Opinion
NO. 2011-CA-001896-MR
04-05-2013
EVANS LANDSCAPING, INC. APPELLANT v. JAMES PATRICK APPELLEE
BRIEFS FOR APPELLANT: W. Jonathan Sweeten Cincinnati, Ohio BRIEF FOR APPELLEE: Ryan M. Beck Florence, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE MARTIN J. SHEEHAN, JUDGE
ACTION NO. 06-CI-01488
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; KELLER AND MAZE, JUDGES. MAZE, JUDGE: Appellant, Evans Landscaping, Inc. (hereinafter "Evans"), appeals from the Kenton Circuit Court's award of compensatory damages in favor of Appellee, James Patrick (hereinafter "Patrick") following a bench trial. In light of the evidence on the record and the trial court's great discretion as a finder of fact, we hold that the award of damages was supported by substantial evidence, and we affirm.
Judge Michelle M. Keller concurred in this opinion prior to her appointment to the Kentucky Supreme Court. Release of this opinion was delayed by administrative handling.
Background
This appeal arises from Evans's use of a roadway which runs adjacent to and over Patrick's land. While working on a property adjacent to Patrick's property, Evans utilized this roadway in the movement of heavy equipment to the adjacent property. In the course of its work, a piece of heavy equipment belonging to Evans fell off the side of its trailer and onto Patrick's land, cracking the side of the roadway and cutting deep ruts into Patrick's yard. The local Sanitation District later patched portions of the damaged roadway with asphalt, but damage remained.
On June 1, 2006, Patrick filed suit against Evans for its intentional and negligent trespass upon his land. Patrick sought compensatory damages for harm to both the roadway and his yard, as well as for the loss of use of his land. On March 10, 2010, the trial court entered an order granting summary judgment as to liability in favor of Patrick. The issue of damages remained and proceeded to a bench trial on September 2, 2011.
A total of five witnesses testified at trial. Patrick called Paul Seta (hereinafter "Seta"), an employee of Greater Cincinnati Blacktop, as an expert on the cost of repairing the damage to his land. During his testimony, Seta opined that the patches subsequently placed over two of the damaged areas of the roadway would require excavation and more extensive repair to the "subgrade." Accordingly, he estimated it would cost $7,477.00 to repair the roadway. Seta further testified that repair to Patrick's yard would cost $4,400.00, basing this estimate on his opinion that a wide area of the yard would require re-grading and application of top soil.
Patrick also called Gene Weber ("Weber"), an architect, who testified, like Seta, that the patches installed by the Sanitation Department were not permanent repairs and should be excavated down to the "base" to properly repair the damage. Evans called Matt Brennan ("Brennan"), who testified that the subgrade of the roadway was not damaged, therefore less extensive and less costly repair was required. Brennan estimated the cost of repair would be $3,500.00. Evans also called its owner, Doug Evans, who testified that, as an expert in the field of landscaping, he estimated the repair costs to Patrick's land to be a mere $350.00. Mr. Evans testified that to repair the yard would require only cosmetic measures such as reseeding.
During rebuttal examination by Evans's counsel, Patrick was asked about an estimate he received from Eaton Asphalt ("Eaton"). This estimate listed the expected cost of repairing the yard as $1,500 and Patrick acknowledged as much. Counsel for Evans referenced the estimate and asked Patrick if he had seen the estimate before, but counsel did not introduce the estimate into the record at trial.
Following the trial, the trial court awarded Evans damages in the amount of $7,477.00 for repair of the roadway, concluding that Brennan under- estimated such cost. The trial court also awarded $1,500.00 for repair to Patrick's yard, concluding that, unlike on the roadway estimate, Seta had over-estimated the cost of repairing the yard. Also finding that Evans had under-estimated this cost, the trial court concluded that Eaton Asphalt's estimate of $1,500.00 was more appropriate. Finally, the trial court found no evidence in support of Patrick's claim for loss of use of his land. Evans's appeal regarding damages follows.
Standard of Review
Evans challenges the trial court's award of damages regarding repair of the roadway and yard. Appellate review of a trial court's findings of fact is governed by the rule that such findings shall not be set aside unless clearly erroneous. Kentucky Rules of Civil Procedure ("CR") 52.01; See also Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409 (Ky. 1998); Gosney v. Glenn, 163 S.W.3d 894 (Ky. App. 2005) and Alvey v. Union Inv., Inc., 697 S.W.2d 145 (Ky. App. 1985). "A factual finding is not clearly erroneous if it is supported by substantial evidence." Gosney at 898. Substantial evidence constitutes proof of facts which have sufficient probative value to permit a reasonable person to reach a factual determination. Clark v. Bd. of Regents of Western Kentucky University, 311 S.W.3d 726 (Ky. App. 2010). The trial court's conclusions of law, however, are subject to de novo review and an appellate court owes them no deference upon review. See Arnold v. Patterson, 229 S.W.3d 923 (Ky. App. 2007).
Analysis
On appeal, Evans asserts that the amount of the trial court's award of compensatory damages was not supported by substantial evidence. Specifically, Evans argues that evidence existed in the testimony of its witnesses that established the cost of repairing the damaged portions of the roadway and yard to be much lower than the court's award. Evans also argues that the trial court's reliance on Eaton's estimate of $1,500.00 was in error because his estimate was not in the record. We cannot agree.
This case amounted to a "battle of the experts," the winner of which the trial court had to decide. "Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, 'due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses' because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (quoting CR 52.01) (internal citations omitted). Based on the evidence and testimony before him, the trial court found Seta's testimony regarding a greater degree of damage to the roadway more credible and Eaton's estimate regarding the yard more reasonable. This judgment was squarely within the trial court's discretion as the finder of fact. The mere fact that Evans does not agree with the trial court's conclusions, and with those of the experts upon the trial court eventually based its findings, is insufficient to show clear error.
Substantial evidence existed in the record to support the trial court's award of damages regarding repair of both the roadway and Patrick's yard. Evans argues that the trial court based its findings as to the repair of Patrick's lawn on Eaton's written estimate, which was not entered into the record. However, this argument fails to acknowledge that Evans brought the fact of the Eaton estimate regarding the yard into the record during its examination of Patrick, placing that information before the trial court for its consideration. That the Eaton estimate itself was not extensively testified to or filed as an exhibit does not prohibit its consideration in light of the rest of the record; nor does it mean that it was not supported by substantial evidence.
Furthermore, Seta's testimony and documentary submissions constituted more than substantial evidence supporting the trial court's finding regarding the roadway. Complete with photographs and a detailed account of damage, the possibility of future damage and of the required repair to prevent such damage, Seta's written estimate, as well as his testimony to the same, were in the record and were substantial. Therefore, though conflicting testimony was presented, the evidence in support of Seta and Eaton was substantial and supported the trial court's findings.
Conclusion
The trial court did not commit clear error in judging the credibility of Seta's and Eaton's respective estimates to be the most credible in light of the evidence. To the contrary, the testimony and related exhibits at trial constituted substantial evidence supporting the trial court's findings. Therefore, we affirm the Kenton Circuit Court's order awarding damages to Patrick in the amount of $9,153.34.
ALL CONCUR. BRIEFS FOR APPELLANT: W. Jonathan Sweeten
Cincinnati, Ohio
BRIEF FOR APPELLEE: Ryan M. Beck
Florence, Kentucky