Bob Vila Not Good Enough to Prove Contractor Messed Up? The Importance of Expert Testimony

June 14, 2016

Ohio’s Eleventh District Court of Appeals, which covers Trumbull County, recently decided Karnofel v. Nye, a rather simple case that shows the importance of “expert testimony.” The Plaintiff, Ann Karnofel, sued Dan Nye of Nye’s General Contracting (no idea whether or not he is related to the Science Guy) in Small Claims Court over a supposedly improper installation of a drainpipe and French drain.

There were several issues. First, Karnofel’s daughter filed the exact same lawsuit. Perhaps she and her mother thought they could both file a lawsuit over the same incident and recover twice as much. Well get this – the daughter has already been declared a vexatious litigator. In a nutshell, that means a Court has found that she is trigger-happy, filing an unacceptable frivolous lawsuits, and now she can’t even file a lawsuit without getting permission first! She had failed to do so. That prolonged the case, requiring a continuance (Mr. Nye must have been none too pleased, as this sounds like a complete time-sink).

Second, Karnofel had no real evidence to support her claims. She had pictures of standing water, a “report” by Bob Vila regarding what certain measurements should have been, and she herself testified that she believed the pipes were improperly installed. Well guess what? An online printout from Bob Vila is not enough. Nor are pictures of standing water, because Mr. Nye explained that the most likely cause was excessive rainfall that year and other issues with Karnofel’s property. Karnofel ultimately lost because she did not have anyone with the relevant expertise there who could refute Mr. Nye’s explanation or explain what Karnofel actually did or did not do that rendered his work sub-par.

If you read the opinion, you can tell that the vexatious litigator daughter probably did most of the work in the case, but because she is not a lawyer she did a very poor job. She may have missed possible claims Karnofel could have asserted under the Ohio Consumer Sales Practices Act. There was another procedural blunder as well: Karnofel did not “object” to the Small Claims Magistrate’s Decision before appealing. If Karnofel was getting legal advice from someone, they were not very good.

Perhaps Mr. Nye could sue Karnofel for the tort of abuse of process.

Alex J. Durst

Alex J. Durst is a civil trial attorney with over a decade of experience handling commercial and complex civil litigation matters on behalf of clients across a wide range of industries, with an emphasis on financial services litigation and high-dollar-value breach of contract claims.

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