COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69557 ROGER HAYES, ET AL. : : : PLAINTIFFS-APPELLEES : JOURNAL ENTRY : v. : AND : WALT WARD CONSTRUCTION CO., : OPINION ET AL. : : DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No., CV-215893. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: James N. Harding, Esq. 653 Broadway Avenue Suite 204 Bedford, OH 44146 For Defendants-Appellants: Dale S. Economus, Esq. James C. Watson, Esq. 10360 Northfield Road Northfield, OH 44067 -2- DAVID T. MATIA, J.: Walt Ward Construction, Co., et al., defendants-appellants, appeal the decision of the Cuyahoga County Court of Common Pleas awarding Roger Hayes, et al., plaintiffs-appellees, the sum of $22,300.01. Defendants-appellants assign three errors for review. Plaintiffs-appellees file two cross-assignments of error. This court, finding error, affirms in part, reverses in part and remands this case for further proceedings consistent with this opinion. I. STATEMENT OF FACTS On or about August 25, 1990, Walt Ward Construction Co., defendants-appellants, entered into a contract with Roger and Cathy Hayes, plaintiffs-appellees, for the construction of a new residence. In November, 1990, the construction commenced. Throughout the course of the construction, a number of changes were made to the original plans and specifications which resulted in extra charges to plaintiffs-appellees. Plaintiffs-appellees claim they were not consulted and did not consent to these changes. Although the house was completed in April of 1991, there remained numerous "punch list" items to be corrected. Not all of the items were repaired. Moreover, the relationship between the two parties had deteriorated. Plaintiffs-appellees claimed many of the items were not repaired because defendants-appellants refused to give the "subtrades" his consent to the repairs. Plaintiffs-appellees claimed additional problems with the house soon became apparent. -3- On August 9, 1991, plaintiffs-appellees filed a complaint alleging: 1) breach of contract, and 2) unfair deceptive and unconscionable acts and practices. For count one, plaintiffs- appellees sought damages in the sum to be determined by the court, damages to compensate for the decline in value to their property and damages for the return of all monies or other consideration given by plaintiffs to defendants. For count two, plaintiffs-appellees also sought three times the actual damages or two hundred dollars ($200) for each unlawful act specified, whichever was greater, pursuant to R.C. 1345.09(B). Plaintiffs- appellees also sought all costs and attorney fees. On December 30, 1992, plaintiffs-appellees amended their original complaint to include Nationwide Mutual Insurance Co., Chicago Title Insurance Co., Charles Dudas and Ameritrust Co. 1 (Society National Bank). Plaintiffs-appellees further amended their prayer in count one for damages in an undetermined amount to compensate for the cost of repairs, or the decrease in value of their property, and for lost interest paid in amount of $8,478, due to the breach of contract. The prayer for relief in count two remained the same. The trial began on December 7, 1993. On that day, defendants- appellants' moved to limit any judgment against them to the amount prayed for in the complaint pursuant to Civ.R. 54(C). Further, defendants-appellants motioned to have certain 1 All of these parties were subsequently dismissed. -4- unanswered "Requests for Admissions" deemed admitted. The trial court overruled these motions and subsequently granted plaintiffs-appellees' motion to answer the "Requests for Admissions" instanter. On March 4, 1994, plaintiffs-appellees filed a motion to amend prayer for damages. Count one was amended for the cost of repairs or decrease in the value of their property in the amount of $130,000, and for lost interest in the amount of $8,478, due to the breach for contract. The prayer for count two was amended for damages in the amount of three times actual damages, or $390,000, for $200 for each unlawful act specified, or $130,000, whichever is greater. Finally, plaintiffs-appellees amended the prayer for count three for damages for the cost of repairs or decrease in the value of their property in the amount of $130,000. Plaintiffs-appellees' motion was granted on March 16, 1994. Due to extended breaks for discovery, the trial was continued on June 28, 1994, February 14, 1995 and June 28, 1995. On August 18, 1995, the trial court entered judgment awarding plaintiffs- appellees $22,300.01. On September 13, 1995, defendants- appellants filed its notice of appeal. Plaintiffs-appellees filed a cross-appeal on September 22, 1995. This court remanded the case back to the trial court to complete the appellate record, properly dispose of all claims and clarify its Memorandum of Opinion. This being done, the appeal is now properly before this court. -5- -6- II. FIRST ASSIGNMENT OF ERROR Walt Ward Construction Co., et al., defendants-appellants, state as its first assignment of error: I. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANTS' MOTION TO LIMIT JUDGMENT TO THE AMOUNT PRAYED FOR IN THE COMPLAINT AND IN ALLOWING PLAINTIFFS TO AMEND THEIR PRAYER AFTER THE COMMENCEMENT OF THE TRIAL. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANTS-APPELLANTS' MOTION TO LIMIT JUDGMENT AND SUBSEQUENTLY PERMITTING PLAINTIFFS-APPELLEES TO AMEND THEIR PRAYER AFTER TRIAL BEGAN. Defendants-appellants argue that pursuant to the version of Civ.R. 54(C) in effect at the beginning of trial, the trial court erred in denying its motion to limit judgment to the amount prayed for in the first amended complaint. Moreover, defendants- appellants argue the trial court erred in permitting plaintiffs- appellees to amend their complaint a third time after the trial had begun, i.e., March 16, 1994. Defendants-appellants' first assignment error is well taken. B. DEMAND FOR JUDGMENT: CIV.R. 54(C) On December 7, 1993, the first day of trial, Civ.R. 54(C) read in pertinent part: Except as to a party against whom a judgment is entered by default, every final judgment shall grant relief to which the party in whose favor it is rendered is entitled; however, a demand for judgment which seeks a judgment for money shall limit the claimant to the sum claimed in the demand unless he amends his demand not later than seven days before the commencement of trial. -7- Again, due to extended breaks for additional discovery and depositions, the trial lasted until August 18, 1995. During this period, on July 1, 1994, Civ.R. 54(C) was amended to read in pertinent part: Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded the relief in the pleadings. This substantial change in the rules was in part due to the harsh and unwarranted results which had come from strict compliance with the former Civ.R. 54(C). Thus, the amended version of the rule would permit a party to amend their request for recovery in their prayer after seven days before the commencement of trial, subject to Civ.R. 15(A), or in any event, recover more at trial than prayed for, subject to Civ.R. 15(B). See, Staff Note. In this case, our conclusion is determinative in part upon which version of Civ.R. 54(C) should apply to the trial court's actions. When addressing the application and/or effective date of an amendment to the civil rules, we must adhere to Civ.R. 86 which reads in pertinent part: (R) Effective date of amendments. The amendments submitted by the Supreme Court to the General Assembly on January 14, 1994, shall take effect on July 1, 1994. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that their application in a particular action pending when the amendments take effect would not be feasible or would -8- work injustices, in which event the former procedure applies. -9- C. THE TRIAL COURT ERRED IN DENYING DEFENDANTS-APPELLANTS' MOTION TO LIMIT JUDGMENT AND IN PERMITTING PLAINTIFFS-APPELLEES TO AMEND ITS COMPLAINT AFTER TRIAL HAD COMMENCED. Pursuant to Civ.R. 86(R) the amended version of Civ.R. 54(C) would apply to all further proceedings in the pending action taking effect after July, 1 1994. In this case: 1) plaintiffs- appellees initially amended their complaint on December 30, 1992, 2) the trial court denied defendants-appellants' motion to limit judgment on the first day of trial, December 7, 1993 and 3) on March 16, 1994, the trial court permitted plaintiffs-appellees to again amend their complaint. Since all of these actions of the trial court occurred prior to July 1, 1994, the former version of Civ.R. 54(C) must be applied. See In Williams v. Glen Manor Home for Jewish Aged, Inc. (1986), 27 Ohio App.3d 246. In this case it is undisputed that the trial court permitted plaintiffs-appellees to make their second amendment to the prayer for damages during the trial. This was in error and in violation of the mandates of the former Civ.R. 54(C) which permits such amendments no later than seven days prior to trial. Accordingly, plaintiffs-appellees are limited to the amount prayed for in their first amended complaint. The Ohio Supreme Court, in Bishop v. Grdina (1985), 20 Ohio St.3d 26, examined the dictates of former Civ.R. 54(C). The Court stated: *** The Rules are, of course, the law of this state with regard to practice and procedure in our courts. Section 5(B), Article IV, Ohio Constitution. -10- Civ.R. 54(C) is clear on its face. No damages may exceed the prayer that is in effect on the sixth day prior to trial. In this case, the punitive damages awarded greatly exceeded appellants prayer, and the court of appeals properly reduced the award to conform to the requested amount. * * * *** A major purpose of the limitation in the rule is to put the defendant on notice prior to trial as to his potential liability. The Ohio rule was specifically drafted to be distinguished from its federal counterpart which permits an award that exceeds the prayer. See Fed.R.Civ.P. 54(C); Staff Notes to Civ.R. 54(C). Plaintiffs in this state are thus forced to determine the approximate amount of their total damages prior to trial. *** Nothing prevents the unsure plaintiff from erring on the high side. The duty of the jury (or trial judge) is to match the damages to the proof brought forth. (Footnote omitted)(emphasis added). Accordingly, under former Civ.R. 54(C), the plaintiff had a duty and/or obligation to state in their original or amended complaint the specific monetary amount of their total damages. On December 30, 1992, plaintiffs-appellees amended their prayer in count one for "damages in an undetermined amount to compensate for the cost of repairs, or the decrease in value of their property, and for lost interest paid in amount of $8,478, due to the breach of contract." The prayer for relief in count two remained for damages in the amount of three times the actual damages or two hundred dollars ($200) for each unlawful act specified, whichever was greater, pursuant to R.C. 1345.09(B), and for reasonable attorneys fees, pursuant to R.C. 1345(F)(2). -11- Plaintiffs-appellees cite to a number of unreported cases for the proposition that so long as the defendant was made aware of the potential liability he/she was subjected to, a specific monetary figure is not required. See Manning v. Ramos (Dec. 10, 1992), Cuyahoga App. No. 61060, unreported; Adrian De Franco v. Village of valley View (Nov. 29, 1990), Cuyahoga App. No. 57719, unreported; Fraternal Order of Police v. City of Willowick (Sept. 12, 1986), Lake App. No. 11-085, unreported. However, we are bound to adhere to the rule of law as set forth in Bishop, supra and Studier v. Taliak (1991), 74 Ohio App.3d 512, which holds a plaintiff must plead a specific monetary damage. See S.Ct.R.Rep.Op. 2(G). Therefore, the trial court erred when it denied defendants-appellants' motion to limit judgment. Accordingly, judgment for plaintiffs-appellees in the amount of $22,300.11 is vacated and judgment is entered in favor 2 of plaintiffs-appellees for the amount $8,478. Defendants-appellants' first assignment of error is well taken. III. SECOND ASSIGNMENT OF ERROR Walt Ward Construction Co., et al., defendants-appellants, states as its second assignment of error: II. THE TRIAL COURT ERRED IN ALLOWING PLAINTIFFS TO RESPOND TO REQUESTS FOR ADMISSIONS AFTER THE TRIAL HAD COMMENCED. 2 No damages can be awarded for count two as the trial court concluded the contract at issue was not a transaction governed by R.C. 1345.01, .02 or .03. -12- A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING PLAINTIFFS-APPELLEES TO RESPOND TO REQUEST FOR ADMISSIONS AFTER TRIAL HAD COMMENCED. Defendants-appellants argue the trial court abused its discretion in allowing plaintiffs-appellees to respond instanter to request for admissions during the trial. Specifically, defendants-appellants argue since the "Request for Admissions" would have disposed of most, if not all, of the issues at trial and since defendants-appellants had twice requested these unanswered "Request for Admissions" be admitted, the trial court was compelled to rule in its favor pursuant to Civ.R. 36(A). Defendants-appellants' second assignment of error is not well taken. B. REQUEST FOR ADMISSIONS: CIV.R. 36 The request for admissions is governed by Civ.R. 36 which states in pertinent part: A. Request for Admission. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(B) set forth in the request, that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. * * * Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service thereof or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by -13- the party or by his attorney. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer, or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to the provisions of Rule 37(C), deny the matter or set forth reasons why he cannot admit or deny it. The party who has requested the admissions may move for an order with respect to the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of Rule 37(A)(4) apply to the award of expenses incurred in relation to the motion. A request for admission can be used to establish a fact, even if it goes to the heart of the case. This is in accord with the purpose of the request to admit -- to resolve potentially disputed issues and thus to expedite the trial. Cleveland Trust -14- Co. v. Willis (1985), 20 Ohio St.3d 66, citing St. Paul Fire & Marine Ins. Co. v. Battle (1975), 44 Ohio App.2d 261, 269. Generally, a party must timely respond to the request. Failure to respond at all to the requests will result in the requests becoming admissions. Sandler v. Gossick (1993), 87 Ohio App.3d 372. However, when compelling circumstances exist, the trial court may accept late admissions. See Cleveland Trust Co., supra; Balson v. Dodds (1980), 62 Ohio St.2d 287. The decision to accept late admissions is a matter within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. See Aetna Cas. & Sur. Co. v. Roland (1988), 47 Ohio App.3d 93. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN PERMITTING PLAINTIFFS-APPELLEES TO RESPOND TO REQUEST FOR ADMISSIONS AFTER THE TRIAL HAD COMMENCED. This action commenced August 9, 1991. Defendants-appellants served the Request for Admissions, Request for Production of Documents and Interrogatories on December 11, 1991. In January of 1992, plaintiffs-appellees obtained new counsel. However, in turning over all discovery matters, plaintiffs-appellees' former attorney inadvertently failed to include the Request for Admissions. After obtaining an extension of time to answer the Interrogatories, plaintiffs-appellees' new counsel submitted responses to the the Request for Production of Documents and Interrogatories on March 11, 1992. From March 11, 1992 to December 7, 1993, the parties conducted extensive discovery. Throughout this period, defendants- -15- appellants did not seek responses to the Request for Admissions. It was only until the first day of trial that defendants- appellants served the trial court with a motion to have the unanswered Request for Admissions deemed admitted. This motion was denied. After December, 7, 1993, the first day of trial, there was then an extended break for further discovery. On June 2, 1994, plaintiffs-appellees submitted answers instanter which were eventually accepted by the trial court. The trial then continued on June 28, 1994, February 14, 1995 and June 28, 1995. Under these facts, we find that plaintiffs-appellees' failure to timely respond to the Request for Admissions was not willful and/or in bad faith. Moreover, defendants-appellants have failed to demonstrate any prejudice as the issues in the Request for Admissions were similarly addressed through the Interrogatories. Under the unusual circumstances surrounding this case, we find the trial court did not abuse its discretion in permitting plaintiffs-appellees to respond to the Request for Admissions after the trial had commenced. See, Balson, supra; Roger Heller v. Kimberly McLaughlin (Sept. 26, 1996), Cuyahoga App. No. 70072, unreported. Defendants-appellants' second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Walt Ward Construction Co., et al., defendants-appellants, states as his third assignment of error: -16- III. THE TRIAL COURT ERRED IN FINDING FOR PLAINTIFFS ON APPELLANT'S (SIC) COUNTERCLAIM. -17- A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN FINDING FOR PLAINTIFFS-APPELLEES ON DEFENDANTS-APPELLANTS' COUNTERCLAIM. Defendants-appellants argue the trial court erred in finding for plaintiffs-appellees on its counterclaim. Specifically, defendants-appellants argue since the trial court determined the parties contract was a "cost-plus" contract, a homeowner is liable for all actual costs associated with the contract regardless of whether construction defects were found to have existed. For this reason, defendants-appellants argue the trial court should have awarded the balance of $12,813.97 for work performed, labor and materials provided pursuant to the terms of their contract. Defendants-appellants' third assignment of error is well taken. B. STANDARD OF REVIEW: MANIFEST WEIGHT. In civil cases, 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 against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus. Moreover, evaluating evidence and assessing credibility are primarily for the trier of fact. Crull v. Maple Park Body Shop (1987), 36 Ohio App.3d 153. Thus a reviewing court should not reverse a trial court's decision when it merely has a difference of opinion on questions of credibility or the weight of the evidence; rather, a trial court's decision should be overturned only when there is no -18- competent and credible evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. -19- C. THE TRIAL COURT ERRED IN FINDING FOR PLAINTIFFS-APPELLEES ON DEFENDANTS-APPELLANTS' COUNTERCLAIM. On January 13, 1992, defendants-appellants filed an amended answer and counterclaim. Defendants-appellants sought the balance of $12,813.97 from plaintiffs-appellees for work performed, labor and materials provided pursuant to the terms of what the court determined was a "cost-plus" contract. In 13 American Jurisprudence 2d (1964) 22-23, Building and Construction Contracts, Section 20, cost-plus contracts are explained as follows: "Under a `cost plus' contract the contractor is entitled to recover his costs plus the agreed percentage. A question arises under these contracts as to what is included in the costs. It has been held that the contractor is not entitled, in addition to the percentage called for in the contract, to charge for his general or overhead expenses, such as salaries, telephone service, and office supplies, for his own time in superintending the work, for carfare for laborers, for the costs of extra work not called for by the original contract and commissions thereon, or for the cost of doing over the work which was not properly done. On the other hand, he is entitled to charge for materials and supplies furnished, for the wages of workmen, for the salaries of superintendents, and for accident and indemnity insurance. *** " Stated differently, under a cost plus contract the contractor is entitled to recover his costs plus the agreed percentage. The cost includes the cost of all the materials, labor, permits, taxes and insurance and all other cost and expense incurred directly in the work plus a fixed fee. Petersen Painting & Home Improvement, Inc. v. Znidarsic (1991), 75 Ohio App.3d 265, 267; C -20- & G Landscaping v. Maarten Intermodal Expeditors, Inc. (Jan. 5, 1995), Cuyahoga App. No. 66188, unreported. In the case sub judice, the trial court held that both sides were at fault: The contract was a cost plus estimated to be $127,378.12 including a 13 percent profit... The plaintiff signed off on a total of $117,000. *** In reviewing the mass of testimony and exhibits, the Court finds fault with both sides. The Plaintiff's stood silent while some work was in process and then complained of its non-conformance after the work was done. Some part of the work were more than was bargained or charged for. And plaintiffs were not receptive to the subcontractors going in to redo any work. They might have minimized the losses they claim. Finally, the plaintiff's expert was not candid about his training at school and his opinions are weakened thereby. The contractor has not performed all of the work in a workmanlike manner. The expert's reports together with the photographs demonstrate that the roof and siding defects were the fault of the defendant. Costs to correct are proved to be $5,820.00. Repairs to the drywall are $3,000.00, foundation cracks at $2,000.00. Other items (Exhibits 16-23) cost plaintiffs $2,880.11. In addition, the Court assesses the interest paid in the amount of $8,600.00 to the defendants. The total found for the plaintiffs is $22,300.11. *** From a review of the trial court's opinion, it is clear the trial court did not take into consideration the amount due defendants-appellants for work performed under the cost-plus -21- contract. Moreover, we cannot summarily conclude that defendants-appellants substantially completed or completed in a workmanlike manner all of the items set forth in the cost-plus contract and award defendants-appellants the remaining balance. We conclude, therefore, that the determination of the trial court finding in favor of plaintiff-appellee on the counterclaim was not supported by sufficient credible evidence. This case is remanded back to the trial court to determine the extent of work completed by defendants-appellants under the cost-plus contract and that defendant-appellant, Walt Ward Construction Co., be compensated accordingly. Defendants-appellants' third assignment of error is well taken. V. FIRST CROSS-ASSIGNMENT OF ERROR Roger Hayes, et al., plaintiffs-appellees, states as their first cross-assignments of error: I. THE TRIAL COURT FAILED TO AWARD DAMAGES FOR PLAINTIFFS WHERE THE DEFENDANTS FAILED TO RESPOND TO PLAINTIFFS PROOF OF DAMAGES. Due to our disposition of defendants-appellants' first assignment of error, plaintiffs-appellees' first cross-assignment of error is rendered moot. See App.R. 12(A)(1)(c). VI. SECOND CROSS-ASSIGNMENT OF ERROR Roger Hayes, et al., plaintiffs-appellees, state as their second cross-assignment of error: II. THE TRIAL COURT FAILED TO FIND DEFENDANT WALT WARD PERSONALLY LIABLE FOR THE DAMAGES AWARDED PLAINTIFF. -22- -23- A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN NOT HOLDING DEFENDANT-APPELLANT PERSONALLY LIABLE. Plaintiffs-appellees argues the trial court erred in not finding Walt Ward, defendant-appellant, personally liable for all damages to plaintiffs-appellees. Specifically, plaintiffs- appellees argue Walt Ward was the sole shareholder, sole employee and personally in charge of every aspect of the project. Moreover, plaintiffs-appellees argue, they suffered damages when Walt Ward personally committed fraud and/or illegal acts against plaintiffs-appellees. For these reasons, there existed adequate grounds to "pierce the corporate veil" and find Walt Ward, defendant-appellant, personally liable. Plaintiffs-appellees' second cross-assignment of error is not well taken. B. STANDARD OF REVIEW: PIERCING THE CORPORATE VEIL. The Ohio Supreme Court addressed the personal liability of corporate shareholders in Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, paragraph three of syllabus: The corporate form may be disregarded and individual shareholders held liable for wrongs committed by the corporation when (1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner as to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to the plaintiff from such control and wrong. -24- See, also, Allside Supply Co. v. Wager (1993), 89 Ohio App.3d 539. Again, a reviewing court should not reverse a trial court's decision when it merely has a difference of opinion on questions of credibility or the weight of the evidence; rather, a trial court's decision should be overturned only when there is no competent and credible evidence. Seasons Coal Co., supra. C. THE TRIAL COURT DID NOT ERR IN FINDING WALT WARD WAS NOT PERSONALLY LIABLE FOR DAMAGES TO PLAINTIFFS-APPELLEES. In this case, a review of the record establishes not only that plaintiffs-appellees have failed to furnish the complete transcript of all relevant proceedings pursuant to App.R. 9(B), but also that from a review of the record, there existed conflicting evidence regarding the actions of defendants- appellants. Accordingly, we cannot hold the trial court erred when it determined Walt Ward, defendant-appellant, was not personally liable. Plaintiffs-appellees' second cross-assignment of error is not well taken. Judgment affirmed in part, reversed in part and remanded back to the trial court for further proceedings consistent with this opinion. -25- This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellants and said appellees equally share the costs herein taxed. 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. LEO M. SPELLACY, C.J. and TIMOTHY E. McMONAGLE, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .