COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73965 W & W DEVELOPMENT COMPANY : : JOURNAL ENTRY PLAINTIFF-APPELLEE : v. : AND : DONALD O. HEDRICK, ET AL. : OPINION : DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: APRIL 15, 1999 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-299288. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Steven B. Potter, Esq. Robert R. Lucarelli, Esq. Dinn, Hochman & Potter, P.L.L. 5885 Landerbrook Drive Suite 205 Cleveland, OH 44124 For Defendants-Appellants: Robert J. Valerian Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A. 2600 Tower at Erieview Cleveland, OH 44114-1824 -2- TIMOTHY E. McMONAGLE, J.: Defendants-Appellants, Donald O. Hedrick and LDC, Inc. dba Land Design Consultants, appeal from a jury verdict of $150,000 in favor of plaintiff-appellee, W & W Development Company, and judgment rendered thereon by the Cuyahoga County Common Pleas Court. For the reasons that follow, we affirm. This lawsuit arose out of engineering services performed with regard to the Thousand Oaks Estates Subdivision ( Thousand Oaks ), a residential subdivision located on Valley View Road in Macedonia, Ohio that was owned and developed by appellee. In August 1993, appellee retained appellants to perform all necessary engineering, design and surveying services concerning improvements for Thousand Oaks. Specifically, appellants were hired to design construction plans, to submit the plans to the necessary reviewing authorities (the City of Macedonia, the Summit County Department of EnvironmentalServices and the City of Cleveland Water Department) and to secure approvals for the plans from the reviewing authorities. On November 30, 1995, appellee filed a complaint against appellants asserting claims for breach of contract and negligence. The gravamen of appellee's complaint was that appellants performed their agreed services in an untimely, unprofessional and non- workmanlike manner, resulting in damages to appellee. Appellants filed a counterclaim for breach of contract and quantum meruit regarding appellee's failure to pay outstanding invoices. -3- The matter proceeded to trial on December 10, 1997.1 Willie Trowsdell, Jr., owner and president of W & W, testified that he had known Donald Hedrick since 1988, when he began working with Hedrick on the Metro Estates II Subdivision, a large residential development located in Oakwood Village. Beginning in 1988 and continuing through the early 1990's, Hedrick provided engineering and surveying services for the Oakwood Village project, on which Trowsdell served as the developer and built over seventy homes. Both Trowsdell and Hedrick testified at trial that the Oakwood Village project was a mutual success. Trowsdell testified that in July 1993, he and Hedrick looked at the parcel of land that would eventually become Thousand Oaks. According to Trowsdell, he wanted Hedrick's comments regarding the feasibility of developing the site to help him determine if he should purchase the property. Trowsdell testified that when he and Hedrick walked the property, Hedrick told him that vehicles entering or exiting the subdivision would have a difficult time determining if another vehicle was coming over the hill on Valley View Road (i.e., a sight distance problem ) but that appellants would take care of it. At Trowsdell's request, in July and August 1993, Hedrick provided preliminary sketches and cost estimates regarding the improvements for the proposed subdivision. According to Trowsdell, in August 1993, during a meeting in Hedrick's office when he and 1 The action was originally tried on August 14, 1997. For reasons unrelated to this appeal, the trial court ordered a mistrial on the second day of trial. -4- Hedrick were reviewing one of the sketches, he and Hedrick entered into an oral agreement whereby appellants agreed to act as the engineer for the Thousand Oaks project. Trowsdell and Hedrick shook hands on the deal. Trowsdell testified that he informed Hedrick during this meeting that he wanted the plans approved and construction of the subdivision improvements to begin by January 1994. According to Trowsdell, Hedrick agreed to this time frame. Trowsdell and Hedrick also agreed that the project would be developed in two phases; the first phase consisting of thirty-one lots. Trowsdell testified that phasing is critical to the organization and timeflow of the construction of any subdivision because it affects the amount of financing a developer can get and when the developer will be able to repay his loans. Trowsdell signed the purchase agreement for the Thousand Oaks property on January 11, 1994. Shortly thereafter, he retained John Calarco, owner of Calarco and Sons Excavating, Inc., as the general contractor on the Thousand Oaks project. Trowsdell testified that his plan was that Calarco, who was acting as the general contractor at the Oakwood Village project, would complete his work there and immediately begin work on Thousand Oaks. In early January 1994, appellants gave Trowsdell a preliminary plat layout for the subdivision. Appellants did not submit anything to the reviewing authorities, however, until August 1994, when they submitted a subdivision plat to the City of Macedonia. Trowsdell testified that during this time lag, he and Calarco -5- barraged appellants with phone calls and office visits, trying to ascertain when the subdivision plat and construction plans would be completed and submitted to the reviewing authorities. Trowsdell testified that, on one occasion, Hedrick apologized to him for the delay and admitted that appellants had put other larger projects ahead of Thousand Oaks. On another occasion, after Hedrick told Trowsdell that it might be better to get another engineer, Trowsdell met with Frank Chorba, owner of LDC, who assured Trowsdell that appellants would get his work done. In October 1994, Trowsdell sent a letter to appellants, informing them that if they could not reach a mutual understanding with regard to the timeliness of appellants' attention to Thousand Oaks, appellee would be forced to terminate its relationship with appellants. Several days later, Hedrick and his boss, Jim Pegoraro, visited Trowsdell at his home. Hedrick and Pegoraro apologized for the delays and assured Trowsdell that there would be no further work delays. They waived their $1500 fee for the subdivision plat and then asked Trowsdell to sign a written agreement regarding appellants' services, and he did. On cross-examination, Trowsdell admitted that pursuant to the agreement, either party could terminate the contract at any time, but appellee was obligated to pay for services rendered to the date of receipt of notice of termination. Trowsdell testified that although the construction plans for Thousand Oaks could have been submitted to the reviewing -6- authorities in August 1994 along with the subdivision plat, appellants did not submit them until November 1994. Unknown to Trowsdell, the plans indicated that the initial construction phase would consist of twenty-three lots, rather than thirty-one lots. Trowsdell testified that appellants devised this initial phasing scheme without any authority or his consent and even though appellants' construction cost estimates, which Trowsdell used to secure bank financing, showed an initial phasing scheme of thirty- one lots. The construction plans submitted by appellants also indicated that the entrance road to the subdivision would be located in the middle of the subdivision at a high point on Valley View Road. On at least four occasions after receiving the plans, Frederick N. Tufts, president of Adache-Ciuni-Lynn Associates, Inc., the city engineer for the City of Macedonia, asked appellants to evaluate and correct the sight distance problem created by the location of the entranceway to Thousand Oaks. In letters dated November 22, 1994, February 16, 1995, March 3, 1995 and April 10, 1995, Tufts asked appellants to rectify the problem. On cross- examination, Hedrick admitted that although it would have taken only a few days to assess the sight distance problem, he never evaluated the problem nor submitted any written response to Tufts. Oleg Petroff, a senior draftsman with the City of Cleveland Water Department, reviewed appellants' plans for Thousand Oaks after they were submitted to the Water Department. He testified that he completed his initial review of the Thousand Oaks plans on -7- November 29, 1994. In December 1994, the Water Department sent a letter to appellants, indicating what changes were necessary before the plans could be approved. On April 28, 1995, after receiving the requested changes from appellants, the Water Department gave its final approval to the plans. Petroff testified that the Water Department, which reviews plans in the order in which they are submitted, approved forty-two other plans while it was waiting for appellants' changes. John Calarco testified that the City of Macedonia let him start excavating at Thousand Oaks in late 1994 even though the construction plans had not been finalized. Calarco stated that Fred Tufts, the city engineer, shut him down at least twelve times in January, February, March and April 1995, however, because the construction plans had not received final approval from the City of Macedonia. Calarco testified that he billed appellee over $127,000 for downtime during this period because he could not remove his equipment from the site and work somewhere else during the shutdowns. Calarco also testified that it is usual and customary for excavators to charge for downtime. Trowsdell testified that he did not become aware that there was a sight distance problem with the entranceway location at Thousand Oaks until early 1995. By that time, the property had been cleared and all of the sanitary sewers and water lines had been installed at Thousand Oaks. Matthew Neff, appellee's expert engineer, testified that if the sight distance problem had been properly identified and addressed by appellants prior to preparing -8- the preliminary plat, as it should have been, the problem could have been easily rectified by adjusting the layout of the subdivision and relocating the entranceway to a different position on Valley View Road. Neff testified that because the improvements had already been installed by the time Trowsdell became aware of the problem, however, it would have been very costly to move the entranceway. Accordingly, the only alternative was to lower Valley View Road by approximately one and one-half feet at the crest of the hill. Trowsdell testified that he took a draw in the amount of $59,400 on his construction loan from Security Federal Savings and Loan to pay for lowering the hill on Valley View Road. According to Trowsdell, he submitted an affidavit to Security Federal stating that the money would be used to pay LDC, but he informed Security Federal that he would actually be using the money to pay for lowering the hill. Keith Kuznicki, contract administrator for Tri Mor Inc., the subcontractor that built the roads at Thousand Oaks, testified that to lower the hill on Valley View Road, Tri Mor had to build a temporary road, and then remove the existing road, lower it and repave it. Kuznicki testified that Tri Mor billed appellee $29,853.80 for its work associated with lowering Valley View Road. Trowsdell testified that because the plans submitted by appellants showed only twenty-three lots in the first phase, the City of Macedonia would allow appellee to install improvements for only twenty-three lots. Because the plans submitted to Security -9- Federal to obtain financing for Thousand Oaks showed thirty-one lots, however, and appellee had secured financing based on those plans, Security Federal required that appellee complete the additional eight lots. Trowsdell testified that this required new approvals from the reviewing agencies. In addition, Calarco and Sons and Tri Mor had to remobilize to complete the remaining eight lots. John Calarco testified that Calarco and Sons billed appellee $34,072.15 for excavating services related to the eight lots and Kuznicki testified that Tri Mor billed appellee $52,117.95 for roadwork associated with the eight lots. Calarco testified that his bill for completing the eight lots was 20 percent higher than if he had been able to complete the work for all thirty-one lots at the same time; Kuznicki testified that his bill was 50 percent higher. When appellants were terminated from Thousand Oaks in April 1995, the plans were still incomplete and final approvals had not yet been obtained from the City of Macedonia or the City of Cleveland. Richard Metzker, owner and vice-president of Hofmann- Metzker, Inc., the surveying firm hired by appellee when appellants were terminated, testified that his firm, in conjunction with the engineering firm of Erie Shores Engineering, performed various engineering and surveying services necessary to correct the sight distance problem and to obtain final approval for the plans. Metzker testified that his firm and Erie Shores billed appellee $16,377.75 for services they performed on Thousand Oaks after appellants were terminated. -10- Trowsdell testified that appellee lost two construction seasons as a result of appellants' delays in getting the initial plans submitted and in responding to requests for changes, which resulted in additional interest costs on appellee's construction loan in the amount of $104,162.69. At the close of appellee's case, appellants moved for a directed verdict, arguing that appellee had failed to establish any damages. The trial court denied appellants' motion. Appellants called four witnesses. Donald Hedrick testified that appellants located the entranceway to Thousand Oaks in the middle of the subdivision because Trowsdell wanted it there. Hedrick stated that when he prepared the preliminary plans he did not think there was a problem putting the entranceway in the middle of the subdivision because, before preparing the plans, he reviewed county topographical records, which did not show any topography on Valley View Road. Hedrick agreed that Trowsdell was concerned that appellants were not completing their work on the Thousand Oaks project in a timely manner, but stated that Trowsdell did not comprehend the amount of work that had to be done for the Thousand Oaks subdivision. Hedrick testified that unlike the Oakwood Village project, where much of the preliminary work was already done when he and Trowsdell began working on it, everything had to be done on the Thousand Oaks project. Hedrick stated that in light of the complexity of the work required for Thousand Oaks, both the preliminary plat and construction plans were timely submitted. -11- With respect to the phasing of the subdivision, Hedrick testified that the plans he drew up and submitted for approval to the reviewing authorities incorporated the entire Thousand Oaks subdivision, or sixty-five lots. Hedrick testified further that the number of lots developed in each phase is dependent upon the amount of financing the developer can get, and not upon a phase line drawn by an engineer on the plans. Hedrick also testified that he could not recall drawing a phase line on the Thousand Oaks plans that incorporated only twenty-three lots in the initial phase. Finally, Hedrick agreed that as the engineer on the Thousand Oaks project, the sight distance analysis was his responsibility, but stated that he delayed in responding to Fred Tufts' requests for analysis of the problem because he wanted to incorporate all of the changes requested by the three agencies into one set of plans that could be resubmitted to all of the agencies. Fred Tufts, city engineer for the City of Macedonia, testified for appellants that the approval process for projects in the City of Macedonia often takes longer than in other cities because three reviewing agencies must approve the plans. Tufts also stated that he was not aware of anything that Hedrick did to delay the Thousand Oaks project, although he admitted that Hedrick's responses to his letters could have been more timely. Tufts admitted that he shut down Calarco and Sons several times because the construction plans had not received final approval from the City of Macedonia. -12- Robert Blansett, Jr., controller at LDC, testified that appellee terminated its contract with LDC on April 19, 1995, approximately one week after LDC had sent appellee an invoice for $34,800 for services rendered on the Thousand Oaks project. Blansett testified that as of the date of trial, appellee owed LDC $100,737, including late fees and interest. Anthony Wolfe, assistant vice-president and construction loan officer at Security Federal Savings and Loan, testified that when Trowsdell made the $59,400 draw on his construction loan from Security Federal, he represented that the money would be used to pay LDC for engineering services rendered on the Thousand Oaks project. He stated that no one at the bank was aware that the money would be used for other purposes. At the close of all the evidence, appellants again moved for a directed verdict on the basis that appellee had failed to establish any damages. The trial court denied appellants' motion. During their deliberations, the jury submitted two questions to the trial court: 1) whether they could reduce appellee's award by the amount owed to appellants; and 2) whether they could view the blackboard used by counsel for appellee in his rebuttal closing argument to list the damages incurred by appellee. The trial court answered the jury's first question and allowed the jury to take the blackboard into the jury deliberation room. The jury returned a verdict in favor of appellee on its breach of contract claim in the amount of $150,000, rejecting appellants' counterclaim. -13- Subsequently, appellants filed a motion for a new trial, or alternatively, motion for judgment notwithstanding the verdict, contending that the trial court had erred in responding to questions posed by the jury during deliberations. The trial court denied appellants' motion and this timely appeal followed. Appellants present the following assignments of error for our review: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT/APPELLANTS BY OVERRULING THE MOTIONS FOR DIRECTED VERDICT MADE AT THE CLOSE OF THE PLAINTIFF'S CASE AND AT THE END OF THE TRIAL. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT/APPELLANTS IN ALLOWING COUNSEL FOR APPELLEE TO PRESENT ARGUMENTS REGARDING MONETARY DAMAGES FOR THE FIRST TIME IN REBUTTAL CLOSING ARGUMENTS. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS/APPELLANTS BY FAILING TO INSTRUCT THE JURY THAT IT COULD REDUCE THE PLAINTIFF'S AWARD BY THE AMOUNT OWED TO THE DEFENDANT. IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTS/APPELLANTS BY ALLOWING THE JURY TO VIEW THE CHALKBOARD USED BY COUNSEL FOR APPELLEE IN A CLOSING ARGUMENT. V. THE DECISION OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In their first assignment of error, appellants assert that the trial court erred by denying appellants' motions for a directed verdict. Specifically, appellants contend that the trial court should have granted their motions for directed verdict because appellee failed to establish any damages whatsoever at trial. -14- The standard to be applied by a trial court in considering a motion for a directed verdict is set forth in Civ.R. 50(A)(4), which provides: When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. A motion for a directed verdict tests the legal sufficiency of the evidence, and therefore, presents a question of law. Grau v. Kleinschmidt (1987), 31 Ohio St.3d 84, 90; see, also, Dimora v. Cleveland Clinic Foundation (1996), 114 Ohio App.3d 711, 716. The trial court may not weigh the evidence nor test the credibility of the witnesses and must give to the party opposing the motion the benefit of all reasonable inferences from the evidence. Zavasnik v. Lyons Transp. Lines, Inc. (1996), 115 Ohio App.3d 374, 378. If there is substantial, competent evidence upon which reasonable minds might reach different conclusions, the motion must be denied. Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64 Ohio St.3d 97, 109. At trial, appellee proceeded only on its breach of contract claim. The essential elements of a cause of action for breach of contract are: 1) the existence of an enforceable contract; 2) the performance (or excuse from performance) of the contractual obligations by the party seeking relief: 3) breach or failure to fulfill contractual obligations by the other party; and 4) damages -15- suffered by the party seeking relief as a result of the breach. Garofalo v. Chicago Title Ins. Co. (1995), 104 Ohio App.3d 95, 108. Appellants do not contest that appellee met the first three elements; rather, they contend that appellee failed to present any evidence whatsoever of damages. The general measure of damages for breach of contract is the amount necessary to place the non-breaching party in the position he or she would have been had the breaching party fully performed under the contract. F. Enterprises, Inc. v. Kentucky Fried Chicken Corp. (1976), 47 Ohio St.2d 154, 159. A plaintiff in a breach of contract action is entitled to those damages which arise naturally from the breach of the contract, or such as may reasonably be supposed to have been in contemplation of both parties, at the time they made the contract, as the probable result of the breach. Champion Ice Mfg. & Cold Storage Co. v. Pennsylvania Ironworks Co. (1903), 68 Ohio St. 229, 234. Applying these standards to this case, we find that appellee presented sufficient evidence of damages to submit the issue to a jury. The record reflects that appellee presented evidence of: 1) damages associated with lowering Valley View Road in order to alleviate the sight distance problem created by appellants; 2) damages associated with additional engineering and surveying services required to correct appellants' work product deficiencies; 3) damages arising from the phasing inconsistencies caused by appellants; 4) damages associated with work stoppages or project -16- shutdowns; and 5) damages incurred by appellee due to lost construction seasons. Appellee presented evidence that appellants created a sight distance problem by incorrectly locating the entrance roadway to Thousand Oaks at a high point on Valley View Road on the preliminary plat and construction plans. Appellee also presented evidence that to alleviate the sight distance problem, appellee was required to expend over $37,000 to lower the crest of Valley View Road. John Calarco, Keith Kuznicki, and Richard Metzker testified at trial regarding the nature and extent of the work they performed related to lowering the hill, the charges associated with their work, the reasonableness of the charges and appellee's payment of the charges. Appellants contend, however, that there was no evidence that the services of Tri Mor Corp. for lowering Valley View Road were related to any conduct of appellants. Appellants' argument is without merit. Contrary to appellants' assertion, the record is replete with testimony that the sight distance problem was appellants' responsibility and that they never evaluated or addressed the problem. Indeed, Donald Hedrick admitted that as the engineer on the project, sight distance analysis was his responsibility but that he never addressed the problem. Appellee's expert, Matthew Neff, testified that if the problem had been identified before appellants drew up the preliminary plat plans, the location of the entranceway could have been easily relocated. Trowsdell, Neff and -17- Richard Metzker testified that when the problem was finally addressed after appellants' termination, the only viable option was to lower Valley View Road. Accordingly, appellee presented sufficient evidence that the charges it incurred for lowering Valley View Road were related to appellants' conduct and the trial court properly submitted this issue to the jury. Appellee also presented evidence regarding additional engineering and surveying services necessary to correct appellants' work deficiencies. Richard Metzker testified that after appellants were terminated, Hoffman-Metzker, along with Erie Shores Engineering, performed various engineering and surveying services necessary to correct the sight distance problem and to obtain final approval of the plans. He testified regarding the nature and extent of the services provided, the charge to appellee for these services and the reasonableness of the charge. Appellants argue that Richard Metzker was not qualified to render an opinion that the charge was reasonable because he is a surveyor, not an engineer. The record reflects, however, that appellants never objected to Metzker's testimony. It is well established that a party waives an issue for the purposes of appeal by failing to timely advise a trial court of possible error. See Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 436-37; Buchman v. Wayne Trace Local School District Bd. Of Edn. (1995), 73 Ohio St.3d 260, 271. Accordingly, appellants cannot challenge this alleged error on appeal. Moreover, it is apparent that Metzker testified about matters well within his -18- personal knowledge and competency. Appellants' argument, therefore, is without merit. Appellee also presented evidence of damages related to the phasing inconsistencies created by appellants. Specifically, appellee presented evidence that after completing the improvements for the twenty-three lots indicated in the first phase of the plans, it was forced to go back and install improvements for an additional eight lots, at an additional cost of over $23,000 for road paving work performed by Tri Mor Corp. and excavating services performed by Calarco and Sons. Appellants argue that the trial court should have granted their motions for directed verdict with respect to these charges, however, because there was no evidence that this work was related to any breach of contract by appellants. We disagree. The record reflects that Trowsdell testified that this work was directly related to the phasing inconsistencies created by appellants. Trowsdell's testimony was substantiated by Neff, Kuznicki and Calarco, who all testified that but for the phasing inconsistencies, the additional work would not have been required. Therefore, the trial court properly denied appellants' motions for directed verdict regarding this issue. Appellee also presented evidence of work stoppages related to appellants' failure to get the plans timely approved by the reviewing authorities. Specifically, John Calarco testified that after he began excavating at Thousand Oaks, Fred Tufts, the city engineer for the City of Macedonia, repeatedly shut down his crew -19- because the construction plans had not been approved. Calarco testified that he billed appellee $127,200 for fifty-three days of downtime from January, 1995 through April, 1995 caused by the shutdowns. Appellants argue, however, that the trial court should have granted their motions for directed verdict regarding this charge because there was no evidence that appellants were responsible for the shutdowns. This argument is not supported by the record. Both Trowsdell and Calarco testified at trial that the shutdowns were directly attributable to appellants' failure to properly attend to the construction plans for Thousand Oaks. Appellants also contend that there was no testimony to establish that the $127,200 charge from Calarco and Sons for its downtime was necessary or reasonable. The record demonstrates otherwise. John Calarco testified at trial that such downtime charges were standard in the excavation industry and that the charge to appellee for his downtime was both reasonable and customary. Finally, appellants argue that the trial court should have granted their motions for directed verdict with respect to the excavator's downtime charge because appellee failed to mitigate his damages. Appellants contend that Calarco moved his equipment to the Thousand Oaks site and simply let it sit there for months on end. Appellants assert that appellee should not have allowed Calarco to begin excavating until the plans were approved and later, should have told Calarco and Sons to remove its equipment -20- and workers so that appellee would not be billed for its downtime. The rule requiring one injured by a wrongful act or omission of another to minimize the resulting damages does not require a party to make extraordinary efforts, or to do what is unreasonable or impracticable. Foust v. Valleybrook Realty Co. (1981), 4 Ohio App.3d 164, 168. Ordinary and reasonable care, diligence and prudence are the measure of the duty. Id. In this case, it would have been unreasonable for appellee not to allow Calarco to begin excavating or to tell him to remove his equipment from the site until appellants obtained final approval for the construction plans. First, the Thousand Oaks project was already far behind schedule, so it was in appellee's interest to have Calarco do as much excavating work at the site as he could. Moreover, approval of the construction plans was expected shortly. Furthermore, the record reflects that Calarco and his crew were able to do some work at the site during the months of January, February and April 1995. Thus, the excavating equipment did not just sit there during these months; it was in use, except during those periods when the city engineer shut the crew down. Finally, as Calarco testified, because all of his equipment and material were at the Thousand Oaks site and he had already begun working there, it would have been very difficult to move his equipment to another site during the shutdowns. Appellee also presented evidence of extra interest costs on its construction loan resulting from the loss of two construction seasons. At trial, Trowsdell testified that appellants' delays in -21- initially submitting the subdivision plat and construction plans to the reviewing authorities, as well as appellants' delays with the resubmission of the plans, resulted in the loss of two construction seasons. Trowsdell testified further that the extra interest costs incurred as a result of the lost construction seasons amounted to $104,160.60. Appellants argue, however, that there was no testimony to connect this additional cost to any activity by appellants. This argument ignores Trowsdell's testimony and is without merit. Appellants also contend that appellee's claim for additional interest costs was actually a claim for lost profits that was too speculative to submit to the jury. This argument is also without merit. The record is clear that appellee's claim was for additional interest; not lost profits. Indeed, the record reflects that the trial court would not allow appellee to present a claim for lost profits. Viewing the evidence most favorably to appellee, as we are required to do, we find that sufficient evidence existed on the issue of damages such that reasonable minds could differ, and, therefore, a directed verdict would not be proper. Accordingly, the trial court properly denied appellants' motions for a directed verdict on the issue of damages and submitted the issue to the jury. Appellants' first assignment of error is, therefore, overruled. In their second assignment of error, appellants assert that the trial court erred in allowing appellee's counsel to make a -22- specific monetary demand in the rebuttal portion of final arguments. Specifically, appellants argue that since they did not have the opportunity to respond to the specific monetary amount, the trial court erred in permitting appellee's counsel to make such argument. In closing rebuttal, it is outside the scope of permissible argument to interject, for the first time, a specific monetary figure that the jury should award as damages. Grossnickle v. Village of Germantown (1965), 3 Ohio St.2d 96, paragraph one of the syllabus. The primary reason for prohibiting such statements is that opposing counsel is not given the opportunity to respond. Id. at 102; Weissv. Team Trucking, Inc. (Oct. 1, 1981), Cuyahoga App. No. 43380, unreported. Normally, if counsel impermissibly requests a specific monetary amount from the jury in closing rebuttal, the trial court can alleviate any prejudicial effect by permitting defense counsel an opportunity to rebut and/or by giving a curative instruction to the jury. If the trial court does neither, however, the defendant may be entitled to a new trial if he can demonstrate undue prejudice. Miko v. Lincoln Natl. Corp. (Mar. 6, 1997), Cuyahoga App. No. 70826, unreported. Appellants concede that they failed to object to appellee's counsel's argument but assert that counsel's comments were reversible plain error. In applying the doctrine of plain error in a civil case, reviewing courts must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare -23- cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice, and where the error complained of, if left uncorrected, would have a material adverse effect on the character of, and public confidence in, judicial proceedings. Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 121. This case is not such an exceptional case. In his initial closing argument, counsel for appellee made only the following vague, passing reference to damages: I'm not--I don't think I need to go into the damage figures now, maybe I'll get into them later but they are considerable as to the site distance. In his rebuttal closing argument, counsel for appellee used a blackboard and listed the specific amount of damages related to each category of damages sought by appellee and then stated that they totaled $375,000. Contrary to appellee's argument, we do not find that counsel's passing reference to damages in his initial closing argument was a discussion of monetary damages that would make additional discussion of damages in rebuttal closing argument proper. Accordingly, counsel's comments in his rebuttal argument fell outside the scope of proper rebuttal in closing argument. We do not find, however, that appellee's counsel's comments were of such a prejudicial nature as to warrant a finding of plain error. First, the trial court instructed the jury that in determining the amount of damages, they should determine what had been proven by a preponderance of the evidence and then come to a figure that fairly and reasonably compensated appellee or appellants for their -24- losses. Juries are presumed to follow such instructions. State v. Zuern (1987), 32 Ohio St.3d 56, 61. Furthermore, the remarks made to the jury apparently had little impact on the jurors since the verdict they returned was for an amount significantly less than what appellee's counsel had requested. Miko v. Lincoln Natl. Corp. (March 6, 1997), Cuyahoga App. No. 70826, unreported, citing Pruitt v. Midwest Transit (June 23, 1995), Muskingum App. No. 94-21, unreported. Finally, Grossnickle requires a timely objection by counsel and a request for counter-argument. Appellants did neither. Appellants cannot be heard to complain that [they were] denied [their] right to final argument where counsel voluntarily relinquished that right. Bauman v. Schmitter (1989), 54 Ohio App.3d 51, 52. See, also, Hensley v. Rini-Rego Stop-N-Shop (Aug. 7, 1997) Cuyahoga App. No. 71552, unreported. Accordingly, we find that appellants have failed to demonstrate any prejudicial effect from appellee's counsel's remarks. Appellants' second assignment of error is, therefore, overruled. In their third assignment of error, appellants contend that the trial court erred in its response to a question from the jury during its deliberations. Specifically, appellants argue that the trial court erred by failing to instruct the jury that it could reduce the plaintiff's award by the amount owed to the defendants. Where, during the course of its deliberations, a jury requests further instruction, or clarification of instructions previously -25- given, a trial court has discretion to determine its response to that request. State v. Carter (1995), 72 Ohio St.3d 545, 553. A reversal of a judgment based upon a trial court's response to such a request requires a showing that the trial court abused its discretion. Id. We find no abuse of discretion here. When it gave its initial instructions, the trial court instructed the jury as to all elements of the parties' contract claims, including the recovery of compensatory damages. The trial court further instructed the jury regarding the completion of the two verdict forms submitted to the jury. The court instructed the jury that they could find that either party had breached the contract at issue, but they could not find in favor of both parties on their respective breach of contract claims. In short, the jury was instructed that it could complete only one verdict form in favor of one party or the other. Appellants did not object to these instructions nor ask for an instruction on its quantum meruit claim. After some deliberation, the jury presented a question to the trial court, asking if it could reduce the award to appellee by the amount it owed to appellants. The trial court responded by re- instructing the jury that they could complete either of the verdict forms, but that they could not complete both forms and find in favor of both parties. Appellants argue that where the work of a defaulting contractor has contributed substantial value to the other contracting party's property, the defaulting party is entitled to -26- recover the value of his work and materials on a quantum meruit basis, the recovery being reduced to the extent of damage the breach may have caused the other party. Murray v. Marbro Builders., Inc. (1977), 53 Ohio App.2d 1. Therefore, appellants argue, as the alleged breaching party, they were entitled to recover the value of their work and materials on a quantum meruit basis. Thus, appellants assert that the trial court should have answered yes to the jury's question. Appellants correctly note that Ohio recognizes an action in quasi-contract whereby a defaulting contractor may recover the value of his work and materials on a quantum meruit basis. Id. Indeed, appellants asserted a quantum meruit claim in the second count of their counterclaim. At trial, however, they proceeded only on their breach of contract claim, arguing that they had fully performed the contract and appellee had breached by failing to pay the outstanding invoices. Appellants never argued their quantum meruit claim to the jury, never asked for an instruction regarding quantum meruit, and did not object to the trial court's original jury instructions, which instructed the jury only on the parties' respective breach of contract claims. In short, appellants deliberately chose an all or nothing strategy that required the jury to find either for appellee or for appellants on their respective breach of contract claims. It is well settled in Ohio that a breaching party is not entitled to collect damages from a non-breaching party. Sites v. Moore (1992), 79 Ohio App.3d 694, 701. Accordingly, in both its -27- initial jury instructions and in its response to the jury question, the trial court properly instructed the jury that they could find in favor of only one party, and not both. Appellants' third assignment of error is overruled. In their fourth assignment of error, appellants assert that the trial court committed reversible error by allowing the jury to view the blackboard used by counsel for appellee during his closing argument to list the damages incurred by appellee. Specifically, appellants argue that because the blackboard was not introduced into evidence, the trial court erred in allowing the blackboard to be sent to the jury room upon the request of the jury. It is within the discretion of the trial court to determine which exhibits should be sent to the jury room. State v. Crimi (1995), 106 Ohio App.3d 13, 18; C.T. Taylor Co. v. Melcher (1983), 13 Ohio App.3d 6, 7. Accordingly, the trial court's decision to allow the blackboard to be sent to the jury room is reviewed under an abuse of discretion standard. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. We find no abuse of discretion here. First, although the blackboard was not admitted as an exhibit, the calculations on the blackboard were supported by the testimony of witnesses and exhibits admitted in evidence. Indeed, appellants do not dispute the accuracy of the calculations. Furthermore, the record reflects that appellants never objected to the jury's use of -28- the blackboard during their deliberations. Finally, although the trial court should have instructed the jury that the blackboard was not evidence and should not be considered as such, C.T. Taylor Co., 13 Ohio App.3d at 7, appellants never asked for such a cautionary instruction. Accordingly, we do not find an abuse of discretion that would warrant reversal and a new trial. Appellants' fourth assignment of error is overruled. In their fifth assignment of error, appellants assert that the decision of the jury was against the manifest weight of the evidence. Specifically, appellants contend that Trowsdell was not a credible witness because he admitted on cross-examination that he falsified the affidavit that he submitted to Security Federal Savings and Loan to obtain the draw on his construction loan and that he did not pay LDC with the money received from the draw. Therefore, appellants contend, the jury should not have believed any of Trowsdell's testimony regarding appellants' alleged deficiencies and, thus, the verdict in favor of appellee was against the weight of the evidence. Judgments supported by some competent, credible evidence going to all the 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; Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80. When resolving a manifest weight of the evidence claim, the function of an appellate court is not to weigh the evidence and pass upon its sufficiency, Betsy Ross Foods, Inc. -29- v. Akron, Canton & Youngstown Railway Co. (1983), 13 Ohio App.3d 145, 147, nor should the reviewing court usurp the function of the trier of fact by substituting its judgment for that reached by the trier of fact. Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41. Rather, the appellate court's limited role is to ascertain whether some competent, credible evidence supports the verdict. This deferential review is premised upon the fact that it was the trier of fact who had the best opportunity to view the witnesses, observe their demeanor, gestures and voice inflections and ultimately, assess and evaluate their credibility. United Ohio Ins. v. Gray (Oct. 5, 1992), Brown App. No CA92-05-010, unreported. With these standards in mind, we review the testimony presented at trial. Appellee's breach of contract claim was based upon its allegations that appellants performed their agreed engineering services in an untimely, unprofessional and non-workmanlike manner, resulting in damages to appellee. At trial, Willie Trowsdell, John Calarco, and appellee's expert, Matthew Neff, testified regarding the deficiencies in appellants' work. Moreover, even appellants' expert, Fred Tufts, conceded that some of appellants' work could have been more timely. Furthermore, there was testimony regarding the damages incurred by appellee as a result of appellants' breaches. Appellants assert, however, that because Trowsdell was not a credible witness, the jury should have believed the testimony of Donald Hedrick, who testified that appellants located the -30- entranceway to Thousand Oaks in the middle of the subdivision because Trowsdell wanted it there, that appellants were not responsible for the phasing inconsistencies or the project shutdowns and that in light of the complexity of the Thousand Oaks project, appellants' work was timely. The weight to be given the evidence and the credibility of witnesses are primarily matters for the trier of fact. State v. DeHass (1976), 10 Ohio St.2d 230, paragraph one of the syllabus. Accordingly, the jury was free to disregard Hedrick's testimony and find Trowsdell to be a more credible witness. Although the evidence was conflicting, the record clearly reveals that there was competent, credible evidence to support the jury's verdict in favor of appellee and against appellants. Therefore, appellants' fifth assignment of error is overruled. -31- It is ordered that appellee recover from appellants its 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. TIMOTHY E. McMONAGLE JUDGE DIANE KARPINSKI, P.J. and JAMES D. SWEENEY, J., CONCUR. 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. 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 .