Tabak v. Select Home Warranty

2024 Ohio 5602, 258 N.E.3d 699

• Court: Ohio Court of Appeals
• Decided: November 27, 2024
• Docket: 113810
• Status: Published

Opinion

[Cite as Tabak v. Select Home Warranty, 2024-Ohio-5602.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

ANDREW TABAK, :

Plaintiff-Appellant, : No. 113810 v. :

SELECT HOME WARRANTY, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: November 27, 2024

Civil Appeal from the Cleveland Heights Municipal Court Case No. CVI-2301478

Appearances:

Nelson Mullins Riley & Scarborough LLP, Zachary J. Adams, and Rachel N. Byrnes, for appellant.

SEAN C. GALLAGHER, P.J.:

Plaintiff-appellant Andrew Tabak (“Tabak”) appeals the judgment of

the Cleveland Heights Municipal Court that adopted the magistrate’s decision in its

entirety and found in favor of defendant-appellee Select Home Warranty (“Select”)

in this breach-of-contract case. Upon review, we reverse the lower court’s judgment

and remand the matter for a hearing on damages. On October 10, 2023, Tabak filed a small-claims complaint against

Select in the Cleveland Heights Municipal Court. Tabak, who represented himself

pro se in the lower-court proceedings, asserted a claim for breach of contract and

requested damages in the amount of $2,567.50. In his complaint, Tabak alleged the

following:

Plaintiff and Defendant completed an agreement on December 5, 2022, for a 74-month home warranty. The Plaintiff paid the total amount of $2,830 for the full term. In the subsequent six months, three claims were submitted to the Defendant, and all three were approved. The Plaintiff received only one payment. The Defendant refused to process additional checks for reimbursement contrary to the terms of the agreement. They have breached their contract. The Defendant [sic] submitted a detailed demand for compensation to the Defendants, which was ignored. Therefore, Plaintiff respectfully asks the court to review the attached exact claims and supporting evidence and award Plaintiff full compensation money owed by Defendant.

Tabak included a four-page document with the headings “History of

the Case”; “Detailed chronology of events”; “Calculation of claimed amount”; and

“Conclusion.” Tabak indicated that he had prepaid for the 74-month home warranty

after lengthy verbal negotiations plus a written email exchange between the parties,

but that he was sent an inaccurate or incomplete contract and was never provided a

corrected contract from Select. Tabak explained the circumstances in obtaining the

home warranty, referred to evidence supporting the existence of a contract and

terms that were accepted by the parties, and detailed the parties’ conduct under the

agreement. Tabak further expanded on the allegations he made in his small-claims

complaint, he referenced other evidence to support his breach-of-contract claim,

and he included an itemized calculation of his claimed damages. The case proceeded to a small-claims hearing/trial on December 4,

2023, before the court magistrate. Select was served in the action but did not file an

answer and failed to appear. Tabak appeared and provided testimony and evidence

to support his claim. Numerous exhibits are in the file that appear to have been

presented. On December 12, 2023, a magistrate’s decision was issued in which the

magistrate recommended judgment in favor of Tabak but limited the damages to

“the amount of $536.29” plus costs and interest.

On December 14, 2023, Tabak filed objections to the magistrate’s

decision. He argued that no reason was provided for awarding less than the actual

loss suffered and that much of the evidence had been overlooked. Tabak stated that

he had “provided paid invoices for repairs totaling $2,015.00, of which the

defendant reimbursed only $500.00[,]” that “none of the service calls were

refunded, which amounts to an additional $90.00[,]” and that he “provided a

detailed accounting of the value of the canceled insurance, but the awarded money

could not include any part of it.” Therefore, Tabak requested a revision of the final

award to compensate him for the actual value of his loss.

On December 15, 2023, the lower court issued an entry in which it

deemed Tabak’s objection as a request for findings of fact and conclusions of law

and instructed the magistrate to submit “a proposed finding of fact and conclusion

of law.” On February 6, 2024, Tabak filed a motion arguing that his objection was

still not addressed, and he requested a hearing and explanation. Thereafter, on February 20, 2024, the magistrate issued a “Factual

Finding and Conclusion of Law.” The magistrate referenced the hearing on

December 4, 2023, noted Select’s failure to appear, and discussed the testimony and

evidence presented by Tabak in support of his claim. The magistrate recognized that

Tabak “presented . . . testimony” that he and Select “entered into a written 5-year

contract . . . on December 4, 2022[,]” that he paid Select $2,820.00, and that Select

“was to provide maintenance to certain home systems and appliances, which were

subject to a $65.00 service call fee and an aggregated policy limit of $11,000.00 per

year.” The magistrate indicated that Tabak testified to three requests for service

repairs, for which he had only been issued a reimbursement of $500 for the first

repair service for which he had paid $675. The magistrate also indicated that Tabak

testified he paid $95 for each of the three service calls, but he claimed he was not

reimbursed $30 for each call. The magistrate noted that Tabak had provided a copy

of the parties’ email correspondence and that Select approved Tabak’s claim “for the

full available Cap of $500.00 for the repair” and referred to “your policy section 10.”

Tabak had provided a copy of the $500 check. The magistrate indicated that Tabak’s

second and third claims were never paid and that Tabak “elected to cancel the

contract and received a check in the amount of $1783.71 on August 8, 2023.”

Despite the undisputed testimony and evidence that had been

provided by Tabak in support of his claim, and the sole objection being to the

amount of damages that had been initially determined, the magistrate concluded

that although Tabak established the existence of some contract, “the essential terms of the contract were not proven” and Tabak could not establish his claim for breach

of contract. The magistrate proceeded to recommend judgment in favor of Select.

On February 21, 2024, Tabak filed objections to the magistrate’s

decision. He argued that he had provided the court with a four-page document and

an additional 17 pieces of evidence to support the relevant terms of the contract.

Tabak asked the court for “a total review of all evidence and a hearing” and argued

that he was entitled to recover his actual loss.

On March 26, 2024, the lower court issued a judgment entry in which

it noted that no transcript had been filed in accordance with Civ.R. 53(D)(3)(a)(ii).

Therefore, the court accepted that the magistrate had properly determined the

factual issues. The court concluded that the facts were insufficient to establish the

essential terms of the contract. Upon an independent review of the objected

matters, the lower court adopted the magistrate’s decision without modification and

entered judgment in favor of Select.

Tabak timely appealed the lower court’s judgment. He raises two

assignments of error for our review, under which he claims the lower court erred in

failing to enforce the parties’ contract and in finding that he did not present evidence

of damages.

In this small-claims action, Tabak alleged a claim for breach of

contract against Select. Select failed to answer or appear in the matter. Pursuant to

Civ.R. 8(D), “Averments in a pleading to which a responsive pleading is required,

other than those as to the amount of damage, are admitted when not denied in the responsive pleading.” Although Tabak did not attach a copy of the contract to his

complaint, he complied with Civ.R. 10(D)(1) by providing the reason for the

omission in the document attached to his complaint. Further, it is evident from the

record that Tabak provided evidence to prove his breach-of-contract claim and to

support his claimed damages.

Additionally, it is important to recognize that the rules of evidence are

inapplicable to small-claims proceedings pursuant to Evid.R. 101(D)(8). See

Manninen v. Alvarez, 2014-Ohio-75, ¶ 19 (12th Dist.). An informal presentation of

evidence is permissible. See id. at ¶ 24. In this matter, numerous exhibits are

included in the file. We also note that Tabak requested a hearing when objecting to

the magistrate’s decision. Though not required, the lower court could have heard

additional evidence in ruling on the objections pursuant to Civ.R. 53(D)(4)(d).

Nonetheless, in its judgment entry, the lower court recognized that a

transcript or an affidavit of the evidence was not submitted with Tabak’s objection

to the magistrate’s decision as required under Civ.R. 53(D)(3)(a)(ii), and the lower-

court judge was required to accept the magistrate’s factual findings as true.

However, contrary to the lower court’s legal conclusion, the facts were sufficient to

establish Tabak’s claim for breach of contract.

As the magistrate recognized, “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., 2018-Ohio-15,

¶ 41. Each of these requirements were met.

The magistrate reviewed the testimony and evidence that were

provided. As the magistrate’s decision reflects, Tabak presented testimony that the

parties entered a written five-year contract and that Tabak had remitted $2,820.

Tabak also testified to the terms of the contract that were agreed to by the parties,

to the conduct of the parties showing the essential terms were accepted, and to

Select’s breach of the contractual agreement. The magistrate’s decision references

email correspondence that was provided. In a coverage-details document, Tabak

was asked by Select to verify the coverage details for the Platinum Care plan, which

included a five-year contract term, payment of $2,820 for coverage, a service call fee

of $65, an aggregate policy limit of $11,000 per year, and a list of appliances covered.

Tabak testified to these terms. The magistrate further recognized Tabak provided

testimony and evidence showing repairs were authorized and service calls were

made, claims were submitted and approved, one reimbursement payment was

issued by Select, and a refund amount was paid upon written cancellation of the

contract by Tabak.

The magistrate’s decision also shows there was testimony and

evidence to support Tabak’s claim of a breach by Select. As the magistrate’s decision

shows, Tabak testified that he made three requests for repairs, only one of which

was reimbursed for “the Full Available Cap of $500” for the repair in accordance

with the policy’s terms. The magistrate’s decision also reflects that Tabak testified that Select failed to pay for his two other claims and had not reimbursed him for

amounts paid over the $65 fee for each service call. Finally, Tabak provided

evidence to support his claimed damages after accounting for the $500

reimbursement and the $1,783.71 refund.

Our review of the record shows that Tabak proved his claim for breach

of contract. Under the circumstances of this case, we find the lower court erred by

adopting the magistrate’s legal conclusion and rendering judgment for Select and by

failing to determine the amount of Tabak’s damages. We conclude that Tabak is

entitled to judgment on his breach-of-contract claim and that the matter should be

remanded to the lower court to assess the amount of damages.1 Tabak’s assignments

of error are sustained.

Accordingly, we reverse the lower court’s decision and remand the

matter to the lower court with instructions to hold a hearing to determine the

amount of Tabak’s damages.

Judgment reversed, case remanded.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

1 We make no determination in this appeal as to the amount of damages to be

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

of the Rules of Appellate Procedure.

_______________________________ SEAN C. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., CONCURS; WILLIAM A. KLATT, J.,* DISSENTS (WITH SEPARATE OPINION)

(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of Appeals.)

WILLIAM A. KLATT, J., DISSENTING:

I respectfully dissent from the majority’s opinion finding error with

the municipal court’s decision and remanding this matter for a new damages

hearing. Rather, I would follow the mandate that “[i]n the absence of a transcript,

we must presume regularity in the trial court proceedings.” Rosett v. Holmes, 2023-

Ohio-606, ¶ 23 (8th Dist.). See also Lakewood v. Collins, 2015-Ohio-4389, ¶ 9 (8th

Dist.) (“Failure to file the transcript prevents an appellate court from reviewing an

appellant’s assigned errors.”); App.R. 9; Wells Fargo Bank v. Rennert, 2014-Ohio-

5292 ¶ 13 (8th Dist.) (“In the absence of a transcript, the trial court must accept the

magistrate’s findings of fact and may only examine the legal conclusions drawn from

those facts.”).

I agree with the majority opinion that the documents in the record

indicate that there was a contract between the parties. The magistrate also found

that the appellant “established the existence of some contract.” Magistrate’s February 20, 2024 Factual Findings and Conclusions of Law. However, the

magistrate made a factual determination that appellant failed to prove the essential

terms of the contract. Without evidence of those essential contract terms, the

magistrate was unable to determine the nature of the breach or damages. Therefore,

the magistrate found that the appellant failed to satisfy his burden of proof. Because

the appellant failed to file a transcript of the trial with his objections to the

magistrate’s decision, the trial court was required to accept the magistrate’s factual

findings. Wells Fargo.

Even if we assume that the appellee is deemed to have admitted a

breach of contract by failing to file an answer pursuant to Civ.R. 8(D) — (a point not

addressed in the magistrate’s Findings of Fact and Conclusions of Law nor raised in

appellant’s brief on appeal), the documents in the record still do not provide

sufficient information to determine what essential terms of that contract were

breached and/or what damages resulted therefrom. It is certainly possible that the

appellant presented testimony at trial in an attempt to explain and/or supplement

the documents he provided to the magistrate. But the magistrate made a factual

determination that appellant failed to satisfy his burden. As noted above, without a

transcript, the trial court was required to accept the magistrate’s factual findings,

and we have no ability to review those factual determinations on appeal without a

transcript or App.R. 9(C) statement of evidence.

Lastly, I note that to succeed on a breach-of-contract claim, a plaintiff

must prove (1) the existence of a contract, (2) plaintiff’s performance under the contract, (3) defendant’s breach, and (4) resulting damages. On Line Logistics, Inc.

v. Amerisource Corp., 2003-Ohio-5381, ¶ 39 (8th Dist.); Lo-Med Prescriptions

Servs, Inc. v. Eliza Jennings Group, 2007-Ohio-2112, ¶ 15 (8th Dist.). Here, based

on the evidence presented at trial, the magistrate found she was unable to provide

relief in damages because the appellant failed to prove what essential terms of the

contract were breached. Because I see no basis to overturn the trial court’s

judgment, I would affirm the trial court’s decision.