DocketNumber: No. 07AP-502.
Citation Numbers: 2008 Ohio 765
Judges: PETREE, J.
Filed Date: 2/26/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} Plaintiff is the owner of "AAA Roofing // AAA Blacktop Paving." In June 2005, after receiving an estimate from plaintiff's agent, defendants agreed to have a new asphalt driveway installed by plaintiff's company for $2,100. Under the terms of the *Page 2 agreement, defendants agreed to pay 50 percent of the contract price before work began and to pay the remaining 50 percent upon completion of the work. After Mr. Groom paid $1,050 as required under the agreement, plaintiff began to demolish defendants' driveway.1
{¶ 3} During demolition of defendants' old driveway, plaintiff or his agent allegedly hit the defendants' home several times, ran over landscaping ties, bent an outside water tap, damaged four panels of siding on the Grooms' home, and damaged a neighbor's fence.
{¶ 4} After the new driveway was completed, plaintiff's representative presented Mr. Groom with a certificate of completion for Mr. Groom's signature. Mr. Groom signed the certificate but also entered a notation on the certificate indicating that he would not tender the last payment until damages to defendants' siding were repaired.
{¶ 5} Plaintiff's agents thereafter attempted to repair defendants' damaged siding on several occasions. These attempted repairs, however, failed to meet defendants' satisfaction. Because plaintiff failed to satisfactorily remedy the damages to defendants' property that were caused by plaintiff or his agent, defendants continued to withhold final payment. *Page 3
{¶ 6} Plaintiff eventually filed a mechanic's lien against defendants' property. Later, alleging, among other things, breach of contract and fraud, plaintiff sued defendants in the Franklin County Municipal Court. With leave of court, defendants filed an amended counterclaim against plaintiff, wherein they alleged, among other things, that plaintiff breached his contract to defendants and violated the Ohio Consumer Sales Protection Act, R.C.
{¶ 7} After a bench trial, the trial court found in favor of defendants. Finding that defendants were entitled to treble damages in accordance with the Ohio Consumer Sales Practices Act, the trial court awarded $15,000, plus post-judgment interest in damages and $4,718.04 in attorney's fees and court costs. The trial court also vacated plaintiff's mechanic's lien against defendants' property.
{¶ 8} From the trial court's judgment in favor of defendants, plaintiff now appeals and advances three errors for our consideration:
*Page 4I. It was error for the trial court to find that the parties agreed to modify the original payment terms of the contract thus relieving the Appellees of their duty to pay pursuant to the original contract terms.
II. It was error for the trial court to find in favor of the Appellees on their counterclaim that Appellant violated the Consumer Sales Protection Act.
III. It was error for the trial court to award treble damages and attorney's fees to the Appellees on their counterclaim.
{¶ 9} Whether a contract exists is a question of law. Motorists Mut.Ins. Co. v. Columbus Fin., Inc.,
{¶ 10} An appellate court reviews questions of law de novo. Long BeachAssn., Inc. v. Jones (1998),
{¶ 11} By comparison, appellate review of a mixed question of law and fact requires an appellate court to accord due deference to a trial court's factual findings if the factual findings are supported by competent, credible evidence, and to independently *Page 5
review whether a trial court properly applied the law to the facts of the case. State v. Stamper, Lawrence App. No. 05CA21, 2006-Ohio-722, at ¶ 12; State v. Angus, Ross App. No. 05CA2880,
{¶ 12} Plaintiff's first assignment of error asserts that the trial court erred when it determined that the parties agreed to modify the payment terms of their contract, thereby relieving defendants of their duty to pay plaintiff according to the terms of the parties' original agreement. For the reasons set forth below, we sustain in part and overrule in part plaintiff's first assignment of error.
{¶ 13} "`A contract is generally defined as a promise, or a set of promises, actionable upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration.'" Kostelnik v.Helper,
{¶ 14} "`[B]reach,' as applied to contracts is defined as a failure without legal excuse to perform any promise which forms a whole or part of a contract, including the refusal of a party to recognize the existence of the contract or the doing of something inconsistent with its existence." Natl. City Bank of Cleveland v. Erskine Sons
(1953),158 Ohio St. 450, paragraph one of the syllabus. "[T]o prove a breach of contract, a plaintiff must establish the existence and terms of a contract, the plaintiff's performance of the contract, the defendant's breach of the contract, and damage or loss to the *Page 6
plaintiff." Samadder v. DMF of Ohio, Inc.,
{¶ 15} "A breach of a portion of the terms of a contract does not discharge the obligations of the parties to the contract, unless performance of those terms is essential to the purpose of the agreement." Software Clearing House, Inc. v. Intrak, Inc. (1990),
{¶ 16} Whether a material breach has occurred ordinarily is a question of fact for the fact-finder. Ahmed v. University Hospitals Health CareSystem, Inc., Cuyahoga App. No. 79016, 2002-Ohio-1823, at ¶ 41;Unifirst Corp., supra, citing Bradley v. Pentajay Homes (July 3, 1991), Athens App. No. CA 1458, citing Farnsworth, Contracts (1982) 612, Section 8.16); 6 Williston, Law of Contracts (3 Ed.1962) 297, Section 866. But, see, Luntz v. Stern (1939),
{¶ 17} Here, although the parties do not dispute some facts underlying the case, i.e., the parties entered into a contract for installation of a new driveway at defendants' home for the sum of $2,100; defendants tendered an initial payment of $1,050; *Page 7 defendants failed to tender final payment after the paving job was completed; and plaintiff damaged defendants' siding during installation of the new driveway and subsequently attempted to repair this damage, the issue of whether plaintiff or defendants breached the paving contract is disputed by the parties.
{¶ 18} Because in a civil case an appellate court is guided by the principle that judgments that are supported by competent, credible evidence going to all the material elements of a case must not be reversed as being against the manifest weight of the evidence, seePep Boys v. Vaughn, Franklin App. No. 04AP-1221,
{¶ 19} "The duty to perform in a workmanlike manner is imposed by common law upon builders and contractors." Barton v. Ellis (1986),
{¶ 20} In Barton, this court explained:
* * * Absent express or implied warranties as to the quality or fitness of work performed, the liability of a builder-vendor of a completed structure for failure to exercise reasonable care to perform in a workmanlike manner sounds in tort, and arises ex delicto. The essential allegation is that the builder-vendor's negligence proximately causes the vendee's damages. * * * By contrast, in the provision of future services, liability arises ex contractu as an implied bargain * * * provision, condition, or term of sale * * *
Id. at 253. (Citations omitted; emphasis sic.) See Kishmarton v. WilliamBailey Constr., Inc. (2001),
{¶ 21} Here, because the paving contract was for future services, plaintiff's implied duty to perform in a workmanlike manner arose ex contractu as an implied bargain, provision, condition, or term of sale.Barton, at 253. Also, because at trial plaintiff stipulated to the fact that he damaged defendants' siding while installing defendants' new driveway, some competent, credible evidence in the record supports the trial court's determination that plaintiff failed to perform in a workmanlike manner under the parties' contract when installing the defendants' driveway, thereby breaching the parties' contract. *Page 9
{¶ 22} Although the trial court concluded that plaintiff breached the parties' contract, the trial court did not, however, find that plaintiff's breach was total or material,2 thereby excusing defendants' performance under the contract. By implication, therefore, we must conclude that the trial court found that plaintiff partially breached the parties' contract. See, generally, Hansel v. CreativeConcrete Masonry Constr. Co.,
{¶ 23} At trial, plaintiff claimed that he cured his defective performance by sufficiently repairing defendants' damaged siding. Defendants claimed, however, that plaintiff's cure was substandard and they put forth evidence that challenged plaintiff's claim that he sufficiently cured his defective performance. Finding in favor of defendants, *Page 10 the trial court concluded that plaintiff failed to exercise skill and care with regard to his attempted repairs of defendants' siding. After reviewing the evidence in the record, we find that the trial court's determination that plaintiff failed to exercise skill and care in his attempted repairs is supported by some competent, credible evidence.
{¶ 24} "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." Jarupan, supra, at ¶ 19, citing McKinley v. BrandtConstr., Inc.,
{¶ 25} At trial, defendants proffered evidence that established that defendants' expected cost to repair their damaged siding exceeded the sum of defendants' remaining performance under the parties' contract. We therefore cannot agree with plaintiff's contention that the trial court erred when it concluded that defendants were not required to pay the remaining amount of $1,050 under the parties' contract. Accordingly, plaintiff's contention is not well-taken.
{¶ 26} Besides concluding that plaintiff partially breached the paving contract, the trial court also concluded that the parties modified the paving contract when Mr. Groom noted on the certificate of completion that he was withholding final payment until defendants' siding was repaired. For the following reasons, however, we disagree with the trial court's conclusion that the parties modified the paving contract. *Page 11
{¶ 27} A contract cannot be unilaterally modified, and parties to a contract must mutually consent to a modification. Nagle Heating AirConditioning Co. v. Heskett (1990),
{¶ 28} In Citizens Fed. Bank, F.S.B. v. Brickler (1996),
We agree with the trial court's conclusion that "subsequent acts and agreements may modify the terms of a contract, and, unless otherwise specified, neither consideration nor a writing is necessary." Software Clearing House, Inc. v. Intrak, Inc. (1990),
66 Ohio App. 3d 163 ,172 ,583 N.E.2d 1056, 1061. "There is no doubt that it was perfectly competent for the defendant to assent to any modification or change in the terms of the contract, and that such assent, either express or implied, if acted on by the plaintiffs, would be binding upon the defendant." Mehurin Son v. Stone (1881),37 Ohio St. 49 ,57-58 . "[I]t appears to be equally well settled, that, subsequent to the execution of a written contract, it is competent for the parties, by a new contract, although not in writing, either to abandon, waive, or annul, the prior contract, or vary, or qualify the terms of it, in any manner. * * * But where a written contract is thus either totally abandoned and annulled, or simply altered or modified in some of its terms, it is done, and can only be done, by a distinct and substantive contract between the parties, founded on some valid consideration." (Emphasis sic.) Thurston v. Ludwig (1856),6 Ohio St. 1 ,5 .
Id. at 407-408. See, also, Thurston v. Ludwig (1856),
{¶ 29} Here, according to terms of the paving contract, defendants had already promised to pay $1,050 to plaintiff following completion of the new driveway. Thus, even assuming that the parties mutually agreed to modify the paving contract, defendants' promise to pay $1,050 in exchange for repairs to the siding cannot be a bargained-for detriment, thereby constituting valid consideration to support the parties' purported modification of their contract. See, generally, Carlisle v. T R Excavating, Inc. (1997),
{¶ 30} Consequently, even assuming arguendo that the parties mutually consented to modification of the paving contract, because defendants' purported promise *Page 13 to pay $1,050 in exchange for repairs to the siding fails as valid consideration, we conclude that the trial court erred, as a matter of law, when it determined that the parties modified the payment terms of the paving contract. Accordingly, we sustain in part plaintiff's first assignment of error. However, because the trial court did not err when it concluded that defendants were not required to pay the remaining amount of $1,050 under the parties' contract, we overrule in part plaintiff's first assignment of error.
{¶ 31} Plaintiff's second and third assignments of error concern the trial court's determination that plaintiff violated the Ohio Consumer Sales Practices Act, R.C Chapter 1345 ("CSPA"), and the trial court's award of treble damages and attorney's fees to defendants. Because these assignments of error are interrelated, we shall jointly consider them.
{¶ 32} The Ohio Consumer Sales Practices Act, R.C. Chapter 1345, has been found to apply to a dispute between homeowners and a sole proprietor of a construction company who performed improvements to the homeowners' property, including replacement of the homeowners' driveway.Williams v. Edwards (1998),
{¶ 33} "The Consumer Sales Practices Act, R.C. Chapter 1345, prohibits suppliers from committing either unfair or deceptive consumer sales practices or unconscionable acts or practices as catalogued in R.C.
{¶ 34} "Ohio's Consumer Sales Practices Act is a remedial law designed to provide various civil remedies to aggrieved consumers and must be liberally construed pursuant to R.C. 1.11." State ex rel. Celebrezze v.Hughes (1991),
{¶ 35} "A consumer may, in an individual action, rescind the transaction or recover damages for a violation of the CSPA." Marrone v.Phillip Morris USA, Inc.,
{¶ 36} "[T]o recover under R.C.
{¶ 37} When reviewing the trial court's determination that plaintiff violated former R.C.
{¶ 38} To support its conclusion that plaintiff violated R.C.
{¶ 39} "The party bearing the responsibility for the burden of proof is, as a general rule, determined by the pleadings. It is firmly established that he who affirms must prove." Schaffer v. Donegan (1990),
{¶ 40} Because, in support of their CSPA claim, defendants claimed plaintiff's misrepresentation about whether he was bonded or insured deceptively induced defendants to enter an agreement for the paving of defendants' driveway, the burden was on defendants, not plaintiff, to proffer evidence in support of their claim of deceptive inducement based on plaintiff's lack of bonding or insurance.
{¶ 41} Absent from the record, however, is any evidence regarding whether plaintiff or his company was or was not bonded or whether plaintiff did or did not have insurance. See, generally, Van Jackson v.Check `N Go of Illinois, Inc. (N.D.Ill, 2000),
{¶ 42} Similarly, although defendants proffered testimony that plaintiff represented to them that he owned a siding company, and such a representation induced Mr. Groom to permit plaintiff to attempt to repair the damaged siding, defendants proffered no evidence to support defendants' contention that plaintiff's representation about owning a siding company was misleading or false. (Tr. 149-150.) Despite defendants' failure to put forth any evidence about whether plaintiff owned a siding company, the trial court placed the burden upon plaintiff to rebut defendants' claims when it stated: "This Court also notes *Page 18 that Plaintiff failed to submit any evidence to establish thatPlaintiff actually owned a siding company or that Plaintiff had any experience with the same." (Findings of Fact and Conclusions of Law, at 48-49.) (Emphasis added.)
{¶ 43} Accordingly, we agree with plaintiff's contention that the trial court improperly shifted the burden to plaintiff to establish whether plaintiff's company was bonded or whether plaintiff owned a siding company. We also must therefore conclude that the trial court's judgment is not supported by competent, credible evidence going to all the material elements of defendants' CSPA claim, and we further conclude that the trial court erred by awarding treble damages and attorney's fees under the CSPA.
{¶ 44} For reasons set forth above, we therefore sustain plaintiff's second and third assignments of error.
{¶ 45} Accordingly, having sustained in part and overruled in part plaintiff's first assignment of error, and having sustained plaintiff's second and third assignments of error, we reverse the judgment of the Franklin County Municipal Court. Because the evidence in the record supports a finding that defendants' expected cost of repairing their damaged siding exceeds the sum of defendants' remaining performance under the parties' contract, we remand the matter to the trial court for proceedings in accordance with law and consistent with this opinion to recalculate defendants' damages for the damaged siding.
Judgment reversed; cause remanded with instructions.
KLATT and SADLER, JJ., concur.
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