[Cite as Deer Creek Excavating v. Hunt's Trenching, 2013-Ohio-1407.]


                                      COURT OF APPEALS
                                   RICHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



DEER CREEK EXCAVATING                                    JUDGES:
                                                         Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                               Hon. W. Scott Gwin, J.
                                                         Hon. John W. Wise, J.
-vs-
                                                         Case No. 12 CA 53
HUNT’S TRENCHING, et al.

        Defendants-Appellants                            OPINION




CHARACTER OF PROCEEDING:                             Civil Appeal from the Court of Common
                                                     Pleas, Case No. 11 CV 1451D


JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                              April 8, 2013



APPEARANCES:

For Plaintiff-Appellee                               For Defendants-Appellants

ROBERT S. ROBY                                       JOHN S. DILTS
CURRY, ROBY & MULVEY                                 28 South Park Street
8000 Ravine’s Edge Court, Suite 103                  Mansfield, Ohio 44902
Columbus, Ohio 43235
Richland County, Case No. 12 CA 53                                                        2

Wise, J.

      {¶1}   Defendant-Appellant Hunt’s Trenching appeals the, decision of the Court

of Common Pleas of Richland County, Ohio, finding in favor of Plaintiff-Appellee Deer

Creek Excavating, LLC.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}   This case arises out of the sale of heavy construction equipment to

Plaintiff-Appellee Deer Creek Excavating by Defendant-Appellant Hunt’s Trenching.

      {¶3}   Appellee, Deer Creek Excavating, LLC, ("Deer Creek") is in the business

of excavation and underground utility work. (T. at 43, 86). Appellant, Garland Hunt,

through his business, Hunt's Trenching, regularly sells used trenching and excavating

equipment. (T. at 34, 42, 45, 124). During the spring of 2010, Deer Creek had a storm

sewer installation project in Newark Ohio, which required it to cut asphalt along both

sides of the street to prepare a trench to install sewer tile. (T. at 45, 46, 49, 86-87). To

accomplish this, Deer Creek needed to purchase a tractor with a mounted saw. Id.

Ditch Witch is a well-known manufacturer of such equipment.

      {¶4}   Deer Creek's principals, Benjamin Flynn and Richard Weemhoff, looked at

different Ditch Witch options from various sellers; however, while driving down State

Route 309, they saw two saws offered for sale in front of Appellant's property. (T. at 45-

46, 85). They stopped to look at the saws and trenching machines offered for sale. Id.

They discussed with Mr. Hunt their need to purchase equipment capable of sawing

asphalt for the sewer project. (T. at 45, 46, 86-87).

      {¶5}    According to Appellee, Mr. Hunt represented that he had a Ditch Witch

R65 saw, which was manufactured to cut through asphalt. Id. He advised he could
Richland County, Case No. 12 CA 53                                                          3


mount the R65 saw on any of the Ditch Witch tractors available for sale and that the

combined unit would do the job of cutting asphalt. (T. at 35, 55, 56, 87, 133). He

explained that the trenching attachment could easily be taken off and the saw

attachment installed by removing four bolts and the drive chain. (T. at 46, 57, 87-88).

Mr. Hunt stated he would have to modify the mounting plate to join the saw to the

tractor, but he told Deer Creek that he could make this modification to enable the unit

to perform the exact task Appellee needed. (T. at 35, 46, 89-90). Given Mr. Hunt's

assurances, Appellee picked out a Ditch Witch 5010 tractor and asked that Mr. Hunt

mount the R65 saw. The parties verbally agreed on the price of $16,000. (T. at 48, 55).

Further, since the parties observed that the R65 saw wheel appeared to be misaligned

with its housing, they agreed Mr. Hunt would align the blade and replace any defective

bearings. (T. at 35-36, 104-105, 137). They also agreed Mr. Hunt would check all the

fluid levels and top off all lubricants before the machine was picked up. Id.

      {¶6}   On May 12, 2010, Appellee sent a driver to pick up the Ditch Witch tractor

with the mounted R-65 saw. (T. at 91, 140). Appellee's driver loaded the unit on its

truck and tendered the $16,000 check to Mr. Hunt. Id. On the receipt, Mr. Hunt wrote,

"Sold where is as is." Appellee claims that the parties had not previously discussed that

this was to be an "as is" sale. (T. at 60-61).

      {¶7}   Appellee's driver took the unit directly to the Newark job site. (T. at 49).

      {¶8}   Mr. Flynn began sawing the asphalt streets, but immediately encountered

problems. (T. at 50). Within minutes, a hydraulic hose blew. Mr. Flynn had Deer

Creek's mechanic replace the hose and fluid. He then resumed sawing, but this time,

the drive train from the tractor to the saw broke. (T. at 92-94). Appellee stated that the
Richland County, Case No. 12 CA 53                                                       4


saw wheel also appeared to be misaligned. Deer Creek's mechanic tried to fix it so that

sawing could be resumed. Id. The machine was started again, but repair links in the

chain continued to break as the saw was operated. Id. A new chain drive was ordered,

but it proved to be far too short for the machine as it was modified by Mr. Hunt. (T. at

56, 98, 100-102). After approximately four to five hours of trying to get the unit to

operate as intended, Mr. Flynn concluded the tractor lacked sufficient torque to operate

the saw. (T. at 114-115) He had only been able to saw 100 feet of asphalt in that time.

(T. at 95).

      {¶9}    Appellee sent the machine back to its yard. It called Donley Concrete to

saw the asphalt. (T. at. 58, 59, 95). Donley was able to complete the job in two days

during which it sawed 4,000 feet of concrete with its equipment. Id.

      {¶10} Appellee contacted Appellant about the equipment's failure. Mr. Weemhoff

called Mr. Hunt, leaving messages to this effect. (T. at 51). Mr. Hunt claims he did not

receive any such messages. Mr. Hunt agreed that he did receive a certified letter from

Appellee advising of the problems and asking for a cancellation of the sale. Id. Mr.

Hunt ignored this letter and never contacted anyone at Appellee's office to discuss the

issue. (T. at 37, 42). He made no effort to correct the problems Appellee experienced

with the equipment because, he testified, he is not responsible for the equipment after

it leaves his property. Id. The tractor and saw unit was stored on Appellee's property

until it was taken to Ditch Witch's sales facility in Columbus to be evaluated. (T. at 71).

Ditch Witch employees found two problems with the machine: (1) excessive wear of

the cutting structure of the saw and (2) misalignment. (See, Deposition Transcript of

Coakley at B-9). These problems prevented the machine from cutting any appreciable
Richland County, Case No. 12 CA 53                                                          5


distance. Ditch Witch advised that it would cost over $20,000 to repair the unit to

working order. ld. Ditch Witch stated it would not have retrofitted the R65 saw to the

5010 tractor. (ld. at. 24-25).

        {¶11} Appellee opted not to fix the unit. (T. at 75). It returned the unit to its yard

and had its mechanic start it periodically to keep it in operating condition. (T. at 53). On

May 15, 2012, Appellee sold the unit at auction to mitigate its damages. The sale was

conducted by Ritchie Brothers, professional auctioneers, who advertised the sale and

made the equipment available for inspection three days prior to the auction. (T. at 19,

54). Mr. Weemhoff testified the equipment was sold for either $2000 or $2500. (T. at

152).

        {¶12} On November 10, 2011, Appellee filed a Complaint against Hunt’s

Trenching, alleging claims for breach of contract and breach of express warranties.

        {¶13} On December 2, 2011, Appellant filed its Answer.

        {¶14} On June 4, 2012, Appellant filed a Motion in Limine, Motion to Dismiss,

and Trial Brief.

        {¶15} On June 5, 2012, a bench trial was conducted during which the trial court

heard testimony from both parties.

        {¶16} On June 11, 2012, Appellant filed a Post-Trial Brief.

        {¶17} On June 12, 2012, the trial court issued a decision in favor of Appellee.

The trial court's decision contained its findings of fact and conclusions of law. To the

benefit of Defendant-Appellant, the trial court subtracted the higher figure of $2500

from the contract price in awarding damages.
Richland County, Case No. 12 CA 53                                                     6


      {¶18} Appellant now appeals the trial court’s decision, assigning the following

errors for review.

                                ASSIGNMENTS OF ERROR

      {¶19} “I. THE COURT ERRED IN ORDERING THE PLAINTIFF TO RE-OPEN

THEIR CASE AFTER RESTING TO OFFER ADDITIONAL PROOF THAT HAD NOT

BEEN OFFERED IN THEIR CASE-IN-CHIEF AND WHICH WAS THEN UNABLE TO

BE CROSS-EXAMINED BY THE DEFENDANT.

      {¶20} “II. THE COURT ERRED IN GRANTING JUDGEMENT [SIC] FOR THE

PLAINTIFF WHEN THERE WAS NO PROOF THAT THE ITEM IN QUESTION EVER

FAILED TO WORK EXCEPT FOR THE FACT THAT A BROKEN CHAIN OCCURRED.

      {¶21} “III. THE PLAINTIFF’S COMPLAINT WAS THAT THE SAW ATTACHED

TO THE UNIT WAS INCOMPATIBLE AND THE PLAINTIFF'S EXPERTS STATED

THAT THOSE ITEMS WERE COMPATIBLE AND AS SUCH THE PLAINTIFF'S

COMPLAINT SHOULD HAVE BEEN DISMISSED AT THE PLAINTIFFS COSTS.

      {¶22} “IV. THE PLAINTIFF FAILED TO SHOW THAT THE SALE OF THE

SUBJECT PROPERTY WAS COMPLETED IN A COMMERCIALLY REASONABLE

MANNER. NO DEFICIENCY CAN OR SHOULD HAVE BEEN AWARDED TO THE

PLAINTIFF WITHOUT THE SALE BEING COMMERCIALLY REASONABLE.”

                                              I.

      {¶23} In its First Assignment of Error, Appellant argues that the trial court erred

in ordering Appellee to reopen its case to offer additional evidence after it had rested

its case. We disagree.
Richland County, Case No. 12 CA 53                                                     7


      {¶24} During its case-in-chief, Appellee provided testimony that the tractor and

saw were sold at an auction. At the conclusion of evidence, the trial court inquired as

to the actual sale price and whether there would be a stipulation as to the amount. (T.

at 151). The trial court then reminded the witness, Mr. Weemhoff, that he was still

under oath, and inquired of him as to whether he knew what the machine sold for at

auction. (T. at 152). Mr. Weemhoff stated that to the “[b]est of [his] knowledge, it was

two thousand or twenty-five hundred dollars.” Id.

      {¶25} The trial court used the higher $2,500.00 value when calculating the

damage award.

      {¶26} Initially, we would note that Appellant failed to object to the trial court’s

questioning or allowance of this additional testimony, and, as such, waived this issue

on appeal.

      {¶27} Pursuant to Evid.R. 614(B), a trial court “may interrogate witnesses, in an

impartial manner, whether called by itself or by a party.” Because Evid.R. 614(B)

permits the trial court discretion to decide whether or not to question a witness,

appellate courts must review the trial court's questioning under an abuse of discretion

standard. Brothers v. Morrone–O'Keefe Dev. Co. LLC, 10th Dist. No 05AP–161, 2006-

Ohio-1160, 2006 WL 620894, ¶ 10, citing State v. Johnson, 10th Dist. No. 03AP–1103,

2004-Ohio-4842, 2004 WL 2035321, ¶ 10.

      {¶28} A trial court is obligated to control the proceedings before it, to clarify

ambiguities, and to take steps to ensure substantial justice. Brothers, citing State v.

Stadmire, 8th Dist. No. 81188, 2003-Ohio-873, 2003 WL 549912, ¶ 26. Accordingly, a

trial court should not hesitate to pose pertinent and even-handed questions to
Richland County, Case No. 12 CA 53                                                       8

witnesses. Id., citing Klasa v. Rogers, 8th Dist. No. 83374, 2004-Ohio-4490, 2004 WL

1902539, ¶ 32. Further, a trial court enjoys even greater freedom in questioning

witnesses during a bench trial because the court cannot prejudicially influence a jury

with its questions or demeanor. Brothers, citing Klasa.

      {¶29} Evid.R. 614(B), however, requires the trial court to question impartially and

thus tempers a trial court's ability to question a witness. Brothers at ¶ 12. However,

absent “ ‘ “any showing of bias, prejudice, or prodding of a witness to elicit partisan

testimony, it will be presumed that the trial court acted with impartiality [in propounding

to the witness questions from the bench] in attempting to ascertain a material fact or to

develop the truth.” ’ ” Id., quoting State v. Baston, 85 Ohio St.3d 418, 426, 709 N.E.2d

128 (1999), quoting Jenkins v. Clark, 7 Ohio App.3d 93, 98, 454 N.E.2d 541 (2d

Dist.1982).

      {¶30} Upon review, we fail to find how Appellant was prejudiced by the trial

court’s inquiry. Appellant’s First Assignment of Error is overruled.

                                               II.

      {¶31} In its Second Assignment of Error, Appellant argues that no proof was

presented that the machine in question failed to work and therefore the trial court erred

in granting judgment in favor of Appellee. We disagree.

      {¶32} “Manifest weight of the evidence” refers to the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179. In

considering a claim the verdict is against the manifest weight of the evidence, we must

weigh the evidence and all reasonable inferences to be drawn, and to consider the
Richland County, Case No. 12 CA 53                                                       9


credibility of witnesses to determine whether, in resolving conflicts in the evidence, the

finder of fact clearly lost its way and created such a manifest miscarriage of justice that

the judgment must be reversed and a new trial ordered. Id.

        {¶33} Upon review of the transcript, this Court finds that credible, competent

evidence was presented from both Rick Weemhoff and Benjamin Flynn that the tractor

and saw in this case were unable to perform the tasks for which it was purchased, i.e.

cut asphalt. Testimony was presented that the workers experienced problems with the

machine the first time they used it, including a broken hose and broken chains.

Additional testimony was provided that the saw would only run for approximately four

or five hours and that it would only cut about 100 feet of asphalt before failing. (T. at

113).

        {¶34} Appellant’s Second Assignment of Error is overruled.

                                                III.

        {¶35} In its Third Assignment of Error, Appellant argues that the trial court erred

in not dismissing Appellee’s Complaint in this matter. We disagree.

        {¶36} Appellant, in its argument in support of this assignment, seems to argue

that Appellant failed to prove the saw and machine in this case were not incompatible

as alleged in its complaint.

        {¶37} Upon review, this Court finds that competent, credible evidence was

presented that the machine failed to perform those tasks for which it had been

purchased and for which they had been assured by Appellant that the machine would

perform.
Richland County, Case No. 12 CA 53                                                       10


        {¶38} Based on the foregoing, we find Appellant’s Third Assignment of Error not

well-taken and overrule same.

                                                IV.

        {¶39} In its Fourth Assignment of Error, Appellant argues that Appellee failed to

show that the sale of the equipment in this case was completed in a commercially

reasonable manner. We disagree.

        {¶40} Revised Code 1302.85 Buyer's remedies in general; buyer's security

interest in rejected goods, provides as follows:

        {¶41} “(A) Where the seller fails to make delivery or repudiates or the buyer

rightfully rejects or justifiably revokes acceptance then with respect to any goods

involved, and with respect to the whole if the breach goes to the whole contract, as

provided in section 1302.70 of the Revised Code, the buyer may cancel and whether or

not he has done so may in addition to recovering so much of the price as has been

paid:

        {¶42} “(1) “cover” and have damages under section 1302.86 of the Revised

Code as to all the goods affected whether or not they have been identified to the

contract; or

        {¶43} “(2) recover damages for non-delivery as provided in section 1302.87 of

the Revised Code.

        {¶44} “(B) Where the seller fails to deliver or repudiates the buyer may also:

        {¶45} “(1) if the goods have been identified recover them as provided in section

1302.46 of the Revised Code; or
Richland County, Case No. 12 CA 53                                                      11


      {¶46} “(2) in a proper case obtain specific performance or replevy the goods as

provided in section 1302.90 of the Revised Code.

      {¶47} “(C) On rightful rejection or justifiable revocation of acceptance a buyer

has a security interest in goods in his possession or control for any payments made on

their price and any expenses reasonably incurred in their inspection, receipt,

transportation, care, and custody and may hold such goods and resell them in like

manner as an aggrieved seller as provided in section 1302.80 of the Revised Code.”

      {¶48} In this case, Appellee testified that it called Appellant regarding the

problems it was having with the machine. (T. at 51). Appellee also testified that it sent

a certified letter to Appellant advising Mr. Hunt there were problems with the

tractor/saw and requesting a cancellation of the sale. Id. Appellant admitted he

received such letter. (T. at 37, 42). Appellee further testified it took the machine to

Ditch Witch’s sales facility for evaluation and also that that it discussed the costs of

repairing the machine or replacing the saw with Ditch Witch. (T. at 71, 24-25, Coakley

Depo. at 8-9). Appellee also presented testimony that it sold the machine at an auction

through professional auctioneers, that the sale was advertised, and that the equipment

was available for inspection three days prior to auction.

      {¶49} Based on the foregoing, we find that the trial court did not err in finding the

sale in this matter was commercially reasonable.
Richland County, Case No. 12 CA 53                                              12


      {¶50} Appellant’s Fourth Assignment of Error is overruled.

      {¶51} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.


By: Wise, J.

Delaney, P. J., and

Gwin, J., concur.



                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                              JUDGES
JWW/d 0329
Richland County, Case No. 12 CA 53                                             13


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




DEER CREEK EXCAVATING                     :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
HUNT’S TRENCHING, et al.                  :
                                          :
       Defendants-Appellants              :         Case No. 12 CA 53




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
