COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69995 PAUL DAVIS SYSTEMS OF CLEVELAND : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : HOUSE DOCTOR'S HOME IMPROVEMENTS : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 20, 1996 CHARACTER OF PROCEEDING: Civil appeal from Parma Municipal Court, No. 95-CVI-2310. JUDGMENT: REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Apellee: William H. Thesling, Esq. 5566 Pearl Road Parma, OH 44192-2541 For Defendant-Appellant: Thomas P. Aldrich, III., Esq. 1060 Greyton Road Cleveland, Heights, OH 44112 -2- PER CURIAM: This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the record from the Parma Municipal Court, Small Claims Division, the briefs and arguments of counsel. John Akel, dba House Doctor's Home Improvements ("Akel"), defendant-appellant, appeals the decision of Parma Municipal Court, adopting the referee's recommendation to award Paul Davis Systems of Cleveland, plaintiff-appellee, the sum of $1,976. Defendant-appellant's sole assignment of error states: THE TRIAL COURT ERRED IN FINDING FOR THE APPELLEE'S IN THE FACE OF THE OPERATIVE FACTS. For the following reasons, we remand the case back to the trial court for further proceedings consistent with this opinion. On or about October 15, 1993, defendant-appellant executed a Tradesmen Agreement with plaintiff-appellee thereby becoming one of plaintiff-appellee's subcontractors. Plaintiff-appellee entered into a contract with Helen Jacamowicz for roof repairs of the front of her home due to hail. The usual and customary way for the job to be paid by plaintiff-appellee to defendant- appellant is for defendant-appellant to use the credit of plaintiff-appellee to purchase the materials. When work was completed, plaintiff-appellee will pay defendant-appellant its contract price, less the cost of the materials. Defendant-appellant started the work on Helen Jacamowicz's roof but subsequently subcontracted with James Clark, dba Weather -3- Tight Roofing ("Clark"), to finish the job. Clark used the roofing materials paid for by plaintiff-appellee. However, Helen Jacamowicz began dealing directly with Clark and requested additional work on her roof which was not part of the original contract. Clark completed the front of the house on May 6 and later repaired the back of the house. Helen Jacamowicz paid Clark the contract price in full. On May 12, 1995, plaintiff-appellee paid defendant-appellant $1,055.77 in accordance with their contract (contract price minus materials). It is not clear whether plaintiff-appellee knew Helen Jacamowicz had already paid Clark the contract price. Nevertheless, plaintiff-appellee did not get paid by Helen Jacamowicz and decided, for whatever reasons, not to bring a cause of action against her. Plaintiff-appellee attempted to remedy the fact that it had not received payment for the contracted work with defendant- appellant and Clark but to no avail. Plaintiff-appellee filed this claim against defendant-appellant and Clark seeking the amount due under the contract, $1,976. Defendant-appellant argued the work contracted for was completed by their subcontract employee, i.e., Clark. When plaintiff-appellee paid defendant-appellant for the work completed, its relationship with plaintiff-appellee ended. Moreover, defendant-appellant's argument seems to be premised upon the assumption that the cause of action concerns the additional work Clark performed on the back of the house: -4- Contractual privity cannot be said to exist in the present case. Appellant's connection with Appellee and Mrs. Jacamowicz's property was limited to work performed under one clearly defined and finite contract, as was his relationship with Jim Clark. The subsequent work was done without Appellant's knowledge or involvement. However, we believe the determinative issue of this case involves the fact that defendant-appellant's subcontractor, Clark, was paid the contract price by Helen Jacamowicz and not plaintiff-appellee. In this case, the referee found defendant-appellant and Clark jointly and severally liable to plaintiff-appellee for its loss of the contract price for the work performed on the roof of Helen Jacamowicz. The court adopted the referee's report and recommendation and awarded plaintiff-appellee $1,976 plus interest at 10 percent from May 1, 1995. From a review of the sparse record, it is clear that defendant-appellant hired and/or employed Clark. Moreover, it is undisputed that Clark received the contract price from Helen Jacamowicz. However, what is missing in the referee's report and the trial court's adoption of the report is sufficient facts which form the basis of its decision finding defendant-appellant and Clark jointly and severally liable. Additionally, a review of the record does not provide any insight into the legal theory upon which the referee and ultimately, the trial court based its decision. See Civ.R. 53(E); Conn Constr. Co. v. Dept. of Transp. -5- (1983), 14 Ohio App.3d 90; Haag v. Haag (1983), 9 Ohio App.3d 169. Evidence of this is the fact both parties argue different legal theories to attack and support the trial court's adoption of the referee's recommendation, i.e., contractual privity and agency by estoppel respectively. For these reasons we remand the case back to the trial court to indicate the basis for its award as opposed to merely its conclusions. Judgment remanded. -6- This cause is remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellee recover of said appellant its costs herein. 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. DAVID T. MATIA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, 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 .