Bova v. B & J Pools, Inc.

[Cite as Bova v. B & J Pools, Inc., 2023-Ohio-1680.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
JOSEPH BOVA ET AL,
Plaintiffs-Appellees,
v.
B & J POOLS, INC., ET AL,
Defendants-Appellants.
OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0033
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2020 CV 726
BEFORE:
Mark A. Hanni, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed in part. Reversed in part and Remanded.
Atty. Christopher A. Maruca, 201 East Commerce Street, Suite 316, Youngstown, Ohio
44503, for Plaintiffs-Appellees
Atty. William Kissinger, 7631 South Avenue, Suite F, Youngstown, Ohio 44512, for
Defendant-Appellant.
Dated: May 16, 2023
–2–
HANNI, J.
{¶1} Defendant-Appellant, B & J Pools, Inc. (B & J), appeals from a Mahoning
County Common Pleas Court judgment finding that it was liable to Plaintiffs-Appellees,
Joseph Bova and Sherri Bova, for breach of contract and unjust enrichment following a
bench trial.
{¶2} The Bovas were interested in installing an in-ground pool at their home.
They met with defendant, James Shoemaker, one of the owners of B & J, to discuss plans
for the pool. On April 3, 2019, the Bovas entered into a contract with B & J for the
installation of a swimming pool at their residence (the contract). The total for the project
was $92,744.52 and was payable in four installments: (1) $45,000 due upon signing of
the contract; (2) $25,000 due upon delivery of the “pool package”; (3) $20,000 due upon
concrete ready for paint; and (4) $2,744.52 due upon completion. The term “pool
package” was not defined in the contract. The contract did list various parts of the pool
under the heading, “The Pool.” The Bovas paid the initial $45,000 upon signing the
contract.
{¶3} The Bovas hired Hunter Electrical Services to install all electrical systems
required for the pool.
{¶4} B & J began installation of the pool on May 2, 2019. Some problems arose
with the side panels being too high and the lower part of the pool not being properly
leveled. Once these issues were corrected, B & J poured the concrete pool floor.
{¶5} The Bovas paid the second installment of $25,000 on August 20, 2019.
However, not all of the pool components had yet been delivered including pumps, filters,
and heaters.
{¶6} Cracks then developed between the side panels and another crack
developed on the pool floor. B & J undertook to remedy these issues.
{¶7} The relationship between the parties deteriorated and ultimately ended in
November 2019. The Bovas did not make the final two installment payments. The pool
was never “winterized” and, as a result, further damage occurred.
Case No. 2022 MA 0033
–3–
{¶8} The Bovas then hired BC Contracting to purchase the remaining necessary
parts and conduct additional labor to finish the pool. The Bovas paid $58,975.07 to BC
Contracting for its work.
{¶9} The Bovas filed a complaint on April 6, 2020, against B & J and Shoemaker.
They brought claims for breach of contract and unjust enrichment and sought to pierce
the corporate veil to hold Shoemaker personally liable. B & J and Shoemaker filed an
answer and counterclaim also raising claims for breach of contract and unjust enrichment.
{¶10} The matter proceeded to a bench trial before a magistrate on March 2,
2022. The magistrate listened to testimony from Joseph Bova, the electrician, the
contractor hired to finish the pool, and Shoemaker. The magistrate noted that because
Shoemaker drafted the contract, any ambiguities or inconsistencies were to be construed
against him and B & J. The magistrate also found that Shoemaker’s testimony was not
credible. The magistrate found that B & J failed to construct the pool in a competent and
workmanlike manner. However, he also found that the Bovas did not sustain their burden
to pierce the corporate veil. Consequently, the magistrate found in favor of the Bovas on
their claims for breach of contract and unjust enrichment. He found in favor of Shoemaker
on the Bovas’ claim to pierce the corporate veil. The magistrate also ruled in favor of the
Bovas on Shoemaker’s and B & J’s counterclaims. The magistrate awarded the Bovas a
judgment of $100,000.
{¶11} The trial court entered judgment consistent with the magistrate’s decision.
B & J filed a timely notice of appeal on April 7, 2022. It now raises two assignments of
error for our review.
{¶12} B & J’s first assignment of error states:
THE TRIAL COURT ERRED WHEN IT RULED THAT DEFENDANT B & J
POOLS INC. WAS GUILTY [sic] OF BREACH OF CONTRACT AND
UNJUST ENRICHMENT.
{¶13} B & J argues that a party cannot maintain an unjust enrichment action if
there is an express contract. Thus, it asserts this court must reverse the judgment on the
Bovas’ unjust enrichment claim since the trial court determined that B & J breached the
contract.
Case No. 2022 MA 0033
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{¶14} In response, the Bovas assert they can maintain an unjust enrichment claim
in addition to a breach of contract claim where the contract does not cover a particular
dispute between the parties.
{¶15} In order to establish a breach of contract claim, a plaintiff must establish the
following elements: “the existence of a contract, performance by the plaintiff, breach by
the defendant, and damage or loss to the plaintiff.” Doner v. Snapp, 98 Ohio App.3d 597,
600, 649 N.E.2d 42 (2d Dist.1994). To prove an unjust enrichment claim, the plaintiff
must prove: (1) he conferred a benefit on the defendant; (2) the defendant knew of the
benefit; and (3) the defendant retained the benefit under circumstances where it would
be unjust for him to retain that benefit without payment. Apostolos Group, Inc. v.
Josephson, 9th Dist. Summit No. 20733, 2002-Ohio-753.
{¶16} Generally, the doctrine of unjust enrichment is “inapplicable if an express
agreement existed concerning the services for which compensation is sought; [and] the
parameters of the agreement limit the parties' recovery, in the absence of bad faith, fraud
or illegality.” Pawlus v. Bartrug, 109 Ohio App.3d 796, 800, 673 N.E.2d 188 (9th
Dist.1996), citing Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51, 55,
544 N.E.2d 920 (1989). However, when evidence is presented at trial that a party
breached the contract and was unjustly enriched by separate conduct, both claims may
be viable. Zeck v. Sokol, 9th Dist. Medina No. 07CA0030-M, 2008-Ohio-727, ¶ 14-16.
{¶17} In this case, evidence was presented at trial that B & J breached the
contract. But there was no evidence presented that B & J was unjustly enriched by
separate conduct. Likewise, there was no evidence of bad faith, fraud, or illegality.
{¶18} The contract provided that B & J would install a swimming pool at the Bovas’
residence for the sum of $92,744.52. (Plaintiffs’ Ex. B). The contract then provided:
PAYMENT UPON SIGNING THE CONTRACT $ 45,000.00
PAYMENT UPON DELIVERY OF POOL PACKAGE $ 25,000.00
PAYMENT UPON CONCRETE READY FOR PAINT $ 20,000.00
BALANCE UPON COMPLETION $ 2,744.52
Case No. 2022 MA 0033
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B & J Pools Inc. states that all material used in completing the pool
installation contracted for herein will be high quality and that all work on the
pool will be done in competent and workmanlike manner; that if any
substantial defect occurs in the workmanship of the pool it will be remedied
without cost to the owner, provided that written notice thereof is given the
company within one (1) year after completion of such work. Walks or docks
are not part of the pool. No claim may be filed under this warranty and no
obligations to make adjustment there under will accrue until the full
indebtedness of the owner to B & J Pools Inc. is paid.
(Plaintiffs’ Ex. B)
{¶19} The contract does not define the term “pool package.” But page two of the
contract contains the heading “THE POOL.” Listed under this heading are all of the
components of the pool, including such items as the 16 x 32 double pool evolution, auto
cover, drain, deck jets, skimmers, heater, plumbing, and labor. It then lists five items that
are not included.
{¶20} Shoemaker testified that B & J drafted the contract. (Tr. 183, 186). He
stated that the term “pool package” only included the panels, the anchors, the stanchions,
the steps, and the brackets. (Tr. 187, 203-204). Joseph Bova testified that under his
reading of the contract, the “pool package” included all of the items listed under the
heading “THE POOL” in the contract. (Tr. 23-29). Bova testified that the pool walls and
brackets were delivered to his house but many of the other items listed were never
delivered. (Tr. 25-29).
{¶21} Despite his belief that the “pool package” had not been delivered, Bova
testified that he paid B & J the second installment payment. (Tr. 44-46). Bova testified
that he paid this second installment to B & J on August 20, 2019, despite the fact that
many items of what he believed to be the “pool package” had not yet been delivered. (Tr.
46). Bova stated that Shoemaker asked him for the second installment because
Shoemaker needed the money since he was running behind on other jobs. (Tr. 44).
{¶22} Bova testified that sometime after the epoxy was sprayed on the pool walls
on September 25, 2019, cracks appeared in the pool walls. (Tr. 51, 55-59: Plaintiff’s Ex.
K). On October 16, 2019, the company that was subcontracted to spray on the epoxy
Case No. 2022 MA 0033
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came back to attempt to fix the cracks. (Tr. 60). However, the company was unable to
remedy the cracks completely. (Tr. 60-61). Bova also testified that because B & J did
not prepare the pool walls properly, the spray epoxy did not adhere. (Tr. 64). Next, on
November 18, 2019, B & J painted the pool floor. (Tr. 64). But the paint did not adhere.
(Tr. 66). The Bovas had to pay another company to re-paint the pool. (Tr. 66). This was
the last time B & J was at the Bova house. (Tr. 70-71). Bova testified that Shoemaker
told him the pool then needed to be winterized and he would take care of it. (Tr. 71-72).
However, B & J did not winterize the pool, which led to cracks in the pool floor. (Tr. 72;
Plaintiff’s Exs. O, P). Bova further testified there is currently a leak somewhere in the
pool because it is continuously losing water. (Tr. 77).
{¶23} Bova testified that he contacted BC Contracting to finish/repair the pool.
Bova stated that he had to purchase many items that B & J was supposed to provide
under the contract but never did supply. (Tr. 81). These items included sand filters,
heaters, and pumps. (Tr. 81). The supplies totaled $32,640.88. (Tr. 82, Plaintiff’s Exs.
U, V, W, X). In addition, Bova paid BC Contracting to pressure test the pool, repair
plumbing and leaks, and fix fittings. (Tr. 84). In all, the Bovas paid $58,000 to BC
Contracting to finish the pool and fix issues B & J had created. (Tr. 84-86).
{¶24} Bova testified that he paid B & J $70,000 in total. (Tr. 87). He
acknowledged that he was not seeking reimbursement for that entire amount. (Tr. 87).
He stated that he kept the pool walls, which were approximately $20,000 to $25,000, and
the PVC pipes. (Tr. 87). And Bova stated that there was labor involved in installing the
walls. (Tr. 87). In total, Bova testified that B & J was entitled to keep approximately
$30,000 of the $70,000 paid. (Tr. 88).
{¶25} The Bovas hired electrician, Jonathan Hunter, to perform the electrical work
required for the pool. Hunter testified that the wiring, heaters, pool cover, and control
panels were not delivered to the Bova residence until mid-2020. (Tr. 125-126). Thus, he
corroborated Joseph Bova’s testimony that B & J never provided these items.
{¶26} Jeff Collingwood is in the business of heating, plumbing, and swimming pool
repair. He testified the Bovas contacted him in 2020, to look at their pool and assess
what they should do. (Tr. 147-148). Collingwood testified the pool was unfinished, the
epoxy on the pool floor had to be replaced due to cracks, many pool components had to
Case No. 2022 MA 0033
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be ordered, the laminars had to be repaired, the pool walls had to be resealed and
sprayed, and the plumbing lines had to be tested to address leaks. (Tr. 148-154).
{¶27} Shoemaker testified on behalf of B & J. He testified that B & J was three
days away from completing the Bovas’ pool when the Bovas refused to pay the third
installment payment. (Tr. 193-194, 197). Shoemaker stated B & J had already painted
the pool, which triggered the third installment. (Tr. 194). On cross-examination, however,
Shoemaker stated that he had not yet ordered the pumps, had not yet ordered the
heaters, the auto-cover was not yet on site, the filter was not on site, the chlorinator was
not on site, the lighting was not on site, the handrails were not on site, in addition to many
other components. (Tr. 216-225).
{¶28} The above supports the Bovas’ breach of contract claim. There was clearly
a contract. The Bovas paid the first two installments totaling $70,000. B & J never
ordered/delivered all of the pool components and it ceased working on the pool before it
was completed. Additionally, the pool had issues with cracks, paint, and leaks. The
Bovas had to pay $58,000 to another company to finish the job and repair the pool.
{¶29} Nonetheless, the evidence does not support an independent claim for unjust
enrichment. “‘[U]njust enrichment operates in the absence of an express contract or a
contract implied in fact to prevent a party from retaining money or benefits that in justice
and equity belong to another.’ Gallo v. Westfield Natl. Ins. Co., 8th Dist. Cuyahoga No.
91893, 2009-Ohio-1094, 2009 WL 625522, ¶ 19. * * * An unjust enrichment claim cannot
stand when the parties have an otherwise enforceable agreement. In such situations, the
appropriate claim is for a breach of contract.” Carbone v. Nueva Construction Group,
L.L.C., 8th Dist. Cuyahoga Nos. 103942 and 104147, 2017-Ohio-382, ¶ 18. There is no
evidence in this case that B & J retained money or another benefit other than the money
the Bovas paid under the contract. Likewise, there is no evidence of bad faith, fraud, or
some other illegality. Thus, the trial court erred in finding in favor of the Bovas on their
unjust enrichment claim.
{¶30} The trial court awarded the Bovas a judgment of $100,000 on the breach of
contract claim and the unjust enrichment claim combined. It did not separate the
damages award by claim. Since the court erred in finding in favor of the Bovas on the
unjust enrichment claim, that part of the award must be vacated.
Case No. 2022 MA 0033
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{¶31} The general measure of damages in a contract action is the amount
necessary to place the nonbreaching party in the position he or she would have been in
had the breaching party fully performed under the contract. F. Enterprises, Inc. v.
Kentucky Fried Chicken Corp., 47 Ohio St.2d 154, 159, 351 N.E.2d 121 (1976). “[W]here
a contractor breaches a contract and a portion of the contract is left unpaid, the proper
measure of damages is the cost for the owner having to complete the work minus the part
of the contract left unpaid.” Green Maple Enterprises, LLC v. Forrester, 7th Dist. Jefferson
No. 20 JE 0020, 2021-Ohio-4640, ¶ 93, citing Lynn v. Schulte, 11th Dist. Ashtabula Nos.
2015-A-0017, 2015-A-0026, 2015-Ohio-5527, ¶ 28.
{¶32} In this case, the total cost of the contract was $92,744.52. Of that amount,
the Bovas paid B & J $70,000, leaving a remaining balance on the contract of $22,744.52.
The Bovas also paid $58,000 to BC Contracting to finish the job and repair the pool.
Subtracting the part of the contract left unpaid ($22,744.52) from the cost for the Bovas
having to complete the work ($58,000) equates to a loss to the Bovas in the amount of
$35,255.48. Thus, the proper amount of damages on the breach of contract is
$35,255.48.
{¶33} Accordingly, B & J’s first assignment of error has merit and is sustained.
{¶34} B & J’s second assignment of error states:
THE TRIAL COURT ERRED WHEN IT FAILED TO RULE THAT
PLAINTIFF, JOSEPH BOVA COMMITTED AN ANTICIPATORY BREACH
AND WAS LIABLE TO DEFENDANT, B & J POOLS INC. FOR THE
UNPAID BALANCE OF THE WRITTEN CONTRACT.
{¶35} Here, B & J contends the trial court should have found that the Bovas
committed an anticipatory breach of contract. B & J asserts it was undisputed that the
Bovas refused to pay the third draw. It points to Joseph Bova’s testimony that he refused
to pay the third draw even though Shoemaker had told Bova he needed the third draw to
complete the work. (Tr. 95). It notes that Bova further testified the reason he did not pay
the third draw was because, in his opinion, Shoemaker had been overpaid. (Tr. 95).
Given this testimony, B & J argues, it was not liable for breach of contract and was justified
Case No. 2022 MA 0033
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for stopping work on the pool. B & J argues Joseph Bova’s opinions regarding the
fairness of the contract or the quality of the work already completed were irrelevant.
{¶36} 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 (8th Dist.), citing App.R.
12(C), Seasons Coal Co., Inc. 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 Const. 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 finding of facts. Gerijo, 70 Ohio St.3d at 226, 638 N.E.2d 533(citing Seasons Coal Co., supra). If the evidence is susceptible to more than one
interpretation, then we must construe it consistently with the lower court's judgment. Id.
In addition, the weight to be given the evidence and the credibility of the witnesses are
primarily for the trier of the facts. Kalain v. Smith, 25 Ohio St.3d 157, 162, 495 N.E.2d 572(1986).
{¶37} “An anticipatory breach of contract by a promisor is a repudiation of the
promisor's contractual duty before the time fixed for performance has arrived.” McDonald
v. Bedford Datsun, 59 Ohio App.3d 38, 40, 570 N.E.2d 299 (8th Dist.1989). The promisor
must express the repudiation in clear and unequivocal terms. Id.{¶38} When a party to a contract repudiates the contract before the time that their
performance is due, this constitutes an “anticipatory breach” or an “anticipatory
repudiation” and the injured party has an action for breach of the contract. Northway
McGuffey College v. Brienza, 7th Dist. Mahoning No. 07 MA 145, 2008-Ohio-6207, ¶ 34,
citing Daniel E. Terreri & Sons, Inc. v. Mahoning Cty. Bd. of Commrs., 152 Ohio App.3d
95, 2003-Ohio-1227, 786 N.E.2d 921, ¶ 44. The non-breaching party can also rely on an
anticipatory repudiation as a defense against a later breach-of-contract claim. Id.{¶39} The contract in this case provided that the second installment payment was
due upon “delivery of pool package.” The third installment payment was due upon
Case No. 2022 MA 0033
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“concrete ready for paint.” There was conflicting evidence regarding whether these
triggering events occurred.
{¶40} The contract does not define the term “pool package.” But the second page
of the contract, titled “THE POOL,” lists the components of the pool. Joseph Bova testified
that under his reading of the contract, the “pool package” included all of the items listed
under the heading “THE POOL.” (Tr. 23-29). Shoemaker, on the other hand, testified
that the term “pool package” only included the panels, the anchors, the stanchions, the
steps, and the brackets. (Tr. 187, 203-204). Bova testified that the pool walls and
brackets were delivered to his house but many of the other items listed were never
delivered. (Tr. 25-29). Shoemaker agreed that many of the pool components had not
been delivered to the Bovas’ house. (Tr. 216-225).
{¶41} The term “pool package” is ambiguous. When a contractual provision is
ambiguous, that provision is to be strictly construed against the drafter. Columbiana Cty.
Bd. of Commrs. v. Nationwide Ins. Co., 130 Ohio App.3d 8, 15, 719 N.E.2d 561 (7th
Dist.1998), citing McKay Machine Co. v. Rodman, 11 Ohio St.2d 77, 80, 228 N.E.2d 304(1967). Shoemaker testified that B & J drafted the contract. (Tr. 183, 186). Thus, the
ambiguous term “pool package” is construed against B & J.
{¶42} Given this interpretation, the triggering event for the second installment
payment never occurred. While some components of the “pool package” were delivered,
the entirety of the “pool package” was never delivered to the Bovas’ residence. Joseph
Bova testified that despite the fact that the “pool package” had not been delivered, he
gave B & J the second installment payment. (Tr. 44-46). Bova stated Shoemaker asked
him for the second installment because Shoemaker needed the money. (Tr. 44). It stands
to reason that if the second installment payment never became due and owing, the third
installment payment would likewise not be due.
{¶43} Moreover, the triggering condition for the third installment payment was
“concrete ready for paint.” On November 18, 2019, B & J painted the pool floor. (Tr. 64).
But the paint did not adhere. (Tr. 66). The Bovas had to pay another company to re-
paint the pool. (Tr. 66). Thus, it is questionable whether the concrete was “ready to paint”
when B & J painted it.
Case No. 2022 MA 0033
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{¶44} Because the evidence demonstrated that the triggering events did not occur
to require the Bovas to pay the second, and possibly the third, installment payments, the
Bovas cannot be said to have anticipatorily breached or repudiated the contract.
{¶45} Accordingly, B & J’s second assignment of error is without merit and is
overruled.
{¶46} For the reasons stated above, the trial court’s judgment is reversed as to
the unjust enrichment claim. The judgment is affirmed as to the breach of contract claim.
The matter is remanded with instructions to the trial court to modify the damages award
in favor of the Bovas to $35,255.48, stemming from the breach of contract claim.
Waite, J., concurs.
D’Apolito, P.J., concurs.
Case No. 2022 MA 0033
[Cite as Bova v. B & J Pools, Inc., 2023-Ohio-1680.]
For the reasons stated in the Opinion rendered herein, B & J’s first assignment of
error is sustained. B & J’s second assignment of error is overruled. It is the final judgment
and order of this Court that the judgment of the Court of Common Pleas of Mahoning
County, Ohio is affirmed as to the breach of contract claim. It is reversed as to the unjust
enrichment claim. Further, the matter is remanded with instructions to the trial court to
modify the damages award in favor of the Bovas to $35,255.48, stemming from the breach
of contract claim. Costs to be taxed against the Appellees.
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.