Barton v. Ellis

• Decision Date: 23 December 1986
• Docket Number: No. 86AP-349,86AP-349
• Citation: 34 Ohio App.3d 251,518 N.E.2d 18
• Court: Ohio Court of Appeals
• Parties: BARTON et al., Appellees and Cross-Appellants, v. ELLIS et al., D.B.A. E & E Remodelers, Appellants and Cross-Appellees.

Page 251

34 Ohio App.3d 251

518 N.E.2d 18

BARTON et al., Appellees and Cross-Appellants, v. ELLIS et al., D.B.A. E & E Remodelers, Appellants and Cross-Appellees.

No. 86AP-349.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 23, 1986.

Syllabus by the Court

1. The duty to perform construction services in a workmanlike manner is imposed by law upon builders and contractors.

2. Failure to so perform remodeling services renders the contractor liable for damages measured by the cost to repair deficient work.

Luper, Wolinetz, Sheriff & Neidenthal, Frederick M. Luper and Mark S. Miller, Columbus, for appellees and cross-appellants.

Vincent De Pascale, Columbus, for appellants and cross-appellees.

PER CURIAM.

Defendants, William Ellis and Emmett Brown, d.b.a. E & E Remodelers ("E & E"), appeal from a judgment of the Franklin County Municipal Court finding them liable for damages in the amount of $3,617.44 for breach of contract with plaintiffs, George and Madeline Barton. Plaintiffs have cross-appealed the amount of damages awarded.

Pursuant to a proposal submitted September 30, 1983, George and Madeline Barton entered into a contract with E & E to remodel various areas of the Bartons' home for $10,085. The work involved enclosing a back porch, remodeling the kitchen, installing a bathroom in the basement, and various other items. The contract was modified to include installation of a ceramic tile floor in the kitchen for an additional $250.

Numerous problems developed with the work performed by E & E, in particular, cracking and failing of the kitchen floor tile and grout, and leaking plumbing in the basement.

After notifying E & E of problems with the work done, and becoming unsatisfied with E & E's response, George Barton filed suit on January 29, 1985. Upon E & E's motion, Madeline Barton was joined as a party-plaintiff at trial.

The trial court rendered judgment March 27, 1986, finding that:

" * * * [S]ome of the defendants' work was substandard and that defendants have breached the contract entered into between themselves and the plaintiffs. * * * Defendants agreed to perform all of the work set forth in the contract. * * * In so doing, defendants agreed to perform the work in a good and workmanlike manner. * * * "

The Bartons were awarded damages in the amount of $3,617.44, representing the cost to repair the various items of work found to be deficient.

E & E asserts four assignments of error on appeal:

"I. The court erred in substituting as a standard of performance the complete satisfaction of the plaintiffs, to the derrogation [sic ] of the legal standard, which is the standard of the trade for the price paid.

"II. The court erred in accepting an unperformed, unpaid estimate, for quality in excess of that in the original contract, as the measure of damages.

"III. The court erred in finding the defendants in breach of contract for items outside the evidence.

"IV. The verdict is contrary to the manifest weight of the evidence."

The plaintiffs cross-appeal with one cross-assignment of error, which states:

"The trial court erred in assessing and awarding damages with respect to the installation of a large Picture Window in that the amount awarded was less than the amount of damage established at trial."

We overrule the assignments of error and the cross-assignment of error and affirm the judgment of the trial court for the reasons set forth below.

The duty to perform in a workmanlike manner is imposed by common law upon builders and contractors. Mitchem v. Johnson (1966), 7 Ohio St.2d 66, 36 O.O.2d 52, 218 N.E.2d 594; Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 23 O.O.3d 346, 433 N.E.2d 147. This duty is rooted in the English common law, see Vanderschrier v. Aaron (1957), 103 Ohio App. 340, 342, 3 O.O.2d 367, 368, 140 N.E.2d 819, 821, and finds its first expression in Ohio law in Somerby v. Tappan (1833), Wright 229, and Somerby v. Tappan (1834), Wright 570, syllabus (a mechanic undertaking a job in the way of his trade at the common price impliedly engages to bring to the work the common skill of his profession and to do the work in a workmanlike manner). Subsequent developments in Ohio case law have rejected inferences from these earlier expressions upon which an implied warranty of fitness for a particular purpose might have been imposed by law, Mitchem, supra; Velotta, supra; Elizabeth Gamble Deaconess Home Assn. v. Turner Constr. Co. (1984), 14 Ohio App.3d 281, 14 OBR 337, 470 N.E.2d 950, but have reaffirmed the duty to perform in a workmanlike manner. ¹ Velotta, supra; Mitchem supra; Lloyd v. William Fannin Bldrs. (1973), 40 Ohio App.2d 507, 69 O.O.2d 444, 320 N.E.2d 738; Tibbs v. National Homes Constr. Corp. (1977), 52 Ohio App.2d 281, 6 O.O.3d 300, 369 N.E.2d 1218; Sadler v. Bromberg (App.1950), 62 Ohio Law Abs. 73, 75, 106 N.E.2d 306, 307.

Application of this standard has resulted in a distinction between the sale of a completed residence on the one hand, and the contracting for future construction services on the other (e.g., the sale of partially completed residences with some work to be completed, remodeling, or modification of existing structures). Absent express or implied warranties as to the quality or fitness of work performed, the liability of a builder-vendor of a completed structure for failure to exercise reasonable care to perform in a workmanlike manner sounds in tort, and arises ex delicto. The essential allegation is that the builder-vendor's negligence proximately causes the vendee's damages. Velotta, supra; Mitchem, supra. By contrast, in the provision of future services, liability arises ex contractu as an implied bargain, Vanderschrier, supra, provision, condition, or term of sale, Mitchem, supra, 7 Ohio St.2d at 73, 36 O.O.2d at 56, 218 N.E.2d at 599. See Lloyd, supra. Contra Elizabeth Gamble Deaconess Home Assn., supra.

E & E's emphasis upon the price paid for the remodeling work is overstated. While relevant, contract price alone does not excuse one from the duty of workmanlike performance imposed by law. That is, for example, even the cheapest bathroom and laundry fixtures may be installed to operate without leaking. As explained by the trial court in its decision:

" * * * While the Court is convinced that the plaintiffs were money conscious, [authorizing the installation of both used and new, but inexpensive, materials], they nonetheless rightfully expected the work to be performed in a good and workmanlike manner, unless otherwise agreed. Nothing in the evidence before this Court indicates that defendants indicated to plaintiffs, much less contracted with plaintiffs, that the work would be substandard due to the plaintiffs' concern about money."

The trial court clearly applied the correct standard of law in establishing E & E's breach of contract, and accordingly the first assignment of error is overruled.

The second assignment of error asserts that the trial court utilized an improper measure of damages, arguing that estimates relied upon by the trial court contemplated higher quality products and installation, enhancing, rather than mitigating, the damages claimed. E & E contends that the proper measure of damages is the Bartons' actual loss, not the cost to repair the defective work. Focusing particularly upon the award of damages for repair of the kitchen floor, E & E further contends that its offer to cure the defective work by substituted performance--installation of linoleum rather than ceramic tile on the floor--must be considered in awarding damages. Bisher v. Richards (1859), 9 Ohio St. 495.

This court has held that the cost of repair is the proper measure of damages for defects in floor construction, Platner v. Herwald (1984), 20 Ohio App.3d 341, 20 OBR 445, 486 N.E.2d 202, syllabus, and for construction defects in general, Sadler v. Bromberg, supra, as the owner of a structure is entitled to the proper performance of the contract. See, also, Spraggins v. Ronke (Ohio App.1959), 160 N.E.2d 334.

As the trial court applied the cost-to-repair rule in assessing damages, the question now becomes whether the estimates of repair costs received into evidence were properly relied on. We find in the affirmative.

E & E argues that the estimate of the cost to repair submitted by the Bartons includes activities and higher-grade materials not contemplated by their bid to do the work. While the owner of a structure is entitled to proper performance of the contract, we agree with E & E that the Bartons are not entitled to more than they bargained for. However, E & E's general allegation is unaccompanied by a specific detailed itemization. We decline to accept the...