[Cite as Riley v. Hawley, 2011-Ohio-4422.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



TIM RILEY                                    :
                                             :
        Plaintiff-Appellant                  :
                                             :
-vs-                                         :
                                             :
JOEL HAWLEY                                  :
                                             :
        Defendant-Appellee                   :

JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.


Case No. 11-COA-010

OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Municipal Court, Case No.
                                                 10-CVI-01443



JUDGMENT:                                        Judgment Vacated; New Judgment Entered




DATE OF JUDGMENT ENTRY:                          August 30, 2011




APPEARANCES:
For Plaintiff-Appellant                     For Defendant-Appellee

TIM RILEY, PRO SE                           JOEL HAWLEY, PRO SE
4525 Gibbs Road                             309 Country Road 40
Norwalk, OH 44857                           Sullivan, OH 44880
Farmer, J.

       {¶1}   On October 13, 2010, appellant, Tim Riley, filed a complaint against

appellee, Joel Hawley, alleging breach of contract. The parties had entered into an oral

contract wherein appellant was to provide architectural work and obtain a building

permit for a property appellee was contracted to work on.        Appellant alleged that

appellee owed him $2,640.90 for services rendered.

       {¶2}   On November 9, 2010, appellee filed a counterclaim, alleging that he had

to spend $2,995.00 to remedy appellant's errors.

       {¶3}   A hearing before a magistrate was held on November 17, 2010.           By

decision filed January 20, 2011, the magistrate found against appellant on his complaint

and for appellee on his counterclaim. Appellant filed objections. By judgment order

filed March 9, 2011, the trial court approved and adopted the magistrate's decision and

awarded appellee $2,995.00.

       {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

       {¶5}   "THE TRIAL COURT ERRED BY AWARDING THE INCORRECT

AMOUNT OF DAMAGES IN FAVOR OF APPELLEE HAWLEY."

                                            I
      {¶6}   Appellant claims the trial court erred in its determination of damages as it

did not apply the correct legal standard in awarding damages. We agree in part.

      {¶7}   A judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must

not substitute its judgment for that of the trial court where there exists some competent

and credible evidence supporting the judgment rendered by the trial court. Myers v.

Garson, 66 Ohio St.3d 610, 1993-Ohio-9.

      {¶8}   As explained by our brethren from the Ninth District in McKinley v. Brandt

Construction, Inc., 168 Ohio App.3d 214, 2006-Ohio-3290, ¶10:

      {¶9}   "Any contract to perform work imposes on the contractor the duty to

perform the work in a workmanlike manner. Lin v. Gatehouse Constr. Co. (1992), 84

Ohio App.3d 96, 101, 616 N.E.2d 519. ' "Workmanlike manner" has been defined as

the way work is customarily done by other contractors in the community.' Jones v.

Davenport (Jan. 26, 2001), 2nd Dist. No. 18162, at 8, 2001 WL 62513, citing Salewsky

v. Williams (Sept. 17, 1990), 5th Dist. No. CA-8131, at 4, 1990 WL 139731. When a

contractor fails to perform in a workmanlike manner, the proper measure of damages is

the cost to repair the damage to the condition contemplated by the parties at the time of

the contract. McCray v. Clinton Cty. Home Improvement (1998), 125 Ohio App.3d 521,

523-524, 708 N.E.2d 1075."

      {¶10} Appellant stated he drew and submitted plans and obtained the required

building permit in partial performance of the contract. T. at 3. Appellant argues the

work performed enabled appellee to secure the permit and therefore he should be paid
in full. In support of his position, appellant presented Plaintiff's Exhibit C, a copy of the

check he wrote to pay for the permit ($100.00).            T. at 5.    In the magistrate's

determination of damages, as approved and adopted by the trial court, there was no

acknowledgment of this cost:

       {¶11} "Based upon all of the evidence, the Magistrate finds that the Plaintiff is

not entitled to recover any monies from the Defendant. The work he was contracted to

do was done in an unworkmanlike manner and was not fit for the purpose for which it

was intended. It ended up requiring Defendant to hire another architect to complete the

work and fix the errors, and also cost him money. Defendant is not required to pay for

these services.

       {¶12} "The Magistrate finds that Defendant is entitled to recover the amount of

$2995.00 from Plaintiff for the damages he incurred as a result of relying upon the faulty

work done by Plaintiff. The evidence establishes that the work was done with errors

and deficiencies and that as a direct result, Defendant incurred costs of $2995.00.

Therefore, the Magistrate finds that the Defendant is entitled to judgment in the amount

of $2995.00 against the Plaintiff, with interest thereon at the statutory rate of 4 percent

per annum until paid, plus costs.

       {¶13} "The Plaintiff's claim should be dismissed with costs taxed to Plaintiff."

       {¶14} It was appellee's position that appellant did not have that much to do to

obtain the building permit. T. at 7. Once the permit was procured, mistakes were

discovered in the plans. T. at 8. Appellant was contacted to make the necessary

corrections, but he never did them. T. at 8-9, 21. As a result of following the plans, a

required retention pond was oversized and had to be corrected.                T at 10, 17;
Defendant's Exhibit A. Appellee had to provide new plans, and paid $425.00 to an

architectural group for the work. T. at 9; Defendant's Exhibits B. The total cost for the

architectural work and to fix the pond amounted to $2,995.00. T. at 13; Defendant's

Exhibit D. It was appellee's opinion that sixty percent of what appellant drew had to be

redone. T. at 22.

      {¶15} The trial court awarded appellee damages on his counterclaim pursuant to

Defendant's Exhibit D which included the amounts for the redesign and reconstruction

of the pond.

      {¶16} We find the evidence is sufficient to support the trial court's determination

on the costs for repairs as a result of appellant's unsatisfactory plans. However, we

also find the trial court erred in not crediting appellant for the $100.00 permit he

obtained which was used to perform the work. Pursuant to App.R. 12(C), we hereby

adjust the judgment to appellee to $2,895.00 to reflect the $100.00 permit fee.

      {¶17} The sole assignment of error is granted in part.

      {¶18} The judgment of the Municipal Court of Ashland County, Ohio is hereby

vacated, and judgment is entered for appellee as against appellant in the amount of

$2,895.00.

By Farmer, J.

Gwin, P.J. and

Edwards, J. concur.




                                            _s/ Sheila G. Farmer______________
                                            __s/ W. Scott Gwin___________________




                                            _Julie A. Edwards___________________

                                                      JUDGES

SGF/sg 816

            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


TIM RILEY                                   :
                                            :
       Plaintiff-Appellant                  :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
JOEL HAWLEY                                 :
                                            :
       Defendant-Appellee                   :         CASE NO. 11-COA-010




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Ashland County, Ohio is vacated, and judgment is

entered for appellee as against appellant in the amount of $2,895.00.




                                            s/ Sheila G. Farmer______________




                                            __s/ W. Scott Gwin___________________
_Julie A. Edwards___________________

         JUDGES
