[Cite as Ohio Metal Servs., L.L.C. v. TrueForge Mach. Corp., 2013-Ohio-1776.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

OHIO METAL SERVICES, LLC                                  C.A. No.         26401

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
TRUEFORGE GLOBAL MACHINERY                                COURT OF COMMON PLEAS
CORP, et al.                                              COUNTY OF SUMMIT, OHIO
                                                          CASE No.   CV 2011 03 1188
        Appellant

                                DECISION AND JOURNAL ENTRY

Dated: May 1, 2013



        HENSAL, Judge.

        {¶1}    TrueForge Global Machinery Corp. appeals a judgment of the Summit County

Court of Common Pleas granting Ohio Metal Services, LLC’s motion for judgment

notwithstanding the verdict and conditionally granting its motion for new trial. For the following

reasons, this Court affirms.

                                                     I.

        {¶2}    TrueForge offered to buy a 2000- to 2500-ton forging press from Ohio Metal for

$150,000. Ohio Metal accepted its offer, but the parties later disagreed over whether TrueForge

had the right to inspect the press before completing the sale. After TrueForge refused to pay for

the press, Ohio Metal sued it for breach of contract, quantum meruit, promissory estoppel, and

specific performance. At trial, a jury found that TrueForge breached the contract, but it awarded

Ohio Metal no damages. Ohio Metal moved for judgment notwithstanding the verdict, arguing

that, since TrueForge breached the contract, it was entitled to $150,000. It also moved for a new
                                               2


trial and specific performance.   The trial court granted Ohio Metal’s motion for judgment

notwithstanding the verdict. It awarded $150,000 to Ohio Metal and awarded the press to

TrueForge. The court “conditionally granted” Ohio Metal’s motion for new trial in the event that

its ruling on the motion for judgment notwithstanding the verdict was overturned. It denied the

motion for specific performance. TrueForge has appealed, assigning as error that the trial court

incorrectly granted Ohio Metal’s motions for judgment notwithstanding the verdict and new trial.

                                               II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN ITS MARCH 20 ORDER GRANTING
       PLAINTIFF’S MOTION FOR JUDGMENT NOTWITHSTANDING THE
       VERDICT.

       {¶3}   TrueForge argues that the trial court incorrectly granted Ohio Metal’s motion for

judgment notwithstanding the verdict. The court determined that the evidence presented at trial

“unambiguously established” that the value of the press was $150,000. Accordingly, once the

jury determined that TrueForge breached the contract, it should have awarded Ohio Metal the

value of the press. The court, therefore, awarded $150,000 to Ohio Metal and the press to

TrueForge.

       {¶4}   After a court enters judgment on a jury’s verdict, a party may file a motion for

judgment notwithstanding the verdict in order to have the judgment set aside on grounds other

than the weight of the evidence. Civ.R. 50(B). This Court reviews a trial court’s grant or denial

of a judgment notwithstanding the verdict de novo. Williams v. Spitzer Auto World Amherst,

Inc., 9th Dist. No. 07CA009098, 2008-Ohio-1467, ¶ 9, citing Osler v. Lorain, 28 Ohio St.3d 345,

347 (1986). “[A judgment notwithstanding the verdict] is proper if upon viewing the evidence in

a light most favorable to the [nonmoving] party and presuming any doubt to favor the
                                                3


nonmoving party reasonable minds could come to but one conclusion, that being in favor of the

moving party.” Williams at ¶ 9, citing Civ.R. 50(B).

       {¶5}    TrueForge argues that the “value” of the press is irrelevant in an action for breach

of contract. It argues that, under Revised Code Section 1302.83, Ohio Metal was only entitled to

recover the full contract price if Ohio Metal was unable to resell the forge after making a

reasonable effort to resell it. TrueForge asserts that there is evidence in the record that Ohio

Metal did not make a reasonable effort to resell the forge at a reasonable price. Accordingly, just

because it breached the contract does not mean Ohio Metal was entitled to damages.

       {¶6}    Section 1302.83 provides that, if “the buyer fails to pay the price as it becomes

due the seller may recover, together with any incidental damages * * * the price * * * of goods

identified to the contract if the seller is unable after reasonable effort to resell them at a

reasonable price * * *.” Consistent with that section, the court instructed the jury that, “if you

find by the greater weight of the evidence that TrueForge breached the contract, Ohio Metal may

recover the price of the press if Ohio Metal was unable after reasonable effort to resell the press

at a reasonable price.” It also instructed the jury regarding mitigation of damages, advising that,

“[i]f * * * Ohio Metal did not use reasonable diligence or make reasonable efforts under the facts

and circumstances * * * to avoid or lessen damages caused by TrueForge’s breach, you should

not allow damages that could have been avoided * * *.” The court further instructed the jury

that, if TrueForge breached the contract “and you further find that Ohio Metal has failed to prove

any damages * * *, you may award * * * nominal damages.”

       {¶7}    After the jury retired to deliberate, it asked several questions. The first was:

“What is the final disposition of the press * * * if we rule in favor of: A, the plaintiff, B, the

defendant?” The court, with agreement of the parties, answered: “The jury should not address
                                                   4


this issue.” The second question was: “When considering damages, does the jury consider an

amount in between the $150,000 contract amount and zero dollars?” The court answered: “If

you find that the defendant breached the contract, the jury determines damages according to the

jury instructions.” The third question was: “If we rule in favor of the plaintiff[ ], will the

contract be enforced?” When the court indicated that it was going to answer “yes,” counsel for

both parties affirmed that the answer should be “[y]es.” Finally, the jury asked: “If [the]

compensation line on verdict form for plaintiff is zero, will the contract be enforced?” The court

answered that it was unable to answer the question.

       {¶8}    Under the Ohio Uniform Commercial Code, if a buyer breaches a contract, the

seller generally may withhold delivery of goods, resell the goods, or cancel the deal and sue for

damages. R.C. 1302.77. The law, in essence, attempts to put “the seller in as good a position as

performance would have done” by allowing sellers to recoup any lost profits as well as any

incidental damages arising from the breach. R.C. 1302.82; 1302.84. A seller, however, does not

have the right to specific performance. Compare R.C. 1302.90 (providing that a buyer has a

right to specific performance if “the goods are unique or in other proper circumstances.”). The

statutory cause of action under these circumstances which is most similar in effect to specific

performance is an action for price under Section 1302.83(B). Under that section, if a buyer fails

to pay the price listed in a contract, the seller may recover the entire contract price if it “is unable

after reasonable effort to resell [the goods] at a reasonable price or the circumstances reasonably

indicate that such effort will be unavailing.” R.C. 1302.83(A)(2). If a seller sues for the price of

the items, however, “he must hold for the buyer any goods which have been identified in the

contract and are still in his control except that if resale becomes possible he may resell them at

any time prior to the collection of the judgment.” R.C. 1302.83(B). If the seller is able to resell
                                                   5


the goods identified in the contract, “the net proceeds of * * * such resale must be credited to the

buyer[.]” Id. Section 1302.83(B) further provides that, upon payment of the judgment, the buyer

is “entitle[d] * * * to any goods not resold.” Because a buyer is entitled to any unsold goods

after paying the judgment in an action for price, an action for price can resemble an action for

specific performance because each party may end up receiving exactly what they bargained for

in the contract.

        {¶9}       Although specific performance is not a remedy that is available to a seller under

the UCC, the parties agreed at trial that, if the jury ruled in favor of Ohio Metal, the contract

would be “enforced.” By ordering TrueForge to pay Ohio Metal $150,000 and awarding Ohio

Metal the forging press, the trial court’s order granting judgment notwithstanding the verdict

achieved that result.      In light of the parties’ agreement regarding the jury instruction, we

conclude that, to the extent that the trial court’s order granting judgment notwithstanding the

verdict is improper, TrueForge invited the error by agreeing to enforcement of the contract if the

jury found in favor of Ohio Metal. Wojcik v. Pratt, 9th Dist. No. 25609, 2011-Ohio-5012, ¶ 10

(agreeing that “a party who not only failed to object to jury instructions but also requested them

* * * cannot later take advantage of that error”), citing Blair v. McDonagh, 177 Ohio App.3d

262, 2008-Ohio-3698, ¶ 39 (1st Dist.); see State v. Murphy, 91 Ohio St.3d 516, 535-536 (2001)

(explaining that a party could not take advantage of an error if he was actively responsible for the

error). TrueForge’s first assignment of error is overruled.

                                    ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED IN ITS MARCH 20 ORDER CONDITIONALLY
        GRANTING PLAINTIFF’S MOTION FOR NEW TRIAL IN THE EVENT
        THAT THIS COURT REVERSES ITS ORDER GRANTING JUDGMENT
        NOTWITHSTANDING THE VERDICT.
                                                 6


       {¶10} TrueForge also argues that the trial court incorrectly granted Ohio Metal’s motion

for new trial. The court “conditionally granted” the motion under Civil Rule 50(C). That rule

provides that, if a motion for judgment notwithstanding the verdict is granted, the court may

conditionally grant a motion for new trial in the event that its ruling on the motion for judgment

notwithstanding the verdict is reversed on appeal. Civ.R. 50(C). In light of our resolution of

TrueForge’s first assignment of error, however, TrueForge’s second assignment of error is moot,

and it is overruled on that basis. See App.R. 12(A)(1)(c).

                                                III.

       {¶11} The judgment of the Summit County Court of Common Pleas, granting judgment

notwithstanding the verdict to Ohio Metal, is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                           7


      Costs taxed to Appellant.




                                                  JENNIFER HENSAL
                                                  FOR THE COURT



CARR, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

KEVIN J. BREEN, Attorney at Law, for Appellant.

SIDNEY N. FREEMAN, Attorney at Law, for Appellee.
