[Cite as Simpson v. Am. Internatl. Corp., 2014-Ohio-4840.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 101183



                                   NATHANIEL C. SIMPSON, SR.

                                                             PLAINTIFF-APPELLANT

                                                     vs.

                        AMERICAN INTERNATIONAL CORP., ET AL.

                                                             DEFENDANTS-APPELLEES




                                              JUDGMENT:
                                               AFFIRMED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-12-779111


        BEFORE: Celebrezze, J., Boyle, A.J., and Jones, J.

        RELEASED AND JOURNALIZED: October 30, 2014
ATTORNEY FOR APPELLANT

Sylvester Summers
Sylvester Summers, Jr., Co., L.P.A.
7804 Linwood Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEES

Brian Borla
Kenneth A. Calderone
Carol N. Tran
Hanna, Campbell & Powell, L.L.P.
3737 Embassy Parkway
Suite 100
Akron, Ohio 44333
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Appellant, Nathaniel C. Simpson, Sr., appeals the grant of summary judgment in

favor of appellees, American International Corp., d.b.a. Utilicon (“Utilicon”) and the city of

Cleveland (the “City”). Simpson sought approximately $250,000 related to damages to his

home he alleges occurred when Utilicon was replacing curbs, sidewalks, and driveway aprons

under a contract with the City. On appeal, Simpson argues the trial court erred in granting

summary judgment and relying on Utilicon’s expert report. After a thorough review of the

record and law, we affirm the grant of summary judgment.

                              I. Factual and Procedural History

       {¶2} On March 27, 2012, Simpson filed a complaint against the City, Utilicon, and

Utilicon’s insurance provider.   Utilicon and the City answered, but the insurance company

moved to be dismissed from the suit, which the trial court granted. The court held a pretrial

conference and set a discovery schedule and deadline for dispositive motions.       The court

required the parties to submit expert reports by October 31, 2012.

       {¶3} Utilicon filed for summary judgment on December 14, 2012. Attached to its

motion was a properly authenticated expert report from Rudick Forensic Engineering employee

Lorey M. Caldwell, dated December 11, 2012. The City also filed for summary judgment on

February 6, 2013, arguing political subdivision immunity. Simpson filed a motion to respond

and to produce an expert report, which the court granted on March 13, 2013. What would later

be considered Simpson’s opposition to summary judgment was then filed on April 11, 2013, with

two documents attached that Simpson purported were expert reports: A report from Mike

Makarich of I. A. Lewin, P.E. and Associates and a copy of a work order from “Roto Rooter.”
However, those reports did not include accompanying affidavits swearing to their authenticity or

that the findings within were based on personal knowledge.

       {¶4} The trial court scheduled a summary judgment hearing for January 31, 2014.

Representatives of Utilicon and the City appeared for argument, but Simpson did not. The court

then issued a journal entry documenting that fact and setting forth that a ruling on the motions for

summary judgment would be forthcoming. Although Simpson’s filings may have been labeled

otherwise, at his request, the court considered them all as oppositions to the motions for

summary judgment filed by the defendants.

       {¶5} The trial court granted summary judgment in favor of the City and Utilicon on

March 5, 2014 and March 7, 2014, respectively. In separate, lengthy orders addressing each

summary judgment motion, the court found that Simpson had not rebutted the City’s immunity

argument. It also found that Simpson’s negligence claims against Utilicon were not supported.

Simpson then filed the instant appeal assigning three errors:

       I. The trial court committed reversible error when it determined that the exhibits
       and documents attached to [Utilicon’s] motion for summary judgment were
       admissible.

       II. The trial court committed reversible error when it granted [Utilicon’s] motion
       for summary judgment on the grounds that Simpson could not prove his negligent
       construction claim without an expert report.

       III. The trial court abused its discretion when it granted [Utilicon’s] motion for
       summary judgment on the grounds that Simpson did not raise a question of
       material fact as to whether the negligent construction work performed by
       [Utilicon] was the proximate cause of the damages occurred [sic] by Simpson on
       his property.1

                                      II. Law and Analysis


          Simpson’s assigned errors do not challenge the grant of summary judgment to the City, so
       1


that decision will not be addressed in this appeal.
                        A. Standard of Review for Summary Judgment

       {¶6} This court reviews the grant of summary judgment de novo. Brown v. Scioto Cty.

Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153 (4th Dist.1993).

       {¶7} According to Civ.R. 56(C), before summary judgment may be granted, it must be

determined that

       (1) No genuine issue as to any material fact remains to be litigated; (2) the moving
       party is entitled to judgment as a matter of law; and (3) it appears from the
       evidence that reasonable minds can come to but one conclusion, and viewing such
       evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

                    B. Proper Evidence Considered in Summary Judgment

       {¶8} Civ.R. 56(C) provides,

       Summary judgment shall be rendered forthwith if the pleadings, depositions,
       answers to interrogatories, written admissions, affidavits, transcripts of evidence,
       and written stipulations of fact, if any, timely filed in the action, show that there is
       no genuine issue as to any material fact and that the moving party is entitled to
       judgment as a matter of law. No evidence * * * may be considered except as
       stated in this rule.

       {¶9}    Civ.R. 56(E) sets forth the requirements for affidavits submitted on summary

judgment and provides, in relevant part:

       Supporting and opposing affidavits shall be made on personal knowledge, shall
       set forth such facts as would be admissible in evidence, and shall show
       affirmatively that the affiant is competent to testify to the matters stated in the
       affidavit. Sworn or certified copies of all papers or parts of papers referred to in an
       affidavit shall be attached to or served with the affidavit. The court may permit
       affidavits to be supplemented or opposed by depositions or by further affidavits.

“‘Copies of all papers referred to in the affidavit are acceptable if the affidavit indicates that the

copies submitted are true and accurate reproductions of the originals.’” Bank of Am., N.A. v.
Sweeney, 8th Dist. Cuyahoga No. 100154, 2014-Ohio-1241, ¶ 11, quoting Fed. Home Loan

Mtge. Corp. v. Zuga, 11th Dist. Trumbull No. 2012-T-0038, 2013-Ohio-2838, ¶ 15.

          {¶10} Simpson first argues that the expert report submitted by Utilicon was considered by

the trial court when it should not have been because it was not properly incorporated by reference

in a sworn affidavit, and the report was based on hearsay. Precisely, the whole of Simpson’s

argument after setting forth proper statements of the law on the topic is:

          Because [Utilicon] failed to incorporate its expert report by reference through a
          properly framed affidavit, the trial court should have disregarded the purported
          expert report. * * *

          ***

          Here, Lorey Caldwell’s report is based in part on inadmissible hearsay statements
          and it is without any personal observations or first hand knowledge of the actual
          excavation construction work performed by [Utilicon].                Under these
          circumstances, the trial court should have disregarded that report because the
          expert’s opinion is not supported by admissible evidence in the record.

That is the extent of the argument.     It is unclear from these statements to what Simpson is

objecting. The record before this court demonstrates that attached to Utilicon’s motion for

summary judgment was a sworn affidavit from Caldwell referencing his report, which was also

attached, and swearing that it was a true and accurate copy. The affidavit set forth the factual

and scientific basis for the conclusions drawn therein. Simpson’s argument that the report was

not properly before the court under the standards of Civ.R. 56 is contrary to the evidence in the

record.

          {¶11} In Embry v. Admr., Bur. of Workers’ Comp., 10th Dist. Franklin No. 04AP-1374,

2005-Ohio-7021, the Tenth District affirmed the exclusion of an expert report because the

incorporating affidavit did not sufficiently outline the facts on which the expert opinion was

based because it relied on information outside of the medical records that were not included in
the report or affidavit. That is not the case here. The affidavit submitted detailed that Caldwell

conducted a personal inspection of the premises and reviewed photographs and scientific

literature attached to his report.

        {¶12} Simpson’s argument is also unclear as to what hearsay evidence he is referring.

Caldwell’s report is based on an in-person forensic inspection of Simpson’s property, statements

Simpson made to Caldwell, and photographs submitted by Simpson or taken by Caldwell.

Caldwell’s report references statements made by Simpson during the home inspection.

Statements made by Simpson, a party opponent, are not inadmissible hearsay.                Evid.R.

801(D)(2). The report also relies on and attaches photographs provided by Simpson of the

excavation work performed by Utilicon as it was happening. Again, this is not inadmissible

hearsay. These were photographs provided by Simpson in discovery.

        {¶13} The findings and conclusions in the report do not reference inadmissible hearsay

and are based on personal observations, training, and experience. It is unclear from Simpson’s

argument exactly why the report should have been excluded.

        {¶14} Further, Simpson did not object to the report at the trial court level. “Where the

opposing party fails to object to the admissibility of the evidence under Civ.R. 56, the court may,

but need not, consider such evidence when it determines whether summary judgment is

appropriate.”    Bowmer v. Dettelbach, 109 Ohio App.3d 680, 684, 672 N.E.2d 1081 (6th

Dist.1996), citing Watts v. Watts, 6th Dist. Lucas No. L-93-200, 1994 Ohio App. LEXIS 1120

(Mar. 18, 1994); Bergquist v. Med. College of Ohio, 6th Dist. Lucas No. L-87-327, 1988 Ohio

App. LEXIS 2282 (June 10, 1988); Hersch v. E.W. Scripps Co., 3 Ohio App.3d 367, 373, 445

N.E.2d 670 (8th Dist.1981); and Brown v. Ohio Cas. Ins. Co., 63 Ohio App.2d 87, 90-91, 409
N.E.2d 253 (8th Dist.1978). The consideration of such an expert report incorporated in a

properly sworn affidavit does not constitute an abuse of discretion.

       {¶15} The first assignment of error is overruled.

                        C. Expert Evidence of Negligent Construction

       {¶16} Next, Simpson argues that the trial court erred in requiring him to prove negligence

with an expert report. Simpson argues that he presented a clear case against Utilicon that met all

the elements of a negligence action.

       {¶17} In order to recover on the basis of negligence, Simpson must set forth operative

facts establishing that Utilicon owed him a duty of care, that it breached that duty, and that the

breach of duty proximately caused damages to Simpson. Slack v. Fort Defiance Constr. &

Supply, Inc., 10th Dist. Franklin No. 03AP-1268, 2004-Ohio-6520, ¶ 18, citing Shadler v.

Double D. Ventures, Inc., 6th Dist. Lucas No. L-03-1278, 2004-Ohio-4802, ¶ 25, citing Menifee

v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).

       {¶18} The trial court did not require Simpson to produce an expert report in order to

prove his case. Ultimately, Simpson produced three documents he claimed were expert reports.

Even though these documents were not properly authenticated, the trial court considered them in

making its ruling:

               [Simpson] has submitted exhibits in support of his claims against
       [Utilicon], but none of these documents support his argument that the damages or
       problems with his home were proximately caused by [Utilicon.] [Simpson]
       submitted two estimates, from Roto Rooter and Positive Energy Environmental,
       which detail the cost of making the necessary repairs to his home. Neither of
       these documents say anything about [Utilicon] and whether its work caused
       damage to [Simpson’s] home. * * *

              [Simpson] submitted a report from an engineer, Mike Makarich of I. A.
       Lewin, P.E. and Associates. Yet, Mr. Makarich’s report states that his site visit
       occurred three years after [Utilicon’s] concrete replacement work and ‘while the
       cracks could be attributed to the vibrations as a result of the concrete replacement
       work that was done, the cracks can also be attributed to typical expansion and
       contraction or settling of the structure, therefore, the origin of the cracks in the
       walls and ceiling can not be determined by this office at this time.’ Report, P.1,
       paragraph 5. Mr. Makarich did not examine other claimed issues related to the
       sanitary pipe. As written, this report does not constitute evidence that would tend
       to prove [Simpson’s] case, be useful to a jury or admissible at trial.

               [Simpson] also submitted an affidavit of himself, wherein he explains the

       problems with his house and the projected repair costs. In the last sentences,

       [Simpson] states ‘that he is a contractor himself and has had extensive experience

       in construction.’ This sentence, standing only, without any curriculum vitae or

       statements as to what degrees, training and experience he has, if any, is

       insufficient pursuant to Evid.R. 702 to qualify [Simpson] as an expert witness in

       his own trial, assuming a plaintiff could testify as their own expert witness.

       {¶19} In some instances, negligent construction causes of action may not require an

expert to establish breach of a duty or causation.        Here, Simpson is arguing that ground

vibrations caused by excessive use of excavation equipment to break up concrete rubble caused

damage to his foundation, a burst or leaking pipe, and flooding in his basement. Simpson’s

claim that the use of excavation equipment to break up concrete constituted a breach of

Utilicon’s duty to him or a breach of a standard of care is unsupported. Simpson alleged that the

use of a bucket of an excavator to break up concrete was improper. However, he did not

produce any admissible evidence to show that this breached some duty of care or industry

standard.

       {¶20} Getting past the fact that none of Simpson’s expert reports were properly

incorporated by affidavits, his expert witness reports did not tend to show that a material question

of fact remained. The closest he gets is the Makarich report, which could not determine the
source of cracks occurring in the walls and did not address water infiltration. In contrast, the

Caldwell report finds significant decay in a primary support structure of the home, which caused

sagging in the support system and cracking in walls throughout the home.

       {¶21} The Caldwell report documented the failure of a central column supporting the

main beam running the length of the house in the basement. This failure caused the beam to sag

and the house to settle. This caused cracking of plaster or drywall. The cracking of which

Simpson complained was observed by Caldwell to have been previously patched some time ago.

Water infiltration consistent with a burst or leaking underground water or sewer pipe was also

not observed by Caldwell.

       {¶22} Simpson’s unsupported legal conclusions are insufficient to establish the existence

of a genuine issue of material fact. Adkins v. Yamaha Motor Corp., U.S.A., 4th Dist Lawrence

No. 14CA2, 2014-Ohio-3747 ¶ 17, quoting Moore v. Smith, 4th Dist. Washington No. 07CA61,

2008-Ohio-7004, ¶15 (“‘conclusory affidavits that merely provide legal conclusions or

unsupported factual assertions are not proper under Civ. R. 56(E)’ and are insufficient to

establish a genuine issue of material fact”).

       {¶23} Further, none of Simpson’s reports address the water issue. He argues that the

Roto Rooter work order does so, but it only concludes in a brief notation that any water

infiltration could be caused by a leaking water line and advises to contact the water department.

In contrast, the photographs provided by Simpson and relied on by Caldwell document the

replacement of a water stem valve that was damaged by Utilicon during replacement of the curb.

The photos show dry earth being disturbed. There is no evidence in the photos that damage to

the stem valve caused a water leak. Caldwell concluded that Utilicon’s work did not cause a

water line leak because there was no evidence of a leak while the work was being performed, and
there was no evidence of percolating water either at the surface of Simpson’s yard or under the

concrete foundation slab during inspection. Simpson’s own affidavit is the only document that

tends to establish that he experienced flooding in his basement around the time of the work

performed by Utilicon, but nothing tied the two events together.

       {¶24} The trial court’s decision is not in error. An independent review of the evidence

submitted establishes that Utilicon provided admissible evidence showing entitlement to

summary judgment, while the information submitted by Simpson did not rebut that which was

established by the Caldwell report.

       {¶25} Appellant’s second assignment of error is overruled.

                                       D. Proximate Cause

       {¶26} In Simpson’s final assignment of error, he claims the trial court abused its

discretion when it determined that any work by Utilicon was not the proximate cause of damage

to his home. 2   Similar to his second assignment of error, Simpson produced nothing that

demonstrated that any work performed by Utilicon proximately caused any of his damages. He

relies on his affidavit wherein he avers that he felt vibrations and experienced water in his

basement after the work was performed. But he provided no evidence of leaking or burst pipes

or that the vibrations caused cracking in the plaster or drywall in his home.

       {¶27} “Once a [movant] has met its burden of establishing that there is no genuine issue

of material fact for trial, a [nonmoving party] may not rest upon mere allegations or denials in the

pleadings but must present evidence of specific facts demonstrating a genuine issue of material




        Contrary to Simpson’s assignment of error, this court reviews the trial court’s grant of
       2


summary judgment de novo.
fact for trial.”   Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502,

2013-Ohio-1657, ¶ 26.

       {¶28} In response to Caldwell’s report, Simpson was required to produce evidence to

establish that a genuine issue of fact existed. His affidavit and those of his proclaimed experts

did not do so. Therefore, the trial court did not err in granting summary judgment.

       {¶29} Appellant’s third assignment of error is overruled.

                                         III. Conclusion

       {¶30} The trial court did not err in granting summary judgment in favor of Utilicon.

Reasonable minds can come to but one conclusion in this case — that the cracking and damage

to Simpson’s house was caused by settlement of the primary support beam of the house, and no

evidence of a water leak was demonstrated to be caused by Utilicon’s work.

       {¶31} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the common pleas court 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.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, A.J., and
LARRY A. JONES, SR., J., CONCUR
