Bevens v. Wooten Landscaping, Inc.

[Cite as Bevens v. Wooten Landscaping, Inc., 2012-Ohio-5137.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PIKE COUNTY
WM. WRAY BEVENS, :
Plaintiff-Appellant, : Case No. 11CA819
vs. :
WOOTEN LANDSCAPING, INC., : DECISION AND JUDGMENT ENTRY
Defendant-Appellee. :
_______________________________________________________________
APPEARANCES:
APPELLANT PRO SE: Wm. Wray Bevens, 312 1st Avenue, Waverly, Ohio 45690
COUNSEL FOR APPELLEE: Stanley C. Bender, 707 Sixth Street, P.O. Box 950,
Portsmouth, Ohio 45662
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 10-25-12
ABELE, P.J.
{¶ 1} This is an appeal from a Pike County Court judgment in favor of Wooten
Landscaping, Inc., defendant below and appellee herein.
{¶ 2} Wm. Wray Bevens, plaintiff below and appellant herein, assigns the following error
for review:
“THE JUDGMENT OF THE TRIAL COURT IS CONTRARY TO
LAW.”
{¶ 3} In late 2006, appellee installed landscaping on appellant’s property. During the next
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two years, appellant performed the maintenance of the landscaping, including pruning and trimming.
Toward the end of 2008, appellant became dissatisfied with the appearance of his landscaping and
contacted appellee. One complaint was that the plants lacked symmetry. Appellant admitted,
however, that some of his pruning and trimming resulted in the asymmetry. Appellee advised
appellant that appellee could perform landscape maintenance to address appellant’s complaint of
asymmetry for $900.
{¶ 4} Appellee’s $900 quote did not appease appellant, however. Subsequently, appellant
filed a complaint and alleged that appellee failed to install the landscaping in a workmanlike manner
and requested $1,800 in damages.
{¶ 5} At trial, appellant testified that after appellee had installed the landscaping, “it
became obvious to [him] that the plants that [appellee] had planted on the right side of the house
were substantially lower than the plants he had planted on the [left] side of the house.” He stated
that appellee failed to (1) place plants in an equal distance from the porch (2) ensure that the plants
were level, (3) uniformly space plants, (4) plant full-sun plants in full sun, (5) place a hemlock tree
in a visible location; and (6) use the mulch appellant desired. Appellant essentially testified that
he did not believe appellee installed the landscaping as specified in the proposal. He further
admitted, however, that after appellee installed the landscaping in 2006, he paid appellee and
agreed that the landscaping “looked relatively close to what the drawing had indicated.”
Appellant testified that he believed appellee’s unworkmanlike landscaping caused him to lose “the
benefit of [his] bargain to the tune of $1800.00.”
{¶ 6} On cross-examination, appellee’s counsel asked appellant whether he had expertise
in landscaping. Appellant stated that he did not “think that one has to be an expert to see that
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things are out of line and out of level and spaced irregularly.” Appellant testified that even though
appellee installed the landscaping in 2006, appellant did not notice the symmetry issue until
2008–after appellant had been pruning and trimming the landscaping for approximately two years.
{¶ 7} Appellant stated that he contacted appellee in 2009 to discuss his dissatisfaction.
Appellant “tried to work out some type of arrangement” to make the landscaping “look correct.”
Appellee submitted appellant a written proposal to “remedy [appellant’s] questions with [his]
landscape.” The proposal noted that appellant had the following issues with the landscaping: (1)
“2-levels of planting @ walk”; (2) “overgrown trees & shrubs” (3) “lack of mulch”; (4) “shrubs &
grass growing together”; (5) “weeds in mulch”; and (6) “2-shrubs crooked.” Appellee’s proposal
noted that “after 2 ½ years, the [landscaping] does look very much in need of [landscape]
maint[enance].” Appellee proposed that for $900, appellee would remedy appellant’s landscaping
issues by: (1) weeding, pruning, edging and mulching; and (2) straightening two shrubs.
Appellant did not want to pay for these services, however.
{¶ 8} Appellant stated that he requested $1,800 in damages but agreed that it was “a
guess.” Appellee’s counsel asked him:
“And is it your position * * * that it’s okay to guess as to your damages in
court?
[A]: No.
[Q]: In fact, your very words in you[r] deposition was $1800.00 is a
guesstimate . . . fair enough?
[A]: That’s right.”
{¶ 9} Appellee testified that he installed the plants in a symmetrical manner and that he
performed the landscaping in a workmanlike manner. Appellee stated that the lack of symmetry
resulted from appellant’s pruning.
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{¶ 10} On January 10, 2011, the trial court entered judgment in appellee’s favor. The
court determined that appellant’s failure to present expert testimony regarding the standard of care
required to perform landscaping in a workmanlike manner was fatal to his case. This appeal
followed.
{¶ 11} In his sole assignment of error, appellant argues that the trial court’s judgment is
contrary to law. Specifically, he asserts that the trial court improperly determined that he was
required to present expert testimony to prove his claim that appellee failed to perform in a
workmanlike manner.
{¶ 12} Generally, we will uphold a trial court’s judgment as long as the manifest weight of
the evidence supports it–that is, as long as some competent and credible evidence supports it.
E.g., Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, 17; Shemo v.
Mayfield Hts., 88 Ohio St.3d 7, 10, 722 N.E.2d 1018 (2000); C.E. Morris Co. v. Foley
Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. This standard of review is
highly deferential and even “some” evidence is sufficient to support a court’s judgment and to
prevent a reversal. See Barkley v. Barkley, 119 Ohio App.3d 155, 159, 694 N.E.2d 989 (4th Dist.
1997); Willman v. Cole, Adams App. No. 01 CA725, 2002–Ohio–3596, ¶24.
{¶ 13} Although appellate courts will ordinarily afford great deference to a trial court’s
factual findings, appellate courts do not afford any deference to a trial court’s application of the
law. Instead, appellate courts must independently review whether a trial court properly applied the
law. Lovett v. Carlisle, 179 Ohio App.3d 182, 2008–Ohio–5852, 901 N.E.2d 255, ¶16; Pottmeyer
v. Douglas, 4th Dist. No. 10CA7, 2010–Ohio–5293, ¶21.
{¶ 14} In the case sub judice, appellant’s assignment of error alleges that the trial court
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misinterpreted the law by determining that he must present expert testimony. We find it
unnecessary, however, to address this question of law. Instead, we may uphold the trial court’s
judgment, even if legally incorrect regarding the expert testimony issue, on the alternate basis that
appellant failed to prove damages with reasonable certainty. “[I]t is the definitely established law
of this state that where the judgment is correct, a reviewing court is not authorized to reverse such
judgment merely because erroneous reasons were assigned as the basis thereof.” Agricultural Ins.
Co. v. Constantine, 144 Ohio St. 275, 284, 58 N.E.2d 658 (1944). Accord State ex rel. Carter v.
Schotten, 70 Ohio St.3d 89, 92, 637 N.E.2d 306, 309 (1994); Joyce v. General Motors Corp., 49
Ohio St.3d 93, 96, 551 N.E.2d 172 (1990). Thus, when a trial court has stated an erroneous basis
for its judgment, an appellate court must nevertheless affirm the judgment if it is legally correct on
other grounds. Reynolds v. Budzik, 134 Ohio App.3d 844, 846, 732 N.E.2d 485, 486, fn.3 (6th
Dist. 1999); Newcomb v. Dredge, 105 Ohio App. 417, 424, 152 N.E.2d 801, 806-807 (2nd Dist.
1957) (“It is the duty of the reviewing court to affirm the judgment if it can be supported on any
theory, although a different theory from that of the trial court.”).
{¶ 15} In the case at bar, even if the trial court’s rationale for its judgment in appellee’s
favor is incorrect, we must uphold the judgment if it is proper under a different theory. Here, we
believe that the trial court’s judgment is proper under the theory that appellant failed to prove his
damages.
{¶ 16} When a builder or contractor breaches its implied duty to perform in a workmanlike
manner, the cost of repair is the proper measure of damages. McKinley v. Brandt Constr., Inc.,
168 Ohio App.3d 214, 2006-Ohio-3290, 859 N.E.2d 572, ¶10 (9th Dist.); McCray v. Clinton Cty.
Home Improvement, 125 Ohio App.3d 521, 523, 708 N.E.2d 1075 (12th Dist. 1998). “[T]he repair
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of deficient work may involve both additional activities necessitated by the deficient work, and
activities previously omitted, but necessary, to proper performance in a workmanlike manner.”
Barton v. Ellis, 34 Ohio App.3d 251, 254, 518 N.E.2d 18 (10th Dist. 1986). “Damages need not be
calculated with mathematical certainty, but cannot be based on mere speculation and conjecture.”
Atelier Dist., L.L.C. v. Parking Co. of Am., Inc., 10th Dist. No. 07AP–87, 2007–Ohio–7138, ¶60,
citing Allied Erecting & Dismantling Co., Inc. v. Youngstown, 151 Ohio App.3d 16,
2002–Ohio–5179, 783 N.E.2d 523, ¶64 (7th Dist.). Instead, a “plaintiff must show its entitlement
to damages in an amount ascertainable with reasonable certainty.” Id., citing Allied, and Interstate
Gas Supply, Inc. v. Calex Corp., 10th Dist. No. 04AP–980, 2006–Ohio–638, ¶59.
{¶ 17} In the case at bar, appellant failed to prove his damages with any
certainty–reasonable or otherwise. Appellant testified that his $1,800 figure represented his
“guesstimate.” He offered no explanation for how he arrived at the $1,800 figure. Thus, his
testimony that he suffered $1,800 in damages is speculation. Consequently, we believe that
appellant failed to present sufficient evidence to prove his entitlement to damages.
{¶ 18} While the record contains some evidence that appellee agreed to perform landscape
maintenance for $900, the evidence does not establish that $900 represents the amount of damage
appellant suffered, if any. Appellee prepared a written letter to appellant that contained “a bid on
landscape maintenance, which [appellee] believe[d] would remedy [appellant’s] questions with
[his] landscape.” The quote was $900 and stated that appellee would weed, prune, edge, mulch
and straighten two shrubs. The letter is not clear that the quote was prepared in order address the
alleged damage appellant claimed to have suffered as a result of the allegedly unworkmanlike
landscaping. In fact, the letter states that the quote is for “landscape maintenance.” The most
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that this $900 figure represents is that appellee agreed to perform landscape maintenance. Thus,
we do not believe that this letter constitutes proof with reasonable certainty of appellant’s damages.
Consequently, because appellant failed to prove his damages with reasonable certainty, the trial
court’s judgment in appellee’s favor is neither contrary to law nor against the manifest weight of
the evidence.
{¶ 19} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Kline, J., dissenting.
{¶ 20} I respectfully dissent because I believe the appellee’s $900 offer for “landscape
maintenance” could constitute competent, credible evidence of damages. When the appellee
informed the appellant of the $900 offer, the appellant asked “who [pays] who the $900[?]” Trial
Tr. at 71. This suggests that the appellant viewed the $900 as a possible damages amount.
{¶ 21} “‘Competency’ * * * means testimony from one who has personal knowledge of the
matter for which testimony is elicited. * * * [And] ‘[c]redible’ means worthy of belief.” Swan
Creek Twp. v. Wylie & Sons Landscaping, 168 Ohio App.3d 206, 2006-Ohio-584, 859 N.E.2d 566,
¶ 33 (6th Dist.). In my view, the evidence satisfies these criteria. I acknowledge that the fact
finder may give very little weight to the $900 offer as a damages amount. However, I believe the
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fact finder should make this determination.
{¶ 22} Accordingly, I would address the appellant’s assignment of error, and I respectfully
dissent.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pike County Court
to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.
Harsha, J.: Concurs in Judgment & Opinion
Kline, J.: Dissents with Opinion
For the Court
BY:
Peter B. Abele
Presiding Judge
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NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.