[Cite as Saunders v. Williams, 2014-Ohio-629.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
WILLIAM SAUNDERS, SR : : Appellate Case No. 2013-CA-44 Plaintiff-Appellant : : Trial Court Case No. 12-CVF-1731 v. : : CORBIN WILLIAMS : (Civil Appeal from Clark County dba CORBIN’S CONSTRUCTION : (Municipal Court) : Defendant-Appellee : : ...........
OPINION
Rendered on the 21st day of February, 2014.
...........
ANTHONY E. KOHLER, Atty. Reg. #0032826, Kohler Legal Services, LLC, 1130 Vester Avenue, Suite A, Springfield, Ohio 45503 Attorney for Plaintiff-Appellant
WILLIAM D. WEST, Atty. Reg. #0018465, 20 South Limestone Street, Suite 120, Springfield, Ohio 45502 Attorney for Defendant-Appellee
.............
FAIN, J.
{¶ 1} Plaintiff-appellant William Saunders, Sr., appeals from a judgment rendered 2
against him on his claim for breach of contract against defendant-appellee Corbin Williams
(doing business as Corbin’s Construction). Saunders contends that the judgment is against the
manifest weight of the evidence.
{¶ 2} Our review of the evidence leads us to conclude that the judgment is not against
the manifest weight of the evidence. Accordingly, the judgment of the trial court is Affirmed.
I. Saunders Contracts with Williams to Install a Metal Roof on an Exterior Garage
{¶ 3} Saunders entered into a written contract with Williams to install a metal roof on
his exterior garage, for the contract price of $4,800, $2,400 of which was to be a downpayment,
with the balance to be paid upon completion. The contract stated that the work was to be
“completed in a substantial workmanlike manner.” After the work was completed, Saunders
completed the payment of the contract price, but he thereafter became dissatisfied with the work.
II. The Course of Proceedings
{¶ 4} Saunders brought this action for breach of contract against Williams in the
Municipal Court of Clark County. The action was tried to the bench. After taking the case
under advisement, the trial court rendered judgment for Wiliams. Saunders appeals.
III. The Judgment Is Not Against the Manifest Weight of the Evidence
{¶ 5} Saunders sets forth three assignments of error:
APPELLEE BREACHED THE WRITTEN CONTRACT HE HAD WITH
APPELLANT. [Cite as Saunders v. Williams, 2014-Ohio-629.] THE TRIAL COURT’S RULING IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
APPELLANT IS ENTITLED TO MONETARY DAMAGES FROM
APPELLEE.
{¶ 6} All of Sanders’s assignments of error are based upon his argument that the
judgment is against the manifest weight of the evidence. “The manifest-weight-of-the- evidence
standard of appellate review set forth in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541
(1997), applies in civil cases. Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972
N.E.2d 517, ¶ 17–23.” Mathews v. Mathews, 2d Dist. Clark No. 2012-CA-79, 2013-Ohio-2471,
¶ 9. Under Thompkins, at 387:
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. It indicates clearly to the jury that the party having the burden of proof will
be entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but depends
on its effect in inducing belief.” (Emphasis added.) Black's [Law Dictionary (6
Ed.1990) ], supra, at 1594.
When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a “
‘thirteenth juror’ ” and disagrees with the factfinder's resolution of the conflicting
testimony. Tibbs [v. Florida], 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at
661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 4
219, 485 N.E.2d 717, 720–721 (“The court, reviewing the entire record, weighs
the evidence and all reasonable inferences, considers the credibility of witnesses
and determines whether in resolving conflicts in the evidence, the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. The discretionary power to grant a new trial
should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.”).
{¶ 7} In attempting to prove that Williams did not install the metal roof in a
workmanlike manner, Saunders presented himself and an expert – Terry Shaffer, a Clark County
Building Inspector – as witnesses. He also called Williams, as upon cross-examination. None
of the witnesses, however, testified that Williams did not install the roof in a workmanlike
manner.
{¶ 8} When Shaffer was asked whether the job was done in a workmanlike manner, his
answer was significant:
Q. * * * . Um do you believe the job was done in a uh workmanlike
appropriate manner based upon your experience as a building inspector?
A. It just wasn’t done to the manufacturer’s specifications.
{¶ 9} Shaffer then testified in detail concerning the ways in which the installation of
the roof was performed contrary to the manufacturer’s specifications. Saunders had purchased
the manufacturer’s handbook. Shaffer and Williams had seen the book before trial, and the book
was admitted in evidence. Shaffer went through the ways in which the roof was installed
contrary to the procedures set forth in the book. Shaffer also testified that he would not have 5
been satisfied with the roof as installed, if he had been the homeowner contracting with Williams.
{¶ 10} Saunders testified concerning his dissatisfaction with the work, and the fact that
it was not done in the manner indicated in the manufacturer’s handbook. He also testified
concerning two estimates he had received to re-do the installation of the metal roof.
{¶ 11} Williams was called by Saunders as upon cross-examination. He testified that
he installed the metal roof in the manner he had been taught when he had previously worked for a
contractor. He also testified that he had since “drove over half of Clark County lookin’ at barns
that’s been put up recently,” and that “ninety percent of ’em I looked at the screws are in the
ribs.” The placement of the screws was one of several ways in which the roof was installed
contrary to the handbook, according to the testimony of Shaffer and Saunders. Williams did not
present any evidence.
{¶ 12} Saunders had the burden of proving that the roof was not installed in a
workmanlike manner. His evidence did not establish that fact directly. Both Saunders and
Shaffer were clearly dissatisfied with the work, and their testimony did establish that it was not
performed in accordance with the manufacturer’s handbook. But that handbook, which was
admitted in evidence, included the following disclaimer on its inside cover:
Disclaimer
The details and written instructions described in this manual are suggested
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Saunders v. Williams, 2014-Ohio-629.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
WILLIAM SAUNDERS, SR : : Appellate Case No. 2013-CA-44 Plaintiff-Appellant : : Trial Court Case No. 12-CVF-1731 v. : : CORBIN WILLIAMS : (Civil Appeal from Clark County dba CORBIN’S CONSTRUCTION : (Municipal Court) : Defendant-Appellee : : ...........
OPINION
Rendered on the 21st day of February, 2014.
...........
ANTHONY E. KOHLER, Atty. Reg. #0032826, Kohler Legal Services, LLC, 1130 Vester Avenue, Suite A, Springfield, Ohio 45503 Attorney for Plaintiff-Appellant
WILLIAM D. WEST, Atty. Reg. #0018465, 20 South Limestone Street, Suite 120, Springfield, Ohio 45502 Attorney for Defendant-Appellee
.............
FAIN, J.
{¶ 1} Plaintiff-appellant William Saunders, Sr., appeals from a judgment rendered 2
against him on his claim for breach of contract against defendant-appellee Corbin Williams
(doing business as Corbin’s Construction). Saunders contends that the judgment is against the
manifest weight of the evidence.
{¶ 2} Our review of the evidence leads us to conclude that the judgment is not against
the manifest weight of the evidence. Accordingly, the judgment of the trial court is Affirmed.
I. Saunders Contracts with Williams to Install a Metal Roof on an Exterior Garage
{¶ 3} Saunders entered into a written contract with Williams to install a metal roof on
his exterior garage, for the contract price of $4,800, $2,400 of which was to be a downpayment,
with the balance to be paid upon completion. The contract stated that the work was to be
“completed in a substantial workmanlike manner.” After the work was completed, Saunders
completed the payment of the contract price, but he thereafter became dissatisfied with the work.
II. The Course of Proceedings
{¶ 4} Saunders brought this action for breach of contract against Williams in the
Municipal Court of Clark County. The action was tried to the bench. After taking the case
under advisement, the trial court rendered judgment for Wiliams. Saunders appeals.
III. The Judgment Is Not Against the Manifest Weight of the Evidence
{¶ 5} Saunders sets forth three assignments of error:
APPELLEE BREACHED THE WRITTEN CONTRACT HE HAD WITH
APPELLANT. [Cite as Saunders v. Williams, 2014-Ohio-629.] THE TRIAL COURT’S RULING IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
APPELLANT IS ENTITLED TO MONETARY DAMAGES FROM
APPELLEE.
{¶ 6} All of Sanders’s assignments of error are based upon his argument that the
judgment is against the manifest weight of the evidence. “The manifest-weight-of-the- evidence
standard of appellate review set forth in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541
(1997), applies in civil cases. Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972
N.E.2d 517, ¶ 17–23.” Mathews v. Mathews, 2d Dist. Clark No. 2012-CA-79, 2013-Ohio-2471,
¶ 9. Under Thompkins, at 387:
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. It indicates clearly to the jury that the party having the burden of proof will
be entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but depends
on its effect in inducing belief.” (Emphasis added.) Black's [Law Dictionary (6
Ed.1990) ], supra, at 1594.
When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a “
‘thirteenth juror’ ” and disagrees with the factfinder's resolution of the conflicting
testimony. Tibbs [v. Florida], 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at
661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 4
219, 485 N.E.2d 717, 720–721 (“The court, reviewing the entire record, weighs
the evidence and all reasonable inferences, considers the credibility of witnesses
and determines whether in resolving conflicts in the evidence, the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. The discretionary power to grant a new trial
should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.”).
{¶ 7} In attempting to prove that Williams did not install the metal roof in a
workmanlike manner, Saunders presented himself and an expert – Terry Shaffer, a Clark County
Building Inspector – as witnesses. He also called Williams, as upon cross-examination. None
of the witnesses, however, testified that Williams did not install the roof in a workmanlike
manner.
{¶ 8} When Shaffer was asked whether the job was done in a workmanlike manner, his
answer was significant:
Q. * * * . Um do you believe the job was done in a uh workmanlike
appropriate manner based upon your experience as a building inspector?
A. It just wasn’t done to the manufacturer’s specifications.
{¶ 9} Shaffer then testified in detail concerning the ways in which the installation of
the roof was performed contrary to the manufacturer’s specifications. Saunders had purchased
the manufacturer’s handbook. Shaffer and Williams had seen the book before trial, and the book
was admitted in evidence. Shaffer went through the ways in which the roof was installed
contrary to the procedures set forth in the book. Shaffer also testified that he would not have 5
been satisfied with the roof as installed, if he had been the homeowner contracting with Williams.
{¶ 10} Saunders testified concerning his dissatisfaction with the work, and the fact that
it was not done in the manner indicated in the manufacturer’s handbook. He also testified
concerning two estimates he had received to re-do the installation of the metal roof.
{¶ 11} Williams was called by Saunders as upon cross-examination. He testified that
he installed the metal roof in the manner he had been taught when he had previously worked for a
contractor. He also testified that he had since “drove over half of Clark County lookin’ at barns
that’s been put up recently,” and that “ninety percent of ’em I looked at the screws are in the
ribs.” The placement of the screws was one of several ways in which the roof was installed
contrary to the handbook, according to the testimony of Shaffer and Saunders. Williams did not
present any evidence.
{¶ 12} Saunders had the burden of proving that the roof was not installed in a
workmanlike manner. His evidence did not establish that fact directly. Both Saunders and
Shaffer were clearly dissatisfied with the work, and their testimony did establish that it was not
performed in accordance with the manufacturer’s handbook. But that handbook, which was
admitted in evidence, included the following disclaimer on its inside cover:
Disclaimer
The details and written instructions described in this manual are suggested
installation methods to ensure a quality application of our products, and should be
considered as a guideline only. FABRAL recognizes that installation techniques
can vary based upon builder and geographical preferences, and that there are
other acceptable ways to install our products. (Bolding in original, italics 6
added.)
{¶ 13} Saunders testified that the roof leaked after Williams installed it, attributing the
leaks to Williams’s poor workmanship. But in his testimony, Williams disputed that any leaks
were the result of his poor workmanship:
Q. Now let me ask you this you are not disputing that there are problems
and have been leak problems because you’ve had some of your own people out
there is that correct?
A. * * *
Q. Well let me clarify the question. Not not [sic] you but you had people
in terms of like representatives or insurance people that went out and took pictures
in your behalf you’ll remember that independent of this lawsuit.
A. My insurance company went out there yeah.
Q. Right. And let me ask you about that um well as well from your
recollection um do these exhibits Ten through Thirteen if you could look at those
for just a minute, do they represent uh pictures of the property that to the best of
recollection . . .
A. Yeah the boot that I put on there is missin’.
Q. Okay. Alright. And what exhibit is that?
A. Thirteen.
Q. Exhibit Thirteen. So there’s an arrow and there’s a boot that’s
missing?
A. Yeah the boot rubber boot rubber boot [sic] put on here that I had to 7
make. Had to take a roof pipe jack like you use for puttin’ around pipes and stuff
okay Mr. Saunders didn’t want to pay to get the cat head cut off for the electric so
we could slide somethin’ down over it. So I drilled a hole when we did the metal
I had to that’s for I had to splice a piece of metal in there. And then I drilled a
hole with a pole saw to make it perfect. I cut the pipe jack collar and I split that
boot and I put that boot around there real nice and neat and glued it with uh rubber
cement. It shouldn’t have never, it shouldn’t have come off, it shouldn’t have
leaked. But you know what we had some headgacious [sic] winds and some
headgacious storms down there.
Q. So if you installed the boot that’s no longer on there according to
Plaintiff’s Exhibit Thirteen is no longer on there than [sic] either it came off due
to weather or somebody took it off? You just you don’t you don’t know?
A. No I didn’t . . .
{¶ 14} Looking at the entirety of the evidence in the record, we conclude that a
reasonable finder of fact might have inferred that Williams’s installation of the metal roof was
not performed in a workmanlike manner, but was not required to draw that inference.
{¶ 15} There is no evidence in this record that the parties entered into the contract with
reference to the manufacturer’s handbook; therefore, the procedures set forth in the handbook did
not serve as specifications under the contract. The contract did set out some specifications for
the work, but Saunders has not complained that these specifications were not complied with.
{¶ 16} Saunders’s theory of recovery against Williams required a finding that Williams
failed to install the metal roof in a workmanlike manner. The trial court did not so find. From 8
our review of the evidence in the record, we conclude that the trial court’s failure to make this
finding is not against the manifest weight of the evidence. Accordingly, all of Saunders’s
assignments of error are overruled.
IV. Conclusion
{¶ 17} All of Saunders’s assignments of error having been overruled, the judgment of
the trial court is Affirmed.
FROELICH, P.J., and DONOVAN, J., concur.
Copies mailed to:
Anthony E. Kohler William D. West Hon. Thomas E. Trempe