Trebmal Construction Inc. v. Sherway Application Co., 91-LW-3788
| Decision Date | 07 February 1991 |
| Docket Number | 91-LW-3788,58033 |
| Parties | TREBMAL CONSTRUCTION INC., PLAINTIFF-APPELLEE/CROSS-APPELLANT v. SHERWAY APPLICATION CO., ET AL., DEFENDANTS-APPELLANT/CROSS-APPELLEE CASE |
| Court | Ohio Court of Appeals |
For Plaintiff-Appellee/Cross-Appellant: Keith R. Kraus, Esq., 1800 Ohio Savings Plaza, 1801 East 9 Street, Cleveland, OH 44114
For Defendants-Appellant/Cross-Appellee: Ronald A. Rispo, Esq., Weston, Hurd, Fallon, Paisley & Howley, 2500 Terminal Tower, Cleveland, OH 44113-2241
This appeal and cross-appeal arise from the verdict of the Cuyahoga County Court of Common Pleas upon a contractual dispute which resulted in a verdict and judgment in favor of appellee/cross-appellant, Trebmal Construction Co. in the amount of $300,000, against appellant Sherway Applications Co. and codefendant DuBois Chemical Corp.
In December of 1979, appellee Trebmal Construction Company (Trebmal) arranged for the purchase of the Statler Hotel from the Ameritrust Company.
In July of 1980 appellee Trebmal contracted with appellant Sherway Applications Co. (Sherway) to restore the exterior walls of the Statler Hotel building and to scrape and repaint the window sashes for a total contract price of $168,000. Appellant Sherway consulted with the regional sales director of codefendant DuBois Chemical Company, Richard Calendonato. Calendonato recommended the use of his own product, Peel Filmite to protect the windows of the Statler Hotel.
After cleaning operations were completed, appellee Trebmal began complaining that the windows were damaged. Appellant Sherway contended that the damage existed prior to the window cleaning. Appellee Trebmal contended the damage was due entirely to the work of Sherway and/or the failure of DuBois Chemical's product.
Trial began on April 11, 1989. Appellant Sherway's motion in limine to exclude expert testimony had been filed much earlier in December 8, 1986. The court denied this motion. On April 25, 1989, the jury returned a verdict of $300,000 against both defendants Sherway and DuBois Chemical. The jury's assigned 70% fault to Sherway and 30% fault to DuBois Chemical.
Appellant Sherway filed a motion for judgment notwithstanding the verdict and/or for a new trial. Appellee filed a motion to assess prejudgment interest, and a motion to tax costs. Following a hearing on May 10, 1989 the trial court denied Sherway's motions for judgment notwithstanding the verdict and for a new trial. The trial court did award appellee's motions for prejudgment interest and a small portion of the motion to tax costs.
Appellant Sherway timely filed its notice of appeal on July 5, 1989.
Appellant in his first assignment of error states:
"WHERE THE SOLE USE OF PROPERTY IS COMMERCIAL AND CLAIMED DAMAGES ARE SUCH THAT THEY DO NOT REQUIRE REPAIRS IN ORDER TO GENERATE A PROFIT, THE MEASURE OF DAMAGE IS EITHER THE LOSS OF ECONOMIC BENEFIT OR DIMINUTION IN MARKET VALUE AND NOT THE COST OF REPAIR."
Appellant, in its first assignment of error, argues that the trial court permitted testimony on the incorrect measure of damages. Specifically, appellant argues that appellee's expert witness should not have been permitted to testify on the cost of repair.
The assignment of error is not well taken.
Appellant's one assignment of error raises four questions for resolution.
Issues B, C and D are related and will be discussed in the disposition of Issue A.
Prior to trial, appellant filed a motion in limine questioning the admissibility of testimony from appellee's expert witness, Roger D. Ritley. In support of the motion, appellant argued that the expert's testimony did not support the damages standard of diminution in market value.
Our inquiry commences with an examination of the purpose and effect of a motion in limine. A "Motion in limine" is defined in Black's Law Dictionary (5 Ed. 1979) 914, as "[a] written motion which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions and statements * * * to avoid injection into trial of matters which are irrelevant, inadmissible and prejudicial[,] and granting of (the] motion is not a ruling on evidence and where properly drawn, granting of [the] motion cannot be error." State v. Grubb (1986), 28 Ohio St. 3d.
The threshold question to be answered upon review of the motion in limine is whether or not the proponent of the motion objected to the admission or exclusion of the evidence at trial. The denial of a motion in limine does not preserve error for review. A proper objection must be raised at trial to preserve error. State v. Brown (1988), 38 Ohio St. 3d 305, paragraph three of the syllabus. In the herein case, the appellant Sherway did object to the testimony of the opinion on the diminution of market value. (Supp. Tr. 41.) Therefore, appellant did not waive his right to assign this matter as error.
Accordingly, appellant argues, herein, that the court should have excluded the testimony of appellee's expert appraiser, Roger Ritley, because his report on his opinion on diminution in market value was a measure of the cost of cure. Appellant argues that the cost of cure was the incorrect measure of damages, and therefore should not have been submitted as evidence. This court disagrees with appellant's argument that the expert witness' testimony should have been excluded from evidence.
The rules of evidence encourage the admission of relevant evidence. Further, the admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St. 3d 173. Generally, opinion testimony is excluded from evidence. Notwithstanding, witnesses shown to be learned, skilled and experienced in a particular art, science, trade or business, i.e., expert witnesses, are permitted to testify in a proper case, and after proper qualification, to give their opinions upon a given state of facts within their field of knowledge, so that the jury may be assisted in judging the facts and draw inferences therefrom so as to enable it to come to a right verdict. Fulton v. Aszman (1982), 40 App. 3d 64.
In the case sub judice, appellee's expert witness was sufficiently qualified to give expert testimony on the economic impact of the damaged windows. (Tr. 533-538.) The fact that in the expert's opinion the diminution of the market value of the building was equal to the cost to repair was properly allowed and submitted to the jury. Comparison of expert witnesses, professional stature and the weight of the expert's testimony are for the trier of the facts. McQueen v. Goldey (Butler Cty. 1984), 20 Ohio App. 3d 41. Accordingly, the expert's testimony was properly submitted to the jury for determination.
Appellant relies on Denoyer v. Lamb (Hamilton Cty. 1984), 22 Ohio App. 3d 136. Appellant argues that the application of Denoyer precludes determining market value by the cost of repair. However, Denoyer states that the owner of a property may recover as damages the costs of reasonable restoration of his property to its preexisting condition or to a condition as close as reasonably feasible, without requiring grossly, disproportionate expenditures. Further, the owner of a property has a right to hold it for his own use as well as to hold it for sale, and that if he holds the property for sale, the injury might be unappreciable for purposes of sale. Thus, Denoyer does not hold that the owner of a property for sale is strictly prohibited from recovering as damages the costs of reasonable restoration of his property to its preexisting condition. Denoyer at 139.
Accordingly, appellee's expert witness could testify that, according to his opinion, the method to use to analyze the economic impact on the building's value caused by damaged windows was to examine buyer behavior. The cardinal rule of the law of damages is that the injured party shall be fully compensated. Brady v. Stafford (1926), 115 Ohio St. 67, 69. The expert proposed that the difference in value of the property before and after the damage to the windows closely approximated the cost of repairing the windows based on buyer expectations.
Given the issues involved in this case and the court's charge to the jury, [1] the court properly allowed the appellee's expert opinion. In Cooper v Feeney (1986, Butler Co.) 34 Ohio App. 3d 282, the appellate court held that when the market value cannot be feasibly determined, the standard of "value to the owner" is the measure of damages. This value is determined via consideration of a...
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