Petroff v. Lebeau

[Cite as Petroff v. Lebeau, 2015-Ohio-84.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CRAIG PETROFF, ET AL. : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiffs-Appellees : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
GINA LEBEAU : Case No. 2014CA00065
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2013CV02423
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 12, 2015
APPEARANCES:
For Plaintiffs-Appellees For Defendant-Appellant
CARI FUSCO EVANS DONALD GALLICK
4505 Stephen Circle, NW 190 North Union Street
Suite 100 Suite 102
Canton, OH 44718 Akron, OH 44304
Stark County, Case No. 2014CA00065 2
Farmer, P.J.
{¶1} On August 28, 2013, appellees, Craig and Nancy Petroff, filed an eviction
action against appellant, Gina LeBeau, for non-payment of rent. On September 13,
2013, appellant filed a counterclaim alleging damages due to harmful toxins in the rental
home.
{¶2} A jury trial commenced on March 25, 2014. The jury found in favor of
appellees on their complaint in the amount of $1,288.98, and against appellant on her
counterclaim.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE JURY VERDICT FINDING THAT DEFENDANT FAILED TO PROVE
THAT PLAINTIFFS BREACHED THEIR OBLIGATIONS UNDER R.C. 5321.04 IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
II
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT BARRED
APPELLANT FROM INTRODUCING A MEDICAL EXPERT AT TRIAL."
I
{¶6} Appellant claims the jury's verdict on her counterclaim was against the
manifest weight of the evidence. We disagree.
{¶7} On review for manifest weight, the standard in a civil case is identical to
the standard in a criminal case: a reviewing court is to examine the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of witnesses and
Stark County, Case No. 2014CA00065 3
determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered." State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). See
also, State v. Thompkins, 78 Ohio St. 3d 380, 1997-Ohio-52; Eastley v. Volkman, 132
Ohio St. 3d 328, 2012-Ohio-2179.
{¶8} Appellant's counterclaim alleged appellees failed to comply with R.C.
5321.04 by renting a home "inundated with harmful toxins" (Count One), a breach of
quiet enjoyment and constructive eviction (Count Two), and failure to upkeep premises
(Count Three). Appellant argues she presented sufficient direct testimony of the mold in
the home and the resulting compensatory damages. Appellant argues her expert on
mold, Timothy Rollins, established the existence of mold in the home, and that she paid
$1,800.00 to Mr. Rollins to dispose of her contaminated personal property which
amounted to over $95,000.00. T. at 244, 300-307, 311, 315-316, 329-330, 347, 350,
418, 477, 482; Counterclaim Exhibits 2 and 10.
{¶9} Appellees both testified the home in question was their personal residence
for about twenty-three years, and they had never experienced any mold related
problems. T. at 8-9, 253. After moving out, appellees rented the home to the Tovar
family for one year. T. at 11, 254. The Tovars never complained of mold. T. at 12,
255. After the Tovars moved out, appellees rented the home to appellant. Prior to
moving in, appellant requested changes, including new hook-ups for her high efficiency
washer/dryer and the internet. T. at 16-18. Upon moving in, appellant complained
about the tub and toilet and mice in the house. T. at 22, 24, 27. Appellant had given
appellees checks for a security deposit and first month's rent, but told them to hold the
Stark County, Case No. 2014CA00065 4
check for the first month's rent. T. at 20-21, 27-30. Appellant complained of a "strong
oppressive spirit in the home" and having a reaction to the well water, but never
mentioned any mold. T. at 30, 32. From August 6 to 22, 2013, appellee Craig Petroff
was at the home making the requested changes while appellant was present, and she
never mentioned any mold. T. at 37. After the checks were denied by the bank for
insufficient funds, appellees filed a three-day notice of eviction. T. at 37-38, 259.
Thereafter, appellant asserted there was mold in the home. T. at 38.
{¶10} Appellees' mold expert, Jerry Miller, inspected the home on October 1,
2013. T. at 132. He immediately conducted a breath test to determine any odor. T. at
135. He did not notice anything that struck him regarding the smell of the home. T. at
136. He then conducted an air sampling test to determine if there was a contamination
problem and then followed up with a visual walk-through. T. at 133, 135. He noticed "a
little bit of growth" on the basement walls, but "nothing astronomical," and visible mold
underneath the insulation in the attic. T. at 137. The results of the air sampling test
indicated that any mold present in the basement had not gotten into the air. T. at 144;
Plaintiffs' Exhibit 15. Mold levels for the basement and main level were "not enough to
be of concern in our opinion." T. at 146. The visible mold in the attic had not impacted
the rest of the home. T. at 150. In summary, the basement and the main floor were
fine, but the attic could potentially cause a problem for a person allergic to Penicillin. T.
at 152. Mr. Miller explained a tape lift test is generally conducted after an air sampling
test to identify the exact species of mold present. T. at 153-154.
{¶11} Appellant testified to "very strong fatigue," headaches, vomiting, and
nosebleeds after moving into the home. T. at 442. She was in the home for twenty
Stark County, Case No. 2014CA00065 5
days before she vacated the home. T. at 232. She left before the three-day eviction
notice was taped to the door. T. at 233. She testified to disposing over $95,000.00 in
personal property due to mold contamination. T. at 418, 477; Counterclaim Exhibit 2.
{¶12} Appellant's expert, Mr. Rollins, examined the home around September 13,
2013. T. at 285. He first conducted a visual inspection and then a tape lift test. T. at
283-284. If no mold is found, "then you would do an air test." T. at 284. He visually
observed mold on the basement walls, "some confirmation of mold" on the main level,
and large quantities in the attic. T. at 288, 292, 302; Counterclaim Exhibit 1. The tape
test results indicated the presence of mold in the home. T. at 299-300, 303, 305-307;
Counterclaim Exhibit 10. Mr. Rollins rated the home a "Level 4" which is "pretty much"
the worst. T. at 304. He stated the smell in the home was "quite pungent." T. at 305.
He testified the home was uninhabitable due to the presence of mold. T at 310-311,
329. Mr. Rollins testified to throwing out many items on behalf of appellant, but did not
take an inventory and couldn't "list all of them by memory." T. at 336. He could not
produce any receipts from Kimble Recycling where he had disposed of the items. T. at
349. He testified he saw several objects with mold on them; however, he could not say
what the objects were nor did he produce photographs of visible mold on objects. T. at
337-340. Mr. Rollins did not take swab tests for mold on any of the objects he advised
appellant to throw away because "I know there is mold on them." T. at 340. He
explained spores settle on items so he made a logical assumption that the objects
contained mold. T. at 341. Mr. Rollins did not do any testing to determine if the mold
was producing toxins. T. at 344.
Stark County, Case No. 2014CA00065 6
{¶13} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison, 49 Ohio St. 3d 182 (1990). The trier of
fact "has the best opportunity to view the demeanor, attitude, and credibility of each
witness, something that does not translate well on the written page." Davis v.
Flickinger, 77 Ohio St. 3d 415, 418, 1997-Ohio-260.
{¶14} The jury was presented with competing expert opinions and could accept
or reject both or one as they are the trier of facts. This, coupled with appellant's failure
to complain about the mold when she liberally complained about other issues, her
obvious abuse of appellees' good nature in presenting them with insufficient checks,
and her failure to complain about mold until after the eviction action was initiated, lead
us to the conclusion that the jury did not lose its way in finding against appellant on her
counterclaim.
{¶15} Assignment of Error I is denied.
II
{¶16} Appellant claims the trial court abused its discretion in barring the
introduction of any medical experts at trial. We disagree.
{¶17} By pre-trial order filed October 22, 2013, the trial court set the discovery
cut-off date for January 10, 2014. On January 2, 2014, the date was extended to
February 12, 2014. On February 4, 2014, appellant requested an additional extension.
By magistrate's order filed February 12, 2014, the request was denied. A mediation
conference took place on February 12, 2014. Appellant failed to appear. Thereafter, a
trial date was set for March 24, 2014.
Stark County, Case No. 2014CA00065 7
{¶18} On March 14, 2014, appellees filed a motion in limine to bar any medical
experts from testifying at trial as appellant failed to disclose any during discovery. In her
response filed March 21, 2014, appellant stated she was "intending to recover her
medical expenses directly related to the treatment of her condition while in the subject
property." She stated she "will be presenting the medical billing for the purpose of
recovering any and all costs consequential to the Counterclaim Defendant's negligence
– including Counterclaimant's requiring of medical attention and care as compensatory
damages of her claims." In her trial brief filed March 24, 2014, appellant stated she
"sought medical care as Mr. Rollins explained the symptoms and side effects of mold
exposure, which matched with certain symptoms that Ms. LeBeau and her son were
experiencing including dizziness, skin rashes and lung congestion. Ms. LeBeau sought
medical care, which caused her damages." She indicated she would "offer evidence to
establish the monetary damages incurred, as well as the significant pain & suffering,
humiliation and disruption of life activities occasioned by the Petroffs' negligence and
failure to maintain their premises." She stated "Dr. Debra Gargiulo will testify as to Ms.
LeBeau's appointments with her office at Green Primary Care and any prescriptions
written in response to Ms. LeBeau's visit." Also, "Mr. Byran Lewis will testify as to Ms.
LeBeau's appointments with his office at Stark County Family Medicine and any
prescriptions written in response to Ms. LeBeau's visit."
{¶19} On the day before the trial commenced, the trial court granted appellees'
motion in limine and excluded any "medical testimony as to mold as no medical expert
was provided in discovery." See, Judgment Entry filed March 24, 2014.
Stark County, Case No. 2014CA00065 8
{¶20} "An order granting or denying a motion in limine is a tentative, preliminary
or presumptive ruling about an evidentiary issue that is anticipated. An appellate court
need not review the propriety of such an order unless the claimed error is preserved by
a timely objection when the issue is actually reached during the trial." State v. Leslie, 14
Ohio App. 3d 343, 344 (2nd Dist.1984). There is no evidence that appellant sought to
introduce expert medical testimony during trial.
{¶21} The counterclaim, filed five months prior to the discovery cut-off date,
sought compensatory damages for medical care costs and suffering. Appellant's failure
to disclose any medical experts cannot be impugned to appellees.
{¶22} Assignment of Error II is denied.
{¶23} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
SGF/sg 120