Altercare Newark S., Inc. v. Glasmeier

[Cite as Altercare Newark S., Inc. v. Glasmeier, 2021-Ohio-3456.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

ALTERCARE NEWARK SOUTH, INC., : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : LOIS GLASMEIER, et al., : Case No. 2021 CA 0018 : Defendants - Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 20 CVF 00673

JUDGMENT: Affirmed DATE OF JUDGMENT: September 29, 2021 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

ADAM R. TODD JAROD B. ROSE Florey Todd, LTD. Schaller, Campbell & Untied 5 E. Long Street, Suite 600 32 N. Park Place, P.O. Box 309 Columbus, Ohio 43215 Newark, Ohio 43058

Licking County, Case No. 2021 CA 0018 2 Baldwin, J.

{¶1} Plaintiff-appellant Mark Glasmeier appeals from the February 16, 2021 Final Judgment Entry of the Licking County Municipal Court granting the Motion for Summary Judgment filed by defendant-appellee Altercare Newark South, Inc. and granting judgment in favor of defendant-appellee and against plaintiff-appellant Mark Glasmeier and Lois Glasmeier, jointly and severally, in the amount of $13,547.00 plus interest.

STATEMENT OF THE FACTS AND CASE

{¶2} At all relevant times, appellant Mark Glasmeier was the son of Lois Glasmeier. Appellee Altercare Newark South, Inc. operates a licensed nursing home in Muskingum County, Ohio. Appellant arranged for his mother to receive care in appellee’s facility.

{¶3} At the time that Lois Glasmeier was admitted to appellee’s facility, appellant, as her representative, on October 30, 2018 signed an Admission Agreement. The Agreement stated, in relevant part, as follows:

{¶4} 2. Exhibits. You agree to abide by all of the terms and conditions of the following exhibits, which are hereby incorporated into this Agreement by reference: Exhibit A-Potential for Discharge & Personal Guarantee of Payment;”…

{¶5} YOU HAVE READ ALL OF THE TERMS OF THIS AGREEMENT,

INCLUDING THE EXHIBITS, AND YOU HAVE HAD AN OPPORTUNITY TO ASK

QUESTIONS REGARDING THOSE TERMS.

YOU DO FOR YOURSELF, AND YOUR HEIRS, ADMINISTRATORS AND

EXECUTORS, AGREE TO THE TERMS OF THIS AGREEMENT IN CONSIDERATION

Licking County, Case No. 2021 CA 0018 3 OF FACILITY’S ACCEPTANCE OF THE RENDERING OF SERVICES TO THE

PATIENT.

{¶6} Exhibit A (Potential for Discharge & Personal Guarantee of Payment) states as follows:

{¶7} Facility cannot continue to provide services without payment. If the facility is not paid timely and in full by someone, then it will seek to discharge the Patient.

{¶8} Many people wish to make sure that care and services to their loved ones are maintained when the Patient does not have the resources to pay for care. Circumstances that may cause non-payment may include, for example when an insurance company no longer provides payment when rehabilitation care has concluded or when Medicaid eligibility has not been maintained or approved. Thus, they agree to make payments on their loved ones’ behalf in those instances.

{¶9} BY SIGNING BELOW, THE PERSONAL GUARANTOR IS AGREEING TO

VOLUNTARILY PERSONALLY GUARANTEE PAYMENT TO FACILITY, BE JOINTLY

AND SEVERALLY LIABLE FOR ALL SERVICES AND SUPPLIES RECEIVED BY THE

PATIENT, AND TO MAKE ALL PAYMENTS WHEN THEY COME DUE. THE

PERSONAL GUARANTOR UNDERSTANDS THAT HE OR SHE IS NOT REQUIRED BY

LAW OR FACILITY TO PERSONALLY GUARANTEE PAYMENT. THE PERSONAL

GUARANTOR AGREES THAT THIS GUARANTEE WILL CONTINUE UNTIL ALL

FINANCIAL OBLIGATIONS TO FACILITY HAVE BEEN PAID IN FULL.

{¶10} Appellant signed the same as guarantor. Licking County, Case No. 2021 CA 0018 4

{¶11} On March 16, 2020, appellee filed a complaint for breach of contract against appellant and Lois Glasmeier, for breach of personal guarantee against appellant and for unjust enrichment against Lois Glasmeier. Appellee, in its complaint, alleged that it had provided nursing care and services to Lois Glasmeier and that the defendants had breached the Admission Agreement by refusing to make full payment. Appellee further alleged that appellant Mark Glasmeier had breached the personal guarantee and that it was unjust for Lois Glasmeier to retain the benefit of its services without payment. Appellee sought judgment against appellant and Lois Glasmeier, jointly and severally, in the amount of $13,547.00 plus interest.

{¶12} On August 3, 2020, appellant filed a Motion to Dismiss pursuant to Civ.R. 12(B)(6), arguing that the text of Exhibit A was invalid under both federal and Ohio law. Appellee filed a memorandum in opposition to the Motion to Dismiss on August 24, 2020 and appellant filed a response on September 1, 2020. The trial court, pursuant to a Judgment Entry filed on October 12, 2020, denied the motion. Appellant then filed an answer on October 27, 2020.

{¶13} Appellee, on November 30, 2020, filed a Motion for Default Judgment against Lois Glasmeier only. The trial court, as memorialized in a Judgment Entry filed on December 14, 2020, granted the motion and scheduled a hearing on damages for January 14, 2021. On January 11, 2021, appellee filed an affidavit to support an award of damages against Lois Glasmeier.

{¶14} On January 12, 2021, appellant filed a Motion for Summary Judgment, arguing again that under federal statutes and regulations as well as state regulations, the agreement requiring appellant to be personally liable for the payments of the resident. Licking County, Case No. 2021 CA 0018 5 Lois Glasmeier, was void. Appellee filed a Motion for Summary Judgment on January 19, 2021.

{¶15} Via a Judgment Entry filed on January 20, 2021, the trial court granted a default judgment in favor of appellee and against Lois Glasmeier only in the amount of $13,5437.00 plus interest. On January 25, 2021, appellee filed a memorandum in opposition to appellant’s Motion for Summary Judgment. Appellant filed a reply on February 3, 2021 and, on February 10, 2021, filed a memorandum in opposition to appellee’s Motion for Summary Judgment.

{¶16} The trial court, as memorialized in a Final Judgment Entry filed on February 16, 2021, granted appellee’s Motion for Summary Judgment and granted appellee judgment against appellant and Lois Glasmeier, jointly and severally, in the amount of $13,547.00.

{¶17} Appellant now appeals, raising the following assignment of error on appeal:

{¶18} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING APPELLEE’S MOTION FOR SUMMARY JUDGMENT PURSUANT TO CIVIL RULE 56

BY HOLDING THAT APPELLEE IS ENTITLED TO HOLD APPELLANT MARK

GLASMEIER JOINT (SIC) AND SEVERALLY LIABLE FOR THE COSTS OF LOIS

GLASMEIER’S NURSING CARE INCLUDING INTERST (SIC) THEREON, AND COSTS OF THIS ACTION.”

I

{¶19} Appellant, in his sole assignment of error, argues that the trial court erred in granting appellee’s Motion for Summary Judgment by holding that appellee is entitled to Licking County, Case No. 2021 CA 0018 6 hold him jointly and severally liable for the costs of Lois Glasmeier’s nursing care including interest thereon and the costs of this action. We disagree.

{¶20} Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 1996-Ohio-211, 448, 663 N.E.2d 639:

Civ.R. 56(C) provides that before summary judgment may be

granted, it must be determined that (1) no genuine issue as to any material

fact remains to be litigated, (2) the moving party is entitled to judgment as

a matter of law, and (3) it appears from the evidence that reasonable minds

can come to but one conclusion, and viewing such evidence most strongly

in favor of the nonmoving party, that conclusion is adverse to the party

against whom the motion for summary judgment is made. State ex rel.

Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4O.O3d

466, 472, 364 N.E.2d 267, 274.

{¶21} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987).

{¶22} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No. 15CA56, 2015-Ohio-4444, ¶ 13:

It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Licking County, Case No. 2021 CA 0018 7

Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265

(1986).

The standard for granting summary judgment is delineated

in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: “* * * a party

seeking summary judgment, on the ground that the nonmoving party cannot

prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its

initial burden under Civ.R. 56 simply by making a conclusory assertion the

nonmoving party has no evidence to prove its case. Rather, the moving

party must be able to specifically point to some evidence of the type listed

in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

no evidence to support the nonmoving party's claims. If the moving party

fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

set forth specific facts showing there is a genuine issue for trial and, if the

nonmovant does not so respond, summary judgment, if appropriate, shall

be entered against the nonmoving party. The record

on summary judgment must be viewed in the light most favorable to the

opposing party. Williams v. First United Church of Christ (1974), 37 Ohio

St.2d 150. Licking County, Case No. 2021 CA 0018 8

{¶23} Appellant, in his sole assignment of error, specifically contends that, under both federal and state law, he, as a third-party, cannot be held liable for the debts of his mother Lois Glasmeier, a patient at appellee Altercare’s nursing facility.

{¶24} There is no dispute that appellee is a skilled nursing facility.

{¶25} One component of the federal-statutory scheme, provides that “[w]ith respect to admissions practices a nursing facility must * * * not require a third-party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in the facility.” 42 U.S.C. 1396r(c)(5)(A)(ii), skilled nursing facilities and nursing facilities cannot “require a third party guarantee of payment to [its] facility as a condition of admission (or expedited admission) to, or continued stay in, [its] facility.” 42 U.S.C. Section 1396r(c)(5)(A)(ii). “Similar language appears in [42 U.S.C. 1395i-3(c)(5)(A)(ii) and (B)(ii)], which govern skilled nursing facilities that accept Medicare.” Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 116, 85 A.3d 947 (2014).

{¶26} Somewhat more restrictively, the Code of Federal Regulations provides, in its relevant part, as follows:

(3) The facility must not request or require a third-party guarantee of

payment to the facility as a condition of admission or expedited admission,

or continued stay in the facility. However, the facility may request and

require a resident representative who has legal access to a resident's

income or resources available to pay for facility care to sign a

contract, without incurring personal financial liability, to provide facility

payment from the resident's income or resources. (Emphasis added.) 42 C.F.R. 483.15(a)(3). Licking County, Case No. 2021 CA 0018 9

{¶27} Finally, Ohio's regulation provides, in its relevant part, as follows:

{¶28} (C) A provider of a [nursing facility] shall not: * *

(4) Require a third party to accept personal responsibility for paying the

facility charges out of his or her own funds. However, the facility may require

a representative who has legal access to an individual's income or

resources available to pay for facility care to sign a contract, without

incurring personal financial liability, to provide facility payment from the

individual's income or resources if the individual's medicaid application is

denied and if the individual's cost of care is not being paid by medicare or

another third-party payor. A third-party guarantee is not the same as a third-

party payor (i.e., an insurance company), and this provision does not

preclude the facility from obtaining information about medicare and

medicaid eligibility or the availability of private insurance. The prohibition

against third-party guarantees applies to all individuals and prospective

individuals in all certified [nursing facilities] regardless of payment source.

This provision does not prohibit a third party from voluntarily making

payment on behalf of an individual.

{¶29} This provision permits a nursing home to sue for payment of fees assumed voluntarily by a guarantor.

{¶30} The federal and state regulations governing these types of agreements generally, allow nursing homes to enter into voluntary third-party guarantees. However, the regulations provide that a nursing home cannot make a third-party guarantee a requirement for admission or for a continued stay in the facility. As noted by the court in Licking County, Case No. 2021 CA 0018 10 Village at the Greene v. Smith, 2nd Dist. Montgomery No. 28762, 2020-Ohio-4088, ¶ 24 both federal and Ohio law strictly forbid imposing personal liability on a resident's representative who does not voluntarily agree to assume that responsibility. In SWA, Inc. v. Straka, 2003-Ohio-3259, the court cited to 42 U.S.C.A. Section 1395i-3(c)(5)(A); OAC 5101:3-3-02(E)1 in holding that federal statute and state regulation preventing a nursing home from requiring a guarantor to sign the nursing home admission agreement as a condition of admission did not preclude nursing home from bringing an action to force a guarantor to pay nursing home fees.

{¶31} In the case sub judice, there is no evidence in the record that appellee Altercare made any representations that a guarantor was necessary to admit Lois Glasmeier. The guaranty, which was in bold and all caps, clearly and conspicuously provides as follows:

{¶32} BY SIGNING BELOW, THE PERSONAL GUARANTOR IS AGREEING TO

VOLUNTARILY PERSONALLY GUARANTEE PAYMENT TO FACILITY, BE JOINTLY

AND SEVERALLY LIABLE FOR ALL SERVICES AND SUPPLIES RECEIVED BY THE

PATIENT, AND TO MAKE ALL PAYMENTS WHEN THEY COME DUE. THE

PERSONAL GUARANTOR UNDERSTANDS THAT HE OR SHE IS NOT REQUIRED BY

LAW OR FACILITY TO PERSONALLY GUARANTEE PAYMENT. THE PERSONAL

GUARANTOR AGREES THAT THIS GUARANTEE WILL CONTINUE UNTIL ALL

FINANCIAL OBLIGATIONS TO FACILITY HAVE BEEN PAID IN FULL.

{¶33} “A guaranty is a promise by one person to pay the debts of another.” Valspar Corp. v. Nguyen, 5th Dist. Delaware No. 11 CAE 12 0116, 2012-1 Now OAC 5160-3-02(C)(4). Licking County, Case No. 2021 CA 0018 11 Ohio-2710, 2012 WL 2261010, ¶ 15, citing 52 Ohio Jurisprudence 3d, Guaranty and Suretyship, Section [2]. A personal guaranty agreement is reviewed under the law of contracts and a reviewing court should give the contract's language its plain and ordinary meaning unless some other meaning is evidenced within the document. Id., citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978). Ohio law recognizes guaranty contracts as valid. Birdsall v. Heacock, 32 Ohio St. 177 (1877).

A contract of guaranty is “[a] collateral engagement for the

performance of the undertaking of another, and it imports the existence of

two different and distinct obligations—one being that of the principal debtor

and the other that of the guarantor. The obligation of a guarantor is collateral

and secondary to the obligation of the principal debtor. * * * The principal

debtor is not a party to the guaranty, and the guarantor is not a party to the

principal obligation. The undertaking of the former is independent of the

promise of the latter; and the responsibilities which are imposed by the

contract of guaranty differ from those which are created by the contract to

which the guaranty is collateral.” 52 Ohio Jurisprudence 3d, Guaranty and

Suretyship, Section 3, 239–240. Valspar at ¶ 21.

{¶34} Parties to a guaranty are presumed to have read and understood the terms of the guaranty he or she signed. Ranieri at ¶ 28, quoting Preferred Capital, Inc. v. Power Eng. Group, Inc., 112 Ohio St.3d 429, 2007-Ohio-257, ¶ 10. Licking County, Case No. 2021 CA 0018 12

{¶35} By signing the Admission Agreement and Exhibit A, which clearly and unambiguously provided that appellant was not required by law or the facility to personally guaranty payment, appellant voluntarily agreed to voluntarily make payments on his mother’s behalf. The guarantee expressly states in bold and all caps above the signature line that it was voluntary. There is no evidence that the guarantee was requested or required. Appellee Altercare provided services in the amount of $13,547.00 to appellant’s mother in accordance with the terms of the parties’ agreement and relying upon the guarantee. Appellant does not dispute that he and his mother have not paid for the services. We find, therefore, that the trial court did not err in granting summary judgment in favor of appellee Altercare.

{¶36} Based on the foregoing, appellant’s sole assignment of error is, therefore, overruled. Licking County, Case No. 2021 CA 0018 13

{¶37} The judgment of the Licking County Municipal Court is, therefore, affirmed. By: Baldwin, P.J. Hoffman, J. and Delaney, J. concur.