Hudson v. Jones , 2023 Ohio 1447 ( 2023 )

[Cite as Hudson v. Jones, 2023-Ohio-1447.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
TODD HUDSON : Hon. W. Scott Gwin, P.J.
: Hon. Willilam B. Hoffman, J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2022 CA 0066
CHRISTOPHER JONES :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Mansfield Municipal
Court, Case No. 2022 CVI 0054
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 2, 2023
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DARIN AVERY CHRISTOPHER JONES PRO SE
105 Sturges Avenue 354 S. Main Street
Mansfield, OH 44903 Mansfield, OH 44902
Richland County, Case No. 2022 CA 0066 2
Gwin, P.J.
{¶1} Appellant appeals the August 25, 2022 judgment entry of the Mansfield
Municipal Court adopting the magistrate’s decision and entering judgment in favor of
appellee.
Facts & Procedural History
{¶2} Appellant Todd Hudson is a licensed plumber. Appellee Christopher Jones
is the owner of 300 Harker Street in Mansfield, Ohio. On August 14, 2021, the parties
entered into a written contract for appellant to perform plumbing work at 300 Harker.
Appellant filed a police report on September 1, 2021 alleging that some of his tools he left
on the job site at 300 Harker had been stolen.
{¶3} On January 11, 2022, appellant filed a pro se breach of contract complaint
against appellee. The complaint alleged, in part, as follows: the parties entered into a
contract on August 21, 2021; appellant agreed to install plumbing for one bathroom and a
kitchen sink for a total of $1,500, plus materials; appellant received a deposit of $500; the
remainder was to be due upon the completion of the work; the balance of the contract was
$3,074.69; equipment owned by appellant was removed from the job site for a total of
$1,784.76; and the parties agreed appellee would pay appellant by December 1, 2021.
Appellant sought money damages from appellee in the amount of $2,434.45, plus interest.
The parties agree that appellee paid appellant $2,500 pursuant to the contract.
{¶4} The magistrate conducted a bench trial on June 7, 2022.
{¶5} Frank Waddle (“Waddle”) is a plumbing inspector for Richland County.
When it was determined that appellee was not going to reside in the home, the department
sent him a letter stating the work had to be performed by a licensed plumber. Upon
Richland County, Case No. 2022 CA 0066 3
examination by the court, Waddle testified he went to do the initial final inspection at 300
Harker Street. There were pipes replaced in the basement where cast iron had been taken
out and plastic was put in its place. The plastic was leaking and was not up to code.
Appellant reported to Waddle that he (appellant) did not have anything to do with that.
{¶6} Waddle stated he had no firsthand knowledge of Exhibit A (letter to
appellee) or what is contained in that exhibit. Waddle testified Exhibit B is the original
permit appellee pulled to do the plumbing work for the kitchen and bathroom, and Exhibit
D is the permit that Mr. Rooter pulled to repair the plumbing system where the piping was
leaking when Waddle did his final inspection.
{¶7} Trent Dawson (“Dawson”) is the owner of Mr. Rooter Plumbing. Appellee
contacted him to get the plumbing completed at 300 Harker because there were leaks and
a non-code-approved fitting in the basement. Dawson stated appellee never spoke with
him about appellant. Dawson did not do anything upstairs in the bathroom; he was just
hired to fix the leaks. Appellee paid Dawson a total of $2,970.
{¶8} At the start of his testimony, appellant submitted multiple documents as
exhibits. Appellant testified that appellee contacted him to do plumbing. Appellee had
initially pulled the permit to do the plumbing himself, but it did not pass inspection.
Appellant drew up a contract (Exhibit F) and he started doing the work. Appellant wrote
the second agreement (Exhibit G) because appellee did not pay appellant the full amount
when appellee gave him the invoice, and appellant felt appellee was not trustworthy.
Appellee gave appellant $500 initially, and then appellee gave appellant $2,000 cash on
December 6.
Richland County, Case No. 2022 CA 0066 4
{¶9} Appellant testified that, when he was working on the job, he never left tools
at the Harker home. However, the last day of the job, appellant left some of his tools there.
The next day when he returned, his tools were missing. None of appellee’s equipment
was taken. Appellant filed a police report detailing the equipment he lost.
{¶10} Appellant cross-examined appellee. Appellee stated he did pull a plumbing
permit himself, but there were things on the permit he did not understand, so he
determined he needed to hire a plumber. Appellee testified that appellant told him if he
assigned the pending permit to appellant, the plumbing inspectors would be more lenient
on the inspection, so appellee signed the permit over to appellant. Appellee stated he
signed Exhibit F, which was a contract between the parties. Appellee stated he gave
appellant $500 up front, even though the contract says $700 up front, because appellant
verbally told appellee that $500 was sufficient pre-payment. Appellee gave appellant a
total of $2,500.
{¶11} Appellee stated when appellant presented him an invoice with a $574.69
balance remaining, appellee asked appellant if everything was tight, sealed, and working.
When appellant presented appellee with a second invoice with the $574.69 plus $1,172.76
due, appellee became suspicious. Appellee “has a problem” with appellant charging him
for the parts listed at $1,172.76. Appellee requested appellant provide him with an
itemized list because appellee had “no idea” where the numbers came from. Further,
appellee does not believe he owes appellant the additional $1,172.76 because appellee
was not responsible for losing appellant’s tools.
{¶12} Appellee testified that appellant did not complete the work listed in the
contract because appellant refused to fix a pipe he was supposed to fix under the
Richland County, Case No. 2022 CA 0066 5
bathroom, and a drain was leaking. Appellee stated he does not owe appellant any more
money because he paid him the amount contained in the contract. Appellee testified that,
per the language of the contract, he believed appellant was going to completely fix
everything that needed to be done, specifically the drains, but that was not what happened
because, after two months of a “fiasco” with appellant, appellee still had to call somebody
else to come in and fix the property. Appellee’s interpretation of the contract was that
plumbing included “flush[ing] the toilet and [having] it go into the sewer and not drain or
leak nowhere else.” Further, appellee believes appellant did not abide by the contract
because he never asked appellee to choose products or materials.
{¶13} Appellee then testified on direct examination. First, appellee does not
believe the contract is valid because appellant’s company is not legally recognized by the
State of Ohio. Second, if the contract is valid, appellee’s understanding of the contract is
that he hired appellant to fix the drains in the house, which would include “sewage stuff.”
When the amount was higher than listed in the contract, appellee asked appellant for an
itemized list of parts, which he never received. Appellee did not pay appellant because he
felt he was trying to get money by leaving his tools on the property. Appellee does not
believe it is his fault appellant left his tools there and they got stolen. Appellee paid
appellant a total of $2,500, and then paid Mr. Rooter $2,900 to fix the leaks and drain.
{¶14} When the court stated it would take the matter under advisement, appellant
asked if he “could rebuttal with anything.” The court stated appellant could not testify, but
stated it would discuss the exhibits with the parties.
{¶15} Exhibit F is the contract between the parties (“Contract”), dated August 12,
2021, a document drafted by appellant. It provides, in part, appellant would do “plumbing
Richland County, Case No. 2022 CA 0066 6
work in accordance with [the] Ohio plumbing code to install the drain, waste, and vent for
one-bathroom group consisting of one water closet, one bathtub, one lavatory, also to
include one kitchen sink.” It provided the total cost of the labor was not to exceed $1,500
and “total cost of material to be determined upon customer’s choice of products.” Exhibit
G is a document prepared by appellant entitled “Agreement of payment” (“Agreement”)
that states, “[appellant] has performed all required commitments and contracted plumbing
work on 300 Harker Ave. * * * [appellee] has agreed to pay $574.69 plus any final
expenses.” Further, “during the time this project [appellee] was to keep project secure and
he failed to do this by poor installation of a backdoor. Because of this [appellant] had tools
and equipment stolen from the project totaling $1,784.76 * * * a tentative agreement has
been reached were as [sic] [appellee] will pay $574.69 plus the additional material cost on
December 1,” or appellant will “seek reimbursement” for all items stolen. Exhibits H and I
are invoices appellant generated.
{¶16} The magistrate issued a decision on June 16, 2022. The magistrate noted
that appellant filed suit to recover damages for labor, materials, and damages for his tools
allegedly stolen or missing from the job site at 300 Harker. The magistrate found as
follows: there was a contract between the parties; appellant performed some plumbing
work pursuant to the contract in order to have been paid $2,500 by appellee; appellant
submitted an agreement of payment and invoices that appellant compiled, but this is the
only evidence submitted to suggest appellant performed work for appellee; appellant never
testified to the contents of the exhibits or supported the contents of the exhibits with
additional evidence; appellant did not testify as to what work he actually performed;
appellant invoiced appellee for materials, but never submitted into evidence what these
Richland County, Case No. 2022 CA 0066 7
materials were used for and how much each material cost; appellant did not present any
evidence as to how he arrived at the $2,434.45 in damages he requested; and appellant
never presented the court with a calculation of the hourly rate, how many hours were
worked, what materials were used, or the cost of the materials. With regards to the
$1,784.76 in damages for tools that went missing from 300 Harker, the magistrate stated,
“if in fact these tools were stolen from 300 Harker as alleged by Plaintiff, this would be a
criminal offense. As such, said alleged theft would need to be investigated and prosecuted
as such, not litigated in small claims court.” The magistrate concluded that, while appellant
did prove the existence of a contract, appellant failed to prove, by a preponderance of the
evidence, performance, breach, or damages. The magistrate entered judgment in favor
of appellee.
{¶17} Appellant filed objections to the magistrate’s decision on June 30, 2022,
arguing: the magistrate erred in finding appellant failed to establish performance; the
magistrate erred in finding appellant failed to establish breach; and the magistrate erred in
finding appellant failed to establish damages. Appellant filed the following supplemental
objections on August 8, 2022: the magistrate erred in not allowing appellant to present
rebuttal evidence; the magistrate erred in not finding evidence of damages in Exhibit G;
the magistrate erred in not finding that Exhibit G had sufficient terms and consideration to
constitute an independent contract; the magistrate erred in finding no evidence of
performance of the original contract; and the magistrate erred in finding the tool theft was
the subject of criminal proceedings due to Exhibit G.
{¶18} The trial court issued a judgment entry on August 25, 2022, adopting the
magistrate’s decision. The trial court first noted that Exhibits F and G, which appellant
Richland County, Case No. 2022 CA 0066 8
used as support for his objections, are documents that appellant drafted. The court found
appellant did not provide any evidence as to work he actually performed; thus, the court
was unable to determine from the evidence what work appellant performed for the $2,500
amount. Further, even if Exhibit G was an independent contract, appellant did not show
damages from an alleged breach, as appellant never provided any testimony or evidence
to support his request for $574.69 for labor and parts. The trial court cited the clause in
Exhibit F that the, “total cost of material [was] to be determined upon customer’s choice of
products.” The court also found appellant never testified or provided any evidence as to
what the $75.00 for “final expenses” was. The court determined the evidence presented
by both appellant and appellee confirmed the tools were stolen; thus, it is not a civil issue.
The trial court adopted the magistrate’s decision and entered judgment in favor of
appellee.
{¶19} Appellant appeals the August 25, 2022 judgment entry of the Mansfield
Municipal Court and assigns the following as error:
{¶20} “I. THE TRIAL COURT ERRED IN FINDING THAT HUDSON DID NOT
DEMONSTRATE THE DAMAGES HE REQUESTED.
{¶21} II. THE TRIAL COURT ERRED IN FINDING THAT HUDSON DID NOT
DEMONSTRATE THAT HE HAD COMPLETED WORK AND PAID FOR PARTS.
{¶22} III. THE TRIAL COURT ERRED IN DECLINING TO AWARD DAMAGES
TO HUDSON.
{¶23} IV. THE TRIAL COURT ERRED IN DECLINING TO AWARD COURT
COSTS AND ATTORNEY FEES TO HUDSON.
Richland County, Case No. 2022 CA 0066 9
{¶24} V. THE TRIAL COURT ERRED IN NOT ALLOWING HUDSON TO
PRESENT REBUTTAL EVIDENCE.”
I., II., III.
{¶25} In his first three assignments of error, appellant essentially argues the trial
court’s decision regarding performance, breach, and damages was against the manifest
weight of the evidence.
{¶26} The magistrate conducted a bench trial in this case. In a manifest weight
of the evidence review in a civil case, a reviewing court is to examine the entire record and
determine “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.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517. “In a civil case, in which the burden of persuasion is only by a preponderance
of the evidence, rather than beyond a reasonable doubt, evidence must still exist on each
element (sufficiency) and the evidence on each element must satisfy the burden of
persuasion (weight).” Id.{¶27} As an appellate court we neither weigh the evidence nor judge the credibility
of the witnesses. Our role is to determine whether there is relevant, competent, and
credible evidence upon which the fact-finder could base its judgment. Cross Truck Equip.
Co. v. Joseph A. Jeffries Co., 5th Dist. Stark No. CA5758, 1982 WL 2911 (Feb. 10, 1982).
Accordingly, judgments supported by some competent and credible evidence going to all
essential elements of the case will 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, 376 N.E.2d 578(1978). The underlying rationale for giving deference to the findings of the trial court rests
Richland County, Case No. 2022 CA 0066 10
with the knowledge that the trial judge is best able to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing the
credibility of the proferred testimony. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,
461 N.E.2d 1273 (1984). Accordingly, a trial court may believe all, part, or none of the
testimony of any witness who appears before it. Rogers v. Hill, 124 Ohio App.3d 468, 706
N.E.2d 438 (4th Dist. 1998).
{¶28} The sole count included in appellant’s complaint against appellee is a
breach of contract claim. The elements for a breach of contract are that a plaintiff must
demonstrate by a preponderance of the evidence: (1) a contract existed, (2) the plaintiff
fulfilled his obligations, (3) the defendant failed to fulfill his obligations, and (4) damages
resulted from this failure. Moore v. Adams, 5th Dist. Tuscarawas No. 2007AP090066,
2008-Ohio-5953. The magistrate and trial court found appellant did prove the first element
(that a contract existed), but failed to prove, by a preponderance of the evidence, the
remaining three elements of a breach of contract claim.
{¶29} Appellant makes several arguments as to why the trial court’s
determinations are against the manifest weight of the evidence.
{¶30} First, appellant contends the Agreement purportedly signed by the parties
on October 29, 2021, is a separate, definitive, and final contract that requires appellee to
pay $574.69 for labor and parts and $1,784.76 for tools stolen because he did not pay the
$574.69 by December 1. However, the “Agreement” document that appellant prepared
pro se specifically states, “a tentative agreement has been reached were [sic] as Mr. Jones
will pay $574.69 plus the additional material cost on December 1.” The meaning of the
word “tentative” is “not fully worked out or developed” or uncertain.” Merriam-Webster.
Richland County, Case No. 2022 CA 0066 11
https://www.merriam-webster.com/dictionary/tentative (accessed April 1, 2023). The
meaning of the word “tentative” is the “very antonym” of final or definitive. Woodward v.
Claser, 2nd Dist. Montgomery No. 57 Ohio Law Abs. 180, 93 N.E.2d 785 (1950).
Accordingly, we find the trial court did not commit error in finding the Agreement was not
a separate and independent contract upon which appellant could base his claim for breach
of contract.
{¶31} Further, appellant argues that, even if the Agreement was not a separate,
independent contract, the Agreement is undisputed evidence that appellant completed the
job per the contract and undisputed evidence that appellee agreed to the amounts of
$574.69, $75.00, and $1,784.76 in damages because appellee purportedly signed the
document. The magistrate and trial court found Exhibit G was insufficient to establish
performance, breach, and damages.
{¶32} We find this conclusion is not against the manifest weight of the evidence
because appellee disputed the information contained in Exhibit G during his testimony.
Appellee testified upon direct examination that appellant did not fully perform the contract
because the contract states appellant would complete the plumbing work for the “drain,
waste, and vent for one-bathroom group,” and, after appellant completed his work, a pipe
under the bathroom was not fixed and a drain was leaking. Appellee also testified
appellant did not provide him with a list of the cost of materials, despite multiple requests.
Appellee stated appellant did not abide by the contract because appellant did not allow
him to choose the materials. Appellant also testified he never agreed to pay for appellee’s
tools, and it was not his responsibility to secure appellant’s tools. Upon cross-examination,
Richland County, Case No. 2022 CA 0066 12
appellee agreed he signed Exhibit F, the original contract. Appellant never asked appellee
about the Agreement (Exhibit G) during cross-examination.
{¶33} The trier of fact is entitled to weigh the evidence, assess the credibility of
the witnesses and exhibits, and make a determination upon this disputed evidence.
Further, as to the tools, appellant only makes a breach of contract claim with regards to
the tools, not a tort claim. There is no provision for the securing of the property or payment
for tools in the Contract (Exhibit F).
{¶34} Appellant contends that, even if performance, breach, and damages are not
stipulated to in the Agreement, the testimony and exhibits submitted by appellant
demonstrate performance, breach, and damages. Appellant cites to the testimony of
Waddle concerning the permit and final inspection, and the invoices submitted by appellant
to appellee. While appellant is correct that Waddle testified the permit assigned to
appellant passed final inspection and that Mr. Rooter’s repair required a separate permit,
when asked whether the leaks were “outside of what [appellant] was contracted to do,”
Waddle responded, “that I can’t testify to.” The permit and Contract are separate
documents, and Waddle could not testify to what was contained in the Contract. When
appellant asked Dawson if “his work” (appellant’s work) was in the scope of the work
Dawson fixed, Dawson stated he didn’t know what appellant was supposed to do, and
Dawson just fixed the leaks. Appellant did not testify as to what work he actually did in the
house, or explain what comprised the larger numbers contained in the invoices.
{¶35} We find the magistrate and trial court’s conclusions are not against the
manifest weight of the evidence. While the magistrate and the trial court may not have
accorded appellant’s exhibits the credibility or weight appellant thought they deserved, the
Richland County, Case No. 2022 CA 0066 13
court acted within its discretion to evaluate all of the evidence presented and determine its
significance.
{¶36} In this case, appellant contends he completed all of the plumbing work as
required by the contract. Appellee contends the plumbing underneath the bathroom and
the drain from the bathroom to the sewer was included in the contract, was not completed
by appellant per the contract, and had to be finished by Dawson at appellee’s additional
expense. The testimony of appellant and appellee is conflicting, and the trier of fact
resolved this conflict. There is some competent and credible evidence, in the form of
appellee’s testimony, upon which the trier of fact could base its decision. Appellant’s first,
second, and third assignments of error are overruled.
IV.
{¶37} In his fourth assignment of error, appellant contends the trial court
committed error in declining to award court costs and attorney fees to appellant because
the parties agreed in the Agreement that appellee would pay “legal expenses.” In the
Agreement, the parties stated there was a “tentative agreement” that if appellee did not
pay $574.69 on December 1, appellee agreed to pay for legal expenses. As detailed
above, this “tentative agreement” does not constitute a contract. The Contract (Exhibit F)
does not include any terms concerning court costs or legal expenses.
{¶38} R.C. 1925.15 governs costs in small claims proceedings and states, “the
actual disbursements of the prevailing party for filing fees, execution fees, and other court
fees may be allowed as costs. No other costs shall be allowed either party except by
special order of the court. Costs allowed under this section may be apportioned between
the parties, or waived, in whole or in part, as the court determines to be equitable.”
Richland County, Case No. 2022 CA 0066 14
Because appellant was not the prevailing party, the trial court did not abuse its discretion
in not awarding appellant court costs pursuant to R.C. 1925.15.
{¶39} Appellant’s fourth assignment of error is overruled.
V.
{¶40} In appellant’s fifth assignment of error, appellant argues the trial court
committed error in not permitting appellant to present rebuttal evidence. At the conclusion
of appellee’s direct testimony, appellant asked the court if “he could rebuttal with anything.”
The trial court stated, “you can’t testify, no,” stating that appellant previously testified and
had cross-examined appellee; however, the trial court permitted appellant to move to admit
his exhibits. It is within the trial court’s discretion to determine what evidence is admissible
as proper rebuttal. State v. Rengert, 5th Dist. Delaware No. 19 CAA 10 0056, 2021-Ohio-
2561.
{¶41} We find the trial court did not abuse its discretion in denying appellant’s
request to provide his own statement in rebuttal. The record demonstrates appellant was
fully able to argue his case. At the beginning of appellant’s testimony, the court went
through each of appellant’s exhibits, and then asked appellant to “tell his side of the story.”
Appellant gave detailed testimony. Appellant then asked if he could ask appellee
questions. The magistrate permitted appellant to extensively cross-examine appellee.
Appellant asked appellee numerous questions, and asked some of the same questions
repeatedly. Additionally, several times throughout the trial while questioning other
witnesses, appellant did not ask questions of the witnesses, but testified, or attempted to
testify, with his own statements. Appellant was able to thoroughly develop the breach of
contract issue before the magistrate, who was the trier of fact in this case.
Richland County, Case No. 2022 CA 0066 15
{¶42} Appellant’s fifth assignment of error is overruled.
{¶43} Based on the foregoing, appellant’s assignments of error are overruled.
Richland County, Case No. 2022 CA 0066 16
{¶44} The August 25, 2022 judgment entry of the Mansfield Municipal Court is
affirmed.
By Gwin, P.J., and
Delaney, J., concur;
Hoffman, J., concurs
separately
Richland County, Case No. 2022 CA 0066 17
Hoffman, J., concurring
{¶45} I concur in the majority's analysis and disposition of Appellant's
assignments of error I, II, III, and IV.
{¶46} I further concur in the majority's disposition of Appellant's assignment of
error V. I find the magistrate erred in not allowing Appellant to present rebuttal testimony.
However, Appellant fails to identify in his brief or affirm a proffer was made of what his
rebuttal testimony would have been. Accordingly, I find no prejudice resulted.