Opinion
22-COA-030
07-06-2023
JEANNA M. MORRIS, ET AL Plaintiffs-Appellees v. WILLIAM A. GEDRAITIS, ET AL Defendants-Appellants
For Plaintiff-Appellees KOREY M. KIDWELL JEREMY R, ABRAMS CYNTHIA A. CUNNINGHAM For Defendant-Appellants PATRICK J. THOMAS
Civil appeal from the Ashland County Court of Common Pleas, Case No. 19-CIV-240
For Plaintiff-Appellees
KOREY M. KIDWELL
JEREMY R, ABRAMS
CYNTHIA A. CUNNINGHAM
For Defendant-Appellants
PATRICK J. THOMAS
JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Andrew J. King, J.
OPINION
Gwin, P.J.
{¶1} Appellants appeal the August 23, 2022 judgment entry of the Ashland County Court of Common Pleas overruling their objections and adopting the magistrate's decision.
Facts & Procedural History
{¶2} Appellees Jeanna Morris and Leslie Morris owned and resided in a house located at 808 South Mount Vernon Avenue in Loudonville, Ohio, for approximately twenty years. Appellant William Gedraitis is a construction contractor who owns and is the sole member of appellant Northeast Fixtures, LLC. Appellees wanted to renovate their house, specifically, install a new garage, excavate the old basement, and install a new basement with a bathroom. Appellees' son, Luke Morris ("Luke"), is a contractor who had worked some jobs for Gedraitis. He recommended his parents hire Gedraitis to complete the renovations.
{¶3} Appellees and appellants entered into a written contract on July 24, 2018, for the proposed renovations. Gedraitis prepared the contract and drew the diagram that was attached to the contract. The contract provides the following work would be performed: excavating the basement, tearing down the existing garage, cribbing up the house, removing the sandstone foundation, pouring new footings, installing block walls, assembling a retaining wall, pouring a concrete floor, building a new garage and bathroom, and connecting all plumbing and electrical. While the contract states the work was to be completed by March 15, 2018, both parties agree that the end date was intended to be March 15, 2019. The contract states, in pertinent part that: "1) Contractor warrants that all work shall be completed in a good workmanlike manner and in compliance with all building codes and other applicable laws," and "2) Contractor may at its discretion engage subcontractors to perform services under this Agreement, but Contractor shall remain responsible for proper completion of this Agreement."
{¶4} An additional contract was entered into by appellees and Gedraitis on September 22, 2018, which provides, "I William A. Gedraitis agree to repay the initial deposit of $25,000.00 to Jeanna Morris over the course of construction. Four draws from First Knox Bank."
{¶5} On December 19, 2019, appellees filed a complaint against appellants for breach of contract, damage to property, and negligence. Appellees alleged in their complaint that they hired appellants to perform work on their home and that appellants did not complete work on the house, and significantly damaged the property. Appellants filed an answer to the complaint, and filed a cross-claim against Luke Morris. Appellants alleged that Luke is the real party in interest in the transaction and the damage to the home was caused by Luke.
{¶6} Appellees filed a motion for summary judgment. The trial court denied the motion. Luke filed a motion for summary judgment on appellants' cross-claim. The trial court granted the motion.
{¶7} The magistrate conducted a bench trial on appellees' complaint on November 9, 2021. The following facts were adduced from the trial.
{¶8} Appellees identified Exhibit A as a contract between them and Gedraitis. The contract was signed by Leslie, Jeanna, and Gedraitis. The work was supposed to be broken down into four draws with a total price of $89,500, and an initial deposit of $25,000. The first draw of $22,375, payable to Northeast Fixtures, was paid on October 29, 2018. Half of the second draw, in the amount of $11,187.50, was paid to Gedraitis. The second half of the second draw was not paid because the work was not completed.
{¶9} The work began in October of 2018. Gedraitis, Zach Murdock, and Luke worked on the project. Appellees did not have an agreement with either Murdock or Luke because they worked for Northeast Fixtures and Gedraitis supervised their work. In a text message, Gedraitis called Luke "his subcontractor." Luke worked on the project until February 13, 2019; Gedraitis continued to work on the property after Luke left the project.
{¶10} Luke testified that he was never an employee of Gedraitis, but worked for him starting in 2018 until February 13, 2019. He recommended Gedraitis to his parents; however, he was not a party to the contract between his parents and Gedraitis. When he worked on the property, he was supervised by Gedraitis and was given instructions by Gedraitis. Luke testified he was not permitted to lay block by himself and lifted the house at some points under direct instruction of Gedraitis. Luke stated he did not perform all of the lifting on the home, and did approximately 20% of the lifting. Luke testified that Gedraitis provided all of the materials for the project and provided all of the drawings and specifications for the project. Gedraitis paid Luke a total of $5,900 in 2018, and gave him a 1099.
{¶11} On cross-examination, Luke testified that Gedraitis was not there when the lifting began. When asked if he did the lifting as Gedraitis instructed, Luke stated he believed he did it correctly because Gedraitis would check and say "good job." Luke helped in the process of taking out the center wall of the basement. Gedraitis was present when Luke was taking out the wall.
{¶12} Prior to the construction, there were no structural issues or flooding issues with the house. When the issues began happening during construction, Leslie communicated these issues to Gedraitis via text and in person. These issues included: drain not hooked up properly so water was draining down into the unfinished basement; floors separating; and walls and ceilings cracking. Jeanna stated that, in July of 2019, there was water running everywhere. Leslie and Jeanna both testified they had a contract with appellants, the contract was not completed, and their home was damaged as a result of appellants' actions.
{¶13} Appellees stated that because appellants never completed the project, they asked appellants to stop working on the project in October of 2019. Appellees hired a company to inspect the house in October of 2019. Bacon Brothers Construction estimated $212,000 was needed to repair the damage.
{¶14} Appellees submitted a claim to appellants' insurance company. The claim was denied because Gedraitis said he never performed the work.
{¶15} Luke Shearer ("Shearer") is the owner of Bacon Brother's Construction LLC. He specializes in construction, specifically in-home foundations and home additions. The company has been in business for five years. Prior to establishing the business, Shearer worked in the industry for four years. He has worked on thousands of construction jobs, most of them working on foundation and structural issues. Shearer had a supervisory role in more than half of the projects. Appellees moved to tender Shearer as an expert in the field of construction, specifically foundation and structure. Appellants objected. The trial court overruled the objection and found Shearer an expert witness in construction, specifically in foundations.
{¶16} A friend of Shearer's asked if he would be interested in helping Gedraitis on a project. Shearer called Gedraitis. Gedraitis told Shearer he was going to lay the block himself, but wanted a price on building a garage or an addition. Ultimately, Shearer did not assist Gedraitis with the project. However, in October of 2019, appellees contacted Shearer to request an assessment of damages, and wanted an estimate of what it would cost to repair. Shearer inspected the home in October of 2019. He prepared Exhibit C, an estimate and report of what it would cost to repair appellees' home.
{¶17} Shearer described the home as older and, when he inspected it, the house was falling in various spots. When Shearer saw the home in October of 2019, the house itself was still sitting on jacks. The house was very uneven, the plaster was cracked, the floors were uneven, and there was a lot of variation in the level of the house that was resulting in breakage. He specifically noted the following issues: uneven walls, uneven floors, structural cracking, failing plumbing and electrical, damaged plumbing pieces such as a water heater and water softener, an electric panel hanging from the ceiling, wires all over the place, cracked siding that was bubbled and sticking out from the building, and waves and dips in the roof. In Shearer's experience, these issues are generally caused by highly uneven foundations. Shearer described the work that had been done to the house as "extremely poor." Shearer stated in order to repair the house, it had to be jacked up completely as one unit, leveled out slowly, and then set back down. Shearer testified that, in his professional opinion, Gedraitis breached the duty to perform work in a workmanlike manner. Further, in his professional opinion, the value of damages to the property caused by Gedraitis was "$212,000 plus."
{¶18} On cross-examination, Shearer stated he has never seen the contract between the parties. Shearer stated he is twenty-five years old. He has worked for Curry Lumber, Raber Brothers, and himself. As to whether a spring could have caused the water damage in the house, Shearer testified he did not see a spring on the property. Rather, there was water coming through the walls, coming from the floor, and "coming from everywhere."
{¶19} On re-direct, Shearer stated that to lift a foundation, all four corners should be lifted at once in order to keep the house straight. However, on appellees' house, some corners were sitting on upright railroad ties, other parts were sitting on jacks on the foundation, and other parts were on I-beams. Shearer believes a house should be lifted for no more than a month.
{¶20} Gedraitis is the sole member of Northeast Fixtures, LLC. Gedraitis prepared Exhibit A, and entered into the contract with appellees. Gedraitis stated Luke's name does not appear on the contract, and the drawings contained in Exhibit A were drawn by Gedraitis. When asked if he completed the contract by March 15, 2019, Gedraitis stated, "no," and stated it was because he was not given the opportunity to complete the project.
{¶21} Gedraitis admitted sending a 1099 to Luke and stated it was for "working at his mom's house, the money that he had received." Gedraitis stated Luke was paid by the job. Gedraitis testified the basement job at appellees' house was Luke's job. Gedraitis stated he did not know why he did not have Luke fill out the paperwork and sign the contract. According to Gedraitis, Luke quoted the project and told Gedraitis how much the basement would be, Gedraitis added $2,500 to it, and gave appellees the contract. Gedraitis told appellees he not going to do the labor. Gedraitis testified, "I was going to help, aide, but I was not going to be the guy to go down there and actually dig out a basement." Gedraitis testified he was not the person in charge. Further, that when the cribbing was done and the house was jacked up, he was at work at the College of Wooster. Gedraitis went to the project almost every day and reviewed what Luke and the other workers had done. He sometimes made suggestions as to what to do next, but sometimes they did things differently than he suggested. Specifically, as to the cribbing, the initial cribbing was done as he instructed, but Luke used posts, contrary to Gedraitis' instructions.
{¶22} Gedraitis left the project in October of 2019 after he received a certified letter from appellees' attorney. Gedraitis denied damaging appellees' home and testified he did not instruct anyone to do work that damaged the home.
{¶23} Gedraitis testified he had a duty to appellees to provide the work in a workmanlike manner. When asked if the work was done in a workmanlike manner, Gedraitis testified it was done "to the best of his ability regarding the situation." He does not believe all of the work he did needs to be torn out, but testified he could not level the block because Luke did not dig it out correctly. When asked if the way he left the premises is an adequate state for the house to be placed down, Gedraitis testified "probably not" because he planned on pouring the block and add more strength in some places. If he was allowed to finish the project, it probably would have taken him 40 or 45 hours. Gedraitis disputed Shearer's testimony about the status of the project.
{¶24} The first draw was paid. Gedraitis went to the bank and asked if he could split the second draw in half to continue work. At the time of the second draw, Luke was not working, as he left the project in February. As to the down payment of $25,000, Gedraitis was going to give appellees the money back as the draws came in.
{¶25} On cross-examination, Gedraitis testified he personally worked on the basement of the house, and had subcontractors working for him on the property. He laid all of the block on the property. Gedraitis classified himself as the contractor on the property, but not the "general contractor." Gedraitis believes the subcontractors should be held liable, but he did not have a subcontractor agreement with any of the subcontractors working on appellees' property.
{¶26} The magistrate issued a detailed decision on February 24, 2022. The magistrate made the following findings of fact: when the work started in 2018, Gedraitis, in addition to performing work himself, served as the general contractor and used a small group of workers to perform renovations on the home; Luke Morris worked on the project from October 2018 to February 13, 2019; Luke and the other workers were supervised by Gedraitis who provided the materials and equipment, along with preparing the drawings and specifications for the project; Gedraitis gave workers specific instructions on what work he wanted them to complete and how they were to complete those tasks, even when he was not at the site, Gedraitis directed the work; Gedraitis participated in the vast majority of the work involving the actual lifting of the home which began in November of 2018; after Luke Morris left the project, Gedraitis performed most of the work himself such as excavating around the house, laying block, and tearing down the garage; during the construction process, serious issues began arising in the home, including highly uneven floors, hardwood floors separating, walls cracking, ceilings cracking, walls separating from the ceiling, and water in the basement; Gedraitis himself would not even testify the work was done in a good workmanlike manner; appellants never completed the contracted-for project; seven months after the agreed-upon completion date, the home remained, in part, on jacks; Shearer found Gedraitis violated his duty to complete the work in a workmanlike manner; Shearer believes the structural integrity of the home is failing, the foundation was highly uneven, and the flooring is uneven which was caused by Gedraitis' failure to install adequate support beams; Shearer observed cracked plaster, damage to the roof, damage to the plumbing, and an electrical panel hanging from the ceiling; Shearer testified that to repair the foundation, the home would have to be completely lifted up again, leveled, and set back down; and Shearer estimated the cost to repair the damage to the home and complete the tasks appellants were originally contracted to perform would be $211,980.00
{¶27} The magistrate made additional findings as to appellants' primary defense at trial, that Luke was the one responsible for the job. These findings are as follows: the evidence does not support appellants' contention that Luke was responsible for the job; Gedraitis entered into a written contractual agreement to perform the work; when asked why he signed the contract if Luke was the actual contractor, Gedraitis had no explanation; appellants accepted money from appellees for the work; Gedraitis paid the workers, including Luke; in order to receive the draws from the bank, Gedraitis signed an affidavit stating he is the "original contractor"; appellees, Luke, and Shearer all offered credible testimony that Gedraitis was the general contractor on the job, not Luke; in his communications with appellees, Gedraitis referred to Luke as a subcontractor; and the contention that Luke is the responsible party is without merit.
{¶28} As to appellees' negligence claim, the magistrate found appellants violated their duty to appellees by failing to perform the work in a good workmanlike manner. While the home was in good condition and without significant defects prior to the beginning of the project in October of 2018, appellants proximately caused significant damage to the home. The magistrate found appellees established their negligent construction claim by a preponderance of the evidence. As to damages for negligence, the magistrate found the proposed repairs are not reasonably capable of being accomplished due to the failing of the structural integrity of the home. Thus, appellees are entitled to the total prior value of their home, $69,690. Further, appellees are entitled to reimbursement for all funds they have paid to appellants, which is $22,375 for the first draw, $11,187.50 for the second draw, and $15,500 appellants still owe appellees from the original down payment. The total amount of damages the magistrate awarded to appellees on the negligence claim was $118,752.50.
{¶29} With regard to appellees' breach of contract claim, the magistrate found Exhibit A was a valid contract. The magistrate determined appellees performed their duties under the contract, as they paid $25,000 for the down payment, and procured a bank loan to pay appellants through four separate draws as they completed various stages of the project. The magistrate found appellants breached the contract by failing to complete the project by March 15, 2019, and by failing to perform the work in a good workmanlike manner, as appellants caused significant damage to the home. Further, that appellees have sustained damages as a result of the breach.
{¶30} The magistrate found appellees did not establish damages in the amount of $211,980 as they requested, as Shearer's written estimate and/or testimony did not set forth specific figures for all of the work to be performed. Further, appellees did not establish the work Shearer proposed is the work needed to place the home in the condition contemplated by the parties. The magistrate stated it was "not questioning the credibility of Luke Shearer, but rather whether the work he is proposing is indeed intended to place the Plaintiffs' home in the condition contemplated by the parties." The magistrate also noted Shearer had not seen the parties' contract. The magistrate found the appropriate measure of damages for breach of contract is $118,752.50, which includes the total original value of the home and all money appellees paid to appellants.
{¶31} The magistrate addressed the individual liability of Gedraitis, and found Gedraitis is personally liable for his negligence in this case because he was directly involved in causing the damage to the home. The magistrate concluded that Northeast Fixtures, LLC, and Gedraitis are jointly and severally liable to appellees in the amount of $118,752.50, with interest from the date of judgment.
{¶32} Appellants filed objections to the magistrate's decision. Appellees filed a memorandum in opposition to the objections.
{¶33} The trial court issued a judgment entry on August 23, 2022, and specifically addressed and overruled each of appellants' objections. As to appellants' first objection that appellees failed to provide an expert report for any witness called at trial in violation of Local Rule 20.10(E)(4), the trial court found Local Rule 20 concerns specific procedures in domestic relations cases. Further, appellants did not raise the issue at trial, and thus waived the issue. Second, appellants argued appellees failed to lay an adequate foundation for Shearer to testify as an expert. The trial court found Shearer's testimony regarding his observations of the structural integrity of the home, the issues concerning the foundation of appellees' home, and the harm caused to other parts of appellees' home purportedly due to the issues with the foundation, relates to matters beyond the knowledge or experience possessed by laypersons. The trial court found Shearer was properly qualified as an expert based upon his experience, i.e., ownership of a company that specializes in foundations and overall working in the construction industry for nine years, with most projects involving foundation and structural issues. Finally, the trial court found Shearer's testimony complied with Rule 703 because Shearer personally inspected the home in October of 2019, and his testimony was based upon his own perceptions of the home.
{¶34} As to appellants' contention that the magistrate calculated the damages on the negligent construction claim solely based upon the unqualified testimony of a lay witness, the trial court found the magistrate did not adopt Shearer's damage calculation. Rather, the magistrate determined the home could not repaired for a reasonable cost, and then determined what amount of damages would make appellees whole. Fourth, appellants argued appellees could not recover on a negligence claim when a valid contract existed. The court noted the magistrate found appellants are liable for both breaching the contract and breaching the duty imposed upon them by law to perform their work in a workmanlike manner. The trial court found the cases cited by appellants distinguishable, as the cases deal with circumstances in which a litigant attempted to pursue a negligence action when the underlying duty was created solely through a contractual agreement. However, in this case, the duty to perform the work in a workmanlike manner did not arise solely from the contract; rather, it is also imposed by common law. Further, appellees sustained both property damage in addition to economic loss.
{¶35} In their fifth objection, appellants contend the court should not adopt the magistrate's decision as to liability under the breach of contract claim because the finding is based entirely upon Shearer's impermissibly testimony. The trial court overruled the objection based upon its previous analysis of Shearer's testimony being admissible expert testimony. In their sixth objection, appellants contend the test for piercing the corporate veil is not met and thus Gedraitis is not individually liable. The trial court noted the magistrate did not pierce the corporate veil, but found Gedraitis was liable for his own negligence, as he was directly involved in causing damage to the home.
{¶36} The trial court adopted the magistrate's decision and entered judgment in favor of appellees against appellants, jointly and severally, in the amount of $118,752.50, with interest at 3% per annum from the date the judgment entry is filed.
{¶37} Appellants appeal the August 23, 2022 judgment entry of the Ashland County Court of Common Pleas and assign the following as error:
{¶38} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING AN EXPERT REPORT AT TRIAL WHEN NO EXPERT REPORT WAS EXCHANGED AS REQUIRED UNDER THE COURT'S CASE MANAGEMENT ORDER AND THE LOCAL RULES OF ASHLAND COUNTY COURT OF COMMON PLEAS.
{¶39} II. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE TESTIMONY OF LUKE SHEARER BECAUSE HIS TESTMIONY DID NOT RELATE TO MATTERS BEYOND THAT OF LAYPERSONS AS REQUIRED UNDER EVID. RULE 702(A).
{¶40} III. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE TESTIMONY OF LUKE SHEARER BECAUSE HE HAD NO SPECIALIZED KNOWLEDGE, SKILL, EXPERIENCE, TRAINING, OR EDUCATION REQUIRED UNDER EVID. RULE 702(B).
{¶41} IV. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE TESTIMONY OF LUKE SHEARER BECAUSE HIS TESTIMONY WAS NOT BASED ON RELIABLE SCIENTIFIC, TECHNICAL, OR OTHER SPECALIZED INFORMATION REQUIRED UNDER EVID.R. 702(C).
{¶42} V. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT APPELLANTS WERE LIABLE FOR NEGLIGENCE WHEN IT ALSO FOUND NO BREACH OF CONTRACT.
{¶43} VI. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING WILLIAM GEDRAITIS LIABLE FOR TORTIOUS ACTS OF NE FIXTURES.'
I.
{¶44} In their first assignment of error, appellants contend the trial court abused its discretion in allowing an expert report (Exhibit C) at trial when no expert report was exchanged as required under the court's case management order and the local rules of the Ashland County Court of Common Pleas. Exhibit C is a document prepared by Shearer, who testified it contains an estimate and report of what it would cost to repair appellees' home due to appellants' breach of duty and negligent work.
{¶45} Appellants argue appellees did not comply with Ashland County Local Rule 20.10(E)(4), which provides, "counsel shall exchange any reports of expert witnesses expected to be called at trial, and discuss the potential stipulation of any such reports, without the need for expert testimony." However, Ashland County Local Rule 20 is entitled "Specific Procedures in Domestic Relations Cases." Rule 20.10 describes when a trial court will hold a pretrial in a domestic relations case (contested divorce, annulment, legal separation), and further details the responsibility of counsel at the pre-trial conference, including exchanging expert reports. However, the case at issue is a civil negligence and breach of contract case, not a domestic relations case. Accordingly, Ashland County Local Rule 20.10(E)(4) is not applicable to this case.
{¶46} Further, in their brief, appellants attempt to classify Exhibit C as both an expert report and not an expert report. Appellants state in their brief "nor was it [Exhibit C] an expert report that contained expert opinion," Exhibit C is "nothing more than an estimate," and "[Exhibit C] does qualify as an expert report." Despite this confusion, we find the question at issue is whether the trial court abused its discretion in admitting Exhibit C when the magistrate's order required appellees to identify their expert reports by November 21, 2020.
{¶47} While appellants objected to the admission of Exhibit C at trial, they did not do so on the basis that it violated the local rules and/or the magistrate's order. Appellants did not object to Exhibit C when Shearer testified about it. Rather, at the conclusion of appellees' case, when the magistrate asked if appellants agreed to the admission of each exhibit, counsel for appellants stated, "we do not agree to that, Your Honor," with regard to Exhibit C. Appellants did not verbally at trial, or in writing prior to trial, file a motion to exclude Exhibit C or Shearer's testimony. We find appellants have waived the issue as they failed to raise any alleged discovery violations prior to or during the trial in this matter. State v. Johnson, 5th Dist. Richland No. 12 CA 61, 2013-Ohio-1961.
{¶48} However, even if we consider appellants' argument, we find the trial court did not abuse its discretion in declining to invoke the sanction of excluding Shearer's testimony. We have generally recognized that a trial court has the inherent authority to manage its own proceedings and control its own docket. Love Properties, Inc. v. Kyles, 5th Dist. Stark No. 2006CA00101, 2007-Ohio-1966. The admission or exclusion of evidence rests in the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). Appellants allege a discovery violation occurred in this case because Exhibit C, Shearer's report, was not exchanged pursuant to the magistrate's order. Civil Rule 37 details the procedures available to a party seeking to correct discovery-related problems. Jacobs v. Hall, Stark App. No. 1998CA00246, 1999 WL 976459 (Oct. 4, 1999). The exclusion by the trial court of reliable and probative evidence under Civil Rule 37 is a "severe sanction and should be invoked only when clearly necessary to enforce willful noncompliance or to prevent unfair surprise." Nickey v. Brown, 7 Ohio App.3d 32, 454 N.E.2d 177 (9th Dist. Summit 1982). "Courts typically exclude a party's expert testimony for failure to disclose the subject matter of that testimony when the subject matter is revealed for the first time at trial and the opposing party had no reason to anticipate it." Wright v. Suzuki Motor Corp., 4th Dist. Meigs App. No. 03CA2, 03CA3, 03CA4, 2004-Ohio-3494.
{¶49} In this case, there was no unfair surprise, and appellants had reason to anticipate the introduction of Exhibit C at trial. Appellees attached Exhibit C to the following documents: appellees' complaint filed in 2019, appellees' motion for summary judgment filed in November of 2020, appellees' exhibit list dated November 8, 2021, and appellees' renewed motion for summary judgment filed in May of 2021. Additionally, appellees identified Shearer as a witness on November 8, 2021 in their pre-trial statement filed with the court and in a letter to counsel for appellants. Appellees disclosed Shearer's name and the general subject matter of Shearer's expertise long before the trial in this case. At trial, counsel for appellants thoroughly cross-examined Shearer about Exhibit C.
{¶50} Finally, even if the trial court did commit error in admitting Exhibit C, such error is harmless because appellants have not demonstrated the admission of the exhibit affected their substantial rights, as, even if the error had not occurred, the trier of fact would probably have made the same decision. Hallworth v. Republic Steel Corp., 153 Ohio St. 349, 91 N.E.2d 690 (1950), paragraph three of the syllabus. Neither the magistrate nor the trial court utilized Exhibit C in their damages calculation. Rather, the magistrate found, and the trial court agreed, that the damages were the auditor's value of the home plus the sum appellees paid to appellants. These numbers came from different exhibits and testimony by other witnesses at trial.
{¶51} Appellants' first assignment of error is overruled.
II., III., IV.
{¶52} In their second, third, and fourth assignments of error, appellants contend the trial court abused its discretion in permitting the testimony of Shearer as an expert. Specifically, appellants contend: Shearer's testimony did not relate to matters beyond that of a layperson as required under Evidence Rule 702(A), Shearer had no specialized knowledge, skill, experience, training, or education as required by Evidence Rule 702(B), and Shearer's testimony was not based on reliable scientific, technical, or other specialized information as required by Evidence Rule 702(C). We disagree with appellants.
{¶53} "A trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake County, 58 Ohio St.3d 269, 569 N.E.2d 1056 (1991). Ordinarily, "any decision concerning the admission or exclusion of expert testimony will not be disturbed absent an abuse of discretion." State v. Burks, 3rd Dist. Shelby No. 17-10-27, 2011 -Ohio-3529. The abuse of discretion standard if more than an error of judgment; it implies the court ruled arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶54} We first note that there is no per se rule requiring expert testimony in workmanlike-construction cases. Floyd v. United Home Improvement Center, Inc., 119 Ohio App.3d 716, 696 N.E.2d 254 (2nd Dist. Montgomery 1997); Alford v. East Ohio Gas Co., 5th Dist. Tuscarawas No. 2013AP030014, 2014-Ohio-2134 (expert testimony is not always required to establish negligence); Stull v. Budget Interior, 7th Dist. Belmont No. 02 BA 17, 2002-Ohio-5230 (expert testimony not mandated in all negligent construction cases); Simpson v. American International Corp., 8th Dist. Cuyahoga No. 101183, 2014-Ohio-4840 (in some cases, negligent construction causes of action may not require an expert). However, we find no abuse of discretion in the trial court's admitting the testimony of Shearer as an expert.
{¶55} Evidence Rule 702 governs the admissibility of expert testimony. It provides:
A witness may testify as an expert if all of the following apply:
(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness' testimony is based on reliable, scientific, technical, or other specialized information * * *
{¶56} Appellants first argue the trial court abused its discretion in admitting Shearer's testimony because his testimony did not relate to matters beyond that of laypersons as required under Evidence Rule 702(A).
{¶57} Upon review of the record, we find no abuse of discretion in the trial court's finding that Shearer's testimony related to matters beyond that of laypersons. Shearer described how he inspected the home and what he found specifically as to the structural damage to the foundation of the home. He testified as to how to appropriately set up cribbing, how to properly lift a house, and how long it takes to cure block footers. He explained that when a house is set on jacks, there should be steel beams placed across the center of the house resting on the foundation to keep everything straight, and testified that was not done in this case, so the flooring of the house caved it. We find no abuse of discretion in finding this knowledge about construction and structural foundation is beyond the experience or knowledge of a layperson. Campagna v. Clark Grave Vault Co., 10th Dist. Franklin No. 00AP-605, 2001 WL 721808 (no abuse of discretion in finding ordinary layperson does not have experience or knowledge relating to securing and tarping loads of steel).
{¶58} Appellant next contends Shearer does not have any specialized knowledge, skill, experience, training, or education regarding the subject matter of his testimony, and that his testimony was insufficient to qualify him under Evidence Rule 702(B).
{¶59} Evidence Rule 702(B) addresses the qualifications necessary to accord a witness "expert" status. Under the rule, a witness may qualify as an expert if the witness has specialized knowledge, experience, training, skill, or education to help determine a fact at issue. However, this does not require the witness to have a college degree in order to be qualified as an expert. State v. Mack, 73 Ohio St.3d 502, 643 N.E.2d 329 (1995). Neither special certification or education is necessary to confer expert status upon a witness. State v. Foust, 105 Ohio St.3d 127, 823 N.E.2d 836 (2004). "The individual offered as an expert need not have complete knowledge of the field in question, as long as the knowledge he or she possesses will aid the trier of fact in performing its fact-finding function." Id. An expert witness is not required to be the best witness on the subject, but his or her testimony must assist the trier of fact in the search for the truth. Alexander v. Mt. Carmel Med. Ctr. 56 Ohio St.2d 155, 383 N.E.2d 564 (1978).
{¶60} The determination as to whether a witness possesses the qualifications necessary to allow his expert testimony lies within the sound discretion of the trial court. We find no abuse of discretion in this case, and find the knowledge Shearer possesses aids the trier of fact in performing its fact-finding function. Shearer testified that he has owned a construction business specializing in foundations and home additions for five years. Prior to that, he worked in the construction industry for four years. He has completed thousands of construction jobs, mostly working on foundation and structural issues. In over half of those jobs, he performed a supervisory role. Though he does not have a degree, he went through hands-on training with various professionals in the industry. Simply because Shearer does not have a degree or a certification in the subject matter does not mean he is ineligible to be deemed an expert. Homewood Homes, Inc. v. Helwig, 10th Dist. Franklin No. 08AP-406, 2009-Ohio-1699 (no abuse of discretion in finding witness had qualifications necessary to allow expert testimony when witness worked full-time in the home construction business and remodeled basements, bathrooms, and kitchens); Perrucci v. Whittington, 2nd Dist. Miami No. 2017-CA-33, 2018-Ohio-2968 (no abuse of discretion in finding witness properly qualified as an expert in carpentry when the witness had many years of experience as a carpenter); Schneble v. Stark, 12th Dist. Warren Nos. CA2011-06-063, CA2011-06-064, 2012-Ohio-3130 (witness credentials sufficient to qualify her as an expert because she had experience in the remodeling business). Counsel for appellants thoroughly cross-examined Shearer about his qualifications.
{¶61} Appellants also argue the trial court abused its discretion because Shearer's testimony is not based on reliable, scientific, technical, or other specialized information.
{¶62} A trial court's role in determining whether an expert's testimony is admissible under Evidence Rule 702(C) focuses on whether the opinion is based upon principles and methods that are reliable, not whether the expert's conclusions are correct or whether the testimony satisfies the proponent's burden of proof at trial. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 687 N.E.2d 735 (1998). The decision remains with the trial court judge and will be overturned on appeal only for an abuse of discretion. Id. We are also mindful that this was a bench trial, not a jury trial, and "we afford broad leeway to the trial court in deciding reliability of particular expert testimony." Knott v. Revolution Software, Inc., 181 Ohio App.3d 519, 2009-Ohio-1191, 909 N.E.2d 702 (5th Dist. Delaware).
{¶63} We find no abuse of discretion in the trial court's determination that Shearer's testimony is admissible under Evidence Rule 702(C). Shearer described how he came to the conclusion that appellants' work was not done in a workmanlike manner, which was by personally observing and inspecting the home, looking at the structural damage, looking at the foundation, measuring out the footer plot, and viewing and taking pictures of the basement and inside the home. Shearer described how to properly lift a house, and described, from his personal observations, how this house was not appropriately cribbed or jacked up. Shearer also testified as to how and why, upon his visual inspection, the house caved in. From Shearer's testimony and qualifications, it is clear Shearer was competent to provide reliable testimony. His background provided him with the requisite expertise necessary to opine about whether appellants completed their work on the home in a workmanlike manner, and whether the home was damaged beyond reasonable repair. See Donegal Mut. Ins. v. White Consol. Industries, Inc., 166 Ohio App.3d 569, 2006-Ohio-1586, 852 N.E.2d 215 (2nd Dist.); Campagna v. Clark Grave Vault Co., 10th Dist. Franklin No. 00AP-605, 2001 WL 721808 (June 28, 2001) (Evidence Rule 703(C) satisfied when expert-based testimony on his personal observations of the lot).
{¶64} Appellants again contend in their assignments of error that the "damages found by the trial court were solely based on the testimony of Shearer." However, as detailed above, the trial court found the amount of damages was not the amount testified to by Shearer, but was the auditor's value of the home plus the amount appellees paid to appellants. These amounts came from exhibits and the testimony of witnesses other than Shearer.
{¶65} Appellants' second, third, and fourth assignments of error are overruled.
V.
{¶66} In appellants' fifth assignment of error, appellants contend the trial court committed error, as a matter of law, in finding that appellants were liable for negligence when it also found no breach of contract.
{¶67} Appellants base their argument on the assertion that the magistrate and trial court "found no breach of contract" and "found that appellees were not entitled to any damages under a breach of contract claim." However, we find this assertion to be contrary to the language contained in both the magistrate's decision and the trial court's final judgment. The magistrate found the contract at issue is a "valid contractual agreement," that appellees performed their duties under the contract, appellants breached the contract, and appellees sustained significant damages as a result of the breach. The magistrate found that, as a result of appellants' breach of the contract, appellees established, by a preponderance of the evidence, damages in the amount of $118,752.50. The trial court also confirmed in its judgment entry that "Magistrate Lange * * * found that the Defendants are liable both for breaching the subject contract * * *." Accordingly, both the magistrate and trial court found appellants liable on the breach of contract claim.
{¶68} The trial court found appellants liable on appellees' claim for negligence, specifically, breaching the duty to perform the work in a workmanlike manner using ordinary care. Appellants contend the trial court committed error in finding a separate duty existed outside of the contract. We disagree. "The law is very clear in this state [Ohio] that the duty to perform in a workmanlike manner is imposed by common law upon builders and contractors." Rex Reliable Heating & Air Conditioning, Inc. v. Mellett Bldg. Partnership, 5th Dist. Stark No. CA 9092, 1993 WL 135732 (April 19, 1993); Velotta v. Leo Petronzio Landscaping, 69 Ohio St.2d 376, 433 N.E.2d 147 (1982) (failure to construct in a workmanlike manner is a duty imposed by law; is an action in tort); Floyd v. United Home Improvement Center, Inc., 119 Ohio App.3d 716, 696 N.E.2d 254 (2nd Dist. Montgomery 1997) (to prevail on a negligence claim for failure to perform in workmanlike manner, plaintiff must show defendant failed to exercise ordinary care and skill, and such failure proximately caused the damages).
{¶69} Finally, appellants argue the economic loss rule prevents recovery for negligence in this case. The economic loss rule generally prevents recovery in tort of damages for purely economic loss. Windsor Medical Center, Inc. v. Time Warner Cable, Inc., 5th Dist. Stark No. 2020CA00085, 2021-Ohio-158. The economic loss rule "stems from the principle that, in the absence of privity of contract between two disputing parties the general rule is there is no * * * duty to exercise reasonable care to avoid intangible economic loss or losses to others that do not arise from tangible physical harm to persons." Id. However, there are exceptions to the rule; one of the exceptions is that a plaintiff may pursue such a tort claim if it is "based exclusively upon a discrete, preexisting duty in tort and not upon any terms of a contract or rights accompanying privity." Id. Thus, "where a tort claim alleges a duty was breached independent of [a] contract, the economic loss rule does not apply." Id.
{¶70} We find the economic loss rule does not apply in this case to bar appellees' negligence claim. First, in the cases cited by appellants, the defendants suffered only economic loss. Corporex Dev. & Constr. Mgmt. v. Shook, Inc., 106 Ohio St.3d 412, 2005-Ohio-5409 (economic loss only; underlying duty created by a contract to which the defendant is not a party); Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 537 N.E.2d 624 (1989) (law of negligence does not provide remedy for solely economic losses); Floor Craft Floor Covering, Inc. v. Parma Community Gen. Hosp. Assn., 54 Ohio St.3d 1, 560 N.E.2d 206 (1990). However, in this case, appellees alleged in their complaint and testified they suffered more than economic damages, they also sustained damage to their property.
{¶71} Further, the cases cited by appellants hold that a plaintiff may not pursue a negligence action when the underlying duty is premised entirely upon the terms of a contract. Id. However, the duty in this case is not premised entirely upon the terms of the contract. Rather, a duty was breached independent of the contract, i.e., the duty to perform in a workmanlike manner imposed by common law upon builders and contractors. This duty would exist even if no contract existed. See Wolfe v. Continental Cas. Co., 647 F.2d 705 (6th Cir. 1981).
{¶72} Appellants' fifth assignment of error is overruled.
VI.
{¶73} In their last assignment of error, appellants contend the trial court erred, as a matter of law, in finding Gedraitis liable for the acts of Northeast Fixtures. Appellants argue the requirements of piercing the corporate veil "were not established by any evidence at trial" and, as to Gedraitis' personal liability for his own negligence, that "the facts are insufficient under Ohio law."
{¶74} Appellants assert the magistrate and trial court "clearly found that Mr. Gedraitis' liability resulted from piercing the corporate veil." We disagree. In its judgment entry, the trial court specifically states, "in his decision, Magistrate Lange did not pierce the corporate veil. Rather, Magistrate Lange found that Defendant Gedraitis is liable for his own negligence." Because neither the magistrate, nor the trial court, premised Gedraitis' individual liability upon the theory of corporate veil-piercing, we find appellants' arguments concerning that issue to be not well-taken.
{¶75} As to the finding of Gedraitis' personal liability for his own acts, our standard of reviewing the sufficiency of the evidence in a civil case is whether, after viewing the evidence in a light most favorable to the prevailing party, the judgment is supported by competent and credible evidence. Moran v. Gaskella, 5th Dist. Knox No. 2011-CA-21, 2012-Ohio-1158. Our role is to determine whether there is relevant, competent, and credible evidence upon which the fact-finder could base his or her judgment. Cross Truck Equipment Co. v. Joseph A. Jeffries Co., 5th Dist. Stark No. CA-5758, 1982 WL 2911. "In a civil case, in which the burden of persuasion is only by a preponderance of the evidence, rather than beyond a reasonable doubt, evidence must still exist on each element (sufficiency) and the evidence on each element must satisfy the burden of persuasion (weight)." Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972.
{¶76} The underlying rationale for 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 proferred testimony. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Accordingly, a trial court may believe all, part, or none of the testimony of any witness who appears before it. Rogers v. Hill, 124 Ohio App.3d 468, 706 N.E.2d 438 (4th Dist. 1998).
{¶77} Gedraitis was sued personally for his own actions. R.C. 1705.48(D) specifically provides:
This chapter does not affect any statutory or common law of this or another state that pertains to the relationship between an individual who renders a professional service and a recipient of that service, including, but not limited to, any contract or tort liability arising out of acts or omissions committed or omitted during the course of rendering the professional service.
{¶78} Accordingly, Gedraitis does not avoid being personally liable if he personally performed the work and committed the acts that formed the basis of the complaint, as, pursuant to R.C. 1705.48(D), a member of an LLC can be held personally liable for his or her "own acts or omissions." Denny v. Breawick, LLC, 3rd Dist. Hancock No. 5-18-12, 2019-Ohio-2066. "A corporate officer can be held personally liable for tortious acts he or she has committed and, under such circumstances, a plaintiff need not pierce the corporate veil to hold individuals liable who have personally committed such acts." State ex rel. Yost v. Leonard, 5th Dist. Stark No. 2020 CA 00113, 2021-Ohio-613.
{¶79} In this case, Gedraitis admitted that both his name, and the name of his company, was on the original contract. Further, he confirmed that only his name appeared on the second agreement stating he, personally, agreed to repay the $25,000 deposit.
{¶80} Further, there is competent and credible evidence to show Gedraitis personally performed work on the property. Shearer, Leslie, Jeanna, and Luke all testified that Gedraitis personally caused damage to the property. Leslie testified Gedraitis was there all day when the house was jacked up. Jeanna testified Gedraitis was personally working on the property after Luke stopped working on it. Luke testified Gedraitis personally supervised all of the work he did on the project. Gedraitis' testified as follows: prior to February 2019, he was helping Luke on the project, but after that, he personally did the work; he laid the block on the property; no one else laid block on the property; he "physically picked up and laid down almost every single block there;" he did all of the digging and excavation after Luke quit in February of 2019; in March of 2019, he poured the footer; in April of 2019, he personally backfilled and blocked; in July of 2019, he moved cribbing and excavated; in August, he was working on the project almost daily; in September of 2019, he worked on the foundation; and he personally jacked the middle jack in October of 2019.
{¶81} Accordingly, we find competent and credible evidence to support the trial court's determination that Gedraitis was personally liable for his own actions because he performed the work and committed the acts that formed the basis of the complaint.
{¶82} Appellants' sixth assignment of error is overruled.
{¶83} In their brief, appellees argue they are entitled to attorney fees for appellants' filing a frivolous appeal pursuant to App.R. 23. Upon due consideration, we deny appellees' request for attorney fees.
{¶84} Based on the foregoing, appellants' assignments of error are overruled. The August 23, 2022 judgment entry of the Ashland County Court of Common Pleas is affirmed. Appellees' request for attorney fees is denied.
By Gwin, P.J., Hoffman, J., and King, J., concur