Court of Appeals of Ohio, Fifth District, Licking
from the Licking County Court of Common Pleas, Case No. 2015
Plaintiff-Appellee JOEL H. MIRMAN The Mirman Law Firm, LLC R.
Defendant-Appellant SCOTT E. WRIGHT Wright & Noble, LLC
SANJAY K. BHATT
William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon.
Craig R. Baldwin, J.
Appellant Columbus Ohio Asphalt, LLC appeals the judgment
entered by the Licking County Court of Common Pleas awarding
damages in the amount of $46, 295.48 to Appellee Ramp Creek
Community, LLC for failure to perform work in a workmanlike
Appellant is an Ohio limited liability company in the
business of installing, patching, repairing and maintaining
asphalt products. Appellee is an Ohio limited liability
company which owns and operates a manufactured home park in
Heath, Licking County, Ohio, known as Ramp Creek Community.
In 2014, the roadways in the Ramp Creek Community were badly
in need of repair. Appellee did not have the funds to repave
the roadways with asphalt, so it decided to pave the roadways
by a process known as "tar and chip." Appellee
sought a road surface which would last until it could obtain
financing to pay for a longer-term solution to the paving
problem, which it expected to be able to do in January of
On May 16, 2014, the parties entered into a written contract
for repaving the roadways. The contract provided Appellant
would provide asphalt patch work, tar and chip, striping, and
speed bumps at a total cost of $46, 295.48. The contract
stated, "All material is guaranteed as stated herein.
All work to be completed in a workmanlike manner according to
standard practices." Appellee paid the contract price in
full to Appellant.
Almost immediately after the tar and chip process was
complete, Appellee began to experience problems with the
roadways. When people drove on the roads, clouds of dust were
created. Residents of Ramp Creek complained about dust from
the tar and chip process, and one resident whose child
suffered from asthma called the Health Department. Other
residents made a complaint to the Ohio Manufactured Homes
Commission. Residents complained of tar covering their cars.
An abundance of stone which failed to adhere to the surface
accumulated on the roads, in piles on the side of the roads,
and in the residents' yards. Potholes which had been
filled reopened almost immediately.
A few months after Appellant left the job, workers appeared
at Ramp Creek unannounced. When confronted by an employee,
they stated they were from Appellant and had been sent by the
co-owner of the company, Rick Grosse, to fix the roads
because the project had failed. Rick Grosse promised Appellee
to come correct the defects in the tar and chip paving job,
but failed to do so. Grosse admitted in a meeting with
personnel from Appellee he had never done a tar and chip job
before and Ramp Creek was a "guinea pig."
Because of the failure of the tar and chip process, Appellee
was unable to wait until they could refinance their property
loan without penalty, and was forced to incur a penalty of
$240, 000.00 to refinance their loan in order to have funding
to pave the road properly.
Appellee filed the instant action on July 23, 2015, alleging
Appellant "failed to provide either serviceable material
or failed to perform in a workmanlike manner." The case
proceeded to bench trial in the Licking County Common Pleas
Court. Following bench trial, the court found Appellant
failed to perform in a workmanlike manner according to
standard practices and failed to honor its guarantee. The
trial court entered judgment awarding Appellee damages in the
amount of $46, 295.48. It is from that July 25, 2017 judgment
of the court Appellant prosecutes this appeal, assigning as
"I. THE TRIAL COURT ERRED IN PRECLUDING APPELLANT'S
WITNESS, MICHAEL WURSTER, OWNER OF PHILLIPS OIL COMPANY,
LOCATED ON MCKINLEY AVENUE, IN COLUMBUS, OHIO, FROM
TESTIFYING AS AN EXPERT JUST BECAUSE HE WAS INADVERTENTLY
MISIDENTIFIED AS MICHAEL PHILLIPS, OWNER OF PHILLIPS OIL
COMPANY, LOCATED ON MCKINLEY AVENUE, IN COLUMBUS, OHIO.
"II. THE TRIAL COURT'S FINDING THAT APPELLANT'S
"TAR AND CHIP" WORK FOR APPELLEE WAS PERFORMED IN A
NEGLIGENT MANNER WAS AGAINST THE MANIFEST WEIGHT OF THE
"III. THE TRIAL COURT'S AWARD OF DAMAGES IN THE
AMOUNT OF $46, 295.48 WAS NOT SUPPORTED BY COMPETENT AND
In its first assignment of error, Appellant argues the court
erred in precluding its witness, Michael Wurster, from
testifying as an expert because Appellant had previously
identified the witness as Michael Phillips.
Appellee served Appellant discovery requests on January 23,
2017. Appellant responded on February 22, 2017, and
supplemented the responses on March 7, 2017. In
Appellant's Interrogatory Answer No. 1, Appellant
identified its witnesses for trial:
Appellant will call Rick Grosse, Adam Grosse, Mike Phillips
(Phillips Oil Companies, 1877 McKinley Ave., Columbus, OH).
Rick and Adam Grosse were both present on the job and both
are knowledgeable in the area of asphalt paving and other
road surfacing practices, as well as the· effect of
water drainage and infiltration in the roadway. Mike Phillips
is the owner of Phillips Oil Companies and his company
provided and applied the RS-2 petroleum product that was used
in the chip and tar project. Appellant is still determining
other possible witnesses and will supplement.
Appellee filed a Motion to Compel Discovery and for Sanctions
on March 10, 2017. Appellant filed a Memorandum in Opposition
on March 23, 2017. The Court held an oral hearing and by
judgment entry filed April 7, 2017, held as follows:
1. Defendant shall not be allowed to call any witness not
identified by it in responses to Plaintiffs discovery
requests on or before March 30, 2017.
2. Defendant shall not be allowed to refer to or offer into
evidence any documents not provided to Plaintiff in response
to Plaintiffs discovery requests on or before March 30, 2017.
3. The matter of attorney's fees is taken under
The court did not issue separate sanctions and did not award
During the bench trial, Appellant called Mike Wurster to
testify. The following exchange took place:
MR. WRIGHT: The Defense calls Mike Wurster.
THE COURT: Mike?
MR. WRIGHT: Mike Wurster.
THE COURT: Worster?
MR. WRIGHT: I have a Mike from Phillips Petroleum.
THE COURT: Okay.
MR. MIRMAN: What's his name?
MR. WRIGHT: I think it's Mike Wurster. I - I thought he
was Mike Phillips, I'm -
MR. MIRMAN: Well, Your Honor, the Defendant has said they
also call Mike Phillips. If they don't have a Mike
Phillips, I object to calling this witness.
MR. WRIGHT: Your Honor, he is -
THE COURT: Swear him in. Let's find out what his last
name is. Then we will address the motion. Tr. 189.
The witness was sworn in and disclosed his name was Michael
Wurster, not Michael Phillips. Appellant's counsel asked
about his experience with chip and seal products. Appellee
objected and the following colloquy occurred:
MR. MIRMAN: Your honor I -- I object. The -- as I say, in two
places Counsel listed and they also call Mike Phillips as an
alternate. When we checked to find out who these people are
and what they know, I would not be able to find a Mike
Wurster and find out whether I have anything that I want to
challenge him on because he wasn't identified. This Court
has ordered that if a person isn't named, he ...