[Cite as Sites v. Chad Turner Enterprises, L.L.C., 2011-Ohio-6039.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ROBERT SITES, : JUDGES: 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellant, : Hon. Sheila G. Farmer, J. 

 : Hon. Patricia A. Delaney, J. 

v. : 

 : 

CHAD TURNER ENTERPRISES, LLC, : Case No. 11-CA-23 

 : 

 Defendant-Appellee . : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 09CV1412 

JUDGMENT: Affirmed/Reversed in Part; Judgment 

Entered 

DATE OF JUDGMENT: November 21, 2011 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

MILES D. FRIES ROGER WARNER 

320 Main Street PAUL L. WALLACE 

P.O. Box 190 171 East Livingston Avenue 

Zanesville, OH 43702-0190 Columbus, OH 43215 
Fairfield County, Case No. 11-CA-23 2 

Farmer, J. 

{¶1} On April 1, 2009, appellant, Robert Sites, was operating a tractor-trailer in 

the state of Arizona for his employer, appellee, Chad Turner Enterprises, LLC. On said 

date, appellant pulled into a weigh station as required by law and produced his 

paperwork. Missing from the paperwork was a valid fuel license. As a result, appellant 

received a traffic citation for driving a commercial vehicle without a valid fuel license. 

The fine was $300.00. Appellant understood that Mr. Turner would take care of the 

traffic citation. 

{¶2} Appellant was terminated from appellee's employ on April 23, 2009. In 

June of 2009, appellant discovered the traffic citation had never been paid. The Arizona 

Department of Transportation sent appellant a notice dated June 23, 2009 advising him 

that his commercial driver's license was suspended for non-payment of the traffic 

citation. 

{¶3} Following some health issues, appellant attempted to go back to work in 

November of 2009 as a truck driver; however, he was unable to do so as he did not 

have a valid commercial driver's license. 

{¶4} On October 27, 2009, appellant filed a complaint against appellee for 

negligence and breach of contract. A bench trial commenced on December 28, 2010. 

By judgment entry filed March 23, 2011, the trial court found in favor of appellee. 

{¶5} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 
Fairfield County, Case No. 11-CA-23 3 

I 

{¶6} "THE TRIAL COURT ERRED IN DISMISSING THE NEGLIGENCE CLAIM 

AT THE CONCLUSION OF APPELLANT'S CASE." 

II 

{¶7} "THE TRIAL COURT COMMITTED ERROR BY FAILING TO PERFORM 

ITS MANDATORY DUTY TO APPORTION FAULT TO EACH PARTY IN THIS ACTION 

INVOLVING TORTIOUS CONDUCT." 

III 

{¶8} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR FAILING TO 

DECIDE IN FAVOR OF APPELLANT WHEN ALL OF THE ELEMENTS OF 

PROMISSORY ESTOPPEL WERE PROVEN." 

IV 

{¶9} "THE FAILURE TO AWARD APPELLANT DAMAGES BASED ON HIS 

DETRIMENTAL RELIANCE ON APPELLEE'S PROMISE WAS ERROR." 

V 

{¶10} "THE TRIAL COURT'S JUDGMENT WAS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE." 

I, II 

{¶11} Under these assignments of error, appellant challenges the trial court's 

decision on his negligence claim. 

{¶12} In its judgment entry filed March 23, 2011, the trial court stated the 

following at Conclusion of Law Nos. 3, 4, 5, 6, 8, and 9: 
Fairfield County, Case No. 11-CA-23 4 

{¶13} "3. At the conclusion of Plaintiff's case, Defendant moved for dismissal of 

Plaintiff's claims pursuant to Civ.R 41(B)(2). The court granted Defendant's motion in 

part and dismissed Plaintiff's claims based on negligence because the obligation to pay 

the citation as asserted by Plaintiff and denied by Defendant arose from a voluntary 

duty and not a duty imposed as a matter of law. The case was therefore allowed to 

proceed on the basis of contract claim. 

{¶14} "The court should not have dismissed the Plaintiff's negligence claim on 

the basis that Defendant was a volunteer and could owe no duty to the Plaintiff as a 

volunteer. 

{¶15} "Although the case proceeded on the contract basis, the court finds that 

the facts presented are sufficient and that the evidence is the same regardless of which 

theory is advanced by Plaintiff. Plaintiff argued both theories throughout the case and in 

his proposed findings of fact and conclusions of law. The emphasis of the Plaintiff's 

argument is on tort. 

{¶16} "Therefore, the court will address the merits of both of the Plaintiff's 

claims; 

{¶17} "4. The elements of a negligence claim are Duty, Breach of Duty, 

Causation, and Damages; 

{¶18} "5. One who voluntarily undertakes an act which he has no duty to perform 

and another reasonably relies upon that undertaking, the act must generally be 

performed with ordinary care; 

{¶19} "6. The legal duty which a defendant owes to the a (sic) plaintiff in any 

given case depends upon the surrounding facts and circumstances; 
Fairfield County, Case No. 11-CA-23 5 

{¶20} "8. The comparative negligence statute provides for apportionment of 

damages determined to be directly and proximately caused by the negligence of more 

than one person. R.C. 2315.19; 

{¶21} "9. If one party has been negligent and the other party has knowledge 

thereof, or is chargeable with such knowledge, he must thereafter act with reference to 

such negligence, and shut his eyes and claim that he relied upon a proper performance 

of duty by the other party." 

{¶22} In Greer v. National City Corporation, Delaware App. No. 08CAE120076, 

2009-Ohio-5172, this court held the following at ¶95: 

{¶23} " 'Where the duty allegedly breached by the defendant is one that arises 

out of a contract, independent of any duty imposed by law, the cause of action is one of 

contract.' Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 810, 

619 N.E.2d 10, citing Ketcham v. Miller (1922), 104 Ohio St. 372, 377, 136 N.E. 145. 

The addition of the words 'intentionally' and 'willfully' into a claim do not change the 

nature of the cause of action. Id." 

{¶24} Based upon the clear law in Ohio, we find these assignments of error 

relating to the negligence claim not to be well taken. 

{¶25} Assignments of Error I and II are denied. 

III 

{¶26} Appellant claims the trial court erred in failing to decide in his favor under 

the theory of promissory estoppel. We agree in part. 

{¶27} Promissory estoppel is defined in Restatement of the Law 2d, Contracts 

(1993), Section 90, as "[a] promise which the promisor should reasonably expect to 
Fairfield County, Case No. 11-CA-23 6 

induce action or forbearance on the part of the promisee or a third person and which 

does induce such action or forbearance is binding if injustice can be avoided only by 

enforcement of the promise." 

{¶28} In its judgment entry filed March 23, 2011 under "Decisions," the trial court 

found "[o]n April 1, 2009, the Defendant's representative, Chad Turner, promised to pay 

the Arizona Traffic Ticket" and "[t]he Defendant made a promise upon which the Plaintiff 

relied." The trial court went on to decide that appellant knew before his commercial 

driver's license was suspended in late June that "the Defendant had not paid the 

citation, and probably was not going to pay the citation. The Plaintiff therefore created 

or negligently created most of his claimed damages." 

{¶29} Upon review, we find the trial court found there was a promise to pay. 

Therefore, although this assignment of error is correct, it is not technically correct 

because the trial court proceeded to find that appellant had failed to establish damages. 

{¶30} Assignment of Error III is granted. The issue of damages is addressed in 

Assignments of Error IV and V. 

IV, V 

{¶31} Appellant claims the trial court erred in not awarding damages. We agree 

in part. 

{¶32} A judgment supported by some competent, credible evidence will not be 

reversed by a reviewing court as against the manifest weight of the evidence. C.E. 

Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. A reviewing court must 

not substitute its judgment for that of the trial court where there exists some competent 
Fairfield County, Case No. 11-CA-23 7 

and credible evidence supporting the judgment rendered by the trial court. Myers v. 

Garson, 66 Ohio St.3d 610, 1993-Ohio-9. 

{¶33} In its judgment entry filed March 23, 2010 under "Decisions," the trial court 

specifically found appellant relied on the promise by Turner, but found appellant failed to 

establish his damages and failed to mitigate his own damages: 

{¶34} "The court also finds that the Plaintiff failed to prove by a preponderance 

of the evidence his damages. Further, any damages, other than the cost of the citation, 

caused the Plaintiff were incurred because of Plaintiff's failure to mitigate his damages 

(contract theory) or due to comparative negligence (tort theory). 

{¶35} "The Plaintiff made a choice to ignore a known risk." 

{¶36} Appellant testified that Turner had promised to pay the $300.00 ticket. T. 

at 35-36, 39; Plaintiff's Exhibit B.1

 The ticket was to be paid by April 29, 2009. T. at 35. 

Appellant was terminated from appellee's employ on April 23, 2009. In June of 2009, 

appellant was told Turner would not pay the ticket. T. at 41-45. By this time, the time to 

appear had passed, but no action had been taken on a license suspension until June 

23, 2009, the date the Arizona Department of Transportation notified appellant of his 

commercial driver's license suspension. T. at 48. 

{¶37} Following neck surgery in June of 2009, appellant was ready to return to 

work in November of 2009; however, because his commercial driver's license had been 

suspended, he was unable to obtain work as a truck driver. T. at 50-51. Appellant 

made no attempt to rectify the situation for five months. 

 

1

The original ticket was not offered into evidence. Appellant claimed it was unavailable. 

T. at 65. 
Fairfield County, Case No. 11-CA-23 8 

{¶38} Appellant testified it would cost him $2,500.00 to get his license reinstated 

plus the $300.00 ticket. T. at 52. Without a commercial driver's license, he was 

unemployable as a truck driver. T. at 51. Appellant claimed his 2009 annual income for 

truck driving for appellee was to be $60,000.00. T. at 57. Appellant received worker's 

compensation and unemployment compensation in 2009. T. at 53-54, 98. 

{¶39} Although appellant was correct that he did not have a valid commercial 

driver's license in November of 2009, Plaintiff's Exhibit E, an abstract driver's record 

from the Ohio Bureau of Motor Vehicle, noted his commercial driver's license was valid 

on September 2, 2010. T. at 81. However, upon renewal, appellant's application could 

not be processed because it stated, "[u]nable to proceed with application. Please 

contact Arizona." T. at 61, 83. 

{¶40} Based upon the undisputed testimony that the cost of the ticket was 

$300.00 and the trial court's conclusion that payment of the ticket was promised and 

relied upon, we find there is ample evidence that appellant is owed $300.00. We concur 

with the trial court's position that once appellant knew Turner would not pay the ticket, 

the loss of his commercial driver's license and earning ability was a result of his failure 

to mitigate damages. 

{¶41} Assignments of Error IV and V are granted in part. 

 
Fairfield County, Case No. 11-CA-23 9 

{¶42} The judgment of the Court of Common Pleas of Fairfield County, Ohio is 

hereby affirmed in part and reversed in part. Pursuant to App.R. 12(B), judgment is 

hereby entered for appellant in the amount of $300.00 plus interest and costs. 

By Farmer, J. 

Delaney, J. concur and 

Hoffman, P.J. concurs separately. 

 

 

 

 _s/ Sheila G. Farmer_______________ 

 

 __s/ Patricia A. Delaney___________ 

 _______________________________ 

 JUDGES 

SGF/sg 1103 

 
Fairfield County, Case No. 11-CA-23 10 

Hoffman, P.J., concurring 

(¶43) I concur in the majority’s analysis and disposition of Appellant’s third, 

fourth and fifth assignments of error. 

(¶44) I concur in the majority’s disposition of Appellant’s first and second 

assignments of error. However, I do not find Appellant’s tort claim for negligence arises 

out of a contract. Nevertheless, I concur as the trial court corrected the error in its 

judgment entry as noted in the majority opinion. 

 

 

 _s/ William B. Hoffman______________ 

 HON. WILLIAM B. HOFFMAN 
[Cite as Sites v. Chad Turner Enterprises, L.L.C., 2011-Ohio-6039.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ROBERT SITES, : 

 : 

 Plaintiff-Appellant, : 

 : 

vs. : JUDGMENT ENTRY 

 : 

CHAD TURNER ENTERPRISES, LLC, : 

 : 

 Defendant-Appellee. : CASE NO. 11-CA-23 

For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed in part and 

reversed in part. Pursuant to App.R. 12(B), judgment is entered for appellant in the 

amount of $300.00 plus interest and costs. Costs to appellee. 

 _s/ Sheila G. Farmer_______________ 

 

 _s/ William B. Hoffman________________ 

 _s/ Patricia A. Delaney________________ 

 JUDGES