Doner v. Snapp

• Decision Date: 18 November 1994
• Docket Number: No. 94-CA-29,94-CA-29
• Citation: 649 N.E.2d 42,98 Ohio App.3d 597
• Parties: , 26 UCC Rep.Serv.2d 1127 DONER et al., Appellants, v. SNAPP et al., Appellees.
• Court: Ohio Court of Appeals

Page 597

98 Ohio App.3d 597

649 N.E.2d 42, 26 UCC Rep.Serv.2d 1127

DONER et al., Appellants, v. SNAPP et al., Appellees.

No. 94-CA-29.

Court of Appeals of Ohio, Second District, Miami County.

Decided Nov. 18, 1994.

William B. Balyeat, Lima, for appellants.

Dungan & LeFevre and John E. Hemm, Piqua, for appellees.

BROGAN, Judge.

Appellants, John D. and Elaine Doner, appeal from the trial court's grant of summary judgment in their breach of contract action against appellees, Chester and Jan Snapp. The appellants charge, inartfully, that the court's decision in favor of the appellees was against the manifest weight of the evidence.

In an attempt to feather their nest, as it were, the appellants decided to invest in the burgeoning, albeit risky, ostrich breeding and production industry. Ostriches are promoted as an alternative food source, and coupled with the demand for their feathers and leather, are completely consumable. The potential rewards of the investment are great: Mr. Doner stated that the hen he purchased from the appellees for $3,000 was worth at least $20,000 three years later, although she had yet to lay a fertile egg. The risks of the business include ostrich infertility and mortality.

The appellants purchased a "trio" of ostrich chicks by oral agreement from the appellees in 1990 for $9,000. ¹ In breeders' parlance, a "trio" means two hens and one male. One male may mate with as many as three hens. The appellants' bid to build a nest egg suffered a bad break in early 1991, when they discovered that their "trio" consisted of two males and one hen. Mr. Doner testified that his first knowledge of the error came when the darker features and feathers of the males appeared. Mr. Snapp testified that it can be difficult to determine an ostrich's sex, and that he had advised Mr. Doner to have the birds' sex confirmed within ninety days of the sale. Mr. Doner denied that he had been so counseled.

There also was disputed testimony as to whether the appellees agreed to exchange a hen for one of the males upon learning of the alleged breach. In any event, no agreement was reached between the parties. Rather than bury their heads in the sand, the appellants traded both of their male ostriches in 1992: one to a Michigan breeder for another male of equal value, and the other to an Indiana supplier for two female chicks. Since ostrich hens do not mature sexually for three years, the younger hens have not been bred. The hen purchased from the appellees has not produced any offspring. The record indicates that the appellants also acquired another hen, now of breeding age, from the Michigan breeder. This particular hen has produced offspring.

The appellants filed suit against appellees for breach of contract on June 15, 1993. The appellants requested compensatory damages in the amount of $15,000 plus lost profits. Following appellants' answers to appellees' interrogatories and deposition of the appellants, the appellees filed a motion for summary judgment on January 25, 1994. Appellees asserted that appellants had not raised a genuine issue of material fact on the issue of liability, specifically that appellants had suffered damage from the alleged breach. The trial court sustained appellees' motion and entered final judgment thereupon on May 5, 1994. The appellants lodged this appeal on June 2, 1994.

For their lone assignment of error, the appellants state:

"The judgment in favor of the appellee[s] is against the manifest weight of the evidence because the common pleas court erred in ruling that no genuine issue of material fact, as required by Civil Rule 56(C), existed regarding the difference in value between the male ostrich delivered and a female ostrich appellee[s] was bound by the contract to deliver, and failed to do so, causing summary judgment to be entered against appellant[s]."

Civ.R. 56 provides the familiar summary judgment standard. The Ohio Supreme Court has interpreted the rule to say:

"The appositeness of rendering a summary judgment hinges upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. See Civ.R. 56(C).

In a summary judgment motion, the nonmoving party shoulders the burden to "produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus. "[S]ince the propriety of summary judgment is a question of law," Children's Med. Ctr. v. Ward (1993), 87 Ohio App.3d 504, 508, 622 N.E.2d 692, 695, we apply the same standard as the trial court in our review of the court's disposition of the motion; in other words, our review is de novo. Id. However, we do not weigh the evidence; we "accept the evidence properly before [us] and, with respect to the merit issues involved, construe the evidence most strongly in favor of the claims of the party against whom the motion is made." Buckingham v. Middlestetter (Mar. 22, 1993), Montgomery App. No. 13575, unreported, 1993 WL 81827.

We initially point out that the appellants' assignment is poorly cast. It is axiomatic that we may not determine the propriety of a trial court's grant of summary judgment by looking to the manifest weight of the evidence. "As it is not the province of a trial court in ruling on a motion for summary judgment to weigh evidence, [a] claim that the court's ruling could be 'against the manifest weight of the evidence' is a legal chimera incompatible with the concept of summary judgment." Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emp., AFL-CIO (1994), 93 Ohio App.3d 162, 165, 638 N.E.2d 94, 96. We also note that some courts have summarily overruled such inartfully pled assignments. See id.; Norris v. State Teachers Retirement Sys. of Ohio (1987), 35 Ohio App.3d 92, 95, 520 N.E.2d 5, 7. However, in the interest of fairness, we will construe appellants' assignment as positing the proper standard of review and address its merits.

Generally, a plaintiff must present evidence on several elements to successfully prosecute a breach of contract claim. Those elements include the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff. See 2 Ohio Jury Instructions (1993), Section 253.01, at 111-112. See, also, Am. Sales, Inc. v. Boffo (1991), 71 Ohio App.3d 168 175, 593 N.E.2d 316, 321 (elements required for effective pleading of breach of contract action). Therefore, since damages are an essential element of the appellants' case, if the appellants were to survive summary judgment on the issue of damages, they must have presented evidence establishing a genuine issue of material fact on the that issue. Fiorella v. Ashland Oil, Inc. (1993), 92 Ohio App.3d 411, 414, 635 N.E.2d 1306, 1306.

The appellants alleged that they were entitled to compensatory damages for the difference in value between the male they received and the hen for which they bargained, and lost profits from reduced egg production. Thus, the Doners sought damages for injury to their "expectation interest"; i.e., they sought to be placed in as good a position as if the contract had been performed. Schulke Radio Prods., Ltd. v. Midwestern Broadcasting Co. (1983), 6 Ohio St.3d 436, 439, 6 OBR 480, 482, 453 N.E.2d 683, 686; Brads v. First Baptist Church of Germantown, Ohio (1993), 89 Ohio App.3d 328, 338-339, 624 N.E.2d 737, 744-745. "Because damages for injury to an expectation interest are limited to actual loss, that loss must be established with reasonable certainty." Id. at 339, 624 N.E.2d at 745.

Furthermore, to successfully assert a claim for lost profits, a plaintiff must satisfy the tripartite test established in Combs Trucking, Inc. v. Internatl. Harvester Co. (1984), 12 Ohio St.3d 241, 12 OBR 322, 466 N.E.2d 883. The Supreme Court stated that "lost profits may be recovered by the plaintiff in a breach of contract action if: profits were within the contemplation of the parties at the time the contract was made, the loss of profits is the probable result of the breach of contract, and the profits are not remote and speculative and may be shown with reasonable certainty." Id. at 244, 12 OBR at 325, 466 N.E.2d at 887. The court extended the Combs test to new businesses in AGF, Inc. v. Great Lakes Heat Treating Co. (1990), 51 Ohio St.3d 177, 183, 555 N.E.2d 634, 639. Therefore, appellants must show with "reasonable certainty" the difference in value between the ostriches bargained for and those received or their lost profits to raise a genuine issue of material fact on the issue of damages and survive summary judgment.

We find it interesting that neither the parties nor the court below referred to the Ohio Commercial Code, R.C. 1301.01 et seq. Granted, ostriches are not typically the subject of commercial transactions; however, they qualify as "goods" under R.C. 1302.01(A)(8). As the parties entered into a deal involving "goods," the code applies to the transaction. R.C. 1302.02. We find the statutory scheme to be of assistance in determining whether the appellants raised a genuine issue of material fact regarding their alleged damages.

Construing the evidence in favor of the appellants, the testimony in this case discloses that (1) the Doners accepted tender of the "trio" in August 1990; (2) the Snapps represented that the birds sold were two hens and one male; (3) the appellants relied on that representation; (4) the appellants did not, and could not, discover until the following spring that ...