COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70168 : ACCELERATED DOCKET STANLEY A. MEISEL : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION RAYMOND BUILDT : : Defendant-Appellee : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 17, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 280,193 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellant: MICHAEL D. GOLER MATTHEW J. MORELLI Attorneys at Law 100 Erieview Plaza, 27th Floor Cleveland, Ohio 44114-1824 For defendant-appellee: RAYMOND BUILDT, pro se 2111 East 40th Street Cleveland, Ohio 44103 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs of the parties. Plaintiff-appellant Stanley A. Meisel ("appellant") appeals the trial court's order awarding him $6,500 as contract damages against defendant-appellee Raymond Buildt ("appellee"). Specifi- cally, appellant contends that he is entitled to an award of 1 damages in the amount of $179,125.26. 2 The facts relevant to this appeal are as follows: On June 28, 1994, appellant contracted with appellee for the removal of underground storage tanks located on property owned by appellant. The contract was a standard construction contract utilized by appellant which incorporated appellee's quotation for the re- quested work. By its express terms, the contract was for the removal of "Two (2) 6,000-8,000 Underground Storage Tanks 1 This figure represents $75,873.26 in compensatory damages, of which $19,426.13 represents lost profits, $100,000 punitive damages and $3,252 attorney fees. 2 As appellee failed to file a brief in this appeal, App.R. 18(C) gives this court discretion to accept appellant's version of the facts. Upon review of the record, we find appellant's version to be factually inaccurate and, therefore, decline to do so. - 3 - containing Gasoline" at a total cost of $8,675.00. The quoted price included not only the removal of the two tanks but a soil sample analysis by a professional geologist, laboratory analysis of those samples and a written closure report satisfying the Bureau of Underground Storage Tank Regulations ("BUSTR"). Work that would be provided at an additional cost included, inter alia, the excavation, transportation and disposal of the 3 contaminated soil as well as backfilling with clean soil. The contract further provided that all work would be performed by employees trained and certified in underground tank removal in accordance with R.C. 3737.88(A), as well as the applicable provisions of the Occupa-tional Safety and Health Act and the Resource Conservation and Recovery Act, and that all work would be performed prior to July 8, 1994. According to appellant, he had intended to lease the property to Jay Pontiac upon completion of the contract. Appellee commenced work on the contract, removing the two tanks and filling the excavated site with backfill, for which appellant made a payment of $6,500.00. Thinking that the work was just about complete, appellant forwarded a check for $3,000 as final payment. Attempts to contact appellee regarding the closure documents were unsuccessful, so appellant contacted Patrick Gillespie ("Gillespie"), a BUSTR-certified contractor 3 Specifically, the excavation, transportation and disposal of the contaminated soil was quoted as an additional $44 per ton while the clean backfill was quoted at an additional $12.75 per ton. - 4 - whom appellee represented as his subcontractor. Learning that Gillespie had not contracted with appellee, appellant stopped payment on the $3,000 check and demanded an explanation from appellee. When none was forthcoming and appellee failed to supply the closure documents as provided in the contract, appellant contracted with other contractors, one of whom was Gillespie, to complete the contract. Gillespie determined that the soil that appellee had used to backfill the excavated site was not clean backfill but the same contaminated soil originally excavated. Consequently, appellant had to have the contaminated soil removed, disposed of and refilled with clean soil at a cost in excess of $22,000.00. A repeat soil analysis revealed that the soil remained contaminated. At this time, it was learned that one tank remained underground, necessitating Gillespie to return to the site to again excavate the property and remove the third tank at a cost in excess of $27,000.00. Once this was completed, BUSTR required no further action on the property, and appellant subsequently entered into a lease agreement with Jay Pontiac on January 30, 1995. While this work was being completed, appellant, on November 14, 1994, filed a complaint against appellee alleging breach of contract, breach of express warranty, fraud and negligence. Appellee appeared pro se. A bench trial was had on September 21, 1995, for which appellee failed to appear despite proper notice. Trial proceeded with appellant presenting the testimony of two - 5 - witnesses. Thereafter, the trial court entered the following verdict: Trial by judge verdict is as follows: Ver- dict for the plaintiff for $6,500.00 for breach of contract. Any further damage award is uncalled for based on plaintiff's unrea- sonable expectations and his own negligence. Other contractors charged over $50,000.00 to do the same job that plaintiff expected de- fendant to fulfill for $9,000.00. Appellant timely appeals and assigns the following errors for our review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF MEISEL BY ONLY AWARDING $6,500.00 IN DAMAGES. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF MEISEL IN NOT AWARDING PUNITIVE DAM- AGES. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF MEISEL BY FAILING TO AWARD HIS ATTOR- NEYS' FEES. I. A. Appellant contends that the trial court used an improper measure of damages in awarding him $6,500, maintaining that the damages awarded fail to put him in as a good a position as he would have been had appellee fully performed the contract. Spe- cifically, appellant argues that he is entitled to be reimbursed for the funds expended to have the contract completed as well as to be compensated for rental income lost as a result of appel- lee's breach. - 6 - Although not precisely articulated, appellant appears to challenge the trial court's monetary award as being contrary to law and against the manifest weight of the evidence. With this in mind, judgments supported by some competent, credible evidence going to all essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 280. When a contract is breached, the nonbreaching party may re- cover either his expectancy or the benefits he has conferred upon the breaching party. Yurchak v. Jack Boiman Constr. Co. (1981), 3 Ohio App.3d 15, 16. Appellant has chosen to pursue recovery of his expectation interest, which is his interest in having the benefit of the bargain by being put in as good a position as he would have been in had the contract been performed. Restatement of the Law 2d, Contracts (1981) 102-103, Remedies, Section 344. See, also, F. Enterprises v. Kentucky Fried Chicken Corp. (1976), 47 Ohio St.2d 154, 159; Garofalo v. Chicago Title Ins. Co. (1995), 104 Ohio App.3d 95, 108; Homes by Calkins, Inc. v. Fisher (1993), 92 Ohio App.3d 262, 270; Brads v. First Baptist Church (1993), 89 Ohio App.3d 328, 339. Thus, appellant is correct in asserting that the proper measure of damages is that which places him in the position he would have been in had appellee not breached the contract. A party's expectation interest, however, represents the actual worth of the contract to him. Restatement, supra at 104, - 7 - Comment b. In this case, appellant maintains that the contract required appellee to remove all the underground storage tanks; excavate, transport and dispose of the contaminated soil; back- fill with clean soil; and provide BUSTR clearance. Appellant further contends that this was all to be done at a cost of $8,675.00. To the contrary, the contract clearly calls for the removal of two tanks, not three as appellant argues. Indeed, appellant alleges in his complaint that he "sought to remove two under- ground gas storage tanks." Thus, it was the understanding of the parties at the time of the contract that two tanks existed which required removal. Moreover, a plain reading of the contract com- pels this court to find that the contract price did not include the cost of excavating, transporting and disposing of any con- taminated soil. Nor did it include the cost of backfilling the excavated portion with clean backfill. In reality, the contract price of $8,675 merely included the removal of two tanks, soil sample analysis and a written closure report sufficient to obtain BUSTR clearance. Appellant makes a disingenuous, if not entirely deceptive, attempt to have this court believe that the contract between the parties required appellee to be responsible for work that clearly was to be provided at an additional cost. In fact, when ques- tioned by the court, Paul D. Pesses ("Pesses"), a witness for appellant, testified as follows: - 8 - COURT: You paid this man, originally the deal was to remove all the tanks and the dirt, or what? WITNESS: Yes. COURT: All for $8,000? WITNESS: Well, the original -- COURT: That was your contract, $8,675.00. WITNESS: Yes. There was a variable based upon the volume, in the contract. We are mindful of the fact that appellee did not appear at the trial of this action and therefore presented no testimony in his defense; however, appellant cannot recover on the weakness or, by implication, the lack of the testimony by the defense but only upon the strength of his own proof. Kinetico, Inc. v. Inde- pendent Ohio Nail Co. (1984), 19 Ohio App.3d 26, 30. As such, appellant's recovery is limited to the loss actually suffered by reason of the breach, and he is not entitled to be placed in a better position than he would have been in had the breach not occurred. Henderson v. Spring Run Allotment (1994), 99 Ohio App.3d 633, 645; Brads v. First Baptist Church, supra, at 339. In this case, appellant is attempting to be placed in a position better than that in which he would have been in the absence of appellee's breach. By attempting to recover from appellee monies expended for the removal and disposal of the con- taminated soil as well as for the cost of clean fill, appellant is making a perfidious attempt to circumvent the plain meaning of the contract by making appellee responsible for costs that appel- - 9 - lant would have been required to pay above and beyond the $8,675 base contract price. Thus, the trial court applied the proper measure of damages and did not err in "failing to award" appel- lant damages that were meant to reimburse him for expenses not within the contemplation of the parties at the time of the con- tract's execution. Moreover, appellant concedes that he received some benefit from appellee's partial performance in that appellee did remove two tanks. Notwithstanding, the base contract price not only called for the removal of these tanks but for a soil sample analysis and a closure report as well. It can be ascertained from the record that the soil sample analysis was not likely performed nor was the closure report ever obtained. When ques- tioned by the court of the value of the removal of the tanks, Pesses testified as follows: COURT: What do you think the removal of the tanks is worth? WITNESS: I can't honestly give you a correct number. I wouldn't know. COURT: You wouldn't even have a vague num- ber, an estimate? WITNESS: I would say probably somewhere around three, four or five thousand dollars. When asked what the subsequent contractor charged for the removal of the one tank that was found to be remaining under- ground, Pesses's testimony was that appellant was charged $27,000, which not only included the removal of the tank but the - 10 - soil excavation and disposal as well. Thus, the trial court con- sidered not only the estimate of the value proffered by Pesses but also the cost charged by a subsequent contractor for essen- tially the same work. The weight to be given the evidence and the credibility of witnesses are primarily for the factfinder. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. We find that, based upon the evidence presented, there is some competent, credible evi- dence from which the trial court could properly base an award of damages. B. Appellant also challenges the trial court's denial of dam- ages for lost profits. Appellant argues that had appellee fully performed the contract, he would have been able to lease the pro- perty as intended to his prospective tenant, Jay Pontiac, by Sep- tember 1, 1994. Appellant further argues that, as a result of appellee's breach, he was forced to hire substitute contractors, who eventually were able to complete the contract and obtain the necessary closure report so that the appellant and Jay Pontiac could execute a lease agreement. Because this lease agreement was not executed until January 30, 1995, appellant maintains that he lost six months of rental income at $3,000 per month and the payment of real estate taxes in the amount of $1,440, for a total lost profit of $19,440.00. The general test in the State of Ohio for the recovery of lost profits is set forth in Charles R. Combs Trucking, Inc. v. - 11 - Internatl. Harvester Co. (1984), 12 Ohio St.3d 241, at paragraph two of the syllabus: Lost profits may be recovered by the plain- tiff in a breach of contract action if: (1) profits were within the contempla- tion of the parties at the time the con- tract was made, (2) the loss of profits is the probable result of the breach of contract, and (3) the profits are not remote and spec- ulative and may be shown with reasonable certainty. See, also, AGF, Inc. v. Great Lakes Heat Treating Co. (1990), 51 Ohio St.3d 177; Gahanna v. Eastgate Properties, Inc. (1988), 36 Ohio St.3d 65. Even if we were to accept that, at the time of the execution of the contract, appellee was aware of appellant's intention to lease the property upon completion of the contract, appellant is unable to satisfy the second and third prongs of the test set forth in Combs. Appellee's contract required the removal of two, not three, underground storage tanks. The fact that a third tank remained underground was apparently not known to appellant at the time of the execution of the contract and, consequently, was not part of the bargain. This eventual delay, combined with other delays 4 acknowledged by appellant , cannot support a finding that the 4 At trial, appellant introduced a letter addressed to appel- lee wherein he indicated that appellant was aware "of certain matters which apparently caused a delay by approximately 30-40 (continued...) - 12 - reason for appellant's loss of rental income was solely the result of appellee's breach. Thus, appellant is not able to satisfy the second prong of Combs. Proof of lost profits must be reasonably certain and not speculative. Kinetico, Inc. v. Independent Ohio Nail Co., supra, at 30. A review of the record reveals that preliminary negotia- tions with Jay Pontiac had taken place sometime prior to the exe- cution of the contract with appellee. The substance of these negotiations was reduced to letter form, which was admitted at trial and stated that the anticipated lease was contingent upon, inter alia, the removal of the underground storage tanks and an inspection of the property by Jay Pontiac. Pesses's testimony likewise confirmed that appellant wanted the work done as soon as possible "because of the pending lease." This evidence confirms that profits were contingent upon variables not solely dependent upon appellee's performance of the contract. Anticipated profits that are contingent upon the occurrence of other events are speculative in nature and there- fore incapable of being ascertained with reasonable certainty. See Seely v. State (1842), 11 Ohio 501, syllabus. See, also, Rhodes v. Baird (1866), 16 Ohio St. 573, 581-582. Moreover, at the time of the execution of the contract, there was no lease agreement between appellant and Jay Pontiac. 4 (...continued) days. Notwithstanding these excuses, we strongly believe that all work should have been completed well before to [sic] August 15, 1994 (as an absolute outside date)." - 13 - The only evidence of any anticipated lease was the testimony of Pesses, who testified that the property was to be leased to Jay Pontiac for $3,000 per month as soon as the underground storage tanks were removed. The correspondence referenced previously only evidences the fact that preliminary negotiations had taken place and that a lease would be finalized upon agreement of the parties. There must be more than a conclusory statement as to the amount of lost profits. Kinetico, Inc. v. Independent Ohio Nail Co., supra, at 30. "More is required of the plaintiff than mere- ly his assertion *** that he would have made a particular amount in profits. Unless the figure is substantiated by calculations based on facts available or in evidence, the courts will properly reject it as speculative or uncertain." Id. Appellant's bare assertion of lost profits is speculative and fails to satisfy the requirements of reasonable certainty. We conclude that the trial court had competent, credible evidence from which to reject an award of damages based on appel- lant's claim for lost profits. Accordingly, appellant's first assignment of error is over- ruled. II. & III. As appellant's second and third assignment of errors are dependent upon each other, they will be discussed together. - 14 - Appellant contends that the trial court erred in refusing to award punitive damages and concomitant attorney fees. Specifi- cally, appellant claims he was successful on his claim for fraud and has, therefore, demonstrated the requisite malice necessary to support an award of punitive damages. Appellant's argument is without merit. First and foremost, it cannot be ascertained from the judg- ment of the trial court that appellant was successful on his claim for fraud. The court's decision is silent as to this issue, and appellant made no request for findings of fact and conclusions of law pursuant to Civ.R. 52 that could assist this court in so re-viewing. Consequently, appellant's reliance on this supposition as support for his claim for punitive damages is unwarranted. As a general rule, irrespective of the motive of a defendant and regardless of how willful the breach, an action for breach of contract does not allow an award of punitive damages. Digital & Analog Design Corp. v. North Supply Co. (1989), 44 Ohio St.3d 36, 45-46; Ketchum v. Miller (1922), 104 Ohio St. 372, paragraph two of the syllabus; Spaulding v. Coulson (1995), 104 Ohio App.3d 62, 78. Without an award of punitive damages, there can be no award for attorney fees. Digital & Analog Design Corp. v. North Supply Co., supra, at 662. See, also, Hutchinson v. J.C. Penney Cas. Ins. Co. (1985), 17 Ohio St.3d 195. An exception exists, however, when the actions constituting the breach of contract also comprise an independent, willful - 15 - tort. If the necessary element of malice is present, punitive damages may be recovered. Saberton v. Greenwald (1946), 146 Ohio St. 414, 426; Goldfarb v. The Robb Report, Inc. (1995), 101 Ohio App.3d 134, 140; Ali v. Jefferson Ins. Co. (1982), 5 Ohio App.3d 105, 107. Actual malice sufficient to support an award of punitive damages consists of (1) a state of mind under which a person's conduct is characterized by hatred, ill will or spirit of revenge or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. Preston v. Murty (1987), 32 Ohio St.3d 334, 336. See, also, Spaulding v. Coulson, supra, at 78. Appellant contends that appellee's conduct was malicious in that appellee lied and misrepresented his qualifications and those of his staff. Furthermore, appellant maintains that appel- lee "stole" the certification of Gillespie, his competitor, attempting to deceive appellant that it was appellee's certifica- tion. While certainly not admirable conduct, appellant has not demonstrated that fraud, in and of itself, is a sufficient basis for a finding of malice. There is no evidence to support that appellee's conduct was characterized by hatred, ill will or ven- geance. Nor was it demonstrated that appellee consciously disre- garded the rights and safety of others that, in all probability, would cause substantial harm. Therefore, competent, credible - 16 - evidence existed from which the trial court could determine that punitive damages and attorney fees were not warranted. Accordingly, appellant's second and third assignments of error are overruled. This cause is affirmed. It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, PRESIDING JUDGE SARA J. HARPER, JUDGE TIMOTHY E. McMONAGLE, JUDGE - 17 - N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .