COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70699 VALENTINO CAMARDO : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION BRECHBUHLER SCALES, INC., : ET AL. : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 13, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-272674 JUDGMENT: Affirmed as Modified DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: MICHAEL WESTERHAUS, ESQ. TODD T. MORROW, ESQ. 14255 Peppercreek Drive THOMAS W. CONNORS, ESQ. Strongsville, Ohio 44136 BLACK, MCCUSKEY, SOUERS & ARBAUGH 1000 United Bank Plaza 220 Market Avenue, South Canton, Ohio 44702 CHRISTOPHER J. CARNEY, ESQ. BUCKINGHAM, DOOLITTLE & BURROUGHS 1375 East Ninth Street, Suite 1700 Cleveland, Ohio 44114 - 2 - DYKE, J.: Plaintiff Valentino Camardo appeals from the judgment rendered in his action for payment for concrete and excavation work. For the reasons set forth below, we modify the judgment of the trial court, and affirm as modified. On June 21, 1994, plaintiff filed this action against Brechbuhler Scales, Inc. (hereafter referred to as "Brechbuhler") for recovery on an oral contract for concrete and excavating work undertaken in connection with the installation of a truck scale. In his first claim for relief, plaintiff sought recovery of $75,000, alleging that this was the price set forth in the oral contract. In his second claim for relief, plaintiff sought recovery of $110,000, alleging that this was the reasonable value of the labor and materials for the project. Brechbuhler denied liability and filed a third party complaint against Stein, Inc. (hereafter referred to as "Stein") and LTV Steel Co., Inc. (hereafter referred to as "LTV"). Brechbuhler asserted that it did not have a contract with Camardo, but rather contracted with Stein to install a truck scale on property owned by LTV and pursuant to this written agreement, the concrete foundation and site preparation for the scale was to be supplied "by others." Brechbuhler subsequently dismissed its third party complaint against Stein and LTV. Thereafter, plaintiff filed an amended complaint, naming Stein as a new party defendant. In its answer, - 3 - Stein denied that it was liable in the amounts set forth by plaintiff. On March 6, 1996, the trial court entered summary judgment for Brechbuhler. Plaintiff's remaining claim against Stein proceeded to a bench trial on March 25, 1996. Plaintiff's evidence established that he was first contacted by Stein in the early 1980's to perform work on a commercial drive- way. He was subsequently hired by former Stein employee Lowell Hanson to perform concrete and excavation work for approximately seven other jobs, including commercial scale projects. In prior instances, Brechbuhler installed the scale upon the foundation prepared by plaintiff then submitted plaintiff's fee bill to Stein. Regarding the concrete and excavation at issue herein, plaintiff testified that Hanson and Mark Rust of Brechbuhler contacted him in the spring of 1993 to prepare install a scale foundation at LTV West. At this time, plaintiff stated that the cost for such work was $75,000, due to the height, length, and slope specifications, and the expenses of excavating the site. Thereafter, in late May or June of 1993, Hanson and Rust gave him authority to begin work on the structure. Plaintiff worked on the structure full time for four months and completed a concrete foundation for the scale which consisted of a four feet high walled platform with ascending and descending ramps seventy and eighty- two feet long respectively. - 4 - Plaintiff's evidence further indicated that the structure required a total of 300 cubic yards of concrete. Expert testimony from structural engineer John Bowes indicated that in light of its design, detail, finishes, and embedded items, the structure was valued at $350 per cubic yard, for a total of $110,000. Plaintiff submitted bills to Brechbuhler but he was informed that payment would be made by Stein. Stein then paid $9,290 directly to plaintiff's concrete suppliers, but refused to pay him the full amount he demanded in accordance with the parties' alleged oral agreement. Plaintiff's witnesses conceded, however, that Hanson altered Stein's contract with Brechbuhler after it was executed by includ- ing a handwritten provision naming plaintiff as the foundation and excavation subcontractor, and indicating that he is to be paid $75,000 subject to any additional requirements for preparing the subsurface. Stein's evidence demonstrated that it instructed Hanson to bid the scale installation at issue as a "turnkey" or complete bid package without subcontractors, in order to preclude the hiring of a separate concrete subcontractor such as plaintiff. Despite this directive, Hanson surreptitiously arranged for plaintiff to perform the concrete and excavating work for the project. Brechbuhler was engaged by written agreement to install the scale, and plaintiff in turn billed for his work through Brechbuhler. - 5 - Stein's evidence further demonstrated that it did not object to paying plaintiff, and it had paid plaintiff's concrete sup- pliers. Rather, Stein disputed the value of plaintiff's work. In this connection, Stein presented evidence that it did the bulk of the preparatory work for the site including clearing and grading. Stein presented additional evidence that after the project at issue was completed, it undertook installation of the same type and model scale at LTV East. Bids submitted for the excavation and concrete work for this site ranged from $45,500 to $47,500. The final cost for the excavation and concrete work at LTV East, including all change orders, was $55,640. On April 26, 1996, the trial court awarded plaintiff $45,750 on his claim. In a written opinion, the trial court found as follows: *** plaintiff has failed to prove that an express oral contract exists as between plaintiff and defendant, Stein, Inc.; however, the Court finds that a contract implied in fact was created. In the absence of an agreement as to price, this court awards plaintiff the reasonable value of his services. G. Herschman Architects, Inc. v. Ringco Mfg. Co. (May 11, 1995), Cuyahoga App. No. 67758, unreported. The Court finds in favor of plaintiff in the amount of Forty-five Thousand Seven Hundred Fifty Dollars and no cents ($45,750.00) calculated as follows: Court finds that plaintiff used 305 cubic yards of cement; Court further finds based on the evidence that the reasonable value of cement is $150.00 per cubic yard for a total reasonable value of work performed of $45,750.00. *** Plaintiff appeals herein, assigning six errors for our review. I. - 6 - Plaintiff's first assignment of error states: THE JUDGMENT OF THE TRIAL COURT IS BEYOND THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE. Within this assignment of error, plaintiff maintains that the trial court erred in failing to conclude that there was an express oral contract obligating defendant to pay $75,000 for the work performed by plaintiff. With regard to challenges to the sufficiency of the evidence supporting a judgment, we note that where any essential element of a claim for relief is not proven, any judgment rendered notwith- standing that failure should be reversed. See Farley v. Farley (1994), 97 Ohio App.3d 351, 355. With regard to challenges to the manifest weight of the evi- dence, a court of appeals must be guided by the presumption that the findings of the trier of fact were indeed correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio App.3d 77, 79-80. The court explained: The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. Thus, 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 being against the manifest weight of the evidence. Id., quoting C.E. Morris Co. v. Foley Construction Co. (1987), 54 Ohio St.2d 279, 261. - 7 - In determining whether the instant judgment is properly supported by the evidence of record in this instance, the question presented is whether an express contract, contract implied in fact, and contract implied at law was shown. In Legros v. Tarr (1989), 44 Ohio St.3d 1, 6-7, the supreme court differentiated these types of simple contracts as follows: It is well-established that there are three classes of simple contracts: express, implied in fact, and implied in law. Hummel v. Hummel (1938), 133 Ohio St. 520, 525, 11 O.O. 221, 223, 14 N.E.2d 923, 925-926; Rice v. Wheeling dollar Savings & Trust (1951), 155 Ohio St. 391, 44 O.O. 374, 99 N.E.2d 301. 'In express contracts the assent to its terms is actually expressed in offer and acceptance. In contract implied in fact the meeting of the minds, manifested in express contracts by offer and acceptance, is shown by the surrounding circumstances which made it inferable that the contract exists as a matter of tacit understanding. In contracts implied in law there is no meeting of the minds but civil liability arises out of the obligation cast by law upon a person in receipt of benefits which he is not justly entitled to retain and for which he may be made to respond to another in an action in the nature of assumpsit. Contracts implied in law are not true contracts; the relationship springing therefrom is not in a strict sense contractual but quasi-contractual or constructively contractual. Turning to the issue of compensation, we note that where there is an express contract is shown, compensation is in accordance with the terms of the contract. Accord Atelier Design, Inc. v. Campbell (1990), 68 Ohio App.3d 724, 728. Where there is a contract implied in fact, compensation is in accordance with the parties' mutual assent as shown by the surrounding circumstances; or, if no fee was agreed upon, compensation is fixed at the "reasonable value" of the work. Lucas v. Constantini (1983), 13 Ohio App.3d 367-370. Where - 8 - there is a contract implied in law, compensation is the reasonable value of the services. Id.; Legros v. Tarr, supra, at 7. Applying the foregoing to this matter, we note that the trial court found that "a contract implied in fact was created." We note, however, that the trial court rejected plaintiff's claim that a contract, implied in fact, was created which by tacit under- standing obligated Stein to pay $75,000 for his services, and instead determined the "reasonable value" of plaintiff's work. It is therefore clear to us that the trial court actually found that a contract "implied in law" was created. Thus, the judgment of the trial court must be modified to indicate that a contact implied "in law," rather than "in fact" was created herein. As modified, the judgment of the trial court, and its concomitant award of $45,750 as the "reasonable value of work performed" is supported by suffi- cient evidence and is not against the manifest weight of the evidence. As to the sufficiency challenge, we note that it is undisputed that Stein had a written agreement with Brechbuhler but did not have one with plaintiff. Evidence presented by Stein demonstrated that Stein specifically instructed Hanson to bid the project as a "turnkey" package without subcontractors. Hanson then selected Brechbuhler and plaintiff billed Stein for his work through Brechbuhler. (Tr. 52-53, 72, 85). Thus, there was sufficient evidence from which the trial court could correctly conclude that Stein did not authorize plaintiff to act as subcontractor for the - 9 - project, and that there was no meeting of the minds between Stein and plaintiff. Moreover, considering the weight of the evidence, we note that plaintiff did present evidence that he offered to perform the work for $75,000, and Hanson then accepted this offer. It is signifi- cant, however, that plaintiff's witness, Hanson, acknowledged that the package was to be a "turnkey" project with Brechbuhler, and he then altered Stein's written agreement with Brechbuhler months after it was executed to indicate that plaintiff was to do the concrete and excavating work. Billing for the project gave the appearance, however, that plaintiff was retained by Brechbuhler. Thus, the great weight of the evidence demonstrated that there was no meeting of the minds between Stein and plaintiff. The first assignment of error is overruled. II. Plaintiff's second assignment of error states: THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF MARK S. CHENEY, OVER OBJECTION, PARTICULARLY AS TO THE UNIT COST OF CONCRETE. Within this assignment of error, plaintiff complains that the trial court erred in accepting the testimony of Mark Cheney which indicated that the unit price or value of the scale platform constructed on LTV East was $150 per cubic yard, not to exceed $200. Plaintiff complains that by accepting such testimony, the trial court erroneously permitted Cheney to offer expert testimony - 10 - which it then considered in calculating the reasonable value of plaintiff's work at LTV West. As an initial matter, we note that Cheney had extensive skill experience in preparing bids for industrial concrete and excavation projects which was based on specialized information beyond the knowledge or experience of lay people. (Tr. 129-133) Cf. Evid. R. 702. In any event, viewing his testimony as that from a lay witness, it is clear that his testimony regarding the LTV West project was rationally based on his perceptions and observations of this site. (Tr. 140). Cf. Lee v. Baldwin (1987), 35 Ohio App.3d 47, 49 (firsthand knowledge is required in order to express opinion as a lay witness). Further, Cheney's testimony regarding the LTV East project was directly based upon his perceptions and observations as supervisor of that project and were helpful to the court in determining the reasonable value of plaintiff's work at LTV West since both projects required similar ramps and platforms for the same type and model of truck scale. Evid. R. 701. We therefore are unable to conclude that Cheney's testimony was erroneously introduced. Moreover, it is clear that the introduction of this testimony was not prejudicial since Edward Luthy also testified that the unit price for concrete work in this area is between $150 and $200 per cubic yard. (Tr. 175). Indeed, plaintiff's expert witness like- wise provided a unit cost evaluation of the project, albeit a higher one than provided by Stein. Thus, we cannot conclude that - 11 - the trial court erred in calculating the value of plaintiff's work with reference to a unit price. Also within this assignment of error, plaintiff asserts that the trial court erred in adopting the unit price of $150 per cubic yard and in failing to consider the testimony of his expert, Bowes, which valued the structure at $350 per cubic yard. Matters of credibility are within the province of the trier of fact. Seasons Coal v. Cleveland, supra, at 80. See, also, Shore Shirley & Co. v. Kelley (1988), 40 Ohio App.3d 10, 15 ("`[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts,'" quoting State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus). Further, as we noted previously, Luthy's testimony established the $150-$200 range, thereby providing support for the trial court's judgment. Plaintiff's claim that his foundation at LTV West involved more work than the foundation at LTV East does not alter this conclusion since the absence of an express contract required the court to determine reasonableness of the fee for recovery upon a contract implied in law. See Legros v. Tarr, supra, at 7-8. Moreover, we remain cognizant of the fact that Stein has already paid plaintiff's suppliers, and the court's award is similar to the concrete and excavating estimates prepared in connection with the LTV East platform. The second assignment of error is overruled. - 12 - III. Plaintiff's third and fourth assignments of error are interrelated and state: THE TRIAL COURT ERRED IN ALLOWING TESTIMONY INTO EVIDENCE OVER OBJECTION AS TO THE LTV WEST (SIC, EAST) JOB. THE TRIAL COURT ERRED IN NOT ALLOWING APPELLANT TO COMPARE THE LTV EAST SCALE WITH THE SCALE INSTALLATION HE DID. Evid. R. 401 defines relevant evidence as 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid.R. 402 provides that 'evidence which is not relevant is not admissible.' 'The admission of relevant evidence pursuant to Evid.R. 401 rests within the sound discretion of the trial court.' Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 citing State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343, paragraph two of the syllabus. The t rial court's decision will not be disturbed absent a materially prejudicial abuse of discretion. Krischbaum v. Dillon (1991), 58 Ohio St.3d 58, 66, 567 N.E.2d 1291. If relevant, the evidence still must be evaluated under Evid.R. 403 to determine whether its probative value is substantially outweighed by the risk of unfair prejudice, confusion or the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. We find that the trial court did not abuse its discretion in permitting introduction of evidence concerning the platform at LTV East. The undisputed evidence demonstrated that the project at issue and the LTV East project both involved the construction of platforms for the same model and same size scale (Tr. 117-118), and the concrete platforms for both projects were the same dimensions and the same configuration. (Tr. 118-119). Thus, since the trial court was charged with determining the reasonable value of - 13 - plaintiff's work, evidence of the structure at LTV East was probative of the issue of reasonable value. Accord G. Herschman Architects, Inc. v. Ringco Manufacturing Co., supra, unreported at 13-14. As to plaintiff's remaining contention that he was erroneously prohibited from introducing evidence as to the differences between the LTV West and LTV East projects. The record reveals, however, that the trial court allowed plaintiff to testify on rebuttal that "there is a difference and then speak to what he did at west." (Tr. 222). In addition, evidence was introduced to establish that this project had posts versus a slab foundation (Tr. 224-225), the ramps were poured in sections (Tr. 122), the height and ramp length was different (Tr. 140-142), and they were built in different types of locations (Tr. 143). Thus, this assignment of error lacks support in the record. L. A. & D. v. Board of Commissioners (1981), 67 Ohio St.2d 384, 388. Accordingly, we are unable to conclude that the trial court prohibited the introduction of relevant testimony. We find no abuse of discretion herein. Plaintiff's third and fourth assignments of error are overruled. IV. Plaintiff's fifth assignment of error states: THE TRIAL COURT'S DENIAL OF APPELLANT'S MOTION TO COMPEL DISCOVERY IS AN ABUSE OF DISCRETION. - 14 - Within this assignment of error, plaintiff complains that Stein failed to answer six interrogatories propounded to it, did not adequately answer five interrogatories, and did not produce key documents pertaining to Stein's installation of Brechbuhler scales. The management of the discovery process lies solely within the sound discretion of the trial court and absent an abuse of that discretion, a decision granting or denying a discovery request will not be disturbed by the reviewing court. Glick v. Marler (1992), 82 Ohio App.3d 752, 758 (trial court did not err in denying motion to compel where evidentiary material revealed that the information was neither vital nor necessary in resolving the controversy). We find no indication of an abuse of discretion herein as none of the requested materials went to the fundamental issue of whether there was an express or implied agreement. The fifth assignment of error is overruled. V. Plaintiff's sixth assignment of error states: THE TRIAL COURT ERRED IN ALLOWING TESTIMONY INTO EVIDENCE OVER THE OBJECTION CONCERNING LOWELL HANSON'S BEING ACCUSED OF A CRIME. Herein, plaintiff complains that the trial court erred in permitting a witness for Stein to testify that Hanson was fired "for stealing from the company." (Tr. 187). Evid. R. 616 governs evidence concerning bias and provides as follows: - 15 - Bias, prejudice, interest, or any motive to mis- represent may be shown to impeach the witness either be examination of the witness or by extrinsic evidence. In addition, Evid. R. 404(B) permits introduction of evidence of other wrongs, or acts in order to show "proof of motive, oppor- tunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In this instance, the evidence was offered to show Hanson's opportunity to act contrary to his authority. Thus, we cannot conclude that the evidence was erroneously introduced. Moreover, as this matter was tried to the court and not to a jury, we trust that this evidence was considered in this limited fashion, as the court could clearly sort out the irrelevant and prejudicial evidence from that which was probative and admissible. Stump v. Industrial Steeplejack Co. (1995), 104 Ohio App.3d 86, 95. The sixth assignment of error is overruled. The judgment of the trial court is hereby modified to indicate that the court's determination and award of the "reasonable value of work performed of $45,750" was predicated upon its finding that there was a contract "implied in law," rather than a contract implied in fact." As so modified, the judgment is affirmed. - 16 - It is ordered that appellees recover of appellant their 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. DAVID T. MATIA, P.J., AND O'DONNELL, J., CONCUR ANN DYKE 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 of decision by the .