[Cite as Evans Landscaping, Inc. v. Stenger, 2011-Ohio-6033.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO

EVANS LANDSCAPING, INC., 

 Plaintiff-Appellant, 

 vs. 

TONY STENGER, 

 and 

SHARLA STENGER, 

 Defendants-Appellees. 

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APPEAL NO. C-110104 

TRIAL NO. A-0910954 

 

 

 

O P I N I O N.

 

 

Civil Appeal From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause 

Remanded 

Date of Judgment Entry on Appeal: November 23, 2011 

Anthony J. Muto, for Plaintiff-Appellant, 

David M. Blank, for Defendants-Appellees. 

 

 

Please note: This case has been removed from the accelerated calendar. 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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FISCHER, Judge.

{¶1} Plaintiff-appellant Evans Landscaping, Inc., (“Evans”) appeals the trial 

court’s judgment awarding defendants-appellees Tony and Sharla Stenger (the 

“Stengers”) $42,490 on their breach-of-contract and nuisance counterclaims against 

Evans relating to the construction of a pond. Evans also appeals the trial court’s 

judgment awarding Evans $8,389 on its claim for breach of contract against the 

Stengers for unpaid landscaping work. For the reasons discussed below, we reverse 

that part of the trial court’s judgment awarding the Stengers loss-of-use and 

annoyance-and-inconvenience damages, and we also reverse the trial court’s 

judgment awarding Evans $8,389, instead of $8,329. We affirm the remainder of 

the trial court’s judgment. 

Factual and Procedural Background 

{¶2} In 2008, the Stengers hired David Habig of Evans to perform 

numerous landscaping services for their home in Walton, Kentucky, including 

constructing a fish pond, installing a fire pit and stone bench, and delivering plants. 

Evans estimated that the pond would cost the Stengers $20,000 to $25,000. The 

parties did not enter into a written contract, and instead Evans sent the Stengers 

invoices as the work progressed. Evans began the landscaping work, and at first the 

Stengers were pleased with Habig’s management. 

{¶3} By mid-June 2008, Evans had completed the pond. Soon after the 

completion date, however, the pond began to leak. Evans tried multiple times to find 

the source of the leak, and also made multiple repairs, but the water level of the pond 

continued to drop inexplicably. The water level fell so low that, as Mrs. Stenger 

testified, the pond was “nothing but green scum.” Because of the unsightly pond, 
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and the mosquitoes that swarmed around it, the Stengers could not use their 

backyard. The Stengers became increasingly frustrated with Evans’s attempts to 

repair the pond, and eventually, they stopped making payments on the invoices that 

Evans sent to them. 

{¶4} Evans filed a complaint in Hamilton County Municipal Court in March 

2009 against Mr. Stenger, which Evans eventually amended to add claims against 

Mrs. Stenger as well. The amended complaint alleged that the Stengers owed Evans 

$11,525.86, plus interest, on three invoices for the pond, plants, mulching, and the 

stone bench. Evans also alleged that the Stengers owed $8,798.77 for plants under a 

fourth invoice. 

{¶5} In June 2009, well after the filing of the initial complaint, Evans’s 

workers attempted to repair the pond once again, and in doing so, left dead fish 

scattered in the Stengers’ backyard. As a result of this repair attempt, the Stengers 

had a meeting with Habig and another Evans employee to discuss the pond. When 

the Stengers could not reach a solution with Evans, they decided to rebuild the pond 

themselves. 

{¶6} Mrs. Stenger testified that, before beginning the rebuilding project, she 

and her husband had hired Chris Dickerson of Gardens of Water to design the pond 

and to give advice on the proper method of construction. Dickerson charged the 

Stengers $4,272.80 for his services. The Stengers deconstructed and reconstructed 

the pond in 16 days with the help of hired workers, and they completed the pond by 

October 2009 at a cost of $24,990. Mrs. Stenger testified that she kept notes on all 

the expenses incurred as a result of the project, which included replacement fish, 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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materials, equipment rental, payments made to hired workers for their labor, as well 

time spent for their own labor. 

{¶7} The pond was not the only problem that the Stengers had with Evans’s 

performance. Evans also delivered various plants to the Stengers, which Evans had 

guaranteed would live for at least one year. The Stengers received the invoice for the 

plants in October 2009 in the amount of $8,798.77. Mrs. Stenger testified that not 

all of the invoiced plants were delivered, that some of the plants were returned, and 

that some of the plants did not live through the one-year period. 

{¶8} The Stengers filed counterclaims against Evans for breach of contract 

with regard to the construction of the pond, and for nuisance, alleging that Evans 

had had a duty to construct the pond in a workmanlike manner and that Evans had 

breached that duty, negligently creating a nuisance on their property. The Stengers 

also alleged a breach-of-contract claim with regard to the plants. The action was 

eventually transferred to the Hamilton County Court of Common Pleas, where it 

proceeded to a bench trial. 

{¶9} At trial, Habig testified that he was not experienced in pond 

construction and that, because the pond had continually leaked, at some point it had 

to be reconstructed. Habig took issue with the Stengers’ calculation of damages. He 

testified that, in his opinion, the Stengers could have deconstructed and 

reconstructed the pond in less time and for less money. Habig also testified as to the 

unpaid invoices owed to Evans. Contrary to the Stengers’ allegations, Habig testified 

that all the invoiced plants had been delivered. 

{¶10} The trial court determined that the Stengers had proved their breachof-contract claim with regard to the pond. The trial court found that the pond had 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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not been constructed as agreed. From this finding, the trial court concluded that 

Evans owed the Stengers cost-to-repair damages in the amount of $24,990. 

{¶11} The trial court also determined that the Stengers had proved that 

Evans had negligently created a nuisance on the Stengers’ property. The trial court 

found that the Stengers had been subjected to annoyance and inconvenience by the 

failed repair attempts, and that the Stengers had suffered the loss of the use of their 

property. The trial court concluded that the Stengers had suffered $10,000 and 

$7,500 in damages for their loss of use and for their annoyance and discomfort, 

respectively. 

{¶12} The trial court also found that Evans had not delivered all the plants as 

agreed upon, and that not all of the delivered plants had lived through the one-year 

guaranteed period. The trial court found that the Stengers had acknowledged that 

they owed Evans $8,389, which included mulching, installing the stone bench, and 

the cost of the plants less those plants that had not been delivered or had not lived. 

The trial court then entered judgment for Evans on its breach-of-contract claim in 

the amount acknowledged by the Stengers. Evans now appeals from the trial court’s 

judgment. 

Contract Damages Versus Tort Damages 

{¶13} In Evans’s first assignment of error, Evans argues that the trial court 

erred in awarding the Stengers damages for nuisance and for loss of use. 

{¶14} Evans argues that under the rule in Ohio Collieries Co. v. Cocke (1923), 

107 Ohio St. 238, 140 N.E. 356, where real property has been damaged, although not 

irreparably, the property owner is limited to damages for the reasonable cost to 

restore the property and for the reasonable value of the loss of use of the property 
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during the damaged period. The Stengers respond that the Ohio Collieries rule has 

been expanded to allow for the recovery of damages for personal annoyance and 

discomfort. See, e.g., Denoyer v. Lamb (1984), 22 Ohio App.3d 136, 138-139, 490 

N.E.2d 615 (applying 4 Restatement of the Law 2d, Torts (1965), Section 929, which 

allows damages for costs to repair the property, loss of use of the property, and 

personal annoyance and discomfort in cases where property has been damaged, but 

not totally destroyed). 

{¶15} Although the parties seemingly agree that the Ohio Collieries rule of 

damages in a tort action applies to the Stengers’ counterclaims, we determine that 

the Ohio Collieries rule has no applicability in this situation, and that the Stengers 

are limited to the recovery of contract damages only. 

{¶16} The Stengers’ counterclaims alleged claims under both tort and 

contract law. The Stengers alleged a breach-of-contract claim against Evans for its 

failure to complete the construction of the pond as expected. They also alleged that 

Evans had had a duty to construct the pond in a workmanlike manner, and that 

Evans had breached that duty, negligently creating a nuisance on their property. In 

general, where a contract action exists against a breaching party, a tort claim based 

upon the same underlying actions cannot coexist with the contract action, unless the 

breaching party also breached a duty owed independent of the contract. Textron Fin. 

Corp. v. Nationwide Mut. Ins. Co. (1996), 115 Ohio App.3d 137, 151, 684 N.E.2d 

1261. The only duty alleged to have been breached by Evans was the duty to perform 

in a workmanlike manner. 

{¶17} The duty of a builder or contractor to perform in a workmanlike 

manner is implied by the common law. Barton v. Ellis (1986), 34 Ohio App.3d 251, 
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252, 518 N.E.2d 18, citing Mitchem v. Johnson (1966), 7 Ohio St.2d 66, 218 N.E.2d 

594; Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 433 

N.E.2d 147. In Kishmarton v. William Bailey Constr., Inc., 93 Ohio St.3d 226, 2001-

Ohio-1334, 754 N.E.2d 785, paragraph one of the syllabus, the supreme court held 

that where a home builder and resident enter into an agreement for the future 

construction of a home, the resident’s cause of action for breach of an implied duty to 

build the home in a workmanlike manner arises out of the contract, ex contractu. By 

contrast, the supreme court held in Velotta, 69 Ohio St.2d at paragraph one of the 

syllabus, that “[a]n action by a vendee against the builder-vendor of a completed 

residence for damages proximately caused by failure to construct in a workmanlike 

manner using ordinary care * * * is an action in tort * * *.” (Emphasis added). 

Therefore, if two parties enter into an agreement in which one party promises to 

build something in the future, the duty to build in a workmanlike manner arises out 

of the contract. If parties enter into an agreement in which one party promises to sell 

something that has already been constructed at the time of contracting, the 

workmanlike-manner duty arises in tort. 

{¶18} Evans and the Stengers contracted for the future construction of the 

pond, and therefore Evans’s duty to perform in a workmanlike manner in 

constructing the pond arose out of the parties’ agreement. See, also, Hanna v. 

Groom, 10th Dist. No. 07AP-502, 2008-Ohio-765, ¶21 (applying Kishmarton and 

determining that “because the paving contract was for future services, plaintiff’s 

implied duty to perform in a workmanlike manner arose ex contractu as an implied 

bargain * * *.”). 
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{¶19} Because the only duty identified by the Stengers in their 

counterclaim—the duty to perform in a workmanlike manner—arises out of the 

parties’ agreement, the Stengers cannot rely on the breach of this duty as the basis 

for their nuisance claim. Textron Fin. Corp., 115 Ohio App.3d at 151. The Stengers 

must rely on an independent duty to succeed on their nuisance claim. See Neville v. 

City of Wyoming, 1st Dist. No. C-020064, 2002-Ohio-4936, ¶13 (a qualifiednuisance claim requires a showing of negligence). Without identifying any other 

duty alleged to have been breached, independent of those arising out of the contract, 

the Stengers are limited to recovery under contract principles. 

{¶20} In Kishmarton, the supreme court addressed the damages available in 

a contract action. The Kishmarton court adopted Restatement of the Law 2d, 

Contracts (1981), Section 353, which states that “[r]ecovery for emotional 

disturbance will be excluded unless the breach also caused bodily harm or the 

contract or the breach is of such a kind that serious emotional disturbance was a 

particularly likely result.” 93 Ohio St.3d at 230. The supreme court determined that 

damages for loss of enjoyment of a residence and annoyance and discomfort were 

not properly recoverable as emotional-distress damages in a contract action absent 

the required showing under Section 353. Id. at 230. 

{¶21} Applying Section 353 to the instant matter, no evidence exists in the 

record that Evans’s breach of contract caused bodily harm to the Stengers or that 

serious emotional disturbance was a likely result of Evans’s breach. Therefore, we 

must reverse that part of the trial court’s judgment awarding the Stengers $10,000 

for loss of use of their property, and $7,500 for annoyance and inconvenience. We 

sustain Evans’s first assignment of error. 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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Cost-to-Repair Damages 

{¶22} In Evans’s second assignment of error, Evans argues that the trial 

court erred in awarding the Stengers $24,990 for the cost to repair the pond. Evans 

first argues that the trial court erred in awarding cost-to-repair damages where no 

evidence was presented on the diminution in value of the property. We will not 

address this issue because Evans withdrew it at oral argument. 

{¶23} Secondly, Evans contends that expert testimony was required to 

determine the appropriate manner in which to repair the leaking pond, and to 

determine the reasonableness of the Stengers’ repair costs. Without expert 

testimony, Evans argues, the Stengers’ actions in repairing the pond could have been 

excessive and unnecessary. Evans further argues that the trial court erred in 

accepting the Stengers’ calculation of hours, rate of pay, and equipment needed to 

repair the pond, because the Stengers were not qualified experts on pond 

construction. 

{¶24} We review a trial court’s decision admitting or excluding evidence for 

an abuse of discretion. Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-

Ohio-4787, 834 N.E.2d 323, ¶20. Evid.R. 702 permits expert testimony where the 

subject matter is outside the realm of a layperson’s common knowledge or 

experience. Ohio law does not require expert testimony on all issues of cost-to-repair 

damages. As noted by the Second Appellate District in a case dealing with termite 

damage to residential property, “[e]xpert testimony is not always required to 

establish the necessity of repairs or the reasonableness of the costs incurred to repair 

* * *.” McCoy v. Good, 2d Dist. No. 06-CA-34, 2007-Ohio-327, ¶21. 
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{¶25} Evans places primary reliance on Hellkamp v. Boiman (1970), 25 Ohio 

App.2d 117, 267 N.E.2d 323, in arguing that the Stengers were required to present 

expert testimony on the issue of cost-to-repair damages. In Hellkamp, the trial court 

ordered specific performance on a real-estate purchase contract in favor of the 

Hellkamps, the buyers. In addition to awarding specific performance, the trial court 

also awarded monetary damages to the Hellkamps for, among other items, damage 

sustained to the driveway. When Mr. Hellkamp was asked if he had an opinion as to 

the value he would place on repairing the driveway, he replied, “[a] couple hundred 

dollars.” Id. at 122. This court determined that the trial court erred in permitting 

Mr. Hellkamp to testify “when there was no testimony by him that he was qualified 

as an expert to determine the fair and reasonable repair costs of the driveway.” Id. 

{¶26} Unlike Hellkamp, where Mr. Hellkamp had yet to repair the driveway 

and was merely speculating as to the cost to repair, in this case, the Stengers actually 

repaired the pond themselves. The trial court could have reasonably inferred from 

the evidence presented, without the aid of expert testimony, that the repairs to the 

pond performed by the Stengers were necessary. Evans’s representative, Habig, 

testified that Evans was not experienced in constructing ponds, and that the pond 

kept leaking despite multiple efforts by Evans to find a solution. Habig testified that, 

because of the leaks, at some point the pond would have had to have been 

deconstructed and then reconstructed. The Stengers testified that they, along with 

hired workers, based on the advice of Gardens of Water, deconstructed and 

reconstructed the pond, and that the pond no longer leaks. 

{¶27} Evans also argues that the trial court erred in allowing Mrs. Stenger, 

who was not a qualified expert, to testify as to the “outrageously large number of 
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hours of labor and excessive equipment use * * *.” Mrs. Stenger testified that she 

and Mr. Stenger spent $24,990 in deconstructing and reconstructing the pond. 

Evans had the opportunity to attack the reasonableness of these repair costs through 

cross-examination and through the testimony of its own witnesses. Evans did not 

present any expert witnesses; however, Evans rebutted the Stengers’ damages 

calculation with testimony from Habig that he believed the pond could have been 

deconstructed and reconstructed in a shorter period of time, and that the workers 

could have been paid less per hour. Nevertheless, the amount that the Stengers 

spent to repair the pond, $24,990, is not out of proportion to the $20,000-to-

$25,000 estimate that Evans gave to the Stengers initially to construct the pond. 

Therefore, we cannot determine that the trial court erred in deciding the necessity 

and reasonableness of the cost-to-repair damages without the aid of expert 

testimony. 

{¶28} Finally, Evans argues that the Stengers failed to prove their cost-torepair damages with reasonable certainty, as they are required to do in a contract 

action. Texatron Fin. Corp., 115 Ohio App.3d at 144. Evans argues that the Stengers’ 

damages were speculative and unsupported because the Stengers only provided the 

court with handwritten notes, and no invoices, time sheets, or canceled checks. 

{¶29} Evans’s argument that the Stengers failed to establish their damages 

with reasonable certainty is not well taken. The Stengers testified as to the damages 

incurred, and the detailed notes kept by Mrs. Stenger regarding those damages were 

accepted as evidence. We cannot hold that the Stengers’ evidence was speculative, 

even if not corroborated with other evidence, because it was evidence of actual 

expenses incurred. We overrule Evans’s second assignment of error. 
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Manifest Weight of the Evidence 

{¶30} In Evans’s third assignment of error, it contends that the trial court 

erred in awarding Evans only $4,660 on its breach-of-contract claim against the 

Stengers for plant delivery. We will not reverse a trial court’s award on manifestweight grounds as long as the award is supported by some competent, credible 

evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 

578, syllabus. Evans did not dispute at trial that it had delivered various plants to 

the Stengers, and that Evans had guaranteed the plants for one year. Mrs. Stenger 

testified that not all of the invoiced plants had been delivered, that some of the plants 

had been returned, and that some of the plants had not lived through the one-year 

period. 

{¶31} The trial court clearly chose to believe Mrs. Stenger’s testimony 

regarding the amount owed to Evans. The trial court stated on the record that it 

found that the Stengers owed Evans $4,600 for the plants, in accordance with Mrs. 

Stenger’s testimony. The trial court’s findings of fact and conclusions of law were 

inconsistent with the trial court’s statements on the record, in that the written 

findings provided that the Stengers owed $4,660 for the plants. Therefore, we 

sustain Evans’s third assignment of error to the limited extent that no competent, 

credible evidence existed for the trial court’s written findings that the Stengers owed 

$4,660 for the plants, instead of $4,600. 

{¶32} In conclusion, the portion of the trial court’s judgment awarding the 

Stengers $10,000 for loss of use of their property and $7,500 for annoyance and 

inconvenience is reversed, and the portion of the trial court’s judgment awarding 

Evans $8,389 on its breach-of-contract claim is reversed, and the cause is remanded 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

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to the trial court. We order the trial court on remand to enter judgment for Evans on 

its breach-of-contract claim in the amount of $8329—instead of $8389, and further 

order the trial court to enter judgment for the Stengers on their claims in the amount 

of $24,990. We affirm the remainder of the judgment of the trial court. 

Affirmed in part, reversed in part, and cause remanded. 

DINKELACKER, P.J., and SUNDERMANN, J., concur. 

Please Note: 

 The court has recorded its own entry on the date of the release of this opinion.