[Cite as Zappola v. Rock Capital Sound Corp., 2014-Ohio-2261.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

                              JOURNAL ENTRY AND OPINION
                                      No. 100055


                                     JOHN ZAPPOLA
                                                          PLAINTIFF-APPELLEE

                                                    vs.

               ROCK CAPITAL SOUND CORP., ET AL.

                              DEFENDANTS/COUNTERCLAIM

                                  PLAINTIFFS-APPELLANTS

                                                    vs.


            HUGHIE’S AUDIO VISUAL SERVICE, INC.
                                                          COUNTERCLAIM DEFENDANT-
                                                           APPELLEE

                                          JUDGMENT:
                                           AFFIRMED

                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-09-704138

            BEFORE: Blackmon, J., Keough, P.J., and Kilbane, J.
            RELEASED AND JOURNALIZED:             May 29, 2014
ATTORNEYS FOR APPELLANTS

David A. Campbell
Gregory C. Scheiderer
Vorys, Sater, Seymour and Pease, L.L.P.
2100 One Cleveland Center
1375 East Ninth Street
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEES

James M. Johnson
James M. Johnson Co., L.P.A.
110 Hoyt Block Building
700 West St. Clair Avenue
Cleveland, Ohio 44113

Richard L. Dempsey
Justin D. Gould
Richard L. Dempsey Co., L.P.A.
1350 Euclid Avenue, Suite 1550
Cleveland, Ohio 44115
PATRICIA ANN BLACKMON, J.:

      {¶1} Appellant, Rock Capital Sound Corporation (“Rock Capital”), appeals the

jury verdict in favor of plaintiff-appellee John Zappola (“Zappola”) on his claim for

breach of contract, and the jury verdict in favor of Zappola on Rock Capital’s

counterclaim, as well as the trial court’s decision granting third-party defendant Hughie’s

Audio Visual Service, Inc.’s (“Hughie’s”) motion for directed verdict on Rock Capital’s

counterclaim and third-party complaint.    Rock Capital assigns the following errors for

our review:

      I. The trial court erred in granting counterclaim defendant Hughie’s Audio
      Visual Service, Inc.’s (“HAVS”) motion in limine to exclude
      defendant/counterclaim plaintiff Rock Capital Sound Corporation’s
      (“RCSC”) evidence of damages.

      II. The trial court erred in granting HAVS’ renewed motion for directed
      verdict and in dismissing HAVS from the case.

      III. The trial court erred in entering the verdict in favor of plaintiff John
      Zappola (“Zappola”) and against RCSC for breach of contract when
      interrogatories were inconsistent with the verdict.

      IV. The jury’s award of $40,000 in damages on Zappola’s breach of
      contract claim is not supported by competent and credible evidence.

      V. The trial court erred in denying RCSC’s motion for new trial regarding
      the directed verdict in favor of third-party defendant HAVS against RCSC’s
      counterclaim.

      VI. The trial court erred in denying RCSC’s motion for judgment
      notwithstanding the verdict and, in the alternative, motion for new trial
      regarding the verdict in favor of Zappola’s breach of contract claim.
       {¶2} Having reviewed the record and pertinent law, we affirm the jury verdicts

and the trial court’s decision. The apposite facts follow.

       {¶3} On August 21, 2009, after 17 years of service as an account executive,

Zappola resigned from Rock Capital, an audio visual service provider. Upon resigning

from Rock Capital, Zappola commenced employment with Hughie’s, another audio visual

service provider.

       {¶4} On September 16, 2009, Zappola filed a suit against Rock Capital for

unpaid commissions from contracts he had procured for the company. Rock Capital

counterclaimed alleging that Zappola breached his contract by failing to give the requisite

two-week notice before resigning, that Zappola misappropriated trade secrets, and that he

tortiously interfered with contracts and business relationships.

       {¶5} Rock Capital also filed a third-party complaint against Hughie’s, under the

theory of respondeat superior, alleging that the company was liable for Zappola’s actions

while employed with Hughie’s Audio Visual. Specifically, Rock Capital alleged that

Hughie’s was also liable for misappropriation of trade secret and tortious interference of

contract and business relationships.

       {¶6} On April 14, 2010, Zappola amended his complaint to assert an ERISA

claim against Rock Capital. Specifically, Zappola alleged that since leaving the employ

of Rock Capital, he has been denied access to the funds in his 401(K) plan, in violation of

state and federal laws. Zappola also alleged that Rock Capital may have converted the
funds in his 401(K) to its own use. Rock Capital removed the case to federal court, the

claims were disposed of, and the case was later remanded to the state court.

      {¶7} Upon remand from the federal court, the trial court gave the parties 120

days to complete discovery.     Both Zappola and Hughie’s issued interrogatories and

requests for production of documents to Rock Capital, that largely went unanswered.

Specifically, Rock Capital did not provide any responses regarding damages suffered as a

result of the alleged conduct of Zappola and Hughie’s.

      {¶8} As a result, in May and June 2012, both Zappola and Hughie’s filed

respective motions to compel Rock Capital to fully respond to the interrogatories and

requests for production of documents, or in the alternative, to dismiss the counterclaim

and third-party complaint. Thereafter, Rock Capital provided a partial response to the

interrogatories and provided nothing to support its claimed damages.

      {¶9} Subsequently, on June 8, 2012, Zappola renewed his motion to compel

Rock Capital to respond to discovery and to dismiss the counterclaim and third-party

complaint, or in the alternative requested that the trial court grant the motion in limine.

On that same date, Hughie’s filed a supplemental motion to compel Rock Capital to

provide meaningful answers to interrogatory numbers 4, 5, 6, 8, and 11 through 29, and

requests for production of documents 1, 2, 3, 6 through 11,13, and 14.

      {¶10} On December 12, 2012, Zappola filed a renewed motion to dismiss Rock

Capital’s counterclaim on the basis that despite successive motions to compel discovery,

his discovery requests remained unanswered.        On that same date, Hughie’s joined
Zappola’s motion on the basis that its own discovery requests were still largely

unanswered. Following a pretrial conducted also on December 12, 2012, the trial court

held the motions in abeyance and advised the parties to work towards resolving the

discovery dispute.

       {¶11} On March 6, 2013, both Zappola and Hughie’s renewed their respective

motions to dismiss the counterclaim and the third-party complaint, or in the alternative,

motion in limine.    In their motions, both parties cited Rock Capital’s repeated failure to

cooperate in discovery. On March 11, 2013, both Zappola and Hughie’s moved the court

for a motion in limine for an order prohibiting Rock Capital from introducing any

evidence of financial harm or damage to the alleged claims.

       {¶12} On April 1, 2013, on the eve of trial, the trial court denied Zappola and

Hughie’s respective motions to dismiss Rock Capital’s counterclaim and third-party

complaint. The trial court issued a journal entry indicating that the arguments that were

set forth in the respective motions may be presented as a basis to bar evidence at trial.

Following the entry, due to a previously scheduled trial on its docket, the trial court

transferred the case to a visiting judge.

       {¶13} On the morning of the trial, the parties met in the chambers of the visiting

judge and put forth their respective arguments on whether Rock Capital’s evidence of

damages should be barred because of its failure to respond to discovery. Hughie’s

renewed its motion in limine that Rock Capital be barred from introducing any and all
evidence of financial damages.      The visiting judge reserved its ruling and the trial

commenced.

       {¶14} After Rock Capital’s opening statement, Hughie’s moved for directed

verdict on all claims because of Rock Capital’s failure to properly allege damages. The

visiting judge overruled Hughie’s motion, and extensive discussions took place regarding

Rock Capital’s failure to produce documents evincing damages.

       {¶15} During the discussion, Rock Capital indicated that it had given

approximately 2,000 pages of commission documents to Zappola. Hughie’s indicated

that it had never received those documents that Rock Capital was now attempting to use

in its case against them and objected to their admissibility. After hearing from the parties,

the visiting judge granted Hughie’s motion in limine to exclude the documents.

       {¶16} Following the ruling, Hughie’s moved for a directed verdict on Rock

Capital’s third-party complaint on the grounds that the case could not be proven without

the element of financial damages.       The visiting judge granted Hughie’s motion for

directed verdict and Rock Capital’s case against Zappola proceeded on all claims.

       {¶17} The jury ruled in favor of Zappola on all counts of Rock Capital’s

counterclaim. The jury found that Rock Capital breached the contract with Zappola and

awarded him $40,000. In response to interrogatories, the jury also found that Rock

Capital was not damaged by Zappola’s failure to give a two-week notice upon resigning.

In addition, the visiting judge awarded Zappola $6,400 in prejudgment interest.
       {¶18} Thereafter, Rock Capital filed post-trial motions based on the directed

verdict in favor of Hughie’s, and for new trial and judgment notwithstanding the verdict

rendered in favor of Zappola. The visiting judge denied all of Rock Capital’s post-trial

motions. Rock Capital now appeals.

                                Final Appealable Order

       {¶19} Before we address the merits of the instant matter, we note that at the time

of the appeal, there was a pending motion for attorney fees for frivolous conduct,

Zappola’s claim for punitive damages that had been bifurcated for trial and was arguably

still pending, as well as a pending motion for prejudgment interest. In light of the above,

we ordered the parties to brief the question whether the decision was final and appealable.

       {¶20} Appellate jurisdiction is limited to the review of final orders. R.C. 2505.03.

Final orders include those orders that affect a substantial right and in effect determine an

action and prevent a judgment. R.C. 2505.02(B)(1). A “substantial right” for purposes

of R.C. 2505.02 is “a right that the United States Constitution, the Ohio Constitution, a

statute, the common law, or a rule of procedure entitles a person to enforce or protect.”

R.C. 2505.02(A)(1).

       {¶21} Regarding the motion for attorney fees for frivolous conduct, we note that

sanctions for frivolous conduct are generally considered to be collateral to the underlying

action. See, e.g., Linetsky v. Dejohon, 8th Dist. Cuyahoga No. 98370, 2012-Ohio-6140.

Thus, a motion for sanctions does not impede the finality of the judgment. See also

Crenshaw v. Integrity Realty Group, L.L.C., 8th Dist. Cuyahoga No. 100031,
2013-Ohio-5593, ¶ 3 (the trial court stayed consideration of R.C. 2323.51 motion pending

our decision on the merits).

          {¶22} Regarding Zappola’s claim for punitive damages, Rock Capital argues that

the claim is moot, because the basis for the jury’s verdict in Zappola’s favor was that

Rock Capital breached the contract. We agree.

          {¶23} Punitive damages are generally not recoverable in a breach of contract

action.      Sivit v. Village Green of Beachwood, 8th Dist. Cuyahoga No. 98401,

2013-Ohio-103, citing Mabry-Wright v. Zlotnik, 165 Ohio App.3d 1, 2005-Ohio- 5619,

844 N.E.2d 858 (3d Dist.), citing Digital & Analog Design Corp. v. N. Supply Co., 44

Ohio St.3d 36, 540 N.E.2d 1358 (1989). As such, this claim does not deprive us of

jurisdiction.

          {¶24} Finally, regarding the motion for prejudgment interest, the record reveals

that the trial court granted the motion on May 29, 2013, prior to the filing of the instant

appeal. However, Zappola was ordered to submit a calculation of the amount of interest

due, but the amount was not determined before the appeal was filed.            The parties

subsequently agreed upon the amount.

          {¶25} In general, a pending motion for prejudgment interest renders a judgment

non-final. Miller v. First Internatl. Fidelity & Trust Bldg., Ltd., 113 Ohio St.3d 474,

2007-Ohio-2457, 866 N.E.2d 1059.          However, because the trial court     granted the

motion before this appeal was filed, all that remained was the determination of the

amount.
       {¶26} The calculation of the amount is a ministerial task that does not preclude

finality of the judgment. Morgan Stanley Credit Corp. v. Fillinger, 8th Dist. Cuyahoga

No. 98197, 2012-Ohio-4295, citing Third Wing Inc. v. Columbia Cas. Co., 8th Dist.

Cuyahoga No. 96450, 2011-Ohio-4827. As such, the judgment is final, and we proceed

to address the merits of the instant appeal.

                                     Motion in Limine

       {¶27} In the first assigned error, Rock Capital argues the trial court erred when it

granted Hughie’s motion in limine to exclude Rock Capital’s evidence of damages.

       {¶28} A motion in limine is essentially a request to limit or exclude evidence or

testimony at trial. Sokolovic v. Hamilton, 195 Ohio App.3d 406, 2011-Ohio-4638, 960

N.E.2d 510 (8th Dist.). Therefore, the standard of review on appeal of the grant of a

motion in limine is whether the trial court abused its discretion. Id., citing Thakur v.

Health Care & Retirement Corp. of Am., 6th Dist. Lucas No. L-08-1377,

2009-Ohio-2765. See also Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440,

2013-Ohio-1507, 989 N.E.2d 35, ¶ 22, citing Illinois Controls, Inc. v. Langham, 70 Ohio

St.3d 512, 526, 1994-Ohio-99, 639 N.E.2d 771.

       {¶29} Abuse of discretion means more than an error of law or of judgment and

implies that the court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Consequently,

absent such evidence, this court must affirm the decision of the trial court.
      {¶30} In the instant case, specifically Rock Capital argues that evidence of

damages against Hughie’s should have been admitted at trial. However, the record

reveals that evidence of damages against Hughie’s were never provided               during

discovery that spanned almost three years, despite multiple motions to compel being filed

by both Hughie’s and Zappola.

      {¶31} As previously noted, on March 6, 2013, both Zappola and Hughie’s renewed

their respective motions to dismiss Rock Capital’s counterclaim and the third-party

complaint, or in the alternative motion in limine.     In their respective motions, both

parties cited Rock Capital’s repeated failure to cooperate in discovery and moved the

court for a motion in limine for an order prohibiting Rock Capital from introducing any

evidence of financial harm or damage to the alleged claims.

      {¶32} Also, as previously noted, the trial court’s April 1, 2013 journal entry, while

denying the respective motions of Hughie’s and Zappola, stated that the arguments set

forth by Zappola and Hughie’s may be presented as a basis to bar evidence at trial. As

such, Rock Capital was on notice that the matter would be revisited at trial. In addition,

because the matter was transferred to a visiting judge, Rock Capital was on notice that

the visiting judge had authority, not only to revisit the matter, but to also rule on the

matter.

      {¶33} Thus, when Rock Capital sought to introduce the documents against

Hughie’s, after extended discussions, the trial court granted Hughie’s motion in limine to

exclude the documents, because it determined that Rock Capital had provided no
discovery to Hughie’s on that matter. Tr. 232-233. The trial court also granted Hughie’s

a continuing objection to any and all questions that Rock Capital should attempt to ask

witnesses regarding damages against Hughie’s.

       {¶34} Pursuant to Civ.R. 37(B)(2)(b), a court may preclude a party from

introducing designated matters in evidence if that party fails to obey an order to provide

or permit discovery. Homme v. Homme, 12th Dist. Butler No. CA2010-04-093,

2010-Ohio-6080, citing Bailey v. Bailey, 12th Dist. Clermont No. CA2004-02-017,

2004-Ohio-6930.     After a thorough review of the record, we find that the trial court did

not abuse its discretion in excluding the documents.

       {¶35} Nonetheless, Rock Capital argues that the visiting judge did not have

discretion to rule on or disturb pretrial rulings. However, we have previously held that

visiting judges may, in their discretion, defer to the rulings of the original judge, but are

also not prohibited from exercising discretion to revisit prior rulings. O’Connor v.

Fairview Hosp., 8th Dist. Cuyahoga No. 98721, 2013-Ohio-1794, citing Schultz v. Duffy,

8th Dist. Cuyahoga No. 93215, 2010-Ohio-1750.

       {¶36} Moreover, even if the visiting judge was not authorized to rule on the

motion in limine and subsequently erred by excluding the documents Rock Capital claims

supported damages occasioned by Hughie’s, they were not prejudiced. Rock Capital’s

claims against Hughie’s were all brought pursuant to the doctrine of respondeat superior

because Zappola was employed by Hughie’s when he allegedly engaged in tortious

interference of contract and misappropriated trade secrets.
       {¶37} However, in response to interrogatories, the jury found that Zappola did not

interfere with Rock Capital’s contracts or business relationships and did not

misappropriate trade secrets. Thus, the outcome of the trial would have been the same

had the documents been admitted against Hughie’s.

       {¶38} Thus, based on the facts of the instant case, the trial court properly granted

Hughie’s motion in limine to exclude all documents relating to damages.      Accordingly,

we overrule the first assigned error.

                               Motion for Directed Verdict

       {¶39} In the second assigned error, Rock Capital argues the trial court erred when

it granted Hughie’s motion for directed verdict and dismissed them from the case.

       {¶40} We employ a de novo standard of review in evaluating the grant or denial of

a motion for directed verdict. United States Bank v. Amir, 8th Dist. Cuyahoga No. 97438,

2012-Ohio-2772, citing Groob v. KeyBank, 108 Ohio St.3d 348, 2006-Ohio-1189, 843

N.E.2d 1170, ¶ 14. A motion for directed verdict is properly granted if “the trial court,

after construing the evidence most strongly in favor of the party against whom the motion

is directed, finds that upon any determinative issue reasonable minds could come to but

one conclusion upon the evidence submitted and that conclusion is adverse to such party.”

Civ.R. 50(A)(4).

       {¶41} In the instant case, Rock Capital brought two claims, pursuant to respondeat

superior, against Hughie’s; one for tortious interference of contract and business

relationships and the other for misappropriation of trade secrets.
       {¶42} In regards to the first claim, the elements essential to recovery for a tortious

interference with a business relationship are: (1) a business relationship; (2) the

wrongdoer’s knowledge thereof; (3) an intentional interference causing a breach or

termination of the relationship; and (4) damages resulting therefrom. Presser v. RCP

Mayfield, L.L.C., 8th Dist. Cuyahoga No. 92073, 2009-Ohio-3380                The torts of

interference with business relationships and contract rights generally occur when a

person, without a privilege to do so, induces or otherwise purposely causes a third person

not to enter into or continue a business relation with another, or not to perform a contract

with another. Id.

       {¶43} In regard to the second claim, effective July 20, 1994, the General Assembly

enacted the Ohio Uniform Trade Secrets Act, R.C. 1333.61 through 1333.69, which

provides for civil remedies, i.e., injunctive relief and damages, for the misappropriation of

trade secrets. Berardi’s Fresh Roast, Inc. v. PMD Enters., Inc., 8th Dist. Cuyahoga No.

93920, 2010-Ohio-5124, citing       State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d

535, 538-539, 2000-Ohio-475, 721 N.E.2d 1044, citing State ex rel. The Plain Dealer v.

Ohio Dept. of Ins., 80 Ohio St.3d 513, 523, 1997-Ohio-75, 687 N.E.2d 661.

       {¶44} Damages resulting from the misappropriation of trade secrets are generally

calculated in the following ways:

       Damages may include both the actual loss caused by misappropriation and

       the unjust enrichment caused by misappropriation that is not taken into

       account in computing actual loss. In lieu of damages measured by any
       other methods, the damages caused by misappropriation may be measured

       by imposition of liability for a reasonable royalty that is equitable under the

       circumstances considering the loss to the complainant, the benefit to the

       misappropriator, or both, for a misappropriator’s unauthorized disclosure or

       use of a trade secret.

R.C. 1333.63(A).

       {¶45} A review of the essential elements of Rock Capital’s two causes of actions

against Hughie’s reveals that it cannot establish at least one pivotal element of the claims.

 Specifically, Rock Capital cannot establish that it was financially damaged by any

alleged actions on the part of Hughie’s.   As discussed in the first assigned error, the trial

court granted Hughie’s motion in limine to bar Rock Capital from introducing any and all

documents purporting to be evidence of damages against Hughie’s.

       {¶46} As a result, Rock Capital was unable to satisfy an essential element of both

causes of action. Consequently, both claims against Hughie’s fail. As such, the trial

court properly granted Hughie’s motion for directed verdict. Accordingly, we overrule

the second assigned error.

                                   Breach of Contract

       {¶47} In the third and fourth assigned errors, Rock Capital argues the trial court

erred when it entered judgment in favor of Zappola on the breach of contract claim and

the jury erred when it awarded Zappola $40,000 based on the verdict.
       {¶48} Generally, the elements for a breach of contract are that a plaintiff must

demonstrate by a preponderance of the evidence that (1) a contract existed, (2) the

plaintiff fulfilled his obligations, (3) the defendant failed to fulfill his obligations, and (4)

damages resulted from this failure. Anzalaco v. Graber, 2012-Ohio-2057, 970 N.E.2d

1143 (8th Dist.), citing Lawrence v. Lorain Cty. Community College, 127 Ohio App.3d

546, 549, 713 N.E.2d 478 (9th Dist.1998).

       {¶49} At trial, Zappola testified that he worked for Rock Capital for 17 years,

wearing many hats, but primarily as an account executive procuring business to provide

stage lighting at events.      Zappola testified that his income was based purely on

commission with a draw that operated like an advance against the commission.

       {¶50} Zappola testified that under the employment agreement signed at the

commencement of his employment, he was paid 30% on the net profits Rock Capital

earned on the events he was responsible for contracting. Zappola testified that in the

latter part of 2007, Rock Capital changed the commission structure, wherein Zappola

would make 10% on the events that Rock Capital earned at least 40%.           Zappola testified

that under the revised agreement, he made considerably less money.

       {¶51} Zappola testified that along with the new commission structure, which by

itself reduced his income, Rock Capital would assign incorrect invoices to inflate the

expenses related to various events he had booked.         As a result of these invoices being

incorrectly assigned, it made it appear that Rock Capital earned less than 40% on the

event, that in turn, caused Zappola to be ineligible for a commission.
       {¶52} At trial, while reviewing Rock Capital’s 2008 and 2009 Commission

Structure Chart in conjunction with corresponding events’ manifest, Zappola illustrated

specific instances where incorrect expense invoices were attributed to events he had

procured. Zappola testified that had the incorrect invoices not been attributed to those

events, he would have been eligible for a commission, because Rock Capital indeed

earned at least 40% on the events. Zappola testified, that by his calculations, Rock

Capital owed him approximately $42,600 in commissions for events he procured.

       {¶53} Zappola testified that in the early part of 2009, Rock Capital suspended

direct deposit of commissions and began issuing paper checks. Zappola testified that in

several instances after receiving his paycheck, he was advised not to cash it for a few

days. Zappola testified that he complied, encouraged his coworkers to be patient, but

because he was 52 years old, with two children, he was very concerned about his future.

       {¶54} Zappola testified that in August 2009, he decided to go to work for

Hughie’s. Zappola admitted that he did not give the two weeks notice that he realized

later was part of his employment agreement. Zappola testified that upon notifying Rock

Capital of his intentions, Gary Jurist, the company’s owner, asked him to reconsider and

offered to apply for a credit card loan, so that he could pay Zappola $50,000.

       {¶55} In response, Zappola indicated that he would think about the offer over the

weekend.    Zappola testified that the following week, he began work with Hughie’s and

letters were sent out to customers in Hughie’s database announcing that he was now with

the company.
       {¶56} Zappola addressed Rock Capital’s allegations that he pursued its clients and

utilized trade secrets that he memorized when he left for Hughie’s.       Zappola testified

that there are two ways that events are procured; primarily through bidding on the events

or by quoting. Zappola explained that each year, a company had to re-bid or re-quote the

event that they operated the year before. Zappola explained that some years, a company

might contract with Rock Capital and then next year contract with Hughie’s, while some

years, a company might hire both to do the event.

       {¶57} Zappola testified that information about pricing was widely known

throughout the industry and to the public at large. Zappola testified that there was

nothing secret about Rock Capital’s or Hughie’s customer or pricing information. Three

former employees of Rock Capital corroborated Zappola’s testimony about the lack of a

trade secret regarding customer lists and pricing.

       {¶58} Rock Capital’s owner, Gary Jurist, as well as its chief financial officer, Gary

Steeberger, testified that their calculations of Zappola’s commissions differed

significantly.   According to Jurist and Steeberger, in 2008, Rock Capital paid Zappola

$21,896.85 in excess of his draw and in 2009, Zappola fell short of his draw by

$31,244.66. By their calculations, after considering commissions that were carried over

from 2008 to 2009, they contend that Rock Capital overpaid Zappola by approximately

$3,070.

       {¶59} Here, we conclude that Zappola presented credible evidence to prevail on

his claim of breach of contract. There is no dispute that a contract existed. There is also
no dispute that Zappola, during the relevant time period, went out and procured events

that Rock Capital subsequently provided the necessary services. In addition, although

Rock Capital testified that their calculations differ significantly from Zappola’s, after

reviewing the aforementioned commission statements along with the record of the

corresponding events that Zappola used to illustrate the discrepancy, we conclude that

Zappola established that Rock Capital failed to pay the correct amount of commissions.

       {¶60} A party claiming breach of contract has the duty to prove its damages by a

preponderance of the evidence. Hawkins v. Green, 8th Dist. Cuyahoga No. 96205,

2011-Ohio-5175, ¶ 11. This, Zappola has done. Once the plaintiff has made its case,

the trial court has discretion to award damages, and this court will not reverse its

decision absent an abuse of discretion. Roberts v. United States Fid. & Guar. Co., 75

Ohio St.3d 630, 634, 1996-Ohio-101, 665 N.E.2d 664. Nonetheless, Rock Capital

argues the Zappola breached the contract by not giving two weeks notice before

resigning, therefore he cannot recover. However, as noted previously, the jury found that

Zappola’s lack of a two week notice was inconsequential and immaterial.

       {¶61} We conclude Zappola performed the core duties of the employment

agreement, that is procuring profitable business for Rock Capital. In turn, Rock Capital

was duty bound to pay Zappola the correct commission. This they failed to do. As

such, the jury verdict and attendant award of $40,000 was proper. Accordingly, we

overrule the third and fourth assigned errors.

           Motion for Judgment Notwithstanding the Verdict or New Trial
       {¶62} In the fifth and sixth assigned errors, Rock Capital argues the trial court

erred when it denied its motions for judgment notwithstanding the verdict or in the

alternative a new trial.

       {¶63} We employ a de novo standard of review in evaluating a trial court’s ruling

on a motion for directed verdict or judgment notwithstanding the verdict. Fisher v. Beazer

E., Inc., 8th Dist. Cuyahoga No. 99662, 2013-Ohio-5251, citing Whitaker v. Kear, 123

Ohio App.3d 413, 422, 704 N.E.2d 317 (4th Dist.1997); Kanjuka v. MetroHealth Med.

Ctr., 151 Ohio App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920 (8th Dist.).

       {¶64} In Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344

N.E.2d 334 (1976), the Ohio Supreme Court stated:

       The test to be applied by a trial court in ruling on a motion for judgment

       notwithstanding the verdict is the same test to be applied on a motion for a

       directed verdict. The evidence adduced at trial and the facts established by

       admissions in the pleadings and in the record must be construed most

       strongly in favor of the party against whom the motion is made, and, where

       there is substantial evidence to support his side of the case, upon which

       reasonable minds may reach different conclusions, the motion must be

       denied.    Neither the weight of the evidence nor the credibility of the

       witnesses is for the court’s determination in ruling upon either of the above

       motions.
McNees v. Cincinnati St. Ry. Co., 152 Ohio St. 269, 89 N.E.2d 138 (1949); Ayers v.

Woodard, 166 Ohio St. 138, 140 N.E.2d 401 (1957); Civ.R. 50(A) and (B).

       {¶65} We review a trial court’s judgment on a Civ.R. 59 motion for a new trial

under the abuse of discretion standard. Rybak v. Main Sail, LLC, 8th Dist. Cuyahoga No.

96899, 2012-Ohio-2298, citing McWreath v. Ross, 179 Ohio App.3d 227,

2008-Ohio-5855, 901 N.E.2d 289 (11th Dist.).

       {¶66} Civ.R. 59(A)(6) provides that a trial court may order a new trial if it is

apparent that the verdict is not sustained by the manifest weight of the evidence.

       {¶67} In determining whether a new trial is warranted, the trial court

       “must weigh the evidence and pass upon the credibility of the witnesses, not
       in the substantially unlimited sense that such weight and credibility are
       passed on originally by the jury but in the more restricted sense of whether
       it appears to the trial court that manifest injustice has been done and that the
       verdict is against the manifest weight of the evidence.”

Id., citing Rohde v. Farmer, 23 Ohio St.2d 82, 262 N.E.2d 685 (1970), paragraph

three of the syllabus.

       {¶68} In the case, as against Hughie’s, the stated grounds for Rock Capital’s

motion for judgment notwithstanding the verdict or in the alternative a new trial is the

allegation that evidence of damage was admitted against Hughie’s without objections.

However, as previously noted, the visiting judge granted a continuing objection to any

and all questions regarding damages against Hughie’s.

       {¶69} Rock Capital also alleged that the trial court misapplied the doctrine of

respondeat superior. However, as previously discussed, in response to interrogatories,
the jury found that Zappola did not interfere with Rock Capital’s contracts or business

relationships and did not misappropriate trade secrets. Thus, Rock Capital’s failure to

prevail against Zappola, whose alleged actions is the predicate or grounds for its claims

against Hughie’s under the doctrine of respondeat superior, renders their present assertion

without merit.

          {¶70} As against Zappola, the basis for Rock Capital’s motion is that the verdict is

inconsistent because Zappola breached the contract by failing to give a two-week notice

before resigning.       However, as previously discussed, the jury found that to be

inconsequential.

          {¶71} Consequently, in accordance with the foregoing, there is substantial

evidence from which the jurors could reasonably conclude that Rock Capital breached the

contract to pay Zappola the proper commissions.            Thus, the visiting judge properly

denied the motion for judgment notwithstanding the jury’s verdict.

          {¶72} In addition, in this matter, we find no abuse of discretion. The record reveals

that the verdict was not against the manifest weight of the evidence and did not result in a

manifest injustice.       The visiting judge acted within her discretion in denying Rock

Capital’s motion for new trial. Accordingly, we overrule the fifth and sixth assigned

errors.

          {¶73} Judgment affirmed.

          It is ordered that appellee recover from appellants costs herein taxed.

          The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR
