COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72944 AMERICAN ROCK MECHANICS, INC., : et al. : : JOURNAL ENTRY Plaintiff-Appellees : : AND vs. : : OPINION PAUL A. STRADTMAN CONSTRUCTION, : INC., et al. : : Defendant-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-311705 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellees: MARK F. KRUSE GREGORY J. OCHOCKI McInryre, Kahn, Kruse & Gillombardo Co., L.P.A. 1301 East Ninth Street Suite 1200 Cleveland, Ohio 44114 For Defendant-Appellants: JOHN C. BRICE Andrews & Associates 4403 St. Clair Avenue Cleveland, Ohio 44103-1128 ROBERT J. ANDREWS, JR. Andrews & Associates 8138 Main Street Garrettsville, Ohio 44231 -2- JUDGE TERRENCE O'DONNELL: Paul A. Stradtman Construction, Inc. appeals from a decision of the common pleas court denying its motions for a new trial and judgment notwithstanding the verdict following a $145,900 jury verdict in favor of American Rock Mechanics and an $18,300 verdict in favor of Walter & Associates, subcontractors who prevailed on their claims against Stradtman for breach of contract and unjust enrichment in connection with a contract to excavate a 3,700 ft. sewer trench thirty feet deep along Bagley Road to tie into a project known as the Olmsted Falls Connector. After a thorough review of the record and the law, we affirm the judgment of the trial court. Pursuant to a June 27, 1995 written proposal accepted by Stradtman, Edward Walter, through companies he owned, agreed on behalf of American Rock to loosen one hundred lineal feet of ground per day by setting dynamite charges and further agreed on behalf of Walter & Associates to provide a seismic technician to monitor the blasting. Stradtman orally advised American Rock it would remove any ground water at its own expense, and installed a water pump for this purpose. Based on this agreement, Stradtman submitted the lowest bid for the project and the Northeast Ohio Regional Sewer District awarded it the contract to perform the work. Thereafter, American Rock began the project but encountered difficulties in drilling and blasting because of excessive ground water. It notified Stradtman of the need for more effective de- watering, but Stradtman made no additional efforts to resolve the -3- problem. Accordingly, during the following three months, American Rock continued to experience difficulties and repeatedly notified Stradtman, but no further de-watering efforts were made. On March 8, 1996, after American Rock had loosened only about 550 lineal feet of ground, Stradtman terminated its contract with both American Rock and Walter & Associates and refused to pay for the work either company had performed. As a result, American Rock and Walter & Associates sued Stradtman for breach of contract and, in response, Stradtman counterclaimed for misrepresentation and wrongful attachment of funds intended for payment to Stradtman. The court conducted a jury trial and at the close of the case denied Stradtman's request for a jury instruction that the contract provision requiring it to de-water the ground at American Rock's request constituted a condition precedent. The jury, following deliberation, returned verdicts in favor of American Rock for $145,900, and in favor of Walter & Associates for $18,300; subsequently, Stradtman moved for a new trial and for judgment notwithstanding the verdict, but the court denied both motions. It is from the court's denial of these motions that Stradtman now appeals, raising two assignments of error for our review: I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR NEW TRIAL. Stradtman contends the court should have granted its motions -4- for new trial and/or judgment notwithstanding the verdict urging error in refusing to instruct the jury that the de-watering provision contained in the contract constituted a condition precedent; that the American Rock verdict is excessive and against the manifest weight of the evidence; and, that the judgment is contrary to law. The applicable standards of review for this appeal are well settled. In Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, the Supreme Court stated in relevant part at 275: The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions. McNees v. Cincinnati Street Ry. Co. (1949), 152 Ohio St. 269; Ayers v. Woodard (1957), 166 Ohio St. 138; Civ.R. 50(A) and (B). And in Berkey v. Senn (1989), 65 Ohio App.3d 288, the court stated in pertinent part at 291: The granting or refusing of a motion for a new trial rests largely within the sound discretion of the trial court and that court's ruling on such motion shall not be disturbed by an appellate court absent a showing that the trial court abused its discretion. Steiner v. Custer (1940), 137 Ohio St. 448, 19 O.O. 148, 31 N.E.2d 855; Yungwirth v. McAvoy (1972), 32 Ohio St.2d 285, 61 O.O.2d 504, 291 N.E.2d 739. The term abuse of discretion -5- encompasses more than just an error of law or judgment, but requires that the trial court's action or attitude was unreasonable, arbitrary or unconscionable. Steiner, supra. Stradtman first urges the court erred in refusing to charge the jury concerning a condition precedent. We observe that in Mumaw v. The Western & Southern Life Ins. Co. (1917), 97 Ohio St. 1, the court explained a condition precedent stating at 11: There is general agreement in the definition that a condition precedent is one that is to be performed before the agreement becomes effective. It calls for the happening of some event, or the performance of some act, after the terms of the contract have been agreed on, before the contract shall be binding on the parties. Here, as part of the contract, the parties agreed that Stradtman would de-water the ground at its own expense if American Rock expressed the need for such de-watering. The record reflects that American Rock made such requests, but Stradtman made no efforts other than to install one pump. The obligation to notify Stradtman of the need for de-watering is not in this case a condition precedent to the contract formation, and does not, therefore, impose a duty on the trial court to charge the jury on that issue in this case. Thus, the trial court did not abuse its discretion in refusing to charge the jury as Stradtman requested. Next Stradtman claims the damage award to American Rock is excessive and against the manifest weight of the evidence. It claims that because American Rock only blasted a total of 550 lineal feet, its maximum entitlement at the $98.70 contract amount per lineal foot blasted should have been $54,285.00. -6- Here, however, American Rock sought recovery of lost profits. In Charles R. Combs Trucking, Inc. v. International Harvester Co. (1984), 12 Ohio St.3d 241, the Supreme Court stated in its syllabus: 2. Lost profits may be recovered by the plaintiff in a breach of contract action if: (1) profits were within the contemplation of the parties at the time the contract was made, (2) the loss of profits is the probable result of the breach of contract, and (3) the profits are not remote and speculative and may be shown with reasonable certainty. At trial, Edward Walter testified that American Rock expected profits of $243,193.95 in connection with completion of the entire project, based upon his agreed contract price of $98.70/lineal foot of drilling for 3,704 feet and estimated costs of $122,390.85. He also testified that American Rock incurred expenses on the project of $51,525.88 in doing the work on the 550 feet of sewer trench it had completed. A judgment supported by competent, credible evidence going to all the material elements of the case must not be reversed as being against the manifest weight of the evidence. See Cent. Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d 581. Based upon the evidence and the applicable law, the total jury verdict awarding $145,900.00 to American Rock is neither excessive nor against the manifest weight of the evidence. Finally, Stradtman argues that because American Rock never presented any evidence to demonstrate it had informed Stradtman that de-watering on the project was necessary, Stradtman did not breach the contract and, therefore, the verdict returned against it -7- is contrary to law. Examination of the record in this case reveals, however, that Larry Norman, Stradtman's project foreman, testified at page 340 of the transcript: *** they started asking and telling us that we had to do something with the water ***. This admission contradicts Stradtman's allegation and permits the jury to conclude Stradtman breached the contract. Accordingly, we cannot conclude that the jury verdict is contrary to law. Thus, after construing the evidence most strongly in favor of American Rock and Walter & Associates, we conclude the trial court neither erred in denying Stradtman's motion for judgment notwithstanding the verdict, nor abused its discretion in denying its motion for new trial. Accordingly, we decline to disturb that ruling. Judgment affirmed. -8- It is ordered that appellee(s) recover of appellant(s) 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 Common Pleas Court 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 M. PORTER, P.J. and JOHN T. PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL 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 of decision by the .