[Cite as Sites v. Chad Turner Enterprises, L.L.C., 2011-Ohio-6039.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



ROBERT SITES,                 :                             JUDGES:
                              :                             Hon. William B. Hoffman, P.J.
     Plaintiff-Appellant,     :                             Hon. Sheila G. Farmer, J.
                              :                             Hon. Patricia A. Delaney, J.
v.                            :
                              :
CHAD TURNER ENTERPRISES, LLC, :                             Case No. 11-CA-23
                              :
     Defendant-Appellee .     :                             OPINION




CHARACTER OF PROCEEDING:                                    Appeal from the Court of Common
                                                            Pleas, Case No. 09CV1412



JUDGMENT:                                                   Affirmed/Reversed in Part; Judgment
                                                            Entered



DATE OF JUDGMENT:                                           November 21, 2011




APPEARANCES:

For Plaintiff-Appellant                                     For Defendant-Appellee

MILES D. FRIES                                              ROGER WARNER
320 Main Street                                             PAUL L. WALLACE
P.O. Box 190                                                171 East Livingston Avenue
Zanesville, OH 43702-0190                                   Columbus, OH 43215
Fairfield County, Case No. 11-CA-23                                                        2

Farmer, J.

        {¶1}    On April 1, 2009, appellant, Robert Sites, was operating a tractor-trailer in

the state of Arizona for his employer, appellee, Chad Turner Enterprises, LLC. On said

date, appellant pulled into a weigh station as required by law and produced his

paperwork. Missing from the paperwork was a valid fuel license. As a result, appellant

received a traffic citation for driving a commercial vehicle without a valid fuel license.

The fine was $300.00. Appellant understood that Mr. Turner would take care of the

traffic citation.

        {¶2}    Appellant was terminated from appellee's employ on April 23, 2009. In

June of 2009, appellant discovered the traffic citation had never been paid. The Arizona

Department of Transportation sent appellant a notice dated June 23, 2009 advising him

that his commercial driver's license was suspended for non-payment of the traffic

citation.

        {¶3}    Following some health issues, appellant attempted to go back to work in

November of 2009 as a truck driver; however, he was unable to do so as he did not

have a valid commercial driver's license.

        {¶4}    On October 27, 2009, appellant filed a complaint against appellee for

negligence and breach of contract. A bench trial commenced on December 28, 2010.

By judgment entry filed March 23, 2011, the trial court found in favor of appellee.

        {¶5}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:
Fairfield County, Case No. 11-CA-23                                                3


                                             I

       {¶6}   "THE TRIAL COURT ERRED IN DISMISSING THE NEGLIGENCE CLAIM

AT THE CONCLUSION OF APPELLANT'S CASE."

                                            II

       {¶7}   "THE TRIAL COURT COMMITTED ERROR BY FAILING TO PERFORM

ITS MANDATORY DUTY TO APPORTION FAULT TO EACH PARTY IN THIS ACTION

INVOLVING TORTIOUS CONDUCT."

                                            III

       {¶8}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR FAILING TO

DECIDE IN FAVOR OF APPELLANT WHEN ALL OF THE ELEMENTS OF

PROMISSORY ESTOPPEL WERE PROVEN."

                                            IV

       {¶9}   "THE FAILURE TO AWARD APPELLANT DAMAGES BASED ON HIS

DETRIMENTAL RELIANCE ON APPELLEE'S PROMISE WAS ERROR."

                                            V

       {¶10} "THE TRIAL COURT'S JUDGMENT WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

                                           I, II

       {¶11} Under these assignments of error, appellant challenges the trial court's

decision on his negligence claim.

       {¶12} In its judgment entry filed March 23, 2011, the trial court stated the

following at Conclusion of Law Nos. 3, 4, 5, 6, 8, and 9:
Fairfield County, Case No. 11-CA-23                                                     4


      {¶13} "3. At the conclusion of Plaintiff's case, Defendant moved for dismissal of

Plaintiff's claims pursuant to Civ.R 41(B)(2). The court granted Defendant's motion in

part and dismissed Plaintiff's claims based on negligence because the obligation to pay

the citation as asserted by Plaintiff and denied by Defendant arose from a voluntary

duty and not a duty imposed as a matter of law. The case was therefore allowed to

proceed on the basis of contract claim.

      {¶14} "The court should not have dismissed the Plaintiff's negligence claim on

the basis that Defendant was a volunteer and could owe no duty to the Plaintiff as a

volunteer.

      {¶15} "Although the case proceeded on the contract basis, the court finds that

the facts presented are sufficient and that the evidence is the same regardless of which

theory is advanced by Plaintiff. Plaintiff argued both theories throughout the case and in

his proposed findings of fact and conclusions of law. The emphasis of the Plaintiff's

argument is on tort.

      {¶16} "Therefore, the court will address the merits of both of the Plaintiff's

claims;

      {¶17} "4. The elements of a negligence claim are Duty, Breach of Duty,

Causation, and Damages;

      {¶18} "5. One who voluntarily undertakes an act which he has no duty to perform

and another reasonably relies upon that undertaking, the act must generally be

performed with ordinary care;

      {¶19} "6. The legal duty which a defendant owes to the a (sic) plaintiff in any

given case depends upon the surrounding facts and circumstances;
Fairfield County, Case No. 11-CA-23                                                      5


       {¶20} "8. The comparative negligence statute provides for apportionment of

damages determined to be directly and proximately caused by the negligence of more

than one person. R.C. 2315.19;

       {¶21} "9. If one party has been negligent and the other party has knowledge

thereof, or is chargeable with such knowledge, he must thereafter act with reference to

such negligence, and shut his eyes and claim that he relied upon a proper performance

of duty by the other party."

       {¶22} In Greer v. National City Corporation, Delaware App. No. 08CAE120076,

2009-Ohio-5172, this court held the following at ¶95:

       {¶23} " 'Where the duty allegedly breached by the defendant is one that arises

out of a contract, independent of any duty imposed by law, the cause of action is one of

contract.' Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 810,

619 N.E.2d 10, citing Ketcham v. Miller (1922), 104 Ohio St. 372, 377, 136 N.E. 145.

The addition of the words 'intentionally' and 'willfully' into a claim do not change the

nature of the cause of action. Id."

       {¶24} Based upon the clear law in Ohio, we find these assignments of error

relating to the negligence claim not to be well taken.

       {¶25} Assignments of Error I and II are denied.

                                            III

       {¶26} Appellant claims the trial court erred in failing to decide in his favor under

the theory of promissory estoppel. We agree in part.

       {¶27} Promissory estoppel is defined in Restatement of the Law 2d, Contracts

(1993), Section 90, as "[a] promise which the promisor should reasonably expect to
Fairfield County, Case No. 11-CA-23                                                     6


induce action or forbearance on the part of the promisee or a third person and which

does induce such action or forbearance is binding if injustice can be avoided only by

enforcement of the promise."

       {¶28} In its judgment entry filed March 23, 2011 under "Decisions," the trial court

found "[o]n April 1, 2009, the Defendant's representative, Chad Turner, promised to pay

the Arizona Traffic Ticket" and "[t]he Defendant made a promise upon which the Plaintiff

relied." The trial court went on to decide that appellant knew before his commercial

driver's license was suspended in late June that "the Defendant had not paid the

citation, and probably was not going to pay the citation. The Plaintiff therefore created

or negligently created most of his claimed damages."

       {¶29} Upon review, we find the trial court found there was a promise to pay.

Therefore, although this assignment of error is correct, it is not technically correct

because the trial court proceeded to find that appellant had failed to establish damages.

       {¶30} Assignment of Error III is granted. The issue of damages is addressed in

Assignments of Error IV and V.

                                          IV, V

       {¶31} Appellant claims the trial court erred in not awarding damages. We agree

in part.

       {¶32} A judgment supported by some competent, credible evidence will not be

reversed by a reviewing court as against the manifest weight of the evidence. C.E.

Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must

not substitute its judgment for that of the trial court where there exists some competent
Fairfield County, Case No. 11-CA-23                                                       7

and credible evidence supporting the judgment rendered by the trial court. Myers v.

Garson, 66 Ohio St.3d 610, 1993-Ohio-9.

       {¶33} In its judgment entry filed March 23, 2010 under "Decisions," the trial court

specifically found appellant relied on the promise by Turner, but found appellant failed to

establish his damages and failed to mitigate his own damages:

       {¶34} "The court also finds that the Plaintiff failed to prove by a preponderance

of the evidence his damages. Further, any damages, other than the cost of the citation,

caused the Plaintiff were incurred because of Plaintiff's failure to mitigate his damages

(contract theory) or due to comparative negligence (tort theory).

       {¶35} "The Plaintiff made a choice to ignore a known risk."

       {¶36} Appellant testified that Turner had promised to pay the $300.00 ticket. T.

at 35-36, 39; Plaintiff's Exhibit B.1 The ticket was to be paid by April 29, 2009. T. at 35.

Appellant was terminated from appellee's employ on April 23, 2009. In June of 2009,

appellant was told Turner would not pay the ticket. T. at 41-45. By this time, the time to

appear had passed, but no action had been taken on a license suspension until June

23, 2009, the date the Arizona Department of Transportation notified appellant of his

commercial driver's license suspension. T. at 48.

       {¶37} Following neck surgery in June of 2009, appellant was ready to return to

work in November of 2009; however, because his commercial driver's license had been

suspended, he was unable to obtain work as a truck driver. T. at 50-51. Appellant

made no attempt to rectify the situation for five months.




1
The original ticket was not offered into evidence. Appellant claimed it was unavailable.
T. at 65.
Fairfield County, Case No. 11-CA-23                                                      8


      {¶38} Appellant testified it would cost him $2,500.00 to get his license reinstated

plus the $300.00 ticket.    T. at 52.   Without a commercial driver's license, he was

unemployable as a truck driver. T. at 51. Appellant claimed his 2009 annual income for

truck driving for appellee was to be $60,000.00. T. at 57. Appellant received worker's

compensation and unemployment compensation in 2009. T. at 53-54, 98.

      {¶39} Although appellant was correct that he did not have a valid commercial

driver's license in November of 2009, Plaintiff's Exhibit E, an abstract driver's record

from the Ohio Bureau of Motor Vehicle, noted his commercial driver's license was valid

on September 2, 2010. T. at 81. However, upon renewal, appellant's application could

not be processed because it stated, "[u]nable to proceed with application.         Please

contact Arizona." T. at 61, 83.

      {¶40} Based upon the undisputed testimony that the cost of the ticket was

$300.00 and the trial court's conclusion that payment of the ticket was promised and

relied upon, we find there is ample evidence that appellant is owed $300.00. We concur

with the trial court's position that once appellant knew Turner would not pay the ticket,

the loss of his commercial driver's license and earning ability was a result of his failure

to mitigate damages.

      {¶41} Assignments of Error IV and V are granted in part.
Fairfield County, Case No. 11-CA-23                                               9


      {¶42} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed in part and reversed in part. Pursuant to App.R. 12(B), judgment is

hereby entered for appellant in the amount of $300.00 plus interest and costs.

By Farmer, J.

Delaney, J. concur and

Hoffman, P.J. concurs separately.




                                            _s/ Sheila G. Farmer_______________



                                            __s/ Patricia A. Delaney___________



                                            _______________________________

                                                          JUDGES

SGF/sg 1103
Fairfield County, Case No. 11-CA-23                                                   10

Hoffman, P.J., concurring

       (¶43) I concur in the majority’s analysis and disposition of Appellant’s third,

fourth and fifth assignments of error.

       (¶44) I concur in the majority’s disposition of Appellant’s first and second

assignments of error. However, I do not find Appellant’s tort claim for negligence arises

out of a contract. Nevertheless, I concur as the trial court corrected the error in its

judgment entry as noted in the majority opinion.




                                         _s/ William B. Hoffman______________
                                              HON. WILLIAM B. HOFFMAN
[Cite as Sites v. Chad Turner Enterprises, L.L.C., 2011-Ohio-6039.]


                  IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



ROBERT SITES,                                          :
                                                       :
        Plaintiff-Appellant,                           :
                                                       :
vs.                                                    :              JUDGMENT ENTRY
                                                       :
CHAD TURNER ENTERPRISES, LLC,                          :
                                                       :
        Defendant-Appellee.                            :              CASE NO. 11-CA-23




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed in part and

reversed in part. Pursuant to App.R. 12(B), judgment is entered for appellant in the

amount of $300.00 plus interest and costs. Costs to appellee.




                                                       _s/ Sheila G. Farmer_______________



                                                       _s/ William B. Hoffman________________



                                                       _s/ Patricia A. Delaney________________

                                                                         JUDGES
