COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59729 JAMES W. McHALE : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION STEVE TOPLOVICH : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 30, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 122,906 JUDGMENT : AFFIRMED IN PART; REVERSED : IN PART AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: MARK F. KRUSE Attorney at Law The Galleria & Towers at Erieview 1301 E. Ninth Street, Suite 1200 Cleveland, Ohio 44114 For defendant-appellee: JERRY PETERSEN Attorney at Law 401 South Street Chardon, Ohio 44024 - 1 - FRANCIS E. SWEENEY, J.: Plaintiff-appellant, James W. McHale, timely appeals from the decision of the Cuyahoga County Court of Common Pleas, which rendered judgment in his favor in the amount of three thousand one hundred dollars. Appellant contends this amount is far less than what was established at trial. Appellant brought suit alleging breach of an oral contract against appellee, Steve Toplovich. Appellant's complaint alleges appellee breached an agreement whereby appellee was to supervise the construction of appellant's home and perform the "finish carpentry" therein. Appellant sought damages for various mis- takes in the construction of his home and for being forced, by appellee's walking off the job, to hire more expensive carpenters to complete the finish carpentry. Appellee timely answered, and this cause proceeded to a bench trial. Appellant's trial testimony indicates that sometime in 1985, he and his wife decided to construct a new home. They retained the services of Jerald Baker, an architect, who designed and drew up the blueprints for the residence in question. Appellant - 2 - talked to various general contractors, but later decided to act as his own general contractor in that he wanted more flexibility in choice of fixtures and subcontractors than what he felt he could obtain through hiring a general contractor. However, due to the demands of his career, he decided to hire someone to supervise the subcontractors and perform finish carpentry work. Appellant first spoke with appellee at a meeting set up by a mutual acquaintance on October 26, 1985. Appellant testified that appellee agreed to act as supervisor of the construction of appellant's home and perform the finish carpentry work for two hundred fifty dollars per week. Appellant stated there was no haggling over the price; it was a handshake deal. Appellant further testified that two hundred fifty dollars per week would be overpaying appellee at first during the supervision stage of the job, but would even out when appellee began the finish car- pentry and spent more time on the job. Terms of payment, appel- lant stated, were left open, and appellee would get back to him on a payment schedule. Appellant testified that appellee began work under the agreement sometime in mid-November. Thereafter, appellant received a letter from appellee dated January 7, 1986 demanding payment for the work he had done. Appellant testified this was the first time he received a request for payment from appellee despite seeing him at the job site several times and at a - 3 - Christmas party. Thereafter, appellant contacted appellee and apparently resolved the problem. Everything apparently went smoothly from that point on. Appellee received payment for his role as supervisor, and appel- lee reported to appellant any problems which occasionally arose with the subcontractors. However, sometime in April, close to the time when appellee was to begin the finish carpentry work, appellee told appellant two hundred fifty dollars would not be enough for such work. Appellant testified that appellee now wanted three thousand five hundred dollars to complete the finish carpentry work, which was estimated to take approximately seven weeks to complete. Appel- lant reluctantly agreed, and appellee proceeded to work as agreed. Appellee worked for another five weeks putting in the windows, doors, crown molding, and the chair rail molding in the dining room. Appellant further testified he saw appellee planing a pre-hung door on the handle side. Finally, sometime in early June, appellant was informed by appellee, without explanation, that he was leaving the job and would not be coming back. Appellant testified, at that point, the shelves were not up, the molding was not finished, and a stack of partially finished lumber was lying around. Appellant testified he had to hire Frank Ciulla to complete the finish carpentry work, including tile work, and to complete the electrical and plumbing fixtures. Appellant further - 4 - testified he issued $9,274 worth of checks to various carpenters to finish the job, including payment to Tim Markt to finish an outside deck. Lastly, appellant testified that appellee planed as many as twenty-eight pre-hung doors, resulting in a large, abnormal gap between the door and its frame; that a dining room wall was put in crooked, costing him two thousand two hundred dollars to re- pair; and that nail heads were protruding through the linoleum floor in the kitchen. Nick Rich, with thirty-two years in the commercial and residential construction business, testified as appellant's expert. He stated he looked at appellant's house and observed three problems. Rich testified that one of the dining room walls was three to four inches off, and this was something a supervisor should have caught. He further stated the estimated cost to repair the wall was two thousand two hundred dollars. Mr. Rich also observed nail heads coming through the linoleum tile floor in the kitchen. Rich stated an underlayment should be installed over the existing one-floor system. The estimated cost would be $1,150.00. Finally, Mr. Rich testified he observed five to six doors with quite a big gap on the handle side between the door jamb and the door itself. The estimated cost of repair for all the interior doors was approximately eight thousand nine hundred dollars. - 5 - John R. Kozak, a real estate appraiser, testified that he inspected appellant's home and noticed problems with the kitchen floor and hardware on interior doors, and a defect in a dining room wall. He stated the diminution in value to appellant's home due to the noted deficiencies was approximately equal to the cost to repair such deficiencies. Finally, Jerald Baker, appellant's architect, testified on behalf of appellant. He stated the plans for the house did not call for an underlayment in the kitchen floor since this was typically a field decision. He also stated when linoleum is used as finish flooring, an underlayment is required. Baker also testified the supervisor should have noticed that the rough carpenter made the openings too small for the pre-hung doors, which were later planed down to the point where they were too small. On cross-examination, Baker stated that it was hard to say whether the construction of an exterior wood deck is consi- dered rough or finish carpentry. In fact, he stated there are almost three trades of carpentry "coming along" which would include rough carpenters, finish carpenters and deck people. Appellee, a seventy-two-year-old retired carpenter, testi- fied in his defense. He stated that at the meeting between appellant and himself, it was agreed he would be paid two hundred fifty dollars per week for supervisor work only. He stated he would consider doing finish carpentry work and denied that he - 6 - would do such work in addition to supervising for two hundred fifty dollars per week. Appellee stated after every subcontractor had finished a job, the Gates Mills building inspector would come out and check it. He worked seven days per week and later agreed to do the finish carpentry work for three thousand five hundred dollars. Appellee testified that no finish carpentry details appeared on the architect's plans, nor did he ever receive any written details in the finish carpentry work. Appellee admitted he planed one of the pre-hung doors and may have disassembled other doors which did not fit, but denied planing all of the doors. Appellee stated it was appellant's decision to put in a linoleum kitchen floor. He also stated that outside decks are not con- sidered finished carpentry. Finally, appellee testified he had completed ninety-nine percent of the finish carpentry when he left the job due to his health, including the baseboards, casting, chair rails, crown molding, doors and kitchen cabinetry. He stated it would take a competent carpenter no longer than a day to complete the job. On cross-examination, appellant's counsel attempted to impeach appellee by using an answer to an interrogatory wherein appellee stated he did not get sick until the fall of 1987 and appellee's deposition testimony wherein appellee admitted to having made a bad deal and not being paid adequately. - 7 - Finally, at the close of evidence, the trial court conducted a bench view of appellant's home. Based on the above evidence, the trial court rendered judgment in appellant's favor, allowing damages in the amount of one thousand dollars for the defect to the dining room wall and two thousand one hundred dollars for faulty installation of the pre-hung interior doors. Appellant timely appeals, raising three assignments of error for our review. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN REFUSING TO ADMIT INTO EVIDENCE PLAINTIFF'S EXHIBIT NO. 11, WHICH WAS A WRITTEN SUMMARY OF PLAINTIFF'S DAMAGES. Appellant contends the trial court erred in refusing to admit into evidence a typewritten summary or "List of Damages" which appellant allegedly incurred as a result of appellee's breach of contract. This argument lacks merit. Evid. R. 1006 provides in pertinent part: The contents of voluminous writings, record- ings, or photographs which cannot convenient- ly be examined in court may be presented in the form of a chart, summary, or calculation. Evid. R. 1006 requires the writings upon which the summary is based be voluminous and the documents upon which it is based be admitted into evidence or their absence explained. Repp v. Med-Care Products (Jan. 25, 1990), Cuyahoga App. No. 56222, un- reported, at 3. The purpose of this rule is to allow the use of summaries when the documents are unmanageable or when they would - 8 - be useful to a jury. Id.; Exide Corp. v. Battery World, Inc. (May 1, 1986), Cuyahoga App. No. 50527, unreported, at 13. The typewritten summary, or "List of Damages," contains two categories under the heading "supervision" and "finish carpen- try," along with the apparent cost of repair for each item listed under the appropriate category. The list further contains nine items for which a cost was incurred. Thus, it is apparent the "List of Damages" is not a summary of documents which are either voluminous or unmanageable so as to be admissible under Evid. R. 1006. Therefore, the trial court did not err in refusing to admit appellant's summary into evidence. Appellant's first assignment of error is, accordingly, over- ruled. Appellant's final two assignments of error will be consi- dered jointly. They state: II.THE TRIAL COURT ERRED WHEN IT SUBSTI- TUTED ITS OWN JUDGMENT IN REGARD TO THE MONETARY AWARD TO THE PLAINTIFF IN LIGHT OF THE UNREBUTTED TESTIMONY OF PLAINTIFF AND PLAINTIFF'S EXPERTS AS TO THE EXTENT OF MONETARY DAMAGES SUSTAINED BY PLAIN- TIFF. III. THE TRIAL COURT ERRED WHEN IT DISALLOWED PLAINTIFF DAMAGES FOR PAYMENTS MADE TO OTHERS TO COMPLETE WORK LEFT UNFINISHED BY THE DEFENDANT. Appellant contests the sufficiency of the damages awarded him. Appellant argues the damages awarded were insufficient in light of the evidence produced at trial. - 9 - As a general rule, an injured party cannot recover damages for breach of contract beyond the amount that is established by the evidence with reasonable certainty, and generally, courts have required greater certainty in the proof of damages for breach of contract than for a tort. Kinetico, Inc. v. Indepen- dent Ohio Nail Co. (1984), 19 Ohio App. 3d 26, 30; Restatement of the Law 2d, Contracts (1981) 144, Section 352. It has further been recognized as a general rule that a trial court enjoys a certain degree of flexibility in structuring damage awards in a manner most appropriate to the case before it. Rhodes v. Rhodes Industries, Inc. (Mar. 28, 1991), Cuyahoga App. No. 58359, unre- ported, at 17; Angerman v. Campana (Feb. 19, 1987), Cuyahoga App. No. 51703, unreported, at 7. Initially, appellant contests the trial court's allowance of damages as to the dining room wall, interior pre-hung doors and kitchen floor. Appellant argues the trial court, in its five- page judgment entry, found that each of these areas was impro- perly attended to by appellee, yet only one thousand dollars was allowed for the defect in the dining room wall, two thousand one hundred dollars for the faulty installation of pre-hung doors, and no amount was allowed for the alleged wrongly-installed kitchen floor. However, appellant partially misconstrues the trial court's judgment entry. Nowhere in the judgment entry does the trial court find appellee responsible for the defective installation of the kitchen floor. Further, the evidence - 10 - established that the architect's plans did not call for an underlayment on the kitchen floor, nor was there any mark on the plans indicating the flooring decision would be made in the field. Additionally, appellee testified that appellant made the decision to place linoleum on the kitchen floor. Thus, compe- tent, credible evidence exists supporting the trial court's decision not to award damages for the alleged wrongfully- installed kitchen floor. C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. With respect to the defect in the dining room wall, the trial court found the work was done by appellee and awarded appellant one thousand dollars. Appellant contends the uncon- troverted evidence established the cost to repair the defective wall as being two thousand one hundred dollars. While the reason for the trial court's award of one thousand dollars is not readi- ly apparent from the record, this court is mindful that it is the trial court which had the opportunity to weigh all of the evi- dence, judge the credibility of the witnesses, and, in the pre- sent case, view the home in dispute. It is well established that the weight of the evidence and credibility of the witnesses are primarily for the trier of fact, Seasons Coal Co. v. Cleve- land (1984), 10 Ohio St. 3d 77 and State v. DeHass (1967), 10 Ohio St. 2d 230, and a difference of opinion on weight and credi- bility is not a legitimate ground for reversal. Seasons Coal Co., supra. However, in this case, there appears no basis in the - 11 - record for the trial court's allowance of damages of only one thousand dollars. The manifest weight of evidence establishes that the cost to repair the defective dining room wall is two thousand one hundred dollars. Nowhere in the record does any competent, credible evidence exist to support the trial court's reduction of damages from two thousand one hundred dollars to one thousand dollars. Appellee neither cross-examined appellant's witness, Nick Rich, regarding his estimate, nor did appellee put forth any contrary evidence concerning the cost to repair the dining room wall. Rather, the only evidence upon which appellee might rely merely indicates it would have been cheaper to repair the wall prior to all the finish work being completed. However, competent, credible evidence exists supporting the trial court's finding that appellee was responsible for the defective dining room wall. This would include discovering the defect in the wall prior to the finish work being completed. Thus, the trial court erred in awarding one thousand dollars for the defective dining room wall, for which the court found appellee responsible, where the manifest weight of the evidence establishes the cost of repairing such wall to be two thousand one hundred dollars, and no evidence exists supporting the lesser amount. Accordingly, the trial court's judgment awarding appel- lant one thousand dollars damages for the defective dining room wall is modified to two thousand one hundred dollars. - 12 - Appellant also contests the trial court's award of two thousand one hundred dollars to appellant as a result of a defect in the pre-hung interior doors. Appellant argues he should have been awarded eight thousand nine hundred dollars to repair the interior pre-hung doors. The trial court noted, in its journal entry, "[u]pon a close examination, the opening between the edge of some doors is larger than proper and apparently results from some defective installation of the doors." This court is mindful that it was the trial court who had the opportunity to observe the doors themselves. Moreover, the testimony of appellee's expert, Nick Rich, corroborates the trial court's finding inas- much as Rich's testimony was that he observed five to six doors with a gap between the door jambs and the doors themselves. Thus, this court finds no basis in the record to disturb the trial court's judgment supported by competent, credible evidence awarding appellee two thousand one hundred dollars as damages for the faulty installation of the pre-hung interior doors. In appellant's final assignment of error, he contends the trial court erred in denying him recovery for the finish carpen- try work completed by other carpenters. The trial court found that appellee ultimately agreed to do the finish carpentry work for three thousand five hundred dollars and, in fact, did an appreciable amount of the finished carpentry work, including the installment of doors, cabinets, crown molding and chair railings. Appellee's testimony at trial, as well as some of appellant's - 13 - testimony, supports the trial court's judgment regarding the finish carpentry work. The trial court further found that appellee left the job before all the carpentry work was complete. The court, then, acknowledged that appellant hired Frank Ciulla to complete the work, but stated that appellant failed to estab- lish by a preponderance of the evidence any sums which he incur- red as payment he made for labor to complete the finish carpentry work. The trial court's decision, in this regard, is also sup- ported by competent, credible evidence. While appellant and his witnesses testified regarding the finish carpentry work to be completed and costs incurred in completing various jobs, appellee testified that ninety-nine percent of the finish carpentry work was completed and only an additional day was needed to finish the job. Moreover, with respect to construction of the outside deck, appellant's own architect testified that it is hard to say whether such work is considered finish carpentry, rough carpentry or a third category of carpentry work. Therefore, this court finds competent, credible evidence exists supporting the trial court's judgment except as it relates to the court's finding concerning its allowance of one thousand dollars for the dining room wall. According, judgment should be modified to allow for two thousand one hundred dollars in damages for the faulty dining room wall. Appellant's second assignment of error is overruled in part and affirmed in part. - 14 - Appellant's third assignment of error is overruled. Judgment is affirmed in part and reversed and modified accordingly. accordingly. It is ordered that appellant recover of appellee his 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KRUPANSKY, C.J. JOHN F. CORRIGAN, J. CONCUR JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .