        [Cite as Cincinnati v. Triton Servs., Inc., 2019-Ohio-3108.]
                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO

CITY OF CINCINNATI,                                :          APPEAL NO. C-170705
                                                              TRIAL NO. A-1405757
       Plaintiff-Appellee/Counterclaim-            :
       Defendant,                                                      OPINION.
                                                   :
 vs.
                                                   :
TRITON SERVICES, INC.,
                                                   :
       Defendant-Appellant/
       Counterclaim-Plaintiff,                     :

OHIO FARMERS INSURANCE                             :
COMPANY,
                                                   :
  and
                                                   :
MAJID H. SAMARGHANDI,
                                                   :
   Defendants/Counterclaim-
   Plaintiffs,                                     :

  and                                              :

TRITON PROPERTIES, LLC,                            :

    Defendant.                                     :




TRITON SERVICES, INC.,                             :          APPEAL NO. C-170705
                                                              TRIAL NO. A-1500905
       Plaintiff-Appellant/Counterclaim-           :
       Defendant,
                                                   :
  vs.
                                :
CITY OF CINCINNATI, A MUNICIPAL :
CORPORATION,
                                :
    Defendant-Appellee/
    Counterclaim-Plaintiff.     :
                    OHIO FIRST DISTRICT COURT OF APPEALS




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is:       Affirmed in Part, Reversed in Part, and Cause
                                 Remanded

Date of Judgment Entry on Appeal: August 2, 2019


Paula Boggs Muething, City Solicitor, Joseph C. Neff, Assistant City Solicitor, and
Taft Stettinius & Hollister, LLP, Earl K. Messer and Nicolas J. Pieczonka, for the
City of Cincinnati,

Stites & Harbison, PLLC, William G. Geisen and Andrew J. Poltorak, for Triton
Services, Inc., Ohio Farmers Insurance Company, and Majid H. Samarghandi.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


WINKLER, Judge.
       {¶1}    Appellant Triton Services, Inc., (“Triton”) appeals several orders

entered against it in favor of appellee city of Cincinnati (“the city”) in two

consolidated cases. We find merit in four of Triton’s eight assignments of error. We

therefore affirm the trial court’s judgment in part and reverse it in part.


                               The Wesselman/Carroll Projects

       {¶2}    The record shows that in April 2008, Triton entered into a contract

with the city, acting on behalf of the Metropolitan Sewer District (“MSD”). Under

the contract, Triton was the general contractor performing sewer work for the

Wesselman Road Interceptor Sewer Phase 1A-3 and 1B project (“Wesselman

Project”).    Subsequently, Triton entered into another contract with the city to

perform the Carroll Avenue Sewer Replacement Project (“Carroll Project”). Ohio

Farmers Insurance Company provided surety bonds for both projects.

       {¶3}     In June 2011, the city issued three checks totaling $496,256.09 to

Triton for the work it had performed on the Wesselman and Carroll Projects. Triton

deposited the checks into its bank account. Several months later, the city discovered

that Pavement Management, one of Triton’s subcontractors, had not been paid. The

city took steps to stop payment on the checks it had issued to Triton. The city was

erroneously informed by its bank that the payment had been stopped.

       {¶4}    Subsequently, Pavement Management filed suit against Triton and the

city, seeking the money that it was owed for its work on the projects. To resolve that

lawsuit, the city paid $396,756.09 to Triton and $99,500 to Pavement Management.

       {¶5}    In January 2014, the city discovered that the checks for the original

payments of $496,256.09 had not been stopped because the stop-payment orders

had been issued too late. After the city discovered the accidental double payment, it




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                     OHIO FIRST DISTRICT COURT OF APPEALS



sent numerous letters to Triton requesting the return of the original payment of

$496,256.09. Triton never returned the payment.

       {¶6}   Subsequently, in the case numbered A-1405757, the city filed a

complaint against Triton alleging unjust enrichment and breach of contract. The city

also named Ohio Farmers Insurance Company (“Farmers”) as a defendant and made

a claim under the surety bonds on the projects. In conducting discovery, it learned

that Triton knew that the city’s checks were fully deposited into Triton’s checking

accounts and that the relevant funds were never returned to the city. In fact, the

overpayment was transferred between numerous bank accounts.

       {¶7}   Consequently, the city amended its complaint to add claims for fraud

and punitive damages against Triton and Majid H. Samarghandi, Triton’s CEO. In

response, Triton and Samarghandi asserted counterclaims for abuse of process and

frivolous conduct, in which they alleged that the city had filed the fraud claim to

harass them and force them to surrender the payment.

       {¶8}   Eventually, the city withdrew its fraud and punitive-damages claims.

The trial court granted summary judgment in favor of the city on its unjust-

enrichment claim and awarded the city $496,256.09.            The court also granted

summary judgment in favor of the city on Triton’s claim for abuse of process. As to

the claim for attorney fees for frivolous conduct, the court found that the issue

should have been raised by motion rather than in Triton’s counterclaim. The court

stated that the evidence related to frivolous conduct should not be presented to the

jury, but that it would allow Triton to raise the issue by motion after the trial of the

other issues raised in a consolidated case.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                    The Sagebrush Project

       {¶9}   In July 2011, Triton entered into a contract with the city to perform

work on the Sagebrush Lane, Susanna Drive, and Yellowstone Drive sewer project

(“Sagebrush Project”). The original contract amount was $2,698,440. The contract

incorporated the bid booklet, the State of Ohio Department of Transportation

Construction and Material Specifications (“ODOT CMS”), and the city of Cincinnati’s

supplement to the ODOT CMS.

       {¶10} A geotechnical report was incorporated into the bid booklet.             It

provided that “excavations for the sewer are anticipated to primarily encounter

cohesive soils interbedded occasionally with cohesionless soils.” The report stated

that no water was found at a majority of the test borings, which led to the

recommendation that trench excavations be performed in 50-foot sections with each

section being backfilled before proceeding to the next trench excavation. The bid

booklet stated that the geotechnical report was for informational purposes only and

that the report was not a substitute for actual site inspection.

       {¶11} Triton began work on the Sagebrush Project in September 2011. Soon

after, it discovered differing soil conditions than it had expected. Triton claimed that

it had encountered sloughing soils, trench cave-ins, excessive groundwater, and

extremely wet conditions, which caused it to incur substantial increased expenses.

       {¶12} The contract spelled out what should occur if Triton encountered

differing site conditions. ODOT CMS ¶ 104.02(B) provided:

              During the progress of the Work, if subsurface or latent

       physical conditions are encountered at the site differing materially

       from those indicated in the Contract Documents or if unknown

       physical conditions of an unusual nature, differing materially from

       those ordinarily encountered and generally recognized as inherent in


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                     OHIO FIRST DISTRICT COURT OF APPEALS



       the Work provided for in the Contract Documents, are encountered at

       the site, notify the Engineer as specified in 104.05 of the specific

       differing conditions before they are disturbed or the affected Work is

       performed.

              Upon notification, the Engineer will investigate the conditions

       and if it is determined that the conditions materially differ and cause

       an increase or decrease in the cost or time required for the

       performance of any Work under the Contract, the Department will

       make an adjustment and modify the Contract as specified in 108.06

       and 109.05.     The Engineer will notify the Contractor of the

       determination whether or not an adjustment of the Contract is

       warranted.

The “Engineer” was defined as a “[d]uly authorized agent of the Department acting

within the scope of its authority for purposes of engineering and administration of

the Contract.” ODOT CMS ¶ 101.03.

       {¶13} ODOT CMS 104.05(D), as amended by the city supplement, required

the contractor to:

       Give written notice of any circumstance or dispute on the project that

       may result in a claim. Give early notice by the end of the second

       working day following the discovery of the occurrence of the

       circumstance or dispute. Maintain records on the Superintendent’s

       daily report of the additional labor, equipment, and materials used on

       the disputed work or made necessary by the circumstance.           Begin

       record keeping when the project personnel are aware of the

       circumstance of dispute. Submit these records on a weekly basis.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



This section further states that “[f]ailure to give early notice or keep and submit cost

records will be a sufficient reason for the City to deny the claim.”

        {¶14} According to Triton, Brian Gessner, Triton’s director of site

development, discussed the differing site conditions frequently with city

representatives throughout the project, including Steve Jones, the supervising

engineer for the Sagebrush Project. Triton also contended that it sent numerous

written notices to the city relating to the differing site conditions.

        {¶15} On February 1, 2012, Gessner sent an email to Sara Cramer, MSD’s

construction manager for the Sagebrush Project. Gessner advised Cramer of the

poor condition of the water mains at the site and that there had been three water

main breaks at the site, causing “undue saturation” of the “surrounding subsurface.”

He also expressed concern about the future impact of the water mains on Triton’s

work.

        {¶16} On March 7, 2012, Gessner sent a letter to Cramer stating,

        As I am sure you have witnessed by your numerous site visits, review

        of the inspector’s daily notes as well as Tritons [sic] notifications both

        verbally and as was addressed in last week’s meeting, the bore and

        trench excavations have exposed poor ground conditions at every

        excavation completed on the upper subdivision part of the project and

        are currently experiencing [m]ajor delays.          The soil strata have

        consisted of large seams of sand as well as groundwater that are

        inconsistent with the bore reports.

He stated that the field operations should be delayed and asked for a meeting to

discuss the problems.

        {¶17} On March 15, 2012, Gessner sent another email to Cramer discussing

the wet site conditions. At that time, the differing site conditions had brought



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                     OHIO FIRST DISTRICT COURT OF APPEALS



Triton’s work on the project to a standstill, and it was waiting on a proposal from

MSD so that it could continue with its work on the project. Gessner also stated that

he had been in “continuous communication” with Jones on those issues.

       {¶18} On March 16, 2012, Gessner sent Cramer documentation regarding

additional trench protection that Triton’s crews would need to use due to the site

conditions. He advised her that the additional trench protection would cause Triton

to incur additional costs. As of March 19, 2012, work remained at a standstill.

Gessner sent an email to Cramer and Jones requesting that they approve the extra

costs associated with more substantial trench boxes, the use of which was

necessitated by the sloughing and saturated soils. MSD agreed to pay those costs,

and Triton was able to continue work on the project.

       {¶19} On May 21, 2012, Gessner sent an email to Cramer advising her that

soil conditions on the west end of Susanna Drive were unsuitable due to saturated

and sloughing soils and approximately four inches of water, which would cause

Triton additional costs. He asked Cramer to confirm conditions with MSD’s field

staff and to confirm that MSD would pay for Triton’s additional costs.

       {¶20} In early June 2012, Gessner and Cramer exchanged emails regarding

the deteriorated and unsuitable subbase on the project. Gessner advised Cramer that

the unforeseen conditions had caused compromised trench walls during the mainline

pipe operations, causing Triton to incur costs for additional materials and labor.

       {¶21} Gessner also indicated that work on the project had been delayed.

Triton contended that while work was stopped, Jones had directed Gessner to wait

and submit all costs incurred due to differing site conditions at the end of the project.

The city contends that Jones only told him to submit costs for certain discrete parts

of the project.




                                           8
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} On June 26, Gessner sent an email in which he requested that Cramer

visit the job site. He attached a photograph showing sloughing soils, trench cave-ins

and deteriorated subbase. In July, he sent Cramer a series of photographs showing

the deteriorated subbase on Susanna Drive, east of Flattop Drive.

       {¶23} On July 24, 2012, Jones sent an email to Patrick Arnette, MSD’s

principal engineer. He stated,

       This is likely the most difficult project I have seen since I have been in

       the construction section. Fill soils in excavation, angry and resistant

       residents towards the project, rain in Fall and Winter working near the

       creeks, 105 degree heat and no rain in the summer working in the

       streets, an unqualified contract duration, communication on the

       project from numerous entities, a design that does not allow traffic,

       mismarked and failing utilities, unrealistic expectations from

       residents, confrontational and deceitful residents, a contractor without

       a full crew at the beginning of the project[.] * * * I have said since the

       beginning of the project that we may all do great work but we will all

       receive black eyes at the end of this project. Where others see failure, I

       see success by MSD and Triton. The contractor went from a half crew

       to 4 crews on the job, save 3 to 4 months on the contract time using a

       new more costly boring method, has done a remarkable job

       communicating and trying to get traffic through the work areas.

Jones would later state that the project was difficult primarily due to the residents

and secondarily due to all of the entities involved.

       {¶24} James Wilmes was MSD’s on-site inspector for the project. Typically,

he was at the site for ten hours per day. As part of his duties, he would prepare an

“Inspector Daily Report” (“IDR”), in which he would document his observations. He



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                      OHIO FIRST DISTRICT COURT OF APPEALS



also took photographs of the site conditions.         According to Triton, the IDRs

supported its claims of differing site conditions. The city contended that Wilmes’s

job was not to inspect subsurface conditions at site, and he did not have the training

and experience to make those kinds of determinations. Wilmes stated that he had no

reason to conduct any further inspections into ground-water conditions and that he

would have referred any issues with subsurface conditions to the engineer.

       {¶25} Triton completed the trench excavations by August 28, 2o12. Though

the contract had an expiration date of September 21, 2012, the job continued after

that date. Part of the reason was that Triton had to temporarily stop work on the

project for Colerain Township to install new curbs. Triton finished the final work,

mostly involving the final grinding and paving of the roads, on December 12, 2012.

       {¶26} On November 19, 2012, Triton submitted change order request

(“COR”) #5 relating to unforeseen ground conditions at manholes three through six

in the mainline pipe installation. The associated work occurred between February

27, 2012, and April 9, 2012. It stated “[a]s per the notification via the attached letter

dated 6/4/12 and the Time Impact Analysis dated 6/26/2012, Triton has incurred

the additional costs as listed below as a result of the differing site conditions.” MSD

approved that change order request through Construction Change Order (“CCO”) #7

on October 3, 2014.

       {¶27}   On November 19, 2012, Triton also submitted COR #3 related to

unforeseen ground conditions during the bore at manhole number three. The work

associated with that bore occurred between November 1 and 11, 2011. MSD approved

that change order request through CCO #6 on September 2, 2013.

       {¶28} On March 15, 2013, eight months after it had finished trench

excavations, Triton submitted COR #6 for unforeseen ground conditions at

manholes three through six.       The work associated with that request occurred



                                           10
                     OHIO FIRST DISTRICT COURT OF APPEALS



between February 27, 2012, and April 9, 2012. Triton again referenced its letter of

June 12, 2012, and the Time Impact Analysis dated June 26, 2012. Triton contended

that it had submitted this request at that time because Jones had requested that

Triton gather all costs associated with the differing site conditions and submit those

requests after the conclusion of the project.     MSD approved this change order

request through CCO #6 on September 2, 2013.

       {¶29} On March 15, 2013, Triton also submitted COR #7 for additional

concrete roadway restoration due to the deteriorated road base. It stated that it had

submitted the request after the conclusion of the project, per Jones’s request. MSD

approved COR #7 through CCO #7.

       {¶30} Finally, on March 19, 2013, Triton submitted COR #14 for expenses

incurred due to undocumented, unsuitable ground conditions throughout the

project. Again, it claimed that it had submitted this request at that time because

Jones had requested that it submit all change order requests after work on the

project was finished.   Triton requested additional compensation of $534,321.65.

Gessner calculated that amount by using what Triton contends was a total-cost

method. It supported that request with a binder full of information that contained

numerous photographs and copies of numerous IDRs, which it contended

documented its claim for differing site conditions.

       {¶31} After the city refused to approve COR #14, Triton filed a complaint in

the case numbered A-1500905 alleging breach of contract. It sought damages for the

unpaid contract balance, costs related to the differing site conditions, extended and

unabsorbed home office overhead, interest, and attorney fees.        The city filed a

counterclaim for breach of contract and indemnification. At Triton’s request, the

trial court consolidated that case with the case numbered A-1405757.




                                          11
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶32} Subsequently, the city filed two motions in limine. In its first motion,

the city asked the court to exclude the testimony of Brian Gessner, Triton’s director

of site development, relating to Triton’s damages for the differing-site-conditions

claim because he did not use a proper method to calculate those damages, and the

damages were purely speculative. In its second motion, the city asked the court to

exclude evidence related to Triton’s claim for differing site conditions due to

spoliation of the evidence. It argued that Triton had failed to preserve evidence

necessary for it to rebut Triton’s claims that the soil conditions it encountered on the

Sagebrush Project were different than those stated in the contract. The trial court

granted both motions in limine.

       {¶33} The court granted summary judgment in favor of Triton and Farmers

on the city’s claims against the performance and payment bonds. The trial court also

granted summary judgment in favor of the city on Triton’s claims for its home office

overhead and for attorney fees.

       {¶34} But the court denied the city’s motion for summary judgment on

Triton’s differing-site-conditions claim. The court stated that a genuine issue of

material fact existed “as to whether the subsurface conditions at the site materially

differed from those indicated in the geotechnical engineering report that the city

issued with the bid documents.”

       {¶35} Thus, the only issue remaining for trial was Triton’s differing-site-

conditions claim. On October 23, 2017, a jury trial commenced. Triton and the city

entered into an agreement resolving some of the claims, which included dismissing

the jury and proceeding to a bench trial. Triton proffered the evidence that it would

have presented had that evidence not been excluded. The trial court then granted

the city’s motion for a “directed verdict” on the differing-site-conditions claim. On




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                     OHIO FIRST DISTRICT COURT OF APPEALS



November 28, 2017, the court journalized a judgment entry incorporating all of its

previous rulings. This appeal followed.

       {¶36} Triton presents eight assignments of error for review, which we

address out of order.    We will discuss the assignments of error related to the

Sagebrush Project first and then the assignments of error related to the

Wesselman/Carroll projects.


                               Spoliation of Evidence

       {¶37} In its first assignment of error, Triton contends that the trial court

erred in granting the city’s motion in limine precluding Triton from presenting

evidence concerning differing site conditions due to spoliation of evidence. The basis

of the city’s spoliation argument was that Triton had failed to collect and preserve

soil samples at the job site to support its differing-site-conditions claim. Triton

argues that the court abused its discretion, because the threshold showing of

spoliation had not been met. In its second assignment of error, Triton contends that

the trial court erred in precluding Triton from presenting evidence regarding soil

conditions at the site and any difference between the soil conditions it had

encountered and the soil conditions it expected at the Sagebrush Project site as a

sanction for spoliation of evidence. We sustain these assignments of error.

       {¶38} The doctrine of spoliation of the evidence may be raised in a number of

ways including as an affirmative defense or by motion. The effect of the doctrine,

when applied in a defensive manner, is to allow the defendant to exculpate itself

from liability because the plaintiff has barred it from obtaining evidence necessary to

prove the existence or absence of the essential elements of the claim. Loukinas v.

Roto-Rooter Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶

12 (1st Dist.). A trial court may exclude expert testimony as a sanction for spoliation



                                          13
                     OHIO FIRST DISTRICT COURT OF APPEALS



of the evidence if it determines that evidence has been intentionally altered or

destroyed by a party or its expert before the defense has had an opportunity to

examine the evidence. Id. at ¶ 13; Hetzer-Young v. Elano Corp., 2d Dist. Greene No.

2013-CA-32, 2014-Ohio-1104, ¶ 29; Cincinnati Ins. Co. v. Gen. Motors Corp., 6th

Dist. Ottawa No. 94OT017, 1994 WL 590566, *3 (Oct. 28, 1994).

       {¶39} The city does not contend that Triton destroyed soil samples. Instead,

it argues that Triton failed to collect and preserve them. Nothing in the record shows

that Triton had a duty to collect soil samples, and the city never asked Triton to

provide soil samples. The contract for the Sagebrush Project did not require Triton

to do so. Further, the contract gave the city the right to inspect job-site conditions at

any time so it could have collected its own soil samples, if needed.

       {¶40} The city contends that Triton failed to give it proper notice of the

condition of the soil as provided for in the contract. That is a separate contractual

issue, which is irrelevant to the doctrine of spoliation of the evidence. That issue was

never fully addressed because of the trial court’s decisions granting the two motions

in limine, an issue we discuss more fully under Triton’s eighth assignment of error.

       {¶41}   Thus, the doctrine of spoliation of evidence is not implicated in this

case because no evidence existed to be destroyed. Sanctions and causes of action for

spoliation of evidence are designed to place responsibility and accountability on

parties who were actually in possession of evidence that existed at one time but who

later failed to provide the evidence without adequate explanation.         Wheatley v.

Marietta College, 2016-Ohio-949, 48 N.E.3d 587, ¶ 105 (4th Dist.); Keen v Hardin

Mem. Hosp., 3d Dist. Hardin No. 6-03-08, 2003-Ohio-6707, ¶ 16. “Non-existent

evidence, by its very nature, cannot be spoiled.” Keen at ¶ 16.

       {¶42} Consequently, we hold that the trial court erred in granting the city’s

motion in limine and in precluding Triton from presenting evidence regarding soil



                                           14
                     OHIO FIRST DISTRICT COURT OF APPEALS



conditions at the Sagebush Project site based on spoliation of evidence. We sustain

Triton’s first and second assignments of error.


            Testimony on Damages for Differing-Site-Conditions Claim

       {¶43} In its third assignment of error, Triton contends that the trial court

erred in precluding Gessner from testifying in support of its claim for damages

relating to differing site conditions. It argues that the evidence was probative and

was calculated with a reasonable degree of certainty, and therefore, should not have

been excluded. We find this assignment of error to be well taken, although not

precisely for the reasons Triton states.

       {¶44} We note that the city argues in its brief that Gessner was not qualified

as an expert witness under Evid.R. 702, which was not the basis of its motion to

exclude his testimony about damages in the trial court. In its motion, the city had

argued that the probative value of the testimony on damages was substantially

outweighed by the danger of unfair prejudice under Evid.R. 403(A). Its argument

was threefold: (1) that Gessner’s damage calculation was based on documents that

Triton had lost, disposed of, or intentionally withheld; (2) that Gessner could not

explain the basis of his damage calculation; and (3) that Gessner’s calculation did not

conform to the requirements of a total-cost claim.

       {¶45} The trial court has broad discretion in determining whether evidence

should be excluded under Evid.R. 403(A). A reviewing court will not reverse that

decision absent an abuse of discretion. State v. Simms, 1st Dist. Hamilton Nos. C-

030138 and C-030211, 2004-Ohio-652, ¶ 4; Cincinnati v. Banks, 143 Ohio App.3d

272, 287, 757 N.E.2d 1205 (1st Dist.2001).

       {¶46} Evid.R. 403(A) provides that “[a]lthough relevant, evidence is not

admissible if its probative value is substantially outweighed by the danger of unfair



                                           15
                        OHIO FIRST DISTRICT COURT OF APPEALS



prejudice, of confusion of the issues, or of misleading the jury.”      Exclusion of

evidence under Evid.R. 403(A) requires more than mere prejudice, it requires unfair

prejudice. Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890

(2001); Conway v. Dravenstott, 3d Dist. Crawford No. 3-06-05, 2006-Ohio-4840, ¶

11. “Unfair prejudice is that quality of evidence which might result in an improper

basis for a jury decision.” Oberlin at 172. If evidence “arouses the jury’s emotional

sympathies, evokes a sense of horror, or appeals to an instinct to punish,” it may be

unfairly prejudicial. Id.; Conway at ¶ 11. “Usually, although not always, unfairly

prejudicial evidence appeals to the jury’s emotions rather than intellect.” Oberlin at

174.

       {¶47} The contract required the use of a measured-mile analysis to quantify

labor inefficiencies.    Triton originally stated that its damages were based on a

measured-mile analysis. Using that analysis, it presented a much lower figure for

damages than it claimed later in the proceedings. Gessner testified that due to the

nature of the work it was impossible to do a measured-mile analysis.

       {¶48} Later, Triton claimed to be using the total-cost method, which Gessner

acknowledged he had no experience calculating. He stated that he had never used

the calculation he had relied upon in determining Triton’s damages for the alleged

differing-site-conditions claim. He stated he did his “best effort at a total costs

method,” and that his opinion was not based on any construction journal or industry

standard.

       {¶49} We cannot hold that any of the alleged defects in Gessner’s testimony

would have caused the city unfair prejudice. Gessner’s testimony would not appeal

to a jury’s emotions rather than its intellect. It also would not arouse a jury’s

emotional sympathies, evoke a sense of horror, or appeal to an instinct to punish.

The city contends that Gessner’s estimate of damages was speculative and based on



                                          16
                     OHIO FIRST DISTRICT COURT OF APPEALS



conjecture. See Kahn v. CVS Pharmacy, Inc., 165 Ohio App.3d 420, 2006-Ohio-

Ohio-112, 846 N.E.2d 904, ¶ 25 (1st Dist.); Hollobaugh v. D & V Trucking, 7th Dist.

Mahoning No. 99 CA 303, 2001 WL 537058, *5 (May 8, 2001). But any defects in

Gessner’s testimony go to its weight, not its admissibility.

       {¶50} Under the circumstances, we hold that the trial court’s decision to

grant the motion in limine excluding Gessner’s testimony on damages was an abuse

of discretion. We make no decision as to whether Gessner’s testimony was proper

expert testimony under Evid.R. 702 since the trial court did not decide the motion in

limine on that basis. We, therefore, sustain Triton’s third assignment of error.


                          Home-Office-Overhead Damages

       {¶51} In its fourth assignment of error, Triton contends that the trial court

erred in granting partial summary judgment in favor of the city on Triton’s claim for

home-office-overhead damages related to the city’s unilateral extension of the project

from September 2012 to June 2013. It argues that issues of fact exist as to whether it

was entitled to those damages. This assignment of error is not well taken.

       {¶52} An appellate court reviews a trial court’s ruling on a motion for

summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996); Wal-Mart Realty Co. v. Tri-County Commons Assoc., Ltd., 1st

Dist. Hamilton No. C-160747, 2017-Ohio-9280, ¶ 8.              Summary judgment is

appropriate if (1) no genuine issue of material fact exists for trial, (2) the moving

party is entitled to judgment as a matter of law, and (3) reasonable minds can come

to but one conclusion and that conclusion is adverse to the nonmoving party, who is

entitled to have the evidence construed most strongly in his or her favor. Temple v.

Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977); Wal-Mart Realty

Co. at ¶ 8.



                                           17
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶53} Home office overhead is the cost of running a contractor’s home office

during a government-caused delay. Complete Gen. Constr. Co. v. Ohio Dept. of

Transp., 94 Ohio St.3d 54, 55, 760 N.E.2d 364 (2002). Contractors cover overhead

costs by spreading the costs proportionally across ongoing projects. When an owner-

caused delay substantially diminishes a project’s cash flow, the contractor’s fixed

overhead costs are not absorbed by the delayed project and must be absorbed by

other projects. If a contractor is unable to take on other construction projects during

the period of the delay, the contractor’s overhead costs are not absorbed by the

project to which they were apportioned. Id. at 57; Royal Elec. Constr. Co. v. Ohio

State Univ., 10th Dist. Franklin Nos. 93AP-399 and 93AP-424, 1993 WL 532013 *6

(Dec. 21, 1993).

       {¶54} In Complete Gen. Constr. Co., the Ohio Supreme Court adopted what

is known as the Eichleay formula “an equation employed by federal courts for

determining such costs.” Complete Gen. Constr. Co. at 55. It is “the most well-

known formula for calculating unabsorbed overhead” costs arising out of

government-caused delay. Id., quoting Shapiro & Washington, Use of the Eichleay

Formula to Calculate Unabsorbed Overhead for Government Caused Delay Under

Manufacturing Contracts, 25 Pub.Contr.L.J. 513, 514 (1996). The Supreme Court

did note, however, that the Eichleay formula is not the only way to determine

unabsorbed home-office-overhead damages. Complete Gen. Constr. Co. at 61.

       {¶55} Before that formula may be applied, the contractor must demonstrate

two important elements to establish a prima facie case. First, the contractor must

show that it was on “standby.” A contractor is on standby “when work on a project is

suspended for a period of uncertain duration and the contractor can at any time be

required to return to work immediately.” Complete Gen. Constr. Co. at 58, quoting

West v. All State Boiler, Inc., 146 F.3d 1368, 1373 (Fed.Cir.1998). In effect, the



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                    OHIO FIRST DISTRICT COURT OF APPEALS



contractor is not working on the project, yet remains bound to the project. The

contractor must be ready to immediately resume performance at any time. Second,

the contractor must show that it was unable to take on any other work while on

standby. That is, it must show that the uncertainty of the duration of the delay made

it unable to commit to replacement work on another project. Complete Gen. Constr.

Co. at 58-59.

        {¶56} The government can rebut the contractor’s prima facie case by

demonstrating either (1) that it was not impractical for the contractor to obtain

replacement work during the delay, or (2) that the contractor's inability to obtain or

perform work was not caused by the government’s suspension.           Complete Gen.

Constr. Co., 94 Ohio St.3d at 59, 760 N.E.2d 364. “The Eichleay formula goes

nowhere without causation.” Id. at 60. A contractor may recover only if there is an

owner-caused delay. Id.

        {¶57} The contract language in the present case is similar to the contract

language in Complete Gen. Constr. Co. It provides that “[t]he City will only pay for

the Contractor’s home office overhead if all work on the project is suspended at no

fault of the Contractor, the length of the suspension is unknown, the Contractor’s

crews are put on standby, and the Contractor cannot get replacement work for the

time period of the suspension.”

        {¶58} First, the record shows that some of the delay was not caused by the

city.   The delay from September 2012 to December 2012 was caused by the

installation of curbs by Colerain Township, which is not a party to either suit.

Gessner acknowledged that he knew Triton would return to work on the project

when the curbs were installed.

        {¶59} Triton contends that the city caused a nine-month suspension from

September 2012 until June 2013. The record shows that the city had a policy in



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                      OHIO FIRST DISTRICT COURT OF APPEALS



which it extends a contract for at least nine months past its final completion date to

negotiate change orders and close out the contract. Since Triton finished its work in

December 2012, it is difficult to say that the city’s extension for closing out the

project caused Triton to incur additional home-office-overhead costs. But, even if we

attribute all the delay to the city, nothing in the record shows that the city put Triton

on “standby” status during that time.

        {¶60} Further, Triton was not prevented from accepting other work from

September 2012 through June 2013. In granting summary judgment to the city on

Triton’s claim for unabsorbed home office overhead, the trial court stated,

        Triton’s own employee time records show that its employees were

        working on various replacement projects from September 2012

        (contract completion date) and December 2012 (the date Triton admits

        its work on the project was completed). Mr. Gessner’s inability to

        recall whether Triton passed up other opportunities is not sufficient to

        create an issue of fact concerning whether Triton was prevented from

        obtaining replacement work as a result of the Sagebrush Project.

        Triton failed to locate or produce any admissible record or evidence

        that shows that Triton was unable to undertake replacement work as a

        result of the Sagebrush Project. The burden is on Triton to set forth

        specific facts showing there is a genuine issue for trial.

The record supports the trial court’s assessment.

        {¶61} We find no issue of material fact.         Construing the evidence most

strongly in Triton’s favor, reasonable minds can come to but one conclusion—that

Triton did not suffer home-office-overhead damages.            The city was entitled to

judgment as a matter of law, and the trial court did not err in granting summary




                                            20
                       OHIO FIRST DISTRICT COURT OF APPEALS



judgment to the city on that issue.       Consequently, we overrule Triton’s fourth

assignment of error.


                          Directed Verdict/Motion to Dismiss

       {¶62} Finally, in its eighth assignment of error, Triton contends that the trial

court erred in granting the city’s motion for a directed verdict. It contends that the

court’s prior rulings erroneously prevented it from pursuing its claims in the action.

This assignment of error is well taken, although not precisely for the reasons Triton

argues.

       {¶63} When the case proceeded to trial, it was heard by a visiting judge. The

visiting judge advised the parties that he would not change any of the assigned

judge’s evidentiary rulings. Triton and the city entered into an agreement resolving

some of the claims, which included dismissing the jury and proceeding to a bench

trial. The court permitted Triton to proffer the evidence it would have presented if

that evidence had not been excluded by the motions in limine before granting the

motion for a directed verdict.

       {¶64} Civ.R. 50(A)(4) governs motions for a directed verdict. A ruling on a

motion for a directed verdict determines whether the evidence was sufficient to

proceed to a jury. Osler v. Lorain, 28 Ohio St.3d 345, 347, 504 N.E.2d 19 (1986);

Williams v. Sharon Woods Collision Ctr. Inc., 2018-Ohio-2733, 117 N.E.3d 57, ¶ 14

(1st Dist.). Therefore, directed verdicts are inapplicable in bench trials where no jury

exists. Hayes v. Carrigan, 2017-Ohio-5867, 94 N.E.3d 1091, ¶ 21 (1st Dist.).

       {¶65} Instead, a defendant in a nonjury action must move for an involuntary

dismissal under Civ.R. 41(B)(2) at the close of the plaintiff’s evidence. Id. Therefore,

we will treat Triton’s assignment of error as one challenging the trial court’s decision

to grant a dismissal under Civ.R. 41(B)(2). See id.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶66} When ruling on a Civ.R. 41(B)(2) motion to dismiss, a trial court is

entitled to weigh the evidence presented. It is not required to view the evidence in

the light most favorable to the plaintiff. Goering v. Chriscon Builders Ltd., 1st Dist.

Hamilton No. C-100729, 2011-Ohio-5480, ¶ 16. A reviewing court may not set aside

the trial court’s judgment on such a motion unless the judgment was erroneous as a

matter of law or against the manifest weight of the evidence. Id.

       {¶67} We have already held that the trial court erred in excluding Triton’s

evidence regarding differing site conditions and Gessner’s testimony regarding

damages. Because the court did not consider that evidence, its judgment on the

motion to dismiss was erroneous as a matter of law. Consequently, we sustain

Triton’s eighth assignment of error and reverse the trial court’s decision granting the

motion to dismiss. We remand the cause for a new trial on Triton’s differing-site-

conditions claim under the provisions of the contract.


                                 Unjust Enrichment

       {¶68} We now address Triton’s assignments of error related to the

Wesselman/Carroll Projects. In its fifth assignment of error, Triton contends that

the trial court erred in granting summary judgment in favor of the city on the city’s

claim for unjust enrichment. Triton argues that genuine issues of material fact exist

as to whether it would be inequitable for it to repay $496,256.09 to the city based on

the city’s mistaken payment of additional sums to Triton. This assignment of error is

not well taken.

       {¶69} Unjust enrichment occurs when a party retains money or benefits that

in equity belong to another. Liberty Mut. Ins. Co. v. Indus. Comm., 40 Ohio St.3d

109, 110-111, 532 N.E.2d 124 (1988); Alexander v. Motorists Mut. Ins. Co., 1st Dist.

Hamilton No. C-110836, 2012-Ohio-3911, ¶ 23. To establish unjust enrichment, the



                                          22
                      OHIO FIRST DISTRICT COURT OF APPEALS



plaintiff must demonstrate: (1) a benefit conferred by the plaintiff on the defendant;

(2) knowledge by the defendant of that benefit; and (3) retention of that benefit by

the defendant under circumstances where it would be unjust to do so without

payment. Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465 N.E.2d 1298

(1984); Alexander at ¶ 23.

       {¶70} Triton argues that it was entitled to the first payment of $496,256.09

at the conclusion of the Wesselman/Carroll Project. Pavement Management did not

assert claims against the city until six months after the project had been completed.

Triton denied that it had contracted with Pavement Management and that it was

liable to pay it any amount. Triton argues that it was entitled to receive, deposit and

retain the first payment that it had earned by its performance of the work on the

Wesselman/Carroll Project.

       {¶71} As to the second, mistaken payment, Triton contends that genuine

issues of fact exist as to whether the city breached a duty imposed on it by law in

making the second payment. It argues that the city was obligated by law to account

for its own expenditures and reconcile its own accounts. Therefore, genuine issues of

material fact existed as to whether it would be unconscionable for Triton to retain the

benefits conferred on it, and whether the city is precluded from recovery by its own

failure to carry out its obligations.

       {¶72} We find no merit in Triton’s arguments. The record shows that Triton

was paid twice for its work on the Wesselman/Carroll Projects. The trial court was

correct when it stated,

       Since January 2014 the City’s position has not changed with regard to

       the receipt or lack of receipt of the funds in question. Triton has not

       located any bank documents which contradict the [bank’s] records.

       Triton was aware that it still possessed the funds in 2011. Triton has



                                          23
                     OHIO FIRST DISTRICT COURT OF APPEALS



       failed to present any evidence to show the return of the overpayment

       to the City. Majid Samarghandi and Triton knew that the City’s checks

       were deposited into Triton’s checking accounts and the relevant funds

       were never returned to the City.

       {¶73} Triton is essentially arguing that it should be able to take advantage of

a simple mistake by the city. We find no issue of material fact. Construing the

evidence most strongly in Triton’s favor, reasonable minds can come to but one

conclusion—that Triton was unjustly enriched when it failed to return the mistaken

payment. The city was entitled to judgment as a matter of law, and the trial court did

not err in granting summary judgment in its favor on its claim for unjust enrichment.

Consequently, we overrule Triton’s fifth assignment of error.


                                  Abuse of Process

       {¶74} In its seventh assignment of error, Triton contends that the trial court

erred in granting summary judgment in the city’s favor on Triton’s claim for abuse of

process. It argues that the trial court applied the wrong standard and improperly

concluded that Triton had failed to present “clear evidence” of the elements of abuse

of process. This assignment of error is not well taken.

       {¶75} To establish a claim for abuse of process, a plaintiff must show (1) that

a legal proceeding has been set in motion in proper form and with probable cause;

(2) that the proceeding has been perverted to attempt to accomplish an ulterior

purpose for which it was not designed; and (3) that direct damage has resulted from

that wrongful use of process. Robb v. Chagrin Lagoons Yacht Club, 75 Ohio St.3d

264, 270, 662 N.E.2d 9 (1996); Losch & Assoc., Inc., 1st Dist. Hamilton No. C-

150716, 2016-Ohio-4950, ¶ 22. “[A]buse of process occurs when someone attempts




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                     OHIO FIRST DISTRICT COURT OF APPEALS



to achieve through use of the court that which the court is itself powerless to order.”

Robb at 271.

       {¶76} Triton takes the trial court’s statement that it failed to present “clear

evidence” out of context. The abuse-of-process claim was based on the allegation

that the city had brought its fraud claim for the improper purpose of forcing Triton to

pay the city $495,256.09, the amount of the mistaken payment to Triton, and

punitive damages. As the trial court pointed out, “The entire basis of the City’s

original complaint is to get Triton to repay the $496,265.09. But the court does have

the power to order the repayment of money.”

       {¶77} Triton also claims that the city filed the fraud claim to punish it and to

pressure it into settling its claims against the city for a lower amount.       Triton

presented no evidence to support these allegations, other than Samarghandi’s

deposition testimony in which he stated that he believed that the city had filed the

fraud claim to exert pressure on him. That belief is insufficient to create a genuine

issue of material fact. See Schlaegel v. Howell, 2015-Ohio-4296, 42 N.E.3d 771, ¶ 23

(2d Dist.); White v. Sears, Roebuck & Co., 10th Dist. Franklin No. 10AP-294, 2011-

Ohio-204, ¶ 8-9.

       {¶78} Though the trial court’s use of the phrase “clear evidence” was

unfortunate, the record contains no evidence to support Triton’s contention that the

proceeding was perverted to attempt to accomplish an improper purpose for which it

was not designed.     Therefore, the trial court did not err in granting summary

judgment in favor of the city on Triton's claim for abuse of process. We overrule its

seventh assignment of error.




                                          25
                     OHIO FIRST DISTRICT COURT OF APPEALS



                                    Frivolous Conduct

       {¶79} In its sixth assignment of error, Triton contends that the trial court

erred in granting the city's motion for summary judgment on its claim for frivolous

conduct under R.C. 2323.51, and in precluding it from raising the issue until after

trial. It argues that Ohio law allows a party to raise a frivolous-conduct claim either

by motion or counterclaim, and that the trial court erred in finding that it could only

be pursued by motion.

       {¶80} The record shows that the trial court allowed the city to amend its

complaint to add a claim for fraud, based on Triton’s failure despite repeated

requests to return the mistaken payment. Triton then asserted counterclaims for

abuse of process and for frivolous conduct. In its counterclaim, Triton alleged that

       the City’s fraud claims were initiated and other actions were taken

       merely for the purpose of harassing or maliciously injuring Triton and

       Mr. Samarghandi, or for another improper purpose; and/or, upon

       information and belief, the City’s fraud claims consist of allegations or

       other factual contentions that have no evidentiary support or are not

       likely to have evidentiary support after a reasonable opportunity for

       further investigation or discovery.

The city withdrew its fraud claim as part of a settlement of some issues immediately

before trial.

       {¶81} R.C. 2323.51(B)(1) provides that “at any time not more than thirty days

after the entry of final judgment in a civil action or appeal, any party adversely

affected by frivolous conduct may file a motion for an award of attorney costs,

reasonable attorney’s fees, and other reasonable expenses incurred in connection

with the civil action or appeal.”




                                             26
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶82} A split of authority exists as to the proper procedure to raise a claim of

frivolous conduct. Some courts have held that a request for sanctions under R.C.

2323.51 must be made by motion after the trial and some have held that it may be

made by counterclaim as well as by motion.           See Scheel v. Rock Ohio Caesars

Cleveland, LLC, 8th Dist. Cuyahoga No. 105037, 2017-Ohio-7174, ¶ 16; Craine v.

ABM Serv., Inc., 11th Dist. Portage No. 2011-P-0028, 2011-Ohio-5710, ¶ 10; Shaver

v. Wolske & Blue, 138 Ohio App.3d 653, 673, 742 N.E.2d 164 (10th Dist.2000).

       {¶83} The trial court held that a claim for frivolous conduct must be raised

by motion rather than in a counterclaim. Nevertheless, Triton was not foreclosed

from relief. The court stated:

       However, until the Supreme Court resolves the conflicting case law the

       Court finds that the claim is not entirely waived under Ohio law.

       Therefore, to the extent that the City's motion wishes this Court to find

       as matter of law that the claim is forever extinguished, the City’s

       motion is denied. The Court does find that the claim is premature and

       should be completely separated from the upcoming jury trial * * *. The

       Court finds that if Triton would like to pursue this claim it should be

       restyled as a motion and filed after trial.

       {¶84} Triton never filed that motion. The final judgment entry stated that in

accordance with the court's previous entry, “judgment is entered in the City’s favor

and against Triton dismissing without prejudice Triton’s counterclaim of frivolous

conduct.”   Since we have remanded the matter for a new trial, Triton is not

foreclosed from raising the issue again in the trial court. We need not issue an

advisory opinion on this issue. Therefore, we find the issue to be moot, and we

decline to address it. See Schwab v. Lattimore, 166 Ohio App.3d 12, 2006-Ohio-




                                           27
                     OHIO FIRST DISTRICT COURT OF APPEALS



1372, 848 N.E.2d 912, ¶ 10 (1st Dist.); In re Bailey, 1st Dist. Hamilton Nos. C-040014

and C-040479, 2005-Ohio-3039, ¶ 9.

       {¶85} In sum, we sustain Triton’s first, second, third and eighth assignments

of error and we remand the cause to the trial court for a new trial on Triton’s

differing-site-conditions claim. We find Triton’s sixth assignment of error to be

moot, and we decline to address it.         Finally, we overrule Triton’s remaining

assignments of error, and we affirm the trial court’s judgment in all other respects.

                   Judgment affirmed in part, reversed in part, and cause remanded.



M YERS , P.J., and C ROUSE , J., concur.


Please note:
       The court has recorded its own entry this date.




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