[Cite as Slusher v. All Points Chimney, 2017-Ohio-779.]




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


Laura Slusher                                             Court of Appeals No. L-16-1100

        Appellee                                          Trial Court No. CVI-1600022

v.

All Points Chimney                                        DECISION AND JUDGMENT

        Appellant                                         Decided: March 3, 2017

                                                 *****

        Clint M. McBee, for appellant.

                                                 *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, All Points Chimney, appeals from the judgment of the Sylvania

Municipal Court, awarding $2,465.03 in favor of appellee, Laura Slusher, on her claim

for breach of contract. For the reasons that follow, we affirm.
                            I. Facts and Procedural Background

         {¶ 2} On February 9, 2016, appellee filed a small claims complaint against

appellant, alleging that appellant was hired to install a chimney pipe, but failed to do so.

The matter proceeded to a bench trial on April 7, 2016.

         {¶ 3} The facts elicited from the bench trial are as follows. In the late summer of

2015, appellee, through her architect, solicited bids to install a chimney for a radiant

wood-burning stove as part of her home renovation. Appellant was one of the companies

that provided an estimate. Appellee agreed to appellant’s proposal, and on September 28,

2015, paid appellant $1,412.65 for the chimney parts required for the installation. At the

time, the estimate from appellant for the labor for the installation was $685 “if you want

us to do it.”

         {¶ 4} Subsequently, it was discovered that the stove could not be installed as

originally contemplated. Appellee consulted with appellant, and an alternative

installation was planned. Due to the alterations, appellant submitted a second estimate

for an additional down payment of $992.38 for parts, with a balance of $785 for labor due

upon installation. In addition, appellant collected a $60 consulting fee. Appellee paid the

$992.38 down payment on October 26, 2015.

         {¶ 5} On November 23, 2015, appellant delivered the parts,1 and informed

appellee that installation would occur two days later, on November 25, 2015.




1
    The parties dispute whether all of the parts were delivered.

2.
       {¶ 6} Prior to the installation date, appellant informed appellee that it would not

complete the installation because the stove would create a fire hazard as it was to be

installed near a combustible wall. Gregory Keefer, the owner of appellant, explained at

the trial that when they agreed to the alternative installation, the walls had not been

completed, and he informed appellee that the stove could not be installed next to drywall.

Rather, the wall had to be made of a noncombustible material. He testified that when he

delivered the parts, he noticed that the wall was made of drywall. Thus, he told appellee

that he would not take the liability for installing the stove in that manner. Notably, Larry

Miller, the architect for appellee, testified that he applied for a permit for the installation,

which was approved as prepared by his architectural drawings.

       {¶ 7} Following the trial, the court issued its decision on April 25, 2016, in which

it concluded that the parties had entered into a partial written and partial oral contract for

the purchase and installation of chimney parts for the wood-burning stove. In addition,

the court concluded that appellant breached the contract by not completing the job, even

though appellee’s architect had pulled a permit to have the project completed as set forth

in the permit drawings. Therefore, the court awarded judgment in favor of appellee in the

amount of $2,465.03, which represents the total amount she paid to appellant. Further,

the court noted that if appellant paid the judgment within ten days, it would be entitled to

retrieve the delivered chimney parts. If it failed to do so, the parts would be forfeited.




3.
                                 II. Assignment of Error

       {¶ 8} Appellant has timely appealed the trial court’s April 25, 2016 judgment, and

now asserts one assignment of error for our review:

              1. The trial court erred as a matter of law by granting plaintiff

       judgment in her favor because the facts demonstrate defendant should be

       awarded judgment.

                                       III. Analysis

       {¶ 9} An appellate court reviews judgments from the trial court following a bench

trial under the manifest weight of the evidence standard. Terry v. Kellstone, Inc., 6th

Dist. Erie No. E-12-061, 2013-Ohio-4419, ¶ 12. The standard of review for manifest

weight is the same in a civil case as in a criminal case. Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. As such, we must weigh the evidence

and all reasonable inferences, consider the credibility of witnesses, and determine

whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and

created such a manifest miscarriage of justice that the judgment must be reversed and a

new trial ordered. Id. at ¶ 20. In so doing, “the court of appeals must always be mindful

of the presumption in favor of the finder of fact.” Id. at ¶ 21.

       {¶ 10} In support of its assignment of error, appellant argues that the sale of the

parts was complete, and that it did not breach the agreement to install the chimney.

Rather, appellant contends that appellee was the cause of the failure to complete the




4.
contract because of her insistence on locating the stove in a manner that was unsafe and

in violation of the building code.

       {¶ 11} Upon consideration, we do not find this to be the exceptional case where

the trial court lost its way and created a manifest miscarriage of justice. Here, the trial

court’s conclusion that the contract was for both parts and installation is supported by the

testimony regarding the parties’ conduct, as well as an October 20, 2015 email from

appellant to appellee stating, “We will require a downpayment of $992.38 prior to any

product being ordered. Balance due will be the installation cost of $785 and any

applicable tax.” In addition, it is undisputed that appellant did not install the chimney.

Finally, the court’s conclusion that appellant breached the contract by failing to install the

chimney, despite appellant claiming that the installation was unsafe, is supported by the

fact that appellee’s architect applied for and was awarded a building permit for the

installation as set forth in the permit drawings. Therefore, we hold that the trial court’s

judgment finding appellant to be in breach of the contract is not against the manifest

weight of the evidence.

       {¶ 12} Accordingly, appellant’s assignment of error is not well-taken.

                                      IV. Conclusion

       {¶ 13} For the foregoing reasons, we find that substantial justice has been done the

party complaining, and the judgment of the Sylvania Municipal Court is affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                          Judgment affirmed.


5.
                                                        Slusher v. All Points Chimney
                                                        C.A. No. L-16-1100




       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
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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