BRIAN S. WARD v. JAMES D. BOND
C.A. CASE NO. 2015-CA-2
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
October 16, 2015
2015-Ohio-4297
T.C. NO. 2012-CV-312
Rendered on the 16th day of October, 2015.
BRIAN S. WARD, Inmate #A665-017, Pickaway Correctional Institution, P. O. Box 209, Orient, Ohio 43146 Plaintiff-Appellant
BRYAN K. STEWART, Atty. Reg. No. 0042122, 104 West Main Street, Tipp City, Ohio 45371 Attorney for Defendant-Appellee
FROELICH, P.J.
{¶ 1} Brian S. Ward appeals pro se from a judgment of the Champaign County Court of Common Pleas, which entered summary judgment in favor of James D. Bond on Ward‘s “Complaint for Declaratory Judgment and for Monetary Damages.” For the following reasons, the judgment of the trial court will be affirmed.
{¶ 3} In May 2012, Ward was convicted and sentenced to 6½ years in prison. Around the time that Ward was convicted, Ward and Bond entered into an oral agreement whereby Bond would care for the Kenton Street property; the specific terms of this agreement are in dispute. Sometime after Ward‘s conviction, Ward executed a limited power of attorney to assist Bond in caring for the property.
{¶ 4} Ward filed a complaint against Bond in October 2012, and he filed an amended complaint in April 2013, with leave of court. The amended complaint alleged “Breach of Oral Contract/Promissory Estoppel,” “Fraud, Negligence, Gross Negligence, Recklessness, and Malfeasance,” and “Conspiracy to Deprive Property and Tortious Acts in Concert.” In short, Ward alleged that Bond had used Ward‘s money for improper purposes, failed to secure a renter for the property as promised, and permitted Ward‘s cousin to live at and work on the property, contrary to Ward‘s express wishes. In November 2014, Bond filed a motion for summary judgment, which Ward opposed. On December 16, 2014, the trial court granted Bond‘s motion for summary judgment.
{¶ 5} Ward appeals, raising three assignments of error. The assignments assert that the trial court erred in granting summary judgment because genuine issues of material fact existed, because “a fiduciary duty was owed and breached,” and because
{¶ 6} Pursuant to
{¶ 7} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party‘s pleadings. Dresher at 293;
{¶ 8} We review the trial court‘s ruling on a motion for summary judgment de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42. 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. Brewer v. Cleveland City Schools Bd. of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 119-20, 413 N.E.2d 1187 (1980). Therefore, the trial court‘s decision is not granted deference by the reviewing appellate court. Powell v. Rion, 2012-Ohio-2665, 972 N.E.2d 159, ¶ 6 (2d Dist.), citing Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).
{¶ 9}
{¶ 10}
{¶ 11} Ward‘s complaint contained a lengthy list of wrongdoing that he alleged Bond had committed, including fraud, negligence, recklessness, breach of oral contract, conspiracy, “tortious acts in concert,” and malfeasance; he sought a declaratory judgment as well as monetary damages for breach of contract and mental anguish. The trial court
{¶ 12} Bond attached numerous affidavits to his motion for summary judgment. These documents detailed his relationship with Ward and the evolution of their agreement about his responsibility for the Kenton Street house while Ward was in prison. Bond stated that he initially agreed only to mow the lawn and watch for vandalism of the house. Ward later begged Bond by letter to help keep “his residence in order” and to help prevent foreclosure or condemnation. Bond agreed to help due to their longstanding friendship.
{¶ 13} In his affidavit, Bond stated that he found the house to be in “deplorable” condition, with leaks, damaged siding, a gutted living room, and a porch that was collapsing. The utilities had been turned off due to unpaid bills. Bond requested from Ward a limited power of attorney to deal with the property, because the utility companies would not deal with him without one.
{¶ 14} Bond‘s affidavit detailed some efforts on his part to call in favors or to barter for labor on the property. One such effort related to Robert Ward, Brian‘s cousin. Bond ran into Robert, who Bond knew to be experienced in construction and roofing, and Bond talked with Robert about the possibility of working on Ward‘s residence to make it
{¶ 15} Bond further stated that all of the funds he expended on Ward‘s behalf under the power of attorney had been “utilized in an effort to make his residence habitable” so that it could be rented until Ward was released from prison. He detailed some of these expenditures in the affidavit, as well as funds that he had sent to Ward‘s commissary account. He also attached receipts and pictures of the property before and after the repairs he had facilitated.
{¶ 16} Bond‘s affidavit also described his efforts to rent the house to two different individuals and explained that these individuals were unwilling to rent the property in light of its condition. He denied that he had ever found someone willing to rent the property. Bond admitted that his plan had been to rent the house, but he denied that he had ever “guaranteed” Ward that he would rent the house or that he had ever found someone willing to rent it.
{¶ 17} Bond attached to his affidavit a copy of the limited power of attorney,
{¶ 18} Bond also attached to his motion for summary judgment affidavits from Robert Ward, from Bond‘s wife, daughter, and mother, from one of the contractors he attempted to hire, and from one of the prospective tenants who had looked at the house. Robert‘s affidavit corroborated Bond‘s statements about the work Robert did on the exterior of the house, the amount of time he lived there, and the amount he was paid; he denied removing or selling any fixtures or other items located at the residence. The affidavits of Bond‘s wife, daughter, and mother attested to the receipt of letters from Ward in which he threatened to kill Bond and burn down his house. Bond‘s wife stated that she had burned these letters because they were so upsetting to her. Bond‘s mother averred that, in addition to seeing the letters, she had received a phone call from Ward in which he threatened to kill Bond and to burn down their house.
{¶ 19} In an affidavit attached to the motion for summary judgment, the contractor stated that the residence had been in “serious disrepair” when he saw it, that it was “basically uninhabitable,” and that he did not have time to undertake the project of rehabbing the house. The prospective tenant stated that, when she inspected the house, only the kitchen and a small hallway “appeared to have not been demolished,” that the upstairs was “totally uninhabitable,” that the walls were in poor condition with numerous holes, and that “the electrical fuse box was unbolted from the wall and merely hanging by its wires.”
{¶ 20} Ward attached to his complaint numerous letters written by Bond to Ward while Ward was in prison. To the extent that these letters relate to Bond‘s care of the
{¶ 21} When he filed his motion contra Bond‘s motion for summary judgment (at which time Ward was represented by counsel), Ward attached his own affidavit. In the affidavit, he stated that his agreement with Bond had been for Bond to “periodically check on and maintain the premises and to see that taxes and insurance premiums were paid” during his incarceration. Ward also asserted that he had told Bond, “specifically and repeatedly,” that his cousin Robert Ward should not be allowed to have any connection or association with the property; Ward believed that Robert would engage in illegal activity at or damage the property. Ward stated that, at the time of his incarceration, the kitchen of his house had been recently renovated and all utilities and taxes were current. Ward denied making any threats against Bond when he learned that Robert had been at the house, but he acknowledged that he contacted the Urbana Police Department. Ward stated that, after terminating Bond‘s power of attorney, he sold the house at “a significant
{¶ 22} In a reply memorandum, Bond argued that Ward had failed to establish any damages or that the house had been in a “rentable” condition at any time. In a second affidavit attached to the reply, Bond also stated that Ward had told Bond that Ward purchased the house for $12,000, which Bond subsequently confirmed through the county auditor‘s website (2009 sale). Bond asserted that Ward‘s sale of the property for $16,000 after purchasing it for $12,000 demonstrated that Ward‘s claimed loss on the sale of the property was a “blatant misrepresentation.”
{¶ 23} On the breach of contract claim, the trial court concluded that Ward had “offered no evidentiary quality materials showing that a prospective tenant had agreed to rent the premises and that [Bond] caused this tenant to breach the contract.” The court further found that summary judgment was appropriate on the promissory estoppel claim because, insofar as no prospective tenant had agreed to rent the house, Ward had failed to show that he relied on or he had been damaged by any breach of an agreement to rent the house.
{¶ 24} On the claim for breach of fiduciary duty, Ward claimed that Bond had taken funds from Ward‘s bank account to pay utilities and other expenses, and that Robert Ward (who had access to the house because of Bond) had taken items from the house and sold them. The trial court found that the power of attorney had permitted Bond to expend Ward‘s funds for insurance, taxes, and utilities on the residence; Ward “offered no evidentiary-quality materials suggesting that [Bond] had agreed to pay the insurance,
{¶ 25} Finally, the court concluded that, even assuming that Robert‘s presence at the residence were a breach of Bond‘s fiduciary duty, Ward failed to create a genuine issue of material fact that he had suffered any damages as a result. It also concluded that Ward had failed to offer any evidentiary materials to establish the value of the house when he went to prison, such that the sale price would demonstrate a diminution in value.
{¶ 26} Ward‘s claim for civil conspiracy was premised on Bond‘s breach of his fiduciary duty by acting in concert with Robert Ward to deprive Ward of his real and personal property. Having found no breach of fiduciary duty under the second claim, the court found no genuine issues of material fact as to a civil conspiracy.
{¶ 27} Based on Bond‘s affidavits, which were offered in accordance with
{¶ 28} The judgment of the trial court will be affirmed.
DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
Brian S. Ward
Bryan K. Stewart
Hon. J. Timothy Campbell