Francosky v. Customized Vinyl Sales

[Cite as Francosky v. Customized Vinyl Sales, 2019-Ohio-2172.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
DANIEL FRANCOSKY, et al., : OPINION
Plaintiffs-Appellees, :
CASE NO. 2018-T-0066
- vs - :
CUSTOMIZED VINYL SALES, :
Defendant-Appellant. :
Civil Appeal from the Trumbull County Central District Court, Case No. 2017 CVI
00256.
Judgment: Affirmed.
Daniel P. Thomas, Delbene, LaPolla & Thomas, 155 Pine Avenue, N.E., Warren, OH
44481 (For Plaintiffs-Appellees).
Shirley J. Smith, The Law Offices of Shirley J. Smith, LLC, 94 North Market Street,
East Palestine, OH 44413 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Customized Vinyl Sales, appeals from the judgment of the
Trumbull County Central District Court, ruling in favor of appellees, Daniel Francosky, et
al., on their small claims cause of action for “shoddy workmanship.” We affirm.
{¶2} On November 11, 2014, the parties entered into an agreement for the re-
installation of a vinyl fence for the purpose of securing appellees’ horses. The price for
the labor and supplies totaled $3,800, which appellees paid. The agreement provided,
inter alia, appellant would install 981 feet of fencing; and all posts re-installed will have
bottom holes drilled and be set in 80 pounds of concrete. Appellee, Joyce Francosky,
asserted that, in lieu of 80 pounds of concrete, appellant only used 40 pounds when it
re-installed the fence posts. She and her husband, Daniel Francosky, additionally
stated they took issue with this point during the re-installation, but appellant did not add
the additional concrete.
{¶3} Approximately one year after the agreement was entered, the record
indicates that appellee, Mr. Francosky, noticed “a lot of posts start heaving up out of the
ground.” And in May 2017, he and his wife contacted appellant in an attempt to
remediate the situation. According to Mr. Francosky, they were ignored; he and his wife
subsequently fixed the fence on their own and filed the instant action. Attached to their
complaint, appellees submitted photographs of the posts, including what appears to be
images of the posts unsecured and “heaving” upward due to appellant’s alleged
unworkmanlike efforts, as well as a photo of the fence after appellees independently
remedied the issues leading to the suit. Appellant filed an answer denying the
allegation of unsatisfactory work.
{¶4} After a hearing, the trial court issued its judgment, finding in appellees’
favor. The court determined that even though appellees did not offer any expert
testimony to rebut appellant’s position that the re-installation was performed properly, it
could not “ignore the fact that the installation of a secure and operational livestock fence
was the very purpose of [the] agreement; that the Plaintiffs paid a substantial amount of
money to accomplish such installation; and that within a relatively short period of time
the fence was essentially useless as a result of the posts heaving from the ground.”
The court therefore concluded appellant did not perform the re-installation in a
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workmanlike fashion and punctuated its judgment by emphasizing “‘The thing speaks
for itself.’” Appellees were thus awarded $3,800 in damages. This appeal follows.
{¶5} Appellant assigns five errors for this court’s review. Its first assignment of
error provides:
{¶6} “The trial court erred in granting judgment in favor of plaintiffs-appellees,
despite plaintiff-appellee’s complaint having been filed outside the statute of limitations
as prescribed in O.R.C. 2305.10(A).”
{¶7} R.C. 2305.10(A) provides:
{¶8} Except as provided in division (C) or (E) of this section, an action
based on a product liability claim and an action for bodily injury or
injuring personal property shall be brought within two years after
the cause of action accrues. Except as provided in divisions (B)(1),
(2), (3), (4), and (5) of this section, a cause of action accrues under
this division when the injury or loss to person or property occurs.
{¶9} The underlying complaint did not allege a product liability claim. And,
although it arguably alleged damage to personal property, i.e., the fence, the damage
arose from appellant’s alleged negligence, not a defective fence. Under the doctrine
of ejusdem generis, “where an enumeration of specific things is followed by some more
general word or phrase, such general word or phrase should be held to include only
things of the same general nature as those specified”. George H. Dingledy Lumber Co.
v. Erie R. Co., 102 Ohio St. 236, 245 (1921). Here, R.C. 2305.10(A) specifies it applies
to “an action based on a product liability claim.” Hence, it follows the bodily or property
injuries the statute covers would relate to or arise from the allegedly defective product.
We therefore conclude R.C. 2305.10(A) is inapplicable.
{¶10} Here, the allegation in the complaint was “shoddy workmanship.” The trial
court properly interpreted the claim, in light of the alleged facts, as a claim for a failure
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to re-install the fence in a workmanlike fashion. An action against a builder for failure to
construct in a workmanlike manner is an action in tort to which the four-year statute
of limitations in R.C. 2305.09(D) applies. Velotta v. Leo Petronzio Landscaping,
Inc., 69 Ohio St. 2d 376, paragraph one of the syllabus (1982); see also Rosenow v.
Shutrump & Assoc., 163 Ohio App. 3d 500, 2005-Ohio-5313, ¶29 (7th Dist.). “[T]he
four-year statute of limitations * * * commences * * * when it is first discovered, or
through the exercise of reasonable diligence it should have been discovered, that there
is damage to the property.” Harris v. Liston, 86 Ohio St. 3d 203, paragraph two of the
syllabus (1999); see also Esposito v. Caputo, 11th Dist. Lake No. 2002-L-099, 2003-
Ohio-1590, ¶23.
{¶11} The record indicates Mr. Francosky discovered the fence posts beginning
to rise up or “heave” upwards approximately one year from the re-installation. The
agreement to re-install the posts was entered on November 11, 2014; hence, the
discovery date would be roughly November 11, 2015. The underlying cause of action
was filed on August 22, 2017, well within the four-year limitation period.
{¶12} Appellant’s first assignment of error lacks merit.
{¶13} Appellant’s second and third assignments of error provide, respectively:
{¶14} “[2.] The trial court erred in granting judgment in favor of plaintiffs-
appellees, despite plaintiffs-appellees’ complete failure to meet its burden of proof as to
its sole claim of ‘shotty [sic] workmanship,’ as and against the manifest weight of the
evidence.
{¶15} “[3.] The trial court further abused its discretion in determining that res ipsa
loquitur, ‘the thing speaks for itself,’ is applicable.”
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{¶16} “[A]n appellate court will not reverse a judgment as being contrary to the
weight of the evidence as long as there is some competent, credible evidence
supporting the judgment.” In re Kangas, 11th Dist. Ashtabula No. 2006-A-0084, 2007-
Ohio-1921, ¶81. The manifest-weight standard of review is the same in a civil case as in
a criminal case. Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, ¶17.
{¶17} When applying the manifest-weight standard of review, the reviewing court
reviews the entire record, “‘weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in
the evidence, the [finder of fact] clearly lost its way and created such a manifest
miscarriage of justice that the [judgment] must be reversed and a new trial
ordered.’” Eastley, supra, ¶20, quoting Tewarson v. Simon, 141 Ohio App. 3d 103, 115
(9th Dist.2001). “The finder of fact is entitled to believe all, part, or none of the testimony
of any witness.” River Oaks Homes, Inc. v. Twin Vinyl, Inc., 11th Dist. Lake No. 2007-
L-117, 2008-Ohio-4301, ¶27.
{¶18} “Under the manifest weight standard of review, we are ‘guided by a
presumption’ that the fact-finder’s findings are correct.” Terry v. Kellstone, Inc., 6th Dist.
Erie No. E-12-061, 2013-Ohio-4419, ¶13, citing Seasons Coal Co. v. Cleveland, 10
Ohio St. 3d 77, 79-80 (1984). See also Eastley at ¶21. We must make “‘every
reasonable presumption * * * in favor of the judgment and the finding of facts.’” Id.,
quoting Seasons Coal Co. at 80, fn. 3. “‘If the evidence is susceptible of more than one
construction,’” we are “‘bound to give it that interpretation which is consistent with the * *
* judgment [and] most favorable to sustaining the * * * judgment.’” Eastley,
supra, quoting Seasons Coal Co., supra.
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{¶19} Moreover, “res ipsa loquitur is a rule of evidence which permits the trier of
fact to infer negligence on the part of the defendant from the circumstances surrounding
the injury to plaintiff.” Hake v. George Wiedemann Brewing Co., 23 Ohio St. 2d 65, 66
(1970). “‘The doctrine of res ipsa loquitur is not a substantive rule of law furnishing an
independent ground for recovery * * *. The doctrine of res ipsa loquitur does not alter
the nature of plaintiff’s claim in a negligence action; it is merely a method of proving the
defendant’s negligence through the use of circumstantial evidence.’” (Emphasis
original.) Dardy v. Thompson, 11th Dist. Geauga No. 2013-G-3157, 2014-Ohio-2700,
¶15 quoting Jennings Buick, Inc. v. Cincinnati, 63 Ohio St. 2d 167, 169–170 (1980).
{¶20} To warrant application of the rule, a plaintiff must adduce evidence
in support of two conclusions: (1) That the instrumentality causing
the injury was, at the time of the injury, or at the time of the creation
of the condition causing the injury, under the exclusive
management and control of the defendant; and (2) that the injury
occurred under such circumstances that in the ordinary course of
events it would not have occurred if ordinary care had been
observed. Hake, supra, 66-67.
{¶21} Appellant argues appellees failed to meet their burden of persuasion
because they did not offer sufficient, persuasive evidence of the customary manner in
which fence posts are installed and thus failed to established appellant breached this
standard. Moreover, appellant asserts the trial court erred in applying the doctrine of res
ipsa loquitur where appellees failed to establish: (1) appellant was under sole control of
the instrumentality causing the problem(s) and (2) the heaving of the posts would not
have occurred if ordinary care had been observed. We do not agree.
{¶22} Appellees established they operate a horse farm and the fence re-
installation was to keep their horses from running free. The agreement provided that the
re-installation would cost $3,800 and all posts re-installed will have bottom holes drilled
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and they would be set in 80 pounds of concrete. Ms. Francosky stated appellant only
used 40-pound bags of concrete on each post, a point which appellant did not rebut or
even dispute. After approximately one year, the posts began to pitch upward; and,
within two and one-half years of the installation, the posts were anywhere from 2” to 9”
out of the ground and some were leaning. Appellees noted, after recognizing the posts
required an additional re-installation, some of the posts could be removed from the
ground by hand.
{¶23} The foregoing demonstrates that the re-installation of the posts was under
the exclusive management and control of appellee. Although Ms. Francosky asserted
she questioned why appellant was using only 40 rather than 80 pounds of concrete, her
concerns were apparently ignored. Further, in light of the surrounding circumstances,
the court could reasonably conclude that, in the ordinary course of events, the posts
would not have heaved upward, began to list, and be subject to hand removal, had they
been installed with ordinary care. We therefore hold the court’s judgment was
consistent with the weight of the evidence and appellees adduced adequate facts for
the court to apply the doctrine of res ipsa loquitur.
{¶24} Appellant’s second and third assignments of error lack merit.
{¶25} Appellant’s fourth assignment of error provides:
{¶26} “The trial court erred in granting judgment for plaintiff-appellee as their
alleged claim is barred by the theory of laches.”
{¶27} Laches is defined as “‘an omission to assert a right for an unreasonable
and unexplained length of time, under circumstances prejudicial to the adverse
party.’” Connin v. Bailey, 15 Ohio St. 3d 34, 35 (1984) quoting Smith v. Smith, 168 Ohio
St. 447 (1959). “Delay in asserting a right does not of itself constitute laches, and in
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order to successfully invoke the equitable doctrine of laches it must be shown that the
person for whose benefit the doctrine will operate has been materially prejudiced by the
delay of the person asserting his claim.” Connin, supra. Similarly, prejudice in
a laches defense is generally not inferred merely from inconvenience or the passage of
time. See Smith, supra, at 457; State ex rel. Polo v. Cuyahoga County Bd. of
Elections (1995), 74 Ohio St. 3d 143, 145 (1995).
{¶28} Appellant does not assert, let alone explain or argue, that it was materially
prejudiced by appellees’ determination to wait approximately a year and a half from the
discovery of the fence posts’ upward heaving. And appellee had notice and was able to
defend against the allegations, but did not move the court to place testimony on record
in an effort to absolve itself from responsibility. Moreover, in an effort to remedy the
problem, appellees stated they attempted to contact appellant twice prior to filing suit.
Appellant, however, did not respond to appellees’ attempt to address the issue in an
extra-judicial manner. With these points in mind, we hold there is no basis to apply the
equitable doctrine of laches in this matter.
{¶29} Appellant’s final assignment of error provides:
{¶30} “Even assuming there exists some basis to grant plaintiff-appellees relief,
which defendant-appellant strongly urges there is not, the trial court erred in its
calculation of damages awarded to plaintiffs-appellees, as the court failed to consider
diminution in value/benefit to plaintiffs-appellees for its acknowledged nearly three years
of use.”
{¶31} A reviewing court generally will not reverse a trial court's decision
regarding its determination of damages absent an abuse of discretion. Williams v.
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Kondziela, 11th Dist. No. 2002-L-190, 2004-Ohio-2077, at ¶19, citing Roberts v. United
States Fid. & Guar. Co., 75 Ohio St. 3d 630, 634 (1996).
{¶32} Appellant contends the trial court abused its discretion in awarding
appellees $3,800 in damages because it failed to consider whether the entire fence re-
installment was “shoddy.” Further, appellant asserts the trial court’s damages award did
not consider that appellees enjoyed the benefit of the fence for nearly three years
before replacement. We do not agree.
{¶33} The record indicates appellees had to re-install the entirety of the fence-
work that appellant originally re-installed. Moreover, and regardless of whether
appellees were able to utilize the fence for some period of time, there is nothing to rebut
appellees’ claim that appellant’s acts or omissions necessitated the entire re-installation.
We therefore discern no error in the trial court’s order, essentially requiring appellant to
refund the money appellees paid for the original, faulty re-installation.
{¶34} Appellant’s final assignment of error lacks merit.
{¶35} For the reasons discussed in this opinion, the judgment of the Trumbull
County Central District Court is affirmed.
TIMOTHY P. CANNON, J.,
MATT LYNCH, J.,
concur.
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