from Marion County Common Pleas Court Trial Court No.
M. Harraman for Appellant
William V. Beach for Appellee
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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 ...