[Cite as Robert W. Moodie Excavating, Inc. v. Smith, 2014-Ohio-2468.]
                              STATE OF OHIO, JEFFERSON COUNTY
                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

ROBERT W. MOODIE EXCAVATING,                           )
LLC,                                                   )
                                                       )
        PLAINTIFF-APPELLEE,                            )                CASE NO. 13 JE 4
                                                       )
V.                                                     )                     OPINION
                                                       )
BOB SMITH,                                             )
                                                       )
        DEFENDANT-APPELLANT.                           )

CHARACTER OF PROCEEDINGS:                              Civil Appeal from Jefferson County Court
                                                       #1 of Jefferson County, Ohio
                                                       Case No. 2012-CVI-350

JUDGMENT:                                              Modified

APPEARANCES:
For Plaintiff-Appellee                                 Robert W. Moodie, Pro-se
                                                       4812 County Highway 54
                                                       Irondale, Ohio 43932

For Defendant-Appellant                                Bob Smith, Pro-se
                                                       895 County Rd. 42
                                                       Toronto, Ohio 43964




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                       Dated: June 2, 2014
[Cite as Robert W. Moodie Excavating, Inc. v. Smith, 2014-Ohio-2468.]
DONOFRIO, J.

        {¶1}    Defendant-appellant, Bob Smith, appeals from a Jefferson County
Court #1 judgment awarding $1,105.69 to plaintiff-appellee, Robert W. Moodie
Excavating, LLC, on appellee’s claim for a balance due on an oral contract.
        {¶2}    The parties entered into an oral agreement whereby appellee was to
dig a foundation for appellant. The foundation was to include two loads of gravel and
a slope bank. The agreed price was $7,500 to $8,500. The only written evidence of
the parties’ agreement was a business card of appellee’s, on the back of which was
written:

                $7500
                $8500
                2 Ld SLAg included
                Slope BANK

        {¶3}    Appellee dug the foundation.                Robert Moodie, appellee’s owner,
claimed he hit rock while digging, which necessitated additional work in the amount of
$2,380. Appellee also hauled away a large amount of dirt from appellant’s property.
        {¶4}    Appellant paid appellee $11,813.10.
        {¶5}    Appellee filed a small claims complaint alleging appellant still owed it
money for work performed.
        {¶6}    Both appellant and Moodie appeared pro se and offered testimony
before the trial court. The court found that both parties were being truthful and noted
it was unfortunate that there was no written document regarding the transportation of
the dirt and who should pay for it and what the additional work for hitting rock would
cost.
        {¶7}    The court found that appellee substantially performed the job with the
exception of delivering one load of slag and sloping the bank. The court found that
the contract price was $7,500 to $8,500. The court made the assumption that the
$1,000 price allowance was in case of contingencies, like hitting rock, so appellee
was entitled to charge $8,500.            The court found it would not award the $2,380,
                                                                                    -2-


appellee’s alleged cost for the additional work incurred as a result of hitting rock,
because it was not included in the original contract estimate. The court further found
that the parties did not initially discuss the issue of the dirt. It found that appellant
owned the dirt and was entitled to be paid for it. It also found that appellee should be
compensated for transporting the dirt. The court found $4,125 was the reasonable
charge for transporting the dirt. The court totaled appellee’s bill as follows:

                   $8,500.00 (original estimate)
                 + $188.10 (buster rental)
                 + $ 105.69 (slag)
                    $8,793.79 (total)
                 + $4,125.00 (dirt delivery)
                    $12,918.79
                  - $11,813.10 (amount paid by appellant)
                    $1,105.69 (balance due to appellee from appellant)

          {¶8}   The court also ordered that appellant was entitled to reimbursement for
the dirt and any money owed by a third party for the dirt was owed to appellant.
          {¶9}   Appellant filed a timely notice of appeal on February 15, 2013.
          {¶10} Appellee has not filed a brief in this matter.         Therefore, we may
consider appellant's statement of the facts and issues as correct and reverse the
judgment if appellant's brief reasonably appears to sustain that action. App.R. 18(C).
          {¶11} A transcript of the testimony was not available. Therefore, appellant
submitted a court-approved statement of facts in accordance with App.R. 9(C). This
court stated that the statement of facts would be included in the record on appeal.
          {¶12} Appellant, still acting pro se, raises four “propositions of law” that act as
his assignments of error. We will treat them as such. His first assignment of error
states:

                 AN INDEPENDENT CONTRACTOR CANNOT BILL TWO
                                                                                -3-


        DIFFERENT PARTIES FOR THE SAME TIME (DOUBLE BILLING).

        {¶13} Appellant asserts that his neighbor paid appellee $4,125 to have 165
loads of dirt hauled to his residence. He further asserts that appellee continued to bill
him for excavating at $85 per hour even though no excavating was taking place.
Appellant alleges each round trip load took approximately 15 minutes, which when
multiplied times 165 loads results in 41.25 hours spent hauling dirt to the neighbor’s
property. He contends appellee billed him for $3,506.25 for the time appellee was
hauling the dirt. Appellant argues this was impermissible double billing.
        {¶14} The evidence on this subject was as follows.
        {¶15} Appellant testified that he paid additional money to have the dirt from
the excavation hauled away from the job site. The dirt was hauled to appellant’s
neighbor’s property, approximately one mile away from the job site.            Moodie’s
testimony was that appellee hauled the dirt to the neighbor’s property for $25 per
load.   Appellant testified that the hours charged by appellee did not take into
consideration the time that was spent hauling the dirt for the neighbor at $25 per load
and 15 minutes per load. Appellant stated that he paid appellee $4,125 to haul the
dirt from his property to the neighbor’s property.
        {¶16} The evidence also demonstrated there was an agreement between
appellant and his neighbor to pay appellant for the dirt that was hauled to the
neighbor’s property. No evidence as to what appellant received from the neighbor
was presented.
        {¶17} There is one major piece of evidence missing from the record
necessary to support appellant’s argument. There is no evidence that appellant’s
neighbor paid appellee for hauling the dirt. Instead, the evidence was that appellant
paid appellee $4,125 to haul and deliver the dirt.
        {¶18} The trial court based its decision on this evidence and the lack of any
other evidence. The court stated it was because of the apparent agreement between
appellant and the neighbor that it ordered appellant was to retain any proceeds paid
by the neighbor for the dirt.
                                                                                -4-


       {¶19} And in its judgment the court specifically stated, “JUDGMENT IN
FAVOR OF PLAINTIFF [appellee] FOR $1,105.69 WITH ANY REIMBURSEMENT
FROM A THIRD PARTY FOR THE DIRT BEING PAID DIRECTLY TO THE
DEFENDANT [appellant].” Thus, appellant’s argument that appellee was paid twice,
once by him and once by his neighbor, is not supported by the evidence.
Accordingly, appellant’s first assignment of error is without merit.
       {¶20} Appellant’s second assignment of error states:

              WHERE THERE IS AMBIGUITY IN A CONTRACT, IT MUST BE
       STRICTLY CONSTRUED AGAINST THE PARTY WHO PREPARED
       IT.

       {¶21} Appellant asserts that appellee was to provide two loads of slag, which
cost was included in the $7,500 to $8,500 estimate. He contends appellee later
billed him an additional $105.69 for one load of slag and never delivered the second
load. Because the two loads of slag were included in the estimate, appellant asserts
appellee should not have billed him for the one load of slag it delivered and should
have subtracted an additional $105.69 from his bill because appellee did not deliver
the second load.
       {¶22} In its judgment entry, the trial court found that appellant was
responsible for paying for one load of slag valued at $105.69. The court added this
amount to the $8,500 contract price.
       {¶23} As to the slag, the evidence was as follows. The parties entered into an
oral contract to dig a 40’ x 60’ foundation, to be 8’ deep, including two loads of gravel
and a slope bank. The price was to be $7,500 to $8,500. Appellant testified that one
load of slag was not delivered. This was the only evidence of record as to the slag.
       {¶24} From this evidence we can conclude that the price of two loads of slag
was to be included in the $7,500 to $8,500 estimate for the job. There was no
evidence to the contrary.
       {¶25} Therefore, the trial court erroneously added $105.69 to the $8,500
                                                                             -5-


price. That amount was included in the $8,500 price.
      {¶26} Additionally, the undisputed testimony was that appellee only delivered
one of the two promised loads of slag. Therefore, the court should have subtracted
the cost of the second load of slag from the $8,500 price.
      {¶27} Based on the above, the trial court’s judgment against appellant will be
reduced by $211.38 ($105.69 + $105.69).
      {¶28} Accordingly, appellant’s second assignment of error has merit.
      {¶29} Appellant’s third assignment of error mirrors his second but he raises a
different argument here. Appellant’s third assignment of error states:

             WHERE THERE IS AMBIGUITY IN A CONTRACT, IT MUST BE
      STRICTLY CONSTRUED AGAINST THE PARTY WHO PREPARED
      IT.

      {¶30} Here appellant argues that the $7,500 to $8,500 estimate provided by
appellee included all equipment and labor.        He contends that when appellee
determined that he did not have the additional equipment to do the job, appellee
rented a “buster” for $188.10 and then charged appellant that amount. Appellant
argues that the cost of any additional equipment was included in the estimate and
contends appellee should not have charged him extra.
      {¶31} The evidence regarding the buster was as follows. Once Moodie hit
rock, he rented a buster, which was used to break up the rock. Moodie testified that
the original planned excavation work took several days longer to complete because
of the additional work necessary due to the rock that was encountered. He testified
that because of the rock, additional work costing $2,380 was required.
      {¶32} The court found the cost of the buster rental was $188.10. The court
also found, however, that the $7,500 to $8,500 contract price included contingencies,
like hitting rock, and that was the reason for the $1,000 price differential. Because
appellee encountered the rock and additional expenses, the court found appellee
was entitled to charge $8,500. It found it could not award the $2,380 because it was
                                                                              -6-


not included in the original contract estimate and the court was required to use the
only written document it had with respect to the terms.
       {¶33} Given the trial court’s reasoning, the court should not have charged
appellant the $188.10 that appellee paid to rent the buster. The court found appellee
was not entitled to be reimbursed for the work it incurred as a result of hitting rock.
Instead, the court found that this contingency was covered by the $1,000 variation in
the contract price. It stands to reason then, that appellant should not have been
required to pay for the buster rental as that was part of the cost incurred when
appellee hit rock.
       {¶34} Therefore, the $188.10 will be subtracted from the trial court’s award to
appellee.
       {¶35} Accordingly, appellant’s third assignment of error has merit.
       {¶36} Appellant’s fourth assignment of error also mirrors his second and third
assignments of error stating:

              WHERE THERE IS AMBIGUITY IN A CONTRACT, IT MUST BE
       STRICTLY CONSTRUED AGAINST THE PARTY WHO PREPARED
       IT.

       {¶37} Once again, however, appellant presents a new issue. Here appellant
argues that the only written contract between the parties was the writing on the back
of appellee’s business card. He points out that one of the listed items is a “slope
bank.” Appellant asserts that appellee never “sloped the bank.” He asserts this task
could not be completed until the foundation was backfilled. Because appellee did not
“slope the bank,” appellant argues, appellee did not fulfill the terms of the contract.
Appellant states he received an estimate from a third party to “slope the bank” for
$2,860. He contends this amount should be deducted from the amount he owed
appellee.
       {¶38} As to the sloped bank, the evidence was that this was part of the
contract. And appellant testified that appellee did not complete the sloping of the
                                                                                -7-


bank as there were still some piles of dirt remaining on the bank. Appellant believed
appellee should have completed the bank. But Moodie stated the dirt would not be
backfilled until the house was completed and a final grade was done by the
contractor who built the home.
       {¶39} Thus, the evidence was conflicting as to whether appellee fully
performed this part of the contract.
       {¶40} Furthermore, there was no evidence as to what the cost was to slope
the bank. Therefore, even if appellant proved that appellee failed to slope the bank
as the parties agreed to, appellant did not offer any evidence as to what amount
should be subtracted from the contract price. In his brief, he alleges he received an
estimate that sloping would cost $2,860. But this evidence was not presented to the
trial court. We are confined to the evidence submitted by the parties to the trial court.
       {¶41} Accordingly, appellant’s fourth assignment of error is without merit.
       {¶42} Based on the merit of appellant’s second and third assignments of
error, the trial court’s judgment in favor of appellee is hereby modified. From the trial
court’s award of $1,105.69 we subtract $211.28 for the slag and $188.10 for the
buster rental leaving an award of $706.31.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.
