[Cite as Sailors v. Pacheco , 2021-Ohio-3180.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNT Y

FRANK SAILORS, Plaintiff-Appellant,

- v - JUAN C. PACHECO, a.k.a. JUAN C. PACHECO ANDRADE, et al., Defendants-Appellees. CASE NO. 2021-L-011

Civil Appeal from the Court of Common Pleas

Trial Court No. 2020 CV 000333

O P I N I O N Decided: September 13, 2021 Jud g ment: Affirmed

Eric T. Deighton , Carlisle, McNellie, Rini, Kramer & Ulrich Co., LPA, 24755 Cha grin Boulevard, Suite 200, Cleveland, OH 44122 ( For Plaintiff-Appellant )

. Juan C. Pacheco, a.k.a. Juan C. Pacheco Andrade , pro se, 481 North St. Clair Street, Painesville, OH 44077 ( Defendant-Appellee )

. Meishlee Rivera , pro se, 1278 West Jackson Str eet, Painesville, OH 44077 (Defe ndantAppellee )

. NP Landscaping LLC , pro se, c/o Meishlee Rivera, 1278 West Jackson Street, Painesville, OH 44077 ( Defendant-Appellee )

. Primerose Landscaping LLC , pro se, c/o Juan C. Pacheco Andrade, 481 North St. Clair Street, Painesville, OH 44077 ( Defendant-Appellee )

. New Horizon Landscaping LLC , pro se, c/o Lyn Adams, 47 Wellesley Boulevard, Painesville, OH 44077 ( Defendant-Appellee )

. Flavio Pacheco , pro se, 481 North St. Clair Street, Painesville, OH 44077 (De fendantAppellee )

.2

Case No. 2021-L-011

Gilberto Pacheco , pro se, 481 North St. Clair Street, Painesville, OH 44077 (De fendantAppellee )

. Felipe Pacheco , pro se, 481 North St. Clair S treet, Painesville, OH 44077 (De fendantAppellee )

.

MARY JANE TRAPP, P.J. {¶1} Appellant, Frank Sailors (“Mr. Sailors”), appeals the judgment of the Lake County Court of Common Pleas, which awarded him a default judgm ent on some of his claims against appellees, Juan C. Pacheco, a.k.a. Juan C. Pache co Andrade (“Mr. Pacheco”); Meishlee Rivera (“Ms. Rivera”); NP Landscaping LLC, Primerose Landscaping LLC, New Horizon Landscaping LLC, (collectively, th e “corporate appellees”); and Flavio Pacheco, Gilberto Pacheco, and Felipe P acheco. {¶2} Mr. Sailors raises four assignments of error on appeal, contend ing the trial court erred in failing to grant him a default judgment on his b reach of contract, negligent workmanship, illegitimate transfer, and piercing the corporate veil claims. More specifically, he asserts the trial court failed to take the ave rments in his pleadings as true pursuant to Civ.R. 8(D), award him damages on his breach of con tract and negligent workmanship claims, and in failing to find he properly pleaded claims of illegitimate transfer and piercing the corporate veil. {¶3} After a review of the record and pertinent law, we find Mr. Sai lors’ assignments of error to be without merit. A review of the test imony and evidence introduced at the Civ.R. 55 hearing reveals there was no eviden ce presented as to the amount of damages supporting Mr. Sailors’ breach of contract cl aim or any evidence of an extra-contractual duty or extra-contractual damages on his t ort claim. Furthermore, Mr. Sailors failed to introduce any evidence that appellees wer e fraudulently transferring3

Case No. 2021-L-011 assets or that the corporate entities’ veils should be pierced. Simply put, without evidence to support the claims for damages contained in the complaint to which there has been no answer, the trial court may decline to make an award. {¶4} The judgment of the Lake County Court of Common Pleas is affirm ed.

Substantive and Pr ocedural History {¶5} In February 2020, Mr. Sailors filed a complaint in the Lake Cou nty Court of Common Pleas, alleging seven claims for relief against appellee s: (1) collection on a note for the unpaid sum of $40,000; (2) collection on a note fo r the unpaid sum of $23,320; (3) breach of contract with damages of $9,594 for a check Mr. S ailors gave to appellees to purchase building materials; (4) alteration of checks; (5) n egligence for breach of duty for work performed in breach of the parties’ agreement in exces s of $50,000; (6) illegitimate transfer of assets to avoid collection of judgment s from 2017 for $44,000 and $37,000 (plus 4% interest per annum); and (7) piercing the corp orate veil because Mr. Pacheco, Ms. Rivera, as well as Mr. Pacheco’s brothers, Flavio, Filberto, and Gilberto, are the shareholders, officers, and/or directors of the corpora te appellees, and are indistinguishable from the corporate entities, which they used to commit fraud and other wrongdoings.

Motion for Defa ult Judgment {¶6} After appellees failed to file an answer or otherwise respond, Mr. Sailors filed a motion for default judgment with an affidavit. More sp ecifically, he attested that he was the holder of two promissory notes, naming Exhibit A, a $40 ,000 note due from Mr. Pacheco, and Exhibit B, $23,320, a promissory note due from Mr. Pacheco and Ms. Rivera, respectively.4

Case No. 2021-L-011 {¶7} Mr. Sailors further averred that in October 2018, he, as the re presentative of Omaha Res LLC, the owner of the property located at 2065 Eve rgreen Road, Perry, Ohio 44081 (the “property”), entered into a contract with Mr. P acheco and Ms. Rivera to repair the property (Exhibit C). Mr. Sailors gave them a check for $9,594 to buy materials. Appellees delivered less than half of the required materials, a nd what was delivered appeared to be used materials from another worksite. He allege d Mr. Pacheco and Ms. Rivera breached their contract by failing to complete the work, using substandard materials, failing to obtain perm its, and performing below the standard of care. {¶8} Mr. Sailors also alleged Mr. Pacheco altered his checks to incr ease the amount, and cashed some of the checks, but did not use the fund s to obtain materials for the property. Thus, Mr. Sailors alleged he was damaged in the amounts of $12,000 for

the checks and additional mater ials; $50,000 for the substandar d work; and $44,000 and $37,000 plus interest at the rate of 4% per annum for the two e arlier court judgments. {¶9} The trial court found all of the appellees were in default of t he pleading. After reviewing Mr. Sailors’ motion and affidavit, the court de termined an evidentiary hearing was necessary, at which Mr. Sailors would be required t o present evidence establishing liability as well as damages against each defendan t on each of the seven counts set forth in the complaint. The court further noted tha t Mr. Sailors had failed to

attach the exhibits referenced in his affidavit to his motion f or default judgment. {¶10} At the hearing, Mr. Pacheco appeared pro se and requested a con tinuance so that he could obtain an attorney. The court gave Mr. Pachec o one week to secure counsel and file a notice of appearance, and it rescheduled the evidentiary hearing.5

Case No. 2021-L-011 Civ.R. 55 Default Judgment Hearing {¶11} At the second evidentiary hearing, the appellees, including Mr. Pacheco, failed to appear. {¶12} Mr. Sailors testified that he took care of Mr. Pacheco since he was 12 years old. When Mr. Pacheco was older, Mr. Sailors loaned him $40,00 0 to start a business with his brothers. After he did so, Mr. Pacheco and his brothe rs disappeared for several years. He was familiar with the various corporate entities app ellees owned: NP Landscaping, LLC; Primerose Landscaping, LLC; and New Horizon L andscaping, LLC. {¶13} Mr. Pacheco began to repay the $40,000 loan in monthly payments of $1,500 until he disappeared, and, according to Mr. Sailors, the $40,000 loan was now due (Exhibit A). He further explained that the second promisso ry note, signed by Mr. Pacheco and his wife, Ms. Rivera, was a loan for $23,320 (Exhib it B). {¶14} Exhibit C was a contract to build a patio on the back of the ho use on the property. Mr. Sailors claimed that Mr. Pacheco’s brothers want ed to repay some of the money they owed him so they entered into a contract to build th e patio. Mr. Sailors gave Mr. Pacheco a check made payable to Pavertile Wholesale for $9, 594 for materials. Mr. Pacheco, however, delivered less than half the tile necessary a nd never came back to finish the job. {¶15} Mr. Sailors introduced into evidence pictures of the tile appel lees delivered, which Mr. Sailors could not match. He was forced to spend anot her $10,000 for new tile from Florida. Later, he realized Mr. Pacheco never bought the tile from Pavertile Wholesale. The $9,594 check was endorsed by appellee, Primeros e Landscaping, and Mr. Pacheco signed and cashed it. Mr. Pacheco also altered a $ 1,000 check Mr. Sailors had given him by increasing it to $4,000.6

Case No. 2021-L-011 {¶16} Mr. Sailors also discovered appellees failed to dig the footers of the patio’s foundation to the required depth of 42 inches. He obtained the advice of an engineer, who observed the footers were only 36 inches deep and that the state of Ohio building code required a depth of 42 inches due to the frostline. Mr. P acheco agreed with Mr. Sailors and the engineer and told Mr. Sailors he would fix the foundation. Mr. Sailors did not introduce the engineer’s report into evidence and told the court that the engineer he used was a friendly acquaintance who gave him advice based on t he open-ended question, “If this was your property...?” {¶17} Mr. Sailors further testified that two or three weeks after th e meeting with the engineer, Mr. Pacheco disappeared. Mr. Sailors spent appro ximately $30,000 to repair and redo the work appellees performed. A month before t he hearing, Mr. Sailors had to bring in tons of dirt to raise the frostline, remove a t ree stump upon which the foundation was erroneously built, and fill in the steps with so il. Mr. Sailors entered into evidence pictures of appellees’ poor workmanship, including the cooktop and kitchen top counter that did not fit and left gaps for rainwater; the grill obstructed by stone that prevented it from moving; tree roots that were underneath the f oundation; and the unfunctional chimney and flue. {¶18} Mr. Sailors also entered into evidence checks delivered to appe llees totaling approximately $30,000, as well as credit card statements that r eflected charges for the truck, trailer, and tools he bought for Mr. Pacheco and Ms. Riv era. He also entered into evidence the following text messages: (1) Mr. Pacheco texted Mr . Sailors to call a supplier and pay for his tools; (2) Mr. Sailors texted Mr. Pacheco to br ing the purchased materials to the property; and (3) Mr. Pacheco replied, “[Mr. Sailors] ia m [sic] going to install the sqft that we bought that was 1713sqft at $5.75 that is $10,000. ”7

Case No. 2021-L-011 {¶19} Mr. Sailors further testified that several years ago he loaned Mr. Pacheco and his brothers, money to start a business and that they disap peared soon after. He obtained a judgment against them in Lake County Common Pleas Co urt case no. 16CV002065, which he never collected. He believed appellees tr ansferred different assets to different family members and/or businesses that they owned. The only asset

of which he was aware that was titled under a different name wa s a truck titled in Ms.

Rivera’s name. Mr. Sailors also noticed that Mr. Pacheco had c ashed many of the checks at a check cashing center. {¶20} In sum, Mr. Sailors testified that he was damaged in the amount s of (1) $40,000 (Exhibit A), (2) $23,320 (Exhibit B), (3) $9,594 as a r esult of the check issued to another payee but cashed by Mr. Pacheco, (4) upwards of $50,000 on the patio project (Exhibit C), and (5) previous judgments against Mr. Pacheco for $44,000 plus 4% interest per annum (6) and his brothers, Flavio and Gilberto, for $37,00 0 plus 4% interest per

annum. {¶21} The court asked Mr. Sailors why he continued to loan money and conduct business with appellees after he obtained $81,000 in judgments against them. Mr. Sailors stated that they apologized, worked hard, and he mistakenly tru sted them. The Trial Court’s Findings a nd Default Judgment Award {¶22} The court issued a judgment entry, finding as follows: {¶23} (1) Mr. Sailors failed to present evidence showing liability on the part of appellees Flavio, Gilberto, or Felipe, as well as NP Landscapin g LLC and New Horizon Landscaping, LLC, since none of them signed any contracts or pr omissory notes. Thus, no judgment was awarded against those appellees.8

Case No. 2021-L-011 {¶24} (2) On the $40,000 loan made to Mr. Pacheco, judgment was award ed to Mr. Sailors in the amount of $40,000 plus 5% per annum statutor y interest. {¶25} (3) The court found there was a loan contract between Mr. Sailo rs and Mr. Pacheco and Ms. Rivera for $23,320, which became due on October 31, 2019, by which Mr. Pacheco and Ms. Rivera agreed to help Mr. Sailors fix his h ouse for free for one year. The contract also specified that the money was to be spent on a truck ($15,500), trailer ($5,210), tools ($2,000), and repair of a bobcat excavator ($70 0), which Mr. Sailors paid for by credit card. The court awarded Mr. Sailors $23,320 plus 5% annum statutory interest from October 31, 2019. {¶26} (4) The trial court addressed the breach of contract and neglig ent workmanship claims together and awarded judgment in favor of Mr . Pacheco, finding that Mr. Sailors failed to prove any extra-contractual breach of dut y or to present evidence of extra-contractual damages or amounts of damages separate from h is breach of contract claim. The trial court also found in favor of the corporate ap pellees since there was no evidence that any of them were parties to a contract. {¶27} (5) As to the shoddy workmanship/breach of contract damages cla im, the court found the parties’ contract did not specify who was to ob tain the permits, who designed the patio, and if Mr. Pacheco was even capable of desi gning it. Because the permits were not obtained, the need to install 42-inch footers was overlooked. Mr. Sailors did not provide evidence of the cost to add the additional soil to the stairs or the estimated cost of repair work for the grill, fireplace, or flue of the fi replace. Absent that evidence,

the trial court found it was unable to award those costs to Mr. Sailors. The court further found Mr. Sailors was not entitled to the $10,000 cost of the F lorida tiles because the stones were incorporated into the patio as a necessary cost of material in the contract,9

Case No. 2021-L-011 and this would have resulted in a double recovery. The trial c ourt also could not conclude Mr. Sailors was denied substantial enjoyment of the patio becau se the patio has a large fire pit and a well-equipped outdoor kitchen that he can use. {¶28} (6) The trial court found Mr. Sailors claimed appellees walked off the job over a dispute without testifying as to the nature of the dispu te. The contract, signed only by Mr. Pacheco on April 13, 2019, provided for the construction of the patio for $43,000, itemized the materials and cost, but provided no allowance for cost of labor. {¶29} Mr. Sailors alleged that Mr. Pacheco’s brothers claimed they wo uld work for free to pay off their debt from the judgments Mr. Sailors obtai ned against them. The trial court found, however, that Mr. Sailors’ testimony was contradic ted by his own evidence because he introduced $39,619 in checks that he paid for labor and material, of which at least $10,830 was documented as labor. {¶30} The trial court awarded Mr. Sailors $12,594 plus 5% per annum s tatutory post-judgment interest. The sum of $3,000 from this amount rel ated to the unauthorized alteration of the $1,000 check to Mr. Pacheco, and the addition al $9,954 represented the money intended for the wholesaler that Mr. Pacheco diverted. {¶31} (7) The trial court found Mr. Sailors failed to present any com petent, credible evidence that there were any fraudulent transfers of assets. {¶32} (8) Further, Mr. Sailors failed to introduce evidence to suppor t piercing the corporate veil of the corporate appellees since there was no ev idence the corporate entities were parties to any contracts or promissory notes. {¶33} Mr. Sailors raises four assignments of error on appeal: {¶34} “[1.] The trial court abused its discretion in determining tha t Sailors is not entitled to a default judgment on his Breach of Contract claim.10

Case No. 2021-L-011 {¶35} “[2.] The trial court abused its discretion in determining tha t Sailors is not entitled to a default judgment on his Negligence claim. {¶36} “[3.] The trial court abused its discretion in determining tha t Sailors is not entitled to a default judgment on his Illegitimate transfer cla im. {¶37} “[4.] The trial court abused its discretion in determining tha t Sailors is not entitled to a default judgment on his Piercing the Corporate Ve il claim.

Standard of Review {¶38} Civ.R. 55(A) provides in pertinent part: {¶39} “ Entry of judgment. When a party against whom a judgment for af firmative relief is sought has failed to plead or otherwise defend as pro vided by these rules, the party entitled to a judgment by default shall apply in writing or orally to the court therefor; * * *. If, in order to enable the court to enter judgment or t o carry it into effect, it is necessary to take an account or to determine the amount of dama ges or to establish the truth of any averment by evidence or to make an investigation o f any other matter, the court may conduct such hearings or order such references as it deems necessary and proper * * *.” (Emphasis added.) {¶40} “[W]hether a court shall render a default judgment with or with out requiring evidence in support of the plaintiff’s claim rests in the sound discretion of the trial judge. * * * Having discretion to require evidence to support the p laintiff’s allegations, it follows that the court should make [its] decision conform to the law as applicable to the facts proven, and if no cause of action is shown no default judgment in plaintiff’s favor should

be rendered.” Streeton v. Roehm , 83 Ohio App. 148, 152, 81 N.E.2d 133 (1st Dist.1948). {¶41} We have previously held that a trial court’s decision to grant or deny a motion for default judgment is reviewed under an abuse of discr etion standard. Sericola11

Case No. 2021-L-011 v. Johnson , 2016-Ohio-1164, 61 N.E.3d 643, ¶ 18 (11th Dist.) . Courts have continued to apply this standard of review when a trial court decides a moti on for default judgment after hearing evidence. See , e.g. , X-S Merchandise, Inc. v. Wynne Pro, L.L.C. , 8th Dist. Cuyahoga No. 97641, 2012-Ohio-2315, ¶ 13; Queen v. Hanna , 2012-Ohio-6291, 985 N.E.2d 929, ¶ 32 (4th Dist.). {¶42} Accordingly, we will review the trial court’s judgment for an a buse of discretion, which is the “‘failure to exercise sound, reasonabl e, and legal decisionmaking.’” State v. Beechler , 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). When an appellate court is reviewing a pure issue of law, the mere fact that the reviewing court would decide the issue differently is enough to find error. Id. at ¶ 67. By contrast, where the issue on review has been confided to the discretion of the trial court, the mere fact th at the reviewing court would have reached a different result is not enough, without more, to find error. Id. {¶43} However, once default judgment is entered, “the determination o f the kind and maximum amount of damages that may be awarded is not commit ted to the discretion of the trial court, but is subject to the mandates of Civ.R. 55 (C) and Civ.R. 54(C).” Natl. City Bank v. Shuman , 9th Dist. Summit No. 21484, 2003-Ohio-6116, ¶ 6. The civil r ules are “the law of this state with regard to practice and procedur e in our state courts.” Rockey v. 84 Lumber Co. , 66 Ohio St.3d 221, 224, 611 N.E.2d 789 (1993). Thus, “the question of whether a trial court’s grant of default judgment c omplies with Civ.R. 55(C) and Civ.R. 54(C) is one of law, which we review de novo.” Natl. City Bank at ¶ 6; see also Masny v. Vallo , 8th Dist. Cuyahoga No. 84983, 2005-Ohio-2178, ¶ 15.12

Case No. 2021-L-011 {¶44} Civ.R. 55(C) provides that “[i]n all cases a judgment by defaul t is subject to the limitations of Rule 54(C).” Under Civ.R. 54(C), “[a] judgm ent by default shall not be different in kind from or exceed in amount that prayed for in t he demand for judgment.” {¶45} “The primary purpose of Civ. R. 54(C)’s limitations on default judgments is to ensure that defendants are clearly notified of the maximum p otential liability to which they are exposed, so that they may make an informed, rational c hoice to either: (1) enable a default judgment by not responding, or (2) invest the time an d expense involved in defending an action.” Natl. City Bank at ¶ 11; see also Masny at ¶ 18. {¶46} Moreover, the assessment of damages is a matter within the prov ince of the trier of fact. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a review ing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. , 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. When considering whether the judgment of the trial court is against the manifest weight of the evidence, it is important that the court of appeals be guided by a presumption that the findings of the tri er of fact are correct.

Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 79-80, 461 N.E.2d 1273 (1984). The weight to be given the evidence as well as the credibility of t he witnesses are primarily for

the trier of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Breach of Contract and Negligent Workmanship Claims {¶47} Because Mr. Sailors’ first and second assignments of error are interrelated, we will address them together. In these assignments of error, Mr. Sailors contends the trial court erred in finding that there was a lack of evidence of damages on his breach of contract and negligent workmanship claims because the trial cou rt was required to apply13

Case No. 2021-L-011 Civ.R. 8(D) and accept all of the allegations in his complaint as true. He further claims the trial court erred in failing to find evidence of an extra-c ontractual duty or extracontractual damages on his tort claim. {¶48} In his breach of contract claim, Mr. Sailors contended appellee s failed to complete the construction of the patio as expected. In his neg ligent workmanship claim, Mr. Sailors contended appellees f ailed to construct the patio i n a workmanlike manner. {¶49} In order to plead a cognizable claim for breach of contract, a plaintiff is required to allege (1) the existence of a contract, (2) perform ance by the plaintiff, (3) breach by the defendant, and (4) damages. Byers DiPaola Castle, LLC v. Portage Cty.

Bd. of Commrs. , 2015-Ohio-3089, 41 N.E.3d 89, ¶ 23 (11th Dist.). “‘Damages a re an essential element to a breach of contract claim.’” Id. , quoting Allen v. Znidarsic Bros.,

Inc. , 11th Dist. Lake No. 99-L-088, 2001 WL 20726, *3 (Dec. 29, 200 0). Without damages, there can be no remedy for breach of contract. Id. {¶50} In general, where a contract action exists against a breaching party, a tort claim based upon the same underlying actions cannot coexist wit h the contract action, unless the breaching party also breached a duty owed independen t of the contract. Evans Landscaping, Inc. v. Stenger , 2011-Ohio-6033, 969 N.E.2d 1264, ¶ 16 (1st Dist.). In order for the two claims to coexist, the plaintiff must show damages separate from those attributable to the breach of contract claim and that an indepe ndent duty exists, and damages resulting from that breach. Corporex Dev. & Constr. Mgt., Inc. v. Shook, Inc. , 106 Ohio St.3d 412, 2005-Ohio-5409, 835 N.E.2d 701, ¶ 9 {¶51} Thus, Mr. Sailors was required to introduce evidence of the amo unt of damages in his breach of contract claim and any extra damages f rom a breached duty in tort that was independent of his breach of contract claim.14

Case No. 2021-L-011 {¶52} Mr. Sailors claims he did so in his complaint and motion for de fault judgment; thus, pursuant to Civ.R. 8(D), the trial court was re quired to accept his allegations as true because appellees failed to file an answer or otherwise respond. {¶53} Mr. Sailors is correct that averments in pleadings are deemed a dmitted when the other party fails to answer or otherwise respond. Pur suant to Civ.R. 8(D), “effect of failure to deny,” “[a]verments in a pleading to which a resp onsive pleading is required, other than those as to the amount of damage , are admitted when not denied in the responsive pleading. Averments in a pleading to which no respo nsive pleading is required or permitted shall be taken as denied or avoided.” (E mphasis added.) {¶54} However, the court may not simply rest on the party’s averments where the amount of damages is not certain or more evidence is needed to determine the allegations in the pleadings. Accordingly, the trial court held a hearing pursuant to Civ.R. 55(A) after reviewing Mr. Sailors’ affidavit attached to his motion for def ault judgment “to establish the truth of any averment by evidence or to make an investigati on of any other matter.” {¶55} This court has held that it is reversible error for the trial c ourt to enter a default judgment without holding a hearing on the damages issue when a judgment is not liquidated or only partially liquidated. Mid-Am. Acceptance Co. v. Reedy , 11th Dist. Lake No. 89-L-14-072, 1990 WL 94816, *2 (June 29, 1990). We have al so found that the “repeated assertion that the trial court was required to accept all the averments in the complaint as ‘admitted’ is simply without merit” where Civ.R. 8 (D) would have been inequitable as applied to terms of a contract. Bd. of Trumbull Twp. Trustees v. Rickard , 2017-Ohio-8143, 98 N.E.3d 800, ¶ 71 (11th Dist.). In Rickard , a hearing was necessary pursuant to Civ.R. 55(A) where a written contract could not be located and no one had personal knowledge of any written contract. Id. at ¶ 56.15

Case No. 2021-L-011 {¶56} In order to recover damages, the injury and resulting damage mu st be ascertained with reasonable certainty and not left to conjectur e and speculation. Adams v. Pitorak & Coenen Invests., LTD. , 11th Dist. Geauga No. 2011-G-3019, 2012-Ohio3015, ¶ 28. A plaintiff bears the burden of “‘proving the natu re and extent of damages

whether an action sounds in tort or contract.’” Id. , quoting Countywide Home Loans, Inc.

v. Huff , 11th Dist. Trumbull No. 2009-T-0044, 2010-Ohio-1164, ¶ 47. {¶57} Furthermore, a trial court has broad discretion in assessing th e weight and credibility of the evidence of damages. Skiver v. Wilson , 2018-Ohio-3795, 119 N.E.3d 969, ¶ 18 (8th Dist.). And there is no requirement that a tria l court award damages based upon the estimates provided. Id. ; see Sotnyk v. Guillenno , 6th Dist. Lucas No. L-13-1198, 2014-Ohio-3514 (finding no error where the trial court consider ed the evidence, was fully engaged in the hearing, and sought clarification/explanation fo r the estimated costs and awarded the appellant half of the requested amount). “‘[A]n ap pellant’s disagreement with the trier of fact as to the appropriate amount of damages is not grounds for reversal.’”

Id. , quoting Arendt v. Price , 8th Dist. Cuyahoga No. 101710, 2015-Ohio-528, ¶ 16; see Sotnyk at ¶ 11. {¶58} Our review of the evidence introduced at the hearing supports t he trial court’s findings, i.e., there was no evidence of the amount of repairs needed for the grill, chimney, or flue, nor was there evidence of who was to obtain t he permit that would have led to the discovery of the shallow footers. There was also no evidence that the $10,000 Florida tiles were not already included in the necessary cost o f materials. Furthermore, while there was evidence that Mr. Pacheco walked off the job ov er a dispute, it was not clear what was unpaid, and Mr. Sailors’ claims that appellees w ould work for free was contradicted by the checks he de livered to them for labor.16

Case No. 2021-L-011 {¶59} Quite simply, Mr. Sailors failed to support his damage claims w ith evidence of actual amounts of costs to repair, and his contradictory tes timony as to monies owed and paid under the contract at the damages hearing undercut his credibility. See Dye v.

Smith , 189 Ohio App.3d 116, 2010-Ohio-3539, 937 N.E.2d 628, ¶ 10 (4t h Dist.) (because appellants made no effort to quantify damages in the complaint or at the damages hearing, the court declined to address those issues). Further, there was no evidence of an extra-contractual duty or resulting damages to support Mr. S ailors’ tort claim for failure to perform in a workmanlike manner. {¶60} In sum, there is competent, credible evidence that supports the trial court’s findings that no independent tort was alleged and that there wa s no evidence of damages, either contractual or extra-contractual, on Mr. Sailors’ claims for breach of contract and negligent workmanship. {¶61} Mr. Sailors’ first and second assignments of error are without merit. Fraudulent Transfers and Piercing the Corporate Veil {¶62} In his third and fourth assignments of error, Mr. Sailors conte nds the trial court erred in determining he was not entitled to default judgm ent because there was no evidence set forth in the hearing as to any illegitimate or fra udulent transfers of assets and his piercing the corporate veil claims. More specifically, he argues the trial court should have rested on the averments in his pleadings pursuant t o Civ.R. 8(D) or allowed him time for discovery. Because the same reasoning applies to both assignments of error, we will addre ss them together. {¶63} At the outset, we note that Mr. Sailors’ Civ.R. 8(D) argument f ails for the same reasons addressed above. Further, a Civ.R. 55 hearing is not only a damages hearing, but also an evidentiary hearing where the trial court may investigate any matter.17

Case No. 2021-L-011 Thus, Civ.R. 55(A) states, “If, in order to enable the court t o enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other

matter , the court may conduct such hearings or order such references as it deems necessary and proper and shall when applicable accord a right o f trial by jury to the parties.” (Emphasis added.) When “‘the determination of damag es necessarily requires consideration of information outside a written instrument, the trial court abuses its discretion in failing to hold an evidentiary hearing to determi ne the exact amount of damages.’” Hull v. Clem D’s Auto Sales , 2d Dist. Darke No. 2011 CA 6, 2012-Ohio-629, ¶ 7, quoting Am. Communications of Ohio, Inc. v. Hussein , 10th Dist. Franklin No. 11AP352, 2011-Ohio-6766, ¶ 16. Likewise, the failure to plead a cl aim is fatal in the context of a Civ.R. 55 motion for default judgment. Chuparkoff v. Ohio Title Loans , 2019-Ohio-209, 131 N.E.3d 403, ¶ 10-11 (9th Dist.) (finding that regardless of any evidence of damages the plaintiff may have presented at the damages hearing, a revi ew of the plaintiff’s complaint revealed it was brief and notably vague, with no basi s for the unjust enrichment claim); Darfus v. Clark , 5th Dist. Fairfield No. 12-CA-9, 2013-Ohio-563, ¶ 66 (“It is within

the discretion of the trial court to determine whether further evidence is needed to support the plaintiff’s clai m against the defaulting defendant”). {¶64} Moreover, despite his claim that he needed “more time for disco very,” a review of the record reveals Mr. Sailors had more than ample ti me to prepare for the second, rescheduled evidentiary hearing. See Doe v. Canton Regency , 5th Dist. Stark No. 2010 CA 00048, 2010-Ohio-5976, ¶ 75 (finding that appellant ’s counsel had sufficient notice and adequate time to prepare for rescheduled damages hea ring where he stated18

Case No. 2021-L-011 he was available); Clark at ¶ 77 (finding that the trial court did not improperly condu ct damages hearing where the hearing was twice continued at appell ant’s request). {¶65} We also agree with the trial court’s determination that Mr. Sai lors introduced no evidence of fraudulent transfers of assets and failed to pro perly plead such a claim in his complaint. {¶66} Pursuant to R.C. 1336.04(A), which governs fraudulent transfers of assets: {¶67} “A transfer made or an obligation incurred by a debtor is fraud ulent as to a creditor, whether the claim of the creditor arose before, or wi thin a reasonable time not to exceed four years after, the transfer was made or the obligatio n was incurred, if the debtor made the transfer or incurred the obligation in either of the f ollowing ways: {¶68} “(1) With actual intent to hinder, delay, or defraud any credit or of the debtor; {¶69} “(2) Without receiving a reasonably equivalent value in exchang e for the transfer or obligation, and if either of the following applies: {¶70} “(a) The debtor was engaged or was about to engage in a busines s or a transaction for which the remaining assets of the debtor were u nreasonably small in relation to the business or transaction; {¶71} “(b) The debtor intended to incur, or believed or reasonably sh ould have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they

became due. {¶72} Mr. Sailors testified, “One of the trucks that I bought for the m years ago, the guy that was doing the countertops, Ed Potti, needed a truck an d so he said, ‘I’m going to buy Juan’s.’ So he needed the money to do that and on the t itle of that truck was [Ms. Rivera’s] name.” The court asked whether that was the only fra udulent transfer of which he was aware, and Mr. Sailors responded, “That’s the only one I know of.”19

Case No. 2021-L-011 {¶73} This lone testimony fails to meet the elements of a fraudulent transfer. Without evidence supporting each statutory element, Mr. Sailors ’ claim necessarily fails. {¶74} Likewise, we find no error in the trial court’s decision that M r. Sailors failed to establish the elements required to pierce the corporate veil

. {¶75} The Supreme Court of Ohio in Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Ins. , 67 Ohio St.3d 274, 617 N.E.2d 1075 (1993), established a threepronged test for courts to use when deciding whether to pierce the corporate veil. “The corporate form may be disregarded and individual shareholders h eld liable for wrongs committed by the corporation when (1) control over the corporat ion by those to be held liable was so complete that the corporation has no separate min d, will, or existence of its own, (2) control over the corporation by those to be held liabl e was exercised in such a

manner as to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to the plaintiff from such control and wrong.” Id . at paragraph three of the syllabus. {¶76} The court later modified the second prong, placing the burden o n the plaintiff

to “demonstrate that the defendant shareholder exercised contro l over the corporation in such a manner as to commit fraud, an illegal act, or a similarl y unlawful act.” Dombroski v. WellPoint, Inc. , 119 Ohio St.3d 506, 2008-Ohio-4827, 895 N.E.2d 538, syllabus. {¶77} There was no evidence presented at the hearing that the corpora te appellees were parties to any contract or promissory note, as a lleged by Mr. Sailors. Without evidence supporting all three prongs of the test, Mr. S ailors’ claim necessarily

fails. As we stated in State ex rel. Yost v. Church of Troy , 2020-Ohio-4695, 159 N.E.3d 818 (11th Dist.):20

Case No. 2021-L-011 {¶78} “‘[W]hether a court shall render a default judgment with or wit hout requiring evidence in support of the plaintiff’s claim rests in the sound discretion of the trial judge. * * * Having discretion to require evidence to support the plai ntiff’s allegations, it follows that the court should make [its] decision conform to the law as applicable to the facts proven, and if no cause of action is shown no default judgment in plaintiff’s favor should

be rendered.’” Id. at ¶ 44, quoting Streeton , supra , at 152. {¶79} Mr. Sailors’ third and fourth assignments of error are without merit. {¶80} The judgment of the Lake County Court of Common Pleas is affirm ed.

CYNTHIA WESTCOTT RICE, J., MATT LYNCH, J.,

concur.