VSG Trucking, L.L.C. v. The Wingates, L.L.C. , 2014 Ohio 1384 ( 2014 )

[Cite as VSG Trucking, L.L.C. v. The Wingates, L.L.C., 2014-Ohio-1384.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
VSG Trucking, LLC, :
Plaintiff-Appellee, : No. 13AP-859
(M.C. No. 2012 CVF 011311)
v. :
(REGULAR CALENDAR)
The Wingates, LLC, :
Defendant-Appellant, :
Oakbrook Manor, LLC et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on March 31, 2014
Gerald F. Bohan, for appellee VSG Trucking, LLC.
Isaac Wiles Burkholder & Teetor, LLC, and Kerry T. Boyle,
for appellant The Wingates, LLC.
APPEAL from the Franklin County Municipal Court.
BROWN, J.
{¶1} The Wingates, LLC, defendant-appellant, appeals the judgment of the
Franklin County Municipal Court, in which the court granted judgment in favor of VSG
Trucking, LLC ("VSG").
{¶2} Wingates owns an apartment complex named Oakbrook Manor Apartments
("Oakbrook"). Matrix Realty Group ("Matrix") managed Oakbrook during the time
relevant to this matter. VSG is a business that, among other things, provides snow and ice
No. 13AP-859 2
removal services for commercial properties. On October 31, 2011, Wingates and VSG
entered into a contract, in which VSG agreed to provide snow and ice removal services for
Wingates at the Oakbrook property for the winter of 2011-2012. Coral Sue Mollette was an
employee of Matrix and the property manager for Oakbrook at the time, and signed the
contract. The contract provided for "[a]utomatic salt applications for accumulations less
than 1" or when slippery conditions exist in the Columbus, Ohio Area." The section setting
forth the price for ice control provided for "Ice Control for Roadways, Parking Lots &
Sidewalks (As needed)." The contract also provided for a "finance charge" of five percent
per month for invoices not paid within 15 days.
{¶3} VSG applied 4,000 pounds of salt on January 2, 13, 18, and 20, and 5,500
pounds of salt on January 21, 2012, at the Oakbrook property due to icy road conditions.
VSG sent two invoices to Wingates for these services: one for $4,697 for the first two salt
applications, and one for $7,926.19 for the last three salt applications. Wingates refused to
pay either invoice, claiming at trial that the salt applied on these dates was unnecessary.
{¶4} On March 29, 2012, VSG filed a complaint against Wingates; Oakbrook
Manor, LLC, Showgates, LLC, and Matrix Realty Group, Inc., alleging breach of contract.
Showgates was the subsequent owner of Oakbrook.
{¶5} On June 25, 2013, a trial was held before a magistrate. At the conclusion of
evidence, the trial court dismissed Showgates as a party. On August 28, 2013, the
magistrate filed a decision in which the magistrate recommended that the court grant
judgment in favor of VSG for $12,623.10 against Wingates but deny judgment to VSG on
the five percent "finance charges." No parties filed objections to the magistrate's decision,
and the trial court adopted the magistrate's decision on September 12, 2013. Wingates
appeals the trial court's judgment, asserting the following assignment of error:
The trial court erred in adopting the Magistrate's Decision,
which contained plain error in the application of law to the
facts in the record.
{¶6} Wingates argues in its assignment of error that the trial court committed
plain error when it granted judgment in favor of VSG. We first note that Wingates failed
to file objections to the magistrate's decision. Civ.R. 53(D)(3)(b)(iv) provides, in pertinent
part, that "[e]xcept for a claim of plain error, a party shall not assign as error on appeal
the court's adoption of any factual finding or legal conclusion, whether or not specifically
No. 13AP-859 3
designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the
party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b)." Thus,
the failure to file objections to a magistrate's decision under Civ.R. 53(D)(3)(b) constitutes
the waiver of the right to appellate review of all but plain error. Buford v. Singleton, 10th
Dist. No. 04AP-904, 2005-Ohio-753, ¶ 6. In appeals of civil cases, the plain error doctrine
is not favored and may be applied only in the extremely rare case involving exceptional
circumstances where error seriously affects the basic fairness, integrity or public
reputation of the judicial process itself. Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997),
syllabus.
{¶7} Wingates argues that, except for the self-serving testimony of VSG's owner
and employee, there was no evidence that conditions existed on those dates that would
allow ice to form. Wingates maintains that the magistrate failed to consider a weather
report it submitted as evidence from the United States Department of Commerce National
Oceanic & Atmospheric Administration ("NOAA"). The report was from the NOAA's
weather station at Bolton Field Airport, which is 4.3 miles away from Oakbrook and the
nearest weather station to Oakbrook. According to the weather report submitted, asserts
Wingates, there was no precipitation on the dates VSG applied salt, except for a negligible
.01 of an inch on January 2, 2012. Wingates contends that it is not plausible that 21,500
pounds of salt would have been necessary on these five dates, given nearly the lack of
precipitation and the lack of plowing necessary on those dates. Wingates also notes that it
never specifically requested service on any of the dates in question. Wingates further
argues that the contract required salt applications "as needed," and the lack of
precipitation demonstrates that there was no need for salt on these days.
{¶8} However, the trial court apparently believed the testimony of VSG's
witnesses. At the hearing, Joshua Jordan, an employee for Buckeye Protection Services, a
security company, testified that, from his observation as a supervisor at Oakbrook, it was
necessary for VSG to apply salt on the days it did and the conditions warranted treatment
although he admitted that he was only personally present on two of the days in question.
He testified that, on one of the days in question, there was a lot of ice on the roadways and
he called VSG to ask if they were coming to apply salt.
{¶9} James Myers, a snowplow driver for VSG, testified that they never applied salt
at Oakbrook when it was not needed. He said it did not benefit VSG to over salt any
No. 13AP-859 4
properties because VSG would then risk running out of salt for other contracts and it
would be more trouble than it was worth to have to go back and get more salt. He said the
lots actually had snow on them on some of the days in question when they salted them.
{¶10} Virgil Camp, the owner of VSG, testified that sometimes certain areas of
town would get hit with snow or ice while others would not, so he would often have to
drive to Oakbrook first to see if it needed salt before returning with the snowplows. He
testified that no one ever called him to treat Oakbrook because it was not a "will-call"
contract. He said he never performed unnecessary work at Oakbrook. Although Camp
agreed there has to be some precipitation to have ice form and the weather reports
submitted by Wingates showed very little to no precipitation on the days he applied salt,
he testified that there was a dusting of snow that required salt on those days.
{¶11} Wingates's argument on appeal rests solely upon credibility. Wingates
would like this court to find the magistrate's credibility determination was wrong.
However, the credibility of the witnesses and the weight to be given to their testimony are
matters for the trier of fact to resolve. State v. DeHass, 10 Ohio St.2d 230 (1967). Because
the factfinder, in this case the magistrate, had the opportunity to see and hear the
witnesses, the cautious exercise of discretionary power of a court of appeals requires that
a substantial deference be extended to the factfinder's determinations of credibility. State
v. Lawson, 2d Dist. No. 16288 (Aug. 22, 1997). This court will not substitute its judgment
for that of the trier of facts on the issue of witness credibility unless it is patently apparent
that the trier of fact lost its way in arriving at its verdict.
{¶12} Wingates's argument depends largely on the NOAA weather report. We note
that, despite the suggestion by Wingates' counsel to Camp and Camp's concurrence at
trial that the report shows .01 of an inch of precipitation on January 2, 2012, the chart
actually shows no precipitation for that day. The chart also shows no precipitation on the
other days in question. However, the magistrate believed the testimony of VSG's
witnesses. Jordan, Myers, and Camp all testified that Oakbrook's roadways were icy and
in need of salt on the days in question. Myers and Camp testified that they never applied
salt when it was not necessary, and Myers said it did not benefit them to apply salt in
excess. Furthermore, the weather report was taken at a weather station 4.3 miles away
from Oakbrook and was not conclusive as to the road conditions at Oakbrook. See State v.
Hubbard, 10th Dist. No. 88AP-206 (Mar. 30, 1989) (affirming the trial court's reasoning
No. 13AP-859 5
that evidence of weather conditions recorded at Port Columbus airport did not tend to
make more or less probable the weather conditions on the west side of Columbus, and
finding the relationship between weather conditions at the two places tenuous). In
addition, VSG submitted copies of text messages into evidence, showing Camp had texted
Jordan on each of the days VSG was going to salt the property, and Jordon never
questioned the need for salting in any of his replies. In fact, on January 21, 2012, Jordan
texted Camp and specifically asked if VSG was going to salt the property that day. Thus,
we cannot find that the testimony the magistrate relied upon was wholly irreconcilable
with the NOAA weather report.
{¶13} We also note that, although Wingates raises an argument related to VSG's
discretion to determine that ice control was needed on the five days in question, the
"automatic salt applications" provision in the contract clearly gave VSG the sole discretion
to determine when it would apply salt. The contract provides for automatic salt
application for accumulations of less than one inch or when slippery conditions exist in
the Columbus, Ohio area. Although Wingates also points to the phrase in the contract
providing "Ice Control for Roadways, Parking Lots & Sidewalks (As needed)" to limit
VSG's discretion to "As needed[,]" this phrase is more of a descriptive heading within the
price section of the contract rather than a term of the contract. Nevertheless, because
Camp credibly testified that he believed the roadways at Oakbrook were icy and in need of
salt, his determination met both provisions in the contract. Furthermore, Camp testified
that this was not a will-call account, which would have placed the discretion with
Wingates to determine when services were needed. Therefore, for the foregoing reasons,
we find the magistrate and trial court committed no plain error, and we overrule
Wingates' assignment of error.
{¶14} Accordingly, Wingates' assignment of error is overruled, and the judgment
of the Franklin County Municipal Court is affirmed.
Judgment affirmed.
DORRIAN and O'GRADY, JJ., concur.
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