Di Fiore v. Booker

2022 Ohio 2586

• Court: Ohio Court of Appeals
• Decided: July 28, 2022
• Docket: 111094
• Status: Published

Opinion

[Cite as Di Fiore v. Booker, 2022-Ohio-2586.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JEFF DI FIORE, :

Plaintiff-Appellant, :

v. : No. 111094

SHERITA Q. BOOKER, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 28, 2022

Civil Appeal from the Cleveland Municipal Court Housing Court Division Case No. 2019 CVG-009185

Appearances:

Jeff Di Fiore, pro se.

SEAN C. GALLAGHER, A.J.:

Jeff Di Fiore appeals, in part, the trial court’s decision adopting a

magistrate’s decision following a bench trial upon Di Fiore’s claims for damages

stemming from Sherita Q. Booker’s breach of a lease agreement. For the following

reasons, we affirm. In Di Fiore v. Booker, 8th Dist. Cuyahoga No. 108946, 2020-Ohio-

3188, a panel from this district affirmed Booker’s eviction and relinquishment of

possession of the residential property through the forcible entry and detainer action.

At the time of that appeal, the action on damages arising from the breached lease

agreement remained pending. Id. at ¶ 1, fn.1.

Following the remand, an ex parte bench trial occurred after Booker

failed to appear for the noticed proceeding. Before that trial, in a trial statement

required by the magistrate, Di Fiore presented his intended evidence of his damages,

in which he sought actual damages totaling $11,684.21, punitive damages in the

amount of $15,000, and $10,000 in sanctions for the filing of a frivolous action.

After consideration of the trial evidence, the magistrate issued a decision granting

Di Fiore his requested actual damages, less $5,800 he sought to replace vinyl

flooring he claimed was damaged through unnecessary wear and tear, and declining

to award the remaining $25,000 sought for sanctions and punitive damages.

According to the magistrate’s decision, Di Fiore failed to present evidence

supporting those three particular aspects of Di Fiore’s damages. Along with

releasing the $3,950 that Booker had deposited in escrow for rent owed to Di Fiore,

the magistrate granted judgment in Di Fiore’s favor in an additional amount of

$6,197.21 plus costs and statutory interest.

The trial court adopted the magistrate’s decision on the same day it

was filed under the procedure set forth in Civ.R. 53(D)(4)(e)(i), which provides that

the court may enter a judgment adopting the magistrate’s decision during the 14 days permitted by for the filing of objections, and if that occurs, “the timely filing of

objections to the magistrate’s decision shall operate as an automatic stay of

execution of the judgment until the court disposes of those objections and vacates,

modifies, or adheres to the judgment previously entered.” Under that rule, the

failure to file objections within the trailing 14-day period results in a final decision

being rendered and effective. In re D.F., III, 10th Dist. Franklin Nos. 18AP-811 and

18AP-813, 2019-Ohio-3710, ¶ 9. If no objections are timely filed under this

circumstance, the trial court loses jurisdiction to consider belated objections. Id.

Di Fiore nonetheless belatedly objected to the magistrate’s decision

claiming that he did not receive the magistrate’s decision through mail service.

Recognizing the jurisdictional issues, Di Fiore filed a motion for relief from the final

judgment under Civ.R. 60(B) and in that motion, he also requested leave to file his

objections. The trial court granted Di Fiore’s motion in part, granting leave to file

the belated objections under Civ.R. 53(D)(5) but remained silent on the motion for

relief from final judgment. Civ.R. 53(D)(5) provides that “[f]or good cause shown,

the court shall allow a reasonable extension of time for a party to file a motion to set

aside a magistrate’s order or file objections to a magistrate’s decision.” The housing

court considered the merits of the objections but did not vacate the final entry

adopting the magistrate’s decision.

Once the court adopted the magistrate’s decision and no timely

objections were filed, the housing court lost jurisdiction to invoke Civ.R. 53(D)(5) to

consider the belated objections. See In re S.S., 12th Dist. Brown No. CA2021-03- 003, 2021-Ohio-2148, ¶ 22, citing Napier v. Cieslak, 12th Dist. Butler No. CA2014-

12-242, 2015-Ohio-2574, ¶ 6-7, and Losekamp v. Losekamp, 12th Dist. Butler No.

CA2013-11-213, 2014-Ohio-4422, ¶ 19-20. The only mechanism to consider the

objections was through Civ.R. 60(B), but Di Fiore does not assign any error with

respect to that aspect of the underlying proceedings and the housing court did not

vacate the final entry adopting the magistrate’s decision. App.R. 16(A)(7).

Nevertheless, even if we considered the housing court’s decision

reviewing the objections on the merits rather than through the procedural lens,

Di Fiore claims that the magistrate’s refusal to award the $5,800 needed to replace

the damaged flooring was in error based on the trial evidence but did not include a

transcript of the trial proceedings or an affidavit setting forth the factual basis of his

damages as required under Civ.R. 53(D)(3)(b)(iii). Under Civ.R. 53(D)(3)(b)(iii),

when objecting to factual findings in a magistrate’s decision, “whether or not

specifically designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), [the

objection] shall be supported by a transcript of all the evidence submitted to the

magistrate relevant to that finding or an affidavit of that evidence if a transcript is

not available.”

In his objection to the magistrate’s decision, Di Fiore relied on the

evidence attached to his trial statement, in which Di Fiore produced a copy of a

contractor’s quote to replace the flooring along with pictures of the damaged

flooring in the rental unit, to demonstrate that the magistrate’s conclusion based on

the trial evidence was in error. The trial court concluded that the trial statement was not evidence that could be considered upon the objections to the magistrate’s

decision. This conclusion is in harmony with Ohio law.

Generally, an appellate court applies an abuse-of-discretion standard

when reviewing a trial court’s adoption of a magistrate’s decision; however,

questions of law are reviewed de novo. 4030 W. Broad, Inc. v. Neal, 10th Dist.

Franklin No. 20AP-31, 2021-Ohio-3685, ¶ 22, citing Mtge. Bank Corp. v. WWIO,

Ltd., 10th Dist. Franklin No. 16AP-44, 2016-Ohio-7069, ¶ 12. Trial statements filed

in advance of trial are not of evidentiary value to be relied on for the purposes of

objecting to a magistrate’s decision. See Clark v. Clark, 8th Dist. Cuyahoga No.

97294, 2012-Ohio-3249, ¶ 5, citing Inger Interiors v. Peralta, 30 Ohio App.3d 94,

96, 506 N.E.2d 1199 (8th Dist.1986), and State v. Mathia, 11th Dist. Portage No. 92-

P-0035, 1992 Ohio App. LEXIS 6217 (Dec. 11, 1992); MacDonald v. MacDonald, 8th

Dist. Cuyahoga No. 96099, 2011-Ohio-5389, ¶ 38; Thomarios v. Hardy Invest.

Assocs., 9th Dist. Summit No. 28396, 2017-Ohio-7597, ¶ 22, fn. 1, citing Gallatin

Fuels, Inc. v. Westchester Fire Ins. Co., W.D.Penn. No. 02-2116, 2006 U.S. Dist.

LEXIS 1327 (Jan. 13, 2006), and Kent’s Excavating Servs., Inc. v. Leneghan, 2017-

Ohio-1371, 89 N.E.3d 79, ¶ 23 (8th Dist.).

The trial court’s conclusion that Di Fiore failed to properly support

his objections to the magistrate’s factual conclusion is not in error. Without a

transcript or affidavit, the trial court was unable to review the factual foundation of

the magistrate’s decision to determine whether Di Fiore had in fact presented evidence supporting the replacement cost of the damaged vinyl flooring at the trial.

Civ.R. 53(D)(3)(b)(iii).

Nevertheless, we recognize that in the trial statement, Di Fiore

included copies of a quote he received from a contractor to replace the damaged

flooring totaling $5,800 for materials and installation, along with pictures depicting

the damaged flooring in need of replacement.

Even if we assume that Di Fiore presented the same evidence during

trial, which we do solely for the sake of the discussion, Di Fiore provided no evidence

regarding the actual value of the damaged flooring at the time of eviction based on

the expected useful life or depreciated value of the flooring. Ohio Edison Co. v.

Soule, 6th Dist. Sandusky No. S-17-052, 2018-Ohio-4624, ¶ 46. On this point,

Di Fiore stated in the trial statement that the flooring had been installed five years

before the eviction and he expected the flooring to have lasted longer. Di Fiore did

not provide evidence of how much longer the flooring should have lasted, nor any

other indication upon which the value of the flooring as it existed at the time of the

eviction could be determined.

The appropriate measure of damages for breach of contract is the

amount necessary to compensate the party for the actual loss incurred. Britton v.

Connally Roofing & Remodeling, 8th Dist. Cuyahoga No. 73011, 1998 Ohio App.

LEXIS 6115, 5 (Dec. 17, 1998), citing Thatcher v. Lane Constr. Co., 21 Ohio App.2d

41, 44, 254 N.E.2d 703 (10th Dist.1970). “The central principle is that the aggrieved

party should be fully compensated for all losses resulting from the breach, but should not be placed in a better position than if the breach had not occurred.” As a

result, when a party seeks damages to personal property, it “is proper under these

circumstances to take into account depreciation and obsolescence of the property”

in considering the appropriate award of damages. Lepo v. Millik Insulating Co., 11th

Dist. Trumbull No. 2007-T-0118, 2008-Ohio-3510, ¶ 10.

In this type of situation, Di Fiore is not entitled to the entire

replacement cost of the flooring as an appropriate measure of damages. He is only

entitled to the useful life expectancy lost as a result of the accelerated wear and tear

caused by Booker; in other words, the value of the property at the time it was

damaged. For example, if the installed flooring was expected to last ten years, or

depreciated as an asset of the rental property on a ten-year basis, but only lasted five

because of Booker’s conduct, Di Fiore would be entitled to half the $5,800 cost to

replace the flooring. See id. Di Fiore received the benefit of the flooring for the five-

year period before the need for replacement arose and, therefore, cannot recover the

cost to replace the flooring representing value during that time frame. Otherwise,

Di Fiore would be placed in a better position based on the breach.

Because Di Fiore failed to produce evidence tending to demonstrate

the actual value of the damaged flooring at the time of the eviction, the trial court

could not award any of the damages he requested to replace the flooring as a matter

of law. An award of damages must be shown with a reasonable degree of certainty

and cannot be based on speculation, conjecture, or surmise. Elias v. Gammel, 8th

Dist. Cuyahoga No. 83365, 2004-Ohio-3464, ¶ 25, citing Persky, Shapiro, Salim, Esper, Arnoff & Nolfi Co., L.P.A. v. Guyuron, 8th Dist. Cuyahoga No. 77249, 2000

Ohio App. LEXIS 5884 (Dec. 14, 2000). Any determination as to the value of the

damaged flooring would be left to speculation even if we could consider the trial

statement as evidence.

We affirm.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

municipal court, housing court division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________________ SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and EILEEN A. GALLAGHER, J., CONCUR