[Cite as Yashphalt Seal Coating v. Giura, 2019-Ohio-4231.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MAHONING COUNTY

YASHPHALT SEAL COATING, LLC, 

Plaintiff-Appellee, 

v. 

THOMAS GIURA, 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 18 MA 0107 

 

Civil Appeal from the 

Court of Common Pleas of Mahoning County, Ohio 

Case No. 2017 CV 01866 

BEFORE: 

Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges. 

JUDGMENT: 

Affirmed. 

Atty. Damian DeGenova, DeGenova & Yarwood, Ltd., 42 North Phelps Street, 

Youngstown, Ohio 44503, for Plaintiff-Appellee, and 

Atty. Charles Dunlap, 7330 Market Street, Youngstown, Ohio 44512, for DefendantAppellant. 

 
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Case No. 18 MA 0107

Dated: 

October 8, 2019 

 

DONOFRIO, J. 

{¶1} Defendant-appellant, Thomas Giura (individually and as the operator of 

Tom Giura Automotive Service), appeals the judgment of the Mahoning County Common 

Pleas Court following a bench trial finding in favor of plaintiff-appellee, Yashphalt Seal 

Coating, LLC, on appellee’s claims of breach of contract and unjust enrichment. 

{¶2} In June of 2015, appellant contacted appellee for the purpose of hiring 

appellee to repave the parking lot at appellant’s place of business. In July of 2016, 

appellant and appellee agreed to the terms of the repaving job. Under the written 

agreement, appellee was to: remove and haul away the concrete in the lot as needed, 

bring in gravel where needed, roll and compact the gravel, lay a 1.5 inch base layer of 

asphalt, roll and compact the base layer, lay a 1.5 inch top layer of asphalt, and roll and 

compact the top layer. In exchange, appellant would pay appellee $22,000 for the 

repaved parking lot. Appellant made an initial deposit of $10,000, and appellee began 

work on the repaving job on July 13, 2016. 

{¶3} Appellee completed the repaving job in approximately two weeks. After 

the repaving job was completed, appellant complained that the job was not done in a 

satisfactory manner. Appellant claimed the parking lot was not a uniform color, the 

parking lot was not flat, and cracks began to form. Appellant also claimed that appellee 

damaged part of his fence, did not replace the concrete parking bumpers on the lot, and 

removed too much concrete from the original lot. As a result, appellant refused to pay 

the remaining $12,000 on the contract. 

{¶4} On April 4, 2017, appellee filed this action in the Youngstown Municipal 

Court alleging claims of breach of contract and unjust enrichment. Appellee sought the 

unpaid $12,000 for the repaving job. On April 24, 2017, appellant filed an answer and 

counterclaim as well as a motion to transfer this action to the Mahoning County Common 

Pleas Court. The counterclaim raised claims of breach of contract and unjust enrichment 

on the basis that appellee only partially performed on the contract in an unworkmanlike 

manner. The counterclaim sought damages for appellant’s damaged fence and the costs 

of hiring another company to repave appellant’s parking lot. The motion to transfer argued 
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Case No. 18 MA 0107

that appellant’s counterclaim exceeded the jurisdictional amount of the Youngstown 

Municipal Court. On July 19, 2017, the Youngstown Municipal Court granted the motion 

to transfer the matter to the Mahoning County Common Pleas Court. 

{¶5} The matter proceeded to a bench trial before a magistrate on May 22, 

2018. Three witnesses testified at trial: Albert Yash (appellee’s managing member), Nick 

Chammas (appellant’s engineering expert), and appellant. Yash testified that the 

discoloration of the parking lot was due to purchasing asphalt from two different suppliers. 

As for the varying heights of the parking lot, Yash testified that the parking lot was paved 

thinner near the street and thicker in the middle to allow for water drainage. Yash also 

testified that the concrete parking bumpers were not immediately replaced because it was 

too hot to operate the necessary machinery to replace the bumpers without damaging the 

parking lot. Yash admitted that his work damaged the fence. 

{¶6} Chammas testified that he took five core samples of appellant’s parking 

lot after appellee’s repaving job. The asphalt samples Chammas took ranged in thickness 

from 1.56 inches (near the entrance of the parking lot) to 6.01 inches. On average, the 

asphalt was approximately 3.5 inches thick. Chammas opined that appellee’s 

performance on the repaving job did not meet industry standards. 

{¶7} Appellant testified that it cost $787.88 to repair the damage done to his 

fence. Appellant testified that he did not pay the remaining $12,000 because the asphalt 

appellee laid was cracking. Appellant also testified that appellee ripped out more 

concrete than what was originally agreed upon and the cost to replace the excessively 

removed concrete was $3,456. Finally, appellant testified that, after appellee completed 

the repaving job, appellant was using the parking lot for its intended purpose. 

{¶8} On July 10, 2018, the magistrate issued his findings of fact and 

conclusions of law. The magistrate found that appellee substantially performed on the 

contract and therefore, did not breach the contract. The magistrate therefore found that 

appellant breached the contract by not paying the remaining $12,000. But the magistrate 

held that appellant was entitled to offset the unpaid invoice amount by $787.88 for the 

cost to repair the fence as well as $3,456 for the concrete appellee erroneously removed. 

{¶9} On July 23, 2018, appellant filed an objection to the magistrate’s decision 

arguing the magistrate’s legal and factual conclusions were not supported by the 
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evidence. Appellant argued that Chammas’ testimony showed that appellee’s repaving 

job did not substantially comply with the contract. Appellee did not file a response to this 

objection. 

{¶10} On September 11, 2018, the trial court overruled appellant’s objection and 

adopted the magistrate’s decision in its entirety. Appellant timely filed this appeal on 

October 4, 2018. Appellant now raises one assignment of error. 

{¶11} Appellant’s sole assignment of error states: 

 THE TRIAL COURT ERRED IN ADOPTING THE JULY 10, 2018 

MAGISTRATE’S DECISION. JUDGMENT ENTRY T.D. 15, P. 1. 

{¶12} Appellant makes two arguments regarding his sole assignment of error. 

First, appellant argues that the trial court erred in finding appellee did not breach the 

contract because appellee repaved the parking lot in an unworkmanlike manner. Second, 

appellant argues that the evidence produced at trial showed that appellee breached the 

contract by not substantially complying with the terms of the contract. 

{¶13} Appellant and appellee disagree on the standard of review this court is to 

apply in this assignment of error. Appellant argues that a mixed de novo and abuse of 

discretion standard of review apply because the magistrate misapplied the doctrine of 

substantial compliance and the trial court erred when it overruled his objection. Appellee 

argues that a manifest weight of the evidence standard of review applies because 

appellant is appealing the trial court’s judgment after a trial. 

{¶14} This court has previously held that a trial court’s ruling on an objection to a 

magistrate’s decision after a bench trial is subject to an abuse of discretion standard of 

review. RBS Citizens, NA v. Sharp, 7th Dist. Mahoning No. 13 MA 11, 2015-Ohio-5438, 

¶ 5, 18. An abuse of discretion is more than an error of law or judgment; it implies that 

the trial court's judgment was unreasonable, arbitrary, or unconscionable. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶15} The claims relevant to this appeal are the parties’ respective breach of 

contract claims. “In order to recover on a claim of breach of contract, the plaintiff must 

prove (1) the existence of a contract, (2) performance by the plaintiff, (3) breach by the 

defendant, and (4) damage or loss to the plaintiff.” Price v. Dillon, 7th Dist. Nos. 07-MA-
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Case No. 18 MA 0107

75, 07-MA-76, 2008-Ohio-1178, ¶ 44. Appellee’s breach of contract claim alleged 

appellant breached the contract by not paying the remaining $12,000 on the contract after 

the repaving job was completed. Appellant’s breach of contract claim alleged appellee 

breached the contract by not performing the repaving job in a workmanlike manner. 

Appellant raises an argument regarding the trial court’s ruling on each of these claims. 

We will address each individually. 

Implied Warranty to Perform in a Workmanlike Manner 

{¶16} Appellant’s first argument is that the evidence produced at trial shows 

appellee breached the contract by not repaving the parking lot in a workmanlike manner. 

The implied duty to perform in a workmanlike manner is explained in the Ohio Supreme 

Court’s decision in Jones v. Centex Homes, 132 Ohio St.3d 1, 2012-Ohio-1001, 967 

N.E.2d 1199 at ¶ 6: 

A duty is imposed by law upon a builder-vendor of a real-property structure 

to construct the same in a workmanlike manner and to employ such care 

and skill in the choice of materials and work as will be commensurate with 

the gravity of the risk involved in protecting the structure against faults and 

hazards, including those inherent in its site. If the violation of that duty 

proximately causes a defect hidden from revelation by an inspection 

reasonably available to the vendee, the vendor is answerable to the vendee 

for the resulting damages. 

{¶17} The implied warranty to perform in a workmanlike manner requires that 

those who repair or modify existing tangible goods or property perform the service using 

proper materials and workmanlike skill and judgment. Mathis v. Allied Plumbing, 1st Dist. 

Hamilton No. C-061005, 2007-Ohio-6661, ¶ 13 citing Day-Glo Color Corp. v. BrewerGarrett Co., 8th Dist. Cuyahoga No. 87838, 2007-Ohio-159. 

{¶18} It is first worth noting that the magistrate’s decision and the trial court’s 

judgment entry do not mention the implied warranty to perform in a workmanlike manner. 

In a construction contract, a breach of the implied duty to perform in a workmanlike 

manner constitutes a breach of the contract. See Jarupan v. Hanna, 173 Ohio App.3d 
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Case No. 18 MA 0107

284, 2007-Ohio-5081, 878 N.E.2d 66, ¶ 19 (10th Dist.). Because the magistrate’s 

decision and the trial court’s judgment entry held that appellee did not breach the contract, 

the rulings implicitly held that appellee did not breach the implied warranty to perform in 

a workmanlike manner. 

{¶19} Appellant argues that his expert at trial, Nick Chammas, produced 

uncontroverted evidence that appellee’s repaving of the parking lot breached this implied 

warranty. Chammas is a civil engineer who is licensed in Ohio, Pennsylvania, and holds 

a national certification. 

{¶20} Chammas testified that, in his opinion, the repaving of appellant’s parking 

lot did not comply with acceptable industry standards. For example, sand was discovered 

underneath the parking lot when appellee removed the original concrete and sand is an 

inappropriate subbase for a parking lot. Chammas testified that the base coat of asphalt 

should have been at least 2.5 inches. There was also testimony that the parking lot had 

cracks, the parking lot’s asphalt was loose, the parking lot was discolored, and there was 

pooling of water on the parking lot. 

{¶21} But Chammas’ testimony was not uncontroverted. Yash testified on direct 

examination that the parking lot “was in good shape. It was well done.” (Tr. 28). Yash 

had been operating a seal coating, pavement, and concrete business for approximately 

13 years. In addition, Chammas testified that sand is an inappropriate subbase for a 

parking lot and Yash testified that he removed approximately 200 tons of sand when he 

discovered it under the original parking lot and replaced it with gravel. 

{¶22} As for Chammas’ testimony, he testified on cross-examination that he 

specialized in asphalt mixtures for turnpikes, the Ohio Department of Transportation, and 

the Pennsylvania Department of Transportation. He did not testify that he specialized in 

parking lots. He also testified that if the parking lot was paved to Ohio Department of 

Transportation specifications, it would have been more expensive. 

{¶23} Additionally, the contract in this case contains a disclaimer that appellee 

could not guarantee against cracking. Appellee also offered to seal the parking lot for 

free after appellant complained of cracking and discoloration issues, but appellant refused 

this service. 
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Case No. 18 MA 0107

{¶24} In order for appellant to succeed on his breach of the implied warranty to 

perform in a workmanlike manner claim, he had to prove damages or loss resulting from 

appellee’s breach of said warranty. See Price v. Dillon, 2008-Ohio-1178 at ¶ 44. 

Appellant submitted evidence of damages he incurred from the fence and the excessively 

removed concrete and the trial court offset appellee’s award by those damages. But there 

was no evidence of damages appellant incurred due to an alleged breach of the implied 

warranty to perform in a workmanlike manner regarding the parking lot itself. In fact, 

appellant testified at trial that he is using the parking lot for its intended purpose. 

{¶25} Appellant cites Hanna v. Groom, 10th Dist. Franklin No. 07AP-502, 2008-

Ohio-765, to support his argument that he is entitled to damages due to the issues with 

the parking lot. In Hanna, Hanna and Groom entered into a contract where Hanna would 

demolish an old driveway and construct a new driveway at Groom’s home. Id. at ¶ 2. 

Hanna began demolishing the old driveway once Groom made a down payment. Id. 

During the demolition phase, Hanna or his agent damaged various parts of Groom’s 

home. Id. at ¶ 3. Once Hanna completed the new driveway, Groom refused to pay the 

balance on the contract until Hanna repaired the damage to the home. Id. at ¶ 4. Hanna’s 

agents attempted to make repairs but Groom was dissatisfied with the repairs and 

continued to withhold the final payment. Id. at ¶ 5. 

{¶26} Hanna filed a mechanic’s lien as well as a lawsuit raising claims of breach 

of contract and fraud. Id. at ¶ 6. Groom filed a counterclaim raising claims of, among 

other things, breach of contract. Id. After a bench trial, the trial court found for Groom on 

all claims. Id. at ¶ 7. In its ruling, the trial court held that Groom’s withholding of final 

payment until Hanna repaired the damage to the home and Hanna attempting to make 

repairs to the home amounted to a modification of the contract. Id. at ¶ 12. 

{¶27} Hanna appealed arguing, among other things, the trial court’s judgment 

that the parties modified the original contract was error and therefore, by extension, the 

judgment that Hanna breached the contract was error. Id. The Tenth District held that, 

because there was competent and credible evidence that Hanna’s repairs to the home 

were inadequate, Hanna breached the contract by failing to complete the repairs in a 

workmanlike manner. Id. at ¶ 23-25. 
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{¶28} Hanna is distinguishable. In Hanna, Groom offered evidence at trial that 

the reason he did not pay the balance on the contract was because the cost of repairs to 

the home would have exceeded the balance on the contract. Id. at ¶ 25. In this case, the 

costs of repair appellant testified about did not exceed the balance on the contract and 

the trial court offset appellee’s award by the cost of the repairs to the damaged fence and 

the excessively removed concrete. Moreover, the breach of the implied warranty to 

perform in a workmanlike manner in Hanna was due to the repairs to the home, not the 

construction of the driveway. Based on all of the above, the trial court’s judgment on 

appellant’s objection regarding the implied warranty to perform in a workmanlike manner 

was not an abuse of discretion. 

Appellee’s Compliance with the Terms of the Contract 

{¶29} Appellant next argues the trial court’s judgment that appellee substantially 

complied with the contract was error because evidence produced at trial showed the 

parking lot did not comply with the terms of the contract. 

{¶30} The terms of the contract are not in dispute. Pursuant to the contract, 

appellee was to: rip out concrete where needed, haul away the debris, bring in gravel 

where needed, roll and compact the gravel, pave a 1.5 inch base coat, roll and compact 

the base coat, pave a 1.5 inch top coat, and roll and compact the top coat. In exchange, 

appellant would pay appellee $22,000. 

{¶31} Appellant’s argument here is that the evidence produced at trial shows the 

thickness of the asphalt did not comply with the terms of the contract. Chammas took 

five core samples (C-1 through C-5) of the parking lot to measure the thickness of the 

asphalt. Sample C-1 had a base coat of 0.5 inches and a top coat of 3.4 inches. Sample 

C-2 had a base coat of 1.88 inches and a top coat of 1.1 inches. Sample C-3 had a base 

coat of 3.28 inches and a top coat of 2.73 inches. Sample C-4 had a base coat of 0.57 

inches and a top coat of 2.71 inches. Sample C-5 had a base coat of 0.81 inches and a 

surface coat of 0.75 inches. 

{¶32} The magistrate and the trial court held that appellee substantially complied 

with the contract and, therefore, did not breach the contract because the parking lot was 

an average of 3.5 inches thick and appellant was using the parking for its intended 
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purpose. A “long and uniformly settled rule as to contracts requires only a substantial 

performance in order to recover upon such contract. Merely nominal, trifling, or technical 

departures are not sufficient to breach the contract.” Conny Farms, Ltd. v. Ball 

Resources, Inc., 7th Dist. Columbiana No. 12 CO 18, 2013-Ohio-2874, ¶ 22 quoting Ohio 

Farmers’ Ins. Co. v. Cochran, 104 Ohio St. 427, 132 N.E. 537 (1922). 

{¶33} Appellant argues that the trial court should have given more weight to 

Chammas’ testimony because Chammas was the only witness at trial to testify about the 

asphalt thickness in this case. In support of this argument, appellant cites Marchese 

Concrete Co., Inc. v. Brad DeRubba, 11th Dist. Trumbull No. 2004-T-0119, 2006-Ohio330. 

{¶34} In Marchese, Marchese agreed to construct a concrete driveway for 

DeRubba between 4.5 and 5 inches thick in exchange for $5,000. Id. at ¶ 4-6. After 

Marchese completed the driveway, DeRubba refused to pay any part of the contract price. 

Id. at ¶ 2. DeRubba took issue with the driveway on numerous grounds, including that 

the driveway’s thickness was not sufficient. Id. at ¶ 10-12. As a result, DeRubba refused 

to pay any money on the contract. Id. at ¶ 6. Marchese then filed an action to recover 

the contract price. 

{¶35} At trial, DeRubba presented two pieces of evidence regarding the 

driveway’s thickness: photographs of the edges of the driveway and measurements of 

the driveway’s thickness DeRubba obtained by drilling a hole through the driveway and 

measuring the depth with a rod or a wire. Id. at ¶ 10-11, 20. DeRubba did not present 

any expert testimony at trial. Id. at ¶ 12. Marchese’s principal testified at trial that he 

poured 30 cubic yards of concrete which was enough to make a sufficiently thick 

driveway. Id. at ¶ 5, 28. The Niles Municipal Court found in favor of Marchese in part 

because it held that DeRubba’s method for measuring the driveway’s depth was not 

accurate and not an industry standard. Id. at ¶ 21 

{¶36} DeRubba appealed arguing, among other things, that the trial court’s 

findings of fact and conclusions of law were against the manifest weight of the evidence. 

Id. at ¶ 15-16. The Eleventh District held that the trial court’s verdict was against the 

manifest weight of the evidence for two reasons. First, DeRubba was the only witness to 

present evidence concerning the driveway’s thickness. Id. at ¶ 24-29. Second, the trial 
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Case No. 18 MA 0107

court disregarded DeRubba’s method for measuring thickness because, according to 

Marchese, those methods are not the industry standard. Id. at ¶ 8, 46. But Marchese 

was never qualified as an expert and, therefore, could not testify about the industry 

standard. Id. at ¶ 44-46. 

{¶37} Marchese is distinguishable. The issue in Marchese was that the trial court 

expressly disregarded DeRubba’s testimony in favor of Marchese’s testimony despite the 

fact that DeRubba was the only witness who measured the driveway’s thickness. In this 

case, the trial court did not disregard Chammas’ testimony. Rather, the trial court cited 

Chammas’ findings about the asphalt’s thickness in its judgment entry. 

{¶38} The trial court found that, per Chammas’ measurements, the parking lot 

ranged in thickness from 1.56 inches to 6.01 inches with an average thickness of 3.5 

inches. Appellee testified that he paved the parking lot thinner near the street and thicker 

near the center to allow for water drainage. 

{¶39} The trial court’s judgment is supported by competent and credible 

evidence. While the asphalt was thinner than what the contract called for in some places, 

appellee explained that this was done to allow water to drain into the street and not pool 

in the parking lot or drain into appellant’s garage. The trial court’s conclusion that the 

contract called for three inches of asphalt and the parking lot was, on average, 3.5 inches 

thick and therefore complied with the contract is also supported by Chammas testimony. 

Moreover, the fact that appellant testified at trial that he is using the parking lot for its 

intended purpose supports the trial court’s conclusion that appellee substantially complied 

with the contract. Because the trial court’s judgment that appellee substantially complied 

with the contract is supported by competent and credible evidence, the judgment is not 

an abuse of discretion. 

{¶40} Accordingly, appellant’s sole assignment of error lacks merit and is 

overruled. 

{¶41} For the reasons stated above, the trial court’s judgment is hereby affirmed. 

Waite, P. J., concurs. 

Robb, J., concurs. 
[Cite as Yashphalt Seal Coating v. Giura, 2019-Ohio-4231.]

 

 

For the reasons stated in the Opinion rendered herein, the sole assignment of 

error is overruled and it is the final judgment and order of this Court that the judgment 

of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be 

taxed against the Appellant. 

A certified copy of this opinion and judgment entry shall constitute the mandate 

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that 

a certified copy be sent by the clerk to the trial court to carry this judgment into 

execution. 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.