Brunswick Man Gets Less from Jury than Last Offer

On Tuesday, June 7, 2011, Judge Kimbler's courtroom was the site of a jury trial in the case of Collin Willey v. Kalli Fleming. Back in November of 2007, Ms. Fleming's car struck Mr. Willey's car in the rear while he was stopped on South Carpenter Road in Brunswick. The collision caused a chain reaction and drove Mr. Willey's car into the rear of the car that was stopped in front of him. Mr. Willey claimed that he injured his back and neck and that he would eventually need to have some discs in his back fused.

While Ms. Fleming admitted that she was negligent, she disputed the amount of damages that Mr. Willey claimed he sustained. At trial Mr. Willey presented medical bills totaling over $10,000.00. A doctor called on behalf of Mr. Willey gave the opinion that a future operation to fuse the discs in his back would run between $15,000 to $50,000.

All the evidence in the trial was heard in one day. On Wednesday the jurors came back to hear closing arguments and receive the jury instructions. Following the arguments and instructions, the jury retired. The jury deliberated for approximately one hour before returning a verdict that was approximately half of the insurance company's last offer.

Voluntary Dismissals & Court Costs

I recently issued a decision on whether a party who dismisses after a settlement can recover court costs under the Ohio Rules of Civil Procedure. I concluded that since only a "prevailing" party can recover court costs and since there is no such party when there is a settlement followed by a voluntary dismissal, the party dismissing the case can not recover its costs. Excerpts from my decision appear below:

This matter is before the Court on Plaintiff's Motion to Dismiss and Assessment of Court Costs. Upon due consideration, the Court finds that said motion is not well taken, in part.

This is a foreclosure action in which Plaintiff seeks to dismiss its Complaint and assess the costs of the action against the Defendant homeowners. Plaintiff contends that the Court has the power to assess the costs against the Defendants pursuant to Ohio Civil Rule 54 (D). Civ. R. 54 (D) states “except when express provision therefore is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs.”

In Ohio Civil Rights Commission v. GMS Management Co., Inc., 2000 Ohio App. LEXIS 2827 (2000), The Ninth District Court of Appeals held “ a dismissal pursuant to Civ. R. 41(A) does not adjudicate the merits of the claim and does not produce a prevailing party.” The Court held that a voluntary dismissal returns the parties to the position they were in prior to the filing of the case.

This Court finds that in an action where Plaintiff voluntarily dismisses its case, and has not so dismissed once before, there is no prevailing party. Therefore, the provision is Civ. R. 54(D) does not apply to this action.

Medina County Court of Common Pleas, Rules of the General Division, Rule 10 (D) states “Upon voluntary dismissal of any action or claim, court costs associated with that claim shall be assessed to the dismissing parties unless otherwise ordered by the Court.”

This Court finds that assessing the costs against the Defendant homeowners would not return them to the position they were in prior to the commencement of the action. Therefore, the Court finds that there is not a compelling reason to alter the general rule that the party that dismisses a case is responsible for the costs of that action.

Judge Kimbler Decision Concerning Oral v Written Contract

Case History

The Plaintiffs filed a complaint setting forth six counts. One of the counts was for unjust enrichment; one of the counts was for conversion; two of the counts were for breach of contract for repairs that were done to a barn and other outbuildings; and two counts were for breach of contract for repairs that were done to the Plaintiffs house. The Defendant filed an answer denying liability.

Both parties have filed various motions. The Court's rulings on those motions have been set forth in a separate journal entry. The Defendant also filed a motion for summary judgment on the grounds that the claims were time barred. The Plaintiffs have filed a response to that motion. This journal entry sets forth the Court's ruling on the Defendant's motion for summary judgment.

Findings of Fact

The parties entered into two contracts in 2001 whereby the Defendant was to perform certain repairs on buildings located on real estate owned by the Plaintiffs. The formation of the contracts was done pursuant to a written proposal by the Defendant for repairs to a barn and outbuildings and a written proposal for repairs to the Plaintiffs' house.

Pursuant to the contracts the Defendant started working on the house in 2001 and the Plaintiffs proceeded to pay him over $49,000.00. The last check from the Plaintiffs to the Defendants was issued on September 18, 2001.

Although the work was paid for, the Plaintiffs were apparently not happy with the work. According to an affidavit filed by Jeanne Theis there was work done by the Defendant and/or workers employed by him on March 13, 2002; August 6, 2003; February 19, 2007; September 28, 2007; June 13, 2008; July 3, 2008; and July 4 and July 7, 2008.

The affidavit filed by Mrs. Theis also states that there were additional times when she spoke to the Defendant either at her home or at other locations regarding the work and when it would be completed.

The affidavit also alleges that in July of 2008 the Plaintiffs came home to find that the Defendant's employees had taken material from their home that was to be used in the repair of buildings on their property.

Conclusions of Law


Standard of Review for Motions for Summary Judgment

Summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the non-moving party. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 696 N.E.2d 201, Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d. 267.

The standard of review for a motion for summary judgment was generally stated in State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St. 3d 447, 448-449, 663 N.E.2d 639, as follows:

“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, 4 Ohio Op. 3d 466, 472, 364 N.E.2d 267, 274.

Summary judgment is appropriate where the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; State ex rel. Morley v. Lordi (1995), 72 Ohio St. 3d 510, 513, 651 N.E.2d 937, 940.

When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St. 3d 48, 52, 567 N.E.2d 1027, 1031.

Statute of Limitations for Breach of Contract

The statute of limitations for written contracts is 15 years. R.C. 2305.06.

The statute of limitations for oral contracts is six years. R.C. 2305.07.

What Constitutes a "Contract in Writing?"

"In order for an action to come within the statute of limitations governing actions under R.C. 2305.06, the written instrument must clearly define the unilateral or bilateral obligations of the parties without reference to supplemental evidence to establish the terms of the agreement, contract, or promise. Where such a written instrument exists, the appropriate statute of limitations is fifteen years, as provided in R.C. 2305.06, regardless of whether the agreement, contract, or promise states a sum certain." Claxton v. Mains, 33 Ohio App. 3d 49 (Ohio Ct. App., Franklin County 1986).

"A valid contract involves competent parties, a lawful subject matter, a sufficient consideration, and an actual agreement to do or forebear from doing some particular thing." Griffey v. Rajan, 33 Ohio St. 3d 75, 85 (Ohio 1987).

"In the case of a unilateral contract, as here, the promisor's offer is accepted by the promisee's performance rather than by a return promise to perform. Consequently, when the promisee's performance is executed, enforceable obligations arise without more. Under this analysis, then, appellants' continued employment, as the bargained-for-consideration, rendered the contract to pay severance benefits enforceable, regardless of "mutuality" or a lack thereof."
Helle v. Landmark, Inc., 15 Ohio App. 3d 1, 12 (Ohio Ct. App., Lucas County 1984)

"A contract is generally defined as a promise, or a set of promises, actionable upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration." Perlmuter Printing Co. v. Strome, Inc. (N.D.Ohio 1976), 436 F. Supp. 409, 414. A meeting of the minds as to the essential terms of the contract is a requirement to enforcing the contract. Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations (1991), 61 Ohio St. 3d 366, 369, 575 N.E.2d 134." Kostelnik v. Helper, 96 Ohio St. 3d 1, 3-4 (Ohio 2002).

If a contract is silent as to the time of performance, the law will imply the term that the performance be made within a "reasonable time." Trucks, Inc. v. Valley Ford Truck Sales, 2006 Ohio 1609 (Ohio Ct. App., Cuyahoga County Mar. 30, 2006).

In a construction contract, the term will be implied that the work will be done in a "workmanlike manner. " Terrace Creek Ass'n v. Smith, 2001 Ohio App. LEXIS 2212 (Ohio Ct. App., Montgomery County May 18, 2001)

The law will also imply the term that payment due under the terms of a contract will be paid within a "reasonable time." Hall v. United States Bank Nat'l Ass'n, 2006 Ohio 303 (Ohio Ct. App., Hamilton County Jan. 27, 2006)

"R.C. 2305.08 states, in part, that "if payment has been made upon any demand founded on a contract, an action may be brought thereon within the time limited by sections 2305.06 and 2305.07 of the Revised Code, after such payment." In Canton Oil Well Serv., Inc. v. White, 1985 Ohio App. LEXIS 7196 (Sept. 23, 1985), Stark App. No. CA-6588, unreported, at 1, 1985 WL 6502, the Fifth Appellate District held that HN13partial payment towards an indebtedness removes the case from the six year statute of limitations found in R.C. 2305.07, and extends the running of the statute as provided in R.C. 2305.08…" Slack v. Cropper, 143 Ohio App. 3d 74, 83-84 (Ohio Ct. App., Portage County 2001)

Holding

This Court finds, for reasons set forth below, that the applicable statute of limitations in this case is fifteen years.

Discussion

The proposals that were given to the Plaintiffs by the Defendant were proposals for a unilateral contract. The obligation of the Plaintiffs was to pay once the work was performed. The Plaintiffs, when they issued the first check to the Defendant, accepted his proposals. At that time the contracts between the parties came into existence. The Court finds that the contracts were "unilateral" because the Plaintiffs had no duty to pay until the Defendant had performed. Once they paid, however, they accepted the contract and it became binding on both parties.

Since the Court believes that the contracts were unilateral contracts, what has to be in writing is the offer, not both the offer and the acceptance. In a unilateral contract, the offer is accepted by performance, not by making a reciprocal promise.

It is true that the written proposal made by the Defendant is ambiguous with respect to exactly what repairs were to be made. This lack of specificity does not mean that there was no contract. It may mean, however, that the Court will have to admit parol evidence to explain some of the words used in the proposals, like, for example, "storm damage." The fact that some words are ambiguous doesn't mean that there was no contract.

Further even if this Court found that the contract was a bilateral contract, the Court would still find that the statute of limitations is 15 years. This is because of R.C. 2503.08. When the Plaintiffs wrote the first check to the Defendant, they made a "payment on a demand". Once they did that, even if there was an oral contract, they brought their cause of action under the statute of limitations set forth in R.C. 2503.06.

This Court does believe that there are remaining issues that can be resolved by motions for summary judgment. Those issues include whether or not a cause of action for "unjust enrichment" can exist if there is a contract between the parties and also include whether Ohio recognizes a cause of action for negligent performance of a contact if the only damages are economic. Those issues, however, are not now before the Court.

Each party is expressly granted leave to file motions for summary judgment up until sixty days before trial. This permission continues even after this Court sets this matter down for either a online pretrial or a pretrial in person.

SO ORDERED.

Contractor Liability for Negligent Construction

I recently entered a summary judgment in favor of a contractor who had followed the directions of the Medina County Agricultural Society in constructing a obstacle course for an event at the Medina County Fair. The issue in the motion for summary judgment was whether this Court had to follow a decision by the Court of Appeals for the Ninth Appellate District that was entered in January of 2002 or whether, since the decision was issued before May of 2002, it is persuasive authority but not binding authority.

The decision involved is Staley v. Bogner Construction Company, 2002 Ohio 317, (Wayne Cty. Ct. of Appeals). That decision held that when a contractor or a subcontractor follows the plans of the owner in doing work on the owner's premises there is no duty owed to any person who uses the premises. The duty, if any exists, is owed by the owner of the premises, not the contractor.

Since the plaintiff could not cite to any decisions from the Court of Appeals for the Ninth District that were contrary to this holding, I found that the opinion of the Wayne County Court of Appeals was persuasive. Therefore, I followed the reasoning of the appellate court and granted summary judgment.

You can read the opinion by clicking here. Please remember that this decision is subject to an appeal.

Use of Public Records in Motions for Summary Judgment

I recently had a case where a plaintiff filed a motion for summary judgment against both a defendant on two counterclaims and a third party plaintiff on two claim. The claims were for negligent entrustment of a motor vehicle and negligent supervision of a minor. The counterclaims and the third party claims arose out of the following facts:

A minor is riding with her father in her mom's vehicle. The father is driving and the daughter is a passenger, and also a minor. The parents are divorced with the daughter living in the same house as her mother. On the day of the accident, the mother alleges that her vehicle was struck from behind by the defendant's vehicle and that her daughter was injured in the accident.

The mother brings a lawsuit against the defendant as next friend and guardian of the daughter. The defendant files an answer and a counterclaim as well as a third party complaint. The defendant's wife joins in the third party complaint.

The defendant alleges that he was not negligent and that the accident was actually caused by the father of the child. He also claims that the mother negligently entrusted her vehicle to her husband who was an incompetent driver. He claims that the negligence of the father caused the accident and that therefore he is not only not liable for the accident, but that both the mother and father of the child are liable to him. The father because he negligently caused the accident and the mother because she negligently entrusted the vehicle to her ex-husband.

The defendant's wife joined in the third party complaint claiming loss of services. She also alleged negligence against the father and negligent entrustment against the mother of the child.

Both the defendant and his wife also sued the mother for negligent supervision. Their argument was that the mother negligently supervised her daughter by allowing the daughter to ride with her ex-husband.

When the defendant and his wife filed responses to the mother's motion for summary judgment on the claims of negligent entrustment and negligent supervision, they attached purported copies of various court documents from Cuyahoga County courts. While there was an affidavit attached from the attorney representing the defendant and his wife, the documents were not certified. The issue then became whether I could consider such documents.

With regard to the motion for summary judgment on the issue of negligent supervision, the issue became whether a cause of action for negligent supervision can exist in a situation where a child is not the tortfeasor who caused the injury.

You can see my answer to the questions posed above and my analysis by clicking here. Please keep in mind that this decision is subject to appeal.

Judge Kimbler Decision Regarding Venue in a Declaratory Judgment Action

On March 11, 2011, I ordered the transfer of a case captioned Westfield Insurance Company v. Roger Mercurio, et al., Case No. 10CIV1878. The action was a declaratory judgment action filed by Westfield Insurance to determine whether there was coverage under a homeowners' policy issued to Mr. and Mrs. Mercurio for a dog bite. Their dog, LeBron, bit a neighbor's child. Westfield claimed that there wasn't coverage under the homeowners' policy since the dog was a "vicious" animal as that term is used in the policy.

The dog bite took place in Richland County. The policy was purchased in Richland County from an insurance agent located in Richland County. The Mercurios filed a motion to transfer venue under Civ. R. 12 and Civ. R. 3. They claimed that venue was proper in Richland County, but not in Medina County.

Westfield argued that the decision to deny coverage was made at the company's headquarters in Medina County. Therefore, the activity that gave rise to the claim for relief took place in Medina County.

Although I found this argument interesting, I concluded that venue was not proper in Medina County. My reasoning was that the event that led to the denial of coverage, the dog bite by a "vicious" dog, took place in Richland County. Therefore the activity that gave rise to the claim for relief occurred in Richland County, not Medina County. Put another way, absent the dog bite in Richland County there would be no dispute between the parties and therefore no need to file a declaratory judgment action.

You can read by full opinion in pdf format on the Medina County Clerk of Courts' website by clicking here. Please note that this opinion is subject to appeal.

Hyundai Wins Jury Trial in Judge Kimbler's Courtroom

Hyundai Motors of American won a two day jury trial in Judge Kimbler's courtroom when a jury returned a verdict in its favor on a lawsuit filed by a Brunswick man. Harry C. Walton of Salem Lane in Brunswick, Ohio, filed the lawsuit alleging violation of Ohio's Lemon Law; breach of implied warranty of merchantability; breach of express warranty; violation of Ohio's Consumer Sales Protection Act; and the tort of violation of the implied warranty of merchantability.

At the conclusion of Mr. Walton's case, Judge Kimbler granted a motion for a directed verdict on two of the claims. Those claims were for violation of the Consumer Sales Protection Act and for breach of an implied warranty under Ohio's version of Article II of the Uniform Commercial Code.

Judge Kimbler ruled that while Mr. Walton had established that Hyundai was a "supplier" under the Consumer Sales Protection Act, he did not introduce enough evidence to allow the jury to conclude that the alleged unfair or deceptive acts had been committed by an agent or employee of Hyundai. Mr. Walton's evidence established that certain representations were made to him by employees of a Hyundai dealer, but there was no evidence establishing the nature of the relationship between the dealership and Hyundai.

With respect to the claim for breach of the implied warrant of merchantability, Judge Kimbler held that there was no evidence that Hyundai and Mr. Walton were in privity of contract. Under a recent decision of the Ohio Supreme Court there has to be privity of contract before there can be a valid claim for breach of the implied warrant of merchantability. Although the evidence established that there was privity of contract between Mr. Walton and the Hyundai dealership, there was not enough evidence to establish that there was privity between Mr. Walton and Hyundai. Mr. Walton only brought his lawsuit against Hyundai and not against any Hyundai dealership.

After deliberating, the jury returned a verdict in favor of Hyundai on all remaining counts. Those counts were for violation of Ohio's Lemon Law; breach of an express warranty; and the tort of breach of implied warranty. The trial started on Monday, March 7 and concluded on Wednesday, March 9, 2011.

Foreclosures Decline in 2010 Compared to 2009

Linda Gerberich, Administrative Assistant to Judge James Kimbler, prepared a report for Judge Kimbler showing the number of foreclosures for 2008 through February of 2011. The number of foreclosures declined in 2010 compared to 2009.

There is some concern, though, that the decline is due to the fact that a number of mortgage holders suspended foreclosure cases during 2010 due to the allegations of fraud in the signing of court documents. Since most mortgage holders have lifted their suspensions of foreclosure actions, there is concern that the number this year may exceed 2010. Whether that happens will not be known until later in 2011.

Foreclosures - Judge Kimbler

2008 2009 2010 2011

January 46 57 34 56

February 41 53 45 31

March 57 66 69

April 53 59 53

May 48 58 52

June 36 61 53

July 47 62 51

August 40 47 48

September 40 47 47

October 42 43 50

November 27 43 41

December 41 58 41

Total 518 654 584