[Cite as Poly-Pro Solutions, Inc. v. Dipaolo Indus. Dev., L.L.C., 2014-Ohio-2033.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


POLY-PRO SOLUTIONS, INC., ET AL.:                                JUDGES:
                                :
                                :                                Hon. W. Scott Gwin, P. J.
      Plaintiffs - Appellees    :                                Hon. John W. Wise, J.
                                :                                Hon. Craig R. Baldwin, J.
                                :
-vs-                            :
                                :
DIPAOLO INDUSTRIAL DEVELOPMENT, :                                Case No. 2013CA00153
LLC., ET. AL.                   :
                                :
      Defendants - Appellants   :                                OPINION



CHARACTER OF PROCEEDING:                                         Appeal from the Stark County Court
                                                                 of Common Pleas, Case No.
                                                                 2012CV01017



JUDGMENT:                                                        Affirmed



DATE OF JUDGMENT:                                                May 12, 2014




APPEARANCES:

For Plaintiffs-Appellees                                         For Defendants-Appellants

JAMES T. ROBERTSON                                               MICHAEL L. FORTNEY
WILLIAM S. PIDCOCK                                               JOSEPH SPOONSTER
236 Third Street S.W.                                            Fortney & Klingshirn
Canton, OH 44702                                                 4040 Embassy Parkway, Suite 280
                                                                 Akron, OH 44333
Stark County, Case No. 2013CA00153                                                     2



Baldwin, J.

      {¶1}    Appellants DiPaolo Industrial Development, LLC and Sergio DiPaolo

appeal a judgment of the Stark County Common Pleas Court awarding appellee Poly-

Pro Solutions, Inc. judgment of $25,000.00 on an action for breach of contract.

                            STATEMENT OF FACTS AND CASE

      {¶2}    In the fall of 2011, the parties entered into discussions for appellee to

purchase industrial machinery, including grinders, blenders, and a control panel to run

the machinery, from appellants. On October 2, 2011, appellants sent appellee an email

containing photographs of the equipment. The photographs did not show the interior of

the control panel. Jeff Goss, president of appellee, visited the DiPaolo plant to inspect

the equipment which would be the subject of the purchase. He opened the control

panel at that time, and noted that all the wiring was attached. On November 2, 2011,

appellants sent additional photographs to appellee which again did not show the interior

of the control panel.

      {¶3}    On November 2, 2011, the parties entered into a purchase agreement for

the equipment.    The parties orally agreed that appellants would be responsible for

disassembling the equipment at their place of business and installing it at appellee’s

place of business. The terms of payment for the equipment were modified by email on

November 17, 2011.

      {¶4}    Upon payment of a $20,000.00 deposit on November 22, 2011, and an

additional $80,000.00 pursuant to the terms of the payment agreement, appellants

shipped the grinders to appellee. Appellants did not include all the equipment that was

subject to the agreement, requiring appellee to purchase additional parts. Appellants
Stark County, Case No. 2013CA00153                                                        3


sent an employee to install the grinders; however, the work was never completed.

Appellants delivered two loads of blenders to appellee, but did not include a working

control panel.

        {¶5}   On December 23, 2011, appellant Sergio DiPaulo sent a text message to

Brian Stimer stating that a control panel had been damaged, but claimed that the

damaged unit was not the control panel at issue in the instant action. Stimer accused

DiPaolo of vandalizing the unit. To demonstrate that the control panel purchased by

appellee was not damaged, DiPaolo sent photographs of the panel to appellee on

December 24, 2011. However, the photographs show that wires were cut in the panel.

        {¶6}   Relationships between the parties broke down, and on March 7, 2012,

appellants filed a mechanic’s lien against appellee’s property. Appellee filed the instant

action on March 29, 2012, seeking damages for breach of contract, breach of implied

warranty, unjust enrichment and quantum meruit, fraud, and slander of title. Appellee

also sought a declaration that the mechanic’s lien was void and unenforceable.

        {¶7}   The parties entered into a settlement agreement on August 9, 2012,

requiring appellants to provide appellee with an operable control panel.              Upon

inspection on August 21, 2012, appellee found the panel to be inoperable and refused

to sign the agreement.

        {¶8}   The case proceeded to a trial before a magistrate on both the merits of the

case and on appellants’ motion to enforce the settlement agreement on December 17,

2012.

        {¶9}   On April 4, 2013, before the magistrate had filed an opinion, the trial judge

sent a letter to the parties stating in pertinent part:
Stark County, Case No. 2013CA00153                                                        4


         {¶10}   “Please be advised I would like to provide counsel with a status report. As

you know this matter was heard by Magistrate Kristin Farmer as a bench trial.

Magistrate Farmer was appointed by the Governor to the vacant judgeship here in Stark

County. Since that appointment, Judge Farmer has been in trial handling cases that

were on the docket she received. I would expect a findings [sic] in your case in the next

three weeks. We apologize for the delay. The only option is to have the matter reheard

by the court or by a different magistrate and this would not be productive for the parties.

This has been a situation that was unanticipated by all at the time the trial was heard.

We do apologize to everyone involved. This matter will be concluded within the next

week.”

         {¶11}   The magistrate’s decision was filed on April 10, 2013, awarding appellee

$25,000.00 for breach of contract. The magistrate found that appellants had breached

the contract by failing to install equipment, failing to perform in a workmanlike fashion,

failing to complete work for appellee and failing to deliver all of the purchased

equipment.       The magistrate found that the mechanic’s lien filed by appellants was

obtained in bad faith and some of the claims therein were fraudulent, and accordingly

vacated the lien.       The magistrate overruled the motion to enforce the settlement

agreement on the basis that appellants failed to meet the conditions necessary to fulfill

their obligations under the agreement by failing to provide an operable control panel.

         {¶12}   Appellants filed objections to the magistrate’s report and a motion for new

trial.   The trial court adopted the report of the magistrate and entered judgment in

accordance with the decision of the magistrate, and overruled the motion for new trial.

Appellants assign two errors:
Stark County, Case No. 2013CA00153                                                      5


      {¶13}   “I.    THE TRIAL COURT’S DECISION ADOPTING THE MAGISTRATE’S

DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IS

CONTRARY TO LAW, AND IS AN ABUSE OF DISCRETION.

      {¶14}   “II.     THE TRIAL COURT’S DENIAL OF DIPAOLO INDUSTRIAL

DEVELOPMENT’S MOTION FOR A NEW TRIAL IS AN ABUSE OF DISCRETION.”

                                               I.

      {¶15}   In their first assignment of error, appellants argue that the judgment

awarding appellee damages of $25,000.00 for breach of contract is against the manifest

weight of the evidence.

      {¶16}   A judgment supported by some competent, credible evidence going to all

the essential elements of the case will not be reversed by a reviewing court as against

the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co., 54 Ohio

St. 2d 279, 376 N.E.2d 578 (1978). As the trier of fact, the judge is in the best position

to view the witnesses and their demeanor in making a determination of the credibility of

the testimony. “[A]n appellate court may not simply substitute its judgment for that of

the trial court so long as there is some competent, credible evidence to support the

lower court's findings.” State ex rel. Celebrezze v. Environmental Enterprises, Inc., 53

Ohio St.3d 147, 154, 559 N.E.2d 1335 (1990).

      {¶17}   Appellants first argue that they rightfully withheld delivery of the control

panel because appellee had not paid for the grinders and the blenders in accordance

with the terms of the payment agreement.      Appellants rely on R.C. 1302.77(A), which

provides:
Stark County, Case No. 2013CA00153                                                       6


      {¶18}   “Where the buyer wrongfully rejects or revokes acceptance of goods or

fails to make a payment due on or before delivery or repudiates with respect to a part or

the whole, then with respect to any goods directly affected and, if the breach is of the

whole contract under section 1302.70 of the Revised Code, then also with respect to the

whole undelivered balance, the aggrieved seller may:

      {¶19}   “(A) withhold delivery of such goods[.]”

      {¶20}   The court found that appellants had breached the contract by failing to

install the equipment.    The grinders were delivered upon receipt of payment, but

appellants did not complete installation of the equipment. The evidence is undisputed

that the blenders were delivered without a working control panel, and there was no

evidence that appellants withheld the control panel because they had not received

payment in accordance with the terms of the contract. The evidence presented at trial

demonstrates that the control panel had been rendered inoperable while still in

possession of appellants, and that appellant demanded an additional $42,000.00 from

appellee to provide a working control panel. The evidence supports the court’s finding

that appellants breached the contract and that appellee was therefore not required to

tender any further payment.

      {¶21}   Appellants next argue that installation of the equipment was not a part of

the agreement. At trial, appellant Sergio DePaulo testified that he agreed to provide

men from his company to install the equipment at appellee’s facility. The only issue at

trial was whether appellee was to pay appellants separately for installation, as testified

to by DePaulo, or whether installation was a part of the purchase price, as testified to by

Brian Stimer.    The evidence was undisputed at trial that the parties agreed that
Stark County, Case No. 2013CA00153                                                       7


appellants would provide for disassembly of the equipment at appellants’ facility and

installation at appellee’s facility; the only issue was whether appellee would provide

labor to assist appellants’ men in disassembly and installation and whether the labor

costs were a part of the sale price. The decision finding that the parties agreed that

appellants were responsible for installing the equipment is not against the manifest

weight of the evidence.

      {¶22}   Finally, appellants argue that the court erred in its calculation of damages.

The court found that appellee had paid $100,000.00 for equipment which had a market

value of $80,000.00. The court found that appellee had further expended $5,000.00 to

make the delivered equipment operational, for a total amount of damages of

$25,000.00. Appellants argue that the proper measure of damages is the amount of

damage directly resulting from the breach of contract, not the difference in market value.

      {¶23}   R.C. 1302.88(A) states:

      {¶24}   “(A) Where the buyer has accepted goods and given notification as

provided in division (C) of section 1302.65 of the Revised Code, he may recover as

damages for any non-conformity of tender the loss resulting in the ordinary course of

events from the seller's breach as determined in any manner which is reasonable.”

      {¶25}   The measure of damages used by the court in this case is reasonable.

The evidence is undisputed that appellee paid $100,000.00 to appellants. The evidence

reflected that the blenders they received were worthless without the control panel. The

value of the grinders was $80,000.00, as set forth in appellants’ own exhibit. Appellee

presented evidence that it expended $3,000.00 to fabricate parts to use part of the

equipment, $1,500.00 to purchase a cyclone which was necessary to operate the
Stark County, Case No. 2013CA00153                                                       8


equipment, and labor costs to do additional work necessitated by appellants’ failure to

perform.

      {¶26}   The judgment of the trial court is not against the manifest weight of the

evidence. The first assignment of error is overruled.

                                               II.

      {¶27}   In their second assignment of error, appellants argue that the court erred

in overruling their motion for new trial.

      {¶28}   Appellants’ motion for new trial was based on Civ. R. 59(A)(1):

      {¶29}   “(A) Grounds. A new trial may be granted to all or any of the parties and

on all or part of the issues upon any of the following grounds:

      {¶30}   “(1) Irregularity in the proceedings of the court, jury, magistrate, or

prevailing party, or any order of the court or magistrate, or abuse of discretion, by which

an aggrieved party was prevented from having a fair trial[.]”

      {¶31}   A court of appeals must affirm a trial court's decision to grant or deny a

motion for a new trial unless it is shown that the trial court abused its discretion. Jones

v. Booker, 114 Ohio App.3d 67, 682 N.E.2d 1023 (1996). An abuse of discretion implies

that the court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).

      {¶32}   Appellants have not demonstrated any irregularity in the proceedings

which prevented them from having a fair trial. Appellants interpret the letter from the

judge, in which he suggested that a new trial was the only option other than waiting for

the magistrate to render a decision, as recognition on the part of the trial judge that

there was prejudicial irregularity in the proceedings below.             Appellants have
Stark County, Case No. 2013CA00153                                                       9


misinterpreted the letter from the judge. The judge did not suggest that he believed a

new trial was warranted; rather, he suggested that the only option other than to continue

to wait on the decision of the magistrate would be a new trial, which he specifically

stated he did not believe would be productive.         Further, upon receiving this letter,

appellants did not respond immediately with a motion for a new trial, but instead they

waited until the magistrate had issued a decision that was not favorable to them. The

trial court was in the best position to consider the circumstances surrounding the

delayed decision of the magistrate, and the court overruled the motion for new trial and

entered judgment consistent with the decision of the magistrate. We find no abuse of

discretion in the court’s decision overruling the motion for new trial.

      {¶33}   The second assignment of error is overruled. The judgment of the Stark

County Common Pleas Court is affirmed. Costs are assessed to appellants.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.
