COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67832 M. L. SIMMONS, INC. and : MILTON L. SIMMONS, : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION BELLMAN PLUMBING, INC., : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : JULY 6, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Garfield Heights Municipal : Court : Case No. 93-CVF-455 JUDGMENT : AFFIRMED IN PART, REVERSED : IN PART AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Milton L. Simmons, Pro Se P.O. Box 31637 Independence, Ohio 44131 For defendant-appellee: P. J. Mooney KITCHEN, DEERY & BARNHOUSE 1100 Illuminating Building 55 Public Square Cleveland, Ohio 44113 -2- NAHRA, J.: Appellants, M. L. Simmons, Inc. and Milton L. Simmons, are appealing the trial court's judgment in favor of appellee, Bellman Plumbing, Inc.. For the following reasons we affirm in part, reverse in part and remand. Milton L. Simmons is the president and sole shareholder of M. L. Simmons, Inc.. M. L. Simmons, Inc., as general contractor, constructed a home in Brecksville, Ohio. Appellee, Bellman Plumbing was hired to install all interior plumbing. The plumbing was completed per the finish invoice on June 6, 1989. Shortly thereafter, the title of the home was transferred from M. L. Simmons, Inc. to Milton Simmons individually. The contract between the parties contained the following express warranty: Home will carry a warranty for a period of one (1) year from date of finish invoice. Misuse or abuse is excluded from warranty. Robert Bellman, president of Bellman Plumbing, testified the warranty covered everything, including fixtures and labor. In November, 1989, Mr. Simmons told appellee the toilet in the master bathroom was running and howling. An employee of Bellman Plumbing adjusted the toilet. According to Simmons, the repairman knew the toilet still did not work, but gave up and left. In April, 1991, Simmons once again requested appellee repair the toilet. At that time, an employee of Bellman Plumbing replaced the ball cock assembly. Simmons testified that thereafter, the toilet sometimes ran and sometimes worked. Robert Bellman testified he -3- believed the problem was solved until he received a letter from the plaintiff on October 21, 1992. Simmons opined the toilet ran because the ball cock was not 1 vertical. He was unsure if the toilet could be repaired by straightening the ball cock. Simmons estimated his damages as $700 to replace the toilet plus $2,000 for loss of use of the toilet. Another problem with the plumbing occurred in late 1991 or early 1992. Two pipes separated underneath the kitchen sink's garbage disposal. The separation occurred at the juncture of the "P" trap with the bottom of the "T" pipe. Simmons reconnected the pipes, using a great amount of force. The pipe came loose again in October of 1992. Simmons had the pipes repaired by another plumber for $130. The other plumber replaced the 90 degree "T" junction with a 45 degree "wye" junction. Simmons also claimed $175 for his labor in cleaning up after the break. Simmons asserted the problem occurred because the joint was in tension when installed, and in time, it would have slipped off. The use of the "T" junction with a sharper angle aggravated the problem. Bellman testified he was not able to inspect the pipes, so he did not know why they separated. Bellman stated the separation could have been the result of vibrations from the disposal and dishwasher loosening the wing nuts on the pipes. On December 10, 1992, Simmons noticed a problem with a whirlpool tub in the master bathroom. The step-on drain was 1 Simmons was not a plumber, but was permitted to give his lay opinion, based on his factual observations. -4- located on the floor of the tub on the edge across from the tub entrance. The user could not reach the drain from outside the tub. The plans Simmons provided to Bellman did not specify where the drain was to be located. Robert Bellman testified that some people prefer the drain at the rear of the tub for aesthetic reasons, and such a placement of the drain is not unusual. Bellman assumed Simmons inspected the tub when the plumbing was roughed in and before the tub and marble encasing were installed. Simmons said he did not see the drain before the tub was installed. After the tub was installed, Bellman's employees covered the tub with plywood for protection. Simmons estimated the cost of removing and rotating the tub as $4,582.50. In closing arguments, Simmons stated that the Brecksville Code required a "wye" junction in the sink, not a "T" junction, and the parties' contract required the installations conform with building codes. The trial judge did not allow this argument because the complaint did not allege breach of contract for failing to conform with codes. The complaint alleged failure to install the plumbing in a workmanlike manner, breach of express and implied warranties and deceptive sales practices. I. Appellants' first assignment of error states: PREJUDICIAL ERROR WAS COMMITTED BY THE TRIAL COURT BY FAILING TO ACCORD APPELLANTS THEIR FULL RIGHTS AND BENEFITS UNDER THE CONTRACTUAL, EXPRESS WARRANTY IN THEIR FAVOR, BY COMPELLING APPELLANTS TO PROVE NEGLIGENCE, CONTRARY TO THE CASE LAW CITED BY THE COURT IN SUPPORT OF ITS OWN DECISION, AND IN FAILING TO FIND THAT APPELLANTS -5- HAD, IN FACT, ESTABLISHED, BY A PREPONDERANCE OF THE EVIDENCE, THAT APPELLEE HAD FAILED TO PERFORM IN A WORKMANLIKE MANNER AS TO ALL THREE FIXTURES IN ISSUE. COURT'S FINAL JUDGMENT AT PARAGRAPHS A, B, C, AND D. Appellants correctly assert that to prove breach of express warranty, appellants need not show appellee breached a duty of care. Mitchem v. Johnson (1966), 7 Ohio St.2d 66. The trial court did not require appellants to prove breach of duty of care for the warranty claims, however. The trial court denied the warranty claims for other reasons, which will be addressed later in this opinion. In order to prevail on the tort claim for failing to perform in a workmanlike manner, appellants were required to show by a preponderance of the evidence that appellee failed to exercise ordinary care and skill, and such failure proximately caused the damages. Mitchem, Velotta v. Leo Petronzio Landscaping (1982), 69 Ohio St.2d 376, MacMillan v. Brune-Harpenau-Torbeck Builders, Inc. (1983), 8 Ohio St.3d 3. We cannot say that the trial court erred in finding appellants did not meet this burden of proof. An appellate court cannot substitute its judgment for that of the trial court where there exists competent, credible evidence to support the findings of fact and conclusions of law of the trial judge. Season's Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. As to the bathtub, there was testimony some customers prefer the drain in the rear of the tub. Placement of the drain in the rear was not unworkmanlike. -6- Appellants assert they proved the sink was unworkmanlike because the "T" junction violated building codes and the baffle created a bottleneck. This evidence was not admitted, however, because it was only raised in closing arguments. (See Assignment of Error III, below). Simmons opined the pipe was installed with tension at the joint and was therefore unworkmanlike. There was no testimony establishing that an installation with tension at the joint was necessarily unworkmanlike. Even if the trial court erred in finding the appellants did not prove an unworkmanlike installation of the sink, such error is harmless. See Civ.R. 61. The trial court stated it did not disbelieve either Simmons' theory of tension in the joint or appellee's theory of vibrations in the pipes. Thus, the trial court reasonably found appellants did not prove by a preponderance of the evidence that appellee's unworkmanlike installation proximately caused the pipes to separate. As to the toilet, Simmons alleged the toilet was defective because of the slanted ball cock. There was no evidence the ball cock was defective when the toilet was installed, or that Bellman did not use ordinary care and skill in installing the toilet. The trial court did not err in finding appellants failed to prove the toilet was installed in an unworkmanlike manner. The trial court did not require appellant to prove breach of duty of care for the warranty claims. Neither did the trial court err in failing to find appellants established by a preponderance of -7- the evidence that appellee failed to perform in a workmanlike manner. Accordingly, this assignment of error is overruled. II. Appellants' second assignment of error states: THE TRIAL COURT ERRED TO APPELLANTS' PREJUDICE, BY ITS EQUATING THE ONE-YEAR WARRANTY IN QUESTION TO A ONE-YEAR STATUTE OF LIMITATIONS, WITHIN WHICH APPELLANTS MUST HAVE EITHER SUED OR MADE A CLAIM, FOR WHICH THERE IS NO BASIS UNDER THE CONTRACT OR AT LAW, SINCE ALL DEFECTS WERE PRESENT AT THE TIME OF INSTALLATION, AND DURING THE WARRANTY PERIOD. SEE PAGE 3 OF JUDGMENT AT PARAGRAPH "B.". The trial court was correct in holding the appellants can only recover for breach of express warranty for defects which are discovered in the one year period. Booth Real Estate v. Sprague Heating & Electric (1991), 74 Ohio App.3d 439, 441, Gualtieri v. Demund Homes, Inc. (Oct. 28, 1981), Summit App. No. 10132, unreported. Effect must be given to all the terms of the express warranty, including the one year limitation. Gualtieri, supra. To hold that appellee is responsible for all defects, whenever manifested, defeats the purpose of the one year limitation and creates a general warranty of fitness. Id. Even if the trial court erred in determining the defect did not arise until after the warranty period, the error was harmless. See Civ.R. 61. For a breach of warranty claim, the plaintiff must prove the breach of warranty proximately cause the damages. Mitchem, supra. As discussed above, the trial court found appellants did not prove by a preponderance of the evidence that -8- appellee's installations with tension on the pipes and use of a "T" juncture proximately caused the pipes to separate. Vibrations from the dishwasher and disposal were an equally likely cause. Accordingly, this assignment of error is overruled. III. Appellants' third assignment of error states: COURT ERRED TO APPELLANTS' PREJUDICE, WHEN IT REFUSED TO CONSIDER PHYSICAL AND DOCUMENTARY EXHIBITS, WHICH WERE ADMITTED INTO EVIDENCE, WHICH EXHIBITS CLEARLY DEMONSTRATED THAT APPELLEE HAD VIOLATED THE APPLICABLE MUNICIPAL BUILDING CODE, AS WELL AS APPELLEE'S OWN STANDARD OF WORKMANSHIP, BY ITS INSTALLATION OF THE UNDERSINK DRAIN, WHICH CONTRIBUTED DIRECTLY TO ITS FAILURE. SEE TRANSCRIPT, PAGES 232, LINE 11 TO 235, LINE 25 INCLUSIVE. Appellants did not raise the issue of whether the "T" juncture violated the building code until closing arguments. No evidence of a baffle creating a bottleneck was introduced until closing arguments. Closing arguments must be based upon evidence in the record prior to closing arguments. Jackson v. Booth Memorial Hosp. (1988), 47 Ohio App.3d 176, 180. Appellants argue the building code was a legal argument, not a new factual matter. The issue of whether appellee violated building codes is a factual issue that could not be raised for the first time in closing arguments. Additionally, even if the trial court erred in excluding this evidence, the error was harmless. See Civ.R. 61. The alleged building code violations tended to prove the sink was installed in an unworkmanlike manner, or a defect existed during the warranty period. The tort claim for unworkmanlike performance and the -9- express warranty claims as to the sink failed on the proximate cause issue, as discussed above. Appellants did not allege in their complaint that appellees breached the contract for failure to meet building code requirements. The complaint contains no factual allegations concerning building code violations. Accordingly, this assignment of error is overruled. IV. Appellants' fourth assignment of error states: THE TRIAL COURT ERRED AS TO BOTH LAW AND FACT, IN ITS JUDGMENT, PARAGRAPH "D." AT PAGE 3, BY HOLDING THAT APPELLANT HAD THE "OPPORTUNITY" TO "INSPECT" THE TUB AT THE TIME OF INSTALLATION AND OBJECT PRIOR TO ENCASING THE TUB IN "EXPENSIVE MARBLE"; THE COURT THEN FOUND IN FAVOR OF APPELLEE UNDER THE THEORY OF LACHES. BUT IN FACT, THAT MARBLE HAD BEEN INSTALLED BEFORE APPELLEE WAS EVEN FINISHED WITH HIS PART OF THE JOB, AND BEFORE THE WARRANTY BECAME ACTIVE. The doctrine of laches may bar a claim even though the applicable statute of limitations has not run. Wright v. Oliver (1988), 35 Ohio St.3d 10, Fifth Third Bank v. West (1988), 42 Ohio Misc.2d 26. The trial court did not err in holding that appellants' claim was barred by laches for failing to object to the placement of the drain before the tub was encased in marble, even though the warranty period had not begun to run. A party asserting the defense of laches must prove: (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for such delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) material prejudice. State ex rel. N. Olmsted Fire Fighters Assn. v. N. Olmsted (1992), -10- 64 Ohio St.3d 530, 536. The appellants had constructive notice of the placement of the drain, because appellants had the opportunity to inspect the tub during the plumbing "rough in." Appellants unreasonably delayed in objecting to the placement of the drain until after the tub was encased in marble. Appellee was materially prejudiced by appellants' delay, because appellee could have relocated the drain at considerably less expense before the tub and marble were put in place. Additionally, the trial court found there was no defect in the tub. This finding is supported by the evidence that some people prefer the drain in the rear of the tub. We find the trial court did not err in denying appellants' warranty claim for the tub. Accordingly, this assignment of error is overruled. V. Appellants' fifth assignment of error states: IN FINDING FOR APPELLEE ON THE TOILET QUESTION, BECAUSE THE APPELLANTS ALLEGEDLY FAILED TO MITIGATE DAMAGES THROUGH THEIR FAILURE TO HAVE THE DEFECTIVE TOILET REPAIRED, THE COURT ERRED PREJUDICIALLY BECAUSE THERE IS NO EVIDENCE THAT THE TOILET IS EVEN REPARABLE; FURTHERMORE, THE MITIGATION THEORY DOES NOT REQUIRE A PLAINTIFF TO IMPROVE THE QUALITY OF A WARRANTED FIXTURE TO A LEVEL OF PERFORMANCE SUPERIOR TO THAT WHICH IT DISPLAYED WHEN INSTALLED; ALSO, FAILURE TO MITIGATE IS NOT A COMPLETE, ABSOLUTE DEFENSE, ABSOLVING A DEFENDANT OF ALL LIABILITY, BUT IS INTENDED TO BE ONLY A MEASURE OF A REDUCTION OF DAMAGES TO WHICH A PLAINTIFF IS ENTITLED, TO THE EXTENT OF HIS FAILURE TO MITIGATE; FINALLY, APPELLEE NEITHER PLEADED THE AFFIRMATIVE DEFENSE OF FAILURE TO MITIGATE, NOR OFFERED ANY EVIDENCE TO PROVE THAT THE QUALITY OF THE TOILET HAD IN ANY WAY DETERIORATED TO THE POINT WHERE IT WASN'T JUST AS GOOD (OR BAD) AT THE TIME OF TRIAL, AS IT WAS AT THE TIME IT WAS FIRST INSTALLED BY APPELLEE. SEE FINAL JUDGMENT, PAGE 3, PARAGRAPH "C.". -11- A plaintiff has the duty to minimize his damages by using reasonable care to avoid loss resulting from the breach of contract. Chandler v. General Motors Acceptance Corp. (1980), 68 Ohio App.2d 30, Cline v. American Aggregates Corp. (1989), 64 Ohio App.3d 503. The trial court held appellants failed to mitigate damages because they failed to have the toilet repaired. Appellants could have avoided the cost of replacing the toilet over the cost of repairing the toilet. Additionally, if appellants had repaired or replaced the toilet earlier they would not have incurred loss of use damages. The evidence established only that the toilet might be repairable, not that it could be repaired. In fact, the evidence showed that the toilet had to be replaced, as will be discussed in more detail below. The evidence was insufficient to establish appellants could have avoided the cost of replacement over repair. Additionally, the trial court erred by completely denying recovery because failure to minimize damages only reduces the amount recoverable, and does not bar recovery. A.B. & B. v. Banfi Products, Inc. (1991), 71 Ohio App.3d 650. The evidence was sufficient to show that had appellants acted to remedy the toilet problem earlier, they would not have incurred loss of use damages. Although failure to mitigate reduces damages and does not bar recovery, the trial court apparently found that the non-mitigable damages amounted to zero. This finding was supported by competent, credible evidence. There were other toilets in the home. Simmons' delay in contacting Bellman about -12- the continuing problem with the toilet shows Simmons was not greatly inconvenienced by the loss of use. The trial court did not err in finding appellants were not entitled to loss of use damages. Appellee did not plead the affirmative defense of failure to minimize damages. Chandler, supra. The issue did arise at trial, and evidence was presented concerning Simmons' actions to remedy the toilet problem. Appellants were not substantially prejudiced by the implied amendment of the pleadings. See Civ.R. 15(B), State ex rel. Evans v. Bainbridge Twp. Trustees (1983), 5 Ohio St.3d 41. Accordingly, this assignment of error is sustained as to the damages for replacing the toilet. Otherwise, this assignment of error is overruled. VI. Appellant's sixth assignment of error states: PREJUDICIAL ERROR RESIDED IN THE TRIAL COURT'S HOLDING THAT APPELLANTS' TESTIMONY WAS SPECULATION WITHOUT EXPERT VALIDATION AS TO WHY THE TOILET HOWLED AND FAILED TO SHUT OFF, WHY THE SINK DRAIN FELL APART DURING USE, AND AS TO APPELLANTS' DAMAGES, NOTWITHSTANDING APPELLEE FAILED TO OFFER ANY REBUTTAL TESTIMONY, OR OFFER ANY EVIDENCE WHICH EVEN MET APPELLANT'S EVIDENCE IN THESE RESPECTS; INDEED, ON CROSS EXAMINATION, APPELLEE CONFIRMED APPELLANTS' TESTIMONY IN MANY AREAS; EXPERT VALIDATION IS NOT REQUIRED TO EXPLAIN SIMPLY PHENOMENA READILY UNDERSTOOD BY LAY PERSONS. JUDGMENT PARAGRAPHS 12, 7 & "E". The trial court did not require that the issues of standard of care and proximate cause be proved only by expert testimony. Simmons was permitted to give his lay opinion as to these issues. The court determined that Simmons' testimony lacked sufficient weight to prove the standard of care and proximate cause by a -13- preponderance of the evidence. The weight of the evidence is primarily an issue for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. The trial court did not err in finding Simmons' testimony lacked weight because it was not supported by expert testimony. In some cases, the lack of skill and care is so apparent that it is within the common knowledge of the layman and expert testimony is not required. Rogoff v. King (1993), 91 Ohio App.3d 438, 445. In this case, it was not apparent appellee breached a standard of care by his installation of the sink and toilet. Additionally, expert testimony is usually required on the issue of proximate cause. Id. The trial court did not err in characterizing Simmons' testimony as speculative and unsupported by expert testimony. Appellants assert the trial court erred in finding their damages were speculative. This opinion has already established that the trial court did not err in holding appellants could not recover for the sink and bath tub claims for express warranty or failure to perform in a workmanlike manner. Therefore, we will only consider whether the damages for the toilet were established by the evidence with reasonable certainty. See Rhodes v. Rhodes Industries (1991), 71 Ohio App.3d 797, 809. Appellants claimed the replacement cost of the toilet as damages. The trial court found the replacement cost was speculative because Simmons testified the toilet might be repairable. However, appellants proved with reasonable certainty the toilet had to be replaced. Appellee failed to fix the toilet -14- after two attempts. The damages for replacing the toilet were not speculative. Appellants arrived at the damages of $700 by adding the retail cost of the toilet of $655.45 to approximately $50 for installation. The retail cost of the toilet was not speculative. The installation cost had no basis in fact, and was speculative. Although damages need not be shown with mathematical certainty, the amount of damages must have some basis in fact. See Rhodes, supra, Conti Corp. v. Ohio Dept. of Admin. Services (1993), 90 Ohio App.3d 462, 468. As we discussed above, the trial court did not err in finding appellants were not entitled to loss of use damages. Accordingly, this assignment of error is sustained as to the damages of $655.45 for the toilet. Otherwise, this assignment of error is overruled. VII. Appellants' seventh assignment of error states: THE TRIAL COURT'S JUDGMENT, CONCLUSIONS, FINDINGS AND OPINION ARE ALL IN ERROR AS BEING AGAINST, AND CONTRARY TO, THE MANIFEST WEIGHT OF THE EVIDENCE AS TO ALL ISSUES, AND HIGHLY PREJUDICIAL TO APPELLANTS AS A MATTER OF LAW, BECAUSE NONE OF THE EVIDENCE OF APPELLANTS WAS DISPUTED OR REBUTTED, OR EVEN MET BY APPELLEE'S TESTIMONY, AND APPELLEE CONFIRMED THE TESTIMONY OFFERED BY APPELLANT ON SEVERAL ISSUES. REFER TO JUDGMENT GENERALLY. We have already found in the first assignment of error, above, that the trial court's denial of appellants' claim for failure to perform in a workmanlike manner was supported by competent, credible evidence. The weight of the evidence supported the trial -15- court's finding that appellants did not prove the alleged defects in the sink proximately caused the pipes to separate. The defects in the sink did not manifest themselves until after the warranty period. Thus, the court's determination that appellants could not recover for breach of express warranty for the sink was supported by competent, credible evidence. See the first and second assignments of error, above. Competent, credible evidence supported the trial court's holding that appellants could not recover for breach of express warranty for the whirlpool tub. As discussed in the fourth assignment of error, the evidence showed appellants were barred by laches. Additionally, the evidence demonstrated the tub was not defective. The trial court's finding that appellants did not prove a defect in the toilet was against the weight of the evidence. Simmons testified the toilet ran continuously, and produced a tape of the toilet running. Appellee failed to repair the defect in a reasonable time. The trial court erred in finding that appellants failed to mitigate damages for replacing the toilet. The retail cost of $655.45 for the toilet was not speculative. The trial court erred in finding in favor of appellee on the breach of warranty claim for the toilet. Accordingly, this assignment of error is sustained as to the breach of warranty claim for the toilet, and is otherwise overruled. -16- The judgment of the trial court is reversed as to the breach of warranty claim for the toilet. Judgment is entered for the plaintiffs in the amount of $655.45. Otherwise, the decision of the trial court is affirmed. This case is remanded to the trial court for further proceedings in accordance with this opinion. -17- This cause is affirmed in part, reversed in part and remanded for further proceedings in accordance with this opinion. Costs divided equally between plaintiffs-appellants and defendant-appellee. It is ordered that a special mandate be sent to said 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. SPELLACY, P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA 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 .