[Cite as SPG, Inc. v. First St. Dev., L.L.C., 2016-Ohio-2824.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 SPG, INC., DBA ST. CLAIR/PAVLIS                         :       JUDGES:
 GROUP                                                   :
                                                         :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellant                              :       Hon. W. Scott Gwin, J.
                                                         :       Hon. Patricia A. Delaney, J.
 -vs-                                                    :
                                                         :       Case No. 2015CA000140
                                                         :
 FIRST STREET DEVELOPMENT, LLC                           :
                                                         :
                                                         :
        Defendant-Appellee                               :       OPINION


CHARACTER OF PROCEEDING:                                         Appeal from the Stark County Court of
                                                                 Common Pleas, Case No.
                                                                 2013CV03148



JUDGMENT:                                                        AFFIRMED




DATE OF JUDGMENT ENTRY:                                          May 2, 2016




APPEARANCES:

 For Plaintiff-Appellant:                                        For Defendant-Appellee:

 JOHN A. MURPHY, JR.                                             RALPH F. DUBLIKAR
 KRISTEN S. MOORE                                                400 South Main St.
 200 Market Ave. N.                                              North Canton, OH 44720
 P.O. Box 24213
 Canton, OH 44701-4213
Stark County, Case No. 2015CA00140                                                       2

Delaney, J.

       {¶1} Plaintiff-Appellant SPG, Inc., DBA St. Clair/Pavlis Group appeals the July

6, 2015 judgment entry of the Stark County Court of Common Pleas.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On December 9, 2013, Plaintiff-Appellant SPG, Inc. dba St. Clair/Pavlis

Group (“SPG”) filed a complaint in the Stark County Court of Common Pleas against

Defendant-Appellee First Street Development, LLC (“First Street”). In the complaint, SPG

alleged that First Street owed $58,949.66 for unpaid construction services and raised

claims for breach of contract, unjust enrichment, and fraud. First Street filed an answer

and counterclaim, alleging fraudulent billing, invalid mechanic’s lien, and fraudulent

inducement. SPG filed an amended prayer requesting $57,299.66 in damages plus

$5,000 on its claim for fraud.

       {¶3} The matter came on for a bench trial on May 13, 2015. The following

evidence was adduced at trial.

       {¶4} SPG is a construction company owned and operated by John Pavlis. First

Street is a company owned by John Eisenhut, Steve DiPietro, and David DiPietro.

       {¶5} In the summer of 2012, SPG was doing construction work in a large

industrial building located in Massillon, Ohio owned by First Street. First Street was

subdividing the building into tenant units. While SPG was working on another portion of

the building, First Street approached SPG about completing a new space for its tenant,

Frank’s Casing Crew & Rental Tools, Inc. (“Frank’s”).

       {¶6} On March 3, 2012, First Street entered into a lease agreement with Frank’s.

Frank’s was to lease a portion of the building, Pursuant to the terms of the lease, Frank’s
Stark County, Case No. 2015CA00140                                                        3


had 30 days to construct on the leased space those alterations and improvements

described in “Exhibit B” attached to the lease and referred to as “Initial Alterations.” The

Initial Alterations were to be constructed at Frank’s sole cost and expense. Frank’s and

First Street never attached Exhibit B to the lease agreement. The lease also stated that

First Street agreed to provide a sewer connection to the leased space.

       {¶7} First Street requested SPG to complete a sewer hookup, construct

bathrooms, install an industrial garage door, and other work to get the space ready for

Frank’s. First Street told SPG that the work needed to be done quickly. First Street and

SPG entered into an oral contract where SPG would complete the construction work

under a costs plus 10% agreement (5% overhead and 5% profit). SPG also entered into

an oral contract with Frank’s to complete construction of the leased space at an agreed

rate of costs plus 15%. SPG began the work in June 2012.

       {¶8} SPG completed the work to the leased space and Frank’s moved in by

September 2012. The parties agree there was no dispute about the quality of the work

done by SPG. The dispute in this case involves which company was to pay SPG for the

work completed to the leased space.

       {¶9} First Street requested that SPG send all invoices for work completed under

SPG’s agreement with Frank’s to First Street. On September 27, 2012, SPG submitted

an invoice for work completed under SPG’s agreement with Frank’s under Job Number

3273 in the amount of $151,007.92. First Street amended the SPG invoice to reduce the

amount to $142,772.20 and sent the invoice to Frank’s on October 24, 2012. Counsel for

First Street sent Frank’s a letter on November 2, 2012 requesting that it pay SPG in the

amount of $142,772.20. Frank’s did not pay the invoice.
Stark County, Case No. 2015CA00140                                                          4


       {¶10} Sometime in November 2012, John Pavlis, the principal of SPG, met with

the members of First Street. Pavlis indicated he would be filing a lawsuit against Frank’s

for its failure to pay its invoice. According to the members of First Street, Pavlis indicated

he would be including First Street as a party defendant. He would also be placing a

mechanic’s lien on the premises. Pavlis told First Street that naming First Street in the

lawsuit was a formality and would not cost it anything.

       {¶11} In November 2012, it was unknown how much First Street owed SPG for

the work completed on the leased space. On November 19, 2012, First Street paid SPG

$25,000.00.

       {¶12} SPG filed a mechanic’s lien on November 20, 2012, against both First Street

and Frank’s.

       {¶13} On December 7, 2012, SPG filed a complaint in the Stark County Court of

Common Pleas against Frank’s and First Street in Case No. 2012 CV 03795. In the

complaint, SPG brought claims for breach of contract, unjust enrichment, and foreclosure

on the mechanic’s lien. Count One of the complaint alleged it entered into a contract with

Frank’s whereby SPG would provide labor and materials to Frank’s at the leased space.

SPG attached an invoice to the complaint dated October 29, 2012 under Job Number

3273 that showed the balance on account was $146,885.40. SPG stated Frank’s failed

to pay the balance of the invoice. Count Three of the complaint stated that SPG entered

into a contract with First Street whereby SPG would provide labor and materials to First

Street for the construction of the leased space. SPG referred to the same invoice under

Job Number 3273 to state that First Street failed to pay the balance of the invoice and

owed $146,885.40.
Stark County, Case No. 2015CA00140                                                       5


       {¶14} Mediation was scheduled for August 21, 2013. Prior to mediation, Pavlis

met with the members of First Street. The members alleged that Pavlis asked First Street

to offer $30,000 in mediation to leverage Frank’s.

       {¶15} During the mediation, SPG attempted to raise the issue of the balance due

from First Street for the work completed under the contract between SPG and First Street.

SPG alleged the amount owed by First Street under its contract was approximately

$54,000. The mediator would not allow the contract between SPG and First Street to be

raised at the mediation. The mediation conference resulted in a purported settlement

between the parties. The August 22, 2013 report of mediation stated Frank’s was to pay

SPG $110,000. First Street was to pay SPG $35,000 at the closing of First Street’s

refinancing of the building. SPG was to release the mechanic’s lien against First Street to

allow the refinancing of the building.

       {¶16} Subsequent to the filing of the mediation report, Pavlis and First Street

agreed that First Street would pay $30,000 instead of $35,000.

       {¶17} On August 23, 2013, counsel for First Street delivered a $30,000 check to

counsel for SPG. First Street’s counsel was instructed that, in exchange for the $30,000

payment, he was to obtain a release of the mechanic’s lien and to record the release that

day. When First Street’s counsel attempted to deliver the $30,000 payment to SPG’s

counsel, SPG’s counsel presented him with a letter. The letter, dated August 23, 2013

and sent by email to First Street’s counsel, stated that when Case No. 2012 CV 03795

was settled at mediation, an additional $54,000 was due from First Street. Counsel for

First Street did not see the email before he delivered the check. First Street’s counsel

testified that he felt pressured to write “confirmed” on the letter in order to obtain the
Stark County, Case No. 2015CA00140                                                    6


release on the mechanic’s lien. He did not have permission from his client to make such

an agreement. The release of the mechanic’s lien was recorded on August 23, 2013.

      {¶18} First Street’s counsel sent an email to SPG’s counsel on August 26, 2013

stating the release of the mechanic’s lien was not conditioned upon the payment of an

additional $54,000 to SPG. The email further stated the amount First Street owed SPG

had yet to be determined because no documentation was provided to First Street. SPG’s

counsel responded that the $54,000 balance was raised at mediation.

      {¶19} The parties filed motions to enforce the settlement with the trial court in

Case No. 2012 CV 03795. On November 13, 2013, the parties entered into a Mutual

Release of All Claims. The pertinent terms of the Mutual Release are as follows:

      ***

      WHEREAS, the Parties to said lawsuit desire to settle all claims upon the

      consideration set forth in this Mutual Release and upon payment of the sum

      of ONE HUNDRED TEN THOUSAND DOLLARS ($110,000.00) by Frank’s

      to SPG, and the sum of THIRTY-FIVE THOUSAND DOLLARS

      ($35,000.00) by First Street to SPG, the receipt of which is hereby

      acknowledged;

      NOW, THEREFORE in consideration of said payment and in further

      consideration of the terms and conditions of this Mutual Release, each of

      the Parties * * *, do hereby fully and forever release and discharge all

      Parties * * * from any and all claims, actions, demands, debts, and contracts

      whatsoever that now exist or may hereafter accrue against any of the
Stark County, Case No. 2015CA00140                                                       7


      Parties to said lawsuit regarding matters set forth in the pleadings of said

      lawsuit, which are incorporated herein specifically by reference.

      ***

      It is understood and agreed that this Release includes but is not limited to

      all claims and demands set forth in Case Number 2012CV03795 and that

      said cause of action shall forthwith be dismissed without prejudice. A copy

      of the Dismissal Entry is attached hereto as Exhibit “A.”

      Any existing obligation of First Street to SPG is excluded from this Mutual

      Release, as between those two parties.

      ***

      * * * and that said settlement and compromise are made to terminate further

      controversy respecting all claims for damages that any of the Parties hereto

      have heretofore asserted or might hereafter assert with respect to the

      matters set forth in the pleadings in Case Number 2012CV03795.

      {¶20} First Street conceded that First Street owed SPG an additional amount of

money, but the parties could not agree as to the amount. Counsel for First Street and

members of First Street requested documentation from SPG to determine the amount

owed. First Street argued it never received complete and reconcilable documents from

SPG to verify the amount SPG claimed it was owed.

      {¶21} At trial, SPG submitted two invoices it sent to First Street. Exhibit 1 was the

first invoice under Job Number 3269 stated the total amount of work done under the

contract was $79,812.66. The balance due was $54,812.66. Exhibit 2 was the second

invoice under Job Number 3269 and stated the balance due was $58,949.66. At trial,
Stark County, Case No. 2015CA00140                                                        8


SPG presented Exhibit 13, which stated the total amount due was $82,299.67. First Street

argued the total amount of the contract was $60,551.75.

      {¶22} The next issue in conflict was the amount First Street had paid to SPG.

There was no dispute that First Street paid SPG $25,000 and it was agreed this amount

was paid towards the contract between SPG and First Street. The issue in contention was

the $30,000 payment from First Street to SPG. SPG argued the $30,000 payment from

First Street was to settle the matter between SPG and Frank’s and went towards the

contract between SPG and Frank’s. First Street argued the $30,000 payment was

towards the balance owed on the contract between SPG and First Street. Accordingly,

SPG argued First Street owed $57,299.67. First Street argued it owed $5,551.75.

      {¶23} The trial court issued its Findings of Fact and Conclusions of Law on July

6, 2015. The trial court found the total amount due on the contract between First Street

and SPG was $82,299.67. The trial court applied the $25,000 payment from First Street

to SPG and concluded the balance due was $57,299.67. The trial court next found that

any amounts paid by First Street in Case No. 2012 CV 03795 were to be applied to First

Street’s invoices. Accordingly, the trial court deducted First Street’s $30,000 payment

from the $57,299.67 balance and concluded First Street owed SPG $27,299.67 on the

complaint.

      {¶24} The trial court further held that neither party met their burden to show it was

entitled to punitive damages or attorney’s fees based on any claims of fraud in the

complaint or counterclaim.

      {¶25} The trial court journalized its decision in a judgment entry filed July 6, 2015.

It is from this entry SPG now appeals.
Stark County, Case No. 2015CA00140                                                       9


                              ASSIGNMENTS OF ERROR

       {¶26} SPG raises five Assignments of Error:

       {¶27} “I. THE TRIAL COURT ERRED IN RE-WRITING THE LANGUAGE OF THE

RELEASE TO EXCULPATE A $30,000 DEBT OWED FROM FIRST STREET TO SPG.

       {¶28} “II. THE TRIAL COURT ERRED IN CONSIDERING PAROL EVIDENCE

RATHER THAN APPLYING THE PLAIN LANGUAGE OF THE RELEASE.

       {¶29} “III. ASSUMING, ARGUENDO, IT WAS APPROPRIATE FOR THE TRIAL

COURT TO CONSIDER PAROL EVIDENCE, THE EVIDENCE DEMONSTRATED THAT

THE $30,000 WAS PAID IN CONSIDERATION FOR SETTLEMENT OF CLAIMS

RELATING TO JOB NUMBER 3273.

       {¶30} “IV. THE TRIAL COURT ERRED IN FAILING TO GIVE ANY EFFECT TO

THE POST-MEDIATION COMPROMISE SIGNED BY FIRST STREET’S COUNSEL.

       {¶31} “V. THE TRIAL COURT ERRED BY INCORRECTLY CALCULATING

SPG’S DAMAGES.”

                                       ANALYSIS

                                  Standard of Review

       {¶32} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Our role is to determine whether there is relevant,

competent, and credible evidence upon which the fact finder could base his or her

judgment. Peterson v. Peterson, 5th Dist. Muskingum No. CT2003–0049, 2004–Ohio–

4714, ¶ 10, citing Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911

(Feb. 10, 1982). Questions of law are reviewed by the court de novo. Erie Ins. Co. v.

Paradise, 5th Dist. Fairfield No. 2008CA00084, 2009–Ohio–4005, ¶ 12.
Stark County, Case No. 2015CA00140                                                         10

       {¶33} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d

517, the Ohio Supreme Court clarified the standard of review appellate courts should

apply when assessing the manifest weight of the evidence in a civil case. SST Bearing

Corp. v. Twin City Fan Companies, Ltd., 1st Dist. Hamilton No. C110611, 2012–Ohio–

2490, ¶ 16. The Ohio Supreme Court held the standard of review for manifest weight of

the evidence for criminal cases stated in State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997), is also applicable in civil cases. Eastley, at ¶ 17–19, 972 N.E.2d 517.

A reviewing court is to examine the entire record, 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.”

Eastley, at ¶ 20 quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176

(9th Dist.2001); See also Sheet Metal Workers Local Union No. 33 v. Sutton, 5th Dist.

Stark No. 2011CA00262, 2012–Ohio–3549 citing State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983).

       {¶34} “In a civil case, in which the burden of persuasion is only by a

preponderance of the evidence, rather than beyond a reasonable doubt, evidence must

still exist on each element (sufficiency) and the evidence on each element must satisfy

the burden of persuasion (weight).” Eastley, at ¶ 19.

       {¶35} In the case of contracts, the construction of the writing is a matter of law,

which is reviewed de novo. See, Martin v. Lake Mohawk Property Owner's Ass'n, 7th Dist.

Carroll No. 04 CA 815, 2005–Ohio–7062, ¶ 23, citing Long Beach Assn., Inc. v. Jones,

82 Ohio St.3d 574, 576, 697 N.E.2d 208 (1998). Under a de novo review, an appellate
Stark County, Case No. 2015CA00140                                                            11


court may interpret the language of the contract substituting its interpretation for that of

the trial court. Witte v. Protek Ltd., 5th Dist. Stark No. 2009CA00230, 2010–Ohio–1193,

¶ 6, citing Children's Medical Center v. Ward, 87 Ohio App.3d 504, 622 N.E.2d 692 (2nd

Dist.1993).

                                               I.

       {¶36} SPG argues in its first Assignment of Error that the trial court impermissibly

re-wrote the terms of the Mutual Release to apply the $30,000 payment from First Street

towards the contract between SPG and First Street. We disagree.

       {¶37} When confronted with an issue of contract interpretation, our role is to give

effect to the intent of the parties. Gen. Elec. Capital Corp. v. Tartan Fields Golf Club, Ltd.,

5th Dist. Delaware No., 2013–Ohio–4875, 1 N.E.3d 463, ¶ 19 citing Westfield Ins. Group

v. Affinia Dev., L.L.C., 2012–Ohio–5348, 982 N.E.2d 132, ¶ 21 (5th Dist.). We will

examine the contract as a whole and presume that the intent of the parties is reflected in

the language of the contract. In addition, we will look to the plain and ordinary meaning

of the language used in the contract unless another meaning is clearly apparent from the

contents of the agreement. When the language of a written contract is clear, a court may

look no further than the writing itself to find the intent of the parties. “As a matter of law, a

contract is unambiguous if it can be given a definite legal meaning.” Sunoco, Inc. (R & M)

v. Toledo Edison, Co., 129 Ohio St.3d 397, 2011–Ohio–2720, 953 N.E.2d 285, ¶ 37 citing

Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003–Ohio–5849, 797 N.E.2d 1256, ¶

11.

       {¶38} However, where the contract language is reasonably susceptible of more

than one interpretation, the meaning of the ambiguous language is a question of fact.

Ohio Historical Soc. v. Gen. Maint. & Eng. Co., 65 Ohio App.3d 139, 146, 583 N.E.2d 340
Stark County, Case No. 2015CA00140                                                       12


(10th Dist.1989). “Only when the language of a contract is unclear or ambiguous, or when

the circumstances surrounding the agreement invest the language of the contract with a

special meaning will extrinsic evidence be considered in an effort to give effect to the

parties' intentions.” Shifrin v. Forest City Ent., Inc., 64 Ohio St.3d 635, 638, 597 N.E.2d

499 (1992), syllabus.

       {¶39} SPG argues the clear and unambiguous language of the Mutual Release

demonstrates the $30,000 payment by First Street was made in consideration for the

dismissal of Case No. 2012 CV 03795. SPG’s complaint in Case No. 2012 CV 03795

alleged a claim of breach of contract against Frank’s with damages in the amount of

$146,885.40. The damages were based on SPG’s October 29, 2012 invoice to Frank’s

under Job Number 3273. SPG also brought a breach of contract claim against First Street

alleging damages in the amount of $146,885.40 pursuant to the same invoice.

       {¶40} In SPG’s appellate brief, SPG directs this Court to examine the use of the

different Job Numbers to designate the work done under SPG’s contract with First Street

or Frank’s. SPG designated Job Number 3273 for work done under Frank’s contract. SPG

designated Job Number 3269 for work done under First Street’s contract. SPG argues

the $30,000 should not be applied to the balance First Street owed to SPG under Job

Number 3269 because that Job Number that was not part of Case No. 2012 CV 03795.

A thorough review of the record in this case, including the parties’ proposed findings of

fact and conclusions of law, shows that SPG did not bring to the trial court’s attention the

use of the different Job Numbers to explain how the $30,000 from First Street should be

applied. SPG raises this explanation utilizing the different Job Numbers for the first time

on appeal.
Stark County, Case No. 2015CA00140                                                        13


       {¶41} We then look to the language of the Mutual Release, as the trial court did,

to determine if the trial court erred in applying the $30,000 to First Street’s outstanding

balance. We find the language of the Mutual Release was ambiguous as to the resolution

of the obligations between SPG and First Street. The Mutual Release first states that

Case No. 2012 CV 03795 was settled upon the payment of $35,000 by First Street to

SPG. The Mutual Release goes on to state that any existing obligation of First Street to

SPG is excluded from the Mutual Release. There is no definition or explanation of the

meaning of “any existing obligation” in the Mutual Release. There is no reference in the

Mutual Release as to Job Number 3273 or 3269. Accordingly, the ambiguous language

becomes a question of fact where the trial court can use extrinsic evidence to determine

the parties’ intentions.

       {¶42} In Case No. 2012 CV 03795, SPG claimed both Frank’s and First Street

owed it $146,885.40 under Job Number 3273. Before SPG filed Case No. 2012 CV

03795, Pavlis met with the members of First Street and its counsel. Pavlis explained that

SPG was naming First Street as a party defendant in its lawsuit against Frank’s, but it

was a “formality” and “would not cost First Street anything.” (T. 318).

       {¶43} The parties agree that at the time of mediation in Case No. 2012 CV 03795,

there was an existing obligation of First Street to SPG. Steve DiPietro testified that before

the mediation, Steve DiPietro spoke with Pavlis. Pavlis asked him to have First Street pay

$30,000 to leverage Frank’s into paying more than $110,000 to settle Case No. 2012 CV

03795. (T. 370). It was Steve DiPietro’s understanding that the $30,000 would be applied

to First Street’s balance. (T. 371). There was no testimony as to which balance, either

Job Number 3269 or 3273.
Stark County, Case No. 2015CA00140                                                        14


       {¶44} Our role is to determine whether there is relevant, competent, and credible

evidence upon which the fact finder could base his judgment. The trial court concluded

       that any amounts paid by First Street in Case No. 2012 CV 03795 were to

       be applied to First Street’s invoices. Since First Street admittedly and

       without dispute paid the plaintiff the sum of $55,000 [$25,000 plus $30,000],

       this amount should be properly deducted from any amounts that may have

       been invoiced to the defendant or for any amounts representing work

       properly performed by the plaintiff on behalf of the defendant.

We find the trial court’s interpretation of the ambiguous language of the Mutual Release

is supported by the evidence in the record.

       {¶45} SPG’s first Assignment of Error is overruled.

                                         II. and III.

       {¶46} SPG argues in its second Assignment of Error that the trial court erred in

considering parol evidence to interpret the language in the Mutual Release. SPG argues

in its third Assignment of Error that if parol evidence was admissible, then the trial court

erred when it applied the $30,000 payment to the balance owed by First Street.

       {¶47} When terms of an agreement are ambiguous, parol evidence may be used

to explain the understanding of the parties at the time the agreement was entered into.

Phillimore v. Butterbaugh, 5th Dist. Richland No. 14CA32, 2014-Ohio-4641, ¶ 30 citing

Ohio Crane Co. v. Hicks, 110 Ohio St. 168, 143 N.E. 388 (1924). If we determine a

contract to be ambiguous, we must decide the meaning of the terms in the contract and

this determination is a question of fact. Id. citing Walter v. Agoston, 12th Dist. Warren No.

CA2003–03–039, 2004–Ohio–2488.
Stark County, Case No. 2015CA00140                                                        15


       {¶48} We determined in the first Assignment of Error that the language of the

Mutual Release was ambiguous as to the meaning of the provision, “Any existing

obligation of First Street to SPG is excluded from this Mutual Release, as between those

two parties.” Pursuant to the parol evidence rule, “if a written contract does not contain

the complete and exclusive statement of all the terms of the agreement, a factual

determination of the parties’ intent may be necessary to supply the missing term.” Jacco

& Assoc., Inc. v. HVAC, Inc., 5th Dist. Tuscarawas No. 2013 AP 03 0016, 2014-Ohio-128,

¶ 46. In order to interpret the provision of the Mutual Release, the trial court utilized the

evidence presented at trial to find that the $30,000 payment was to be applied to First

Street’s outstanding balance to SPG.

       {¶49} We find no error for the trial court to utilize parol evidence to determine the

parties’ intent in this case. SPG’s second Assignment of Error is overruled.

       {¶50} In its third Assignment of Error, SPG contends the trial court’s decision that

the $30,000 payment was to be applied to First Street’s outstanding balance was not

supported by competent and credible evidence. We disagree. As we held in the first

Assignment of Error, we find the evidence presented at trial supports the trial court’s

conclusion that the $30,000 payment was to be applied to First Street’s outstanding

balance. SPG’s third Assignment of Error is overruled.

                                             IV.

       {¶51} SPG contends in its fourth Assignment of Error that the trial court erred in

not giving any effect to the post-mediation compromise signed by counsel for First Street.

In this Assignment, SPG is referring to the events that occurred on August 23, 2013. On

August 23, 2013, counsel for First Street delivered a $30,000 check to counsel for SPG.
Stark County, Case No. 2015CA00140                                                        16


First Street’s counsel was instructed that, in exchange for the $30,000 payment, he was

to obtain a release of the mechanic’s lien and to record the release that day. When First

Street’s counsel attempted to deliver the $30,000 payment to SPG’s counsel, SPG’s

counsel presented him with a letter. The letter, dated August 23, 2013 and sent by email

to First Street’s counsel, stated that when Case No. 2012 CV 03795 was settled at

mediation, an additional $54,000 was due from First Street. First Street’s counsel testified

he did not see the email before he delivered the $30,000 check. First Street’s counsel

testified that he felt pressured to write “confirmed” on the letter in order to obtain the

release on the mechanic’s lien. He testified he did not have permission from his client to

make this agreement. The release of the mechanic’s lien was recorded on August 23,

2013.

        {¶52} SPG argues the meeting on August 23, 2013 between counsel for First

Street and SPG was a settlement conference. It further argues the August 23, 2013 letter

with the word “confirmed” written by counsel for First Street constituted a settlement

agreement between First Street and SPG as to the amount owed. The trial court did not

interpret the actions of counsel for First Street on August 23, 2013 as a settlement and

we find the record supports its conclusion.

        {¶53} Counsel for First Street testified at trial that he was sent to SPG’s counsel’s

office for the specific purpose of delivering the $30,000 check from First Street to SPG.

(T. 254). When he delivered the check, he was to obtain the release of the mechanic’s

lien and then he was to record the release. (T. 254). Counsel testified he had no authority

from his client to confirm that it owed $54,000 as stated in the August 23, 2013 letter. (T.

260). On August 26, 2013, counsel for First Street emailed counsel for SPG in which he
Stark County, Case No. 2015CA00140                                                      17


specifically disclaimed any authority to confirm any type of settlement in the amount of

$54,000. (T. 260). The email was entered as Plaintiff’s Exhibit 8.

       {¶54} The trial court considered this evidence and found the terms of the August

23, 2013 letter did not constitute a settlement. We find the trial court’s conclusion is

supported by competent, credible evidence.

       {¶55} SPG’s fourth Assignment of Error is overruled.

                                            V.

       {¶56} SPG argues in its fifth Assignment of Error that the trial court erred in the

calculation of SPG’s damages. It again refers to the trial court’s finding that the $30,000

payment was to be applied to First Street’s outstanding balance.

       {¶57} At trial, SPG presented Exhibit 13. It outlined the costs of the contract

between SPG and First Street as follows:

                                $73,636.46 TOTAL COSTS
                                            DEDUCT COSTS
                                $(1,079.49) CODE 8350
                                $(1,500.00) CODE 5200
                                 $4,137.00 ADDED BURDEN
                                 $7,105.70 10% PROFIT
                                $82,299.67 TOTAL
                                $25,000.00 AMOUNT PAID
                                $57,299.67 BALANCE DUE



       {¶58} The trial court applied the $30,000 payment to the balance due as

presented in SPG’s Exhibit 13 and found that First Street owed $27,299.67. Based on the

evidence presented at the bench trial, we find the trial court’s determination of damages

to be supported by competent, credible evidence.

       {¶59} SPG’s fifth Assignment of Error is overruled.
Stark County, Case No. 2015CA00140                                                18


                                  CONCLUSION

      {¶60} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Farmer, P.J. and

Gwin, J., concur.
