COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60390, 60391, 60392, 60652 UNITED METHODIST CHURCH : OF BEREA : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : DUNLOP CONSTRUCTION PRODUCTS, : OPINION INC., ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1992 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court, Nos. 111827, 144547, 179218, 111827. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Donald H. Powers, Esq. 2 Berea Commons, No. 215 P.O. Box 1059 Berea, OH 44017 For Defendant-Appellee John S. Chapman, Esq. Dunlop Construction Ralph E. Bruner, Esq. Products, Inc.: Woody Bruner, Esq. James D. Vail, Esq. 1525 National City Bank Bldg. Cleveland, OH 44114 For Defendant-Appellee John F. Hill, Esq. Hartman Roofing Company: Bulkley Building, 7th Floor 1501 Euclid Avenue Cleveland, OH 44115 -2- DAVID T. MATIA, C.J.: This is an appeal and cross-appeal from a bench trial judgment rendered in the Cuyahoga County Court of Common Pleas arising out of a breach of contract/warranty claim with respect to a leaky roof. The trial court found for the plaintiff-appellant against the defendant-appellee Dunlop Construction Products, Inc., a roofing manufacturing company. The plaintiff-appellant United Methodist Church's appeal seeking punitive damages, attorney fees and other damages against the dismissed defendants Bruner Co., Woody and Ralph Bruner, is not well taken. The defendant- appellee Dunlop Corporation's cross-appeal seeking to reduce the amount of judgment is likewise not well taken. Finally, the judgment of the trial court is affirmed. STATEMENT OF THE FACTS This cause began in 1983 when plaintiff-appellant/cross- appellee, The United Methodist Church of Berea (hereinafter the "Church") was searching for an adequate roof replacement over certain areas of its Church. In January 1984, Mr. Kenneth O'Hearn, a Church trustee, contacted the Bruner Company in regards to a roof known as a Firestone roof. Woody Bruner, president of Bruner Company, and one of the defendants-appellees within (hereinafter the "Bruners") told Mr. O'Hearn that his company sold Dunlop Roofing Systems for the Dunlop Company, a Canadian company and defendant-appellee/cross-appellant within (hereinafter "Dunlop"). After some discussion and negotiations, Mr. O'Hearn, on behalf of the Church, entered a contract with Dunlop Company for thepurchase of a Dunlop Roofing -3- System for replacement of one portion of the Church's roof. Hartman Roofing and Sheet Metal Company, defendant-appellee (hereinafter "Hartman") was selected by the Church to install the roof. Hartman was a licensed applicator of Dunlop Roofing Systems. Hartman completed the first roof in December, 1984. Dunlop issued the Church a materials and labor/workmanship warranty on the roof on February 28, 1985. On March 25, 1985, the Church entered into a second contract with Dunlop and Hartman to purchase and have installed a second Dunlop roof over another portion of the Church, specifically, the educational wing. Hartman completed the second roof installation on April 30, 1985. After inspection and some adjustments, Dunlop issued the Church a labor/workmanship warranty and a fifteen year materials warranty on July 30, 1985. ROOF LEAKS On August 2, 1985, Mr. O'Hearn notified Bruner that the second roof was leaking. Hartman inspected the roof but was unable to locate a source of leakage. A Dunlop technical service representative inspected the roof with representatives from Hartman and Bruner. During the inspection, some corrective work was done and some new membrane seam patches were installed. On August 15, 1985, Mr. O'Hearn notified Ralph and Woody Bruner of a second leak in the roof. Again, a Dunlop technical service representative arrived from Canada and met with the Hartman people in an attempt to locate the roof leak. -4- On August 20, 1985, the Church reported more leaking to the Bruners. Dunlop directed Hartman to apply more patches to the seams of the roof. At that time, Dunlop tested roof samples at its Dunlop laboratories in Canada. The tests did not reveal the source of the problem. On August 30, 1985, the Church reported more leaking from the roof. On September 4th, Dunlop directed Hartman to do more patching of the roof's problem areas. On October 1, 1985, a Dunlop technical service representative arrived from Canada to inspect the roof. At that time the leaking appeared to have ceased. On October 9, 1985, Dunlop advised Hartman to install Solar vacs on the roof to absorb the excess moisture trapped between the roofs. The roof remained dry for three months after the October 1st inspection. On January 2, 1985, the Church's principals observed more leaking beneath the roof. Mr. O'Hearn notified the Bruners and Hartman. Woody Bruner notified the Church in writing that nothing could be done until the weather cleared. On April 2, 1986, a Dunlop technical service representative from Canada inspected the roof. Dunlop's findings at that time were inconclusive. On June 18, 1986, the Church commenced an action against Dunlop, the Bruners and Hartman for breach of their warranty of material and warranty of labor and workmanship. STATEMENT OF THE CASE -5- The cause sub judice had a tortured pleading practice. On June 18, 1986, plaintiff-appellant Church filed a complaint in Common Pleas Court in Case No. 111827 for specific performance of a roofing contract and warranties against Dunlop Construction Products Inc. and Hartman Roofing and Sheet Metal Company. The complaint prayed, also, for damages against Dunlop, Hartman and Woody and Ralph Bruner, Dunlop's sales agents. On April 23, 1987, the Church filed an amended complaint (the "second amended complaint"), eliminating the request for specific performance, and adding claims for fraud and deceit, with punitive damages against Dunlop and the Bruners. The Church alleged only breach of contract and contract damages against Hartman. On September 11, 1987, Dunlop and the Bruners filed a motion for partial summary judgment on the issue of punitive damages and attorney fees. On November 10, 1987, the court granted Dunlop's and Bruners' motion. In November, 1987, the Church filed motions for leave to file a third and fourth amended complaint, pleading additional fraud on the part of the Bruners and Dunlop. These motions were denied by the court. In January, 1988, the Church filed a motion for leave to file a fifth amended complaint, adding new defendants and claims. On February 8, 1988, the court, thinking the case was settled, dismissed the case. -6- On February 16, 1988, the Church filed Case No. 144547 in the Common Pleas Court, adding new defendants and all the leaking roofs other than the roof which was the subject of the first case. On March 3, 1988, the court reinstated the first case (which it had wrongfully dismissed), and on March 28, 1988, denied the Church's motion to file its fifth amended complaint. On April 20, 1988, the Church appealed both the first case and the second case. The appeals were subsequently consolidated. On July 20, 1989, the Court of Appeals in cases 55590 and 56202 dismissed both appeals as non-final orders. On November 13, 1989, the Church filed a third case, No. 179218 in the Court of Common Pleas, and moved to consolidate all cases with the first case. On April 2, 1990, the trial judge commenced a bench trial of the breach of contract/warranty claims only in respect to all the leaky roofs and against the originally named Dunlop, Hartman and the two Bruners. The Ontario Dunlop Company was added as a party defendant upon the opening day of the trial. On August 1, 1990, the trial court rendered judgment in favor of the Church, against Dunlop only in the amount of $121,639.24, but not allowing a recovery for fraud. Appellant timely appeals the court's judgment. On December 3, 1990, the trial court dismissed all remaining defendants and causes of action in all cases. PLAINTIFF-APPELLANT'S ASSIGNMENT OF ERROR I -7- I. THE TRIAL COURT ERRED IN GRANTING THE MOTION OF THE BRUNERS FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF PUNITIVE DAMAGES AND ATTORNEY FEES. Plaintiff-appellant Church argues in his first assignment of error that the trial court erred in granting partial summary judgment in favor of the Bruners. A. ISSUE I: WHETHER THE FILING OF A CIV. R. 59 MOTION FOR A NEW TRIAL IS A NECESSARY PRECONDITION FOR A PREVAILING PARTY TO OBTAIN APPELLATE REVIEW Appellee-cross-appellant Dunlop argues that plaintiff- appellant Church is estopped from bringing the within appeal pursuant to the line of Ohio cases holding that the merits of an appeal filed by a party who prevailed at trial cannot be reviewed by the court of appeals unless the party had moved for a new trial pursuant to Civ. R. 59. See Patrick Media Group, Inc. v. Schneider (Nov. 8, 1989), Hamilton App. No. C-880386, unreported, 1989 WL 133512, and Henry v. Serey (1989), 46 Ohio App. 3d 93; Brogan v. Hagan (1986), 26 Ohio App. 3d 81; Fuller v. Cincinnati Gas & Elec. Co. (Dec. 28, 1988), Hamilton App. No. C-870837, unreported, 1988 WL 138791; Smith v. Grinker & Sudman (Nov. 10, 1987), Hamilton App. No. C-870064, unreported; Krailler v. Carey (Nov. 26, 1986), Hamilton App. No. C-860013, unreported, 1986 WL 13384; and McHale v. Jenkins (June 29, 1983), Hamilton App. No. 1 C-820705, unreported, 1983 WL 8922. 1 See, also, Ramos v. Long (June 29, 1990), Portage App. No. 89-P-2103, unreported, 1990 WL 94881; Kennedy v. Keaton (Feb. 16, 1990), Lucas App. No. L-89-102, unreported, 1990 WL 12734; Woodson v. Woodson (Mar. 9, 1990), Lucas App. No. L-89-121, unreported 1990 WL 21762; and Straka v. Gedeon (May 5, 1989), -8- This rule was recently overturned by the Ohio State Supreme Court in Dunn v. Westlake (1991), 61 Ohio St. 3d 102. In Dunn, the prevailing party cross-appealed and the court of appeals in Hamilton County overruled two of its previous cases, Patrick Media Group, Inc., supra, and Henry v. Serey, supra, to hold that the prevailing party could properly pursue its cross-appeal even though the party had never filed a motion for a new trial. The court of appeals limited the "appropriateness" of such appeals to cases involving cross-appeals by prevailing parties. The state court ruled in Dunn that "the application of the rule is inappropriate--but not just for prevailing party cross- appellants." The state court thereby overruled the precondition reasoning that: For the following reasons, we find that the filing of a Civ. R. 59 motion for a new trial is not a necessary precondition for any party to obtain appellate review whether the review is sought by way of appeal or by way of cross-appeal filed in response to an appeal by an adverse party. R.C. 2505.02 defines "final orders." Final orders are appealable. R.C. 2505.03. Nowhere in R.C. 2505.02 and 2505.03 is the appealability of an order conditioned upon the filing of a Civ. R. 59 motion for a new trial. Furthermore, appeals from final orders are governed by the Rules of Appellate Procedure, where applicable. R.C. 2505.03(C). Nowhere in the Rules of Appellate Proceudre is the filing of a notice of appeal or cross-appeal conditioned upon a party first filing a motion for a new trial. Lake App. No. 13-012, unreported, 1989 WL 47887. -9- 2 See, specifically, App. R.3 and 4(A). Indeed, even Civ. R. 59 contains no such requirement. Simply put, we can find no persuasive authority in the law and rules of appellate practice which would support the proposition, now adhered to by a very limited number of appellate jurisdictions, that a party who obtains judgment in the trial court must first file a motion for a new trial in order to preserve alleged errors for appeal or cross-appeal. We hold that the filing of a Civ. R. 59 motion for a new trial is not a condition precedent to the filing of a notice of appeal or cross-appeal from an order which is final and appealable. As such, we specifically disapprove of Brogan, supra, and Serey, supra, to the extent that these cases are inconsistent with our holding herein. 2 App. R. 3(A) provides, in part, that: An appeal as of right shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4. *** App. R. 4(A) provides, in part that: In a civil case, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days of the date of the entry of the judgment or order appealed from. If service of the notice of judgment and its entry is not made on a party within the three-day period provided for in Civ. R. 58(B), then that party shall file the notice of appeal within thirty days of the date of service. A notice of appeal filed before entry of such judgment or order shall be treated as filed after such entry and on the day thereof. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires. -10- Dunn, supra, at 108, 109. (Footnote 2 added.) Ergo, appellee-cross-appellant Dunlop's argument is not persuasive. The application of the holding in Dunn confers appellate review on appellant's within issues, notwithstanding the fact that plaintiff-appellant Church prevailed at trial. B. ISSUE II: WHETHER THE RECORD SUPPORTED THE EXISTENCE OF A TORT IN FRAUD WITH REGARD TO THE CHURCH'S ACTION FOR BREACH OF CONTRACT AND BREACH OF WARRANTY Appellant Church argues that co-defendants Ralph and Woody Bruner perpetrated fraud upon the Church in its representation of the Dunlop Roofing System. The Church's allegations of fraud were that the Bruners represented that: 1) the roof would remain water-tight for 15 years after installation; 2) should the roof leak, Dunlop would fix it or have it fixed without cost to the Church; 3) Dunlop had arranged with Hartman to perform all necessary repairs and replacements to the roof; and 4) that the Bruners dealt in bad faith with the Church. In each case of alleged fraud, the appellant, in order to be awarded punitive damages, must establish not only the elements of the tort itself but, in addition, must either show that the fraud is aggravated by the existence of malice or ill will, or must demonstrate that the wrongdoing is particularly gross or egregious. Combs Trucking v. International Harvester (1984) 12 Ohio St. 3d 241. Punitive damages in Ohio are available under a finding of actual malice. "Actual malice" for these purposes is "(1) that state of mind under which a person's conduct is characterized by -11- hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. Preston v. Murthy (1987), 32 Ohio St. 2d 334, syllabus. Just as recently as 1991, the Ohio Supreme Court in Calmes v. Goodyear Tire and Rubber Co. (1991), 61 Ohio St. 3d 470 held that misconduct greater than negligence is required for an award of punitive damages. The court reasoned: In Preston we arrived at the second standard for an award of punitive damages after a thoughtful review of the circumstances for which, and standards under which, punitive damages have been awarded in the past. Specifically, we held there, and hold here, that punitive damages are intended to punish and deter conduct resulting from a mental state so callous in its disregard for the rights and safety of others that society deems it intolerable. This mental state is the component of the standard contained in the phrase "conscious disregard for the rights and safety of other persons ***." Id. at 335. In addition to defining the requisite mental state, Preston also held that misconduct greater than mere negligence is required. This component is expressed in the language "great probability of causing substantial harm," which replaced language from earlier cases such as "outrageous," "flagrant, and "criminal." Id. at 335-336. Calmes, supra. Using the standard promulgated in Calmes, we agree with the trial court that the issue of punitive damages was not properly submitted to the jury as there was no genuine issue of material -12- fact with respect to the Church's claims for fraud and bad faith. Contrary to appellant's contention, their second amended complaint fails to state a fraud claim. They assert in their complaint and brief that the Bruners committed a knowing and reckless misrepresentation with an intent to mislead. Cf. Gaines v. PreTerm-Cleveland, Inc. (1987), 33 Ohio St. 3d 54, 55 (elements of a fraud action defined). However, the record does not support their allegations. Our review of the record reveals not one scintilla of evidence that the Bruners acted out of ill will, malice or bad faith, or committed an independent willful tort in its representation of the Dunlop Roofing System. The record indicates that the Bruners working under corporate entity as the Bruner Company acted as salesmen for the Dunlop Company. Mr. O'Hearn testified that when he called the Bruner Company listed in the telephone book, he was told by Bruner that he was no longer selling Firestone Roofing Systems, but instead was selling Dunlop Roofing Systems. Mr. O'Hearn also testified that he always dealt with Bruner instead of Dunlop. In answer to appellant's first allegation that the Bruners indicated that the roof would be water tight for fifteen years, the record indicates that Dunlop Company issued the Church a fifteen year materials warranty and a labor/workmanship warranty. We find, therefore, that the Bruners did not fraudulently misrepresent what Dunlop Company was offering. The issued warranty supports the fact that Dunlop Company, and therefore Bruner, as agents, believed that -13- the roof would remain water-tight for fifteen years after installation. The record further indicates that with each complaint from the Church in regards to the leaky roof, the Bruners relayed the message to Dunlop or Hartman, who, the record indicates, were the parties who could make repairs or investigations into the complaints. Mr. O'Hearn testified that Bruner always responded to his complaints. Q. Now, through August and September and October, without going into every time, was the church on a constant basis and regular basis having leaks in the educational building roof? A. Yes. Q. Did it have leaks, as far as you knew, in any of the other roofs? A. No. Q. And you would call Mr. Bruner? A. I would call Woody. Most of the time or occasionally I would call Hartman first, but in any case I called Woody and let him know that we was (sic) having the problems. Q. And would Mr. Hartman come out and attempt to find out what was going on and patch the roofs? A. Yes. They would make inspections and -- (Tr. 92.) THE COURT: I didn't ask you that. I only asked you how many times. As best you can, how many times did they come out? One, two, three, four, five, six, 10? -14- THE WITNESS: Somewhere in the neighborhood of 10 times. THE COURT: They were there, a Dunlop representative came? THE WITNESS: Yes, with Mr. Bruner and usually someone from Hartman. (Tr. 550.) We find therefore that the trial court properly granted the Bruners' motion for summary judgment on the issue of punitive damages whereas the record and the evidence supports the court's judgment that there was no material evidence of malice, ill will or of an independent willful tort on the part of the Bruners. Accordingly, finding no evidence of bad faith dealings within, appellants are neither entitled to an award of punitive damages nor attorney fees. Ohio has adopted the "American Rule" which does not permit a prevailing party to recover attorney fees in the absence of statutory authorization as part of the costs of litigation. Sorin v. Bd. of Edn. (1976), 46 Ohio St. 2d 177, 75 O.O. 2d 224, 347 N.E. 2d 527. The only exception to this general rule permits the prevailing party to recover attorney fees as part of the costs where the losing party has acted in bad faith, vexatiously, wantonly, obdurately or for oppressive reasons. See Broughman v. Breyfogle-Schaaf Partnership (Mar. 29, 1984), Franklin App. No. 83AP-1145, unreported (as cited in Buller v. Respicare (1987), 39 Ohio App. 3d 17.) Accordingly, Assignment of Error I is overruled. -15- Assignments of Error II and III involve related issues of law and fact and therefore will be discussed concurrently. II. THE TRIAL COURT ERRED IN DISMISSING ALL CLAIMS AGAINST RALPH BRUNER AND WOODY BRUNER. III. THE TRIAL COURT ERRED IN DISMISSING ALL CLAIMS AGAINST HARTMAN ROOFING AND SHEET METAL CO. Appellant argues in Assignments of Error II and III that the trial court erred in dismissing all claims against Ralph and Woody Bruner and against Hartman Roofing & Sheet Metal Company. Specifically, appellant argues that the Bruners and Hartman were liable for the Church's leaky roofs. These assignments of error are not well taken. A. ISSUE I: WHETHER RALPH AND WOODY BRUNER WERE PERSONALLY LIABLE FOR THE CHURCH'S LEAKY ROOFS The issue of the Bruners' tort liability, as discussed in Assignment of Error I was properly overruled by the trial court. The record contained no evidence that the Bruners committed a tort in fraud against the Church. The Church now argues that the Bruners should have been held liable to the Church in a personal capacity because the Bruners failed to establish at trial that they acted as agents of Bruner Company. We find that the record establishes the contrary. Appellant Church's argument turns on the principles of agency. Appellant contends that the Bruners were operating with an undisclosed principal, thereby, making them personally liable on -16- the contract entered into between the Church and the Bruners. This argument is without merit. It is well-settled in the law of agency that an agent who discloses neither the existence of the agency nor the identity of the principal is personally liable in his or her contractual dealings with the third parties. See, e.g., 1 Mechem, The Law of Agency (2 Ed. 1914) 1039-1041, Section 1410. See, generally, Davis v. Harness (1882), 38 Ohio St. 397; and James G. Smith & Assoc. Inc. v. Everett (1981), 1 Ohio App. 3d 118, 120-121, 1 OBR 424, 427, 439 N.E.2d 932, 935 (where the existence of the agency and the identity of the principal are unknown to the third party, the dealing is held to be between the agent and the third party and the agent is liable). The reason for this rule is simple. The third party who deals with an agent while unaware of the existence of the principal and the agency relationship intends to deal with the agent, and relies upon the agent's ability to perform. Dunn v. Westlake, supra. A review of the record indicates that from the Church's initial contact with the Bruners, the Church was aware that they were dealing with a corporate identity. Mr. O'Hearn testified that he located the Bruners when he was looking in the telephone book for salesmen for the Firestone Roof. Q. Now, after you got this initial quote from Goodyear, you had gotten in touch with Woody Bruner in the back there, correct, through the telephone book? A. Yes. -17- Q. And you called Bruner Co. in the phone book. A. Yes. THE COURT: Time out. My impression was, when somebody first testified, they didn't call Bruner Co. They called Firestone. Is that right or wrong? THE WITNESS: Technically I looked in the phone book and I seen (sic) Firestone and I called that number and I got the Bruner Company. (Tr. 517.) In his initial telephone conversation with the Bruners, Mr. O'Hearn was told by Bruner that they no longer sold the Firestone Roof, but were salesmen for the Dunlop Roofing System. Mr. O'Hearn further testified that the Bruners gave him a business card with the name "Bruner Co.," on it, and that all the documents and letterheads he received from the Bruners carried the name "Bruner Company" and underneath the name, "Construction Products." Appellant Church frivolously asserts that since the legend "Bruner Co." did not represent a registered Ohio corporation that the principal company was not disclosed. The testimony and evidence reveals otherwise. Ralph Bruner testified that his company was incorporated in 1979 as Bruner Construction Products Company. The court inquired: THE COURT: You're saying that Bruner Co. and Bruner Construction Products is one in the same? THE WITNESS: Yes. -18- THE COURT: You use "Bruner Co.?" THE WITNESS: A lot of words. Just easier for us to simply call it "Bruner Co.," just as it is there. (Tr. 816-817.) We find therefore that the trial court did not err in dismissing liability against the Bruners personally. Ralph and Woody Bruner met their burden of proof in regard to the status of the "Bruner Co.," as being identical with the incorporated status of "Bruner Construction Products Company." Further, we find that at no time did the Bruners represent themselves as anything other than a company acting as sales agents for Dunlop Company. The fact that the trial court found Dunlop Company only liable to the Church was consistent with the evidence presented at trial. We hold, therefore, that the Church's argument that the trial court erred in dismissing the Bruners liability on the contract warranty between Dunlop and the Church is without merit and is hereby overruled. B. ISSUE II: WHETHER HARTMAN ROOFING AND SHEET METAL COMPANY WAS LIABLE FOR THE CHURCH'S LEAKY ROOF Hartman Roofing and Sheet Metal Company installed the roof on the Church. The trial court found that the Church's roof damages were not caused by improper installation or negligent work, but rather found that appellant's damages were caused "solely" by a defective Dunlop Roof System. Appellant argues otherwise. The record and evidence, however, supports the trial court's judgment. Hartman's contract with appellant obligated Hartman -19- to install roofs on the Church in a "good and workmanlike manner." On direct examination, the expert witness testified that the damage to the Church's roof was occasioned solely by design defects in the Dunlop Roof System. Q. *** What is the significance of that paragraph and those comments? A. Well, there appears to be a uniformed defect in all of these seams, which causes the seam to deform, puts them in tension and has the tendency to open up the seam. It is unlikely with this level of uniformity, it is unlikely that it is related to human error because typically when we have workmanship problems relating to human error, they vary. You have a variable condition. You don't have the same man putting on every seam on the wrong way. So I have every reason to believe that there exists some irregularity in the material and that it may have been cured at the time or improperly formulated. (Tr. 203.) Q. *** Are you saying that it is possible, in your opinion, that this membrane, this membrane seam where it originally was put together by the contractor, somehow subsequently pulled apart? A. No, it deflects. It is sort of a wavy type of profile. Q. Is that a fishmouth? A. It would lead to fishmouth. Q. A fishmouth is somewhere where the membrane is originally flat and somehow comes up and forms a gap? A. Or if it's -- or if it's applied with that space in place. -20- Q. And is it your opinion that fishmouths can develop or in this case is it your opinion that fishmouths developed from initially properly installed seams? A. It's quite probable. (Tr. 204.) Earlier, the court inquired: *** In other words, the next question is: Is the seam, in other words, the seam as constructed by Dunlop or as manufactured by Dunlop, there is a tape, I should say, which would preclude -- I mean, it doesn't make any difference who put it on. You're saying it doesn't adhere correctly or something like that. Is that your testimony? THE WITNESS: That's correct. (Tr. 174.) Hartman was required to exercise ordinary care and skill in its contractual duty to perform in a "good and workmanlike manner." Mitchem v. Johnson (1966), 7 Ohio St. 2d 66. Substantial, competent evidence supports the trial court's finding that Hartman did not breach a duty of care owed to the Church on the installation of the roof. The expert witness testified that because of the roofing design flaw, extraordinary demand was placed on the roofing contractor to install a roof that wouldn't leak using the defective materials. We hold, therefore, that there is no evidence in the record to show that Hartman breached a duty to work in a good and workmanlike manner or to respond to appellant Church's demands for repair of the leaky roof. -21- Mr. O'Hearn testified that Hartman responded to all of his complaints in regards to the leaky roof except for one time. Q. Are you aware or do you recall any time that you contacted or telephoned Jeff Hartman or anyone at Hartman and notified them of a leak or a problem and received no response from them? A. There is only one time and that is when I called right after that leak appeared in January of 1986 *** Hartman said that because of the weather, he couldn't do anything ***. * * * Q. During the months in late 1985 when you contacted Hartman several times and asked them to come look at the roof, when there were leaks, were there several times that Hartman did respond and come out? A. Every time I asked him. Q. Okay. And also were there also not several times that Dunlop personnel were there and instructed Hartman, "Patch this area, do this or that?" A. Yes. Q. And did Hartman do exactly to your knowledge exactly what Dunlop told them to do every time? A. Yes. (Tr. 548, 549.) Accordingly, the trial court did not err in dismissing all liability claims against Hartman. Accordingly, appellant's third assignment of error is without merit and is overruled. CROSS-ASSIGNMENTS OF ERROR I AND II -22- Cross-assignments of error I and II relate to common issues of law and fact and will be discusssed concurrently. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN AWARDING THE CHURCH ITS ROOF REPLACEMENT COSTS WHERE THE EVIDENCE SHOWED SUCH REPLACEMENT ROOFS WERE OF SUBSTANTIALLY HIGHER QUALITY THAN, AND NOT INTENDED TO BE COMPARABLE TO, THE ROOFS THEY REPLACED. CROSS-ASSIGNMENT OF ERROR NO. II THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN AWARDING THE CHURCH DAMAGES TO COMPENSATE FOR THE TIME AND EXPENSE OF ITS VOLUNTEERS. Appellee argues in his first cross-assignment of error that the trial court erred in its award of compensatory damages. Specifically, appellee argues that the evidence showed that appellant did not replace the defective roof with a comparable roof. Appellee argues in his second assignment of error that the trial court committed error in its award of compensatory damages. Specifically, appellee argues that the time and expense of two church volunteers was not a compensable damage. These assignments of error are not well taken. A. ISSUE I: WHETHER THE CHURCH'S AWARD OF COMPENSATORY DAMAGES WAS "COST OF CORRECTION" Appellee Dunlop Construction Company argues that the trial court awarded appellant Church an excessive amount of compensatory damages. Appellee contends that the evidence at trial demonstrated that the replacement roof was much more expensive than the original roof contemplated by the parties at the time of entering the contract. -23- This brings us to the essence of appellants' assignments of error, i.e., whether the trial court's findings were contrary to the weight of the evidence. In determining whether a lower court's judgment is against the manifest weight of the evidence, the standard established by the Ohio Supreme Court mandates that: 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 manifest against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279, ***. In Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St. 3d 77, *** the court further delineated the duty of a reviewing court in reversing a judgment as being against the manifest weight of the evidence by stating: While we agree with the proposition that in some instances an appellate court is duty-bound to exercise the limited prerogative of reversing a judgment as being against the manifest weight of the evidence in a proper case, it is also important that in doing so a court of appeals be guided by a presumption that the findings of the trier of fact were indeed correct. The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. Seasons Coal Co., supra, at 79-80, ***. B. ISSUE II: THE REASONABLE COST OF REPAIR -24- Appellee relies on the Ohio rule which holds that the proper measure of damages in a building construction dispute is: The reasonable cost of material and labor required to place the building in the condition contemplated by the parties at the time they entered into the contract. First National Bank of Akron v. Carr (N.D. Ohio, 1980), 503 F. Supp. 419, 441. To bolster this reliance, appellee cites to Custer v. Commercial Builders & Floor Coverings, No. 89AP117, Slip Op. (10th App. Dist., Sept. 26, 1989). We find, however, that it is a reliance that is misplaced. In Custer, a similar factual situation developed. Plaintiff contracted with defendant to have a leaky roof repaired. Defendant replaced the roof, and plaintiff paid defendant the contract price of $6,646.00. Several months after defendant installed the new roof, leaks reoccurred. Defendant attempted to correct the leaking, but the leaking persisted. Plaintiff subsequently filed a complaint against defendant alleging breach of warranty. Following trial to the court, judgment was granted to plaintiff for $6,646.00, the contract price of the roof. On appeal, defendant contended that the trial court erred in awarding plaintiff the total amount paid under the contract. Defendant argued that the proper measure of damages should have been the cost to repair the roof. The appellate court held in Custer: While we agree that the cost-of-repair rule has been applied to construction contracts, we believe that defendant's argument contains a somewhat faulty analysis -25- of the rule as it is applied. A more accurate statement of the rule would reflect the cost to repair defects to the extent necessary to place the nonbreaching party in the position contemplated by the parties at the time of entering into the contract. In other words, the measure of damages is determined by "cost of correction." Custer, supra, at 4. In the within case, the Church entered a contract with Dunlop Construction Company and Hartman Roofing Company to purchase and have installed a new roof over the education wing of the Church and certain other parts of the Church's roof. The Dunlop roof failed and the trial court ruled that the roof failed as a direct result of a defective roofing design system and product. Consequently, the Dunlop roofs placed on the Church had to be replaced. In applying the Custer rule to the within case, "the cost to repair defects to the extent necessary to place the nonbreaching party in the position contemplated at the time of entering into the contract, i.e. the 'cost of correction,'" we find the cost of correction amounts to the cost of the replacement roof and all damages accrued thereby. The trial court had before it competent, credible evidence that the replacement roof was a comparable roof. The Church's architect stated that: Q. Well, when you--the roof that was put on in November '87 for $42,950, that was put on by whom? A. That was put on by Standard Roofing, right. -26- * * * A. That was not an improvement. That was a comparable roof. Q. You're saying that was a comparable roof? A. Yes, installation wise and otherwise. (Tr. 455-456.) Cross-appellant Dunlop contends that the trial court erred in its judgment against Dunlop because the replacement roof was a more expensive roof because of added insulation to slope the roof and because of costs incurred to take off the old roof. Further, the Church replaced all the roofs not just the Dunlop roofs. We find no abuse of discretion within. The judge heard competent, credible evidence that the sloped roof was a necessary "cost of correction" to the Church's roof, and that the old roof and deck of the roof had been sufficiently damaged by Dunlop's leaky roof as to require replacement. Further, the entire roof was replaced but the cost of roof areas "B" and "D" which showed no evidence of defect were deducted from the award amount. The judgment entry indicates a large amount of damages ($29,960.00) resulting from water damage. Here, too, however, the court heard competent, credible evidence of that water damage. The Church's architect testified that: Q. Okay. Now, you also at some point examined the interior of the educational building, is that right? A. Yes. Q. After the Dunlop system had been removed and Standard Roofing had put their roofing -27- on and what did you find in the interior of the church building? A. Substantially what we had found previous to that when we first had the problem. The damaged ceilings and damaged stairways and damaged walls in the toilet rooms, paint peeling and so forth. Q. How was the floor condition on the top, on the third floor? A. We had some damage to the floor in one of the large rooms, large classrooms, and water had stood thereof for some time and had discolored the flooring material. (Tr. 436-437.) Mr. Stewart testified on behalf of the restoration company that the total labor and materials to repair the water damage would come to well over $27,000.00 plus. Q. Did there come a time when Eugene Bittinger sent your company some requests for bidding on work in the United Methodist Church of Berea building? A. Yes, sir. It was in the fall, I believe, of '89. Q. When you received that, did you go out and look at the educational building of the church, the interior of that building? A. Yes, I did. * * * Q. First, did you form an opinion what it would cost to put this back into a proper condition? A. I tried to, yes. Q. And let me ask you again, have you ever done this type of work before on block walls and this type of work before? -28- A. Yes, we have. Q. Okay, and then you said you formed an opinion as to what it would cost. Now, tell me, first of all, what did you decide that it would cost to put it back into a proper condition? A. I believe the total labor and materials came to $27,000 plus. (Tr. 592, 593, 594.) Therefore, considering the record and evidence before the court, we hold that the trial court properly awarded compensatory damages "to the extent necessary to place the Church in the position contemplated at the time of entering into the contract." Custer, supra. Accordingly, Cross-Assignment of Error I is overruled. C. ISSUE III: WHETHER THE TRIAL COURT PROPERLY AWARDED DAMAGES FOR THE TIME AND EXPENSE OF CHURCH VOLUNTEERS The trial court awarded the Church $2,000.00 compensation for the "time and expense" of two of the Church's board of trustee members and volunteers. Appellee on cross argues that this was an improper award of damages. This court finds no abuse of discretion in the trial court's award. Mr. Kenneth O'Hearn and William Liggett carefully itemized their time, work and out-of-pocket expenses associated with the repair and replacement of the Church roof. Both members brought considerable expertise and knowledge about the roof replacement with them from their previous life work. -29- Both Mr. O'Hearn and Mr. Liggett testified that they provided the services gratuitously--with no expectation of compensation from the Church. We find, therefore, that the trial court did not err in awarding a nominal compensation considering the amount of time and expertise that these two Church members contributed freely to the resolution of the leaky roof problem. Buttressing this finding is the fact that these volunteer services are rendered directly as a result of appellee's defective roof. Accordingly, finding no abuse of discretion in the trial judge's award of Two Thousand Dollars ($2,000.00) for the volunteer services, Cross-Assignment of Error II is overruled. CONCLUSION The trial court properly granted the motion of Ralph and Woody Bruner for summary judgment on the issue of punitive damages and attorney fees--whereas the record and the evidence supports the court's judgment that there was no material evidence of malice, ill will or of an independent willful tort committed by the Bruners against the Church. The trial court properly dismissed liability claims against Ralph and Woody Bruner and against Hartman Roofing and Sheet Metal Co. Competent, credible evidence indicates that appellant Church knew or should have known that Ralph and Woody Bruner were at all times working as agents of their company, Bruner Co. or Bruner Co. Construction Products Co., incorporated in Ohio in 1979. Further, the record and evidence clearly indicates that appellant Church knew that Bruner Co. was acting as sales agents -30- for Dunlop Construction Co., the manufacturer of Dunlop Roofing Systems. The trial court properly dismissed liability claims against Hartman Roofing and Sheet Metal Co. whereas competent, credible evidence supports the court's finding that Dunlop was liable only vis-a-vis its defective roof design system. The evidence supports the court's judgment that Hartman's application of the roof was not negligent nor the result of poor workmanship. In reference to appellee's cross-assignments of error, competent credible evidence supports the trial court's award of compensatory damages. The trial court's judgment of $121,639.24 was the amount reflected in the "cost to correct" the roof failure "to the extent necessary to place the Church in the position contemplated by the parties at the time of entering into the contract." See Calmes, supra. We find no abuse of discretion in the trial court's nominal award of $2,000.00 to two Church volunteers. Judgments supported by some competent, credible evidence will not be reversed by our court as being against the manifest weight of the evidence. C.E. Morris Co., supra. Accordingly, and for the foregoing reasons, the trial court is affirmed. -31- It is ordered that appellee recover of appellant its 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. ANN MC MANAMON, J. and PARRINO, J., (Retired Judge, of the Eighth Appellate District, sitting by assignment), CONCUR. DAVID T. MATIA CHIEF 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .