[Cite as Father & Son Property Maintenance, L.L.C. v. Maxim Ents., Inc.,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

FATHER & SON PROPERTY JUDGES: MAINTENANCE, LLC Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Plaintiff-Appellee Hon. John W. Wise, J.

-vs- Case No. 2010 CA 00116

MAXIM ENTERPRISES, INC. OPINION Defendant-Appellant

CHARACTER OF PROCEEDING: Civil Appeal from the Canton Municipal Court, Case No. 2009 CVF 5350

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 14, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

STEPHEN J. KANDEL DARREN W. DEHAVEN 101 Central Plaza South, Suite 1003 12370 Cleveland Avenue, NW Canton, Ohio 44702 Uniontown, Ohio 44685 Stark County, Case No. 2010 CA 00116 2

Wise, J.

{¶1} Defendant-Appellant Maxim Enterprises, Inc. appeals the April 13, 2010,

decision of the Canton Municipal Court finding in favor of Plaintiff-Appellee Father &

Son Property Maintenance, LLC, and granting judgment in the amount of $11,545.70.

STATEMENT OF THE CASE AND FACTS

{¶2} The relevant facts are as follows:

{¶3} Appellant Maxim Enterprises, Inc. ("Maxim") is a property preservation

company which, on behalf of banks and lenders, performs property preservation

services on foreclosed (and other) properties through several subcontractors.

{¶4} Appellee Father & Son Property Maintenance, LLC is one of those

subcontractors who performed property preservation services, such as lawn mowing, as

a subcontractor for Appellant Maxim in 2008.

{¶5} The contract terms between Maxim and Father & Son were never

memorialized in writing. Part of the agreement between the two parties was that Father

& Son had to take “before and after” pictures of the property. Also, Father & Son had to

complete the work on time, or they would not receive payment. Lastly, Maxim told

Father & Son that they would not receive payment until after Maxim received payment

from the bank.

{¶6} Although these conditions were presented to Father & Son as mandatory

before payment would be made, Maxim failed to comply with these conditions

precedent. From the beginning of the business relationship, Maxim supplied Father &

Son with work orders that were already past due. Maxim assured Father & Son that

they would be paid even though they were getting the orders late. Father & Son did the Stark County, Case No. 2010 CA 00116 3

work, and Maxim paid without waiting for the payment from bank. Terri Shisler, officer

manager for Father & Son, testified that Maxim would send her work orders, Father &

Son would perform the work, and then Maxim would pay.

{¶7} This relationship continued with Maxim paying approximately $63,602.90

to Father & Son for work performed. However, Maxim failed to pay Father and Son for

several invoices, totaling $14,045.70.

{¶8} On July 23, 2010, Appellee Father & Son filed a Complaint in the Canton

Municipal Court alleging breach of contract, action on account, and unjust enrichment

against Appellant Maxim Enterprises, Inc.

{¶9} On October 10, 2010, Maxim filed its Answer.

{¶10} On March 23, 2010, a bench trial was held before Judge Belden.

{¶11} On April 13, 2010, the Canton Municipal Court issued a Judgment Entry

finding for Plaintiff in the amount of $11,545.70. The trial court found that the

uncontested evidence showed that “Maxim paid Father & Son for at least some of the

work, work that had been piling up while Maxim located a subcontractor, without first

being reimbursed itself by the banks.” (April 13, 2010 Judgment Entry at 2). The trial

court found that such conduct on the part of Maxim “operated as a waiver of its rights

under the condition precedent” and that Father & Son was therefore, “entitled to be paid

for the work done that it can prove.” Id. at 3.

{¶12} Appellant now appeals, assigning the following errors for review: Stark County, Case No. 2010 CA 00116 4

ASSIGNMENTS OF ERROR

{¶13} “I. THE TRIAL COURT ERRED IN ITS APPLICATION OF THE

DOCTRINE OF WAIVER BY FINDING ANY WAIVER OF A CONDITION PRECEDENT

WAS PERMANENT.

{¶14} “II. THE TRIAL COURT ERRED IN CALCULATING THE AMOUNT OF

DAMAGES.”

I.

{¶15} In its first assignment of error, Appellant asserts that the trial court erred in

its application of the doctrine of waiver. We disagree.

{¶16} The construction and interpretation of a contract is a matter of law. See

Latina v. Woodpath Development Co. (1991),

, citing Alexander

v. Buckeye Pipe Line Co. (1978),

.

{¶17} When interpreting a contract, this Court's role “is to give effect to the intent

of the parties to the agreement.” Westfield Ins. Co. v. Galatis,

,

, ¶ 11, citing Hamilton Ins. Serv. Inc. v. Nationwide Ins. Cos. (1999),

; citing Employers' Liab. Assur. Corp. v. Roehm (1919),

,

syllabus; Section 28, Article II, Ohio Constitution.

{¶18} In the case sub judice, the parties never reduced their verbal agreement to

writing. However, the contract terms do not seem to be in dispute. The parties both

agree that the original terms of the contract were that Appellee would not be paid for

work performed after the due date and further Appellee would not receive payment for

work performed until after Appellant received payment from the bank. Stark County, Case No. 2010 CA 00116 5

{¶19} Appellee herein claims that although these were in fact the original terms

of the verbal contract, Appellant waived these conditions precedent from the very

beginning by giving Appellee work orders that were already past due and providing

assurances to Appellee that it would be paid for work orders issued past the due date.

Similarly, Appellant also paid Appellee on a number of occasions before it was paid by

the bank.

{¶20} A condition precedent is an act or event that must occur before the

agreement of the parties become operative. Johnston v. Cochran, Franklin App. No.

06AP-1065,

. If a condition precedent is not fulfilled, the parties

are excused from performing under the contract.

“Essentially, a condition precedent

requires that an act must take place before a duty to perform a promise arises. If the

condition is not fulfilled, the parties are excused from performing.” Atelier Dist., LLC v.

Parking Co. of Am., Inc., 10th Dist. No. 07AP-87,

, ¶ 35

{¶21} A condition precedent may be waived by the party for whose benefit it

existed. Cornett v. Fryman (Jan. 27, 1992), Warren App. No. CA91-04-031, at 5. A

waiver is an intentional relinquishment of a known right which may be made by express

words or by conduct. Id.; White Co. v. Canton Transp. Co. (1936),

,

. To establish a waiver, the party alleging it “must prove a clear, unequivocal,

decisive act of the party against whom the waiver is asserted, showing such a purpose

or acts amounting to an estoppel on his part.” Cornett at 5.

{¶22} “In Ohio, the general rule is that performance of a condition precedent

may be waived by the party to whom the benefit of the condition runs; the waiver may

arise expressly or by implication, and the key to its application in a particular case is a Stark County, Case No. 2010 CA 00116 6

showing of some performance pursuant to the terms of the contract.” Mangan v. Prima

Constr., Inc. (Apr. 9, 1987), 1st Dist. No. C-860234, citing Ohio Farmer's Ins. Co. v.

Cochran (1922),

.

{¶23} In the instant case, the record reflects that for at least the first month of

their agreement, Maxim paid Father & Son for work performed on late work orders,

without having first received payment from the bank. We find that Maxim performed its

part under the contract, i.e. paying for the mowing services, despite Father & Son's

failure to comply with the conditions precedent. We therefore find that Maxim is now

estopped from asserting such conditions precedent.

{¶24} Based on the foregoing, we do not find that the trial court erred in finding

that Appellant Maxim waived the conditions precedent.

{¶25} Appellant’s first assignment of error is overruled.

II.

{¶26} In its second assignment of error, Appellant argues that the trial court

erred in calculating damages. We disagree.

{¶27} A reviewing court will not reverse a trial court's decision regarding its

determination of damages absent an abuse of discretion. Kaufman v. Byers,

,

,

. In order to find abuse of

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore (1983),

,

.

{¶28} Upon review of the record and the evidence presented, we find the trial

court did not abuse its discretion in the determination of damages. The trial court heard Stark County, Case No. 2010 CA 00116 7

evidence from Appellee’s witness, Terri Shisler, who provided documentation in support

of the $11,545.70 Appellee claimed was owed for work performed.

{¶29} Thus, there exists competent and credible evidence in the record to

support the judgment of the trial court on the amount of damages awarded. While

Appellant claims that the trial court “ignored overwhelming evidence that [Father & Son]

substantially failed to meet its various requirements for payment, both before and after

the condition precedent took effect,” (Appellant’s brief at 6) , the weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of fact. Seasons

Coal Co. v. Cleveland (1984), 10 Oho St.3d 77; State v. DeHass (1967),

.

{¶30} Appellant’s second assignment of error is overruled.

{¶31} For the foregoing reasons, the judgment of the Canton Municipal Court,

Stark County, Ohio, is affirmed.

By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.

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JUDGES JWW/d 0201 Stark County, Case No. 2010 CA 00116 8

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

FATHER & SON PROPERTY : MAINTENANCE, LLC : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MAXIM ENTERPRISES, INC. : : Defendant-Appellant : Case No. 2010 CA 00116

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed.

Costs assessed to Appellant.

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JUDGES