Nayman v. Markel, Unpublished Decision (12-1-1998) ( 1998 )

OPINION Plaintiff Al Nayman appeals a judgment of the Court of Common Pleas of Ashland County, Ohio, entered in favor of defendants Don Long and Jeff Markel on their counterclaim, and against plaintiff on his complaint. Appellant assigns a single error to the trial court:

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING INTO EVIDENCE OFFERS OF COMPROMISE CONTRARY TO OHIO RULE OF EVIDENCE 408

The record indicates appellant and appellees entered into an agreement to construct a prototype cold-air machine. Costs exceeded appellant's expectation, and eventually he refused to make any more payments on the construction. Appellant sued for breach of contract and appellees counterclaimed for money due and owing for work provided up to that time. The matter was submitted to a jury, who found in favor of appellees on both the complaint and counterclaim.

At issue here are defendants' exhibits "S","T", and "V", which appellant argues should not have been admitted into evidence. Appellant characterizes the evidence as three letters involving offers to compromise, which are barred by Evid.R. 408.

Appellees respond they introduced this evidence to show the parties did not have a contract term regarding a completion date, and also to demonstrate their willingness to complete the work.

Appellees also argued appellant was not prejudiced by the admission of the documents, because their admission or exclusion would not have affected the outcome of the case. Appellees urge the jury actually adopted appellant's theory of the case, and found the parties had entered into a contract. Appellant's case failed on the issue of damages, which the exhibits in question do not address.

We have reviewed the documents in question, and we find they are not offers to compromise. The letters appear to be negotiations regarding completion dates and costs, and we find them relevant on the issue of the terms of the contract.

We find the trial court did not err in admitting these documents. Accordingly, the assignment of error is overruled.

For the foregoing reasons, the judgment of the Court of Common Pleas of Ashland County, Ohio, is affirmed.

By Gwin, P. J., Hoffman, J., and Reader J., concur.

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Ashland County, Ohio, is affirmed. Costs to appellant.