Lecso v. HeatonLecso v. Heaton
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-666103
BEFORE: Boyle, J., Kilbane, P.J., and McMonagle, J.
RELEASED AND JOURNALIZED: August 19, 2010
Dawn T. Haynes
Donald E. Worthing
55 Public Square
Suite 725
Cleveland, Ohio 44113-1901
FOR APPELLEE
Madeleine L. Lecso, Pro Se
21 Mapledale Avenue
Bedford, Ohio 44146
MARY J. BOYLE, J.:
{¶ 1} Defendants-appellants, Jack Heaton, Robert Heaton, and Ruth Heaton (collectively “the Heatons“), appeal the trial court‘s order granting summary judgment in favor of plaintiff-appellee, Madeleine Lecso, and awarding her $44,197.28 on her negligence and trespass claims. Because we find that Lecso failed to satisfy her burden and that genuine issues of material fact exist, we reverse the judgment of the trial court.
Procedural History and Facts
{¶ 2} In July 2008, Lecso commenced the underlying action against the Heatons, owners of real property located at 31 Mapledale Avenue in Bedford, alleging that they negligently caused a fire at their premises, which caused her
{¶ 3} On September 25, 2008, Lecso served by mail identical discovery requests on each of the Heaton defendants, containing the following requests for admissions:
{¶ 4} “REQUESTS FOR ADMISSION
{¶ 5} “(1) That each of the following statements are true:
{¶ 6} “a.) Admit that the Defendant Jack R. Heaton caused a fire at 31 Mapledale Ave., Bedford, Ohio on 9/24/07 which caused the real and personal property at 21 Mapledale to be covered in burning smoke and soot.
{¶ 7} “b.) Admit that as a proximate result of Defendant Jack R. Heaton‘s acts in causing a fire at 31 Mapledale Ave., the real and personal property at 21 Mapledale Ave. was permanently damaged.
{¶ 8} “c.) Admit that Defendants trespassed on Plaintiff‘s real property by allowing a fire to fall on her premises and causing smoke and soot to land on the Plaintiff‘s real and personal property causing permanent damage.”
{¶ 9} The Heatons collectively responded on October 27, 2008, but failed to sign the verification forms for the interrogatories propounded. As to the three requests for admission propounded on each defendant, the Heatons
{¶ 10} “Defendants’ Supplemental Answers and Responses to Plaintiff‘s Discovery Requests
{¶ 11} “* * *
{¶ 12} “31. Admit Jack Heaton emptied an ashtray into a wastepaper basket. Deny remaining statement.
{¶ 13} “32. Deny.
{¶ 14} “33. Deny.”
{¶ 15} The responses and objections were signed by the Heatons’ attorney.
{¶ 16} Eleven days later, Lecso filed a “motion to deem matters admitted” as to defendant Jack Heaton only. In her motion, Lecso argued that Jack never responded to her requests for admission and therefore they had been deemed admitted by operation of
{¶ 17} Prior to the court ruling on Lecso‘s motion to deem matters admitted, Lecso moved for summary judgment. The gravamen of her motion was that liability is established by virtue of Jack‘s purported admissions. As to damages, Lecso attached an affidavit, averring that she “ha[d] provided estimates of $44,197.28 to Defendants [sic] Heaton to repair her real and personal property which was caused by the fire on 9/24/07.” Along with the affidavit, Lecso submitted a list of 16 items that purportedly required repair or replacement as a result of the Heatons’ alleged negligence. The items included the following: (1) roof and gutters; (2) windows; (3) house painting; (4) fence; (5) driveway; (6) automobile; (7) brickwork; (8) entry doors; (9) storm doors; (10) market umbrella; (11) hammock; (12) lounge chair; (13) cedar picnic table; (14) door bells and chime; (15) exterior light fixtures; and (16) mailbox. She attached estimates from various stores, such as Lowe‘s and Sears, and included one invoice for $5,000 that she had generated for painting she completed herself.
{¶ 19} The Heatons subsequently filed their brief in opposition to the motion for summary judgment, specifically noting that Lecso‘s motion to deem matters admitted was adjudged moot by the court, and therefore Lecso failed to establish liability. The Heatons further argued that Lecso failed to establish proximate cause and damages, arguing that these matters need to be resolved by a jury.
{¶ 20} The court subsequently held a settlement conference, but the case did not settle. The parties proceeded to prepare for trial, filing proposed jury instructions, jury interrogatories, and trial briefs.
{¶ 21} On the day of trial, the court heard an argument on Lecso‘s motion for summary judgment and did not proceed with trial. Approximately six months later, the court sua sponte reconsidered its earlier ruling on Lecso‘s motion to deem matters admitted, found that the motion was not moot, and granted Lecso‘s motion for summary judgment against all the Heatons, awarding her $44,197.28.
{¶ 22} From this decision, the Heatons appeal, arguing that the trial court erred in granting summary judgment because genuine issues of fact exist as to liability and damages. Although they fail to specifically designate two separate
Summary Judgment Standard of Review
{¶ 23} We review an appeal from summary judgment under a de novo standard. Baiko v. Mays (2000), 140 Ohio App.3d 1, 10, 746 N.E.2d 618. Accordingly, we afford no deference to the trial court‘s decision and independently review the record to determine whether summary judgment is appropriate. Northeast Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs. (1997), 121 Ohio App.3d 188, 192, 699 N.E.2d 534.
{¶ 24}
{¶ 25} The moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary
Requests for Admission
{¶ 26} The Heatons first argue that the trial court improperly reconsidered its order finding that Lecso‘s motion to deem matters admitted was moot. They contend that the court only reconsidered after wrongly concluding that Jack Heaton had to personally sign and verify the responses.
{¶ 27}
{¶ 28} Initially, we note that this was not a situation where there was a failure to respond within the 28-day time limit and the failure to respond requires that the matters be admitted. Here, the discovery requests were sent by mail on September 25, 2008; therefore, under
{¶ 29} But relying on
{¶ 31} But we find the unique procedural posture in this case, coupled with the fact that the intent of
{¶ 33} Indeed,
Ohio Supreme Court has held that a party‘s brief in opposition to a motion for summary judgment disputing the admissions can be considered a motion to withdraw or amend the admissions under
{¶ 34} Accordingly, in light of our finding that the trial court should not have deemed the matters admitted, Lecso failed to satisfy her burden to demonstrate that she is entitled to judgment as a matter of law on her claims for negligence and trespass.
Proximate Cause and Damages
{¶ 35} The Heatons also argue that summary judgment was improperly granted because genuine issues of material fact exist as to the issue of proximate cause and damages. We agree.
{¶ 36} Lecso moved for summary judgment on both her negligence and trespass claims, seeking damages for either one in the amount of $44,197.28. The trial court granted the motion and awarded her actual damages. To have recovered actual damages under either theory, it was incumbent upon Lecso to demonstrate both (1) that the tort proximately caused her damages and (2) the amount of those damages. See Osler v. Lorain (1986), 28 Ohio St.2d 345, 347, 504 N.E.2d 19 (“negligence is without legal consequence unless it is a proximate cause of an injury“); Misseldine v. Corporate Investigative Serv., Inc., 8th Dist. No. 81771, 2003-Ohio-2740 (in order to recover actual damages, as
{¶ 37} Generally, the issue of proximate cause is a question of fact and is not resolvable by means of summary judgment. Creech v. Brock & Assoc. Constr., 183 Ohio App.3d 711, 2009-Ohio-3930, 918 N.E.2d 541, ¶14. “[S]ummary judgment may be granted on the issue of proximate cause only where the facts are clear and undisputed and the relation to cause and effect is so apparent that only one conclusion may be fairly drawn.” Id., citing Schutt v. Rudolph-Libbe, Inc. (Mar. 31, 1995), 6th Dist. No. WD-94-064.
{¶ 38} Here, even assuming the Heatons were negligent that the smoke from the fire constituted a trespass, we cannot say that only one conclusion may be fairly drawn as to whether their tortious conduct proximately caused injury to the 16 items that Lecso sought recovery for. Indeed, Lecso‘s requests for admission do not even specify the items that were damaged. Thus, even if we would have found that the trial court properly deemed the matters admitted, there would still be an issue of fact as to proximate cause and damages. As for Lecso‘s submission of separate estimates and a single invoice, which demonstrate costs of $44,197.28, there is insufficient evidence in the record connecting the estimates and invoice to the alleged damage caused to her real and personal property. The only evidence offered was Lecso‘s affidavit
{¶ 39} We further find that reasonable minds could differ as to the amount of damages Lecso is entitled to recover, even if liability and proximate cause were established. A party seeking to recover damages for a temporary injury to real property must demonstrate that the cost of restoration is reasonable. Martin v. Design Constr. Servs., Inc., 121 Ohio St.3d 66, 2009-Ohio-1, 902 N.E.2d 10, ¶24-25. As for personal property, “the general rule is that the measure of damages * * * is the difference between its market value immediately before and immediately after the injury.” Falter v. Toledo (1959), 169 Ohio St. 238, 240, 158 N.E.2d 893. But the cost of repair is an acceptable measure of damages provided that it does not exceed the diminution in market value. Allstate Ins. Co. v. Reep (1982), 7 Ohio App.3d 90, 91, 454 N.E.2d 580; Werr v. Moccabee, 4th Dist. No. 07CA2986, 2008-Ohio-595. These principles are founded in the well-established tenet that “[i]n making a party injured by wrongful conduct whole, the damages awarded should not place the injured party in a better position than that party would have enjoyed had the wrongful conduct not occurred.” Collini v. Cincinnati (1993), 87 Ohio App.3d 553, 622 N.E.2d 724.
{¶ 41} Based on this record, we find that Lecso failed to carry her burden, genuine issue of material fact exist, and that reasonable minds could reach differing conclusions as to (1) the Heatons’ liability, and (2) the amount of damages.
{¶ 42} The Heatons’ sole assignment of error is sustained.
{¶ 43} Judgment reversed and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellants recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and
CHRISTINE T. McMONAGLE, J., CONCUR