[Cite as Lyon Revocable Trust v. Berry, 2026-Ohio-2369.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
RENA LYON REVOCABLE TRUST,
CASE NO. 8-26-02
PLAINTIFF-APPELLANT,
v.
TRENT BERRY, ET AL., OPINION AND
JUDGMENT ENTRY
DEFENDANTS-APPELLEES.
Appeal from Logan County Common Pleas Court
Trial Court No. CV 22 12 0344
Judgment Affirmed
Date of Decision: June 22, 2026
APPEARANCES:
Zebulon N. Wagner and Madyson S. Carothers for Appellant
Kaylee R. Price for Appellees
Case No. 8-26-02
ZIMMERMAN, P.J.
{¶1} Plaintiff-appellant, the Rena Lyon Revocable Trust (“Lyon Trust”),
appeals the January 23, 2026 judgment of the Logan County Court of Common
Pleas granting summary judgment in favor of defendants-appellees, Trent Berry and
Faith Berry (collectively, “the Berrys”). For the reasons that follow, we affirm.
{¶2} This case stems from a dispute regarding the sale of real estate and an
alleged agreement concerning the storage and relocation of Rena Lyon’s (“Lyon”)
personal property. Previously, the trial court dismissed the Lyon Trust’s amended
complaint, and this court reversed the trial court’s judgment and remanded the
matter for further proceedings on February 10, 2025.1 This appeal represents a
progression of the continued litigation between the parties.
{¶3} Following remand, on March 21, 2025, the Berrys filed their answer to
the Lyon Trust’s October 19, 2023 amended complaint, which asserted claims for
fraud, unjust enrichment, conversion, and breach of contract.
{¶4} On September 2, 2025, the Berrys filed a motion for summary
judgment. The Lyon Trust filed a memorandum in opposition to the Berrys’ motion
for summary judgment on September 26, 2025. The Berrys filed their reply on
October 10, 2025. After being granted leave, the Lyon Trust filed an additional
response on October 17, 2025.
1
The underlying facts and procedural history were thoroughly detailed in our previous decision and we will not duplicate those efforts here. See Rena Lyon Revocable Trust v. Berry, 2025-Ohio-425 (3d Dist.).
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{¶5} On January 23, 2026, the trial court granted summary judgment in favor
of the Berrys after determining, through the application of the parol evidence rule,
that the Lyon Trust’s claims for breach of contract and unjust enrichment were
barred because the allegations would improperly vary, contradict, or add to the
terms of the fully integrated residential purchase agreement. Similarly, the trial
court determined that the Lyon Trust’s fraud claim was contradicted by the
residential purchase agreement. Finally, as to the conversion claim, the trial court,
relying on the March 14, 2023 magistrate’s order permitting Lyon to remove her
personal property by May 15, 2023, concluded that the Lyon Trust could not
establish that the Berrys wrongfully exercised dominion over the property.
{¶6} The Lyon Trust filed a notice of appeal on February 19, 2026. It raises
four assignments of error for our review, which we will review together.
First Assignment of Error
The Trial Court Erred By Applying The Parol Evidence Rule To
Appellant’s Claim For Breach Of Contract.
Second Assignment of Error
The Trial Court Erred By Applying The Parol Evidence Rule To
Appellant’s Claim For Unjust Enrichment.
Third Assignment of Error
The trial Court Erred In Finding No Issue Of Material Fact As
To Appellant’s Fraud Claim.
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Fourth Assignment of Error
The Trial Court Erred In Finding No Issue Of Material Fact As
To Appellant’s Conversion Claim.
{¶7} The Lyon Trust’s assignments of error challenge the trial court’s
decision granting the summary judgment in favor of the Berrys. In its first and
second assignments of error, the Lyon Trust contends that the trial court erred by
applying the parol evidence rule to bar its claims for breach of contract and unjust
enrichment. In its third assignment of error, the Lyon Trust argues that summary
judgment as to its fraud claim was improper because the alleged misrepresentations
are not directly contradicted by the residential purchase agreement. Finally, in its
fourth assignment of error, the Lyon Trust argues that a genuine issue of material
fact remains as to the conversion claim since some of the personal property was
allegedly sold or missing at the time Lyon was permitted to retrieve the items.
Standard of Review
{¶8} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there
is no genuine issue of material fact, the moving party is entitled to judgment as a
matter of law, and reasonable minds can reach but one conclusion when viewing the
evidence in favor of the non-moving party, and the conclusion is adverse to the nonmoving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd.
of Edn., 69 Ohio St.3d 217, 219 (1994).
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Analysis
{¶9} On appeal, the Lyon Trust argues that summary judgment was
improperly granted in favor of the Berrys becuase (1) the trial court erroneously
applied the parol evidence rule to bar the breach of contract and unjust enrichment
claims because the personal property agreement and the residential purchase
agreement involve completely different subject matters; (2) the trial court
improperly barred the fraud claim because the alleged misrepresentations are not
directly contradicted by a signed writing; (3) a genuine issue of material fact remains
regarding the conversion claim because certain items of personal property were
allegedly sold or missing at the time of retrieval; and (4) the breach of contract and
conversion claims are not mutually exclusive alternative causes of action because
they seek distinct measures of damages.
Breach of Contract/Unjust Enrichment
{¶10} Beginning with its first and second assignments of error, the Lyon
Trust contends that the trial court erred by granting summary judgment in favor of
the Berrys as to its breach of contract and unjust enrichment claims through the
application of the parol evidence rule.
{¶11} “A cause of action for breach of contract requires the claimant to
establish the existence of a contract, the failure without legal excuse of the other
party to perform when performance is due, and damages or loss resulting from the
breach.” Lucarell v. Nationwide Mut. Ins. Co., 2018-Ohio-15, ¶ 41. To establish
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the existence of a valid contract, a plaintiff must demonstrate the essential elements
of an offer, acceptance, contractual capacity, consideration, a manifestation of
mutual assent, and legality of object and of consideration. Kostelnik v. Helper,
2002-Ohio-2985, ¶ 16. “A meeting of the minds as to the essential terms of the
contract is a requirement to enforcing the contract.” Id. These essential terms
include the identity of the parties, the subject matter, the consideration, the quantity,
and the price. Fairfax Homes, Inc. v. Blue Belle, Inc., 2008-Ohio-2400, ¶ 19 (5th
Dist.).
{¶12} Distinct from a breach of contract claim, “[u]njust enrichment is an
equitable doctrine based on a quasi-contract rather than contract law.” Frederick C.
Smith Clinic, Inc. v. Savage, 2013-Ohio-748, ¶ 30 (3d Dist.). “Unjust enrichment
occurs under Ohio law ‘“when a party retains money or benefits which in justice
and equity belong to another.”’” Padula v. Wagner, 2015-Ohio-2374, ¶ 47 (9th
Dist.), quoting Liberty Mut. Ins. Co. v. Indus. Comm. of Ohio, 40 Ohio St.3d 109,
111 (1988), quoting Stan-Clean of Lexington, Inc. v. Stanley Steemer Internatl., Inc.,
2 Ohio App.3d 129, 131 (10th Dist. 1981). To prevail on a claim for unjust
enrichment, a plaintiff must prove (1) a benefit conferred by the plaintiff upon the
defendant, (2) the defendant’s knowledge of the benefit, and (3) the defendant’s
retention of the benefit under circumstances that make it unjust to do so without
payment. Frederick C. Smith Clinic at ¶ 30.
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{¶13} Because the viability of both claims ultimately hinges on the scope
and terms of the parties’ agreements, we must determine the legal boundaries of the
residential purchase agreement. “The parol evidence rule provides that ‘“absent
fraud, mistake or other invalidating cause, the parties’ final written integration of
their agreement may not be varied, contradicted or supplemented by evidence of
prior or contemporaneous oral agreements, or prior written agreements.”’” P.J.
Lindy & Co. v. Savage, 2019-Ohio-736, ¶ 20 (6th Dist.), quoting Galmish v.
Cicchini, 90 Ohio St.3d 22, 27 (2000), quoting 11 Williston on Contracts, § 33:4, at
569-570 (4th Ed. 1999). “‘It is not a rule of evidence or contract interpretation but,
rather, it is “a rule of substantive law which, when applicable, defines the limits of
a contract.”’” Id., quoting Galmish at 27, quoting Charles A. Burton, Inc. v. Durkee,
158 Ohio St. 313 (1952), paragraph one of the syllabus. “The parol evidence rule
protects the integrity, predictability, and enforceability of written contracts by
prohibiting evidence of any purported agreements that are extrinsic to the contract.”
Id. “‘Extrinsic evidence is excluded because it cannot serve to prove what the
agreement was, this being determined as a matter of law to be the writing itself.’”
Id., quoting Galmish at 27.
{¶14} “‘The parol evidence rule derives from the corollary principle of
“contract integration,” which provides that a written contract which appears to be
complete and unambiguous on its face will be presumed to embody the final and
complete expression of the parties’ agreement.’” Hahn v. Farmakis-King, 2026--7-Case No. 8-26-02
Ohio-778, ¶ 26 (11th Dist.), quoting Fontbank, Inc. v. CompuServe, Inc., 138 Ohio
App.3d 801, 808 (10th Dist. 2000). See also Green v. CDO Technologies, 2021-Ohio-1603, ¶ 18 (2d Dist.) (“An ‘integration’ for purposes of the parol evidence rule
‘is “[t]he full expression of the parties’ agreement, so that all earlier agreements are
superseded, the effect being that neither party may later contradict or add to the
contractual terms.”’”), quoting Williams v. Spitzer Autoworld Canton, L.L.C., 2009-Ohio-3554, ¶ 28 (Cupp, J., concurring), quoting Black’s Law Dictionary (9th Ed.
2009).
{¶15} “‘A contract is fully integrated when both parties to the contract adopt
it as a final and complete statement of the terms of their agreement.’” Hahn at ¶ 26,
quoting Miller v. Lindsay-Green, Inc., 2005-Ohio-6366, ¶ 37 (10th Dist.).
Conversely, a contract is only partially integrated when the parties adopt it as the
final expression of just one portion of a larger agreement. Id. “While the parol
evidence rule applies to completely or fully integrated contracts, it does not apply
to partially integrated contracts.” McGonagle v. Somerset Gas Transm. Co., 2011-Ohio-5768, ¶ 19 (10th Dist.). The presumption of full integration is strongest where
a written agreement contains a merger or integration clause expressly indicating that
the agreement constitutes the parties’ complete and final understanding regarding
the subject matter. Fontbank at 808.
{¶16} Based on our review of the record, we conclude that there is no
genuine issue of material fact that the residential purchase agreement is a fully
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integrated contract and that the personal property agreement cannot be used to alter
its terms. See Ginn v. Stonecreek Dental Care, 2015-Ohio-4452, ¶ 28 (12th Dist.).
As we outlined in the previous appeal, the parties executed a residential purchase
agreement on October 28, 2022 for $450,000.00. Except for a John Deere tractor,
the residential purchase agreement did not include the sale of any other personal
property. The residential purchase agreement provides, in its relevant part, that
XII. TIME. Time is of the essence. All understandings between the
Parties are incorporated in this Agreement. The Parties intend its
terms as a final, complete and exclusive expression of their
Agreement with respect to its subject matter and they may not be
contradicted by evidence of any prior agreement or contemporaneous
oral agreement.
XV. ENTIRE AGREEMENT. This agreement with any attached
addendums or disclosures shall supersede any and all other prior
understandings and agreements, either oral or in writing, between the
Parties with respect to the subject matter hereof and shall constitute
the sole and only agreements between the Parties with respect to the
said Property. All prior negotiations and agreements between the
Parties with respect to the Property hereof are merged into this
Agreement. Each Party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, orally or
otherwise, have been made by any Party or by anyone acting on behalf
of any Party, which are not embodied in this Agreement and that any
agreement, statement or promise that is not contained in this
agreement shall not be valid or binding or of any force or effect.
(Emphasis in original.) (Doc. No. 51, Ex. A).
{¶17} Notwithstanding the clear, unambiguous integration clauses in the
executed agreement, the Lyon Trust alleges that, contemporaneously with the
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negotiation for the sale of the residence, the parties also negotiated a separate
agreement regarding Lyon’s personal property. This unexecuted agreement
provided that the Berrys would store Lyon’s personal belongings at the residence
until her new Kentucky residence was completed, and then pack, load, transport,
and unload those belongings.
{¶18} On appeal, the Lyon Trust argues that, because this collateral
agreement is entirely separate from the real estate transaction, the parol evidence
rule does not bar its enforcement. However, the Lyon Trust explicitly undermined
this position in its motion for summary judgment and accompanying affidavit.
Compare Marable v. Michael J. Auto Sales, 2013-Ohio-1750, ¶ 9 (1st Dist.)
(determining that the admission of extrinsic evidence regarding an unwritten
promise violated the parol evidence rule because it directly contradicted the
unambiguous terms of a fully integrated contract). Indeed, these filings negate any
genuine issue of material fact that the residential purchase agreement constitutes the
fully integrated agreement of the parties. Critically, in those filings the Lyon Trust
alleged that the Berrys’ agreement to store and move the personal property was a
material consideration for Lyon’s agreement to sell the home for $450,000. See
Marion Family YMCA v. Hensel, 2008-Ohio-4413, ¶ 7 (3d Dist.) (explaining that a
contractual term is material if it represents an obligation “so fundamental to a
contract that the failure to perform defeats the essential purpose of the contract”).
More specifically, the Lyon Trust asserted that a realtor provided an informal
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valuation of the home at approximately $533,000, and that the $83,000 difference
between this recommended list price and the $450,000 actual sale price represented
the fee for the moving and storage services.
{¶19} By directly tying the valuation, purchase price, and consideration of
the real estate transaction to the unexecuted personal property agreement, the Lyon
Trust inextricably intertwined the two agreements. See, e.g., Olah v. Ganley
Chevrolet, 2010-Ohio-5485, ¶ 17 (8th Dist.) (asserting that, where an extrinsic claim
or impression is inextricably linked to the core representations of a transaction, the
parol evidence rule prohibits the use of such evidence to contradict the final written
contract). In other words, if the storage and transportation of the personal property
served as material consideration for the sale of the real estate, those terms should
have been incorporated into the fully integrated residential purchase agreement. See
Williams v. Spitzer Autoworld Canton, L.L.C., 2009-Ohio-3554, ¶ 30 (Cupp, J.,
concurring) (noting that a collateral agreement cannot survive the parol evidence
rule unless it is an agreement that “would naturally be omitted from the written
instrument”).
{¶20} Allowing the Lyon Trust to enforce a contemporaneous, unexecuted
agreement that alters the fundamental consideration of the real estate transaction
directly violates the parol evidence rule. Accord id. at ¶ 29 (emphasizing that
attempting to prove a contradictory assertion through extrinsic evidence “is exactly
what the Parol Evidence Rule was designed to prohibit”). Consequently, the
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execution of the fully integrated residential purchase agreement extinguished any
collateral promises regarding the moving services. See Trinova Corp. v. Pilkington
Bros., 70 Ohio St.3d 271, 275 (1994) (analyzing that, where a written contract
represents the total integration of the parties’ intent, any prior collateral agreements
“lose [their] vitality for all purposes” and “cease to exist”). Therefore, the trial court
correctly determined that the residential purchase agreement was the complete and
unambiguous integration of the parties’ agreement, barring the breach of contract
claim. See Marable at ¶ 9 (concluding that “the merger clause in the written contract
indicates that the writing is fully integrated, and it supersedes any previous
agreements or understandings between the parties”), citing Keel v. Toledo HarleyDavidson/Buell, 2009-Ohio-5190, ¶ 9-11 (6th Dist.).
{¶21} Furthermore, because the residential purchase agreement constitutes
the fully integrated, express contract governing the transaction and the consideration
exchanged between the parties, the Lyon Trust’s unjust enrichment claim is likewise
barred as a matter of law. Indeed, “Ohio law does not permit recovery under the
theory of unjust enrichment when an express contract covers the same subject.”
Padula, 2015-Ohio-2374, at ¶ 48 (9th Dist.). See also Frederick C. Smith Clinic,
2013-Ohio-748, at ¶ 30 (3d Dist.) (“This Court has previously held that ‘the doctrine
of unjust enrichment cannot apply when an express contract exists.’”), quoting
Nationwide Mut. Fire Ins. Co. v. Delacruz, 2010-Ohio-6068, ¶ 21 (3d Dist.).
Therefore, since the fully integrated residential purchase agreement governs the
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same subject matter, the trial court properly granted summary judgment as to the
unjust enrichment claim.
Fraud
{¶22} Turning to its third assignment of error, the Lyon Trust argues that the
trial court erred by granting summary judgment in favor of the Berrys as to its fraud
claim. Here, the Lyon Trust asserts that the alleged fraudulent misrepresentations—
specifically, that the Berrys promised to store and relocate the personal property—
are not directly contradicted by the residential purchase agreement because the
agreement is silent on the issue of personal property.
{¶23} To prevail on a claim for fraud, a plaintiff must prove (1) a
representation or, where there is a duty to disclose, concealment of a fact, (2) the
materiality of the representation or concealment to the transaction, (3) knowledge
of its falsity or reckless disregard for its truth, (4) the intent to mislead another into
relying upon it, (5) justifiable reliance, and (6) a resulting injury proximately caused
by the reliance. Thomas v. Delgado, 2022-Ohio-4235, ¶ 25 (3d Dist.).
{¶24} Because the Lyon Trust’s fraud claim is predicated on alleged
promises made entirely outside the residential purchase agreement, the application
of the parol evidence rule is once again implicated. In this context, “‘the parol
evidence rule does not prohibit a party from introducing parol or extrinsic evidence
for the purpose of proving fraudulent inducement.’” P.J. Lindy, 2019-Ohio-736, at
¶ 20 (6th Dist.), quoting Galmish, 90 Ohio St.3d at 28. See also Harrel v. Solt, 2000
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Ohio App. LEXIS 6312, *27, fn. 9 (4th Dist.) (acknowledging that “[t]he inclusion
of an integration clause into a real estate purchase contract does not vitiate the
principle that parol evidence is admissible to prove fraud”). Indeed, the parol
evidence rule was never intended to act as a shield for fraud; a party cannot
fraudulently induce a written agreement merely to strip the courts of their power to
remedy the deception. P.J. Lindy at ¶ 20.
{¶25} “The parol evidence rule, however, ‘may not be avoided “by a
fraudulent inducement claim which alleges that the inducement to sign the writing
was a promise, the terms of which are directly contradicted by the signed writing.”’”
Id. at ¶ 21, quoting Galmish at 29, quoting Marion Prod. Credit Assn. v. Cochran,
40 Ohio St. 3d 265 (1988), paragraph three of the syllabus. That is, a party cannot
prove fraud by relying on an alleged promise that falls within the scope of an
integrated agreement but was omitted from its final terms. Marable, 2013-Ohio1750, at ¶ 10 (1st Dist.). See also Hetmanski v. Hetmanski, 2024-Ohio-1646, ¶ 5
(11th Dist.) (“Fraud in the inducement may not be proven through parol evidence
that directly contradicts the final, integrated document.”). “An integration clause is
nothing more than the contract’s embodiment of the parol evidence rule, i.e., that
matters [occurring] prior to or contemporaneous with the signing of a contract are
merged into and superseded by the contract.” Rucker v. Everen Secs., Inc., 2004-Ohio-3719, ¶ 6 (Sweeny, J., dissenting). “Thus, when a party alleges that it has been
fraudulently induced to enter a written contract through the other party’s
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misrepresentations of fact, the relevant question is whether the alleged
representations ‘directly contradict’ the signed agreement.” P.J. Lindy at ¶ 21.
{¶26} Here, the Lyon Trust’s fraud claim is premised on the allegation that
Lyon was fraudulently induced into selling the real estate at the reduced $450,000
price based on the Berrys’ alleged collateral promise to store and move the personal
property. However, the merger clause in the residential purchase agreement reflects
that the contract is fully integrated and supersedes any previous agreements between
the parties. Accord Marable at ¶ 9. Because the alleged collateral promise to
provide approximately $83,000 worth of storage and moving services goes to the
fundamental consideration for the property, the substance of the personal property
agreement falls entirely within the scope of the residential purchase agreement.
Accord id. at ¶ 11 (determining that the appellants “could not contradict the terms
of the written contract with the alleged misrepresentation” because “the substance
of the alleged oral agreement was within the scope of the written agreement”). By
attempting to alter the purchase price, this alleged promise directly contradicts an
essential term of the integrated contract. Accord Jeffrey Allen Industries, LLC v.
Trimble, 2011-Ohio-2655, ¶ 68 (5th Dist.) (concluding that an alleged pre-contract
promise to pay a higher price than the amount set out in the written agreement
“certainly varies and contradicts an essential term of the contract,” thereby barring
the fraud claim). Therefore, there is no genuine issue of material fact, and the Lyon
Trust’s fraud claim fails as a matter of law.
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Conversion
{¶27} In its fourth and final assignment of error, the Lyon Trust shifts its
focus from the real estate transaction to the physical personal property itself,
challenging the trial court’s decision granting summary judgment in favor of the
Berrys as to its conversion claim. “Conversion 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.”’” Warnecke v.
Chaney, 2011-Ohio-3007, ¶ 15 (3d Dist.), quoting State ex rel. Toma v. Corrigan,
92 Ohio St.3d 589, 592 (2001), quoting Joyce v. Gen. Motors Corp., 49 Ohio St.3d
93, 96 (1990). To prevail on a claim for conversion, a plaintiff must establish (1)
ownership or right to possession of the property at the time of the conversion, (2) a
wrongful act or disposition of those property rights by the defendant, and (3)
resulting damages. Id. “‘When a defendant to a conversion claim moves for
summary judgment, the court should grant the motion if the plaintiff fails to produce
evidence on any of’ these three elements.” Hanneman Family Funeral Home &
Crematorium v. Orians, 2022-Ohio-984, ¶ 47 (3d Dist.), quoting Minix v. Collier,
1998 Ohio App. LEXIS 1427, *11 (4th Dist. Mar. 31, 1998).
{¶28} On appeal, the Lyon Trust argues that genuine issues of material fact
remain as to the conversion claim because certain items of personal property were
allegedly sold or missing when Lyon retrieved her belongings in May 2023.
Consequently, the Lyon Trust contends that the breach of contract and conversion
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claims are not mutually exclusive alternative causes of action because they seek
distinct measures of damages.
{¶29} The Lyon Trust correctly notes that, as a general rule of pleading, a
plaintiff may raise claims for breach of contract and conversion as alternative causes
of action. Navidea Biopharmaceuticals v. Capital Royalty Partners II, L.P., 2021-Ohio-808, ¶ 84 (10th Dist.); Civ.R. 8(E)(2). “An action for damages may be held
in either one or the other.” Navidea at ¶ 84.
{¶30} However, while pleading in the alternative is permissible, a plaintiff
generally cannot recover in tort for damages that are purely economic in nature.
Plus Mgt. Servs. v. Liberty Healthcare Corp., 2024-Ohio-3127, ¶ 24 (2d Dist.). This
rule maintains the critical boundary between tort law, designed to redress breaches
of duties imposed to protect society, and contract law, ensuring commercial parties
remain free to govern their own affairs. Id. “‘The concern is that if tort remedies
were available where the losses suffered were only economic, then private ordering
(contract law) would be less effective.’” Id. at ¶ 25, quoting Motorists Mut. Ins. Co.
v. Ironics, Inc., 2022-Ohio-841, ¶ 68. “‘If a party could simply avoid its contractual
bargain by suing in tort, which often offers more generous terms of recovery, then
the effectiveness of contract law would be reduced.’” Id., quoting Motorists Mut.
Ins. Co. at ¶ 68.
{¶31} To be sure, “[n]ot all tort claims fall under the economic loss rule.”
Zak v. Airhart, 2021-Ohio-4399, ¶ 44 (6th Dist.). “‘A plaintiff may pursue such a
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tort claim if it is “based exclusively upon [a] discrete, preexisting duty in tort and
not upon any terms of a contract or rights accompanying privity.”’” Id., quoting
Windsor Medical Center, Inc. v. Time Warner Cable, Inc., 2021-Ohio-158, ¶ 27 (5th
Dist.), quoting Corporex Dev. & Constr. Mgt., Inc. v Shook, Inc., 2005-Ohio5409, ¶ 9. “Claims for fraud or conversion, for example, can survive application
of the rule where the ‘tort duty was breached independent of the contract . . . .’” Id.,
quoting Windsor Medical at ¶ 28.
{¶32} Nevertheless, “even in cases involving intentional torts, a mere breach
of contract ‘does not create a tort claim.’” Plus Mgt. Servs. at ¶ 26, quoting Textron
Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 151 (9th Dist. 1996).
See also KSMAC Holdings v. Ice Zone Realty, Ltd., 2022-Ohio-1456, ¶ 56 (7th Dist.)
(“The law in Ohio is that a breach of contract claim does not create a tort claim.”).
Thus, “the existence of a contract action ordinarily precludes a plaintiff from
presenting the same claim as a tort.” Plus Mgt. Servs. at ¶ 26. An intentional tort
and a contract claim can co-exist only if (1) the breaching party also breaches a duty
owed separately from that created by the contract, and (2) the intentional tort
involves damages that are separate and distinct from the breach of contract. Id. at ¶
26-27.
{¶33} Here, the record reflects that the Lyon Trust’s conversion claim is
functionally indistinguishable from its breach of contract claim. See KSMAC
Holdings, 2022-Ohio-1456, at ¶ 58 (7th Dist.) (concluding that the plaintiff’s claim
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for conversion was precluded by its existing breach of contract claim because the
plaintiff introduced no evidence demonstrating an independent duty). Critically, the
Lyon Trust seeks the same $83,000 in damages for the alleged conversion of the
personal property as it claimed was the material consideration for the Berrys’
alleged breach of the residential purchase agreement.
{¶34} While the Lyon Trust attempts to save its tort claim by arguing on
appeal that certain items were allegedly sold or missing at the time of retrieval, this
argument is unavailing. See Plus Mgt. Servs. at ¶ 27 (noting that “Plus’s suggestion
that Liberty separately engaged in conversion by intentionally failing to turn over
accounts receivable ‘does not change the contractual nature’ of Plus’s [conversion]
claim”), quoting Textron Fin. Corp., 115 Ohio App.3d at 151. Importantly, to
survive summary judgment here, the Lyon Trust was required to present Civ.R. 56
style evidence establishing a separate and distinct measure of damages for those
specific items, independent from the overall $83,000 contract claim. The record is
devoid of any such evidence. See Hanneman Family Funeral Home, 2022-Ohio984, at ¶ 49, 52 (3d Dist.) (concluding that summary judgment as to the conversion
claim was appropriate because the plaintiffs failed to provide any evidence to
support the element of damages).
{¶35} Because the Lyon Trust relies on the exact same economic loss to
support both its contract and conversion theories, it failed to establish a genuine
issue of material fact that it suffered damages separate and distinct from the alleged
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breach of contract. Consequently, the conversion claim is duplicative and fails as a
matter of law. See KSMAC Holdings at ¶ 59. The trial court, therefore, did not err
by granting summary judgment in favor of the Berrys as to the conversion claim.
{¶36} For these reasons, the Lyon Trust’s assignments of error are overruled.
{¶37} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and WALDICK, J.J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
William R. Zimmerman, Judge
Mark C. Miller, Judge
Juergen A. Waldick, Judge
DATED:
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