COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68931 and 68943 TODD VOSGERICHIAN, ET AL. : : Plaintiff-Appellees/ : JOURNAL ENTRY Cross-Appellants : : AND vs. : : OPINION MANCINI SHAH & ASSOCIATES, : ET AL. : Defendant-Appellants/ : Cross-Appellees : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 29, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-249893 JUDGMENT: Reversed in part. Affirmed in part. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellees/ ROBERT J. KOETH Cross-Appellants: ANN E. LEO BERTSCH, MILLICAN & WINSLOW 1280 West 3rd Street Cleveland, Ohio 44113 JOSEPH A. PFUNDSTEIN HARRY J. JACOB III 33790 Bainbridge Road #205 Solon, Ohio 44139 For Defendant-Appellant/ ERNEST W. AUCIELLO, JR. Cross-Appellee Mancini, Gallagher, Sharp, Fulton & Norman Shah & Associates, Inc.: Bulkley Building, 7th Fl. 1501 Euclid Avenue Cleveland, Ohio 44115 For Appellee Westfield DAVID J. FAGNILLI Insurance Company: Davis & Young Co., L.P.A. 1700 Midland Building 101 Prospect Avenue Cleveland, Ohio 44115-1027 - 2 - O'DONNELL, J: Two separate appeals have been combined for purposes of appellate review because they involve the same subject matter. In the first, Mancini Shah & Associates, a structural engineering firm, appeals the $15,000 jury verdict in favor of Todd Vosgerichian on claims for professional negligence and breach of contract for work done by the firm at his home in Bentleyville, Ohio necessitated by soil erosion near the Chagrin River. Mancini Shah assigns six errors for our review. In the second appeal, Vosgerichian appeals the trial court's directed verdict in favor of the Westfield Insurance Company, his homeowner's carrier, finding that Westfield did not owe coverage for damages done to the Vosgerichian residence. Vosgerichian has assigned one error for our review in this case. The record reveals that Todd and Mary Ann Vosgerichian purchased this home in 1981, and at that time had been advised of potential erosion problems in a document known as the Triggs Report. Eleven years later, in April 1992, Vosgerichian became concerned because he could see sunlight coming through cracks in a basement wall. Thereafter, Vosgerichian contacted his insurance agent seeking coverage under his homeowner's insurance policy for the condition. On May 1, 1992, an adjuster for Westfield visited the home, examined the conditions, and sent Vosgerichian a letter - 3 - denying coverage citing policy exclusions for losses due to settling, cracking, shrinking, bulging or expansion of pavements, patios, foundations, walls, floors or ceilings. Vosgerichian next contacted Allen Waldman of Waldman Excavating who examined the damage and noticed a foundation void big enough to accommodate his arm, but advised further support to the basement would solve the problem. However, when Waldman returned to the home later that month he noticed that the footers had cracked and dropped several inches. Waldman then told Vosgerichian he should consult a structural engineer about the problem. Upon receiving this advice, Vosgerichian contacted persons in Orange Village and ultimately hired Mancini Shah & Associates to assist him in correcting the problems at his home. Robert Mancini came out to the home, inspected it, and found no water leakage and concluded the most likely cause of the cracking of the wall was the washed-away soil, which exposed the footer to freezing and thawing. Mancini recommended that the home first be "shored" to prevent collapse so that Mancini Shah could address the problem. Mancini Shah sent an architect to the home to prepare plans to repair the damage and Vosgerichian hired Waldman to complete the job. However, prior to beginning the work, Waldman asked Mancini Shah to change the plans to install a trench footer - 4 - instead of a spread footer, Mancini Shah approved and revised its drawings to reflect this change. Waldman began work in August, and later noticed water in the area of the footer so he installed a sump pump to alleviate the problem. As Waldman finished the job in October 1992, another worker, hired by Vosgerichian to renovate a bathroom in the basement, noticed leaks in the drainage pipes under the floor. When he notified Waldman of this condition, Waldman advised Vosgerichian to contact Mancini Shah. Vosgerichian then contacted Westfield again. Mancini Shah examined the damage, again urged that the house be shored, and because of the presence of water, commissioned soil engineers to determine the cause of the failure. After receiving this report, Mancini Shah referred contractor Robert Mural of Mural & Sons to examine the condition. Mural ultimately contracted with Vosgerichian and repaired the problem. In May 1993, Vosgerichian filed suit for breach of contract and negligence against Waldman in repairing the residence, and against Mancini Shah & Associates for breach of contract and negligence in rendering professional services. Vosgerichian also sued Westfield Insurance Co. for failing to provide insurance coverage for damages to his home. The court began a jury trial against the three defendants in March, 1995. At the close of Vosgerichian's case, Westfield moved for directed verdict and the trial court granted that - 5 - motion. Mancini Shah also moved for directed verdict at the close of Vosgerichian's case and at the close of its own, but the court denied both motions. Vosgerichian settled his case against Waldman for $10,000 before it was submitted to the jury and, therefore, only the case against Mancini Shah went to the jury. After deliberation, the jury returned a verdict in favor of Vosgerichian for $15,000. Mancini Shah then moved to have the amount of the Waldman settlement set-off against the verdict but the court, without specifically ruling on that motion, entered judgment for Vosgerichian in the amount of $15,000. Mancini Shah now appeals from the judgment and assigns six errors for our review, and Vosgerichian also appeals the directed verdict in favor of Westfield and assigns one error for our review. We shall first consider the appeal by Mancini Shah & Associates. Because Mancini Shah's first and second assignments of error involve a common basis for our review, we will consider them together. They state: I. THE TRIAL COURT ERRED IN DENYING MANCINI, SHAH'S MOTIONS FOR DIRECTED VERDICT AS TO PROFESSIONAL NEGLIGENCE CLAIMS WHERE NO EXPERT TESTIMONY WAS PRESENTED AS TO THE STANDARD OF CARE OR A BREACH OF THE STANDARD OF CARE. II. THE TRIAL COURT ERRED IN DENYING MANCINI,SHAH'S MOTIONS FOR DIRECTED VERDICT WHERE NO COMPETENT TESTIMONY AS TO PROXIMATE CAUSE WAS PRESENTED BY THE PLAINTIFFS. - 6 - Mancini Shah contends the trial court should have granted its motion for directed verdict because Vosgerichian failed to present expert testimony that Mancini Shah breached professional standards or proximately caused injury to Vosgerichian. Vosgerichian urges that the trial court properly denied Mancini Shah's motion for directed verdict because Robert Mural testified that the use of a trench footer instead of a spread footer -- which Mancini Shah authorized -- contributed to cause the problems at the residence. The issue for our determination, then, is whether the trial court properly denied Mancini Shah's motion for directed verdict. Civ. R. 50(A)(4) provides the standard for directed verdicts: When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. In reviewing a motion for directed verdict a trial court must be cognizant that "A motion for a directed verdict does not present a question of fact or raise factual issues, but instead presents a question of law, even though in deciding such a motion it is necessary to review and consider the evidence.***" Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, paragraph one of - 7 - the syllabus. Furthermore, "The evidence is granted its most favorable interpretation and is considered as establishing every material fact is tends to prove. The 'reasonable minds' test of Civ. R. 50(A)(4) calls upon the court only to determine whether there exists any evidence of substantial probative value in support of that party's claim." Id. at 68-69. "Thus, 'if there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, the motion must be denied.'" Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284-285. (Citations omitted.) Additionally, we are mindful that because claims of professional negligence involve knowledge that is beyond the ken of laypersons, expert testimony is required to assist the trier of fact in determining these issues. In Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, the Ohio Supreme Court explained the necessity of expert testimony to establish the prevailing standard of care where the professional skills and judgment of a nurse were alleged to be deficient: Unless a matter is within the comprehension of a layperson, expert testimony is necessary. Evid. R. 702 and 703. Experts have the knowledge, training and experience to enlighten the jury concerning the facts and their opinion regarding the facts. (Citations omitted.) More specific to the issues at hand, this court has held that expert testimony also is necessary to establish professional negligence of architects: - 8 - Whether an architect exercises reasonable care in preparation of designs depends upon the standard of care which licensed architects must follow. Expert testimony is required to establish the standard of care, unless the lack of skill or care of the professional is so apparent as to be within the comprehension of a layperson and requires only common knowledge and experience to understand it. Simon v. Drake Constr. Co. (1993), 87 Ohio App.3d 23. Thus, we are persuaded that the same level of expert testimony is necessary to prove professional negligence in this case. Here, Vosgerichian presented the expert testimony of Robert Mural who explained that the Mancini Shah-approved use of a trench footer instead of a spread footer constituted one of the causes of the damage to the foundation. Since Mural's testimony presented no evidence pertaining to the professional standards of engineers nor whether Mancini Shah breached these standards, this testimony is insufficient to establish a prima facie case of professional negligence against Mancini Shah. Accordingly, the trial court should have directed a verdict on the issue of professional negligence. Thus, these assignments of error are sustained. Mancini Shah's third assignment of error states: THE TRIAL COURT ERRED IN DENYING MANCINI, SHAH'S MOTIONS FOR DIRECTED VERDICT AS TO PLAINTIFF'S BREACH OF CONTRACT CLAIMS WHERE THE CLAIMS SOUNDED IN TORT AND NO EXPERT TESTIMONY WAS PRESENTED TO SHOW A BREACH. Mancini Shah here contends that Vosgerichian's claim for breach of contract is the same as the claim for negligence. It - 9 - further contends that malpractice by any other name is still malpractice and that it makes no difference whether the professional misconduct is founded in tort or in contract because it still constitutes malpractice. Accordingly, Mancini Shah asserts that expert testimony is necessary to show a breach of professional standards whether the claim is contractual or tortious in nature. Vosgerichian, on the other hand, contends that Robert Mural presented competent expert testimony that the use of a trench footer instead of a spread footer was a contributing cause of the failure of the wall and that this testimony provided sufficient evidence for the jury to find Mancini Shah breached its contract to Vosgerichian. The issue then presented for our review is whether the trial court properly denied Mancini Shah's motions for directed verdict on the breach of contract claims. To establish the contract claim, Vosgerichian must prove the existence of a contract with Mancini Shah, breach on the part of the contracting party in fulfilling its contractual duties, and resultant damages. Here, Robert Mural testified that installation of the trench footer as approved by Mancini Shah and its design constituted a cause of the failure of the support wall which Waldman had constructed. Since Mancini Shah & Associates authorized this footer, the jury could have relied upon Mural's testimony to - 10 - support its verdict on breach of contract. Accordingly, we conclude Vosgerichian produced probative evidence to support the breach of contract claim, and therefore the trial court properly denied the motion for directed verdict. Accordingly, this assignment of error is overruled. Mancini Shah's fourth assignment of error states: THE TRIAL COURT ERRED IN DENYING MANCINI, SHAH'S MOTION FOR SUMMARY JUDGMENT WHERE NO EXPERT REPORT HAD BEEN PRODUCED UNDER LOCAL RULE 21.1 AND PROFESSIONAL NEGLIGENCE WAS ALLEGED. Because we have determined that the trial court should have granted a directed verdict on the issue of Mancini Shah's professional negligence in the first assignment of error, this assignment of error is rendered moot and therefore, pursuant to App. R. 12(A)(1)(c), we need not decide it. Mancini Shah's fifth assignment of error states: THE TRIAL COURT ERRED IN ALLOWING CONTRACTOR WALDMAN TO GIVE OPINION TESTIMONY AS TO STRUCTURAL ENGINEERING WHERE HE LACKED ANY QUALIFICATION TO GIVE THE OPINION. Mancini Shah contends the trial court improperly allowed Allen Waldman, the contractor, to express an opinion regarding the adequacy of the engineering plans for the house because he lacked the necessary qualifications to determine the sufficiency of the drawings. - 11 - The ability to control and regulate testimony of witnesses especially as to expert testimony is generally left to the discretion of the trial court judge. Evid. R. 701 regarding opinions by lay witnesses states: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to the a clear understanding of his testimony or the determination of a fact in issue. In this case, since Allen Waldman was not identified as an expert witness, prepared no report or summary of his testimony as an expert prior to trial, he was not deposed as an expert, and at trial he merely expressed his opinion which the trial court permitted in accordance with Evid. R. 701. Hence, we find no error in permitting this witness to express his opinion as a lay witness. This testimony may be given such weight as the jury deems it entitled to receive. Accordingly, we find no merit to this assignment of error. Mancini Shah's sixth assignment of error states: THE TRIAL COURT ERRED IN FAILING TO APPLY A SET- OFF OF $10,000 AGAINST THE VERDICT TO ACCOUNT FOR THE CONTRIBUTION OF SETTLING DEFENDANT WALDMAN EXCAVATING. Mancini Shah argues that the trial court should have applied a set-off of $10,000 against the verdict to avoid Vosgerichian recovering twice for the same injury. Mancini Shah urges that - 12 - R.C. 2307.32(F) entitles it to a dollar for dollar set-off for monies paid to Vosgerichian by settling co-defendant Waldman. Vosgerichian contends that the trial court properly refused the set-off because different causes of action were filed against Mancini Shah, one in contract and one in negligence. In addition, Vosgerichian asserts that Mancini Shah is not entitled to a set-off under R.C. 2307.32(F) because it never claimed indemnity or contribution from Waldman. Further, no evidence exists that these parties were joint tortfeasors. R.C. 2307.32(F) addresses contributions among joint tortfeasors and provides: (F) When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the injury, loss to person or property or the same wrongful death, the following apply: (1) The release or covenant does not discharge any of the other tortfeasors from liability for the injury, loss, or wrongful death unless its terms otherwise provide, but it reduces the claim against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is greater; ***. Therefore, if one of the joint tortfeasors enters into a settlement agreement, the claim against the non-settling defendants is reduced by the amount of the settlement. In this case, however, nothing in the record suggests Waldman and Mancini Shah acted as joint tortfeasors and the court's charge to the jury regarding Mancini Shah stated in part as follows: - 13 - *** If you find for the plaintiffs as to their negligence or breach of contract claim, you will determine from the preponderance of the evidence an amount of money that will reasonably compensate the plaintiffs for the actual damages caused by the defendant. *** (Emphasis added.) The court's charge, then, instructed the jury to return a verdict related solely to damages caused by Mancini Shah. This carefully drafted language prevents jury confusion and avoids the problem of double compensation for the same loss. Based upon this review, we conclude the trial court properly refused to allow a set-off. Therefore, the sixth assignment of error is overruled. Vosgerichian sued the Westfield Insurance Co. asserting his right to coverage for these damages arising out of his homeowners insurance policy. The trial court granted a directed verdict for Westfield and Vosgerichian appealed and assigns one error for our review: THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT TO DEFENDANT WESTFIELD INSURANCE COMPANY AT THE CLOSE OF PLAINTIFF'S EVIDENCE. Vosgerichian contends the trial court erred in granting Westfield's motion for directed verdict because reasonable minds could reach different conclusions as to whether the residence "collapsed" within the meaning of the insurance policy, or in the alternative, if the foundation did not "collapse," would such a collapse have occurred had he not maintained his duty under the policy to prevent further loss to the property. - 14 - Westfield argues that the trial court properly granted its motion for directed verdict because there has been no collapse of the structure as covered by the policy. Further, Westfield argues that the remedial actions taken by Vosgerichian to address the settling and cracking of the foundation does not alter the terms of the contract which provides no coverage for settling and cracking. The issue for our determination, then, is whether or not the trial court properly granted Westfield's motion for directed verdict. In reviewing this directed verdict, we again note that a motion for directed verdict presents a question of law not of fact. "If there is substantial competent evidence to support the party against whom the motion is made, upon which evidence reasonable minds might reach different conclusions, the motion must be denied." See Strother, supra. In Olmsted v. Lumbermens Mutl. Ins. Co. (1970), 22 Ohio St.2d 212, the Ohio Supreme Court held in its syllabus: 2. Where nothing in a written insurance contract shows a contrary intent of the parties, the word "collapse," as used in a policy of insurance, must be read in its common ordinary meaning. 3. The common everyday meaning of "collapse of a structure" is a falling down, falling together, or a caving into an unorganized mass. In this case, Vosgerichian presented no probative evidence that the structure or any part thereof had fallen down, fallen together or caved into an unorganized mass. Accordingly, we - 15 - conclude the trial court properly granted Westfield's motion for a directed verdict in accordance with the definition of collapse in Olmsted, supra, which binds this court. After construing all evidence most strongly in favor of appellant, we believe that reasonable minds can only conclude this building did not collapse. Thus, this assignment of error is overruled. In accordance with the foregoing, the judgment of the trial court is reversed as to assignments of error one and two as advanced by appellants, but affirmed in all other respects. Our resolution of the first two assignments of error does not affect the outcome of the case because the two-issue rule applies: The two-issue rule is, that error in the charge of the court dealing exclusively with one of two or more compete and independent issues required to be presented to a jury in a civil action will be disregarded, if the charge in respect to another independent issue which will support the verdict of the jury is free from prejudicial error, unless it is disclosed by interrogatories or otherwise that the verdict is in fact based upon the issue to which the erroneous instruction related. Bush v. Harvey Transfer Co. (1946), 146 Ohio St. 647, paragraph three of the syllabus. In this case, although the court charged the jury as to professional negligence, an issue which should have been directed out of the case, the additional charge for breach of contract supports the verdict and is free from prejudicial error. Therefore, the $15,000 judgment is unaffected, is not set-off, and the judgment in favor of Westfield Insurance Co. is affirmed. - 16 - Judgment accordingly. - 17 - It is ordered that plaintiff-appellees/cross-appellants recover of defendant-appellants/cross-appellees 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. MATIA, P.J., PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL 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- .