Revilo Tyluka, L.L.C. v. Simon Roofing & Sheet Metal Corp. , 193 Ohio App. 3d 535 ( 2011 )

[Cite as Revilo Tyluka, L.L.C. v. Simon Roofing & Sheet Metal Corp., 193 Ohio App.3d 535, 2011-Ohio-1922.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94952
REVILO TYLUKA, L.L.C.,
APPELLANT and
CROSS-APPELLEE,
vs.
SIMON ROOFING & SHEET METAL
CORPORATION,
APPELLEE and
CROSS-APPELLANT.
JUDGMENT:
AFFIRMED IN PART; REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-657574
BEFORE: Keough, J., Kilbane, A.J., and Sweeney, J.
RELEASED AND JOURNALIZED: April 21, 2011
Corsaro & Associates Co., L.P.A.,Christian M. Bates, Joseph G. Corsaro, and
Scott P. Roe, for appellant and cross-appellee.
Glenn R. Osborne and Robert M. Palma, for appellee and cross-appellant.
KATHLEEN ANN KEOUGH, Judge.
{¶ 1} Plaintiff-appellant and cross-appellee, Revilo Tyluka, L.L.C.
(“Revilo”), appeals the trial court’s decision that the roof replaced by
defendant-appellee and cross-appellant, Simon Roofing & Sheet Metal
Corporation (“Simon Roofing”), is in compliance with the Ohio Basic Building
Code. Simon Roofing cross-appeals challenging the trial court’s
determination and award of damages. For the following reasons, we affirm
the trial court’s decision, but we remand for a redetermination of damages.
{¶ 2} In 2008, Revilo filed a complaint against Simon Roofing alleging
breach of contract, negligence, breach of warranty of fitness for a particular
purpose, and fraudulent inducement, concerning a replacement roof installed
by Simon Roofing at Revilo’s facility located on Kelly Avenue in Cleveland,
Ohio. Simon Roofing filed a counterclaim seeking payment of the
outstanding balance due from Revilo. The matter proceeded to a bench trial,
at which both Revilo and Simon Roofing presented witnesses, including
experts in the field of roof construction. Revilo also presented two engineers.
On the final day of trial, the trial judge viewed Revilo’s roof on site.
{¶ 3} At the close of the testimony and evidence, the parties submitted
posttrial briefs and proposed findings of fact and conclusions of law. The trial
court found that although the replacement roof was in compliance with the
Ohio Basic Building Code, there were some deficiencies with the roof.
Therefore, the trial court awarded damages in favor of Revilo in the amount of
$57,500. This award was offset against the remaining balance owed by Revilo
to Simon Roofing. Accordingly, Revilo was ordered to pay Simon Roofing
$53,593, plus interest from July 2, 2007. The trial court issued findings of
facts and conclusions of law supporting its decision in March 2010.
{¶ 4} Revilo appeals, raising six assignments of error. Simon Roofing
cross-appeals, challenging the court’s determination and award of damages.
{¶ 5} When reviewing civil appeals from bench trials, we apply a
manifest-weight standard of review. App.R. 12(C); Seasons Coal v. Cleveland
(1984), 10 Ohio St.3d 77, 461 N.E.2d 1273. We presume that the trial court’s
findings were correct and will not reverse its decision as against the manifest
weight of the evidence if it is “supported by some competent, credible evidence
going to all the essential elements of the case.” Id. at 80, quoting C.E. Morris
Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus.
Revilo’s Appeal
{¶ 6} Revilo argues in its first and second assignments of error that the
trial court’s finding that the roof was in compliance with the Ohio Basic
Building Code and that Simon Roofing was therefore not contractually
obligated to add slope to the roof was contrary to law and against the manifest
weight of the evidence.
{¶ 7} In its findings of fact, the trial court stated that Section 1510.1 of
the Ohio Basic Building Code “requires that for any reroofing job, the roof as
installed must have a minimum of two percent (2%) slope or have ‘positive roof
drainage.’” (Emphasis added.) The trial court found that Revilo’s original roof
did not have any slope. However, the trial court found that the “roof has
positive roof drains throughout the roof,” and determined that any “standing
water on the roof” could be corrected by installing additional drains.
{¶ 8} In its conclusions of law, the trial court, concluded that “[t]he
parties did not bargain for a sloped roof, nor was one required to be installed as
there were positive roof drains that alleviated any ponding of water, except in
certain areas where an additional four drains * * * are to be installed, and that
the roof meets applicable building codes.”
{¶ 9} Revilo argues on appeal that the trial court erred as a matter of
law in finding that the roof, as installed by Simon Roofing, complied with the
Ohio Basic Building Code. Revilo specifically argues that the roof is not in
compliance with the Ohio Basic Building Code because (1) the roof, as
installed, does not have the requisite degree of slope and (2) the number of
fasteners used to secure the insulation to the roof decking is not in accordance
with the manufacturer’s specifications.
Code Compliance: Slope versus Positive Roof Drainage
{¶ 10} Revilo first contends that the trial court erred in its interpretation
of the Ohio Basic Building Code, specifically the section pertaining to
reroofing. Ohio Adm.Code 4101:1-15, titled “Roofs,” codifies the Ohio Basic
Building Code (“the code”) for “Roof Assemblies and Rooftop Structures.” 1
Ohio Adm.Code 4101:1-15-01.
{¶ 11} “Reroofing” is governed by Section 1510 of the code. Section
1510.1 generally provides that “materials and methods of application used for
recovering or replacing an existing roof covering shall comply with the
requirements of Chapter 15.” However, this general rule contains an
exception, which states: “Reroofing shall not be required to meet the
minimum design slope requirement of one-quarter unit vertical in 12 units
Reference to the provisions of the Ohio Basic Building Code will be made in this court’s
1
opinion.
horizontal (2-percent slope) in Section 1507 for roofs that provide positive roof
drainage.”
{¶ 12} The debate in this case centers around this exception to the
general rule. Revilo argues on appeal that the exception requires a replaced
roof to have the requisite 2 percent slope unless the existing roof already
provided positive roof drainage. Simon Roofing, however, claims that the
replaced roof must have either 2 percent slope or positive roof drainage. Or,
to put it differently, the 2 percent slope is not required if the replaced roof
provides positive roof drainage.
{¶ 13} Irrespective of our reading of the code, we find that Revilo is
attempting to assert a different interpretation of the code than it asserted in
the trial court. After trial, Revilo submitted proposed findings of fact and
conclusions of law to the trial court and requested that they be adopted.
Specifically, Revilo submitted the following:
{¶ 14} “9. Section 1510.1 of the Ohio Basic Building Code requires that
for any re-roofing job, the roof as installed must have a minimum of two
percent (2%) slope or have ‘positive roof drainage.’
{¶ 15} “* * *
{¶ 16} “11. The roof as installed by Simon Roofing did not have the
minimum two percent (2%) slope as required by the Ohio Basic Building Code.
{¶ 17} “12. The roof as installed by Simon Roofing did not provide for
‘positive roof drainage’ because water did not drain off the roof within
forty-eight (48) hours of rainfall. * * *
{¶ 18} “* * *
{¶ 19} “27. The roof as installed by Simon Roofing is in violation of the
Ohio Basic Building code because it does not have the requisite two percent
(2%) slope and does not provide for positive roof drainage.” (Emphasis
added.)
{¶ 20} The trial court adopted (as requested by Revilo) Revilo’s
interpretation of Section 1510.1 of the code that “for any re-roofing job, the
roof, as installed must have a minimum of two percent (2%) slope or have
‘positive roof drainage.’”2
{¶ 21} On appeal, Revilo argues that the trial court erred in this
interpretation. Revilo now maintains for the first time that Section 1510.1
requires “that when replacing an existing roof (a re-roof job), the replacement
roof must provide the requisite two percent (2%) slope, unless the existing
structure already has ‘positive roof drainage.’” Specifically, Revilo asserts,
Revilo asserted this same interpretation of the code in its motion for a new trial. “Section
2
1510.1 provides that a re-roofing project must provide for 2% slope to the roof, or positive roof
drainage. There is no dispute that the roof as installed does not have the requisite 2% slope set forth
in the Code. Therefore, the roof as installed must have what the Code refers to as ‘positive roof
drainage’ which both sides agree means that water drains from the roof within forty-eight (48) hours
after rainfall.”
“[t]he trial court appears to have taken the position that the finished product
(i.e. the roof as replaced by Simon Roofing) had an adequate number of drains,
had ‘positive roof drainage’ and therefore fell under the exception in Section
1510.1. * * * Section 1510.1 speaks very clearly to the fact that the operative
question is whether or not the existing structure (i.e. the roof that was
replaced by Simon Roofing) had ‘positive roof drainage.’ Section 1510.1
clearly provides that it is only when the existing structure has ‘positive roof
drainage’ that the re-roofer does not need to add slope.”
{¶ 22} These appellate arguments are explicitly contrary to the
arguments Revilo maintained below. Revilo argued to the trial court that
according to the code, the roof as installed by Simon Roofing needed to have
either slope or positive roof drainage. Both Revilo and the trial court’s
analysis focused on whether the roof as installed satisfied the code’s
requirements. Revilo did not argue, and the trial court did not address, the
alternate interpretation of the code that Revilo now advances on appeal.
Thus, applying the general rule of waiver, Revilo has waived this new
argument and cannot now assert it on appeal.
{¶ 23} In State ex rel. Gutierrez v. Trumbull Cty. Bd of Elections (1992),
65 Ohio St.3d 175, 177, 602 N.E.2d 622, the Ohio Supreme Court held that an
“[a]ppellant cannot change the theory of his case and present these new
arguments for the first time on appeal.”
{¶ 24} Although exceptions to the waiver doctrine exist, appellate courts
are particularly loath to depart from the waiver doctrine when a party makes
an argument on appeal that directly contradicts the argument asserted below.
Republic Steel Corp. v. Cuyahoga Cty. Bd. of Revision (1963), 175 Ohio St. 179,
184-185, 192 N.E.2d 47, quoting Coppin v. Hermann (Cincinnati Super.1899),
7 Ohio N.P. 528 (holding that issues that “‘are diametrically opposed to the
theory upon which the plaintiff proceeded below can not be raised for the first
time on review’”). See also Kraft Constr. Co. v. Cuyahoga Cty. Bd. of Commrs.
(1998), 128 Ohio App.3d 33, 713 N.E.2d 1075. “‘The theory upon which the
case was submitted and argued in the [trial] court cannot, when an adverse
judgment results, be discarded and a new, contradictory theory be substituted
and successfully invoked on appeal.’” Zawahiri v. Alwattar, Franklin App.
No. 07AP-925, 2008-Ohio-3473, ¶17, quoting Sperle v. Michigan Dept. of Corr.
(C.A.6, 2002), 297 F.3d 483, 494.
{¶ 25} Appellate courts refuse to review contradictory arguments
because they offend the purpose behind the waiver doctrine. Id. Rejecting
an argument pursuant to the waiver doctrine, “ ‘protect[s] the role of the courts
and the dignity of the proceedings * * * by imposing upon counsel the duty to
exercise diligence in his or her own cause and to aid the court rather than
silently mislead it into the commission of error.’ ” Id. at ¶ 18, quoting State ex
rel. Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78, 81, 679 N.E.2d
706.
{¶ 26} When an appellant makes a contradictory argument on appeal, it
has more than just “silently misled” the trial court into the commission of
error; instead, it has affirmatively invited the error it complains of on appeal.
Id. “‘[I]t is the well-settled rule that a party will not be permitted to take
advantage of an error which he himself invited or induced the trial court to
make.’” Fostoria v. Ohio Patrolmen’s Benevolent Assn., 106 Ohio St.3d 194,
2005-Ohio-4558, 833 N.E.2d 720, ¶12, modified on other grounds, 107 Ohio
St.3d 1426, 837 N.E.2d 1210, quoting Lester v. Leuck (1943), 142 Ohio St. 91,
92, 50 N.E.2d 145.
{¶ 27} We find that Revilo prevailed when the trial court interpreted the
code as it requested but now claims error because it did not receive the desired
result. We are not inclined to address Revilo’s new argument on appeal,
because Revilo cannot take advantage of the error it induced. Accordingly,
we do not address whether the trial court erred in its interpretation of the code
when it determined that the code did not require Simon Roofing to add slope to
the replaced roof.
{¶ 28} Revilo also asserts that the trial court’s determination that “[t]he
parties did not bargain for a sloped roof” was against the manifest weight of
the evidence because the contract provided that the roof would be replaced
according to the code. Again, Revilo argues that because the existing roof did
not have positive roof drainage, the code required Simon Roofing to add slope
to the new roof. Because Revilo is making the same argument as discussed
above, we will not address it on appeal. We find that the trial court
interpreted the code as Revilo requested and, according to that interpretation,
the parties did not specifically bargain for a sloped roof because the code did
not require slope to be added.3
{¶ 29} We will, however, address Revilo’s argument that the trial court’s
finding that the roof as installed by Simon Roofing has positive roof drainage
is against the manifest weight of the evidence. The trial court, in amended
finding No. 8, stated, “The roof has positive roof drains throughout the roof
which were kept after the re-roofing and the size of the sump basins of each
were generally expanded to assist in the drainage of rain water. Several
small areas persist in slow drainage or evaporation (an aluminum coating as
specified in the contract lessens heat build-up of the roof with a corresponding
slowing of evaporation) (i.e., the water does not heat up over a hot roof and
flash off as quickly).”
{¶ 30} According to the interpretation of the code advanced by Revilo and
adopted by the trial court, the roof as installed by Simon Roofing had to have
Our decision in this case is fact-specific and should not be cited as authority for this court’s
3
interpretation of the Ohio Basic Building Code.
either 2 percent slope or positive roof drainage to comply with the code. It is
undisputed that the roof before and after replacement did not have 2 percent
slope. Accordingly, in order to comply with the code, the roof as installed had
to have positive roof drainage.
{¶ 31} Pursuant to Section 1502.1 of the code, “positive roof drainage”
means “[t]he drainage condition in which consideration has been made for all
loading deflections of the roof deck, and additional slope has been provided to
ensure drainage of the roof within 48 hours of precipitation.”
{¶ 32} The facility-condition report prepared by Simon Roofing indicated
that the drainage on the existing roof was “inadequate.” At trial, A.J.
Turner, the sales representative for Simon Roofing who prepared the
facility-condition report, testified that he recommended that the existing roof
be replaced because drainage was inadequate due to the ponding of water.
He testified that ponding water prematurely deteriorates a roofing system
that was not designed to perform under those conditions. According to
Turner, the existing roof membrane was a modified granulated built-up roof
that breaks down due to ponding water. He testified that ponding water
could be the result of many things, including the settling of the building,
inadequate drains, debris build up around the drains, and wet insulation. In
fact, he testified that when he did the core sample from the existing roof, he
found that the insulation was saturated.
{¶ 33} Turner testified that the drains were sumped and the basins
surrounding the drains were expanded for the new roof. This process
involved placing tapered insulation around the drains to funnel the water
toward the drains. Turner testified that no additional drains were installed,
but the roofing system that Revilo contracted for was designed to withstand
any ponding water. This system included new, thicker insulation and a
watertight membrane. Turner also testified that sumping the drains aids in
removing water from a roof and would provide positive roof drainage.
According to Turner, he and Matthew Reville, a representative of Revilo,
discussed during the project that if water remained on the roof, Simon Roofing
could add drains to remedy this problem. Turner testified that there was no
discussion regarding adding slope or additional drains to the roof prior to
entering into the contract or before work on the roof commenced.
{¶ 34} The evidence at trial was conflicting as to whether the roof as
installed by Simon Roofing had positive roof drainage. Revilo’s expert
testified that the existence of ponding water on the roof indicated that the
drainage was inadequate under the code. Revilo’s expert further opined that
the aluminum coating on the new roof was likely deteriorating from being
subjected to ponding water for a long period of time.
{¶ 35} Although Revilo’s expert classified the water remaining on the
roof as “ponding,” Simon Roofing’s expert opined that the water remaining on
the roof would not be considered ponding and that the new roof has positive
roof drainage. Additionally, Stephen Manser, president of Simon Roofing,
testified that he would classify the water remaining on the roof as “birdbaths.”
{¶ 36} Accordingly, we find that there was competent and credible
evidence supporting the trial court’s determination that the roof as installed
by Simon Roofing has positive roof drainage in compliance with the code.
Although the trial court found that some water remained on the roof, the
water could be alleviated by installing four additional drains.
Code Compliance: Fasteners
{¶ 37} Revilo also asserts that the trial court’s decision that the roof was
not in compliance with the Code was against the manifest weight of the
evidence because the number of fasteners required by the insulation
manufacturer to attach the insulation to the roof decking was inadequate.
{¶ 38} No specific finding was made by the trial court regarding these
fasteners. However, Revilo has not challenged the inadequacy of the trial
court’s findings of fact and conclusions of law. When the trial court’s findings
of fact leave a material fact undetermined, a reviewing court will presume that
the issue of fact was not proved by the party bearing the burden of proof.
Casto v. State Farm Mut. Auto. Ins. Co. (1991), 72 Ohio App.3d 410, 415, 594
N.E.2d 1004, citing McShane v. Keiser (1958), 108 Ohio App. 514, 155 N.E.2d
709. The trial court need not indicate which facts were not proved by the
evidence presented. Id., citing Lugger v. Wolford (App. 1955), 72 Ohio Law
Abs. 227, 134 N.E.2d 395.
{¶ 39} The burden of proving that the fasteners did not comply with the
manufacturer’s specifications and the code was upon Revilo. The trial court
made numerous factual findings concerning the issues presented at trial but
did not specifically address the issue regarding the fasteners. We thus
presume that the trial court concluded that Revilo did not meet its burden at
trial. There is sufficient evidence in the record to support such a finding.
{¶ 40} Both Revilo and Simon Roofing presented experts in the field of
roofing. Revilo’s expert opined that the number of fasteners was inadequate
pursuant to the manufacturer’s specifications for the type of insulation that
was used and the weather conditions that the roof would be subject to. The
expert testified regarding the number of fasteners that should have been used
in varying locations on the roof. But no documentation was submitted to the
trial court to support the conclusions of Revilo’s expert, including any
documentation regarding the actual specifications required by the
manufacturer of the insulation for the roof as installed by Simon Roofing for
Revilo. Additionally, Simon Roofing’s expert testified that the number of
fasteners used was sufficient. Simon Roofing’s expert testified that in
determining the adequate number of fasteners, more factors needed to be
taken into consideration than what was testified to by Revilo’s expert.
{¶ 41} Thus, the trial court had competing expert testimony regarding
whether the number of fasteners was adequate and whether they were
according to the manufacturer’s specifications. The trial court did not have
the requisite documentation before it to determine exactly what the
manufacturer’s specifications were. Accordingly, we presume that the trial
court, by not addressing the fasteners in its original journal entry and
subsequent findings of fact and conclusions of law, implicitly found that Revilo
did not satisfy its burden at trial.
{¶ 42} Accordingly, we overruled Revilo’s first and second assignments of
error.
Remedy of Four Additional Drains
{¶ 43} In its third assignment of error, Revilo argues that the trial court’s
remedy of an additional four drains was inadequate as a matter of law.
Revilo essentially maintains that because Simon Roofing did not add the
requisite degree of slope as required by the code and the contract, the only
remedy the trial court could have awarded was a new roof. According to
Revilo, the trial court erred in “fashioning a remedy that is contrary to the
building code.”
{¶ 44} As we have previously determined above, Revilo’s interpretation
of the code at trial was that the roof as installed by Simon Roofing had to have
either 2 percent slope or positive roof drainage. Having determined that the
roof, as replaced by Simon Roofing, has positive roof drainage, we do not find
the trial court’s remedy of adding four additional drains to alleviate the “small
areas of standing water” to be an abuse of discretion. Revilo’s third
assignment of error is overruled.
Expert Testimony
{¶ 45} In its fourth, fifth, and sixth assignments of error, Revilo argues
that the trial court erred in allowing Simon Roofing’s expert to testify as to his
opinion regarding certain aspects of the roof, when the expert report did not
contain such opinions.
{¶ 46} Cuyahoga County Common Pleas Court Local Rule 21.1(B) states:
“A party may not call on a non-party expert witness to testify unless a written
report has been procured from the witness and provided to opposing counsel. It
is counsel’s responsibility to take reasonable measures, including the
procurement of supplemental reports, to insure that each report adequately
sets forth the non-party expert’s opinion. However, unless good cause is
shown, all supplemental reports must be supplied no later than (30) days prior
to trial.”
{¶ 47} The Ohio Supreme Court has held that the trial court has
considerable discretion in applying Loc.R. 21.1. Pang v. Minch (1990), 53
Ohio St.3d 186, 194, 559 N.E.2d 1313. This court may reverse the trial
court’s determination only if the trial court abused its discretion. Id., citing
Paugh & Farmer, Inc. v. Menorah Home for Jewish Aged (1984), 15 Ohio St.3d
44, 472 N.E.2d 704. “ ’The term “abuse of discretion” connotes more than an
error of law or judgment, it implies that the court’s attitude is unreasonable,
arbitrary, or unconscionable.’ ” Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151,
157, 16 O.O.3d 169, 404 n.E.2d 144.
{¶ 48} This court has previously stated: “The primary purpose of Loc.R.
21 is to avoid prejudicial surprise resulting from noncompliance with the
report requirement.” Preston v. Kaiser (Nov. 8, 2001), Cuyahoga App. No.
78972, citing Reese v. Euclid Cleaning Contrs., Inc. (1995), 103 Ohio App.3d
141, 147, 658 N.E.2d 1096. To evaluate surprise: “‘A court is not required to
prohibit the witness testimony where there is no evidence appellant was
prejudiced by the admission of the testimony. The determination of whether
the testimony results in a surprise at trial is a matter left to the sound
discretion of the trial court. In the absence of surprise, there is no abuse of
discretion. This court has also found that when a complaining party knows
the identity of the other party’s expert, the subject of his expertise and the
general nature of his testimony, a party cannot complain that they are
ambushed.’” Miller v. Gen. Motors Corp., Cuyahoga App. No. 87484,
2006-Ohio-5733, ¶11, quoting Yaeger v. Fairview Gen. Hosp. (Mar. 11, 1999),
Cuyahoga App. No. 72361.
{¶ 49} Other than the local rule regarding expert witnesses, Revilo has
failed to cite any legal authority in support of its contention that the trial court
abused its discretion in allowing Simon Roofing’s expert to render his opinion
on issues not contained in his expert report. See App.R. 16(A)(7).
{¶ 50} Moreover, Revilo has failed to explain how it was prejudiced in
permitting Simon Roofing’s expert to testify as to his opinion. In fact, Revilo
does not argue on appeal that it was surprised by the testimony of the expert.
Rather, it asserts that it was prejudiced “to the extent the trial court
considered this testimony in reaching its decision.” This blanket assertion
does not support Revilo’s burden of proving that the trial court’s decision
allowing Simon Roofing’s expert to give his opinion was unreasonable,
arbitrary, or unconscionable.
{¶ 51} We find that the trial court did not abuse its discretion in allowing
Simon Roofing’s expert to testify as to opinions not contained in his expert
report. Revilo’s remaining assignments of error are overruled.
Simon Roofing’s Cross-Appeal
{¶ 52} Simon Roofing maintains in its cross-appeal that the trial court’s
calculation of damages was against the manifest weight of the evidence.
{¶ 53} A reviewing court generally will not reverse a trial court’s decision
regarding its determination of damages absent an abuse of discretion.
Roberts v. United States Fid. & Guar. Co. (1996), 75 Ohio St.3d 630, 634, 665
N.E.2d 664. As previously stated, “abuse of discretion” implies that the court
exhibited an unreasonable, arbitrary, or unconscionable attitude in rendering
its judgment. Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140.
{¶ 54} Simon Roofing first challenges the trial court’s decision to award
Revilo $44,000 for rusted, scored, or cut decking. The trial court’s journal
entry provides: “C. Replace scored, rusted, and/or cut decking (10,000
square feet minus 3,700 = 6,300 square feet), up to 6,300 square feet by
additional bracing in a similar fashion to existing bracing, where the deck has
rusted, been scored or cut through three or more contiguous ribs and flats.”
The amount awarded to Revilo was $44,000.
{¶ 55} We find that this award is not an abuse of discretion. The trial
court found that the contract provided that Simon Roofing would replace any
damaged decking up to 10,000 square feet and that the cost of repair or
replacement is approximately $7 per square foot. Simon Roofing replaced
3,700 square feet, but admittedly an additional 4,000 square feet should have
been replaced. Moreover, even though only 3,700 square feet of decking was
replaced, no refund was given to Revilo.
{¶ 56} Accordingly, the trial court ordered that Simon Roofing replace up
to an additional 6,300 square feet of decking where needed and ordered that
$44,000 be deducted from the balance due to Simon Roofing. We find that
6,300 square feet multiplied by $7.00 is $44,100. Because $7 was an
approximation, the trial awarded Revilo $44,000. We do not find this decision
awarding Revilo $44,000 in damages for deck replacement to be unreasonable
or arbitrary.
{¶ 57} Simon Roofing’s second challenge to the trial court’s award of
damages pertains to the replacement of the aluminized coating. The trial
court awarded Revilo $7,500 for the replacement of 15,000 square feet of
aluminized paint at $.50 per square foot. Simon Roofing argues that this
award is against the manifest weight of the evidence because the testimony at
trial established that the discoloration and fading of the aluminized paint was
normal and that it had no effect on the performance of the product. Again, we
review an award of damages under an abuse-of-discretion standard.
Applying this standard, we find that the trial court’s award of $7,500 to Revilo
was not unreasonable or arbitrary.
{¶ 58} Testimony at trial by both Revilo and Simon Roofing’s experts
established that the aluminized paint would fade over an approximately
ten-year period. However, the fading that the trial court viewed occurred
within two years’ time. Additionally, there was evidence that debris was not
removed from the roof before application of the aluminum coating, thereby
embedding it into the roof, which could compromise the coating’s performance.
Finally, the trial court ordered only that 15,000 square feet of a
100,000-square-foot roof be recoated. This does not appear to be an abuse of
discretion.
{¶ 59} Simon Roofing’s final challenge to the trial court’s determination
of damages pertains to the offset award for the four additional drains. The
trial court awarded Revilo $6,000 for four additional drains at $1,250 each.
Simon argues that (1) the trial court miscalculated the total award, i.e., that
$1,250 multiplied by four is $5,000, not $6,000 as stated, and (2) that the
evidence presented at trial demonstrated that the cost of the drains would
range from $450 to $1200.
{¶ 60} We agree that the trial court may have miscalculated the total
award for the drains. Therefore, although we do not find an abuse of
discretion in awarding Revilo an amount for the new drains, we do find that
the trial court’s calculation may have been in error.
{¶ 61} Accordingly, we find some merit to Simon Roofing’s cross-appeal
and remand the matter to the trial court for a redetermination of damages
solely as it pertains to the calculation of the four additional drains.
Judgment accordingly.
KILBANE, A.J., and SWEENEY, J., concur.