Brock v. Servpro , 2022 Ohio 158 ( 2022 )

[Cite as Brock v. Servpro, 2022-Ohio-158.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
MIKE BROCK, :
Appellant, : CASE NO. CA2021-06-075
: OPINION
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:
SERVPRO, :
Appellee. :
CIVIL APPEAL FROM BUTLER COUNTY AREA III COURT
Case No. CV11900716
Caparella-Kraemer & Associates, LLC, and Bradley M. Kraemer, for appellant.
Lindhorst & Dreidame Co., L.P.A., and Barry Fagel and Elizabeth M. Johnson, for appellee.
S. POWELL, J.
{¶ 1} Appellant, Mike Brock, appeals the decision of the Butler County Area III Court
granting summary judgment in favor of appellee, Servpro, on his claim alleging a breach of
contract. For the reasons outlined below, we affirm the trial court's decision.
Facts and Procedural History
Brock's Complaint and Servpro's Answer and Counterclaim
{¶ 2} On June 10, 2019, Brock, appearing pro se, filed a complaint against Servpro
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alleging Servpro had "failed to do a clean-up job" he had contracted Servpro to perform in
the basement of his West Chester, Butler County, Ohio home. Brock also claimed Servpro
had "left mold and material they were hired to remove" from his basement. Brock sought
to recover damages from Servpro in the amount of $6,000.
{¶ 3} On July 2, 2019, Servpro filed an answer to Brock's complaint generally
denying Brock's allegations. Servpro also filed a counterclaim against Brock alleging claims
of breach of contract, unjust enrichment, and breach of the parties' settlement agreement.
Servpro sought to recover damages from Brock in the amount of $6,103.48, the price
Servpro originally charged Brock to fix, clean, and restore his flooded basement.
Brock's Amended Complaint
{¶ 4} On August 30, 2019, Brock, now represented by counsel, filed a motion for
leave to file an amended complaint out of time. The trial court granted Brock's motion on
September 3, 2019. Later that day, Brock filed an amended complaint against Servpro
alleging claims of breach of contract and fraudulent misrepresentation. As it relates to
Brock's breach of contract claim, Brock alleged the following:
[1.] Plaintiff and Defendant, Servpro entered into a valid and
enforceable contract for Defendant to clean and restore the
Plaintiff's basement after it flooded.
[2.] Defendant failed to abide by the contract to clean, restore,
and fix the flooded basement.
[3.] After Servpro had performed the work, they left the
basement with mold and left the materials that they were
contracted to remove.
[4.] Servpro's failure to properly perform the work they were
hired for resulted in a loss to Plaintiff in the amount of
$11,440.43 plus attorney fees and costs.1
1. The record indicates that $11,440.43 is the amount Brock claims another home restoration company would
have charged him to redo the work Servpro already did when fixing, cleaning, and restoring his flooded
basement.
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Brock's Deposition Testimony
{¶ 5} On June 16, 2020, Servpro took Brock's deposition. During his deposition,
Brock testified, in pertinent part, as follows.
{¶ 6} In April of 2019, Brock, who is a retired welder, returned from Florida to his
West Chester home. Once there, Brock discovered his sump pump had failed, leaving
approximately 12 to 14 inches of water in his basement. Upon discovering this water, Brock
called his insurance carrier who recommended he contact Servpro to clean, fix, and restore
his flooded basement. After speaking with his insurance carrier, Brock then got online and
set up an appointment for Servpro to come to his home. Brock then went and got a
"submergible pump" and pumped the water out of his basement "[s]o when Servpro got
there, they could see how high the water had been by the line that it had left on the paneling
in one part of the basement and the concrete walls in the other part."
{¶ 7} Several days later, Servpro came to Brock's house with a "bunch of fans" to
dry out his once flooded basement. Once dry, Servpro then began scrubbing Brock's
basement floor and removing the damaged wall paneling and ceiling tiles from his
basement. Servpro also had a dumpster delivered to Brock's home to dispose of the debris
it had removed from Brock's basement. Brock testified that it was at this time that
"everything just went haywire."
{¶ 8} Asked for an example of what "went haywire," Brock initially testified that
Servpro had moved his washing machine, which caused the waterline connected to the
washing machine to break. Brock also testified that Servpro had "knocked over" the new
sump pump he had installed in his basement. This, according to Brock, caused another
two or three inches of water to accumulate on his basement floor.
{¶ 9} However, upon seeing this new accumulation of water, Brock testified that he
pumped the water out of his basement and "repaired" the sump pump by "straighten[ing]
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up the pump." Brock also testified that Servpro fixed the broken waterline connected to his
washing machine and that Servpro gave him an $800 discount for the inconvenience it had
caused by knocking over his new sump pump.
{¶ 10} As another example of what "went haywire," Brock testified that Servpro had
driven onto his neighbor's property and created a rut in his neighbor's yard. Brock admitted,
however, that the Servpro truck did not cause any damage to his yard and that his neighbor
had never complained to him about the rut.
{¶ 11} Brock also testified that he believed Servpro had repeatedly "hit" his garage
door with the debris it was hauling out of his basement. Brock testified that these repeated
hits to his door "knocked the door off the hinge" and that Servpro "never said a word about
it." But, as Brock later testified, he was able to "easily" fix his garage door by bolting the
door back together with an electric screwdriver.
{¶ 12} Brock further testified that Servpro had broken a cable that stretched from "the
pole to his house" when Servpro was moving the dumpster. Brock testified, however, the
cable that Servpro allegedly broke was for an old security alarm system that "did not work,"
"had no function," and that he "didn't really want the cable repaired." Brock testified that he
instead took "nothing but a minute" to roll the cable up and hang it outside his house.
{¶ 13} Brock additionally testified that Servpro had "hid" a pile of wood in a
"cubbyhole" in his basement rather than removing the wood from his basement and
disposing of it outside in the dumpster. Brock testified that he discovered this wood after
he took a flashlight into the basement to look for whatever it was that "smelled like a skunk."
Upon discovering the wood, Brock testified that he was "very upset. Because I knew what
was stinking."
{¶ 14} After finding the wood in his basement, Brock testified that he called Servpro
and said, "I'm going to get somebody else to come and look at this. I said, I'm not going to
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pay you." Brock testified that Servpro then offered come back to his house and remove the
wood. Brock, however, refused Servpro's offer and instead told Servpro that he was "going
to have an expert to look at this whole situation because of everything that you all have
done." Brock also testified that he told Servpro they "needed to settle this issue in court."
Thereafter, when asked why he did not just let Servpro remove the wood when
offered, Brock testified:
Because I was very upset with the entire job. And I wanted to
get someone who I thought or hoped would be an expert to
come in and give me an estimate on what they had done and
what should have been done. Because I knew by now I had
been scammed.
{¶ 15} Continuing, when asked what he was claiming in damages on his breach of
contract and fraudulent misrepresentation claims, Brock testified, "I feel that I have been
scammed." Explaining this testimony further, Brock testified:
Because they did not do the job that they promised to do and
then they tried to take advantage of the fact that they could hide
that wood. And I think they need to be – just like any other
criminal, they need to be shown some justice.
{¶ 16} The following exchange between Brock and Servpro's counsel then occurred:
Q. Okay. So you think – you're really – as it relates to Servpro,
your [sic] not really out any out-of-pocket – out of any money out
of pock for anything Servpro did, correct?
A. No.
Q. Okay. You just think they should be punished?
A. I think this is why we have courts of law.
Q. Okay.
A. If you have a disagreement, you take somebody to court.
{¶ 17} The exchange between Brock and Servpro's counsel then continued:
Q. All right. Now, when you say they didn't do what they
promised to do, what did they promise to do that they didn't do?
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A. Mainly take that wood out.
Q. Take that wood out?
A. That is the big thing that they did not do.
Q. And did you – well, actually, [Servpro] did offer to take the
wood out, right?
A. Yes.
Q. Okay. And you said no?
A. No. I said, we're going to court.2
{¶ 18} Concluding this exchange, although admitting that he was fairly satisfied with
the work that Servpro had done in fixing, cleaning, and restoring his once flooded basement,
Brock testified he had not paid Servpro for any of the work that it had done to his basement.
Servpro's Motion for Summary Judgment and Brock's Memorandum in Opposition
{¶ 19} On July 7, 2020, Servpro filed a motion for summary judgment on Brock's
breach of contract and fraudulent misrepresentation claims. Servpro's motion also sought
summary judgment on its counterclaim against Brock which, as noted above, alleged claims
of breach of contract, unjust enrichment, and breach of the parties' settlement agreement.
Brock filed a memorandum in opposition to Servpro's motion for summary judgment on
August 4, 2020. As part of that memorandum, Brock specifically admitted that he had not
suffered any "traditional monetary damages" as a result of Servpro's alleged breach of
contract. Brock also acknowledged that there were "no economic damages to speak of"
arising out of Servpro's purported breach of contract.
Magistrate's Decision, Brock's Objection, and the Trial Court's Entry
{¶ 20} On September 8, 2020, a trial court magistrate issued a decision
2. Brock later acknowledged within his deposition testimony that the wood is, in fact, still in his basement and
that the wood has not been moved from the area he claims it was hidden by Servpro.
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recommending the trial court grant Servpro's motion for summary judgment in its entirety.
The magistrate also recommended the trial court enter judgment in favor of Servpro against
Brock in the amount of $5,303.48, the price Servpro originally charged Brock to fix, clean,
and restore his flooded basement ($6,103.48) minus the $800 discount Servpro had offered
to Brock for the inconvenience it had caused by knocking over Brock's new sump pump. In
so holding, the magistrate initially stated regarding Brock's breach of contract and fraudulent
misrepresentation claims:
Brock was upset because, while cleaning his basement,
Servpro knocked down his sump pump, broke a water line going
into the washing machine, caused a rut in his neighbor's yard,
knocked his garage door off its hinge, knocked down a security
alarm cable, and "hid" wood in a basement cubbyhole. But
Brock was able to easily fix the sump pump; Servpro fixed the
water line; the rut was in a neighbor's yard and caused no
damage to Brock; Brock was able to easily fix the garage door
with an electric screwdriver; the broken cable was not being
used at the time and caused no damage; and Servpro offered
to remove the wood, but Brock refused to let them. When asked
[during his deposition], Brock admitted that he was not out-of-
pocket any money at all. Instead, he wanted to see Servpro
punished, because he felt that he had been "scammed" by their
unprofessional behavior.
{¶ 21} The magistrate then noted its finding that Servpro was entitled to summary
judgment on Brock's breach of contract claim given that Brock, by his own admission, "has
not suffered any compensable damages at all. Nothing that Servpro did or failed to do cost
him any money."
{¶ 22} Next, as it relates to Servpro's counterclaim against Brock, the magistrate
stated:
Brock admitted that he did not pay anything to Servpro for its
services, although they did the requested work. As noted
above, Brock believed that Servpro was unprofessional and
caused all kinds of problems while at his house, so he thought
he was justified in not paying them for their work. * * * [However,
while] Servpro did cause a few problems that irritated Brock, * *
* Servpro either fixed the problem itself (water line), offered to
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fix the problem (wood in cubbyhole), did not damage Brock at
all (rut in neighbor's yard, broken cable), or Brock was able to
easily rectify the problems himself (garage door, sump pump).
Therefore, given Brock's admission that he had not paid Servpro for any of the work it had
done to fix, clean, and restore his once flooded basement, the magistrate found Servpro
was entitled to be paid pursuant to its contract with Brock.
{¶ 23} On September 17, 2020, Brock filed an objection to the magistrate's decision.
As part of that objection, Brock specifically stated:
While we do not object to the dismissal of Plaintiff's [breach of
contract and fraudulent misrepresentation] claims, we do object
to the ruling concerning [Servpro's] counter-claim and feel it
should be remanded for trial.
{¶ 24} To support this claim, Brock argued that he believed summary judgment was
improper on Servpro's counterclaim because Servpro caused "a myriad of issues" to his
house and "fraudulently concealed debris in a corner to make it appear as it the work had
been completed." Brock also argued that Servpro's "[f]ailure to complete the actual work
and fraudulently concealing the debris to make it appear as if they had, should be ground
for trial and not summary judgment."
{¶ 25} On May 11, 2021, the trial court issued an entry summarily overruling Brock's
objection to the magistrate's decision, thereby affirming and adopting the magistrate's
decision in full.
Brock's Appeal
{¶ 26} Brock now appeals the trial court's decision granting summary judgment to
Servpro, raising the following single assignment of error for review.
{¶ 27} THE TRIAL COURT ERRED WHEN IT INCORRECTLY GRANTED
SUMMARY JUDGMENT TO SERVPRO ON BROCK'S BREACH OF CONTRACT CLAIM.
{¶ 28} Brock argues the trial court erred by granting summary judgment to Servpro
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on his breach of contract claim. We disagree.
De Novo Standard of Review
{¶ 29} "This court reviews a trial court's summary judgment decision under a de novo
standard." Faith Lawley, LLC v. McKay, 12th Dist. Warren No. CA2020-08-052, 2021-Ohio-
2156, ¶ 26, citing Deutsche Bank Natl. Trust Co. v. Sexton, 12th Dist. Butler No. CA2009-
11-288, 2010-Ohio-4802, ¶ 7. "[D]e novo review means that this court uses the same
standard the trial court should have used." Nationwide Agribusiness Ins. Co. v. Heidler,
12th Dist. Clinton Nos. CA2018-06-003, CA2018-07-004, CA2018-09-012, and CA2018-
09-015, 2019-Ohio-4311, ¶ 71; Morris v. Dobbins Nursing Home, 12th Dist. Clermont No.
CA2010-12-102, 2011-Ohio-3014, ¶ 14 ("[d]e 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").
Civ.R. 56 Summary Judgment Standard
{¶ 30} "Summary judgment is a procedural device used to terminate litigation when
there are no issues in a case requiring a formal trial." Franchas Holdings, LLC v. Dameron,
12th Dist. Clermont No. CA2015-09-073, 2016-Ohio-878, ¶ 16, citing Roberts v. RMB Ents.,
Inc., 197 Ohio App.3d 435, 2011-Ohio-6223, ¶ 6 (12th Dist.). "Civ.R. 56 sets forth the
summary judgment standard." State ex rel. Becker v. Faris, 12th Dist. Clermont No.
CA2020-10-058, 2021-Ohio-1127, ¶ 14. "Pursuant to that rule, a court may grant summary
judgment only when (1) there is no genuine issue of any material fact, (2) the moving party
is entitled to judgment as a matter of law, and (3) the evidence submitted can only lead
reasonable minds to a conclusion that is adverse to the nonmoving party." Spitzer v. Frish's
Restaurants, Inc., 12th Dist. Butler No. CA2020-12-128, 2021-Ohio-1913, ¶ 6, citing BAC
Home Loans Servicing, L.P. v. Kolenich, 194 Ohio App.3d 777, 2011-Ohio-3345, ¶ 17 (12th
Dist.). "In determining whether a genuine issue of material fact exists, the evidence must
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be construed in favor of the nonmoving party." Assured Admin., LLC v. Young, 12th Dist.
Warren No. CA2019-04-039, 2019-Ohio-3953, ¶ 14, citing Vanderbilt v. Pier 27, L.L.C., 12th
Dist. Butler No. CA2013-02-029, 2013-Ohio-5205, ¶ 8.
Elements of a Breach of Contract Claim
{¶ 31} "To establish a claim for breach of contract, a plaintiff must prove (1) the
existence of a contract, (2) plaintiff fulfilled his or her contractual obligations, (3) defendant
failed to fulfill his or her contractual obligations, and (4) due to this failure plaintiff incurred
damages." Capital Real Estate Partners, LLC v. Nelson, 12th Dist. Warren Nos. CA2018-
08-085 and CA2018-08-094, 2019-Ohio-2381, ¶ 13, citing Roberts v. McCoy, 12th Dist.
Butler No. CA2016-04-071, 2017-Ohio-1329, ¶ 27. Proof that the plaintiff incurred damages
is an "essential element of a breach of contract case." Shelters, Inc. v. Kadivar, M.D., 12th
Dist. Clermont No. 1073, 1983 Ohio App. LEXIS 13925, *8 (May 25, 1983). "Damages,
therefore, are legally essential to a claim for breach of contract." Phillips v. Columbia
Reserve Ltd, 9th Dist. Lorain No. 20CA011634, 2021-Ohio-1231, ¶ 20. This means that a
plaintiff's "[f]ailure to prove the essential element of damages is * * * fatal to a cause of
action for breach of contract." W. & S. Life Ins. Co. v. Bank of New York Mellon, 1st Dist.
Hamilton No. C-170476, 2019-Ohio-388, ¶ 44. This is because, "[w]ithout damages, there
can be no remedy for breach of contract." Byers DiPaola Castle LLC v. Portage Cty.
Commrs., 11th Dist. Portage No. 2014-P-0047, 2015-Ohio-3089, ¶ 23.
The Trial Court Did Not Err by Granting Summary Judgment to Servpro
{¶ 32} Brock argues the trial court erred by granting summary judgment to Servpro
on his breach of contract claim. Brock, however, did not raise this issue as part of his
objection to the magistrate's decision. Brock, in fact, specifically stated that he did not
object to the magistrate's decision granting summary judgment to Servpro on his breach of
contract claim. The same is true as it relates to Brock's claim alleging Servpro engaged in
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fraudulent misrepresentation. Again, as Brock explicitly stated in his objection to the
magistrate's decision:
While we do not object to the dismissal of Plaintiff's [breach of
contract and fraudulent misrepresentation] claims, we do object
to the ruling concerning [Servpro's] counter-claim and feel it
should be remanded for trial.
{¶ 33} By failing to object to the magistrate's decision granting summary judgment to
Servpro on his breach of contract claim, Brock has waived all but plain error on appeal his
challenge to the trial court's decision affirming and adopting that portion of the magistrate's
decision. See, e.g., Doran v. Doran, 12th Dist. Warren No. CA2009-05-050, 2009-Ohio-
5521, ¶ 26 (although appellant filed objections to the magistrate's decision, appellant
nevertheless waived all but plain error on appeal his challenge to matters that appellant did
not raise as part of those objections). When applying plain error in a civil case, like the case
at bar, this court is required to be "extremely deferential" to the trial court. Capano &
Assocs., L.L.C. v. On Assignment, Inc., 12th Dist. Butler No. CA2015-08-153, 2016-Ohio-
998, ¶ 13.
{¶ 34} "The Rules of Civil Procedure do not provide for plain-error review." Jones v.
Cleveland Clinic Found., 161 Ohio St.3d 337, 2020-Ohio-3780, ¶ 24. Because of this, "[t]he
Ohio Supreme Court has set a 'very high standard' for invoking the plain error doctrine in a
civil case." Bryan v. Chytil, 4th Dist. Ross Nos. 20CA3723, 20CA3725, and 20CA3732,
2021-Ohio-4082, ¶ 200, quoting Perez v. Falls Financial, Inc., 87 Ohio St.3d 371, 375
(2000). Specifically, as the Ohio Supreme Court has stated:
In applying the doctrine of plain error in a civil case, reviewing
courts must proceed with the utmost caution, limiting the
doctrine strictly to those extremely rare cases where exceptional
circumstances require its application to prevent a manifest
miscarriage of justice, and where the error complained of, if left
uncorrected, would have a material adverse effect on the
character of, and public confidence in, judicial proceedings.
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Goldfuss v. Davidson, 79 Ohio St. 3d 116, 121 (1997), citing Schade v. Carnegie Body Co.,
70 Ohio St.2d 207, 209 (1982). Therefore, as more recently set forth by the Ohio Supreme
Court, "in order for a court to find plain error in a civil case, an appellant must establish (1)
a deviation from a legal rule, (2) that the error was obvious, and (3) that the error affected
the basic fairness, integrity, or public reputation of the judicial process and therefore
challenged the legitimacy of the underlying judicial process." State v. Morgan, 153 Ohio
St.3d 196, 2017-Ohio-7565, ¶ 40, citing Goldfuss at syllabus; see, e.g., Whitson v. Dixie
Imps., Inc., 12th Dist. Butler No. CA2019-09-157, 2020-Ohio-1549, ¶ 44 (rejecting
appellant's civil plain error claim upon finding the record was devoid of "an obvious legal
error affecting the fairness of the proceedings" when applying the civil plain error test set
forth by the Ohio Supreme Court in Morgan).
Analysis
{¶ 35} In this case, and just as the trial court found, Brock readily admitted as part of
his deposition testimony that he "has not suffered any compensable damages at all.
Nothing that Servpro did or failed to do cost him any money." Therefore, because proof
that the plaintiff incurred damages is an essential element of a breach of contract claim, and
because a plaintiff's failure to prove the essential element of damages is fatal to a cause of
action for breach of contract, the trial court did not commit error, plain or otherwise, by
granting summary judgment to Servpro on Brock's breach of contract claim. This holds true
no matter how annoyed and irritated Brock may have been with Servpro's alleged
unprofessionalism and the professionalism of the individuals who Servpro dispatched to fix,
clean, and restore his flooded basement.
Conclusion
{¶ 36} For the reasons outlined above, the trial court did not err by granting summary
judgment to Servpro on Brock's breach of contract claim. Therefore, because we find no
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merit to any of the arguments raised by Brock in support of his assignment of error, Brock's
single assignment of error lacks merit and is overruled.
{¶ 37} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.
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