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Ramp Creek Community, LLC v. Columbus Ohio Asphalt, LLC

Court of Appeals of Ohio, Fifth District, Licking

July 25, 2018

RAMP CREEK COMMUNITY, LLC Plaintiff-Appellee
v.
COLUMBUS OHIO ASPHALT, LLC Defendant-Appellant

          Appeal from the Licking County Court of Common Pleas, Case No. 2015 CV 00618

          For Plaintiff-Appellee JOEL H. MIRMAN The Mirman Law Firm, LLC R. DOUGLAS CALLANDER

          For Defendant-Appellant SCOTT E. WRIGHT Wright & Noble, LLC SANJAY K. BHATT

          Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.

          OPINION

          HOFFMAN, P.J.

         {¶1} 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 manner.

         STATEMENT OF FACTS

         {¶2} 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.

         {¶3} 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 2017.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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."

         {¶7} 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.

         {¶8} 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 error:

"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 EVIDENCE.
"III. THE TRIAL COURT'S AWARD OF DAMAGES IN THE AMOUNT OF $46, 295.48 WAS NOT SUPPORTED BY COMPETENT AND CREDIBLE EVIDENCE."

         I.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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 advisement.

         {¶12} The court did not issue separate sanctions and did not award attorney fees.

         {¶13} 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.

         {¶14} 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 ...

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