7471 Tyler Blvd., LLC v. Titan Asphalt & Paving, Inc.
| Decision Date | 16 November 2020 |
| Docket Number | NO. 2019-L-098,2019-L-098 |
| Citation | 2020 Ohio 5304,162 N.E.3d 851 |
| Parties | 7471 TYLER BLVD., LLC, Plaintiff-Appellant, v. TITAN ASPHALT AND PAVING, INC., Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Jeffrey W. Ruple, Cardenas Ruple & Kurt LLC, 4770 Beidler Road, Willoughby, Ohio 44094 (For Plaintiff-Appellant).
Michael C. Lucas, Wiles Richards, 37265 Euclid Avenue, Willoughby, Ohio 44094 (For Defendant-Appellee).
{¶1} Appellant, 7471 Tyler Blvd., LLC ("7471 Tyler"), appeals the judgments of the Lake County Court of Common Pleas denying its (1) request to submit proposed interrogatories to the jury, (2) motion for judgment notwithstanding the verdict ("JNOV"), (3) motion for summary judgment, and (4) motion for a new trial, following a civil jury trial involving a contract in which 7471 Tyler agreed to pay appellee, Titan Asphalt and Paving, Inc. ("Titan"), for the performance of certain asphalt and concrete services at 7471 Tyler's commercial property in Mentor, Ohio.
{¶2} 7471 Tyler argues as follows:
{¶3} (1) The trial court had a mandatory duty to submit 7471 Tyler's proposed interrogatories to the jury pursuant to Civ.R. 49(B) based on precedent from the Supreme Court of Ohio.
{¶4} (2) The trial court erred in denying 7471 Tyler's pretrial motion for summary judgment on its breach of contract claims pursuant to Civ.R. 56(C) because there were no issues of material fact for trial.
{¶5} (3) The trial court erred in denying 7471 Tyler's motion for JNOV pursuant to Civ.R. 50(B) because it presented overwhelming evidence demonstrating Titan's breach of contract.
{¶6} (4) The trial court erred in denying 7471 Tyler's motion for a new trial pursuant to Civ.R. 59(A)(6) because the evidence was substantially one-sided in its favor.
{¶7} After a careful review of the record and pertinent law we find as follows:
{¶8} (1) The trial court did not abuse its discretion in rejecting 7471 Tyler's proposed breach of contract interrogatories because they did not test the jury's verdict and implied an incorrect statement of the law.
{¶9} (2) Based on the jury's general verdict finding in favor of 7471 Tyler on its breach of contract claim, we presume the jury found that 7471 Tyler had proven, by the preponderance of the evidence, each of the asserted breaches and awarded some amount of damages for each breach.
{¶10} (3) Even if we construed the jury's verdict as finding in favor of Titan, we find as follows:
{¶11} (a) Any error on the part of the trial court in denying 7471 Tyler's motion for summary judgment is moot or harmless in light of the full and complete development of the facts at trial.
{¶12} (b) The trial court did not err in denying 7471 Tyler's motion for JNOV pursuant to Civ.R. 50(B) because, construing the evidence in a light most favorable to Titan, a reasonable trier of fact could conclude that Titan's failure to install four inches of #304 limestone was not a material breach.
{¶13} (c) The trial court did not abuse its discretion is denying 7471 Tyler's motion for a new trial pursuant to Civ.R. 59(A)(6) because the evidence presented at trial provided the jury with competent, credible evidence from which to conclude that Titan's failure to install four inches of new #304 limestone did not constitute a material breach, and the assessment of damages is within the province of the jury.
{¶14} Therefore, we affirm the judgments of the Lake County Court of Common Pleas.
{¶15} 7471 Tyler owns a multi-tenant commercial building located at 7471 Tyler Blvd. in Mentor, Ohio. Scott Andrews ("Mr. Andrews") is 7471 Tyler's managing member, and he has been a real estate developer for over forty years. He purchased the Tyler Blvd. property in December 2016, at which time its parking lot was in very poor condition.
{¶16} Titan is a residential and commercial asphalt and concrete paving company located in Mentor, Ohio. Peter Phillips ("Mr. Phillips") is the sole shareholder of Titan, and he started the company in 1999. Although some of Titan's service proposals have listed the term "engineer" after Mr. Phillips' name, he is not an engineer, and his formal education consists of a high school diploma.
{¶17} The parties had an existing business relationship in which Titan previously performed paving and asphalt services for 7471 Tyler and for USA Management, which is 7471 Tyler's property manager.
{¶18} In April 2017, Mr. Andrews and Mr. Phillips met at the site to discuss potential asphalt and concrete services. During the meeting, Mr. Phillips took notes on the scope of work that the parties discussed. Mr. Andrews did not provide Mr. Phillips with any blueprints, site plans, or geotechnical drawings relating to the property. Mr. Phillips measured the square footage for the proposed asphalt replacement using a measuring wheel.
{¶19} Following the meeting, Titan's office manager, Katherine Hawkins ("Ms. Hawkins"), prepared a service proposal based on Mr. Phillips' notes, which she emailed to USA Management. 7471 Tyler converted the proposal into a purchase order and sent it to Titan. The parties signed the purchase order on April 11, 2017, and it is the governing contract in this case.
{¶20} The purchase order required Titan to perform several services, including the following: (1) removal of four existing drains and replacement with four 2-2B catch basins for the price of $6,064; (2) asphalt replacement of the parking lot located on the east side of the building for the price of $78,348, including excavation and grading, installation of approximately four inches of #304 limestone sub-grade, and installation of four inches of hot asphalt; (3) replacement of a concrete sidewalk located in the front of the building for the price of $1,582, (4) replacement of concrete pads located in the front and on the east side of the building for the respective prices of $810 and $4,818, (5) replacement of a concrete apron located on the east side of the building for the price of $3,896, and (6) excavation of the sidewalk on the east side of the building and installment of concrete curbing for the respective prices of $1,718 and $8,350. After applying a discount of $4,586, the total contract price was $101,000.
{¶21} The parties subsequently agreed on Titan's performance of additional curbing services for the price of $3,500, increasing the total contract price to $104,500.
{¶22} Titan performed work under the contract from May 4, 2017 through June 20, 2017, and on July 28, 2017. During the performance of the work, Titan paid its employees, subcontractors, and vendors. Consistent with past practice, Ms. Hawkins emailed invoices to USA Management for payment following completion of work items.
{¶23} By June 2, Titan had completed the sidewalk, the concrete pads, and the curbing. Accordingly, Ms. Hawkins sent an invoice to USA Management in the amount of $25,000.
{¶24} According to Mr. Andrews, this work did not comply with the contract. He contended that the curbing was supposed to be installed in between the concrete doorway pads, resulting in the concrete pads being undersized and that some of the water boxes that Titan replaced, which control the water to the building's individual units, were installed in the curbing. Mr. Andrews and Mr. Phillips communicated regarding these issues, but they were not resolved.
{¶25} By June 7, Titan had completed the catch basins. Ms. Hawkins sent an invoice to USA Management in the amount of $5,000 for this work.
{¶26} On Saturday, June 17, Titan began "milling" the parking lot, which involved the removal of the old asphalt. Mr. Andrews was present on the work site that day and noticed that Titan was only milling four inches deep. Mr. Andrews approached the foreman and informed him that Titan was required to install a limestone base. The foreman told Mr. Andrews to contact Mr. Phillips. Mr. Andrews contends that he did not receive a response to his attempts to contact Mr. Phillips, which Mr. Phillips disputes.
{¶27} The following Monday, Mr. Phillips began paving the parking lot. According to Mr. Andrews, he motioned for Mr. Phillips to stop paving and discuss the limestone base issue with him. When Mr. Phillips did not stop, he stepped onto the paving machine and told Mr. Phillips that the job required stone base. Mr. Phillips told him to get off of the machine and continued paving. According to Mr. Phillips, he told Mr. Andrews that there was sufficient base.
{¶28} On June 20, Ms. Hawkins emailed an invoice to USA Management in the amount of $71,700 relating to Titan's completion of the parking lot work, bringing the total amount billed on the project to $101,700. According to Titan, the only work item remaining to be performed and invoiced at this time was the replacement of the concrete apron.
{¶29} On June 30, Titan received two payments from USA Management in the amounts of $38,000 and $23,342, respectively, for a total amount of $61,342, leaving an outstanding balance of $40,358.
{¶30} In July, Mr. Andrews notified Titan that one of the catch basins had settled and was cracked. He also asked when Titan would replace the concrete apron and requested a meeting with Mr. Phillips. Mr. Phillips responded that he would meet after Mr. Andrews paid his bill. He also alleged that the company Mr. Andrews hired to install a fence at the property had parked trucks and equipment on the catch basin in question, causing it to crack.
{¶31} Titan last performed work on the project on July 28 when it cleaned up debris in the parking lot. Mr. Phillips informed his crew not to return to the site to replace the concrete apron as a result of 7471 Tyler's nonpayment.
{¶32} In August, Mr. Andrews sent a letter to Titan outlining his issues regarding its work performance under the contract and requesting credits. In addition to reiterating the above issues, Mr. Andrews contended that the amount of pavement...
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