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Cantleberry v. Holbrook

Court of Appeals of Ohio, Fifth District

June 25, 2013

MARY CANTLEBERRY, Plaintiff-Appellant
v.
RUSSELL HOLBROOK, Defendant-Appellee

Civil appeal from the Richland County Court of Common Pleas, Case No. 2009-CV-1763

For Plaintiff-Appellant: BRIAN CHISNELL UAW-GM Legal Services Plan

For Defendant-Appellee: ANDREW KVOCHICK Weldon, Huston & Keyser

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J.

OPINION

Gwin, P.J.

{¶1} Appellant Mary Cantleberry appeals the March 29, 2012 judgment entry of the Richland County Court of Common Pleas granting appellee's motion to amend pleadings and the July 18, 2012 judgment entry overruling her objections to the Magistrate's decision and adopting the Magistrate's Decision of July 13, 2011.

Facts & Procedural History

{¶2} Appellant owns the residence at 892 Expressview Drive in Mansfield and the Lincoln Inn, a bar in Mansfield. Appellee, Russell Holbrook, is a customer of appellant's bar and is employed as a union millwright who primarily works in steel mills and auto plants. Appellant approached appellee at the Lincoln Inn about hiring him to tear off the existing roof and install a new roof on her residence. The parties agreed appellee would tear off two layers of shingles and install a new roof for the total price of $6, 000, including materials and labor. Appellant had the funds to pay appellee because she received $8, 000 from her insurance company after making an insurance claim for storm damage to the roof. Appellant purchased the roofing materials for approximately $3, 200 and agreed to pay appellee the balance of the $6, 000 for his labor. Appellee finished the roof in July of 2009. Appellant paid appellee $2, 000, but failed to pay him the $800 balance because appellant stated the job was not completed properly. After appellee installed the roof, water began running behind the gutters and down the side of the house into the foundation.

{¶3} Appellant filed a complaint on December 4, 2009, claiming she was entitled to damages from appellee for the improper installation of a metal roof on her home as well as damage to a rubber roof over a porch. She asserted claims for breach of contract, breach of express warranty, breach of implied warranty, negligence, violation of the Ohio Home Solicitation Sales Act, and violation of the Ohio Consumer Sales Practices Act. Appellee filed an answer to the complaint on December 12, 2009, asserting the affirmative defenses of statute of limitations, laches, estoppel, and the refusal of a reasonable opportunity to cure. Appellee reserved the right to assert further affirmative defenses after reasonable discovery was completed.

{¶4} Prior to the commencement of the trial, the parties stipulated to the following facts: appellant and appellee entered into an oral contract in May of 2009 for the removal of a shingle roof from appellant's house and shed and the installation of a metal roof on both structures; appellant paid $3, 200 for the materials and agreed to pay appellee $2, 800 for his labor; appellee negligently installed the metal roof; and appellee made one attempt to fix the roof, but did not fix the roof. Appellant dismissed her claims for violations of the Ohio Home Solicitations Sales Act and Ohio Consumer Sales Practices Act. Accordingly, the sole issue at trial was the measure of appellant's damages for the negligent installation of the roof.

{¶5} A bench trial began on December 3, 2010, and Al Gusan, a roofing expert, stated the roof was not properly installed and testified about the cost to replace the roof. The trial continued on May 13, 2011. Troy Cramer, an expert in environmental management, and Joe Zara, a general contractor, testified about the cost for removing and installing a new roof and mold remediation. Appellant testified as to the damage caused from the faulty roof. Appellee argued the roof was already in poor condition and that a minimal repair would have remedied the situation. Appellee testified after his discussions with the roof manufacturer, he would be able to fix the roof by unfastening the roof materials, sliding them down slightly, and reattaching them.

{¶6} Under direct examination as to his conversation with appellant prior to agreeing to tear off the old roof and install the new roof, appellee testified as follows:

"A: She [appellant] said that some of her shingles had blown off, her insurance company had come out, and they would only pay to replace the ...

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