Povroznik v. Mowinski Builders, Inc.Povroznik v. Mowinski Builders, Inc.
PLAINTIFFS-APPELLEES
vs.
DEFENDANTS-APPELLANT
JUDGMENT: AFFIRMED
Carol Jackson
3900 Cullen Drive
Cleveland, Ohio 44105
FOR APPELLEES
Anatoly Povroznik
Dorota Povroznik
7626 State Road
Parma, Ohio 44134
N.B. This entry is an announcement of the court‘s decision. See
JAMES J. SWEENEY, J.:
{¶ 2} In the spring of 2006, defendant and the Povrozniks entered into a contraсt under which defendant was to complete the rough construction of the Povrozniks’ house at 7626 State Road, in Parma, Ohio. Defendant‘s obligations under the contract included excavation, concrete footers and floors, footer drain and stone, foundation walls, rough lumber, brick facing, electrical, plumbing, heating and air conditioning, sewers, and water lines. The contract detailed six installments the Pavrozniks were to pay defendant upon completion of various construction stages. It is undisputed that the Povrozniks were responsible for finishing the home after defendant‘s work was complete.
{¶ 3} According to the Povrozniks, the parties agreеd that defendant‘s work would be done by the end of 2006. Defendant did not meet this time frame. Eventually, the Povrozniks became unhappy with the quality of defendant‘s work and its inability to complete the job in a timely manner.
{¶ 4} In March 2007, the Povrozniks dismissed defendant from the job. In response, defendant sent the Povrozniks an invoice for $17,015, claiming that they owеd $10,450, which defendant alleged was the balance of the second-to-last installment payment under the contract, plus $6,565 for various additional items.
{¶ 5} As the Povrozniks began the finish work on the house, they encountered the following issues: there were seven front steps, rather than two as depictеd in the blueprints; the roof-line of the front entrance overhang blocked a second story window, causing it to be inoperable; there was a water problem starting at the inoperable window, running down to the first story and into the basement; and defendant did not excavate as required under the contract.
{¶ 6} On March 13, 2008, the Povrozniks filed suit against defendant for breach of contract, among other claims. Defendant filed a counterclaim against the Povrozniks, alleging that they owed $24,515 under the contract. After a bench trial, the court found in favor of the Povrozniks, awarding them $57,800. The court ordered defendant to withdraw the mechanic‘s lien.
{¶ 7} Defendant apрeals and raises one assignment of error for our review:
{¶ 8} “I. The trial court erred by failing to include the amount of the appellant‘s damages for breach of contract as a set off against the damages awarded to appellees.”
{¶ 9} Specifically, defendant argues that “it is entitled to have the damagеs adjusted to reflect the amounts [the Povrozniks] failed to pay on the contract.”
{¶ 11} In the instant case, the court did not find that the Povrozniks breached the contract; therefore, it did not award defendant damages. It is common sense that we сannot review the amount of a damage award when there is no damage award.
{¶ 12} We assume, for the sake of argument, that the essence of defendant‘s appeal is that the court erred by not finding that the Povrozniks breached the parties’ agreement when they failed to pay defendant the contract
{¶ 13} To succeed on a breach of contract claim, a party must prove the existence of a contract, that party‘s performance under the contract, the opposing party‘s breach, and resulting damages. See On Line Logistics, Inc. v Amerisource Corp., Cuyahoga App. No. 82056, 2003-Ohio-5381, at ¶39. In reviewing the trial court‘s decision, we apply the standard that judgments supported by competent, credible evidence in the record must not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v Foley Construction Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. In addition, we give deference to the trial court‘s findings. Seе Seasons Coal Co., Inc. v City of Cleveland (1984), 10 Ohio St.3d 77, 461 N.E.2d 1273.
{¶ 14} At trial, in the instant case, two expert witnesses on home construction and restoration presented evidence that defendant negligently constructed the struсture of the house at the front entranceway. The experts testified that the elevation of the front steps and main entrance was one to four feet
{¶ 15} Two estimates to remove and rebuild the front entranceway of the house and repair the resulting damage were entered into evidence. One estimate was for $69,720 and the second estimate was for $58,700.
{¶ 16} In addition, there was inconsistent evidence rеgarding cash payments the Povrozniks made to defendant, which were not credited under the installment payment plan. Defendant testified that the Povrozniks paid $3,118.99 in cash. The Povrozniks, on the other hand, testified that they paid defendant as much as $10,000 in cash.
{¶ 17} Furthermore, the evidence in the record showed that defendant did not comрly with
{¶ 19} Defendant‘s sole assignment of error is overruled.
{¶ 20} Judgment affirmed.
It is ordered that appellees recover from appellant their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
JAMES J. SWEENEY, JUDGE
PATRICIA A. BLACKMON, J., CONCURS;
CHRISTINE T. McMONAGLE, P.J., CONCURS
IN JUDGMENT ONLY