2011 Ohio 689
Ohio Ct. App.2011Background
- Maxim Enterprises, Inc. subcontracted lawn and property preservation work to Father & Son Property Maintenance, LLC in 2008 under an oral agreement.
- The contract required before-payment conditions: the work had to be completed on time, photos taken, and payment to Father & Son only after Maxim received payment from the bank.
- Maxim routinely paid for late work orders without bank payment, and assured payment despite the bank’s delay.
- Father & Son performed services, and Maxim paid approximately $63,602.90, but several invoices totaling $14,045.70 remained unpaid.
- Plaintiff filed suit in Canton Municipal Court seeking breach of contract, account, and unjust enrichment; Maxim answered and a bench trial was held.
- The trial court found that Maxim waived the conditions precedent by continuing to pay and accepting late work, and awarded Father & Son $11,545.70, which Maxim appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of a condition precedent | Father & Son asserts Maxim waived the condition precedent through late payments and assurances of payment. | Maxim argues the condition precedent cannot be waived; any payment before bank receipt was not a permissible waiver. | Waiver affirmed; Maxim estopped from enforcing the condition precedent. |
| Damages calculation | Evidence supports the claimed amount of $11,545.70 for work performed. | The trial court ignored extensive evidence showing noncompliance and underpaid/overlooked evidence. | Damages supported; no abuse of discretion; affirmed. |
Key Cases Cited
- Latina v. Woodpath Development Co., 57 Ohio St.3d 212 (1991) (contract interpretation to give effect to intent)
- Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216 (2003-Ohio-5849) (duty to interpret contract in context of surrounding facts)
- Hamilton Ins. Serv. Inc. v. Nationwide Ins. Cos., 86 Ohio St.3d 270 (1999) (contract interpretation and intent)
- Ohio Farmer's Ins. Co. v. Cochran, 104 Ohio St.427 (1922) (waiver by conduct; action for waiver established)
- Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (1984) (credibility and weight of evidence lie with trier of fact)
- State v. DeHass, 10 Ohio St.2d 230 (1967) (testimony credibility standard)