Universal Marble & Granite, L.L.C. v. Gerner ( 2014 )

[Cite as Universal Marble & Granite, L.L.C. v. Gerner, 2014-Ohio-4349.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
Universal Marble & Granite, LLC Court of Appeals No. WD-13-052
Appellant Trial Court No. CVF 1201143
v.
Franz Gerner, et al. DECISION AND JUDGMENT
Appellees Decided: September 30, 2014
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V. Robert Candiello, for appellant.
Jon M. Ickes, for appellee.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Perrysburg Municipal Court after a
trial to the bench that found for appellees on appellant’s complaint seeking money
damages for work performed on appellees’ home. For the reasons that follow, the
judgment of the trial court is affirmed.
{¶ 2} In April 2012, the parties entered into a written contract pursuant to which
appellant would provide and install a granite countertop and a sink in appellees’ kitchen
for a total cost of $6,128.17. This included application of a granite sealer with what
appellant represented to be a 15-year guarantee for $499.00. Appellees made a down
payment of $2,974.10. After appellant’s agent, David Hernandez, installed the
countertop and sink he noticed that the countertop was off-center when measured against
the cabinet below and the kitchen window. Hernandez asserts that appellees approved
the installation even though it was off-center. It is undisputed that the countertop was
installed improperly. Appellees deny they were told of the problem and state they did not
notice it until after Hernandez left their home. Within minutes of Hernandez leaving
appellees’ home, they called appellant and placed a stop payment on their final check to
the business. When appellant did not return to cure the defect, appellees hired another
contractor to fix the problem at a cost of $3,390.
{¶ 3} On August 3, 2012, appellant filed a complaint in Perrysburg Municipal
Court, Small Claims Division, seeking judgment in the amount of $3,000 representing the
amount due together with interest and cost of this action. Shortly thereafter, the matter
was transferred to the court’s regular docket. On August 22, 2012, appellees filed an
answer and counterclaim demanding judgment against appellant for breach of contract
for failing to complete the work in a workmanlike manner, damaging appellees in the
amount of $3,390 and for statutory treble damages for consumer fraud.
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{¶ 4} Following a bench trial, the trial court found that the countertop had not
been installed in a workmanlike manner and that appellant was not entitled to recover
from appellees. Further, the court found that appellees were entitled to judgment for their
counterclaim against appellant in the amount of $3,390 to fix the defect. Lastly, the trial
court found that appellant’s sale to appellees of a countertop sealer for $499 that retails
for $48 was unconscionable under R.C. 1345.03(2), and awarded treble damages
amounting to $1,497.
{¶ 5} Appellant sets forth three assignments of error:
Assignment of Error No. 1:
The Trial Court’s finding that Appellant’s installation of Appellees’
Granite kitchen countertops was not performed in a workmanlike manner
giving rise to an award of damages was contrary to law and against the
manifest weight of the evidence.
Assignment of Error No. 2:
The Trial Court’s award of Judgment in favor of the Appellees and
against Appellant in the amount of $3,390.00 was an abuse of discretion
and contrary to law.
Assignment of Error No. 3:
The Trial Court committed reversible error in finding Appellant
committed unconscionable acts in violation of Section 1345.03(2) of the
Ohio Revised Code thereby awarding treble damages, when such findings
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and award were based solely on lack of authentication and hearsay
evidence.
{¶ 6} In support of its first assignment of error, appellant asserts that two
witnesses testified the countertop was installed pursuant to standard procedure and that,
when the deviation was noted, appellees were informed. Appellant argues that appellees
knew the countertop was off-center but allowed appellant to proceed with the job.
{¶ 7} In reviewing a disputed judgment, this court must be guided by the principal
that judgments supported by some competent, credible evidence must not be reversed as
being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co.,
54 Ohio St.2d 279, 279, 376 N.E.2d 578 (1978). Every reasonable presumption must be
made in favor of the judgment. Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984).
{¶ 8} The record reflects that appellees’ witness Mitch Warnike, who has worked
in the granite and countertop installation business for 28 years, testified that he went to
appellees’ home to look at the countertop. Warnike stated that the countertop was off-
center and that the work was substandard. Audree Hernandez, appellant’s office
manager, testified that she received a call from one of the installers at appellees’ home
who reported to her that there was an issue with the countertop because the sink was not
centered with the base cabinet. Hernandez then received a second call from the installers
and was told appellees were willing to proceed with the installation. Appellee Anne
Gerner testified she was never told there was a problem with the center line of the
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countertop. Gerner stated she and her husband were not told by the installers that the
whole sink would be off-center, nor did the workmen say that the countertop should be
replaced due to the flaw. She further testified that she approved the installation before
the workmen left based on how the seams looked and that she did not look at the sink
once it was installed. Gerner testified that ten minutes after the installers left, when she
and her husband saw that the sink itself was off-center, she called the store. Gerner
testified that the office worker with whom she spoke said she would talk to someone else
about the issue. She further testified that her husband called the store nine times and
spoke to someone only once. After her husband’s initial conversation, no further calls
were returned and no one from the store came to the house to look at the countertop.
Franz Gerner testified that he watched as the countertop was installed and did not notice
that the sink was off-center until ten minutes after the workers left his home.
{¶ 9} The issue before this court essentially appears to be one involving the
credibility of the two parties, whose testimony did conflict in some respects. The
determination of the disputed issues rests upon the credibility of the witnesses and is to
be decided by the trier of fact who, in this instance, found appellees and their witness
more credible. This court has reviewed the full record of the trial court, including the
testimony at trial and the exhibits admitted into evidence. We will not second guess the
trial court’s decision, which relied heavily on its determination of witness credibility.
Accordingly, we find that the trial court’s judgment was supported by some competent,
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credible evidence and was not against the weight of the evidence. Appellant’s first
assignment of error is not well-taken.
{¶ 10} In support of its second assignment of error, appellant asserts that the
award of damages in the amount of $3,390 was an abuse of discretion. As we noted
above, the trial court found that appellant did not install the sink and countertop in a
workmanlike manner. The evidence submitted at trial below supports this conclusion.
The trial court’s finding was based on direct testimony from Mitch Warnike, who stated
that the cost of the repair was $3,390; appellees paid Warnike that amount. Warnike
testified that he did not tear out the entire job but only replaced the area that was not
installed properly.
{¶ 11} A reviewing court “will not disturb a decision of the trial court as to a
determination of damages absent an abuse of discretion.” Roberts v. U.S. Fid. & Guar.
Co., 75 Ohio St.3d 630, 634, 665 N.E.2d 664 (1996), citing Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion connotes more
than an error of law or judgment; it implies that the trial court’s decision was
unreasonable, arbitrary or unconscionable. Blakemore, supra.
{¶ 12} As set forth above, appellees testified as to the aspects of the work they
believed to be unsatisfactory. Their testimony was supported by that of Mitch Warnike
as to his observations of the work originally done by appellant, how he repaired the
problem and the cost involved. Appellees admitted photographs of the alleged defects
into evidence. Upon review of the testimony and other evidence, we must conclude that
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the trial court’s judgment as to damages was not an abuse of discretion or contrary to law.
Accordingly, appellant’s second assignment of error is not well-taken.
{¶ 13} In support of their third assignment of error, appellant asserts that the trial
court erred by finding that appellant committed unconscionable acts in violation of R.C.
1345.03(2) and thereby improperly awarded treble damages. Appellant asserts that the
trial court allowed hearsay testimony from appellee’s witness Warnike as to the cost of a
granite sealer for which appellant charged appellees $499. Warnike testified he priced
the same sealer on the internet at $48. Appellant objected that the testimony was hearsay
because the witness obtained the information on the internet. In response, the trial court
stated it was not hearsay and that it would attach whatever weight to the evidence it
deemed proper.
{¶ 14} The admission or exclusion of evidence is a mater within the sound
discretion of the trial court. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056(1991). An appellate court will not reverse the trial court’s decision to admit or exclude
evidence absent “a clear showing of an abuse of discretion with attendant material
prejudice.” State v. Ruppen, 4th District Washington No. 11CA22, 2012-Ohio-4234,
¶ 11, quoting State v. Green, 184 Ohio App.3d 406, 412, 2009-Ohio-5199, 921 N.E.2d
276, ¶ 14 (4th Dist.).
{¶ 15} The trial court stated that its conscience was shocked by appellant’s
acknowledgment that, contrary to initial assertions that the $499 granite sealer would last
15 years, reapplication every three to five years is required. The trial court concluded
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that selling a countertop sealer that retails for $48 to appellees for $499 was an
unconscionable consumer sales practice act under R.C. 1345.03(2). Based on our review
of the record and the law as set forth above, we find that the trial court’s decision
allowing appellees’ evidence as to the cost of the countertop sealer and awarding treble
damages with regard to appellees’ cost was not an abuse of discretion. Accordingly,
appellant’s third assignment of error is not well-taken.
{¶ 16} On consideration whereof, the judgment of the Perrysburg Municipal Court
is affirmed. Costs of this appeal are assessed to appellant pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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