Frisby v. Solberg ( 2016 )


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  • [Cite as Frisby v. Solberg, 
    2016-Ohio-7644
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    BUTLER COUNTY
    TERI R. FRISBY,                                      :
    CASE NO. CA2015-11-204
    Plaintiff-Appellant,                         :
    OPINION
    :            11/7/2016
    - vs -
    :
    JAMES SOLBERG, et al.,                               :
    Defendants-Appellees.                        :
    CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
    Case No. CV2013-11-3181
    The Law Offices of Jason A. Showen, LLC, Jason Showen, 324 East Warren Street,
    Lebanon, Ohio 45036, for appellant
    David Chicarelli Co., LPA, David Chicarelli, 614 East Second Street, Franklin, Ohio 45005,
    for appellees
    S. POWELL, J.
    {¶ 1} Plaintiff-appellant, Teri R. Frisby, appeals from the decision of the Butler County
    Court of Common Pleas granting a judgment in favor of defendants-appellees, Elizabeth and
    James Solberg. For the reasons outlined below, we affirm as modified.
    {¶ 2} This case involves a dispute regarding a contractual agreement between the
    parties for the purchase, repair, and resell of antique motorcycles and motorcycle parts. The
    Butler CA2015-11-204
    Solbergs argued that the parties entered into a partnership for this business venture where
    they would be paid for the work completed on the motorcycles and motorcycle parts and split
    the profits with Frisby once they were sold. On the other hand, Frisby denied that any
    partnership was ever established. Instead, Frisby argued that she merely agreed to pay the
    Solbergs for the parts and work necessary to have the motorcycles repaired, splitting any
    proceeds from the sale of unused parts, but not the motorcycles themselves. The matter
    ultimately proceeded to a bench trial where the trial court heard testimony from both Frisby
    and the Solbergs.
    {¶ 3} Following the bench trial, the trial court granted judgment to the Solbergs upon
    finding "there was a discernable and enforceable oral agreement between [Frisby] and [the
    Solbergs] whereby the acts of both parties reveal a clear intent to be bound via contract and
    partnership." As part of this decision, the trial court noted the evidence indicating Frisby had
    offered a witness $30,000 to testify on her behalf. Although Frisby claimed she was drunk
    when making such an offer, as well as when she discussed creating a partnership with the
    Solbergs, the trial court determined that Frisby's testimony "ha[d] no credibility." The trial
    court then awarded damages to the Solbergs in the amount of $107,520.07.
    {¶ 4} Frisby now appeals from the trial court's decision, raising four assignments of
    error for review. For ease of discussion, Frisby's third and fourth assignments of error will be
    addressed together.
    {¶ 5} Assignment of Error No. 1:
    {¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN
    FINDING THE EXISTENCE OF A CONTRACT BETWEEN APPELLANT AND THE
    APPELLEES.
    {¶ 7} In her first assignment of error, Frisby argues the trial court's decision finding
    the parties had entered into an oral contract and partnership agreement was against the
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    Butler CA2015-11-204
    manifest weight of the evidence. We disagree.
    {¶ 8} "The standard of review for a manifest weight challenge in a civil case is the
    same as that applied to a criminal case." Dunn v. Clark, 12th Dist. Warren No. CA2015-06-
    055, 
    2016-Ohio-641
    , ¶ 8. In considering a manifest weight challenge, "the reviewing court
    weighs the evidence and all reasonable inferences, considers the credibility of witnesses and
    determines whether, in resolving conflicts in the evidence, the finder of fact clearly lost its
    way and created such a manifest miscarriage of justice that the judgment must be reversed
    and a new trial ordered." Schneble v. Stark, 12th Dist. Warren Nos. CA2011-06-063 and
    CA2011-06-064, 
    2012-Ohio-3130
    , ¶ 67, citing State v. Thompkins, 
    78 Ohio St.3d 380
    , 387
    (1997). A judgment will not be reversed as being against the manifest weight of the evidence
    where the "judgment is supported by some competent, credible evidence going to all
    essential elements of the case." Ashburn v. Roth, 12th Dist. Butler Nos. CA2006-03-054 and
    CA2006-03-070, 
    2007-Ohio-2995
    , ¶ 26, citing C.E. Morris Co. v. Foley Const. Co., 
    54 Ohio St.2d 279
     (1978), syllabus. In making this determination, an appellate court generally must
    defer to the trier of fact on issues of credibility. Ohio Valley Associated Bldrs. & Contrs. v.
    Rapier Elec., Inc., 12th Dist. Butler Nos. CA2013-07-110 and CA2013-07-121, 2014-Ohio-
    1477, ¶ 32.
    {¶ 9} In order to establish a breach of contract claim, a plaintiff must prove (1) the
    existence of a contract, (2) plaintiff fulfilled its contractual obligations, (3) defendant failed to
    fulfill its contractual obligations, and (4) plaintiff incurred damages as a result. Underwood v.
    Boeppler, 12th Dist. Butler No. CA2014-02-055, 
    2015-Ohio-156
    , ¶ 13. The essential
    elements of a contract include an offer, acceptance, contractual capacity, consideration, a
    manifestation of mutual assent, and legality of object and consideration. Artisan Mechanical
    Inc. v. Beiser, 12th Dist. Butler No. CA2010-02-039, 
    2010-Ohio-5427
    , ¶ 26. "Mutual assent
    or 'a meeting of the minds' means that both parties have reached an agreement on the
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    Butler CA2015-11-204
    contract's essential terms." Nguyen v. Chen, 12th Dist. Butler No. CA2013-10-191, 2014-
    Ohio-5188, ¶ 43, citing Id. at ¶ 27. The essential terms of a contract include the identity of
    the parties to be bound, the subject-matter of the contract, the consideration to be
    exchanged, and the price to be paid. Turner v. Langenbrunner, 12th Dist. Warren No.
    CA2003-10-099, 
    2004-Ohio-2814
    , ¶ 13.
    {¶ 10} An oral contract may be enforceable when the terms of the agreement are
    sufficiently particular. Kostelnik v. Helper, 
    96 Ohio St.3d 1
    , 
    2002-Ohio-2985
    , ¶ 15. "Terms of
    an oral contract may be determined from the parties' words, deeds, and acts, as well as their
    silence." A N Bros. Corp. v. Total Quality Logistics, L.L.C., 12th Dist. Clermont No. CA2015-
    02-021, 
    2016-Ohio-549
    , ¶ 26. However, seldom, if ever, does the evidence establishing an
    oral contract present its terms in the exact words of offer and acceptance found in formal
    written contracts. Depompei v. Santabarbara, 8th Dist. Cuyahoga No. 101163, 2015-Ohio-
    18, ¶ 22. Rather, the goal in enforcing oral contracts is to hold people to the promises they
    make. 
    Id.
     "In a bench trial, the trial court, as the trier of fact, must resolve any evidentiary
    conflict surrounding disputed provisions of an oral contract." Ford v. Van Stop, Inc., 12th
    Dist. Butler No. CA98-03-064, 
    1998 WL 904677
    , *2 (Dec. 30, 1998).
    {¶ 11} Although faced with conflicting testimony, the record nevertheless contains
    competent and credible evidence to support the trial court's finding that the parties entered
    into an oral contract and partnership agreement for the purchase, repair, and resale of
    antique motorcycles and motorcycle parts. Just as the trial court found, the record indicates
    that both parties referred to their business venture as a partnership and acknowledged the
    roles of each party within the partnership. Mrs. Solberg even testified that Frisby asked her
    and her husband on more than one occasion to "go into a partnership" where they would "put
    the bikes back together" and then sell them and "split the profit." Mr. Solberg also testified
    that a partnership was created where they agreed to split the profits of the motorcycles he
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    Butler CA2015-11-204
    restored and repaired.
    {¶ 12} However, just like the trial court, what we find most significant is the handwritten
    note prepared by Frisby that explicitly states her partners, the Solbergs, "have ownership of
    half of every and all the bikes and parts" at issue. The same handwritten note also states
    that the Solbergs "know my wishes for any money that my half of the proceeds of this
    partnership may produce." This note was signed by both Frisby and the Solbergs. Although
    Frisby attempted to explain away the significance of this note, as well as the fact that she
    offered a witness $30,000 to testify on her behalf, the trial court, as the trier of fact, was well
    within its bounds to find Frisby's testimony regarding her business relationship with the
    Solbergs lacked all credibility. Therefore, because we find the trial court's decision was
    supported by competent and credible evidence, Frisby's first assignment of error lacks merit
    and is overruled.
    {¶ 13} Assignment of Error No. 2:
    {¶ 14} THE TRIAL COURT ERRED BY NOT OFFSETTING AND/OR MITIGATING
    APPELLANT'S DAMAGES, ASSUMING ARGUENDO THAT A BREACH OF CONTRACT
    OCCURRED.
    {¶ 15} In her second assignment of error, Frisby argues the trial court erred by failing
    to offset and/or mitigate the $107,520.07 in damages awarded to the Solbergs. We agree in
    part.
    {¶ 16} The measure of damages in a contract action is the amount necessary to place
    the non-breaching party in the position he or she would have been in had the breaching party
    fully performed under the contract. Baird v. Crop Prod. Servs., Inc., 12th Dist. Fayette Nos.
    CA2011-03-003 and CA2011-04-005, 
    2012-Ohio-4022
    , ¶ 24. "Where the amount of the
    award of damages is in dispute, as long as competent, credible evidence supports the award,
    the decision of the trier of fact may not be overturned on appeal." Macdonald v. Authentic
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    Butler CA2015-11-204
    Invests., L.L.C., 10th Dist. Franklin No. 15AP-801, 
    2016-Ohio-4640
    , ¶ 40.
    {¶ 17} According to Frisby, the trial court failed to consider approximately $70,000 in
    "equitable offsets" in awarding the Solbergs $107,520.07 in damages. In support of this
    claim, Frisby argues the trial court erred by awarding the Solbergs' damages to compensate
    them for the (1) items they traded in order to obtain the necessary engine repair equipment
    and tools they valued at $25,215, as well as the (2) $1,980 they spent on a trailer to store the
    motorcycles and parts on their property they now valued at minimum of $1,200. Frisby also
    claims it was error for the trial court not to offset the (3) $20,000 in cash payments she
    allegedly made to the Solbergs for parts and work done on the disputed property, the (4)
    $15,000 in payments she claims to have made by check to the Solbergs for repairs made to
    the disputed property, and the (5) $1,112.63 payment she made to the Solbergs to reimburse
    them for purchasing certain items at auction. Lastly, Frisby claims it was error for the trial
    court to include as damages the (6) $6,005 in labor costs Frisby claims the Solbergs
    requested for "work on other personal property."
    {¶ 18} After a thorough review of the record, we find no error in the trial court's
    decision not to offset the $20,000 in cash payments Frisby allegedly made to the Solbergs for
    parts and work done on the disputed property, the $15,000. payments she claims to have
    made by check to the Solbergs for parts and repairs made to the disputed property, or the
    $6,005 in labor costs requested by the Solbergs for additional unpaid work done on the
    disputed property, as Frisby failed to prove these monies were actually paid to the Solbergs
    or that they were paid in order to fully compensate the Solbergs in accordance with the
    parties' partnership agreement. In reaching this decision, we again note that the trial court
    found Frisby's testimony lacked all credibility. The Solbergs are entitled to be reimbursed for
    the parts they purchased and compensated for the work they completed. This amount
    should not be offset from the Solbergs' damages award.
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    Butler CA2015-11-204
    {¶ 19} However, as it relates to the check for $1,112.63 Frisby wrote to reimburse the
    Solbergs for purchasing certain parts at auction, we find the trial court erred by not offsetting
    this amount. Although there is some conflicting testimony, the record indicates Frisby paid
    that amount to the Solbergs to reimburse them for making some of these purchases. In fact,
    when specifically asked about the $1,112.63 check written by Frisby to Mrs. Solberg, Mrs.
    Solberg testified that "it would appear that [Frisby] reimbursed me." This amount should be
    offset from the Solbergs' damages award.
    {¶ 20} Furthermore, as it relates to the items the Solbergs traded in order to obtain the
    necessary engine repair equipment and tools the Solbergs valued at $25,215, as well as the
    trailer the Solbergs purchased now valued at a minimum of $1,200, because the Solbergs
    still own and intend to use this property, we find the trial court erred by not offsetting the
    Solbergs' damages award by an additional $26,415. By providing such an offset, this places
    the Solbergs in the same position they would have been had Frisby fully performed under the
    contract. To hold otherwise would allow the Solbergs to retain and use this property
    essentially for free. This amount should also be offset from the Solbergs' damages award.
    {¶ 21} In light of the foregoing, finding the trial court erred by not offsetting the
    damages awarded to the Solbergs by a total of $27,527.63, the trial court's decision is
    modified to provide the Solbergs' with an award of damages in the amount of $79,992.44. In
    all other respects, the trial court's decision in regards to the amount of damages awarded to
    the Solbergs is affirmed.
    {¶ 22} Assignment of Error No. 3:
    {¶ 23} THE TRIAL COURT'S DECISION WAS NOT A FINAL APPEALABLE ORDER.
    {¶ 24} Assignment of Error No. 4:
    {¶ 25} THE TRIAL COURT ERRED IN NOT ADDRESSING APPELLANT'S
    CONVERSION CLAIMS.
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    Butler CA2015-11-204
    {¶ 26} In her third and fourth assignments of error, Frisby argues the trial court's
    decision was not a final appealable order since the trial court failed to address her claims
    alleging conversion on the part of the Solbergs. However, as the trial court properly found,
    the parties entered into a partnership that created liens on the disputed property "for monies
    owed pursuant to the partnership agreement, which [Frisby] has refused to pay." The record
    also indicates that much of the property Frisby claims was converted was actually titled to the
    Solbergs, not Frisby. Given these facts, we find this negates any conversion claim Frisby
    may have had against the Solbergs. In so holding, we note that the trial court specifically
    stated as part of its decision that "[a]ll matters" between the parties had been resolved.
    Therefore, although not explicit, we find the trial court's decision was a final appealable order
    that denied, at least implicitly, Frisby's conversion claims. Accordingly, Frisby's third and
    fourth assignments of error are without merit and overruled.
    {¶ 27} Judgment affirmed as modified.
    M. POWELL, P.J., and PIPER, J., concur.
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Document Info

Docket Number: CA2015-11-204

Judges: S. Powell

Filed Date: 11/7/2016

Precedential Status: Precedential

Modified Date: 11/8/2016