[Cite as MCM Mgt. Corp. v. L&T Equip. Parts, L.L.C., 2025-Ohio-3108.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
MCM MANAGEMENT CORP., :
Appellant, : CASE NO. CA2024-12-089
: OPINION AND - vs - JUDGMENT ENTRY : 9/2/2025
L&T EQUIPMENT PARTS, LLC, :
Appellee :
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2023 CVH 00643
McNeal Schick Archibald & Biro Co., LPA, and Brian T. Winchester, for appellant.
OPINION
HENDRICKSON, P.J.
{¶ 1} Plaintiff-Appellant, MCM Management Corporation ("MCM"), appeals from
a judgment of the Clermont County Court of Common Pleas, which awarded MCM
$15,487.67 on its negligent misrepresentation claim against defendant-appellee, L&T
Equipment Parts, LLC ("L&T"). For the reasons that follow, we affirm the trial court's Clermont CA2024-12-089
exclusion of damages evidence, reverse the judgment of the trial court because the jury's
verdict was against the manifest weight of the evidence, and remand for a new trial.
I. Factual and Procedural Background
{¶ 2} This appeal arises from a commercial dispute concerning the purchase of
used construction equipment parts. MCM is a business specializing in demolition and
scrap recovery, or what might be termed "scrap mining," wherein the company
demolishes structures and salvages recyclable materials. L&T is a small equipment
broker operated by William Smith, who connects customers with equipment parts from
third-party suppliers.
{¶ 3} In late 2020, MCM was engaged in the demolition of the Beckjord Plant in
Clermont County, Ohio. According to the testimony of Craig Sickmiller, MCM's Chief
Financial Officer, the company employed a Caterpillar 375 excavator as "lead equipment"
for the project. When this excavator ceased operating, MCM sought replacement tracks
to restore it to working condition.
{¶ 4} On December 7, 2020, MCM and L&T executed a contract, memorialized
in a spartan invoice, wherein L&T agreed to provide MCM with "complete good used (right
and left side) track frames" for the Caterpillar 375 excavator. The contract price was
$34,500. MCM had requested and received photographs of the proposed replacement
tracks from L&T before agreeing to the purchase.
{¶ 5} L&T, acting as a broker, procured the track frames from a third-party
supplier, Trion Equipment Sales, LLC ("Trion"), for $19,500. L&T never physically
possessed or inspected the track frames; rather, Trion shipped them directly to MCM's
worksite. The track frames arrived at the Beckjord Plant on or about January 11, 2021.
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{¶ 6} Upon delivery, MCM discovered that the track frames differed from those
depicted in the photographs previously provided. According to MCM, the delivered track
frames were unusable because certain bolts were "seized" and parts of the undercarriage
had been "torched off" rather than unbolted. In text messages admitted into evidence,
Smith acknowledged to Trion that "that was not the set of track frames that were
supposed to go to my customer" and that the frames delivered were "not what my
customer received."
{¶ 7} MCM attempted to remedy the situation by contacting L&T, who in turn
contacted Trion. Trion arranged for someone to inspect the track frames, but according
to testimony, this person was denied access to the worksite. A Caterpillar mechanic
reportedly examined the track frames but was unsuccessful in making them operational.
MCM subsequently spent approximately $61,000 attempting to make the track frames
work, and incurred over $171,000 in costs for rental of replacement equipment during the
period when the Caterpillar 375 excavator remained inoperable.
{¶ 8} MCM filed suit against L&T, asserting claims for breach of contract,
negligent misrepresentation, and conversion. L&T, in turn, filed a third-party complaint
against Trion for breach of contract, contribution, and indemnification. The matter
proceeded to a jury trial on November 12-14, 2024.
{¶ 9} At trial, the court excluded certain evidence proffered by MCM, including
testimony from Sickmiller regarding the reasonableness of repair costs and the impact of
the inoperable excavator on overall job costs. The court determined that such testimony
constituted expert opinion for which Sickmiller was not qualified.
{¶ 10} Following deliberations, the jury returned a mixed verdict. The jury found in
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favor of L&T on MCM's breach-of-contract and conversion claims, but found in favor of
MCM on its negligent-misrepresentation claim, awarding damages to MCM of
$15,487.67. On the third-party complaint, the jury found in favor of L&T against Trion on
the breach-of-contract claim, awarding damages to L&T of $14,987.67.
{¶ 11} MCM appealed.
II. Analysis
{¶ 12} MCM presents four assignments of error challenging the jury verdict as
against the manifest weight of the evidence, arguing that the trial court erred in excluding
evidence of damages, contending that the jury verdicts were inconsistent, and asserting
that cumulative error warrants reversal. L&T did not file a brief. Consequently, we "may
accept the appellant's statement of the facts and issues as correct and reverse the
judgment if appellant's brief reasonably appears to sustain such action." App.R. 18(C).
A. The Weight of the Evidence
{¶ 13} The first assignment of error alleges:
THE JURY'S VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 14} MCM's first assignment of error challenges the jury's verdict finding no
breach of contract by L&T as against the weight of the evidence. We agree. The evidence
presented at trial, when viewed in its totality, compels but one conclusion: L&T breached
its contractual obligation to provide MCM with the specific track frames it had agreed to
deliver.
{¶ 15} When reviewing a claim that a verdict is against the manifest weight of the
evidence, this court sits as a "thirteenth juror" and examines the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses, and
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determines whether the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed. Eastley v. Volkman, 2012-
Ohio-2179, ¶ 20; State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). "'The discretionary
power to grant a new trial should be exercised only in the exceptional case in which the
evidence weighs heavily against the [judgment].'" State v. Harry, 2008-Ohio-6380, ¶ 45,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1993).
{¶ 16} The threshold issue in evaluating whether L&T breached its contract with
MCM requires determining what specific performance obligations L&T undertook. The
evidence establishes that L&T's contractual duties extended beyond the bare terms of
the invoice to encompass delivery of the particular track frames whose availability was
the inducement for MCM's agreement to purchase.
{¶ 17} Under Ohio law, the parol evidence rule prohibits the admission of extrinsic
evidence to contradict, vary, or supplement the terms of a complete and unambiguous
written contract. Galmish v. Cicchini, 2000-Ohio-7, ¶ 17. But this rule applies only to fully
integrated contracts, those intended by the parties as a complete and exclusive statement
of their agreement: "'When two parties have made a contract and have expressed it in a
writing to which they have both assented as the complete and accurate integration of that
contract, evidence, whether parol or otherwise, of antecedent understandings and
negotiations will not be admitted for the purpose of varying or contradicting the writing.'"
Ed Schory & Sons, Inc. v. Francis, 1996-Ohio-194, ¶ 28, quoting 3 Corbin, Corbin on
Contracts, § 573, at 357 (1960).
{¶ 18} Evidence of the specific inducement that led a party to enter a contract does
not vary or contradict written terms under the parol evidence rule. The Ohio Supreme
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Court has said that "[a] party may . . . proffer evidence of a contemporaneous oral
agreement when the agreement was made in order to induce a party to enter into a written
contract." Walters v. First Nat. Bank of Newark, 69 Ohio St.2d 677, 681 (1982). This court
and other Ohio courts have recognized this principle. See Hamilton Brownfields
Redevelopment, LLC v. Duro Tire & Wheel, 2004-Ohio-1365, ¶ 18 (12th Dist.); see, e.g.,
Navistar, Inc. v. Dutchmaid Logistics, Inc., 2021-Ohio-1425, ¶ 39 (5th Dist.). As the
Navistar court explained, "there is a distinct difference between prohibiting prior or
contemporaneous agreements to vary the terms of a written contract versus prohibiting
prior or contemporaneous statements to induce a party into entering into the contract."
Navistar at ¶ 39.
{¶ 19} In Hamilton Brownfields, this court permitted evidence of inducement,
noting that such evidence "was not introduced to vary or contradict the terms of the lease"
but rather "was introduced for the purpose of demonstrating that Hamilton Brownfields
made inducements to Duro to enter into the lease." Hamilton Brownfields at ¶ 19. We
recognized that "'the parol evidence rule precludes the introduction of evidence of
conversations or declarations which occur prior to or contemporaneous with a written
contract and which attempt to vary or contradict terms contained in the writing.'"
(Emphasis sic.) Id. at ¶ 18, quoting AmeriTrust Co. v. Murray, 20 Ohio App.3d 333, 335
(8th Dist. 1984). But a party may "'proffer evidence of a contemporaneous oral agreement
when the agreement was made in order to induce a party to enter into a written contract.'"
Id., quoting Walters at 681. In short, rather than varying contract terms, such evidence
establishes what the parties actually bargained for.
{¶ 20} The distinction between evidence that impermissibly varies written terms
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and evidence that establishes contractual inducement is crucial. When a seller represents
that specific goods are available and uses those representations to induce a buyer's
agreement, the availability and delivery of those particular goods becomes part of the
consideration the buyer bargained to receive. The Navistar court applied this principle
where the buyer "would not have purchased MaxxForce 2 trucks had it known" certain
undisclosed facts, finding that "because Navistar's representations to the contrary and
nondisclosures induced Dutchmaid to purchase the MaxxForce 2 trucks, we find the
evidence as to these nondisclosures is not prohibited by the parol evidence rule." Navistar
at ¶ 39.
{¶ 21} The evidence here overwhelmingly establishes that L&T's photographic
representations of specific track frames constituted the primary inducement for MCM's
decision to enter the contract. MCM's witnesses testified that these photographs were
requested specifically to determine what products were available and that MCM's
agreement to purchase was contingent upon receiving the particular track frames
depicted.
{¶ 22} L&T's owner, William Smith, acknowledged that MCM "requested pictures
on what they were purchasing" and that such requests were "an accepted method of
purchasing equipment in the industry." This testimony demonstrates that the photographs
served not as mere preliminary negotiations but as concrete representations of what L&T
had available to deliver. Smith further testified that the industry practice of providing
photographs creates reasonable expectations about what will be delivered, transforming
these visual representations from negotiation aids into specific commitments about
available inventory.
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{¶ 23} The photographs of the track frames, which L&T obtained from Trion and
forwarded to MCM at MCM's specific request, constituted L&T's representation that these
particular goods were available for delivery. MCM's reliance on these photographs in
deciding to purchase was both reasonable and foreseeable. Indeed, the evidence
established that MCM would not have agreed to purchase track frames without first
seeing what was available, making the photographic representations a condition
precedent to contract formation.
{¶ 24} The testimonial evidence overwhelmingly demonstrates that L&T failed to
deliver the specific track frames whose availability induced MCM's agreement to
purchase. Witnesses testified that the delivered products materially differed from those
shown in the photographs that L&T had used to induce the contract. This testimony was
largely uncontradicted and established a clear breach of L&T's fundamental obligation.
{¶ 25} L&T acknowledged that what it shipped to MCM was not what was depicted
in the photographs it had used to secure MCM's agreement. Text messages from Smith
to Trion stated: "You know that that was not the set of track frames that were supposed
to go to my customer. They were supposed to be the ones that were already off the
machine that I received pictures of." When asked directly whether "the tracks weren't what
was ordered," Smith testified unequivocally: "That's exactly what I told Trion."
{¶ 26} Smith's attempt to justify this substitution by claiming Trion told him the
delivered tracks were "as good or better" than those photographed cannot cure the
fundamental breach. The contract was induced by representations of specific available
goods, not by promises to deliver whatever L&T or its supplier deemed equivalent.
{¶ 27} The jury's verdict defies the logic of the evidence presented. The jury's twin
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findings, that Trion breached its contract to provide conforming goods to L&T while L&T
somehow did not breach its obligation to provide those same inducing goods to MCM,
cannot be reconciled with any reasonable view of the evidence.
{¶ 28} The testimony established that L&T contracted with Trion specifically to
obtain the track frames shown in the photographs that had induced MCM's agreement.
When the jury found Trion breached by failing to provide those particular goods, it
necessarily found that L&T could not deliver what had induced MCM to contract. No
evidence suggested L&T obtained the specific track frames from another source or that
MCM received the particular goods whose availability had induced the original
agreement.
{¶ 29} L&T's status as a broker provides no defense to its failure to deliver the
goods whose availability induced MCM's contract. When L&T represented that specific
track frames were available and used those representations to secure MCM's agreement,
it assumed the obligation to deliver those particular goods. A party cannot escape liability
for breach by claiming its own supplier failed to perform, absent specific contractual
language allocating that risk to the buyer.
{¶ 30} Examining the trial record in its entirety, the evidence establishes that L&T
breached its contract with MCM by failing to deliver the specific track frames whose
availability had induced MCM's agreement to purchase. The jury's contrary verdict
represents precisely the type of manifest miscarriage of justice that appellate review
exists to correct.
{¶ 31} We therefore conclude that the jury's verdict on the breach-of-contract claim
is against the manifest weight of the evidence. No reasonable jury, properly considering
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L&T's admissions, the documentary evidence, and the inherent logic of its own verdict
finding Trion's breach, could have found that L&T fulfilled its contractual obligations to
MCM. Accordingly, this case must be remanded for a new trial. App.R. 12(C)(2); Eastley,
2012-Ohio-2179, at ¶ 22.
{¶ 32} The first assignment of error is sustained.
B. Evidence of Damages
{¶ 33} The second assignment of error alleges:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN EXCLUDING PLAINTIFF'S EVIDENCE OF DAMAGES.
{¶ 34} In its second assignment of error, MCM argues that the trial court erred and
abused its discretion in excluding plaintiff's evidence of damages. Specifically, MCM
contends that the trial court improperly excluded the testimony of its chief financial officer,
Craig Sickmiller, regarding the reasonableness of repair costs and the overall impact of
the inoperative equipment on the construction project. MCM maintains that such
testimony was admissible as lay opinion testimony under Evid.R. 701.
{¶ 35} "'A trial court has considerable discretion in admitting the opinion testimony
of lay witnesses.'" (Citation omitted.) State v. Speis, 2023-Ohio-1422, ¶ 30 (12th Dist.),
quoting State v. Marshall, 2010-Ohio-5160, ¶ 43 (2d Dist.). "An appellate court will not
disturb a decision of the trial court to admit or exclude evidence absent a clear and
prejudicial abuse of discretion." (Citation omitted.) Donlon v. Lineback, 2016-Ohio-7739,
¶ 32 (12th Dist.).
{¶ 36} Evid.R. 701 governs opinion testimony by lay witnesses and provides that
such testimony "is limited to those opinions or inferences which are (1) rationally based
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on the perception of the witness and (2) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue." The rule requires that lay opinion
testimony be "rationally based on the perception of the witness. Perception connotes
sense: visual, auditory, olfactory, etc. Thus, opinion testimony under Evid. R. 701 must
be based on firsthand, sensory based knowledge." Security National Bank & Trust Co. v.
Reynolds, 2008-Ohio-4145, ¶ 17 (2d Dist.).
{¶ 37} "The line between expert testimony under Evid.R. 702 and lay opinion
testimony under Evid.R. 701 is not always easy to draw." Id. at ¶ 19. However, as
recognized by the Supreme Court, courts have permitted lay witnesses to express
opinions in areas where expert testimony might ordinarily be expected, provided that the
testimony "still fall[s] within the ambit of the rule's requirement that a lay witness's opinion
be rationally based on firsthand observations and helpful in determining a fact in issue."
State v. McKee, 2001-Ohio-41, ¶ 13. Such cases are "not based on specialized
knowledge within the scope of Evid.R. 702, but rather are based upon a layperson's
personal knowledge and experience." Id.
{¶ 38} The record reveals that the trial court excluded two categories of testimony
from Sickmiller: his opinion on the reasonableness of repair costs reflected in Exhibit 9,
which pertinently includes an invoice from a company showing that MCM purchased just
under $30,000 worth of parts to try and get these tracks to work, and Exhibit 10, an invoice
for a little over $31,000 from a welding company for work on the replacement tracks from
L&T, and his opinion that the inoperative equipment caused a 10 percent increase in
overall project costs.
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1. Opinion on Reasonableness of Repair Costs
{¶ 39} MCM sought to have Sickmiller testify that the repair costs reflected in
Exhibits 9 and 10, totaling approximately $61,000, were reasonable based on his
experience in the construction and demolition field. The trial court initially sustained an
objection for lack of foundation, and after MCM attempted to establish Sickmiller's
background in "heavy contracting" since 1991, the court continued to sustain objections
to this line of questioning.
{¶ 40} The transcript reveals that Sickmiller possessed considerable personal
knowledge regarding the costs incurred by MCM. As the company's CFO with "direct job
involvement," Sickmiller testified that he tracked job costs as part of his duties and had
personal knowledge of the matters at hand. He also had experience in construction
schedules and costs, visited the worksite approximately three times per month, and
possessed general industry knowledge and experience with construction costs and
scheduling.
{¶ 41} When asked about typical costs for repairs of equipment, Sickmiller testified
that he had been in "heavy contracting" since 1991 and was familiar with typical costs for
equipment repairs. The trial court, however, sustained objections to his testimony about
whether costs reflected in Exhibits 9 and 10—approximately $61,000 in repair attempts—
were reasonable. Similarly, when asked to quantify the impact on costs resulting from
issues with the Caterpillar 375, objections were again sustained. The trial court said that
this matter "calls for an expert opinion."
{¶ 42} The trial court's ruling was well within its discretion. While Sickmiller
possessed general experience in the construction industry and served as MCM's CFO,
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the record fails to establish that he possessed sufficient specialized knowledge or
experience to render an opinion on the reasonableness of specific repair costs for
construction equipment. The court properly recognized that establishing the
"reasonableness" of costs requires more than general industry experience, particularly
when the witness's role as CFO does not necessarily encompass technical expertise in
equipment repair pricing.
{¶ 43} Defense counsel's analogy during sidebar argument was apt: "I have direct
patient involvement and I can't testify whether a hospital bill is reasonable and necessary."
Similarly, Sickmiller's position as CFO and general construction experience, without more
specific foundation regarding his competence to evaluate the reasonableness of
equipment repair costs, was insufficient to support the admission of such opinion
testimony.
2. Opinion on Project Cost Impact
{¶ 44} The trial court also properly excluded Sickmiller's testimony that the
inoperative equipment caused a 10 percent increase in overall project costs, amounting
to approximately $476,000. During the examination, when Sickmiller attempted to testify
about this figure, the trial court sustained objections and conducted a sidebar conference
to address the foundation for such testimony.
{¶ 45} The court's concerns were well-founded. Sickmiller's proposed testimony
that the inoperative equipment was responsible for 10 percent of the project's increased
costs lacked the necessary foundation to satisfy Evid.R. 701's requirements. The court
noted the logical inconsistency in claiming that the machine was responsible for 10
percent of the project costs when rental replacement equipment costs were already being
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separately claimed as damages.
{¶ 46} The court's ruling properly recognized that Sickmiller's proposed testimony
was speculative rather than based on firsthand observations and personal knowledge.
While Sickmiller undoubtedly had knowledge of the project's overall costs and the
challenges caused by the inoperative equipment, his conclusion that this specific
equipment failure caused precisely 10 percent of the project's cost increases required
analytical reasoning that extended beyond lay opinion testimony into the realm of expert
opinion.
{¶ 47} The trial court's exclusion of the challenged testimony demonstrates a
reasoned application of Evid.R. 701's requirements. The court allowed Sickmiller to testify
extensively about his personal knowledge of the project, the equipment failure, the costs
incurred for rental replacement equipment, and the impact on the project timeline. But the
court properly drew the line at permitting testimony that required specialized knowledge
or analytical conclusions not sufficiently grounded in firsthand observations.
{¶ 48} Even assuming that the trial court's exclusion of some testimony was error,
such error was harmless. The record reflects that Sickmiller was permitted to testify about
substantial damages, including the costs reflected in Exhibits 9 and 10 themselves, the
rental replacement equipment costs exceeding $171,000, and the general impact of the
equipment failure on the project. The jury was presented with sufficient evidence to
assess MCM's damages, as evidenced by the verdict awarding $15,487.67 on the
negligent misrepresentation claim.
{¶ 49} The excluded testimony, while potentially supportive of MCM's damages
claims, was not essential to establishing the basic elements of damages. The court's
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limitation of Sickmiller's testimony to matters within his personal knowledge and
experience, while excluding more speculative conclusions, reflects proper application of
Evid.R. 701 and does not constitute an abuse of discretion.
{¶ 50} The trial court's exclusion of portions of Sickmiller's testimony was a
measured and appropriate exercise of its discretionary authority to ensure that lay opinion
testimony complies with Evid.R. 701's requirements. The court properly distinguished
between testimony based on firsthand knowledge and experience, which was admitted,
and testimony requiring specialized analytical conclusions, which was excluded. The
court's application of evidentiary rules does not constitute an abuse of discretion.
{¶ 51} The second assignment of error is overruled.
C. Inconsistency of Verdicts and Cumulative Error
{¶ 52} The third assignment of error alleges:
THE JURY VERDICTS ARE INCONSISTENT.
{¶ 53} The fourth assignment of error alleges:
THE CUMULATIVE ERROR IN THIS MATTER WARRANTS REVERSAL OF THE JURY'S VERDICT AND REMAND FOR A NEW TRIAL.
{¶ 54} We have determined that the jury verdict is against the weight of the
evidence and that the case must be remanded for a new trial. Consequently, issues
related to the inconsistency of jury verdicts and cumulative error are moot and need not
be addressed.
III. Conclusion
{¶ 55} We have sustained the first assignment of error, having determined that the
jury verdict is against the weight of the evidence. The trial court's judgment is reversed to
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the extent the jury's verdict was against the manifest weight of evidence, affirmed with
regard to the exclusion of damages evidence, and this case is remanded for a new trial
consistent with this opinion.
M. POWELL and SIEBERT, JJ., concur.
JUDGMENT ENTRY
The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, reversed and this cause is remanded for a new trial and further proceedings according to law and consistent with the Opinion filed the same date as this Judgment Entry. In all other respects, the judgment of the trial court is affirmed.
It is further ordered that a mandate be sent to the Clermont County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed 50% to appellant and 50% to appellee.
/s/ Robert A. Hendrickson, Presiding Judge
/s/ Mike Powell, Judge
/s/ Melena S. Siebert, Judge
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