Martin v. Design Construction Services, Inc.

902 N.E.2d 10, 121 Ohio St. 3d 66
CourtOhio Supreme Court
DecidedJanuary 6, 2009
DocketNos. 2007-2023 and 2007-2024
StatusPublished
Cited by31 cases

This text of 902 N.E.2d 10 (Martin v. Design Construction Services, Inc.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martin v. Design Construction Services, Inc., 902 N.E.2d 10, 121 Ohio St. 3d 66 (Ohio 2009).

Opinion

Moyer, C.J.

I

{¶ 1} The Ninth District Court of Appeals certified the following issue pursuant to Section 3(B)(4), Article IV, Ohio Constitution and App.R. 25: “[I]n an action [67]*67for temporary damages to a noncommercial real property, [is] a failure to prove the difference between the fair market value of the whole property just before the damage was done and immediately thereafter * * * fatal to the claim?”

{¶ 2} For the following reasons, we answer the question in the negative and reverse the judgment of the court of appeals.

II

{¶ 3} This case concerns a home built by Design Construction Services, Inc., appellee. The current owners of the home, Michael' and Jennifer Martin, appellants, sued Design Construction over defects in the home stemming from faulty construction. Specifically, the Martins alleged that the walls and foundation of the attached garage required repair due to Design Construction’s negligence.

{¶ 4} The home was built on a sloping lot. Accordingly, earth under the attached garage had been leveled in preparation for pouring the garage floor. While pushing fill dirt inside the garage with a bulldozer, a Design Construction employee applied too much pressure on the dirt, which, in turn, pressed against the exterior walls, causing two of the concrete-block walls to flex outward. Design Construction attempted to repair the bowed walls by excavating around the walls, straightening them, and repairing the cracks in the walls. Satisfied with these repairs, Design Construction completed the building and sold it in 1998. In 1999, Design Construction hired a company to fill the concrete blocks with grout.

{¶ 5} In the summer of 2000, the Martins bought the home. During pre-sale visits to the home, the Martins were made aware of cracks in the facing of the garage foundation walls. These cracks were noted on the property disclosure form, along with a note that a crack had been fixed in 1999. The home-inspection report, which was produced for the Martins, also noted the cracks and advised that such cracks were not unusual for the age of the house and should be monitored for widening.

{¶ 6} When the cracks began to widen in 2004, the Martins assumed that the damage was cosmetic and attempted to address it accordingly. In the process, they discovered that the blocks making up the wall were crumbling and that the grout filling had never set. Realizing that the necessary repairs were going to be more difficult than anticipated, the Martins sought professional help.

{¶ 7} Subsequent consultations with contractors revealed that the problem with the wall was structural. The Martins contacted Design Construction, in the hope that the builder would attend to the repairs. Design Construction admitted that an accident during construction affected the garage walls, but denied any [68]*68responsibility to make repairs, claiming that the Martins had impaired the condition of the walls by attempting repairs on their own.

{¶ 8} Thereafter, the Martins hired a professional engineer and contractors who found that the subjacent footers were not buried far enough below the frost line. Ultimately, two walls were replaced and the footers were repaired at the Martins’ expense.

{¶ 9} In 2005, the Martins brought suit against Design Construction alleging breach of the warranty to perform in a workmanlike manner, breach of the warranty of habitability, and negligence in the construction of the home. A jury returned a general verdict for the Martins of $11,770, as the reasonable cost to repair the defects. The jury also answered interrogatories, two of which are relevant for our purposes. In one, the jury found that Design Construction had been negligent. In the other, the jury found that the Martins had not proved a diminution in the value of their home due to the defects in construction.

{¶ 10} Design Construction appealed, asserting that the Martins had failed to prove a necessary element of damages, namely the difference in the market value of the property with and without the defect. The Ninth District Court of Appeals agreed, holding that proof of the diminution in value of the home was required for a claim of temporary damage to property, i.e., damage that can be repaired, and that the Martins failed to prove such a diminution in value. Accordingly, the court of appeals reversed the trial court’s award of damages.

{¶ 11} The Ninth District Court of Appeals found its judgment to be in conflict with the judgments of the First District Court of Appeals in Adcock v. Rollins Protective Servs. Co. (1981), 1 Ohio App.3d 160, 1 OBR 471, 440 N.E.2d 548, and the Eighth District Court of Appeals in Krofta v. Stallard, Cuyahoga App. No. 85369, 2005-Ohio-3720, 2005 WL 1707013, and certified a conflict to this court. We recognized the conflict and accepted the Martins’ appeal. Martin v. Design Constr. Servs., 116 Ohio St.3d 1471, 2008-Ohio-153, 879 N.E.2d 781.

Ill

{¶ 12} The issue presented is whether in an action for temporary damage to property, the plaintiff must prove diminution in the market value of the property attributable to the temporary damage. We hold that plaintiffs need not prove diminution in value in order to be awarded damages for temporary injury to property.

{¶ 13} This court first established the measure of damages for temporary injury to real property in Ohio Collieries Co. v. Cocke (1923), 107 Ohio St. 238, 140 N.E. 356. In Ohio Collieries, two coal companies were found liable for damage to above-ground property caused by the removal of coal underneath — a [69]*69so-called subsidence case. Our opinion regarding the proper measure of damages caused by the removal of subjacent support included the following statement:

{¶ 14} “If the injury is of a permanent or irreparable nature, the measure of damages is the difference in the market value of the property as a whole, including the improvements thereon, before and after the injury. If the injury is susceptible of repair, the measure of damages is the reasonable cost of restoration, plus reasonable compensation for the loss of the use of the property between the time of the injury and the restoration, unless such cost of restoration exceeds the difference in the market value of the property before and after the injury, in which case the difference in market value becomes the measure.” Ohio Collieries, 107 Ohio St. at 248-249, 140 N.E. 356.

{¶ 15} Applying the Ohio Collieries rule to this case, the Ninth District held that the Martins were not entitled to recover the cost of their repairs, because they had failed to prove diminution in value attributable to the injury. Martin v. Design Constr. Servs., Inc., Summit App. No. 23422, 2007-Ohio-4805, 2007 WL 2712220, ¶ 23. Although the court of appeals recognized that the Ohio Collieries rule could be applied with “some flexibility,” the court nevertheless held that diminution in value was a “limiting factor” on the damages award, such that in no case could an award be “grossly disproportionate” to the diminution in value. Id. at ¶ 19-20.

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Bluebook (online)
902 N.E.2d 10, 121 Ohio St. 3d 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-design-construction-services-inc-ohio-2009.