Carbone v. Nueva Constr. Grp., L. L.C.

• Decision Date: 02 February 2017
• Docket Number: Nos. 103942 and 104147.,s. 103942 and 104147.
• Citation: 83 N.E.3d 375,2017 Ohio 382
• Parties: Ross P. CARBONE, Plaintiff–Appellant, Cross–Appellee v. NUEVA CONSTRUCTION GROUP, L.L.C., et al., Defendants–Appellees, Cross–Appellants
• Court: Ohio Court of Appeals

83 N.E.3d 375

2017 Ohio 382

Ross P. CARBONE, Plaintiff–Appellant, Cross–Appellee

v.NUEVA CONSTRUCTION GROUP, L.L.C., et al., Defendants–Appellees, Cross–Appellants

Nos. 103942 and 104147.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: February 2, 2017

John R. Christie, Lewis, Brisbois, Bisgaard & Smith, L.L.P., 1375 East Ninth Street, Suite 1600, Cleveland, Ohio 44114, Attorney for Appellant, Cross–Appellee

David G. Phillips, The Brown Hoist Building, 4403 St. Clair Avenue, Cleveland, Ohio 44103, Attorney for Appellees, Cross–Appellants

BEFORE: S. Gallagher, J., Stewart, P.J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, J.:

{¶ 1} There are two distinct issues presented in this appeal. Scaparotti Construction Group ("SCG") claims the trial court erred in granting judgment in favor of Nueva Construction Group, L.L.C., Bertha Villanueva, B–Resource Management, L.L.C., and Paul Gosden (collectively "Nueva"). SCG claims that it substantiated every element of each of its claims through unanswered requests for admissions and by a single witness presented at a bench trial. Nueva, in turn, claims that the trial court erred in denying a request to deem the complaint frivolous. Finding no merit to either argument, we affirm.

{¶ 2} None of the defendants appeared for trial after having two written motions for continuance denied. SCG presented one witness, and Nueva's trial counsel cross-examined him. At trial, the trial court acknowledged that Nueva had not answered discovery, which included several requests for admissions that supplemented the trial record. The parties also agreed to submit closing arguments through post-trial briefing. Nueva filed a post-trial brief that contained 20 documentary exhibits that were not introduced during trial and were not otherwise authenticated. SCG objected to the unauthenticated documents and also claimed to have never received those documents through the discovery process.

{¶ 3} In this appeal, Nueva's recitation of the facts entirely relies on the unauthenticated evidence attached to a post-trial brief and a motion for sanctions filed after the trial court entered a verdict in their favor. The documents attached to the motion for sanctions, however, were supposedly the same as those attached to the post-trial brief, which were not included in the appellate record. SCG timely objected to the belated attempt to introduce unauthenticated evidence through the post-trial brief, but the trial court denied the motion. The failure to include the post-trial brief exhibits in the appellate record is irrelevant because even if those records were included, none were authenticated for the purposes of trial as required prior to admission under Evid.R. 901. "It is a long-standing principle of the common law that most types of demonstrative or physical evidence must be authenticated or identified before such evidence may be deemed to be admissible at trial." Id. Staff Notes. We are precluded from considering Nueva's version of the facts, which entirely relies on evidence that should have been excluded from consideration at trial for the lack of authentication and for the failure to timely admit the evidence into the trial record through witness testimony or stipulations.

{¶ 4} Our rendition of the facts is based on admissions to the allegations in the complaint, trial testimony (the transcript was requested by SCG in its praecipe and thereafter filed on March 18, 2016), and the unanswered requests for admissions deemed admitted for trial (at trial, and after SCG called its sole witness, the trial court indicated that SCG need not introduce testimony duplicating the admissions from the unanswered requests for admissions; the admissions themselves were deemed admitted for the purposes of trial under Civ.R. 36(B). Tr. 40:10–24). SCG hired Nueva as a subcontractor for a project in Xenia, Ohio, because Nueva had obtained EDGE certification that SCG wanted credit for with the Ohio School Facilities Commission. Nueva and SCG entered into a "Professional Services Certification of Intent," dubbed the "Xenia Subcontract" by the parties, so that Nueva would provide approximately $200,000 in services for SCG on the project.¹

{¶ 5} Nueva admitted, in its answer, that it not only entered the Xenia Subcontract with SCG, under which Nueva had obligations to perform, but also that SCG had conferred a benefit on Nueva by making an unspecified amount of payments that Nueva acknowledged it received. Nueva denied, however, that it had received any payments for services that were not performed and denied that Nueva had received $85,000 in connection with the Xenia, Ohio project under the terms of the Xenia Subcontract. If a written agreement memorializing the terms of the Xenia Subcontract exists, it was not introduced into evidence.

{¶ 6} SCG and Nueva also entered a second contract ("Johnson Hotel Agreement") pertaining to the proposed development of a hotel somewhere in the country. Nueva was basically an investor, and SCG provided services in connection with the acquisition and development. According to the terms of the Johnson Hotel Agreement, SCG was responsible for all its expenses related to the project, but would periodically bill Nueva for consulting services. SCG and Nueva amended the Johnson Hotel Agreement in September 2010 to specifically define the project as the "Johnson Court Building in Cleveland, Ohio." In March 2011, that agreement was again amended to update the budget and compensation for the hotel project.

{¶ 7} According to the unanswered fourth request for admissions, SCG paid Nueva $85,000—the request asked for Nueva to admit "that [Nueva] was paid approximately $85,000." Nueva also admitted, through the fifth unanswered request for admissions, that it "did not perform services relative to the agreements and to earn the monies paid" by SCG. (Emphasis added.) It is unclear which agreements or services were being referenced in the requests for admissions, and no trial evidence specifically connected the admissions to the Xenia Subcontract.

{¶ 8} At trial and with respect to the Johnson Hotel Agreement, SCG's representative testified that the company had spent exactly $400,000 on "pre-development costs," exactly $9,500 on "survey costs," approximately $70,000 representing 10 percent of the $700,000 "historic tax credit assistance" cost, exactly $50,000 on the "appraisal/market study," and approximately $300,000 representing 15 percent of the $2 million "architect/engineering fee," all as demonstrated by a development-budget spreadsheet attached to the market study performed in March 2011. In addition to those expenses, deemed fees by the witness, SCG was entitled to an additional 5 percent under the terms of the Johnson Hotel Agreement. SCG claimed the above sums as damages.

{¶ 9} In the unanswered requests for admissions, Nueva admitted that it had received invoices from SCG and that those invoices remained unpaid. The trial testimony did not link the discussed expenses with those invoices. Regrettably, Ross Carbone, SCG's employee handling the Nueva agreements, passed away before trial, complicating the introduction of evidence by SCG. All told, had the project moved forward, SCG anticipated a $2.5 million profit, which was a percentage of the entire development cost.

{¶ 10} The trial court, acting as the trier of fact, entered a verdict in favor of Nueva upon all claims. Following that verdict, Nueva filed a motion for sanctions, claiming that SCG's complaint was frivolous, largely based on documents submitted and authenticated for the first time for trial purposes in the motion for sanctions. Although some of the documents referenced in Nueva's post-trial brief were properly attached to Nueva's unsuccessful motion for summary judgment, the trial court deemed those documents to create genuine issues of material fact, and those documents were not introduced at trial. This appeal and cross-appeal timely followed.

{¶ 11} SCG challenges the weight of the evidence presented at trial. The weight of the evidence concerns " ‘the inclination of the greater amount of credible evidence , offered at trial, to support one side of the issue rather than the other [and] indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict.’ " (Emphasis sic.) Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). When conducting a manifest weight review, the reviewing court must weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. Eastley at ¶ 20, citing Tewarson v. Simon , 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001).

{¶ 12} "[A] court of appeals should affirm a trial court when the evidence is legally sufficient to support the jury verdict as a matter of law." Bryan–Wollman v. Domonko , 115 Ohio St.3d 291, 2007-Ohio-4918, 874 N.E.2d 1198, ¶ 3, citing Thompkins at 386, 678 N.E.2d 541. Further, even if the evidence is sufficient as a matter of law, courts should affirm a jury's verdict, as not being against the manifest weight of the evidence, if the verdict is supported by some competent, credible evidence. Id. As the Ohio Supreme Court has explained, under the civil manifest weight of the evidence standard, courts must "presume that the findings of the trier of fact are correct" in light of the fact that "the [trier of fact] had an opportunity ‘to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.’ " Corrigan v. Illum. Co. , 122 Ohio St.3d 265, 2009-Ohio-2524, 910...