Metro Renovations 12, L.L.C. v. Sabir

2023 Ohio 1867, 215 N.E.3d 1242

• Court: Ohio Court of Appeals
• Decided: June 6, 2023
• Docket: 2022 CA 00022
• Status: Published

Opinion

[Cite as Metro Renovations 12, L.L.C. v. Sabir, 2023-Ohio-1867.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

METRO RENOVATIONS 12, LLC, : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : BILAL SABIR, ET AL., : Case No. 2022 CA 00022 : Defendants - Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Case No. 20 CV 243

JUDGMENT: Reversed in Part and Affirmed in Part

DATE OF JUDGMENT: June 6, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

MICHELLEA TENNIS FELICE HARRIS DANIEL FRUTH Harris Law Firm, LLC Stebelton Snider LPA Reynoldsburg, Ohio 43068 109 N. Broad Street, Suite 200 P.O. Box 130 Lancaster, Ohio 43130 Fairfield County, Case No. 2022 CA 00022 2

Baldwin, J.

{¶1} Bilal and Faatimah Sabir appeal the Fairfield County Court of Common

Pleas judgment in favor of appellee, Metro Renovations 12, LLC. The Sabirs also appeal

the trial court’s decisions finding that Bilal Sabir acted in bad faith and that Faatimah Sabir

was liable for attorney’s fees and court costs. The Sabirs also assign as error the trial

court’s decision barring Sabirs’ expert from tendering an opinion regarding the percentage

of completion of the project and they contend the trial court improperly took judicial notice

of evidence outside the record.

STATEMENT OF THE FACTS AND THE CASE

{¶2} Appellant, Bilal Sabir, is a veteran of the Vietnam war who suffered a

disabling injury during his service. Faatimah Sabir is his spouse and also serves as his

veteran’s affairs fiduciary. Together they determined that Bilal’s quality of life could be

improved by modifications to his home that would increase his mobility and preserve his

independence. They sought and were granted a sum of money from the Department of

Veteran’s Affairs (VA) to complete renovations to Sabir Bilal’s home to enable him to “‘live

more independently in a barrier-free environment.’ VA Manual 26-12, Chapter 1-3.”

(Judgment Entry, March 23, 2022, p. 1; Exhibit 18, p. 1-4). The total amount allotted for

this Special Adaptive Housing Grant (SAH) was $81,080.00.

{¶3} Metro Renovations 12, LLC (Metro) is a contractor with experience in

renovation and construction of residential properties, but with no experience in completing

renovations financed through a Specially Adapted Housing Grant financed by the VA.

Bilal contacted Metro about completing the renovations to his home, and Metro, interested Fairfield County, Case No. 2022 CA 00022 3

in expanding their business into completion of SAH projects, agreed to meet with the

Sabirs to discuss the project.

{¶4} After discussion the parties entered into an agreement for the completion of

renovations to the home. The Agreement was comprised of a three-page contract, plans

and a material list all of which were either signed or initialed by Bilal. This document was

then approved by SAH Agent, Rand Barnes, as meeting the VA's minimum property

requirements. (Exhibit 18, p. 5-8; Exhibits 21, 25).

{¶5} During the hearing Faatimah repeated that she was Bilal’s VA fiduciary,

implying that her presence or her approval was necessary for a valid contract. Neither

Faatimah nor Bilal provided further insight regarding the purpose or breadth of her

fiduciary authority and it is evident that she had no concern regarding his entering the

Agreement at the time it was signed. During the trial, she acknowledged that she was

aware that Bilal was executing the documents and that she was at work and was unable

to attend the signing. There is no evidence that she took advantage of the opportunity to

review the documents before or after they were approved by Bilal.

{¶6} The contract provided no initial payment, then five separate disbursements

at specific stages of the project. The first disbursement was $10,000; the second

disbursement was $28,800; the third disbursement was to be $14,000 the fourth

disbursement was $12,000; and the final disbursement would represent 20.08 % of the

contract or $16,280 for a total contract amount of $81,080.00. (Exhibit 40). Under the

terms of the contract, the first four disbursements would occur after inspection and

approval by the SAH agent with no requirement that Bilal be consulted for his input or Fairfield County, Case No. 2022 CA 00022 4

approval. Disbursement of the final amount required the written approval of the SAH

agent and Bilal Sabir.

{¶7} The contract expressly states that only Bilal and Metro are parties to the

contract but the VA retained the authority to inspect and confirm that Metro’s work

“conforms to the contract, plans and/or specifications submitted to and approved by the

VA” prior to the disbursement of any funds. (Exhibit 1, ⁋ I, VI, VIII; Exhibit 40). The fact

that disbursements were made by the VA to Metro confirms that the SAH agent approved

Metro’s work. While the Sabirs expressed frustration with the SAH agent and the VA,

disagreed with their assessment of Metro’s work, and at one point insisted that a new

SAH agent be assigned to their case, they did not include the SAH agent or the VA in this

matter, so the approval of the SAH agent and the disbursement of funds subject to that

approval are not at issue.

{¶8} The contract was to be completed within approximately ninety days of the

deposit of the funds into escrow, but the contract contained no express date upon which

work was to be completed, nor did it state that time was of the essence. While the record

contains a reference to delay in the start of work due to the completion of unidentified

documentation, it is not possible to determine with certainty who was responsible for that

delay. Metro did begin work on the renovations in October. (Trial Transcript, p. 302, lines

9-14).

{¶9} The details of the contract changed significantly when it was discovered that

the municipality would not issue a permit for the changes to the Sabirs’ deck. The Sabir’s

assumed responsibility for obtaining that permit, explained that they intended to pursue

litigation over that issue but did not succeed in obtaining a permit. Metro had completed Fairfield County, Case No. 2022 CA 00022 5

preparation of the porch and the deck, but halted all work when it became clear that no

permit was to be issued to complete the deck. The modifications to the deck and the porch

were removed from the scope of the contract and the price reduced by $14,000.00.

{¶10} The Sabirs requested additions to the contract including a generator, ceiling

fan, smart thermostat, fireplace tile and sump pump repair, but these items were not part

of the SAH grant. Metro completed work regarding some of those items and issued a

separate invoice, but the Sabirs made no payment.

{¶11} Metro began work on the home in October 2018 while the Sabirs were out

of the home. When the Sabirs decided to move back into the home in November 2018

the work was not yet completed and progress was slowed due to their presence. With the

Sabir’s in the home, Metro felt restrained to work only normal business hours and no

earlier or later.

{¶12} The Sabir’s were originally pleased with the work performed by Metro, at

one point concluding a text message with a comment that “* * * overall I am quite pleased

with your work and you.” Exhibit 39, p. 5. The relationship soured later and the comments

were not complementary. One of the last texts offered in Exhibit 39 reflects a comment

from the Sabirs: “Curse you, and your lying mother, may you go out of business very, very

soon! I hope you get nothing but Curse after Curse on you, your lying mother and your

worthless bullshit business!” These comments were in response to a request from Metro:

“VA has proved their unwillingness to help you or us. The court system hasn't been

favorable for you either. You ready to talk and figure this out without our lawyer and VA?

Or should we continue to let this money sit and escrow where neither of us can touch it?

IM(sic) sick of all this red tape with having them involved. Let me know if you'd like to Fairfield County, Case No. 2022 CA 00022 6

come to a decision together so we can move forward in life.” (Exhibit 30, p. 45). The

dispute between the parties was not resolved and the current litigation is the result.

{¶13} The point at which the relationship broke down is not clear from the record.

The Sabirs were frustrated that the project was not completed in the time frame they

anticipated. When they discovered that Metro installed a laminate flooring instead of the

wood that they expected, the relationship between the parties became more adversarial.

Metro considered the project ninety-five to ninety-seven percent complete but they stated

they were unable to complete the project because the Sabirs would not let them enter the

home. Metro claimed that it made several attempts to enter the home or agree to a plan

to finish the work, but they were not permitted access beginning in December 2018. The

Sabirs claim they never prevented Metro from entering the home, but a comment of

Faatimah Sabir regarding access suggests that permission was limited: “They were

welcome to come back during the time that was allotted for them for the contract.” (Trial

Transcript, Volume II, page 315, lines 18-20).

{¶14} The VA attempted to assist with mediation, but that effort was unsuccessful

and Metro claimed that the Sabirs continued to keep them from entering the home and

completing the work.

{¶15} On April 2, 2019, the Sabirs filed a small claims complaint in Franklin

County, seeking to recover hotel expenses and boarding expenses for their pets they

attributed to Metro. (Trial Transcript, page 282, line 20 to page 283, line 3; page 288, line

8; page 314, lines 1-2, 11-12). Once the lawsuit was filed, the VA no longer attempted to

engage in any mediation between the parties. On April 8, 2019 the Sabirs delivered an

email to the VA and Metro explaining that they had lost all confidence in Metro and the Fairfield County, Case No. 2022 CA 00022 7

lack of confidence is why Bilal “has not decided to proceed with choosing any options

presented.” (Exhibit 31).

{¶16} The small claims complaint was dismissed and the dispute between the

parties remained unresolved. Metro contends it offered to discuss a resolution of the

matter with the Sabirs, but claims that their attempts were rejected. Bilal expressed his

anger and frustration in expletive riddled texts he delivered to Metro toward the end of

2019.

{¶17} On July 17, 2020, Metro filed a complaint in the Fairfield County Court of

Common Pleas alleging that Bilal had breached the contract and that the Sabirs had been

unjustly enriched as a result of the labor and materials provided by Metro. The Sabirs

responded by filing an answer and counterclaim alleging Metro breached the contract,

that Metro was negligent and damaged the home and that Metro had been unjustly

enriched as a result of the payment of services that were of no value to the Sabirs. The

Sabirs also filed a third-party action against Esteban Ceron, a member of Metro,

individually, claiming that his negligence was a direct and proximate cause of damages

to the Sabirs. This third-party complaint was withdrawn prior to the trial court deciding the

matter.

{¶18} Prior to trial there was a dispute regarding the Sabirs’ identification of their

expert witnesses and compliance with Civ.R. 26. After submission of motions, the trial

court ordered that the Sabirs provide Metro the curriculum vitae and compensation

schedule of the experts that they intend qualify as an expert witness on or before March

7, 2022 and warned that “failure to do so will result in the court precluding defendants

from soliciting expert testimony from these witnesses.” (Magistrate Order, March 4, 2022). Fairfield County, Case No. 2022 CA 00022 8

On March 7, 2022 the Sabir’s filed a document stating that they were “unable to comply

with the magistrate’s order * * * will proceed with only the expert testimony of Richard

Acree.”

{¶19} The case was presented to the trial court on March 15, 2022 and completed

the following day. On March 23, 2022 the trial court issued a lengthy judgment entry

awarding plaintiff the amount of $28,290.00 and dismissing plaintiff’s second cause of

action regarding unjust enrichment for lack of evidence showing an increase in value of

the Sabirs’ home. The Sabirs’ counterclaim was dismissed. The trial court also ruled that

“[b]ecause the Defendant filed a small claims lawsuit against the sole owner of the Plaintiff

during the execution of the contract, essentially preventing a workable solution being

reached in good faith, this court will award attorney fees to the Plaintiff as well as assess

court costs upon the Defendants.” (Judgment Entry, March 23, 2022, page 4).

{¶20} The parties filed pleadings regarding the attorney fees and, on June 7, 2022

the trial court awarded Metro attorney fees and costs in the amount of $20,548.41.

{¶21} The Sabirs filed a notice of appeal and submitted six assignments of error:

{¶22} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING

FAATIMAH SABIR LIABLE FOR ATTORNEYS FEES AND COURT COSTS.”

{¶23} “II. THE TRIAL COURT ERRED IN FINDING BILAL SABIR "BREACHED

THE WRITTEN CONTRACT BY REFUSING TO ALLOW PLAINTIFF TO COMPLETE

THE CONTRACT FOR CONSTRUCTION SERVICES RENDERED UNDER THE

CONTRACT.” Fairfield County, Case No. 2022 CA 00022 9

{¶24} “III. THE TRIAL COURT ERRED IN DISMISSING DEFENDANT-

APPELLANTS(SIC) FIRST DEFENSE AND COUNTERCLAIM AGAINST METRO

RENOVATIONS 12, LLC.”

{¶25} “IV. THE TRIAL COURT ERRED IN PROHIBITING DEFENDANTS'

EXPERT FROM TENDERING AN OPINION AS TO METRO'S PERCENTAGE OF

COMPLETENESS.”

{¶26} “V. THE TRIAL COURT ERRED IN FINDING DEFENDANT, BILAL SABIR,

ACTED IN BAD FAITH.”

{¶27} “VI. THE TRIAL COURT ERRED IN TAKING IMPROPER JUDICIAL

NOTICE OF EVIDENCE OUTSIDE THE RECORD.”

STANDARD OF REVIEW

{¶28} The issues presented in this appeal implicate different standards of review.

This court reviews de novo issues of law, including the sufficiency of the evidence, See

N. Side Bank & Trust Co. v. Trinity Aviation LLC, 2020-Ohio-1470, 153 N.E.3d 889, ¶ 17

(1st Dist.), but reviews fact finding under a deferential standard of review. In weighing the

evidence, we must presume that the findings of the trier of fact are correct, and if the

evidence is susceptible of more than one construction, as a reviewing court, we must give

it that interpretation that is consistent with the verdict or finding and judgment. Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 21.

{¶29} While the standard of review in a breach of contract action is whether the

trial court erred as a matter of law, the Sabirs’ assignments of error focus on factual

issues. Unifund, CCR, L.L.C. v. Johnson, 8th Dist. Cuyahoga No. 100600, 2014–Ohio– Fairfield County, Case No. 2022 CA 00022 10

4376 ¶ 7, citing Arrow Unif. Rental LP v. Wills, Inc., 6th Dist. Wood No. WD–12–057,

2013–Ohio–1829. To the extent a legal issue is addressed, we must “determine whether

the trial court's order is based on an erroneous standard or a misconstruction of the law.”

Id. At the same time, due deference must be given to the trial court's findings of fact if

supported by competent, credible evidence. State v. Clements, 5th Dist. No. 08 CA 31,

2008–Ohio–5549 ¶ 11.

THE CONTRACT

{¶30} The contract between Bilal Sabir and Metro warrants examination prior to

beginning our analysis as it differs significantly from the more common construction

contract. The renovations to be completed under the contract were funded by a grant

from the Department of Veteran’s Affairs. In exchange for the grant, Bilal empowered the

VA to inspect and approve the work that was completed as well as certify that Metro’s

work complied with the applicable Minimum Property Requirements (MPR), the Special

Adaptive Housing Requirements and the plan that had been approved by the VA. While

the contract explicitly states that the VA is not a party to the contract, it possessed

authority to conclude that the work performed by Metro satisfied the requirements of the

contract and to pay for that work. We find this significant because the Sabirs are

contradicting the findings of the VA and claiming the work did not fulfill the terms of the

contract and violated the MPR’s, raising the question of whether the VA should have been

included as a party to this action.

{¶31} The contract between Bilal Sabir and Metro was subject to the requirements

established by the VA, the most relevant of which to this matter is that the funds be held

in escrow subject to the completion of the process for the release of those funds to the Fairfield County, Case No. 2022 CA 00022 11

contractor. VA Manual 26-12, captioned Specially Adapted Housing Grant Processing

Procedures Loan Guaranty Operations for Regional Offices (Manual) (Exhibit 18)

contains an explanation of the regulations controlling the use and application of SAH grant

funds. The Manual provides a clear requirement that the grant monies be deposited by

the veteran, in this case Bilal, into an escrow account where they are to be held pending

authorization of their release. (Manual, p. 8-2). Paragraph VIII of the contract provides

that “Payment will be in accordance with VA procedures and in accordance with the

disbursement schedule agreed to by the contractor and VA. It is understood that no

payment will be made "up-front", and that there will be a holdback of 20% after the job is

complete subject to final approval by VA and the veteran.” (Exhibit 1, p. 3).

{¶32} Funds held in escrow are to be disbursed only after fulfilling the

requirements of the Manual. At appropriate stage of the project, a Compliance Inspector

(CI) who has been assigned to the project completes an inspection to ensure that the

work completed by the contractor fulfills the term of the contract.

{¶33} The purpose of a compliance inspection is to verify compliance of individual

construction phases, or turn-key construction, for all Specially Adapted Housing (SAH)

and Special Housing Adaptation (SHA) grant projects in which grant funds are being

disbursed to a builder. The compliance inspection is used to certify that the property has

been constructed in accordance with Department of Veterans Affairs (VA) approved plans

and specifications, including SAH minimum property requirements (MPs) and

recommended adaptations (RAs).

{¶34} VA can authorize the release of grant funds to the builder only after: Fairfield County, Case No. 2022 CA 00022 12

• A compliance inspection has been completed by a VA-assigned

compliance inspector (CI).

• A VA Form 26-1839, Compliance Inspection Report (CIR), indicating

"no evidence of noncompliance observed" is received.

• The CIR has been reviewed and approved by the SAH Agent.

Manual, page 7-2.

{¶35} The parties acknowledge the authority of the VA to conduct the compliance

inspections: “We, the undersigned, do hereby acknowledge and agree to periodic

inspections and final approval by a VA compliance inspector and/or SAH agent of the

above reference construction to assure that the construction conforms to the contract,

plans and/or specifications submitted to and approved by the VA” and that payment will

be made in accordance with VA procedures.” (Exhibit 18, page 3).

{¶36} Upon the CI’s report of compliance, the escrow agent is authorized to issue

payment to the contractor. As noted in the Escrow Agreement signed by Bilal, “The

Veteran agrees that for the purpose of this Agreement the VA Representative is

authorized to consent on his/her behalf to disbursements of escrowed funds by the

Escrowee to such payees, in such amounts and at such times as the VA Representative

considers proper to fulfill the purposes and conditions of this Agreement.” The Manual

does provide that a signed letter of satisfaction from the Veteran is needed prior to the

release of the final 20% of the contract amount, but this contract stalled prior to the final

compliance inspection, and no Final Field Review was completed, so those provisions

are not applicable. (Manual, p. 5-26, 7-10, 8-9, 8-11, 10-2). Fairfield County, Case No. 2022 CA 00022 13

{¶37} The record in this case contains evidence demonstrating that two

disbursements were made by the VA to Metro, consequently the trial court had before it

evidence to support a conclusion that the VA completed at least two compliance

inspections and found that Metro had completed construction “in accordance with

Department of Veterans Affairs (VA) approved plans and specifications, including SAH

minimum property requirements (MPRs) and recommended adaptations (RAs).”

{¶38} We review the Sabirs assignments of error in the context of this unique

contractual arrangement.

ANALYSIS

{¶39} As a preliminary matter, we will address the first assignment of error

regarding the award of attorney fees and costs against Faatimah Sabir with the fifth

assignment of error addressing the finding of bad faith on the part of Bilal Sabir as it is

the more logical place for that assignment.

II.

{¶40} In their second assignment of error, the Sabirs argue that the trial court

erred in finding that Bilal breached the written contract by refusing to allow Metro to

complete the contract. The Sabirs offer citations to parts of the record reflecting

correspondence regarding their request to have Metro complete parts of the project or

make corrections, but it is evident that most of these exchanges occurred in the early part

of December 2018. Metro offered testimony that supports a conclusion that it was

excluded from the home “somewhere between December and January” or after much of

the correspondence the Sabirs describe in their brief. (Trial Transcript, Vol. I, p. 129).

Metro claims that it did send working crews to the home and that the Sabirs did not permit Fairfield County, Case No. 2022 CA 00022 14

them to enter. This rejection is confirmed in the email, delivered January 24, 2019 and

admitted as Exhibit 27 where a representative from the VA states:

* * I believe it will take some cooperation. It will also take your cooperation

for Metro to be able to correct any defects that may exist in the work already

completed.

It seems that Metro is willing to attempt to address your concerns,

but you must be willing to let them. In addressing any issues, Metro only

must comply with the signed contract. No party of that contract is bound to

any new terms, conditions, and/or materials that have not been agreed to

by all parties and then formally adopted as a part of the contract.

We all want resolution and we all want your satisfaction with the

completed work. The work and materials are clearly defined in your

husband's contract with Metro. The builder needs to be able to resume work

to finish the project in accordance with the contract.

{¶41} Both witnesses who testified on behalf of Metro confirmed that they

attempted to return to the site to complete the work and correct errors, but were not

permitted access. (Trial Transcript, p. 59, lines 8-15; p. 131, line 7 to p. 132, p. 2). In

response to a question regarding Metro being locked out of the premises, Faatimah

responded in a manner that suggests that Metro’s access was limited by Faatimah’s belief

that the contract was subject to a fixed date of completion:

You're insisting that you did not lock Plaintiff off your property; that

they were always welcome to come back. Right? Was that your testimony? Fairfield County, Case No. 2022 CA 00022 15

They were welcome to come back during the time that was allotted

for them for the contract.

Trial Transcript, p. 315, lines 14-10.

{¶42} This court relies on the trial court to resolve disputed issues of fact and

weigh the testimony and credibility of the witnesses. Bechtol v. Bechtol, 49 Ohio St.3d 21,

23, 550 N.E.2d 178 (1990). We defer to the trial court's discretion because the trial court

had the opportunity to observe the witnesses and parties in weighing the credibility of the

proffered testimony in a way a reviewing court cannot. The Sabirs sole issue in this

assignment of error questions the factual finding of the trial court regarding whether the

Sabirs prevented Metro from completing the contract. The parties provided contradicting

evidence regarding whether Metro was permitted to enter the home to complete the

contract and the resolution of that issue required the trial court to resolve the dispute

based upon the weight of the testimony and the credibility of the witnesses. We find that

the trial court’s decision is supported by competent, credible evidence and that the trial

court did not abuse its discretion in finding that the Sabir’s prevented Metro from entering

the home and completing the contract.

{¶43} The second assignment of error is denied.

III.

{¶44} In their third assignment of error, the Sabirs contend that the “trial court

erred in dismissing Defendant-Appellants first defense and counterclaim against Metro

Renovations 12, LLC.” The Sabirs argue that Metro failed to meet the contractual Fairfield County, Case No. 2022 CA 00022 16

completion date, failed to complete the work in a workmanlike manner and fulfill the

minimum property requirements and erred in addressing damages.

COMPLETION DATE

{¶45} The contract contains a section captioned VII. COMMENCEMENT AND

COMPLETION SCHEDULE that includes the following:

The work specified above shall be started on or about: Within two

weeks of the grant check being placed in the escrow account.

Completed on or about: within ninety days of the start date.

{¶46} The Sabirs contend “the contract includes a date of completion” (Appellant’s

Brief, page 15) but no such date appears in the contract. As noted above there is a

commencement and completion schedule which gives general instructions when the work

is to begin and when it should be completed but no specific date for commencement or

completion. The description of the commencement and completion as being “on or about”

an unspecified date further undermines the Sabirs’ contention that the contract was

subject to a specific completion date.

{¶47} The contract provides work was to begin on or about “within two weeks of

the grant check being placed in the escrow account.” The Escrow Agreement, Exhibit 40,

was signed by Bilal on October 16, 2018, and the terms of that Agreement provide that

Bilal was to deposit the check on the day it was executed. Metro was to begin work no

later than October 30 and, though the first date of work is not recorded in an exhibit, Metro

filed a Partial Unconditional Waiver of Lien dated October 29, 2018 for labor and materials Fairfield County, Case No. 2022 CA 00022 17

provided prior to that date. (Exhibit 40, p. 5) Further, Sabir admitted in a response to a

written interrogatory that the work began on October 17. (Trial Transcript, p. 302, lines 9-

14). The record supports a conclusion that Metro began work in a timely manner.

{¶48} We have concluded that the Sabir’s prevented Metro from entering the

home and completing the work that remained unfinished in our resolution of the second

assignment of error. That finding plays an important role in the resolution of this

assignment of error as well. The delay caused by the Sabirs refusing access as well as

any delay that may be attributable to the dispute over the permit for the deck, the vendor’s

delay in delivering appliances and the need to work around the Sabirs when they returned

to the home played a role in Metro’s inability to complete the project within ninety days of

the start date. We cannot find that the trial court erred by not finding that Metro breached

the contract by not completing the work in a timely manner.

{¶49} If, arguendo, we disregard the delays outside the control of Metro, we must

determine whether the date of completion was a material term of the contract. Ohio cases

have held broadly that time of performance is not of the essence of a contract unless

made so by its terms or by the acts of the parties. Hubbard v. Norton, (1875) 28 Ohio St.

116, para. 4 of the syllabus. Adams v. Walton, 5th Dist. Morrow No. 601, 1983 WL 5069,

*3; Accord Brown v. Brown, 90 Ohio App.3d 781, 784, 630 N.E.2d 763, 765 (11th

Dist.1993), cause dismissed, 68 Ohio St.3d 1441, 626 N.E.2d 124 (1994) We have

searched the contract to determine whether “the contract expressly provided that the time

for completing the project was ‘of the essence’ and that the project had to be substantially

completed within [90] days of the date of the commencement of the project.” Boone

Coleman Constr., Inc. v. Piketon, 145 Ohio St.3d 450, 2016-Ohio-628, 50 N.E.3d 502, Fairfield County, Case No. 2022 CA 00022 18

¶ 3. The contract contains only the general description of the start date and completion

date and no express completion date nor anything from which a reasonable person could

imply that the parties had agreed that time was of the essence.

{¶50} The parties did not make the time of completion an essential element of the

contract and the trial court did not err in failing to find that Metro breached the contract by

failing to complete the project in a timely manner.

WORKMANLIKE MANNER AND MINIMUM PROPERTY REQUIREMENTS

{¶51} Sabir urges us to find that Metro failed to complete the project in a

workmanlike manner and did not satisfy the Minimum Property Requirements as required

by the Manual. Minimum Property Requirements “are absolute conditions specified under

governing law for the Specially Adapted Housing (SAH) grant.” (Manual, Appendix A, p.

A-2). The parties agreed and the Manual requires that the VA Representative complete

an inspection and find that the work complies with the plans and the MPR before funds

are issued. The parties also agreed that payment would be issued upon the approval of

the work by the VA. The VA issued two payments, one in the amount of $10,000.00 and

one in the amount of $28,000.00 comprising the first two disbursements described in the

Escrow Agreement. This information supports a conclusion that the VA found that Metro

satisfied the terms of the contract and fulfilled the applicable MPRs.

{¶52} The Sabirs did present the testimony of an expert who concluded that Metro

failed to satisfy the MPRs, contradicting the implication to be drawn from the payment

made by the VA. The trial court was required to weigh the evidence and testimony

regarding compliance with the MPRs and the contract and we find that there was Fairfield County, Case No. 2022 CA 00022 19

sufficient, credible evidence to support a finding that Metro received approval of its work

from the VA and, therefore, it satisfied the terms of the contract and the MPRs applicable

to the stage of the project that had been completed.

{¶53} The Sabirs’ expert, Richard Acree, completed a “limited accessibility

survey” of the home and concluded that some elements were installed in error or omitted

by Metro or exhibit poor workmanship. Acree submitted an extensive report containing a

long list of criticisms and recommendations, but no comment regarding the approval

received from the VA. Acree reviewed the projects as if the work had been completed,

but Metro had been prevented from completing the project and the VA never had the

opportunity to complete the final inspection, during which Bilal would have had the

opportunity to reject Metro’s work and insist on changes or withhold distribution of the

final 20% of the contract amount.

{¶54} Also, Acree offers no information regarding whether the recommendations

in his report could be completed with the grant money available.

{¶55} We find that the record supports the trial court’s decision to give little weight

to the report and that the trial court did not err by failing to find that Metro violated Minimum

Property Requirements or that the work was not completed in a workmanlike manner.

DAMAGES

{¶56} The Sabirs contend that the trial court miscalculated damages, relying on a

comment in an email from a VA Representative: “In reviewing the disbursement schedule,

it seems that the builder is reasonably owed $12,000 to $15,000 based on stage 4 and

taking into consideration a portion of the 20% holdback.” (Exhibit 34, page 3). This Fairfield County, Case No. 2022 CA 00022 20

comment was made in the context of attempting to come to a compromise and does not

appear to be offered as a firm figure. Further, that same email mentions that “[t]here is

also some off contract work between the Sabirs and Metro Renovation that we have been

made aware of for ceiling fans, the thermostat, the fireplace, and the sump pump. VA will

not enforce any payment or agreement for that work that wasn't in the signed contract.

The two parties can negotiate that separately without VA involvement. The builder could

also use that additional work in lien proceedings.”

{¶57} The amount that the “builder is reasonably owed” as described in this email

was a factor that the trial court could consider, but was not a binding amount, does not

appear to be calculated with accuracy and can interpreted as part of an effort to get the

builder “out from under this” as quickly as possible. (Exhibit 34, page 1).

{¶58} The Sabirs also complain that the trial court did not permit Faatimah to

testify regarding damages and that it required expert testimony to establish damages. As

we have concluded that the trial court did not err is dismissing the counterclaim, this issue

is moot. However, even if we would consider the merits, our conclusion would not change.

{¶59} Expert testimony is not always required to establish the necessity of repairs

or the reasonableness of the costs incurred to repair such” McCoy v. Good, 2d Dist.

No. 06–CA–34, 2007-Ohio-327, 2007 WL 196551, ¶ 21 as quoted in Evans Landscaping,

Inc. v. Stenger, 1st Dist. No. C-110104, 2011-Ohio-6033, 969 N.E.2d 1264, ¶ 24, and lay

persons can, in proper circumstances, testify regarding damages to property. In this case,

Faatimah did not offer her own estimate of the damages, but only a comment regarding

the conclusion of an expert who would not testify, so the trial court properly excluded it

from the record. (Trial Transcript, p. 346). No other testimony from Faatimah or Bilal Fairfield County, Case No. 2022 CA 00022 21

regarding damages was proffered, so we find that the trial court did not err in its handling

of damages.

{¶60} The third assignment of error is denied.

IV.

{¶61} In their fourth assignment of error, the Sabirs claim the trial court erred in

prohibiting their expert from tendering an opinion as to Metro’s percentage of

completeness.

{¶62} Richard Acree, the Sabirs’ expert, was asked whether he felt he was

competent to discuss the degree of completion and he stated “In most cases, yes” but he

conceded that he had never been asked “to do this type of thing before.” (Trial Transcript,

p. 607, lines 1-12). Thereafter the parties engaged in a lengthy discussion regarding the

propriety of the testimony, initiated by the trial court’s comment that “This is too – it’s too

dangerous of a ground to pursue.” (Trial Transcript, p. 609, lines 2-3). Metro’s counsel

objected:

MR. FRUTH: Your Honor, the problem here is that we're trying to stretch

the witness beyond what he was disclosed to do.

THE COURT: I agree.

MR. FRUTH: And the reason we're trying to stretch the witness beyond what

he was disclosed to do is because the other experts that would have

competently addressed this issue were barred. So we're trying to make him

do too much. Fairfield County, Case No. 2022 CA 00022 22

(Trial Transcript, p. 615, lines 7-17).

{¶63} Ultimately the trial court decided the testimony would not be allowed. (Trial

Transcript, p. 615, lines 18-19). Sabirs counsel responded “Okay” continued the

questioning of Acree and did not proffer the excluded testimony nor any evidence that

would establish Acree’s qualifications to provide an opinion regarding the percentage of

completion.

{¶64} “When the court's ruling is one excluding evidence, a party must proffer the

evidence at trial to preserve the issue for appeal.” State v. Smith, 9th Dist. Wayne

No. 15AP0001, 2017-Ohio-359, ¶ 19 as quoted in State v. Freed, 5th Dist. Fairfield

No. 2019 CA 00018, 2020-Ohio-655, ¶ 28. The record in this case shows that the Sabirs

were asking Acree to offer an opinion that he had not offered in any other case and which

violated the court’s requirements regarding disclosure of witnesses. Without a proffer

explaining the qualifications of the witness and the evidence to be offered, we cannot

consider this assignment of error.

{¶65} The fourth assignment of error is denied.

I., V.

{¶66} We will consider the first and the fifth assignment of error collectively as

they are closely related. In the first assignment of error, the Sabirs claim that the trial court

erred as a matter of law in holding Faatimah Sabir liable for attorney fees and court costs

and in the fifth assignment of error they claim the trial court erred in finding Defendant,

Bilal Sabir, acted in bad faith, presumably in an attempt to undermine the basis for an

award of attorney fees against him. Fairfield County, Case No. 2022 CA 00022 23

I.

{¶67} When considering an award of attorney fees, Ohio follows the “American

Rule,” under which a prevailing party in a civil action may not generally recover attorney

fees. Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396,

¶ 7. However, attorney fees may be awarded when a statute or an enforceable contract

specifically provides for an award of attorney fees, or when the prevailing party

demonstrates the losing party acted in bad faith. Id. McHenry v. McHenry, 5th Dist.

No. 2016CA00158, 2017-Ohio-1534, 88 N.E.3d 1222, ¶ 54. The Sabirs contend that

Metro is not the prevailing party in relation to Faatimah as its only claim against her, unjust

enrichment, was dismissed by the trial court “because there is no evidence in the record

any(sic) appraisal that would indicate how much value the Defendants' home has

increased because of the renovation work.” (Judgment Entry, March 23, 2022, p. 4).

Metro implicitly concedes this point, but argues that the trial court reinstated Plaintiff’s

claim for unjust enrichment against Faatimah Sabir or, in the alternative, that the trial court

held she was a third-party beneficiary.

{¶68} A prevailing party is generally the party “ ‘in whose favor the decision or

verdict is rendered and judgment entered.’ ” Hagemeyer v. Sadowski (1993), 86 Ohio

App.3d 563, 566, 621 N.E.2d 707, quoting Yetzer v. Henderson, 5th Dist. No. CA–1967,

1981 WL 6293 *2 (June 4, 1981). See also Falther v. Toney, 5th Dist. No. 05 CA 32,

2005-Ohio-5954, 2005 WL 2995161. We find that with regard to the claim of unjust

enrichment against Faatimah, Metro was not the prevailing party.

{¶69} The trial court dismissed Metro’s unjust enrichment claim against Faatimah

and we decline Metro’s invitation to interpret the trial court’s June 7, 2022 Judgment Entry Fairfield County, Case No. 2022 CA 00022 24

Regarding Fees and Costs as a reinstatement of that claim. The Entry contains no

reference to the unjust enrichment claim and contains no information that can be

interpreted as reversing trial court’s March finding that Metro provided no evidence “that

would indicate how much value the Defendants' home has increased because of the

renovation work.”

{¶70} Alternatively, Metro contends that Faatimah was found to be a third-party

beneficiary when the trial court stated: “Despite the fact that Defendant Faatimah Sabir

would sometimes act as her husband's veteran representative during the creation and,

execution of the contract, both Faatimah Sabir and her husband would personally benefit

from the improvements of the residence under the renovation contract.” (Judgment Entry,

June 7, 2022, p. 3).

{¶71} The trial court does not state that it is finding that Faatimah is a third-party

beneficiary and we will not construe the entry to support such a conclusion. “Ohio law * *

* requires that for a third party to be an intended beneficiary under a contract, there must

be evidence that the contract was intended to directly benefit that third party.” Huff v.

FirstEnergy Corp., 130 Ohio St.3d 196, 2011-Ohio-5083, 957 N.E.2d 3, ¶ 12. The

Supreme Court of Ohio adopted the “intent to benefit” test to measure the rights and

responsibilities of a third-party beneficiary and found that if Metro had intended that

Faatimah should benefit from the contract she could be an intended beneficiary with rights

under the contract but if Metro had no intent to benefit her, then she was an incidental

beneficiary who has no enforceable rights under the contract. The court also noted that

“the mere conferring of some benefit on the supposed beneficiary by the performance of

a particular promise in a contract [is] insufficient; rather, the performance of that promise Fairfield County, Case No. 2022 CA 00022 25

must also satisfy a duty owed by the promisee to the beneficiary.” Hill v. Sonitrol of

Southwestern Ohio, Inc., 36 Ohio St.3d 36, 40, 521 N.E.2d 780, 784–85 (1988) quoting

Norfolk & Western Co. v. United States (C.A.6, 1980), 641 F.2d 1201, 1208.

{¶72} The trial court’s finding that Faatimah would personally benefit from the

improvements is, at most, a finding that she is an incidental beneficiary and not a third-

party beneficiary to the contract against whom Metro was the prevailing party.

{¶73} Because Metro is not a prevailing party with regard to Faatimah, the trial

court was not authorized to order her to pay attorney fees. The Sabirs’ first assignment

of error is sustained.

V.

{¶74} In their fifth assignment of error, the Sabirs contend that the trial court erred

in finding that Bilal acted in bad faith.

{¶75} In the March 2022 Entry, the trial court stated: “Because the Defendant filed

a small claims lawsuit against the sole owner of the Plaintiff during the execution of the

contract, essentially preventing a workable solution being reached in good faith, this Court

will award attorney fees to the Plaintiff as well as assess court costs upon the Defendants.

The Plaintiff shall submit an attorney fee affidavit no later than April 7, 2022. A non-oral

hearing shall take place on April 27, 2022 at 11 a.m.” (Judgment Entry, March 23, 2022,

p. 4). After the parties filed pleadings regarding their respective positions, the trial court

awarded attorney fees to Metro after considering “all of the actions taken by Defendants

during the execution of the contract” the trial court found “that the Defendants acted in

bad faith, wantonly and/or obdurately.” (Judgment Entry Regarding Attorney Fees And

Costs, June 7, 2022, p. 1). Fairfield County, Case No. 2022 CA 00022 26

{¶76} Attorney fees are not ordinarily recoverable but may be awarded where it is

demonstrated that an action is defended in bad faith, namely, continuing litigation that is

obdurate, vexatious, wanton, or engaged in for oppressive reasons. Sorin v. Bd. of Edn.

(1976), 46 Ohio St.2d 177 as quoted in State ex rel. Esselburne v. Maurer, 10th Dist.

Franklin No. 89AP-953, 1991 WL 94443, *2. See also State ex rel. Butterbaugh v. Ross

Cty. Bd. of Commrs., 79 Ohio App.3d 826, 837, 608 N.E.2d 778, 785 (4th Dist.1992)

Though not specifically labeled as such, we find the trial court essentially found and the

evidence supported, that the Sabirs acted obdurately; therefore, attorney fees incurred to

enforce Metro’s contractual rights were recoverable for Sabirs’ breach of the contract.

{¶77} Webster's dictionary defines “obdurately” as stubbornly persistent in

wrongdoing; hardened in feeling; resistant to persuasion. Stambaugh v. T.C. Wood

Realty, Inc., 5th Dist. Morrow No. 09 CA 00008, 2010-Ohio-3763, fn. 3 and the trial court

cites to instances of such obdurate behavior. Both Sabirs insisted they were entitled to

wood flooring despite the contract clearly reflecting that they had chosen a laminate

flooring. They argued that the contract had been altered to allow Metro to install

appliances they had not chosen, but the evidence reflected that the correct appliances

where installed. The trial court found, and we have found that the record supports the

conclusion that the Sabirs prevented Metro from finishing the contract and filed a small

claims suit that was unsuccessful on its merits, but did serve to prevent resolution of the

dispute.

{¶78} Both Bilal and Faatimah complained that Metro’s work failed to fulfill

applicable MPR’s and SAH standards and provided expert testimony to support that

contention. Neither the Sabirs nor their expert addressed the fact that the VA was the Fairfield County, Case No. 2022 CA 00022 27

sole arbiter of the quality of the work prior to the last disbursement and that the record

shows that the VA had concluded that the work satisfied the SAH standards and MPR’s.

The same expert criticized Metro’s exterior work when the parties had agreed that it was

no longer part of the contract and Metro would receive no payment for any work involved

in the demolition they had completed on that part of the project. Metro fulfilled its duties

under the contract and the Sabirs expert’s opinion “truly didn’t matter” and only served to

increase Metro’s litigation expenses. (Judgment Entry March 23, 2022, p. 3).

{¶79} After a review of the record we find that the trial court did not abuse its

discretion when it concluded that Bilal “acted in bad faith, wantonly and/or obdurately.”

{¶80} The fifth assignment of error is denied.

VI.

{¶81} In their sixth assignment of error, the Sabirs assert that the trial court erred

in taking improper judicial notice of evidence outside the record. The Sabirs contend that

because the second filing date is included within the trial court’s June 7, 2022 entry, “it

appears the trial court may have independently obtained information regarding the

second filing and incorporated such information into its Judgment.” (Appellants’ Brief, p.

27).

{¶82} The record contains information regarding the small claims lawsuit filed by

the Sabirs on April 2 that was dismissed and refiled in Fairfield County to recover money

for the Sabirs’ hotel stay and boarding their dog. (Trial Transcript, p. 283, line 10 to p.

284, line 2; p. 313, line 19, to p. 314, line 15). The Sabirs threatened to file a lawsuit and

did file against the owner, Gloria Urrea. Both claims were dismissed. One case was

dismissed for “the wrong court,” and one for suing the owner instead of the Metro. (Trial Fairfield County, Case No. 2022 CA 00022 28

Transcript, p. 144, lines 22-24). The Sabirs notified the VA of the lawsuit and knew that

the VA would “shut down” not “help anybody” and “everything is held up in escrow.” (Trial

Transcript, p. 315, lines 1-12).

{¶83} The trial court’s findings regarding the lawsuit are supported by the record.

In the March Entry, the trial court found that “defendant had filed a small claims lawsuit

against the owner of the plaintiff’s business on April 2, 2019 in the wrong jurisdiction and

refiled days later in the proper jurisdiction.” The trial court concluded “because the

defendant filed a small claims lawsuit against the sole owner of the plaintiff during the

execution of the contract, essentially preventing a workable solution being reached in

good faith, this court will award attorney fees to the plaintiff as well as assess court costs

upon the defendants.” The June entry provides little additional information as the court

found “that during the execution of the contract the defendants veteran representative

(the defendant’s wife) filed a small claims lawsuit against the owner of plaintiff

reimbursement of hotel expenses and dog boarding. This lawsuit was first filed in the

wrong jurisdiction (Franklin County) on April 2, 2019. The small claims action was then

refiled by the veteran representative in Fairfield County on June 11, 2019, before it was

dismissed.”

{¶84} The only fact contained within the judgment entries that is not found within

the record is the date of June 11, 2019. The Sabirs attach unwarranted significance to

this date and claimed that it is evidence that the trial court “may have independently

obtained information regarding the second filing and incorporated such information into

its judgment.” (Appellant’s Brief, p. 27). After reviewing the record, we find that the trial

court’s findings are supported by the evidence in the record and that the date of June 11, Fairfield County, Case No. 2022 CA 00022 29

2019 is inconsequential. Even if the trial court had committed an error by including this

date, the error is not materially prejudicial to the Sabirs as we find that the absence of this

error would not have changed the outcome of the proceedings. Fada v. Information Sys.

& Networks Corp. (1994), 98 Ohio App.3d 785, 649 N.E.2d 904 as quoted in Nilavar v.

Osborn, 137 Ohio App.3d 469, 500, 738 N.E.2d 1271, 1293 (2nd Dist.2000).

{¶85} The sixth assignment of error is overruled. Fairfield County, Case No. 2022 CA 00022 30

{¶86} The decision of the Fairfield County Court of Common Pleas is reversed to

the extent that it ordered Faatimah Sabir to pay attorney fees. The balance of the

judgment is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, John, J. concur.