Hwy. Equip. Co. v. Richard Boccia Constr., Inc.

2024 Ohio 4753

• Court: Ohio Court of Appeals
• Decided: September 30, 2024
• Docket: 2024-T-0019
• Status: Published

Opinion

[Cite as Hwy. Equip. Co. v. Richard Boccia Constr., Inc., 2024-Ohio-4753.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY

HIGHWAY EQUIPMENT COMPANY, CASE NO. 2024-T-0019

Plaintiff-Appellee, Civil Appeal from the - vs - Court of Common Pleas

RICHARD BOCCIA CONSTRUCTION, INC. a.k.a. Trial Court No. 2022 CV 00881 R. BOCCIA CONSTRUCTION, CO.,

Defendant-Appellant.

OPINION

Decided: September 30, 2024 Judgment: Affirmed

Ned C. Gold, Jr., 8616 Bayberry Drive, N.E., Warren, OH 44484 (For Plaintiff-Appellee).

Michael A. Partlow, P.O. Box 1562, Stow, OH 44224 (For Defendant-Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Richard Boccia Construction, Inc. (“Boccia”), appeals the

judgment of the Trumbull County Court of Common Pleas finding Appellant liable for

failure to pay Appellee, Highway Equipment Company (“Highway”), for the repair of a

certain piece of equipment. The trial court found Boccia owed Highway $18,070.38 for

the unpaid account.

{¶2} Appellant raises two assignments of error, arguing that the trial court erred

by: (1) finding that Highway’s delays in repairing Boccia’s equipment were due to unavailability of parts; and (2) finding Highway was entitled to receive payment on its full

invoice of $18,070.38 and that Boccia was not entitled to damages on its counterclaims.

{¶3} Having reviewed the record and the applicable caselaw, we find the trial

court’s judgment was supported by competent credible evidence. Although the parties

presented conflicting testimony at times, we grant deference to the fact finder in weighing

the evidence on review.

{¶4} Therefore, we affirm the judgment of the Trumbull County Court of Common

Pleas.

Substantive and Procedural History

{¶5} Highway originally filed a Complaint on Account in 2019 under Case No.

2019CV0037. However, on April 31, 2022, that case was dismissed without prejudice

pursuant to Civ.R. 41(A)(1)(b).

{¶6} On June 24, 2022, Highway refiled its Complaint on Account, asserting one

count that Boccia engaged Highway to repair a certain piece of heavy machinery and that

Boccia had failed to pay the outstanding account of $18,070.38.

{¶7} On July 29, 2024, Boccia filed its Answer and Counterclaim. In its

Counterclaim, Boccia asserted two counts: Breach of Contract for Highway causing

additional damage to the machinery and failing to repair the machinery in a diligent and

workmanlike manner; and Negligence, for Highway’s failure to perform the repairs in a

reasonable fashion. Highway filed its Reply to Boccia’s Counterclaims on August 1, 2022,

and denied wrongdoing.

{¶8} The matter proceeded to a bench trial on November 29, 2023.

{¶9} The following evidence was adduced at trial:

Case No. 2024-T-0019 {¶10} Ryan Melcher, a field service manager for Highway, testified that Highway

sells and repairs heavy equipment. Highway has eight locations across multiple states.

Melcher’s role is to manage mechanics, generate invoices, and coordinate the sourcing

of parts for repairs.

{¶11} In summer 2017, Richard Boccia, Boccia’s owner, engaged Highway to

replace the instrument cluster on his Kobelco SK300 model excavator. Melcher said that

the SK300 model was made in Japan and is an older model excavator no longer in

production.

{¶12} On July 5, 2017, Highway’s workers replaced the instrument cluster and

noticed the swing motor, which makes the machine rotate, was leaking and in need of

service. Melcher quoted the cost of repair for the swing motor at $3,000.00-$4,000.00

and said it would require the machine to be out of service for about one week. Richard

authorized Highway to remove the part from the machine and return it to Highway’s shop

for repair. The initial plan was to return the part to Highway’s shop where it could be

resealed. However, once at the shop, Highway’s mechanics discovered that the part was

“packed full of grease and it should be filled with oil. . . . Because of that, the internal

components were not getting proper lubrication” and the part was damaged beyond

repair.

{¶13} Highway then began to search for new parts to replace those damaged by

the grease. This represented a departure from the initial quoted repair. Melcher said that

finding replacement seals was not difficult, but that sourcing gear sections and bearings

was difficult because the parts were no longer available from Kobelco. Melcher said he

needed to source the parts from after-market vendors and other owners of similar Kobelco

Case No. 2024-T-0019 machines. He said he eventually found a part they could salvage from a damaged

machine in an equipment junkyard. The cost of that part alone was $3,750.00. However,

that part was not “an exact match” and Highway had to “Frankenstein” components to

salvage a usable fix for Boccia’s machine.

{¶14} Melcher testified that the swing motor repair proceeded quickly once

Highway had sourced the necessary parts. During the intervening weeks, Melcher

frequently communicated updates to Richard. Melcher said after the repair was complete,

there was some follow up work that Highway did to fix some faulty seals, but said that

Highway did not charge for this work. Melcher said the swing motor repair was completed

by August 8, 2017.

{¶15} Melcher said that about a month after the swing motor had been repaired,

Richard called Highway to have the Kobelco’s pilot pump replaced. Richard sourced the

part himself and needed Highway to install it. Melcher said that when Highway mechanics

went to install the pilot pump, they found a number of hydraulic lines had been mismarked

“as if the work had been started prior and then stopped.” He said the mechanics incurred

additional work trying to correct the problem and then get the install done.

{¶16} Melcher said that he generated an invoice for Boccia based on the swing

motor and pilot pump service Highway had performed. The swing motor repair invoice

amount was $14,113.70. The pilot pump repair invoice amount was $4,115.45. Melcher

said that Highway made some concessions on the labor cost because they had engaged

in such excessive hours trying to source parts and repair the swing motor. Therefore,

Melcher deducted 72 hours of labor that was not reflected on the invoice. This amounted

to approximately a $10,000.00 deduction in the bill.

Case No. 2024-T-0019 {¶17} Dale Sarvey, a mechanic who worked at Boccia in 2017, testified about the

Kobelco excavator repair. He said that Highway completed initial repairs on the swing

motor on August 8, but said the machine was still not working properly. Sarvey testified

that Highway did not fully repair the machine until August 28. He also said he noticed

damage that looked like hammer marks on the machine that he had not seen before.

{¶18} Sarvey denied that there was grease in the swing motor and said that he

had pressure washed everything off of it. However, he said that if grease had been in the

component, it “won’t hurt it.” As to the pilot pump, he said that Highway’s mechanics had

improperly installed hoses on the machine which caused complications during the

installation of the pilot pump. However, he acknowledged that Boccia workers had also

worked with the pilot pump.

{¶19} Richard testified that he owns Boccia and has worked with Highway for

many years. Richard said the Kobelco machine had a problem with a seal and was leaking

oil. He put some grease into the seal to stop the leak. He said that Highway gave a quote

to repair the leak at $3,500.00 “tops,” and that the repair would take no more than a week.

{¶20} Richard said that before Highway came, he had his workers pressure wash

the machine and mark all the line fittings so the machine could be quickly serviced. In

addition, before the Highway mechanic took the swing motor apart, the mechanic added

colored wires to the fittings to help keep things organized for reassembly.

{¶21} On August 8, Highway completed the repair, but the machine was still not

functioning properly. Richard explained that when Highway completed the repairs, he

discovered hammer marks on the swing motor and noted that the markings and wires to

keep track of the line fittings were gone. Highway conducted further repairs on site around

Case No. 2024-T-0019 August 28, but the machine was still not functioning properly. At that time, Highway

suggested replacing the pilot pump.

{¶22} Richard said that he bought the part himself and installed it, but that he was

still having trouble, so he called Highway. Richard said the mechanic tested various

aspects of the machine, but was not successful in diagnosing the problem. Richard told

him to just leave to avoid running up a large bill. He said the machine still does not operate

properly.

{¶23} Richard said that he had to rent a piece of equipment to substitute for the

Kobelco machine while it was being serviced. The cost associated with the rental was

$12,600.00. Richard felt Melcher was a “bean counter” who had failed to give proper

attention to his repair in favor of bigger clients.

{¶24} On February 7, 2024, the trial court issued judgment for Highway in the

amount of $18,070.38. The trial court found that Boccia had failed to prove breach of

contract or negligence because Boccia “failed to state any valid legal proposition to

support [its] counterclaim for the rental costs of replacement equipment when the repair

was unexpectedly delayed due to the unavailability of parts.” The court concluded that

part of the delay was attributable to Boccia, because it had attempted to repair the

equipment by using heavy grease instead of regular oil. The trial court found that

Melchior’s testimony was credible, while Richard’s testimony lacked credibility.

{¶25} Appellant timely filed the instant appeal raising two assignments of error.

Standard of Review

{¶26} “[O]n appeal from a bench trial we review the trial court's factual findings

under the manifest weight standard of review, while the trial court's legal findings are

Case No. 2024-T-0019 reviewed de novo.” Ultimate Salon & Spa, Inc. v. Legends Construction Group, 2019-

Ohio-2506, ¶ 30 (11th Dist.). “Weight of the evidence concerns ‘the inclination of the

greater amount of credible evidence, offered in a trial, to support one side of the issue

rather than the other. . . . Weight is not a question of mathematics, but depends on its

effect in inducing belief.’” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380,

387 (1997), quoting Black’s Law Dictionary 1594 (6th Ed.1990). “‘The [appellate] court,

reviewing the entire record, weighs the evidence and all reasonable inferences, considers

the credibility of the witnesses and determines whether in resolving conflicts in the

evidence, the [trier 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.’” Id., quoting State

v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

{¶27} “Judgments supported by some competent, credible evidence going to all

the essential elements of the case will not be reversed by a reviewing court as being

against the manifest weight of the evidence.” C. E. Morris Co. v. Foley Constr. Co., 54

Ohio St.2d 279 (1978), syllabus. “[A] court of appeals [must] be guided by a presumption

that the findings of the trier-of-fact were indeed correct. . . . The underlying rationale of

giving deference to the findings of the trial court rests with the knowledge that the trial

judge is best able to view the witnesses and observe their demeanor, gestures and voice

inflections, and use these observations in weighing the credibility of the proffered

testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).

Case No. 2024-T-0019 Assignments of Error and Analysis

{¶28} Appellant’s assignments of error state:

{¶29} “[1.] THE TRIAL COURT’S FINDING THAT ALL OF THE DELAYS IN

APPELLEEE REPAIRING APPELLANT’S MACHINERY RESULTED FROM

UNAVAILABILITY OF PARTS.”

{¶30} “[2.] THE TRIAL COURT’S FINDINGS THAT APPELLEE WAS ENTITLED

TO ITS FULL INVOICE AND APPELLANT IS NOT ENTITLED TO DAMAGES ARE

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶31} Both of Boccia’s assignments of error relate to whether the trial court’s

judgment was against the manifest weight of the evidence. Therefore, we address them

in a consolidated fashion. Boccia has not argued the court erred as a matter of law.

{¶32} Boccia argues the record does not support the trial court’s conclusion that

the delay in repairing the swing motor was caused by a difficulty in sourcing replacement

parts.

{¶33} Melcher estimated it would take no more than a week to conduct a repair of

the swing motor. However, once Highway mechanics began to work on the part, they

discovered that grease had been improperly used in the components, which damaged

the part beyond repair. Because of this, Melcher’s initial cost and time estimate was no

longer viable. Melcher testified that sourcing a replacement part was difficult because the

Kobelco excavator was an older model, that Kobelco did not have the necessary parts,

and that he conducted a wide search to source the appropriate parts. Once Melcher

sourced the part, it still required additional work to “Frankenstein” the replacement.

Case No. 2024-T-0019 {¶34} The trial court found that the delay was partially attributable to Boccia’s

actions. Although Richard speculated that Highway did not prioritize his repair, he

provided no evidence to support this belief. Had the swing motor not been damaged by

the grease, the evidence shows the repair would have been completed quickly. However,

the unforeseen need to replace the part rather than repair it caused both significant delay

and significant difficulty in completing the job.

{¶35} Next, Boccia argues that the record does not support the trial court’s finding

that Highway was entitled to its full invoice price and that Boccia was not entitled to

recover anything for the costs it incurred while waiting on Highway to repair the excavator.

{¶36} However, the trial court concluded that there was “no support” for Boccia’s

position. The court said that although “the cost of the repair was in excess of the initial

quote . . . the costs increased because [Highway] had to search for and buy the

replacement part internationally.” Further, Melcher testified that Highway discounted their

price by approximately $10,000.00. In the same way that the delay was at least partially

attributable to Boccia’s actions, the need to rent a substitute piece of equipment while the

Kobelco machine was being serviced was at least partially attributable to Boccia’s actions.

Boccia did not establish that Highway breached its contract or acted negligently.

{¶37} The trial court’s judgment was supported by competent credible evidence.

Although the parties presented different accounts of repair process, we are mindful of the

deference we give to the trier of fact in weighing the evidence on review. The trial court

specifically found Melcher to be credible and found Richard to not be credible.

{¶38} Accordingly, Appellant’s assignments of error are without merit.

Case No. 2024-T-0019 {¶39} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas is affirmed.

EUGENE A. LUCCI, P.J.,

MARY JANE TRAPP, J.,

concur.

Case No. 2024-T-0019