Court of Appeals of Ohio, Eleventh District, Geauga
RAYMOND G. KOLLER, JR., Plaintiff-Appellant,
JASON ZELLMAN, et al., Defendants-Appellees.
Appeal from the Chardon Municipal Court, Case No. 2014 CVF
00885. Judgment: Affirmed.
E. Rosenberg and Michael D. Dailey, Rosenberg &
Associates, 533 East Main Street, Ravenna, OH 44266 (For
J. Ibold, Ibold & O'Brien, 401 South Street, Chardon,
OH 44024 (For Defendants-Appellees).
V. GRENDELL, J.
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.
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
Zellman and Patriot filed separate Answers on December 15,
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.
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.
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.
A second trial to the magistrate was held on July 7 and
August 25, 2016. The following pertinent testimony and
evidence were presented:
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.
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.
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