Evans Landscaping, Inc. v. Stenger
969 N.E.2d 1264
Ohio Ct. App.2011Background
- Evans Landscaping performed landscaping work for the Stengers in Kentucky, including building a pond, with no written contract; invoices were issued as work progressed.
- The pond leaked after completion; Evans attempted multiple repairs but the water level continued to drop, causing the backyard to be unusable and prompting the Stengers to withhold payment.
- Stengers deconstructed and rebuilt the pond themselves after failed repairs, incurring costs of approximately $24,990 plus design advice from Gardens of Water costing $4,272.80.
- Stengers claimed additional plant delivery issues and ongoing plant-life failures under an $8,798.77 invoice; Evans claimed plants were delivered and guaranteed for one year.
- Trial court found breach of contract by Evans for pond completion and awarded $24,990 to Stengers for cost-to-repair, plus damages for nuisance/loss of use to Stengers, and awarded Evans $8,389 for plant-related breach; Evans appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nuisance and loss of use damages are recoverable when contract governs the breach | Evans argues Ohio Collieries limits to repair costs and loss of use, not personal nuisance. | Stenger argues damages include personal annoyance and loss of use under applicable tort-restatement approaches. | Damages limited to contract damages; nuisance/annoyance damages reversed. |
| Whether the cost-to-repair award was properly supported without expert testimony | Evans contends expert testimony was required to support reasonable repair costs. | Stengers argue repairs were necessary and reasonably calculated; non-expert testimony suffices under the circumstances. | Trial court's cost-to-repair award upheld; no reversible error for lack of expert testimony. |
| Whether the plant-damages award to Evans was supported by evidence and correctly calculated | Evans challenges the amount ($4,660) and written findings inconsistencies. | Stengers contends the amount reflected actual delivered plants under one-year guarantee. | Trial court's plant damages affirmed to the extent supported; remand to correct written judgment to consistent amount ($4,329? No, see text: $8,389 vs $8,329); court adjusts on remand. |
Key Cases Cited
- Ohio Collieries Co. v. Cocke, 107 Ohio St. 238 (Ohio 1923) (damages for damaged real property limited to restoration cost and loss of use)
- Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137 (Ohio App. 1996) (no tort claim can coexist with contract absent independent duty)
- Kishmarton v. William Bailey Constr., Inc., 93 Ohio St.3d 226 (2001-Ohio-1334) (damages for emotional distress in contract actions governed by Restatement §353)
- Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (Ohio 1982) (workmanlike-manner duty arises in tort when building completed; ex contractu when future construction)
- Barton v. Ellis, 34 Ohio App.3d 251 (Ohio App. 1986) (implied duty to perform workmanlike manner by builder or contractor)
- Mitchem v. Johnson, 7 Ohio St.2d 66 (Ohio 1966) (implied duties in construction context)
- Neville v. City of Wyoming, 2002-Ohio-4936 (First Dist. 2002) (qualified nuisance requires negligence; independent duty analysis)
- Hanna v. Groom, 2008-Ohio-765 (10th Dist. 2008) (application of Kishmarton on implied duties in contracts for future services)
- Hellkamp v. Boiman, 25 Ohio App.2d 117 (1970) (expert testimony required when witness lacks qualification on repair-values)
- McCoy v. Good, 2007-Ohio-327 (2d Dist. 2007) (expert testimony not always required to prove necessity and reasonableness of repairs)
- Texatron Fin. Corp., — (—) (as cited in opinion for financial-damages framework)