Turfco Landscaping, Inc. v. Shenigo , 2021 Ohio 4259 ( 2021 )

[Cite as Turfco Landscaping, Inc. v. Shenigo, 2021-Ohio-4259.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
TURFCO LANDSCAPING, INC., CASE NO. 2020-P-0006
Plaintiff-Appellee,
Civil Appeal from the
-v- Court of Common Pleas
FRANK SHENIGO,
Trial Court No. 2017 CV 00203
Defendant-Appellant.
OPINION
Decided: December 6, 2021
Judgment: Affirmed as modified
Jack B. Cooper, Milligan Pusateri Co., LPA, P.O. Box 35459, 4684 Douglas Circle,
N.W., Canton, OH 44735 (For Plaintiff-Appellee).
Tyler J. Whitney, Burdon & Merlitti, 137 South Main Street, Suite 201, Akron, OH 44308
(For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Frank Shenigo (“Shenigo”), appeals the trial court’s judgment in
favor of appellee, Turfco Landscaping, Inc. (“Turfco”), in the amount of $75,506.04. The
judgment is modified to $75,505.88 and affirmed as modified.
{¶2} Beginning in 2012, Turfco, a landscaping and snow removal company,
leased commercial property from Shenigo to store equipment and vehicles. Turfco filed
suit against Shenigo in 2017 for replevin, conversion, breach of contract, tortious
interference with business contracts and relationships, and punitive damages. Turfco
alleged that “Shenigo and/or his agents have recently locked Turfco out of the Property
and wrongfully taken possession of Turfco’s property, purposely and intentionally
damaging it, and refused to release certain vehicles and equipment belong to Turfco.”
Shenigo answered and filed a counterclaim for breach of contract, property damage, and
conversion.
{¶3} The case was tried to a magistrate, who decided that judgment should be
granted against Shenigo on the complaint and counterclaim in the amount of
$133,259.06. The magistrate made the following relevant findings of fact and conclusions
of law:
On or about February 2, 2017, Defendant caused Plaintiff to
be locked out [of] the premises. * * * Defendant refused to
explain the reasoning for the lockout to Plaintiff. When
Defendant locked out Plaintiff from the property, Plaintiff’s
business equipment was in the buildings on the property and
Plaintiff had no access to [the] same. Due to the lockout,
Plaintiff could not continue to maintain his landscaping/snow
removal contracts. Plaintiff lost customers and contracts due
to his inability to perform services as his commercial
equipment was inaccessible. Plaintiff lost profits and had to
cease business due to the lost business.
Plaintiff’s sales for the period of February 1, 2016 through
March 15, 2016 were $38,243.65 pursuant to business
records. Plaintiff’s sales for February 1, 2017 through March
15, 2017, during the lockout, were $9,569.20 pursuant to
business records.
Plaintiff’s sales for the period of February 1, 2016 through
June 1, 2016 were $211,036.10 pursuant to business records.
Plaintiff’s sales for the period of February 1, 2017 through
June 1, 2017 were $22,271.00 pursuant to business records.
One of the clients that Plaintiff lost was Ramco, which was
responsible for $114,570.00 in sales from February 1, 2016
through June 1, 2016. The Ramco sales were $0 in sales for
2017. Shane Polen [the owner of Turfco] testified that Ramco
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canceled the contract because Plaintiff could not serve
Ramco during the lockout.
Another client that Plaintiff lost due to the lockout was H.M.
Miller, which was responsible for $44,959.50 in sales from
February 1, 2016 through June 1, 2016. The H.M. Miller sales
were $0 in 2017.
Plaintiff’s profit margin on its work was 60% of sales. Plaintiff
lost $188,765.10 in sales as a result of the lockout or
$113,259.06 in profit.
{¶4} Shenigo filed objections to the magistrate’s decision, to which Turfco
responded in opposition. The trial court upheld the magistrate’s decision in Turfco’s favor
on the complaint and counterclaim but sustained one of Shenigo’s objections as to the
amount of damages. The trial court found that “the Magistrate incorrectly calculated the
damages and awarded Plaintiff 60% profit loss instead of the testified to amount of 40%
profit loss” and, accordingly, reduced the damages award to $75,506.04.
{¶5} Shenigo appealed and advances three assignments of error:
[1.] The trial court erred and abused its discretion in granting
Turfco Landscaping a judgment against Shenigo for reason
that Turfco Landscaping did not meet its burden of proof.
[2.] The trial court erred and abused its discretion in granting
Turfco Landscaping a judgment against Shenigo for reason
that Turfco Landscaping’s evidence was insufficient.
[3.] The trial court’s judgment in favor of Turfco Landscaping
and against Shenigo was against the manifest weight of the
evidence.
{¶6} Shenigo challenges the weight and sufficiency of the evidence, raising a
similar argument under each assignment of error:
The trial court based [its] judgment solely on self-serving
Sales Summaries produced and testified to by Turfco
Landscaping. No other evidence was produced by Turfco
Landscaping. No contracts, no bank records, no other
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testimony [sic]. Turfco Landscaping did not meet its burden of
proof on these facts and its evidence was insufficient and the
granting of the judgment in favor of Turfco Landscaping was
against the manifest weight of the evidence.
{¶7} “A challenge to the sufficiency of the evidence * * * requires a court to
determine whether [a party] has met its burden of production at trial. * * * In contrast, in
deciding whether a [judgment] is against the manifest weight of the evidence, an appellate
court determines whether [a party] has appropriately carried its burden of persuasion.”
State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J.,
concurring). “In a civil case, in which the burden of persuasion is only by a preponderance
of the evidence, * * * evidence must still exist on each element (sufficiency) and the
evidence on each element must satisfy the burden of persuasion (weight).” Eastley v.
Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19.
{¶8} The sufficiency of the evidence refers to “that legal standard which is
applied to determine whether the case may go to the jury or whether the evidence is
legally sufficient to support the jury verdict as a matter of law.” (Citation omitted.)
Thompkins at 386. In a civil context, the relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prevailing party, any rational trier of fact could
have found the elements of the claim proven by a preponderance of the evidence, i.e.,
that the existence of facts supporting the claim is more likely than their nonexistence.
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus;
State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶
54.
{¶9} The weight of the evidence concerns “the inclination of the greater amount
of credible evidence, offered in a trial, to support one side of the issue rather than the
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other.” (Emphasis sic.) (Citation omitted.) Thompkins at 387. “The [reviewing] court * *
* weighs the evidence and all reasonable inferences, considers the credibility of the
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.” (Citation omitted.) Id.; State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25 (“a reviewing court
asks whose evidence is more persuasive”).
{¶10} “In order for a plaintiff to recover lost profits in a breach of contract action,
the amount of the lost profits, as well as their existence, must be demonstrated with
reasonable certainty.” Gahanna v. Eastgate Properties, Inc., 36 Ohio St.3d 65, 521
N.E.2d 814 (1988), syllabus. “Damages which are speculative are not recoverable.”
(Citation omitted.) Burlington Group, Inc. v. Chardon Lakes Inn Restaurant, Inc., 11th
Dist. Geauga No. 94-G-1839, 1995 WL 236919, *3 (Mar. 24, 1995). “Evidence of the past
performance of an established business ‘will form the basis for a reasonable prediction
as to the future.’” Id., quoting AGF, Inc. v. Great Lakes Heat Treating Co., 51 Ohio St.3d
177, 181, 555 N.E.2d 634 (1990). “Although lost profits need not be proven with
mathematical precision, the evidence and theory of the case must provide the finder of
fact with known, reliable factors that can reasonably guide the computation of damages.”
(Citation omitted.) Carey v. Down River Specialties, Inc., 8th Dist. Cuyahoga No. 103595,
2016-Ohio-4864, ¶ 29; Charles R. Combs, Trucking Inc. v. Internatl. Harvester Co., 12
Ohio St.3d 241, 244, 466 N.E.2d 883 (1984) (lost profits “need only be reasonable, not
specific”).
{¶11} At trial, Shane Polen (“Polen”), Turfco’s founder and owner, was the sole
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witness to testify on behalf of Turfco. At the time of the lockout in February 2017, Turfco
had around seven employees primarily for salting and plowing, removing holiday lights,
edging and mulching. Polen testified, based on his experience in running Turfco, that the
profit margin on sales was around 40 percent.
{¶12} Polen testified that for the period of February 1 through March 15, 2016,
Turfco generated sales in the amount of $38,243.65 from commercial snowplowing
customers that re-signed with the company every year. Polen testified that for that same
period of time in 2017, i.e., during the lockout, Turfco generated sales in the amount of
$9,569.20.
{¶13} Polen further testified that the loss of the snow removal contracts at the time
of the lockout led to the loss of landscaping business, due to a loss of trust and credibility
with his customers. Expanding the timeline for calculating losses, he testified that Turfco
generated sales in the amount of $22,271.00 from February 1 through June 1, 2017. The
year prior, in 2016, Turfco had generated sales in the amount of $211,036.10 for that
same time period.
{¶14} Counsel asked Polen to testify about the loss of Turfco’s two largest
customers. Income from Ramco and HM Miller was $114,570.00 and $44,959.50,
respectively, from February 1 through June 1, 2016. Polen testified these customers
cancelled their contracts as a result of Turfco’s inability to service their properties during
the lockout and generated no income from February 1 through June 1, 2017.
{¶15} Polen’s testimony was corroborated by the admission, without objection, of
Plaintiff’s Exhibit 6 (the 2016 accounting summaries) and Exhibit 7 (the 2017 accounting
summaries), which provide as follows:
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Sales by Customer Summary
February 1 through March 15, 2016
Graphic Detail 980.00
Henry Wahner 740.00
HM Miller – 1225 Waterloo Road 23,386.50
Hudson Presbyterian 2,510.01
K.S.U. Alpha Phi House Corp. 3,461.28
K.S.U. Phi Gamma Theta 660.00
Northeast Eye Surgeons 4,024.66
Northeast Eye Surgeons – Stow 1,597.86
Paino Construction 0.00
Portage Community Health Resources 883.34
Ramco 0.00
TOTAL 38,243.65
Income by Customer Summary
February 1 through June 1, 2016
Graphic Detail 980.00
Henry Wahner 740.00
HM Miller 44,959.50
Hudson Presbyterian 4,183.35
K.S.U. Alpha Phi House Corp. 3,461.28
K.S.U. Phi Gamma Theta 660.00
Lemasters, Craig & Lisa 25,262.25
McDougal, Shel 4,058.00
Northeast Eye Surgeons 7,199.32
Northeast Eye Surgeons – Stow 3,195.72
Paino Construction 0.00
Portage Community Health Resources 1,766.68
Ramco 114,570.00
TOTAL 211,036.10
Sales by Customer Summary
February 1 through March 15, 2017
Aberth, Eloise 15.00
Bennett, Susan 50.00
Berns, Richard & Faye 50.00
Burns, Patrick 40.00
Clevenger, Jean 40.00
Flinn, James & Dorothy 15.00
Henry Wahner 500.00
Hudson Presbyterian 1,673.34
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K.S.U. Phi Gamma Theta 340.00
Kendel, Jim & Wanda 40.00
Korosa, Luan 40.00
Kronander, Bob 50.00
Lords House of Prayer 50.00
Nicols, Bonnie 20.00
Northeast Eye Surgeons 4,024.66
Northeast Eye Surgeons – Stow 1,597.86
Portage Community Health Resources 883.34
Sassaman, Kathy 40.00
Scott, Chuck 40.00
Shatrich, Harriet 15.00
Shatrich, Stefanie 15.00
Toth, Bob 15.00
Toth, Louise 15.00
TOTAL 9,569.20
Income by Customer Summary
February 1 through June 1, 2017
Aberth, Eloise 15.00
Bellamy, Warren 120.00
Bennett, Susan 110.00
Berns, Richard & Faye 200.00
Burns, Patrick 160.00
Clevenger, Jean 160.00
Deger, Lisa 90.00
Flinn, James & Dorothy 105.00
Henry Wahner 1,000.00
Hudson Presbyterian 3,346.68
K.S.U. Phi Gamma Theta 860.00
Kendel, Jim & Wanda 140.00
Korosa, Luan 160.00
Kronander, Bob 200.00
Lords House of Prayer 350.00
Louis & Partners Design 1,303.00
McGinnis, Cheryl 120.00
Nicols, Bonnie 140.00
Northeast Eye Surgeons 8,049.32
Northeast Eye Surgeons – Stow 3,195.72
Pfaff, James 120.00
Portage Community Health Resources 1,766.68
Sassaman, Kathy 160.00
Scott, Chuck 160.00
Shatrich, Harriet 105.00
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Shatrich, Stefanie 105.00
Toth, Bob 15.00
Toth, Louise 15.00
TOTAL 22,271.40
{¶16} Specifically, Polen’s testimony on direct examination was as follows:
Q. And at this time, describe what your client base was like
and give us a few examples of your clients?
A. I had a very large client base and they were very loyal to
me. I’ve had them forever. Like they just keep resigning with
me every year.
Q. Go to tab 6 and take a look at tab 6 and let me know what
that document is and if that reflects your client base or some
of your clients.
A. Yeah. This is some of my clients. These are – the first one’s
like some of, my commercial ones. Second one is also
commercial.
Q. Okay.
A. So those are commercial ones that deal with snowplowing
and – yeah, these are ones that I definitely did snowplowing
on.
Q. All right. Are these accurate numbers for what your sales
were in 2016 during the months of February 1 through March
16?
A. Correct.
Q. So during that six-week or so time, $38,243.65 in sales to
these customers?
A. Correct.
Q. Were these customers – were any of those customers
repeat customers that you had more than just during 2016?
A. Yeah. All of them.
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Q. Okay. And then going to this next page, it looks like we’re
extending this out rather than stopping at about the time you
got your property back. This goes through June 1, 2016.
Same customers?
A. Yeah, the same customers minus – well, Ramco, they
dropped me because they’re a very large –
Q. Well, let’s get to that. This is not the year – this is not ’17?
This is ’16?
A. Yep.
Q. And so $211,036.10 was your sales?
A. Correct.
Q. And based on your experience – and you had many of
these customers repeatedly over the years?
A. Correct.
Q. Based on your experience running this company, what was
your profit margin on sales?
A. It was around 40 percent.
Q. All right. So let’s compare to – well, let’s go down this list.
What happened to Ramco in 2017? Did this dispute with
Frank Shenigo affect your relationship with Ramco?
A. Yes, because Ramco is a very large company and they
have trucks that need to be in and out every day. And I
couldn’t salt it, couldn’t plow it, couldn’t do anything with them.
And they just asked me if I was able to take care of it and I
said, no, I couldn’t do it.
Q. What efforts did you make at that time, if any, or did Turfco
make at, if any, to try to service your clients while you had no
equipment?
A. A guy named David Yost from Yost Landscaping stepped
up to the plate and took care of a few that were in the Kent
area because that’s where he plowed. So he plowed
Northeast Eye and did the salting for me there, but he wasn’t
going out to Ramco. That’s in Hudson. So I had to tell Rick
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Malson, the owner, that I couldn’t fulfill my contract. He was
upset that I didn’t show up one day.
Q. How about HM Miller?
A. Oh yeah. HM Miller, I just couldn’t get out there. I had no
dump trucks to do the work that he wanted me to do and –
Q. What did you do for him?
A. I did the snowplowing, plus I did like restoration lawns. So
he does gas repair. And all winter long we would come and
take the dirt off that was mounded up. Then we put topsoil
down and seed it and straw it and it was all year.
Q. And the trucks you had to do this work were at Frank
Shenigo’s place?
A. Yes.
Q. Locked down?
A. Yes.
Q. Okay. Let’s go to tab 7. And explain the first page at tab 7,
the chart that’s February 1 through March 15, explain what
this is.
A. These are more snowplow accounts.
Q. Okay. But it’s for a different year; correct?
A. Yep.
Q. And does this reflect the business that Turfco did during
the period February 1, 2017, through March 15, 2017?
A. Yes.
Q. And Ramco is not on there. Is that because you lost Ramco
in 2017?
A. Yes.
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Q. Same questions with the second page. It looks like this is
for the period of February 1, 2017 through June 1, 2017; is
that correct?
A. Correct.
Q. Does this reflect the amount of business that Turfco did
during that time?
A. Yes.
Q. And that’s $22,271.40?
A. Correct.
Q. And as the owner and having been running the company,
you attribute this – what do you attribute this decline in sales
to?
A. It was just because I didn’t have my equipment and just,
you know, you lose the trust. Whenever you can’t show up,
people don’t trust that you’re going to be there. Your credibility
is lost.
Q. What about when you got the equipment back in mid
March?
A. Yeah.
Q. Why did – things did not just continue as usual?
A. Only with the ones that I didn’t do snow removal with and
the ones that weren’t upset that I wasn’t there to do their
edging or their mulching right away. But most of it, it was just
a bad relationship thing from then on.
Q. Explain to the – let’s explain to the Court what do you do –
I mean, I think of mulching and edging as a May, June thing,
and maybe I’m behind the curve, but do you do that kind of
stuff earlier than that?
A. Yeah. We do our pruning early and then we jump into
mulching and edging right away because we have – our
company, there’s very few employees, we’ll say, and a lot of
work. So we try to get our edging out of the way and our
mulching out of the way. And then we can get into our
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landscape install, which is the grass and the plants and all
that, installs, right when the prime time is. * * *
{¶17} Polen testified that Turfco eventually went out of business due to the loss
of customer trust.
Q. What happened to the company?
A. Like it just – as soon as this happened, there was rumors
saying that I was out of business. People were talking, because I
didn’t have my equipment. No one saw it around. This is small
town stuff and stuff. I lost some business due to the fact that I
couldn’t get them salted in time or get the plow – get the snow
plowed. And I just – they lost my – I lost my credibility. They lost
their trust with me.
Q. And so the damages you’re – Turfco is seeking is 40 percent
of the difference in sales between 2016 – the six-month period –
or five-month period in 2016 to 2017; is that right?
A. Correct.
Q. And we told the Court it was about $211,000.00 sales in that
period through June of ’16, and it was down to $22,000.00. If we
deduct that out and apply 40 percent, that was what you would
have expected your profit to be?
A. Yeah.
Q. And that would have been with gas paid, mulch paid,
employees paid?
A. Correct.
{¶18} Based on Polen’s testimony, the trial court determined Turfco’s damages
from lost profits to be $75,506.04, representing the difference between 2016 sales from
February 1 through June 1 ($211,036.10) and 2017 sales for the same period
($22,271.40) multiplied by a 40 percent profit margin.
{¶19} We conclude that Polen was competent to testify as to Turfco’s sales for
2016 and 2017 and as to the value of specific contracts. As the owner of the corporation
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with few employees, Polen had personal knowledge of the business, its clients, and its
sales. “‘[M]ost courts have permitted the owner or officer of a business to testify to the
value or projected profits of the business, without the necessity of qualifying the witness
as an accountant, appraiser, or similar expert * * * because of the particularized
knowledge that the witness has by virtue of his or her position in the business.’” Raymond
v. Raymond, 10th Dist. Franklin No. 11AP-363, 2011-Ohio-6173, ¶ 11, quoting the
Advisory Committee Notes for the 2000 Amendments to Fed.R.Evid. 701 (noting the
federal rule parallels the Ohio rule); 1 McCormick, Evidence, Section 10 (8th Ed.Mosteller
Ed.2020) (“lay employees of a business are often held to have enough ‘personalized
knowledge’ of the business’ operation to testify about such topics as the amount of its
profits”).
{¶20} We further conclude that the trial court’s calculation of damages is not
against the manifest weight of the evidence and, therefore, is supported by sufficient
evidence. Polen’s testimony and accounting records, without any evidence from Shenigo
contradicting the testimony or challenging Polen’s credibility in this regard, demonstrate
Turfco’s damages with reasonable certainty. The 2016 summaries list Turfco’s repeat
commercial snowplowing clients. Polen testified that Turfco’s relationship with these
repeat customers, including the corporation’s two largest accounts, was negatively
affected by the lockout in February 2017. The 2017 summaries corroborate that many of
those repeat customers did not generate any sales income for Turfco through June 2017.
Considering only those customers that generated income from February through June
2016 that did not generate any income for that same time period in 2017, the amount of
lost profits actually amounts to $77,316.41:
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Customer February 1 through June 1, 2016
Graphic Detail 980.00
HM Miller 44,959.50
K.S.U. Alpha Phi House Corp. 3,461.28
Lemasters, Craig & Lisa 25,262.25
McDougal, Shel 4,058.00
Paino Construction 0.00
Ramco 114,570.00
TOTAL 193,291.03
The trial court arrived at the lesser and more accurate amount of $75,506.04 by including
the income generated from the additional residential clients serviced in 2017, presumably
due to the loss of certain commercial accounts.
{¶21} Shenigo’s assignments of error are without merit. We note a slight
calculation error, however, that requires modification of the award. The magistrate’s
decision omitted 40 cents from the 2017 income total. The trial court then used the
magistrate’s inaccurate calculation when it recalculated the profit margin. The difference
amounts to 16 cents. We therefore modify the award in favor of Turfco to $75,505.88.
The judgment of the Portage County Court of Common Pleas is affirmed as modified.
MARY JANE TRAPP, P.J., concurs,
MATT LYNCH, J., dissents with a Dissenting Opinion.
_____________________________
MATT LYNCH, J., dissents with a Dissenting Opinion.
{¶22} Damages may be awarded for lost profits when the existence of lost profits
and the amount thereof are established with reasonable certainty. Gahanna v. Eastgate
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Properties, Inc., 36 Ohio St.3d 65, 521 N.E.2d 814 (1988), syllabus. Lost profits may be
established “with reasonable certainty through the use of such evidence as expert
testimony, economic and financial data, market surveys and analyses, business records
of similar enterprises, and any other relevant facts.” AGF, Inc. v. Great Lakes Heat
Treating Co., 51 Ohio St.3d 177, 555 N.E.2d 634 (1990), paragraph three of the syllabus.
{¶23} In the present case, Turfco Landscaping’s damage claims are based on
faulty methodology and are unsupported by any documentary evidence. In two cases,
Turfco established lost profits with arguable certainty. But even in these cases, the
evidence is contradictory and remains unsupported. Accordingly, I respectfully dissent.
{¶24} The damage award affirmed by the majority was calculated by comparing a
partial sampling of Turfco’s sales from February 1 through June 1 in 2016 with a different
partial sampling of Turfco’s sales for the same period in 2017. It is presumed that the
difference in sales is wholly attributable to the six-week lockout that occurred in February
and March of 2017.
{¶25} The 2016 figures are based on the sales generated by 13 clients in an
Income by Customer Summary prepared for trial. In no case are Turfco’s figures
established by company documents. The only actual evidence of damages is Polen’s
testimony which, however, depends on the prepared summaries.
{¶26} These 13 clients purportedly accounted for $211,036.10 in sales for the
period from February 1 to June 1 in 2016. It must be emphasized that this Summary is
partial and incomplete. Polen testified that it represented his “strictly commercial” clients
despite individuals’ names such as “Henry Wahner” and “McDougal, Shel” appearing on
the list. Nor is the Summary comprehensive even with respect to commercial clients.
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Polen testified there were others, such as Suffield Township, “which I don’t see in here.”
{¶27} The 2017 figures are based on the sales generated by 28 clients in another
Customer Summary prepared for trial. According to Polen, these were his “residential”
plowing accounts. Six of the clients from the 2016 Summary reappear in the 2017
Summary. Among the remaining 22 clients, there are commercial clients such as the
“Lords House of Prayer” and “Louis & Partners Design” interspersed among the names
of individuals. Like the 2016 Summary, the 2017 Summary is incomplete. When asked
if there was other work or customers not reflected in the 2017 Summary, Polen
responded: “Oh, jeez. I would have to have, like, the computer in front of me to look at
it.”
{¶28} It should be obvious that no reasonably certain figure for the change in
Turfco’s sales from 2016 to 2017 can be obtained by comparing sales for two random
samplings of clients. Even presuming the accuracy of the figures contained in the
Summaries, what evidentiary value is there in comparing a list of primarily commercial
clients with a list of primarily residential clients? Such a methodology is nonsensical and
cannot produce any reliable measure of Turfco’s damages.
{¶29} Assuming, arguendo, that an accurate figure for the decline in Turfco’s sales
from 2016 to 2017 existed, there is no evidence to substantiate the claim that the decline
was proximately caused by the 2017 lockout. Polen’s testimony cannot support such a
claim. He testified vaguely about “this is small town stuff” and “lost credibility.” But only
in the cases of Ramco and HM Miller did he expressly state: “I lost them because I couldn’t
fulfill their expectations for the month of February.”
{¶30} The Summaries themselves attest that the difference in sales cannot be
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solely attributed to business lost as a result of the lockout. Among the clients that appear
in both the 2016 and 2017 Summaries, it should be noted that the income generated by
Henry Wahner increased from $740 in 2016 to $1,000 in 2017; Hudson Presbyterian’s
sales decreased from $4,183.35 in 2016 to $3,346.68 in 2017; whereas sales for
Northeast Eye Surgeons increased from $7,199.32 in 2016 to $8,049.32 in 2017. These
are significant changes in sales that, based on the evidence in the record, had nothing to
do with the 2017 lockout.
{¶31} There are still further deficiencies in the damage calculation based on a
comparison of the 2016 and 2017 Summaries. Turfco’s landscaping business
encompassed a variety of services not all of which would have been affected by a lockout
occurring in February and March 2017. Yet we have no testimony as to the nature of the
services utilized by the various clients identified in the Summaries.
{¶32} Even in the case of Ramco, representing the single largest client
purportedly lost as a result of the lockout, the evidence is equivocal rather than reasonably
certain. Polen testified expressly that Turfco lost Ramco as a client as a result of not
being able to fulfill its expectations “for the month of February.” According to the sales
Summary for February 1 through March 15, 2016, however, Ramco did not generate any
sales during this period. In other words, Polen claims that Ramco required snow plowing
services during the month of February, but the February sales report indicates that the
Ramco account generated “0.00” in sales. After March 15, when plowing services would
rarely be needed, Ramco generated the $144,507 in sales – representing well over half
the purported commercial sales for 2016. If, as Polen testified, Turfco lost Ramco
because it could not perform plowing services during the 2017 lockout, one would expect
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Ramco to generate sales during the winter of 2016. But Turfco’s own evidence does not
indicate any sales generated by Ramco until after March 15 of that year.
{¶33} With respect to lost profits, it has been held: “More is required of the plaintiff
than merely his assertion (either directly or through an expert witness) that he would have
made a particular amount in profits. Unless the figure is substantiated by calculations
based on facts available or in evidence, the courts will properly reject it as speculative or
uncertain.” (Citation omitted.) Kinetico, Inc. v. Independent Ohio Nail Co., 19 Ohio
App.3d 26, 30, 482 N.E.2d 1345 (8th Dist.1984); Rhodes v. Rhodes Industries, Inc., 71
Ohio App.3d 797, 809, 595 N.E.2d 441 (8th Dist.1991) (“[t]here must be more than a
conclusory statement as to the amount of lost profits”); accord Matco Tools Corp. v.
Urquhart, 435 F.Supp.3d 802, 813 (N.D.Ohio 2020).
{¶34} That Turfco suffered actual damages as a result of the lockout is entirely
probable. The award of damages in the present case, however, is speculative and
uncertain. The figures contained in the sales Summaries are not based on facts in
evidence. The procedure of comparing sales figures based on different client samplings
is fundamentally flawed. The figures contained in the Summaries are inconsistent and
even contradictory to Polen’s testimony. Accordingly, Turfco has failed to demonstrate
damages with reasonable certainty, and I would reverse the judgment of the trial court.
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