[Cite as NGC/Red Hill, Inc. v. Weaver, 2012-Ohio-5093.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



NGC/RED HILL, INC.                                        JUDGES:
                                                          Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                                Hon. John W. Wise, J.
                                                          Hon. Julie A. Edwards, J.
-vs-
                                                          Case No. 12 AP 01 0008
BRIAN WEAVER

        Defendant-Appellant                               OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Municipal Court, Case
                                                      No. CVI 0900353


JUDGMENT:                                             Affirmed

DATE OF JUDGMENT ENTRY:                               October 30, 2012

APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

NGC/RED HILL, INC.                                    DAN GUINN
c/o MILES PILLAR                                      118 West High Avenue
1737 Red Hill Road, NW                                New Philadelphia, Ohio 44663
Dover, Ohio 44622
Tuscarawas County, Case No. 12 AP 01 0008                                                 2

Wise, J.

          {¶1}    Appellant Brian Weaver appeals from a small claims decision, in the New

    Philadelphia Municipal Court, Tuscarawas County, in favor of Appellee NGC/Red Hill.

    The relevant facts leading to this appeal are as follows.

          {¶2}    Plaintiff-Appellee NGC/Red Hill operates a crane and equipment rental

    service in Dover, Ohio. At some point in the fall of 2008, Defendant-Appellant Weaver,

    on behalf of his business, Affordable Tree Service, rented some heavy equipment and

    utilized operator labor from Appellee NGC/Red Hill to use in his tree trimming business.

    A dispute thereafter arose between the two parties as to payment for the use of the

    equipment and operator.

          {¶3}    On November 6, 2009, appellee filed a small claims suit against appellant

    in the New Philadelphia Municipal Court, Tuscarawas County, seeking judgment of

    $1,828.00 on two invoices.

          {¶4}    The case was heard by a magistrate on January 13, 2010.

          {¶5}    On January 25, 2010, the magistrate issued a decision finding that

    appellant had failed to pay for services rendered by appellee and awarding judgment

    for $1,828.00 plus interest.

          {¶6}    On February 5, 2010, appellant filed an objection to the decision of the

    magistrate.

          {¶7}    On December 29, 2011, the trial court, having reviewed the objections and

    the transcript, approved and adopted the magistrate’s decision.1



1
  Appellant's brief fails to include or attach a copy of the judgment entry under appeal.
See Loc.App.R. 9(A). We have reviewed the original magistrate’s decision and the trial
court’s judgment entry in the court's file.
Tuscarawas County, Case No. 12 AP 01 0008                                                3


      {¶8}   Appellant filed a notice of appeal on January 30, 2012. He herein raises

the following sole Assignment of Error:

      {¶9}   “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT

THE APPELLANT DID NOT SATISFY THE TERMS OF THE CONTRACT.”

                                               I.

      {¶10} In his sole Assignment of Error, appellant argues the trial court erred or

abused its discretion in finding non-compliance by appellant with the terms of the

contract regarding the rental of appellee’s tree-cutting equipment. We disagree.

      {¶11} The elements of a contract include the following: an offer, an acceptance,

contractual capacity, consideration (the bargained-for legal benefit or detriment), a

manifestation of mutual assent, and legality of object and of consideration. Altek

Environmental Serv. Co. v. Harris, Stark App.No. 2008CA00138, 2009–Ohio–2011, ¶

19, citing Kostelnik v. Helper, 96 Ohio St.3d 1, 770 N.E.2d 58, 2002–Ohio–2985, ¶ 16.

      {¶12} At trial, the president of NGC / Red Hill, Miles Pillar, presented his invoices

to the magistrate and testified that the contract at issue was oral, but that he was never

paid for appellant’s use of the equipment. See Tr. at 4-6. Appellant presently concedes

that a valid contract existed. See Appellant’s Brief at 3. As no check copies, receipts, or

other written documents of payment were presented at trial, the essential issue before

us is whether the contract was actually fulfilled via a cash payment. We find this to be a

question of the manifest weight of the evidence.

      {¶13} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant,

competent and credible evidence upon which the fact finder could base its judgment.
Tuscarawas County, Case No. 12 AP 01 0008                                                 4

Cross Truck v. Jeffries (February 10, 1982), Stark App. No. CA–5758. Recently, in

Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517, 2012-Ohio-2179, the Ohio

Supreme Court reiterated its “manifest weight” standard for civil cases taken from State

v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. According to Thompkins:

“Weight of the evidence concerns ‘the inclination of the greater amount of credible

evidence, offered in a trial, to support one side of the issue rather than the other. It

indicates clearly to the jury that the party having the burden of proof will be entitled to

their verdict, if, on weighing the evidence in their minds, they shall find the greater

amount of credible evidence sustains the issue which is to be established before them.

Weight is not a question of mathematics, but depends on its effect in inducing belief.”

(Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law Dictionary (6th Ed.

1990) at 1594. The Ohio Supreme Court also reiterated: “ ‘[I]n determining whether the

judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment

and the finding of facts. * * *.’” Eastley at 334, quoting Seasons Coal Co., Inc. v.

Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978).

      {¶14} The record in the case sub judice reveals appellant’s testimony before the

magistrate that he had paid Pillar one day in October 2008 when Pillar drove by a job

site at which appellant was working. Tr. at 13. According to appellant, Pillar came to

him and asked for payment, at which time appellant paid him. Id. Appellant testified

that he had not received a bill from appellee/Pillar after that. Tr. at 15. Additionally, an

employee of Affordable Tree Service, Donald Weaver, testified that he saw such an
Tuscarawas County, Case No. 12 AP 01 0008                                                5


exchange occur, although he was not close enough to hear the exact conversation.

See Tr. at 21. However, Donald Weaver recalled not being paid on that particular day

because appellant purportedly did not have any money after paying Pillar. Id.

Furthermore, Jennifer Paisley, who does appellant’s bookkeeping, said that she was

told by appellant that Pillar had been paid, following which she removed the bills from

the accounts payable stack. Tr. at 23.

      {¶15} In addition to the above evidence, appellant emphasizes that appellee did

not file its small claims action until more than a year after appellee generated its

invoices for the job. He also asserts, without citing to the record, that the parties

ordinarily conducted business in cash. Nonetheless, it is well-established that the trier

of fact is in a far better position to observe the witnesses' demeanor and weigh their

credibility. See, e.g., Taralla v. Taralla, Tuscarawas App.No. 2005 AP 02 0018, 2005–

Ohio–6767, ¶ 31, citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212.

Upon review, we conclude that the trial court’s implicit determination that appellant had

not paid on the contract at issue was not against the manifest weight of the evidence.
Tuscarawas County, Case No. 12 AP 01 0008                                    6


      {¶16} Appellant’s sole Assignment of Error is therefore overruled.

      {¶17} For the reasons stated in the foregoing, the decision of the New

Philadelphia Municipal Court, Tuscarawas County, Ohio, is hereby affirmed.


By: Wise, J.

Delaney, P. J., and

Edwards, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                              JUDGES
JWW/d 1012
Tuscarawas County, Case No. 12 AP 01 0008                                    7


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




NGC/RED HILL, INC.                     :
                                       :
       Plaintiff-Appellee              :
                                       :
-vs-                                   :        JUDGMENT ENTRY
                                       :
BRIAN WEAVER                           :
                                       :
       Defendant-Appellant             :        Case No. 12 AP 01 0008




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

judgment of the New Philadelphia Municipal Court of Tuscarawas County, Ohio, is

affirmed.

       Costs assessed to appellant.




                                       ___________________________________


                                       ___________________________________


                                       ___________________________________

                                                        JUDGES
