Coons v. Brownlee

692 N.E.2d 626, 118 Ohio App. 3d 216

• Court: Ohio Court of Appeals
• Decided: November 20, 1996
• Docket: No. 8-95-21.
• Status: Published

Opinions

Shaw, Judge.

Defendant-appellant, Daniel C. Brownlee, d.b.a. Restoration Specialties, Inc., appeals from a judgment entered in the Logan County Court of Common Pleas, awarding plaintiff-appellee, Judith K. Coons, $39,120.55 in damages plus costs and interest as a result of defendant’s breach of contract.

In May 1991, plaintiff entered into a contract with defendant whereby defendant agreed to construct a single-family residence on plaintiffs property. Construction on the project commenced in May, 1991 and ceased in September, 1991 after sixty percent of the project was completed. The project was halted and the parties terminated their contractual relationship due to plaintiffs apparent dissatisfaction with defendant’s performance of the contract.

On September 8, 1993, plaintiff filed suit against defendant for breach of contract and defendant counterclaimed for the balance due on the contract, refinancing costs, and interest. A trial to the court took place on March 1 and 2, 1994. The trial court concluded that neither party had adequately borne its burden of proof and denied recovery to both parties.

Plaintiff timely appealed the trial court’s entry to this court, and in Coons v. Brownlee (May 18, 1995), Logan App. No. 8-94-5, unreported, 1995 WL 311309, Bryant, J. dissenting, this court determined that plaintiff had, in fact, met her burden of proof with respect to her breach of contract claim. Thus, we reversed the trial court’s decision in part, and affirmed it in part, and remanded the case to the trial court to render a determination solely on the issue of damages. Upon remand, the trial court issued a judgment entry awarding damages in the amount of $39,120.55 to plaintiff.

Thereafter, defendant filed the instant appeal from the trial court’s judgment entry on damages, asserting the following sole assignment of error:

“The trial court erred in awarding judgment in favor of plaintiff in the sum of $39,120.55 without further hearing as directed by the court of appeals.”

At the outset, we note that contrary to defendant’s assertions, this court did not issue a directive to the trial court requiring it to conduct a hearing on the issue of damages. More important, upon review of our previous determination of this matter it is our conclusion that this court improvidently substituted its own evaluation of the trial evidence for that of the trial court as the trier of fact. As a result, the trial court has been placed in the untenable position of having to evaluate and determine damages for a claim which that court, as trier of fact, specifically found not to be credible.

In essence, the trier of fact in this situation is being requested to award damages as if it believed testimony which it has already stated it does not believe, at least to the extent necessary to carry a burden of proof. It is our view that any such determination, with or without a hearing, is inherently improper. Moreover, we believe any effort by this court to review a damage determination made under such circumstances would only serve to compound the error.

For the reason that the prior decision of this court neither ordered nor necessarily entailed a further hearing by the trial court on the issue of damages, the appellant’s assignment of error is overruled. However, for the reasons stated above, the prior decision of this court in Coons v. Brownlee (May 18, 1995), Logan App. No. 8-94-5, unreported, 1995 WL 311309, is overruled in part and to the extent only that said decision reversed the March 21, 1994 judgment of the trial court. The December 5, 1995 judgment of the trial court from which the present appeal is taken, purporting to award damages to plaintiff, is vacated and this matter is remanded to the trial court with instructions to reinstate its prior decision and judgment of March 21,1994 in its entirety.

Judgment vacated and cause remanded.

Thomas F. Bryant, J., concurs. Evans, J., dissents.