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No. 12-3031 UNITED STAT ES COURT OF AP P EALS FOR THE SI XTH CI RCUI T

J GR, I NC. Plaintiff-Appellant,

v. THOMASVI L L E FU RNI TURE I NDUSTRI ES, I

NC. Def endant- Appellee

. ON APPEAL FROM THE UNI TED STATES DI STRI CT C O U R T F O R T H E NORTHERN DI STRI CT OF OHI O

/ BEF ORE: MARTI

N, and MOO RE, Circuit J udg es; WEBER, Senior District J udg e. * BO YCE F. MARTI

N, J R., Circuit J udg e. Proving that three times is not alway s the char m, this contra ct dispute betwee n J GR, I nc., which opera ted a furniture store, and Thomasville Fur niture I ndustries, I nc., is befor e us for the fourth time. J GR appea ls three ruling s by the district court and asks us to vaca te the district c ourt’s judgme nt, e ntere d pursuant to a stipulation by the parties, that J GR will rec over from Thomasville $472,000. For the rea sons discussed below, we AF F IRM the judgme nt of the district court.

T h e Ho n o rable Her

man J

. Weber, Senior United States District J udg e for the Souther n * District of Ohio, sitting by desig nation.No. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 2 I

. This Court has descr ibed the history of this dispute in three previous opinions. See JGR, Inc.

v. Thomasville Furniture Indus., Inc. , 550 F.3d 529 (6th Cir. 2008) (“ JGR III ”); JG R , In c. v. Thomasville Furniture Indus., Inc. , 370 F.3d 519 (6th Cir. 2004) (“ JGR II ”); Thomasville Furniture Indus., Inc. v. JGR, Inc. , 3 F. App’x 467 (6th Cir. 2001) (“ JGR I ”). As we rec ounted in JGR III , 550 F.3d a t 531 (citations omitted): Thomasville sued J GR in f eder al court in 1996 to collect pay ment for furniture and service char g es. J GR filed a separ ate claim for breac h o f oral and written contract and fra udulent misrepre sentation ag ainst Thomasville in Ohio state co u rt, which Thomasville then remove d to fe d eral court. I n 1999, the district court g rante d summary judgme nt in Thomasville’s favor , ruling that the Ohio stat u t e of fra uds barr ed J GR’s brea ch of oral contra ct claim and that its implied covena nt of g ood faith claim also failed beca

use it was based on the unenfor cea ble oral co ntrac t. J GR appea led and, in 2001, this Court reve rsed and rema nded for further consideration of the ‘scope of the wr itten terms of the 1992 Ag ree ment.’ At the 2002 trial, which followed the rema nd, a jury found that Thomasville had brea ched its 1992 written contra ct and awa rded J GR zero lost profit s and $1.5 milli on lost business value damag es. . . . This Court aff irmed the ‘district court’s judgme nt insofar as it ref lect[ed] the j ury ’s verdict as t o liability ,’ but held that the district court abused its discretion by admitting lay opinion testimony and t h at the improper admission ‘re quire[d] vacature of the jury ’s damag es awa rd and rema

nd for a new trial solely

on the issue of da mag es. At the retria l on damag es, the jury awa rded J GR $3.3 milli on in lost profits and $3.53 milli on in lost opportunity costs. Thomasvill e ap peale d the verdic t, asking us to decide —among other issues—whether the di strict court erre d by allowing J GR to seek lost profits when JGR had failed
to appea l the previous jury ’s verdic t of zero lost profits. Id. at 530-31. We found that J GR’s failure
to a ppeal the zero lost prof

its a war d barr ed it from ar g uing for lost prof it damag es and vacated the jury awa rd of lost profits. We also v ac at ed t h e lost opportunity cost awa rd beca use it depende dNo. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 3 entirely on the jury ’s finding of lost prof its. We rema

nded for “a new trial on damag es for loss of business value.” Id. at 533. I n so rema nding, we did not “rule on J GR’s reque st for damag es in the amount of intere st on Thomasville’s judgme nt ag ainst it.” Id. at 533 n.1. On the most rec ent re m an d , J GR’s expert, Robert M. Gre enwa ld, prepa red a new repor

t calc ulating the value J GR’s business at the time of the contra ct brea ch. The damag es calc ulation included the value of four stores that J GR planned to open at the time of the contract brea ch. Thomasville moved for summary ju d g me n t, d is p u ting this valuation on various g rounds. The district
court denied summary judgme nt to Thomasville but ruled that “no evidenc e rela ting” to the third and fourth planned stores could be submitt ed to the jury

. The district court also found that J GR should be able to submit a claim for damag es in the amount of interest on Thomasville’s 1999 judgme nt
ag ainst it. Thomasville moved for rec onsideration which the district court gra n t ed in part. As rele vant her e, the district cour t found that at t rial, “[ a]ll that plaintiff wil l be allowed to show, if it
can, is what it likely lost in terms of dollars beca use it was not able to rea liz e its anticipated second
store. That and only that will constitute the lost ‘re turn on investment’ or ‘opportunity costs.’” After this ruling , the district court set a trial date. Gre enwa ld issued a supplemental damag es repor t setting forth alterna tive loss calc ulations for two J GR stores afte r five y ear s of opera tion, assuming that J GR

never opened store s three a

nd four. Shortly there afte r, the district c ourt vacated its finding that J GR should be able to submit a claim for damag es in the amount of interest on Thomasville’s 1999 judgme nt ag ainst it, finding that the issue was not proper ly befor e the district court on the limit ed rema nd focuse d on damag es from loss of busi ness value. J GR filed a motion for reconsider ation which t he dis trict court refe rre d toNo. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 4 the m ag istrate judge, along with three motions in limine filed by Thomasville, seeking to exclude (1) testimony by J GR’s expert reg arding his opinion on the “loss of value” estimate; (2) any evidenc e reg arding the 1999 judgme nt obtained by Thomasville; and (3) any testimony about alleg ed prebrea ch “w rong ful conduc t” or “ interfe renc e” by Thomasville. As to the three motions in limine, the mag istrate judge rec ommended allowing the expert testimony g ener ally but rec ommended exclusion of the alterna tive loss calc ulations by J GR’s expert beca use they wer e based on the assumption that the stores would have doubled in siz e afte r five y ear s of operation. The magistra te j udg e also re co mmended that the bus iness value of the s econd store include the ac t u al cost of opening a second store, rathe r than a cost based on the reinve stment of assumed an d as -y et-une arne d profits. The mag istrate judge rec ommended the denial of Thomasville’s s econd and t hird motions in limine. Reg arding the m otion for reconsider ation, the
mag istrate judg e re commended de ny ing the motion on the grounds that allowing J GR to submit a claim for damag es in the amount o f i n t er est on Thomasville’s 1999 judgme nt ag ainst it would amount to “an imper

missibl e collate ral attack” on Thomasville’s 1999 judgme nt “and/or is bar red by principles of res judicata .” The district court adopte d these re commendations. Following the ruling of the district court, the parties enter ed into a joint stipulation ag ree ing that J GR would be awa

rded damag es in the amount of $471,880. The parties rea ched this ag ree ment based on the cost of trial and the ag ree ment that $471,880 was the most that J GR would be able to obtain g iven the district court’s pretria l ruling s. Ba sed on the district court’s ruling s, J GR would be able to claim its expert’s highe st damag e valuation, $324,000, for the value of the actua l store, plus $148,000 for the value of the plann ed s ec o n d s tore. By enter ing into the stipulation, both partiesNo. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 5 ag ree d that neither waived objections to the ruling s of the district court. J GR appea ls the following ruling s by the district court: (1) that J GR would be prohibited from submi t t i n g a cl ai m for
conseque ntial damag es in an amount equal to the pre- and post-judgme nt i n t er est due on Thomasville’s 1999 judgme nt; (2) that J GR would be prohibit ed from prese nting evidence on the value of the third and fourth stores; (3) that J GR would be prohibited from prese nting to the jury a loss of value calc ulation based on the assumption that J GR would have doubled the siz es of its first and second stores afte r five y ear s of opera tion; and (4) that J GR, in prese nting a value of the second store to the jury , must subtract the cost of ope ning the second store

. I I

. A. 1999 J udg ment J GR arg ues that the district court err ed in find i n g that J GR cannot rec over damag es in an
amount equal to the interest it owe s Thomasville on the 1999 judgme nt tha t T homasville obtained
ag ainst J GR in c ase No. 1:96-cv-1424. The district c ourt enter ed the 1999 judgme nt pur suant to a stipulation betwee n Tho m as v ille and J GR. After the di strict court entered summary judgme nt on the question of J GR’s liability for furniture delivere d by Thomasville to J GR, the parties ag ree d on the amount J GR owed to Thomasville. J GR did not appea l either the district court’s liability ruling

or its entry of the stipulated judgme nt. On Marc h 21, 2005, in this c ase the district court ruled that Thomasville was entitled to of fset the 1999 J udg ment ag ainst any damag es awa rded to JGR i n the
amount of $869,829.94 plus post-judgme nt interest. J GR now arg ues that it is due conseque ntial damag es in an amount equ al to the interest J GR owes Thomasville on the 1999 judgme nt. J GR
arg ues that but for Thomasville’s 1992 brea ch of contra ct, J GR would have been in business and ableNo. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 6
t o p ay its debts to Thomasville and thus would not have been require d to pay any interest to Thomasville. The district court found that J GR was barr ed from submitt ing this claim to a jury beca use any such claim amounts to “an imperm is s ib le collater al attack” on Thomasville’s 1999 judgme nt “and/or is barr ed by principles of res judicata .” We revie w leg al questions, including the application of the collater al attack doctrine, de novo. See Gargallo v. Merrill Lynch, Pierce , Fenne r & Smith, Inc. , 918 F.2d 658, 660 (6th Cir. 1990). J GR arg ues that the district cour t wrong fully applied the doctrines of collater al attack and res judica ta. Thomasville def ends the judgme nt of the district c ourt on the basis of the doctrines of collater al attack and res judicata, and, i n t h e al terna tive, arg ues that the interest damag es J GR seeks to obtain are not conseque ntial damag es beca use they wer e not damag es proxi mately

cause d by

the bre ach. Even if we assume that there exis t some instances in w hich an amount equal to the interest

one party owes another on a previously enter ed judgme nt could be a conseque ntial damag e resulting from a contra ct brea ch interest, which is a proposition that we doubt, we find that allowing J GR to submit a claim for conseque ntial damag es in an amount equal to the interest J GR owes Thomasville would amount to an impermissible collater al attack on the 1999 judgme nt. The Ohio Supreme Court has define d a collater al attack as “an attempt to defe at the opera tion of a judgme nt, in a proce eding wher e some new rig ht derive d from or throug h the judgme nt is involved.” Ohio Pyro, Inc. v. Ohio Dep’ t of Commerce , 875 N.E.2d 550, 555 (Ohio 2007). “[C] o l l at er al or indirect attacks are disfavore d and

. . . they will succe ed only in very limit ed situations.” Id. I ndeed, a collater al attack will only be permissible if the initial judgme nt was enter ed by a court lacking jurisdiction or an actNo. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 7 of fra ud resulted in the entry of the judgme nt. Id. at 553. J GR ag ree s that the 1999 judgme nt is valid and asser ts that it is not attempting to attack the judgme nt. Non et h el es s , the succe ss of J GR’s
arg ument hinge s on allowing a jury to consider whether , but for Thomasville’s brea ch, any judgme nt would have been enter ed at all. Moreove r, if J GR wer e allowed to pursue its conseque ntial damag es cl ai m, Thomasville would be deprive d of a larg e part of the benef it of the 1999 judgme nt. W e believe J GR’s claim for conseque ntial damag es is actua lly a collater al attack on the 1999 judgme nt. J GR neither claims that the district court was without jurisdiction to enter the 1999 judgme nt nor that the judgme nt was the product of fra ud, thus it is an impermissible attack on the 1999 judgme nt. See
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a ff i r m a t i v e R IC O c l a i m t o r e c o v e r t r e b l e t h e a m o u n t o f a d e fa u l t j u d g m e n t e n t e r e d a g a i n s t h i m i n p r i o r

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. 2 0 0 3 ) ( fi n d i n g t h a t p l a i n t i ff i m p r o p e r l y “ i m p l i c i t l y s e e k s t o v o i d t h e [ p r e v i o u s l y e n t e r e d ] d e fa u l t j u d g m e n t ” b y r a i s i n g i n a s u b s e q u e n t a c t i o n a ff i r m a t i v e c l a i m s fo r “ d a m a g e s t h a t w o u l d p r e s u m a b l y i n c l u d e t h e fu l l

a m o u n t o f t h e d e fa u l t j u d g m e n t ” )

. J GR arg ues that the collater al attack doctrine does not apply in this case beca use J GR ’s

co n s equential damag es claim to rec over interest it owes to Thomasville was broug ht in the s am e court that e ntere d the 1999 judg ment. This arg ument is ba sed on a f aulty leg al pre mise: collatera l attacks on a judgme nt nee d not involve separ ate or subsequent courts. See, e.g. , Black & W hiteNo. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 8 Children of the Pontiac Sch. Sys. v. Sch. Dist. of City of P ontiac , 464 F.2d 1030, 1030-31 (6th Cir. 1972) (apply

ing collater al attack doctrine to b ar a complaint beca use it was filed as “an attempt collater ally t o attack” an order enter ed in “the principal case ” handled by the same judge ) (per curia m). J GR also arg ues that its c laim for dama g es base d on the amount it owes in interest is not a collater al attack beca

use i t is not “ac tually an attack on the integrity o f t h e j u dg ment,” nor does i t rende r the underly

ing judgme nt “inef

fec tive” as require d by the Ohio Supreme Court’s definition of collater al attack in Office Pyro , 875 N.E.2d at 555. Howeve r, as J GR acknow ledg ed befor e the district court, considera

tion of the claim of interest damag es require s a j u ry t o fi n d “ w h e t h e r a n y j u d g m e n t w o u l d h a v e b e e n t a k e n

— a n d t h e r e fo r e w h e t h e r a n y p r e - j u d g m e n t o r p o s t

-

j u d g m e n t i n t e r e s t

w o u l d h a v e b e e n a s s e s s e d a g a i n s t J G R

— h a d t h e r e b e e n n o b r e a c h o f c o n t r a c t b y T h o m a s v i l l e . ” T h u s , t h o u g h J G R r e q u e s t s o n l y s u b m i s s i o n o f t h e i n t e r e s t o n t h e j u d g m e n t b e s u b m i t t e d t o t h e j u r y, t h e l o g i c

u s e d b y J G R w o u l d a l l o w r e c o n s i d e r a t i o n o f t h e e n t i r e j u d g m e n t

. M o r e o v e r , t h e p u r p o s e o f a w a r d i n g i n t e r e s t i s t o c o m p e n s a t e a p a r t y— i n t h i s c a s e T h o m a s v i l l e

— “ fo r t h e l a p s e o f t i m e b e t w e e n t h e a c c r u a l

o f t h e c l a i m a n d j u d g m e n t , ” a n d t h e n fo r t h e l a p s e i n t i m e u n t i l t h e p a ym e n t o f j u d g m e n t

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. , 6 5 2 N

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. A n a w a r d o f t h e a m o u n t o f t h e i n t e r e s t o n t h e 1 9 9 9 j u d g m e n t a s d a m a g e s w o u l d u n d e r m i n e t h e j u d g m e n t a w a r d e n t e r e d i n 1 9 9 9

. Be cause we conclude that J GR’s eff ort to obtain damag es in an amount equal to the interest it owes Thomasville on the 1999 judgme nt is a collater al at t ac k o n that judgme nt, we need not consider the parties’ arg uments rela ting to the application of res judicata or the propriety of framing
t h e re q u es t for awa

rds in the amount of interest J GR owes to Thomasville based on the 199 9No. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 9 judgme nt as a reque st fo r consequential damag es. We aff irm the district court’s denial of J GR’s motion to rec onsider the district court’s prev i o u s ruling that J GR would not be allowed to submit claims for the amount of intere st it owes to Thomasville on the 1999 judgment. B. Evidentiary

Rulings J GR also appea ls the district court’s ruling s on three evidentiar y issues. First, J GR appea ls the district court’s ruling disallowing J GR from p re s en t i n g evidenc e on the value of two planned
stores that would have been the third and fourth J GR stores. Second, J GR appea ls the district court’s ruling to deny J GR the opportunity t o p re s en t t o the jury its alterna tive loss of value calc ulation based on the assumption that J GR would have doubled the sizes of its first and second stores afte r five y ear s of opera tion. Third, J GR appea ls the district court’s ruling that J GR, in prese nting a value of a pla nned sec ond store to the j ury , must also subtract the cost of opening the second store . We revie w the district court’s eviden t i ary ruling s for abuse of discretion. See Taylor v. TECO Barge Line, Inc. , 517 F.3d 372, 378 (6th Cir. 2008). “A court abuses its discretion when it commits a clea r

err or of judgme nt, such as apply ing the incorre ct leg al standard, m i sapply ing the corr ect leg al standard, or relying upon clea rly err oneous finding s of fac t.” Jones v. Ill. Cent. R. Co ., 617 F.3d 843, 850 (6th Cir. 2010). Ther e wa s no abuse. We beg in by assessing the district court’s dec i s i o n t o exclude J GR’s valuation of two planned, unopened, stores that would have been the third and fourth J GR stores. At the time of the
contra ct breach, J GR had one open st ore and there is evidenc e that it had begun n egotiations on a lease for a s ec o n d store. Prior to the last trial, the district court ruled that J GR could not submit testimony by its expert reg arding damag es for lost profits or lost opportunity costs resulting from theNo. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 10 planned third and fou rt h s t ores beca use “[t] he third and fourth stores wer e never more than amorphous plans on the part of J GR, without even the lease neg otiations J GR enter ed into reg arding

a possible second store at some location on the west side of Cleveland.” The district court conclude d that “any testimony or evidenc e, to the extent they discussed lost profits from planned third or fourth stores,” would be excluded. After the trial, J GR did not appea l this ruli n g. T h e d i s t rict court conclude d that J GR’s failure to appea l this issue meant that the previous district c ourt holding had b ec ome “law of the case ” that could not be rec onsidered. “A party that fails to appea l an is s u e ‘wa ive[s] his rig ht to raise the[] i s s u e[ ] befor e the district court on rema nd or before this court on
appea l afte r rema

nd. The law-of

-the-c ase doctrine bars challeng es to a decision made at a previous stag e of litigation which could have been challeng ed in a prior appea l, but wer e not.’” JGR III , 550 F.3d a t 532 (citation omitted). J GR arg ues that the law-of -the-c ase doctrine does not apply here beca use the district court’s initial ruling applied to the use of e vidence reg arding stores t hree and four as evidence of “loss of profits.” I n contra st, J GR hoped to use the evidenc e in the third trial as evidenc e of loss of business value. JGR arg ues that loss of value da mag es ar e less spec ulative than loss of prof it damag es and
t h ere fore subject to differ ent, more lenient evidentiar y rules. See Schonfeld v. Hilliar d , 2 1 8 F. 3 d 164, 175-76 (2d Cir. 2000) (compa ring “mar ket value of an income-p roducing asset” with lost profits and finding that marke t value is “inher ently less specula tive than lo s t profits” so “it is
appropr iate to apply

. . . proof require ments more leniently [t o marke t loss damag es] than [t o] proof of lost profits”). Thus, acc ording to J GR, the district court’s ruling on the admissibili ty of evidenc e

o f p l an n ed s t o re s three and four to “loss of profit” cannot be applied to the use of the stores asNo. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 11 evidenc e of loss of business value. The district court, howeve r, did not base its p re v i o us ruling barr ing the admission of ev i d en ce rega rding stores t hree and four on the s pecula tive nature of t he damag es calc ulation but rathe r on th e s p ec u l at ive nature of the exis tence of Stores #3 and #4. “[C] onsequential da mag es for brea ch of c ontrac t . . . ha ve long been subject to the rule of law that

a plaintiff is only entitled to r ecove r such damag es as may rea sonably be supposed to ha ve been in the contemplation of the parties at the time they made the contra ct.” Ed Stinn Chevrolet, Inc. v. Nat’l City Bank , 503 N.E.2d 524, 536 (Ohio 1986). Given the district court’s previous finding that Stores #3 and #4 wer e not “suff

iciently within the contemplation of the parties at the time of the contra ct’s formation,” a

nd J GR’s failure to appea l this ruling, we f ind that the district court did not abuse its discretion in acc epting this finding that the evidenc e on the value of the third and fourth stores could not be submitted to the jury

. Gr eenw ald’s supplemental damag es repor t claimed “that if [J GR’s principal] had b ee n unable, for any rea son, to proce ed with Stores #3 and #4 as orig inally planned, he would have expanded t he si ze o f b o th Store #1 and S tore #2” afte r five y ear s of operation. The dist rict court held that the basis for its orig inal ruling disallowing ev i d ence reg arding Stores #3 and #4 – that evidenc e reg arding a plan to open a third and fourth store is too specula tive – applies equally to the projec ted expansion of Stores #1 and #2, which would have been entirely conting ent on the outcome of the alre ady

specula tive plans for Stores #3 a nd #4. J GR mentioned plans to double the sizes of Stores #1 and #2 for the first time in April 2011, afte r more than a deca de of litigation and only afte r
t h e district court disallowed evidenc e reg arding Stores #3 and #4. Moreove r, the distric t co u rt

corr ectly distinguished the c ases r elied upon by J GR for support. Under the s tandar ds set forth inNo. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 12 both Bd. of Cnty. Comm’rs of Hamilton Cnty. v. Flanco Realty Co. , No. C-980781, 1999 WL 420156 (Ohio Ct. App. J une 25, 1999) and Heatranfer Corp. v

. Volkswagenwerk, A.G

. , 553 F.2d 964 ( 5th Cir. 1988), the expansion of Stores #1 and #2 is hig hly specula tive. We find that the district court did not abuse its discretion in acc epting the mag istrate judge ’s

rec ommendation that J GR could not obviate its ruling disallowing evidenc e reg arding Stores #3 and #4 by prese nting to the jury a loss of value calc ulation based on the assumption that J GR would have doubled the sizes of its first and second store afte r five y ear s of oper ation. Gre enwa ld stated that the cost of ope ning JGR’s second store would have be en $225,000, but that a new buy er de termining the value of J GR’s business at the time of the br eac h would have de termined that the c ost of opening a new store wa s $58,000 beca

use appr ox imately $167,000 of the c ost would have be en off set by the projec ted profits of Store #1. Thus, in deter mining the va lue of Store #2, Gr eenw ald’s re port subtrac ts $58,000 from its total value. Rely ing on this Court’s dec ision to preclude r ecove ry for “ lost profits” or “lost opportunity costs” due to J GR’s failure to appea l the issue, the district court a cce pted the mag istrate judg e’s

rec ommendation that it would be consistent with the law of the case to prohibit J GR’s expert from taking into consideration the pr ojected pr ofits of Store #1 in deter mining the va lue of Store #2; theref ore, the district court held that Gr eenw ald must subtract the e ntire cost of a new store , $225,000, from his valuation of Store #2. In addition, J GR’s expert admitted that at the time of the bre ach, a

buy er w ould have ne eded $225,000 to ope n Store #2 bec ause the re w ere no funds available from Store #1. Thomasville’s br eac h was not the c ause Store #1' s lack of pr ofits at the time of the bre ach. We f

ind that the district court did not abuse its discre tion in ruling that, inNo. 12-3031

JGR, I nc. v. Thomasv ille Furniture Industries, Inc. Pag e 13 deter mining the va lue of Store #2, JGR mus t subtract the a ctual cost of ope ning the second store

. J udg ment AFF I RMED.