[Cite as Woehler v. Brandenburg,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

MARK J. WOEHLER, : CASE NO. CA2011-12-082 Plaintiff-Appellant, : OPINION : 11/19/2012 - vs - :

CRISTI L. BRANDENBURG, :

Defendant-Appellee. :

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2010-CVH-1560

Michael J. Chapman, One West Fourth Street, Cincinnati, Ohio 45202, for plaintiff-appellant

Donald W. White, 237 Main Street, Batavia, Ohio 45103, for defendant-appellee

S. POWELL, P.J.

{¶ 1} Plaintiff-appellant, Mark J. Woehler, appeals the judgment of the Clermont

County Common Pleas Court denying his request for certain damages in his breach-of-

contract action against defendant-appellant, Cristi L. Brandenburg. We affirm the trial court's

judgment.

{¶ 2} Mark and Cristi were divorced in 2004. Following the divorce, Cristi and the

parties' three minor children lived at the property located on Miami Woods Drive in Loveland, Clermont CA2011-12-082

Ohio. The property was titled solely in Cristi's name.

{¶ 3} In June 2007, Mark and Cristi executed an agreement in which Cristi agreed to

add Mark to the title of the property for the purpose of using his credit, assets and income to

assist her in obtaining a mortgage loan on the property. She also agreed to make all

mortgage, tax and insurance payments on the property during the time she has sole

possession of it and to notify Mark prior to any items due and payable on the property

becoming more than 30 days delinquent. She further agreed to convey all her interest in the

property to Mark should any payment on the property become more than 90 days delinquent.

{¶ 4} Mark, in turn, agreed to allow his name to be added to the title of the property

and to sign any documents required to assist Cristi in obtaining a mortgage loan on the

property. He also agreed that he would not be entitled to possession of the property unless

Cristi is more than 90 days delinquent in any payment on it and he makes such payment, in

which case, he would be required to refinance the property within 60 days and have Cristi's

name removed from any obligation associated with the property. He further agreed to

convey all his interest in the property to Cristi upon her satisfying any obligation that could

accrue to him.

{¶ 5} Each of the parties also agreed to sign a quitclaim deed conveying all his or her

interest in the property to the other, with each party's quitclaim deed to be held in escrow by

the opposing party's attorney during the period that Mark was liable for any debt on the

property. The agreement also contained a provision that stated, "[b]oth parties acknowledge

that the intent of this agreement is solely for Mark J. Woehler to assist Cristi L. Brandenburg

to obtain a mortgage loan on the property."

{¶ 6} In October 2007, Cristi filed a motion in domestic relations court seeking to

increase Mark's child support obligation. To resolve this issue and others, the parties

entered into a second agreement in January 2008, in which they agreed that Mark would -2- Clermont CA2011-12-082

make the $1,800 monthly mortgage payment on one of the two mortgages existing on the

property, taking the tax deductions for the mortgage interest and the real estate taxes, and in

return, Cristi would withdraw her motion to modify child support. The second agreement

provided that Mark's obligation to make the monthly mortgage payment would terminate if

Cristi were to file another motion to modify Mark's child support obligation. Eight months

later, in September 2008, Cristi did, in fact, file another motion to modify Mark's child support

obligation.

{¶ 7} In February 2010, Cristi recorded the quitclaim deed executed by Mark as part

of the parties' 2007 agreement, which deed was to be held in escrow by Cristi's attorney.

Cristi would later state in an affidavit that she recorded Mark's quitclaim deed on the advice

of counsel who told her that the parties' 2008 agreement terminated their 2007 agreement.

In March 2010, Cristi made her last mortgage payment on the property.

{¶ 8} In July 2010, Mark filed a complaint against Cristi alleging that she was in

default on her mortgage loan payments on the property for more than 90 days and that,

therefore, he was entitled to specific performance of the provision in the parties' agreement

giving him possession of the property 90 days after Cristi defaulted on the mortgage loan and

monetary damages. After Cristi answered the complaint, Mark moved for summary

judgment.

{¶ 9} In April 2011, the trial court granted partial summary judgment to Mark, finding

that the parties' 2008 agreement modified rather than terminated their 2007 agreement and

that Mark's obligations under the 2008 agreement ended when Cristi filed another motion to

modify child support. The trial court also found that once Mark's obligations under the 2008

agreement ended, Cristi's obligations under the parties' 2007 agreement resumed, at which

point it again became Cristi's obligation to make all mortgage, tax and insurance payments

on the property. -3- Clermont CA2011-12-082

{¶ 10} The trial court then found that Cristi breached the parties' 2007 agreement by

failing to make a mortgage loan payment on the property for more than 90 days, by failing to

notify Mark prior to any item due and payable on the property becoming more than 30 days

delinquent, and by recording the quitclaim deed from Mark during the period of time he was

liable for any debt on the property. As a result, the trial court determined that Mark was

entitled to specific performance of the provision in the parties' 2007 agreement requiring

Cristi to convey to him by quitclaim deed all of her right, title and interest in the property.

{¶ 11} In October 2011, a trial was held on the question of damages. At the outset of

the trial, Mark informed the trial court that he was no longer seeking specific performance of

the parties' 2007 agreement and, instead, was seeking only monetary damages for Cristi's

breach of that agreement. At trial, Mark testified that when he attempted to refinance his

mortgage loan on his personal residence at Evolve Bank and Trust, he was not able to obtain

an interest rate more favorable than the 4.875 percent rate that he currently has. He also

presented the testimony of David Scully, the branch manager and senior mortgage loan

officer for Evolve Bank and Trust, who testified that without Cristi's default on the mortgage

and the resulting foreclosure action brought against her and Mark by Cristi's mortgage loan

company, Mark could have obtained an interest rate of 3.75 percent for a 15-year loan.

{¶ 12} At the close of evidence, Mark requested (1) $56,219.18 in "expectancy"

damages for not being given possession of the property on the date of Cristi's breach, (2)

$14,549.32 in "consequential" damages for his "lost opportunity" to refinance his mortgage

loan on his personal residence at a lower rate due to his damaged credit rating, (3) $5,000 in

"nominal" damages for costs he will incur in the future due to his damaged credit rating, and

(4) $2,909.40 for the attorney fees he incurred in defending himself in the foreclosure action

brought against him and Cristi by her mortgage loan company following her default on her

mortgage payments on the property. -4- Clermont CA2011-12-082

{¶ 13} In November 2011, the trial court issued a decision awarding Mark $2,909.40 in

attorney fees but denying his request for expectancy, consequential and nominal damages.

{¶ 14} Mark now appeals, assigning the following as error:

{¶ 15} Assignment of Error No. 1:

{¶ 16} THE TRIAL COURT ERRED BY NOT FOLLOWING OHIO LAW WHEN IT

DENIED MR. WOEHLER HIS EXPECTANCY REMEDY A/K/A THE BENEFIT OF THE

BARGAIN.

{¶ 17} Assignment of Error No. 2:

{¶ 18} THE TRIAL COURT ERRED IN ITS APPLICATION OF THE "REASONABLE

CERTAINTY" RULE TO DENY CONSEQUENTIAL DAMAGES FOR MR. WOEHLER'S

DAMAGED CREDIT AND THE LOSS SUSTAINED FROM A REJECTED LOAN

APPLICATION[.]

{¶ 19} In his first assignment of error, Mark argues the trial court erred in rejecting his

claim that he was entitled to $56,219.18 in "expectancy" or "expectation-interest" damages

as a result of Cristi's breach of the parties' 2007 agreement.

{¶ 20} In denying Mark's request for $56,219.18 in expectation-interest damages, the

trial court noted that the parties' 2007 agreement required nothing more of Mark than to lend

Cristi his name and credit rating to help her obtain a mortgage loan on the property and did

not require him to expend any of his personal funds either upon his co-signing for the

mortgage loan on the property or at any time during the life of the agreement so long as Cristi

remained current in her mortgage loan payments. The trial court also noted that as long as

Cristi remained current in her payments, the agreement gave Mark no possessory interest in

the property that would have allowed him to physically reside there or to share in any

incidental benefits of ownership, such as income tax deductions and the like. The trial court

further noted that Mark was given the opportunity to protect his interest in the property by the -5- Clermont CA2011-12-082

following term in the parties' agreement:

Mark J. Woehler agrees that he is not entitled to possession of the property unless Cristi L. Brandenburg is more than 90 days delinquent in any payment on the property and Mark J. Woehler makes such payment. In such case, Mark J. Woehler must refinance the property within 60 days and have Cristi L. Brandenburg's name removed from any obligations associated with the property.

(Emphasis added.)

{¶ 21} The trial court found that Mark was entitled to specific performance of this

provision in the parties' agreement as a result of Cristi's breach but that Mark had chosen not

to pursue it. The trial court also found that Mark had received a favorable judgment in the

foreclosure action brought against him and Cristi by her mortgage loan company and that as

a result, he was no longer obligated to make any payments on the original mortgage loan he

cosigned with Cristi in 2007. The trial court then found that the remaining questions to be

answered were (1) what is Mark's position, post-breach, and (2) what monetary damages is

he entitled to receive to restore him to his pre-breach position?

{¶ 22} The trial court answered these questions by finding that Mark's pre-breach

position did not require him to pay any funds to help Cristi obtain her original mortgage loan

on the property. The trial court noted that as a result of the parties' 2007 agreement, Mark

had received an equal ownership interest in the property and that he became contractually

obligated to pay the mortgage payment on the property as a co-guarantor. As to his post-

breach position, the trial court found that Mark still had not expended any funds to pay any

delinquencies on the property and that while he lost his ownership interest in the property as

a result of the foreclosure, he also abandoned his remedy to specific performance under the

2007 agreement. After concluding that Mark "has, in reality, improved his position, post-

breach, as he is no longer exposed to any future payments he was equally obligated to pay

as a co-guarantor of the original note and mortgage[,]" the trial court denied Mark's request

-6- Clermont CA2011-12-082

for expectation-interest damages of $56,219.18.

{¶ 23} Mark argues the trial court erred in not awarding him $56,219.18 in expectation-

interest damages for not being able to obtain possession of the property on June 1, 2010, the

date on which Cristi breached the parties' 2007 agreement. The $56,219.18 amount

represents the difference between (1) the fair market value of the property on the date of the

breach, which, according to Mark's real estate appraiser, Audrey Boyd, was $300,000, and

(2) the property's "purchase" or "contract" price on that same date, which, according to Mark,

was $243,780.82, which amount represents the principal balance on the property's note and

mortgage on that same date. Mark also argues the trial court erred in considering what

monetary damages he was entitled to receive to restore him to his pre-breach position and,

instead, should have considered what monetary damages he was entitled to receive to

restore him to the position in which he would have been had Cristi not breached the parties'

agreement. We disagree with both of these arguments.

{¶ 24} A party injured by a breach of contract is entitled to its "expectation interest,"

which is the injured party's interest in being put in the same position in which it would have

been had the contract been performed. Longo Constr., Inc. v. ASAP Tech. Serv., Inc.,

(8th Dist. 2000); State ex rel. Stacy v. Batavia Local School Dist. Bd. of

Edn.,

,

, ¶ 26. The purpose behind granting an aggrieved

party its expectation interest is to give the party the "benefit of its bargain." Livi Steel, Inc. v.

Bank One, Youngstown, N.A.,

(11th Dist. 1989). "[A] party's

expectation interest represents the actual worth of the contract to him[,]" and "[t]herefore, his

recovery is limited to the loss he has actually suffered by reason of the breach[.]" (Emphasis

sic.) Brads v. First Baptist Church of Germantown, Ohio,

(2d

Dist. 1993). "Damages are not awarded for a mere breach of contract; the amount of

damages awarded must correspond to injuries resulting from the breach." Textron Fin. Corp. -7- Clermont CA2011-12-082

v. Nationwide Mut. Ins. Co.,

(9th Dist. 1996).

{¶ 25} Mark's argument that his expectation-interest damages should be the difference

between the property's fair market value on the date of the breach and the property's

purchase or contract price at the time the property should have been conveyed to him

following Cristi's breach apparently stems from his belief that the agreement should be

viewed, primarily, as a contract to convey real property. However, while there were

provisions in the agreement related to the potential conveyance of the property, the main

thrust of the agreement was to allow Cristi to obtain a mortgage loan on the property where

she lived with the parties' children following the parties' divorce. The agreement provided

that if Cristi breached the agreement, then ownership and possession of the property would

be transferred to Mark. The trial court granted that remedy to Mark who declined to accept it

and who requested damages based on the property's fair market value, instead. However,

granting Mark's request for $56,219.18 in damages would award him an amount of damages

that the parties clearly did not contemplate in the event Cristi breached the agreement.

{¶ 26} As to Mark's argument that the trial court erred in considering what monetary

damages he was entitled to receive in order to restore him to his pre-breach position rather

than what monetary damages he was entitled to receive to restore him to the position in

which he would have been had Cristi not breached the parties' 2007 agreement, we find that

this argument ignores both the purpose and tenor of the agreement. The parties' purpose in

entering into the agreement was to allow Cristi to maintain ownership and possession of the

property in which she and the parties' children live. In keeping with that purpose, the terms of

the parties' 2007 agreement were drawn heavily in Cristi's favor.

{¶ 27} For instance, the parties' agreement contained a provision in which Mark

agreed "to convey all of his interest in the property to Cristi * * * upon satisfaction of all

obligations that could accrue to Mark * * * being satisfied by Cristi[.]" Mark also agreed that -8- Clermont CA2011-12-082

he would not be entitled to possession unless Cristi was more than 90 days delinquent in her

payments and Mark made the payment, and that in such an instance, Mark was required to

refinance the property within 60 days and have Cristi's name removed from any obligations

associated with the property. The agreement also provided strict requirements in order for

Mark to obtain possession of the property in the event of Cristi's default. The existence of

these provisions in the parties' 2007 agreement demonstrate that the damages Mark seeks

as a result of Cristi's breach were not in the parties' contemplation when they entered into the

agreement. Instead, the parties contemplated that in the event Cristi breached the

agreement, then ownership and possession of the property would be transferred to Mark.

{¶ 28} Mark also argues the trial court erred in suggesting that he could have obtained

his requested expectation-interest damages if he had elected to pursue the specific-

performance remedy granted to him under the parties' agreement by using this remedy to

acquire sole legal title and possession of the property. Citing the testimony of his mortgage

loan expert, Scully, Mark asserts that once the foreclosure action was filed against him and

Cristi, he would not have been able to obtain refinance lending for three to four years.

However, as Cristi points out, the evidence shows that Mark has an annual salary of more

than $180,000 and very little debt. Thus, it is clear that had he chosen to have done so,

Mark could have made the late payments on the mortgage loan and refinanced the property,

which, in turn, would have allowed him to effectively receive the expectation-interest

damages he sought in this action. Furthermore, the record shows that Mark sustained no

actual, out-of-pocket expenses as a result of Cristi's breach other than his attorney fees for

defending the foreclosure action, which the trial court ordered Cristi to pay.

{¶ 29} In light of the foregoing, the trial court did not err in refusing to award Mark

$56,219.18 for his alleged, expectation-interest damages.

{¶ 30} Therefore, Mark's first assignment of error is overruled. -9- Clermont CA2011-12-082

{¶ 31} In his second assignment of error, Mark argues the trial court erred in refusing

to award him consequential damages of $14,550 for his "lost opportunity" to refinance his

home at a lower interest rate, which, he alleges, was caused by the harm done to his credit

rating as a result of Cristi's default on her mortgage loan on the property.

{¶ 32} In rejecting Mark's request for $14,550 in consequential/lost-opportunity

damages, the trial court found his "credibility regarding his good faith efforts to refinance his

own mortgage loan lacking." The trial court noted that Mark failed to present any competent,

credible testimony to explain his current credit rating on the credit report submitted. The trial

court further noted that while Mark's mortgage loan expert, Scully, testified that he had

obtained Mark's credit report, Scully was not in a position to competently testify how each of

the reporting agencies to which the credit report refers, Experian, Equifax and Transunion

FICO Classic, arrived at their listed credit ratings.

{¶ 33} The trial court also noted that Scully "did not testify that no lending institution

would give [Mark] a lower interest rate on his current mortgage, based upon the credit report

he reviewed[,]" and that the "claimed additional costs [Mark] may pay on his own mortgage

loan versus his proposed reduced rate loan, were lacking in details as to the full terms of the

proposed new loan." Therefore, the trial court concluded that the amount of Mark's alleged,

additional cost was "based, in large part, upon mere speculation[,]" and thus was "not

established with reasonable certainty[.]"

{¶ 34} Mark argues the trial court erred by denying his request for consequential/lost-

opportunity damages on the grounds that his claimed damages were speculative and not

established with reasonable certainty. He contends that the trial court's finding that he failed

to establish his damages with reasonable certainty was based on its improper determination

that he had failed to prove the amount of his damages with reasonable certainty and that the

trial court, instead, should have simply considered whether he proved the existence of his - 10 - Clermont CA2011-12-082

damages with reasonable certainty. We find this argument unpersuasive.

{¶ 35} Generally, damages in civil actions like breach of contract cases must be

proven with "reasonable certainty." Textron Fin. Corp.,

. However,

damages are not uncertain merely because they cannot be calculated with absolute

exactness; it is sufficient if the evidence affords a reasonable basis for computing damages,

even if the result is only an approximation. TJX Cos., Inc. v. Hall,

,

, ¶ 32 (8th Dist.). "Reasonable certainty" in breach-of-contract cases

requires a greater degree of proof than in a tort action. Textron Fin. Corp. at 144. However,

it is uncertainty as to the existence of damages rather than uncertainty as to their amount

which precludes recovery. Accurate Die Casting Co. v. Cleveland,

(8th Dist. 1981).

{¶ 36} A careful review of the trial court's findings on Mark's request for

consequential/lost-opportunity damages shows that the trial court denied his request for such

damages based on the trial court's uncertainty of their existence rather than their amount.

The evidence in the record supports the trial court's findings that (1) Mark failed to show that

he made a good faith effort to find a lending institution that would have given him a more

reasonable rate to refinance his mortgage on his personal residence, and (2) the foreclosure

case filed against Mark and Cristi by her mortgage loan company had ended favorably for

Mark, leaving him with no debt as a result of Cristi's default other than his attorney fees,

which Cristi was ordered to repay. Consequently, the trial court did not err in rejecting Mark's

request for consequential/lost-opportunity damages.

{¶ 37} Mark asserts that the trial court erred in finding it significant that his expert,

Scully, did not testify that no lending institution would give him a lower interest rate on his

current mortgage based upon the credit report he reviewed. Mark argues that requiring him

to show that no bank would have given him a lower rate imposed an extraordinary and - 11 - Clermont CA2011-12-082

unreasonable mitigation requirement on him. However, we do not read the trial court's

finding to have imposed such a requirement; instead, we interpret it as merely providing

support for the trial court's rejection of Mark's claim that he suffered actual damages to his

credit rating as a result of Cristi's breach of the parties' 2007 agreement.

{¶ 38} Mark also argues the trial court erred in refusing to grant him even "nominal"

damages as a result of the damage to his credit rating. This argument lacks merit.

{¶ 39} As stated in The Toledo Group, Inc. v. Benton Industries, Inc.,

(6th Dist. 1993):

In a case where the "legal right * * * to be vindicated * * * has produced no actual loss of any kind, or where, from the nature of the case, some injury has been done, the extent of which the evidence fails to show," the complaining party may recover nominal damages. Lacey v. Laird (1956),

, * * * paragraph two of the syllabus. "Nominal damages" are some small amount of money, such as $1. Lacey, supra at 21 * * *. Even awards in the $100 to $200 range are considered too substantial to qualify as "nominal" damages. Id.

{¶ 40} Since awards of even $100 or $200 have been found to be too substantial to

qualify as "nominal" damages, an award of $5,000 is clearly too much to qualify as "nominal"

damages. Id. Moreover, there was insufficient evidence to show that it is reasonably certain

that Mark will ever suffer the future damages for which he seeks the $5,000 in "nominal"

damages. Consequently, the trial court did not err in rejecting Mark's request for $5,000 in

nominal damages.

{¶ 41} Accordingly, Mark's second assignment of error is overruled.

{¶ 42} Judgment affirmed.

PIPER and BRESSLER, JJ., concur.

Bressler, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.

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