Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Nos. CV-16-863685, CV-16-863687, CV-16-871849, and
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.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, PRESIDING JUDGE
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.
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.
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.
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.
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 ...