[Cite as Turfco Landscaping, Inc. v. Shenigo, 2021-Ohio-4259.]

IN THE COURT OF APPEALS OF OHIO 

ELEVENTH APPELLATE DISTRICT 

PORTAGE COUNTY

TURFCO LANDSCAPING, INC., 

 Plaintiff-Appellee, 

 - v - 

FRANK SHENIGO, 

 Defendant-Appellant. 

CASE NO. 2020-P-0006 

 

Civil Appeal from the 

Court of Common Pleas 

Trial Court No. 2017 CV 00203 

O P I N I O N 

Decided: December 6, 2021

Judgment: Affirmed as modified 

Jack B. Cooper, Milligan Pusateri Co., LPA, P.O. Box 35459, 4684 Douglas Circle, 

N.W., Canton, OH 44735 (For Plaintiff-Appellee). 

Tyler J. Whitney, Burdon & Merlitti, 137 South Main Street, Suite 201, Akron, OH 44308 

(For Defendant-Appellant). 

THOMAS R. WRIGHT, J. 

{¶1} Appellant, Frank Shenigo (“Shenigo”), appeals the trial court’s judgment in 

favor of appellee, Turfco Landscaping, Inc. (“Turfco”), in the amount of $75,506.04. The 

judgment is modified to $75,505.88 and affirmed as modified. 

{¶2} Beginning in 2012, Turfco, a landscaping and snow removal company, 

leased commercial property from Shenigo to store equipment and vehicles. Turfco filed 

suit against Shenigo in 2017 for replevin, conversion, breach of contract, tortious 

interference with business contracts and relationships, and punitive damages. Turfco 
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alleged that “Shenigo and/or his agents have recently locked Turfco out of the Property 

and wrongfully taken possession of Turfco’s property, purposely and intentionally 

damaging it, and refused to release certain vehicles and equipment belong to Turfco.” 

Shenigo answered and filed a counterclaim for breach of contract, property damage, and 

conversion. 

{¶3} The case was tried to a magistrate, who decided that judgment should be 

granted against Shenigo on the complaint and counterclaim in the amount of 

$133,259.06. The magistrate made the following relevant findings of fact and conclusions 

of law: 

On or about February 2, 2017, Defendant caused Plaintiff to 

be locked out [of] the premises. * * * Defendant refused to 

explain the reasoning for the lockout to Plaintiff. When 

Defendant locked out Plaintiff from the property, Plaintiff’s 

business equipment was in the buildings on the property and 

Plaintiff had no access to [the] same. Due to the lockout, 

Plaintiff could not continue to maintain his landscaping/snow 

removal contracts. Plaintiff lost customers and contracts due 

to his inability to perform services as his commercial 

equipment was inaccessible. Plaintiff lost profits and had to 

cease business due to the lost business. 

Plaintiff’s sales for the period of February 1, 2016 through 

March 15, 2016 were $38,243.65 pursuant to business 

records. Plaintiff’s sales for February 1, 2017 through March 

15, 2017, during the lockout, were $9,569.20 pursuant to 

business records. 

Plaintiff’s sales for the period of February 1, 2016 through 

June 1, 2016 were $211,036.10 pursuant to business records. 

Plaintiff’s sales for the period of February 1, 2017 through 

June 1, 2017 were $22,271.00 pursuant to business records. 

One of the clients that Plaintiff lost was Ramco, which was 

responsible for $114,570.00 in sales from February 1, 2016 

through June 1, 2016. The Ramco sales were $0 in sales for 

2017. Shane Polen [the owner of Turfco] testified that Ramco 
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canceled the contract because Plaintiff could not serve 

Ramco during the lockout. 

Another client that Plaintiff lost due to the lockout was H.M. 

Miller, which was responsible for $44,959.50 in sales from 

February 1, 2016 through June 1, 2016. The H.M. Miller sales 

were $0 in 2017. 

Plaintiff’s profit margin on its work was 60% of sales. Plaintiff 

lost $188,765.10 in sales as a result of the lockout or 

$113,259.06 in profit. 

{¶4} Shenigo filed objections to the magistrate’s decision, to which Turfco 

responded in opposition. The trial court upheld the magistrate’s decision in Turfco’s favor 

on the complaint and counterclaim but sustained one of Shenigo’s objections as to the 

amount of damages. The trial court found that “the Magistrate incorrectly calculated the 

damages and awarded Plaintiff 60% profit loss instead of the testified to amount of 40% 

profit loss” and, accordingly, reduced the damages award to $75,506.04. 

{¶5} Shenigo appealed and advances three assignments of error: 

[1.] The trial court erred and abused its discretion in granting 

Turfco Landscaping a judgment against Shenigo for reason 

that Turfco Landscaping did not meet its burden of proof. 

[2.] The trial court erred and abused its discretion in granting 

Turfco Landscaping a judgment against Shenigo for reason 

that Turfco Landscaping’s evidence was insufficient. 

[3.] The trial court’s judgment in favor of Turfco Landscaping 

and against Shenigo was against the manifest weight of the 

evidence. 

{¶6} Shenigo challenges the weight and sufficiency of the evidence, raising a 

similar argument under each assignment of error: 

The trial court based [its] judgment solely on self-serving 

Sales Summaries produced and testified to by Turfco 

Landscaping. No other evidence was produced by Turfco 

Landscaping. No contracts, no bank records, no other 
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Case No. 2020-P-0006 

testimony [sic]. Turfco Landscaping did not meet its burden of 

proof on these facts and its evidence was insufficient and the 

granting of the judgment in favor of Turfco Landscaping was 

against the manifest weight of the evidence. 

{¶7} “A challenge to the sufficiency of the evidence * * * requires a court to 

determine whether [a party] has met its burden of production at trial. * * * In contrast, in 

deciding whether a [judgment] is against the manifest weight of the evidence, an appellate 

court determines whether [a party] has appropriately carried its burden of persuasion.” 

State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J., 

concurring). “In a civil case, in which the burden of persuasion is only by a preponderance 

of the evidence, * * * evidence must still exist on each element (sufficiency) and the 

evidence on each element must satisfy the burden of persuasion (weight).” Eastley v. 

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. 

{¶8} The sufficiency of the evidence refers to “that legal standard which is 

applied to determine whether the case may go to the jury or whether the evidence is 

legally sufficient to support the jury verdict as a matter of law.” (Citation omitted.) 

Thompkins at 386. In a civil context, the relevant inquiry is whether, after viewing the 

evidence in a light most favorable to the prevailing party, any rational trier of fact could 

have found the elements of the claim proven by a preponderance of the evidence, i.e., 

that the existence of facts supporting the claim is more likely than their nonexistence. 

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; 

State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 

54. 

{¶9} The weight of the evidence concerns “the inclination of the greater amount 

of credible evidence, offered in a trial, to support one side of the issue rather than the 
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Case No. 2020-P-0006 

other.” (Emphasis sic.) (Citation omitted.) Thompkins at 387. “The [reviewing] court * * 

* weighs the evidence and all reasonable inferences, considers the credibility of the 

witnesses and determines whether in resolving conflicts in the evidence, the [finder of 

fact] clearly lost its way and created such a manifest miscarriage of justice that the 

[judgment] must be reversed and a new trial ordered.” (Citation omitted.) Id.; State v. 

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25 (“a reviewing court 

asks whose evidence is more persuasive”). 

{¶10} “In order for a plaintiff to recover lost profits in a breach of contract action, 

the amount of the lost profits, as well as their existence, must be demonstrated with 

reasonable certainty.” Gahanna v. Eastgate Properties, Inc., 36 Ohio St.3d 65, 521 

N.E.2d 814 (1988), syllabus. “Damages which are speculative are not recoverable.” 

(Citation omitted.) Burlington Group, Inc. v. Chardon Lakes Inn Restaurant, Inc., 11th 

Dist. Geauga No. 94-G-1839, 1995 WL 236919, *3 (Mar. 24, 1995). “Evidence of the past 

performance of an established business ‘will form the basis for a reasonable prediction 

as to the future.’” Id., quoting AGF, Inc. v. Great Lakes Heat Treating Co., 51 Ohio St.3d 

177, 181, 555 N.E.2d 634 (1990). “Although lost profits need not be proven with 

mathematical precision, the evidence and theory of the case must provide the finder of 

fact with known, reliable factors that can reasonably guide the computation of damages.” 

(Citation omitted.) Carey v. Down River Specialties, Inc., 8th Dist. Cuyahoga No. 103595, 

2016-Ohio-4864, ¶ 29; Charles R. Combs, Trucking Inc. v. Internatl. Harvester Co., 12 

Ohio St.3d 241, 244, 466 N.E.2d 883 (1984) (lost profits “need only be reasonable, not 

specific”). 

{¶11} At trial, Shane Polen (“Polen”), Turfco’s founder and owner, was the sole 
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witness to testify on behalf of Turfco. At the time of the lockout in February 2017, Turfco 

had around seven employees primarily for salting and plowing, removing holiday lights, 

edging and mulching. Polen testified, based on his experience in running Turfco, that the 

profit margin on sales was around 40 percent. 

{¶12} Polen testified that for the period of February 1 through March 15, 2016, 

Turfco generated sales in the amount of $38,243.65 from commercial snowplowing 

customers that re-signed with the company every year. Polen testified that for that same 

period of time in 2017, i.e., during the lockout, Turfco generated sales in the amount of 

$9,569.20. 

{¶13} Polen further testified that the loss of the snow removal contracts at the time 

of the lockout led to the loss of landscaping business, due to a loss of trust and credibility 

with his customers. Expanding the timeline for calculating losses, he testified that Turfco 

generated sales in the amount of $22,271.00 from February 1 through June 1, 2017. The 

year prior, in 2016, Turfco had generated sales in the amount of $211,036.10 for that 

same time period. 

{¶14} Counsel asked Polen to testify about the loss of Turfco’s two largest 

customers. Income from Ramco and HM Miller was $114,570.00 and $44,959.50, 

respectively, from February 1 through June 1, 2016. Polen testified these customers 

cancelled their contracts as a result of Turfco’s inability to service their properties during 

the lockout and generated no income from February 1 through June 1, 2017. 

{¶15} Polen’s testimony was corroborated by the admission, without objection, of 

Plaintiff’s Exhibit 6 (the 2016 accounting summaries) and Exhibit 7 (the 2017 accounting 

summaries), which provide as follows: 
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Case No. 2020-P-0006 

Sales by Customer Summary 

February 1 through March 15, 2016 

Graphic Detail 980.00 

Henry Wahner 740.00 

HM Miller – 1225 Waterloo Road 23,386.50 

Hudson Presbyterian 2,510.01 

K.S.U. Alpha Phi House Corp. 3,461.28 

K.S.U. Phi Gamma Theta 660.00 

Northeast Eye Surgeons 4,024.66 

Northeast Eye Surgeons – Stow 1,597.86 

Paino Construction 0.00 

Portage Community Health Resources 883.34 

Ramco 0.00 

TOTAL 38,243.65 

Income by Customer Summary 

February 1 through June 1, 2016 

Graphic Detail 980.00 

Henry Wahner 740.00 

HM Miller 44,959.50 

Hudson Presbyterian 4,183.35 

K.S.U. Alpha Phi House Corp. 3,461.28 

K.S.U. Phi Gamma Theta 660.00 

Lemasters, Craig & Lisa 25,262.25 

McDougal, Shel 4,058.00 

Northeast Eye Surgeons 7,199.32 

Northeast Eye Surgeons – Stow 3,195.72 

Paino Construction 0.00 

Portage Community Health Resources 1,766.68 

Ramco 114,570.00 

TOTAL 211,036.10 

Sales by Customer Summary 

February 1 through March 15, 2017

Aberth, Eloise 15.00 

Bennett, Susan 50.00 

Berns, Richard & Faye 50.00 

Burns, Patrick 40.00 

Clevenger, Jean 40.00 

Flinn, James & Dorothy 15.00 

Henry Wahner 500.00 

Hudson Presbyterian 1,673.34 
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Case No. 2020-P-0006 

K.S.U. Phi Gamma Theta 340.00 

Kendel, Jim & Wanda 40.00 

Korosa, Luan 40.00 

Kronander, Bob 50.00 

Lords House of Prayer 50.00 

Nicols, Bonnie 20.00 

Northeast Eye Surgeons 4,024.66 

Northeast Eye Surgeons – Stow 1,597.86 

Portage Community Health Resources 883.34 

Sassaman, Kathy 40.00 

Scott, Chuck 40.00 

Shatrich, Harriet 15.00 

Shatrich, Stefanie 15.00 

Toth, Bob 15.00 

Toth, Louise 15.00 

TOTAL 9,569.20 

Income by Customer Summary 

February 1 through June 1, 2017

Aberth, Eloise 15.00 

Bellamy, Warren 120.00 

Bennett, Susan 110.00 

Berns, Richard & Faye 200.00 

Burns, Patrick 160.00 

Clevenger, Jean 160.00 

Deger, Lisa 90.00 

Flinn, James & Dorothy 105.00 

Henry Wahner 1,000.00 

Hudson Presbyterian 3,346.68 

K.S.U. Phi Gamma Theta 860.00 

Kendel, Jim & Wanda 140.00 

Korosa, Luan 160.00 

Kronander, Bob 200.00 

Lords House of Prayer 350.00 

Louis & Partners Design 1,303.00 

McGinnis, Cheryl 120.00 

Nicols, Bonnie 140.00 

Northeast Eye Surgeons 8,049.32 

Northeast Eye Surgeons – Stow 3,195.72 

Pfaff, James 120.00 

Portage Community Health Resources 1,766.68 

Sassaman, Kathy 160.00 

Scott, Chuck 160.00 

Shatrich, Harriet 105.00 
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Case No. 2020-P-0006 

Shatrich, Stefanie 105.00 

Toth, Bob 15.00 

Toth, Louise 15.00 

TOTAL 22,271.40 

{¶16} Specifically, Polen’s testimony on direct examination was as follows: 

Q. And at this time, describe what your client base was like 

and give us a few examples of your clients? 

A. I had a very large client base and they were very loyal to 

me. I’ve had them forever. Like they just keep resigning with 

me every year. 

Q. Go to tab 6 and take a look at tab 6 and let me know what 

that document is and if that reflects your client base or some 

of your clients. 

A. Yeah. This is some of my clients. These are – the first one’s

like some of, my commercial ones. Second one is also 

commercial. 

Q. Okay. 

A. So those are commercial ones that deal with snowplowing 

and – yeah, these are ones that I definitely did snowplowing 

on. 

Q. All right. Are these accurate numbers for what your sales 

were in 2016 during the months of February 1 through March 

16? 

A. Correct. 

Q. So during that six-week or so time, $38,243.65 in sales to 

these customers? 

A. Correct. 

Q. Were these customers – were any of those customers 

repeat customers that you had more than just during 2016? 

A. Yeah. All of them. 
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Case No. 2020-P-0006 

Q. Okay. And then going to this next page, it looks like we’re 

extending this out rather than stopping at about the time you 

got your property back. This goes through June 1, 2016. 

Same customers? 

A. Yeah, the same customers minus – well, Ramco, they 

dropped me because they’re a very large – 

Q. Well, let’s get to that. This is not the year – this is not ’17? 

This is ’16? 

A. Yep. 

Q. And so $211,036.10 was your sales? 

A. Correct. 

Q. And based on your experience – and you had many of 

these customers repeatedly over the years? 

A. Correct. 

Q. Based on your experience running this company, what was 

your profit margin on sales? 

A. It was around 40 percent. 

Q. All right. So let’s compare to – well, let’s go down this list. 

What happened to Ramco in 2017? Did this dispute with 

Frank Shenigo affect your relationship with Ramco? 

A. Yes, because Ramco is a very large company and they 

have trucks that need to be in and out every day. And I 

couldn’t salt it, couldn’t plow it, couldn’t do anything with them. 

And they just asked me if I was able to take care of it and I 

said, no, I couldn’t do it. 

Q. What efforts did you make at that time, if any, or did Turfco

make at, if any, to try to service your clients while you had no 

equipment? 

A. A guy named David Yost from Yost Landscaping stepped 

up to the plate and took care of a few that were in the Kent 

area because that’s where he plowed. So he plowed 

Northeast Eye and did the salting for me there, but he wasn’t 

going out to Ramco. That’s in Hudson. So I had to tell Rick 
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Case No. 2020-P-0006 

Malson, the owner, that I couldn’t fulfill my contract. He was 

upset that I didn’t show up one day. 

Q. How about HM Miller? 

A. Oh yeah. HM Miller, I just couldn’t get out there. I had no 

dump trucks to do the work that he wanted me to do and – 

Q. What did you do for him? 

A. I did the snowplowing, plus I did like restoration lawns. So 

he does gas repair. And all winter long we would come and 

take the dirt off that was mounded up. Then we put topsoil 

down and seed it and straw it and it was all year. 

Q. And the trucks you had to do this work were at Frank 

Shenigo’s place? 

A. Yes. 

Q. Locked down? 

A. Yes. 

Q. Okay. Let’s go to tab 7. And explain the first page at tab 7,

the chart that’s February 1 through March 15, explain what 

this is. 

A. These are more snowplow accounts. 

Q. Okay. But it’s for a different year; correct? 

A. Yep. 

Q. And does this reflect the business that Turfco did during 

the period February 1, 2017, through March 15, 2017? 

A. Yes. 

Q. And Ramco is not on there. Is that because you lost Ramco 

in 2017? 

A. Yes. 
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Case No. 2020-P-0006 

Q. Same questions with the second page. It looks like this is 

for the period of February 1, 2017 through June 1, 2017; is 

that correct? 

A. Correct. 

Q. Does this reflect the amount of business that Turfco did 

during that time? 

A. Yes. 

Q. And that’s $22,271.40? 

A. Correct. 

Q. And as the owner and having been running the company, 

you attribute this – what do you attribute this decline in sales 

to? 

A. It was just because I didn’t have my equipment and just, 

you know, you lose the trust. Whenever you can’t show up, 

people don’t trust that you’re going to be there. Your credibility 

is lost. 

Q. What about when you got the equipment back in mid 

March? 

A. Yeah. 

Q. Why did – things did not just continue as usual? 

A. Only with the ones that I didn’t do snow removal with and 

the ones that weren’t upset that I wasn’t there to do their 

edging or their mulching right away. But most of it, it was just 

a bad relationship thing from then on. 

Q. Explain to the – let’s explain to the Court what do you do – 

I mean, I think of mulching and edging as a May, June thing, 

and maybe I’m behind the curve, but do you do that kind of 

stuff earlier than that? 

A. Yeah. We do our pruning early and then we jump into 

mulching and edging right away because we have – our 

company, there’s very few employees, we’ll say, and a lot of 

work. So we try to get our edging out of the way and our 

mulching out of the way. And then we can get into our 
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Case No. 2020-P-0006 

landscape install, which is the grass and the plants and all 

that, installs, right when the prime time is. * * * 

{¶17} Polen testified that Turfco eventually went out of business due to the loss 

of customer trust. 

Q. What happened to the company? 

A. Like it just – as soon as this happened, there was rumors 

saying that I was out of business. People were talking, because I 

didn’t have my equipment. No one saw it around. This is small 

town stuff and stuff. I lost some business due to the fact that I 

couldn’t get them salted in time or get the plow – get the snow

plowed. And I just – they lost my – I lost my credibility. They lost 

their trust with me. 

Q. And so the damages you’re – Turfco is seeking is 40 percent 

of the difference in sales between 2016 – the six-month period – 

or five-month period in 2016 to 2017; is that right? 

A. Correct. 

Q. And we told the Court it was about $211,000.00 sales in that 

period through June of ’16, and it was down to $22,000.00. If we 

deduct that out and apply 40 percent, that was what you would 

have expected your profit to be? 

A. Yeah. 

Q. And that would have been with gas paid, mulch paid, 

employees paid? 

A. Correct. 

{¶18} Based on Polen’s testimony, the trial court determined Turfco’s damages 

from lost profits to be $75,506.04, representing the difference between 2016 sales from 

February 1 through June 1 ($211,036.10) and 2017 sales for the same period 

($22,271.40) multiplied by a 40 percent profit margin. 

{¶19} We conclude that Polen was competent to testify as to Turfco’s sales for 

2016 and 2017 and as to the value of specific contracts. As the owner of the corporation 
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Case No. 2020-P-0006 

with few employees, Polen had personal knowledge of the business, its clients, and its 

sales. “‘[M]ost courts have permitted the owner or officer of a business to testify to the 

value or projected profits of the business, without the necessity of qualifying the witness 

as an accountant, appraiser, or similar expert * * * because of the particularized 

knowledge that the witness has by virtue of his or her position in the business.’” Raymond 

v. Raymond, 10th Dist. Franklin No. 11AP-363, 2011-Ohio-6173, ¶ 11, quoting the 

Advisory Committee Notes for the 2000 Amendments to Fed.R.Evid. 701 (noting the 

federal rule parallels the Ohio rule); 1 McCormick, Evidence, Section 10 (8th Ed.Mosteller 

Ed.2020) (“lay employees of a business are often held to have enough ‘personalized 

knowledge’ of the business’ operation to testify about such topics as the amount of its 

profits”). 

{¶20} We further conclude that the trial court’s calculation of damages is not 

against the manifest weight of the evidence and, therefore, is supported by sufficient 

evidence. Polen’s testimony and accounting records, without any evidence from Shenigo 

contradicting the testimony or challenging Polen’s credibility in this regard, demonstrate 

Turfco’s damages with reasonable certainty. The 2016 summaries list Turfco’s repeat 

commercial snowplowing clients. Polen testified that Turfco’s relationship with these 

repeat customers, including the corporation’s two largest accounts, was negatively 

affected by the lockout in February 2017. The 2017 summaries corroborate that many of 

those repeat customers did not generate any sales income for Turfco through June 2017. 

Considering only those customers that generated income from February through June 

2016 that did not generate any income for that same time period in 2017, the amount of 

lost profits actually amounts to $77,316.41: 
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Case No. 2020-P-0006 

Customer February 1 through June 1, 2016 

Graphic Detail 980.00 

HM Miller 44,959.50 

K.S.U. Alpha Phi House Corp. 3,461.28 

Lemasters, Craig & Lisa 25,262.25 

McDougal, Shel 4,058.00 

Paino Construction 0.00 

Ramco 114,570.00 

TOTAL 193,291.03 

The trial court arrived at the lesser and more accurate amount of $75,506.04 by including 

the income generated from the additional residential clients serviced in 2017, presumably 

due to the loss of certain commercial accounts. 

{¶21} Shenigo’s assignments of error are without merit. We note a slight 

calculation error, however, that requires modification of the award. The magistrate’s 

decision omitted 40 cents from the 2017 income total. The trial court then used the 

magistrate’s inaccurate calculation when it recalculated the profit margin. The difference 

amounts to 16 cents. We therefore modify the award in favor of Turfco to $75,505.88. 

The judgment of the Portage County Court of Common Pleas is affirmed as modified. 

MARY JANE TRAPP, P.J., concurs, 

MATT LYNCH, J., dissents with a Dissenting Opinion. 

_____________________________ 

MATT LYNCH, J., dissents with a Dissenting Opinion. 

{¶22} Damages may be awarded for lost profits when the existence of lost profits 

and the amount thereof are established with reasonable certainty. Gahanna v. Eastgate 
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Case No. 2020-P-0006 

Properties, Inc., 36 Ohio St.3d 65, 521 N.E.2d 814 (1988), syllabus. Lost profits may be 

established “with reasonable certainty through the use of such evidence as expert 

testimony, economic and financial data, market surveys and analyses, business records 

of similar enterprises, and any other relevant facts.” AGF, Inc. v. Great Lakes Heat 

Treating Co., 51 Ohio St.3d 177, 555 N.E.2d 634 (1990), paragraph three of the syllabus. 

{¶23} In the present case, Turfco Landscaping’s damage claims are based on 

faulty methodology and are unsupported by any documentary evidence. In two cases, 

Turfco established lost profits with arguable certainty. But even in these cases, the 

evidence is contradictory and remains unsupported. Accordingly, I respectfully dissent. 

{¶24} The damage award affirmed by the majority was calculated by comparing a 

partial sampling of Turfco’s sales from February 1 through June 1 in 2016 with a different 

partial sampling of Turfco’s sales for the same period in 2017. It is presumed that the 

difference in sales is wholly attributable to the six-week lockout that occurred in February 

and March of 2017. 

{¶25} The 2016 figures are based on the sales generated by 13 clients in an 

Income by Customer Summary prepared for trial. In no case are Turfco’s figures 

established by company documents. The only actual evidence of damages is Polen’s 

testimony which, however, depends on the prepared summaries. 

{¶26} These 13 clients purportedly accounted for $211,036.10 in sales for the 

period from February 1 to June 1 in 2016. It must be emphasized that this Summary is 

partial and incomplete. Polen testified that it represented his “strictly commercial” clients 

despite individuals’ names such as “Henry Wahner” and “McDougal, Shel” appearing on 

the list. Nor is the Summary comprehensive even with respect to commercial clients. 
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Case No. 2020-P-0006 

Polen testified there were others, such as Suffield Township, “which I don’t see in here.” 

{¶27} The 2017 figures are based on the sales generated by 28 clients in another 

Customer Summary prepared for trial. According to Polen, these were his “residential” 

plowing accounts. Six of the clients from the 2016 Summary reappear in the 2017 

Summary. Among the remaining 22 clients, there are commercial clients such as the 

“Lords House of Prayer” and “Louis & Partners Design” interspersed among the names 

of individuals. Like the 2016 Summary, the 2017 Summary is incomplete. When asked 

if there was other work or customers not reflected in the 2017 Summary, Polen 

responded: “Oh, jeez. I would have to have, like, the computer in front of me to look at 

it.” 

{¶28} It should be obvious that no reasonably certain figure for the change in 

Turfco’s sales from 2016 to 2017 can be obtained by comparing sales for two random 

samplings of clients. Even presuming the accuracy of the figures contained in the 

Summaries, what evidentiary value is there in comparing a list of primarily commercial 

clients with a list of primarily residential clients? Such a methodology is nonsensical and 

cannot produce any reliable measure of Turfco’s damages. 

{¶29} Assuming, arguendo, that an accurate figure for the decline in Turfco’s sales 

from 2016 to 2017 existed, there is no evidence to substantiate the claim that the decline 

was proximately caused by the 2017 lockout. Polen’s testimony cannot support such a 

claim. He testified vaguely about “this is small town stuff” and “lost credibility.” But only 

in the cases of Ramco and HM Miller did he expressly state: “I lost them because I couldn’t 

fulfill their expectations for the month of February.” 

{¶30} The Summaries themselves attest that the difference in sales cannot be 
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Case No. 2020-P-0006 

solely attributed to business lost as a result of the lockout. Among the clients that appear 

in both the 2016 and 2017 Summaries, it should be noted that the income generated by 

Henry Wahner increased from $740 in 2016 to $1,000 in 2017; Hudson Presbyterian’s 

sales decreased from $4,183.35 in 2016 to $3,346.68 in 2017; whereas sales for 

Northeast Eye Surgeons increased from $7,199.32 in 2016 to $8,049.32 in 2017. These 

are significant changes in sales that, based on the evidence in the record, had nothing to 

do with the 2017 lockout. 

{¶31} There are still further deficiencies in the damage calculation based on a 

comparison of the 2016 and 2017 Summaries. Turfco’s landscaping business 

encompassed a variety of services not all of which would have been affected by a lockout 

occurring in February and March 2017. Yet we have no testimony as to the nature of the 

services utilized by the various clients identified in the Summaries. 

{¶32} Even in the case of Ramco, representing the single largest client 

purportedly lost as a result of the lockout, the evidence is equivocal rather than reasonably 

certain. Polen testified expressly that Turfco lost Ramco as a client as a result of not 

being able to fulfill its expectations “for the month of February.” According to the sales 

Summary for February 1 through March 15, 2016, however, Ramco did not generate any 

sales during this period. In other words, Polen claims that Ramco required snow plowing 

services during the month of February, but the February sales report indicates that the 

Ramco account generated “0.00” in sales. After March 15, when plowing services would 

rarely be needed, Ramco generated the $144,507 in sales – representing well over half 

the purported commercial sales for 2016. If, as Polen testified, Turfco lost Ramco 

because it could not perform plowing services during the 2017 lockout, one would expect 
19 

Case No. 2020-P-0006 

Ramco to generate sales during the winter of 2016. But Turfco’s own evidence does not 

indicate any sales generated by Ramco until after March 15 of that year. 

{¶33} With respect to lost profits, it has been held: “More is required of the plaintiff 

than merely his assertion (either directly or through an expert witness) that he would have 

made a particular amount in profits. Unless the figure is substantiated by calculations 

based on facts available or in evidence, the courts will properly reject it as speculative or 

uncertain.” (Citation omitted.) Kinetico, Inc. v. Independent Ohio Nail Co., 19 Ohio 

App.3d 26, 30, 482 N.E.2d 1345 (8th Dist.1984); Rhodes v. Rhodes Industries, Inc., 71 

Ohio App.3d 797, 809, 595 N.E.2d 441 (8th Dist.1991) (“[t]here must be more than a 

conclusory statement as to the amount of lost profits”); accord Matco Tools Corp. v. 

Urquhart, 435 F.Supp.3d 802, 813 (N.D.Ohio 2020). 

{¶34} That Turfco suffered actual damages as a result of the lockout is entirely 

probable. The award of damages in the present case, however, is speculative and 

uncertain. The figures contained in the sales Summaries are not based on facts in 

evidence. The procedure of comparing sales figures based on different client samplings 

is fundamentally flawed. The figures contained in the Summaries are inconsistent and 

even contradictory to Polen’s testimony. Accordingly, Turfco has failed to demonstrate 

damages with reasonable certainty, and I would reverse the judgment of the trial court.