DC Welch Trucking v. Lagowski

[Cite as DC Welch Trucking v. Lagowski, 2021-Ohio-4555.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
DC WELCH TRUCKING LLC,
Plaintiff-Appellee,
v.
ROGER LAGOWSKI,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0006
Civil Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 20-CV-021
BEFORE:
Gene Donofrio, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed
Atty. Jacob Manning, Dinsmore & Shohl, LLP., 2100 Market Street, Wheeling, West
Virginia 26003, for Plaintiff-Appellee and
Atty. Dennis McNamara, McNamara Law Office, 88 East Broad Street, Suite 1350,
Columbus, Ohio 43215, for Defendant-Appellant.
–2–
Dated:
December 13, 2021
Donofrio, J.
{¶1} Defendant-appellant, Roger Lagowski, appeals from a Belmont County
Common Pleas Court judgment in favor of plaintiff-appellee, DC Welch Trucking, LLC,
owned by Dennis Welch, in the amount of $25,734.39, plus interest.
{¶2} Appellant owns a six-acre plot of land across the street from his house. On
this land he built a commercial building consisting of multiple office spaces, a townhouse,
and several garages in the back. There is a small parking lot in front of the building where
cars park. Behind the building there is a much larger space that the companies who rent
space in the building use to park their trailers. This lot had an access road and was
flattened out by appellant, but was otherwise unfinished.
{¶3} The rest of the facts in this case are in dispute. It can be determined from
the record that appellant was looking to turn the large lot into a finished parking lot and
entered into business with Wilcox Excavating in June of 2019. Wilcox Excavating is
owned by Dennis Wilcox.
{¶4} Eventually, appellee was contacted and asked to deliver various types of
stone to the lot in furtherance of building the parking lot. In total, appellee made 54 trips
to appellant’s land delivering stone valued at $27,234.39. There were no complaints from
anyone involved as to appellee’s performance or the quality of the materials delivered.
But appellee was not paid for the work aside from a single $1,500 payment. Dennis Welch
claimed appellant placed this payment on his front porch. This payment was deducted
from the total bill. Appellant claims he paid Wilcox for the stone. Wilcox denied this.
{¶5} On January 21, 2020, appellee filed a complaint against appellant for
breach of contract and unjust enrichment. The matter proceeded to a bench trial on
December 14, 2020, where the court heard testimony from appellant, Welch, Wilcox, and
the owner of the stone company.
{¶6} In its January 15, 2021 judgement entry, the trial court found appellee was
entitled to judgment against appellant in the amount of $25,734.39. It found appellee
showed by clear and convincing evidence the elements of a contract. The court also
found appellee had met all elements needed to show unjust enrichment. So that even if
Case No. 21 BE 0006
–3–
the court had not found that there was a contract present between the parties, appellee
would still be entitled to judgment for unjust enrichment.
{¶7} Appellant filed a timely notice of appeal on February 1, 2021. He now raises
two assignments of error. We will address appellant’s assignments of error out of order
for ease of discussion.
{¶8} Appellant’s second assignment of error states:
THE TRIAL COURT’S VERDICT FINDING THAT WELCH
TRUCKING HAD PROVED ALL OF THE ELEMENTS OF ITS UNJUST
ENRICHMENT CLAIM AND THAT ROGER LAGOWSKI OWED DC
WELCH TRUCKING, LLC $25,734.39 AND INTEREST WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶9} Appellant argues that all three elements needed for a successful unjust
enrichment claim were not met. Specifically, appellant focuses on the third element which
states that “retention of the benefit in circumstances where retention without payment is
unjust to the plaintiff” is not met. Hambleton v. Barry Corp., 12 Ohio St.3d 179, 183, 465
N.E.2d. 1298 (1984). Appellant points to his own testimony claiming he had already paid
Wilcox for the work. Appellant also points to the relationship between Welch and Wilcox,
who were friends since high school, and claims that it would be unfair for Wilcox to escape
liability, and that appellee should have filed suit against him as well.
{¶10} When reviewing civil appeals from bench trials, an appellate court applies
a manifest weight standard of review. Revilo Tyluka, L.L.C. v. Simon Roofing & Sheet
Metal Corp., 193 Ohio App.3d 535, 2011-Ohio-1922, 952 N.E.2d 1181, ¶ 5 (8th Dist.),
citing App.R. 12(C), Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273(1984). Judgments supported by some competent, credible evidence going to all the
material elements of the case 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, 376 N.E.2d
578, syllabus (1978). See also, Gerijo, Inc. v. Fairfield, 70 Ohio St.3d 223, 226, 638
N.E.2d 533 (1994). Reviewing courts must oblige every reasonable presumption in favor
of the lower court's judgment and findings of fact. Gerijo, 70 Ohio St.3d at 226 (citing
Case No. 21 BE 0006
–4–
Seasons Coal Co., supra). In the event the evidence is susceptible to more than one
interpretation, we must construe it consistently with the lower court's judgment. Id.{¶11} The trial court found that the elements of unjust enrichment were met. It
looked to HLC Trucking v. Harris, 7th Dist. Belmont, No. 01 BA 37, 2003-Ohio-694, ¶¶
25-26, to explain the elements of unjust enrichment, where this Court explained:
Unjust enrichment is based on the principle that a person should not
be allowed to profit or enrich himself inequitably at another's expense, and
should be required to make restitution to the party suffering the loss. Henkle
v. Henkle (1991), 75 Ohio App.3d 732, 738, 600 N.E.2d 791.
“To support a claim of unjust enrichment, a plaintiff must demonstrate
that (1) he conferred a benefit upon the defendant, (2) the defendant had
knowledge of the benefit, and (3) circumstances render it unjust or
inequitable to permit the defendant to retain the benefit without
compensating the plaintiff. Hambleton v. R.G. Barry Corp. (1984), 12 Ohio
St.3d 179, 183, 12 OBR 246, 465 N.E.2d 1298. The plaintiff must confer the
benefit as a response to fraud, misrepresentation, or bad faith on behalf of
the defendant. Natl. City Bank v. Fleming (1981), 2 Ohio App.3d 50, 58, 2
OBR 57, 440 N.E.2d 590. That is, there must be a tie of causation between
the plaintiff's loss and the defendant's benefit. Elbert v. West (Aug. 20,
1986), Lorain App. No. 3985, unreported, at 5, 1986 WL 9131.” Laurent v.
Flood Data Serv., Inc. (2001), 146 Ohio App.3d 392, 399, 766 N.E.2d 221.
{¶12} Thus, we must examine the evidence to determine if appellee presented
competent, credible evidence going to all of the elements of unjust enrichment.
{¶13} Richard Petrozzi, owner of Egypt Valley Stone, was the first witness.
Egypt Valley Stone conducts regular business with appellee. (Tr. 10). Petrozzi’s
testimony explained the process appellee goes through to buy stone and how it is billed
for the stone received from stone suppliers like Egypt Valley Stone. Petrozzi explained
that there is no way for him to know where each delivery that leaves Egypt Valley Stone
goes. (Tr. 12). He stated that he documents how much and what type of stone appellee
Case No. 21 BE 0006
–5–
takes at each delivery and then bills appellee at the end of each month. (Tr. 12). He also
noted that appellee did not currently owe Egypt Valley Stone anything and that no one
other than Welch ever paid the bill for appellee. (Tr. 13).
{¶14} Welch testified next. Welch stated he was first contacted about delivering
stone to appellant by Wilcox. (Tr. 24). Wilcox gave him the address of the lot, asked for
a bid, and Welch gave a bid price of $20 per ton. (Tr. 24). Welch expressed that he
believed appellant was next to Wilcox while he and Wilcox were on the phone and he
believed that appellant gave Wilcox the “go ahead” to accept his offer. (Tr. 70).
{¶15} Welch also testified that he communicated with appellant through text
messages. (Tr. 29). Welch copied these text messages and printed the copies.
(Plaintiff’s Ex. 4). They showed multiple messages between Welch and appellant
including appellant asking Welch if he could deliver more stone, messages discussing the
total amount owed for the stone, appellant asking if he could stop by and grab an invoice
from Welch, and a message that said appellant left $1,500 cash on Welch’s porch. (Tr.
29-34, 39).
{¶16} Next, Wilcox testified. Wilcox denied the existence of any contract between
appellant and himself, claiming any writings to the contrary were forged. (Tr. 85). In his
testimony, Wilcox expressed that appellant was asking his opinion as to how to finish the
parking lot, and that he recommended appellee and called Welch as a result of appellant’s
orders. (Tr. 75). He claimed that no agreement had been made about who would pay
for the deliveries and that he only contacted Welch for appellant. (Tr. 77).
{¶17} Wilcox further denied having received the $36,500 from appellant and
claimed that the invoices stating such are forged. (Tr. 80). However, he did admit that
he was paid two separate times with checks of $3,000 and a third time with a cash
payment of $1,000 for a total of $7,000. (Tr. 78). He noted that this did not cover the bill
for the work he had done and that he was actually filing suit against appellant in small
claims court for the remaining $3,500 of the original $10,500 that Wilcox claimed to have
invoiced. (Tr. 98).
{¶18} Finally, appellant testified. He stated that he was in fact billed $36,500 by
Wilcox and that he witnessed Wilcox mark the invoices as “Paid.” (Tr. 104; Defense Exs.
C, D, E, F, G). Appellant further testified that only two payments were made via check
Case No. 21 BE 0006
–6–
and that Wilcox then asked him to pay the rest in cash because he was going through a
divorce and wanted to hide the money. (Tr. 105). Exhibits were introduced to show
pictures of money and of Wilcox sitting in his vehicle. (Tr. 111). Appellant claimed he
took the pictures to show proof of the cash payments he was giving to Wilcox. (Tr. 111).
Appellant stated that Wilcox would not allow pictures to be taken of him holding the
money. (Tr. 127)
{¶19} Defense counsel also provided pictures of text messages between
appellant and Wilcox. (Tr. 108). These text messages showed Wilcox asking appellant
when he was going to get paid. (Tr. 109). Appellant then denied that the text
conversations he supposedly had with Welch were real, and that he did not leave $1,500
on his porch. (Tr. 127-128).
{¶20} Lastly, counsel provided bank statements showing withdrawals that
appellant claimed to have been made for payment to Wilcox. (Tr. 114). On cross
examination, appellant was asked about why money was deposited into his account the
same day money was withdrawn. (Tr. 121). Appellant testified that he would withdraw
money from the account every time he was paid by his tenants. (Tr. 124). After being
asked to look at the exhibits, appellant stated that he saw statements of withdrawals of
$6,000 on September 5 and $6,000 on October 1. (Tr. 123).
{¶21} In finding that appellee proved all elements of unjust enrichment, the trial
court pointed to the 54 deliveries totaling nearly 1,360 tons of stone that appellant
received. Appellant was then able to complete his project and lease the space, so there
was a benefit received. Then the court found that appellant had knowledge of this benefit,
meeting the second element. Lastly, the court found that it would be inequitable to permit
appellant to avoid payment to appellee. It stated that appellant’s sole argument was that
he had already paid Wilcox for the job, but the court found this testimony not credible.
The trial court found that appellant’s refusal to compensate appellee was at best bad faith
and at worst fraudulent.
{¶22} The parties here presented conflicting evidence as to the agreement to
purchase the stone and who paid, or failed to pay, whom. This case rested on which
witnesses were more credible. Such issues are best left to the trier of fact. Seasons Coal
Co., 10 Ohio St.3d at 80. This is because the trier of fact is in a better position to judge
Case No. 21 BE 0006
–7–
the witnesses’ credibility since it can observe the witnesses’ demeanor, gestures, and
voice inflections, and use these observations in weighing their credibility. Id. In this case,
the trial court clearly found Wilcox’s and Welch’s testimony to be more credible than
appellant’s testimony.
{¶23} When the trial court’s judgment is supported by some competent, credible
evidence going to all the material elements, we will not be reverse it as being against the
manifest weight of the evidence. C.E. Morris Co., 54 Ohio St.2d at the syllabus. Because
the finding of unjust enrichment is supported by some competent, credible evidence it is
not against the manifest weight of the evidence.
{¶24} Accordingly, appellant’s second assignment of error is without merit and is
overruled.
{¶25} Appellant’s first assignment of error states:
THE TRIAL COURT’S VERDICT FINDING THAT WELCH
TRUCKING PROVIDED BY CLEAR AND CONVINCING EVIDENCE THAT
ROGER LAGOWSKI VIOLATED THE TERMS OF THE ORAL CONTRACT
AND OWED DC WELCH TRUCKING, LLC $25,734.39 AND INTEREST
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶26} Appellant argues that there was no contract between himself and Welch.
He claims Wilcox was a subcontractor and should be the one responsible for paying
Welch. Appellant asserts there was no evidence to support an oral contract because the
theory of an oral contract was not believable.
{¶27} The burden of proof on one seeking to enforce an oral contract requires
that party to prove the existence of the contract by clear and convincing evidence.
Ramun v. Ramun, 7th Dist. Mahoning No. 12 MA 61, 2014-Ohio-4440, ¶ 26. Clear and
convincing evidence is evidence that will produce in the fact-finder's mind a firm belief or
conviction as to the facts sought to be established. Id. Since appellee looked to enforce
the oral contract, the burden of proof was on it to prove the contract’s existence by clear
and convincing evidence. The trial court held that the burden of proof was met and that
an oral contract existed.
Case No. 21 BE 0006
–8–
{¶28} In its decision on the breach of contract claim, the trial court noted that the
Ohio Supreme Court determined that contracts which call for performance by plaintiff, not
for a definite period, but for so long as defendant required the product are known as
requirement contracts. Fuchs v. United Motor Stage Co., 135 Ohio St. 509, 21 N.E.2d
669 (1939). The trial court pointed to the following statement by the Supreme Court:
There is no specific amount of merchandise to be sold on the
one hand and purchased on the other. The amount is to be
determined by the requirements of the defendant as
demanded by its business, a matter which is within the control
of the defendant and about which is not in position to
complain. This contract in character is known as a
requirement contract. Such contracts are not unusual and
have been upheld generally by the courts. Of course, there
must be terms, conditions, or circumstances from which
quantities of material or merchandise sold may be
determined, or at least approximated. But when such
requirements have a fixed business basis, as distinguished
from a mere whim of the party making the purchase, there is
sufficient certainty in this respect.
Id. at 513.
{¶29} The trial court found that appellee had proven by clear and convincing
evidence the elements of a requirement contract.
{¶30} A contract in writing whereby one agrees to buy, for a sufficient
consideration, all the merchandise of a designated type which the buyer may require for
use in his own established business, is known as a requirement contract. Id., at
paragraph two of the syllabus. Appellee claims that there existed an oral contract
between itself and appellant. There is no claim or evidence to support that any written
contract existed between the parties here. Therefore, the elements for a written
requirement contract were not met.
Case No. 21 BE 0006
–9–
{¶31} Nonetheless, we have already determined that the trial court’s judgment
in favor of appellee on the unjust enrichment claim was not against the manifest weight
of the evidence and that judgment in appellee’s favor was supported by the evidence.
Therefore, whether there was a valid requirement contract between the parties or not,
there is no reversible error as judgment in appellee’s favor was proper.
{¶32} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
{¶33} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, J., concurs.
D’Apolito, J., concurs.
Case No. 21 BE 0006
[Cite as DC Welch Trucking v. Lagowski, 2021-Ohio-4555.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.