[Cite as S.P. Drilling Servs., Inc. v. Cooper's Excavating, L.L.C., 2019-Ohio-55.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                ADAMS COUNTY

S.P. DRILLING SERVICES, INC.,   :
                                :   Case No. 17CA1058
     Plaintiff-Appellant,       :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
COOPER'S EXCAVATING LLC,        :
                                :
     Defendant-Appellee.        :   Released: 01/08/19
_____________________________________________________________
                          APPEARANCES:

Jeff Corcoran, Goshen, Ohio, for Appellant.

David E. Grimes, Law Office of David E. Grimes, West Union, Ohio, for
Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} This is an appeal from an Adams County Court judgment

denying Appellant, S.P. Drilling Services, Inc.'s, breach of contract claim

filed against Appellee, Cooper's Excavating LLC. On appeal, Appellant

contends that 1) the magistrate abused his discretion by adding a

performance requirement as a condition/term of the contract; 2) Appellee,

not Appellant, breached the contract; and 3) Appellant is entitled to

expectancy damages as a result of Appellee's breach. However, because we

have concluded that the trial court properly determined time was of the
Adams App. No. 17CA1058                                                        2

essence with respect to Appellant's performance of his obligations under the

contract, and that Appellant, rather than Appellee, breached the contract, we

find no merit to Appellant's first and second assignments of error and they

are overruled. Further, in light of our disposition of Appellant's first two

assignments of error, Appellant's third assignment of error has been rendered

moot and we do not address it. Accordingly, the decision of the trial court is

affirmed.

                                    FACTS

      {¶2} A review of the record reveals that Appellant filed a complaint

against Appellee alleging breach of contract and unjust enrichment on

September 26, 2016. Appellant thereafter filed an answer and also a

counterclaim alleging breach of contract. The litigation stems from a

construction contract dispute that arose in early April 2016, in which

Appellant was a subcontractor and Appellee was a general, or prime,

contractor, on a roadway improvement project involving the Ohio

Department of Transportation (hereinafter "ODOT").

      {¶3} Appellee was awarded a contract by ODOT, as a general

contractor, and Appellant submitted a bid as a subcontractor for Appellee.

Appellant was awarded the bid, which involved the drilling of holes for

excavation bracing, in connection with the construction of a concrete box
Adams App. No. 17CA1058                                                        3

culvert, or bridge, in Adams County, Ohio. In addition to email and oral

communications between the parties regarding the work to be performed by

Appellant as the subcontractor, Appellee issued a purchase order to

Appellant on March 29, 2016 to install drilled shafts for excavation bracing

at a price of $14,000.00. The purchase order contained no other terms,

conditions or specifications.

      {¶4} The record reveals that Appellant mobilized his equipment and

arrived at the job site at around noon on Tuesday, April 5, 2016, the day

after a traffic control device was installed to provide for a lane closure.

Appellant, however, delivered his equipment and left without beginning the

drilling operations that day, with a plan to return on Friday. In response,

Appellee obtained the services of another subcontractor who was able to

perform the work to completion the next day, at a substantially lower price.

Appellant was notified on Thursday, April 7, 2016, that the work had been

completed by someone else, and he was directed to remove his equipment

from the job site. Appellant thereafter sent Appellee an invoice for

$12,204.92 for "Mobilization costs and Profit caused by Cooper's

Excavating LLC breach of contract." Appellee's refusal to pay the invoice

led to the filing of Appellant's complaint.
Adams App. No. 17CA1058                                                          4

      {¶5} The matter proceeded to a bench trial on November 15, 2017.

Dale Roe, Tammy Pschesang, and Sam Pschesang all testified on behalf of

Appellant. Dale Roe testified of his experience in the construction industry

and the fact that delays due to weather, approvals and steel deliveries are

common in the industry. The testimony was accepted by the trial court, over

the objection of Appellee, for purposes of educating the court. Tammy

Pschesang, the president and owner or S.P. Drilling Services, Inc. also

testified. She testified regarding the contents of the purchase order that was

provided by Appellee, and stated that although no other documents were

provided, she understood that eight holes were to be drilled as part of the

agreement. She also testified that Appellee knew that Appellant could not

be present on the job site on Wednesday, April 6 - Thursday, April 7, 2016,

and had approved Appellant's to return to work on Friday, April 8, 2016.

She testified that Appellant arrived at the job site at noon on Tuesday, April

5, 2016 for what was planned to be a two man/one day job.

      {¶6} Sam Pschesang, the general superintendent of Appellant also

testified during the trial. He testified that he communicated with Edmund

McVey, who is employed by Appellee, regarding the job to be performed.

He testified that initial communications began in January of 2016 and that

although timing was discussed, the discussion was that the work would need
Adams App. No. 17CA1058                                                          5

to be performed the end of March or beginning of April. He testified that

after he received the purchase order from Appellee, McVey told him he

would be needed the first week of April, and that McVey understood

Appellant could not work Wednesday or Thursday of that week. He testified

that he had his equipment delivered to the job site on Tuesday of the week at

issue, because Appellee told him it would be unwise to bring it prior to

having traffic control in place, which was put into place on Monday.

      {¶7} Mr. Pschesang testified that he could not begin the drilling work

on Tuesday for reasons that changed throughout the course of his testimony.

He initially testified that he could not begin drilling because he did not have

his auger bit with him on that day. He testified that he had to have his

equipment towed to the job site and the equipment and the auger bit could

not be towed at the same time. He later testified that the steel had not been

delivered to the site at the time he arrived on Tuesday, and that the industry

standard was that drilled holes need to be filled, with steel, on the same day

they were drilled. However, upon cross examination he agreed that he was

only contracted to drill holes and had no responsibility for filling the holes

with steel. Overall, his testimony indicated his understanding was that he

would mobilize and deliver his drilling equipment on Tuesday, be off

Wednesday and Thursday, and then return to begin drilling on Friday.
Adams App. No. 17CA1058                                                        6

      {¶8} Edmund McVey testified on behalf of Appellee. He stated that

Appellee was a prime contractor for ODOT and mostly performed roadway

construction. He testified that although an email from Appellee to Appellant

in February estimated Appellant's portion of the job to begin the end of

March or beginning of April, he had later telephone conversations with Mr.

Pschesang regarding more specific dates closer to the time the purchase

order was issued. McVey testified that he issued the purchase order, in

response to Appellant's request for a contract, with the expectation that

Appellant's work would be performed on Tuesday, April 5, 2016. He

testified that although he had been informed Appellant could not perform

work on Wednesday or Thursday of the week in question, it was his

understanding that Appellant would at least drill four of the eight holes on

Tuesday, so that Appellee's crew could continue working while waiting on

the remainder of the holes to be drilled. He testified that waiting until Friday

to begin drilling would have put the project behind three days. He conceded

that he did not expect Appellant to finish drilling on Tuesday, but he

expected drilling to be started on Tuesday and concluded on Friday.

      {¶9} The trial court made an oral pronouncement of judgment and

issued findings of facts and conclusions of law on the record at the

conclusion of the bench trial. It ultimately found that Appellant, rather than
Adams App. No. 17CA1058                                                        7

Appellee, breached the contract, and it denied Appellant's claims for breach

of contract and unjust enrichment. It further found that although Appellee

had proven its counterclaim for breach of contract by a preponderance of the

evidence, it had suffered no damages as a result. Therefore, the trial court

did not grant judgment in favor of either party. A very general, written

decision was issued thereafter. It is from that decision and judgment entry

Appellant now brings its timely appeal, setting forth three assignments of

error for our review.

                        ASSIGNMENTS OF ERROR

"I.    WHETHER THE MAGISTRATE ABUSED HIS DISCRETION BY
       ADDING A PERFORMANCE REQUIREMENT AS A
       CONDITION/TERM OF THE CONTRACT.

II.    WHETHER APPELLEE BREACHED THE CONTRACT?

III.   WHAT WERE APPELLANT'S DAMAGES?"

                   ASSIGNMENTS OF ERROR I AND II

       {¶10} Because assignments of error one and two are interrelated, we

address them in conjunction with one another. In its first assignment of

error, Appellant questions whether the magistrate abused his discretion by

adding a performance requirement as a condition or term of the contract.

Appellant contends that there were no circumstances existing which would

have triggered a time requirement in the within case, that time of the essence
Adams App. No. 17CA1058                                                        8

was not part of the written or verbal agreements between the parties, and that

the trial court erred and abused its discretion by finding Appellant was

contractually obligated to partially complete the drilling of holes on

Tuesday, April 5, 2016. In his second assignment of error, Appellant

essentially contends that Appellee breached the contract, and notes that the

existence of a contract was stipulated by the parties. Appellant seems to

argue under this assignment of error that Appellee prevented it from

performing its obligations under the contract and, as a result, materially

breached the contract.

        Failure to Request Findings of Fact and Conclusions of Law

      {¶11} Initially, we note that the trial court's decision was very general

in nature and simply stated "that Plaintiff has not proven the case by a

preponderance of the evidence." The trial court further stated that the

counterclaim, while proven, resulted in no damages. Thus, the trial court did

not grant judgment in favor of either party. Further, Appellant did not

request findings of fact and conclusions of law. Civ.R. 52 provides that

“judgment may be general for the prevailing party unless one of the parties

in writing requests otherwise.” "In the absence of findings of fact and

conclusions of law, we must presume the trial court applied the law correctly

and must affirm if there is some evidence in the record to support its
Adams App. No. 17CA1058                                                         9

judgment." Short v. Greenfield Meadows Assoc., 4th Dist. Highland No.

07CA14, 2008-Ohio-3311, ¶ 10; citing Bugg v. Fancher, 4th Dist. Highland

No. 06CA12, 2007-Ohio-2019, ¶ 10; see also Allstate Financial Corp. v.

Westfield Serv. Mgt. Co., 62 Ohio App.3d 657, 577 N.E.2d 383 (1989).

      {¶12} As noted by this Court in Short, supra, at ¶ 10, it has been

explained as follows with respect to the failure to request findings of facts

and conclusions of law:

      “ ‘[W]hen separate facts are not requested by counsel and/or
      supplied by the court the challenger is not entitled to be
      elevated to a position superior to that he would have enjoyed
      had he made his request. Thus, if from an examination of the
      record as a whole in the trial court there is some evidence from
      which the court could have reached the ultimate conclusions of
      fact which are consistent with [its] judgment the appellate court
      is bound to affirm on the weight and sufficiency of the
      evidence.

      The message is clear: If a party wishes to challenge the * * *
      judgment as being against the manifest weight of the evidence
      he had best secure separate findings of fact and conclusions of
      law. Otherwise his already ‘uphill’ burden of demonstrating
      error becomes an almost insurmountable ‘mountain.’ ” Id.;
      quoting Pettet v. Pettet, 55 Ohio App.3d 128, 130, 562 N.E.2d
      929 (1988); See also Bugg; International Converter, Inc. v.
      Ohio Valley Converting, Ltd., 4th Dist. Washington No.
      93CA34, 1995 WL 329571 (May 26, 1995).

      {¶13} Much like in Short, supra, despite entering a general judgment,

here the trial court did orally recite its findings at the conclusion of the

bench trial. However, as a court speaks only through its journal, we
Adams App. No. 17CA1058                                                          10

generally will not consider matters that are not carried over into the court's

judgment entry. Short at ¶ 11 (internal citations omitted). Nonetheless, as

further explained in Short, "when the interests of justice require a reviewing

court to ascertain the basis for the trial court's judgment, then the reviewing

court must examine the entire proceedings, including the transcript with the

trial judge's comments." Id.; citing Joyce v. Gen. Motors Corp., 49 Ohio

St.3d 93, 95, 551 N.E.2d 172 (1990); A.B. Jac., Inc. v. Liquor Control

Comm., 29 Ohio St.2d 139, 280 N.E.2d 371, paragraph two of the syllabus

(1972); see, also, State v. Jenkins, 174 Ohio App.3d 374, 882 N.E.2d 57,

2007-Ohio-7180, ¶ 12. Thus, even though Appellant did not request

findings of fact and conclusions of law, we will look to the trial court's oral

decision, as contained in the transcript that was provided to us on appeal, to

determine the basis for its judgment.

                              Standard of Review

      {¶14} We next consider the appropriate standard of review when

reviewing a trial court's determinations after a bench trial when breach of

contract is at issue. Although Appellant argues that the trial court's decision

was unreasonable and arbitrary, and that it abused its discretion in finding

that time was of the essence with respect to Appellant's drilling obligations

under the contract, abuse of discretion is not the correct standard of review
Adams App. No. 17CA1058                                                       11

here. Legal issues involving contract interpretation are subject to a de novo

standard of review. Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d

352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 37. See also Wiltberger v. Davis, 110

Ohio App.3d 46, 51-52, 673 N.E.2d 628 (1996). However, when a trial

court makes factual findings supporting its legal conclusions regarding a

contract, those factual findings must be reviewed with great deference and

upheld if some competent, credible evidence exists to support them. See

Taylor Bldg. Corp. at ¶ 38 and Wiltberger at 52. Thus, we do not review the

trial court's factual findings under an abuse of discretion standard, but rather,

we look to see if those facts and the resulting judgment are both supported

by the weight of the evidence. Patton v. Patton, 4th Dist. Adams No.

01CA712, 2001-Ohio-2599, *2. Furthermore, appellate courts will not

reverse judgments as being against the weight of the evidence when those

judgments are supported by some competent and credible evidence. Id.

(internal citations omitted).

                        Contract Formation and Breach

      {¶15} “ ‘In order to succeed on a breach of contract claim, a party

must prove the existence of a contract, the party's performance under the

contract, the opposing party's breach, and resulting damage.’ ” Martin v.

Jones, 2015-Ohio-3168, 41 N.E.3d 123, ¶ 36 (4th Dist.2015); quoting
Adams App. No. 17CA1058                                                        12

DePompei v. Santabarbara, 8th Dist. Cuyahoga No. 101163, 2015-Ohio-18,

¶ 20; Spectrum Benefit Options, Inc. v. Med. Mut. of Ohio, 174 Ohio App.3d

29, 2007-Ohio-5562, 880 N.E.2d 926, ¶ 25 (4th Dist.). "The essential

elements of a contract are an offer, acceptance, contractual capacity,

consideration, a manifestation of mutual assent, and the legality of the object

and the consideration." Martin at ¶ 37; citing Williams v. Ormsby, 131 Ohio

St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶ 14.

      {¶16} As this Court explained in Martin at ¶ 38, "[c]ourts recognize

three types of contracts: express, implied in fact, and implied in law." Citing

Legros v. Tarr, 44 Ohio St.3d 1, 6, 540 N.E.2d 257 (1989); Spectrum Benefit

Options at ¶ 26. “ ‘In express contracts the assent to its terms is actually

expressed in offer and acceptance.’ ” Legros at 6; quoting Hummel v.

Hummel, 133 Ohio St. 520, 525, 14 N.E.2d 923 (1938). By contrast a

contract implied in fact is “ ‘a contract that the parties presumably intended,

either by tacit understanding or by the assumption that it existed.’ ” State ex

rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 998,

¶ 31; quoting Black's Law Dictionary 322 (7th Ed.1999). Finally, contracts

implied in law are not true contracts, but liability is imposed based on quasi

or constructive contract. Legros at 7. As we further explained in Martin,

"[t]he primary difference between express contracts and contracts implied in
Adams App. No. 17CA1058                                                         13

fact is one of proof—the former is proven by words (oral or written) and the

latter is proven by acts, conduct, and circumstances." Martin at ¶ 40; citing

J.S. Keate & Co. v. Barnett's Car Wash, Inc., 1st Dist. Hamilton Nos. C–

920895 and A–8903768, 1994 WL 10650, *3 (Jan. 19, 1994); citing

Weinstein v. Newman, 89 Ohio App. 301, 101 N.E.2d 772 (1st Dist.1951).

      {¶17} In order for it to be enforceable, a contract must be both definite

and certain. Martin at ¶ 42; citing Rayess v. Educational Comm. for Foreign

Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶

19. Furthermore, a contract price must be definite and certain, and if it is so

vague and indefinite that one party will charge what he will while the other

party must guess at his obligation, the contract is illusory and unenforceable.

Id.; citing Ameritech Publishing, Inc. v. Snyder Tire Wintersville, Inc., 7th

Dist. Jefferson No. 09 JE 35, 2010-Ohio-4868, ¶ 32; Vargo v. Clark, 128

Ohio App.3d 589, 595, 716 N.E.2d 238 (4th Dist.1998) (“Vagueness of

expression, indefiniteness, and uncertainty as to any of the essential terms of

an agreement prevent the creation of an enforceable contract”).

      {¶18} Nevertheless, “ ‘ “[a]ll agreements have some degree of

indefiniteness and some degree of uncertainty [and] * * * [i]n spite of

ignorance as to the language they speak and write, with resulting error and

misunderstanding, people must be held to the promises they make.” ’ ”
Adams App. No. 17CA1058                                                         14

Martin at ¶ 43; quoting Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-

2985, 770 N.E.2d 58, ¶ 17, quoting 1 Corbin, Corbin on Contracts, Section

4.1 at 530 (Perillo Rev. Ed. 1993). As a result, “ ‘[c]omplete clarity in every

term of the agreement is unnecessary because all agreements have some

degree of indefiniteness and uncertainty.’ ” Id.; quoting DePompei, supra, at

¶ 22; quoting Advantage Renovations, Inc. v. Maui Sands Resort, Co., LLC,

6th Dist. Erie No. E–11–040, 2012-Ohio-1866, ¶ 18. “ ‘[S]eldom, if ever,

does the evidence in proof of an oral contract present its terms in the exact

words of offer and acceptance found in formal written contracts. And no

such precision is required.’ ” DePompei at ¶ 22; quoting Rutledge v.

Hoffman, 81 Ohio App. 85, 86, 75 N.E.2d 608 (1st Dist.1947).

      {¶19} Here, the parties have stipulated that they entered into a written

contract. A review of the record reveals that the "contract" the parties

stipulate they entered into was in the form of a written purchase order issued

by Appellee to Appellant. As explained above, in response to Appellant's

request for a contract, Appellee prepared a purchase order dated March 29,

2016. The purchase order was signed by both parties on that date and

simply stated under a column titled "Description:" "INSTALL DRILLED

SHAFTS FOR EXC. BRACING." The purchase order stated the quantity

was "1" at the "Unit Price" of "$14,000.00" for a "Total" of "$14,000.00."
Adams App. No. 17CA1058                                                        15

      {20} Our research has revealed that it seems to be the practice in the

construction industry for a general contractor to issue a purchase order to a

sub-contractor once a bid is accepted, which results in a binding agreement.

See My Erectors, Inc. v. Fairfield Engineering Co., 8th Dist. Cuyahoga No.

52436, 1987 WL 18264, *1 ("If a subcontractor's final bid is accepted, the

general contractor forwards a purchase order, which is the usual contract

between the general contractor and the subcontractor). However, our

research also reveals that a formal contract is typically entered into

thereafter. See Complete Gen. Constr. Co. v. Kard Welding, Inc., 182 Ohio

App.3d 119, 2009-Ohio-1861, 911 N.E.2d 959, ¶ 7 (noting it was the general

contractor's practice to issue a purchase order to a subcontractor when it

agreed on terms and wished to enter into a formal contract, which was

usually followed by the issuance of standard "TERMS AND

CONDITIONS" that would replace the terms of the purchase order, and that

no contract was entered into where Complete General never issued a

purchase order to Kard); see also Boone Coleman Constr., Inc. v. Piketon,

145 Ohio St.3d 450, 2016-Ohio-628, 50 N.E.3d 502, ¶ 3 (explaining that

Boone Coleman Construction submitted the lowest bid, was hired for the

project, and then the parties entered into a written contract). Here, however,

aside from the purchase order, there was no separate written contract.
Adams App. No. 17CA1058                                                        16

Rather, the parties appear to have engaged in a series of verbal conversations

and emails, leading up to and contemporaneous with the issuance of the

purchase order, and thereafter, regarding the number of holes to be dug and

the time in which that was to be accomplished. The trial court noted this as

part of its orally-issued findings of fact at the conclusion of the bench trial.

      {¶21} On the record at the conclusion of the bench trial, the trial court

found that the purchase order, identified in the record as Exhibit B,

constituted a written contract. However, the trial court also stated as follows

regarding that document and the parties' agreement:

      "Um, I'll also make a finding of fact, um, that the Exhibit 'B' uh,
      is the uh core of what became the larger contract it is to say
      there was a meeting of the minds an agreement, um, with the
      purchase order or Exhibit 'B' uh, but that the contract was more
      than that. But I do find there was a contract. When I say the
      contract was more than that it was the, it was the verbal
      conversations that were in additions to um, the actual purchase
      order.

      ***

      Now in regard to um, a few of the things uh, that were, that
      were part of the contract. Um, I look at the purchase order and
      there is on the purchase order signatures, it's dated, March the
      29th of 16. Um, the $14,000 dollars is on there. Uh, install
      drilled shafts for excavating bracing. So, there's some stuff in
      that purchase order, but there was I believe, and I'll make the
      finding of fact that the parties had other things besides what
      was in there as part of this contract. Um, it was actually
      testified in this matter that it was understood that eight holes
      were to be dug. Now nowhere in that purchase order does it
      say eight holes or at least I don't see anything about eight holes.
Adams App. No. 17CA1058                                                         17

      There were things that were understood that were part of this
      contract. Um, and this really, I think is, is the part of this that
      becomes most important as to what was the contract? What,
      what were the terms, what was the meeting of the minds, what
      was the terms of the contract?"

Thus, it seems the trial court found that the purchase order, while

constituting a written contract in and of itself, simply served as the "core" of

what was a larger agreement, which appears to have been reached orally.

      {¶22} For instance, the parties do not dispute that it was their

understanding that eight holes needed to be drilled for the required

excavation bracing. As noted by the trial court, this important detail of the

parties' agreement is not contained in the written purchase order, but it was

nevertheless an understood term of the agreement. Further, the parties are in

agreement that Appellant was to mobilize his rig and bring it to the job site

on Tuesday, April 5, 2016, once the traffic control device was put into place.

This detail was also omitted from the purchase order. However, the parties

disagree as to what day drilling was to begin, and the written purchase order

does not specify. As such, the central issue in this case involves whether

time was of the essence in the parties' agreement, with respect to the date

Appellant was to begin drilling holes for excavation bracing. Appellant

argued that it was not, while Appellee insisted it was. Thus, the trial court
Adams App. No. 17CA1058                                                        18

was presented with two different versions of the facts on this particular

issue.

         {¶23} As was recently explained in Shelton v. Twin Township, 2015-

Ohio-1602, 30 N.E.3d 1047, at ¶ 40:

         "Ohio courts are split as to whether and when 'time is of the
         essence' may be implied in a contract. Generally, time of
         performance is not of the essence to a contract unless
         expressed. Brown v. Brown, 90 Ohio App.3d 781, 784, 630
         N.E.2d 763 (11th Dist.1993); Mays v. Hartman, 81 Ohio App.
         408, 412, 77 N.E.2d 93 (1st Dist.1947). However, some courts
         have found it may be implied that time is of the essence
         depending on the nature of the contract or circumstances under
         which it was negotiated. Green, Inc. v. Smith, 40 Ohio App.2d
         30, 37–38, 317 N.E.2d 227 (4th Dist.1974); Franklin Mgt.
         Indus., Inc. v. Far More Properties, Inc., 8th Dist., 2014-Ohio-
         5437, 25 N.E.3d 416, ¶ 16. Other courts have found that it may
         be implied whenever a definite date is fixed for compliance.
         See, e.g., Lake Ridge Academy v. Carney, 9th Dist. Lorain No.
         91CA005063, 1991 WL 215024, *4 (Oct. 16, 1991); Calabrese
         v. Vukelic, 7th Dist. Jefferson No. 94–J–37, 1995 WL 750140,
         *1 (Dec. 14, 1995), citing Domigan v. Domigan, 46 Ohio App.
         542, 546, 189 N.E. 860 (5th Dist.1933). Finally, there are courts
         that combine the above approaches and consider both the nature
         and circumstances of the negotiation, as well as the fixed date
         of the contract in determining whether to imply that time is of
         the essence. Marion v. Hoffman, 3rd Dist. Marion No. 9–10–23,
         2010-Ohio-4821, 2010 WL 3839439, ¶ 23; Nippon Life Ins. Co.
         of Am. v. One Source Mgt., Ltd., 6th Dist. Lucas No. L–10–
         1247, 2011-Ohio-2175, 2011 WL 1782089, ¶ 24."

As in Shelton, whether or not Appellant herein committed a material breach

in failing to at least begin drilling some of the holes on Tuesday, April 5,
Adams App. No. 17CA1058                                                         19

2016, turns upon whether time of performance was of the essence to the

contract.

      {¶24} This Court, in Green, Inc. v. Smith, supra, held that "[e]ven if

time was not originally considered to be of the essence in a contract for the

sale of real property, it may subsequently be made so by the conduct of the

parties." Id. at syllabus. Regardless of whether the written contract, here the

purchase order, contained a term regarding the time for performance of the

installation of the drilled shafts for the excavation bracing, the above case

law indicates that the time for performance may be made of the essence by

implication at the time of the making of the contract, or may be subsequently

made so by the conduct of the parties.

      {¶25} Obviously, during the bench trial, the trial court heard two

different versions of the facts. Sam Pschesang testified on behalf of

Appellant that the purchase order constituted the contract between the

parties and that time of the essence was not a term of the contract. He

admitted, however, that additional discussions took place, via email and

orally, regarding the specifics of performance, including when he was to

mobilize his equipment and arrive at the job site. As set forth above, Mr.

Pschesang initially testified he could not begin drilling on April 5th because

the necessary steel for the job had not been delivered. Then he testified that
Adams App. No. 17CA1058                                                         20

he could not begin drilling that day because he didn't arrive at the job site

until noon with his rig, and that he had not brought his auger bit with him, as

the two could not be hauled at the same time. It was his position in his

testimony that there was no understanding that drilling would begin on

Tuesday, only that it would be concluded on Friday.

      {¶26} To the contrary, Edmund McVey, on behalf of Cooper's

Excavating, testified that he had telephone conversations with Sam

Pschesang, beginning about a month before execution of the purchase order,

regarding specific dates for performance. He testified he issued the purchase

order expecting the work to be performed on Tuesday the 5th of April, once

the traffic control device was put into place. He disagreed with Appellant's

testimony regarding the steel, stating the steel was present on the job site

when it needed to be, and that the work Appellant was contracted to perform

did not involve the steel. He testified that further work on his end could not

be performed until drilling occurred, and that Appellant's failure to perform

on Tuesday would have put the job three days behind had he not been able to

mitigate damages by finding another sub-contractor that could perform the

drilling work the next day, on Wednesday, April 6, 2016.

      {¶27} Ultimately, the trial court found Appellee's version to be the

more credible, stating as follows:
Adams App. No. 17CA1058                                                        21

             "I believe that part of the contract was that [substantive]
      hole digging was to be done on Tuesday the 5th. Um, I find
      also as a part of this uh, that there were inconsistency [sic] in
      the interrogatories of Mr. Pschesang sometimes it felt like
      digging didn't start on the 5th because the steel wasn't there.
      Sometimes I think Mr. Pschesang felt in his testimony that he
      just didn't have to do it on Tuesday the 5th because he could
      always come back on Friday the 8th.
             But, my finding from the testimony and from the
      Exhibits is that it was a meeting of the minds at least when the
      contract/purchase order on March 29th. Is that there was to be
      [substantive] hole digging done on Tuesday the 5th. Um,
      whether that was the entire eight holes or four holes. Um, the
      fact that, that, that SP Drilling couldn't be there on Wednesday
      and Thursday didn't mean that nothing could start until the 8th.
      It meant that something needed to start on the 5th.
             Um, and that really of course is the, is the, is the thing
      that gets this court, those findings of fact gets this court the
      conclusion that the breach of this contract occurred when um,
      SP Drilling left on Tuesday the 5th, and didn't drill any holes."

      {¶28} Here, the trial was to the court, not to a jury. As such, the trial

court judge served as the trier of fact. Weight and credibility of the evidence

are issues that the trier of fact must determine. State v. Frazier, 115 Ohio

St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263,

¶ 106; State v. Dye, 82 Ohio St.3d 323, 329, 695 N.E.2d 763 (1998). The

trier of fact is in the best position to weigh witness credibility because it may

view the witnesses, observe their demeanor, gestures and voice inflections.

Myers v. Garson, 66 Ohio St.3d 610, 615, 614 N.E.2d 742 (1993); Seasons

Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

Consequently, a trier of fact may choose to believe all, part or none of the
Adams App. No. 17CA1058                                                       22

testimony of any witness who appears before it. See State v. Colquitt, 188

Ohio App.3d 509, 2010-Ohio-2210, 936 N.E.2d 76, ¶ 10, fn. 1; State v.

Nichols, 85 Ohio App.3d 65, 76, 619 N.E.2d 80 (1993). In the instant case,

the trial court found Appellee's testimony more credible and apparently

determined that Appellant and Appellee, by their actions and considering the

nature and circumstances of the work to be performed, or through an implied

agreement, made time for performance of the essence. The trial court

further found, as a result, that Appellant's failure to begin drilling on

Tuesday, April 5, 2016, constituted a breach of the contract. We find no

error with these findings. Further, there is evidence in the record, in the

form of testimony from Edmund McVey to support the trial court's findings.

      {¶29} Accordingly, we find no merit to Appellant's first and second

assignments of error and they are, therefore overruled.

                        ASSIGNMENT OF ERROR III

      {¶30} In his third assignment of error, Appellant contends that he

suffered damages as a result of Appellee's breach of the contract. However,

in light of our disposition of Appellant's first and second assignments of

error, which held that the trial court properly found time of performance was

of the essence in the parties' contract and that Appellant, not Appellee,

breached the contract by failing to at least begin drilling operations on
Adams App. No. 17CA1058                                                  23

Tuesday, April 5, 2016, Appellant's third assignment of error has been

rendered moot. Thus, we do not address it.

      {¶31} Accordingly, having found no merit in the arguments raised in

this appeal, the decision of the trial court is affirmed.

                                                JUDGMENT AFFIRMED.
Adams App. No. 17CA1058                                                        24

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Adams County Common Pleas Court to carry this judgment into
execution.

       Any stay previously granted by this Court is hereby terminated as of
the date of this entry.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.


                                       For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge




                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
