COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 62820 ANDREW NEEDHAM : : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION HUGE HEATING AND COOLING CO., : INC. : : Defendant-appellant : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 27, 1995 CHARACTER OF PROCEEDING : Civil appeal from Berea Municipal Court : Case No. 89-CVI-545 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF APPELLEE: FOR DEFENDANT-APPELLANT: Andrew Needham Edwin V. Zaretsky Pro Se 623 St.Clair Avenue, N.W. 9468 Potomac Drive Cleveland, Ohio 44113 North Royalton, Ohio 44133 Michaele Tyner 7002 Worley Avenue - Up Cleveland, Ohio 44105 -2- HARPER, J.: Defendant-appellant, Huge Heating & Cooling Co., Inc. ("Huge"), appeals from a $995 judgment rendered in favor of plaintiff-appellee, Andrew Needham, by the Berea Municipal Court. Huge submits that the trial court incorrectly determined that a furnace installed in the Needham home was too large, thereby requiring the replacement of the furnace with a smaller one, the cost for which Huge was liable to Needham. A careful review of the record compels affirmance of the trial court's judgment. Huge submitted specifications and estimates on July 14, 1987 regarding heating and cooling work to be performed in the Needham home located at 41 Aaron Street, Berea, Ohio. The proposal set forth that Huge would install a Bryant Formula Furnace with a capacity of 95,000 BTU input/78,000 BTU output ("the Bryant furnace"); a Bryant Air Conditioner; an automatic attic exhaust fan; a Honeywell Heat/Cool thermostat; a grille on return drop and a patch on the hole at the supply trunk. The proposal also included Huge's agreement to remove and haul away the old furnace. Huge's estimate for the work was $3,713, said figure incorporating complete installation, all equipment, labor, material, taxes, permits and a five-year service warranty on all equipment failure calls. The proposal contained no reference to any type of ductwork to be performed in the home. Huge completed the work on or about July 29, 1987. In June and October 1988, Needham reported to Huge that the furnace made a banging sound when running. The noise continued - 3 - after the fan was shut off every fifteen seconds for approximately twenty minutes. Alan Zink, the Territory Manager for Bryant Northern Ohio ("Bryant") visited the Needham home on November 15, 1988 at the request of Huge in response to Needham's reports. Zink investigated the cause of the noises emanating from the registers after the furnace shut off. "Minor ticking noises" occurred for a short period of time in ten to fifteen second intervals. The noises, however, did not occur after every cycle and when they did, they would cease soon after their commencement. The noises were also more noticeable in Needham's bedroom. Zink, therefore, commented that it was difficult to pinpoint that the noises were coming directly from the furnace. Zink furthermore located a "baffling device made out of sheet metal and inserted in the main trunk line of the ductwork." The device was removed because there was no reason for its presence. Zink checked the gas meter and calculated an input rating of 94,736 BTU, a figure compatible to the rating plate specification on the furnace, 95,000 BTU. Zink also took a "temperature rise" across the heat exchanger and found it to be well within specifications. According to Zink, the installation of the Bryant furnace in the Needham home was done correctly. Zink repeated that the cause of the noise could not be pinpointed, but surmised that this type of noise is common in ductwork when the metal begins to cool down - 4 - after a heating cycle. Zink concluded that there was nothing wrong with Needham's furnace. Bryant's General Manager, Ed Linx, wrote to Huge on December 12, 1988 following a visit to the Needham home by Bill Davis, a Bryant service representative. Linx informed Huge that Davis' observations confirmed those of Zink, i.e., the noise resulted from thermal expansion and contraction of the metal in the ductwork, a common noise in older ductwork. Needham thereafter continued to experience the "pinging" and "pong-like" sounds. In a letter directed to Bryant's consumer relations division, dated March 11, 1989, Needham expressed that he contacted heating contractors to discuss the problem with his furnace. According to Needham, one contractor held no opinion; another related that the furnace was too large for his home; and the third opined that the heat exchanger caused the noises. Needham informed Bryant that he believed Huge sold him either too large a furnace or a defective one. He was, therefore, going to replace the Bryant furnace with a smaller one at Huge's cost. Anthony J. Vito, Consumer Relations Coordinator, forwarded a letter to Needham on April 5, 1989. The letter advised Needham that the furnace did not cause the noises, a conclusion reached following two inspections of the Bryant furnace. Rather, the noises were associated with heat expansion and contraction of the existing ductwork. Since Huge did not install any ductwork in the Needham home, Vito stated that no assistance could be offered to - 5 - correct the situation. However, he noted that Huge offered to replace a section of the ductwork to either eliminate or reduce the noise, but Needham refused the offer. Vito then directed Needham's attention to the existing ductwork, suggesting that he should consider improving or replacing it. On May 11, 1989, the Bryant furnace was replaced with a smaller one ("the Rheem furnace") by Haberak Maintenance ("Haberak") at a cost of $995 to Needham. The Rheem furnace had the capacity of 75,000 BTU input and 57,000 BTU output. Needham apprised Huge of the replacement in a letter dated May 27, 1989. Needham set forth that he agreed to have a 78,000 BTU furnace to be installed in his home pursuant to Huge's proposal, but Huge installed a 95,000 BTU furnace by mistake. Simply stated, Needham charged that the Bryant furnace was too large for his home, and consequently too much heat was pushed through the existing ductwork. Needham filed a complaint in the Small Claims Division of Berea Municipal Court on October 17, 1989. He asserted that the Bryant furnace was not compatible with the existing ductwork, and, therefore, caused constant pinging noises. Needham also averred that he notified Huge about the problem, but Huge offered no satisfactory solution. Needham thus contracted for the installation of the Rheem furnace which "solved the problem with the noises." Needham sought to recover the replacement cost of the - 6 - furnace, $995. Needham's claim proceeded to hearing on November 29, 1989. As gleaned from the "Defendant's Statement of Evidence and Proceedings Pursuant to Appellate Rule 9(C) as Modified by the Court," the trial court recognized that the seventy-six year old Needham purchased the Bryant furnace from Huge. Huge installed the furnace after which Needham heard ticking noises in the ductwork, mainly in the bedroom, thereby interrupting his sleep. Needham tape recorded the noises, but did not specify the dates, times or locations of the recordings. The trial court permitted Needham to play the recordings at the hearing. Needham's son and daughter testified that they heard the noises after the furnace shut off. Neither, however, offered testimony with regard to when or where they heard the sounds. Needham then introduced a "sheaf of papers" to the court as his evidence. Huge claimed it was not allowed to review, see or examine the documents submitted by Needham at any time during the hearing. Huge in fact had no idea what the documents were even at the close of the hearing. The trial court, in the App.R. 9(C) statement, set forth that it did not agree with Huge's version of the evidence episode. The court explained that "[s]ince Defendant [Huge's representative] could only testify and not act as an attorney for the corporation, he would not be entitled to the courtesy of examining evidence any more than any fact witness." - 7 - The court also noted that the representative could not cross- examine Needham or his witnesses pursuant to R.C. 1925.17. The App.R. 9(C) statement furthermore provided that Linx, Huge's expert witness, testified with regard to the technicalities, engineering principles and mathematical computations which resulted in the installation of the Bryant furnace with 95,000 BTU input and 78,000 BTU output. The Bryant furnace replaced a twenty-nine year old one which produced 90,000 BTU input. The trial court then "found the output of the old furnace was 54,000 BTU" premised upon a 60% efficiency rating. Linx also offered that the noises were not caused by the furnace. The noises were instead coming from the old ductwork which was not installed by Huge. Linx testified further that the furnace was the appropriate size for the Needham home and worked properly following its installation. The trial court, however, concluded that the furnace was not the appropriate size. The App.R. 9(C) statement concluded with the acknowledgement that Huge requested a continuance of the presentation of its case. The trial court informed Huge that there was not enough time because the trial judge "had to hurry." The trial court noted that the words may have been spoken, but "it's clear from the time and attention given to their case, Defendant had sufficient time to fully present his testimony ***." - 8 - The trial court issued its judgment on October 31, 1991. The entry provides in pertinent part: *** The original furnace being replaced was 29 years old and had an input of 90,000 BTU. It was replaced by a High Efficiency (82%) 95,000 BTU furnace. No consideration was given to the output of the 2 furnaces. Assuming the 29 year old furnace had a 60% efficiency the relative outputs were . [sic] New 78,000 BTU, old 54,000 BTU a very substantial difference. The result was with more heat being furnished as output, the fan blew faster to maintain output air temperature at 140 [degrees]. The net result was more heat in the ducts in a given period of time thus raising the temperature of the metal. Warmer metal resulted in more expansion which expansion/contraction cycle caused the noise. When Plaintiff replaced the new furnace with a 75,000 BTU 74% efficient unit an output of 56,000 BTU resulted which was on the order of the 29 year old furnace. The result was no more noise. The proposal to rework the heat ducts by the Defendant at no cost to the Plaintiff was not a clear cut solution and the Plaintiff was not required to accept that sort of band-aid approach. When the Defendant decided on the size of the furnace to be installed there was no independent sizing of the furnace to the house. Testimony on trial produced NO information about what is the proper size of furnace for this house. *** (Emphasis added.) The trial court thus entered judgment in favor of Needham in the amount of $995. This appeal followed with Huge claiming as error: A. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN AWARDING JUDGMENT FOR PLAINTIFF, IN THAT SUCH JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS BASED UPON THE TRIAL COURT'S CHANGING AND ALTERING THE - 9 - CONDITIONS OF THE CONTRACT BETWEEN PLAINTIFF AND DEFENDANT B. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN MAKING BIASED AND PREJUDICIAL COMMENTS OR REMARKS DURING THE COURSE OF THE PROCEEDINGS C. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY REQUIRING A SUPERSEDEAS BOND IN AN AMOUNT SIGNIFICANTLY GREATER THAN THE JUDGMENT WHICH IT RENDERED, AND COSTS INCIDENT TO THE PROCEEDINGS D. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL WHERE ITS REPRESENTATIVE WAS NOT ALLOWED TO SEE EVIDENCE PRESENTED TO THE COURT BE [sic] THE ADVERSE PARTY, AND WAS NOT ALLOWED TO CROSS EXAMINE PLAINTIFF Huge, in its first assignment of error, charges that the trial court interjected ambiguities into the contract entered into between it and Needham to reflect an interpretation of the contract which was different than intended by the parties. Specifically, Huge challenges the court's calculations regarding the appropriate BTU outputs of the Bryant and Rheem furnaces; its determination that an independent sizing of the furnace for Needham's residence should have been performed by Huge; its finding Huge liable for noises which were caused by existing ductwork despite the parties' agreement that the Bryant furnace did not cause the noises. The paramount objective in construing any written instrument is to ascertain the parties' intent. Contracts should generally be construed so as to give effect to that intention. Skivolocki v. East Ohio Gas Co. (1974), 38 Ohio St.2d 244, paragraph one of the syllabus; Employers Liability Assurance Corp. v. Roehm (1919), 99 Ohio St. 343, syllabus. "Where the parties, following - 10 - negotiations, make mutual promises which thereafter are integrated into an unambiguous written contract, duly signed by them, courts will give effect to the parties' expressed intentions." Aultman Hosp. Assn. v. Community Mut. Ins. Co. (1989), 46 Ohio St.3d 51, 53, citing Henderson-Achert Lithographic Co. v. John Shillito Co. (1901), 64 Ohio St. 236, 252. This court is guided by the presumption that the findings of the trial court were correct in reviewing its judgment. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. It is well established that judgments will not be reversed by a reviewing court as being against the manifest weight of the evidence where they are "supported by some competent, credible evidence going to all the essential elements of the case." C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. In the present case, Huge submitted its proposal to Needham regarding the installation of a Bryant furnace with a capacity of 78,000 BTU output. Needham accepted the proposal and the unit was installed in his home. Needham subsequently charged that Huge mistakenly installed a "95,000 BTU" furnace. Huge in fact installed a 95,000 BTU input/78,000 BTU output furnace in accordance with the proposal. However, the record amply demonstrates that once the Bryant furnace was replaced with the Rheem furnace, the noises which Needham complained of were no longer heard by him. Though the trial court was provided evidence through Linx that the Bryant - 11 - furnace was the correct size, the trial court was free to draw an inference that the furnace was too large since the noises ceased upon its replacement. Accordingly, the judgment is not against the weight of the evidence. Seasons Coal Co.; C.E. Morris Co. Huge's first assignment of error is overruled. Huge, in its second assignment of error, asserts that the trial court acted in a bias and prejudicial manner toward the defendant at trial. Huge refers to comments made during the proceedings which were allegedly sympathetic to Needham; the trial court's permitting Needham all the time to present his case, but 1 cutting Huge's time to respond ; the court's interference in the examination of Linx; and its refusal to permit Huge to enter 2 exhibits into evidence. This court is precluded from a review of this assignment of error. "An appellate court reviewing a lower court's judgment indulges in a presumption of regularity of the proceedings below." Hartt v. Munobe (1993), 67 Ohio St.3d 3, 7; see Rheinstrom v. Steiner (1904), 69 Ohio St. 452. The appellant bears the responsibility of providing an adequate record to the reviewing 1 Huge's argument that the trial court abused its discretion in not allowing Huge's representative to review Needham's evidence and to cross-examine him is addressed in its fourth assignment of error. 2 Huge also submits that the trial court abused its discretion when it added terms to the contract executed by the parties, but this issue was addressed in Huge's first assignment of error. - 12 - court, without which certain claimed errors must be affirmed. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. Herein, Huge in part speaks of matters that can only be gathered from the trial itself and there was no transcript taken of the proceedings before the court. The App.R. 9(C) statement contains passing references to Huge's concern with the trial court's alleged prejudicial attitude, but there are no specifics contained therein which alters our presumption that the trial court acted appropriately at the trial. Hartt; Knapp. Moreover, Huge failed to object to the trial court's ruling concerning the introduction of evidence. The App.R. 9(C) statement contains no reference to Huge's Exhibits N, O and P. In light of this situation, Huge waives this argument on appeal. See, Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41, 43; State v. Williams (1977), 51 Ohio St.2d 112, paragraph one of the syllabus. Huge's second assignment of error is overruled. Huge filed a Motion to Stay Execution of Judgment in the trial court on November 13, 1991. The trial court denied the motion, set an appeal bond at $1,300, then announced that if Huge filed a 3 supersedeas bond, it could achieve a stay. Huge, for its third assignment of error, argues that the trial court committed 3 The record fails to indicate that Huge ever filed the supersedeas bond. Huge's motion to stay the proceedings pursuant to a bankruptcy stay was granted on February 26, 1993; the stay was lifted on December 16, 1994. - 13 - prejudicial error in this respect when viewed in light of R.C. 2505.09 and 2505.14. R.C. 2505.09 provides: Except as provided in section 2505.11 or 2505.12 or another section of the Revised Code or in applicable rules governing courts, an appeal does not operate as a stay of execution until a stay of execution has been obtained pursuant to the Rules of Appellate Procedure or in another applicable manner, and a supersedeas bond is executed by the appellant to the appellee, with sufficient sureties and in such sum, no less than, if applicable, the amount of *** judgment, *** and interest involved, as is directed by the court, that rendered the *** judgment, *** that is sought to be superseded or by the court to which the appeal is taken. Such bond shall be conditioned as provided in section 2505.14 of the Revised Code. (Emphasis added.) R.C. 2505.14 in turn reads as follows: A supersedeas bond shall be payable to the appellee or otherwise, as may be directed by the court, when the conflicting interests of the parties require it, and shall be subject to the condition that the appellant shall abide and perform the *** judgment, *** of the appellate court and pay all money, costs, and damages which may be required of or awarded against him upon the final determination of the appeal and subject to any conditions that the court provides. *** R.C. 2505.09 grants the trial court the authority to direct the amount of the supersedeas bond not to be less than the judgment plus interest. The determination as to whether a bond is necessary and its amount are discretionary matters which are not to be overturned by an appellate court absent an abuse of discretion. Bibb v. Home S. & L. Co. (1989), 63 Ohio App.3d 751, 752; Horvitz v, Sours (1943), 74 Ohio App. 467, 475. The trial court's setting the supersedeas bond in the present case at $1,300 when the judgment entered against Huge was $995 is not so excessive as to - 14 - demonstrate the trial court abused its discretion regarding R.C. 2505.09 and 2505.14. Huge's third assignment of error is overruled. Huge, in its final assignment of error, attacks the trial court's disallowing its representative, Robert C. Huge, an officer, to review Needham's exhibits and cross-examine witnesses. Huge submits that it was deprived of its constitutional rights and consequently a fair trial as a result of the trial court's actions. R.C. 1925.17 permits a corporation which is a real party in interest in a small claims action to present a defense through an officer of the corporation. The corporation, however, by the same statute, is not permitted to engage in cross-examination, argument, or other acts of advocacy unless represented by an attorney at law. The trial court herein, therefore, complied with R.C. 1925.17 when it restricted Robert C. Huge's participation in the trial. Additionally, the record fails to disclose that Huge made a constitutional argument at trial regarding the alleged deprivation of due process and equal protection by the application of R.C. 1925.17. Huge thus waives this issue on appeal. See, Stores Realty Co.; Parma Heights v. Jaros (1990), 69 Ohio App.3d 623. Huge's fourth assignment of error is overruled. Judgment affirmed. - 15 - 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 Berea Municipal 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. JOHN T. PATTON, C. J., AND ANN DYKE, J., CONCUR JUDGE SARA J. HARPER 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. .