[Cite as Boone Coleman Constr., Inc. v. Piketon, 2016-Ohio-1557.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

PIKE COUNTY 

BOONE COLEMAN : Case No. 13CA836 

CONSTRUCTION, INC., 

 Plaintiff-Appellant, : 

v. : DECISION AND 

 JUDGMENT ENTRY 

VILLAGE OF PIKETON, OHIO, : 

 Defendant-Appellee. : 

APPEARANCES: 

Stephen C. Rodeheffer and John A. Gambill, Portsmouth, OH, for appellant. 

Eric B. Travers and Timothy A. Kelley, Kegler Brown Hill & Ritter, L.P.A., Columbus, 

OH, for appellee. 

Harsha, J. 

{¶1} This cause is before us on remand from the Supreme Court of Ohio. In 

Boone Coleman Constr., Inc. v. Piketon, 2014-Ohio-2377, 13 N.E.3d 1190 (4th Dist.), 

we sustained that portion of Boone Coleman’s first assignment of error contesting the 

trial court’s awarding of liquidated damages to Piketon on a public-road-construction 

contract. We held that the $277,900 amount of liquidated damages was so manifestly 

unreasonable and disproportionate to the contract price of $683,300 that it constituted 

an unenforceable penalty, and reversed that portion of the trial court’s summary 

judgment enforcing the liquidated-damages provision. We affirmed the remainder of the 

judgment. On review the Supreme Court of Ohio vacated that part of our judgment that 

held the liquidated-damages provision constituted an unenforceable penalty. The court 

remanded the cause to us to reconsider the liquidated-damages provision in light of its 
Pike App. No. 13CA836 2 

opinion. Boone Coleman v. Piketon, __ Ohio St.3d __, 2016-Ohio-628, __ N.E.3d __, ¶ 

42. 

A. ANALYSIS 

{¶2} The applicable test to determine whether a contractual provision should be 

considered a liquidated-damages provision or an unenforceable penalty is set forth in 

Samson Sales, Inc. v. Honeywell, Inc., 12 Ohio St.3d 27, 465 N.E.2d 392 (1984), 

syllabus: 

Where the parties have agreed on the amount of damages, ascertained by 

estimation and adjustment, and have expressed this agreement in clear 

and unambiguous terms, the amount so fixed should be treated as 

liquidated damages and not as a penalty, if the damages would be (1) 

uncertain as to amount and difficult of proof, and if (2) the contract as a 

whole is not so manifestly unconscionable, unreasonable, and 

disproportionate in amount as to justify the conclusion that it does not 

express the true intention of the parties, and if (3) the contract is 

consistent with the conclusion that it was the intention of the parties that 

damages in the amount stated should follow the breach thereof. 

The Supreme Court held that we properly applied the first and third parts of the Samson 

Sales test. But, the Supreme Court held that we erred in applying the second part of the 

test. Id. at ¶ 31. Upon remand, it is apparent that application of the principles set forth 

in the Supreme Court’s opinion demands the conclusion that “the contract as a whole is 

not so manifestly unconscionable, unreasonable, and disproportionate in amount as to 

justify the conclusion that it does not express the true intention of the parties.” Id at ¶ 

syllabus. 1

 1 As the Supreme Court noted, determining whether the stipulated sum is an unenforceable penalty or an 

enforceable provision for liquidated damages is a “difficult problem,” i.e. “it is sometimes difficult to 

determine whether the terms actually provide for damages or for a penalty.” Id at ¶ 16 and 28. Thus 

prospective vision, rather than hindsight, is critical to the analysis. 
Pike App. No. 13CA836 3 

{¶3} As the Supreme Court observed at ¶ 30-33 of its decision (footnote 

omitted): 

{¶ 30} * * * Piketon and Boone Coleman did not contract for a lump sum. 

Rather, the parties contracted for a per diem measure of damages which, 

as Chief Justice Marshall recognized, is more likely to be an enforceable 

liquidated-damages provision than an unenforceable penalty: “[T]he 

agreement to pay a specified sum weekly during the failure of the party to 

perform the work, partakes much more of the character of liquidated 

damages than the reservation of a sum in gross.” Tayloe v. T. & S. 

Sandiford, 20 U.S. 13, 18, 7 Wheat. 13, 5 L.Ed. 384 (1822). * * * 

{¶ 31} More importantly, the appellate court's myopic focus on the 

reasonableness of the total amount of liquidated damages in application, 

rather than on the reasonableness of the per diem amount in the contract 

terms, was not proper. The correct analysis looks at whether it was 

conscionable to assess $700 per day in liquidated damages for each day 

that the contract was not completed rather than looking at the aggregate 

amount of the damages awarded. Accord Carrothers Constr. Co., 288 

Kan. at 759, 207 P.3d 231. 

{¶ 32} Although per diem amounts vary greatly in the case law, courts 

have upheld liquidated-damages provisions in public-construction 

contracts with per diem amounts similar to those at issue here. See, e.g., 

Sec. Fence Group, Inc. v. Cincinnati, 1st Dist. Hamilton No. C–020827, 

2003-Ohio-5263, 2003 WL 22270179 (enforcing a per diem liquidateddamages provision in a public-bridge-replacement project that imposed 

$600 per day); see also Carter Steel & Fabricating Co. v. Ohio Dept. of 

Transp., 102 Ohio Misc.2d 1, 721 N.E.2d 1115 (Ct. of Cl.1999) (impliedly 

recognizing the validity of a liquidated-damages per diem provision in 

bridge-construction project that imposed $600 in liquidated damages per 

day, but refusing to enforce it against subcontractor who had no control 

over delay); Hovas Constr., 111 So.3d at 667 (upholding as reasonable a 

$500 per diem assessment of liquidated damages in public-construction 

contract); Carrothers Constr. Co., 288 Kan. at 759, 207 P.3d 231 ($850 
Pike App. No. 13CA836 4 

per diem assessment of liquidated damages held reasonable in publicconstruction contract). In fact, courts have upheld far greater amounts of 

per diem damages in construction contracts. See, e.g., Dade Cty. Pub. 

Health Trust, 577 So.2d at 638 (upholding as “perfectly reasonable” a 

liquidated-damages provision imposing $2,500 in damages per day in 

public-construction project for medical facility); Bethlehem Steel Corp. v. 

Chicago, 350 F.2d 649 (7th Cir.1965) (upholding a liquidated-damages 

provision imposing $1,000 in damages per day in public-construction 

project for elevated highway, even though contractor's delay did not 

prevent highway from opening to public on date scheduled). See also

Unruh & Worden, 34 Santa Clara L.Rev. 1, at fn. 1 (in commercial 

construction contracts, “a typical per diem liquidated damages provision 

might provide that the general contractor pay the owner/developer 

$10,000 for each calendar day” of delay). 

{¶ 33} Moreover, the per diem liquidated damages imposed by the 

contract between Piketon and Boone Coleman reflect the Ohio 

Department of Transportation's 2013 Construction and Material 

Specifications. Those specifications not only require liquidated damages 

be deducted from any sum owed the contractor for each day by which the 

contractor exceeds the completion date, but set out the specific amount of 

the per diem damages. The per diem damages are thus consistent with 

Ohio public policy. 

{¶4} As the Supreme Court ultimately concluded, Boone Coleman “may not 

avoid the result of the valid liquidated-damages provision it negotiated through counsel.” 

Id. at ¶ 41. Echoing their determination, we conclude the liquidated damages provision 

of $700 per day for delay beyond the contract deadline was reasonable. 

CONCLUSION 

{¶5} Applying the principles elucidated in the Supreme Court’s decision, we 

hold that the trial court correctly determined that the summary-judgment evidence 

established that the liquidated-damages provision in the public-works-construction 
Pike App. No. 13CA836 5 

contract was enforceable under the Samson Sales test. Therefore, we overrule Boone 

Coleman’s assignments of error and affirm in toto the judgment of the trial court. 

JUDGMENT AFFIRMED.
Pike App. No. 13CA836 6 

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the 

costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Pike 

County Court of Common Pleas to carry this judgment into execution. 

 Any stay previously granted by this Court is hereby terminated as of the date of 

this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Abele, J.: Concurs in Judgment and Opinion. 

*Ringland, J.: Concurs in Judgment Only. 

 For the Court 

 BY: ________________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk. 

*Robert P. Ringland, from the Twelfth Appellate District, sitting by assignment of The 

Supreme Court of Ohio in the Fourth Appellate District.