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Koller v. Zellman

Court of Appeals of Ohio, Eleventh District, Geauga

June 25, 2018

RAYMOND G. KOLLER, JR., Plaintiff-Appellant,
v.
JASON ZELLMAN, et al., Defendants-Appellees.

          Civil Appeal from the Chardon Municipal Court, Case No. 2014 CVF 00885. Judgment: Affirmed.

          Robert E. Rosenberg and Michael D. Dailey, Rosenberg & Associates, 533 East Main Street, Ravenna, OH 44266 (For Plaintiff-Appellant).

          Dennis J. Ibold, Ibold & O'Brien, 401 South Street, Chardon, OH 44024 (For Defendants-Appellees).

          OPINION

          DIANE V. GRENDELL, J.

         {¶1} Plaintiff-appellant, Raymond G. Koller, Jr., appeals from the judgment of the Chardon Municipal Court, ruling in favor of defendants-appellees, Jason Zellman and Patriot Security Systems, Inc., on Koller's claims relating to breach of contract and in favor of Zellman on his counterclaim. The issues to be determined in this case are whether a magistrate can consider a view of the property that he attended while excluding any comments or testimony made during that view and whether a court errs in awarding damages to repair contracting and painting work when there is conflicting testimony regarding the nature and quality of the work performed and the repair estimates exceed the amount of the original contract. For the following reasons, we affirm the decision of the lower court.

         {¶2} On November 19, 2014, Koller filed a Complaint in the Chardon Municipal Court against Zellman and Patriot, of which Zellman is the CEO, alleging failure to pay for work performed by Koller at Zellman's residence. The Complaint raised counts for Breach of Contract, Unjust Enrichment, and Quantum Meruit and requested compensatory damages in the amount of $6, 719.

         {¶3} Zellman and Patriot filed separate Answers on December 15, 2014.

         {¶4} On January 26, 2015, Zellman filed a Counterclaim, in which he alleged that Koller negligently improved his property, necessitating repair work. Koller filed an Answer to the Counterclaim on February 17, 2015.

         {¶5} Zellman filed a Motion for Court View of Property on July 13, 2015. A view of the property with the attorneys, parties, and magistrate, as the trier of fact, was conducted.

         {¶6} Following a trial to the magistrate on August 20, 2015, the court issued an order finding that, given missing trial recordings, the matter would be set for a new trial.

         {¶7} A second trial to the magistrate was held on July 7 and August 25, 2016. The following pertinent testimony and evidence were presented:

         {¶8} At the start of the trial, Koller moved to strike observations from the magistrate's view of the residence, arguing that Zellman was permitted to point to flaws while Koller was not given an opportunity to respond. The magistrate reserved ruling on this issue.

         {¶9} Zellman testified regarding the painting/construction work performed by Koller, at his residence, described as approximately 9, 000 square feet in size. Koller was a friend who performed satisfactory work for Zellman in the past. The job was conducted in two phases. Phase I work, which Koller was hired to do around February 2014, involved patching and painting several rooms, as well as working on a "salon" area. Phase II was to include additional painting of rooms and a main staircase, as well as the installation of doors. Following the Phase I work, Zellman expressed concern that some patched areas were not painted and "held back a certain number of dollars," the amount of which he did not recall. He testified that Koller ultimately refused to correct the items with which Zellman was dissatisfied, although given the opportunity to do so.

         {¶10} Zellman testified regarding concerns with the work completed in both phases, which resulted in his non-payment for part of Phase I and all of Phase II. Issues described included: patchwork and cracks left unpainted; unmatched touchup paint in various rooms; improperly repaired holes; paint in several areas running, dripping, and on the trim; improperly installed doors; failure to complete a door frame and faucet repair; and paint splattered on the bathroom floor. Regarding ...


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