Ohio appeals court says homeowner must pay $45,806 for a foundation with cold joints and honeycombing

Ohio's Fifth District Court of Appeals on Nov. 5 affirmed a Fairfield County judgment ordering homeowner Ashley Smith to pay Sam's Excavating Unlimited $45,806.42 for footers and basement walls the company poured in December 2021. The figure is the company's $46,424.08 proposal minus $617.66 for gravel taken from Smith's own lot.

Smith saw the cold joints and honeycombing when she looked at the walls on Jan. 1, 2022. The company sued in February 2023 to collect. A magistrate rejected its breach-of-contract claim but awarded the money for unjust enrichment, finding that Smith let the work go ahead and then built her house on the foundation. Smith argued the walls were worthless because the mix contained calcium chloride, which she said she had told the company not to use, and pointed to a supplier bill listing a wall mix with calcium chloride.

The three-judge panel, in an opinion by Judge Kevin W. Popham, found no reason to overturn that. All three experts who inspected the walls agreed neither the cold joints nor the honeycombing was a structural defect, the opinion says. One linked the honeycombing to a new concrete truck being brought in and the cold joints to stopping and restarting the pump; another said ordinary waterproofing should seal the joints. The man who ordered the concrete testified he asked the supplier for a non-chloride mix, and the court said the trial judge was free to believe him over the bill. Even if calcium chloride was used, Smith had to tie it to actual damage and did not, the panel wrote.

Her implied-warranty counterclaim failed because she never proved what any repair would cost. The opinion notes that waterproofing and backfill were not in the estimate her grandfather chose for her, and that she built the home without paying anyone to redo the walls.