Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
W. Flowers Co., L.PA., Paul Flowers, and Louis E. Grube, for
Ward, L.L.P., James B. Niehaus, and Kelley J. Barnett, for
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, JUDGE.
1} Plaintiff-appellant Simbo Properties, Inc.
("Simbo") appeals from verdicts finding in favor of
defendant-appellee M8 Realty, L.L.C. ("M8") on
matters pertaining to a commercial real estate lease
agreement between Simbo, the owner and landlord, and M8, the
tenant. For the reasons that follow, we affirm.
and Factual History
2} In December 2012, Simbo and M8 entered into a
written lease agreement pursuant to which Simbo leased a
commercial real property to M8. The parties negotiated the
lease agreement to govern M8's tenancy. The initial term
of the lease agreement was for 18 months, ending on June 19,
During M8's tenancy, Simbo claimed that M8 violated
several provisions of the written lease agreement resulting
in the filing of Simbo's lawsuit. In particular, during
M8's tenancy, Simbo claimed M8 caused property damage,
including a blockage in the storm sewer and destruction of a
flag pole. Simbo also claims M8 did not pay real estate taxes
that Simbo claims M8 was required to pay under the lease
agreement. Lastly, Simbo further claimed M8 was subject to an
automatic renewal term of the lease agreement and was
therefore contractually obligated to pay rent from June 2014
through December 2014.
4} Simbo filed a four count complaint against M8 on
January 4, 2016, seeking the following: Count 1 - rent (in
excess of $150, 000); Count 2 - real estate taxes ($32,
158.34); Count 3 - property damage (in excess of $30, 000 for
flag pole and storm sewer); Count 4 - breach of other
pertinent lease provisions. M8 filed its answer and
counterclaim on February 5, 2016. M8's counterclaim
stated M8 provided timely notice to Simbo of its intent not
to renew the lease and therefore no rent was owing. M8's
counterclaim asserted an alternate claim for relief in the
event the trial court found the lease agreement did, in fact,
renew. In the alternative, M8 claimed Simbo breached M8's
right to quiet enjoyment and constructively evicted M8 from
the premises when the commercial property was leased to a new
tenant. M8 filed an amended counterclaim on October 20, 2016.
The amended counterclaim was identical to the original
counterclaim except that paragraph 5 relating to written
notice for the automatic renewal was removed from the amended
pleading. Discovery proceeded, and motions for summary
judgment were filed by both parties. Simbo's motion
sought summary judgment on Counts 1 and 3. M8's motion
sought judgment on Counts 1 and 4 of Simbo's complaint.
On January 24, 2017, the trial court denied Simbo's
motion for summary judgment and granted M8's motion for
summary judgment on Count 4 only. The matter proceeded to
trial on Counts 1, 2, and 3 of Simbo's complaint on July
5} During trial, M8 was granted a directed verdict
on Count 3 alleging that M8 created a storm sewer blockage on
the leased premises. A jury heard the remaining issues and
rendered a verdict in favor of M8 on Count 1, the outstanding
rent due, finding that there was no automatic renewal term.
Simbo had sought an award under Count 1 in excess of $150,
000. This was the largest dollar amount of damages requested
in the lawsuit. A verdict in favor of Simbo was entered on
Count 2, real estate taxes, in the amount of $32, 158.34. On
the remaining issue set forth in Count 3 - the replacement of
the flag pole - a verdict was rendered for Simbo in the
amount of $5, 000. Simbo also prevailed on M8's
counterclaim that sought an unspecified amount of damages.
On August 31, 2017, Simbo filed a motion for additur and
prejudgment interest and a motion for attorney fees and legal
expenses. On the same date, M8 filed a motion to amend its
counterclaim to conform to the evidence and motion for new
trial or remittitur, or for judgment notwithstanding the
verdict as well as a motion for attorney fees.
7} Due to a concern about a potential conflict, the
trial judge recused herself from the case and the case was
transferred to the administrative judge on October 11, 2017,
for "good cause shown." On October 16, 2017, the
administrative judge held a hearing on the postjudgment
motions filed by the parties. The trial court issued its
ruling on the postjudgment motions on January 9, 2018. On the
issue of the award of attorney fees under the lease
agreement, the trial court determined M8 was the
"prevailing party" since it won the
"main" issue in the lawsuit and, as a result, was
entitled to all attorney fees as specified in the lease
agreement. M8's motion to amend its counterclaim to
conform to the evidence and motion for new trial or
remittitur, or for judgment notwithstanding the verdict was
denied. The trial court denied Simbo's motion for additur
and prejudgment interest and its motion for attorney fees and
legal expenses. Simbo filed a motion for reconsideration or
clarification or in the alternative, Civ.R. 60(B) relief from
judgment. This motion was denied on February 1, 2018.
8} On February 5, 2018, Simbo filed an appeal
challenging the trial court's judgment. The appeal was
dismissed since the trial court's judgment was not a
final appealable order where the issue of attorney fees was
not resolved. On remand, Simbo filed a motion for a new trial
arguing the original trial judge's recusal precluded
postjudgment issues from being fairly adjudicated by the
administrative judge. In addition, Simbo filed a brief on the
pending issue of legal fees. A hearing was held on February
21, 2018, on the postjudgment issue of legal fees. On April
25, 2018, the trial court denied Simbo's motion for a new
trial and awarded M8 attorney fees and expenses in the amount
of $238, 335.73. Simbo filed the instant appeal.
9} In its first assignment of error, Simbo argues
that the trial court erred by granting a directed verdict on
Count 3 alleging M8 created a storm sewer blockage.
Specifically, Simbo claimed it introduced sufficient evidence
that M8's actions caused damage to the commercial
property's storm sewer and that the trial court's
judgment on this issue of causation was error.
10} "Appellate review of a motion for a
directed verdict is de novo." Ridley v. Fed.
Express, 8th Dist. Cuyahoga No. 82904, 2004-Ohio-2543,
¶ 82. "A directed verdict is appropriate only where
the party opposing it has failed to adduce any evidence on
the essential elements of his claim." Cooper v.
Grace Baptist Church, Inc., 81 Ohio App.3d 728, 734, 612
N.E.2d 357 (10th Dist.1992). "The question to be
determined involves a testing of the legal sufficiency of the
evidence to take the case to the jury, and is a question of
law, not of fact." Hargrove v. Tanner, 66 Ohio
App.3d 693, 695, 586 N.E.2d 141 (9th Dist.1990).
"Accordingly, the courts are testing the legal
sufficiency of the evidence rather than its weight or the
credibility of the witnesses." Snavely Dev. Co. v.
Acacia Country Club, 8th Dist. Cuyahoga No. 86475,
2006-Ohio-1563, ¶ 20.
11} When evaluating a directed verdict on appeal,
the reviewing "'court must determine whether any
evidence exists on every element of each claim or defense for
which the party has the burden to go forward.'"
Claris, Ltd. v. Hotel Dev. Servs., L.L.C., 10th
Dist. Franklin No. 16AP-685, 2018-Ohio-2602, ¶ 27,
citing Eastley v. Volkman, 132 Ohio St.3d 28,
2012-Ohio-2179, 972 N.E.2d 517, ¶ 25. "A cause of
action for breach of contract requires the claimant to
establish the existence of a contract, the failure without
legal excuse of the other party to perform when performance
is due, and damages or loss resulting from the breach."
Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d
453, 2018-Ohio-15, 97 N.E.3d 458, ¶ 41. The claimed
"'damages must be the natural and proximate result
of the defendant's breach.'" Claris,
Ltd. at ¶ 28, citing Mills v. Best W.
Springdale, 10th Dist. Franklin No. 08AP-1022,
12} Simbo argues it has established sufficient
evidence of proximate cause through owner Mark Sims's lay
testimony and this, absent expert testimony, is sufficient to
defeat a motion for directed verdict. At trial, Sims detailed
a March 2014 incident with a leaky oil tanker and how the
subsequent clean-up caused a blockage in the property's
storm sewer. He testified that M8 used Oil-Dri pellets to
absorb the spilled oil, but M8 failed to clean up the Oil-Dri
pellets in a timely manner. Sims observed the Oil-Dri pellets
being washed into the storm sewer. The commercial property
subsequently flooded in July 2014, which required plumbers to
remedy the situation. The plumbers returned in October 2014
for ongoing plumbing issues.
13} Mark Sims claimed the July and October plumbing
issues were caused by a storm sewer blockage stemming from
the Oil-Dri pellets and their improper disposal by M8 - a
violation of the terms of the lease requiring M8 to not cause
damage to the leased premises. Simbo sought reimbursement
from M8 for the plumbing repairs. No testimony, except
Sims's statements, was introduced regarding the storm
sewer blockage and how M8's actions caused the blockage.
Invoices detailing the plumbing work made no mention of the
Oil-Dri pellets or the source of the blockage. The only
testimony offered was from Mark Sims. The trial court found
that this testimony was insufficient to establish causation.
The trial court stated:
[N]obody, including Mr. Sims said the pellets were - there
were this many of them or this was taken out, or this plugged
this; or nobody talked about how it was that pellets being
down there somehow necessitated or caused the work to be
performed as delineated in these invoices.
And again, I don't see the word - well, let - in fact
there is also talk about a possible break. I don't think
causation - I don't think there has been sufficient
evidence of causation. I'm not discounting Mr. Sims'
testimony to the extent that takes us only one step as to
what he personally saw. Beyond that, there is no testimony as
to some pellets that he saw in the sewer causing the damage
or any damage so as to necessitate the work performed on the
sewers as outlined in these invoices; so I think that really
takes care of the Motion for Directed Verdict on Count 3 as
it relates to the sewer.
14} In order for a party to a contract to recover
damages as a result of another's breach of that contract,
such damages must be caused by the breach, or such damages
would not have occurred had the defendant performed the
promises which he made in the contract. Cammerer Farms v.
Terra Internal., Inc., 12th Dist. Warren No.
CA91-02-020, 1991 Ohio App. LEXIS 6269, 8 (Dec. 23, 1991).
Mark Sims testified to the incident with the Oil-Dri pellets
and the subsequent repairs by the plumber. Mark Sims
testified that the plumber lowered a video camera into the
sewer to determine the source of the clog, and the video
showed the clog was caused by the Oil-Dri pellets. However,
the video footage was not presented at trial to support
Sims's assertion that the pellets caused the blockage.
Photographs obtained during the repairs were introduced as
exhibits, but did not depict Oil-Dri pellets. None of the
plumbing invoices referenced a clog or blockage caused by
Oil-Dri pellets. The cause of the blockage was left to
speculation. Where causation is not adequately proven and the
jury will be left to speculate on this issue, granting a
direct verdict is appropriate. Id. at 11.
15} Simbo argues a directed verdict was granted
because the plaintiff did not introduce expert testimony, but
relied upon the testimony of Mark Sims. Historically, the
Ohio Supreme Court has held that "expert opinions are
not required when the conduct at issue is within the
jury's general experience and knowledge." Baiko
v. Mays, 140 Ohio App.3d 1, 7, 746 N.E.2d 618 (8th
Dist.2000). However, the trial court did not address, nor
will this court, whether expert testimony was required. Simbo
needed to introduce evidence showing causation between the
Oil-Dri pellets and the plumbing issues, yet insufficient
evidence was provided. M8's directed verdict was granted
because Mark Sims's testimony, alone, was insufficient
evidence to establish causation, not because expert testimony
16} Because we conclude that there was insufficient
evidence to show M8's actions caused the storm sewer
blockage, we overrule Simbo's first assignment of error.
17} In Simbo's second assignment of error, Simbo
asserts the trial judge erred, as a matter of law, by
furnishing inapplicable and misleading instructions to the
jury that were incorrect. Specifically, Simbo argues the
trial court's alternative pleading instruction to ...