[Cite as Nunn v. Logan Servs. AC & Heat, 2016-Ohio-3088.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
GARY L. NUNN : : Plaintiff-Appellant : C.A. CASE NO. 26895 : v. : T.C. NO. 14CVF1640 : LOGAN SERVICES AC & HEAT, et al. : (Civil Appeal from : Municipal Court) Defendants-Appellees : : ...........
OPINION
Rendered on the ___20th___ day of _____May_____, 2016.
...........
GARY L. NUNN, 810 Althea Drive, Miamisburg, Ohio 45342 Plaintiff-Appellant
THOMAS P. DOYLE, Atty. Reg. No. 0085418, Fourth & Walnut Centre, 105 E. Fourth Street, Suite 1400, Cincinnati, Ohio 45202 Attorney for Defendants-Appellees
.............
FROELICH, J.
{¶ 1} Gary L. Nunn, pro se, appeals from a judgment of the Miamisburg Municipal
Court, which granted summary judgment to Logan Services, Inc. 1 , and Home Depot
1 The complaint names Logan Services AC & Heat, but the company responded that its proper name is Logan Services, Inc. -2-
U.S.A. on Nunn’s claims. For the following reasons, the trial court’s judgment will be
affirmed.
I. Factual and Procedural History
{¶ 2} According to Nunn’s memoranda in the trial court, Nunn purchased an air
conditioner from Home Depot, and Home Depot contracted with Logan Services AC &
Heat to install it. The work was performed on July 1 and 2, 2014. In order for the air
conditioner to work, the blower motor in the existing furnace needed to be replaced.
Nunn further states that Logan did not correctly install the drain pipe, which caused his
basement to flood. He sustained property damage and hurt his knee while trying to clean
up the water. In October 2014, Nunn attempted to start the furnace. When the furnace
did not work, he incurred additional expenses. Logan would not repair the furnace.
{¶ 3} In November 2014, Nunn filed a small claims complaint against Logan,
alleging that Logan had failed to honor its service agreement and caused damage to his
furnace. Nunn further alleged that his home was flooded due to necessary repairs that
were not performed correctly. The same day, Nunn filed a small claims complaint
against Home Depot, alleging that Home Depot had hired a contractor to install an air
conditioner for Nunn, the services were performed incorrectly, and Home Depot permitted
a person other than the homeowner to sign off on the services. On Nunn’s motion, the
two cases were consolidated, and the case was transferred to the court’s civil docket.
{¶ 4} Nunn subsequently filed an amended complaint, naming both Logan and
Home Depot (“Defendants”). The complaint alleged that Logan Services mis-installed a
drain, which caused Nunn’s basement to flood. Nunn stated that he injured his knee
cleaning water out of the basement. In addition, Nunn alleged that the furnace had been -3-
inoperable since October 2014 and that he was required to purchase space heaters and
ultimately relocated to ensure household heating for his children. Nunn sought damages
of $15,000 for replacement of the furnace, medical bills, space heaters, relocation of
children, mental anguish, and inconvenience.
{¶ 5} On January 9, 2015, the trial court issued a scheduling order. Trial was
scheduled for June 2, 2015. Summary judgment motions were required to be filed no
later than 60 days prior to trial (April 3), and the discovery deadline was set 30 days before
trial (May 3).
{¶ 6} On February 20, 2015, Defendants moved that their requests for admissions
propounded to Nunn be deemed admitted. Two versions of this motion were filed that
day (Doc. #21, Doc. #22). Both motions contained an identical affidavit from Defendants’
counsel, indicating that he had served the requests for admissions via regular mail on
January 9, 2015, and that “[i]t has been over twenty-eight days since a printed copy of
the requests for admissions [was] served upon Plaintiff Gary L. Nunn and no written
answer or objection has been served upon me.” Attached as exhibits to counsel’s
affidavit were (1) the January 9, 2015 correspondence from counsel to Nunn (Exhibit A);
(2) a copy of the request for admissions, with an attachment (Exhibit B); and (3)
correspondence from counsel to Nunn, dated January 30, 2015, which, in part, reminded
Nunn of the February 6, 2015 deadline for his discovery responses (Exhibit C).
Defendants provided a proposed entry for the court.
{¶ 7} The difference between the two motions is in Exhibit B, the copy of the
request for admissions. In Doc. #21, Exhibit B is a blank copy of the request for
admissions. In Doc. #22, Exhibit B is a copy of the request for admissions with -4-
handwritten responses by Nunn.
{¶ 8} In his written responses, Nunn admitted that he had signed a release on
September 3, 2014 related to a July 2, 2014 occurrence at his residence; that release
was attached as an exhibit to both the answered and unanswered copies of the request
for admissions. Nunn also admitted that he had received payment of $3,122.73 for
damages claimed in his amended complaint and that he knew his basement was flooded
prior to his knee injury. The additional requests for admissions generally asked if Nunn’s
various allegations “accrued on account of and/or grew out of” Nunn’s allegation that a
Logan installer mis-installed “the drain which flooded the basement.” Nunn responded
to these requests for admissions, saying “The Amended Complaint plainly states mis-
installed the drain pipe[,] not drain.”
{¶ 9} On March 3, 2015, the magistrate filed an ambiguous document concerning
Defendants’ motion for their requests for admissions to be deemed admitted. The entry
appears to be the proposed entry provided by Defendants, with language indicating that
the magistrate was granting the motion. However, the signature line appears to read
“Overruled” followed by the magistrate’s signature. The court’s docket states that the
motion was overruled.
{¶ 10} On April 1, 2015, Defendants moved for summary judgment against Nunn.2
Defendants argued that all of Nunn’s claims arose out of his allegation that a “Logan
Services installer mis-installed the drain which flooded [his] basement” on June 2, 2014,
at or near his Althea Drive residence. Defendants claimed that Nunn signed a release
2 An identical motion was also filed on April 7, 2015. It appears from the docket that the first motion (Doc. #24) was faxed to the court on April 1, and the original was mailed to the court and filed on April 7 (Doc. #25). -5-
on September 3, 2014, releasing Defendants from all of the claims in his complaint.
Defendants further argued that Nunn could not prove damages, as he had already
received a settlement, or proximate cause, as he was aware of the flooding in his
basement prior to the events precipitating his knee injury. In addition, Defendants
asserted that Nunn’s complaint failed to state any claim against Home Depot.
{¶ 11} Defendants’ motion was supported by the affidavits of their counsel,
Thomas Doyle, and Sandra Heckman, Administrative Director for Logan Services. Doyle
authenticated the request for admissions sent to Nunn and the “late and incomplete
answers” to the request for admissions that Defendants had received. (Defendants’
memorandum indicated that the trial court had deemed their request for admissions to be
admitted.) Heckman stated in her affidavit that Logan has an association and agency
relationship with Home Depot, providing air conditioning-related services. She further
stated that the services provided to Nunn on July 2, 2014, stemmed from that relationship.
{¶ 12} On April 6, Nunn filed a blank copy of his request for admissions. The
certificate of service indicates that Nunn served the request for admissions on Defendants
the same day.
{¶ 13} On April 9, Nunn opposed the summary judgment motion. In his
memorandum, Nunn stated that he had received correspondence from Donegal
Insurance Group regarding this matter, and he signed a release on September 3, 2014.
Nunn stated that he subsequently learned that Logan had installed the air conditioner and
repaired the furnace without a building permit from the City of Miamisburg and, on October
9, 2014, the furnace would not start. Nunn contacted Logan, but the company would not
service the furnace. Nunn subsequently contacted Watkins Heating and Air and learned -6-
that the drain pipe had been installed improperly. Nunn also learned that Logan’s
employees had not properly shut off the gas, the electrical board was dead, and Logan
had not arranged for an inspection, as required by the City. Nunn stated that he would
not have signed the release had he known of these occurrences.
{¶ 14} Nunn attached the following documents to his opposition memorandum: (1)
Miamisburg permit application for heating, air conditioning, gas piping and water heater,
dated July 1, 2014; (2) Home Depot quality checklist and customer approval form, dated
July 2, 2014; (3) an invoice from Watkins Heating and Cooling, dated October 9, 2014;
and (4) correspondence from Donegal Insurance Group to Nunn, dated August 28, 2014.
The Home Depot customer approval form was signed by someone other than Nunn,
allegedly for Nunn.
{¶ 15} Defendants filed a reply to Nunn’s opposition memorandum, repeating
many of their prior arguments. Defendants further asserted that Nunn was improperly
trying to add a new claim based on the lack of a permit. Defendants stated that these
new allegations were “baseless, not supported by proper Civ.R. 56 evidence, and do not
form the basis for a claim as a matter of law.”
{¶ 16} In a single sentence entry, the magistrate granted Defendants’ summary
judgment motion and dismissed the action “for good cause shown.” (Doc. # 29, Apr. 21,
2015).
{¶ 17} On April 27, 2015, Nunn filed a “motion to appeal” the magistrate’s summary
judgment decision, to which Nunn attached additional documents. (Doc. #30.)
Defendants filed an opposition memorandum. Nunn subsequently filed a second
“motion to appeal” the magistrate’s decision, to which Defendants responded both -7-
substantively and by moving to strike the document.
{¶ 18} On June 11, 2015, the trial court overruled Nunn’s objections and sustained
the magistrate’s summary judgment decision. The court found that Nunn had failed to
respond to Defendants’ request for admissions and, as a result, “those Admissions are
deemed admitted, and it becomes almost impossible for the Plaintiff to prevail. As much
as I would like to find in favor of Plaintiff’s Objections, his early error precludes the Court
from doing so.” The court stated that, “[a]fter a thorough and complete review of the
record, including the pleadings filed in this matter,” the objections were overruled and the
summary judgment decision was sustained. The court indicated that its ruling was a final
appealable order.
{¶ 19} Nunn appealed the trial court’s entry. Nunn v. Logan Servs. AC & Heat,
2d Dist. Montgomery No. 26743. We dismissed the appeal for lack of a final appealable
order. We noted that, although the trial court sustained the magistrate’s decision, it did
not make its own order on the matter before the court. Id., Decision and Final Judgment
Entry, Sept. 21, 2015.
{¶ 20} After the dismissal of his first appeal, Nunn filed a “motion to amend
decision,” asking the trial court to amend its decision and allow the matter to proceed to
trial or, alternatively, to enter a decision that is appealable.
{¶ 21} On October 13, 2015, the trial court denied Nunn’s motion to amend its
decision. The court reiterated that it was sustaining the magistrate’s finding granting
summary judgment to Logan Services, Inc. and Home Depot, pursuant to Civ.R. 56(C),
and dismissing Nunn’s complaint against them.
{¶ 22} Nunn appeals the trial court’s October 13, 2015, judgment, raising seven -8-
assignments of error. We will address them in an order that facilitates our analysis.
II. Trial Court’s June 11, 2015 Non-Final Order
{¶ 23} Nunn’s fifth and sixth assignments of error state:
The court erred by rend[er]ing a decision that was not appea[lable]
to the Second Appellate Court.
The court erred that the Plaintiff had to refile this matter with the
Second Appellate [Court].
{¶ 24} In these assignments of error, Nunn asserts that the trial court erred by
failing to provide a final, appealable order on June 11, 2015. As a result of this failure,
Nunn’s first appeal was dismissed, and he was required to file a new appeal after the trial
court issued a final appealable order in October 2015.
{¶ 25} We recognize that the trial court’s failure to issue a final appealable order
on June 11, 2015, has resulted in a several-month delay in having Nunn’s issues heard
before this court, and Nunn has likely incurred some additional expense due to his having
to file a second appeal.
{¶ 26} Nevertheless, the trial court’s failure to issue a final appealable order has
been rectified to this court’s satisfaction with the October 13, 2015 judgment. Although
the trial court did not expressly enter judgment in favor of Logan and Home Depot, it is
apparent that the trial court, itself, was entering judgment in their favor, and we need not
reference the magistrate’s decision to understand the parties’ rights and obligations. The
trial court’s failure to file a final appealable order on June 11, 2015 has no bearing on the
merits of the court’s October 13, 2015 judgment.
{¶ 27} Nunn’s fifth and sixth assignments of error are overruled. -9-
III. Requests for Admissions
{¶ 28} Nunn’s first, second, and fourth assignments of error state:
The court erred by not allowing a motion for admission filed by the
Plaintiff to Logan Services AC & Heat and Home Depot.
The court erred by allowing a motion of admissions filed by the
Defendants[’] attorney and asking for the Plaintiff[’]s Social Security and
other personal information that had nothing to do with this matter.
The court erred by stating in the decision June 11, 2015 that the
reason the judge ruled against the Plaintiff was because the Plaintiff did not
respon[d] to Defendants[’] request for admission when the Plaintiff received
the motion in the mail the Plaintiff noticed the motion ask[ed] for the
Plaintiff[’]s Social Security number and other personal information the
Plaintiff notified the court and the attorney representing the Defendant[s]
that he would not be coming forth with that information.
{¶ 29} In his second and fourth assignments of error, Nunn claims that the trial
court erred in its treatment of his and Defendants’ requests for admissions.
{¶ 30} First, Nunn asserts that the trial court erred by not allowing his “motion for
admission” directed to Defendants. The record contains a copy of Nunn’s first request
for admissions, which Nunn filed with the court and served on Defendants on April 6,
2015. Nunn did not file a motion along with his request for admissions, and he did not
ask the trial court to deem his request for admissions to be admitted. The trial court did
not err in failing to act on Nunn’s April 6, 2015 filing.
{¶ 31} Second, Nunn claims that the trial court erred in deeming Defendants’ -10-
request for admissions to be admitted, focusing on the fact that Defendants’ request for
admissions asked for personal information, such as his Social Security number.
{¶ 32} Nunn states in his “motion to amend decision” that Defendants had sent two
different requests for admissions to him. Nunn indicated that he had responded to the
first request for admissions that he would not provide the personal information requested.
{¶ 33} The request for admissions about which Nunn complains is not in the record
before us, and we find nothing in the record to suggest that the trial court penalized Nunn
for not producing his personal information. According to the record, the only request for
admissions that the trial court addressed was the request for admissions that Defendants’
counsel mailed to Nunn on January 9, 2015. This request for admissions concerned the
release that Nunn signed and whether the allegations in Nunn’s complaint arose out of
the incident identified in the release; Nunn admitted these allegations in his responses.
Nunn’s assignments of error do not concern the requests for admissions sent on January
9, 2015.
{¶ 34} Nunn’s first, second, and fourth assignments of error are overruled.
IV. Summary Judgment Ruling
{¶ 35} Nunn’s third and seventh assignments of error state:
The court erred by allowing the magistrate[’]s decision to be made
part of the record as there was given no reason but stated for good cause
shown.
The court erred by not * * * allowing the Plaintiff a trial in this matter
and was ask[ed] for in the amended motion.
{¶ 36} Nunn’s third and seventh assignments of error challenge the magistrate’s -11-
and the trial court’s granting of Defendants’ summary judgment motion.
{¶ 37} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no
genuine issue as to any material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) reasonable minds, after construing the evidence most strongly in
favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor
Soccer Club, Inc., 82 Ohio St.3d 367, 369–370, 696 N.E.2d 201 (1998). The moving
party carries the initial burden of affirmatively demonstrating that no genuine issue of
material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526
N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials
of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996).
{¶ 38} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.
56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits
or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is
a genuine issue of material fact for trial. Id. Throughout, the evidence must be
construed in favor of the nonmoving party. Id.
{¶ 39} We review the trial court’s ruling on a motion for summary judgment de
novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42.
De novo review means that this court uses the same standard that the trial court should
have used, and we examine the evidence, without deference to the trial court, to
determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond,
2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8. -12-
{¶ 40} First, Nunn complains that the magistrate provided no reasoning for its grant
of summary judgment. Under Ohio’s Rules of Civil Procedure, a magistrate’s decision
may be general, unless findings of fact and conclusions of law are timely requested by a
party or are otherwise required by law. Civ.R. 53(D)(3)(a)(ii). A request for findings of
facts and conclusions of law may be made before a magistrate’s decision is rendered or
within seven days of the filing of the magistrate’s decision. Id.
{¶ 41} Nunn did not request findings of facts or conclusions of law, either before or
any time after the magistrate’s decision. Accordingly, the magistrate was not required to
make findings of fact and conclusions of law, and he was permitted to file only a general
decision granting summary judgment.
{¶ 42} We note that the magistrate’s decision failed to “indicate conspicuously that
a party shall not assign as error on appeal the court’s adoption of any finding factual or
legal conclusion, whether or not specifically designated as a finding of fact or conclusion
of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that
factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).” Civ.R.
53(D)(3)(a)(iii). Nevertheless, Nunn filed timely objections to the magistrate’s decision.
Accordingly, the failure to include this notification was harmless.
{¶ 43} Finally, Nunn claims that the trial court erred in granting summary judgment
against him.
{¶ 44} It is undisputed that on July 2, 2014, Logan Services, Inc., provided services
to Nunn at his residence located on Althea Drive in Miamisburg. In his untimely
responses to Defendants’ request for admissions,3 Nunn agreed that, on September 3,
3 Defendants’ counsel’s affidavit indicates that Nunn’s answers to the request for -13-
2014, he signed a release, which stated in part:
That the Undersigned, being of lawful age, for sole consideration of Three
Thousand One Hundred Twenty-Two Dollars and Seventy Three Cents
($3,122.73) to be paid to Gary Nunn, do/does hereby and for my/ours/its
heirs, executors, administrators, successors and assigns release, acquit
and forever discharge James Cain [a Logan employee], Donegal Mutual
Insurance Company & Logan Services, Inc. and his, her, their, its agents,
servants, successors, heirs, executors, administrators, all other persons,
firms, corporations, associations or partnerships of and from any and all
claims, actions, causes of action, demands, rights, damages, costs, loss of
service, expenses and compensation whatsoever, which the undersigned
now has/have or which may hereafter accrue on account of or in any way
growing out of any and all known and unknown, foreseen and unforeseen
property damage and consequences thereof or to result from the
occurrence on or about 07/02/2014, at or near 810 Althea Drive,
Miamisburg, OH 45342.
Nunn further agreed in response to Defendants’ request for admissions that he had
“received payment of $3,122.73 for the damages claimed in [his] Amended Complaint.”
{¶ 45} In response to requests for admissions that Nunn’s allegations “accrued on
account of and/or grew out of your allegation that a ‘Logan Services installer mis-installed
the drain which flooded the basement’ on July 2, 2014 at or near Althea Drive,” Nunn
admissions were not timely given, and the trial court indicated that the request for admissions were deemed admitted. Nonetheless, in an effort to construe the evidence most favorably to Nunn, we will reference his answers. -14-
stated that the amended complaint stated “drain pipe,” not “drain.” Nunn did not deny
the remaining portions of the requested admissions.
{¶ 46} Requests for admission are deemed admitted unless the party to whom the
request is directed serves upon the party requesting the admission a timely written
answer or objection addressed to the matter. Civ.R. 36(A)(1). If the answer is a denial
of the requested admission, the denial “shall fairly meet the substance of the requested
admission, and when good faith requires that a party qualify his or her answer, or deny
only a part of the matter of which an admission is requested, the party shall specify so
much of it as is true and qualify or deny the remainder.” Civ.R. 36(A)(2).
{¶ 47} Although the magistrate’s ruling arguably overruled Defendants’ motion to
deem their requests for admissions to be admitted, the trial court’s ruling found that “those
Admissions are deemed admitted.” The record supports a conclusion that Nunn did not
timely respond to the request for admissions and that, pursuant to Civ.R. 36(A)(2),
Defendants’ requests for admissions were properly deemed admitted by the trial court.
{¶ 48} Even assuming that the admissions should not be “deemed” admitted and
considering Nunn’s untimely answers (which Defendants submitted as evidence),
Defendants’ evidence established that Nunn’s allegations against Logan resulted from
the services Nunn received from Logan at his residence on July 2, 2014, that Nunn had
already received compensation for his claimed damages, and that the release that Nunn
signed on September 3, 2014 covered the allegations in Nunn’s amended complaint.
{¶ 49} In his response to Defendants’ summary judgment motion, Nunn stated that
he did not discover Logan’s failure to obtain a permit, the fact that the furnace was
inoperable, and the failure to obtain an inspection by the City until after he had signed the -15-
release. Nunn indicated that he would not have signed that release had he known of the
extensive damage to the furnace.
{¶ 50} The release that Nunn signed is a contract. As explained by the Eighth
District Court of Appeals,
A release ordinarily operates to extinguish a right in exchange for some
consideration and effectively operates as an estoppel or a defense to an
action by the releasor. As such, it is a contract between parties,
enforceable at law subject to the rules governing the construction of
contracts. Whether a release operates upon a certain liability depends
entirely upon the intention of the parties, which is to be gathered from the
language of the release and the state of facts then existing. If the parties
to a release intend to leave some things out of a release, then “their intent
to do so should be made manifest.” When the terms of a contract are
unambiguous, courts will not, in effect, create a new contract by finding an
intent not expressed in the language employed by the parties. Moreover,
when the parties have negotiated the release with the assistance of legal
counsel, and both sides have agreed to the language included in the
release, there is an assumption that the parties are fully aware of the terms
and scope of their agreement. (Internal citations omitted).
Weisman v. Blaushild, 8th Dist. Cuyahoga No. 88815, 2008-Ohio-219, ¶ 24, quoted by
Graham v. Boerger, 2d Dist. Darke No. 2014-CA-17, 2015-Ohio-3261, ¶ 14.
{¶ 51} We find nothing ambiguous about the release that Nunn signed. The
release expressly stated that it covered claims “which may hereafter accrue on account -16-
of or in any way growing out of any and all known and unknown, foreseen and unforeseen
property damage and consequences thereof or to result from the occurrence on or about
07/02/2014, at or near 810 Althea Drive, Miamisburg, OH 45342.” (Emphasis added.)
Even if Nunn were unaware of all of the past or future damage when he signed the
release, he released Logan from such claims, absent fraud by Logan in negotiating the
release. Nothing in Nunn’s response indicates that he is not bound by the release or
that the release does not encompass all of his claims against Logan.
{¶ 52} Defendants also claimed that Home Depot was entitled to summary
judgment. They claimed that the release precluded the claims against Home Depot
arising from the same incident and that Nunn failed to state a claim against Home Depot
in his amended complaint. We agree that Nunn’s amended complaint named Home
Depot in the caption, but there were no specific allegations against Home Depot. In
addition, Nunn does not argue that the release does not preclude his claims against Home
Depot.
{¶ 53} Construing the evidence in the light most favorable to Nunn, we conclude
that the trial court did not err in granting summary judgment to Logan and Home Depot.
V. Conclusion
{¶ 54} The trial court’s judgment will be affirmed.
DONOVAN, P.J. and HALL, J., concur.
Copies mailed to:
Gary L. Nunn Thomas P. Doyle Hon. Robert W. Rettich, III