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Jalm Marion, LLC. v. Fair Park Enterprises, Inc.

Court of Appeals of Ohio, Third District, Marion

June 19, 2017


         Appeal from Marion County Common Pleas Court Trial Court No. 15-CV-0115

          Brent M. Harraman for Appellant

          William V. Beach for Appellee


          WILLAMOWKSI, J.

         {¶1} Defendant-appellant Fair Park Enterprises, Inc. ("FPE") brings this appeal from the judgment of the Court of Common Pleas of Marion County finding in favor of plaintiff-appellee Jalm Marion, LLC ("JM"). FPE claims that the trial court's judgment is against the manifest weight of the evidence, the trial court did not interrogate witnesses in an impartial manner, and the trial court erred in its computation of damages. For the reasons set forth below, the judgment is affirmed in part and reversed in part.

         {¶2} In June of 2011, FPE and JM entered into an agreement for FPE to sell real estate in Marion County to JM. As part of the agreement, it was agreed that FPE would repair sections of the concrete parking lot. The amount of $25, 000 of the purchase price was placed into escrow until the repairs were completed. The repairs occurred in June and July of 2011. The repairs consisted of putting down a new four-inch stone foundation and then pouring four inches of concrete containing fiber mesh. This matched the consistency of the existing parking lot. Afterwards, the CEO of JM, Mike Needler ("Needler") inspected the repairs, was satisfied with the work, and released the escrowed funds to FPE on July 26, 2011. Ex. 10. A few months later, portions of the repaired surfaces began to deteriorate. In November 2011, Needler contacted the owner of FPE at that time, George Scantland III ("Scantland"). Needler sent Scantland images of the failing sections. Scantland and Needler agreed at that time that if Needler paid for the materials to repair the issues, Scantland would provide the equipment and labor. However, no repairs were made at that time. In late 2012, Needler again contacted Scantland about the repairs. Scantland informed him that he was no longer an owner of FPE and told Needler to contact the current owners. The current owners of FPE indicated that they felt they had no responsibility to make further repairs.

         {¶3} In the summer of 2014, JM hired Carlos Rhodes ("Rhodes") to make repairs to the parking lot. Some of the areas repaired by Rhodes were not part of the original repairs. Additionally, some of the original repairs did not need further repairs. Rhodes repaired the sections by laying a new four-inch stone foundation and adding six inches of concrete with rebar. On March 16, 2015, JM filed a complaint alleging that FPE did not complete the repairs in a workmanlike manner and sought damages in the amount of $18, 600, the amount that Rhodes charged for all the repairs. Doc. 1. An amended complaint alleging the same thing was filed on April 6, 2015. Doc. 4. FPE filed its amended answer on May 21, 2015 with additional amended answers being filed on March 2, 2016, and on June 21, 2016. Doc. 8, 16, 39

         {¶4} A bench trial was held on June 30, 2016. Doc. 42. At the trial, the parties made the following stipulations. First, photos need not be authenticated, but the dates must be established and all enhancements must be disclosed. Tr. 9-10. Second, Scantland's ownership interest in FPE ended on October 17, 2012. Tr. 10. Carol Farverick was the sole owner of FPE since that time. Tr. 10. Third, consideration for the original sale of the real estate was a mortgage and note from JM to FPE. Tr. 10. JM made regular monthly payments of $3, 324.05 from July 1, 2011 until July 1, 2013. Tr. 10. Fourth, the aerial photos of the property by the county auditor do not need to be authenticated and FPE's aerial photos of the property were taken in Spring 2013. Tr. 11. Fifth, JM determined what repairs had to be made originally. Tr. 11. JM also had the opportunity to observe the repairs being made and the materials being used. Tr. 11. Sixth, Scantland was not in Ohio at the time the repairs were made. Tr. 11. Seventh, the escrow agreement was drafted by JM. Tr. 11. Eighth, JM's grocery store was open during all times repairs were made. Tr. 11. Ninth, not all areas repaired by FPE in 2011 required repair by Rhodes in 2014. Tr. 11-12. Tenth, Rhodes was not present when the original repairs were made. Tr. 12. Rhodes also repaired areas of the parking lot that did not require repair in 2011. Tr. 12.

         {¶5} JM presented the testimony of two witnesses. The first witness was Needler. Needler testified that he bought the store in 2011 and required repairs to the parking lot as part of the agreement due to the lot being in "terrible shape" before the purchase. Tr. 20-24. Before closing, Needler and Scantland agreed to what repairs would be done. Tr. 25. Needler testified that he expected the repairs required by the escrow agreement to last longer than the unrepaired areas. Tr. 28. Once the repairs were done, Needler went to the store and inspected the repairs. Tr. 30. After agreeing that all required repairs were done, he released the money held in escrow. Tr. 29-30.

         {¶6} Two months after the initial repairs, some of the repaired areas started deteriorating. Tr. 30. Needler testified that it appeared that most of the repairs were cracking and sinking. Tr. 37. At that time, Needler called Scantland and complained that the repairs were "gone". Tr. 26. Scantland claimed that the repairs had deteriorated because JM had allowed people to drive over the concrete before it had properly cured. Tr. 31. Pictures of the damage were sent to Scantland on November 15, 2011. Tr. 33. The parties eventually reached an agreement where JM would pay for the materials and FPE would pay for the equipment and labor to repair the damages. Tr. 31, 37. Needler identified Ex. 54 as an email showing the agreement. Tr. 40. Since it was November, no repairs were done at that time. Tr. 41. No repairs were made in the Spring or Summer either.

         {¶7} In late 2012, Needler again contacted Scantland about the failed repairs. Tr. 44. At that time, Scantland informed him that he had sold his interest in the business to his sister, so Needler would need to "take it up with her." Tr. 44. Needler then contacted her, but she refused to make further repairs. Tr. 45. In Summer 2014, Needler tried one last time to get FPE to make the repairs, but they refused. Tr. 56. Needler then hired Rhodes to make the repairs and sued for damages. Tr. 45, 56. Rhodes charged JM $18, 600 for all of the repairs. Tr. 56. Rhodes added stone, rebar, and cement with fiber at a six-inch depth. Tr. 57. Needler admitted that some of the pictures showing the deterioration in the parking lot were not part of the original repairs, but were instead just additional normal wear and tear that had occurred over the years. Tr. 48-51. According to Needler only 5% of the repairs were areas not originally repaired. Tr. 59.

         {¶8} On cross-examination, Needler admitted that there was possibly "cut through" traffic in the parking lot. Tr. 66. Needler also admitted that the original parking lot did not contain rebar and that Rhodes had installed more concrete than was in the original, unrepaired lot. Tr. 67. Needler did not deny that any barricades erected by FPE at the time of the original repairs may have been moved by third parties. Tr. 75.

         {¶9} David Sass ("Sass") testified that he was the manager of the store during 2011-12. Tr. 95. Sass testified that Jason Gier ("Gier") was the maintenance person for FPE who cared for the property when they were renting it. Tr. 97. At that time, Gier had repaired sections of the parking lot. Tr. 96. When the original repairs were poured, Sass was instructed to let the concrete cure and to keep cars and people off of it. Tr. 98. A couple of times when he came to the store, he saw the caution tape broken and had to refasten it. Tr. 100. He also was told a couple of times that a car had gone through the tape and he saw evidence of it in a couple of spots. Tr. 100. Within a month or two of the repairs, there was crumbling in a few spots. Tr. 109. In spots, the concrete sank two to three inches. Tr. 111. Sass sent pictures of the failing repairs to Needler. Tr. 106. Sass testified that he was responsible for the store, but left the parking lot to the people doing the repairs. Tr. 98.

         {¶10} On cross-examination Sass admitted that when the old concrete was cut out, he did not recall seeing any rebar. Tr. 114. Sass also admitted that he did not tell Needler about the barriers being taken down and does not know if he said anything to Gier. Tr. 115-17. According to Sass, the barriers could have been intentionally moved by people and he did see tire impressions in the concrete in places. Tr. 121-22. The repairs were made in three different sections of the parking lot and looked good when completed. Tr. 123-26.

         {¶11} Following Sass' testimony, JM rested and FPE presented its case-in-chief. Gary Knapp ("Knapp") testified that he had been working with concrete for 34 years and that he had installed two sections of the concrete at the store. Tr. 135. Knapp indicated that he used a concrete mix rated at 4, 500 PSI, even though only 4, 000 PSI was required. Tr. 136. Knapp testified that what he ordered was standard quality for parking lot applications and that he had installed it with fiber mesh rather than rebar for reinforcement. Tr. 137-38. According to Knapp, the areas that had been repaired and were damaged were areas where vehicles were driving across it. Tr. 141. Knapp testified that people were actually driving through the concrete as it was being poured. Tr. 143. Knapp would put up barriers, but they would be missing when he would drive by later that night. Tr. 143. The barriers used included a dump truck, five gallon buckets with concrete and poles in them, orange traffic cones, and caution tape. Tr. 144. The barriers had not blown down, but appeared to be deliberately moved. Tr. 145. Knapp testified that when he arrived on the job site in the morning, he would find the barriers piled inside shopping carts. Tr. 145. Although Knapp did not see cars driving over the fresh concrete, other than the one instance, he knew they had done so based upon where they were parked. Tr. 159. He also testified that the gravel base beneath the concrete had been compacted because he observed Gier doing ...

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