Davis v. J & J Concrete
2019 Ohio 1407
Ohio Ct. App.2019Background
- Davis contracted with J&J to pour a mono (combined footer/floor) concrete foundation for a Quonset hut; contract called for 16" depth, No. 6 rebar, and ≥2,500 psi strength. Parties agreed price was $10,000 once poured.
- After assembly, Davis discovered foundation depth varied from 12–16"; parties agreed psi was 4,500 and the magistrate found J&J credibly installed No. 6 rebar.
- Davis sued for breach of contract (and other claims) and sought repair/replacement costs; two experts estimated total disassembly, replacement, and reassembly at roughly $49–50,000.
- At a site view the magistrate observed depth variance and a ‘‘bubbled’’ lower surface but no cracks or structural damage; the Quonset hut had performed its storage purpose for three years.
- The magistrate concluded J&J substantially performed, awarded nominal damages ($100) because Davis submitted no competent evidence that the shallow footer had caused present harm or justified the $50,000 replacement cost; the trial court adopted that decision and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether J&J materially breached by not pouring a uniform 16" foundation | Davis: the 16" depth was an essential contractual specification; deviation was a material breach going to the heart of the contract | J&J: substantially performed (footer is a mono/floating foundation); variance does not defeat essential purpose | Court: breach was not material; J&J substantially performed because foundation met essential purpose and no present failure shown |
| Proper measure of damages for construction defect | Davis: should recover reasonable cost to replace/repair (~$50,000 estimates) | J&J: no evidence of actual harm or reasonable repair cost; replacement is speculative | Court: cost-of-repair is usual measure, but plaintiff bears burden to prove damages; no evidence of harm or repair cost — only nominal damages warranted |
| Admissibility/weight of contractor expert testimony about structural harm | Davis: Conger (concrete contractor) was qualified to opine on footer defects and need for replacement | J&J: Conger is not an engineer; his testimony only raised possibility, not competent proof of structural compromise | Court: trial court has wide discretion; Conger allowed but not competent to prove structural effects requiring $50k; magistrate reasonably discounted his opinion |
Key Cases Cited
- Ohio Farmers’ Ins. Co. v. Cochran, 104 Ohio St. 427 (1922) (articulates the rule that only substantial performance is required to recover on a contract)
- Hansel v. Creative Concrete & Masonry Constr. Co., 148 Ohio App.3d 53 (2002) (contractor may substantially perform despite surface defects where essential purpose remains satisfied)
- Barton v. Ellis, 34 Ohio App.3d 251 (1986) (cost of repairs is the proper measure of damages for construction defects)
- Sites v. Moore, 79 Ohio App.3d 694 (1992) (damages measured by reasonable cost to place building in condition contemplated by parties)
- Akro-Plastics v. Drake Indus., 115 Ohio App.3d 221 (1996) (plaintiff bears burden to prove damages; appellate review defers to trial court on expert qualification)