Universal Steel Bldgs. Corp. v. Dues
This text of 2024 Ohio 698 (Universal Steel Bldgs. Corp. v. Dues) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
[Cite as Universal Steel Bldgs. Corp. v. Dues, 2024-Ohio-698.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MERCER COUNTY
UNIVERSAL STEEL BUILDINGS CORP., DBA OLYMPIA STEEL BUILDINGS CORPORATION, CASE NO. 10-22-07
PLAINTIFF-APPELLEE/ CROSS-APPELLANT,
v.
DANIEL DUES, ET AL., OPINION
DEFENDANTS-APPELLANTS/ CROSS-APPELLEES.
Appeal from Mercer County Common Pleas Court Civil Division Trial Court No. 17-CV-083
Judgment Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Decision: February 26, 2024
APPEARANCES:
Terrence G. Stolly and Connor W. Kinsey for Appellants/ Cross-Appellees
Richard Schroeter, Jr. for Appellee/Cross-Appellant Case No. 10-22-07
ZIMMERMAN, J.
{¶1} Defendants-appellants/cross-appellees, Daniel Dues (“Daniel”) and
Denise Dues (“Denise”), appeal the judgment of the Mercer County Court of
Common Pleas denying their motion for judgment notwithstanding the verdict
(“JNOV”) as well as the judgment of the Mercer County Court of Common Pleas
granting plaintiff-appellee/cross-appellant’s, Universal Steel Buildings
Corporation, dba Olympia Steel Buildings (“Universal Steel”), motions for JNOV
and directed verdict. Universal Steel appeals the judgments of the Mercer County
Court of Common Pleas granting the Dues family’s motion for a jury trial, entering
judgment on the jury’s verdict, and denying its motion for attorney fees. For the
reasons that follow, we affirm in part and reverse in part.
Background
{¶2} This case stems from July 3, 2014 and October 7, 2016 contracts
between Daniel and Universal Steel for the design and fabrication of a steel barn to
be constructed on the Dues family’s dairy farm located at 4212 Siegrist-Jutte Road
in Coldwater, Ohio (“4212 property”) for $267,000.00.1 Daniel and Denise own
and operate the dairy farm with their sons, Kyle Dues (“Kyle”) and Craig Dues
(“Craig”) (together, “the Dues sons”) (collectively, “the Dues family”). Daniel and
1 At the time that the dairy-barn project commenced, the Irene and Virgil Dues Trust owned the 4212 property. Later, the 4212 property transferred to Kyle and Craig Dues.
-2- Case No. 10-22-07
Denise reside at an adjacent parcel, located at 4300 Siegrist-Jutte Road in
Coldwater, Ohio (“4300 property”).2
{¶3} Universal Steel, a Pennsylvania company, sells pre-engineered steel
buildings. Specifically, Universal Steel “produces pre-engineered design drawings
for the steel components based upon a customer’s request.” (Appellee’s/Cross-
Appellant’s Brief at 1). Since Universal Steel does not offer construction or
installation services—including the design or installation of foundations for its pre-
engineered steel buildings—a customer must hire a third party to design a
foundation that will conform to Universal Steel’s pre-engineered design.
{¶4} In this case, the Dues family intended to construct a barn on the site of
their dairy farm at the 4212 property “to facilitate manure and methane management
through a flush system and specifically designed roof.” (Appellant’s/Cross-
Appellee’s Brief at 3). The Dues family was motivated to construct the barn under
the United States Department of Agriculture’s (“USDA”) Natural Resources
Conservation Service’s (“NRCS”) Environmental Quality Incentive Program
(“EQIP”), which incentivizes agricultural producers to address natural-resource
concerns, including manure-management incentives. Here, the Dues family
intended to “export manure out of the facility” as well as construct “a sloping floor,
so that the liquid manure * * * can be flushed down to the lagoon * * * so [they]
2 Daniel and Denise own the 4300 property.
-3- Case No. 10-22-07
didn’t have to run a skid loader in there every day to scrape out the aisles.” (July
26-29, 2022 Tr., Vol. II, at 369).
{¶5} Daniel executed the first contract with Universal Steel on July 3, 2014
for an initial set of construction drawings and paid Universal Steel a $10,000.00
engineering deposit.3 (See Doc. No. 10, Ex. 1). Importantly, that contract
“identified the location and heights of the framed doors.” (Appellant’s/Cross-
Appellee’s Brief at 3).
{¶6} Ultimately, Daniel executed a new contract on October 7, 2016 with
Universal Steel and “paid the manufacturing deposit in the amount of $90,125.00 *
* * .”4 (Id. at 5). (See Doc. No. 10, Ex. 2). Significantly, the new contract specified
that the barn would feature “one 10x10 foot, four 12x10 foot, one 14x14 foot, and
two 20x14 foot framed door openings.” (Appellant’s/Cross-Appellee’s Brief at 5).
{¶7} Thereafter, the parties executed multiple change orders to the original
contract. The first change orders were executed in October and November 2016 to
modify “the column locations” and “the baseplates on interior columns * * * .” (July
26-29, 2022 Tr., Vol. I, at 112-113). (See also Doc. No. 144). More specifically,
the November 2016 change order “changed the bolt pattern and interior
baseplates”—that is, the change order changed the design “from a four-bolt bolt-
down to a two-bolt” pattern. (July 26-29, 2022 Tr., Vol. II, at 274). That change
3 Even though Kyle’s name appears on the contract, Daniel executed the contract. 4 Daniel paid Universal Steel “a $17,000.00 deposit for the steel building materials” on May 17, 2017. (Doc. No. 10). (See Doc. No. 10, Ex. 3).
-4- Case No. 10-22-07
order also changed the design of the roof from “an 18-inch opening on the top of
the roof [to] 32 inches.” (Id. at 275). Signifcantly, the change order did not alter
the height of the door openings.
{¶8} Prior to beginning construction of the barn, Daniel executed a contract
with Ann Rethman (“Rethman”) of Rethman Design Inc. to design “the concrete
load bearing capacity,” including “determining weight restrictions, and designing
the foundation in accordance with Universal’s design.” (Appellant’s/Cross-
Appellee’s Brief at 4-5). Rethman provided Daniel with design plans, which not
only conformed to Universal Steel’s plans but also complied with the EQIP
guidelines. Importantly, Rethman’s design plans required that the perimeter wall
foundations (or piers) to be built at a specific height “[a]bove finish floor” to comply
with USDA’s NRDC regulations to qualify for EQIP funding. (July 26-29, 2022
Tr., Vol. II, at 316). Specifically, Rethman’s design plans required the perimeter-
wall foundations to be 71.25 inches tall.
{¶9} Later, Daniel hired A&J Framing and Concrete, LLC (“A&J
Framing”)—an Amish construction company from Indiana—to perform the
foundation and concrete work and to erect the barn. However, while performing the
foundation and concrete work, A&J Framing mistakenly poured the concrete
columns (located in the southwest corner of the barn) two and three-quarter inches
shorter than depicted in the design. To compensate for the error, Daniel executed
another change order in February 2017, which changed “13 columns’ length by two
-5- Case No. 10-22-07
and three quarter inches, because [A&J Framing measured in] tenths instead of
inches.” (July 26-29, 2022 Tr. Vol. II, at 277). (See Plaintiff’s Ex. 7). Specifically,
the parties agreed “to add two and three quarter inches [of steel] to the length of the
columns on the left end wall, and add frame lines,” and they agreed that Daniel did
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[Cite as Universal Steel Bldgs. Corp. v. Dues, 2024-Ohio-698.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MERCER COUNTY
UNIVERSAL STEEL BUILDINGS CORP., DBA OLYMPIA STEEL BUILDINGS CORPORATION, CASE NO. 10-22-07
PLAINTIFF-APPELLEE/ CROSS-APPELLANT,
v.
DANIEL DUES, ET AL., OPINION
DEFENDANTS-APPELLANTS/ CROSS-APPELLEES.
Appeal from Mercer County Common Pleas Court Civil Division Trial Court No. 17-CV-083
Judgment Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Decision: February 26, 2024
APPEARANCES:
Terrence G. Stolly and Connor W. Kinsey for Appellants/ Cross-Appellees
Richard Schroeter, Jr. for Appellee/Cross-Appellant Case No. 10-22-07
ZIMMERMAN, J.
{¶1} Defendants-appellants/cross-appellees, Daniel Dues (“Daniel”) and
Denise Dues (“Denise”), appeal the judgment of the Mercer County Court of
Common Pleas denying their motion for judgment notwithstanding the verdict
(“JNOV”) as well as the judgment of the Mercer County Court of Common Pleas
granting plaintiff-appellee/cross-appellant’s, Universal Steel Buildings
Corporation, dba Olympia Steel Buildings (“Universal Steel”), motions for JNOV
and directed verdict. Universal Steel appeals the judgments of the Mercer County
Court of Common Pleas granting the Dues family’s motion for a jury trial, entering
judgment on the jury’s verdict, and denying its motion for attorney fees. For the
reasons that follow, we affirm in part and reverse in part.
Background
{¶2} This case stems from July 3, 2014 and October 7, 2016 contracts
between Daniel and Universal Steel for the design and fabrication of a steel barn to
be constructed on the Dues family’s dairy farm located at 4212 Siegrist-Jutte Road
in Coldwater, Ohio (“4212 property”) for $267,000.00.1 Daniel and Denise own
and operate the dairy farm with their sons, Kyle Dues (“Kyle”) and Craig Dues
(“Craig”) (together, “the Dues sons”) (collectively, “the Dues family”). Daniel and
1 At the time that the dairy-barn project commenced, the Irene and Virgil Dues Trust owned the 4212 property. Later, the 4212 property transferred to Kyle and Craig Dues.
-2- Case No. 10-22-07
Denise reside at an adjacent parcel, located at 4300 Siegrist-Jutte Road in
Coldwater, Ohio (“4300 property”).2
{¶3} Universal Steel, a Pennsylvania company, sells pre-engineered steel
buildings. Specifically, Universal Steel “produces pre-engineered design drawings
for the steel components based upon a customer’s request.” (Appellee’s/Cross-
Appellant’s Brief at 1). Since Universal Steel does not offer construction or
installation services—including the design or installation of foundations for its pre-
engineered steel buildings—a customer must hire a third party to design a
foundation that will conform to Universal Steel’s pre-engineered design.
{¶4} In this case, the Dues family intended to construct a barn on the site of
their dairy farm at the 4212 property “to facilitate manure and methane management
through a flush system and specifically designed roof.” (Appellant’s/Cross-
Appellee’s Brief at 3). The Dues family was motivated to construct the barn under
the United States Department of Agriculture’s (“USDA”) Natural Resources
Conservation Service’s (“NRCS”) Environmental Quality Incentive Program
(“EQIP”), which incentivizes agricultural producers to address natural-resource
concerns, including manure-management incentives. Here, the Dues family
intended to “export manure out of the facility” as well as construct “a sloping floor,
so that the liquid manure * * * can be flushed down to the lagoon * * * so [they]
2 Daniel and Denise own the 4300 property.
-3- Case No. 10-22-07
didn’t have to run a skid loader in there every day to scrape out the aisles.” (July
26-29, 2022 Tr., Vol. II, at 369).
{¶5} Daniel executed the first contract with Universal Steel on July 3, 2014
for an initial set of construction drawings and paid Universal Steel a $10,000.00
engineering deposit.3 (See Doc. No. 10, Ex. 1). Importantly, that contract
“identified the location and heights of the framed doors.” (Appellant’s/Cross-
Appellee’s Brief at 3).
{¶6} Ultimately, Daniel executed a new contract on October 7, 2016 with
Universal Steel and “paid the manufacturing deposit in the amount of $90,125.00 *
* * .”4 (Id. at 5). (See Doc. No. 10, Ex. 2). Significantly, the new contract specified
that the barn would feature “one 10x10 foot, four 12x10 foot, one 14x14 foot, and
two 20x14 foot framed door openings.” (Appellant’s/Cross-Appellee’s Brief at 5).
{¶7} Thereafter, the parties executed multiple change orders to the original
contract. The first change orders were executed in October and November 2016 to
modify “the column locations” and “the baseplates on interior columns * * * .” (July
26-29, 2022 Tr., Vol. I, at 112-113). (See also Doc. No. 144). More specifically,
the November 2016 change order “changed the bolt pattern and interior
baseplates”—that is, the change order changed the design “from a four-bolt bolt-
down to a two-bolt” pattern. (July 26-29, 2022 Tr., Vol. II, at 274). That change
3 Even though Kyle’s name appears on the contract, Daniel executed the contract. 4 Daniel paid Universal Steel “a $17,000.00 deposit for the steel building materials” on May 17, 2017. (Doc. No. 10). (See Doc. No. 10, Ex. 3).
-4- Case No. 10-22-07
order also changed the design of the roof from “an 18-inch opening on the top of
the roof [to] 32 inches.” (Id. at 275). Signifcantly, the change order did not alter
the height of the door openings.
{¶8} Prior to beginning construction of the barn, Daniel executed a contract
with Ann Rethman (“Rethman”) of Rethman Design Inc. to design “the concrete
load bearing capacity,” including “determining weight restrictions, and designing
the foundation in accordance with Universal’s design.” (Appellant’s/Cross-
Appellee’s Brief at 4-5). Rethman provided Daniel with design plans, which not
only conformed to Universal Steel’s plans but also complied with the EQIP
guidelines. Importantly, Rethman’s design plans required that the perimeter wall
foundations (or piers) to be built at a specific height “[a]bove finish floor” to comply
with USDA’s NRDC regulations to qualify for EQIP funding. (July 26-29, 2022
Tr., Vol. II, at 316). Specifically, Rethman’s design plans required the perimeter-
wall foundations to be 71.25 inches tall.
{¶9} Later, Daniel hired A&J Framing and Concrete, LLC (“A&J
Framing”)—an Amish construction company from Indiana—to perform the
foundation and concrete work and to erect the barn. However, while performing the
foundation and concrete work, A&J Framing mistakenly poured the concrete
columns (located in the southwest corner of the barn) two and three-quarter inches
shorter than depicted in the design. To compensate for the error, Daniel executed
another change order in February 2017, which changed “13 columns’ length by two
-5- Case No. 10-22-07
and three quarter inches, because [A&J Framing measured in] tenths instead of
inches.” (July 26-29, 2022 Tr. Vol. II, at 277). (See Plaintiff’s Ex. 7). Specifically,
the parties agreed “to add two and three quarter inches [of steel] to the length of the
columns on the left end wall, and add frame lines,” and they agreed that Daniel did
“not want stamped drawings reflecting these changes.” (July 26-29, 2022 Tr., Vol.
I, at 121-122).
{¶10} In June 2017, Sukup Steel Structures, LLC (“Sukup”), the company
with which Universal Steel contracted to fabricate the barn’s components, began
delivery of the materials (in six shipments) to the Dues family’s 4212 property. The
parties agreed for Daniel and the Dues sons to unload the materials, inventory the
pieces, and report any deficiencies. At that time, the remaining balance on the
contract was approximately $166,000.00, which the parties agreed to split into five
payments of $29,000.00 and to be paid by cashier’s or certified check.
Notwithstanding the parties’ agreement to “provide the Dues forty-eight hours’
notice of the delivery of the shipments for the materials,” Daniel and the Dues sons
were not provided such notice. Consequently, Daniel was unable to provide
certified checks to Universal Steel. (Doc. No. 10). Therefore, Daniel provided
personal checks for the first three shipments of materials.5 However, Daniel refused
further payment to Universal Steel because he and the Dues sons determined that
5 Denise signed the checks.
-6- Case No. 10-22-07
the fourth delivery was missing approximately 6,000 pounds of materials (which
Universal Steel disputes). Lacking reassurance from Universal Steel that it would
provide the missing materials, Daniel stopped payment on his personal checks for
the first three shipments of materials.
{¶11} Ultimately, the barn was constructed without one 14-by-14 foot door
opening and without two 20-by-14 foot door openings as specified in the contract.
Nevertheless, the Dues family was able to correct the deficiency for one of the 20-
by-14 foot door openings—the south-facing opening. However, the Dues family
was unable to correct the deficiency of the opening located at the northeast portion
of the barn because the roof was “too short.” (July 26-29, 2022 Tr., Vol. III, at 472).
According to Kyle, they were unable to correct the deficiency because “[t]he roof
[is] too low” and “[t]here is no way to, * * * without completely tearing that whole
part of the building down, and cobbling it up, there [is] no way to correct that.”
(July 26-29, 2022 Tr., Vol. II, at 384). Consequently, that opening is “[n]ot quite”
12-feet tall. (July 26-29, 2022 Tr., Vol. III, at 472).
{¶12} Even though the Dues family was able to correct a portion of the
deficiencies, the barn does not appear as it was designed—that is, the Dues family
was required to lift the canopy on the south side of the barn by “4 feet, and [they]
had to jerry-rig the ends to match the other roof sloping down.” (Id. at 473). More
importantly, the Dues family is unable to use the barn as intended. Specifically, the
Dues family has not been able to use the “flush system” because “the banks” would
-7- Case No. 10-22-07
not lend the Dues family the money to purchase “the plumbing equipment for the
flush system.” (Id. at 378). Likewise, the Dues family has been unable to export
“the solid or dry manure” because they cannot “drive a semi in to load it” since “the
building was not built correctly.” (Id.).
{¶13} Because Universal Steel did not receive full payment for the barn, it
filed a mechanic’s lien. The mechanic’s lien, however, was placed on the Dues
family’s 4300 property. Thereafter, on September 13, 2017, Universal Steel filed a
complaint in the trial court alleging claims for breach of contract, unjust enrichment,
and fraud against Daniel and Denise, and a claim for foreclosure of the mechanic’s
lien against Daniel, Denise, and Farm Credit Services of Mid-America, FLCA
(“Farm Credit”). On October 16, 2017, Daniel and Denise filed their answer along
with counterclaims for a declaration of a defective mechanic’s lien, slander of title,
breach of contract, fraud, and misrepresentation. Farm Credit filed its answer on
October 23, 2017. Universal Steel filed its answer to Daniel and Denise’s
counterclaims on November 13, 2017.
{¶14} That same day, Universal Steel filed an amended complaint adding the
Dues sons as parties to the case and alleging claims for unjust enrichment against
the Dues sons. On November 21, 2017, the Dues family filed their answer to
Universal Steel’s amended complaint. Farm Credit filed its answer to Universal
Steel’s amended complaint on November 30, 2017.
-8- Case No. 10-22-07
{¶15} On June 15, 2018, Universal Steel filed a motion for leave to file a
second amended complaint instanter, which the trial court granted on February 22,
2019, and Universal Steel’s second amended complaint was filed that day. In its
second amended complaint, Universal Steel requested attorney fees and amended
its damages request from $149,875.00 to $166,875.00. The Dues family filed their
answer to Universal Steel’s second amended complaint on February 26, 2019. Farm
Credit filed its answer to Universal Steel’s second amended complaint on March 1,
2019.
{¶16} On June 18, 2018, the Dues family filed a motion requesting a jury
trial under Civ.R. 39(B). Universal Steel filed a memorandum in opposition to the
Dues family’s motion for a jury trial on June 28, 2018, arguing that the parties
agreed “to waive any right to a trial by jury in regard to” their October 7, 2016
agreement. (Doc. No. 60). On June 29, 2018, the Dues family filed their reply to
Universal Steel’s memorandum in opposition to their motion for a jury trial, arguing
that “any waiver of jury trial provision contained [in the parties’ agreement] is
ineffective” because Universal Steel “waived its right to enforce the provision
within which the waiver of the jury trial provision is contained.” (Doc. No. 61). On
July 11, 2018, Universal Steel filed a motion for leave to file a reply in support of
its memorandum in opposition to the Dues family’s motion for a jury trial instanter,
which the Dues family opposed.
-9- Case No. 10-22-07
{¶17} On January 31, 2020, Universal Steel filed a “supplemental”
memorandum in opposition to the Dues family’s motion for a jury trial, arguing that
the Dues family’s motion for a jury trial was not timely under Civ.R. 38. The Dues
family filed a reply to Universal Steel’s “supplemental” memorandum in opposition
to their motion for a jury trial on February 13, 2020. On February 21, 2020, the trial
court granted the Dues family’s motion for a jury trial after concluding that Daniel
did not knowingly, intelligently, or voluntarily waive the right to demand a jury trial
in the parties’ agreement. Further, the trial court determined that its “discretionary
power to order a jury trial under Civ.R. 39(B) to be moot” since the second amended
complaint raised “new issues by increasing the amount of the prayer.” (Doc. No.
188).
{¶18} On August 10, 2018, Daniel filed a motion for leave to file a third-
party complaint instanter. The trial court granted Daniel’s motion for leave on
August 13, 2018, and the third-party complaint was filed that same day. In his third-
party complaint, Daniel alleged claims for breach of contract, failure to perform in
a workmanlike manner, and fraudulent misrepresentation against A&J Framing,
John Graber (“John”), and Jonas Graber (“Jonas”) (collectively, “third-party
defendants”). The third-party defendants filed their answer on October 10, 2018.
However, on February 8, 2019, Daniel dismissed his third-party complaint against
the third-party defendants without prejudice. Prior to dismissing his third-party
complaint, Daniel deposed John, Jonas, and John Hilty (“Hilty”), an employee of
-10- Case No. 10-22-07
A&J Framing and foreman for the Dues family’s project, on July 31, 2018.
Following dismissal of Daniel’s third-party complaint, the parties notified the trial
court “that with the dismissal of third party defendants, no depositions were deemed
necessary by any of the remaining parties.” (Doc. No. 111).
{¶19} On July 24, 2019, Daniel and Denise filed a motion for leave to file
amended counterclaims, which the trial court granted the next day. Consequently,
Daniel and Denise filed their amended counterclaims on July 29, 2019 in which they
alleged claims for a declaration of a defective mechanic’s lien, slander of title,
breach of contract, tortious interference with a contract and business relations, and
misrepresentation against Universal Steel. Relevantly, Daniel and Denise
requested, in relevant part, to be awarded punitive damages. Universal Steel filed
its answer to Daniel and Denise’s amended counterclaims on August 13, 2019.
The Dues Family and Farm Credit’s Motion for Summary Judgment
{¶20} On September 16, 2019, the Dues family and Farm Credit filed a
motion for summary judgment as to Universal Steel’s claim for forclosure of a
mechanic’s lien. After being granted leave, Universal Steel filed a memorandum in
opposition to the Dues family and Farm Credit’s motion for summary judgment on
October 22, 2019. The Dues family and Farm Credit filed their reply to Universal
Steel’s memorandum in opposition to their motion for summary judgment on
October 31, 2019. On April 24, 2020, the trial court granted the Dues family and
Farm Credit’s motion for summary judgment after concluding that “Farm Credit’s
-11- Case No. 10-22-07
first and second mortgages and its security interest [are] superior liens to the lien of
[Universal Steel] on the subject real estate and fixtures thereon.” (Doc. No. 205).
Based on its request, the trial court dismissed Farm Credit as a party to the case on
June 1, 2020.
The Dues Family’s Motion for Summary Judgment
{¶21} Also on September 16, 2019, the Dues family filed a motion for
summary judgment, arguing that
[t]here is no dispute of law or material fact that Universal cannot maintain its Unjust Enrichment, Foreclosure, and Fraud claims and that the Dues are entitled to a Declaration that Universal’s Mechanics’ [sic] Lien is defective and that Universal has and continues to tortuously interfere with their business and contractual relations with their bank, [Farm Credit].
(Doc. No. 135). Universal Steel filed a memorandum in opposition to the Dues
family’s motion for summary judgment on October 8, 2019. The Dues family filed
their reply to Universal Steel’s memorandum in opposition to their motion for
summary judgment on October 21, 2019.
{¶22} On April 29, 2020, the trial court granted summary judgment in favor
of Daniel and Denise as to Universal Steel’s claims for foreclosure of the
mechanic’s lien and unjust enrichment against Denise. Further, the trial court
granted summary judgment in favor of Daniel and Denise as to their counterclaim
for declaration of a defective mechanic’s lien. Finally, the trial court denied
summary judgment in favor of the Dues family as to Universal Steel’s unjust-
-12- Case No. 10-22-07
enrichment claims against the Dues sons and Universal Steel’s fraud claim against
Daniel and Denise as well as Daniel and Denise’s counterclaim for tortious
interference with a contract and business relations.6
Universal Steel’s Motion for Summary Judgment
{¶23} On September 17, 2019, Universal Steel filed a motion for summary
judgment, arguing that “there are no genuine issues of material fact related to [its]
claims for breach of contract against Daniel Dues, or unjust enrichment against Kyle
and Craig Dues.” (Doc. No. 142). Further, Universal Steel argued that there are no
genuine issues of material fact as to its claim for foreclosure of the mechanic’s lien
against Daniel and Denise or as to Daniel and Denise’s counterclaims. The Dues
family filed a memorandum in opposition to Universal Steel’s motion for summary
judgment on October 7, 2019. On October 22, 2019, Universal Steel filed its reply
to the Dues family’s memorandum in opposition to its motion for summary
judgment.
{¶24} On April 29, 2020, the trial court granted summary judgment in favor
of Universal Steel as to Daniel and Denise’s slander-of-title counterclaim but denied
summary judgment in favor of Universal Steel as to Daniel and Denise’s
counterclaim for tortious interference with a contract and business relations. The
trial court further denied summary judgment in favor of Universal Steel as to its
6 Based on Universal Steel’s request, the trial court dismissed its breach-of-contract claim against Denise and its unjust-enrichment claim against Daniel with prejudice.
-13- Case No. 10-22-07
breach-of-contract claim against Daniel and unjust-enrichment claims against the
Dues sons.
{¶25} On June 24, 2020, the Dues family filed a motion for sanctions against
Universal Steel since it had “been on notice, at least since May 2, 2018 that their
purported lien was subordinate to two mortgages held by Farm Credit and was filed
on the wrong property,” and “despite being put on notice of the long-standing rules
of lien priority and the fact that the lien was filed on the wrong property, [Universal
Steel] refused, willfully, to stipulate to Farm Credit’s lien priority.” (Doc. No. 227).
Importantly, the Dues family alleged that “the refusal and continuous litigation
related to the lien and its priority required Farm Credit to enter into two separate
loan restructuring agreements with the Dues and resulted in Farm Credit’s attorney
fees in the amount of $9,751.39 being charged to the Dues.” (Id.). That same day,
Universal Steel filed a memorandum in opposition to the Dues family’s motion for
sanctions. On July 2, 2020, the Dues family filed a reply to Universal Steel’s
memorandum in opposition to their motion for sanctions.
{¶26} Following a hearing on August 7 and 21, 2020, the trial court denied
the Dues family’s motion for sanctions on August 27, 2020. Specifically, the trial
court concluded that Universal Steel’s conduct was not “frivolous in refusing to
stipulate to Farm Credit’s priority” because Universal Steel “was under no
obligation to enter into the requested stipulation of priority.” (Doc. No. 256).
-14- Case No. 10-22-07
{¶27} On July 29, 2021, Universal Steel filed a motion in limine, requesting
that the trial court prohibit the Dues family from introducing evidence “of alleged
consequential damages resulting from [its] alleged breach of contract” at trial. (Doc.
No. 286). The Dues family filed a memorandum in opposition to Universal Steel’s
motion in limine on August 13, 2021. On August 19, 2021, Universal Steel filed its
reply to the Dues family’s memorandum in opposition to its motion in limine. The
trial court granted Universal Steel’s motion in limine on September 9, 2021 since
the Dues family did not plead that the contract was unconscionable as a defense.
{¶28} Consequently, on October 5, 2021, the Dues family filed a motion for
leave to amend their answer to Universal Steel’s second amended complaint to add
a defense that the contract was unconscionable. Universal Steel filed a
memorandum in opposition to the Dues family’s motion for leave to amend their
answer to its second amended complaint and the Dues family filed a reply to
Universal Steel’s memorandum in opposition. The trial court granted the Dues
family’s motion for leave on November 1, 2021 and their amended answer was filed
instanter. Because of the Dues family’s amended answer, the trial court
reconsidered its decision to limit the Dues family from presenting evidence of
consequential damages at trial. After an evidentiary hearing on December 6, 2021,
the trial court on December 10, 2021 denied Universal Steel’s request to limit the
Dues family from presenting such evidence.
-15- Case No. 10-22-07
{¶29} On January 14, 2022, Universal Steel filed a motion to “bifurcate
[Daniel and Denise’s] punitive damages [counter]claim from the compensatory
damages claim within the action,” which the trial court granted that same day. (Doc.
No. 320). Also that day, Universal Steel filed motions in limine requesting that the
trial court prohibit the Dues family from introducing “the alleged cost to modify the
barn in order to provide larger door openings” or evidence relating to the
“mechanic’s lien” at trial. (Doc. Nos. 321, 322). The Dues family filed memoranda
in opposition to Universal Steel’s motions in limine on January 21, 2022. Universal
Steel filed its replies to the Dues family’s memoranda in opposition to its motions
in limine on January 25, 2022. On February 7, 2022, the trial court denied Universal
Steel’s motions in limine.
{¶30} Also on January 21, 2022, the Dues family filed a motion regarding
Universal Steel’s request for attorney fees, arguing that “[b]ecause Paragraph 20 [of
the parties’ contract] has been waived by [Universal Steel] and struck down once
already, and because waiver is a fact driven issue, the jury must decide whether
[Universal Steel] has waived its right to seek attorneys [sic] fees.” (Doc. No. 328).
On January 24, 2022, Universal Steel filed a memorandum in opposition to the Dues
family’s motion regarding its request for attorney fees. On February 7, 2022, the
trial court concluded that Universal Steel’s “claim for attorney fees to be a matter
for the court in determining whether there is a basis for the claim and to the amount,
if any, to be awarded.” (Doc. No. 348). As a result, following the jury trial, the
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Dues family filed a memorandum in opposition to Universal Steel’s request for
attorney fees on August 29, 2022.
{¶31} On January 28, 2022, the Dues family filed a motion in limine
requesting that the trial court exclude evidence of settlement negotiations under
Evid.R. 408, 402 and 403. Universal Steel filed a memorandum in opposition to the
Dues family’s motion in limine on February 17, 2022. On May 12, 2022, the trial
court granted (in part) the Dues family’s motion in limine.
Jury Trial
{¶32} The case proceeded to a jury trial on July 26-29, 2022. Prior to
opening statements, Universal Steel dismissed its fraud claim against Daniel and
Denise and Daniel and Denise dismissed their misrepresentation counterclaim. At
trial, Universal Steel presented the testimony of Victor Gutierrez, III (“Gutierrez”),
the vice president of Universal Steel, who testified regarding the contracts executed
by Universal Steel and Daniel. Generally, Gutierrez testified that Universal Steel
provides only materials for buildings from the “baseplate up” and “anything that is
below the baseplate will have to be that elevation, so that everything can form from
the baseplate up.” (July 26-29, 2022 Tr., Vol. I, at 129). Importantly, Gutierrez
explained that Universal Steel “make[s] exactly what it says on [the] drawings from
the baseplate up,” expecting a customer to “put it on the right pier to get the height
to achieve * * * the heights they need.” (Id. at 146). Here, Gutierrez explained that
the Dues family provided Universal Steel with the pier heights that they desired.
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{¶33} Following delivery of the barn, Gutierrez met with Daniel at the 4212
property to inspect the reported issues. According to Gutierrez, the column height
specified in the drawings did not match the column height that was constructed.
Likewise, Gutierrez testified that the pier height was constructed “lower than it was
intended, so then the building would be lower, because the concrete pier was not the
height it was supposed to be.” (Id. at 138). Specifically, Gutierrez testified that the
pier height was constructed at “about 44 inches” when it was supposed to be
constructed with a height of “5 foot 11 and a quarter” inches. (Id. at 138, 142).
Gutierrez testified that the result from the height discrepancy would result in shorter
door openings.
{¶34} Moreover, Gutierrez testified that the parties’ contract reflects that,
because a “[b]uyer is solely responsible for designing and constructing a foundation
for the building,” Universal Steel “has no responsibility or liability whatsoever to
[the] buyer for the erection or construction of [the] building, structure, components
or goods purchased” under the contract and that “any loss or damage” is “sustained
by [the] buyer.” (Id. at 139-140). Likewise, he testified that the parties’ contract
reflects that
[n]o warranty or representation is given by the seller as to exact dimensions, as the same will vary upon concrete base and other factors. In particular, all vertical measurements are taken from the elevation at the base of the steel columns of the building shown in the drawings, and do not take into account different elevations for the building that may result due to finished concrete floor or other elevations.
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(Id. at 148). Nevertheless, Gutierrez agreed that one of the bills of lading reflected
“some indications written on [it] that there were some missing parts.” (Id. at 159).
However, Gutierrez testified that “[t]o [his] knowledge, [those parts] were not”
missing. (Id.).
{¶35} Gutierrez testified that he attempted to communicate with Daniel and
Kyle regarding the issues with the barn and receiving payment; however, because
such resolution was unsuccessful, Universal Steel filed a mechanic’s lien on the
4300 property. Gutierrez testified that the purpose for filing the mechanic’s lien
was to receive payment, not to interfere with any of the Dues family’s business
relationships. According to Gutierrez, Universal Steel was unaware that the barn
was not constructed at the 4300 property. Importantly, Gutierrez testified that
Universal Steel assumed that the barn was constructed on the 4300 property because
“the agreement state[s] that the buyer’s * * * location was to be [the] 4300” property.
(Id. at 156).
{¶36} On cross-examination, Gutierrez testified that Universal Steel learned
that the mechanic’s lien was filed on the wrong property “[r]eal soon after” it filed
its complaint in this case. (Id. at 177). He testified that he was aware that Daniel
requested Universal Steel (on multiple occasions) to remove the mechanic’s lien
from the 4300 property. Gutierrez further testified that, even though the
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“mechanic’s lien [was declared] invalid” on April 29, 2020 by the trial court,
Universal Steel did not release the defective lien until July 29, 2020. (Id. at 185).
{¶37} Gutierrez testified that the parties’ contract provides that the “[s]ole
exclusive remedy [is] replacement, repair or credit.” (Id. at 190). However,
Gutierrez testified that Universal Steel did not adhere to that contract term.
Specifically, Universal Steel did not offer to replace or repair the barn or offer
Daniel a credit for the missing parts; rather, Universal Steel “offered [only] to come
and inventory the building for Mr. Dues to seek payment, and he declined.” (Id. at
191). Gutierrez testified that, when he travelled to the Dues family’s farm, he
observed that they altered or “field adjust[ed]” the barn to try to achieve the
contracted-for door heights. Nonetheless, Gutierrez testified that “the shipper list”
reflects a total product weight of 209,000 pounds but that the bill-of-lading summary
reflects only 203,000 pounds. (Id. at 187). Further, Gutierrez testified that he could
not explain the discrepancy and that he did not “know any parts that [were]
missing.” (Id. at 188).
{¶38} On the trial court’s examination, Gutierrez testified that Universal
Steel did not provide the 6000 pounds of missing material to the Dues family.
{¶39} However, on re-direct examination, Gutierrez testified that Universal
Steel did not ascertain which parts were missing to cause the discrepancy between
the shipper list and the bill of lading since the barn was fully constructed. According
to Gutierrez, the Dues family would not have needed to alter the barn “[t]o get a
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higher door” if “the foundation [had not been] poured short * * * .” (Id. at 199).
Finally, he testified that Universal Steel was not required to follow the “buyer’s
remedies” provided in the contract because it was not in breach of the contract. (Id.
at 201).
{¶40} As its second witness, Universal Steel offered the testimony of
Rethman, who testified that she designed the plans for the foundation of the barn
“[f]rom the baseplates to the ground.” (July 26-29, 2022 Tr., Vol. II, at 305-306).
Specifically, Rethman testified that Universal Steel provided the “elevations” and
she “state[d] those elevations on [her] drawings * * * [t]o correspond with the plans
for the pre-engineered metal building.” (Id. at 306). Rethman testified that “the
piers are what the structural steel sits on * * * .” (Id. at 318). According to Rethman,
when drafting plans for a structure, “[t]he wall[ heights] have nothing to do with the
pre-engineered metal * * * construction” because the walls do “not control the
height of the structure”; instead, “[t]he concrete piers control the height of the
structure.” (Id. at 318-319). Importantly, Rethman testified that the elevation of the
piers (which were incorporated in her plans) match the pier elevation provided by
Universal Steel.
{¶41} On cross-examination, Rethman testified that “this farm was not a new
pad that was being developed, which was going to be level.” (Id. at 336). Rather,
she testified that “[t]he whole grade [of the existing concrete pad] is * * * sloped.”
(Id. at 338). Rethman testified that her design did not involve the sloping pad
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because it did not “matter” since “they built the piers first, and then the walls, and
then the slab.” (Id. at 339).
{¶42} Rethman further testified that, after the project was finished, she
conducted “a walkthrough to make sure” “that all the anchor bolts were on the
columns, that the bracing was in the bays that we’re [sic] calling for them, that the
roof had the bracing that they called for,” and to make sure those items were
“installed correctly.” (Id. at 340). In other words, her inspection was “to make sure
that it was structurally designed, per the drawing, so that [she could] sign off on the
building.” (Id. at 341). Critically, she testified that ensuring the heights of the doors
was not part of her inspection. Specifically, she testified that “[i]t doesn’t matter *
* * what the door opening is or how tall that building is, because in the submittal is
the design loads, and that is all that matters * * * , to make sure that the building is
designed per the design loads.” (Id.). Likewise, Rethman did not inspect the heights
of the foundational walls.
{¶43} Moreover, according to Rethman, “[t]he NRCS does a final review,
and they come through” and she assumed “that when [she] signed off on it, that the
NRCS was happy with the design, and therefore, proceeded with paying [the Dues]
with money.” (Id. at 342). However, she testified that the NRCS “will not pay [the
Dues] the money until they get [her] final drawings, and they do a final
walkthrough.” (Id.).
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{¶44} On re-direct examination, Rethman clarified that an as-built drawing
reflects any changes to a structure that were made after the drawings were submitted.
Nevertheless, Rethman testified that there were no changes made after her drawings
were submitted. Rethman clarified that “the elevations [specified in the drawings
are] relative to a benchmark” since the existing concrete pad is sloped. (Id. at 346).
Specifically, she testified that “somebody found a spot on the site and called it a
benchmark” “[a]nd they set their transit unit on it, which is a surveying unit” “[a]nd
then they shoot elevations off of those.” (Id.). She further specified that at the
benchmark spot, “one pier could be 5 foot 11 and [a] half”; however, since “the
grade could either go up or down,” “it could actually be 6 foot, 7 foot taller. It could
be 4 foot, 3 foot taller * * * .” (Id. at 346-347). She testified that she did not know
who set the benchmark.
{¶45} As part of their case, the Dues family presented the testimony of Kyle,
who testified that his family explained “the features and aspects that [they] wanted
in th[e] barn” to Universal Steel. (Id. at 369). Specifically, those features included
“a sloping floor, so that the liquid manure [could] be flushed down to the lagoon to
make [their] lives more efficient, so [they] didn’t have to run a skid loader in there
every day to scrape out the aisles” along with the “manure management” system
provided for under EQIP. (Id.). According to Kyle, the most important features of
the barn are the “north doors, especially the northeast” because they needed those
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openings to be a certain height “to be able to get things in * * * to manage manure.”
(Id. at 382).
{¶46} Kyle testified that concrete floor on which the barn is constructed
“[s]lopes uphill, and it actually raises two and a half feet from center to the end of
the building on both sides.” (Id. at 403). Kyle informed the jury that the Dues
family wanted the floor to be sloped “[s]o that water can flush down, and it cleans
all the manure out of the facility, so that’s two hours a day that [they did not] have
to have someone wearing a skid loader out”; rather, “[i]t’s all gravity fed down, gets
rid of the manure, keeps cows cleaner.” (Id. at 376-377). Critically, Kyle testified
that Universal Steel expressed that it understood that the floor would be sloped.
{¶47} Notwithstanding the Dues family’s vision for the barn, the Dues
family has not been able to use the flush system because they were not able to
purchase “the plumbing equipment for the flush system” since their “resources
[were] tied up in litigation, and the banks [would not] give [them] anything else * *
* .” (Id. at 377-378). According to Kyle, the barn features “a steel plate to fold
down to feed through, [that they] can drive over, and manure goes under” but they
“haven’t been able to utilized it, because” the flush system is unusable. (Id. at 401).
Kyle testified that they are also unable to use the dry-manure management system
because they “were supposed to be able to drive a semi in to load it, and [they]
cannot do that” since “the building was not built correctly.” (Id. at 378). He
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identified Defendant’s Exhibit MM as a video that he recorded demonstrating that
a trailer will not fit through the opening in the northeast corner of the barn.
{¶48} Importantly, Kyle summarized that Universal Steel “failed to make
[the barn] tall enough.” (Id. at 378). Kyle testified that they “were able to raise the
whole awning” on the south side of the structure to achieve a 14-foot opening but
that they were unable to replicate their efforts at the northeast corner of the barn.
(Id. at 398). He explained that the height of the door in the northeast corner of the
barn is only “11 foot 9, with no header or anything in it.” (Id. at 391). In particular,
he testified that his family was unable to achieve the necessary door “height in that
northeast corner” because “[t]he roof was too low” and “there was no way to correct
that” “without completely tearing that whole part of the building down, and cobbling
it up * * * .” (Id. at 383-384). In sum, Kyle testified that the barn “definitely [does
not look] how it’s supposed to look.” (Id. at 383).
{¶49} Kyle testified that, even though they received all of the pieces (except
for some trim) necessary to construct the barn, the shipment was missing 6,000
pounds from the delivery on the bill of lading because the column pieces that were
tendered by Universal Steel were not long enough. He testified that if the “walls
weren’t right, * * * the roof would all be lopsided, if you put all those pieces where
they go.” (Id. at 378). Indeed, according to Kyle, “any claims that * * * the
foundation is incorrect is * * * simply not true, because the building fit to the
foundation.” (Id. at 395). He testified that “in [Universal Steel’s] design, whether
-25- Case No. 10-22-07
their engineer knew it or not, he achieved the height at that doorway at the lowest
point. It just failed to account for the slope.” (Id. at 396).
{¶50} Kyle testified that A&J Framing mistakenly measured the concrete-
column height “in tenths” instead of “in feet inches * * * .” (Id. at 390). Therefore,
the columns “on the outside, on the south, southwest” side of the building are two
and three quarters inches shorter than originally intended. (Id.). According to Kyle,
“instead of blaming them, ripping concrete out, trying to cobble something together,
[the Dues family] footed the bill for a change order to add the columns, extended
that two and three quarter inches to make everything right.” (Id.).
{¶51} Kyle testified that the parties’ contract provides “Replacement, Repair
or Credit” as the “Sole Exclusive Remedy” but that Universal Steel did not offer to
replace or repair the barn or offer a credit on the barn. (Id. at 380).
{¶52} On cross-examination, Kyle testified that “[y]ou can measure the walls
all you want. They’re at the correct elevation. Obviously, the building is sitting
there.” (Id. at 412-413). Kyle testified that Universal Steel’s drawing for the barn
reflects a pier with “the dimension for the 14 foot [pier which] goes from the header
to the very bottom of the foundation.” (Id. at 416). According to Kyle, Universal
Steel’s drawing for the barn was drafted in error by reflecting the measurement of
the pier from the bottom of the foundation instead of the cement floor.
{¶53} Kyle further testified on cross-examination that the barn was delivered
in “800,000 pieces,” which made their inventory of those pieces “not possible.”
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(July 26-29, 2022 Tr. Vol. I, at 210). Kyle described that they “scattered everything
out as much as possible” “over two acres, trying to figure out * * * what was all
there,” but they “couldn’t pinpoint the exact piece, so they started [constructing the
barn]” to determine where the deficiency was. (Id. at 211). Kyle testified that “there
wasn’t a certain piece missing, after going through the erection process”; rather,
they determined that “all the main columns are too short, so that’s where [the
missing] 6,000 pounds come from.” (Id. at 212). He clarified that the “mainframe
columns that hold [the] entire roof up, if they were three feet longer, and you do the
calculations on the entire building, that’s [the missing] 6,000 pounds.” (Id. at 213).
{¶54} Kyle testified that only “[t]he solid manure section” of the barn is part
of EQIP. (Id. at 222). He testified that “the whole purpose of building this barn
was [for manure management and] get the manure out of the Grand Lake watershed,
[but they] have not been able to do that.” (Id. at 225). Because they are unable to
remove manure from the barn, they are using the barn for storage. Kyle testified
that they have been unable to finish the barn, not only because the openings are not
14-feet tall, but because their “resources all have been tied up with litigation.” (Id.
at 229). He testified that the barn is only “30 percent in use” because of the
deficiencies. (Id. at 231).
{¶55} On re-direct examination, Kyle identified Defense Exhibit BB as
email communications (conducted in April 2014) between him and a representative
of Universal Steel discussing what the Dues family expected from the barn.
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Specifically, Kyle testified that he informed the representative of Universal Steel
that they were “looking to utilize a flush system to clean up manure, [with] a sloped
floor, and the cows have to eat over [a] wall.” (July 26-29, 2022 Tr. Vol. II, at 421).
Kyle testified that he also attached a sketch of the barn to the email. Specifically,
he testified that the sketch “depicts the[] columns * * * sitting on th[e] sloped wall,
because [they] needed to keep that wall consistent with the floors” and that they
“wanted 16 inches of wall above the floor the entire length of the building both
ways.” (Id. at 422).
{¶56} Next, Craig testified on behalf of the Dues family that the ventilation
of the barn is a significant feature that they sought when designing the barn.
However, Craig testified that the barn, as built, did not provide the necessary updraft
for ventilation because “the steel legs [are] short.” (July 26-29, 2022 Tr., Vol. III,
at 442). Specifically, Craig testified that “the building that [they] had in mind had
a 16 foot eave edge.” (Id. at 446). However, “with th[e] 4 foot overhang that [they]
put around the entire perimeter of the building, [that] lowered that eave edge by 16
inches,” and Universal Steel “failed to compensate for that additional 16 inches.”
(Id.). Because Universal Steel failed to compensate for the additional 16 inches, the
Dues family did not achieve the updraft for ventilation that they sought.
{¶57} Daniel testified that they did not achieve either of the 20 by 14 foot
openings as called for in the parties’ contract. However, Daniel testified that they
were able to execute a field adjustment and achieve one of the 20 by 14 foot
-28- Case No. 10-22-07
openings on the south end of the barn but that they could not replicate the adjustment
for the opening at the northeast corner of the barn. According to Daniel, they were
unable to field adjust the opening at the northeast corner of the barn because the
roof is “too short.” (Id. at 472). Instead, they were able to achieve a height of only
12 feet. Daniel testified that neither of the openings on which they conducted field
adjustments appear as they were intended to appear. Specifically, the “south side
does not match the north side” because there was “a canopy on the north side and
the south side, but [they] had to take the south whole canopy across the whole end
of the barn, lift it up 4 feet, and [they] had to jerry-rig the ends to match the other
roof sloping down * * * .” (Id. at 473). Daniel described that the opening at the
northeast corner of the barn is the “main [entrance] to the manure storage, and that’s
what truly is the end of the feed aisle, where [they] run feed wagons in there every
day.” (Id. at 472).
{¶58} Daniel testified that he requested an estimate to repair the building to
correct the height of the northeast opening as well an estimate to tear down and
replace the building. He testified that, notwithstanding the term in the contract
providing that the “sole and exclusive remedy” is “[r]eplacement, repair or credit,”
Universal Steel did not offer to replace or repair the barn or offer them credit for the
defects in the barn. (Id. at 474-475).
{¶59} Daniel testified that he contacted Universal Steel “when the last load
of steel” arrived since the “bill of lading weight didn’t match what * * * Universal
-29- Case No. 10-22-07
Steel said the building was going to weigh, on [the] pre-build packet.” (Id. at 475).
As a result of that conversation, Daniel “called the bank [the next morning], [and]
told them to cancel the[] three checks” “because it was 6000 pounds short,” “[t]here
was something missing,” and he “wanted an answer.” (Id. at 481).
{¶60} Daniel testified that the mechanic’s lien affected his relationship with
Farm Credit. According to Daniel, the Farm Credit branch in Celina “will not talk
to [him],” and that he has to travel to Washington Courthouse, Ohio for service. (Id.
at 495). Further, Daniel testified that Farm Credit accelerated a $155,000 note and
he “had to pay it back in 30 days,” he can no longer write checks from his account,
and “[t]hey took the rest of [his] other revolving line of credit [and increased] the
interest rate up [over] 8 * * * percent.” (Id. at 499). Moreover, Farm Credit assessed
its attorney fees associated litigating the mechanic’s lien to his account. Daniel
further testified that the mechanic’s lien prevented them from finishing the flush
system as well as “other things around the farm.” (Id. at 496).
{¶61} On cross-examination, Daniel testified that even though the contract
specified for two 20 by 14 foot openings, the contract further provided that
building size and other dimensions are approximate and intended to identify standard sizes sold by the seller. Except when specifically indicated, all dimensions are exterior dimensions. No warranty or representation is given by the seller * * * as to exact dimension, as the same will vary upon concrete base and other factors. In particular, all vertical measurements are taken from the elevation at the base of the steel columns of the building shown in the drawings and do not take into account differing elevations from the building that may result due to finished concrete floor or other floor elevations.
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(July 26-29, 2022 Tr., Vol. III, at 510). He testified that A&J Framing poured “13
columns, on the southwest corner” “2 and 3 quarter inches” short. (Id. at 551).
However, Daniel testified that he did not instruct A&J Framing to lower the walls
“because that was all set in stone.” (Id. at 552). According to Daniel, A&J Framing
constructed “a 2-foot wall in front of [the] cows just like industry standard is.” (Id.
at 557).
{¶62} Keith Schnippel (“Schnippel”), a construction general contractor,
testified on behalf of the Dues family that he “was engaged to go and review the
building and create a report on * * * what the issues were within the building.” (Id.
at 562). Schnippel testified that he reviewed all of the plans provided by Universal
Steel as well as Rethman’s plans. He testified that he visited the barn and noticed
that “the opening [at the northeast corner of the barn] had been modified from the
original design documents. There was supposed to be an overhang from the exterior
wall, a cantilever eave. That had been removed to allow more height, because when
they bolted the system up * * * it was not 14 foot from the floor slab.” (Id. at 571-
572).
{¶63} Schnippel identified Defendant’s Exhibit 11 as a report that he
prepared after reviewing “all of the Universal [Steel] plans, the Rethman Design
plans, the contract document between [the] Dues and Universal [Steel], and
visit[ing] the site.” (Id. at 577-578). He testified that he observed that the opening
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at the northeast corner “was approximately 12 feet” (after the Dues family erected
the barn) “[j]udging from the floor to approximately where the original bolt holes
were.” (Id. at 581). According to Schnippel, Universal Steel’s drawings reflected
that the opening “was to be a 14-foot wall opening.” (Id. at 583). However,
Schnippel resolved that Universal Steel “did not consider the sloping floor slab”
when it drafted its plans for the barn and its failure to consider the floor slope is
what caused the deficient door heights. (Id. at 583). Specifically, Schnippel
testified that Universal Steel “constantly reference[s] to the bottom of [the] diagonal
lines, which is a flat plain straight across. But when the floor slopes up, you’re
losing height. * * * The floor slab is sloping up towards the north and to the south
[causing a loss of] two feet or three feet of elevation in those openings, and that’s
why [they did] not get[] the 14-foot tall opening there.” (Id. at 584). According to
Schnippel, Universal Steel based its dimensions from “the lowest part of the floor
slab inside of the building.” (Id. at 586).
{¶64} On cross-examination, Schnippel testified “that depicting a 14 foot tall
opening, you’re not going to [get the] result with that in the actual field, because
you have a 4 foot concrete wall going through it.” (Id. at 602).
{¶65} On re-direct examination, Schnippel identified Defense Exhibit Z as a
letter that he prepared to the Dues family explaining “any solutions on modifying
the openings to allow vehicular traffic to enter in and out * * * .” (July 26-29, 2022
Tr., Vol. IV, at 621). He testified that he “propose[d] to modify the existing
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structure for the installation of the originally proposed 20 foot * * * wide by 15 foot
high overhead door in the northeast corner of the building.” (Id. at 622). To achieve
the modification, they would be required to take “a portion between the first two
rows of columns, and remov[e] a portion of the roof, and chang[e] the slope to allow
that eave height to be higher. So instead of being a single slope, the roof would
come down, and there would be then a change in pitch, and it would be flatter to
raise that opening height.” (Id. at 622). As to the south end of the barn, Schnippel
testified that he proposed “to remove the overhang above the overhead door,”
which, according to Schnippel, would “substantially change the aesthesis of the
building.” (Id. at 623). In sum, the proposed price for the alterations was $155,400
in 2019 (and that estimate was revised to $163,300 in 2022).
{¶66} Schnippel further testified that he provided an estimate “to completely
replace the building and raise it to make sure that it matched the original proposal
that was proposed to the Dues’ farm” “from the metal plates up.” (Id. at 630).
According to Schnippel, the proposed price was $925,000.
{¶67} On re-cross examination, Schnippel testified that the proposed
replacement barn includes 20-foot eaves where the original barn includes 16-foot
eaves.
{¶68} Next, Brad J. Core (“Core”), a licensed-professional and agricultural
engineer, testified on behalf of the Dues family that he “was asked to analyze * * *
the building and determine * * * what the source of the problem was with the
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building that was causing issues with the doors that were to be constructed on it.”
(Id. at 660). Core testified that “the problem with the doors is that the building, the
steel metal building that sits on top of the foundation was, through an error, was
built too short, and therefore, * * * there is not enough clearance * * * to allow for
the doors that were contracted for to be built the * * * size they were contracted for,
the height.” (Id. at 660-661). He further testified that “the error was made by * * *
Universal [Steel]” “[a]nd it was a dimensional error on the plans that led to that
ultimate error in the manufacture of the building * * * to be too short.” (Id. at 661).
{¶69} Specifically, Core testified that Universal Steel made “[a] dimensional
error on the plans, that instead of dimensioning the door opening, it dimensioned it
at the right size, but instead of dimensioning it at the top of the concrete foundation
wall, it dimensioned it to the bottom of the concrete foundation wall, or the top of
the footing, which makes * * * that opening size unattainable * * * .” (Id. at 673).
Further, he testified that “[t]he result is a 2 foot, 3 foot, or 4 foot reduction in height
or clearance for the framed door openings in the side walls” and “a 2-foot reduction
in height or clearance for the framed door openings in the south end wall.” (Id. at
673-674). In sum, he testified that Universal Steel’s plans “call[] for those
doorways to be erroneously measured from the bottom of the foundation wall, rather
than the top of the foundation wall,” which resulted in the building being “too short,”
causing “modifications to the building to increase the height/clearance of the frame
doorway.” (Id. at 674-675).
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{¶70} Importantly, Core testified that he compared Universal Steel’s plans
with Rethman’s as-built plans and “concluded that they * * * are in * * * harmony
with one other [sic], with the exception of the south wall and the southern portion
of the west wall of the * * * building,” which “differ by two and three-quarter inches
* * * .” (Id. at 679-680).
{¶71} Core testified that he reviewed Isaac Lewin’s (“Lewin”) report that
was prepared on behalf of Universal Steel and disagreed with his conclusions.
Specifically, Core testified that Lewin based his measurements “on the top of the
floor slab at the northeast corner of the cow barn,” which is not the lowest portion
of the concrete in the barn. (Id. at 684). He further disputed Lewin’s conclusion
that “[t]he elevation differences established the concrete walls were not constructed
in accordance with either the [Universal Steel] or Rethman drawings” because
Lewin based his measurements off of the northeast corner of the barn instead of the
middle (in which the lowest point of the barn is located). (Id. at 686). Significantly,
Core testified that he “went to great lengths in [his] report to make sure that the
elevations that are in [his] report are the exact same system of both plans that agree.”
(Id. at 687). As a result, Lewin’s measurements are off “exactly 2.19 feet.” (Id.).
{¶72} On cross-examination, Core clarified that he “picked a point in total
agreement between the two sets of plans and used it as the basis for [his] elevation
system * * * .” (Id. at 727). Core testified that he did not review any of the change
orders when he reviewed the plans for the barn.
-35- Case No. 10-22-07
{¶73} On re-direct examination, Core confirmed that “the dimensional error
on the Universal [Steel] plans caused the metal building that is erected on top of the
concrete foundation to be built too short, and therefore, * * * the building [does] not
properly accommodate the doors that were contracted for.” (Id. at 763).
{¶74} Next, Christian Donovan (“Donovan”), counsel for Farm Credit,
testified that Farm Credit was named as a party to the case because “there was a
foreclosure action brought by Universal [Steel], after they had filed a mechanic’s
lien.” (Id. at 767). Donovan specified that Farm Credit has “a mortgage against the
real estate [at issue in this case], and so to secure a loan from the Dues.” (Id. at
768). Donovan testified that Farm Credit requested Universal Steel to stipulate to
its “lien priority that Farm credit was first in front of the mechanic’s lien.” (Id. at
776). According to Donovan, even though such stipulation was recommended by
the trial court, Universal Steel refused (without explanation) to stipulate to the lien
priority. Donovan testified that he “thought [Universal Steel was] acting
unreasonable” since he “didn’t see any reason that they shouldn’t stipulate. That’s
common practice.” (Id. at 777). Because Universal Steel refused to stipulate to the
lien priority, Farm Credit’s [attorney] fees [were] assessed to the Dues’ account”—
namely, $9,751.39. (Id. at 779).
{¶75} Moreover, Donovan testified that
the mechanic’s lien was filed against property that was never improved, so [Universal Steel] filed it against the wrong property, which they knew about very quickly because [Farm Credit] brought it
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to everyone’s attention. Which at that point, [he] assume[d] [Universal Steel] would have released it as * * * the whole point of a mechanic’s lien is * * * to improve the real estate. That’s why [a party is] given that * * * lien right.
(Id. at 779-780). Donovan testified that “a mechanic’s lien that’s recorded on
unimproved property for [sic] the wrong property, is * * * defective immediately.”
(Id. at 780).
{¶76} On cross-examination, Donovan recalled “that there was something in
the contract regarding th[e] location” where the Dues reside as “being an
explanation provided as to why [the mechanic’s lien] was filed against that property
* * * .” (Id. at 806). However, Donovan testified that he “learned through the
litigation that [the Dues family] installed or built [the barn] on one property and the
mechanic’s lien was on a different one.” (Id. at 807). Donovan further testified that
Farm Credit “had an issue with making disbursements [to the Dues family], because
[Farm Credit] could lose priority of their lien, if they disbursed after they are notified
of a mechanic’s lien, so there was an issue * * * with accessing that line of credit.”
(Id. at 808). Donovan clarified that “Farm Credit said [the Dues family] could not
access” the line of credit “because [Farm Credit] can’t make disbursements, as long
as this mechanic’s lien is here.” (Id. at 810).
{¶77} As part of its case, Universal Steel presented the testimony of Beverly
Kremer (“Kremer”), a financial officer with Farm Credit, who testified that she is
the loan officer on the Dues family’s loan for the construction of the barn.
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Importantly, Kremer testified that she was aware that the Dues family farm “was
split up into two parcels.” (July 26-29, 2022 Tr., Vol. V, at 870). She testified that
Daniel and Denise had a mortgage (on the 4300 property) with Farm Credit for a
$155,000 line of credit for the dairy-barn project. Kremer further testified that the
Dues family had a mortgage (on the 4212 property) for $475,000 for the
construction of the barn.
{¶78} Kremer identified Plaintiff’s Exhibit 18 as a January 12, 2018 letter of
concern that Farm Credit sent to Daniel, Denise, and Kyle following an annual
financial review performed on the Dues family’s accounts. In sum, she testified that
the concerns identified in the letter could have an impact on the Dues family’s
financing with Farm Credit.
{¶79} Kremer testified that it was determined that the Dues family “had a
negative working capital by a review of the Dues’ balance sheet” as well as “cost
overruns for the dairy barn project [were] reaching a total of approximately
$250,000.” (Id. at 855-856). Specifically, Kremer testified that the letter identifies
that “a $155,000 line of credit” “was established to cover [NRDC’s] grant portion
of the dairy barn project.” (Id. at 857). She testified that she was unsure whether
the reason that it had not been repaid was because the grant had not yet been released
to the Dues family. As a second concern, she testified that “other significant cost
overruns have been experienced during the dairy barn construction project, and the
facility is still incomplete, per building plans provided.” (Id. at 859-860). Finally,
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she testified that Farm Credit identified the “litigation status [of this case] and its
short and long-term implications on [the Dues family’s] financial well-being.” (Id.
at 860).
{¶80} Furthermore, Kremer testified that Farm Credit identified as
operational and financial concerns the “[s]tagnant growth of [the Dues family’s]
dairy herd from approximately 100 to 150 milking cows to maximize the capacity
of the new facility.” (Id. at 862). The letter also identifies that there was a “stagnate
increase in production of milk per cow,” that the herd “average currently [was]
between 56 to 58 pounds per cow per day,” and that “[p]rojections of 70 pounds
were used in making [the] credit decision for repayment of the debt extended for the
new building.” (Id. at 867).
{¶81} Kremer testified that she met with the Dues family at the farm
following the transmission of the letter of concern and informed Daniel that “due to
the mechanic’s lien being filed and the litigation,” Farm Credit “would need to stop
draws on th[e] loan until things were * * * resolved.” (Id. at 866-867).
{¶82} On cross-examination, Kremer testified that Farm Credit learned of
Universal Steel’s mechanic’s lien after Universal Steel filed its complaint for
foreclosure of the lien in this case. Kremer testified that Farm Credit’s legal counsel
informed her that Universal Steel filed the mechanic’s lien on the wrong property.
She testified that, “when Farm Credit institutionally learned of the mechanic’s lien
on the Dues’ property, [it] change[d] the nature of the relationship with the
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customer” since “Farm Credit becomes concerned about its security, its collateral,
that is the real estate * * * .” (Id. at 884). Specifically, Kremer testified that Farm
Credit’s legal counsel instructed the bank to “not disburse any more, due to the lien
on the property” and the Dues family’s account was transferred to “special
accounts” in Washington Courthouse, Ohio. (Id. at 885, 887).
{¶83} As its next witness, Mark W. Bernlohr (“Bernlohr”), a construction
and commercial attorney, testified on behalf of Universal Steel that there “are
legitimate, valid, legal reasons, for refusing to stipulate to the priority of a
mortgage.” (Id. at 903). Specifically, he testified that “as a lawyer what you do is
say, no, you’re going to have to prove that your mortgage is perfect” that “there is
no fraud, that * * * the signatures are valid, that the notary was performed properly”
because “as a lien claimant, you’d like to knock that mortgage out.” (Id. at 903-
904). Bernlohr testified that, if a mechanic’s lien is not timely filed, a party “can
still file suit” since “[a] mechanic’s lien is only a device to try to secure payment *
* * .” (Id. at 905).
{¶84} On cross-examination, Bernlohr agreed that the mechanic’s lien that
was filed in this case was defective because it was filed on the wrong property since
“if you file a lien on one property, * * * it has to absolutely be on the property where
the project is.” (Id. at 907).
{¶85} Next, Universal Steel presented the testimony of Tyler Theuret
(“Theuret”), a structural engineer, who testified that he was asked to “consider a
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modification to th[e] steel structure” at issue in this case. (Id. at 918). Specifically,
Universal Steel requested that he recommend such modification to only the opening
at the northeast corner of the barn. Theuret identified Plaintiff’s Exhibit 30 as the
design that he prepared for the modification of the barn. Theuret testified that he
proposed removing “part of the roof in the corner of the building * * * to put a lower
slope, so * * * it would be higher than it was * * * .” (Id. at 920).
{¶86} On cross-examination, Theuret testified that he reviewed only one set
of Universal Steel’s plans for the building and that he did not review Rethman’s
design plans.
{¶87} Universal Steel then recalled Gutierrez, who testified that he reviewed
the modification proposed by Theuret. Gutierrez testified that he determined that
the cost of the modification proposed by Theuret “is $24,000” for the materials. (Id.
at 934). He further testified that he obtained a “labor and cost” “quote from a
contractor for the modification of this steel structure” for $23,200. Consequently,
“the total amount required for the modification proposed by” Theuret is $47,200.
(Id. at 936).
{¶88} As its final witness, Universal Steel presented the testimony of Lewin,
a structural engineer, who testified that he prepared a report regarding his
observations about the barn at issue in this case. Specifically, he testified that he
reviewed the plans provided by Universal Steel as well as Rethman’s design plans.
According to Lewin, Rethman’s design plans “conformed exactly per the Universal
-41- Case No. 10-22-07
[Steel] design plans.” (Id. at 953). Lewin testified that, based on his review of the
barn, he “found that consistently around the perimeter of the building, and some of
the interior piers, the foundations were anywhere from 18 inches to 2 to 2 and a half
feet lower than what the drawings called for by both the Universal Steel drawings
and the Rethman drawings.” (Id. at 953-954). Lewin concluded that “the contractor
* * * misinstalled the foundations that were [the] wrong height.” (Id. at 954). He
testified that “everything in the barn was consistently lower than what it was called
for on the design drawings.” (Id. at 968).
{¶89} According to Lewin, the “plans call for a corner pier to be 5 foot 11
and a quarter from the finished floor” at “the north end of the structure.” (Id. at 970-
971). However, he testified that “the foundation for the building was built
approximately two feet lower than it originally was called for in both the Rethman
plans and the [Universal Steel] building plans.” (Id. at 976). Lewin testified,
“[b]ased on review of both the [Universal Steel] design plans and the Rethman
design plans, that a 14 foot [sic] goes from the bottom of the door head to the
finished floor of the building.” (Id. at 979).
{¶90} On cross-examination, Lewin testified that he was not only “unable to
verify the slope of the concrete floor” when he inspected the barn but that he “did
not check” the slope of the floor when he inspected the barn. (Id. at 983-984).
Critically, Lewin testified that his measurements were based “on the top of the floor
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slab at the northeast corner of the cow barn” and that he did not take any
measurements from the center of the barn. (Id. at 986).
{¶91} Lewin testified that he disagreed with Schnippel’s analysis in his
report because he could not “find any evidence of sloping floor on Rethman[’s]
drawing, as they were responsible for the foundation and concrete slab design.” (Id.
at 988). However, Lewin identified an email exchange between Kyle and Universal
Steel depicting the sloped-floor design and an email exchange between Universal
Steel and Edgardo Schmitz, the person who drafted the design plans for Universal
Steel, requesting information regarding “what the slope of that floor is.” (Id. at 989).
In sum, Lewin testified that he was not “asked by Universal [Steel] to do anything
in terms of figuring the slope of the floor, what the slope grade was, where it sloped
to * * * .” (Id. at 990). He clarified that he “measured the perimeter of the building,
which made the slope of the floor irrelevant to [his] analysis.” (Id. at 992).
Significantly, Lewin testified that he was distracted the day he visited the Dues’
farm to conduct his inspection because he “fell into the manure pit on the property.”
(Id. at 1000-1001).
{¶92} At the close of Universal Steel’s case in chief, the Dues family moved
for a directed verdict as to Universal Steel’s breach-of-contract claim against Daniel
and unjust-enrichment claims against the Dues sons, which the trial court denied.
Likewise, at the close of the Dues family’s case in chief (and at the close of all
evidence), Universal Steel moved for a directed verdict as to Daniel and Denise’s
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counterclaims for tortious interference with a contract and a business relationship,
which the trial court denied.
{¶93} On July 29, 2022, the jury awarded a verdict in favor of Universal
Steel as to its breach-of-contract claim against Daniel and awarded Universal Steel
$166,875.00 in damages. However, the jury awarded a verdict in favor of Daniel
and Denise as to their breach-of-contract counterclaim and awarded them
$256,500.00 in damages. Further, the jury awarded a verdict in favor of the Dues
sons as to Universal Steel’s unjust-enrichment claims and a verdict in favor of
Universal Steel as to Daniel and Denise’s counterclaim for tortious interference with
a business relationship. Nevertheless, the jury awarded a verdict in favor of Daniel
and Denise as to their counterclaim for tortious interference with a contractual
relationship and awarded them $9,751.31 in compensatory damages.
Universal Steel’s Motion for Directed Verdict
{¶94} On August 2, 2022, Universal Steel filed a motion for a directed
verdict as to Daniel and Denise’s counterclaim for punitive damages. On August 5,
2022, Daniel and Denise filed a memorandum in opposition to Universal Steel’s
motion for a directed verdict. Nevertheless, the jury trial reconvened on August 5,
2022 as to Daniel and Denise’s counterclaim for punitive damages because of the
jury’s compensatory-damages award in favor of Daniel and Denise. That day,
Daniel and Denise presented the testimony of Gutierrez as to their counterclaim for
punitive damages. Gutierrez testified that he learned in September 2017 that the
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mechanic’s lien was filed on the wrong property. According to Gutierrez, Universal
Steel “followed legal counsel, their advice” to retain the defective mechanic’s lien
on the 4300 property. He testified that the mechanic’s lien was not released by
Universal Steel until July 29, 2020—three months after the trial court’s decision
declaring it defective. Ultimately, the trial court granted Universal Steel’s motion
for a directed verdict after concluding that “reasonable minds could only conclude
that Universal did not act with actual malice * * * .” (Doc. No. 402).
{¶95} On August 11, 2022, the trial court filed a judgment entry on the jury’s
verdict granting judgment in favor of Universal Steel against Daniel in the amount
of $166,875.00, judgment in favor of Daniel and Denise against Universal Steel in
the amount of $256,500, and judgment in favor of Daniel and Denise against
Universal Steel in the amount of $9,751.39.
{¶96} On September 7, 2022, Universal Steel filed a motion for prejudgment
interest (in the amount of $38,372.11) on its judgment in the amount of $166,875.00
as well as a motion for attorney fees. The Dues family filed memoranda in
opposition to Universal Steel’s motions for prejudgment interest and attorney fees.
On October 21, 2022, the trial court granted Universal Steel’s motion for
prejudgment interest (in the amount of $38,372.11) but denied Universal Steel’s
motion for attorney fees. (Doc. Nos. 424, 432).
Universal Steel’s Motions for JNOV and Remittitur
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{¶97} Also on September 7, 2022, Universal Steel filed motions for JNOV
as to Daniel and Denise’s counterclaim for tortious interference with a contract and
remittitur as to the jury’s damage award as to Daniel and Denise’s breach-of-
contract counterclaim. (Doc. Nos. 407, 408). On September 20, 2022, Daniel and
Denise filed memoranda in opposition to Universal Steel’s motions for JNOV and
remittitur. On October 21, 2022, the trial court granted Universal Steel’s motion for
JNOV as to Daniel and Denise’s counterclaim for tortious interference with a
contract. (Doc. No. 428). Specifically, the trial court concluded that Universal Steel
was justified in alleging its claim for foreclosure of a mechanic’s lien and that there
was insufficient evidence presented at trial supporting that Universal Steel intended
“to procure a contractual breach between the Dues and Farm Credit.” (Id.). That
same day, the trial court denied Universal Steel’s motion for remittitur. (Doc. No.
426).
The Dues Family’s Motion for JNOV
{¶98} On September 9, 2022, the Dues family filed a motion for JNOV as to
Universal Steel’s breach-of-contract claim. On September 21, 2022, Universal Steel
filed a memorandum in opposition to the Dues family’s motion for JNOV. The
Dues family filed a reply to Universal Steel’s memorandum in opposition to their
motion for JNOV on September 28, 2022. On October 21, 2022, the trial court
denied the Dues family’s motion for JNOV after concluding that “[t]he jury was
given clear and direct instructions regarding Universal’s claim for breach of contract
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and rendered a decision in favor of Universal [Steel] based on the evidence.” (Doc.
No. 430).
{¶99} Finally, the trial court certified that there is no just reason for delay on
October 21, 2022. (Doc. No. 435).
{¶100} On November 16, 2022, Daniel and Denise filed a motion for
prejudgment interest (in the amount of $53,956.36 on his judgment in the amount
of $256,500.00. Universal Steel filed a memorandum in opposition to Daniel and
Denise’s motion for prejudgment interest that same day. On December 7, 2022, the
trial court denied Daniel and Denise’s motion for prejudgment interest.
{¶101} Daniel and Denise filed a notice of appeal on November 21, 2022.
Universal Steel filed a notice of cross-appeal on November 23, 2022. Daniel and
Denise raise three assignments of error, and Universal Steel raises four assignments
of error for our review.
{¶102} For ease of our discussion, we will begin by discussing Daniel and
Denise’s first and third assignments of error together, followed by Daniel and
Denise’s second assignment of error. Then, we will discuss Universal Steel’s first,
second, third, and fourth assignments of error.
Daniel and Denise’s First Assignment of Error
The Trial Court Erred By Granting Universal’s Motion For Judgment Notwithstanding The Verdict On Dues’ Claim for Tortious Interference With a Contractual Relationship.
Daniel and Denise’s Third Assignment of Error
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The Trial Court Erred By Denying Dues’ Motion For Judgment Notwithstanding The Verdict On Universal’s Claim For Breach Of Contract.
{¶103} In their first and third assignments of error, Daniel and Denise argue
that the trial court erred by granting Universal Steel’s motion for JNOV as to their
counterclaim for tortious interference with a contract, and erred by denying their
motion for JNOV as to Universal Steel’s breach-of-contract claim. In particular, in
their first assignment of error, Daniel and Denise argue that evidence was presented
at trial from which reasonable minds could conclude only that Universal Steel
tortuously interfered with its contract with Farm Credit. Daniel and Denise
specifically argue in their third assignment of error that they presented evidence at
trial from which reasonable minds could conclude only that “Universal’s breach of
contract occurred first and was material, thus excusing Dues from further
performance under the contract.” (Appellant’s/Cross-Appellee’s Brief at 16).
Standard of Review
{¶104} This court reviews “de novo a trial court’s decision to grant or deny
a Civ.R. 50(B) motion for” JNOV. H & C Ag Servs., LLC v. Ohio Fresh Eggs, LLC,
3d Dist. Hardin No. 6-15-02, 2015-Ohio-3714, ¶ 31. “De novo review is
independent and without deference to the trial court’s determination.” ISHA, Inc. v.
Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25.
Analysis
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{¶105} “‘A JNOV is proper if upon viewing the evidence in a light most
favorable to the nonmoving party and presuming any doubt to favor the nonmoving
party, reasonable minds could come to but one conclusion, that being in favor of the
moving party.’” H & C Ag Servs. at ¶ 31, quoting First Fed. Bank of Ohio v.
Angelini, 3d Dist. Crawford No. 3-11-11, 2012-Ohio-2137, ¶ 9. “‘Such a decision
does not determine factual issues, but only questions of law, even though it is
necessary to review and consider the evidence in deciding the motion.’” Id., quoting
Angelini at ¶ 8. “‘“Neither the weight of the evidence nor the credibility of the
witnesses is for the court’s determination in ruling upon [JNOV].”’” Id., quoting
Angelini at ¶ 8, quoting Osler v. Lorain, 28 Ohio St.3d 345, 347 (1986).
Universal Steel’s JNOV
{¶106} In this case, the trial court granted Universal Steel’s motion for
JNOV after concluding that Daniel and Denise did not present evidence from which
a reasonable jury could find that Universal Steel intentionally or improperly
procured a breach of contract between the Dues family and Farm Credit. Further,
the trial court concluded that Daniel and Denise failed to demonstrate that Universal
Steel’s conduct was unjustified since Universal Steel’s “filing a mechanics [sic] lien
to collect the balance of the contract money owed” constituted a proper legal
procedure. (Doc. No. 428).
{¶107} On appeal, Daniel and Denise argue that the trial court erred by
granting Universal Steel’s JNOV because they presented evidence from which
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reasonable minds could conclude that Universal Steel’s “interference with the
contracts between the Dues and Farm Credit was improper or unjustified” since
Universal Steel “knew from the outset of the litigation that its mechanics [sic] lien
was defective as it was filed on the wrong property.” (Appellant’s/Cross-Appellee’s
Brief at 11). Furthermore, Daniel and Denise argue that they presented evidence
from which reasonable minds could conclude that Universal Steel’s interference
with its contract with Farm Credit was improper and unjustified since it was “aware
that if [it] did not stipulate to the more than obvious priority of Farm Credit’s
interest, the Dues would be in breach of contract and would be obligated to pay
Farm Credit’s attorney’s fees” and that “even after the lien was declared defective,
[it failed] to timely remove the lien.” (Id.). Critically, Daniel and Denise argue that
the trial court “incorrectly presumed the initial filing of the defective mechanics
[sic] lien was the basis for” their argument but that they “always maintained the
tortious conduct was Universal’s refusal to release the lien * * * .” (Id. at 13).
{¶108} Universal Steel disputes Daniel and Denise’s argument and contends
that there was no evidence presented from which a reasonable jury could conclude
that it “acted with intent to procure the breach of Dues’ relationship with Farm
Credit” or that it lacked justification. (Appellee’s/Cross-Appellant’s Brief at 29).
Specifically, Universal Steel contends that it was justified in its conduct since it was
statutorily permitted to “attach [a lien] to an adjacent property operated as one
general concern * * * .” (Appellee’s/Cross-Appellant’s Brief at 24).
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{¶109} The tort of “[t]ortious interference with a contract occurs ‘when a
person, without a privilege to do so, induces or otherwise purposely causes a third
person * * * not to perform a contract with another.’” Gentile v. Turkoly, 7th Dist.
Mahoning No. 16 MA 0071, 2017-Ohio-1018, ¶ 23, quoting A & B-Abell Elevator
Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 14
(1995). “The tort of interference with existing * * * contractual relations includes
* * * making that performance more expensive or burdensome * * * .” Restatement
of the Law 2d, Torts, Section 767 (1979). “‘The rule applies * * * to an interference
that is incidental to the actor’s independent purpose and desire but known to him as
a necessary consequence of his action.’” Ginn v. Stonecreek Dental Care, 12th Dist.
Fayette No. CA2014-06-015, 2015-Ohio-1600, ¶ 17, quoting Restatement, Section
766, Comment j.
{¶110} The elements of the tort of tortious interference with a contract
include “‘(1) the existence of a contract, (2) the wrongdoer’s knowledge of the
contract, (3) the wrongdoer’s intentional procurement of the contract’s breach, (4)
the lack of justification, and (5) resulting damages.’” Inwood Village, Ltd. v. Christ
Hosp., 1st Dist. Hamilton No. C-110730, 2012-Ohio-3434, ¶ 9, quoting Fred Siegel
Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 176 (1999). “In order to prevail,
a party must demonstrate that the wrongdoer intentionally and improperly interfered
with its contractual relations with another.” Gentile at ¶ 23.
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{¶111} “‘Establishment of the fourth element of the tort of tortious
interference with contract, lack of justification, requires proof that the defendant’s
interference with another’s contract was improper.’” Long v. Mt. Carmel Health
Sys., 10th Dist. Franklin No. 16AP-511, 2017-Ohio-5522, ¶ 26, quoting Fred Siegel
at paragraph two of the syllabus. A “lack of justification, can be defeated by a
privilege to interfere with a contract to assert a legally protected interest.” Bridge
v. Park Natl. Bank, 179 Ohio App.3d 761, 2008-Ohio-6607, ¶ 25 (10th Dist.).
Specifically, a party “is privileged to purposely cause another not to perform a
contract with a third person where the defendant, in good faith, is asserting a legally
protected interest of his own which he believes will be impaired or destroyed by the
performance of the contract.” Id.
{¶112} “Whether the interference is justified is a fact-specific determination
based on the particular circumstances.” Id. at ¶ 26. When determining whether an
interference is justified, a court must consider
(a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties.
Id. However, “Ohio law places the burden of proving ‘lack of privilege’ or
‘improper justification’ on the plaintiff.” Melohn Cos., Inc. v. AmeriFirst Financial
Corp., N.D.Ohio No. 1:17 CV 1303, 2018 WL 1991720, *5 (Apr. 26, 2018), quoting
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Super Sulky, Inc. v. United States Trotting Assn., 174 F.3d 733, 742 (6th Cir.1999).
Furthermore, “‘Ohio law recognizes that a plaintiff may recover all damages
proximately caused by an actor’s misconduct in a tortious interference action.’”
Lump v. Larson, 3d Dist. Logan No. 8-14-14, 2015-Ohio-469, ¶ 12, quoting UZ
Engineered Prods. Co. v. Midwest Motor Supply Co., Inc., 147 Ohio App.3d 382,
2001-Ohio-8779, ¶ 54 (10th Dist.).
{¶113} Universal Steel conflates the issue underlying Daniel and Denise’s
first assignment of error. The issue is not whether Universal Steel were justified in
filing a mechanic’s lien; rather, the specific issues presented to the jury was whether
Universal Steel was justified in maintaining its defective mechanic’s lien and
whether it was justified in refusing to stipulate to Farm Credit’s priority. Based on
our de novo review of the record, we conclude that Universal Steel tortuously
interfered with Daniel and Denise’s contract with Farm Credit. Specifically, we
conclude that Daniel and Denise presented evidence from which reasonable minds
could conclude that Universal Steel intentionally interfered (without privilege or
justification) with the contractual relationship between the Dues family and Farm
Credit and that the Dues family was damaged by such conduct.
{¶114} Simply put, there is no dispute that a party would be justified by
pursuing its legal remedies, including filing a mechanic’s lien. Indeed, in this case,
Universal Steel would have been justified by filing a mechanic’s lien on the 4212
property. However, Universal Steel was divested of any privilege when it filed the
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mechanic’s lien on the 4300 property and thereafter refused to remove the defective
mechanic’s lien or stipulate to Farm Credit’s priority. Compare Donald G. Culp
Co. v. Reliable Stores Corp., 14 Ohio App.3d 161, 164 (10th Dist.1983) (concluding
that the refusal to consent to a sublease unless a restoration bond was provided did
not constitute tortious interference with a contract since the requested bond was
reasonably designed to protect the owner’s interest).
{¶115} Furthermore, Universal Steel’s contention that it was justified (as a
matter of law) in pursuing its defective mechanic’s lien under R.C. 1311.08 does
not reinstate its privilege. Critically, “[b]y its very wording, [R.C. 1311.08] is only
applicable when the contractor has done work on more than one tract or parcel.”
Mack Industries, Inc. v. Buckeye Diggers, Inc., 11th Dist. Lake No. 92-L-082, 1993
WL 548113, *8 (Dec. 10, 1993). Universal Steel unequivocally performed work
only on the 4212 property and did not perform any work on the 4300 property.
{¶116} Consequently, whether Universal Steel was justified in intentionally
maintaining a defective mechanic’s lien on the 4300 property and whether it was
justified in refusing to stipulate to Farm Credit’s priority (based on the defective
mechanic’s lien) are factual determinations for a jury to decide. See CajunLand
Pizza, LLC v. Marco’s Franchising, LLC, N.D.Ohio No. 3:20-CV-536-JGC, 2021
WL 9166417, *9 (June 8, 2021), fn. 4; Bridge, 179 Ohio App.3d 761, 2008-Ohio-
6607, at ¶ 28. Importantly, Daniel and Denise presented evidence at trial from
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which the jury could have concluded that the mechanic’s lien disturbed their
contractual relationship with Farm Credit.
{¶117} In particular, Daniel and Denise presented evidence during their
case-in-chief that, as a result of the mechanic’s lien, their account was transferred
to Farm Credit’s special-accounts division in Washington Courthouse, Ohio. Daniel
testified that, as a result of the transfer of their account, the Farm Credit branch in
Celina (at which the Dues family conducted business) would “not talk to” them.
(July 26-29, 2022 Tr., Vol. III, at 495). Furthermore, Daniel and Denise presented
evidence that Farm Credit accelerated their repayment of the promissory note for
the dairy-barn project, requiring that they “pay it back in 30 days,” removed their
ability to write checks from the account, cancelled their line of credit, and increased
“the interest rate up [over] 8 * * * percent.” (Id. at 499). Daniel further testified
that the mechanic’s lien prevented them from finishing the flush system for the barn
as well as “other things around the farm.” (Id. at 496).
{¶118} Likewise, Kremer identified a January 12, 2018 letter of concern that
Farm Credit sent to Daniel, Denise, and Kyle following an annual financial review
performed on the Dues family’s accounts, which warned them that the concerns
identified in the letter could have an impact on their financing with Farm Credit.
Generally, Kremer testified that Farm Credit identified the “litigation status [of this
case] and its short and long-term implications on [the Dues family’s] financial well-
being” as a concern. (July 26-29, 2022 Tr., Vol. V, at 860). Critically, Kremer
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testified that she met with the Dues family following the transmission of the letter
of concern and informed them that “due to the mechanic’s lien being filed and the
litigation,” Farm Credit “would need to stop draws on th[e] loan until things were *
* * resolved.” (Id. at 866-867).
{¶119} Critically, Daniel and Denise also presented evidence that Universal
Steel knew that its mechanic’s lien was defective. Specifically, Donovan testified
that
the mechanic’s lien was filed against property that was never improved, so [Universal Steel] filed it against the wrong property, which they knew about very quickly because [Farm Credit] brought it to everyone’s attention. Which at that point, [Donovan] assume[d] [Universal Steel] would have released it as * * * the whole point of a mechanic’s lien is * * * to improve the real estate. That’s why [a party is] given that * * * lien right.
(July 26-29, 2022 Tr., Vol. IV, at 779-780). Further, Donovan informed the jury
that “a mechanic’s lien that’s recorded on unimproved property for [sic] the wrong
property, is * * * defective immediately.” (Id. at 780).
{¶120} Daniel and Denise presented evidence that Farm Credit requested
Universal Steel to stipulate to its “lien priority that Farm Credit was first in front of
the mechanic’s lien.” (Id. at 776). Specifically, Donovan testified that, even though
such stipulation was proposed by the trial court, Universal Steel refused (without
explanation) to stipulate to the lien priority. Donovan testified that he “thought
[Universal Steel was] acting unreasonable” since he “didn’t see any reason that they
shouldn’t stipulate. That’s common practice.” (Id. at 777). Likewise, Bernlohr
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acknowledged that the mechanic’s lien was defective because it was filed on the
wrong property since “if you file a lien on one property, * * * it has to absolutely be
on the property where the project is.” (July 26-29, 2022 Tr., Vol. V, at 907).
{¶121} Daniel and Denise also presented evidence that Farm Credit assessed
its attorney fees associated with litigating the mechanic’s lien to their account.
Specifically, Donovan testified that, because Universal Steel refused to stipulate to
the lien priority, Farm Credit’s [attorney] fees [were] assessed to the Dues’
account”—namely, $9,751.39. (July 26-29, 2022 Tr., Vol. IV, at 779).
{¶122} Thus, since whether Universal Steel was justified in intentionally
maintaining a defective mechanic’s lien on the 4300 property and whether it was
justified in refusing to stipulate to Farm Credit’s priority are questions of fact, we
conclude that the trial court erred by granting a JNOV in favor of Universal Steel as
to Daniel and Denise’s counterclaim for tortious interference with a contract.
Therefore, viewing the evidence in a light most favorable to the nonmoving party,
we conclude that reasonable minds could resolve only that Universal Steel
tortuously interfered with the Dues family’s contract with Farm Credit. Thus,
Daniel and Denise’s first assignment of error is sustained.
Daniel and Denise’s JNOV
{¶123} Having concluded that the trial court erred by granting Universal
Steel’s JNOV motion, we turn to Daniel and Denise’s argument that the trial court
erred by denying their JNOV motion as to Universal Steel’s breach-of-contract
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claim. “‘“A contract is an agreement, upon sufficient consideration, between two
or more persons to do or not to do a particular thing.”’” Powell v. Grant Med. Ctr.,
148 Ohio App.3d 1, 2002-Ohio-443, ¶ 27 (10th Dist.), quoting Nilavar v. Osborn,
137 Ohio App.3d 469, 483 (2d Dist.2000), quoting Lawler v. Burt, 7 Ohio St. 340,
350 (1857). “‘“[B]reach,” as applied to contracts is defined as a failure without
legal excuse to perform any promise which forms a whole or part of a contract,
including the refusal of a party to recognize the existence of the contract or the doing
of something inconsistent with its existence.’” Whitt Sturtevant, LLP v. NC Plaza
LLC, 10th Dist. Franklin No. 14AP-919, 2015-Ohio-3976, ¶ 29, quoting Hanna v.
Groom, 10th Dist. Franklin No. 07AP-502, 2008-Ohio-765, ¶ 14, quoting Natl. City
Bank of Cleveland v. Erskine & Sons, 158 Ohio St. 450 (1953), paragraph one of
the syllabus. Thus, to recover on “a breach-of-contract claim, a plaintiff must prove
‘“the existence of a contract, performance by the plaintiff, breach by the defendant,
and damage or loss to the plaintiff.”’” Powell at ¶ 27, quoting Nilavar at 483,
quoting Doner v. Snapp, 98 Ohio App.3d 597, 600 (2d Dist.1994).
{¶124} Importantly, “[i]n order to prove a breach by the defendant, a plaintiff
must show that the defendant ‘did not perform one or more of the terms of the
contract.’” Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-5081, ¶ 18 (10th
Dist.), quoting Little Eagle Properties v. Ryan, 10th Dist. Franklin No. 03AP-923,
2004-Ohio-3830, ¶ 15. However, “[a]s a general rule, a party does not breach a
contract when that party substantially performs the terms of the contract.” Whitt
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Sturtevant at ¶ 29. That is, “[n]ominal, trifling, or technical departures from the
terms of a contract are not sufficient to breach it.” Id. Consequently, under “‘the
law of contracts, “substantial performance” is [an] approximation of full
performance such that the parties obtain, in the main, what the contract called for,
although it is not complete and final performance in every particular.’” Oberlin v.
Lorain Cty. Joint Vocational School Dist. Bd. of Edn., 9th Dist. Lorain No.
18CA011338, 2019-Ohio-3977, ¶ 22, quoting Stone Excavating, Inc. v. Newmark
Homes, Inc., 2d Dist. Montgomery No. 20307, 2004-Ohio-4119, ¶ 13.
{¶125} However, “a material breach of contract will entitle a party to stop
performance.” Marion Family YMCA v. Hensel, 178 Ohio App.3d 140, 2008-Ohio-
4413, ¶ 7 (3d Dist.). “A material breach is a breach essential to the purpose of the
contract.” Whitt Sturtevant at ¶ 30. To constitute a material breach of contract, the
breach must be “a failure to do something that is so fundamental to a contract that
the failure to perform defeats the essential purpose of the contract or makes it
impossible for the other party to perform.” Marion Family YMCA at ¶ 7. “The
determination of whether a party’s breach of a contract was a ‘material breach’ is
generally a question of fact.” Whitt Sturtevant at ¶ 30, quoting O’Brien v. Ohio
State Univ., 10th Dist. Franklin No. 06AP-946, 2007-Ohio-4833, ¶ 11.
{¶126} Here, the parties do not dispute the existence of a contract. Instead,
the parties dispute whether Daniel and Denise preserved their argument that they
were excused from performing under the contract because Universal Steel’s breach
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of the contract constituted a prior material breach. Specifically, Daniel and Denise
contend that “[t]he Jury’s verdict in favor of Universal was improper given that
Universal had previously committed a material breach of the contract by delivering
non-conforming goods, thereby excusing Dues from further performance as a matter
of law.” (Appellant’s/Cross-Appellee’s Reply Brief at 16).
{¶127} “‘Ohio is a notice-pleading state.’” Hall v. Crawford Cty. Job &
Family Servs., 3d Dist. Crawford No. 3-21-19, 2022-Ohio-1358, ¶ 16, quoting Pugh
v. Sloan, 11th Dist. Ashtabula No. 2019-A-0031, 2019-Ohio-3615, ¶ 26. To
properly preserve a claim, counterclaim, or affirmative defense in a civil action,
“Civ.R. 8(A) requires ‘a short and plain statement of the claim showing that the
party is entitled to relief.’” Truist Bank v. Eichenberger, 10th Dist. Franklin No.
22AP-334, 2023-Ohio-779, ¶ 51, quoting Civ.R. 8(A). See also Reed v. Multi-Cty.
Juvenile Sys., 7th Dist. Columbiana No. 09 CO 27, 2010-Ohio-6602, ¶ 47 (noting
that “[p]ursuant to the liberal pleading requirements of Civ .R. 8, the pleadings of
the parties to an action need only be in general terms” and that “[a] defendant’s
answer is subject to the same notice-pleading standards as a plaintiff’s complaint,
and an affirmative defense is generally adequate as long as the plaintiff receives fair
notice of the defense. Civ.R. 8(C)”). “Notice pleading under Civ.R. 8(A) and (E)
requires that a claim concisely set forth only those operative facts sufficient to give
fair notice of the nature of the action.” Truist Bank at ¶ 51, citing Ford v. Brooks,
10th Dist. Franklin No. 11AP-664, 2012-Ohio-943, ¶ 13. Importantly, “to constitute
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fair notice, the complaint (or counterclaim) must allege sufficient underlying facts
that relate to and support the alleged claim; it may not simply state legal
conclusions.” Id., citing Montgomery v. Ohio State Univ., 10th Dist. Franklin No.
11AP-1024, 2012-Ohio-5489, ¶ 20.
{¶128} Similarly, “Civ.R. 8(C) governs the pleading of affirmative defenses”
and provides in its relevant part that, “‘[i]n pleading to a preceding pleading, a party
shall set forth affirmatively * * * any * * * matter constituting an avoidance or
affirmative defense.’” Id. at ¶ 52, quoting Civ.R. 8(C). “To preserve an affirmative
defense, a party must assert it in at least one of the following ways: (1) by motion
before pleading pursuant to Civ.R. 12(B); (2) affirmatively in a responsive pleading
pursuant to Civ.R. 8(C); or (3) by amendment made under Civ.R. 15.” Id., citing
Marok v. Ohio State Univ., 10th Dist. Franklin No. 07AP-921, 2008-Ohio-3170, ¶
11, citing Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55 (1974), syllabus.
{¶129} A party’s “[f]ailure to set forth an affirmative defense, other than
those listed in Civ.R. 12(B), acts as a waiver if the defense was not raised in the
pleadings or in an amendment to the pleadings.’” Oberlin, 2019-Ohio-3977, at ¶
20, quoting Matrix Acquisitions, L.L.C. v. Manley, 9th Dist. Summit No. 27191,
2014-Ohio-2860, ¶ 9. See also Gallagher v. Cleveland Browns Football Co., 74
Ohio St.3d 427 (1996), syllabus (noting that the failure to raise an affirmative
defense “before or during trial [also] precludes the defendant from raising the
defense for the first time in a motion for judgment notwithstanding the verdict”).
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However, “Civ.R. 8(F) states that the pleadings of the parties are to be ‘construed
as to do substantial justice,’ which further supports the notion that pleadings should
be construed in order to dispose of cases on their merits rather than technicalities.”
Reed at ¶ 42. Critically, “[i]f a party raises a ‘generic’ defense in its answer, it is
acceptable to make fair interpolations of more specific defenses that might naturally
be included in that defense.” Id. at ¶ 47, citing Gallagher at 432-433.
{¶130} Likewise, “‘[w]hen issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings.’” Church at Warren v. Warzala, 11th Dist.
Trumbull No. 2016-T-0073, 2017-Ohio-6947, ¶ 19, quoting Civ.R. 15(B). “Implied
consent is established where it appears ‘the parties understood the evidence was
aimed at the unpleaded issue.’” Id., quoting State ex rel. Evans v. Bainbridge Twp.
Trustees, 5 Ohio St.3d 41 (1983), paragraph two of the syllabus.
{¶131} “‘An affirmative defense assumes the allegations in the complaint to
be true, but constitutes a defense to them.’” Oberlin at ¶ 21, quoting Aquatic
Renovations Sys., Inc. v. Walbridge, 6th Dist. Wood No. WD-17-038, 2018-Ohio-
1430, ¶ 27. “Specifically, ‘[a]n affirmative defense is any defensive matter in the
nature of a confession and avoidance. It admits that the plaintiff has a claim (the
“confession”) but asserts some legal reason why the plaintiff cannot have any
recovery on that claim (the “avoidance”).’” Id., quoting State ex rel. The Plain
Dealer Publishing Co. v. Cleveland, 75 Ohio St.3d 31, 33 (1996). “The purpose for
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requiring the timely pleading of affirmative defenses is to avoid surprise at trial.”
Reed at ¶ 42.
{¶132} The defense of “prior material breach” is an affirmative defense to a
contract claim. See Olentangy Condominium Assn. v. Lusk, 10th Dist. Franklin No.
09AP-568, 2010-Ohio-1023, ¶ 29; Knisley v. Knauff, 4th Dist. Pike No. 95CA559,
1996 WL 571484, *2 (Oct. 2, 1996). “‘The burden of proving an affirmative
defense rests with the party raising the defense.” Nationstar Mtge., LLC v.
Mielcarek, 9th Dist. Lorain No. 15CA10748, 2016-Ohio-60, ¶ 11, quoting First
Natl. Bank of Ohio v. Cassell, 9th Dist. Summit No. 16823, 1995 WL 134775, *2
(Mar. 29, 1995).
{¶133} Our review of record reveals that the Dues family did not specifically
use the phrase “prior material breach” in their pleadings. Nevertheless, our review
of the Dues family’s pleadings reveals that they pleaded defenses from which fair
interpolations of the more specific defense of prior material breach can be deduced.
Specifically, the Dues family asserted in their October 5, 2021 answer that they were
excused from performing under the contract due to Universal Steel’s “own breach
of contract and failure to perform in a workmanlike manner”; Universal Steel’s
“unilateral termination, rescission, and/or repudiation of contract”; and Universal
Steel’s “failure to perform under contract.” (Doc. No. 297). Accord Oxford Mining
Co., LLC v. Ohio Gathering Co., LLC, 7th Dist. Belmont No. 19 BE 0016, 2020-
Ohio-1363, ¶ 27. Likewise, the Dues family raised the issue of prior material breach
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at the summary-judgment stage. (See Doc. No. 144). Compare Oxford Mining at ¶
29.
{¶134} Furthermore, our review of the evidence presented at trial reflects
that the parties understood that they were litigating whether the Dues family was
excused from performance under the contract because of Universal Steel’s breach
of the contract. Indeed, Daniel testified that he instructed Farm Credit “to cancel
the[] three checks” that he tendered to Universal Steel “because [the last load of
steel] was 6000 pounds short,” “[t]here was something missing,” and he “wanted an
answer.” (July 26-29, 2022 Tr., Vol. III, at 481). In particular, Daniel explained
that the “bill of lading weight didn’t match what * * * Universal Steel said the
building was going to weigh, on [the] pre-build packet.” (Id. at 475).
{¶135} Daniel and Denise presented further evidence that the weight
deficiency resulted in the barn being constructed without either of the 20 by 14 foot
openings as called for in the parties’ contract. As to the door height, Daniel and
Kyle testified that they were able execute a field adjustment and achieve one of the
20 by 14 foot openings on the south end of the barn but that they could not replicate
the adjustment for the opening at the northeast corner. According to Daniel, they
were unable to field adjust the opening at the northeast corner of the barn because
the roof is “too short.” (Id. at 472). Instead, the height of the door in the northeast
corner of the barn is only “11 foot 9, with no header or anything in it.” (July 26-29,
2022 Tr., Vol. II, at 391).
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{¶136} Nevertheless, Daniel and Denise presented evidence that neither of
the openings on which they conducted field adjustments appear as they were
intended to appear. Specifically, the “south side does not match the north side”
because there was “a canopy on the north side and the south side, but [they] had to
take the south whole canopy across the whole end of the barn, lift it up 4 feet, and
[they] had to jerry-rig the ends to match the other roof sloping down * * * .” (July
26-29, 2022 Tr., Vol. III, at 473).
{¶137} Moreover, Kyle testified that the barn not only “definitely [does not
look] how it’s supposed to look,” but that they have been unable to use it as intended.
(Id. at 383). In particular, Daniel described that the opening at the northeast corner
of the barn is the “main [entrance] to the manure storage, and that’s what truly is the
end of the feed aisle, where [they] run feed wagons in there every day.” (July 26-
29, 2022 Tr., Vol. III, at 472). However, Kyle testified that they are unable to use
the dry-manure management system because they “were supposed to be able to
drive a semi in to load it, and [they] cannot do that” since “the building was not built
correctly.” (July 26-29, 2022 Tr., Vol. II, at 378). To demonstrate, the Dues family
presented video evidence reflecting that a trailer will not fit through the opening in
the northeast corner of the barn. (See Defendant’s Ex. MM). Similarly, Craig
testified that the barn, as built, did not provide the necessary updraft for ventilation
because “the steel legs [are] short.” (July 26-29, 2022 Tr., Vol. III, at 442).
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{¶138} Consequently, the specific facts and circumstances of this case
demonstrate that the parties understood that the evidence presented was aimed at
whether the Dues family was excused from performance as a result of Universal
Steel’s breach of the contract. However, even though Daniel and Denise presented
such evidence, Universal Steel maintains that Daniel and Denise waived “any
argument that the verdict should be set aside based on a material breach” because
Daniel and Denise failed to request that the jury consider whether Universal Steel’s
prior breech was material. (Appellee’s/Cross-Appellant’s Brief at 32). Generally,
“[t]he failure to request a jury instruction on the law governing a particular defense
constitutes a waiver of the defense.” Black v. Hicks, 8th Dist. Cuyahoga No.
108958, 2020-Ohio-3976, ¶ 84. “[U]nder Civ.R. 51(A), a party ‘may not assign as
error the giving or the failure to give any instruction unless the party objects before
the jury retires to consider its verdict.’” McNeil v. Kingsley, 178 Ohio App.3d 674,
2008-Ohio-5536, ¶ 22 (3d Dist.), quoting Civ.R. 51(A).
{¶139} Nevertheless, Daniel and Denise contend that they preserved their
argument by objecting “to the trial court’s failure to include an instruction on
frustration of purpose” because “[a] finding in favor of [the] Dues on the issue of
frustration of purpose would have been a finding of material breach.”
(Appellant’s/Cross-Appellee’s Reply Brief at 17). Generally, [a]ppellate review of
a trial court’s refusal to give a party’s requested jury instructions entails a
determination whether, under the facts and circumstances of the case, the trial court
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abused its discretion.” Stuller v. Price, 10th Dist. Franklin No. 03AP-66, 2004-
Ohio-4416, ¶ 93. An abuse of discretion suggests the trial court’s decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
{¶140} “Frustration of purpose occurs when one of the two parties to a
contract creates a situation where the basis of the parties’ contract essentially
becomes moot.” Ams. Floor Source, L.L.C. v. Homes, 191 Ohio App.3d 493, 2010-
Ohio-6296, ¶ 37 (10th Dist.). In general, “frustration of purpose could be described
as a form of breach of contract” “[i]f a party to a contract creates a situation whereby
it cannot fulfill its obligations under the contract * * * .” Id. at ¶ 38.
{¶141} Many of our sister courts of appeal, “have noted that the doctrine of
frustration of purpose is not widely accepted in Ohio.” Wroblesky v. Hughley, 11th
Dist. Trumbull No. 2020-T-0044, 2021-Ohio-1063, ¶ 54. This court has not adopted
the doctrine. See Am. Premier Underwriters, Inc. v. Marathon Pipe Line Co., 3d
Dist. Mercer No. 10-01-08, 2002 WL 437998, *4 (Mar. 20, 2002). However, we
need not revisit the doctrine’s viability in this case since “[f]rustration of purpose is
wholly inapplicable to this case * * * .” Trustees of Colorado Statewide Iron
Workers (ERECTOR) Joint Apprenticeship & Training Tr. Fund v. A & P Steel,
Inc., 812 F.2d 1518, 1523 (10th Cir.1987). That is, “[t]he doctrine deals with
situations where supervening events destroy or alter the foundation of the contract.”
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Id. There is no allegation that a supervening event destroyed or altered the
foundation of the contract in this case.
{¶142} Notwithstanding their argument that they properly preserved the
issue, Daniel and Denise suggest that, “even if [the] Dues had failed to raise the
issue below, a finding of breach of contract in favor or a materially breaching party
would constitute plain-error * * * .” (Appellant’s/Cross-Appellee’s Reply Brief at
17). Typically, plain error “is a judicially created exception to Civ.R. 51(A) and it
allows for a ‘review of alleged errors not properly objected to in the trial court,
where the errors are so fundamental and serious so as to affect “the basic fairness,
integrity, or public reputation of the judicial process.”’” McNeil, 178 Ohio App.3d
674, 2008-Ohio-5536, at ¶ 24, quoting Gonzalez v. Henceroth Ents., Inc., 135 Ohio
App.3d 646, 650, (9th Dist.1999), quoting Yungwirth v. McAvoy, 32 Ohio St.2d 285,
288 (1972).
{¶143} Even if we assume without deciding that Daniel and Denise did not
properly preserve their argument, we conclude that the trial court’s failure to instruct
the jury as to the prior-material-breach issue rises to the level plain error. Indeed,
based on our review of the record (along with the evidence presented at trial), it is
evident to us that the parties were litigating whether the Dues family was excused
from performance under the contract as a result of Universal Steel’s breach of the
contract.
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{¶144} Consequently, since the record and the evidence presented at trial
necessitated a prior-material-breach instruction, we conclude that the trial court
erred by denying Daniel and Denise’s JNOV motion. That is, based on our review
of the evidence presented (in a light most favorable to Universal Steel), we conclude
that reasonable minds can conclude only that Universal Steel’s breach of the
contract constituted a prior material breach and that the Dues family was excused
from further performance under the contract. Critically, Daniel and Denise
presented evidence that Universal Steel failed to deliver a barn with the openings
that the parties contracted for and that such failure defeated the essential purpose of
the contract. Consequently, we conclude that the trial court erred by denying Daniel
and Denise’s JNOV motion.
{¶145} Therefore, Daniel and Denise’s third assignment is sustained.
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Daniel and Denise’s Second Assignment of Error
The Trial Court Erred By Granting Universal’s Motion For Directed Verdict As To Punitive Damages on Dues’ Claim For Tortious Interference With a Contractual Relationship
{¶146} In their second assignment of error, Daniel and Denise argue that the
trial court erred by granting Universal Steel’s motion for directed verdict as to their
counterclaim for punitive damages. Specifically, Daniel and Denise contend that
they presented sufficient evidence that Universal Steel acted with malice by “failing
to remove the defective lien when promptly notified of its facial defect, [that it]
violated R.C. 1311.20 by not removing the lien within 30 days after the trial court
invalidated the lien, and [that it] refused to stipulate to Farm Credit’s lien priority.”
(Appellant’s/Cross-Appellee’s Brief at 15).
{¶147} “A motion for a directed verdict presents a question of law.”
Clements v. Lima Mem. Hosp., 3d Dist. Allen No. 1-09-24, 2010-Ohio-602, ¶ 53.
That is, a motion for a directed verdict raises questions of law, not factual issues,
because it tests whether the evidence is legally sufficient to allow the case to be
presented to the jury for deliberation.” Reeves v. Healy, 192 Ohio App.3d 769,
2011-Ohio-1487, ¶ 37 (10th Dist.). Therefore, we review de novo a trial court’s
decision to grant or deny a motion for directed verdict. Bryant v. Gen. Motors Corp.,
3d Dist. Defiance No. 4-15-03, 2015-Ohio-4911, ¶ 10. Again, “[d]e novo review is
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independent and without deference to the trial court’s determination.” ISHA, Inc.,
2013-Ohio-2149, at ¶ 25.
{¶148} “Civ.R. 50(A)(4) provides that a trial court shall grant a party’s
motion for directed verdict if, after construing the evidence most strongly in favor
of the non-moving party, ‘reasonable minds could come to but one conclusion upon
the evidence submitted and that conclusion is adverse to [the non-moving party].’”
Clements at ¶ 53, quoting Civ.R. 50(A)(4). “In making this determination, the trial
court must decide whether the non-moving party presented evidence of substantial
probative value in support of its claim.” Id. “It is clear that ‘if there is substantial
competent evidence to support the party against whom the motion is made, upon
which evidence reasonable minds might reach different conclusions, the motion
must be denied.’” Id., quoting Ramage v. Cent. Ohio Emergency Serv., Inc., 64
Ohio St.3d 97, 109 (1992). “If the non-moving party cannot present ‘substantial
competent evidence’ from which reasonable minds could draw different
conclusions, then the motion should be granted.” Id., quoting Shreve v. United Elec.
& Constr. Co. Inc., 4th Dist. Ross No. 01CA2626, 2002-Ohio-3761, ¶ 26.
Importantly, “[t]he court’s disposition of the motion thus does not involve weighing
the evidence or the credibility of the witnesses.” Reeves at ¶ 37.
{¶149} “In Ohio, punitive damages may be awarded in tort actions involving
fraud, malice, or insult.” Gibbons v. Shalodi, 9th Dist. Lorain No. 19CA011586,
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2021-Ohio-1910, ¶ 52. See also R.C. 2315.21(C)(1). “The purpose of punitive
damages is not to compensate a plaintiff, but to punish and deter certain conduct.”
Burns v. Prudential Secs., Inc., 167 Ohio App.3d 809, 2006-Ohio-3550, ¶ 98 (3d
Dist.). “Accordingly, an award of punitive damages requires something more than
a showing of mere negligence.” Id. Therefore, a plaintiff must demonstrate by clear
and convincing evidence that he or she is entitled to recover punitive damages. Id.,
citing R.C. 2315.21(D)(4). “The amount of punitive damages to be awarded,
however, is an issue for the jury to determine.” Id.
{¶150} When malice is the alleged basis, “punitive damages are permitted
only when the actions or omissions of a defendant demonstrate actual malice, and
the plaintiff proves actual damages as a result of those actions or omissions.” Id. at
¶ 99. Importantly, “key to the recovery of punitive damages in Ohio is a finding of
malice, and a claim based on negligence can provide the basis for an award of
punitive damages if there is an adequate showing of actual malice.” Id. at ¶ 101.
{¶151} “‘Actual malice, necessary for an award of punitive damages, is (1)
that state of mind under which a person’s conduct is characterized by hatred, ill will
or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other
persons that has a great probability of causing substantial harm.’” Id. at ¶ 102,
quoting Preston v. Murty, 32 Ohio St.3d 334, 336 (1987). “‘Inherent in the concept
of actual malice is the notion that a wrongful act has been done without any plausible
legal justification.’” Long, 2017-Ohio-5522, at ¶ 29, quoting Ament v. Reassure
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Am. Life Ins. Co., 180 Ohio App.3d 440, 2009-Ohio-36, ¶ 63 (8th Dist.). “[A]ctual
malice can be inferred from conduct and surrounding circumstances that may be
characterized as reckless, wanton, willful, or gross” since “‘it is rarely possible to
prove actual malice otherwise than by conduct and surrounding circumstances.’”
Burns at ¶ 103, quoting Davis v. Tunison, 168 Ohio St. 471, 475 (1959).
Importantly, “‘a positive element of conscious wrongdoing is always required.’” Id.
at ¶ 102, quoting Preston at 335.
{¶152} In this case, the trial court granted a directed verdict in favor of
Universal Steel as to Daniel and Denise’s counterclaim for punitive damages after
concluding that “reasonable minds could only conclude that Universal did not act
with actual malice * * * .” (Doc. No. 402). Specifically, the trial court determined
that “the process of a lawsuit” is not “something that attributes to a callous mental
state that is intolerable to society.” (Aug. 5, 2022 Tr., Vol. VII, at 1211). “In other
words, the [trial court concluded that] malice [cannot] arise, absent the normal
process that occurs in a lawsuit, to be attributed to one party, and the evidence in
this case fails to reveal that.” (Id. at 1211-1212).
{¶153} On appeal, Daniel and Denise argue that the trial court erred by
determining that “a party cannot engage in malicious conduct during the pendency
of a lawsuit, regardless of the jury’s findings.” (Appellant’s/Cross-Appellee’s Brief
at 16). Instead, Daniel and Denise assert that they presented sufficient evidence that
“Universal [Steel] was aware its acts had a great probability of causing substantial
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harm” since it “knew that its refusal to release the mechanics’ [sic] lien would cause
Dues’ [sic] to be in breach of the Farm Credit Contract.” (Appellant’s/Cross-
Appellee’s Reply Brief at 14). Universal Steel disputes Daniel and Denise’s
argument and contends that “[t]he lien, the issues surrounding the lien, and Farm
Credit’s involvement in this matter were all the natural result of Dues’ original
refusal to pay” and that “[t]he actions taken by Universal [Steel] in this litigation
were also the natural part of the adversarial litigation process * * * .”
(Appellee’s/Cross-Appellant’s Brief at 26).
{¶154} Based on the specific facts and circumstances of this case, we
conclude that the trial court erred by granting a directed verdict in favor of Universal
Steel as to Daniel and Denise’s punitive-damages claim. Specifically, as we
analyzed in Daniel and Denise’s third assignment of error, the issue is not whether
Universal Steel was justified in filing a mechanic’s lien; rather, the issues underlying
Daniel and Denise’s punitive-damages claim are whether Universal Steel was
justified in maintaining its defective mechanic’s lien and whether it was justified in
refusing to stipulate to Farm Credit’s priority. In other words, the issues underlying
Daniel and Denise’s punitive-damages claim are whether Universal Steel
consciously disregarded the Dues family’s rights by knowingly maintaining its
defective mechanic’s lien and by refusing to stipulate to Farm Credit’s priority and
whether Universal Steel knew that its conduct had a great probability of causing the
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Dues family substantial harm. Consequently, whether Universal Steel’s conduct
constitutes actual malice is a factual determination for a jury to resolve.
{¶155} Indeed, our review of the record reveals that Daniel and Denise
presented substantial and probative evidence from which reasonable minds might
reach different conclusions as to whether Universal Steel acted with actual malice.
That is, the record reveals that Daniel and Denise presented evidence from which a
jury could conclude that Universal Steel knew that its conduct had a great
probability of causing substantial harm to the Dues family. See UZ Engineered
Prods., 147 Ohio App.3d 382, 2001-Ohio-8779, at ¶ 62-63.
{¶156} Specifically, during the bifurcated punitive-damages hearing,
Gutierrez testified that Universal Steel learned that the mechanic’s lien was filed on
the wrong property in September 2017—that is, Universal Steel learned that the
mechanic’s lien was defective soon after it was filed. Likewise, Gutierrez testified
that, even though Universal Steel was aware that its mechanic’s lien was defective,
it decided to maintain the defective mechanic’s lien until July 29, 2020—nearly
three years after it was filed and three months after the trial court declared it to be
defective. Compare id. at ¶ 63 (asserting that a “[d]efendant’s knowledge, coupled
with its actions in connection with plaintiff’s former employees, demonstrates a
conscious disregard for plaintiff’s rights”). In other words, Daniel and Denise
presented evidence that Universal Steel’s conduct compelled Farm Credit to litigate
a mechanic’s lien that Universal Steel knew was defective. Furthermore, as we
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discussed in Daniel and Denise’s third assignment of error, Daniel and Denise
presented evidence during trial of the harm caused by the defective mechanic’s lien.
{¶157} As a result, based on the facts presented, we conclude that Daniel and
Denise presented sufficient evidence that Universal Steel acted with actual malice
to permit their counterclaim for punitive damages to be presented to a jury for
deliberation. Therefore, we conclude that the trial court erred by granting a directed
verdict in favor of Universal Steel as to Daniel and Denise’s punitive-damages
counterclaim.
{¶158} Thus, Daniel and Denise’s second assignment of error is sustained.
Universal Steel’s First Assignment of Error
The Trial Court Erred In Excluding The Deposition Testimony Of John Graber, Jonas Graber, and John Hilty From Being Introduced Under Civ.R. 32(A)(3).
{¶159} In its first assignment of error, Universal Steel argues that the trial
court abused its discretion by excluding John’s, Jonas’s, and Hilty’s deposition
testimonies. Specifically, Universal Steel contends that those deposition
testimonies were admissible under Civ.R. 32(A)(3) since “the three men are
residents of Indiana, and are therefore outside the subpoena power of the court.”
(Appellee’s/Cross-Appellant’s Brief at 12).
{¶160} We review a decision on the admission or exclusion evidence,
including deposition testimony, under an abuse-of-discretion standard. Simpson v.
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Kuchipudi, 3d Dist. Allen No. 1-05-50, 2006-Ohio-5163, ¶ 9; Sabath v. Sabath, 11th
Dist. Lake No. 2019-L-154, 2020-Ohio-4638, ¶ 36. Again, an abuse of discretion
suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.
Blakemore, 5 Ohio St.3d at 219 .
{¶161} However, even if a trial court abuses its discretion in the admission
of evidence, “a reviewing court will not reverse unless the error affected a
substantial right of the party at issue.” Coffey v. Dolgencorp, Inc., 3d Dist. Defiance
No. 4-06-25, 2007-Ohio-2274, ¶ 26. See also Sabath at ¶ 43 (explaining that “the
exclusion of evidence or testimony must result in material prejudice for reversal to
be warranted”). “In that scenario, the error is harmless.” Welly v. Welly, 3d Dist.
Seneca No. 13-15-15, 2015-Ohio-4804, ¶ 23, citing Civ.R. 61.
{¶162} Civ.R. 32 provides the guidelines for the use of depositions in court
proceedings and provides, in its relevant part, that “[e]very deposition intended to
be presented as evidence must be filed at least one day before the day of trial or
hearing unless for good cause shown the court permits a later filing.” Civ.R. 32(A).
The rule further provides that
[a]t the trial * * * , any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof * * * .
Id. Specifically, under Civ.R. 32(A)(3),
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[t]he deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds * * * that the witness is beyond the subpoena power of the court in which the action is pending or resides outside of the county in which the action is pending unless it appears that the absence of the witness was procured by the party offering the deposition * * * .
Civ.R. 32(A)(3)(b). “‘It is well-established that the burden rests on the proponent
of the deposition to satisfy the requirements of Civ.R. 32(A)(3).’” Sabath at ¶ 38,
quoting Schwartz v. Tedrick, 8th Dist. Cuyahoga No. 102082, 2016-Ohio-1218, ¶
45. Importantly, “‘Civ.R. 32(A)(3), by its own terms, does not mandate the
substitution of a deposition at trial.’” Schwartz at ¶ 45, quoting Johnson v. Eitle,
6th Dist. Lucas No. L-06-1247, 2007-Ohio-3315, ¶ 27. See also Sabath at ¶ 38
(noting that “[t]he discretion afforded to the trial court in applying Civ.R. 32(A)(3)
in particular has been emphasized, with this court finding Civ.R. 32(A)(3) provides
that depositions ‘may’ be used but not that they ‘shall be’ admitted as evidence”).
{¶163} In this case, the trial court permitted Universal Steel to rely on the
deposition transcripts “for impeachment purposes” “and not as substantive evidence
itself, but for their utilization for credibility of the witness.” (July 26-29, 2022 Tr.,
Vol. II, at 265). Specifically, the trial court reasoned that the depositions were “not
anticipated as a perpetuation deposition, meaning the deposition was taken with the
beginning understanding that it was going to be used at trial * * * .” (Id. at 264).
{¶164} Here, Universal Steel argues that the trial court abused its discretion
by excluding the deposition testimonies since (1) it “requested the introduction of
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these depositions pursuant to Civ.R. 32(A)(3), as the three men are residents of
Indiana, and are therefore outside the subpoena power of the court”; (2) the
“depositions had been conducted by Dues’ counsel in July 2018, and the transcripts
had been filed with the Court on January 12, 2022, prior to an earlier scheduled
trial”; and (3) Universal Steel “attempted to obtain the men’s attendance at trial, but
they refused citing reasons related to their Amish faith.” (Appellee’s/Cross-
Appellant’s Brief at 12).
{¶165} Based on our review of the record, even if we assume without
deciding that Universal Steel satisfied the circumstances which must be met under
Civ.R. 32(A)(3), Universal Steel was not materially prejudiced by the exclusion of
the deposition testimonies. That is, even if we assume without deciding that the
transcripts were “filed ‘at least one day before the day of trial’ and the witness[es
were] unable to appear,” Universal Steel cannot demonstrate that the outcome of
trial would have been different. Sabath, 2020-Ohio-4638, at ¶ 40.
{¶166} Here, Universal Steel contends that “[t]he exclusion of the
depositions was materially prejudicial to” it because the men’s testimonies “directly
and plainly contradicted Dues’ claim” since “[a]ll testified that it was Dan Dues who
set the height of the foundation walls to provide greater air-flow to his cows and
that this was what resulted in the doorways being too short.” (Emphasis sic.)
(Cross-Appellant’s/Appellee’s Brief at 16). Universal Steel’s argument is without
merit.
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{¶167} Indeed, Universal Steel presented the deposition testimony for
impeachment purposes during Daniel’s cross-examination. Stanley v. Ohio State
Univ. Med. Ctr., 10th Dist. Franklin No. 12AP-999, 2013-Ohio-5140, ¶ 91
(concluding that the appellant failed “to demonstrate how prejudice resulted from
the exclusion of the depositions” since “the statements from the depositions * * *
were utilized by appellant to cross-examine the respective doctors and were heard
by the trier of fact”). As a result, the jury heard the portion of [Hilty’s] deposition
testimony instructing Daniel that if he lowers the walls he will “lose the height of
[the] door.” (July 26-29 Tr., Vol. III, at 556). Likewise, the jury heard Daniel’s
response to that deposition testimony that he “didn’t change the walls, [Hilty] didn’t
change the walls, John Hilty didn’t change the walls. And [he] got a 2-foot wall in
front of [his] cows just like industry is.” (Id. at 557) In sum, Universal Steel was
able to utilize the deposition testimony to discredit Daniel’s testimony, but it is
evident that the jury chose to credit Daniel’s version of the events. Consequently,
based on the facts and circumstances before us, we cannot say that the outcome of
trial would have been different.
{¶168} Nevertheless, Universal Steel contends that the trial court abused its
discretion by excluding the deposition testimonies after concluding that “they were
discovery depositions rather than trial depositions * * * .” (Id. at 14). However,
based on our conclusion that Universal Steel cannot demonstrate that it was
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materially prejudiced by the exclusion of the deposition testimonies, we need not
reach this argument.
{¶169} For these reasons, Universal Steel’s first assignment of error is
overruled.
Universal Steel’s Second Assignment of Error
The Jury’s Finding In Favor Of The Dan Dues [sic] On His Breach Of Contract Claim Against Universal And Its Damages Award Of $256,500 Was Against The Manifest Weight Of The Evidence
{¶170} In its second assignment of error, Universal Steel contends that the
jury’s verdict as to Daniel and Denise’s breach-of-contract counterclaim is against
the manifest weight of the evidence because “the jury lost its way, ignoring the plain
and unambiguous provisions of the contract, the design plans, and the photographic
evidence.” (Appellee’s/Cross-Appellant’s Brief at 17). Specifically, Universal
Steel argues that the jury not only lost its way by concluding that it breached the
parties agreement but that it lost its way in awarding Daniel and Denise $256,500.00
in damages.
{¶171} “The standard of review for manifest weight is the same in a civil
case as in a criminal case.” Yurkovich v. Kessler, 6th Dist. Huron No. H-19-023,
2020-Ohio-4169, ¶ 30. It “‘refers to a greater amount of credible evidence and
relates to persuasion.’” Snapp v. Castlebrook Builders, Inc., 3d Dist. Shelby No.
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17-12-22, 2014-Ohio-163, ¶ 85, quoting Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 19. “Under this standard, the reviewing court ‘does not reweigh
the evidence’ but it applies the presumption that the jury’s findings of fact are
correct.” Id., quoting Southeast Land Dev., Ltd. v. Primrose Mgt. L.L.C., 193 Ohio
App.3d 465, 2011-Ohio-2341, ¶ 7 (3d Dist.).
{¶172} 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 at ¶ 17, quoting Tewarson v. Simon, 141 Ohio
App.3d 103, 115 (9th Dist.2001). “‘If the evidence is susceptible of more than one
construction, the reviewing court is bound to give it that interpretation which is
consistent with the verdict and judgment, most favorable to sustaining the verdict
and judgment.’” Guagenti v. Guagenti, 3d Dist. Allen No. 1-16-47, 2017-Ohio-
2706, ¶ 53, quoting Eastley at ¶ 21.
{¶173} As we previously stated, “[a] cause of action for breach of contract
requires the claimant to establish the existence of a contract, the failure without legal
excuse of the other party to perform when performance is due, and damages or loss
resulting from the breach.” Lucarell v. Nationwide Mut. Ins. Co., 152 Ohio St.3d
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453, 2018-Ohio-15, ¶ 41. In this case, the parties dispute whether Universal Steel
breached the parties’ contract by failing to provide the Dues family “a building with
the contracted-for 14-foot high doorways.” (Appellee’s/Cross-Appellant’s Brief at
17). Furthermore, Universal Steel contends that the “jury’s finding and award of
damages is against the manifest weight of the evidence * * * .” (Id.).
{¶174} On appeal, Universal Steel argues that the jury lost its way by
concluding that it breached the parties’ contract since it presented evidence that the
Dues family was solely responsible for “the foundation design and construction”
“[u]nder the clear terms of the contract” and that Universal Steel “did not have any
involvement in the design or the construction of the concrete foundations for the
barn. (Id. at 18). In other words, Universal Steel is asking this court to credit its
expert witness’s testimony over Daniel and Denise’s expert witnesses’ testimonies
and conclude that it did not breach the parties’ contract.
{¶175} However, we will not second-guess the jury’s witness-credibility
determination unless it is clear that the jury lost its way and a miscarriage of justice
occurred. See Logan v. Holcomb, 3d Dist. Marion No. 9-12-61, 2013-Ohio-2047, ¶
39. The trier of fact “occupies the best position to watch the witnesses and observe
their demeanor, gestures and voice inflections and to utilize these observations in
weighing credibility.” Sanford v. Griffin, 7th Dist. Noble No. 22 NO 0491, 2023-
Ohio-1917, ¶ 9, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80
(1984). Critically, “[a] reviewing court should not reverse a decision simply
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because its opinion differs from the finder of fact’s opinion concerning the
credibility of the witnesses and evidence submitted.” Id., citing Seasons Coal at 81.
After reviewing the evidence, we conclude that the jury did not lose its way and
create such a manifest miscarriage of justice by concluding that Universal Steel
breached the parties’ contract that the judgment must be reversed and a new trial
ordered.
{¶176} At trial, the jury heard the opinions of three expert witnesses who
considered whether Universal Steel or the Dues family was responsible for the
deficient door height of the barn. Universal Steel’s expert witness, Lewin, testified
that “everything in the barn was consistently lower than what it was called for on
the design drawings.” (July 26-29, 2022 Tr., Vol. V, at 968). Specifically, he
testified that “the foundation for the building was built approximately two feet lower
than it originally was called for in both the Rethman plans and the [Universal Steel]
building plans.” (Id. at 976). According to Lewin, based on his review of “the
[Universal Steel] design plans and the Rethman design plans,” the 14-foot
measurement “goes from the bottom of the door head to the finished floor of the
building.” (Id. at 979). As a result, Lewin told the jury that he concluded that “the
contractor * * * misinstalled the foundations that were wrong height.” (Id. at 954).
{¶177} Nevertheless, the jury heard Lewin’s testimony that his
measurements were based “on the top of the floor slab at the northeast corner of the
cow barn” since he did not take any measurements from the center of the barn. (Id.
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at 986). Likewise, the jury heard Lewin’s testimony that he was “unable to verify
the slope of the concrete floor” when he inspected the barn since he did not take any
measurements from the center of the barn. (Id. at 983).
{¶178} Daniel and Denise’s expert witnesses, Schnippel and Core, testified
that they concluded that Universal Steel was responsible for the deficient door
height because it failed to consider the sloping floor slab when it drafted its plans
for the barn. Indeed, Schnippel testified that Universal Steel’s failure to consider
the floor slope is what caused the deficient door heights. Specifically, the jury heard
Schnippel’s explanation that Universal Steel “constantly reference[s] to the bottom
of [the] diagonal lines, which is a flat plain straight across. But when the floor
slopes up, you’re losing height. * * * The floor slab is sloping up towards the north
and to the south [causing a loss of] two feet or three feet of elevation in those
openings, and that’s why [they did] not get[] the 14-foot tall opening there.” (July
26-29, 2022 Tr., Vol. III, at 584). The jury further heard Schnippel’s testimony that
the error resulted from Universal Steel basing its dimensions on “the lowest part of
the floor slab inside of the building.” (Id. at 586).
{¶179} Similarly, Core testified that “the error was made by * * * Universal
[Steel]” “[a]nd it was a dimensional error on the plans that led to that ultimate error
in the manufacture of the building * * * to be too short.” (July 26-29, 2022 Tr., Vol.
IV, at 661). According to Core, Universal Steel made “[a] dimensional error on the
plans, that instead of dimensioning the door opening, it dimensioned it at the right
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size, but instead of dimensioning it at the top of the concrete foundation wall, it
dimensioned it to the bottom of the concrete foundation wall, or the top of the
footing, which makes * * * that opening size unattainable * * * .” (Id. at 673). He
testified that “[t]he result is a 2 foot, 3 foot, or 4 foot reduction in height or clearance
for the framed door openings in the side walls” and “a 2-foot reduction in height or
clearance for the framed door openings in the south end wall.” (Id. at 673-674). In
sum, Core testified that Universal Steel’s plans “call[] for those doorways to be
erroneously measured from the bottom of the foundation wall, rather than the top of
the foundation wall,” which resulted in the building being “too short,” causing
“modifications to the building to increase the height/clearance of the frame
{¶180} Moreover, Core testified that he reviewed Lewin’s report and
disagreed with his conclusions because Lewin based his measurements “on the top
of the floor slab at the northeast corner of the cow barn,” which is not the lowest
portion of the concrete in the barn. (Id. at 684). Core further disputed Lewin’s
conclusion that “[t]he elevation differences established the concrete walls were not
constructed in accordance with either the [Universal Steel] or Rethman drawings”
because Lewin based his measurements off of the northeast corner of the barn
instead of the middle (in which the lowest point of the barn is located). (Id. at 686).
Core testified that, based on this conclusion, Lewin’s measurements are off “exactly
2.19 feet.” (Id. at 687).
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{¶181} As a result of the evidence presented supporting both positions, the
jury was free to accept either one of the positions. See Logan, 2013-Ohio-2047, at
¶ 39. Critically, it was well within the province of the jury to grant greater weight
to Daniel and Denise’s expert witnesses’ testimonies over Universal Steel’s expert
witness testimony. See id. Thus, in situations where the evidence is susceptible to
more than one construction, we are bound to give the evidence the interpretation
that is most favorable to sustaining the verdict and judgment. Therefore, we
conclude that the jury did not lose its way by concluding that Universal Steel
breached the parties’ contract.
{¶182} Universal Steel further contends that the jury’s award of $256,500.00
in damages is against the manifest weight of the evidence since the “contract and
the jury instructions limited Dues’ damages to repair and replacement costs” and
the jury’s damages award constitutes “rescission-style damages * * * .”
(Appellee’s/Cross-Appellant’s Brief at 19); (Appellee’s/Cross-Appellant’s Reply
Brief at 7). Specifically, Universal Steel contends that the jury lost its way by
awarding damages in favor of Daniel and Denise as to their breach-of-contract claim
because the “damages amount was not an amount that was presented to the jury by
either party.” (Id. at 17).
{¶183} Daniel and Denise contest Universal Steel’s argument and contend
that, “[a]s Universal [Steel] admits, [the] Dues’ remedy for Universal’s breach under
the terms of the contact was limited to repair or replacement cost” and the “Dues
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presented evidence at trial that the cost of replacing the barn would be $925,000.00.”
(Appellant’s/Cross-Appellee’s Reply Brief at 26). Daniel and Denise assert that
“[t]he Jury’s award of $256,500.00 [is] actually at the lower end of potential
damages which could have been imposed upon Universal [Steel] given the evidence
presented at trial.” (Id.).
{¶184} At trial, Daniel and Denise presented evidence to the jury as to the
cost to repair or replace the barn. Specifically, Schnippel testified that the repair
cost of the barn is $163,300.00 and the replacement cost of the barn is $925,000.00.
Similarly, Gutierrez testified that the repair cost (as proposed by Theuret) is
$47,200.00. Thus, even though “the record does not disclose how the jury arrived
at its decision to award” $256,600.00 in damages as to Daniel and Denise’s breach-
of-contract counterclaim, “‘[t]he fact-finder has the discretion to award damages
within the range of evidence presented at trial, so long as a rational basis exists for
its calculation.’” Andrew v. Power Marketing Direct, Inc., 10th Dist. Franklin No.
11AP-603, 2012-Ohio-4371, ¶ 70, quoting Sharifi v. Steen Automotive, LLC, 370
S.W.3d 126, 151 (Tex.Civ.App.2012). Consequently, since the jury’s award of
$256,500.00 in damages as to Daniel and Denise’s breach-of-contract counterclaim
falls within the range of evidence presented at trial, we conclude that the jury’s
damages award is not against the manifest weight of the evidence. Accord id.
{¶185} For these reasons, Universal Steel’s second assignment of error is
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Universal Steel’s Third Assignment of Error
The Trial Court Erred By Granting Dues’ Motion For Jury Trial After Dues Had Agreed To a Contractual Jury Waiver
{¶186} In its third assignment of error, Universal Steel argues that the trial
court erred by granting Daniel and Denise’s motion for a jury trial. Specifically,
Universal Steel contends that the parties’ contract “contains an express and
enforceable waiver of both parties’ right to a jury trial.” (Appellee’s/Cross-
Appellant’s Brief at 20).
{¶187} We review a trial court’s decision on a motion for a jury trial for an
abuse of discretion. Am. Hotel Group, LLC v. Wyandotte Plaza, LLC, 10th Dist.
Franklin No. 16AP-296, 2017-Ohio-5520, ¶ 13. See also Sallock v. Tillimon, 6th
Dist. Lucas No. L-22-1241, 2023-Ohio-3193, ¶ 48 (applying the abuse-of-discretion
standard of review to a trial court’s decision denying a motion for a jury trial). As
we previously stated, an abuse of discretion connotes a decision that was
unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.
{¶188} In this case, Universal Steel contends that the trial court abused its
discretion by granting Daniel and Denise’s motion for a jury trial despite their
contractual waiver of their right to request a jury trial. “‘Both Article I, Section 5
of the Ohio Constitution and Civ.R. 38(A) provide that the right to a trial by jury is
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inviolate.’” Kane v. Inpatient Med. Services, Inc., 9th Dist. Summit No. 29087,
2019-Ohio-1975, ¶ 29, quoting Princess Kim, L.L.C. v. U.S. Bank, N.A., 9th Dist.
Summit No. 27401, 2015-Ohio-4472, ¶ 6. “Nonetheless, ‘[t]he Ohio Supreme Court
has recognized that parties may waive the right to a trial by jury without offending
the constitutional protection.’” Id., quoting Princess Kim at ¶ 9. See also MidAm
Bank v. Dolin, 6th Dist. Lucas No. L-04-1033, 2005-Ohio-3353, ¶ 123 (“It is well-
established a party may waive his or her right to a jury trial by processes other than
those provided by the Civil Rules.”). Indeed, “the parties to a contract may by prior
written agreement waive the right to jury trial.” K.M.C. Co. v. Irving Tr. Co., 757
F.2d 752, 755 (6th Cir.1985).
{¶189} “Ohio courts have held contractual jury-waivers, in which the parties
agree not to ask for a jury trial, are enforceable where the terms of the waiver are
clear and unambiguous.” MidAm Bank at ¶ 123. Importantly, “[a]s long as
circumstances do not indicate that the waiver was entered into unknowingly or
involuntarily or that one party had no meaningful choice in the transaction but to
agree to the jury waiver, such waivers ‘have routinely been upheld by courts in Ohio
and elsewhere[.]’” Princess Kim at ¶ 9, quoting Garcia v. Wayne Homes, LLC, 2d
Dist. Clark No. 2001 CA 53, 2002 WL 628619, *10 (Apr. 19, 2002). When
determining “whether a jury waiver was entered into knowingly, voluntarily, and
intelligently,” courts apply “a five-factor test * * * .” Kane at ¶ 30.
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Under this test, courts consider “(1) the conspicuousness of the provision of the contract; (2) the level of sophistication and experience of the parties entering into the contract; (3) the opportunity to negotiate terms of the contract; (4) the relative bargaining power of each party; and (5) whether the waiving party was represented by counsel.”
Id., quoting Hooper v. Ideal Image Dev. Corp., M.D.Florida No. 8:14-CV-2778-T-
30EAJ, 2015 WL 1508494, *1 (Apr. 1, 2015). “‘No single factor is determinative;
rather, the Court must determine whether, in light of all the circumstances, the Court
finds the waiver to be unconscionable, contrary to public policy, or simply unfair.’”
Id., quoting Hooper at *1. The burden of proving that the waiver was not executed
knowingly, intelligently, and voluntarily rests with the party challenging the waiver.
Garcia at *10.
{¶190} In this case, the parties’ agreement provides, in its relevant part, that
“Buyer and Seller knowingly and intentionally waive any right to trial by jury in
regard to this Contract, including its enforcement.” (Emphasis sic.) (Plaintiff’s Ex.
4). After reviewing the parties’ agreement, the trial court concluded that Daniel and
Denise did not “knowingly, voluntarily, and intelligently” waive their right to
request a trial by jury because “the print of [the parties’ contract] provision is so
small as to be barely legible.” (Doc. No. 188).
{¶191} Based on our review of the record, we conclude that the trial court
did not abuse its discretion by granting Daniel and Denise’s motion for a jury trial.
That is, we conclude that the trial court did not abuse its discretion by resolving that
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Daniel and Denise did not knowingly, intelligently, and voluntarily waive their right
to request a jury trial. Importantly, even if the language of the jury-waiver provision
is plain and unambiguous (and is emphasized), the trial court did not abuse its
discretion by concluding that enforcement of the waiver provision would be
unconscionable or simply unfair. Indeed, our review of the parties’ agreement
reveals that the waiver provision is not conspicuous. Critically, this court had
difficulty reviewing the provision since it appears in particularly small print and is
barely legible. Consequently, the trial court’s determination that the parties did not
waive their right to request a jury trial is not unreasonable, arbitrary, or
unconscionable.
{¶192} Universal Steel’s third assignment of error is overruled.
Universal Steel’s Fourth Assignment of Error
The Trial Court Erred In Denying Universal’s Motion For Attorneys’ Fees
{¶193} In its fourth assignment of error, Universal Steel argues that the trial
court abused its discretion by denying its request for attorney fees.
{¶194} “The decision to award attorney fees and the amount thereof are
within the discretion of the trial court.” Technical Constr. Specialties, Inc. v. New
Era Builders, Inc., 9th Dist. Summit No. 25776, 2012-Ohio-1328, ¶ 26, citing
Cassaro v. Cassaro, 50 Ohio App.2d 368, 373-374 (8th Dist.1976). Therefore, we
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review a trial court’s determination regarding attorney fees for an abuse of
discretion. Brittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 146 (1991).
Again, an abuse of discretion suggests the trial court’s decision is unreasonable,
arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219.
{¶195} “Attorney fees are generally not recoverable in contract actions.”
Technical Constr. Specialties, Inc. at ¶ 26, citing First Bank of Marietta v. L.C. Ltd.,
10th Dist. Franklin No. 99AP-304, 1999 WL 1262058, *8 (Dec. 28, 1999). “Such
a principle comports with the ‘American Rule’ that requires each party involved in
litigation to pay its own attorney fees in most circumstances.” Id., citing Sorin v.
Bd. of Edn., 46 Ohio St.2d 177, 179 (1976). “As exceptions to that rule, recovery
of attorney fees may be permitted if (1) a statute creates a duty to pay fees, (2) the
losing party has acted in bad faith, or (3) the parties contract to shift fees.” Id., citing
McConnell v. Hunt Sports Ents., 132 Ohio App.3d 657, 699 (10th Dist.1999), citing
Pegan v. Crawmer, 79 Ohio St.3d 155, 156 (1997).
{¶196} In this case, the trial court denied Universal Steel’s request for
attorney fees based on the jury’s determination as to Daniel and Denise’s breach-
of-contract counterclaim. Consequently, based on our determination under
Universal Steel’s second assignment of error, we conclude that Universal Steel’s
attorney-fee argument is without merit.
{¶197} Therefore, Universal Steel’s fourth assignment of error is overruled.
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{¶198} Having found no error prejudicial to the appellee/cross-appellant
herein in the particulars assigned and argued in their first, second, third, and fourth
assignments of error, we affirm the judgment of the trial court. However, having
found error prejudicial to the appellant/cross-appellee herein in the particulars
assigned and argued in their first, second, and third assignments of error, we reverse
the judgment of the trial court and remand for further proceedings consistent with
this opinion.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
WILLAMOWSKI, P.J. and WALDICK, J., concur.
/hls
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Cite This Page — Counsel Stack
2024 Ohio 698, 237 N.E.3d 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/universal-steel-bldgs-corp-v-dues-ohioctapp-2024.