dissenting.
{¶ 16} Being unable to agree with the majority’s conclusion that the trial court’s jury instruction regarding damages constitutes reversible error, I respectfully dissent.
{¶ 17} In our original opinion, I dissented from that portion of the majority opinion regarding Duffy Homes’ first assignment of error, in which Duffy Homes argued that the trial court failed to instruct the jury on the correct measure of damages consistent with Ohio Collieries Co. v. Cocke (1923), 107 Ohio St. 238, 140 N.E. 356. Specifically, Duffy Homes argued that under Ohio Collieries, the amount of damages recoverable for temporary injury to real property must be capped at the diminished value of the property, such that a plaintiff may not recover restoration costs that exceed the difference between the pre-injury and post-injury market value of the property. Alternatively, Duffy Homes argued that where restoration costs have been allowed to exceed the diminution in property value, they may not be grossly disproportionate to the diminution or the value of the property. Under both theories, Duffy Homes maintained that the absence of evidence of the diminution in market value of the Booths’ home was fatal to the Booths’ recovery of damages.
{¶ 18} In our original opinion, the majority concluded that the trial court had failed to properly instruct the jury on the measure of damages for the Booths’ breach-of-warranty claim, stating that while “the diminution in market value discussed in Ohio Collieries may not be an absolute limit on the recovery of damages * * *, the relationship between the repair costs and the diminution in market value of the real property remains a benchmark consideration for the trier of fact in awarding damages.” I respectfully dissented from the majority’s position based on the flexibility with which Ohio courts have applied the Ohio Collieries damage formulation, the absence of any evidence in the record regarding the market value of the Booths’ home with or without adequate drainage, and the trial court’s discretion to determine whether evidence presented is sufficient to warrant a particular instruction. I concluded that the trial court’s instruction, setting forth a correct, general statement of the law applicable to breach-of-contract claims, did not mislead the jury. I further concluded that the $300,000 judgment in favor of the Booths was not against the manifest weight of the evidence.
{¶ 19} The Supreme Court of Ohio accepted the Booths’ appeal on a single proposition of law, which stated as follows:
The general rule expressed in an action for breach of contract in Ohio Collieries Co. v. Cocke [ (1923) ] (1938), 107 Ohio St. 238[, 140 N.E. 356] limiting damages for injury to real property by the diminution in value caused by the breach does not apply to a claim where the physical damage has not yet *266occurred and the damages sought are for the cost of preventative remedial measures.
Simultaneous with the court’s acceptance of this proposition of law, the court remanded this matter for consideration of whether our judgment should be modified in view of Martin v. Design Constr. Servs., Inc., 121 Ohio St.3d 66, 2009-Ohio-1, 902 N.E.2d 10.
{¶ 20} For the most part, I agree with the majority’s discussion of Martin, in which the Supreme Court held that a plaintiff need not prove diminution in value to recover reasonable costs of restoration as a result of temporary damage to real property, but I disagree with the majority’s conclusions regarding the effect of Martin on this appeal. Martin essentially rejects the arguments raised by Duffy Homes under its first assignment of error. Certainly, under Martin, the trial court was not required to instruct the jury that recoverable restoration costs were limited to an amount equal to the diminution in market value of the Booths’ home as a result of the inadequate drainage. Thus, the trial court was not required to give the Duffy Homes’ proposed jury instruction setting forth the Ohio Collieries damages formulation. Furthermore, under Martin, it cannot be said that the absence of evidence regarding diminution in value was fatal to the Booths’ claim of damages because Martin is clear that evidence of diminution in value is not required. Nevertheless, on remand, the majority again concludes that the trial court erred in its jury instructions, not by refusing an instruction based on Ohio Collieries, but by not explicitly instructing the jury that damages based on restoration costs must be reasonable.
{¶ 21} Prior to the Supreme Court’s remand in this matter, neither party argued that the trial court erred by not including in its instructions an express requirement that the amount of the repair costs must be reasonable. Instead, the Booths’ proposition of law accepted by the Supreme Court concerned only the applicability of the Ohio Collieries cap of restoration costs. Moreover, the focus of Duffy Homes’ arguments to the trial court and on appeal to this court has been that the trial court erred by not instructing the jury that restoration costs could not exceed the diminution in value of the Booths’ home or, alternatively, could not be grossly disproportionate to the diminution in value. Under both theories, Duffy Homes’ primary contention was that in the absence of evidence of diminution in value, the Booths failed to establish damages. Martin rejected those arguments.
{¶ 22} Because the Supreme Court rejected a requirement for evidence of diminution in value, because no party assigned as error the absence of an explicit instruction that the amount of the repair costs must be reasonable, and for the additional reasons expressed in my previous dissent, I conclude that the trial court’s instructions, which set forth a correct, general statement of the law *267applicable to a breach-of-contract claim, did not mislead the jury. Accordingly, I would again overrule Duffy Homes’ first assignment of error.