Muransky v. Miller

2020 Ohio 4595

• Court: Ohio Court of Appeals
• Decided: September 25, 2020
• Docket: 28622
• Status: Published

Opinion

[Cite as Muransky v. Miller, 2020-Ohio-4595.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

TROY P. MURANSKY : : Plaintiff-Appellant : Appellate Case No. 28622 : v. : Trial Court Case No. 2016-CV-380 : MICHAEL A. MILLER, et al. : (Civil Appeal from : Common Pleas Court) Defendants-Appellees : :

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OPINION

Rendered on the 25th day of September, 2020.

DWIGHT D. BRANNON, Atty. Reg. No. 0021657, KEVIN A. BOWMAN, Atty. Reg. No. 0068223 and MATTHEW C. SCHULTZ, Atty. Reg. No. 0080142, 130 West Second Street, Suite 900, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellant

RONALD J. KOZAR, Atty. Reg. No. 0041903, 40 North Main Street, Suite 2830, Dayton, Ohio 45423 Attorney for Defendants-Appellees

.............

WELBAUM, J. -2-

{¶ 1} Plaintiff-appellant, Troy P. Muransky, appeals from a judgment of the

Montgomery County Court of Common Pleas that ruled in favor of defendant-appellees,

Michael A. Miller and Milzy Motorsports, LLC (“Milzy”), on the parties’ competing motions

to enforce their settlement agreement. Muransky claims that the trial court erred in

finding that Miller and Milzy performed their duties under the settlement agreement. For

the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} In 2009, Muransky purchased a 1998 Oldsmobile Cutlass (“the vehicle”) for

the purpose of creating a custom race/show car. In October 2009, Muransky contacted

Miller, the sole owner of Milzy, to discuss the possibility of enhancing the vehicle’s

performance by swapping in a larger, customized engine and installing twin turbo

chargers. After talking and negotiating for some time, in 2010, the parties reached an

agreement regarding the work that Miller was to perform on the vehicle. Miller provided

a final quote of $35,000 for the necessary parts and labor, which Muransky allegedly paid.

Miller thereafter worked on the vehicle on and off between 2010 and 2016.

{¶ 3} After a series of delays, alleged false promises, and miscommunications, the

parties’ business relationship became strained. As a result, on January 22, 2016,

Muransky filed a complaint against Miller and Milzy alleging breach of contract, violations

of the Consumer Sales Practices Act, negligence, and fraud/misrepresentation. Miller

and Milzy responded by filing an answer to Muransky’s complaint and a counterclaim

alleging tortious interference with a contractual relationship.

{¶ 4} On July 6, 2016, the parties participated in a mediation and thereafter notified -3-

the trial court that the case had been settled. Approximately one month after the

mediation, the parties signed a formal settlement agreement. Pursuant to the settlement

agreement, Muransky was to deliver his vehicle to Milzy’s business premises and, within

six months of the delivery, Milzy was required to “complete fabrication and installation of

all items of work previously agreed upon, as described in the document entitled ‘1998

Oldsmobile Cutlass Drivetrain Build-Engine Swap, Manual Trans, Twin Turbo.’ ”

Plaintiff’s Exhibit 2; Defendant’s Exhibit F, p. 1. Throughout the case the parties referred

to this document as the “buildsheet.”

{¶ 5} The settlement agreement further required Milzy to provide the agreed-upon

goods and services “in a good and workmanlike manner, such that the vehicle is fully

functional upon completion of the work.” Id. In the event that Milzy did not provide the

agreed-upon goods and services in a timely manner, the settlement agreement provided

that Muransky would be “immediately entitled to enforce judgment against Defendant

Milzy Motorsports, LLC in the amount of $45,000.” Id. However, if Milzy did provide

the agreed-upon goods and services in a timely manner, the parties agreed to file a

mutual dismissal of the case.

{¶ 6} To effectuate the judgment portion of their agreement, the parties attached

two signed judgment entries to the settlement agreement. One of the entries was a

stipulated judgment entry awarding Muransky $45,000 to be filed if Milzy did not comply

with the settlement agreement. The other judgment entry was a mutual dismissal of the

case with prejudice to be filed if all terms of the settlement agreement were satisfied.

{¶ 7} The parties do not dispute that after the settlement agreement was

memorialized, Muransky delivered the vehicle to Milzy’s on November 14, 2016, and that -4-

all work was to be completed by May 14, 2017. There is also no dispute that the parties

later signed a written agreement extending the deadline by 30 days to June 14, 2017.

According to Muransky, no further extensions were ever provided. Miller, however,

claimed that Muransky granted additional extensions of time for the work to be completed.

There is no dispute that Miller returned the vehicle on October 6, 2017, by shipping it to

a location designated by Muransky—a body shop in Monroe, Michigan, called Line-X.

{¶ 8} On April 20, 2018, six months after Miller returned the vehicle, Muransky filed

the stipulated judgment entry awarding him $45,000 for Miller and Milzy’s alleged breach

of the settlement agreement. In response, Miller and Milzy filed a Civ.R. 60(B) motion

for relief from judgment. The trial court thereafter vacated the stipulated judgment on

December 18, 2018.

{¶ 9} After vacating the stipulated judgment entry, on January 7, 2019, the trial

court granted Miller and Milzy leave to file a supplemental counterclaim alleging that

Muransky breached the settlement agreement by not filing the mutual dismissal.

Muransky thereafter sought leave to file a supplemental complaint to allege that Miller

and Milzy breached the settlement agreement by failing to perform the agreed-upon work

in a timely and workmanlike manner. Following a June 27, 2019 conference, the trial

court vacated its order granting Miller and Milzy leave to file a supplemental counterclaim

and denied Muransky leave to file a supplemental complaint. In doing so, the trial court

explained that by entering the settlement agreement, the parties had agreed to dismiss

the claims that they had originally filed and were now essentially moving the court to

enforce the settlement agreement in their favor. Thus, the trial court construed the

parties’ claims as competing motions to enforce the settlement agreement. -5-

{¶ 10} Because the trial court found that there was an issue of fact as to whether

the settlement agreement had been breached by either party, it scheduled the matter for

an evidentiary hearing, which took place on September 24 and 25, 2019. Following the

hearing, the trial court found that the terms of the settlement agreement did not require

Miller, as an individual, to do anything. The trial court also found that Milzy did not

breach the terms of the settlement agreement and that the stipulated judgment should

not have been filed by Muransky. More specifically, the trial court found that Muransky

waived any right to claim that his vehicle was untimely delivered because he acquiesced

to additional delays following the parties’ 30-day written extension. The trial court further

found that Milzy substantially completed the work contemplated by the settlement

agreement and that Muransky failed to establish that his vehicle sustained any damage

while in Milzy’s possession. As a result of these findings, the trial court entered judgment

in favor of Miller and Milzy and ordered court costs to be divided equally between the

parties.

{¶ 11} Muransky now appeals from the trial court’s judgment, raising a single

assignment of error for review.

Assignment of Error

{¶ 12} Under his assignment of error, Muransky contends that the trial court erred

in failing to enforce the settlement agreement in his favor. According to Muransky, the

testimony and evidence presented at the evidentiary hearing did not support finding that

Miller and Milzy performed their duties under the settlement agreement. Specifically,

Muransky claims the following three findings made by the trial court were not supported -6-

by the evidence:

(1) Muransky waived any right to claim that his vehicle was untimely

delivered by acquiescing to further delays after the 30-day written

extension;

(2) Miller and Milzy substantially completed the work contemplated by the

settlement agreement; and

(3) Muransky failed to establish that his vehicle sustained damaged while in

Miller and Milzy's possession.

Standard of Review

{¶ 13} The standard of review applicable to a ruling on a motion to enforce a

settlement agreement depends on the issue presented. Al-Zubi v. Cosmetic & Implant

Dental Ctr. of Cincinnati, Inc., 1st Dist. Hamilton No. C-190406, 2020-Ohio-3272, ¶ 7;

Wynn v. Waynesburg Rd. LLC, 7th Dist. Carroll No. 17 CA 0921, 2018-Ohio-3858, ¶ 16;

Turoczy Bonding Co. v. Mitchell, 2018-Ohio-3173, 118 N.E.3d 439, ¶ 15 (8th Dist.).

When the issue presented is a question of contract law, appellate courts “must determine

whether the trial court’s order is based on an erroneous standard or a misconstruction of

the law” and the standard of review is “whether the trial court erred as a matter of law” in

ruling on the motion. Continental W. Condominium Unit Owners Assn. v. Howard E.

Ferguson, Inc., 74 Ohio St.3d 501, 502, 660 N.E.2d 431 (1996). Accord Montei v.

Montei, 2d Dist. Clark No. 2013 CA 24, 2013-Ohio-5343, ¶ 23. However, “[i]f the

question is a factual or evidentiary one, the appellate court will not overturn the trial court’s

finding if there was sufficient evidence to support the finding.” Al-Zubi at ¶ 7; Wynn at -7-

¶ 16; Turoczy at ¶ 15. “ ‘[I]t is within the sound discretion of the trial court to enforce a

settlement agreement, and its judgment will not be reversed where the record contains

some competent, credible evidence to support its findings regarding the settlement.’ ”

Rieger v. Montgomery Cty., 2d Dist. Montgomery Nos. 23877 and 23878, 2010-Ohio-

4764, ¶ 4, quoting Mentor v. Lagoons Point Land Co., 11th Dist. Lake No. 98-L-190, 1999

WL 1313674 (Dec. 17, 1999). See also Seitz v. Harvey, 2d Dist. Montgomery No.

25867, 2015-Ohio-122, ¶ 61 (appling an abuse of discretion standard of review).

{¶ 14} In this case, the primary issue raised on appeal is whether the trial court

erred in determining that Milzy performed its duties under the settlement agreement.

“ ‘[W]hen parties dispute whether their respective actions were sufficient to satisfy the

terms of a settlement agreement, the trial court is presented with a question of fact to

decide.’ ” Savoy Hospitality, L.L.C. v. 5839 Monroe St. Assocs., L.L.C., 6th Dist. Lucas

No. L-14-1144, 2015-Ohio-4879, ¶ 28, quoting Nippon Life Ins. Co. of Am. v. One Source

Mgt., Ltd., 6th Dist. Lucas No. L-10-1247, 2011-Ohio-2175, ¶ 17. (Other citations

omitted.) See also Butler Cty. Bd. of Commrs. v. Hamilton, 145 Ohio App.3d 454, 478,

763 N.E.2d 618 (12th Dist.2001) (concluding that disputed good-faith efforts to satisfy

contract conditions are factual issues). Therefore, because we are presented with an

issue of fact, we must review the trial court’s decision for an abuse of discretion and

determine whether there was some competent, credible evidence in the record to support

the trial court’s findings.

Waiver of Time Requirement

{¶ 15} Muransky first argues that there was no evidence supporting the trial court’s -8-

finding that he waived the provision of the settlement agreement requiring Milzy to

complete the work on his vehicle within six months of Muransky delivering the vehicle to

Miller/Milzy. We note that “ ‘[w]aiver’ is defined as a voluntary relinquishment of a known

right.” (Citations omitted). State ex rel. Wallace v. State Med. Bd. of Ohio, 89 Ohio

St.3d 431, 435, 732 N.E.2d 960 (2000). “Whether an alleged waiver is express or

implied, it must be intentional. Mere negligence, oversight, or thoughtlessness does not

create a waiver.” Hicks v. Estate of Mulvaney, 2d Dist. Montgomery No. 22721, 2008-

Ohio-4391, ¶ 13, quoting Russell v. Dayton, 2d Dist. Montgomery No. 8520, 1984 WL

4896, *3 (May 18, 1984).

{¶ 16} At the evidentiary hearing, the testimony and evidence presented by both

parties established that Muransky delivered the vehicle to Miller/Milzy on November 14,

2016, and thereafter executed a written agreement extending the six-month deadline by

30 days, making the deadline June 14, 2017. Miller/Milzy returned the vehicle on

October 6, 2017, which was four months beyond the extended deadline. Other than the

30-day extension that was reduced to writing, Muransky claims that he never agreed to

extend the deadline beyond June 14, 2017. However, as previously noted, the trial court

found otherwise and determined that Muransky had waived the time requirement in the

settlement agreement by acquiescing to additional extensions. After a thorough review

of the record, we find that the trial court’s finding was supported by competent, credible

evidence in the record.

{¶ 17} Steven Strain, the attorney who had represented Miller/Milzy during the

mediation and settlement, testified that he assisted in negotiating the 30-day written

extension. Strain testified that after the 30-day extension was agreed upon, he -9-

requested additional extensions on behalf of his client. Strain testified that every time

an issue came up that required more time for the project to be completed, he contacted

Muransky’s counsel via e-mail or telephone and explained the issue and the need for

more time. Strain testified that during each of their conversations, Muransky’s counsel

never indicated that Muransky did not agree to the additional extensions. Strain instead

testified that his conversations with Muransky’s counsel led him to believe that the

requested extensions had been granted.

{¶ 18} Although Strain admitted that the additional extensions were not formally

documented in a written agreement, Strain testified that the extensions were evidenced

by several e-mails between himself and Muransky’s counsel. The e-mails were admitted

into evidence and establish that Strain corresponded with Muransky’s counsel between

July 2017 and September 2017. In the e-mails, Strain explained the reason for the

delays and the need for more time to complete the vehicle. See Defendant’s Exhibit F,

p. 223-230. Although Muransky’s counsel never expressly stated that Muransky

permitted an extension past the June 14, 2017 deadline, according to Strain, Muransky’s

counsel never indicated that the delays were unacceptable.

{¶ 19} In an e-mail dated September 1, 2017, Strain wrote:

Obviously, [Muransky] has every right to pursue [the stipulated

judgment], I’m not arguing that. I just want to voice my concern that [Miller]

has worked on the car in good faith and has come out of pocket on a whole

lot of expenses over and above what was agreed to in the settlement, all to

try to make this thing work. I want this case to be over as badly as anyone,

but I am hoping that there may be an alternative to a $45k judgment against -10-

[Miller] after all of the effort he has made.

Plaintiff’s Exhibit 12; Defendant’s Exhibit F, p. 224.

{¶ 20} Following that e-mail, Muransky did not file the stipulated judgment entry.

In fact, Muransky did not file the stipulated judgment entry until six months after

Miller/Milzy returned the vehicle to him. Miller testified that after he completed the work

and returned the vehicle, he received no complaint from Muransky and that he believed

Muransky was satisfied with the work until he randomly filed the stipulated judgment in

April 2018.

{¶ 21} Although Muransky specifically testified that he never agreed to extend the

June 14, 2017 deadline, the trial court did not find Muransky credible. The trial court did

not find Muransky credible due to the contents of some text messages that Muransky sent

to Dan Harvey, a childhood friend of Muransky who allegedly worked on the vehicle after

Miller/Milzy returned it to Muransky. At Muransky’s behest, Harvey wrote a statement

regarding what was allegedly wrong with the vehicle and prepared an invoice for repairs.

See Plaintiff’s Exhibits 4 and 5. Text messages between Harvey and Muransky

indicated that Muransky had asked Harvey to state that the gauges in the vehicle did not

work, that the vehicle had electrical and starting issues, and to recommend that the

vehicle be tuned and tested with a dynamometer, i.e., an instrument which measures the

output of an engine. See Defendant’s Exhibit F, p. 206. After Harvey texted that he

would make the foregoing statements, Muransky responded: “That’s great. Really

appreciate it. Hoping I bury this guy in invoices and problems, he will finally just cave as

he should be out of ammo.” Id. at 205.

{¶ 22} Given Muransky’s credibility issues, his delay in filing the stipulated consent -11-

judgment entry, the testimony of Steven Strain, and the corresponding e-mails between

counsel, we conclude that there was competent, credible evidence in the record to

support the trial court’s finding that Muransky had acquiesced to Miller/Milzy’s additional

delays in completing the vehicle. That is to say, based on the aforementioned evidence,

the trial court reasonably concluded that Muransky impliedly waived the time requirement

in the settlement agreement and voluntarily relinquished his right to claim a breach of that

provision.

Substantial Completion of Agreed-Upon Work

{¶ 23} For his next argument, Muransky claims that the evidence did not support

the trial court’s finding that Miller/Milzy substantially completed the work contemplated by

the settlement agreement. There is no dispute that the work to be performed by

Miller/Milzy was set forth in the “buildsheet” attached to the settlement agreement.

There is also no dispute that section 2(A) of the settlement agreement provided that the

“goods and services shall be provided in a good and workman like manner, such that the

vehicle is fully functional upon completion of the work.” Plaintiff’s Exhibit 2; Defendant’s

Exhibit F, p. 1. Muransky argues that this portion of the settlement agreement was

breached by Milzy because the vehicle had several defects and was not functional when

it was delivered. Each of the defects alleged by Muransky is discussed below.

(1) Starter:

{¶ 24} Muransky first argues that the starter installed in the vehicle did not work -12-

properly and that the vehicle would not start on the first attempt. At the evidentiary

hearing, Miller testified that the factory starter that came with the vehicle was not strong

enough to turn over the large engine that Muransky wanted installed. Miller testified that

Muransky had him swap the vehicle’s 3.1 liter engine with a 3.9 liter engine, which Miller

explained was unusual and had never been done before. Harvey also testified that it

was a very unusual engine.

{¶ 25} Miller testified that he had to have a starter rebuilt to accommodate the large

engine. Miller testified that he engaged the services of Dayton Quality Starter to build a

starter for the vehicle, but that the starter built was not strong enough. Miller testified

that he then built a stronger starter himself by using parts of starters from different

vehicles. Miller testified that he came up with a solution to make the starter functional,

but admitted that the starter was barely strong enough to turn the engine over.

Nevertheless, Miller testified that in September 2017, just prior to returning the vehicle to

Muransky, he tested the vehicle on a dynamometer for 6 hours and was able to start the

engine 80 to 100 times without any difficulty.

{¶ 26} Jeffrey Zachos, the owner of the body shop where Muransky had Miller

deliver the vehicle on October 6, 2017, testified that on the day of the delivery, the carrier

who delivered the vehicle started the vehicle and drove it into his shop. Although Zachos

testified that he was not near the vehicle when it was initially started, he testified that he

started the vehicle an hour after the vehicle was dropped off and moved it to another

location in his shop. Zachos also testified that Muransky retrieved the vehicle a week or

two after its delivery, and that during that time, he started the vehicle every day so that

he could move it out of the body shop and into his business’s parking lot to give him room -13-

to work. Although Zachos claimed he had some trouble starting the vehicle, Zachos

nevertheless testified that the vehicle was started and moved every day while it was at

his shop.

{¶ 27} Given the testimony regarding the unusual nature of the engine and that the

engine was started on the day of its delivery and several times thereafter, we find that

there was competent, credible evidence for the trial court to find that the starter installed

by Miller was functional and that Miller/Milzy substantially completed that part of the

project.

(2) Gear Shifter:

{¶ 28} Muransky next argues that the gear shifter in the vehicle was not installed

properly because it was not bolted to the floor and would move around when the driver

tried to shift gears. Miller testified that the gear shifter was in this condition because

Muransky advised that he wanted to mount the gear shifter himself. Miller also testified

that mounting the gear shifter was not part of the work listed on the buildsheet attached

to the settlement agreement. Indeed, the record indicates that mounting the gear shifter

was not specifically listed on the buildsheet. Muransky, however, argues that mounting

the gear shifter fell under Milzy’s responsibility to install the transmission, which was listed

on the buildsheet. But even if this were true, Miller testified that although it was loose

and awkward to use, the gear shifter was functional and operable at the time it was

delivered to Muransky. Moreover, there was no testimony in the record indicating that

the gear shifter was not functional.

{¶ 29} Based on the foregoing, we find that there was competent credible evidence -14-

for the trial court to find that Miller/Milzy was not required to mount the gear shifter and

that the gear shifter was otherwise functional.

(3) Dashboard Gauges:

{¶ 30} Muransky also argues that the gauges on the dashboard were not

connected and did not function properly. Miller testified that Muransky provided the

gauges in question and that the gauges had defects in their sensors. Miller additionally

testified that when he received the vehicle from Muransky, the gauges had been installed

incorrectly and were missing necessary equipment to complete their proper installation.

Miller’s associate, Jonathan Rench of Midwest Parts Group, testified that he worked on

the vehicle during the time in question and confirmed that Muransky had provided the

gauges and that the gauges were missing parts to make them operable. Miller testified

that when he received the vehicle there was 30 inches of exposed wire hanging from the

gauges and that some of the wires were grounding against contacts on the vehicle. As

a result of the grounding, Miller testified that he had to remove some of the wires, which

caused some of the LED lights on the gauges to go out.

{¶ 31} Based on this testimony, we find that there was competent credible

evidence for the trial court to find that the gauges provided to Miller/Milzy were defective

at the time they were received, which prohibited their successful installation and proper

functioning.

(4) Engine:

{¶ 32} Muransky further claims that the engine installed by Miller/Milzy ran roughly -15-

and unpredictably, making the vehicle unsafe to drive on the road. As a preliminary

matter, we note that the vehicle would have been unsafe to drive on the road regardless

of whether the engine was installed correctly. This is because the vehicle had no

windshield or windows installed. The window work was not part of the settlement

agreement; therefore, the vehicle would not have been road-ready even after Miller/Milzy

completed the required work. That said, there is no dispute that the engine installed by

Miller/Milzy was operable. Multiple witnesses, including Muransky, testified to observing

the vehicle running after it was returned on October 6, 2017.

{¶ 33} Miller specifically testified that the engine was installed properly and was

fully functional. Miller testified that he knew the engine was fully functional because he

tested it on a dynamometer for six hours in September 2017. At the evidentiary hearing,

Miller provided and explained a portion of the dynamometer test results and testified that

the test results showed that the vehicle was fully functional. Miller also testified that he

had measured the engine’s air/fuel ratio with a wideband oxygen sensor and that the ratio

was proper. Miller testified that the rich fuel smell Muransky complained of was due to

the vehicle not having a catalytic converter, a component that Muransky asked not to

have installed.

{¶ 34} Based on the foregoing, there was competent, credible evidence for the trial

court to find that the engine installed by Miller was fully functional.

(5) Melted Alternator Wire/Dead Battery:

{¶ 35} Muransky also takes issue with the fact that an alternator wire melted onto -16-

an exhaust pipe, which caused the battery not to recharge. Miller’s associate, Rench,

testified that the melted rubber from the alternator wire can be removed from the exhaust

pipe in a few seconds, and that the melted rubber would not harm the ceramic coating on

the exhaust pipe. As for the battery, Miller testified that it was supplied by Muransky and

did not recharge because it was six years old with a warranty of only two or three years.

Miller testified that he tried to keep the battery alive, but could not because it charged at

one amp and took an entire day to recharge.

{¶ 36} Based on this testimony, we find that there was competent credible

evidence for the trial court to find that the melted wire did not affect the vehicle’s

functionality and that the battery did not function properly because it was defective at the

time it was received.

(6) Hood Rod:

{¶ 37} Muransky next claims that the hood rod was missing from the vehicle, which

made it impossible to prop open the hood. A review of the record establishes that the

buildsheet does not provide that Miller/Milzy was to complete any work on the hood or the

hood rod. Furthermore, the hood rod does not affect the functionality of the vehicle.

For these reasons, it was reasonable for the trial court to find that Miller/Milzy substantially

completed the work contemplated in the settlement agreement despite the minor defect

with the hood rod.

{¶ 38} Based on our review of the record, we find that there was competent,

credible evidence for the trial court to find that Miller/Milzy substantially completed the

work that was required by the settlement agreement. -17-

Damage to Vehicle

{¶ 39} For his last argument, Muransky contends that the trial court erred in finding

that he failed to establish his vehicle sustained damage while in Miller/Milzy’s possession.

Muransky claims that Miller/Milzy caused a paint chip on the front passenger wheel well,

scrapes on the brake calipers, a large crack in the vehicle’s front bumper, a dent in the

trunk lid, and damage to the driver’s seat upholstery. After a thorough review of the

record, we find that there was competent, credible evidence in the record for the trial court

to find that Muransky failed to establish that Miller/Milzy caused the aforementioned

damage.

{¶ 40} A video taken by Muransky when he dropped off the vehicle to Miller/Milzy

on November 14, 2016, establishes that the paint chips on the wheel well and the scuffs

on the brake calipers were present at the time of drop off. See Defendant’s Exhibit G.

Photographs taken by Miller the same day also show the same paint chips and scuffs, as

well as many other scuffs and scratches on various parts of the vehicle. See

Defendant’s Exhibit F, p. 179-197. Therefore, despite Muransky’s claims, Miller/Milzy

could not have caused this damage while working on the vehicle. In addition, Miller took

photographs of the vehicle just prior to returning it on October 6, 2017, and those

photographs do not show a large crack in the front bumper. See Defendant’s Exhibit F,

p. 198-200.

{¶ 41} Although Muransky was very thorough about taking video of his vehicle’s

condition when he dropped it off at Miller/Milzy’s on November 14, 2016, he did not have

any video or photographs taken of the vehicle when Miller/Milzy delivered it to the Line-X -18-

body shop on October 6, 2017. Muransky did not photograph the damage until a week

or two after the vehicle was delivered. Given Muransky’s delay in photographing the

damage, it is possible that the damage could have occurred while the vehicle was waiting

to be picked up at Line-X. As previously noted, the owner of Line-X, Zachos, testified

that he moved the vehicle in and out of his facility every day until Muransky retrieved it.

Muransky provided no evidence excluding the possibility that all of the damage

complained of could have occurred while the vehicle was being moved by Zachos.

{¶ 42} In addition, the trial court could have considered Muransky’s credibility with

regard to the damage claims. As previously noted, the trial court found that Muransky’s

credibility was undermined by the contents of the text messages between him and

Harvey. As an appellate court, we defer to the trial court's determinations of credibility.

Umbaugh v. Stinson, 2d Dist. Greene No. 2019-CA-62, 2020-Ohio-3299, ¶ 24.

Therefore, for the foregoing reasons, we find that there was competent credible evidence

for the trial court to find that Muransky failed to establish that Miller/Milzy caused the

damage at issue.

{¶ 43} Because there was competent, credible evidence to support all of the trial

court’s findings that Muransky challengs on appeal, we find that the trial court’s judgment

enforcing the settlement agreement in Miller/Milzy’s favor was not an abuse of discretion.

Accordingly, Muransky’s sole assignment of error is overruled.

Conclusion

{¶ 44} Having overruled Muransky’s assignment of error, the judgment of the trial -19-

court is affirmed.

TUCKER, P.J. and FROELICH, J., concur.

Copies sent to:

Dwight D. Brannon Kevin A. Bowman Matthew C. Schultz Ronald J. Kozar Hon. Gregory F. Singer