[Cite as Lump v. Larson,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

CHAD LUMP,

PLAINTIFF-APPELLEE, CASE NO. 8-14-14

v.

KEVIN LARSON, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court Trial Court No. CV 13 09 0311

Judgment Affirmed

Date of Decision: February 9, 2015

APPEARANCES:

Terrence G. Stolly for Appellant

Daniel L. Bennett for Appellee Case No. 8-14-14

PRESTON, J.

{¶1} Defendant-appellant, Kevin Larson (“Larson”), appeals the June 5,

2014 judgment entry of the Logan County Court of Common Pleas granting

judgment in favor of plaintiff-appellee, Chad Lump (“Lump”), in the amount of

$1,731.75. For the reasons that follow, we affirm.

{¶2} On August 6, 2013, in the Bellefontaine Municipal Court, Lump filed

a complaint against Larson for unpaid rent and utilities on a commercial lease

under which Lump was the landlord and Larson was the tenant. (Doc. No. 1).

{¶3} On September 5, 2013, Larson filed an answer and counterclaim.

(Id.). In his counterclaim, Larson set forth counts of conversion and tortious

interference with business relationships. (Id.). Larson’s conversion count

stemmed from Lump’s alleged refusal to return equipment of Larson’s remaining

at the leased premises. (Id.). Larson’s tortious-interference-with-business-

relationships count stemmed from business opportunities that Larson allegedly lost

due to his inability to access the equipment remaining on the leased premises.

(Id.).

{¶4} On September 10, 2013, the Bellefontaine Municipal Court granted

Larson’s motion to transfer the case to the Logan County Court of Common Pleas.

(Id.).

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{¶5} On September 27, 2013, Lump filed an “answer” to Larson’s

counterclaim. (Doc. No. 10).

{¶6} Following a May 16, 2014 bench trial, the trial court on June 5, 2014

filed the judgment entry that is the subject of this appeal. (Doc. No. 58). In it, the

trial court concluded that Larson was entitled to $4,868.25 as an equitable award

for his “having to procure equipment for a second time to remove his personal

property from [Lump’s] premise.” (Id.). The trial court concluded that Lump was

entitled to $6,660.00 “for rent and utilities as of May 31, 2013,” an arrearage to

which Larson admitted. (Id.). The trial court offset the awards and entered

judgment in favor of Lump in the amount of $1,731.75. (Id.).

{¶7} Larson filed his notice of appeal on July 2, 2014. (Doc. No. 70). He

raises one assignment of error for our review.

Assignment of Error

The trial court erred in denying defendant-appellant’s damages for his tortious interference with a business relationship claim as its decision was against the manifest weight of the evidence. Appendix A: Trial Court’s Judgment Entry, June 5, 2014

{¶8} In his assignment of error, Larson argues that we should reverse the

trial court’s decision “because the ruling that Larson sought the gross amount of

the contracts and not lost profits is not supported by any competent and credible

evidence and because Larson proved lost profits to a reasonable degree of

certainty.” (Appellant’s Brief at 6). Larson argues that he proved the amount of

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profits he lost under two agreements—one with Accelerated Laboratory

Relocations (“Accelerated”) and another with Dan Schindewolf

(“Schindewolf”)—based on Larson’s inability to perform his obligations under

those agreements because he could not access his equipment that remained on the

leased premises.

{¶9} “When reviewing a civil appeal from a bench trial, we apply a

manifest weight standard of review.” San Allen, Inc. v. Buehrer, 8th Dist.

Cuyahoga No. 99786,

, citing Revilo Tyluka, L.L.C. v. Simon

Roofing & Sheet Metal Corp.,

,

(8th

Dist.). See also Parrott v. Jones, 5th Dist. Licking No. 13-CA-110, 2014-Ohio-

3220, ¶ 27 (applying the manifest-weight standard of review in an appeal from a

civil judgment, entered after a bench trial, concluding that the plaintiff failed to

establish the elements of tortious interference with a business relationship). “[A]

civil judgment ‘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.’” Warnecke v. Chaney,

,

(3d Dist.), quoting C.E. Morris Co. v. Foley

Constr. Co.,

(1978), syllabus.

{¶10} “‘[W]hen reviewing a judgment under a manifest-weight-of-the-

evidence standard, a court has an obligation to presume that the findings of the

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trier of fact are correct.’”

quoting State v. Wilson,

, 2007-

Ohio-2202, ¶ 24. “The rationale for this presumption is that the trial court is in the

best position to evaluate the evidence by viewing witnesses and observing their

demeanor, voice inflection, and gestures.”

citing Seasons Coal Co. v.

Cleveland,

(1984). “‘A reviewing court should not reverse a

decision simply because it holds a different opinion concerning the credibility of

the witnesses and evidence submitted before the trial court.’”

quoting Seasons

Coal Co. at 81. “‘A finding of an error in law is a legitimate ground for reversal,

but a difference of opinion on credibility of witnesses and evidence is not.’”

quoting Seasons Coal Co. at 81.

{¶11} “In Ohio, the tort of interference with business relationships occurs

when an individual, without privilege to do so, ‘induces or otherwise purposely

causes a third person not to enter into or continue a business relation with

another.’” McCulloch v. Janney Montgomery Scott L.L.C., 7th Dist. Columbiana

No.

,

, quoting Reali, Giampetro & Scott v.

Soc. Natl. Bank,

(7th Dist. 1999), quoting A & B–Abell

Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council,

(1995). “The elements of that cause of action are: ‘(1) a business

relationship or contract; (2) the wrongdoer’s knowledge of the relationship or

contract; (3) the wrongdoer’s intentional and improper action taken to prevent a

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contract formation, procure a contractual breach, or terminate a business

relationship; (4) a lack of privilege; and (5) resulting damages.’”

quoting Elite

Designer Homes, Inc. v. Landmark Partners, 9th Dist. Summit No. 22975, 2006-

Ohio-4079, ¶ 31.

{¶12} “Ohio law recognizes that a plaintiff may recover all damages

proximately caused by an actor’s misconduct in a tortious interference action.”

UZ Engineered Prods. Co. v. Midwest Motor Supply Co., Inc.,

,

, ¶ 54 (10th Dist.), citing Gray-Jones v. Jones,

(10th Dist. 2000) and Brookeside Ambulance, Inc. v. Walker

Ambulance Serv.,

(6th Dist. 1996). “Damages for

intentional interference with business relations can include ‘lost profits, reduced

by the expenditures saved by not having to produce that profit, if both the

existence of the loss and the dollar amount of the loss are proven to a reasonable

certainty.’” Ohio Vestibular & Balance Ctrs., Inc. v. Wheeler, 6th Dist. Lucas No.

L-11-1320,

, ¶ 46, quoting UZ Engineered Prods. Co. at ¶ 55,

citing Digital & Analog Design Corp. v. N. Supply Co.,

(1989). “‘A plaintiff may not merely assert that it would have made a particular

amount of profits, but must prove lost profits with calculations based on facts.’”

quoting UZ Engineered Prods. Co. at ¶ 55, citing Gahanna v. Eastgate

Properties, Inc.,

(1988).

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{¶13} At trial, Lump called Schindewolf, who operates a trucking

company, Schindewolf Express. (May 16, 2014 Tr. at 14-15). When asked by

Lump’s counsel whether he has “ever done any business with Mr. Larson,”

Schindewolf responded, “I’ve never done any business with Mr. Larson. I’ve had

a quote for some business, but I’ve never done any business.” (Id. at 14). On

cross-examination, Schindewolf admitted that he and Larson “talked about this

deal,” but Schindewolf did not “know why [Larson] couldn’t perform.” (Id. at

17). When Larson’s counsel asked if he “also had a deal with [Larson] for an

interim period for $500 a month that [Larson] would rent [Schindewolf] a

generator,” Schindewolf responded, “Yes.” (Id.). On re-direct examination, when

Lump’s counsel asked Schindewolf whether he accepted the quote Larson gave

him for the sale price of a generator, Schindewolf responded, “It was to be – it was

in the process. It was never accepted. It was never billed. To quote – it was still a

quote.” (Id. at 18).

{¶14} Next, Lump testified that he did not “know who [Larson] did

business with” and that he did not “talk with anybody that [Larson] did business

with.” (Id. at 40-41). Lump also testified that he never tried to contact any of

Larson’s “clients or business relations.” (Id. at 41). On cross-examination,

Larson’s counsel asked Lump, “Now, you testified on direct that you didn’t know

anything about any of [Larson’s] business, any of his customers, anything like

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that, right?” (Id. at 57). Lump responded, “I wasn’t exactly sure. I saw people in

and out. * * * I wasn’t sure exactly what he done [sic]. I know he worked on

generators and he was trying to get a patent for some fracking, but other than that,

I didn’t know what he was doing.” (Id.). Lump testified that he did not know who

Larson’s customers were “until the lawsuit.” (Id. at 57-58). According to Lump,

after he read Larson’s counterclaim against him, which referenced “Accelerated

Moving & Storage” and “Schindewolf Trucking,” Lump “tried to find all parties

and inform them [he] did not deny [Larson] access and that they could come in

and retrieve anything that they wanted to retrieve.” (Id.); (Doc. No. 1).

{¶15} In his case, Larson called his son, Elijah Larson (“Elijah”), who

testified that he heard Schindewolf and Larson “confirm a deal” under which

Larson “would sell a generator to Schindewolf Express.” (May 16, 2014 Tr. at

62). Elijah testified that he was present when Larson and Schindewolf “agreed to

an interim rental agreement for another generator” at a price of $500 per month.

(Id. at 63).

{¶16} Larson was the next to testify. (Id. at 64). According to Larson, he

had “a business transaction, an agreed sale arrangement to Schindewolf Express.”

(Id. at 71). Larson testified that under that arrangement, which was for a total sale

price of $19,181, Larson was to sell Schindewolf Express a generator and a

transfer switch and install “all of the equipment for that generators [sic].” (Id.).

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Defendant’s Exhibit F, a July 2, 2013 “quote” letter from Larson to Schindewolf,

contains a quote totaling $19,181, including a $17,880 base price and options

described in the letter. (Defendant’s Ex. F). According to Larson, he had an

additional arrangement with Schindewolf under which he was “going to provide a

rental generator in the interim until he could purchase the generator set” for a price

of $500 per month. (May 16, 2014 Tr. at 71, 90).

{¶17} Larson testified that he had an agreement with Accelerated under

which Larson “was providing a 750 KW generator set, a 1200-amp transfer

switch, and the installation of both those items” for a total sale amount of $89,500.

(Id. at 72). Larson testified that he had “another agreement with Accelerated” to

“provide and install distribution equipment for a bio repository” for a total sale

price of $415,000. (Id.). Larson identified Defendant’s Exhibit C as a letter

quoting Accelerated “a grand total of both those deals” of $510,350. (Id. at 73).

Larson testified that he “enter[ed] into this transaction as outlined in * * * Exhibit

C” but was not able to perform under those agreements because “Lump had [his]

equipment locked up.” (Id. at 74).

{¶18} Larson testified that in June, July, and August 2013, he told Lump

“about [Larson’s] deals.” (Id.). According to Larson, he told Lump “about [his]

business relationship with Accelerated.” (Id. at 67). Larson testified, “It was very

apparent that the two trucks right there that I was towing back to Columbus were

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Accelerated’s. He knew the engines were inside working on them. So, yes, he

was very aware.” (Id. at 67-68). Larson identified Defendant’s Exhibit H as

containing an email he sent to Lump on July 15, 2013, which was three weeks

before Lump filed his complaint. (Id. at 75). In that email, Larson said, “I have

spent the last three weeks retrieving and repairing a truck for Accelerated and am

presently driving that truck to Salt Lake City, Utah and will deliver on Monday in

Iowa City, being home late Wednesday.” (Defendant’s Ex. H). Lump did not

respond to Larson’s July 15, 2013 email. (May 16, 2014 Tr. at 75).

{¶19} Larson identified Defendant’s Exhibit Q as his “damage report.” (Id.

at 84). Under the “Lost Profit” category of his damage report, Larson listed

$50,000.00 “[l]ost profit from generator sale and installation, accelerated job” and

$304,750.00 “[l]ost profit from distribution equipment and installation, accelerated

job.” (Id. at 89); (Defendant’s Ex. Q). Larson agreed with his counsel that the

total lost profit for both agreements was “about 354,000.” (May 16, 2014 Tr. at

89-90). When Larson’s counsel asked him if these figures represented “true profit

above and beyond all of [his] expenses, cost of purchase, labor, overhead,” Larson

responded, “These are the true profit that I would have seen in those jobs.” (Id. at

89). Larson also listed $12,000.00 “[l]ost profit from Schindewolf sale and

installation” and $500.00 “[l]ost profit from rental generator, Schindewolf job (per

month).” (Id. at 90); (Defendant’s Ex. Q). Larson’s counsel asked him if these

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figures represented “true profit after all expenses and overhead and labor and

everything is taken out,” and Larson responded, “Yes, it is.” (May 16, 2014 Tr. at

90).

{¶20} Finally, Larson called Todd Wilson (“Wilson”), owner and president

of Accelerated, to testify. (Id. at 105). When Larson’s counsel asked Wilson if he

and Larson “enter[ed] into an agreement that [Larson] would sell [Wilson] these

generators and provide services,” Wilson responded:

Actually, it wasn’t a complete sale. * * * What we were looking to

do was he already has the equipment; I already have the customers.

We have customers that wanted a bio repository. Basically we were

talking about an equity share of business * * *. We carved out an

area for the bio repository to be relocated, but it never came to

fruition.

(Id. at 110). Larson’s counsel asked Wilson if the “$510,350 number” in

Defendant’s Exhibit C was “what [Wilson and Larson] agreed to in [their]

arrangement,” and Wilson responded, “That’s what he talked about, right, yes.”

(Id. at 111).

{¶21} After trial, the parties submitted written closing arguments, and the

trial court concluded in its judgment entry that Larson’s tortious-interference-with-

business-relationships “cause of action fails for several reasons.” (Doc. No. 58).

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We hold that the trial court’s conclusion that Larson failed to prove tortious

interference with business relationships is supported by some competent, credible

evidence and therefore not against the manifest weight of the evidence.

{¶22} We begin with the “resulting damages” element of the tort. The trial

court noted Larson’s failure to adequately prove his damages, observing that

Larson was “asking for the gross amount of these contracts and not what his

damage would have been.” (Id.). Regarding the purported generator-sale-and-

installation agreement with Schindewolf, Larson testified that the total sale price

was $19,181, and Defendant’s Exhibit F, Larson’s quote to Schindewolf, reflects

that amount. Larson testified that the purported generator-rental agreement was

for $500 per month. To prove his “lost profit” under these purported agreements,

Larson relied only on the “damage report” he created, Defendant’s Exhibit Q, and

his testimony, which reflected a lost profit of $12,000 for the generator-sale-and-

installation agreement and a lost profit of $500 per month for the generator-rental

agreement. Regarding the two purported agreements with Accelerated, Larson

testified that the total sale price of both was $510,350, and that amount is reflected

in Defendant’s Exhibit C, a “quote” letter from Larson to Wilson. To prove his

“lost profit” under these purported agreements, Larson relied only on his “damage

report,” which reflected a total lost profit of $354,750 for both agreements, and his

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testimony, in which he agreed his lost profit for both agreements was “about

354,000.”

{¶23} This review of the evidence concerning damages reflects that, while

Larson may have proven the gross amounts of the contracts with documents and

corroborating information, he “merely assert[ed] that [he] would have made a

particular amount of profits.” UZ Engineered Prods. Co.,

. Indeed, Larson simply stated his lost-profit amounts without any

itemization or explanation of how he calculated them. Moreover, Larson failed to

“prove lost profits with calculations based on facts.”

For example, Larson

failed to offer any documents or information related to his cost basis in the

equipment he was to sell under the agreements. Nor did Larson offer any

documents or information related to his costs of providing the services under the

purported agreements, such as transportation, labor, and installation costs. For

these reasons, the trial court’s conclusion that Larson failed to prove the “resulting

damages” element of the tortious-interference-with-business-relationships cause of

action is not against the manifest weight of the evidence.

{¶24} Larson’s briefing on appeal reflects that he fails to grasp that

“resulting damages” is one of the elements of the tortious-interference-with-

business-relationships cause of action that he needed to prove to prevail on the

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cause of action. Despite listing in his reply brief “damages resulting therefrom” as

one of the elements of the cause of action, Larson states:

The trial court did not award damages for Larson’s Tortious

Interference with Business Relationship claim because the trial court

wrongly found that Larson sought the gross amount of the contracts

rather than lost profits. * * * The trial court did not find that Larson

failed to meet the elements of his Tortious Interference with

Business Relationship claim.

(Appellant’s Reply Brief at 1). At another point in his reply brief, Larson states,

“The trial court did not hold that the elements of the tort were not met.” (Id. at 2).

Larson ignores the trial court’s findings, analysis, and conclusion that Larson’s

tortious-interference-with-business-relationships “cause of action fails for several

reasons.” (Emphasis added.) (Doc. No. 58).

{¶25} We next address the “wrongdoer’s knowledge of the relationship or

contract” element of the tort. Although the trial court did not expressly rely on

this element in its analysis, it did conclude that Larson’s tortious-interference-

with-business-relationships “cause of action fails for several reasons.” (Emphasis

added.) (Id.). Moreover, even assuming the trial court did not rely on this element

of the tort in rejecting this cause of action, we affirm a trial-court judgment that is

correct, but for a different reason. Davis v. Widman,

, 2009-

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Ohio-5430, ¶ 16 (3d Dist.), citing Advantage Bank v. Waldo Pub, L.L.C., 3d Dist.

Marion No. 9-08-67,

(“[A] judgment by the trial court

which is correct, but for a different reason, will be affirmed on appeal as there is

no prejudice to the appellant.”). Competent, credible evidence supports the

conclusion that Lump did not possess the requisite knowledge of the relationship

or contract.

{¶26} In support of their respective arguments concerning this issue, Lump

and Larson unsurprisingly cite their own testimony. Lump testified that he did not

know who Larson’s customers were “until the lawsuit.” Lump also testified that

he “wasn’t exactly sure” what Larson’s business was. Larson testified that he

informed Lump “about [Larson’s] deals.” Larson did not testify that he informed

Lump of the Schindewolf agreements specifically, but he did testify that he told

Lump “about [his] business relationship with Accelerated.” Larson also points to

Defendant’s Exhibit H, email correspondence between him and Lump. While

Larson mentioned “Accelerated” in one of his pre-lawsuit emails, he did so in the

context of informing Lump of his whereabouts, simply mentioning that he repaired

a truck for Accelerated in recent weeks and was driving it to Salt Lake City.

{¶27} While there is conflicting evidence concerning this element of the

tort, the trial court was “in the best position to evaluate the evidence by viewing

witnesses and observing their demeanor, voice inflection, and gestures,” and some

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competent, credible evidence supports the conclusion that Lump did not possess

the requisite knowledge of Larson’s business relationships and contracts.

Warnecke,

.

{¶28} For the reasons above, Larson’s tortious-interference-with-business-

relationships cause of action failed under at least two of the elements of that tort.

We hold that that the trial court’s judgment is supported by some competent,

credible evidence and therefore not against the manifest weight of the evidence.1

{¶29} Larson’s assignment of error is overruled.

{¶30} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr

1 Not lost on us in Lump’s failure to abide by the trial court’s order to cooperate with Larson so that Larson could remove his personal property from the leased premises. The trial court found Lump in contempt of court and found that he failed to purge his contempt. (See Doc. No. 58). Our decision in this case is in no way an endorsement of Lump’s disregard for the trial court’s orders.

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