[Cite as Ratcliff v. Seitz,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

DOUG RATCLIFF, et al.

Plaintiff-Appellant

v.

KIMBERLY SEITZ, et al.

Defendant-Appellee

Appellate Case No. 2014-CA-9

Trial Court Case Nos. 2012-CV-267 2013-CV-045

(Civil Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 3rd day of October, 2014.

...........

SCOTT A. KELLY, Atty. Reg. No. 0082280, 247 West Court Street, Sidney, Ohio 45365 Attorney for Plaintiff-Appellant

DAVID P. WILLIAMSON, Atty. Reg. No. 0032614, THOMAS M. HESS, JR., Atty. Reg. No. 0089667, 400 PNC Center, 6 North Main Street, Dayton, Ohio 45402 Attorneys for Defendant-Appellee Attorneys for Plaintiff-Appellee-Daniel Brauer, DVM .............

WELBAUM, J. 2

{¶ 1} Appellant, Doug Ratcliff, appeals from the judgment of the Miami County Court

of Common Pleas granting summary judgment on various consolidated claims. As the

plaintiff-appellant in Case No. 12 CV 267, Ratcliff appeals from the trial court’s decision

granting summary judgment in favor of various Miami Valley Bird Club members on Ratcliff’s

claims of conversion, unjust enrichment, fraudulent misrepresentation, and intentional infliction

of emotional distress. As the defendant-appellant in Case No. 13 CV 045, Ratcliff appeals from

the trial court’s decision granting summary judgment in favor of Dr. Daniel Brauer on Ratcliff’s

counterclaim alleging a violation of the Consumer Sales Practices Act. For the reasons outlined

below, the judgment of the trial court will be affirmed in part, reversed in part, and remanded for

further proceedings. Further, portions of the appeal will be dismissed for lack of a final

appealable order.

Relevant Factual History

{¶ 2} This appeal arises out of a series of events that occurred at a premises occupied

by Doug Ratcliff at 4101 W. State Route 55, Troy, Ohio. Ratcliff was the owner of an

unspecified number of exotic birds, which he kept in a separate house and barn located on the

property. Due to carbon monoxide poisoning in the spring of 2011, Ratcliff’s health deteriorated

and it became difficult for him to care for the birds.

{¶ 3} On August 1, 2011, Sharon Karns, a humane officer of the Miami County

Humane Society, and Dr. Julie Peterson, a veterinarian, went to Ratcliff’s residence to investigate

a complaint regarding the living conditions of the birds on his property. Ratcliff allowed Karns 3

and Peterson to look at the house and barn where he kept the birds, which both women described

as filthy and unacceptable. According to their deposition testimony, Karns and Peterson

observed multiple dead bird carcasses, dirty water and feeding bowls, and a lot of excrement.

They also noticed a stench of ammonia, poor air quality, and no air conditioning despite the

warm August weather. In addition, many of the live birds were missing feathers and several of

the birds were flying around free in the structure. Karns also observed birds with missing toes.

Dr. Peterson and Karns claimed that the birds were neglected and not given proper attention.

{¶ 4} Due to the filthy and unacceptable living conditions, Karns issued a two-week

notice for Ratcliff to clean and improve the space where he housed the birds. As part of the

notice, Ratcliff was informed that the birds would be subject to an on-site impound, meaning that

the birds would remain on Ratcliff’s property, but that the Humane Society was responsible for

making sure the birds were fed and watered every day. Karns could not remove the birds from

the property because she had nowhere to house them. The notice also indicated that Ratcliff was

prohibited from doing anything with the birds; however, Karns later stated that she had told

Ratcliff that he could feed and water them.

{¶ 5} Karns and Peterson also advised Ratcliff that members of a local group, the

Miami Valley Bird Club (“MVBC”), would help him feed and water the birds. Some members

from the MVBC, including Kimberly Seitz, were at the property with Dr. Peterson and Karns.

There is no dispute that Ratcliff initially gave the MVBC members permission to come to his

property to help him feed and water the birds every other day. There is also no dispute that

Ratcliff transferred ownership of four birds to the MVBC that day.

{¶ 6} The next day, August 2, 2011, Karns went to Ratcliff’s property to check on the 4

birds and she saw that they had food and water. Thereafter, on the morning of August 3, 2011,

members of the MVBC went to Ratcliff’s property to check on the birds. Once there, MVBC

member Kimberly Seitz asked Ratcliff to sign a written consent form stating that MVBC

members were allowed to enter his property in order to feed and water the birds. Ratcliff does

not dispute signing this form and giving permission for MVBC members to enter his property.

{¶ 7} The same day, Seitz presented a second form to Ratcliff for purposes of releasing

additional birds to the MVBC. Ratcliff does not dispute signing the form for the release of

additional birds, but claims that the form he signed did not state the specific number of birds that

would be taken. According to Ratcliff, it was his understanding that only three birds were going

to be taken that day for purposes of medical treatment. It was also Ratcliff’s understanding that

he was not giving up ownership of the three birds, and that he would pay for their care.

{¶ 8} Seitz, however, testified that prior to Ratcliff signing the release form, she wrote

on the form that Ratcliff would be releasing ownership of “ten avian birds” to the MVBC.

Seitz further claims that she read the form to Ratcliff and that he understood he was relinquishing

ownership of the ten birds to the MVBC. Jim Tinnell, a MVBC member and vet tech at Dayton

South Veterinary Clinic, also testified that Ratcliff gave the MVBC permission to take ten birds

from his property and that Ratcliff understood the ownership of the ten birds would be transferred

to the MVBC. After the ten birds were taken from Ratcliff’s property, the MVBC transferred

ownership of the birds to Dr. Daniel Brauer of Dayton South Veterinary Clinic. Dr. Brauer later

billed Ratcliff for the veterinary services he performed on the birds.

{¶ 9} On August 4, 2011, Seitz returned to Ratcliff’s property with other MVBC

members, including Vernon and Sharon Schmidt. Seitz claims she obtained permission from 5

Ratcliff to check on the birds that day since he had previously said they could only come on the

property every other day. According to Seitz, the Schmidts saw several sick birds and took four

more of the birds while she was feeding and watering the others. It was Tinnell’s understanding

that the Schmidts had anonymously dropped off the birds to the Dayton South Veterinary Clinic.

{¶ 10} After Ratcliff noticed that more than three birds had been taken, he became upset

and thereafter prohibited the MVBC from entering his property, as he believed the members were

stealing his birds. Over the next month, Karns continued to monitor Ratcliff’s remaining birds.

Karns claims that while the cleanliness was improving, Ratcliff was still not feeding and watering

the birds regularly. Accordingly, she and Ratcliff entered into a written agreement providing

that the Humane Society would not press charges for animal cruelty if he released ownership of

the remaining birds housed on his property. On September 6, 2011, Ratcliff signed the

agreement releasing ownership of his birds.

Course of Proceedings

{¶ 11} Two cases were filed as a result of the foregoing facts. The first case, Case No.

13 CV 045, was originally filed in the Montgomery County Court of Common Pleas by Dr.

Brauer, and the second case, Case No. 12 CV 267, was filed in the Miami County Court of

Common Pleas by Ratcliff. On December 20, 2012, Case No. 13 CV 045 was transferred from

Montgomery County to Miami County where it was then consolidated with Case No. 12 CV 267

for purposes of trial. The procedural history of each case is outlined below.

Case No. 13 CV 045

{¶ 12} With respect to Case No. 13 CV 045, on October 25, 2011, Dr. Brauer filed a 6

complaint that requested a declaratory judgment against Ratcliff finding that he, not Ratcliff, was

the legal owner of the birds transferred to him by the MVBC. In response, Ratcliff filed

counterclaims against Dr. Brauer alleging claims for: (1) conversion; (2) replevin; (3) a

declaratory judgment finding that he is the rightful owner of the birds; (4) a declaratory judgment

finding that he is not liable for the veterinary expenses; and (5) a claim for violations of the

Consumer Sales Practices Act (“CSPA”), based on allegedly unfair, deceptive, and

unconscionable sales practices.

{¶ 13} On September 7, 2012, Ratcliff filed a motion for summary judgment on his

CSPA counterclaim, as well as his counterclaims requesting declaratory judgments finding him

to be the rightful owner of the birds and not liable for the veterinary expenses. Dr. Brauer filed a

memorandum in opposition to Ratcliff’s motion, which included a request that the court grant

summary judgment in his favor on the same claims.

{¶ 14} On October 10, 2013, the trial court issued a written decision granting summary

judgment in favor of Dr. Brauer on the CSPA counterclaim and dismissed it entirely. However,

the trial court denied summary judgment to either party on the declaratory judgment claims,

finding that there was a genuine issue of material fact remaining as to whether Ratcliff actually

transferred ownership of the birds in partial consideration for being exempt from the veterinary

bills, as well as what birds were transferred by the release of ownership form.

{¶ 15} Several months later, on March 4, 2014, the parties filed a stipulated Civ.R.

41(A)(1) voluntary dismissal of only the claims that had not been adjudicated by summary

judgment in an effort to create a final appealable order. The dismissal entry specifically stated

that: “By this Stipulation Dismissal, the parties hereby dismiss, without prejudice, all claims 7

remaining in this matter that were not adjudicated by the Court’s Order Granting and Denying

Motions and Other Requests for Summary Judgment, filed October 19, 2013, and intend to

thereby render that Order final and appealable.” (Emphasis sic.) Ohio Rule 41(A) Stipulation

of Dismissal (Mar. 4, 2014), Miami County Court of Common Pleas Case No. 13 CV 045,

Docket No. 31, p. 2.

Case No. 12 CV 267

{¶ 16} With respect to Case No. 12 CV 267, on April 27, 2012, Ratcliff filed a

complaint alleging that MVBC members Kimberly Seitz, Gary Tinnell, James Tinnell, Jennifer

Woodard, and Vernon and Sharon Schmidt, were liable for: (1) conversion; (2) unjust

enrichment; (3) fraudulent misrepresentation; and (4) intentional infliction of emotional distress

as a result of removing his birds. In response, Seitz filed a counterclaim against Ratcliff alleging

that he owed her reimbursement for her services in removing and caring for the birds. Ratcliff

later dismissed all claims against Woodard. Thereafter, Ratcliff filed a partial motion for

summary judgment regarding Seitz’s counterclaim for reimbursement. The remaining MVBC

defendants also filed a motion for summary judgment on all four of Ratcliff’s claims.

{¶ 17} In its written decision of October 10, 2013, the trial court granted summary

judgment in favor of the MVBC defendants on Ratcliff’s four claims, finding that they lawfully

took possession of the birds and were immune from liability under R.C. 1717.13. However, the

trial court found a genuine issue of material fact remained as to who owned the birds following

their removal from Ratcliff’s property, as well as who was responsible for the expenses related to

their care. Accordingly, the trial court denied summary judgment on Seitz’s counterclaim for

reimbursement. Following the trial court’s decision, Seitz voluntarily dismissed her 8

counterclaim.

{¶ 18} As a result of the voluntary dismissals in both Case Nos. 13 CV 045 and 12 CV

267, on March 5, 2014, the trial court issued a decision and entry stating that there were no

remaining claims for relief in controversy between any of the parties in either case, and that an

entry of final judgment is appropriate. The trial court then entered a final judgment in favor of

the MVBC defendants in Case No. 12 CV 267 and dismissed Ratcliff’s claims in that case with

prejudice. Likewise, the trial court entered a final judgment in favor of Dr. Brauer on the CSPA

claim in Case No. 13 CV 045, also dismissing that claim with prejudice. The trial court

included Civ.R. 54(B) certifications of a final appealable order in its entry.

{¶ 19} Ratcliff now appeals from the March 5, 2014 decision and entry, raising two

assignments of error for review.

Assignment of Error No. I

{¶ 20} Ratcliff’s First Assignment of Error is as follows:

THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT IN

RATCLIFF’S FAVOR ON RATCLIFF’S FIFTH AND FOURTH CAUSES OF

ACTION AGAINST DR. BRAUER AND ON KIMBERLY SEITZ’S

COUNTERCLAIM.

{¶ 21} Under this assignment of error, Ratcliff argues that the trial court erred in

granting summary judgment in favor of Dr. Brauer on the CSPA claim and denying summary

judgment on his claim requesting a declaratory judgment finding that he was not liable for Dr.

Brauer’s veterinary expenses. He also claims the trial court erred in denying him summary 9

judgment on Seitz’s counterclaim for reimbursement of expenses.

{¶ 22} As a preliminary matter, we note that Seitz voluntarily dismissed her only

counterclaim against Ratcliff. “It is well-established that, ordinarily, when a plaintiff dismisses

an action without prejudice, pursuant to Civ.R. 41(A), the parties are left as if no action had been

brought.” Jackson v. Allstate Ins. Co., 2d Dist. Montgomery No. 20443,

, citing Denham v. New Carlisle,

,

(1999). (Other

citations omitted.) Because the current status is as if Seitz’s counterclaim had never existed, any

claim of error with respect to the counterclaim is unavailable. Accordingly, we decline to

address this portion of Ratcliff’s assignment of error.

{¶ 23} Ratcliff also voluntarily dismissed all his claims against Dr. Brauer, with the

exception of the CSPA claim that was adjudicated via the trial court’s decision on summary

judgment. The parties admittedly dismissed the unadjudicated claims in order to obtain a final

appealable order. In Pattison v. W.W. Grainger, Inc.,

,

,

, the Supreme Court of Ohio stated the following regarding voluntary dismissal:

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 added.)

***

As recognized by the Eighth District Court of Appeals, other appellate

districts faced with this question have found that dismissal of a single claim

among others against the same defendant is not permitted by Civ.R. 41. These

holdings have been based on the text of the rule itself, as well as the general 10

policy against piecemeal litigation. See Borchers v. Winzeler Excavating (Apr.

10, 1992), 2d Dist. No. 13297,

(“In our view, Civ.R. 41(A)(1)

creates a mechanism whereby a plaintiff may voluntarily dismiss his entire action,

without prejudice. It does not provide for the dismissal, without prejudice, of

part of a cause of action”) (decided under former version of Civ.R. 41); Savage v.

Cody-Zeigler, Inc., 4th Dist. No. 06CA5,

,

, ¶

33 (“A plain reading of Civ.R. 41(A) reveals that it allows a plaintiff ‘to dismiss

all claims’ asserted against a defendant, but contains no mechanism for the

dismissal of a single claim” [emphasis sic]); Kildow v. Home Town

Improvements, 5th Dist. No. CT2001-0057,

,

,

11 (“We therefore hold that appellant’s attempt to dismiss the remaining contract

claims via Civ.R. 41(A)(1) was a nullity; hence said claims remain

unadjudicated”); Reagan v. Ranger Transp., Inc. (1995),

,

(“a party cannot dismiss claims pursuant to Civ.R. 41(A)(1)(a)

because such rule permits only the dismissal of actions”) (decided under former

version of the rule); Lewis v. J.E. Wiggins & Co., 10th Dist. Nos. 04AP-469,

04AP-544, and 04AP-668,

,

, ¶ 17. Many of

these opinions noted 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). E.g.

; Kildow;

Civ.R. 41(A) allows for a dismissal of all claims against particular

defendants. The lower court’s position regarding judicial economy and the need 11

to streamline cases suffers in that, were Civ.R. 41(A) to be used to dismiss fewer

than all of the claims against a certain defendant, a plaintiff could create a final

and appealable order as to one issue under Civ.R. 41(A) while still saving the

dismissed claim to be refiled later. To allow a partial Civ.R. 41(A) dismissal is

potentially prejudicial to defendants. In cases in which all claims against a party

are dismissed without prejudice, there still is the risk of the action being refiled,

but the amount of potential litigation that a defendant is subjected to is the same.

When an individual claim against a defendant is dismissed without prejudice,

however, the defendant is forced to go through the appeal process and may

perhaps still be subjected to the dismissed claim upon refiling. The defendant in

that situation is vulnerable to an increased overall burden due to the Civ.R. 41

dismissal.

Pattison at ¶ 12, 19-20. Accord, Leonard v. Huntington Bancshares, Inc., 10th Dist. Franklin

No. 13AP-843,

(dismissing appeal where plaintiff dismissed some claims

in an attempt to create final appealable order).

{¶ 24} Because Ratcliff dismissed only a portion of his claims against Dr. Brauer, the

Civ.R. 41(A)(1) holding in Pattison renders the dismissal a nullity, and all the dismissed claims

remain pending. See, e.g., Perez Bar & Grill v. Schneider, 9th Dist. Lorain No. 09CA009573,

, ¶ 7 (finding voluntary dismissal was a nullity and claims remain pending as

Civ.R. 41(A) does not permit a party to dismiss anything less than all claims against any one

party); Patriot Outdoors, L.L.C. v. Strata Petroleum, Inc., 7th Dist. Monroe No. 12 MO 9,

(noting that where voluntary dismissal of chosen claims are held 12

ineffective, the claims that were voluntarily dismissed are revived). We note that while Dr.

Brauer dismissed all of his claims against Ratcliff via the stipulated dismissal, Brauer’s claims

still remain pending, because Ratcliff’s partial dismissal renders the entire stipulated dismissal

null and void.

{¶ 25} Since the dismissed claims remain pending in the trial court, there is no final

appealable order with respect to those claims. See R.C. 2505.02. Due to the lack of a final

appealable order, we do not have jurisdiction to review errors concerning those claims. See

Kilroy v. Peters, 2d Dist. Montgomery No. 24268,

(“If an order is not

final and appealable, then we have no jurisdiction to review the matter and must dismiss the

appeal”). Accordingly, we do not have jurisdiction to review whether the trial court correctly

denied Ratcliff summary judgment on the declaratory judgment claim for veterinary expenses, as

that is one of the claims still pending before the trial court.

{¶ 26} The CSPA claim, on the other hand, is different from Ratcliff’s other claims

against Dr. Brauer. The CSPA claim was not one of the claims dismissed by Ratcliff, and the

trial court issued a final entry with Civ.R. 54(B) certification language when it rendered judgment

in favor of Dr. Brauer on that claim. We note that Pattison states “that when a plaintiff has

asserted multiple claims against one defendant, and some of those claims have been ruled upon

but not converted into a final order through Civ.R. 54(B), the plaintiff may not create a final

order by voluntarily dismissing pursuant to Civ.R. 41(A) the remaining claims against the same

defendant.” Pattison,

,

,

. This case

is distinguishable from Pattison, as the trial court did attempt to issue a final appealable order

through its inclusion Civ.R. 54(B) language. 13

{¶ 27} Civ.R. 54(B) provides that:

When more than one claim for relief is presented in an action whether as a claim,

counterclaim, cross-claim, or third-party claim, and whether arising out of the

same or separate transactions, or when multiple parties are involved, the court

may enter final judgment as to one or more but fewer than all of the claims or

parties only upon an express determination that there is no just reason for delay. In

the absence of a determination that there is no just reason for delay, any order or

other form of decision, however designated, which adjudicates fewer than all the

claims or the rights and liabilities of fewer than all the parties, shall not terminate

the action as to any of the claims or parties, and the order or other form of

decision is subject to revision at any time before the entry of judgment

adjudicating all the claims and the rights and liabilities of all the parties.

{¶ 28} While the trial court in this case used the required language found in Civ.R.

54(B), it has, nevertheless, been held that “the mere incantation of the required language does not

turn an otherwise non-final order into a final appealable order.” (Citations omitted.) Noble v.

Colwell,

,

(1989). Accord Bell v. Turner,

,

(4th Dist.) (finding the trial court’s use of the “magic

language” of Civ.R. 54(B) does not, by itself, convert a final order into a final appealable order).

Instead, “[t]he order at issue must always fit into at least one of the * * * categories of final order

set forth in R.C. 2505.02.” (Citation omitted.)

.

{¶ 29} In Chef Italiano Corp. v. Kent State University,

,

(1989), the Supreme Court of Ohio stated that: 14

[I]n a case which does not involve multiple parties or multiple claims, all the

conditions (substantial right, determine the action, prevent a judgment) of R.C.

2505.02 must be met before the order becomes final and appealable. This is also

true in a case which does not involve multiple parties but which does involve a

number of claims or counts pled by the parties, and such claims or counts are so

inextricably intertwined as to make the eventual relief sought the same even

though the claims are pled separately. To such cases, Civ.R. 54(B) has no

application.

. Furthermore:

It has been observed that, notwithstanding a deferential standard to be used when

considering the finality of an order containing Civ.R. 54(B) language, “courts of

appeals have rejected trial courts’ invocation of Rule 54(B), particularly when

there is much overlap between the claims adjudicated and the claims that remain

pending and where the court of appeals believes that the fractured appellate

process is not in the interest of ‘sound judicial administration.’ ” Painter &

Pollis, Ohio Appellate Practice (2010-2011 Ed.), 50, Section 2:8. A trial court

may abuse its discretion in certifying a Civ.R. 54(B) claim for appeal when the

facts are intertwined with an unresolved counterclaim. Harness v. D. Jamison &

Assocs. (June 25, 1997), 1st Dist. No. C960735,

, *4,

citing

Deutsche Bank Natl. Trust Co. v. Germano, 11th Dist. Portage No. 2010-P-0081,

, ¶ 8. 15

{¶ 30} Accordingly, we must determine whether Ratcliff’s unresolved counterclaims are

intertwined or overlap with the CSPA claim in which summary judgment was granted in favor of

Dr. Brauer. We note that Ratcliff’s counterclaims against Dr. Brauer for conversion, replevin, and

declaratory judgments on the ownership of the birds and veterinary expenses specifically concern

the ownership of the birds and who is financially responsible for their veterinary expenses. The

CSPA claim, however, is different in that it concerns the fact that Dr. Brauer sent Ratcliff a bill

for veterinary services without having any communication with him or without contracting for

the services. We conclude that this claim does not overlap to the point where it would be

inappropriate to find that the trial court’s decision on the CSPA claim amounts to a final

appealable order. Accordingly, we will proceed to review whether the trial court erred in

granting summary judgment on the CSPA claim.

{¶ 31} When reviewing whether a trial court properly granted summary judgment, an

appellate court conducts a de novo review. Village of Grafton v. Ohio Edison Co.,

,

(1996). “De novo review means that this court uses the same

standard that the trial court should have used, and we examine the evidence to determine whether

as a matter of law no genuine issues exist for trial.” (Emphasis sic.) Brewer v. Cleveland City

Schools Bd. of Edn.,

,

(8th Dist. 1997), citing Dupler

v. Mansfield Journal Co.,

,

(1980). Therefore, the trial court’s

decision is not granted any deference by the reviewing appellate court. Brown v. Scioto Cty. Bd.

of Commrs.,

,

(4th Dist. 1993).

{¶ 32} The trial court granted summary judgment in favor of Dr. Brauer on Ratcliff’s

CSPA claims under R.C. 1345.02 and R.C. 1345.03 because it found the interaction between 16

Ratcliff and Dr. Brauer did not qualify as a “consumer transaction.” In order for there to be a

violation of the CSPA under R.C. 1345.02, a supplier must “commit an unfair or deceptive act or

practice in connection with a consumer transaction.” For there to be a violation of the CSPA

under R.C. 1345.03, a supplier must “commit an unconscionable act or practice in connection

with a consumer transaction.” Accordingly, a consumer transaction is a necessary component of

the alleged CSPA violations.

{¶ 33} The definition of “consumer transaction” is:

a sale, lease, assignment, award by chance, or other transfer of an item of goods,

a service, a franchise, or an intangible, to an individual for purposes that are

primarily personal, family, or household, or solicitation to supply any of these

things. “Consumer transaction” does not include transactions between persons,

defined in sections 4905.03 and 5725.01 of the Revised Code, and their

customers, except for transactions involving a loan made pursuant to sections

1321.35 to 1321.48 of the Revised Code and transactions in connection with

residential mortgages between loan officers, mortgage brokers, or nonbank

mortgage lenders and their customers; transactions involving a home

construction service contract as defined in section 4722.01 of the Revised Code;

transactions between certified public accountants or public accountants and their

clients; transactions between attorneys, physicians, or dentists and their clients or

patients; and transactions between veterinarians and their patients that pertain to

medical treatment but not ancillary services.

R.C. 1345.01(A). 17

{¶ 34} “[T]o qualify as a consumer transaction, R .C. 1345.01(A) requires that the sale

or service must be for personal, family, or household purposes.” Devine v. Calanni Ents., Inc.,

8th Dist. Cuyahoga No. 90840,

. Here, the services rendered by Dr.

Brauer were not primarily for Ratcliff’s personal, family, or household purposes, as the veterinary

services were performed at the behest of the MVBC. Additionally, the definition of “consumer

transaction” does not include “transactions between veterinarians and their patients that pertain to

medical treatment.” See R.C. 1345.01(A). Because the services at issue are not covered under

the foregoing definition, we do not find that Dr. Brauer’s medical treatment qualifies as a

consumer transaction. As a result, the trial court did not err in awarding Dr. Brauer summary

judgment on Ratcliff’s CSPA claim, as a consumer transaction was a necessary element of the

claim.

{¶ 35} For the foregoing reasons, Ratcliff’s First Assignment of Error is overruled in

part and dismissed in part for lack of a final appealable order.

Assignment of Error No. II

{¶ 36} Ratcliff’s Second Assignment of Error is as follows:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN

THE FAVOR OF KIMBERLY SEITZ, JAMES TIMMELL, [sic] GARY

TINNELL, SHARON SCHMIDT, AND VERNON SCHMIDT ON RATCLIFF’S

CAUSES OF ACTION FOR CONVERSION, UNJUST ENRICHMENT,

FRAUD, AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

{¶ 37} Under this assignment of error, Ratcliff contends the trial court erred in granting 18

summary judgment in favor of the MVBC defendants on his claims for conversion, unjust

enrichment, fraudulent misrepresentation, and intentional infliction of emotional distress. He

claims the trial court incorrectly concluded that R.C. 1717.13 provided the MVBC defendants

with immunity from those claims, as he contends a general issue of material fact existed as to

whether R.C. 1717.13 applies to the facts of this case.

{¶ 38} The claims against the MVBC defendants do not suffer from the same final

appealable order infirmities as Ratcliff’s counterclaims against Dr. Brauer, because Seitz

voluntarily dismissed her only claim against Ratcliff and left no claims pending. Accordingly,

the trial court’s decision, as it relates to this assignment of error, is in the position of a final

appealable order that we have jurisdiction to review.

{¶ 39} The trial court rendered summary judgment in favor of the MVBC defendants on

grounds that R.C. 1717.13 provided them immunity from Ratcliff’s claims. R.C. 1717.13 is a

statute that “allows any person to take possession of an animal to protect the animal from

neglect.” State v. Walker,

,

,

(2d

Dist.). The statute states, in pertinent part, that:

When, in order to protect any animal from neglect, it is necessary to take

possession of it, any person may do so. When an animal is impounded or

confined, and continues without necessary food, water, or proper attention for

more than fifteen successive hours, any person may, as often as is necessary, enter

any place in which the animal is impounded or confined and supply it with

necessary food, water, and attention, so long as it remains there, or, if necessary or

convenient, he may remove such animal; and he shall not be liable to an action for 19

such entry. In all cases the owner or custodian of such animal, if known to such

person, immediately shall be notified by him of such action. If the owner or

custodian is unknown to such person, and cannot with reasonable effort be

ascertained by him, such animal shall be considered an estray and dealt with as

such.

R.C. 1717.13.

{¶ 40} “This particular statute does require a showing of neglect prior to a lawful entry

and seizure.” (Citation omitted.)

. “The first sentence provides a qualified

immunity, which exempts a humanitarian’s taking possession of an animal if, and only if, it can

be shown at a post-seizure proceeding that the animal was, in fact, neglected at the time it was

seized, and if the owner was promptly notified of the seizure.” (Emphasis added.) (Citation

omitted.) State v. York,

,

(11th Dist. 1997).

Additionally, R.C. 1717.13 “provides defenses to an action, in trespass or conversion, for

instance, by the true owner of an animal against any person (a humanitarian) who takes it into

possession.”

{¶ 41} In this case, there is overwhelming evidence that Ratcliff’s birds were neglected

prior to the Humane Society intervening. Both Dr. Peterson and Sharon Karns described the

birds’ living conditions as filthy and unacceptable, and they confirmed the birds had been

neglected. As a result, Karns issued an on-site impound on August 1, 2011, which meant the

birds would remain on Ratcliff’s property, but that Karns would ensure they were fed and

watered every day. Karns chose this course of action because she had nowhere to put the birds.

Two days after the impound, Jim Tinnell took photographs showing that the birds were still 20

living in deplorable conditions. The photographs included unsettling images of bird carcasses

rotting in cages and the filth the birds had been living in for a significant period of time. Tinnell,

an experienced vet tech, also testified that he was concerned for the birds due to the house being

extremely hot and he believed that ten of the birds needed medical treatment. Due to the

ongoing poor conditions, a question of fact arises as to whether the birds were still in a state of

neglect that authorized their removal pursuant to R.C. 1717.13 even after the Humane Society

intervened.

{¶ 42} A genuine issue of material of fact also exists as to whether proper notice was

given to Ratcliff regarding the removal of his birds, which is necessary for the immunity granted

by R.C. 1717.13. See

. Ratcliff claims that on August 3, 2011, the MVBC

defendants notified him that they were going to take three birds and that he agreed. Seitz and

Tinnell, however, claim that they notified Ratcliff that they were going to take ten birds and that

he agreed. While there is a written contract signed by Ratcliff indicating that he was releasing

“ten avian birds” to the MVBC, there is testimony in the record indicating that the form may have

been blank when he signed it and filled in later. Seitz, claims otherwise; therefore, a genuine

issue of material fact remains as to whether Ratcliff was immediately notified that an additional

seven birds were going to be taken.

{¶ 43} With respect to the four additional birds taken on August 4, 2011, Seitz claimed

that Ratcliff had previously given the MVBC discretion to take additional sick birds to the

veterinarian. Ratcliff claims otherwise, and there is nothing in the record indicating that Ratcliff

was given notice of these birds being removed. Therefore, a genuine issue of material fact

remains as to whether the MVBC should have provided Ratcliff with the notice required under 21

R.C. 1717.13 or whether Ratcliff had simply granted them permission to take sick birds for

treatment.

{¶ 44} As a result of the foregoing issues of fact, it is unclear whether the MVBC

defendants had immunity under R.C. 1717.13. As a result, the trial court erred in granting the

MVBC defendants summary judgment on the fraudulent misrepresentation and conversion

claims. With respect to the conversion claim, there is a genuine issue of material fact as to

whether the MVBC wrongfully converted the birds, as it is unclear whether the MVBC

defendants were permitted to remove the birds under R.C. 1717.13 and/or whether they had an

agreement with Ratcliff to remove the birds. With respect to the fraudulent misrepresentation

claim, there is a genuine issue of material fact as to whether the MVBC misrepresented how

many birds they were taking.

{¶ 45} The MVBC defendants claim that summary judgment on the conversion and

fraud claims is appropriate because Ratcliff failed to present evidence of damages. Ratcliff’s

testimony indicates that his birds were kept as pets1 and “[t]he law of Ohio regards a pet as the

personal property of its owner.” (Citation omitted.) Ullmann v. Duffus, 10th Dist. Franklin No.

05AP-299,

. “Typically, damages for loss of personal property are limited

to the difference between the property’s fair market value before and immediately after the loss.”

(Citation omitted.) Oberschlake v. Veterinary Assoc. Animal Hosp.,

,

,

(2d Dist.). The owner-opinion rule presumes that owners

of personal or real property are “generally quite familiar with their property and its value,” and

1 See Doug Ratcliff Deposition Trans. (Apr. 4, 2013), p. 103 (Ratcliff claimed he had not sold a bird during the past three to five years, and that he was not planning on selling any of the birds that were in his possession). 22

are “permitted to testify on value by virtue of their ownership alone.” (Citation omitted.)

Tokles & Son, Inc. v. Midwestern Indemn. Co.,

,

(1992).

Here, Ratcliff testified that the value of the birds that were allegedly wrongfully taken was

between $15,600 to $19,800. See Doug Ratcliff Deposition Trans. (Apr. 4, 2013), p. 104-105,

107-108. Therefore, Ratcliff provided sufficient evidence of damages on these claims.

{¶ 46} Nevertheless, we conclude that there is no genuine issue of material fact

remaining on Ratcliff’s claims for unjust enrichment. To prevail on an unjust enrichment claim

there must be: “(1) a benefit conferred by a plaintiff upon a defendant; (2) knowledge by the

defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances

where it would be unjust to do so without payment (i.e., the ‘unjust enrichment’ element).”

(Citations omitted.) Crawford v. Hawes,

,

(2d Dist.).

Here, the MVBC defendants did not retain a benefit from Ratcliff when they removed the birds

from his property, as the MVBC defendants did not keep possession of the birds or sell them, but

transferred them to Dr. Brauer. Without a benefit derived by the MVBC defendants, Ratcliff’s

unjust enrichment claim must fail, because the first element of the claim is not met.

{¶ 47} Likewise, we conclude there is no genuine issue of material fact remaining on

Ratcliff’s claim for intentional infliction of emotional distress. To succeed on a claim of

intentional infliction of emotional distress it must be proven that: “ ‘(1) that the actor either

intended to cause emotional distress or knew or should have known that actions taken would

result in serious emotional distress to the plaintiff; (2) that the actor’s conduct was so extreme

and outrageous as to go beyond all possible bounds of decency and was such that it can be

considered as utterly intolerable in a civilized community; (3) that the actor’s actions were the 23

proximate cause of the plaintiff’s psychic injury; and (4) that the mental anguish suffered by

plaintiff is serious and of a nature that no reasonable man could be expected to endure it.’ ”

Pathan v. Pathan, 2d Dist. Montgomery No. 20926,

, quoting Scroggins v.

Bill Furst Florist and Greenhouse, Inc., 2d Dist. Montgomery No. 19519,

.

(Other citation omitted.)

{¶ 48} Here, there is nothing in the record indicating that the MVBC defendants either

intended to cause Ratcliff emotional distress or knew or should have known that removing the

birds would result in serious emotional distress. Rather, the record indicates that the intention of

the MVBC defendants was purely a humane effort to protect the birds and provide them with

necessary care. In addition, even when viewing the evidence in a light most favorable to

Ratcliff, it simply cannot be said that the MVBC defendants’ conduct in removing the birds from

his home is so extreme and outrageous as to go beyond all possible bounds of decency and would

be seen as intolerable by community standards. Again, the record plainly reveals that MVBC

defendants’ conduct was a humane effort to get the birds in a place that was safer and healthier.

{¶ 49} For the foregoing reasons, we conclude the trial court correctly granted summary

judgment in favor of the MVBC defendants on Ratcliff’s claims for unjust enrichment and

intentional infliction of emotional distress, but that genuine issues of material fact remain as to

whether the MVBC defendants fraudulently misrepresented how many birds they were taking and

whether their conduct in taking the birds amounts to conversion.

{¶ 50} Accordingly, Ratcliff’s Second Assignment of Error is overruled in part and

sustained in part. 24

Conclusion

{¶ 51} The trial court’s decision granting summary judgment in favor of Dr. Brauer on

the CSPA claim in Case No. 13 CV 045 is affirmed. The trial court’s decision granting

summary judgment in favor of the MVBC defendants on the unjust enrichment and intentional

infliction of emotional distress claims in Case No. 12 CV 267 is also affirmed. However, the

trial court’s decision granting summary judgment on Ratcliff’s claims for conversion and

fraudulent misrepresentation in Case No. 12 CV 267 is reversed and remanded for further

proceedings. Also, the portion of Ratcliff’s First Assignment of Error challenging the trial

court’s decision denying summary judgment on Seitz’s counterclaim and his declaratory

judgment claim concerning veterinary expenses is dismissed for lack of a final appealable order.

.............

FROELICH, P.J., and HALL, J., concur.

Copies mailed to:

Scott A. Kelly David P. Williamson Thomas M. Hess, Jr. Hon. Christopher Gee