2018 Ohio 4378
Ohio Ct. App.2018Background
- Appellant Joshua Braff leased Apt. #106 in a building owned by appellee Estie Investment Co., a corporation owned by members of Braff’s family. Braff alleged an oral agreement to perform work in lieu of full rent.
- After Braff moved in (2010) a 2011 storm flooded the first floor; appellee hired Babic Construction to repair flood damage (carpet, drywall/paneling) across nine units.
- Braff was evicted in early 2016; appellee sued soon after for $7,320 in damages allegedly caused by Braff during his tenancy.
- At bench trial, Babic (contractor) and the building manager testified; the magistrate adopted appellee’s proposed findings verbatim and awarded $7,320. The trial court entered judgment for appellee over Braff’s objections.
- On appeal the Eleventh District reversed and entered judgment for Braff, holding appellee failed to prove (1) the nature of damage for four of eleven claimed items and (2) an itemized, admissible basis for all recoverable damages (including that Babic’s carpet cost was inadmissible hearsay).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether verbatim adoption of party’s proposed findings is per se error | Adopting appellee’s draft was proper; findings supported judgment | Adoption alone is not reversible; must examine manifest weight | Not error; verbatim adoption alone is not reversible (affirms permissible practice) |
| Sufficiency/causation: Did appellee prove damages were caused by Braff (not preexisting or ordinary wear)? | Babic and manager testified post-flood condition was good; new damage (stains, filth, feces) tied to Braff | Braff: lack of proof about condition at lease start; many preexisting defects; insufficient linkage | Majority: Sufficient linkage for 7 items based on post-flood repairs and testimony; insufficient for 4 items (no proof nature of damage) |
| Damages proof: Was Babic’s global estimate an adequate basis to award a portion of damages? | Global estimate ($7,320) and admitted amended estimate supported award; carpet cost identified | Braff: global, non-itemized estimate prevents apportioning recoverable items; damages not proven with reasonable certainty | Majority: Because global estimate included unproven items and no admissible itemization was admitted, appellee failed to prove recoverable amount — reversal for appellant |
| Admissibility: Was Babic’s $2,500 carpet figure admissible? | Babic relayed installer’s price; plaintiff relied on contractor’s testimony | Braff: Babic’s quote of third-party installer is hearsay and inadmissible without the installer/testimony/business record | Held hearsay; carpet figure inadmissible absent the installer or proper exception — supports reversal |
Key Cases Cited
- Eastley v. Volkman, 972 N.E.2d 517 (Ohio 2012) (distinguishes sufficiency of evidence from weight of the evidence and defines legal sufficiency standard)
- State v. Thompkins, 678 N.E.2d 541 (Ohio 1997) (discusses sufficiency standard in criminal context relied upon for legal standard explanation)
- Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359 (U.S. 1927) (damages need not be calculated with absolute certainty; reasonable basis for computation suffices)
- Kavalec v. Ohio Express, Inc., 71 N.E.3d 660 (Ohio App.) (plaintiff must prove damages with reasonable certainty)
- Gibson v. Shephard, 87 N.E.3d 846 (Ohio App.) (discusses reasonable certainty and rejects awards based on mere speculation)