[Cite as Hopkins v. Car Go Self Storage, 2019-Ohio-1793.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Yvette Hopkins,                                     :

                Plaintiff-Appellant,                :

v.                                                  :              No. 18AP-715
                                                                (C.P.C. No. 17CV-7944)
Car Go Self Storage,                                :
                                                             (REGULAR CALENDAR)
                Defendant-Appellee.                 :


                                           D E C I S I O N

                                      Rendered on May 9, 2019


                On brief: Yvette Hopkins, pro se. Argued: Yvette Hopkins.

                On brief: Onda, LaBuhn, Rankin & Boggs Co., LPA,
                Timothy S. Rankin and John P. Miller, for appellee. Argued:
                John P. Miller.

                  APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

        {¶ 1} Plaintiff-appellant, Yvette Hopkins, appeals a decision of the Franklin County
Court of Common Pleas which granted summary judgment to the defendant-appellee, Car
Go Self Storage, on appellant's claims against it. For the reasons that follow, we affirm the
trial court's judgment.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Construing the evidence most strongly in appellant's favor, the underlying
facts are as follows. Appellant entered into a lease agreement with appellee on April 20,
2015 for the purpose of renting a storage unit. That lease agreement included the following
provision:
                No bailment is created expressly or implied hereby and Owner
                assumes no responsibility for any loss or damage to the
                contents stored in the leased space described herein. Occupant
                is responsible for securing and paying for any insurance
No. 18AP-715                                                                           2


               coverage on property in the leased space, and further agrees to
               accept the responsibility of placing wood strips under
               cardboard boxes, furniture and other items that could be
               damaged by dampness; and also, to place Decon Tablets (or
               similar) for protection against rodents. Owner shall not be
               liable to occupant or to Occupant's employees, patrons, visitors
               or licensees for any damage to persons or property caused by
               the negligent act or omission of any other tenant of the building
               or buildings of which the unit is a part, or due to the unit being
               or becoming out of repair, nor for any damages from the want
               of repair of any part of the building of which the unit i[s] a part.
               Occupant accepts the unit as suitable for the purpose for which
               leased and accepts the unit and each and every appurtenance
               thereof and waives patent and latent defects therein, accepts
               the premises "as is" and agrees to indemnify and hold Owner
               harmless for all claims for any such damage. Owner assumes
               no liability for any loss or damage incurred by Occupant;
               however, in the event Owner is found to be grossly negligent or
               intentionally at fault, the Owner's liability shall not exceed the
               sum of fifty and no/100 ($50.00) Dollars, which sum shall
               represent Occupant's liquidated damages. Owner shall not be
               liable for loss or damage resulting from failure, interruption or
               malfunction of utilities, appliances or fixtures, if any provided
               to Occupant under the terms of this Agreement.

(Contract at ¶ 2.)
       {¶ 3} Shortly after signing the agreement, appellant moved her personal
belongings, including furniture, into the unit. She contends that it was dry the day her
belongings were moved into the facility, and she put her furniture onto pallets so that her
belongings would be elevated off the ground. Appellant alleges that she discovered that her
items were covered in mold when she retrieved them or had them retrieved by movers. She
contends that her belongings were in storage until August 11, 2015. (See Appellant's
response to Interrogatory 3, attached to Appellee's Mot. for Summ. Jgmt. at Ex. B.) She
alleges that there was a water leak that allowed water into the unit, causing the mold, and
appellee refuses to take responsibility for the damage to her personal belongings. She
contends that she identified the water leak on August 11, 2015. (See Appellant's response
to Requests for Admission No. 9, attached to Appellee's Mot. for Summ. Jgmt. at Ex. C.)
       {¶ 4} Appellant filed her complaint on September 2, 2017, alleging claims for
breach of contract, negligence, and conversion.
No. 18AP-715                                                                             3


       {¶ 5} Appellee moved for summary judgment on all of appellant's claims. Appellee
supported its motion with the parties' contract and appellant's responses to interrogatories
and requests for admission. Appellant did not respond to the summary judgment motion.
       {¶ 6} The trial court granted appellee's motion for summary judgment on all of
appellant's claims. The trial court found that appellant's contract claim was barred by the
broad waiver she signed when she rented the unit; her negligence claim was barred by the
two-year statute of limitations; and her conversion claim failed because she admitted that
she was not prevented from taking/recovering her property.
       {¶ 7} Appellant appeals that decision. Although she did not assert any specific
assignments of error, she "moves for relief from final judgment rendered in this case on
date of June 12, 2018, pursuant to Civil Rule 60(B)." (Appellant's Brief at 10.) Appellant
filed a number of "exhibits" with her merit brief, including unverified pictures, receipts, a
list of possible symptoms of mold exposure from an unknown source, a letter purporting to
be from appellee's president, unverified e-mails from a person associated with the attorney
general's office, a letter purporting to be from someone in the attorney general's consumer
protection division, several news articles, copies of code sections, documents that appear
to be related to appellant's employment, and other documents of unknown origin or
relevance.
II. STANDARD OF REVIEW
       {¶ 8} An appellate court reviews a trial court's decision to grant summary judgment
under a de novo standard. Brisco v. U.S. Restoration & Remodeling, Inc., 10th Dist. No.
14AP-533, 2015-Ohio-3567, ¶ 19. "When an appellate court reviews a trial court's
disposition of a summary judgment motion, it applies the same standard as the trial court
and conducts an independent review, without deference to the trial court's determination."
Gabriel v. Ohio State Univ. Med. Ctr., 10th Dist. No. 14AP-870, 2015-Ohio-2661, ¶ 12.
Although appellant refers to Civ.R. 60(B) in her appellate brief, that provision applies to
motions for relief from judgment filed in the trial court. It does not provide a basis for
reversing the trial court's judgment on appeal. Rather, this de novo standard of review
applies to our consideration of the trial court's decision to grant appellee's motion for
summary judgment.
No. 18AP-715                                                                              4


        {¶ 9} Pursuant to Civ.R. 56(C), summary judgment is appropriate only when the
moving party demonstrates: (1) no genuine issue of material fact exists, (2) the moving
party is entitled to judgment as a matter of law, and (3) reasonable minds could come to
but one conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made, that party being entitled to have the evidence most strongly
construed in its favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78
Ohio St.3d 181, 183 (1997); A.M. v. Miami Univ., 10th Dist. No. 17AP-156, 2017-Ohio-8586,
¶ 30.
        {¶ 10} The moving party bears the initial burden of informing the trial court of the
basis for the motion and identifying those portions of the record demonstrating the absence
of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). If the
moving party fails to satisfy its initial burden, the court must deny the motion for summary
judgment; however, if the moving party satisfies its initial burden, summary judgment is
appropriate unless the nonmoving party responds, by affidavit or otherwise as provided
under Civ.R. 56, with specific facts demonstrating a genuine issue exists for trial. Id.; Hall
v. Ohio State Univ. College of Humanities, 10th Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 12,
citing Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist.1991 ); You v. Northeast Ohio
Med. Univ., 10th Dist. No. 17AP-426, 2018-Ohio-4838, ¶ 16-17. The nonmoving party may
not rest on the mere allegations and denials in the pleadings but instead must point to or
submit some evidentiary material that shows the existence of a genuine issue of material
fact. Henkle at 735.
        {¶ 11} At the outset, we note that although appellant attached numerous unverified
documents to her appellate brief here, this court cannot consider those documents in
deciding whether appellee was entitled to summary judgment.              As this court has
recognized:

               "Appellate review is limited to the record as it existed at the
               time the trial court rendered judgment." Fifth Third Mtge. Co.
               v. Salahuddin, 10th Dist. No. 13AP-945, 2014-Ohio-3304, ¶ 13;
               accord Guernsey Bank v. Milano Sports Ents., L.L.C., 177 Ohio
               App. 3d 314, 2008-Ohio-2420, ¶ 30, 894 N.E.2d 715 (10th
               Dist.) ("When reviewing a ruling on summary judgment, an
               appellate court restricts its consideration to 'the same
               evidentiary materials that were properly before the trial court
               at the time it ruled on the summary judgment motion.' "). An
No. 18AP-715                                                                               5


               appellate court cannot consider evidence that a party adds to
               the trial court record after judgment and then decide an appeal
               of that judgment based on the new evidence. Salahuddin at
               ¶ 13; Wiltz v. Clark Schaefer Hackett & Co., 10th Dist. No.
               11AP-64, 2011-Ohio-5616, ¶ 13. This prohibition arises from the
               maxim that " 'in an appeal on questions of law the reviewing
               court may consider only that which was considered by the trial
               court and nothing more.' " State v. Ishmail, 54 Ohio St.2d 402,
               405, 377 N.E.2d 500 (1978), quoting Bennett v. Dayton Mem.
               Park & Cemetery Assn., 88 Ohio App. 98, 101, 57 Ohio Law
               Abs. 77, 93 N.E.2d 714 (2d Dist.1950).

Clemens v. Nelson Fin. Group, Inc., 10th Dist. No. 14AP-537, 2015-Ohio-1232, ¶ 24.
Accordingly, we must consider only the evidence that was properly before the trial court
when in granted the motion for summary judgment.
III. LEGAL ANALYSIS
          A. Appellant's Breach of Contract Claim is Barred by the Terms of the
             Contract
       {¶ 12} Appellant asserted a breach of contract claim against appellee in which she
alleges that the parties' contract contained "an implied warranty that the unit was fit and
habitable for storage of property." (Sept. 2, 2017 Compl. at ¶ 30.)
       {¶ 13} To succeed on a breach of contract claim, a plaintiff must demonstrate that:
(1) a contract existed; (2) the plaintiff fulfilled his obligations under the contract; (3) the
defendant breached his obligations; and (4) damages resulted from this breach. O'Brien v.
Ohio State Univ., 10th Dist. No. 06AP-946, 2007-Ohio-4833, ¶ 44, citing Powell v. Grant
Med. Ctr., 148 Ohio App.3d 1, 18 (10th Dist.2002). " '[B]reach,' as applied to contracts is
defined as a failure without legal excuse to perform any promise which forms a whole or
part of a contract, including the refusal of a party to recognize the existence of the contract
or the doing of something inconsistent with its existence." Natl. City Bank of Cleveland v.
Erskine & Sons, Inc., 158 Ohio St. 450 (1953), paragraph one of the syllabus.
       {¶ 14} When construing the terms of a contract, including the duties owed under the
contract, a court's principal objective is to determine the intent of the parties. Cleveland
Constr., Inc. v. Kent State Univ., 10th Dist. No. 09AP-822, 2010-Ohio-2906, ¶ 29. To this
end, "[a] court must presume that the intent of the parties resides in the language that they
used in the contract." Id. "In determining the intent of the parties, the court must read the
contract as a whole and give effect to every part of the contract, if possible." Beasley v.
No. 18AP-715                                                                             6


Monoko, Inc., 195 Ohio App.3d 93, 2011-Ohio-3995, ¶ 30 (10th Dist.), citing Clark v.
Humes, 10th Dist. No. 06AP-1202, 2008-Ohio-640. If the court can determine the parties'
intent from the plain language of the contract, then the court must apply that language as
written and refrain from further contract interpretation. Cleveland Constr. at ¶ 29.
"[C]ourts cannot decide cases of contractual interpretation on that basis of what is just or
equitable." Id. at ¶ 31, citing N. Buckeye Edn. Council Group Health Benefits Plan v.
Lawson, 103 Ohio St.3d 188, 2004-Ohio-4886, ¶ 20.
       {¶ 15} Generally, implied warranties may be disclaimed by contract. See Maritime
Mfrs., Inc. v. Hi-Skipper Marina, 19 Ohio St.3d 93 (1985) (implied warranties can be
disclaimed by the terms of the sales contract); Buskirk v. Harrell, 4th Dist. Pickaway No.
99CA31, 2000 Ohio App. LEXIS 3100, *10 (June 28, 2000) ("implied warranties may also
be effectively disclaimed by 'as is' language in a sales contract"). Likewise, exculpatory
clauses in lease agreements are generally valid absent a showing of unconscionability or
ambiguity. See Conkey v. Eldridge, 10th Dist. Franklin No. 98AP-1628, 1999 Ohio App.
LEXIS 5635, *15-16 (Dec. 2, 1999); Orlett v. Suburban Propane, 54 Ohio App.3d 127 (12th
Dist.1989). "Such exculpatory clauses are to be strictly construed against the drafter unless
the language is clear and unequivocal." Conkey at *15.
       {¶ 16} In Conkey, the plaintiffs brought an action against the owner of a storage
facility after their trailer, containing a car and race equipment, was stolen from space they
were leasing. The parties' rental contract contained a provision titled "Exclusion Of All
Warranties," which disclaimed all warranties, including implied warranties. Conkey at *14-
15. It also contained a broad provision whereby the lessee released the owner from any
liability for property damage for any reason. Id. at *14. We affirmed the trial court's
decision to grant summary judgment to the owner of the storage facility, finding that the
exculpatory language in the parties' contract was valid and enforceable and precluding the
plaintiffs from maintaining their action. Likewise, in Kolanda v. Whyde, 6th Dist. No. H-
04-038, 2005-Ohio-3599, ¶ 14, the broad exculpatory clause in the parties' storage rental
agreement was clear, valid, and enforceable such that it precluded the owners from being
liable for fire damage to the renter's property.
       {¶ 17} The agreement in Kolanda stated:
               The lease agreement is made on the express condition that
               Lessor shall be free from all liability and claims for damages
No. 18AP-715                                                                             7


               by reason of injuries of any kind to any persons, including
               Lessee or any property of any kind whatsoever and to
               whomsoever belonging, including Lessee, from any cause or
               causes whatsoever while in, upon, or in any way connected
               with the premises, during the term of this lease agreement or
               any extension thereof or any occupancy there under. Lessee
               hereby agrees to save and hold Lessor harmless of any liability,
               loss, cost, or obligation on account of or rising out of any such
               injuries or losses however occurring. Lessee shall, at his sole
               expense, maintain his own insurance on the property stored on
               the premises, and lessor shall not be responsible for theft or
               damage, if any, to such property caused by fire, water, or from
               any cause whatsoever.
(Emphasis sic.) Id. at ¶ 14.
       {¶ 18} Here, the parties' contract contains a broad exculpatory clause similar to
those in Conkey and Kolanda. It states:
               No bailment is created expressly or implied hereby and Owner
               assumes no responsibility for any loss or damage to the
               contents stored in the leased space described herein. * * *
               Owner shall not be liable to occupant or to Occupant's
               employees, patrons, visitors or licensees for any damage to
               persons or property * * * due to the unit being or becoming out
               of repair, nor for any damages from the want of repair of any
               part of the building of which the unit i[s] a part. Occupant
               accepts the unit as suitable for the purpose for which leased and
               accepts the unit and each and every appurtenance thereof and
               waives patent and latent defects therein, accepts the premises
               "as is" and agrees to indemnify and hold Owner harmless for
               all claims for any such damage. Owner assumes no liability for
               any loss or damage incurred by Occupant; however, in the
               event Owner is found to be grossly negligent or intentionally at
               fault, the Owner's liability shall not exceed the sum of fifty and
               no/100 ($50.00) Dollars, which sum shall represent
               Occupant's liquidated damages. Owner shall not be liable for
               loss or damage resulting from failure, interruption or
               malfunction of utilities, appliances or fixtures, if any provided
               to Occupant under the terms of this Agreement.
(Contract at ¶ 2, attached as Ex. A to Appellee's Mot. for Summ. Jgmt.) This language is
clear and unambiguous. The agreement contains an extraordinarily broad release of
liability for damage to a lessor's property, including an express waiver of any implied
warranties. Appellant has not argued that the contract provision is ambiguous or that the
provision is unenforceable because it is unconscionable or constitutes an adhesion contract.
No. 18AP-715                                                                             8


Despite the arguable unenforceability of the contract, the court cannot address an
argument that was not raised. Appellant also has not argued or presented any evidence
that appellee was grossly negligent or that appellee acted intentionally to cause damage.
Plainly, appellant disclaimed any implied warranties or other responsibilities for loss or
damage to her personal belongings that appellee might otherwise have owed to her when
she signed the rental agreement. As such, we find that appellee is entitled to summary
judgment on appellant's breach of contract claim, and we affirm the trial court's decision to
grant summary judgment to appellee on appellant's breach of contract claim.
          B. Appellant's Negligence Claim is Time Barred
       {¶ 19} Appellant also alleged in her complaint that appellee was negligent when it
breached a duty of reasonable care owed to her.
       {¶ 20} In general, a cause of action for negligence requires proof of (1) a duty, (2)
breach of that duty, (3) a causal connection between the breach and injury, and (4)
damages. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984); see also
Cameron v. Univ. of Toledo, 10th Dist. No. 16AP-834, 2018-Ohio-979, ¶ 37.
       {¶ 21} Even where there is otherwise a valid claim for negligence, R.C. 2305.10(A)
requires that claims for negligence be filed "within two years after the cause of action
accrues." That statute further provides that "a cause of action accrues * * * when the injury
or loss to person or property occurs." R.C. 2305.10(A).
       {¶ 22} In her complaint and in her responses to discovery requests, appellant alleges
and admits that she discovered the mold on August 10, or August 11, 2015. (See Compl. at
¶ 15; Appellant's response to Interrogatory 3, attached to Appellee's Mot. for Summ. Jgmt.
at Ex. B; Appellant's response to Request for Admission No. 9, attached to Appellee's Mot.
for Summ. Jgmt. at Ex. C.) As such, the evidence properly before the trial court was that,
at the latest, the injury occurred on August 11, 2015. Appellant filed her complaint against
appellee on September 2, 2017, more than two years after she found her belongings were
moldy. Even if appellant did not discover the damage until somewhere near the end of
August 2015, as she argues in her brief on appeal, she still filed her complaint too late.
Because appellant did not file her claim within the two-year statute of limitations, her
negligence claim is time barred.
No. 18AP-715                                                                              9


       {¶ 23} Because appellant's negligence claim is time barred, appellee is entitled to
summary judgment on the negligence claim, and we affirm the trial court's decision as to
this claim.
              C. Appellant's Conversion Claim Fails Because She Was Never
                 Deprived of Her Property
       {¶ 24} Appellant's final claim against appellee is for conversion. In her complaint,
appellant alleges a claim for conversion is "the purposeful or knowing damage or
destruction of property with a permanent loss in value or use." (Compl. at ¶ 45.)
       {¶ 25} "Conversion 'is the wrongful exercise of dominion over property to the
exclusion of the rights of the owner, or withholding it from his possession under a claim
inconsistent with his rights.' " Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-5081,
¶ 15 (10th Dist.), quoting Joyce v. Gen. Motors Corp., 49 Ohio St.3d 93, 95 (1990). This
claim has "three basic elements: (1) a defendant's exercise of dominion or control (2) over
a plaintiff's property (3) in a manner inconsistent with the plaintiff's rights of ownership."
Id.; see also RFC Capital Corp. v. EarthLink, Inc., 10th Dist. No. 03AP-735, 2004-Ohio-
7046, ¶ 61. "If a defendant comes into possession of property lawfully, a plaintiff must
prove two additional elements: (1) that she demanded the return of the property after the
defendant exercised dominion or control over the property, and (2) that the defendant
refused to deliver the property to the plaintiff." Jarupan at ¶ 15.
       {¶ 26} Appellant submitted responses to appellee's discovery requests. In those
responses, appellant responded "ADMIT" to the following requests for admissions:
                Request for Admission No. 30: Admit that You were never
                prevented from accessing Your Personal Property by
                Defendant.
                Request for Admission No. 31: Admit that You never demanded
                from Defendant the return of Your Personal Property.
                Request for Admission No. 32: Admit that Defendant never
                refused Plaintiff's demand to retrieve her Personal Property
                from the Unit.
(See Requests for Admission attached to Appellee's Mot. for Summ. Jgmt. at Ex. C.) By
these admissions, appellee has submitted evidence to the court to meet its burden under
Civ.R. 56 to show that appellant cannot prove her claim for conversion. This evidence
establishes that appellant herself admits that appellee never prevented her from accessing
No. 18AP-715                                                                             10


her personal property or exercised dominion over the property in a manner that was
inconsistent with appellant's rights of ownership.
       {¶ 27} Appellee met its burden to demonstrate an absence of material fact on
appellant's conversion claim. Appellant has failed to meet her reciprocal burden to show
that an issue of material fact exists. Appellee is, therefore, entitled to summary judgment
on appellant's conversion claim, and we affirm the trial court's decision as to this claim.

IV. CONCLUSION
       {¶ 28} As set forth above, appellant's claims against appellee for breach of contract,
negligence, and conversion fail as a matter of law, and appellee is entitled to summary
judgment on those claims. Appellant's breach of contract claim fails because the plain
language of the contract disclaims any implied warranties. Appellant's negligence claim is
time barred, having been filed beyond the two-year statute of limitations. And appellant's
own admissions show that she cannot meet the elements to maintain a claim for
conversion. Although the court is sympathetic to appellant's representations that her
counsel wholly failed to represent her, including failing to respond to the motion for
summary judgment or even inform her that the motion was filed, this court cannot consider
such conduct in its analysis of the issues on appeal. See generally, Swan v. Swan, 10th
Dist. No. 04AP-1089, 2005-Ohio-4636, ¶ 10. The trial court's judgment granting summary
judgment to appellee on appellant's claims against it is affirmed.
                                                                        Judgment affirmed.
                         KLATT, P.J., and DORRIAN, J., concur.
