Veljanovski v. Graber Oak Flooring, Inc.

[Cite as Veljanovski v. Graber Oak Flooring, Inc., 2022-Ohio-2594.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DIMCHE VELJANOVSKI : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellant : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
GRABER OAK FLOORING, INC. : Case No. 22CA0003
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court,
Case No. 21CVI00049
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 28, 2022
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
NATHANIEL H. HURST WILLIAM FLAUTT
36 North Second Street 115 West Main Street
P.O. Box 919 P.O. Box 490
Newark, OH 43058 Somerset, OH 43783
Licking County, Case No. 22CA0003 2
Wise, Earle, P.J.
{¶ 1} Plaintiff-Appellant, Dimche Veljanovski, appeals the December 7, 2021
decision of the Municipal Court of Licking County, Ohio, finding in favor of Defendant-
Appellee, Graber Oak Flooring, Inc.
FACTS AND PROCEDURAL HISTORY
{¶ 2} In April 2020, appellant purchased a kit from appellee to build a pole barn.
Appellant determined the kit he purchased contained incorrect materials.
{¶ 3} On May 7, 2021, appellant filed a complaint against appellee claiming
breach of contract. A hearing before a magistrate was held on October 14, 2021. By
decision filed October 21, 2021, the magistrate found in favor of appellee. Appellant filed
objections claiming the decision was against the manifest weight of the evidence. By
judgment entry filed December 7, 2021, the trial court overruled the objections and
adopted the magistrate's decision.
{¶ 4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 5} "THE TRIAL COURT ABUSED ITS DISCRETION IN ADOPTING THE
MAGISTRATE'S DECISION FINDING THAT DEFENDANT-APPELLEE MET ITS
RESPONSIBILITY UNDER THE CONTRACT AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE."
I
Licking County, Case No. 22CA0003 3
{¶ 6} In his sole assignment of error, appellant claims the trial court abused its
discretion in adopting the magistrate's decision against the manifest weight of the
evidence. We disagree.
{¶ 7} In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 8} On review for manifest weight, the standard in a civil case is identical to the
standard in a criminal case: a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). In State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the
Supreme Court of Ohio explained the following:
Weight of the evidence concerns "the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the
issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the
evidence in their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before them. Weight
Licking County, Case No. 22CA0003 4
is not a question of mathematics, but depends on its effect in inducing
belief." (Emphasis sic.)
{¶ 9} In weighing the evidence, however, we are always mindful of the
presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio St
.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.
{¶ 10} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d
180 (1990). The trier of fact "has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page."
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
{¶ 11} As explained by this court in Caley v. Glenmoor Country Club, 5th Dist.
Stark Nos. 2013 CA 00012 & 2013 CA 00018, 2013-Ohio-4877, ¶ 59-61:
In order to succeed on a breach of contract claim, the plaintiff must
demonstrate that: (1) a contract existed; (2) the plaintiff fulfilled his
obligations; (3) the defendant breached his obligations; and (4) damages
resulted from this breach. Chaney v. Ramsey, 4th Dist. No. 98CA614, 1999
WL 217656, (Apr. 7, 1999), citing Doner v. Snapp, 98 Ohio App.3d 597,
600, 649 N.E.2d 42 (2nd Dist.1994).
" '[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
Licking County, Case No. 22CA0003 5
contract or the doing of something inconsistent with its existence." Natl.
City Bank of Cleveland v. Erskine & Sons, Inc., 158 Ohio St. 450, 110
N.E.2d 598 (1953), paragraph one of the syllabus.
" 'When the facts presented are undisputed, whether they constitute
a performance or a breach of a written contract, is a question of law for the
court.' " Koon v. Hoskins, 4th Dist. No. 95CA497, 1996 WL 30018, (Jan.
24, 1996), fn. 5, quoting Luntz v. Stern, 135 Ohio St. 225, 20 N.E.2d 241(1939), paragraph five of the syllabus.
{¶ 12} During the hearing, the magistrate heard from appellant and a
representative for appellee, Ernie Graber.
{¶ 13} Appellant testified the pole barn was supposed to be 12 feet high, therefore
the metal sheet panels for the sides should have been 9 feet 3 inches long, but instead
they were 8 feet 3 inches long. T. at 3. Appellant stated he did not receive the building
that he asked for. T. at 5. He had to purchase additional materials at Menards to finish
the project at a cost of $1,449.93. T. at 10.
{¶ 14} Mr. Graber explained how the pole barn was to be built, and testified if
appellant "had installed the grade boards properly at the right height the siding should
have fit perfectly same as the uh the 1500 other buildings that we've built in the last about
13 years." T. at 13-14. Mr. Graber stated when appellant came to purchase the kit, they
walked outside to review sample buildings and he specifically explained to appellant
about the placement of the metal siding. T. at 14. Mr. Graber opined the kit was correct.
Licking County, Case No. 22CA0003 6
T. at 15-16. Defendant's Exhibit C is a wall section diagram showing specifically where
and how the siding was to be installed. Appellant's signature is at the bottom of the page.
{¶ 15} In his October 2, 2021 decision, the magistrate found appellant had signed
the contract of purchase, instructions, and the plans. The magistrate concluded "[h]ad
he followed the instructions and plans, there would have been the materials needed to
complete construction and he would not have needed the additional materials that he
purchased from Menard's for $1,449.93."
{¶ 16} Appellant filed objections, arguing the magistrate's decision was against the
manifest weight of the evidence. By judgment entry filed December 7, 2021, the trial court
overruled the objections, finding the following:
Plaintiff asserted the material was too short, and the defendant's
witness testified that it was not too short if the building was properly
assembled according to the specifications. The Magistrate is in the best
position to weigh the evidence and determine the credibility of testimony.
The record does not demonstrate that the Magistrate's decision was against
the manifest weight of the evidence.
{¶ 17} The trial court independently reviewed the magistrate's decision and the
record and adopted the magistrate's decision.
{¶ 18} Upon review, we find the testimony and exhibits presented to the magistrate
support the finding for appellee. We do not find any manifest miscarriage of justice.
{¶ 19} The sole assignment of error is denied.
Licking County, Case No. 22CA0003 7
{¶ 20} The judgment of the Municipal Court of Licking County, Ohio is hereby
affirmed.
By Wise, Earl, P.J.
Gwin, J. and
Baldwin, J. concur.
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