[Cite as Lynn v. Schulte, 2015-Ohio-5527.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


LARRY LYNN,                                    :        OPINION

                 Plaintiff-Appellant,          :
                                                        CASE NOS. 2015-A-0017
        - vs -                                 :                  2015-A-0026

DANA SCHULTE,                                  :

                 Defendant-Appellee.           :


Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2013 CV
151.

Judgment: Reversed and remanded.


Larry Lynn, pro se, 4243 Harper Street, Perry, OH 44081 (Plaintiff-Appellant).

Christopher M. Newcomb, Christopher M. Newcomb, Esq., LLC, 213 Washington
Street, Conneaut, OH 44030 (For Defendant-Appellee).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, Larry Lynn, appeals the judgment of the Ashtabula

County Court of Common Pleas, finding in favor of defendant-appellee, Dana Schulte,

for breach of contract. The issues before this court are whether a determination that a

party has materially breached a contract is nullified where the non-breaching party

subsequently enters into a purportedly illegal contract with a third party in mitigation of

the breach, and whether a trial court may award, as damages for breach of contract, the

costs of hiring a third-party to complete the contract without considering the original
contract price. For the following reasons, we reverse the decision of the lower court

with respect to damages and remand this matter with instructions for the court to award

damages in a manner consistent with this opinion.

      {¶2}   On February 1, 2013, Lynn filed a Small Claims Complaint against Schulte

in Ashtabula Municipal Court, Small Claims Division, seeking judgment in the amount of

$3,000 for “labor and materials provided at 1636 West 8th Street, Ashtabula.”

      {¶3}   On February 21, 2013, Schulte filed an Answer and Counterclaims,

seeking judgment in excess of $15,000 for Breach of Contract, Negligence, Slander of

Title, and Fraudulent Inducement.

      {¶4}   On February 25, 2013, the case was transferred to the Ashtabula County

Court of Common Pleas.

      {¶5}   On September 18, 2014, the case was tried before a magistrate.

      {¶6}   On December 4, 2014, a Magistrate’s Decision was issued. The following

findings were made by the magistrate:

             Defendant is the owner of residential rental property located at

             1636 West 8th Street in Ashtabula, Ohio. On September 13, 2010,

             the Ohio Department of Health (“ODH”) conducted a public health

             lead risk assessment at Defendant’s property, whereupon hazards

             related to lead paint were discovered. Defendant received an order

             from the ODH dated October 21, 2010 which detailed the work

             necessary to abate the hazard. * * * The order demanded that the

             hazard be abated within 90 days, and specified that the work was

             to be done by individuals who had been properly trained and/or




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certified in lead abatement. The parties entered into a one-page

contract * * *, dated September 28, 2011. * * * The contract listed

[six] tasks which Plaintiff was to perform in order to bring the

residence into compliance with the ODH order. * * * The parties

originally agreed that Defendant would provide the new windows

and doors, and agreed on a total contract price of $7,500.00.

However, this term was changed to $10,000.00 when it was agreed

that Plaintiff would provide the new windows and doors. On the

contract signed by the parties, the original contract price of

$7,500.00 is crossed off and the new $10,000.00 price is

handwritten above it.     The contract called for three (3) equal

payments, an initial payment of $2,500.00, a second $2,500.00

payment upon completion of items 1-4 [listed in the contract], and a

third $2,500.00 payment when all of Plaintiff’s obligations under the

contract had been performed. Despite the payment plan set forth in

the written contract, which the parties opted not to amend, both

parties testified that Defendant’s initial payment to Plaintiff was

$5,000.00. * * * Plaintiff and his Son, Levi Lynn, testified that at

some point they completed all the work set forth in items 1-4 above.

Both parties testified that when Plaintiff felt he had completed items

1-4, he demanded further payment. * * * Defendant refused to pay

Plaintiff any additional funds because Plaintiff did not complete

items 1-4 prior to demanding further payment. Plaintiff refused to




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perform any more work under the contract until he received further

payment. Defendant testified that because the work set forth in the

ODH order dated October 21, 2010 * * * was not completed within

the specified 90 days, he received from the ODH a Notice of

Noncompliance and Order to Vacate dated February 10, 2012.

Defendant then contacted the Health Department, advising them of

the situation with Plaintiff. An ODH inspector then came to the

residence, met with general contractor and project manager, Jason

Hamilton, and advised Hamilton as to the work which needed to be

done in order to comply with the October 21, 2010 order.        Mr.

Hamilton is not licensed or trained in lead abatement, but

completed the work under the guidance and direction of the ODH

inspector. Mr. Hamilton submitted a bill to Defendant for the work

completed. * * * The ODH conducted a clearance examination,

and Defendant received an ODH Notice of Compliance dated

March 13, 2012 * * * indicating that the hazards set forth in the

initial October 21, 2010 order * * * had been abated. * * * [U]pon

weighing the credibility and weight of the evidence presented, the

Magistrate does not find that Plaintiff completed the work set forth

under items #3 and 4 of the contract prior to demanding additional

payment. * * * The evidence dictates that Defendant is entitled to

compensation from Plaintiff for funds paid to Jason Hamilton for the




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              completion of Plaintiff’s contractual obligations, and for any rent lost

              due to Plaintiff’s breach of contract.

       {¶7}   On December 24, 2014, Lynn filed objections to the Magistrate’s Decision.

       {¶8}   On January 5, 2015, the trial court dismissed the objections as untimely,

inadvertently citing Civil Rule 53(D)(2)(b), which pertains to magistrate’s orders.

       {¶9}   On January 23, 2015, Lynn asked the trial court to review the timeliness of

his objections.

       {¶10} On January 29, 2015, the trial court overruled Lynn’s request, construed

as a motion for reconsideration.

       {¶11} On March 13, 2015, Lynn filed a Notice of Appeal from the January 29,

2015 Judgment Entry and the December 4, 2014 Magistrate’s Decision, assigned Court

of Appeals No. 2015-A-0017.

       {¶12} On March 17, 2015, a hearing was held on damages before the trial court.

       {¶13} On March 18, 2015, the trial court awarded Schulte “the sum of $3,846.26

for attorney fees; $5,200.00 for monies paid to Jason Hamilton to complete the job that

the Plaintiff was originally supposed to perform; the sum of $4,800.00 for lost rent; and

the sum of $365.00 for the final lead inspection.”

       {¶14} On April 17, 2015, Lynn filed a Notice of Appeal from the March 18, 2015

Judgment Entry and the December 4, 2014 Magistrate’s Decision, assigned Court of

Appeals No. 2015-A-0026.

       {¶15} On May 5, 2015, this court consolidated the appeals “for purposes of

briefing, oral argument, and disposition.”

       {¶16} On appeal, Lynn raises the following assignments of error:




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       {¶17} “[1.] The trial court committed prejudicial error in granting defendant-

appellees’ DANA SCHULTE favorable judgment based on the conclusion that his

handyman, JASON HAMILTON, could somehow go around the laws of the STATE OF

OHIO DEPARTMENT OF HEALTH (otherwise known as ODH) and perform [the] work

of a Licensed Lead Abatement Contractor without having the proper Lead Abatement

License nor the proper training to do so.”

       {¶18} “[2.] The trial court committed prejudicial error in granting defendants-

appellees’ request for reimbursement of loss of rent (8 months x 600.00 per month or

4800.00) and for claimed wages paid to the handyman (in the amount of 5200.00) for

work that had nothing at all in common with the contract between plaintiff and

defendant.”

       {¶19} As an initial matter, we note that this court’s ability to consider Lynn’s

arguments is limited by his failure to file timely objections to the Magistrate’s Decision

and failure to provide a transcript of the March 17, 2015 hearing on damages.

       {¶20} “If the appellant intends to present an assignment of error on appeal that a

finding or conclusion is unsupported by the evidence or is contrary to the weight of the

evidence, the appellant shall include in the record a transcript of proceedings that

includes all evidence relevant to the findings or conclusion.” App.R. 9(B)(4). “[I]t is the

obligation of the appellant to make reasonable arrangements to ensure that the

proceedings the appellant considers necessary for inclusion in the record * * * are

transcribed * * *.” App.R. 9(B)(1).

       {¶21} The Rules of Civil Procedure provide that the failure to file objections to a

magistrate’s decision results in the waiver of the right to assign its adoption by the trial




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court as error on appeal: “Except for a claim of plain error, a party shall not assign as

error on appeal the court’s adoption of any factual finding or legal conclusion * * * unless

the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).”

Civ.R. 53(D)(3)(b)(iv).

       {¶22} In his first assignment of error, Lynn contends that the magistrate erred in

determining that Jason Hamilton could perform lead abatement work without being

licensed: “Not only did the handyman, Mr. Hamilton, neither qualify nor perform the work

of the Licensed Abatement Contractor on the job, but it would have been illegal for him

to attempt such.”    Appellant’s brief at 3.       See R.C. 3742.02(B) (“[n]o person shall

knowingly authorize or employ an individual to perform lead abatement on a residential

unit * * * unless the individual who will perform the lead abatement holds a valid license

issued under section 3742.05 of the Revised Code”) and (C)(5) (“[n]o person shall * * *

[p]erform lead abatement without a valid lead abatement worker license issued under

section 3742.05 of the Revised Code”).

       {¶23} Lynn’s argument fails to identify a reversible error in the Magistrate’s

Decision. Assuming, arguendo, that it was illegal for Schulte to employ Hamilton to

perform lead abatement work, that fact has no bearing on whether Lynn materially

breached the terms of the contract he entered into with Schulte. Primary responsibility

for the enforcement of Ohio’s lead abatement statutes resides with the director of

health. R.C. 3742.15 (complaints to the director of health); R.C. 3742.18 (the director of

health may request that civil action be taken); R.C. 3742.99 (the director of health may

request that criminal action be taken).

       {¶24} The first assignment of error is without merit.




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       {¶25} In his second assignment of error, Lynn contends that the trial court erred

in awarding $4,800 for lost rent and $5,200 to have Hamilton complete the work. Lynn

maintains it was impossible for Schulte to have lost eight months of rent at $600 per

month, when the initial contract was entered into in September 2011 and Schulte

received a favorable Clearance Examination Report in February 2012. Lynn further

notes that the invoice for services submitted by Hamilton was not signed, dated, or

properly itemized.

       {¶26} Lynn’s arguments must necessarily fail because they rely on evidentiary

materials outside of the record on appeal, i.e., documents attached to his appellate

brief. These documents, which appear to be evidentiary exhibits, are not included in the

record inasmuch as the transcript of the hearing on damages was neither transcribed

nor filed. Such exhibits are to be filed with the transcript of the proceedings. App.R.

9(A)(1) and (B)(6)(g).    Attaching evidentiary exhibits to the appellate brief does not

make them part of the record on appeal and, thus, subject to consideration in

determining the merits of the appeal. Jefferson Golf and Country Club v. Leonard, 10th

Dist. Franklin No. 11AP-434, 2011-Ohio-6829, ¶ 10 (“[e]xhibits solely appended to

appellate briefs are not properly part of the record, do not augment the record, and may

not be considered by us in the determination of an appeal”) (cases cited); State v.

Barnett, 3rd Dist. Auglaize No. 2-13-26, 2015-Ohio-224, ¶ 20 (“[e]vidence not made part

of the record that is attached to an appellate brief cannot be considered by a reviewing

court”) (citation omitted).

       {¶27} Despite the lack of a transcript of the hearing on damages in the record,

the trial court’s award of damages is deficient on its face.




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       {¶28} The trial court awarded Schulte “$5,200.00 for monies paid to Jason

Hamilton to complete the job that the Plaintiff was originally supposed to perform.” As

determined by the magistrate, the total contract price was $10,000 and Schulte had paid

Lynn $5,000.    The proper measure of damages for a contractor’s breach in these

circumstances “is the cost of completing the work minus the unpaid part of the contract

price.” ABLE Roofing v. Pingue, 10th Dist. Franklin No. 10AP-404, 2011-Ohio-2868, ¶

24 (cases cited). Damages, representing the cost to Schulte of completing work under

the contract, “must be reduced by the amount withheld by [Schulte] (i.e., the unpaid

portion of the contract price) to avoid a windfall to [Schulte] in receiving the benefit of

the bargain.” Id. Here, the record fails to indicate that the cost of completing the work

was offset by the unpaid portion of the contract price.

       {¶29} The second assignment of error is with merit to the extent indicated

above.

       {¶30} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas determining the amount of damages for Lynn’s breach of contract is

reversed and this matter is remanded with instructions for the trial court to enter a new

entry on damages that offsets the cost of completing the work under the contract by the

unpaid portion of the contract price. Costs to be taxed against the appellee.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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