[Cite as Cincinnati v. Triton Servs., Inc., 2019-Ohio-3108.]

TRITON SERVICES, INC., 

Plaintiff-Appellant/CounterclaimDefendant, 

 vs. 

CITY OF CINCINNATI, A MUNICIPAL 

CORPORATION, 

Defendant-Appellee/ 

Counterclaim-Plaintiff. 

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APPEAL NO. C-170705 

TRIAL NO. A-1500905 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

CITY OF CINCINNATI, 

Plaintiff-Appellee/CounterclaimDefendant, 

 vs. 

TRITON SERVICES, INC., 

Defendant-Appellant/ 

Counterclaim-Plaintiff, 

OHIO FARMERS INSURANCE 

COMPANY, 

 and 

 MAJID H. SAMARGHANDI, 

 Defendants/CounterclaimPlaintiffs, 

 and 

TRITON PROPERTIES, LLC, 

 Defendant. 

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APPEAL NO. C-170705 

TRIAL NO. A-1405757 

 OPINION.
OHIO FIRST DISTRICT COURT OF APPEALS

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Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause 

Remanded 

Date of Judgment Entry on Appeal: August 2, 2019 

Paula Boggs Muething, City Solicitor, Joseph C. Neff, Assistant City Solicitor, and 

Taft Stettinius & Hollister, LLP, Earl K. Messer and Nicolas J. Pieczonka, for the 

City of Cincinnati, 

Stites & Harbison, PLLC, William G. Geisen and Andrew J. Poltorak, for Triton 

Services, Inc., Ohio Farmers Insurance Company, and Majid H. Samarghandi. 
OHIO FIRST DISTRICT COURT OF APPEALS

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WINKLER, Judge. 

{¶1} Appellant Triton Services, Inc., (“Triton”) appeals several orders 

entered against it in favor of appellee city of Cincinnati (“the city”) in two 

consolidated cases. We find merit in four of Triton’s eight assignments of error. We 

therefore affirm the trial court’s judgment in part and reverse it in part. 

The Wesselman/Carroll Projects 

{¶2} The record shows that in April 2008, Triton entered into a contract 

with the city, acting on behalf of the Metropolitan Sewer District (“MSD”). Under 

the contract, Triton was the general contractor performing sewer work for the 

Wesselman Road Interceptor Sewer Phase 1A-3 and 1B project (“Wesselman 

Project”). Subsequently, Triton entered into another contract with the city to 

perform the Carroll Avenue Sewer Replacement Project (“Carroll Project”). Ohio 

Farmers Insurance Company provided surety bonds for both projects. 

{¶3} In June 2011, the city issued three checks totaling $496,256.09 to 

Triton for the work it had performed on the Wesselman and Carroll Projects. Triton 

deposited the checks into its bank account. Several months later, the city discovered 

that Pavement Management, one of Triton’s subcontractors, had not been paid. The 

city took steps to stop payment on the checks it had issued to Triton. The city was 

erroneously informed by its bank that the payment had been stopped. 

{¶4} Subsequently, Pavement Management filed suit against Triton and the 

city, seeking the money that it was owed for its work on the projects. To resolve that 

lawsuit, the city paid $396,756.09 to Triton and $99,500 to Pavement Management. 

{¶5} In January 2014, the city discovered that the checks for the original 

payments of $496,256.09 had not been stopped because the stop-payment orders 

had been issued too late. After the city discovered the accidental double payment, it 
OHIO FIRST DISTRICT COURT OF APPEALS

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sent numerous letters to Triton requesting the return of the original payment of 

$496,256.09. Triton never returned the payment. 

{¶6} Subsequently, in the case numbered A-1405757, the city filed a 

complaint against Triton alleging unjust enrichment and breach of contract. The city 

also named Ohio Farmers Insurance Company (“Farmers”) as a defendant and made 

a claim under the surety bonds on the projects. In conducting discovery, it learned 

that Triton knew that the city’s checks were fully deposited into Triton’s checking 

accounts and that the relevant funds were never returned to the city. In fact, the 

overpayment was transferred between numerous bank accounts. 

{¶7} Consequently, the city amended its complaint to add claims for fraud 

and punitive damages against Triton and Majid H. Samarghandi, Triton’s CEO. In 

response, Triton and Samarghandi asserted counterclaims for abuse of process and 

frivolous conduct, in which they alleged that the city had filed the fraud claim to 

harass them and force them to surrender the payment. 

{¶8} Eventually, the city withdrew its fraud and punitive-damages claims. 

The trial court granted summary judgment in favor of the city on its unjustenrichment claim and awarded the city $496,256.09. The court also granted 

summary judgment in favor of the city on Triton’s claim for abuse of process. As to 

the claim for attorney fees for frivolous conduct, the court found that the issue 

should have been raised by motion rather than in Triton’s counterclaim. The court 

stated that the evidence related to frivolous conduct should not be presented to the 

jury, but that it would allow Triton to raise the issue by motion after the trial of the 

other issues raised in a consolidated case. 
OHIO FIRST DISTRICT COURT OF APPEALS

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The Sagebrush Project 

{¶9} In July 2011, Triton entered into a contract with the city to perform 

work on the Sagebrush Lane, Susanna Drive, and Yellowstone Drive sewer project 

(“Sagebrush Project”). The original contract amount was $2,698,440. The contract 

incorporated the bid booklet, the State of Ohio Department of Transportation 

Construction and Material Specifications (“ODOT CMS”), and the city of Cincinnati’s 

supplement to the ODOT CMS. 

{¶10} A geotechnical report was incorporated into the bid booklet. It 

provided that “excavations for the sewer are anticipated to primarily encounter 

cohesive soils interbedded occasionally with cohesionless soils.” The report stated 

that no water was found at a majority of the test borings, which led to the 

recommendation that trench excavations be performed in 50-foot sections with each 

section being backfilled before proceeding to the next trench excavation. The bid 

booklet stated that the geotechnical report was for informational purposes only and 

that the report was not a substitute for actual site inspection. 

{¶11} Triton began work on the Sagebrush Project in September 2011. Soon 

after, it discovered differing soil conditions than it had expected. Triton claimed that 

it had encountered sloughing soils, trench cave-ins, excessive groundwater, and 

extremely wet conditions, which caused it to incur substantial increased expenses. 

{¶12} The contract spelled out what should occur if Triton encountered 

differing site conditions. ODOT CMS ¶ 104.02(B) provided: 

 During the progress of the Work, if subsurface or latent 

physical conditions are encountered at the site differing materially 

from those indicated in the Contract Documents or if unknown 

physical conditions of an unusual nature, differing materially from 

those ordinarily encountered and generally recognized as inherent in 
OHIO FIRST DISTRICT COURT OF APPEALS

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the Work provided for in the Contract Documents, are encountered at 

the site, notify the Engineer as specified in 104.05 of the specific 

differing conditions before they are disturbed or the affected Work is 

performed. 

 Upon notification, the Engineer will investigate the conditions 

and if it is determined that the conditions materially differ and cause 

an increase or decrease in the cost or time required for the 

performance of any Work under the Contract, the Department will 

make an adjustment and modify the Contract as specified in 108.06 

and 109.05. The Engineer will notify the Contractor of the 

determination whether or not an adjustment of the Contract is 

warranted. 

The “Engineer” was defined as a “[d]uly authorized agent of the Department acting 

within the scope of its authority for purposes of engineering and administration of 

the Contract.” ODOT CMS ¶ 101.03. 

{¶13} ODOT CMS 104.05(D), as amended by the city supplement, required 

the contractor to: 

Give written notice of any circumstance or dispute on the project that 

may result in a claim. Give early notice by the end of the second 

working day following the discovery of the occurrence of the 

circumstance or dispute. Maintain records on the Superintendent’s 

daily report of the additional labor, equipment, and materials used on 

the disputed work or made necessary by the circumstance. Begin 

record keeping when the project personnel are aware of the 

circumstance of dispute. Submit these records on a weekly basis. 
OHIO FIRST DISTRICT COURT OF APPEALS

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This section further states that “[f]ailure to give early notice or keep and submit cost 

records will be a sufficient reason for the City to deny the claim.” 

{¶14} According to Triton, Brian Gessner, Triton’s director of site 

development, discussed the differing site conditions frequently with city 

representatives throughout the project, including Steve Jones, the supervising 

engineer for the Sagebrush Project. Triton also contended that it sent numerous 

written notices to the city relating to the differing site conditions. 

{¶15} On February 1, 2012, Gessner sent an email to Sara Cramer, MSD’s 

construction manager for the Sagebrush Project. Gessner advised Cramer of the 

poor condition of the water mains at the site and that there had been three water 

main breaks at the site, causing “undue saturation” of the “surrounding subsurface.” 

He also expressed concern about the future impact of the water mains on Triton’s 

work. 

{¶16} On March 7, 2012, Gessner sent a letter to Cramer stating, 

As I am sure you have witnessed by your numerous site visits, review 

of the inspector’s daily notes as well as Tritons [sic] notifications both 

verbally and as was addressed in last week’s meeting, the bore and 

trench excavations have exposed poor ground conditions at every 

excavation completed on the upper subdivision part of the project and 

are currently experiencing [m]ajor delays. The soil strata have 

consisted of large seams of sand as well as groundwater that are 

inconsistent with the bore reports. 

He stated that the field operations should be delayed and asked for a meeting to 

discuss the problems. 

{¶17} On March 15, 2012, Gessner sent another email to Cramer discussing 

the wet site conditions. At that time, the differing site conditions had brought 
OHIO FIRST DISTRICT COURT OF APPEALS

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Triton’s work on the project to a standstill, and it was waiting on a proposal from 

MSD so that it could continue with its work on the project. Gessner also stated that 

he had been in “continuous communication” with Jones on those issues. 

{¶18} On March 16, 2012, Gessner sent Cramer documentation regarding 

additional trench protection that Triton’s crews would need to use due to the site 

conditions. He advised her that the additional trench protection would cause Triton 

to incur additional costs. As of March 19, 2012, work remained at a standstill. 

Gessner sent an email to Cramer and Jones requesting that they approve the extra 

costs associated with more substantial trench boxes, the use of which was 

necessitated by the sloughing and saturated soils. MSD agreed to pay those costs, 

and Triton was able to continue work on the project. 

{¶19} On May 21, 2012, Gessner sent an email to Cramer advising her that 

soil conditions on the west end of Susanna Drive were unsuitable due to saturated 

and sloughing soils and approximately four inches of water, which would cause 

Triton additional costs. He asked Cramer to confirm conditions with MSD’s field 

staff and to confirm that MSD would pay for Triton’s additional costs. 

{¶20} In early June 2012, Gessner and Cramer exchanged emails regarding 

the deteriorated and unsuitable subbase on the project. Gessner advised Cramer that 

the unforeseen conditions had caused compromised trench walls during the mainline 

pipe operations, causing Triton to incur costs for additional materials and labor. 

{¶21} Gessner also indicated that work on the project had been delayed. 

Triton contended that while work was stopped, Jones had directed Gessner to wait 

and submit all costs incurred due to differing site conditions at the end of the project. 

The city contends that Jones only told him to submit costs for certain discrete parts 

of the project. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶22} On June 26, Gessner sent an email in which he requested that Cramer 

visit the job site. He attached a photograph showing sloughing soils, trench cave-ins 

and deteriorated subbase. In July, he sent Cramer a series of photographs showing 

the deteriorated subbase on Susanna Drive, east of Flattop Drive. 

{¶23} On July 24, 2012, Jones sent an email to Patrick Arnette, MSD’s 

principal engineer. He stated, 

This is likely the most difficult project I have seen since I have been in 

the construction section. Fill soils in excavation, angry and resistant 

residents towards the project, rain in Fall and Winter working near the 

creeks, 105 degree heat and no rain in the summer working in the 

streets, an unqualified contract duration, communication on the 

project from numerous entities, a design that does not allow traffic, 

mismarked and failing utilities, unrealistic expectations from 

residents, confrontational and deceitful residents, a contractor without 

a full crew at the beginning of the project[.] * * * I have said since the 

beginning of the project that we may all do great work but we will all 

receive black eyes at the end of this project. Where others see failure, I 

see success by MSD and Triton. The contractor went from a half crew 

to 4 crews on the job, save 3 to 4 months on the contract time using a 

new more costly boring method, has done a remarkable job 

communicating and trying to get traffic through the work areas. 

Jones would later state that the project was difficult primarily due to the residents 

and secondarily due to all of the entities involved. 

{¶24} James Wilmes was MSD’s on-site inspector for the project. Typically, 

he was at the site for ten hours per day. As part of his duties, he would prepare an 

“Inspector Daily Report” (“IDR”), in which he would document his observations. He 
OHIO FIRST DISTRICT COURT OF APPEALS

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also took photographs of the site conditions. According to Triton, the IDRs 

supported its claims of differing site conditions. The city contended that Wilmes’s 

job was not to inspect subsurface conditions at site, and he did not have the training 

and experience to make those kinds of determinations. Wilmes stated that he had no 

reason to conduct any further inspections into ground-water conditions and that he 

would have referred any issues with subsurface conditions to the engineer. 

{¶25} Triton completed the trench excavations by August 28, 2o12. Though 

the contract had an expiration date of September 21, 2012, the job continued after 

that date. Part of the reason was that Triton had to temporarily stop work on the 

project for Colerain Township to install new curbs. Triton finished the final work, 

mostly involving the final grinding and paving of the roads, on December 12, 2012. 

{¶26} On November 19, 2012, Triton submitted change order request 

(“COR”) #5 relating to unforeseen ground conditions at manholes three through six 

in the mainline pipe installation. The associated work occurred between February 

27, 2012, and April 9, 2012. It stated “[a]s per the notification via the attached letter 

dated 6/4/12 and the Time Impact Analysis dated 6/26/2012, Triton has incurred 

the additional costs as listed below as a result of the differing site conditions.” MSD 

approved that change order request through Construction Change Order (“CCO”) #7 

on October 3, 2014. 

{¶27} On November 19, 2012, Triton also submitted COR #3 related to 

unforeseen ground conditions during the bore at manhole number three. The work 

associated with that bore occurred between November 1 and 11, 2011. MSD approved 

that change order request through CCO #6 on September 2, 2013. 

{¶28} On March 15, 2013, eight months after it had finished trench 

excavations, Triton submitted COR #6 for unforeseen ground conditions at 

manholes three through six. The work associated with that request occurred 
OHIO FIRST DISTRICT COURT OF APPEALS

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between February 27, 2012, and April 9, 2012. Triton again referenced its letter of 

June 12, 2012, and the Time Impact Analysis dated June 26, 2012. Triton contended 

that it had submitted this request at that time because Jones had requested that 

Triton gather all costs associated with the differing site conditions and submit those 

requests after the conclusion of the project. MSD approved this change order 

request through CCO #6 on September 2, 2013. 

{¶29} On March 15, 2013, Triton also submitted COR #7 for additional 

concrete roadway restoration due to the deteriorated road base. It stated that it had 

submitted the request after the conclusion of the project, per Jones’s request. MSD 

approved COR #7 through CCO #7. 

{¶30} Finally, on March 19, 2013, Triton submitted COR #14 for expenses 

incurred due to undocumented, unsuitable ground conditions throughout the 

project. Again, it claimed that it had submitted this request at that time because 

Jones had requested that it submit all change order requests after work on the 

project was finished. Triton requested additional compensation of $534,321.65. 

Gessner calculated that amount by using what Triton contends was a total-cost 

method. It supported that request with a binder full of information that contained 

numerous photographs and copies of numerous IDRs, which it contended 

documented its claim for differing site conditions. 

{¶31} After the city refused to approve COR #14, Triton filed a complaint in 

the case numbered A-1500905 alleging breach of contract. It sought damages for the 

unpaid contract balance, costs related to the differing site conditions, extended and 

unabsorbed home office overhead, interest, and attorney fees. The city filed a 

counterclaim for breach of contract and indemnification. At Triton’s request, the 

trial court consolidated that case with the case numbered A-1405757. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶32} Subsequently, the city filed two motions in limine. In its first motion, 

the city asked the court to exclude the testimony of Brian Gessner, Triton’s director 

of site development, relating to Triton’s damages for the differing-site-conditions 

claim because he did not use a proper method to calculate those damages, and the 

damages were purely speculative. In its second motion, the city asked the court to 

exclude evidence related to Triton’s claim for differing site conditions due to 

spoliation of the evidence. It argued that Triton had failed to preserve evidence 

necessary for it to rebut Triton’s claims that the soil conditions it encountered on the 

Sagebrush Project were different than those stated in the contract. The trial court 

granted both motions in limine. 

{¶33} The court granted summary judgment in favor of Triton and Farmers 

on the city’s claims against the performance and payment bonds. The trial court also 

granted summary judgment in favor of the city on Triton’s claims for its home office 

overhead and for attorney fees. 

{¶34} But the court denied the city’s motion for summary judgment on 

Triton’s differing-site-conditions claim. The court stated that a genuine issue of 

material fact existed “as to whether the subsurface conditions at the site materially 

differed from those indicated in the geotechnical engineering report that the city 

issued with the bid documents.” 

{¶35} Thus, the only issue remaining for trial was Triton’s differing-siteconditions claim. On October 23, 2017, a jury trial commenced. Triton and the city 

entered into an agreement resolving some of the claims, which included dismissing 

the jury and proceeding to a bench trial. Triton proffered the evidence that it would 

have presented had that evidence not been excluded. The trial court then granted 

the city’s motion for a “directed verdict” on the differing-site-conditions claim. On 
OHIO FIRST DISTRICT COURT OF APPEALS

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November 28, 2017, the court journalized a judgment entry incorporating all of its 

previous rulings. This appeal followed. 

{¶36} Triton presents eight assignments of error for review, which we 

address out of order. We will discuss the assignments of error related to the 

Sagebrush Project first and then the assignments of error related to the 

Wesselman/Carroll projects. 

Spoliation of Evidence 

{¶37} In its first assignment of error, Triton contends that the trial court 

erred in granting the city’s motion in limine precluding Triton from presenting 

evidence concerning differing site conditions due to spoliation of evidence. The basis 

of the city’s spoliation argument was that Triton had failed to collect and preserve 

soil samples at the job site to support its differing-site-conditions claim. Triton 

argues that the court abused its discretion, because the threshold showing of 

spoliation had not been met. In its second assignment of error, Triton contends that 

the trial court erred in precluding Triton from presenting evidence regarding soil 

conditions at the site and any difference between the soil conditions it had 

encountered and the soil conditions it expected at the Sagebrush Project site as a 

sanction for spoliation of evidence. We sustain these assignments of error. 

{¶38} The doctrine of spoliation of the evidence may be raised in a number of 

ways including as an affirmative defense or by motion. The effect of the doctrine, 

when applied in a defensive manner, is to allow the defendant to exculpate itself 

from liability because the plaintiff has barred it from obtaining evidence necessary to 

prove the existence or absence of the essential elements of the claim. Loukinas v. 

Roto-Rooter Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶ 

12 (1st Dist.). A trial court may exclude expert testimony as a sanction for spoliation 
OHIO FIRST DISTRICT COURT OF APPEALS

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of the evidence if it determines that evidence has been intentionally altered or 

destroyed by a party or its expert before the defense has had an opportunity to 

examine the evidence. Id. at ¶ 13; Hetzer-Young v. Elano Corp., 2d Dist. Greene No. 

2013-CA-32, 2014-Ohio-1104, ¶ 29; Cincinnati Ins. Co. v. Gen. Motors Corp., 6th 

Dist. Ottawa No. 94OT017, 1994 WL 590566, *3 (Oct. 28, 1994). 

{¶39} The city does not contend that Triton destroyed soil samples. Instead, 

it argues that Triton failed to collect and preserve them. Nothing in the record shows 

that Triton had a duty to collect soil samples, and the city never asked Triton to 

provide soil samples. The contract for the Sagebrush Project did not require Triton 

to do so. Further, the contract gave the city the right to inspect job-site conditions at 

any time so it could have collected its own soil samples, if needed. 

{¶40} The city contends that Triton failed to give it proper notice of the 

condition of the soil as provided for in the contract. That is a separate contractual 

issue, which is irrelevant to the doctrine of spoliation of the evidence. That issue was 

never fully addressed because of the trial court’s decisions granting the two motions 

in limine, an issue we discuss more fully under Triton’s eighth assignment of error. 

{¶41} Thus, the doctrine of spoliation of evidence is not implicated in this 

case because no evidence existed to be destroyed. Sanctions and causes of action for 

spoliation of evidence are designed to place responsibility and accountability on 

parties who were actually in possession of evidence that existed at one time but who 

later failed to provide the evidence without adequate explanation. Wheatley v. 

Marietta College, 2016-Ohio-949, 48 N.E.3d 587, ¶ 105 (4th Dist.); Keen v Hardin 

Mem. Hosp., 3d Dist. Hardin No. 6-03-08, 2003-Ohio-6707, ¶ 16. “Non-existent 

evidence, by its very nature, cannot be spoiled.” Keen at ¶ 16. 

{¶42} Consequently, we hold that the trial court erred in granting the city’s 

motion in limine and in precluding Triton from presenting evidence regarding soil 
OHIO FIRST DISTRICT COURT OF APPEALS

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conditions at the Sagebush Project site based on spoliation of evidence. We sustain 

Triton’s first and second assignments of error. 

Testimony on Damages for Differing-Site-Conditions Claim 

{¶43} In its third assignment of error, Triton contends that the trial court 

erred in precluding Gessner from testifying in support of its claim for damages 

relating to differing site conditions. It argues that the evidence was probative and 

was calculated with a reasonable degree of certainty, and therefore, should not have 

been excluded. We find this assignment of error to be well taken, although not 

precisely for the reasons Triton states. 

{¶44} We note that the city argues in its brief that Gessner was not qualified 

as an expert witness under Evid.R. 702, which was not the basis of its motion to 

exclude his testimony about damages in the trial court. In its motion, the city had 

argued that the probative value of the testimony on damages was substantially 

outweighed by the danger of unfair prejudice under Evid.R. 403(A). Its argument 

was threefold: (1) that Gessner’s damage calculation was based on documents that 

Triton had lost, disposed of, or intentionally withheld; (2) that Gessner could not 

explain the basis of his damage calculation; and (3) that Gessner’s calculation did not 

conform to the requirements of a total-cost claim. 

{¶45} The trial court has broad discretion in determining whether evidence 

should be excluded under Evid.R. 403(A). A reviewing court will not reverse that 

decision absent an abuse of discretion. State v. Simms, 1st Dist. Hamilton Nos. C030138 and C-030211, 2004-Ohio-652, ¶ 4; Cincinnati v. Banks, 143 Ohio App.3d 

272, 287, 757 N.E.2d 1205 (1st Dist.2001). 

{¶46} Evid.R. 403(A) provides that “[a]lthough relevant, evidence is not 

admissible if its probative value is substantially outweighed by the danger of unfair 
OHIO FIRST DISTRICT COURT OF APPEALS

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prejudice, of confusion of the issues, or of misleading the jury.” Exclusion of 

evidence under Evid.R. 403(A) requires more than mere prejudice, it requires unfair 

prejudice. Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 

(2001); Conway v. Dravenstott, 3d Dist. Crawford No. 3-06-05, 2006-Ohio-4840, ¶ 

11. “Unfair prejudice is that quality of evidence which might result in an improper 

basis for a jury decision.” Oberlin at 172. If evidence “arouses the jury’s emotional 

sympathies, evokes a sense of horror, or appeals to an instinct to punish,” it may be 

unfairly prejudicial. Id.; Conway at ¶ 11. “Usually, although not always, unfairly 

prejudicial evidence appeals to the jury’s emotions rather than intellect.” Oberlin at 

174. 

{¶47} The contract required the use of a measured-mile analysis to quantify 

labor inefficiencies. Triton originally stated that its damages were based on a 

measured-mile analysis. Using that analysis, it presented a much lower figure for 

damages than it claimed later in the proceedings. Gessner testified that due to the 

nature of the work it was impossible to do a measured-mile analysis. 

{¶48} Later, Triton claimed to be using the total-cost method, which Gessner 

acknowledged he had no experience calculating. He stated that he had never used 

the calculation he had relied upon in determining Triton’s damages for the alleged 

differing-site-conditions claim. He stated he did his “best effort at a total costs 

method,” and that his opinion was not based on any construction journal or industry 

standard. 

{¶49} We cannot hold that any of the alleged defects in Gessner’s testimony 

would have caused the city unfair prejudice. Gessner’s testimony would not appeal 

to a jury’s emotions rather than its intellect. It also would not arouse a jury’s 

emotional sympathies, evoke a sense of horror, or appeal to an instinct to punish. 

The city contends that Gessner’s estimate of damages was speculative and based on 
OHIO FIRST DISTRICT COURT OF APPEALS

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conjecture. See Kahn v. CVS Pharmacy, Inc., 165 Ohio App.3d 420, 2006-OhioOhio-112, 846 N.E.2d 904, ¶ 25 (1st Dist.); Hollobaugh v. D & V Trucking, 7th Dist. 

Mahoning No. 99 CA 303, 2001 WL 537058, *5 (May 8, 2001). But any defects in 

Gessner’s testimony go to its weight, not its admissibility. 

{¶50} Under the circumstances, we hold that the trial court’s decision to 

grant the motion in limine excluding Gessner’s testimony on damages was an abuse 

of discretion. We make no decision as to whether Gessner’s testimony was proper 

expert testimony under Evid.R. 702 since the trial court did not decide the motion in 

limine on that basis. We, therefore, sustain Triton’s third assignment of error. 

Home-Office-Overhead Damages 

{¶51} In its fourth assignment of error, Triton contends that the trial court 

erred in granting partial summary judgment in favor of the city on Triton’s claim for 

home-office-overhead damages related to the city’s unilateral extension of the project 

from September 2012 to June 2013. It argues that issues of fact exist as to whether it 

was entitled to those damages. This assignment of error is not well taken. 

{¶52} An appellate court reviews a trial court’s ruling on a motion for 

summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 

N.E.2d 241 (1996); Wal-Mart Realty Co. v. Tri-County Commons Assoc., Ltd., 1st 

Dist. Hamilton No. C-160747, 2017-Ohio-9280, ¶ 8. Summary judgment is 

appropriate if (1) no genuine issue of material fact exists for trial, (2) the moving 

party is entitled to judgment as a matter of law, and (3) reasonable minds can come 

to but one conclusion and that conclusion is adverse to the nonmoving party, who is 

entitled to have the evidence construed most strongly in his or her favor. Temple v. 

Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977); Wal-Mart Realty 

Co. at ¶ 8. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶53} Home office overhead is the cost of running a contractor’s home office 

during a government-caused delay. Complete Gen. Constr. Co. v. Ohio Dept. of 

Transp., 94 Ohio St.3d 54, 55, 760 N.E.2d 364 (2002). Contractors cover overhead 

costs by spreading the costs proportionally across ongoing projects. When an ownercaused delay substantially diminishes a project’s cash flow, the contractor’s fixed 

overhead costs are not absorbed by the delayed project and must be absorbed by 

other projects. If a contractor is unable to take on other construction projects during 

the period of the delay, the contractor’s overhead costs are not absorbed by the 

project to which they were apportioned. Id. at 57; Royal Elec. Constr. Co. v. Ohio 

State Univ., 10th Dist. Franklin Nos. 93AP-399 and 93AP-424, 1993 WL 532013 *6 

(Dec. 21, 1993). 

{¶54} In Complete Gen. Constr. Co., the Ohio Supreme Court adopted what 

is known as the Eichleay formula “an equation employed by federal courts for 

determining such costs.” Complete Gen. Constr. Co. at 55. It is “the most wellknown formula for calculating unabsorbed overhead” costs arising out of 

government-caused delay. Id., quoting Shapiro & Washington, Use of the Eichleay

Formula to Calculate Unabsorbed Overhead for Government Caused Delay Under 

Manufacturing Contracts, 25 Pub.Contr.L.J. 513, 514 (1996). The Supreme Court 

did note, however, that the Eichleay formula is not the only way to determine 

unabsorbed home-office-overhead damages. Complete Gen. Constr. Co. at 61. 

{¶55} Before that formula may be applied, the contractor must demonstrate 

two important elements to establish a prima facie case. First, the contractor must 

show that it was on “standby.” A contractor is on standby “when work on a project is 

suspended for a period of uncertain duration and the contractor can at any time be 

required to return to work immediately.” Complete Gen. Constr. Co. at 58, quoting 

West v. All State Boiler, Inc., 146 F.3d 1368, 1373 (Fed.Cir.1998). In effect, the 
OHIO FIRST DISTRICT COURT OF APPEALS

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contractor is not working on the project, yet remains bound to the project. The 

contractor must be ready to immediately resume performance at any time. Second, 

the contractor must show that it was unable to take on any other work while on 

standby. That is, it must show that the uncertainty of the duration of the delay made 

it unable to commit to replacement work on another project. Complete Gen. Constr. 

Co. at 58-59. 

{¶56} The government can rebut the contractor’s prima facie case by 

demonstrating either (1) that it was not impractical for the contractor to obtain 

replacement work during the delay, or (2) that the contractor's inability to obtain or 

perform work was not caused by the government’s suspension. Complete Gen. 

Constr. Co., 94 Ohio St.3d at 59, 760 N.E.2d 364. “The Eichleay formula goes 

nowhere without causation.” Id. at 60. A contractor may recover only if there is an 

owner-caused delay. Id.

{¶57} The contract language in the present case is similar to the contract 

language in Complete Gen. Constr. Co. It provides that “[t]he City will only pay for 

the Contractor’s home office overhead if all work on the project is suspended at no 

fault of the Contractor, the length of the suspension is unknown, the Contractor’s 

crews are put on standby, and the Contractor cannot get replacement work for the 

time period of the suspension.” 

{¶58} First, the record shows that some of the delay was not caused by the 

city. The delay from September 2012 to December 2012 was caused by the 

installation of curbs by Colerain Township, which is not a party to either suit. 

Gessner acknowledged that he knew Triton would return to work on the project 

when the curbs were installed. 

{¶59} Triton contends that the city caused a nine-month suspension from 

September 2012 until June 2013. The record shows that the city had a policy in 
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which it extends a contract for at least nine months past its final completion date to 

negotiate change orders and close out the contract. Since Triton finished its work in 

December 2012, it is difficult to say that the city’s extension for closing out the 

project caused Triton to incur additional home-office-overhead costs. But, even if we 

attribute all the delay to the city, nothing in the record shows that the city put Triton 

on “standby” status during that time. 

{¶60} Further, Triton was not prevented from accepting other work from 

September 2012 through June 2013. In granting summary judgment to the city on 

Triton’s claim for unabsorbed home office overhead, the trial court stated, 

Triton’s own employee time records show that its employees were 

working on various replacement projects from September 2012 

(contract completion date) and December 2012 (the date Triton admits 

its work on the project was completed). Mr. Gessner’s inability to 

recall whether Triton passed up other opportunities is not sufficient to 

create an issue of fact concerning whether Triton was prevented from 

obtaining replacement work as a result of the Sagebrush Project. 

Triton failed to locate or produce any admissible record or evidence 

that shows that Triton was unable to undertake replacement work as a 

result of the Sagebrush Project. The burden is on Triton to set forth 

specific facts showing there is a genuine issue for trial. 

The record supports the trial court’s assessment. 

{¶61} We find no issue of material fact. Construing the evidence most 

strongly in Triton’s favor, reasonable minds can come to but one conclusion—that 

Triton did not suffer home-office-overhead damages. The city was entitled to 

judgment as a matter of law, and the trial court did not err in granting summary 
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judgment to the city on that issue. Consequently, we overrule Triton’s fourth 

assignment of error. 

Directed Verdict/Motion to Dismiss 

{¶62} Finally, in its eighth assignment of error, Triton contends that the trial 

court erred in granting the city’s motion for a directed verdict. It contends that the 

court’s prior rulings erroneously prevented it from pursuing its claims in the action. 

This assignment of error is well taken, although not precisely for the reasons Triton 

argues. 

{¶63} When the case proceeded to trial, it was heard by a visiting judge. The 

visiting judge advised the parties that he would not change any of the assigned 

judge’s evidentiary rulings. Triton and the city entered into an agreement resolving 

some of the claims, which included dismissing the jury and proceeding to a bench 

trial. The court permitted Triton to proffer the evidence it would have presented if 

that evidence had not been excluded by the motions in limine before granting the 

motion for a directed verdict. 

{¶64} Civ.R. 50(A)(4) governs motions for a directed verdict. A ruling on a 

motion for a directed verdict determines whether the evidence was sufficient to 

proceed to a jury. Osler v. Lorain, 28 Ohio St.3d 345, 347, 504 N.E.2d 19 (1986); 

Williams v. Sharon Woods Collision Ctr. Inc., 2018-Ohio-2733, 117 N.E.3d 57, ¶ 14 

(1st Dist.). Therefore, directed verdicts are inapplicable in bench trials where no jury 

exists. Hayes v. Carrigan, 2017-Ohio-5867, 94 N.E.3d 1091, ¶ 21 (1st Dist.). 

{¶65} Instead, a defendant in a nonjury action must move for an involuntary 

dismissal under Civ.R. 41(B)(2) at the close of the plaintiff’s evidence. Id. Therefore, 

we will treat Triton’s assignment of error as one challenging the trial court’s decision 

to grant a dismissal under Civ.R. 41(B)(2). See id.
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{¶66} When ruling on a Civ.R. 41(B)(2) motion to dismiss, a trial court is 

entitled to weigh the evidence presented. It is not required to view the evidence in 

the light most favorable to the plaintiff. Goering v. Chriscon Builders Ltd., 1st Dist. 

Hamilton No. C-100729, 2011-Ohio-5480, ¶ 16. A reviewing court may not set aside 

the trial court’s judgment on such a motion unless the judgment was erroneous as a 

matter of law or against the manifest weight of the evidence. Id. 

{¶67} We have already held that the trial court erred in excluding Triton’s 

evidence regarding differing site conditions and Gessner’s testimony regarding 

damages. Because the court did not consider that evidence, its judgment on the 

motion to dismiss was erroneous as a matter of law. Consequently, we sustain 

Triton’s eighth assignment of error and reverse the trial court’s decision granting the 

motion to dismiss. We remand the cause for a new trial on Triton’s differing-siteconditions claim under the provisions of the contract. 

Unjust Enrichment 

{¶68} We now address Triton’s assignments of error related to the 

Wesselman/Carroll Projects. In its fifth assignment of error, Triton contends that 

the trial court erred in granting summary judgment in favor of the city on the city’s 

claim for unjust enrichment. Triton argues that genuine issues of material fact exist 

as to whether it would be inequitable for it to repay $496,256.09 to the city based on 

the city’s mistaken payment of additional sums to Triton. This assignment of error is 

not well taken. 

{¶69} Unjust enrichment occurs when a party retains money or benefits that 

in equity belong to another. Liberty Mut. Ins. Co. v. Indus. Comm., 40 Ohio St.3d 

109, 110-111, 532 N.E.2d 124 (1988); Alexander v. Motorists Mut. Ins. Co., 1st Dist. 

Hamilton No. C-110836, 2012-Ohio-3911, ¶ 23. To establish unjust enrichment, the 
OHIO FIRST DISTRICT COURT OF APPEALS

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plaintiff must demonstrate: (1) a benefit conferred by the plaintiff on the defendant; 

(2) knowledge by the defendant of that benefit; and (3) retention of that benefit by 

the defendant under circumstances where it would be unjust to do so without 

payment. Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183, 465 N.E.2d 1298 

(1984); Alexander at ¶ 23. 

{¶70} Triton argues that it was entitled to the first payment of $496,256.09 

at the conclusion of the Wesselman/Carroll Project. Pavement Management did not 

assert claims against the city until six months after the project had been completed. 

Triton denied that it had contracted with Pavement Management and that it was 

liable to pay it any amount. Triton argues that it was entitled to receive, deposit and 

retain the first payment that it had earned by its performance of the work on the 

Wesselman/Carroll Project. 

{¶71} As to the second, mistaken payment, Triton contends that genuine 

issues of fact exist as to whether the city breached a duty imposed on it by law in 

making the second payment. It argues that the city was obligated by law to account 

for its own expenditures and reconcile its own accounts. Therefore, genuine issues of 

material fact existed as to whether it would be unconscionable for Triton to retain the 

benefits conferred on it, and whether the city is precluded from recovery by its own 

failure to carry out its obligations. 

{¶72} We find no merit in Triton’s arguments. The record shows that Triton 

was paid twice for its work on the Wesselman/Carroll Projects. The trial court was 

correct when it stated, 

Since January 2014 the City’s position has not changed with regard to 

the receipt or lack of receipt of the funds in question. Triton has not 

located any bank documents which contradict the [bank’s] records. 

Triton was aware that it still possessed the funds in 2011. Triton has 
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failed to present any evidence to show the return of the overpayment 

to the City. Majid Samarghandi and Triton knew that the City’s checks 

were deposited into Triton’s checking accounts and the relevant funds 

were never returned to the City. 

{¶73} Triton is essentially arguing that it should be able to take advantage of 

a simple mistake by the city. We find no issue of material fact. Construing the 

evidence most strongly in Triton’s favor, reasonable minds can come to but one 

conclusion—that Triton was unjustly enriched when it failed to return the mistaken 

payment. The city was entitled to judgment as a matter of law, and the trial court did 

not err in granting summary judgment in its favor on its claim for unjust enrichment. 

Consequently, we overrule Triton’s fifth assignment of error. 

Abuse of Process 

{¶74} In its seventh assignment of error, Triton contends that the trial court 

erred in granting summary judgment in the city’s favor on Triton’s claim for abuse of 

process. It argues that the trial court applied the wrong standard and improperly 

concluded that Triton had failed to present “clear evidence” of the elements of abuse 

of process. This assignment of error is not well taken. 

{¶75} To establish a claim for abuse of process, a plaintiff must show (1) that 

a legal proceeding has been set in motion in proper form and with probable cause; 

(2) that the proceeding has been perverted to attempt to accomplish an ulterior 

purpose for which it was not designed; and (3) that direct damage has resulted from 

that wrongful use of process. Robb v. Chagrin Lagoons Yacht Club, 75 Ohio St.3d 

264, 270, 662 N.E.2d 9 (1996); Losch & Assoc., Inc., 1st Dist. Hamilton No. C150716, 2016-Ohio-4950, ¶ 22. “[A]buse of process occurs when someone attempts 
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to achieve through use of the court that which the court is itself powerless to order.” 

Robb at 271. 

{¶76} Triton takes the trial court’s statement that it failed to present “clear 

evidence” out of context. The abuse-of-process claim was based on the allegation 

that the city had brought its fraud claim for the improper purpose of forcing Triton to 

pay the city $495,256.09, the amount of the mistaken payment to Triton, and 

punitive damages. As the trial court pointed out, “The entire basis of the City’s 

original complaint is to get Triton to repay the $496,265.09. But the court does have 

the power to order the repayment of money.” 

{¶77} Triton also claims that the city filed the fraud claim to punish it and to 

pressure it into settling its claims against the city for a lower amount. Triton 

presented no evidence to support these allegations, other than Samarghandi’s 

deposition testimony in which he stated that he believed that the city had filed the 

fraud claim to exert pressure on him. That belief is insufficient to create a genuine 

issue of material fact. See Schlaegel v. Howell, 2015-Ohio-4296, 42 N.E.3d 771, ¶ 23 

(2d Dist.); White v. Sears, Roebuck & Co., 10th Dist. Franklin No. 10AP-294, 2011-

Ohio-204, ¶ 8-9. 

{¶78} Though the trial court’s use of the phrase “clear evidence” was 

unfortunate, the record contains no evidence to support Triton’s contention that the 

proceeding was perverted to attempt to accomplish an improper purpose for which it 

was not designed. Therefore, the trial court did not err in granting summary 

judgment in favor of the city on Triton's claim for abuse of process. We overrule its 

seventh assignment of error. 
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Frivolous Conduct 

{¶79} In its sixth assignment of error, Triton contends that the trial court 

erred in granting the city's motion for summary judgment on its claim for frivolous 

conduct under R.C. 2323.51, and in precluding it from raising the issue until after 

trial. It argues that Ohio law allows a party to raise a frivolous-conduct claim either 

by motion or counterclaim, and that the trial court erred in finding that it could only 

be pursued by motion. 

{¶80} The record shows that the trial court allowed the city to amend its 

complaint to add a claim for fraud, based on Triton’s failure despite repeated 

requests to return the mistaken payment. Triton then asserted counterclaims for 

abuse of process and for frivolous conduct. In its counterclaim, Triton alleged that 

the City’s fraud claims were initiated and other actions were taken 

merely for the purpose of harassing or maliciously injuring Triton and 

Mr. Samarghandi, or for another improper purpose; and/or, upon 

information and belief, the City’s fraud claims consist of allegations or 

other factual contentions that have no evidentiary support or are not 

likely to have evidentiary support after a reasonable opportunity for 

further investigation or discovery. 

The city withdrew its fraud claim as part of a settlement of some issues immediately 

before trial. 

{¶81} R.C. 2323.51(B)(1) provides that “at any time not more than thirty days 

after the entry of final judgment in a civil action or appeal, any party adversely 

affected by frivolous conduct may file a motion for an award of attorney costs, 

reasonable attorney’s fees, and other reasonable expenses incurred in connection 

with the civil action or appeal.” 
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{¶82} A split of authority exists as to the proper procedure to raise a claim of 

frivolous conduct. Some courts have held that a request for sanctions under R.C. 

2323.51 must be made by motion after the trial and some have held that it may be 

made by counterclaim as well as by motion. See Scheel v. Rock Ohio Caesars 

Cleveland, LLC, 8th Dist. Cuyahoga No. 105037, 2017-Ohio-7174, ¶ 16; Craine v. 

ABM Serv., Inc., 11th Dist. Portage No. 2011-P-0028, 2011-Ohio-5710, ¶ 10; Shaver 

v. Wolske & Blue, 138 Ohio App.3d 653, 673, 742 N.E.2d 164 (10th Dist.2000). 

{¶83} The trial court held that a claim for frivolous conduct must be raised 

by motion rather than in a counterclaim. Nevertheless, Triton was not foreclosed 

from relief. The court stated: 

However, until the Supreme Court resolves the conflicting case law the 

Court finds that the claim is not entirely waived under Ohio law. 

Therefore, to the extent that the City's motion wishes this Court to find 

as matter of law that the claim is forever extinguished, the City’s 

motion is denied. The Court does find that the claim is premature and 

should be completely separated from the upcoming jury trial * * *. The 

Court finds that if Triton would like to pursue this claim it should be 

restyled as a motion and filed after trial. 

{¶84} Triton never filed that motion. The final judgment entry stated that in 

accordance with the court's previous entry, “judgment is entered in the City’s favor 

and against Triton dismissing without prejudice Triton’s counterclaim of frivolous 

conduct.” Since we have remanded the matter for a new trial, Triton is not 

foreclosed from raising the issue again in the trial court. We need not issue an 

advisory opinion on this issue. Therefore, we find the issue to be moot, and we 

decline to address it. See Schwab v. Lattimore, 166 Ohio App.3d 12, 2006-Ohio-
OHIO FIRST DISTRICT COURT OF APPEALS

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1372, 848 N.E.2d 912, ¶ 10 (1st Dist.); In re Bailey, 1st Dist. Hamilton Nos. C-040014 

and C-040479, 2005-Ohio-3039, ¶ 9. 

{¶85} In sum, we sustain Triton’s first, second, third and eighth assignments 

of error and we remand the cause to the trial court for a new trial on Triton’s 

differing-site-conditions claim. We find Triton’s sixth assignment of error to be 

moot, and we decline to address it. Finally, we overrule Triton’s remaining 

assignments of error, and we affirm the trial court’s judgment in all other respects. 

Judgment affirmed in part, reversed in part, and cause remanded. 

 

MYERS, P.J., and CROUSE, J., concur. 

Please note: 

 The court has recorded its own entry this date.