COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60043 : WILLIAM A. BERRIS : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : ZAREMBA BUILDING COMPANY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 9, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 153327 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: THOMAS L. ROSENBERG ALAN L. MELAMED Ulmer & Berne Dinn, Hochman, King, Melamed 900 Bond Court Bldg. 5855 Landerbrook Drive, 1300 E. 9th Street Suite 205 Cleveland, Ohio 44114-1583 Mayfield Hts., Ohio 44124 -2- PATRICIA A. BLACKMON, J.: Zaremba Building Company, defendant-appellant, hereinafter Appellant timely appeals the verdict in a jury trial, resulting in an award of Twenty-Seven Thousand and Five Hundred Dollars ($27,500.00) to Appellees, William and Lisa Berris, plaintiffs-appellees, hereinafter Appellees. We affirm. Appellees entered into a contract to purchase from Appellant, a wooded lot and a house that was to be constructed thereon. Appellees selected the particular lot at issue in this case because of the seclusion that the thicket of trees provided. The home Appellees were moving out of apparently was not very secluded and adjacent to an expressway. These respective features of the two homes were the main reason for the purchase of this particular lot and Appellees' desire to move from their old home. Because of the characteristics of the two respective properties, a clause was placed in the contract expressly providing for the landscaping of the trees. At the time of the selection of the lot, it was completely wooded. The provision stated that the trees would be cleared twenty feet around the house, thirty feet in the rear, and where necessary for the placement of utilities. In anticipation of their new home, Appellees would take a ride out to their lot periodically. Sometime around March, 1987, Appellees went out to their lot and discovered that the land had -3- been cleared of trees in a way that was contrary to the contract terms. Appellees were upset about the clearing of the trees primarily because the seclusion that the trees provided was no longer in existence under this present landscape. Appellees voiced their dissatisfaction and immediately entered into negotiations with Appellant through its President in order to rectify the problem. On or about August 11, 1987, a Settlement Agreement was reached between the parties. The Agreement contained five clauses that read as follows: 1. Promptly following the execution hereof, Berris shall select up to 50 trees of Berris' choice located on various property owned by Zaremba which property extends south from the end of Winchester Drive to Pettibone Road; to SOM Center Road on the east; and to the western property line of the Winchester Drive properties on the west. A representative or representatives of Zaremba shall accompany Berris for the purpose of verifying the trees selected by Berris. Promptly following the selection of such trees by Berris, Zaremba, at its sole cost and expense, shall cause to be transplanted same on the Premises in accordance with Berris' instruction as to location so long as Berris' instructions are consistent with proper transplanting procedures. Zaremba shall provide Berris with a written opinion from a qualified expert that such trees are healthy and properly transplanted. 2. Zaremba shall, at its sole cost and expense, hydroseed the entire rear of the Premises (except for those areas which cannot be hydroseeded due to the location of the trees) and shall install topsoil where appropriate. 3. Promptly following the Closing hereof, Zaremba shall deliver and transfer to Berris one 8 horsepower Ariena riding lawn mower having a retail value of approximate- ly $950.00. Such mower shall be transferred to Berris free and clear of all liens and encumbrances, and any and all warranties relating to such mower shall be in Berris' name or assigned to Berris, all at Zaremba's expense. -4- 4. All work to be performed by Zaremba under Paragraph 2 hereof shall be performed by qualified persons, in an expeditious and workmanlike manner and shall be accomplished as soon as possible following the execution hereof, and in no event later than October 15, 1987, time being of the essence, except for delays caused by weather or factors not within the control of Zaremba. 5. In all other respects, the Offer to Purchase between Zaremba and Berris dated October 1, 1986 is hereby ratified and approved. Because of a number of delays and Appellees' dissatisfaction with Appellants' performance of the terms and conditions in the Settlement Agreement, Appellees filed a lawsuit alleging that Appellant's breached the agreement to replace the trees. Since Appellant's two assignments of error are interrelated, they will be discussed together. Respectively assigned errors one and two state: 1. The trial court committed prejudicial and reversible error by entering judgment for Plaintiffs-Appellees in the full amount of the jury verdict because Plaintiffs- Appellees failed to prove by the preponderance of the evidence, that Defendant-Appellant breached the Agreement and that they incurred damages in the amount awarded. 2. The trial court committed reversible error by allowing evidence not pertaining to the sole contractual issue to be presented, thereby allowing the jury to be prejudiced in Plaintiffs-Appellees favor. These assignments of error raise three issues. The first is whether the evidence was sufficient to prove by a preponderance that the Agreement was in fact breached. The second is whether the evidence was sufficient to prove that Appellees incurred damages in the amount of the verdict. The third issue is whether -5- the trial court erred in allowing evidence that Appellant argues was not pertinent to the sole contractual issue. With respect to the first issue of whether the evidence was sufficient to prove by a preponderance that the Agreement was in fact breached, the guidelines for a reviewing court are clear. Even though State v. DeHass (1967), 10 Ohio St. 2d 230 is a criminal case, its holding applies equally to a civil trial. In a trial, either civil or criminal, the weight to be given the evidence and the credibility of witnesses are primarily for the trier of the facts. Id. at Syllabus 1. Further, this court, in State v. Mattison (1985), 23 Ohio App. 3d 10 enumerated several factors that should be used by the reviewing court to determine whether the decision by the trial court is against the manifest weight of the evidence. The factors are: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self-serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. Id. at Syllabus. Lastly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest -6- weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. (Emphasis added.) The first clause of the Agreement specified that Appellees along with Appellant's representative would select fifty trees of their choice located on undeveloped property owned by Appellant; the trees selected would then be transplanted onto Appellee's lot. Also, Appellant would provide Appellees with a written opinion from a qualified expert that such trees are both healthy and properly transplanted. The second clause specified that Appellant, at its expense, would hydroseed the entire rear of Appellees' premises with the exception of areas where the trees made it impossible. Additionally, top soil would be installed where appropriate. The third clause specified that Appellant would give Appellees a new lawn tractor. The fourth clause specified that the work would be completed by October 15, 1987, with the exception of delays caused by weather or factors not within the control of Appellant. This clause also provided that the hydroseeding referred to in the second clause would be done by qualified persons in an expeditious and workmanlike manner. The last clause of the Agreement merely ratified the prior purchase agreement in all other respects. The record, in this case, possesses sufficient facts upon which a reasonable trier of fact could conclude that Appellant breached the terms of the Agreement. Appellees presented evidence that Appellant did not transplant all of the trees selected by Appellees. Evidence was -7- presented that some of the trees were types that had not been selected by Appellees. There was evidence presented that some of the trees had not been mounded and mulched. There was testimony that some of the trees were smaller than the ones selected, others were diseased and dying. There was a question of fact raised with respect to whether the completion time was late because of weather or neglect. Having reviewed the record, it must be concluded that the evidence was sufficient to prove by a preponderance that the Agreement was in fact breached. Under the authority of DeHass, supra, the task of determining the weight to be given this evidence and the valuation of the witnesses' credibility is primarily that of the trier of fact. Furthermore, the testimony was not so outrageous that it should be deemed incompetent or incredible evidence. On this record, the judgment is supported by some competent, credible evidence going to all the essential elements of the case. Consequently, this case pursuant to Morris, supra should not be reversed on the grounds that the verdict was against the manifest weight of the evidence. Utilizing those same legal tests for the question of whether there was sufficient evidence to prove that Appellees were damaged in the amount of the verdict, it must be concluded that there was sufficient evidence for this reviewing court not to disturb the amount of damages awarded to Appellees. The trial court properly instructed the jurors on damages when he stated "when damage to real property is temporary, or -8- such that the property can be restored in this case to the condition required by the August 11, 1987 Agreement, then the Plaintiffs may recover the reasonable costs of these necessary repairs and alterations." Thatcher v. Lane Construction (1970), 21 Ohio App. 2d 41 held that "where the presence of trees is essential to the planned use of property for a homesite in accordance with the taste and wishes of its owner *** the owner may be awarded as damages the fair cost of restoring his land to a reasonable approximation of its former condition." Appellant argues that Appellees produced no evidence that could conceivably support such an award. We find this contention inaccurate. There were two experts that testified with respect to the conditions and necessary landscaping improvements. As is the case often in the so called "battle of the experts," the testimony of the two individuals was diametrically opposed. Richard Beran, President of the company who actually did the transplanting and restoration, testified as an expert as to the nominal amount of damages incurred by Appellees. Appellees produced their own expert witness, Lee Scaife, whose renovation plan would cost approximately Sixty-Seven Thousand and Three Hundred and Eighty-Three Dollars ($67,383.00). Furthermore, the jury also heard the testimony of Robert Cline who apparently made a timely examination of Appellees' property. Cline's testimony was more extensive than Appellant's expert. It's true that the five dead or dying trees were transplanted by Appellant and were -9- original to the property. However, Cline also testified that the trees were within the construction limits of the backyard. Cline stated "they are sort of native trees that were damaged and I felt to allow the other trees to get more light it should be cleaned out." Cline went on to testify that based on his experience the trees were damaged by bulldozers that had badly backed up on the rootball and a lot of bark was torn off the trees. There was competent and credible evidence placed before the jury, from each parties perspective, as to the amount of damages sustained by Appellees. It is the jury's function, principally, to evaluate the credibility of these witnesses. It is also their responsibility as the fact-finder to make a determination of both credibility and the amount of damages to be awarded, if any. The assessment of damages is a matter within the province of the jury. The jury's determination of damages should not be set aside unless the damages awarded were so excessive as to appear to have been awarded as a result of passion or prejudice, or unless the amount is so manifestly against the weight of the evidence as to show a misconception by the jury of its duties. Carter v. Simpson (1984), 16 Ohio App. 3d 420, citing Toledo, C & O River Rd. Co. v. Miller (1923), 108 Ohio St. 389. The jury's determination of damages was not unreasonable given the evidence before them. In fact, it appears that their decision was based on a simple division of the two amounts of damages testified to by the respective experts to remedy the -10- problem. The verdict, under these circumstances, can not be deemed so excessive that it was based on passion, prejudice, or on misconception by the jury. Regarding the last issue raised by these assignments of error, which was whether the trial court erred in allowing evidence that Appellant argued was not pertinent to the sole contractual issue, the trial court did not abuse its discretion in allowing this evidence to be introduced. Appellant contends that the admission of testimony about the emotional distress resulting from the trees being cleared was unduly prejudicial. This court does not agree because there was other competent and credible evidence that the jury could have based its decision on. There was testimony about the amount it would cost for Appellees to restore their home. Likewise, the jury was entitled to know some background on how the Agreement came into existence. This court can not reverse a jury verdict where there is a significant amount of competent and credible evidence, other than the alleged prejudicial information, that the jury could have relied on. Appellant's assignments of error are overruled. Judgment affirmed. -11- It is ordered that Appellee recover of Appellant 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 Common Pleas Court 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. Exceptions. NAHRA, P.J., CONCUR. KRUPANSKY, J., CONCURS IN JUDGMENT ONLY PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .