LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT OMRAN …

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

OMRAN ABDUL-KHALIQ Plaintiff-Appellant

-vsANTHONY HREBLUK dba DECORATIVE CURB & CONCRETE

Defendant-Appellee

JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J.

Case Nos. 2019 CA 00114 and 2019 CA 00116

O P I N I O N

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES: For Plaintiff-Appellant OMRAN ABDUL-KHALIQ 924 Glenmore Avenue Newark, Ohio 43055

Civil Appeal from the Municipal Court, Case No. 18 CVH 01562 Affirmed

March 31, 2020

For Defendant-Appellee CARL MCCOY 57 East Main Street Newark, Ohio 43055

Wise, J. {?1} Plaintiff-Appellant Omran Abdul-Khaliq appeals the May 17, 2019, decision

of the Licking County Municipal Court finding in favor of Defendant-Appellee Anthony Hrebluk dba Decorative Curb & Concrete, following a bench trial, and the October 1, 2019, decision denying his Motion for a New Trial.

Accelerated Calendar {?2} Preliminarily, we note this case is before this Court on the accelerated calendar which is governed by App.R. 11.1. Subsection (E), determination and judgment on appeal, provides in pertinent part: "The appeal will be determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form." {?3} One of the important purposes of the accelerated calendar is to enable an appellate court to render a brief and conclusory decision more quickly than in a case on the regular calendar where the briefs, facts, and legal issues are more complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist. 1983). {?4} This appeal shall be considered in accordance with the aforementioned rules.

STATEMENT OF THE FACTS AND CASE {?5} The relevant facts and procedural history are as follows: {?6} On March 6, 2018, Appellant Omran Abdul-Khaliq filed a Complaint with Licking County Municipal County Small Claims Division.

{?7} On May 22, 2018, Appellant filed a Motion to Transfer the action to the General Division of the Licking County Municipal and an Amended Complaint for money damages.

{?8} The Complaint is predicated upon a purported agreement between the parties that, in exchange for two four-wheeler ATVs and additional cash, Appellee would perform work replacing Appellant's driveway and sidewalk and modify the porch to fit the new driveway. The agreement was entered into approximately 12 years ago.

{?9} On November 5, 2018, the matter proceeded to trial before the court. Appellant appeared pro se. Appellee was represented by counsel.

{?10} At trial, Appellant called two lay witnesses and called Appellee to testify as if on cross-examination. Appellee called Appellant to testify as if on cross-examination and testified on his own behalf during his case in chief.

{?11} On May 17, 2019, the trial court issued its Judgment Entry of Verdict finding there was no meeting of the minds between the parties regarding compensation resulting in an agreement which was uncertain and indefinite. The court found that Appellant received work valued at approximately $9,500.00, and Appellee received approximately $9,500.00 in cash and property in exchange for said work. The trial court found Appellant failed to show by a preponderance of the evidence that he was entitled to judgment on his claims.

{?12} Appellant now appeals, raising the following assignments of error for review:

ASSIGNMENTS OF ERROR {?13} "I. THE TRIAL COURT'S RULING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS HREBUK WAS IN BREACH OF CONTRACT FOR FAILURE TO COMPLETE THE PROJECT. {?14} "II. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT WHEN IT DENIED PLAINTIFF'S MOTION FOR NEW TRIAL WITHOUT MERIT."

I. {?15} In his first assignment of error, Appellant argues the trial court's verdict was against the manifest weight of the evidence. We disagree. {?16} This Court cannot disturb a trial court's decision as being against the manifest weight of the evidence if the decision is supported by some competent and credible evidence. C.E. Morris Company v. Foley Construction Company, 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). As noted by the Court in Sexton v. Haines, 5th Dist., Delaware App. No. 2010?CA?090067, 2011 -Ohio- 3531 at paragraph 13:

[W]e must be guided by the presumption that the trial court is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and to use these observations in weighing the credibility of the proffered testimony. Seasons Coal Company, Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. We must defer to the factual findings of the judge regarding the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, syllabus by the court, paragraph one. We may not substitute our judgment for that of the trier of fact. Pons v.

Ohio State Medical Board (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. A fact finder is free to believe all, part, or none of the testimony of each witness. Hill v. Briggs (1996), 111 Ohio App.3d 405, 412, 676 N.E.2d 547. {?17} In Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, paragraph 16 the Ohio Supreme Court described the requirements for formation of a contract:

A contract is generally defined as a promise, or a set of promises, actionable upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration. {?18} The Supreme Court has further explained that "[a] meeting of the minds as to the essential terms of the contract is a requirement to enforcing the contract." Id., citing Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991). And to be enforceable, "the contract must be definite and certain." Episcopal Retirement Homes, supra at 369, citing James Ward & Co. v. Wick Bros. & Co., 17 Ohio St. 159 (1867). The essential terms of a contract have been identified as `the identity of the parties to be bound, the subject matter of the contract, consideration, a quantity term and a price term.' " Fairfax Homes, Inc. v. Blue Belle, Inc., 5th Dist. Licking App. No. 2007CA00077, 2008?Ohio?2400, ? 19, citing Alligood v. Proctor & Gamble Co., 72 Ohio App.3d 309, 594 N.E.2d 668 (1991).

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