Perkins v. Petrilli , 2022 Ohio 2029 ( 2022 )

[Cite as Perkins v. Petrilli, 2022-Ohio-2029.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
DON PERKINS DBA A1 CONCRETE
LEVELING AND FOUNDATION REPAIR,
Plaintiff-Appellant,
v.
JOSEPH PETRILLI,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0089
Civil Appeal from the
Mahoning County Court Number Five of Mahoning County, Ohio
Case No. 2019 CV F 0032 CNF
BEFORE:
Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. Scott R. Cochran, 19 E. Front Street, Youngstown, Ohio 44503 for Plaintiff-Appellant
and
Atty. Matthew C. Giannini, 1040 S. Commons Place, Suite 200, Youngstown, Ohio 44514,
for Defendant-Appellee, No Brief Filed.
–2–
Dated: June 15, 2022
Robb, J.
{¶1} Plaintiff-Appellant Don Perkins, dba A1 Concrete Leveling and Foundation
Repair, appeals the decision of the Mahoning County Court Number Five, wherein the
court rejected his claims seeking the balance due from Defendant-Appellee Joseph Petrilli
on a construction project. Appellant contends the court’s decision was against the
manifest weight of the evidence. For the following reasons, the trial court’s decision is
affirmed.
STATEMENT OF THE CASE
{¶2} On May 12, 2015, the parties executed a contract calling for Appellant to
perform the following work on a wall around Appellee’s patio:
remove all of the existing brick on the walls and steps. Cement block will
be returned to original position (replaced if cracked). The block will be filled
with rebar every 16” and made solid with Portland cement. The area behind
the wall will be excavated to remove existing soil and replaced with clean
gravel. Drains will be opened or replace[d] to allow water to flow from behind
the wall. All brick replaced. Return to rough grade.
The contract also said, “Block will be chosen by customer from sample board as close to
house brick.” The testimony indicated this should have said brick instead of block. (Tr.
49).
{¶3} The contract price was $15,000. (Def.Ex. 1); (Tr. 24 Stipulation). Appellee
paid $7,500 on June 3, 2015 but thereafter refused to pay the remaining $7,500.
{¶4} Appellant filed a complaint against Appellee with claims for breach of
contract and unjust enrichment, seeking the unpaid balance. Appellee’s answer raised
various defenses, such as failure of consideration and unclean hands. Appellee
counterclaimed for breach of contract, alleging Appellant failed to perform in a
workmanlike manner and used defective materials, which breached the agreement and
caused additional property damage. Appellee also set forth a breach of warranty claim.
{¶5} The case was tried to the court. Appellant testified he owned the company
for 22 years, stating they do some walls but 75% of their work is concrete leveling. He
Case No. 21 MA 0089
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generally did not participate much in the construction work. (Tr. 6). He said Appellee’s
old wall was deteriorating, crumbling, and spalling, which may have been from age and
water leaching through the brick. (Tr. 27-28). For the replacement wall, he acknowledged
providing a five-year warranty for any workmanship issues. (Tr. 44).
{¶6} The new wall spanned approximately 50 feet with a break between the two
sections for brick stairs. (Tr. 32). From the photographs, the brick wall appeared to be
waist high. The section that was a retaining wall was also bench seating (with the top
part of the wall constituting the back of the seating). When asked if the bench was level,
Appellant acknowledged that some of the bench had a “dip” causing water to pool when
it rains. (Tr. 37).
{¶7} On the issue of drainage from behind the retaining wall, Appellant admitted
he was to install weep holes through the wall so the area behind the wall could drain
(rather than deteriorate the wall or freeze behind it). (Tr. 9, 16). He acknowledged he
used river rock as fill after excavating the soil, rather than the gravel called for by the
contract. (Tr. 39). He did not install drainage pipe (or tile) behind the weep holes, claiming
the non-conforming rock would allow for drainage while noting the contract did not specify
pipe. (Tr. 40, 46-47).
{¶8} Appellant’s attorney asked whether anything occurred during the time the
mortar may have been still curing, and Appellant said a brick came off the wall when
Appellee put his hand on it as he was using the stairs. (Tr. 14). Appellant concluded the
wall had no structural problems and was very functional. (Tr. 15, 37, 51). He
acknowledged it was not a perfect wall and there were cosmetic issues (such as an oddly
large seam of mortar compared to the other seams) but opined the wall looked good with
no movement, deterioration, or evidence of leaching. (Tr. 15, 37, 46-48).
{¶9} On the issue of color, the brick did not match the house or the small portion
of the old wall which was left intact adjacent to the house. Appellant acknowledged
Appellee may have instructed him to make the final choice but pointed out Appellee was
contractually responsible for choosing the color. (Tr. 38, 49). However, some of the new
bricks seemed as if they did not match each other.
{¶10} Appellee’s daughter testified she lived with her father and was living there
during construction. At the time, Appellee was recovering from back surgery and could
Case No. 21 MA 0089
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not oversee the work on his patio. (Tr. 63, 81). The daughter spoke about some
photographs she took, showing: the retaining portion of the wall; water pooling on the
bench; the river rock and the absence of drainage pipes discovered during an
investigatory excavation; and a worker drinking beer on the wall. When she complained
to Appellant about the beer, he told her to go tell the workers to stop drinking. (Tr. 62).
{¶11} The daughter used a level to determine the wall was not level. (Tr. 71). The
mortar from where the brick fell off eventually crumbled away a year later. (Tr. 70-71).
She said the extra-large seam of mortar ran the entire length of the wall and was not
merely in one area as Appellant suggested. (Tr. 68). Within three to four weeks of
construction, she noticed mortar “popping off” which thereafter continued to occur on a
regular basis; she brought a baggie of the scraps representing what she regularly cleaned
from the patio. (Tr. 69).
{¶12} She also testified there were “giant cracks” in both sections of the wall, but
the court would not permit her to show the photographs due to the failure to provide them
in discovery (with the court noting she could testify about the cracks). (Tr. 69, 71, 75-77).
She was also not permitted to testify about the three estimates she obtained to repair the
wall, but the court agreed to consider her testimony on wanting the wall replaced. (Tr.
65-67). Finally, the daughter showed a photograph of a scratch running down the
driveway, which was caused when Appellant’s Bobcat trailer fell apart and scraped the
asphalt as they drove away. (Tr. 74).
{¶13} Appellee testified his old wall was built with the house in 1979 and was
cracked, peeling, and spalling from water pushing through the brick. (Tr. 79-80).
Drainage was one of the main items he wanted from the contract in order to avoid the
same situation. (Tr. 89). He assumed that since the soil was being removed, the
additional contract requirement that “Drains will be opened or replace[d] to allow water to
flow from behind the wall” would include the installation of perforated pipes leading to the
installed weep holes (opining it was common sense and noting he has never witnessed
the weep holes functioning). (Tr. 90).
{¶14} Appellee also complained about the following: the use of river rock instead
of gravel; the wall being “half a bubble” off level all around; the pooling of water on the
bench; the mortar spontaneously flaking off; grit from the mortar falling off when rubbed
Case No. 21 MA 0089
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(which he attributed to too much sand in the mortar); the variations in mortar spacing
(between .25 and 2 inches); the varying colors of bricks; and the use of red when he was
shown a choice of browner colors (with no sample board being provided). (Tr. 83-88).
{¶15} Appellee noted he engaged in masonry side jobs in his past, as his father-
in-law owned a masonry company. (Tr. 78-79). He said a worker had to restart the steps
four times as though he had no experience. (Tr. 88). He also witnessed a worker applying
mud with his hand, using the trowel as if it were a level, and starting the next course
without using an actual level. (Tr. 83). After three to four weeks of working on the wall,
Appellee noticed the workers left four cases of empty beer cans behind. (Tr. 82).
{¶16} On July 13, 2021, the court released a judgment, which essentially
maintained the monetary status quo, disallowing either party from collecting additional
money. The court quoted from the contract and set forth the parties’ arguments. The
court said the contract included a common law duty of good faith and fair dealing and an
implied duty to construct in a workmanlike manner. The court mentioned aesthetic
considerations and set forth Appellee’s arguments on the mortar’s continual crumbling
and on the employees “drinking alcohol on the job, which may have contributed to the
alleged poor construction.” The court emphasized Appellant’s failure to construct a level
wall. The court concluded Appellant did not perform in a workmanlike manner, rejected
the breach of contract claim for the unpaid balance, and indicated unclean hands and
equity did not support Appellant’s recovery of additional sums (which implicitly rejected
the unjust enrichment claim).
{¶17} The court also rejected various counterclaim arguments set forth by
Appellee on damages, found Appellee could not complain about the brick color because
he chose it, and adopted Appellant’s argument on the absence of drainage pipes by
finding he was only contractually “responsible for replacing existing drainage, which both
parties acknowledge was non-existent.” Appellee did not file a cross-appeal or an
appellate brief (instead filing a notice stating no brief would be filed).
ASSIGNMENT OF ERROR ONE
{¶18} Appellant’s first assignment of error contends:
“The Trial Court’s decision that Appellant failed to perform the contract in a
workmanlike manner was against the manifest weight of the evidence.”
Case No. 21 MA 0089
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{¶19} When a contractor enters an agreement to provide future services, the
contractual agreement contains an implied duty to construct the improvement in a
workmanlike manner. Kishmarton v. William Bailey Constr., Inc., 93 Ohio St.3d 226, 229,
2001-Ohio-1334, 754 N.E.2d 785. “In a construction contract, a breach of the implied
duty to perform in a workmanlike manner constitutes a breach of the contract.” Yashphalt
Seal Coating LLC v. Giura, 7th Dist. Mahoning No. 18 MA 0107, 2019-Ohio-4231, ¶ 18.
{¶20} “A duty is imposed by law upon a builder-vendor of a real-property structure
to construct the same in a workmanlike manner and to employ such care and skill in the
choice of materials and work as will be commensurate with the gravity of the risk involved
in protecting the structure against faults and hazards, including those inherent in its site.”
Id. at ¶ 16, quoting Jones v. Centex Homes, 132 Ohio St.3d 1, 2012-Ohio-1001, 967
N.E.2d 1199, ¶ 6. “The implied warranty to perform in a workmanlike manner requires
that those who repair or modify existing tangible goods or property perform the service
using proper materials and workmanlike skill and judgment.” Id. at ¶ 17.
{¶21} The court found Appellant failed to perform as promised or in a workmanlike
manner. In contesting this decision, Appellant points out he has 22 years of experience
of owning a company that levels concrete slabs and constructs walls and he testified the
performance was rendered in a workmanlike manner. Appellant acknowledges Appellee
was not required to obtain an expert for trial but contends the defect surrounding the
unlevel bench does not show a failure to perform in a workmanlike manner and concludes
the court’s decision was contrary to the manifest weight of the evidence.
{¶22} Weight of the evidence involves the persuasive effect of the evidence when
considering whether a burden was met, which entails an evaluation of “the greater amount
of credible evidence, offered in a trial, to support one side of the issue rather than the
other.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12,
19 (it is not a question of mathematics but depends on the effect of the evidence in
inducing belief). The burden in a civil trial is preponderance of the evidence, which is
defined “as that measure of proof that convinces the judge or jury that the existence of
the fact sought to be proved is more likely than its nonexistence.” State ex rel. Doner v.
Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 54. Under a
preponderance of the evidence standard, the evidence need not give rise to a firm belief
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as to the facts sought to be established. Id. (which is the higher clear and convincing
standard).
{¶23} When considering a manifest weight of the evidence challenge, the
appellate court weighs the evidence and all reasonable inferences, considers the
credibility of witnesses, and determines whether in resolving conflicts in the evidence, the
fact-finder clearly lost its way and created such a manifest miscarriage of justice that the
judgment must be reversed. Eastley, 132 Ohio St.3d 328 at ¶ 20, citing State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997) (the power of the appellate
court to reverse a judgment as being against the manifest weight of the evidence is to be
exercised only in the exceptional case in which the evidence weighs heavily against the
judgment).
{¶24} The trier of fact is in the best position to weigh the evidence and judge the
witnesses' credibility by observing their gestures, voice inflections, and demeanor
Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). “In
weighing the evidence, the court of appeals must always be mindful of the presumption
in favor of the finder of fact.” Eastley, 132 Ohio St.3d 328 at ¶ 21 (making every
reasonable presumption in favor of the judgment and the finding of facts). “If the evidence
is susceptible of more than one construction, the reviewing court is bound to give it that
interpretation which is consistent with the verdict and judgment, most favorable to
sustaining the verdict and judgment.” Id., quoting Seasons Coal, 10 Ohio St.3d at 80.
{¶25} As to the unlevel bench allegation, Appellant acknowledges a photograph
showed the bench contained a dip and was not level, which allowed water to pool on the
sitting area. As for the trial court’s finding that the entire wall was not level, Appellant
argues the only evidence on levelness related to the bench part of the wall. However,
Appellee testified he used a level and found the wall was not level “all the way around.”
(Tr. 85). His daughter also testified she used a level to determine the wall was not level.
(Tr. 71).
{¶26} Furthermore, regardless of the issue concerning the lack of drainage pipes,
there is the undisputed fact that Appellant buried river rock behind the wall instead of the
bargained for gravel. Appellee testified he never witnessed the functioning of the weep
holes installed by Appellant. It is also concerning that mortar regularly would fall off the
Case No. 21 MA 0089
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wall on its own and come loose when rubbed. There was testimony about the workers
drinking alcohol and some unorthodox techniques and results. Appellant agreed there
were large variations in mortar spacing. Additionally, Appellee’s daughter also testified
to cracks forming in both sections of the wall.
{¶27} Upon weighing the evidence and all reasonable inferences, it does not
appear the fact-finder clearly lost its way in resolving credibility issues or conflicts in the
evidence in order to conclude the work was not performed in a workmanlike manner.
There is not “such a manifest miscarriage of justice that the judgment must be reversed,”
as this is not the exceptional case where the evidence weighs heavily against the
judgment. Eastley, 132 Ohio St.3d 328 at ¶ 20. This assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
{¶28} Appellant’s second assignment of error alleges:
“The Trial Court’s decision that Appellant had breached the contract and, by
inference, that it had not substantially completed the contract was against the manifest
weight of the evidence.”
{¶29} Appellant states only substantial performance is required in order for an
unpaid party to show a breach of contract, and he assumes the trial court implicitly found
he failed to substantially perform the contract. Appellant urges he substantially performed
under the contract, citing cases where the court found the defective work did not constitute
a lack of substantial performance.
{¶30} “It is an old rule of law, as old as the law of contracts, that where one party
has substantially performed his part of the contract, he may call upon the other party to
perform his part of the contract; or, such party failing so to perform, he may sue for breach
of contract.” Ohio Farmers' Ins. Co. v. Cochran, 104 Ohio St. 427, 434, 135 N.E. 537(1922). “Where there is substantial performance upon one side, there should be
substantial performance upon the other side; and there is substantial performance upon
one side when such performance does not result in any wrongful substantial injury to the
other side.” Id.{¶31} “For the doctrine of substantial performance to apply, the part unperformed
must not destroy the value or purpose of the contract.” Hansel v. Creative Concrete &
Masonry Constr. Co., 148 Ohio App.3d 53, 56, 2002-Ohio-198, 772 N.E.2d 138, ¶ 12
Case No. 21 MA 0089
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(10th Dist.) (also framing the question as whether the contractor’s performance could be
considered a material breach). “[A] breach of one of several terms in a contract does not
discharge the obligations of the parties to the contract, unless performance of that term
is essential to the purpose of the agreement, and default by a party who has substantially
performed does not relieve the other party from performance.” Id. at ¶ 11, citing Kersh v.
Montgomery Developmental Ctr., 35 Ohio App.3d 61, 62, 519 N.E.2d 665 (1987).
{¶32} In the Hansel case cited by Appellant, a driveway had defects including the
following: cracking, scaling, and pitting which resulted from the contractor’s failure to
perform in a workmanlike manner; misplacement of the wire mesh with an uneven
subbase; and a depth averaging less than the contracted thickness. Id. at ¶ 16. The
Tenth District affirmed the decision finding the contractor substantially performed under
the contract because “while appellants did not receive exactly what they bargained for,
the driveway still met its essential purpose.” Id. at ¶ 16, 24 (finding no evidence the
driveway was unusable or would soon become so). In discussing the homeowner’s
recovery, the court also affirmed the reduction of the contract price by an amount found
reasonable by the trial court (rather than granting the homeowner the full replacement
cost). Id. at ¶ 25-29.
{¶33} In an Eleventh District case relied on by Appellant, the contractor
constructed a foundation slab for a storage hut that was thinner at some points than
contractually required. Applying the principles in Hansel, the court affirmed the finding of
substantial performance by the contractor as there was no credible evidence the contract
failed its essential purpose. Davis v. J & J Concrete, 11th Dist. Trumbull No. 2018-T-
0074, 2019-Ohio-1407, ¶ 15 (and upholding the refusal to grant the homeowner the full
cost of replacement). The Davis court listed some factors relevant to considering whether
the existence of a defect still resulted in substantial performance: the purpose of the
contract; the wishes filled by the contract; the excuse for the deviation from contractual
specifications; and the balance between requiring strict adherence versus requiring the
other party to accept less than the bargained-for promise. Id. at ¶ 21.
{¶34} Where parts of a parking lot were not as thick as required by the contract,
“the fact that appellant testified at trial that he is using the parking lot for its intended
purpose supports the trial court's conclusion that appellee substantially complied with the
Case No. 21 MA 0089
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contract.” Yashphalt Seal Coating, 7th Dist. No. 18 MA 0107 at ¶ 39 (among other
considerations). We point out the decisions in Hansel, Davis, and Yashphalt all involved
affirming the trial court’s decision on substantial performance, but Appellant is asking this
court to reverse on weight of the evidence grounds.
{¶35} Appellant looks at the balance of equities in accepting less than the
bargained for amount by complaining he lost the expected profit and some of his costs
while Appellee received what Appellant claims was a fully functional and structurally
sound wall with a bench at half price. He essentially estimated he paid $4,500 in materials
and $6,500 in labor while expecting to make a profit of $4,000 on the $15,000 contract
price (of which he was paid $7,500).1 In urging he substantially completed the contract,
Appellant says the wall is functional and serves its essential purpose under the contract;
the issues raised were cosmetic; and the defect with the bench was minor in relation to
the entire wall project.
{¶36} Nevertheless, the trial court did not say Appellant failed to substantially
complete the contract. Appellant’s assignment of error acknowledges he is inferring the
court applied this principle to rule against him. However, the trial court addressed
workmanlike conduct, which Appellant addressed in his prior assignment of error.
Although the trial court’s judgment may be somewhat unclear in its structure and its
wording (such as on claims being “dismissed”), various holdings are supported by the
evidence and the result is not contrary to the manifest weight of the evidence. See
generally Grace v. Pecorelli, 7th Dist. Columbiana No. 19 CO 0028, 2020-Ohio-4820, ¶
59 (allegedly wrong reasons are not necessarily prejudicial if the result is supported).
{¶37} In fact, Appellant acknowledges in the conclusion of his brief that if we find
he rendered substantial performance, then we should remand for the trial court to deduct
from his recovery a reasonable amount of damages for the defective bench. This is based
on the holding: “substantial compliance will support a recovery of the contract price less
allowance for defects in performance or damages for failure to strictly comply with the
contract.” Hansel, 148 Ohio App.3d 53 at ¶ 13 (affirming the trial court’s arrival at an
amount less than the requested full reconstruction cost).
1 Appellant’s brief mistakenly uses the pre-stipulation figure of $15,500 in making calculations.
Case No. 21 MA 0089
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{¶38} This is what the trial court’s judgment accomplished. Appellee wished to
recover the full cost to reconstruct the wall (and additional sums). There is some evidence
of the cost of wall reconstruction in that we know what Appellant himself charged Appellee
to reconstruct the old wall ($15,000). The trial court essentially rejected Appellee’s
damage request to the extent it sought more than to be relieved from paying the remaining
$7,500 balance, and Appellee did not appeal. Appellant basically acknowledges Appellee
showed some reduction was warranted.
{¶39} Appellant’s contention that the unlevel bench was the only compensable
defect need not be accepted by the trier of facts, who occupied the best position to weigh
the evidence, make inferences, and judge credibility. The trial court made a factual finding
that the entire wall was not level (which was not limited to merely the bench that Appellant
acknowledges was not level). As discussed in the prior assignment of error, this was
supported by the testimony. Moreover, the evidence established other defects, including
mortar that regularly “pops off” and that peels off when rubbed. We refer back to our
above discussion of unworkmanlike performance on various aspects of the project.
Furthermore, cosmetic defects are compensable under Appellant’s recovery theory
(reduction for defective bench).
{¶40} In sum, we reject Appellant’s contention that a finding of substantial
performance on appeal should result in a remand for a reduction of the balance owed to
him minus the defects. The court’s judgment accomplished this and did not find a lack of
substantial performance as alleged in this assignment of error.
{¶41} For the foregoing reasons, the trial court’s judgment is affirmed.
Waite, J., concurs.
D’Apolito, J., concurs.
Case No. 21 MA 0089
[Cite as Perkins v. Petrilli, 2022-Ohio-2029.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Mahoning County Court Number Five of Mahoning County, Ohio, is affirmed. Costs to
be taxed against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.