[Cite as Universal Marble & Granite, L.L.C. v. Gerner, 2014-Ohio-4349.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


Universal Marble & Granite, LLC                           Court of Appeals No. WD-13-052

        Appellant                                         Trial Court No. CVF 1201143

v.

Franz Gerner, et al.                                      DECISION AND JUDGMENT

        Appellees                                         Decided: September 30, 2014

                                                 *****

        V. Robert Candiello, for appellant.

        Jon M. Ickes, for appellee.

                                                 *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Perrysburg Municipal Court after a

trial to the bench that found for appellees on appellant’s complaint seeking money

damages for work performed on appellees’ home. For the reasons that follow, the

judgment of the trial court is affirmed.
       {¶ 2} In April 2012, the parties entered into a written contract pursuant to which

appellant would provide and install a granite countertop and a sink in appellees’ kitchen

for a total cost of $6,128.17. This included application of a granite sealer with what

appellant represented to be a 15-year guarantee for $499.00. Appellees made a down

payment of $2,974.10. After appellant’s agent, David Hernandez, installed the

countertop and sink he noticed that the countertop was off-center when measured against

the cabinet below and the kitchen window. Hernandez asserts that appellees approved

the installation even though it was off-center. It is undisputed that the countertop was

installed improperly. Appellees deny they were told of the problem and state they did not

notice it until after Hernandez left their home. Within minutes of Hernandez leaving

appellees’ home, they called appellant and placed a stop payment on their final check to

the business. When appellant did not return to cure the defect, appellees hired another

contractor to fix the problem at a cost of $3,390.

       {¶ 3} On August 3, 2012, appellant filed a complaint in Perrysburg Municipal

Court, Small Claims Division, seeking judgment in the amount of $3,000 representing the

amount due together with interest and cost of this action. Shortly thereafter, the matter

was transferred to the court’s regular docket. On August 22, 2012, appellees filed an

answer and counterclaim demanding judgment against appellant for breach of contract

for failing to complete the work in a workmanlike manner, damaging appellees in the

amount of $3,390 and for statutory treble damages for consumer fraud.




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       {¶ 4} Following a bench trial, the trial court found that the countertop had not

been installed in a workmanlike manner and that appellant was not entitled to recover

from appellees. Further, the court found that appellees were entitled to judgment for their

counterclaim against appellant in the amount of $3,390 to fix the defect. Lastly, the trial

court found that appellant’s sale to appellees of a countertop sealer for $499 that retails

for $48 was unconscionable under R.C. 1345.03(2), and awarded treble damages

amounting to $1,497.

       {¶ 5} Appellant sets forth three assignments of error:

              Assignment of Error No. 1:

              The Trial Court’s finding that Appellant’s installation of Appellees’

       Granite kitchen countertops was not performed in a workmanlike manner

       giving rise to an award of damages was contrary to law and against the

       manifest weight of the evidence.

              Assignment of Error No. 2:

              The Trial Court’s award of Judgment in favor of the Appellees and

       against Appellant in the amount of $3,390.00 was an abuse of discretion

       and contrary to law.

              Assignment of Error No. 3:

              The Trial Court committed reversible error in finding Appellant

       committed unconscionable acts in violation of Section 1345.03(2) of the

       Ohio Revised Code thereby awarding treble damages, when such findings




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       and award were based solely on lack of authentication and hearsay

       evidence.

       {¶ 6} In support of its first assignment of error, appellant asserts that two

witnesses testified the countertop was installed pursuant to standard procedure and that,

when the deviation was noted, appellees were informed. Appellant argues that appellees

knew the countertop was off-center but allowed appellant to proceed with the job.

       {¶ 7} In reviewing a disputed judgment, this court must be guided by the principal

that judgments supported by some competent, credible evidence must not be reversed as

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

54 Ohio St.2d 279, 279, 376 N.E.2d 578 (1978). Every reasonable presumption must be

made in favor of the judgment. Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio

St.3d 77, 80, 461 N.E.2d 1273 (1984).

       {¶ 8} The record reflects that appellees’ witness Mitch Warnike, who has worked

in the granite and countertop installation business for 28 years, testified that he went to

appellees’ home to look at the countertop. Warnike stated that the countertop was off-

center and that the work was substandard. Audree Hernandez, appellant’s office

manager, testified that she received a call from one of the installers at appellees’ home

who reported to her that there was an issue with the countertop because the sink was not

centered with the base cabinet. Hernandez then received a second call from the installers

and was told appellees were willing to proceed with the installation. Appellee Anne

Gerner testified she was never told there was a problem with the center line of the




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countertop. Gerner stated she and her husband were not told by the installers that the

whole sink would be off-center, nor did the workmen say that the countertop should be

replaced due to the flaw. She further testified that she approved the installation before

the workmen left based on how the seams looked and that she did not look at the sink

once it was installed. Gerner testified that ten minutes after the installers left, when she

and her husband saw that the sink itself was off-center, she called the store. Gerner

testified that the office worker with whom she spoke said she would talk to someone else

about the issue. She further testified that her husband called the store nine times and

spoke to someone only once. After her husband’s initial conversation, no further calls

were returned and no one from the store came to the house to look at the countertop.

Franz Gerner testified that he watched as the countertop was installed and did not notice

that the sink was off-center until ten minutes after the workers left his home.

       {¶ 9} The issue before this court essentially appears to be one involving the

credibility of the two parties, whose testimony did conflict in some respects. The

determination of the disputed issues rests upon the credibility of the witnesses and is to

be decided by the trier of fact who, in this instance, found appellees and their witness

more credible. This court has reviewed the full record of the trial court, including the

testimony at trial and the exhibits admitted into evidence. We will not second guess the

trial court’s decision, which relied heavily on its determination of witness credibility.

Accordingly, we find that the trial court’s judgment was supported by some competent,




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credible evidence and was not against the weight of the evidence. Appellant’s first

assignment of error is not well-taken.

       {¶ 10} In support of its second assignment of error, appellant asserts that the

award of damages in the amount of $3,390 was an abuse of discretion. As we noted

above, the trial court found that appellant did not install the sink and countertop in a

workmanlike manner. The evidence submitted at trial below supports this conclusion.

The trial court’s finding was based on direct testimony from Mitch Warnike, who stated

that the cost of the repair was $3,390; appellees paid Warnike that amount. Warnike

testified that he did not tear out the entire job but only replaced the area that was not

installed properly.

       {¶ 11} A reviewing court “will not disturb a decision of the trial court as to a

determination of damages absent an abuse of discretion.” Roberts v. U.S. Fid. & Guar.

Co., 75 Ohio St.3d 630, 634, 665 N.E.2d 664 (1996), citing Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion connotes more

than an error of law or judgment; it implies that the trial court’s decision was

unreasonable, arbitrary or unconscionable. Blakemore, supra.

       {¶ 12} As set forth above, appellees testified as to the aspects of the work they

believed to be unsatisfactory. Their testimony was supported by that of Mitch Warnike

as to his observations of the work originally done by appellant, how he repaired the

problem and the cost involved. Appellees admitted photographs of the alleged defects

into evidence. Upon review of the testimony and other evidence, we must conclude that




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the trial court’s judgment as to damages was not an abuse of discretion or contrary to law.

Accordingly, appellant’s second assignment of error is not well-taken.

       {¶ 13} In support of their third assignment of error, appellant asserts that the trial

court erred by finding that appellant committed unconscionable acts in violation of R.C.

1345.03(2) and thereby improperly awarded treble damages. Appellant asserts that the

trial court allowed hearsay testimony from appellee’s witness Warnike as to the cost of a

granite sealer for which appellant charged appellees $499. Warnike testified he priced

the same sealer on the internet at $48. Appellant objected that the testimony was hearsay

because the witness obtained the information on the internet. In response, the trial court

stated it was not hearsay and that it would attach whatever weight to the evidence it

deemed proper.

       {¶ 14} The admission or exclusion of evidence is a mater within the sound

discretion of the trial court. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056

(1991). An appellate court will not reverse the trial court’s decision to admit or exclude

evidence absent “a clear showing of an abuse of discretion with attendant material

prejudice.” State v. Ruppen, 4th District Washington No. 11CA22, 2012-Ohio-4234,

¶ 11, quoting State v. Green, 184 Ohio App.3d 406, 412, 2009-Ohio-5199, 921 N.E.2d

276, ¶ 14 (4th Dist.).

       {¶ 15} The trial court stated that its conscience was shocked by appellant’s

acknowledgment that, contrary to initial assertions that the $499 granite sealer would last

15 years, reapplication every three to five years is required. The trial court concluded




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that selling a countertop sealer that retails for $48 to appellees for $499 was an

unconscionable consumer sales practice act under R.C. 1345.03(2). Based on our review

of the record and the law as set forth above, we find that the trial court’s decision

allowing appellees’ evidence as to the cost of the countertop sealer and awarding treble

damages with regard to appellees’ cost was not an abuse of discretion. Accordingly,

appellant’s third assignment of error is not well-taken.

       {¶ 16} On consideration whereof, the judgment of the Perrysburg Municipal Court

is affirmed. Costs of this appeal are assessed to appellant pursuant to App.R. 24.


                                                                         Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Stephen A. Yarbrough, P.J.                                  JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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