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Vlcek v. Brogee

Court of Appeals of Ohio, Second District

September 27, 2013

KEVIN VLCEK Plaintiff-Appellant
SCOTT BROGEE, et al. Defendants-Appellees

Civil appeal from Common Pleas Court T.C. NO. 10CV8556

KONRAD KUCZAK, Atty. Reg. No. 0011186, Attorney for Plaintiff-Appellant

JONATHAN S. ZWEIZIG, Atty. Reg. No. 0069381, Attorney for Defendants-Appellees, Bradley M. Muhlenkamp, Alric J. Larson, William Demange aka Bill Demange and Tod Monnier aka Todd Monnier

THOMAS H. PYPER, Atty. Reg. No. 0022981, Attorney for Defendants-Appellees, Kittyhawk Realty, Inc. and Constance Kersey

GREGORY P. GARNER, Atty. Reg. No. 0039111, Attorney for Defendants-Appellees, D. Scott Brogee and Keith Koverman



(¶ 1} Kevin Vlcek, the owner of residential rental property, appeals from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment on Vlcek's claims to the company that managed his property, the company's agent, and former tenants who allegedly caused damage to the home. For the following reasons, the trial court's judgment will be reversed as to Scott Brogee (tenant) and affirmed in part and reversed in part as to Keith Koverman (tenant). In all other respects, the trial court's judgment will be affirmed.

I. Factual and Procedural History

(¶ 2} The following facts are undisputed.

(¶ 3} In 1994, Kevin Vlcek purchased a home located at 2404 Harshman Road in Riverside, Ohio. At that time and until December 2008, Vlcek was on active duty with the military and was frequently stationed in other states.

(¶ 4} In October 2000, Vlcek entered into a contract with Kittyhawk Realty, Inc. to manage the Harshman Road property. Although the parties agree that they had a written contract, neither party has located the agreement. Jane Brame originally managed Vlcek's property for Kittyhawk. In April 2002, Constance Kersey began running the day-to-day operations of Kittyhawk, and she took over management of the Harshman Road property. Kersey communicated with Vlcek and the defendant-tenants regarding the property.

(¶ 5} In May 2005, the property was rented, through Kittyhawk, to a group of young men, Scott Brogee, Alric Larson, Bill Demange, Todd Monnier, and Bradley Muhlenkamp ("the original tenants"), who all signed a one-year written lease.[1] In accordance with the May 2005 lease, the original tenants provided a security deposit of $950. After the one-year written lease expired, the lease renewed as a month-to-month lease.

(¶ 6} Demange lived at the house for only one month; he moved out in June 2005. Monnier lived at the property through early April 2007. Larson lived at the Harshman Road house through August 2007. Muhlenkamp resided at the property from May 2005 through May 2006 and from Christmas 2006 through early August 2007. Brogee lived at the property from May 2005 until October 2008, when the property was vacated.

(¶ 7} Justin Dues moved into the residence and began paying a pro-rata portion of the rent in June or July 2006. Shortly after Larson and Muhlenkamp moved out of the residence in August 2007, Koverman moved into the house and started paying rent. In short, by September 2007, Brogee was the only remaining original tenant, and Dues and Koverman had moved into the residence.

(¶ 8} In late 2007, Vlcek needed to provide a copy of the lease on his Harshman Road property to a mortgage lender as part of his purchase of another home in another state. At that time, Vlcek learned from Kersey that the tenants at the Harshman Road house had a month-to-month lease and that some of the original tenants had moved out. Kersey notified Brogee in early 2008 that she needed to know the names of the current tenants and that the tenants would need to sign a new lease.

(¶ 9} In January 2008, Kersey sent Koverman, Dues and Brogee ("the month-to-month tenants") a new lease, which Kersey had already signed. According to Brogee, he, Koverman, and Dues signed the new lease and mailed it back to Kersey; Kersey disputes that she received it. Vlcek testified in his deposition that he was told by Kersey that the existing tenants would not sign a new lease and that they intended to move out instead.

(¶ 10} In mid-September 2008, a severe windstorm struck the Dayton area. The windstorm caused some damage to the roof and exterior of Vlcek's home. On or shortly before October 1, 2008, Koverman, Brogee and Dues notified Kersey that they were terminating the lease and moving out. The letter included the final month's rent and included a forwarding address for Brogee, where the security deposit was to be sent. The keys to the house were returned to Kersey on November 3, 2008.

(¶ 11} After the house was vacated, Kersey checked the residence for damage, and she completed a Security Deposit Disposition Form. Kersey itemized damage totaling $1, 225. Kersey sent the form to Brogee and informed him that she was keeping the security deposit and that the tenants owed $275. The original and month-to-month tenants dispute that they caused any damage to the property.

(¶ 12} On October 29, 2010, Vlcek brought suit against Brogee, Koverman, Dues, Muhlenkamp, Larson, Demange, and Monnier for breach of their lease by failing to maintain Vlcek's personal and real property and for violating R.C. 5321.05(A)(6) by damaging the property. Dues was never served and did not participate in the action. Muhlenkamp, Larson, Demange, and Monnier denied Vlcek's allegations and filed cross-claims against Brogee, Koverman, and Dues for indemnification and contribution. Brogee and Koverman also denied Vlcek's claims and filed counterclaims against Vlcek claiming that he (Vlcek) wrongfully withheld the security deposit and that his claims were an abuse of process. Brogee and Koverman also brought cross-claims against Muhlenkamp, Larson, Demange, and Monnier for indemnification and contribution.

(¶ 13} In February 2011, Vlcek amended his complaint to include claims against Kersey and Kittyhawk Realty, Inc. for breach of Kersey's duties as property manager and respondeat superior liability, respectively. Kersey and Kittyhawk denied Vlcek's claims and brought cross-claims against their co-defendants. Brogee and Koverman filed an amended answer, asserting six counterclaims against Vlcek, four cross-claims against Kersey and Kittyhawk, and two cross-claims against Muhlenkamp, Larson, Demange, and Monnier. Vlcek subsequently filed a second amended complaint, which included additional claims of negligence and indemnification against Kersey for any liability that might attach to Vlcek arising out of the counterclaims added by Brogee and Koverman in their amended answer.

(¶ 14} The defendants filed motions for summary judgment on Vlcek's claims, and Vlcek moved for partial summary judgment on Brogee and Koverman's counterclaims. We will discuss the motions in more detail below. After considering the parties' motions, the trial court granted all of the parties' motions and certified that its decision was immediately appealable under Civ.R. 54. Vlcek appeals from the trial court's judgment granting summary judgment to Kersey, Kittyhawk, and all of the defendant-tenants on his claims. The trial court granted summary judgment to Vlcek on Brogee and Koverman's counterclaims, but Brogee and Koverman did not appeal that ruling.

II. Summary Judgment Analysis

(¶ 15} Vlcek raises three assignments of error, each of which challenges the trial court's decision to grant summary judgment to the defendants. The assignments of error state:


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