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Illuminating Co. v. Cochran

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 28, 2018


          Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-16-863685, CV-16-863687, CV-16-871849, and CV-16-871850

          ATTORNEYS FOR APPELLANTS Lori E. Thomson Mitchell M. Tallan Gallagher, Gams, Pryor, Tallon & Littrell, L.L.P.

          ATTORNEY FOR APPELLEE Amanda K. Rasbach Yurechko Weltman Weinberg & Reis Co., L.P.A.

          BEFORE: Kilbane, P.J., McCormack, J., and Stewart, J.



         {¶1} In this consolidated appeal, defendants-appellants, William Cochran ("Cochran"), William Flynn ("Flynn"), Frederick Bosemann ("Bosemann"), and Eugene Williams ("Williams") (collectively referred to as "defendants"), appeal from the trial court's decision granting summary judgment in favor of plaintiff-appellee, Illuminating Company ("CEI"). For the reasons set forth below, we reverse and remand.

         {¶2} The instant appeal arises out of four separate motor vehicle accidents in which wooden utility poles owned by CEI were damaged. The trial court consolidated the four cases under Cochran's case, Case No. CV-16-863685. The cases were consolidated on the issue of damages because liability is not in dispute as to any defendant. Each of the four defendants were insured by State Farm at the time of their respective accidents and were represented by the same attorney at the trial court. CEI alleged that Cochran owed it $9, 160.90 in damages; Flynn owed it $8, 973.50 in damages; Bosemann owed it $2, 042.92 in damages; and Williams owed it $2, 849.26 in damages. The accidents occurred on both the east side and west side of Cleveland.

         {¶3} CEI moved for summary judgment against the defendants, claiming the above amounts in damages. CEI claimed the full cost to replace the utility poles in its damages calculation, which included both direct and indirect costs. In support of its argument, CEI attached evidence that supported its calculation of indirect costs - commonly referred to as overhead costs. The defendants opposed by filing a combined brief in opposition and a cross-motion for summary judgment. In their motion, the defendants argued that CEI's method for calculating damages is flawed because it relates to depreciation and indirect costs. In support of their motion, defendants attached an affidavit from CPA Keith Hock ("Hock"), who opined that the general objective of any damages calculation is to determine the amount by which a company has been damaged, typically the amount that would be required to put the injured party back in the position they were in prior to the injury. Based upon his training and experience, one method for valuing real property is using depreciation to determine the replacement cost of that property. He further opined that CEI's indirect costs could not have been calculated with reasonable certainty. As a result, Hock calculated specific lesser amounts owed by each defendant to CEI in damages.

         {¶4} The trial court denied defendants' cross-motion for summary judgment and granted CEI's motion for summary judgment, finding that

there is no genuine issue of material fact and after construing the undisputed evidence in a light most favorable to the non-moving parties, reasonable minds can come only to the conclusion that [CEI] is entitled to judgment in its favor as a matter of law against [Cochran] for $9, 160.90 (Case CV-16-863685), against [Flynn] for $8, 973.50 (Case CV-16-863687), against [Bosemann] for $2, 042.92 (Case CV-16-871849), and against [Williams (Case CV-16-871850)] for $2, 849.26 on [CEI's] complaints.
All four defendants were involved in separate motor vehicle accidents which damaged utility poles owned by [CEI]. All four cases were consolidated as the defendants do not dispute liability, and the only issues for the court to determine are regarding the calculation of damages which would be the same for all defendants.
While [CEI] attached evidence supporting the amount demanded of each defendant, defendants presented no evidence pursuant to Civ.R. 56(C), and therefore did not meet their burden to create a genuine dispute of material fact after the burden was shifted to them by [CEI]. Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107, 662 N.E.2d 264 (1996). Further, based on the arguments of the parties, the court finds as a matter of law that the cost of the replacement utility poles should not be amortized or depreciated and that the indirect costs billed by [CEI] to defendants are calculated to a reasonable degree of certainty. See Illuminating Co. v. Burns, 8th Dist. Cuyahoga No. 100235, 2014-Ohio-502, ¶ 10-13.

         {¶5} It is from this order defendants appeal, raising the following two assignments of error for review:

Assignment of Error One
The trial court erred when it disregarded [defendants'] evidence, properly attached as exhibits to their memorandum in opposition, and held [defendants] presented no evidence pursuant to Civ.R. 56(C) and did not create a genuine issue of a ...

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