TESAR INDUSTRIAL CONTRACTORS, INC. Appellee/Cross-Appellant
REPUBLIC STEEL Appellant/Cross-Appellee
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 13CIV181984
H. BERGERON, LAUREN S. KULEY, and LARISA M. VAYSMAN,
Attorneys at Law, for Appellant/Cross-Appellee.
R. REMINGTON, JEFFREY A. BRAUER, MATTHEW D. WARTKO, and
CHRISTOPHER W. ST. MARIE, Attorneys at Law, for
DECISION AND JOURNAL ENTRY
A. SCHAFER JUDGE.
Appellant/Cross-Appellee, Republic Steel, appeals the
judgment of the Lorain County Court of Common Pleas.
Additionally, Appellee/Cross-Appellant, Tesar Industrial
Contractors, Inc., appeals from the trial court's
judgment. For the reasons set forth below, this Court
In 2012, Republic initiated a project to construct an
electronic arc furnace at Republic's facility in Lorain,
Ohio. The project involved several components, including the
erection of supporting and surrounding structures. Republic
solicited bids for the project, which required multiple
contractors to perform different and overlapping portions.
Tesar submitted an initial bid of $5, 482, 495.00 to perform
work on the project as a structural contractor for the
exhaust system. After some negotiation, Tesar submitted a
reduced proposal to Republic on March 22, 2013, with a quote
of $4, 830, 000.00 to perform its portion of work on the
project. Republic accepted Tesar's bid, and issued a
purchase order dated March 27, 2013, resulting in the
parties' original contract.
The project fell significantly behind schedule and costs
began to mount. Republic faulted Tesar's mismanagement
for these issues, but Republic also acknowledged that it had
some degree of responsibility for initial delays on the
project and recognized that unforeseen difficulties had led
to some cost overruns. Both Republic and Tesar desired to
push forward and complete the project quickly, so the parties
began to negotiate a revised contract.
Tesar, then in a position to appreciate the scope of the
remaining work, submitted a proposal to complete the project.
The parties entered into their revised contract when Republic
accepted Tesar's proposal and issued a purchase order on
August 20, 2013, authorizing payment to Tesar in an amount
not to exceed $3, 712, 701.20 for the scope of work described
therein. This purchase order also specified that, if any
additional work should be required, Republic must issue a
revision to the purchase order prior to the work being
Once again, the work on the project strayed off course both
in terms of time and costs. Republic accused Tesar of
persistent performance failures and failure to abide by
Republic's policies. Tesar blamed Republic for the delay
and increased costs, citing Republic's overall failure to
adequately manage the project and attempts to cut corners.
Tesar contends that Republic's project manager, Mark
Qualls, began to directly manage the project on a time and
materials basis. Further, Tesar claims that Mr. Qualls began
verbally instructing Tesar to perform additional work and
"out of scope" work prior to obtaining additional
purchase orders with assurances of payment. Ultimately,
Republic determined that Tesar could not credibly guarantee
completion of the project, so it terminated Tesar and
obtained another contractor to complete the work.
Tesar filed suit against Republic in November of 2013,
alleging that Republic breached the parties' original
agreement from March of 2013, the parties' revised
agreement from August of 2013, and agreements for "out
of scope" work that Republic directed Tesar to perform
in addition to the scope of work described in the original
and revised agreements. Tesar also asserted claims for
fraudulent inducement and unjust enrichment. Republic
answered Tesar's complaint, and filed a counterclaim
alleging three causes of action, including a claim that Tesar
breached the original and revised contracts. Republic also
asserted a claim for declaratory judgment and a claim of
The matter proceeded to a jury trial. At the close of
Tesar's case, the court granted Republic's motion for
directed verdict, disposing of Tesar's claim for fraud in
the inducement. After fourteen days of trial, the remaining
claims were submitted to the jury. The jury returned a
verdict in favor of Tesar on its breach of contract claim,
awarding $3, 078, 000.00 in damages, and a verdict in favor
of Tesar on its claim of unjust enrichment and awarded
damages in the amount of $462, 128.00, for a total damage
award of $3, 540, 128.00. As to Republic's counterclaims
for breach of contract and unjust enrichment, the jury found
in favor of Tesar and entered verdicts against Republic on
both claims. The jury's resolution of these claims
rendered moot, and thereby effectively disposed of,
Republic's claim for declaratory judgment. On January 29,
2016, the trial court entered judgment accordingly.
Thereafter, Republic filed post-trial motions for judgment
notwithstanding the verdict, a new trial, or remittitur. The
trial court denied these motions in its April 28, 2016
journal entry. On May 26, 2016, Republic appealed the trial
court's judgment denying the post-trial motions. Tesar
filed a cross-appeal on June 6, 2016. Initially, the
cross-appeal was docketed separately, but the matters have
been consolidated. Republic raises three assignments of error
for our review, while Tesar raises one assignment of error in
its cross-appeal. For ease of analysis, we consider the
assignments out of order.
Assignment of Error II
trial court erred by not granting Republic a new trial on the
breach of contract claim because the jury was not correctly
instructed on the contract duties.
In its second assignment of error, Republic argues that it is
entitled to a new trial because it is error to instruct a
jury as to the breach of duties not presented in a contract,
and to instruct the jury that they may find a breach based on
such nonexistent duties. Specifically, Republic claims that
the court erred by including in the instructions an
"enumerated list of actions[, ]" or purported
breaches, which Tesar failed to tie back to a contractual
duty. Republic claims to have objected to the format of the
instructions enumerating alleged breaches and, further, that
it objected specifically to instructing the jury on duties
that did not exist in the contract.
Civ.R. 59(A) provides multiple grounds upon which a party may
base a motion for a new trial and, depending on the basis
stated in the motion, "this Court will review a trial
court's decision to grant or deny the motion under either
a de novo or an abuse of discretion standard of review."
Jackovic v. Webb, 9th Dist. Summit No. 26555,
2013-Ohio-2520, ¶ 17. Republic contends that, because
its "new trial motion was based on a question of law,
" this Court must apply a de novo standard of review.
Obscuring the issues, however, Republic only cited generally
to Civ.R. 59(A) in the portions of its motion for a new trial
based on the alleged error in the jury instructions.
On appeal, as in its motion for a new trial, Republic has
failed to designate any particular Civ.R. 59(A) grounds as a
basis for this argument. Additionally, Republic made "no
attempt to explain why or how Civ.R. 59(A)'s particular
components apply to any of its arguments." Ulrich v.
Mercedes Benz USA, LLC, 187 Ohio App.3d 154,
2010-Ohio-348, ¶ 27 (9th Dist). The catch-all provision
of Civ.R. 59(A), which permits a new trial to "be
granted in the sound discretion of the court for good cause
shown, " is the only clearly applicable provision, and
so we review for abuse of discretion. Jenkins v.
Krieger, 67 Ohio St. 2d 314, 320 (1981). In relation to
the disposition of a motion for a new trial, abuse of
discretion entails an unreasonable, arbitrary, or
unconscionable attitude upon the part of the court."
J.A. Berk & Assocs. v. Levin, 9th Dist. Lorain
C.A. No. 01CA007943, 2002-Ohio-3182, ¶ 20, quoting
Poske v. Mergl, 169 Ohio St. 70, 75 (1959).
Generally, it is within the trial court's sound
discretion to determine how to instruct the jury. Nist v.
Mitchell, 9th Dist. Summit No. 27160, 2015-Ohio-4032,
¶ 27. When examining errors in jury instructions,
"a reviewing court must consider the jury charge as a
whole and 'must determine whether the jury charge
probably misled the jury in a matter materially affecting the
complaining party's substantial rights.'"
Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93
(1995), quoting Becker v. Lake Cty. Mem. Hosp. W.,
53 Ohio St.3d 202, 208 (1990). "If there is no inherent
prejudice in the inclusion of a particular jury instruction,
prejudice must be affirmatively shown on the face of the
record, and it cannot be presumed." Cromer v.
Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d
257, 2015-Ohio-229, ¶ 35.
Moreover, Civ.R. 51(A) provides that "[o]n appeal, a
party may not assign as error the giving or the failure to
give any instruction unless the party objects before the jury
retires to consider its verdict, stating specifically the
matter objected to and the grounds of the objection."
When a party fails to object to a jury instruction as
required by Civ.R. 51(A), our review is limited to plain
error. Kitson v. Gordon Food Serv., 9th Dist. Medina
No. 15CA0078-M, 2016-Ohio-7079, ¶ 10, citing
Yungwirth v. McAvoy, 32 Ohio St.2d 285, 288 (1972).
The civil plain error doctrine is a "very high
standard[.]" Perez v. Falls Fin., 87 Ohio St.3d
371, 375 (2000). "[T]he plain error doctrine is not
favored and may be applied only in the extremely rare case
involving exceptional circumstances where error, to which no
objection was made at the trial court, seriously affects the
basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the
underlying judicial process itself." Goldfuss v.
Davidson, 79 Ohio St.3d 116, (1997) syllabus.
Enumeration of Alleged Breaches
In its brief, and in its motion for a new trial below,
Republic avers that it objected to providing the jury with
any instruction enumerating alleged breaches of contract. The
record, however, belies Republic's claim that it objected
to the form of the jury instructions the court gave
for breach of contract. During the jury instruction
conference, Republic did express some concern by stating
counsel's uncertainty as to whether some of the alleged
breaches were "obligations under the contract."
However, this comment was in the context of the parties'
ongoing discussion as to the appropriate way to instruct the
jury on this particular matter and Republic stopped short of
specifically objecting to an instruction enumerating alleged
breaches. Regarding the list of alleged breaches, Republic
informed the trial judge that it was "okay removing it
all to make it more simple and not confuse the jury, "
but that if Tesar was going to include a list of alleged
breaches, Republic wanted to "reciprocate" and have
its alleged breaches "listed the same way."
After closing arguments the trial judge instructed the jury,
in pertinent part:
[F]or the claim of the breach of contract, before you can
find for Tesar they have to prove by a preponderance of the
evidence [A, ] that Tesar and Republic entered into one or
more contracts; [B, ] that Republic breached the contract or
contracts by, and I'm going to list a number of things
which Tesar claims was a breach.
trial court listed the following alleged breaches:
a. failing to timely provide materials to Tesar;
b. providing Tesar with damaged or defective materials;
c. failing to provide materials to Tesar in a manner
consistent with industry standards;
d. failing to provide timely and/or accurate design
information, including drawings and specifications, for
Tesar's labor, work, and/or services;
e. failing to timely provide erection drawings to Tesar
and/or, in other cases, failing to provide any erection
drawings to Tesar;
f failing to coordinate the labor, work, and/or services of
other contractors or persons for whom Republic was
g. directing the means and methods of Tesar's labor,
work, or services;
h. directing cardinal changes to Tesar and Republic's
agreed-to scope of work without the issuance of a purchase
i. failing to compensate Tesar for labor, work, services,
material, and equipment provided by Tesar to Republic.
judge further instructed: "[s]o those are a list of
potential ones. However, even if they prove that those were
breaches, you have, Tesar has to prove that such a breach was