Loukinas v. Roto-Rooter Servs. Co.

• Decision Date: 23 June 2006
• Docket Number: No. C-050354.,C-050354.
• Citation: 2006 Ohio 3172,855 N.E.2d 1272,167 Ohio App.3d 559
• Court: Ohio Court of Appeals
• Parties: LOUKINAS et al., d.b.a. D & G Automotive, Appellants, v. ROTO-ROOTER SERVICES COMPANY, Appellee.

855 N.E.2d 1272

167 Ohio App.3d 559

2006-Ohio-3172

LOUKINAS et al., d.b.a. D & G Automotive, Appellants, v. ROTO-ROOTER SERVICES COMPANY, Appellee.

No. C-050354.

Court of Appeals of Ohio, First District, Hamilton County.

Decided June 23, 2006.

Benjamin, Yocum & Heather, L.L.C., and Christopher J. Mulvaney, Cincinnati, for appellants.

Rendigs, Fry, Kiely & Dennis, L.L.P., Cynthia M. Chiaro, and George J. Zamary, Cincinnati, for appellee.

GORMAN, Judge.

{¶ 1} Plaintiff-appellants, David and Gail Loukinas, d.b.a. D & G Automotive ("D & G Auto"), appeal from the trial court's order granting summary judgment in favor of defendant-appellee, Roto-Rooter Services Company, on D & G Auto's claims seeking recovery for (1) Roto-Rooter's negligent installation of an oil-interceptor system, (2) personal injuries sustained by Gail Loukinas, (3) David Loukinas's loss of consortium, (4) defamation, and (5) payment due from Roto-Rooter on account. In a single assignment of error contesting the summary judgment, D & G Auto raises three issues: (1) Did the trial court abuse its discretion in finding that D & G Auto had committed spoliation of the evidence? (2) Was the trial court's exclusion of the affidavit of D & G Auto's expert as a sanction for spoliation too drastic? (3) Was summary judgment for Roto-Rooter appropriate? Because the deposition of David Loukinas created genuine issues of material fact concerning whether Roto-Rooter had negligently damaged a drain line during the installation of the oil-interceptor system on D & G Auto's premises, we hold that the trial court erroneously granted summary judgment on that claim. In all other respects we affirm the trial court's judgment.

{¶ 2} D & G Auto is an auto repair shop owned by David and Gail Loukinas. In October 1998, D & G Auto contracted with Roto-Rooter, a plumbing company, for the installation at its business premises of a drain system, an oil interceptor, and three blast-proof lids. In November 1998, Roto-Rooter completed the installation. Six months later, David Loukinas, in preparation for creating additional garage bays, removed the tape used by Roto-Rooter to cover the drains. In January 2000, Roto-Rooter returned to the premises to alleviate the backup of oil and sewage and to drain water. Between August 2000 and January 2001, Roto-Rooter twice returned to D & G Auto to deal with reported backup problems. In March 2001, D & G Auto ordered Roto-Rooter not to return.

{¶ 3} In October 2, 2001, D & G Auto sued Roto-Rooter in common pleas court. In pretrial discovery, the parties agreed that Brody B. Jacobs, a plumber engaged by D & G Auto, could excavate the area where Roto-Rooter had installed the oil interceptor. On August 1, 2003, counsel for the parties, David and Gail Loukinas, and employees of Jacobs and Roto-Rooter assembled by agreement at D & G Auto for the excavation. Roto-Rooter objected to the excavation, however, when it learned that Jacobs had not obtained the required permits and that D & G Auto still had not provided it with the promised protocol for conducting the excavation. In lieu of the excavation, Jacobs ran a television camera through the drain line. The inspection disclosed a collapsed clay drain line. The parties and their counsel agreed to postpone the excavation until Roto-Rooter was given the protocol and Jacobs had obtained the necessary permits. Roto-Rooter specifically requested to be present at the excavation.

{¶ 4} On October 1, 2003, Roto-Rooter moved for summary judgment on all claims in D & G Auto's complaint. On October 16, 2003, D & G Auto filed a Civ.R. 41(A) voluntary dismissal of all claims against Roto-Rooter. At some time after the dismissal of the first complaint, without Roto-Rooter's knowledge or notice to its counsel, D & G Auto had Jacobs excavate the installation site. Roto-Rooter maintains that the excavation occurred in early November 2003. D & G Auto maintains that the excavation occurred on or after October 18, 2004.

{¶ 5} It is undisputed, however, that on November 26, 2003, D & G Auto refiled its complaint against Roto-Rooter. On February 5, 2005, Roto-Rooter again moved for summary judgment, with evidentiary material attached, including the affidavit of Jim Larkin, an engineering service manager for Roto-Rooter. It also moved the trial court to exclude all evidence and opinions based upon the physical evidence that had been spoliated and was no longer available for inspection by Roto-Rooter, including the opinion of D & G Auto's expert. On March 4, 2005, D & G Auto filed its memorandum in opposition, attaching, inter alia, the Jacobs affidavit. After conducting the excavation, Jacobs offered his opinion that Roto-Rooter had performed the installation in an "unworkmanlike and negligent manner" (1) in placing the oil interceptor too close to the clay drain line and (2) in breaking the line with its backhoe bucket during the installation. One month after hearing the arguments of counsel, the trial court granted Roto-Rooter's motions and entered judgment. This appeal followed.

The Summary-Judgment Standard

{¶ 6} A motion for summary judgment shall be granted if the court, upon viewing the inferences to be drawn from the underlying facts set forth in the pleadings, depositions, answers to interrogatories, written admissions, and affidavits in a light most favorable to the party opposing the motion, determines (1) that no genuine issue of material fact remains to be litigated, (2) that the moving party is entitled to judgment as a matter of law, and (3) that the evidence demonstrates that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party opposing the motion. See Civ.R. 56(C); see, also, Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Because summary judgment presents only questions of law, an appellate court reviews the record de novo. See Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243.

{¶ 7} The party moving for summary judgment "bears the initial burden of informing the trial court of the basis for the motion, and of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims." Dresher v. Burt, 75 Ohio St.3d at 293, 662 N.E.2d 264. When, as here, the moving party discharges that burden, the nonmoving party then has a reciprocal burden of specificity and cannot rest on the allegations or denials in the pleadings, but must set forth "specific facts," by the means listed in Civ.R. 56(C) and 56(E), showing that a triable issue of fact exists. Id.

{¶ 8} While only disputes over genuine factual matters that affect the outcome of the suit will preclude summary judgment, trial courts should award summary judgment with caution, being careful to construe the evidence in favor of the nonmoving party. See Welco Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 346, 617 N.E.2d 1129.

{¶ 9} Nowhere in its appellate brief does D & G Auto argue against the entry of summary judgment on its claims for personal injury, loss of consortium, defamation, and payment on an account. To receive consideration on appeal, trial errors must be argued and supported by legal authority and citation to the record. See App.R. 16(A); see, also, State v. Perez, 1st Dist. Nos. C-040363, C-040364, and C-040365, 2005-Ohio-1326, 2005 WL 678947, at ¶ 21-23. Errors not argued in a brief will be regarded as having been abandoned. See App.R. 12(A)(1)(b); see, also, Morton Internatl. v. Continental Ins. Co. (1995), 104 Ohio App.3d 315, 662 N.E.2d 29, fn. 3, citing Hawley v. Ritley (1988), 35 Ohio St.3d 157, 159, 519 N.E.2d 390, and Uncapher v. Baltimore & Ohio Rd. Co. (1933), 127 Ohio St. 351, 356, 188 N.E. 553. Thus, we do not consider any issue not affecting the entry of summary judgment on the claim that Roto-Rooter's negligence caused the flooding problems at D & G Auto's shop.

The Negligent-Installation Claim

{¶ 10} The substantive law governing D & G Auto's negligence claim identifies the factual disputes that are material and thus could preclude summary judgment. See Gross v. Western-Southern Life Ins. Co. (1993), 85 Ohio App.3d 662, 666-667, 621 N.E.2d 412, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202. "To prevail on a negligence claim for failure to perform in a workmanlike manner, a plaintiff must `show by a preponderance of the evidence that [the defendant] failed to exercise ordinary care and skill, and such failure proximately caused the damages.'" Floyd v United Home Improvement Ctr. (1997), 119 Ohio App.3d 716, 719-720, 696 N.E.2d 254, quoting M.L. Simmons, Inc. v. Bellman Plumbing, Inc. (July 6, 1995), 8th Dist. No. 67832, 1995 WL 396349. Here, we cannot disturb the entry of summary judgment below unless D & G Auto can, by evidence properly manifested in the record, identify factual disputes that affect the essential elements of its validly advanced negligent-installation claim.

Spoliation of Evidence

{¶ 11} D & G Auto argues that the trial court erred when it found that by conducting the excavation of the installation site without Roto-Rooter's expert being present, it committed spoliation of the evidence. D & G Auto also contests the trial court's selection of exclusion of the Jacobs affidavit as the sanction for spoliation. While D & G Auto is technically appealing from a summary-judgment ruling, a review of the spoliation issue "requires a determination of whether the trial court abused its discretion in determining an appropriate sanction." Holliday v. Ford Motor Co., 8th Dist. No. 86069, 2006-Ohio-284, 2006 WL 178011, at ¶ 26, citing Transamerica Ins. Group v. Maytag (1994), 99 Ohio App.3d 203, 205, 650 N.E.2d 169.

{¶ 12} "Whether it is raised in the answer as an affirmative defense, in a motion for summary judgment, in a motion to dismiss, or in a Rule 37 motion for...