Don’t Forget the Damages

During litigation, it’s easy to focus on the merits without addressing how much you are seeking to recover. Sometimes a party is so focused on fault that they disregard the obligation to prove the extent of damages with reasonable certainty.

This is what one party recently discovered in Iannetta v. JDL Concrete, 2025-Ohio-5472 (11th Dist.).

Case Background

A homeowner hired a contractor to pour and finish a partial driveway, apron, and sidewalk for $7,600. The contract required “all work to be completed in a workman like manner.” The homeowner ultimately paid $8,500 to the contractor, and the contractor completed the driveway. But 18 months later, the driveway developed holes and began spalling. The cement began decaying and disintegrating, particularly where road salt sat on the driveway. The contractor offered to replace certain sections of the driveway, but the homeowner instead sued the contractor in small claims court.

At the hearing, the homeowner called his father to testify. His father was a concrete contractor years ago and drove a concrete mixer. He testified that the concrete likely did not receive enough pure cement, or that it was otherwise washed out, and that the contractor likely did not use a good mix.

The contractor’s owner testified that there were no issues with the workmanship, but he could not explain why the concrete was failing. The concrete supplier also testified at trial, claiming the driveway issues were no party’s fault and stating there is no way to know if the concrete is good or bad as it comes out of a mixer. He further testified that road salt and weather likely caused the damage to the driveway.

The trial court ultimately held that the contractor failed to perform in a workmanlike manner, which was a breach of the agreement. The court awarded the homeowner $6,000 (the limit in small claims court), plus 8% interest per annum.

The contractor appealed on two grounds:

• First, that the trial court erred by holding that the contractor failed to perform in a workmanlike manner.
• Second, that the trial court erred when it granted the homeowner judgment in the amount of $6,000 plus 8% interest because the contractor substantially performed and the proper measure of damages is the cost of repairs.

The Court of Appeals’ Decision

The appellate court affirmed that the contractor failed to perform in a workmanlike manner:

• The driveway was in poor condition—it was chipping, flaking, and developed holes.
• Further, both parties agreed there were defects.

Thus, the trial court did not abuse its discretion when it held that the contractor failed to sufficiently perform.

For the issue of damages, however, the appellate court reversed, finding that the trial court:

• Did not adequately explain why it awarded $6,000.
  • In his complaint, the homeowner sought $6,000 and 10% interest, without explaining how he arrived at that number, and he failed to present any evidence at trial to support his request.
• Appeared to merely adopt the homeowner’s alleged damages, without providing any explanation why.

Ultimately, the appellate court reversed in part and ordered the trial court to hold a hearing on the issue of damages, where the contractor will argue that damages should be measured by the cost of repair—not a complete replacement – or that they are limited by the diminution in value (if the cost of repair is not reasonable in relation to the value of the property).

Key Takeaways

First, damages are not an afterthought. Parties should remember to develop their case for damages. In most disputes, parties should:

• Serve discovery on the issue of damages; and
• Consider deposing the other party on the issue of damages.

This also may provide for more efficient settlement talks.

Second, parties should strategize the types of witnesses needed to establish the damages they seek. For instance, if a contractor seeks to reduce exposure, the contractor could:

• Hire an expert to compare the cost of completely replacing deficient work with the lesser cost of repairing deficient work; or
• Opine on the diminution in value.

Not all cases will require expert testimony, but this is something parties should consider.

Third, parties should thoroughly review their contracts.

• Sometimes the contract will specify the types of damages that are recoverable.
• In other instances, the contract will place certain conditions precedent to the recovery of damages (g., allowing the contractor an opportunity to repair any defects before filing suit).

For more information on this or other construction issues, contact Jordan D. Weeks or any member of the Frantz Ward’s Construction Practice Group.