Poppa Builders, Inc. v. Campbell

• Decision Date: 14 February 1997
• Docket Number: No. 16200,16200
• Citation: 692 N.E.2d 647,118 Ohio App.3d 251
• Parties: POPPA BUILDERS, INC., Appellee, v. CAMPBELL et al., Appellants. Second District, Montgomery County
• Court: Ohio Court of Appeals

Page 251

118 Ohio App.3d 251

692 N.E.2d 647

POPPA BUILDERS, INC., Appellee, v. CAMPBELL et al., Appellants.

No. 16200.

Court of Appeals of Ohio,

Second District, Montgomery County.

Decided Feb. 14, 1997.

Klein & Zegarski, and Stephen F. Klein, Vandalia, for appellee.

Bogin, Patterson & Bohman, and Curtis F. Slaton, Dayton, for appellants.

PER CURIAM.

This matter comes before us upon a motion filed by plaintiff-appellee, Poppa Builders, Inc., seeking to dismiss the appeal of defendants-appellants, Mark A. Campbell and Henry A. Campbell, from the judgment of the Common Pleas Court of Montgomery County, Ohio. In its motion, Poppa Builders claims that the Campbells voluntarily paid the trial court's final judgment of $23,833 plus interest in full, thereby rendering the Campbells' appeal moot for want of an actual controversy. Poppa Builders contends that the Campbells should have filed a supersedeas bond to stay the judgment pending this appeal but failed to do so. In their response, the Campbells acknowledge their full payment of the trial court's final judgment, but claim that their appeal is based upon the dismissal of their counterclaim, a separate issue from the matters upon which the trial court rendered judgment. Based upon this distinction, the Campbells suggest that their appeal was not rendered moot as a result of their payment in full of the trial court's final judgment. We disagree.

In order to better address the issue before us, a brief synopsis of the procedural history of this case is necessary. On June 26, 1995, Poppa Builders filed a complaint alleging breach of contract and unjust enrichment relating to the construction of a commercial building and the widening of a road and prayed for damages in the amount of $23,833 plus interest. The Campbells filed their answer and counterclaim alleging breach of contract in that Poppa Builders failed to perform their services in a workmanlike manner, resulting in defects that cost $25,000 to repair. The matter was referred to a magistrate, and a hearing was held January 30, 1996. In its April 12, 1996 decision, the magistrate found that the Campbells met their burden of proof as to their counterclaim and that the cost of repairs would offset the damages incurred by Poppa Builders. Accordingly, the magistrate found that Poppa Builders' damages of $23,833 should be reduced by the cost to repair the defects in their work, amounting to $12,765, thus resulting in a judgment for Poppa Builders of $11,068 plus interest.

On April 17, 1996, the magistrate issued a supplemental decision overruling Poppa Builders' motion to dismiss the Campbells' counterclaim. The magistrate found that the "cost-of-repair" rule applied to the measure of damages and not the diminution in market value. Both parties filed objections to the magistrate's decisions. On August 30, 1996, the trial court sustained Poppa Builders' objections and found that its motion to dismiss the Campbells' counterclaim should have been granted. The trial court found that the restoration cost was the proper measure of damages and not the cost to repair the defects. The trial court concluded that because the Campbells failed to present evidence of the pre-injury and post-injury market value of the building, they failed to make a prima facie case for breach of contract. In addition, the trial court found that Poppa Builders was entitled to an award for prejudgment interest. On September 30, 1996, the trial court entered judgment for Poppa Builders in the amount of $23,833 plus interest and dismissed the Campbells' counterclaim on the merits. On October 24, 1996, the Campbells filed their notice of appeal.

Both parties agree to the general principle that voluntary payment in full of a final judgment renders the related appeal moot for want of an actual controversy:

"Where the court rendering judgment has jurisdiction of the subject-matter of the action and of the parties, and fraud has not intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error or even to move for vacation of judgment." Lynch v. Bd. of Edn. of City School Dist. of Lakewood (1927), 116 Ohio St. 361, 156 N.E. 188, paragraph three of the syllabus; see Favret Co. v. West (1970), 21 Ohio App.2d 38, 40, 50 O.O.2d 56, 57, 254 N.E.2d 709, 710 ("If such payment was voluntarily made, the issue raised by the appeal is moot and the appeal must of necessity be dismissed.").

The rationale behind this general rule is that a reversal of the trial court's judgment, after full voluntary payment has been made, would not offer any relief to the appellant:

"Where a final judgment orders the payment of money, and the order is not stayed but instead complied with by voluntary payment of the amount ordered, an appeal from the order will be dismissed as moot since reversal of the order would be ineffectual in affording any relief to the appellant." Kelm v. Hess (1983), 8 Ohio App.3d 448, 8 OBR 572, 457 N.E.2d 911.

With respect to voluntariness of payment, there is at least one jurisdiction that applies a liberal interpretation:

"One can easily presume several reasons why a defendant may prefer to pay a judgment rather than seek a stay...