DCI Rentals, L.L.C. v. Sammons ( 2024 )

[Cite as DCI Rentals, L.L.C. v. Sammons, 2024-Ohio-1962.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
DCI RENTALS, LLC, :
Plaintiff-Appellant, : Case
No. 23CA4030
v. :
CLAUDE A. SAMMONS, : DECISION AND
JUDGMENT ENTRY
Defendant-Appellee, :
________________________________________________________________
APPEARANCES:
Steven M. Willard, Portsmouth, Ohio, for appellant.
Susan M. Salyer and John R. Haas, Loveland, Ohio, for appellee.
________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 5-14-24
ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas
Court judgment in favor of DCI Rentals, LLC, plaintiff below and
appellant herein. The trial court awarded appellant $54,806.40
to compensate it for the damage it suffered as a result of the
negligence of Claude A. Sammons, defendant below and appellee
herein. Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
IN ITS RULING ON DEFENDANT-APPELLEE’S MOTION
IN LIMINE FINDING THE MEASURE OF DAMAGES IS
THE DIFFERENCE IN THE FAIR MARKET VALUE OF
SCIOTO, 23CA4030 2
THE PROPERTY IMMEDIATELY BEFORE AND AFTER
THE INCIDENT.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT BELOW COMMITTED PREJUDICIAL
ERROR IN ITS FINAL ENTRY GRANTING JUDGMENT
TO PLAINTIFF-APPELLANT, BUT DENYING
PLAINTIFF-APPELLANT’S EVIDENCE OF DAMAGES.”
{¶2} On June 1, 2020, appellant1 filed a complaint that
alleged appellee negligently operated his motor vehicle when he
struck a house situated on appellant’s rental property.
Appellant claimed that as a result of the accident, the house
had to be demolished. Appellant thus requested damages for the
losses it suffered as a result of appellee’s negligence.
Appellee denied liability.
{¶3} Appellee later filed a motion in limine. In his
motion, appellee admitted liability and stated that the issue
for the court to resolve was the proper measure of damages.
Appellee asserted that “the proper measure of damage to real
property is the difference in the fair market value of the
property immediately before and after the incident.”
{¶4} Appellant’s memorandum contra argued that damages
should not be limited to the difference in the fair market value
of the property before and after the accident. Instead,
1
The complaint named Connie and Doug Rudd as the
plaintiffs. On April 13, 2023, they filed a motion to
substitute DLC Rentals, LLC as the plaintiff. The trial court
granted this motion.
SCIOTO, 23CA4030 3
appellant asserted that “the goal of damages is to make the
claimant whole.” Appellant contended that, as a result of
appellee’s negligence, the house was completely destroyed and
needed to be demolished. Consequently appellant asserted it is
entitled to recover the cost to rebuild the house, plus the
demolition cost and the profit lost due to the lack of rental
income. Appellant argued that a jury should determine the
amount of damages that would make appellant whole and limiting
the jury’s consideration to “only a diminution in value of the
property is unreasonable and unfair.”
{¶5} On August 3, 2021, the trial court determined that the
proper measure of damages is the difference in the market value
of the property before and after the accident. The court
concluded that this rule, derived from Ohio Collieries Co. v.
Cocke, 107 Ohio St. 238, 140 N.E. 356 (1923), applies when the
damages are permanent. The court found that appellant’s damages
were permanent. The building had to be demolished, and “[t]here
[was] nothing left to repair or restore.” The court further
noted that to award appellant the cost to rebuild would “give
[it] a windfall.” The court thus determined that at trial, the
jury will be instructed that “the correct measure of damages is
the difference in the fair market value of the property
SCIOTO, 23CA4030 4
immediately before and after the accident.” The parties later
agreed to a trial before the court.
{¶6} On May 2, 2023, the trial court awarded appellant
damages in the amount of $54,806.40. The court recognized that
appellant requested the court award it the full measure of
damages it suffered, which included the cost to rebuild the
property ($101,262.47), the demolishment cost ($9,322.40), and
the lost rental income ($31,000). The trial court nonetheless
determined that “the measure of damages to consider is the
difference in the fair market value of the property immediately
before and after the incident.” The court also noted that
appellant had received insurance proceeds in the amount of
$45,484 for the house, in addition to $9,322.40 for the
demolition, for a total of $54,806.40. The court thus
determined that $54,806.40 is the proper amount of damages
appellant is entitled to as a result of appellee’s negligence.
The court entered judgment accordingly and this appeal followed.
I
{¶7} In its two assignments of error, appellant asserts
that the trial court incorrectly determined that the proper
measure of damages is the difference in the fair market value of
SCIOTO, 23CA4030 5
the property immediately before and after the incident.2
Appellant contends that the “goal of damages is to make the
claimant whole.” Applying this rule, appellant suggests that
the court should have awarded it the amount of money to rebuild
the property ($101,262.47) and to recover the profit it lost due
to the inability to rent the property from the date of the
accident to the date of trial ($31,000), for a total damage
award of $132,262.47.
{¶8} Appellee argues that the trial court applied the
correct measure of damages because the court based its decision
upon the Ohio Collieries rule that applies when property
2
We observe that appellant’s brief argues the first and
second assignments of error together. While appellate courts
may combine assignments of error, the Appellate Rules require an
appellant’s brief to separately argue each assignment of error.
App.R. 16(A)(7) (stating that “[t]he appellant shall include in
its brief * * * [a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for
review and the reasons in support of the contentions, with
citations to the authorities, statutes, and parts of the record
on which appellant relies”); State v. Rife, 4th Dist. Ross No.
11CA3276, 2012-Ohio-3264, ¶ 15. We thus would be within our
discretion to disregard appellant’s assignments of error. See
App.R. 12(A)(2) (court may disregard an assignment of error if
appellant fails to separately argue it). We prefer, however, to
decide cases on their merits rather than procedural
technicalities. Barksdale v. Van’s Auto Sales, Inc., 38 Ohio
St.3d 127, 128, 527 N.E.2d 284, 285 (1988) (noting that a “basic
tenet of Ohio jurisprudence [is] that cases should be determined
on their merits and not on mere procedural technicalities”). We
therefore will review appellant’s first and second assignments
of error.
SCIOTO, 23CA4030 6
sustains permanent injury: “the measure of damages is the
difference in the market value of the property as a whole,
including the improvements thereon, before and after the
injury.” Id. at 248. Appellee asserts that the market value of
appellant’s rental property before the accident was $45,484, and
after the accident, the market value was $0. Appellee thus
claims that “the difference in fair market value of the property
immediately before the accident ($45,484.00) and immediately
after the accident ($0) is $45,484.00.”
{¶9} Appellee further recognizes that Ohio Collieries
stated a different measure of damages when the injury is
“temporary and reparable”:
the measure of damages is the reasonable cost of
restoration, plus reasonable compensation for the loss
of the use of the property between the time of the injury
and the restoration, unless the cost of restoration
exceeds the difference in the market value of the
property before and after the injury, in which case the
difference in market value becomes the measure.
Id. at 248-49.
{¶10} Appellee contends that, even if the injury to
appellant’s property could be considered “temporary and
reparable,” appellant should be limited to the difference in the
market value of the property before and after the accident based
upon the Ohio Collieries rule. Appellee asserts that the cost
to restore appellant’s property ($101,262.47) exceeds the
SCIOTO, 23CA4030 7
difference in the market value of the property before
($45,484.00) and after the accident($0). Thus, appellee asserts
because the restoration cost exceeds the difference in the
market value of the property before and after the accident,
appellant’s damages are limited to “the difference in the fair
market value of the property immediately before and after the
incident.”
{¶11} Selecting the proper measure of damages is a legal
question that appellate courts review independently and without
deference to a trial court’s decision. Outer Space Signs,
L.L.C. v. Clagg, 4th Dist. Jackson No. 12CA11, 2013-Ohio- 4350,
¶ 7, citing Werr v. Moccabee, 4th Dist. Ross No. 07CA2986, 2008–
Ohio–595, ¶ 8; accord Fuline v. Green, 9th Dist. Summit Nos.
25704, 25936, 2012-Ohio-2749, ¶ 6 (whether a “trial court
correctly applied the law to the facts of a case presents a
question of law” subject to de novo review). Although appellate
courts do not defer to a trial court’s selection of the measure
of damages, appellate courts do defer to the trial court’s
factual findings. Ohio Edison Co. v. Royer, 2018-Ohio-75, 92
N.E.3d 912, ¶ 7 (9th Dist.). As we explain below, we believe
that in the case sub judice the trial court applied the correct
measure of damages to the facts.
SCIOTO, 23CA4030 8
{¶12} As a general matter, the appropriate measure of
damages is the amount that “will compensate and make the
plaintiff whole.” Pryor v. Webber, 23 Ohio St.2d 104, 107, 263
N.E.2d 235 (1970). “Although a party damaged by the acts of
another is entitled to be made whole, the injured party should
not receive a windfall.” Triangle Properties, Inc. v. Homewood
Corp., 2013-Ohio-3926, 3 N.E.3d 241, ¶ 52 (10th Dist.); e.g.,
Chilli Assoc. Ltd. Partnership v. Denti Restaurants Inc., 2023-
Ohio-1978, 217 N.E.3d 137, ¶ 25 (4th Dist.); Henderson v. Spring
Run Allotment, 99 Ohio App.3d 633, 645, 651 N.E.2d 489, 497 (9th
Dist.1994). Consequently, “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.”
Triangle at ¶ 52; accord Columbus Fin., Inc. v. Howard, 42 Ohio
St.2d 178, 184, 327 N.E.2d 654 (1975) (an injured party “should
be neither undercompensated nor overcompensated”).
{¶13} For these reasons, the well-established rule regarding
the measure of damages for permanently or irreparably injured
real property “is the difference in the market value of the
property as a whole, including the improvements thereon, before
and after the injury.” Ohio Collieries, 107 Ohio St. at 248;
accord Martin v. Design Constr. Servs., Inc., 121 Ohio St.3d 66,
2009-Ohio-1, 902 N.E.2d 10, ¶ 14; L.G. Harris Family Ltd.
SCIOTO, 23CA4030 9
Partnership I v. 905 S. Main St./Englewood, L.L.C., 2nd Dist.
Montgomery No. 25871, 2014-Ohio-1906, ¶ 75; Ohio Jury
Instructions, CV Section 315.35 (Rev. 3-28-09). When, however,
the injury is susceptible of repair, the measure of
damages is the reasonable cost of restoration, plus
reasonable compensation for the loss of the use of the
property between the time of the injury and the
restoration, unless such cost of restoration exceeds the
difference in the market value of the property before
and after the injury, in which case the difference in
market value becomes the measure.
Ohio Collieries, 107 Ohio St. at 248–249; Martin at ¶ 14; Ohio
Jury Instructions, CV Section 315.35 (Rev. 3-28-09).
{¶14} In the case at bar, the trial court found that
appellant’s rental property had been completely destroyed and
not susceptible to repair. Thus, we believe the trial court
correctly determined to apply the measure of damages for
permanently or irreparably injured real estate, which is “the
difference in the market value of the property as a whole,
including the improvements thereon, before and after the
injury.” Ohio Collieries Co., 107 Ohio St. at 248. Appellant
nevertheless asserts that the trial court should have looked to
Adcock v. Rollins Protective Services Co., 1 Ohio App.3d 160,
161, 440 N.E.2d 548 (1st Dist.1981), and determined that the
diminution-in-value rule stated in Collieries failed to
SCIOTO, 23CA4030 10
sufficiently compensate appellant for the total loss of its
rental property. In Adcock, the court held:
In an action for temporary damages to a building
that the owner does not plan to sell but intends to use
as his home in accordance with his personal tastes and
wishes, when restoration is practical and reasonable,
the owner is entitled to be compensated fairly and
reasonably for his loss even though the market value of
the building may not have been substantially decreased
by the tort. The owner may recover as damages the fair
cost of restoring his home to a reasonable approximation
of its former condition, and his failure to prove the
difference between the value of the whole property just
before the damage was done and immediately thereafter is
not fatal to the owner’s lawsuit. The diminution in
overall value is relevant to the issue of damages, and
evidence about such diminution, whether presented by the
plaintiff or the defendant, may be taken into
consideration in assessing the reasonableness of
damages.
Id. at 549-50. However, these rules, as stated in Adcock, are
inapplicable to the facts in the case at bar. First, unlike the
temporary damage in Adcock, the case at bar involves a permanent
injury. Second, appellant’s property was a rental property, not
a personal residence as in Adcock. Third, in Adcock the
plaintiff’s personal residence was capable of restoration. In
the case sub judice, by contrast, restoring the rental property
is not practical and reasonable for the simple fact that the
building had been condemned and demolished. Additionally,
constructing a new building is vastly different than “restoring”
a “home to a reasonable approximation of its former condition.”
SCIOTO, 23CA4030 11
Id. at 549. Furthermore, had the trial court awarded appellant
damages to construct a new building, the court would have placed
appellant in a better position than it would have been absent
appellee’s negligence. As we noted earlier, although one of the
goals of damages is to make a party whole, another goal is to
ensure that a party is not overcompensated. In this case, to
award appellant $101,262.47 to construct a new rental property
would result in a windfall, i.e., $55,778.47 more than the
market value of the property immediately before the accident.
We therefore do not agree with appellant that the trial court
applied an incorrect measure of damage for the permanent injury
to its rental property.
{¶15} Appellant further contends that the trial court should
have awarded it the profit for lost rent from the date of the
accident through the date of trial. We recognize that when a
landowner suffers temporary injury to real property, courts have
allowed the landowner to recover damages for “the loss of the
use of the property between the time of the injury and the
restoration.” Athens Co. Regional Planning Comm. v. Simms, 4th
Dist. Athens No. 05CA15, 2006-Ohio-2342, ¶ 18 (citations
omitted). However, as we previously pointed out, appellant’s
property suffered a permanent injury, not temporary. This rule,
therefore, does not apply to the facts in the case sub judice.
SCIOTO, 23CA4030 12
{¶16} In sum, we agree with the trial court’s conclusion
that the proper measure of damages is the difference between the
market value of the property immediately before and after the
accident. Consequently, we disagree with appellant that the
trial court did not apply the correct measure of damages.
{¶17} Accordingly, based upon the foregoing reasons, we
overrule appellant’s assignments of error and affirm the trial
court’s judgment.
JUDGMENT AFFIRMED.
SCIOTO, 23CA4030 13
EDELSTEIN, J., concurring.
{¶ 18} I concur with the majority in finding the fair market
value of the rental property is one appropriate measure of
compensatory damages, but I write separately to address its
application of Ohio Collieries Co. v. Cocke, 107 Ohio St. 238(1923) to exclude consideration of lost rental income.
{¶ 19} The majority applies binding Supreme Court of Ohio
precedent to endorse the trial court’s decision to limit the
damages award to the difference in the fair market value of the
property immediately before and after the accident. While this
measure accounts for the standalone value of the real property,
it fails to consider the lost revenue from the residential
lease. Thus, despite receiving the fair market value for the
property, the appellants have not been restored to their
original position—the general rule that “in a tort action, the
measure of damages is that which will compensate and make the
plaintiff whole.” Robinson v. Bates, 112 Ohio St.3d 17, 2006-
Ohio-6362, ¶ 11.
{¶ 20} The long-espoused rule from Ohio Collieries originates
in the belief that a plaintiff, entitled to the cost of
restoration if damage is temporary and repair is possible,
should also be compensated for their loss of use until the
SCIOTO, 23CA4030 14
property is restored. See Case Leasing & Rental, Inc. v. Ohio
Dept. of Natural Resources, 10th Dist. No. 09AP-498, 2009-Ohio-
6573, ¶ 41 (“As discussed in Ohio Collieries, the measure of
damages for a repairable injury is the reasonable cost to
repair, plus reasonable compensation for the loss of the use of
the property between the time of the injury and the
restoration.”). If the property is being rented, this loss of
use translates to a loss of rental income during that period.
{¶ 21} This distinction between permanent and temporary
injury to property is premised on a legal fiction that ignores
the “loss of use” to the plaintiff between the time of permanent
injury to the property and the eventual receipt of fair market
value compensation. While no restoration period is specifically
contemplated, it is hard to imagine any scenario where the time
between the actual injury and receipt of the compensatory award
is de minimis.3 As such, I believe the longstanding measure of
compensatory damages for permanent injury to real property fails
to make plaintiffs whole.
3 For example, even if a plaintiff were to receive an
insurance payout for the fair market value of their property
within weeks of its destruction, purchase a replacement property
shortly thereafter, and find a tenant for the property shortly
after that, he would sustain an additional financial injury of
at least a few months of rental income.
SCIOTO, 23CA4030 15
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Scioto County Common Pleas Court to carry
this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J.: Concurs in Judgment & Opinion
*Edelstein, J.: Concurs with Concurring Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
*Judge Carly M. Edelstein, Tenth District Court of Appeals,
sitting by assignment of the Ohio Supreme Court in the Fourth
Appellate District.
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.