COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78223 FRANK BARRY : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION AL KRISS, et al. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: MAY 31, 2001 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-370402 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: RICHARD D. EISENBERG ZIMMERMAN, CATICCHIO EISENBERG & MODICA 105 Jefferson Centre 5001 Mayfield Road Lyndhurst, Ohio 44124 For Defendants-Appellants: ROBERT A. HAGER CHRISTINE A. MAYER DAVID H. KRAUSE BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP 1375 East Ninth Street, Suite 1700 Cleveland, Ohio 44114 PATRICIA ANN BLACKMON, J.: Al Kriss appeals from a decision of the trial court entering judgment in favor of Frank Barry in the amount of $29,200 and against Kriss. He assigns the following as error for our review. A. THE TRIAL COURT'S AWARD OF $29,200 IN LOST PROFITS TO PLAINTIFF-APPELLEE WENT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHERE THE UNREFUTED EVIDENCE SUBMITTED AT TRIAL SHOWED THAT THE PARTIES EARNED NO PROFITS. B. THE TRIAL (sic) [COURT] ERRED AS A MATTER OF LAW IN AWARDING LOST PROFITS TO PLAINTIFF- APPELLEE BECAUSE PLAINTIFF-APPELLEE DID NOT ADVANCE A CAUSE OF ACTION FOR LOST PROFITS. Having reviewed the arguments of the parties and the relevant law, we reverse the decision and remand to the trial court for further proceedings consistent with this opinion. The relationship between these parties stems from two joint ventures, the purpose of which had been to buy two homes, rehabilitate them, and sell them for a profit. Kriss provided the working capital necessary to purchase and rehabilitate the homes. Barry performed the contracting work. The first home purchased was located at 21988 Rye Road in Shaker Heights, the second at 4113 Princeton Boulevard in South Euclid. The parties then signed joint venture agreements for each property. The Rye Road Agreement Under this agreement, Kriss would purchase the property and reimburse Barry for expenses he incurred in rehabilitating the property up to $25,675, the amount Barry estimated it would cost to complete the work. The agreement also stated that Kriss would not pay above the estimated amount unless the parties agreed in writing. Specifically, the agreement states: 6. Barry will insure that the cost of rehabbing the property which is the subject of this Joint Venture Agreement is within the parameters of the estimate identified herein as Exhibit B and Exhibit C and will adhere to said estimate at all times and any and all cost Overruns shall be the sole and exclusive responsibility of Barry unless a written agreement is executed between the parties hereto authorizing any such Cost Overrun . (Emphasis added.) Further, the agreement provided a schedule for profit sharing, detailing who will be reimbursed first and for what, and indicated that the remainder of any profit shall be split 50/50 between the parties. Rehabilitation of the Rye Road Property After title transferred to Kriss, Barry began working on the property. Barry sent Kriss progress reports detailing the work done and the cost of each project. Kriss would then send Barry checks to cover the expenses. Between November 1997 and April 1998, Kriss had sent Barry a total of $48,855, exceeding the $25,675 cap contained in the agreement. Sale of the Rye Road Property Kriss eventually sold the home for $205,000, despite his attempts to sell it for $235,000 (or for $245,000 if the buyer wanted a new furnace and central air conditioning). After accounting for the expenses incurred in the acquisition, rehabilitation, and sale, the joint venture sustained a loss of $8,005. The Princeton Blvd. Agreement This agreement contained virtually identical terms as the Rye Road agreement, except that it provided a cap on rehabilitation expenditures in the amount of $7,700. Rehabilitation of the Princeton Blvd. Property Barry stated during the bench trial that he incurred costs of $15,196.89 while rehabbing the property and that Kriss reimbursed him $6,000. Sale of the Princeton Blvd. Property Kriss listed this home with a realtor for $99,000, but because of the appraisal on the home, reduced the price to $95,000. After accounting the expenses incurred in the acquisition, rehabilita- tion, and sale of the home, the joint venture sustained a loss of $3,557. The underlying action In November 1998, Barry filed a lawsuit alleging Kriss owed him money for labor and material furnished in the improvement and rehabilitation on the two properties. The case proceeded to a bench trial and on June 16, 2000, the court issued its memorandum of opinion in which it found in favor of Barry and awarded him $29,200. Specifically, the court stated: It is clear that the defendant waived the condition that the contract limited Plaintiff to the $25,000 amount. The costs were far in excess of the stated amount. Defendant was satisfied with the progress sufficiently that he made a new arrangement for the Princeton Avenue property. The Court holds that Plaintiff is entitled to damages. As to the issue of damages, the Court notes several facts. As of April, 1998 the expenditures were $47,195.55. Only the costs for the bathroom, kitchen drain and wall repair were yet to be. He had been paid $48,195.55.*** For the Rye Road property, taking into account that it was sold for substantially less than hoped for, Plaintiff's share of the profits is $20,000. Also, the Court finds for the Plaintiff in the Princeton Road property on the same grounds and awards the sum of $9,200. The Court finds for the Plaintiff on the Defendant's counterclaims. Kriss claims the judgment had been against the manifest weight of the evidence because the evidence submitted at trial showed the parties did not earn a profit. The court in C.E. Morris Co. v. Foley Construction (1978), 54 Ohio St.2d 279, 376 N.E.2d 578 stated in its syllabus: Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. In L&H Leasing Company v. Dutton (1992), 82 Ohio App.3d 528, 612 N.E.2d 787, the court noted: A joint venture is an association of persons with intent, whether express or implied, to engage in and carry out a single business venture for joint profit, for which they combine their efforts, property, money, skill and knowledge without creating a partnership. Ford v. McCue (1955), 163 Ohio St. 498, 127 N.E.2d 209. Both parties agree that they entered into joint ventures with respect to the properties involved. Additionally,the court in Charles R. Combs Trucking, Inc. v. International Harvester Co. (1984), 12 Ohio St.3d 241, 466 N.E.2d 883, stated in paragraph two of its syllabus: 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, Barry testified he first came into contact with Kriss when he answered an advertisement in the Cleveland Plain Dealer in which he advertised as a private investor. He entered into a joint venture agreement with Kriss for the purchase, rehabilitation, and sale of two homes. He stated that although he went beyond the agreed estimated quotes while completing the work on the Rye Road home, Kriss acquiesced by continuing to send him money and approved the work being done by Barry. He further testified the two deviated from the terms of the agreement from the beginning. Kriss testified the agreement had not been deviated from and that no written modification of it had been signed by either party. He further stated unbeknownst to him, his wife continued to write checks to Barry, even after the cost of the project on Rye Road had gone beyond the cap provided in the agreement. He stated he had to hire an outside contractor to complete the work that Barry refused to do once he stopped sending him money. Here, it is evident from the testimony of both parties that the terms of the agreement had been deviated from, we do not find Kriss' argument that his wife paid Barry without his knowledge unpersuasive. However, because a joint venture agreement is a contract, the parties are bound to the terms and conditions as stated in that contract. As such, we conclude the trial court erred when it awarded $29,200 to Barry. The formula provided for in the agreement is as follows: The Rye Road property Sale price of property after rehabilitation: $205,000 -Initial acquisition expense: 123,023 -Kriss' out-of-pocket expenses for rehabilitation: 54,604 -Interest on Kriss' investment funds: 14,517 -Barry's out-of-pocket expenses: 0 -Disposition costs: 20,861 = (8,005) The Princeton Blvd. property Sale price of property after rehabilitation: $ 95,000 -Initial acquisition expense: 74,307 -Kriss' out-of-pocket expenses for rehabilitation: 10,378 -Interest on Kriss' investment funds: 3,916 -Barry's out-of-pocket expenses: 0 -Disposition costs: 9,956 = (3,557) The trial court, however, determined the Rye Road property had been placed on the market for $245,000 and later sold for $205,000, and therefore it was sold for substantially less than hoped for. It concluded, therefore, a $40,000 profit should have been realized. It awarded Barry 50% of that, or $20,000. Likewise, it awarded $9,200 for the Princeton Blvd. property. However, what one hopes to gain on the sale of a house is mere speculation; Barry did not offer evidence that the Rye Road home would have sold for the asking price. In fact, their Smythe Cramer realtor advised the parties to reduce the price from $219,000 to $209,900. It was her opinion that the house had been overpriced. We find no support for the trial court's conclusion that the Rye Road house should have sold for $245,000. Here, the profits are remote and speculative; therefore, Barry cannot recover for lost profits. See, International Harvester, supra. Additionally, the agreement specifically states that Kriss would not pay above the estimated amount unless the parties agreed in writing and that any and all cost Overruns shall be the sole and exclusive responsibility of Barry unless a written agreement is executed between the parties. No such written agreement exists. Therefore, we reverse the decision and remand to the trial court for further proceedings consistent with this opinion. Judgment reversed and remanded. This cause is reversed and remanded. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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 D. SWEENEY, P.J., and ANN DYKE, J., CONCUR. PATRICIA ANN BLACKMON JUDGE 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. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .