[Cite as Shaw Steel, Inc. v. Ronfeldt Mfg., L.L.C., 2016-Ohio-1117.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 102665



                                           SHAW STEEL, INC.

                                                            PLAINTIFF-APPELLANT

                                                      vs.

                              RONFELDT MANUFACTURING, L.L.C.

                                                            DEFENDANT-APPELLEE




                                               JUDGMENT:
                                                AFFIRMED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-13-802306

        BEFORE: Laster Mays, J., Jones, A.J., and Celebrezze, P.J.

        RELEASED AND JOURNALIZED: March 17, 2016
ATTORNEYS FOR APPELLANT

Donald N. Jaffe
Shawn W. Maestle
Weston Hurd, L.L.P.
Tower at Erieview
1301 East 9th Street, Suite 1900
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Peter A. Dewhirst
Larry E. Yunker
Lyden, Chappell & Dewhirst, Ltd.
5565 Airport Highway, Suite 101
Toledo, Ohio 43615

Jonathan M. Hanna
Lyden, Chappell & Dewhirst, Ltd.
5470 Main Street, Suite 300
Sylvania, Ohio 43560
ANITA LASTER MAYS, J.:

       {¶1} Plaintiff-appellant Shaw Steel, Inc. (“Shaw”) challenges the trial court’s judgment

awarding damages to Shaw in the sum of $68,500.37, in its complaint on account for unpaid

invoices against defendant-appellee Ronfeldt Manufacturing, L.L.C. (“Ronfeldt”), and awarding

$83,695.24 to Ronfeldt on its counterclaims for breach of contract and breach of warranties.

The net effect of the damages award is a final judgment of $15,194.87 against Shaw. After a

thorough review of the record, we affirm the trial court’s decision.

I.       BACKGROUND AND FACTS

       {¶2}     Shaw is a metal supplier who has provided speciality steel products to Ronfeldt,

a steel parts fabricator, for 15 years. Ronfeldt issued purchase orders 15523 dated April 17,

2012, 15677 dated June 13, 2012, and 15769 dated July 16, 2012 (“Orders”) to Shaw. The

Orders contained quality specifications, grade specifications, chemical properties, and

mechanical properties required for the steel.

       {¶3} The steel was purchased to manufacture high pressure filter assemblies for Ronfeldt

customers Pall, Inc. (“Pall”) and Donaldson, Inc. (“Donaldson”). Shaw provided certifications

with the shipments that the steel complied with specifications.

       {¶4} On October 11, 2012, Donaldson expressed concerns to Ronfeldt about whether

the steel met the required specifications. On October 12, 2012, Ronfeldt asked that Shaw

provide verification of compliance with the yield and strength test results. While awaiting a

response from Shaw, Ronfeldt had a sample tested by Veltec Laboratories (“Veltec”). Ronfeldt

received the results on October 17, 2012 that confirmed the steel did not meet specifications.

Ronfeldt immediately notified Shaw and forwarded a sample of the steel.
        {¶5} Shaw had the sample tested by Steel Testing Laboratory and the test results were

dated October 24, 2012. On November 1, 2012, Shaw informed Ronfeldt that its laboratory test

confirmed the noncompliance findings as evidenced by Shaw’s November 1, 2012 corrective

action report. (Def. exhibit No. 14.)

        {¶6}     Donaldson elected to accept all products manufactured with the steel.         Pall

accepted the parts that it had already incorporated into products and sold. Pall rejected and

charged back the nonconforming goods, 6,727 units, on November 20, 2012. (Def. exhibit Nos.

12n, 12r, 20.)

        {¶7} On November 15, 2012, Ronfeldt notified Shaw that it required conforming steel

to remanufacture the Pall parts, but Shaw indicated that it could not locate replacement steel

(Def. exhibit No. 25, Testimony of Troy Williams). On November 20, 2012, Ronfeldt issued its

final material rejection report. (Def. exhibit No. 16.) The cost to remanufacture the parts was

$85,500.17 ($12.71 per unit for 6,727 units), $1,343.31 for return shipping of the rejected

products, with a scrap credit of $3,148.24, resulting in a net amount of $83,695.24. There were

no lost sales as a result.

        {¶8} Shaw and Ronfeldt engaged in several unrelated transactions until February 2013 for

the sum of $68,500.37 (the “2013 Invoices” and “2013 Purchase Orders”). The invoices for the

noncompliant steel were still outstanding. On February 11, 2013, Shaw refused to fill pending

purchase orders until Ronfeldt paid back invoices.    (Def. exhibit No. 18.)

        {¶9}     On February 25, 2013, Ronfeldt filed suit for breach of contract and warranties in

the Lucas County Court of Common Pleas. On February 28, 2013, Shaw filed suit against

Ronfeldt for the unpaid 2013 Invoices in the Cuyahoga County Court of Common Pleas.

Ultimately, the parties agreed to proceed in Cuyahoga County where Ronfeldt filed a
counterclaim for damages related to the 6,727 rejected parts. A bench trial ensued. The trial

court granted Shaw’s uncontested motion for a directed verdict on the 2013 Invoices, resulting in

a judgment of $68,500.37.

       {¶10}         The trial court proceeded to entertain Ronfeldt’s counterclaim for the

remanufacturing costs, plus return shipping, less scrap, totaling $83,695.24.        Shaw denied

liability for 40 percent of the claimed damages arguing that, when Donaldson contacted Ronfeldt

regarding possible noncompliance of the steel on October 11, 2012, Ronfeldt was on notice that

the steel may not be conforming. On October 17, 2012, Shaw argued that Ronfeldt had actual

knowledge that the steel was nonconforming because it had received the Veltec lab results.

       {¶11} As a result, Shaw posited that, as of the October 10 to October 17, 2012 time

period, only 4,104 units of the 6,727 noncompliant units had been manufactured and delivered.

(Tr. 198, 298.) Therefore, Ronfeldt knowingly manufactured and delivered 2,623 defective

parts to Pall on October 26 and October 29, 2012. Ronfeldt’s acts constituted an intervening

cause to Shaw’s negligence so that Ronfeldt was not entitled to consequential damages for the

2,623 parts (at $12.71 per part, $33,338.33).

       {¶12} Ronfeldt explained at trial that the steel was placed through a 12- step process

prior to final fabrication for shipment to Ronfeldt’s customers. The process consisted of: (1)

outblank; (2) wash and wax; (3) first draw; (4) second draw; (5) anneal; (6) wax; (7) third draw;

(8) final draw; (9) edge off and trim; (10) flare; (11) lathe; and (12) wash, oil, and pack. (Def.

exhibit No. 17.)

       {¶13}       A portion of the processing was conducted by third party vendors.         Under

expedited conditions, the process took at least three weeks to complete. (Def. exhibit No. 12L; tr.

156-157.) Product batches were released by Ronfeldt upon completion to Donaldson and Pall.
Shipments to Pall took place on June 5, 28, 29; September 14, October 26, and October 29, 2012.

(Joint exhibit No. 1.)

       {¶14}    Ronfeldt rejected Shaw’s assertion that it began the three week, 12-step process

after it received notice of a possible issue in October 2012. Ronfeldt did state that it sought

confirmation from Shaw before notifying Donaldson and Pall of the noncompliance.            On

November 1, 2012, Ronfeldt contacted Shaw to inquire about the status of its testing. Shaw

confirmed that the steel did not meet specifications. Ronfeldt then notified Donaldson and Pall

of the noncompliance. As a result, Ronfeldt states it acted reasonably. Ronfeldt also offered

that there was no evidence that Ronfeldt’s damages would not have been even greater if

processing was frozen in October 2012.

       A.      Trial Court’s Initial Findings of Fact and Conclusions of Law

               1.        2013 Invoices

       {¶15} The parties submitted proposed findings of fact and conclusions of law. The trial

court issued its original findings of fact and conclusions of law on November 20, 2014. The

court awarded $68,500.37 to Shaw plus prejudgment interest at the rate of two percent, per

month from March 1, 2013, until the date of judgment and post-judgment interest at the rate of

three percent, per annum.

       {¶16} The court found that Shaw continued to accept new orders for steel until January

30, 2013.   Shaw generated corresponding 2013 Invoices totaling $34,425.27 and delivered

approximately 50% of the steel covered by the first of the 2013 Orders, an amount that is

included in the $68,500.37 balance.
       {¶17} On February 11, 2013, Shaw informed Ronfeldt that the remaining shipments had

been placed on a credit hold. A portion of the steel being retained was sold to third parties in

July and August 2013.

       {¶18} The trial court held that pursuant to R.C. 1302.09(A)(2), each purchase order and

invoice constituted a separate contract.     As a result, Shaw was not permitted to withhold

delivery under the 2013 Invoices due to Ronfeldt’s failure to pay the invoices for the rejected

Steel. The trial court also concluded that Shaw was barred from recovery by the terms and

conditions of the 2013 Orders. Those terms provided that Ronfeldt was entitled to deduction or

setoff against any claims by a seller against Ronfeldt for money due arising from the current or

any other transactions between Ronfeldt and a seller.

       {¶19}    In reaching a determination on the breach of contract, express and implied

warranties claims, the trial court was guided by a prior case involving Shaw, Shaw Steel v.

NADACO Steel, 8th Dist. Cuyahoga No. 70272, 1996 Ohio App. LEXIS 5320 (Nov. 27, 1996).

The trial court observed that, while the case involved revocation of acceptance of nonconforming

steel, the facts were analogous and provided guidance as to what is customary in the industry

regarding a customer’s inspection of steel and timeliness of notice of defect that could take up to

two years. Id. at * 11.

       {¶20} Finding that the notice of noncompliance was timely and that Shaw breached the

contracts and warranties, the court addressed damages. Guided by R.C. 1302.88, the trial court

found that Pall charged back $137,903.50 for the nonconforming goods and Ronfeldt bore return

shipping costs of $1,343.31. Ronfeldt purchased conforming steel from another manufacturer and

provided the substitute goods. Ronfeldt did not suffer lost sales, however, it was entitled to

recover its costs to remanufacture the 6,727 units, plus return shipping, less scrap, for a total of
$83,695.24. Ronfeldt was also granted post-judgment interest in the amount of three percent per

annum.

           B.       Shaw’s Civ.R. 59(A) Motion; Request for Amended Findings of Fact and
                    Conclusions of Law

           {¶21}      Shaw filed a motion under Civ.R. 59(A) on November 24, 2014. The motion

asked the trial court to “open the Court’s Judgment of November 20, 2014 as to Defendant’s

Counterclaim to amend its Findings of Fact and Conclusions of Law [“Findings”] or make new

findings and conclusions and enter a new judgment.”1 The motion is not based on any of the

enumerated grounds under Civ.R. 59(A) but cites the section of the rule regarding the court’s

authority where a bench trial was held.

           {¶22} Shaw again argued that the trial court misconstrued the evidence in calculating

Ronfeldt’s damages on the counterclaim and that Ronfeldt had a duty to discontinue use of the

nonconforming steel in October 2012 pursuant to R.C. 1302.65(C)(1).2 As a result, Ronfeldt

was not entitled to recovery for the 2,623 parts manufactured after acquiring knowledge of

noncompliance.

           {¶23}     Shaw also asserted, (1) that the scrap metal credit should be increased to

$4,815.92 due to a discrepancy in Ronfeldt’s internal documents, and (2) that evidence of a

mechanical testing failure was based on testing by Pall that was not in evidence, so the court

should not assume that the failure was Shaw’s fault because proximate cause was lacking. In its

conclusion, Shaw requested that the trial court: (1) amend Section 46 of the Findings to reflect

that 2,623 parts were manufactured, and shipped with Ronfeldt’s actual knowledge of


1
    The parties dispute the true nature of the motion and, as a result, the appropriate standard of review.

2
  That section provides that “the buyer must within a reasonable time after he discovers or should have discovered
any breach notify the seller of breach or be barred from any remedy * * *.”
nonconformity; (2) amend Section 49 to increase the scrap credit to $4,815.92, and (3) amend

Section 50 to a total damages amount awarded to Ronfeldt of $48,689.56.

         {¶24} Ronfeldt defended that, in addition to the required fabrication period, by the time

Ronfeldt learned that the steel did not conform to specifications, the steel was only useful as

scrap and could not be resold as raw steel. Ronfeldt also filed a motion to amend the court’s

findings on the grounds that the prejudgment interest award was improperly calculated by the

trial court.

         C.      Amended Findings and Denial of Civ.R. 59 Motion

         {¶25}    On February 3, 2015, the trial court denied Shaw’s Civ.R. 59 motion without

opinion. The trial court did, however, issue amended findings of fact and conclusions of law

(“Amended Findings”).

         {¶26}    Shaw’s award remained at $68,500.07 and the award to Ronfeldt remained at

$83,695.24. However, the trial court determined that the damage awards must be offset prior to

calculating prejudgment interest on the difference. The overall (i.e., net) judgment award was

for Ronfeldt in the amount of $15,194.87.

         {¶27}    Ronfeldt was not entitled to prejudgment interest because its debt was not

liquidated.    Shaw was not entitled to prejudgment interest because the claim for setoff by

Ronfeldt predated the date of the earliest invoice upon which the $68,500.37 was awarded.

Finally, Ronfeldt was entitled to post-judgment interest in the amount of three percent per

annum.

         {¶28}    Shaw appealed. This court affirms the findings of the trial court.
II.         ASSIGNMENTS OF ERROR

          {¶29}        Shaw presents two assigned errors:

          I.    The trial court’s damage calculation is legally insufficient since the court
          awarded damages for production costs incurred after Ronfeldt was fully aware of
          the steel’s nonconformity and insufficient characteristics. Therefore, the trial
          court erred in failing to grant Shaw’s Rule 59 motion for judgment
          notwithstanding the verdict.

          II.   The trial court’s judgments are against the manifest weight of the evidence
          as appellee Ronfeldt proximately caused forty percent of its claimed and awarded
          damages.

III.        LAW AND ANALYSIS

          {¶30} We combine Shaw’s assignments of error for efficiency and ease of review.

          A.      Standards of Review

                  1.       Manifest Weight

          {¶31}    A judgment in a civil case that is “supported by some competent, credible

evidence going to all the essential elements of the case will not be reversed by a reviewing court

as against the manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co., 54 Ohio

St.2d 279, 376 N.E.2d 578 (1978), syllabus. The resolution of conflicts in evidence and the

credibility of the witnesses and resolutions of conflicts in evidence are matters for the trier of

facts. “Therefore, a reviewing court should not reverse a trial court’s decision if it merely has a

difference of opinion on questions of credibility or the weight of the evidence; rather, a trial

court’s decision should be overturned only when there is no competent and credible evidence to

support that decision.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273

(1984).

          {¶32}    We further observe that there is a presumption in a bench trial that the trial court

considered only evidence that was reliable, relevant and competent in rendering its decision
unless it affirmatively appears to the contrary. Sonis v. Rasner, 2015-Ohio-3028, 39 N.E.3d

871, ¶ 70 (8th Dist.), citing State v. Pleban, 9th Dist. Lorain No. 10CA009789, 2011-Ohio-3254,

¶ 45. (“There is a presumption in a bench trial that the trial judge knows and follows the law,

and only considers matter properly before it.”).

                  2.        Civ.R. 59(A); Sufficiency of the Evidence

          {¶33} The parties disagree on the standard of review applicable to Shaw’s first assigned

error. The motion filed with the trial court was entitled a motion for a new trial pursuant to

Civ.R. 59(A) which, on appeal, is generally reviewed under an abuse of discretion standard.

          {¶34}        Shaw stated in the initial appellate brief that its Civ.R. 59 motion was for

judgment notwithstanding the verdict, which involved questions of law and is thus entitled to de

novo review. However, judgments notwithstanding the verdict are governed by Civ.R. 50 and

the rule does not apply “in cases tried to the bench where no jury verdict is rendered.”

Morgan v. Ohio State Univ. College of Dentistry, 10th Dist. Franklin No. 13AP-287,

2014-Ohio-1846, ¶ 72, citing Freeman v. Wilkinson, 65 Ohio St.3d 307, 309, 603 N.E.2d 993

(1992).

          {¶35} Shaw subsequently argued in its reply brief that it erroneously characterized the

relief it was seeking by its Civ.R. 59(A) motion in its initial brief, but maintained that it is still

entitled to de novo review because the Civ.R. 59 motion was actually a challenge to the legal

sufficiency of the evidence, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517; State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997); Black’s Law

Dictionary 1433 (6th Ed. 1990).

          {¶36} An appeal of a denial of a Civ.R. 59 motion is subject to an abuse of discretion

standard. McCall v. Mareino, 138 Ohio App.3d 794, 798, 742 N.E.2d 668 (8th Dist.2000).
“The decision lies within the sound discretion of the trial court and shall not be reversed absent a

showing that its decision was unreasonable, arbitrary, or unconscionable.” Id.; Dzina v. Dzina,

8th Dist. Cuyahoga No. 83148, 2004-Ohio-4497, ¶ 76. An abuse of discretion “implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.” (Citations omitted.) Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶37} Shaw grounded its motion on the following portion of Civ.R. 59:

        Civ.R. 59(A) states in pertinent part: “On a motion for a new trial in an action
       tried without a jury, the court may open the judgment if one has been entered, take
       additional testimony, amend findings of fact and conclusions of law or make new
       findings and conclusions, and enter a new judgment.”

Shaw’s Civ.R. 59 Motion at p. 4.

       {¶38}    The cited portion of Civ.R. 59 is not one of the enumerated grounds for a motion

under Civ.R. 59(A):

      [A] careful reading of the rule reveals that the paragraph about bench trials is not
      part of subsection (9). Immediately following subsection (9), the rule states, “In
      addition to the above mentioned grounds * * * . Civ.R. 59.” The paragraph * *
      * is not a separate reason to grant a new trial. The clear language of the rule
      shows that the paragraph was merely intended to provide the court with remedial
      options upon granting a new trial if the original trial was to the court. For these
      reasons, we cannot find that the trial court abused its discretion in overruling
      [appellant’s] motion for new trial.
(Emphasis added.) Marysville Newspapers, Inc. v. Delaware Gazette Co., 3d Dist. Union No.

14-06-34, 2007-Ohio-4365, ¶ 59.

       {¶39}    Shaw does not address in its trial court motion, or in its briefs before this court,

what portion of Civ.R. 59(A) applies. Instead, Shaw reiterates the argument challenging the trial

court’s determination as to the amount of damages. “The purpose of Civ.R. 59 is not to simply

allow a party a second opportunity to present evidence that should have been presented at the

first trial.” Riesbeck v. Indus. Paint & Strip, 7th Dist. Monroe No. 08 MO 11, 2009-Ohio-6250, ¶

16.
       {¶40} This court further notes:

       “[I]t is not the function of this court to construct a foundation for [an appellant’s]
       claims * * *.” Kremer v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (1996).
        Moreover, it is not the duty of this court to develop an argument in support of an
       assignment of error if one exists. Cardone v. Cardone, 9th Dist. Summit Nos.
       18349 and 18673, 1998 Ohio App. LEXIS 2028, at *22 (May 6, 1998).

Hutchins v. FedEx Ground Package Sys., Inc., 9th Dist. Summit No. 22852, 2006-Ohio-253, ¶ 6.

       {¶41}    In contrast to the abuse of discretion standard, in reviewing a sufficiency of the

evidence argument in a civil case, we consider:

       whether, after viewing the evidence in a light most favorable to the prevailing
       party, the judgment is supported by competent, credible evidence. C.E. Morris Co.
       v. Foley Constr. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978). Put more
       simply, the standard is “whether the verdict [is] one which could be reasonably
       reached from the evidence.” Hartford Cas. Ins. Co. v. Easley, 90 Ohio App.3d
       525, 630 N.E.2d 6 (10th Dist.1993). When engaging in this analysis, an appellate
       court must remember that the weight and credibility of the evidence are better
       determined by the trier of fact. Id.

Krzywicki v. Galletti, 2015-Ohio-312, 27 N.E.3d 991, ¶ 32 (8th Dist.). “Sufficiency challenges

the burden of production and is a test of adequacy.” Eastley, 132 Ohio St.3d 328,

2012-Ohio-2179, 972 N.E.2d 517, ¶ 11, citing Thompkins, 78 Ohio St.3d 380 at 386, 678 N.E.2d

541.

       {¶42} Our review of the record reveals that Shaw’s assignments of error fail under both

standards

               3.     Analysis

       {¶43}    The crux of Shaw’s argument is that Ronfeldt was not entitled to damages for

the 2,623 parts manufactured and shipped to Pall on October 26, and October 29, 2012 because

Ronfeldt had actual knowledge of noncompliance due to the laboratory test results issued on

October 17, 2012. As a result, Shaw argues that Ronfeldt was the proximate or intervening

cause of those damages so Shaw is not liable under R.C. 1302.88(C) and 1302.89(B).
       {¶44} In determining whether a connection between the causative negligence and

resulting damage is broken by an act of intervention, the question is whether the intervening

cause was reasonably foreseeable in light of the attendant circumstances. Cascone v. Herb Kay

Co., 6 Ohio St.3d 155, 159-160, 451 N.E.2d 815 (1983), citing Neff Lumber Co. v. First Natl.

Bank of St. Clairsville, Admr., 122 Ohio St. 302, 309, 171 N.E. 327 (1930). The test is “whether

there is a new and independent act or cause which intervenes and thereby absolves the original

negligent actor.” Cascone at 160.

       {¶45}     It is axiomatic that consequential damages must be proximately caused by

the breach, must relate and correspond to the injuries resulting from the breach and that recovery

is not designed to put the party in a better position than if the breach had not occurred. World

Metals, Inc. v. AG Gas, Inc, 142 Ohio App.3d 283, 755 N.E.2d 434 (9th Dist.2001), and Penny v.

Miami Valley Pension Corp., 399 F.3d 682, 704 (6th Cir.2005).

       {¶46}    Shaw offers that World Metals is directly on point and should be deemed

determinative here. World Metals decided to enter the stainless steel market and spent over

$900,000 modifying its plant, purchasing equipment and marketing its new business. Id. at

285-286.   World Metals purchased an AOD gas flow system from AG Gas to use in the

production process. The equipment was to meet certain specifications. Id. at 286.

       {¶47} World Metals had issues with the machine and was unable to reach a resolution

with AG Gas. It ceased production of the stainless steel materials and filed suit against AG Gas,

suing for $2,700,000 in damages. The jury awarded consequential damages of over $900,000.

AG Gas challenged the award under R.C. 1302.88 and 1302.89, arguing that all of the damages

awarded did not arise from the seller’s breach.
        {¶48} The appellate court entertained a single assignment of error as dispositive of the

appeal. Distilled, World Metals produced a laundry list of all costs it incurred in setting up and

running the new division. A number of the costs were incurred prior to breach by AG Gas.

The appellate court expressed concern about the lump sump listing of damage categories

presented to the jury that included costs such as general overhead. “The lump sum overhead

figures given by World Metals gave the jury no reasonable basis on which it could calculate the

consequential damages flowing from AGA’s breach.” Id. at 290. The court remanded the case

for a new trial on the issues of liability and damages because the lump sum overhead figures did

not provide the jury with a reasonable basis upon which it could calculate the consequential

damages because it determined it would be difficult for a jury to separate liability and damage

issues on retrial. Id.

        {¶49} In contrast, the damages claimed in the instant case were specific and itemized.

Shaw knew that the steel had to meet specifications and that the related certification was required

because the steel specifications were integral to the processing and end use. Therefore, it was

reasonably foreseeable by Shaw that the damages suffered would be incurred due to the

nonconformance and the award was within the court’s discretion. Thus, it was not unreasonable

for the trial court to determine that there was no intervening act absolving Shaw of culpability.

Cascone, 6 Ohio St.3d 155, 159-160, 451 N.E.2d 815 (1983).

        {¶50}       Ronfeldt introduced documentary and testimonial evidence that there was a

three-week processing time for the steel upon receipt by Ronfeldt. Fabrication involved placing

the metal through a 12-step fabrication process, part of which required processing by third party

vendors. (Tr. 156-157.) In fact, Ronfeldt informed Pall that it would take three weeks from the

receipt of replacement steel to provide replacement parts, substantiating the process timing. Id.
       {¶51}    Ronfeldt also introduced evidence that it waited for confirmation for Shaw, the

seller of the nonconforming product who would ultimately bear responsibility for damages

caused by the nonconformance, to provide the results of the testing it conducted prior to notifying

Donaldson and Pall. The test report commissioned by Shaw was dated October 27, 2012, but

confirmation was not provided until Ronfeldt contacted Shaw on November 1, 2012.

       {¶52} Pivotal here, Shaw has presented no evidence to substantiate its position that, had

Ronfeldt frozen production during the October 11, 2012 to October 17, 2012 inquiry and testing

period until the November 1, 2012 confirmation by Shaw, the damages assessed to Shaw would

have been lower. There is no evidence in the record that, for example, (1) some or all of the

2,623 units were manufactured after October 17, 2012; (2) the three-week fabrication process had

not yet begun or concluded; and/or (3) that no damages would be incurred as to third party

vendors for work in process.

       {¶53} The law requires that damages be shown with a reasonable degree of certainty and

speculative damages are not recoverable. Glenwood Homes v. State Auto Mut. Ins. Co., 8th

Dist. Cuyahoga No. 72856, 1998 Ohio App. LEXIS 4656, *16 (Oct. 1, 1998). However, we find

that it is Shaw’s claim for imposition of damages against Ronfeldt that is speculative and not

supported by the evidence. To that end, “[t]he purpose of Civ.R. 59 is not to simply allow a

party a second opportunity to present evidence that should have been presented at the first trial.”

Riesbeck, 7th Dist. Monroe No. 08 MO 11, 2009-Ohio-6250, ¶ 16.

       {¶54}     This court finds that (1) viewing the evidence in a light most favorable to

Ronfeldt, the trial court’s decision is supported by competent, credible evidence and was not

against the manifest weight of the evidence; and (2) the trial court did not abuse its discretion in
finding that Shaw was responsible for remanufacturing the 6,727 units. Accordingly, Shaw’s first

and second assignments of error are overruled.

       {¶55} Judgment affirmed.

       It is ordered that appellee recover from appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

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.



____________________________________________
ANITA LASTER MAYS, JUDGE

LARRY A. JONES, SR., A.J., and
FRANK D. CELEBREZZE, JR., P.J., CONCUR
