[Cite as Boone Coleman Constr., Inc. v. Village of Piketon, 2014-Ohio-2377.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

PIKE COUNTY 

BOONE COLEMAN : Case No. 13CA836 

CONSTRUCTION, INC., : 

 : 

 Plaintiff-Appellant, : 

 : 

v. : DECISION AND

 : JUDGMENT ENTRY

VILLAGE OF PIKETON, OHIO, : 

 : 

 Defendant-Appellee. : RELEASED: 5/22/2014 

APPEARANCES: 

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

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

Ohio, for appellee. 

Harsha, J. 

{¶1} Appellant, Boone Coleman Construction, Inc. (“Boone Coleman"), filed a 

complaint seeking the difference between what it actually received and the price stated 

in a construction contract between it and appellee, Village of Piketon, Ohio. Boone 

Coleman also sought additional compensation for work it performed to correct 

subsurface problems and to make revisions to a retaining wall and a traffic signal while 

performing the contract. 

{¶2} Boone Coleman asserts that the trial court erred in entering summary 

judgment rejecting its claim for the unpaid contract amount and granting the village’s 

counterclaim for liquidated damages because the 397-day delay in performing the work 

was the village’s fault. However, Boone Coleman did not complete the construction 

contract within the time specified in the contract and it did not request an extension of 

time in accordance with the express terms of the agreement. 
Pike App. No. 13CA836 2 

{¶3} Boone Coleman also argues the liquidated damages provision constituted 

an unenforceable penalty. We agree because viewing the contract as a whole in its 

application, the amount of damages is so manifestly unreasonable and disproportionate 

that it plainly constitutes an unenforceable penalty. We sustain that portion of Boone 

Coleman's first assignment of error. 

{¶4} Boone Coleman next contends that the trial court erred in denying its 

claims for additional compensation based on additional work it performed to correct 

subsurface problems and to revise the retaining wall and traffic signal. We reject this 

contention because Boone Coleman did not follow the parties’ unambiguous notice 

provisions to claim additional compensation. And the contract explicitly precluded 

recovery for additional costs related to subsurface conditions encountered by Boone 

Coleman. 

{¶5} Therefore, we reverse that portion of the trial court's summary judgment 

enforcing the liquidated damages provision and remand that portion of the case for 

further proceedings. We affirm the remainder of the judgment 

I. FACTS 

{¶6} In 2007, Piketon solicited bids for a construction project titled “Pike Hill 

Roadway and Related Improvements.” The project was described as: 

Construction of a new traffic signal at the intersection of US Route 23 and 

Market Street, construction of approximately 330 linear feet of steel Hpile/concrete lagging retaining wall, approximately 360 LF of full depth 

roadway reconstruction, miscellaneous storm drainage improvements, 

guard rail replacement, asphalt resurfacing of portions of Market Street 

and Shyville Road and other related improvements. 

 
Pike App. No. 13CA836 3 

{¶7} Because of safety concerns there had been a longstanding desire for a 

traffic light at the intersection of U.S. Route 23 and Market Street in the village. The 

need for a traffic light at the intersection was the driving force behind the construction 

project. The project was designed by Piketon’s engineer, Woolpert, Inc. 

{¶8} Boone Coleman submitted the lowest bid, and in July 2007, the parties 

entered into a contract for Boone Coleman to complete the construction project for 

$683,300. The contract provided that the time limits were of the essence, that work 

would be substantially completed within 120 days after the date when the contract time 

began, and that as liquidated damages for delay, the contractor would pay the owner 

$700 for each day after the specified completion date until the project was substantially 

completed. The specific provisions of the contract stated: 

ARTICLE 4 – CONTRACT TIMES 

4.01. Time of the Essence

 

 A. All time limits for Milestones, if any, Substantial Completion, and 

completion and readiness for final payment as stated in the Contract 

Documents are of the essence of the Contract. 

4.02 Days to Achieve Substantial Completion and Final Payment

 A. The Work will be substantially completed within 120 days after 

the date when the Contract Times commence to run as provided in 

paragraph 2.03 of the General Conditions, and completed and ready for 

final payment in accordance with paragraph 14.07 of the General 

Conditions within 120 days after the date when the Contract Times 

commence to run. 

4.03 Liquidated Damages

 A. CONTRACTOR and OWNER recognize that time is of the 

essence of this Agreement and that OWNER will suffer financial loss if the 

Work is not completed within the time(s) specified in paragraph 4.02 

above, plus any extensions thereof allowed in accordance with Article 12 

of the General Conditions. The parties also recognize the delays, 
Pike App. No. 13CA836 4 

expense, and difficulties involved in proving in a legal or arbitration 

[proceeding] the actual loss suffered by OWNER if the Work is not 

completed on time. Accordingly, instead of requiring any such proof, 

OWNER and CONTRACTOR agree that as liquidated damages for delay 

(but not as a penalty), CONTRACTOR shall pay OWNER $700.00 for 

each day that expires after the time specified in paragraph 4.02 for 

Substantial Completion until the Work is substantially complete. 

{¶9} The contract time commenced on July 30, 2007, which meant that the 

required date of completion of the project was November 27, 2007. The parties 

subsequently agreed to an extension of the completion date to May 30, 2008. 

{¶10} In an April 2008 letter to Woolpert, Boone Coleman requested another 

extension of the project completion date because its subcontractor for the installation of 

the traffic signal was unable to perform due to financial difficulties. In fact, the 

subcontractor had not ordered any of the required materials. By a letter in late May 

2008, the village notified Boone Coleman that if it did not complete the project by May 

30, 2008, it would begin assessing the specified liquidated damages of $700 per day. 

The village notified Boone Coleman in early July 2008 that it was assessing damages of 

$700 per day as of May 31, 2008 until the completion of the project. 

{¶11} Boone Coleman did not complete the project by installing the traffic light 

and coordinating approval by the Ohio Department of Transportation (“ODOT”) until July 

2, 2009, which was 397 days after the agreed project completion date of May 30, 2008. 

{¶12} During the project, Boone Coleman did not request extensions of time or 

additional compensation in accordance with the parties’ contract, which set forth a 

specific procedure to resolve these claims: 

10.05 Claims and Disputes

 A. Notice: Written notice stating the general nature of each Claim, 

dispute, or other matter shall be delivered by the claimant to the 
Pike App. No. 13CA836 5 

ENGINEER and the other party to the Contract promptly (but in no event 

later than 30 days) after the start of the event giving rise thereto. Notice of 

the amount or extent of the Claim, dispute, or other matter with supporting 

data shall be delivered to the ENGINEER and the other party to the 

Contract within 60 days after the start of such event (unless ENGINEER 

allows additional time for claimant to submit additional or more accurate 

data in support of such Claim, dispute, or other matter). A Claim for 

adjustment in Contract Price shall be prepared in accordance with the 

provisions of paragraph 12.01.B. A Claim for an adjustment in Contract 

Time shall be prepared in accordance with the provisions of paragraph 

12.02.B. Each Claim shall be accompanied by claimant’s written 

statement that the adjustment claimed is the entire adjustment to which 

the claimant believes it is entitled as a result of said event. * * * 

* * * 

D. No Claim for an adjustment in Contract Price or Contract Times (or 

Milestones) will be valid if not submitted in accordance with this paragraph 

10.05. 

* * * 

12.01 Change of Contract Price

A. The Contract Price may only be changed by a Change Order or 

by a Written Amendment. Any Claim for an adjustment in the Contract 

Price shall be based on written notice submitted by the party making the 

claim to the ENGINEER and the other party to the Contract in accordance 

with the provisions of paragraph 10.05. 

* * * 

12.02 Change of Contract Times

 A. The Contract Times(or Milestones) may only be changed by a 

Change Order or by a Written Amendment. Any Claim for an adjustment 

in the Contract Times (or Milestones) shall be based on written notice 

submitted by the party making the claim to the ENGINEER and the other 

party to the contract in accordance with the provisions of paragraph 10.05. 

{¶13} After the village paid Boone Coleman $535,823 of the $683,300 price 

under the construction contact, Boone Coleman filed a complaint in the Pike County 

Court of Common Pleas seeking to recover the remaining $147,477 allegedly due under 

the contract. Boone Coleman also sought $20,120 for additional work it performed to 

repair subsurface problems it allegedly uncovered after it began its work and 
Pike App. No. 13CA836 6 

$86,780.26 for revisions it made to the retaining wall and traffic signal. Piketon filed an 

answer in which it denied liability for any of Boone Coleman’s claims and a counterclaim 

seeking liquidated damages for Boone Coleman’s delay in completing the construction 

project. The village subsequently filed a motion for summary judgment, and Boone 

Coleman filed a memorandum in opposition. 

{¶14} The trial court granted the village’s motion for summary judgment and 

entered judgment in its favor on its counterclaim in the net amount of $130,423 

($277,900 in liquidated damages less the $147,477 in the unpaid contract balance), 

plus interest. The trial court determined that the liquidated damages provision of the 

construction contract was valid and enforceable, that Boone Coleman was contractually 

responsible for delays in the completion of the project, and that Boone Coleman did not 

provide the required written notice for extensions of time or additional compensation. 

{¶15} This appeal ensued. 

II. ASSIGNMENTS OF ERROR 

{¶16} Boone Coleman assigns the following errors for our review: 

I. THE TRIAL COURT ERRED IN GRANTING APPELLEEPIKETON’S MOTION FOR SUMMARY JUDGMENT AS TO 

PIKETON’S COUNTERCLAIM AND BRANCH ONE OF BOONE 

COLEMAN’S CONSTRUCTION COMPLAINT. 

II. THE TRIAL COURT ERRED IN GRANTING PIKETON’S MOTION 

FOR SUMMARY JUDGMENT AS TO BRANCHES TWO AND 

THREE OF BOONE COLEMAN CONSTRUCTION’S COMPLAINT. 

III. STANDARD OF REVIEW 

{¶17} Appellate review of summary judgment decisions is de novo, governed by 

the standards of Civ.R. 56. Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio1957, 991 N.E.2d 232, ¶ 7. Summary judgment may be granted only when (1) there is 
Pike App. No. 13CA836 7 

no genuine issue of material fact, (2) the moving party is entitled to judgment as a 

matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving 

party, reasonable minds can come to but one conclusion and that conclusion is adverse 

to the nonmoving party. Id.; see also Civ.R. 56(C). 

{¶18} In addition, this case involves the interpretation of the parties’ construction 

contract, which is also a matter of law we review de novo. Shafer v. Newman Ins. 

Agency, 4th Dist. Highland No. 12CA11, 2013-Ohio-885, ¶ 6; Arnott v. Arnott, 132 Ohio 

St.3d 401, 2012-Ohio-401, 972 N.E.2d 586, ¶ 14, quoting Saunders v. Mortensen, 101 

Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d 452, ¶ 9 (“ ‘[t]he construction of a written 

contract is a matter of law that we review de novo’ ”). Our role is to ascertain and give 

effect to the intent of the parties, which is presumed to lie in the contract language. 

Arnott at ¶ 14; Marusa at ¶ 8. 

{¶19} Finally, the issue of whether a contract clause provides for liquidated 

damages or an unenforceable penalty raises a question of law that we review de novo. 

Lake Ridge Academy v. Carney, 66 Ohio St.3d 376, 380, 613 N.E.2d 183 (1993); 

Heskett Ins. Agency, Inc. v. Braunlin, 4th Dist. Ross No. 11CA3234, 2011-Ohio-6100, ¶ 

22. 

IV. LAW AND ANALYSIS 

A. Failure to Comply with Notice Provisions for Extension of Time 

or Modification of Contract Price 

{¶20} In its first assignment of error, Boone Coleman asserts the delay in 

completing the project was caused by matters that were not its responsibility and were 

attributable to the village. Therefore, it contends that the trial court erred in granting 
Pike App. No. 13CA836 8 

summary judgment in favor of the village on Boone Coleman's claim for the balance due 

and the village’s counterclaim for liquidated damages. In its second assignment of 

error, Boone Coleman contends that the trial court erred in granting the village’s motion 

for summary judgment on its claims for additional compensation for its work to repair 

undisclosed subsurface problems and to perform revisions to the retaining wall and the 

traffic signal. The failure of Boone Coleman to comply with the notice provisions of the 

contract controls the outcome of both of these assignments of error. 

{¶21} Notice provisions in contracts operate as conditions precedent to a party’s 

recovery of damages for a breach when the parties expressly indicate such an intent. 

See Moraine Materials Co. v. Cardinal Operating Co., 2d Dist. Montgomery No. CA 

16782, 1998 WL 785363, *6 (Nov. 13, 1998). Consequently, “[i]t is well established 

under Ohio Contract Law that a party must comply with all express conditions to be 

performed in case of breach before it can claim damages by reason of the breach.” Au 

Rustproofing Ctr., Inc. v. Gulf Oil Corp., 755 F.2d 1231, 1237 (6th Cir.1985). And a 

“right of action requiring notice as a condition precedent cannot be enforced unless the 

notice provided for has been given.” Id.

{¶22} Here, the parties explicitly agreed that Boone Coleman would provide 

written notice of the general nature of any request for extensions of time and/or 

adjustment to the contract price to both the village and Woolpert within 30 days “after 

the start of the event giving rise” to Boone Coleman’s request. The parties also agreed 

that Boone Coleman would provide a second written notice of the amount or extent of 

its claim with supporting data to the village and Woolpert within 60 days of the event. 

Under Section 10.05(d) of the construction contract, the parties specified that “[n]o 
Pike App. No. 13CA836 9 

claim” for an adjustment in either the contract time or price “will be valid” unless 

submitted in accordance with these provisions. 

{¶23} In his deposition, George McClennen, Boone Coleman’s designated 

corporate representative in this case, admitted that the company did not give the village 

notice of its requests for extension of the project completion date or additional 

compensation. 

{¶24} To justify its 397-day delay in completing the project, Boone Coleman sent 

two letters requesting extensions of time, both to Woolpert. In April 2008, it requested 

an extension past the May 30, 2008 deadline because of its problems with its 

subcontractor. And in March 2009, it requested an extension of time because the 

railroad had not run its wires to Boone Coleman’s system and that this could not occur 

until the village obtained a railroad permit. Neither of these letters complied with the 

construction contract’s notice provisions because they were not sent to the village. 

Moreover, Boone Coleman’s problems with its subcontractor would not have warranted 

an extension of the project completion date because the contract stated that “[d]elays 

attributable to and within the control of a Subcontractor or Supplier shall be deemed to 

be delays within the control of” Boone Coleman. Furthermore, Boone Coleman’s March 

2009 request for an extension was untimely, i.e. they made it after the expiration of the 

project completion date. 

{¶25} On its claims for additional compensation, Boone Coleman provided 

Woolpert with three written notices: a May 6, 2008 letter requesting $26,219 for work to 

correct subsurface problems discovered upon excavation for the new pavement section 

of Market Street; an October 15, 2008 letter requesting the approval of $66,069.75 in 
Pike App. No. 13CA836 10 

extra costs to cover construction revisions to the retaining wall; and an October 24, 

2008 letter requesting a change order to cover $23,301.67 for revisions to the traffic 

signal. These letters did not comply with the contractual notice provisions because they 

were not sent to the village, they were not submitted within the required 30-day period, 

and they were not followed with a second, more detailed notice submitted within the 

required 60-day period. 

{¶26} Boone Coleman argues that its failure to comply with the parties’ notice 

provisions for requests for extension of time and additional compensation is not fatal 

because the village had actual notice of the requests through Woolpert. Boone 

Coleman’s argument is meritless. The Supreme Court of Ohio held as much in rejecting 

a contractor’s similar claim: 

 [W]e reject [the contractor’s] argument that it was excused from 

complying with the specific change-order procedure for requesting 

extensions because the state had actual notice of the need for changes to 

the deadline, and therefore any failure to comply with procedure was 

harmless error. The record lacks evidence of either an affirmative or 

implied waiver by the department or OSU of the change-order procedures 

contained in the contract. [The contractor] has not convinced us that its 

failure to request extensions was harmless to OSU. To the contrary, [the 

contractor] agreed that the contract language stated that failure to provide 

written notice “shall constitute a waiver by the Contractor of any claim for 

extension of or mitigation of Liquidated Damages.” The court of appeals 

correctly concluded that [the Contractor] “has not demonstrated that it was 

entitled to disregard its obligations under that part of the contract * * *.” 

Dugan & Meyers Constr. Co., Inc. v. Ohio Dept. of Adm. Servs., 113 Ohio St.3d 

226, 2007-Ohio-1687, 864 N.E.2d 68, ¶ 41. 

{¶27} Under Dugan & Meyers, “ ‘something more than actual notice on the part 

of the state is required to excuse a contractor from complying with its obligations 

regarding change-order procedures in public works contracts.’ ” J & H Reinforcing & 

Structural Erectors, Inc. v. Ohio School Facilities Comm., 10th Dist. No. 12AP-588, 
Pike App. No. 13CA836 11 

2013-Ohio-3827, ¶ 41, quoting Stanley Miller Constr. Co. v. Ohio School Facilities 

Comm., 10th Dist. No. 10AP-298, 2010-Ohio-6397, ¶ 17. As in these cases, the record 

here lacks any evidence of either an affirmative or implied waiver by the village of the 

detailed notice provisions of the parties’ construction contract. 

{¶28} Therefore, by failing to follow the detailed notice provisions for its claims 

for an extension of the project completion date and for additional compensation, Boone 

Coleman did not prove its entitlement to either adjustment. We overrule Boone 

Coleman’s first assignment of error insofar as it argues that its 397-day delay in 

completing the project was justified. We also overrule Boone Coleman’s second 

assignment of error regarding its claims for additional compensation. 

B. Waiver of Claims for Subsurface Conditions 

{¶29} Even if we assume that Boone Coleman had complied with the notice 

provisions for its claim seeking additional compensation to remediate subsurface 

conditions, its claim still must fail. Boone Coleman claims that it relied on inaccurate 

site plans concerning subsurface conditions in preparing and submitting its bid so that 

under the doctrine expressed in United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 

L.Ed. 166 (1918), it was not responsible for those defects. In Spearin, the United States 

Supreme Court recognized that when a contractor is “bound to build according to plans 

and specifications prepared by the owner, the contractor will not be responsible for the 

consequences of defects in the plans and specifications.” Id. at 136. 

{¶30} However, Boone Coleman waived this argument by not raising it in 

opposition to the village’s motion for summary judgment. It is axiomatic that a litigant’s 

failure to raise an issue at the trial court level waives its right to raise that issue on 
Pike App. No. 13CA836 12 

appeal; appellate courts generally will not consider any error a party failed to bring to 

the trial court’s attention when the trial court could have avoided or corrected the error. 

Lauer v. Layco Enterprises, Inc., 4th Dist. Washington App. No. 12CA40, 2013-Ohio1916, ¶ 11. Therefore, Boone Coleman waived this argument on appeal by failing to 

raise it below. See Central Allied Enterprises, Inc. v. Adjutant General’s Dept., 10th 

Dist. No. 10AP-701, 2011-Ohio-4920, ¶17, fn. 1 (contractor waived arguments 

concerning Spearin doctrine by failing to present them to the trial court). 

{¶31} Moreover, even if we chose not to apply waiver, Boone Coleman was not 

entitled to reimbursement to correct subsurface problems because the construction 

contract expressly stated that it was the “sole responsibility of the Contractor to take any 

and all measures he feels necessary to ascertain the subsurface conditions prior to 

bidding” and that “[n]o claims for additional costs will be considered for material, labor, 

equipment, or subcontractors/subconsultants to address subsurface conditions 

encountered during construction.” The Spearin doctrine does not invalidate express 

contractual provisions like these. See S & M Constructors, Inc. v. Columbus, 70 Ohio 

St.2d 69, 75, 434 N.E.2d 1349 (1982) (contractor’s claim for additional compensation 

because subsurface conditions reported to contractors before bidding differed materially 

from actual subsurface conditions encountered during the project was properly rejected 

because of provision in which contractor agreed that it would make no claim against the 

city for subsurface conditions), quoting Spearin at 136 (“ ‘Where one agrees to do, for a 

fixed sum, a thing possible to be performed, he will not be excused or become entitled 

to additional compensation, because unforeseen difficulties are encountered’ ”). 

{¶32} Thus, we overrule Boone Coleman’s second assignment of error. 
Pike App. No. 13CA836 13 

C. Liquidated Damages Provision is Unenforceable 

{¶33} In Boone Coleman’s remaining argument in its first assignment of error, it 

asserts that the trial court erred in assessing liquidated damages of $700 a day for its 

397-day delay in completing the project. As previously discussed, Boone Coleman did 

not complete the contract by the agreed upon deadline and did not properly request an 

extension of time under the notice provisions set forth in the contract. However, it 

claims that the liquidated damages of $277,900 constitutes an unenforceable penalty. 

{¶34} “The freedom to contract is a deep-seated right that is given deference by 

the courts.” Cincinnati City School Dist. Bd. of Edn. v. Conners, 132 Ohio St.3d 468, 

2012-Ohio-2447, 947 N.E.2d 78, ¶ 15. In general, “parties are free to enter into 

contracts which apportion damages in the event of default.” Lake Ridge, 66 Ohio St.3d 

at 381, 613 N.E.2d 183. “ ‘The right to contract freely with the expectation that the 

contract shall endure according to its terms is as fundamental to our society as the right 

to write and to speak without restraint.’ ” Id., quoting Blount v. Smith, 12 Ohio St.2d 41, 

47, 231 N.E.2d 301 (1967). 

{¶35} Nevertheless, penalty provisions in contracts are invalid on public policy 

grounds because a penalty attempts to coerce compliance with the contract instead of 

representing damages that may actually result from a failure to perform. Heskett, 2011-

Ohio-6100, at ¶ 22; Lake Ridge at 381. In Samson Sales, Inc. v. Honeywell, Inc., 12 

Ohio St.3d 27, 465 N.E.2d 392 (1984), paragraph one of the syllabus, the Supreme 

Court of Ohio set forth the following three-part test for evaluating the enforceability of a 

liquidated damages provision: 

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

estimation and adjustment, and have expressed this agreement in clear 
Pike App. No. 13CA836 14 

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

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

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

whole is not so manifestly unconscionable, unreasonable, and 

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

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

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

damages in the amount stated should follow the breach thereof. 

{¶36} As noted above, we conduct a de novo review to determine whether a 

liquidated damages clause operates in effect as an unenforceable penalty. 

{¶37} As the parties acknowledged in their liquidated damages clause, there are 

“difficulties involved in proving in a legal or arbitration [proceeding] the actual loss 

suffered by [the village] if the Work is not completed on time.” The impetus for the 

construction project was the installation of the traffic light based on safety concerns, so 

the absence of this light during the period of Boone Coleman’s lengthy delay increased 

the inconvenience and the safety risk for drivers over the roadway; these concerns are 

not easily quantifiable in damage terms. See Security Fence Group, Inc. v. Cincinnati, 

1st Dist. No. C-020827, 2003-Ohio-5263, ¶ 9 (in upholding a liquidated damages 

provision in a public construction contract involving the replacement of a bridge and a 

subcontract to provide guardrails and barriers for the project, the court observed that the 

“primary damage expected to flow from the breach of contract was inconvenience to the 

public, an amorphous form of damages”). 

{¶38} This is particularly so because, as Boone Coleman admits in its quotation 

of a treatise in its appellate brief, in construction contracts damages can seldom be 

reasonably estimated in advance. Thus, courts should not permit a contractor to nullify 

a reasonable estimate of damages by inconclusive testimony. See Ant. Brief, p. 15, fn. 

45, quoting 5 Corbin, Corbin on Contracts, Section 1072; see also Space Master 
Pike App. No. 13CA836 15 

Internatl., Inc. v. Worcester, 940 F.2d 16 (1st Cir.1991) (rulings on liquidated damages 

provisions in construction contracts are particularly deferential to the parties’ 

agreement). Therefore, the damages incurred as a result of a delay were uncertain as 

to amount and difficult to prove. 

{¶39} Next, applying the third part of the Samon Sales test, we find the plain and 

unambiguous language of the liquidated damages clause is consistent with the 

conclusion that the parties intended that damages in the amount of $700 per day would 

follow the contractor's breach of the project completion deadline. Boone Coleman is an 

experienced contractor who was represented by counsel during the bidding process. 

The parties themselves best knew their expectations regarding the agreement, and 

those expectations were reflected in the language used in the contract, which deemed 

time deadlines to be "of the essence" of their agreement. 

{¶40} Nevertheless, although the evidence satisfies the first and third parts of 

the Samson Sales test, it did not meet the second part. That is, when we view the 

contract as a whole in its application, we conclude the amount of damages is so 

manifestly unreasonable and disproportionate that it is plainly unrealistic and 

inequitable. Given the circumstances of this case we conclude the amount of damages 

is so unreasonably high and so disproportionate to the consideration paid that the 

clause amounts to a penalty. 

{¶41} In Harmon v. Haehn, 7th Dist. Mahoning No. 10 MA 177, 2011-Ohio-6449, 

¶ 52, 54, the appellate court reached a similar conclusion notwithstanding the 

satisfaction of the first and third parts of the Samson Sales test because the stipulated 

damages were equal to nearly one-third of the ultimate selling price of the property: 
Pike App. No. 13CA836 16 

However, even assuming that the damages at the time of the contract's 

formation were uncertain, and the contract is consistent with the parties' 

intention that damages in the amount of $250,000 should follow a breach, 

the amount of damages specified is manifestly unreasonable and thus the 

clause is a penalty pursuant to the second prong of the Lake Ridge test, 

"Reasonable compensation for actual damages is the legitimate objective 

of the liquidated damages provisions and, where the amount specified is 

plainly unrealistic and inequitable, courts will ordinarily regard the amount 

as a penalty." Hunter v. BPS Guard Servs., Inc. (1995), 100 Ohio App.3d 

532, 551, 654 N.E.2d 405. A damages provision is likewise unenforceable 

where the amount specified is manifestly disproportionate to the 

consideration paid or the damages that could foreseeably result from a 

breach. Samson Sales at 29, 465 N.E.2d 392. 

 *** 

In addition, the $250,000 stipulated damages amount is equal to nearly 

one-third of the ultimate selling price of the property. Moreover, Harmon 

did not testify as to how the $250,000 bore a reasonable relationship to 

the amount of damages in the event of a breach. This court has 

previously held where the appellants never testified to or presented any 

evidence of a method of calculation used to arrive at the stipulated 

damages amount, nor could their attorney recall any attempts at 

calculating the damages to arrive at the figure, there was no basis for 

concluding that the amount constituted anything more than a penalty, and 

that it was therefore unenforceable. Wright v. Basinger, 7th Dist. No. 01 

CA81, 2003-Ohio-2377, at ¶ 20. 

{¶42} Like the clause that the court in Harmon found to be unenforceable, the 

clause in this matter produced an award nearly equal to 1/3 of the value of the contract, 

i.e., $277,900 in liquidated damages on a $683,300 total contract price. And as in 

Harmon, the party seeking to enforce the liquidated damages clause–the village here–

did not present testimony or evidence to credibly support the relationship between the 

damages specified and the actual damages that would be incurred. There is no cited 

evidence in the record, for example, of a history of accidents at the intersection where 

the traffic signal was placed. Moreover, unlike the facts in Security Fence, 1st Dist. No. 

C-020827, 2003-Ohio-5263, there is no evidence here of the loss of a preexisting use of 
Pike App. No. 13CA836 17 

the highway resulting from the construction delay; there was no loss of any existing 

traffic signal during construction. 

{¶43} Reasonable compensation for actual damages is the legitimate objective 

of liquidated damages provisions. Where the resulting amount is manifestly inequitable 

and unrealistic, courts are justified in determining the provision to be an unenforceable 

penalty. Samson Sales at 28. Because we conclude that the liquidated damages 

clause here constituted an unenforceable penalty, we sustain this portion of Boone 

Coleman's first assignment of error. 

V. CONCLUSION 

{¶44} The trial court properly granted summary judgment in favor of the village 

on Boone Coleman’s claim, but erred in granting summary judgment in favor of the 

village on its counterclaim for liquidated damages. Having sustained the part of Boone 

Coleman's fist assignment of error challenging the summary judgment on liquidated 

damages, we reverse that portion of the trial court judgment and remand that part of the 

case for further proceedings. Having overruled Boone Coleman's remaining 

assignments of error, we affirm the remainder of the judgment of the trial court. 

JUDGMENT AFFIRMED IN PART 

AND REVERSED IN PART AND 

CAUSE REMANDED. 
Pike App. No. 13CA836 18 

Ringland, J., concurring in part and dissenting in part. 

{¶45} I respectfully concur in part and dissent in part from the majority's 

decision. I concur with the majority's resolution of (1) Boone Coleman's second 

assignment of error dealing with Boone Coleman's counterclaim and (2) that portion of 

the first assignment of error relating to the liquidated damages. However, I dissent as to 

that portion of the first assignment of error relating to the trial court's determination of 

fault for the project delays as I would find that under Civ.R. 56, genuine issues of 

material fact exist concerning who was responsible for the delay in completing the traffic 

light portion of the project. 

{¶46} "Unilateral and mutual delays, by which the owner causes some or all of 

his damages, cannot be the basis for his recovery of liquidated damages, absent a 

reasonable basis for apportioning those damages." Mt. Olivet Baptist Church, Inc. v. 

Mid-State Builders, Inc., 10th Dist. Franklin No. 84AP-363, 1985 WL 10493 (Oct. 31, 

1985). Through its passage of R.C. 4113.62(C)(1), the Ohio Legislature has made it 

clear that provisions in a construction contract that preclude liability for delay during the 

course of construction when the cause of the delay is the proximate result of the 

owner's act or failure to act are void and unenforceable. 

{¶47} Boone Coleman has alleged that the delay was due to and caused by the 

village's failure to review and accept the railroad's design plans for the construction of 

the traffic signal through its agent, the project engineer. Boone Coleman alleges that 

the village failed to contract with the railway company for a tie-in between the roadway 

and railway signal systems. In turn, the village argues that Boone Coleman was 

contractually responsible to "coordinate" with the railroad during construction regarding 
Pike App. No. 13CA836 19 

control wiring related to the proposed traffic signal and the existing railroad crossing 

controller. The term "coordinate" in this context is ambiguous and must be resolved 

against the village. 

{¶48} Boone Coleman effectively argues that to follow that the village's 

interpretation of "coordinate" is unworkable as it would require Boone Coleman to 

negotiate and contract with the railway on behalf of the village, thereby usurping the 

village engineer's function. Further, Boone Coleman argues that there is a question of 

fact as to whether it was comprehended at the time of the contract formation that a 

contract with the railway was needed. Finally, because there is a question of fact as to 

whether Boone Coleman had the authority to contract on the village's behalf, there is 

also a question of fact as to whether the project delay was due to the actions or 

inactions of Boone Coleman, or those of the village. 

{¶49} Accordingly, I dissent on the issue of fault relating to the delay in 

completing the project and would remand to the trial court for further hearings and trial. 
Pike App. No. 13CA836 20 

JUDGMENT ENTRY

 It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN 

PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the 

costs. 

 The Court finds there were reasonable grounds for this appeal. 

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

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

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

this entry. 

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

the Rules of Appellate Procedure. 

Abele, P.J.: Concurs in Judgment and Opinion. 

* Ringland, J.: Concurs in part and Dissents in part with Opinion. 

 For the Court 

 BY: ________________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

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

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

with the clerk. 

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

Supreme Court of Ohio in the Fourth Appellate District.