See Bakies v. City of

Perrysburg, 6th Dist. Nos. WD-03-055, WD-03-062,

(concluding that

recipient of sewer services had constructive notice of city’s ordinances); Ebco Mfg. Co. v. City of

Whitehall, 10th Dist. Nos. 77AP-191, 77AP-223,

, *5 (Nov. 29, 1977). We

note that, in its brief, Scott Charles has conceded that the City’s sewer ordinances were

“implicitly made a part of the Contract[s].”

{¶8} Before entering into the contracts, Scott Charles could have reviewed the City’s

sewer ordinances to determine whether it should be classified as a commercial or industrial user.

It also could have discovered that the City charges different service rates depending on the user’s

classification. Because Scott Charles had constructive notice of the City’s policies, we conclude

that it could not have justifiably relied on any representations made by City employees at the

time it signed the contract. The trial court correctly granted summary judgment to the City on

Scott Charles’s fraud claims.

CONVERSION

{¶9} In the third count of its Complaint, Scott Charles alleged that the City converted

$84,609 of its assets by charging it the industrial instead of the commercial rate. “[C]onversion

is the wrongful exercise of dominion over property to the exclusion of the rights of the owner, or

withholding it from his possession under a claim inconsistent with his rights.” State ex rel. Toma 5

v. Corrigan,

(2001) (quoting Joyce v. Gen. Motors Corp.,

(1990)). The three basic elements of conversion are: “(1) plaintiff’s ownership or right to

possession of the property at the time of the conversion; (2) defendant’s conversion by a

wrongful act or disposition of plaintiff's property rights; and (3) damages.” Keybank Nat’l

Assoc. v. Guarnieri & Secrest, P.L.L., 7th Dist. No.

,

(quoting

Haul Trans. of VA Inc. v. Morgan, 2d Dist. No. 14859,

, *3 (June 2, 1995)). “It

is not necessary that the property be wrongfully obtained.” McCartney v. Universal Elec. Power

Corp., 9th Dist. No. 21643,

, ¶ 14. When property is otherwise lawfully held,

“[a] demand and refusal . . . are usually required to prove the conversion.” Ferreri v. Goodyear

Local No. 2 United Rubber, Cork, Linoleum & Plastic Workers of Am. Home Ass’n, 9th Dist. No.

16311,

, *2 (Feb. 9, 1994) (quoting Ohio Tel. Equip. & Sales Inc. v. Hadler

Realty Co.,

(1985)).

{¶10} In support of its motion for summary judgment, the City submitted an affidavit

from its Public Utilities Bureau’s business service administrator. The administrator asserted that

he had knowledge of the facts and information related to this case. He also asserted that the City

had performed its obligations under the contracts, including furnishing water and sewer services

to Scott Charles’s Laundromats, taking meter readings, and billing the properties for the usage at

the industrial rate. In opposition to the City’s motion, Scott Charles did not argue that the City

billed it more than was allowed for an industrial user. Its sole argument was the City should

have billed it as a commercial user instead of an industrial user.

{¶11} As we explained earlier, the contracts that Scott Charles entered into with the City

provided that its properties were going to be used for industrial, rather than commercial or

residential purposes. The City, therefore, correctly billed Scott Charles at the industrial rate. 6

Upon review of the record, we conclude that the trial court correctly granted summary judgment

to the City on Scott Charles’s conversion claim.

UNJUST ENRICHMENT

{¶12} In the fourth count of its Complaint, Scott Charles argued that it would be unjust

for the City to retain the $84,609 difference between what it billed and what it should have

billed. According to the Ohio Supreme Court, “unjust enrichment of a person occurs when he

has and retains money or benefits which in justice and equity belong to another.” Hummel v.

Hummel,

(1938). To recover for unjust enrichment, a plaintiff must

demonstrate: (1) that it conferred a benefit upon the defendant; (2) that the defendant knew of

the benefit; and (3) that, under the circumstances, it would be unjust to allow the defendant to

retain the benefit without payment. Hambleton v. R.G. Barry Corp.,

(1984) (citing Hummel v. Hummel,

(1938)). “[T]he purpose of such

claims is not to compensate the plaintiff for any loss or damage suffered by him but to

compensate him for the benefit he has conferred on the defendant.” Johnson v. Microsoft Corp.,

,

, ¶ 21 (quoting Hughes v. Oberholtzer,

,

335 (1954)).

{¶13} “A person is not entitled to compensation on the ground of unjust enrichment if he

received from the other that which it was agreed between them the other should give in return.”

Ullmann v. May,

(1947) (quoting 1 Restatement of the Law, Restitution,

Section 107, at 448 cmt. A (1937)). In this case, it is not disputed that the City provided Scott

Charles with water and sewer services for two Laundromats. While Scott Charles may have paid

more for those services than it thinks it should have, “unless there is fraud or other unlawfulness

involved, courts are powerless to save a competent person from the effects of his own voluntary 7

agreement.”

; see 1 Restatement of the Law 3d, Restitution & Unjust Enrichment,

Section 2 (2011) (“A valid contract defines the obligations of the parties as to matters within its

scope, displacing to that extent any inquiry into unjust enrichment.”). We conclude that the trial

court correctly granted summary judgment to the City on Scott Charles’s unjust enrichment

claim. Scott Charles’s assignment of error is overruled.

CONCLUSION

{¶14} The trial court correctly granted summary judgment to the City. The judgment of

the Summit County Common Pleas Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT 8

WHITMORE, P. J. CONCURS

BELFANCE, J. CONCURS IN JUDGMENT ONLY.

APPEARANCES:

JOSEPH E. OLIVER, Attorney at Law, for Appellant.

CHERI B. CUNNINGHAM, Director of Law, and JOHN CHRISTOPHER REECE and MICHAEL J. DEFIBAUGH, Assistant Directors of Law, for Appellee.