[Cite as TRAX Constr. Co. v. Reminderville, 2021-Ohio-3484.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY
TRAX CONSTRUCTION CO., CASE NO. 2021-L-002
Plaintiff-Appellant, Civil Appeal from the -v- Court of Common Pleas
VILLAGE OF REMINDERVILLE, et al., Trial Court No. 2018 CV 000184 Defendant-Appellee.
OPINION
Decided: September 30, 2021 Judgment: Affirmed
O. Judson Scheaf, III, Jeffrey A. Yeager, and Elise K. Yarnell, Hahn Loeser & Parks LLP, 65 East State Street, Suite 1400, Columbus, OH 43215, and Andrew J. Natale and Aaron S. Evenchik, Hahn Loeser & Parks LLP, 200 Public Square, Suite 2800, Cleveland, OH 44114 (For Plaintiff-Appellant).
Angela F. Lohan, Village of Reminderville Law Director, 3382 Glenwood Boulevard, Reminderville, OH 44202 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, TRAX Construction Co. (“TRAX”), appeals from the judgment of
the Lake County Court of Common Pleas, after a trial by jury, which found appellee, the
Village of Reminderville (“Village”), in breach of contract, but awarded TRAX no damages
on the finding of liability. Because TRAX did not object to the jury instructions relating to
damages or seek an instruction for (at least) nominal damages on the Village’s breach of
contract, we hold there was no error in the jury’s award of zero damages. {¶2} TRAX is a construction company specializing in excavating, repairing, and
replacing underground utilities. By way of its owner and president, Christopher Valletto,
TRAX contracted with the Village to perform underground utility construction work,
including a new sanitary-force main, a new water main, and new storm sewers (“the
Project”). The contract bid was for $2,078,000 and was based upon a specified work
schedule which was originally set to commence on June 12, 2017 and finish on October
31, 2017. At a preconstruction meeting, the parties confirmed that the city of Cleveland
and Summit County would be involved in inspecting and paying for a portion of the work;
and all contractor pay requests and change orders (work added to or deleted from the
original contract) had to be submitted to OHM, the engineering firm used by the Village,
for processing before submission to the Village for final approval.
{¶3} Chad Lewis, an OHM engineer, assisted OHM in drafting the design.
According to Mr. Lewis, TRAX was entitled to rely upon the plans set forth in the design,
in particular the location of the utilities to be replaced or repaired as depicted in the design.
Appellant-Eugene Esser, an engineer for OHM, acted as the Project Manager and as the
contractual liaison between TRAX and the Village (Mr. Esser was designated as the
Village’s engineer outside of his work on the project). Mr. Scott Hines was OHM’s
construction manager and was the main point of contact between TRAX and OHM.
According to Mr. Valetto, all communications went through Mr. Hines who was in direct
contact with Mr. Esser.
{¶4} Mr. Esser, along with the Village, were responsible for establishing funding
for the Project. According to the Village’s Mayor, Sam Alonso, the Village relied upon
OHM to properly administer the contract; and, if something noteworthy or important
Case No. 2021-L-002 occurred or failed to occur during the course of the Project, the Mayor maintained the
Village expected OHM to contact him and/or the Village council to discuss such matters.
{¶5} When TRAX began excavation for the Project, it discovered the project
design was flawed; initially, the utilities depicted in the design were not in the location
identified. Mr. Hines subsequently advised TRAX to move further down the line as
depicted on the plan to address what was shown to be an abandoned water line. When
TRAX located this line, it discovered it was not abandoned and, due to certain regulations
relating to excavating live lines, the plan needed to be revised. According to Mr. Valletto,
the postponement required TRAX to remain on the job and incur additional time and
resource costs. OHM, via Mr. Lewis, admitted that TRAX was entitled to rely upon the
design plans, including utility locations. And Mr. Lewis, conceded the actual utility
locations were different than those depicted on the design plan.
{¶6} In light of the construction delay, TRAX, via Mr. Jeffrey Busch (TRAX’s
Project Manager), Mr. Valletto, or other representatives, provided OHM, Mr. Hines, Mr.
Esser, and the Village with numerous written correspondences requesting, inter alia,
progress meetings to discuss factors impacting the project due to the postponement(s)
and what was eventually characterized as an “indefinite standby.” Overall, some 16
letters were sent between August 3, 2017 and February 23, 2018; ultimately, only two
progress meetings were held (the first on October 30, 2017 and the second occurring on
November 28, 2017); and, although on-site verbal communications took place, OHM sent
a written response to only two of TRAX’s letters.
{¶7} As of late November 2017, Mr. Valletto stated TRAX had explained to OHM
and the Village, via letter and verbal exchanges, the problems it was experiencing due to
the inability to move forward. Specifically, TRAX, through Mr. Valletto, advised the Village 3
Case No. 2021-L-002 and OHM: “we are continually being damaged by our equipment and manpower out there
on the project well beyond the completion time and that we are also financing the project
and financing additional work that we’ve been assured payments on and that’s basically
what we are telling them and that we are tracking these costs.” According to Mr. Valletto,
no representative of the Village or OHM disputed these points. Indeed, during this
timeframe, a point at which construction would be slowed due to potential weather
interference, no agent of the Village or OHM advised TRAX to leave the site to avoid
further time-and-resource costs.
{¶8} Considering the lack of payment and additional expenditures, TRAX made
a public-records request asking the Village to produce all files, including emails and text
messages, relating to the changes to the project design, additional-cost claims submitted
by TRAX, and the “positions that exist between the Village and its design engineer.”
TRAX stated it required this information in the event it “must escalate the matter to recover
the compensation due.” TRAX received no response to the request.
{¶9} On December 12, 2017, nearly six weeks after the original, scheduled
completion date, TRAX sent a letter to Mr. Hines, OHM, and the Village regarding a
change order and pay application which did not account for its completed work. The letter
noted the Village would be in material breach of the contract by failing to timely process
payment requests for work performed.
{¶10} On December 27, 2017, TRAX sent the Village and OHM a letter advising
that it had not been paid for base contract work and had been unable to confirm the
processing of pending payment applications. The letter noted that OHM and the Village
represented to TRAX “many weeks ago” that the applications had been submitted but,
given the uncertainty and delay, TRAX was concerned the applications were never sent. 4
Case No. 2021-L-002 TRAX requested copies of the submission and any related paperwork regarding the
payment applications. The letter also advised that TRAX had sent various letters to the
Village and OHM regarding the absence of required design documents, certain
interferences with work, and additional-cost claims associated with compensable delays.
TRAX noted that despite repeated efforts to mitigate costs, the Village and OHM have
failed and refused to follow the provisions of the original contract and timely process
accurate payment applications. TRAX received no written response to this letter and no
meeting was arranged or held.
{¶11} On January 22, 2018, TRAX, via Mr. Valletto, again wrote the Village and
OHM. That letter advised that the Village’s finance officer’s certificate in the original
contract was $897,000 and TRAX has, or will, surpass that level of costs. TRAX
expressed serious concern regarding the uncertainties surrounding the certified financing
and noted it had endeavored to meet with the Village and OHM but received no response.
TRAX stated it was entitled to a revised certificate showing the entire amount of the
contract bid. Meanwhile, the letter advised if the Village or OHM disputed any change
orders, TRAX requested a meeting. TRAX requested the Village and OHM to respond
by the close of business on Friday, January 26, 2018. Mr. Valleto stated he did not
receive a response to this letter and no meeting was arranged.
{¶12} Mr. Valletto pointed out that the Village finance officer’s certification
essentially ensures that funds are available to pay a contractor for work completed. Still,
one of the duties of OHM, as project manager, included determining the amount for the
Village’s fiscal officer to certify. Because the project had gone in an unexpectedly bad
direction for TRAX, Mr. Valletto and his associates revisited the contract and found the
funds certified, $897,000, were far lower than the $2,078,000 accepted by the Village on 5
Case No. 2021-L-002 TRAX’s bid. He noted this discovery was “a big alarm button for us.” As such, if TRAX
performed more than $897,000 of actual work, it was at risk of not being paid beyond that
amount. Thus, TRAX requested the Village to recertify the funds to an amount that would
be sufficient to cover expenses to date. Mr. Valletto ultimately admitted he did not fully
review the fund-certification aspect of the contract when he signed it on behalf of TRAX.
He also admitted he would not have signed it had he known the certification was much
lower than the bid.
{¶13} On January 29, 2018, OHM sent TRAX a letter, via Mr. Hines, which, among
other things, requested a written schedule for when TRAX intended to return to work on
the project. TRAX subsequently responded to this request, stating it could not provide a
schedule for returning to work because its billings have reached the limit of the finance
officer’s certificate in the contract. Moreover, TRAX pointed out that OHM had previously
directed it to stop work, and, without a recertification, re-commencing work was not
possible. In effect, TRAX stated “OHM is preventing TRAX’s performance and delaying
TRAX.” TRAX demanded the Village and OHM to process its pending pay applications.
Mr. Valletto stated he received no response to this missive.
{¶14} In light of the foregoing, on February 1, 2018, TRAX sent the Village and
OHM a letter advising them that it had filed the underlying complaint and submitted a copy
of the same. TRAX pointed out that, even though it has tried to work with both the Village
and OHM, they have essentially ignored all requests for meetings and failed to certify
funds for further payments. TRAX stated it remained ready and willing to discuss the
issues, but no further work would occur on the project. Also, TRAX emphasized that,
because the project had not been recertified and its equipment and materials were sitting
idle, the Village had commenced taking its materials. Mr. Valletto stated TRAX had a 6
Case No. 2021-L-002 surplus of stone; the Village, however, without TRAX’s permission, began using the
materials to backfill potholes and trenches.
{¶15} In their complaint, TRAX alleged fraud/willful concealment, breach of
contract, and theft/conversion against the Village; and, against OHM and Mr. Esser, it
alleged fraud/willful concealment, negligence, and theft/conversion. The Village filed a
counterclaim against TRAX and a cross-claim against OHM and Mr. Esser, seeking, in
relevant part, indemnity and contribution from OHM and Mr. Esser.
{¶16} Subsequently, on April 11, 2018, the Village issued a funding certificate in
the amount of $2,078,789.55. Later, on May 24, 2018, the Village terminated TRAX for
convenience; at that point, TRAX had been paid $979,509.83 for the work it had
performed. Meanwhile, the Village filed cross-claims against the OHM defendants
seeking indemnity and contribution, with a supplemental cross-claim alleging negligence.
{¶17} Beyond the facts set forth above, Mr. Esser testified that, while acting as
OHM’s project manager, OHM owed TRAX the duties to take ownership of mistakes, to
deal fairly and honestly with it, and to act as a faithful agent, including keeping it fully
informed. Mr. Esser stated that such duties also involve being fully informed and
communicating with a client in various forms such as writing, email, and verbal contact.
He testified that a project manager and engineer has an obligation to be truthful and
neither conceal nor fail to disclose important information. Mr. Esser agreed that the
foregoing standards applied to OHM’s relationship with TRAX and TRAX was entitled to
rely upon him and OHM to adhere to these standards.
{¶18} Mayor Alonso testified that having the necessary money to fund a project is
important and TRAX was entitled to be concerned if sufficient funds had not been
secured. He also agreed that if TRAX was on the project longer than expected, through 7
Case No. 2021-L-002 no fault of its own, it is entitled to the requisite compensation. Moreover, Mayor Alonso
agreed that TRAX kept OHM, at the very least, apprised of the entire time and costs it
had incurred on the project. And the mayor testified that the Village would remit payment
to TRAX to the extent “everything looks good” (with respect to payment applications) to
OHM. According to Mr. Hines, all change orders that were approved by OHM were paid
by the Village. In fact, Deborah Wordell, the Village’s financial officer, seven payment
applications were approved, all of which were paid for a total payment by the Village of
$979,509.83.
{¶19} Still, according to Mr. Valletto, OHM had repeatedly assured TRAX, via both
Mr. Esser and Mr. Hines, it would be paid for the additional time and work, but no such
payment was promptly or obviously processed. Contrary to Mr. Valletto’s testimony, Mr.
Hines testified he did not assure TRAX it would be paid; instead, Mr. Hines observed that
the applications relating to the change orders would be reviewed and decisions would be
made accordingly.
{¶20} After each party rested, the trial court entered a directed verdict for OHM on
TRAX’s and the Village’s negligence claims, but denied a directed verdict on TRAX’s
fraud claims. The jury ultimately returned a verdict in favor of the Village on TRAX’s fraud
claims and in favor of TRAX on the breach of contract claims, but awarded zero damages
for the Villages breach of contract. The jury found in favor of TRAX on the fraud claims
against OHM and Mr. Esser. The jury also found in favor of the Village against OHM and
Mr. Esser on its indemnity cross-claim. The jury found that TRAX’s damages were
caused exclusively by OHM/Esser due to their concealments and fraudulent actions on
which TRAX justifiably relied. OHM and Mr. Esser moved for a judgment notwithstanding
the verdict and a new trial, each of which were denied. As outlined above, the jury and 8
Case No. 2021-L-002 judge eventually ordered damages and fees in an amount just under $1.9 million. TRAX
now appeals the jury’s verdict awarding no damages for the Village’s liability on the
breach of contract claim. It assigns the following as error:
{¶21} “The jury’s award of zero dollars ($0) on its verdict in favor of TRAX against
the Village for breach of contract is against the manifest weight of the evidence.”
{¶22} TRAX argues the damages award should be reversed and this matter
remanded for a new trial solely on damages because this aspect of the verdict is against
the manifest weight of the evidence relating to the damages TRAX allegedly suffered.
{¶23} “[A]n appellate court will not reverse a judgment as being contrary to the
weight of the evidence as long as there is some competent, credible evidence supporting
the judgment.” In re Kangas, 11th Dist. Ashtabula No. 2006-A-0084, 2007-Ohio-1921,
¶81. The manifest-weight standard of review is the same in a civil case as in a criminal
case. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶17.
{¶24} When applying the manifest-weight standard of review, the reviewing court
reviews the entire record, “‘weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence,
the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice
that the [judgment] must be reversed and a new trial ordered.’” Eastley, supra, ¶20,
quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, (9th Dist.2001). “The finder of
fact is entitled to believe all, part, or none of the testimony of any witness.” River Oaks
Homes, Inc. v. Twin Vinyl, Inc., 11th Dist. Lake No. 2007-L-117, 2008-Ohio-4301, ¶27.
{¶25} “[W]here the inadequacy of the verdict is so gross as ‘to shock the sense
of justice and fairness,’ or where the amount of the verdict cannot be reconciled with the
undisputed evidence in the case, or where it is apparent that the jury failed to include all 9
Case No. 2021-L-002 the items of damage making up plaintiff’s claim, the judgment entered on such verdict
may be set aside by a reviewing court as being manifestly against the weight of the
evidence and contrary to law. Toledo Rys. & Light Co. v. Mason, [81 Ohio St. 463 (1910)];
2 Ohio Jurisprudence (App.Rev., Pt. I), 1660, Section 877.” Sherer v. Smith, 85 Ohio App.
317, 322 (6th Dist.1949); see, also, Garaux v. Ott, 5th Dist. Stark No. 200 CA 00183,
2019-Ohio-2044, ¶22.
{¶26} TRAX notes that, upon a finding of a breach of an agreement, “the law infers
damages, and if none are proved, nominal can be recovered.” First Natl. Bank of
Barnesville v. W. Union Tel. Co., 30 Ohio St. 555, 568 (1876); see also, Woodrow v.
McGuire, 4th Dist. Scioto No. 1740, 1989 WL 72799, (June 27,
1989), quoting Vanderpool v. Waddell, 4th Dist. Lawrence No. 1822, 1987 WL 19853,
(Nov. 12, 1987) (“‘Where there is a breach of a contract, the law infers damages and if
actual damages are not proved, nominal damages may be recovered’”).
{¶27} Initially, although TRAX cites law that establishes that nominal damages are
recoverable upon proof of liability in a breach of contract case, the Supreme Court of Ohio
has definitively qualified that rule. The Court, in DeCastro v. Wellston City School Dist.
Bd. Of Edn., 94 Ohio St.3d 197 (2002), pointed out that the rule is somewhat puzzling
and consequently held that “unless a significant right is involved, including inequitable
assessment of costs, an appellate court should not reverse and remand a case for a new
trial if only nominal damages could result.” Id. at 200. In drawing this conclusion, the
Court observed that, applying the maxim “de minimis non curat lex,” i.e., the law cares
not for small things, a court of appeals should not reverse for the failure to award nominal
damages where there is no issue of costs or violation of an appealing party’s substantial
rights. Id., citing Williston on Contracts (3 d.1968), 208 (other citations omitted). In this 10
Case No. 2021-L-002 respect, and with no allegation that any substantial right was somehow violated by the
jury’s award of zero damages, TRAX’s argument is unavailing.
{¶28} Moreover, the jury instructions on damages provided:
{¶29} “As to damages, if you find by the greater weight of the evidence that the
Village of Reminderville breached the contract with TRAX, whether as a result of a failure
to provide accurate information in the plans and specifications, or by breaching express
contract terms, or both, then TRAX Construction Company is entitled to damages in the
amount sufficient to place it in the same position in which it would have been if the contract
had been fully performed by the Village of Reminderville to the extent that the damages
are reasonably certain and reasonably foreseeable.
{¶30} “You may only award damages the existence and amount of which are
reasonably certain and have been proved to you by the greater weight of the evidence.
You may not award damages that are remote and speculative.
{¶31} “You may only award those damages that were the natural and probable
result of the breach of the contract or that were reasonably within the contemplation of
the parties as the probable result of the breach of contract. This does not require that the
Village of Reminderville actually be aware of the damages that will result from the breach
of contract so long as the damages were reasonably foreseeable at the time the parties
entered into the contract as a probable result of the breach.”
{¶32} TRAX neither objected to the instruction nor sought an instruction that would
legally require the jury to assess “nominal damages” if it found liability for breach on the
Village’s behalf. Ohio Jury Instructions, CV 501.33(7) provides: “NOMINAL DAMAGES.
If you find that the defendant has (breached) (broken) the contract with the plaintiff, and
if you further find that the plaintiff has failed to prove any damages calculated according 11
Case No. 2021-L-002 to these instructions, you may award the plaintiff nominal damages. “Nominal” means
trifling or small. Nominal damages are generally $10 or less.” In light of this provision,
TRAX could have sought a jury instruction on nominal damages. Because it did not do
so, the jury was not placed on notice that nominal damages were possible.
{¶33} Regardless, given the content of the actual instructions, the jury could have
found the Village, in some capacity, breached the contract, but, in light of OHM’s status
as administrator of the contract, that any damages resulting from the Village’s breach
were neither reasonably certain nor foreseeable. And, in light of the jury’s conclusion
regarding the OHM defendants’ commission of fraud, the jury could conclude that no
damages were “the natural and probable result” of the Village’s breach.
{¶34} TRAX’s assignment of error lacks merit.
{¶35} For the reasons discussed in this opinion, the judgment of the Lake County
Court of Common Pleas is affirmed.
MARY JANE TRAPP, P.J.,
MATT LYNCH, J.,
concur.
Case No. 2021-L-002