[Cite as Lee Testing & Eng. Inc. v. Ohio Dept. of Transp., 2014-Ohio-1850.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Lee Testing & Engineering Inc. et al., : 

 Plaintiffs-Appellants, : 

 No. 13AP-851 

v. : (Ct. of Cl. No. 2012-3930) 

Ohio Department of Transportation, : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on April 29, 2014 

 

 

Donald R. Murphy, for appellants. 

Michael DeWine, Attorney General, and Christopher P. 

Conomy, for appellee. 

 

APPEAL from the Court of Claims of Ohio 

O'GRADY, J. 

{¶ 1} Plaintiffs-appellants Lee Testing & Engineering Inc. and Verna Lee appeal 

from a judgment of the Court of Claims of Ohio rejecting their claims against defendantappellee, the Ohio Department of Transportation ("ODOT"). For the reasons that follow, 

we affirm. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

{¶ 2} In May 2012, appellants filed a complaint against ODOT1 alleging claims of 

negligence, discrimination under Title VI of the Civil Rights Act, and violations of the 

Fourteenth Amendment Due Process Clause. The claims stemmed from ODOT's actions 

 

1 The complaint also named various ODOT employees as defendants, but the Court of Claims dismissed 

them as parties in the action under R.C. 2743.02(E). 
No. 13AP-851 2 

with regard to Lee Testing & Engineering Inc.'s ("Lee Testing") application for 

certification as a Disadvantaged Business Enterprise ("DBE") under 49 C.F.R. 26. Among 

other things, appellants complained about the amount of time it took for ODOT to 

approve Lee Testing's application and ODOT's failure to take certain actions after the 

approval. The Court of Claims bifurcated the issues of liability and damages for purposes 

of trial. 

{¶ 3} After the liability trial, the Court of Claims dismissed the individual claims 

of Verna Lee based on a lack of standing. The court found it lacked jurisdiction to 

consider Lee Testing's due process and civil rights claims, and, even if the claims were 

cognizable, it was unclear what constitutional or statutory rights were at issue. Regarding 

the negligence claim, the court found Lee Testing failed to prove ODOT had a duty, and 

without a duty, there could be no breach of duty. Lee Testing also failed to show any 

alleged breach of duty caused it damages. The court noted when a trial is bifurcated into 

separate liability and damages phases, in the liability phase the plaintiff must still prove 

some damage was reasonably certain to occur as a proximate result of the defendant's 

negligence. The court also found, even if Lee Testing had proven damages, the economic 

loss rule barred the negligence claim because Lee Testing did not claim it suffered more 

than just economic harm. Additionally, the court found that if, as Lee Testing argued, 

ODOT had a duty to take further action to certify Lee Testing as a DBE, such action would 

be a "public duty," and ODOT's performance or nonperformance of that duty would be 

entitled to immunity under R.C. 2743.02(A)(3)(a). (R. 67, at 4-5.) Finally, the court 

found the special relationship exception to this immunity did not apply.2 

II. ASSIGNMENT OF ERROR 

{¶ 4} Appellants appeal and present this court with one assignment of error for 

our review: 

THE TRIAL COURT ERRED WHEN IT FAILED TO FIND 

THAT THE DBE CERTIFICATION PROCESS IS GOVERNED 

BY THE SEVERAL SECTIONS UNDER 49 CFR 26, WHICH 

CREATES A SPECIAL RELATIONSHIP PURSUANT TO 

 

2 Though unclear, we interpret the Court of Claims' immunity discussion to apply only to Lee Testing's 

negligence claim and not its constitutional or civil rights claims. 
No. 13AP-851 3 

O.R.C. 2743.02(A)(3)(b) AND AN AFFIRMATIVE DUTY 

UPON APPELLEE ODOT TO ACT. 

III. DISCUSSION 

{¶ 5} Under the sole assignment of error, appellants contend based on the 

existence of 49 C.F.R. 26, the Court of Claims should have found a special relationship 

existed between Lee Testing and ODOT for purposes of R.C. 2743.02(A)(3)(b) and ODOT 

had an affirmative duty to act. In other words, appellants challenge the Court of Claims' 

finding of immunity and appear to challenge the finding that ODOT had no duty for 

purposes of Lee Testing's negligence claim. 

{¶ 6} However, as ODOT points out, even if we sustained appellants' assignment 

of error, we could not reverse the judgment of the Court of Claims in this matter. As we 

previously stated, the Court of Claims dismissed Lee's individual claims against ODOT for 

lack of standing. The Court of Claims rejected Lee Testing's due process and civil rights 

claims because they were not cognizable in the Court of Claims, and, even if they were, 

Lee Testing failed to prove them. On appeal, appellants do not challenge these findings, so 

we will not address them. See App.R. 12(A)(1)(b). Because these findings remain intact, 

the Court of Claims' judgment as to Lee's individual claims and Lee Testing's due process 

and civil rights claims likewise remains intact. 

{¶ 7} Finally, the Court of Claims rejected Lee Testing's negligence claim for 

several independent reasons: (1) immunity, (2) lack of duty (and thus no breach of duty), 

(3) absence of proof of damages, and (4) the economic-loss rule. See Madden v. Prod. 

Concrete, Inc., 10th Dist. No. 13AP-208, 2013-Ohio-5393, ¶ 11, citing Wallace v. Ohio 

Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, ¶ 22 ("The elements of a claim 

of negligence are: (1) the existence of a legal duty owing from the defendant to the 

plaintiff; (2) the defendant's breach of that duty; and (3) injury to the plaintiff proximately 

resulting from such failure."); Corporex Dev. & Constr. Mgt., Inc. v. Shook, Inc., 106 Ohio 

St.3d 412, 2005-Ohio-5409, ¶ 6 ("The economic-loss rule generally prevents recovery in 

tort of damages for purely economic loss."). Appellants only challenge the immunity and 

lack of duty findings in their assigned error. Therefore, regardless of the merits of the 

assigned error, the judgment on Lee Testing's negligence claim must stand. See Roberts 

v. Columbus City Police Impound Div., 195 Ohio App.3d 51, 2011-Ohio-2873, ¶ 17 (10th 
No. 13AP-851 4 

Dist.) (stating trial court's judgment must stand where appellant only challenges one of 

two separate and independent reasons the court gave for the judgment). 

{¶ 8} We note, in its argument Lee Testing claims ODOT proximately caused 

damages. However, Lee Testing did not assign the Court of Claims' finding on damages as 

error, and this court rules on assignments of error, not mere arguments. Anderson v. 

Preferred Title & Guaranty Agency, Inc., 10th Dist. No. 13AP-385, 2014-Ohio-561, ¶ 11. 

Additionally, Lee Testing did not provide this court with a transcript of the liability trial, 

and without that transcript we cannot evaluate Lee Testing's suggestion that it presented 

evidence of damages. Therefore, even if Lee Testing assigned the damages finding as 

error, we would have to presume the validity of the lower court proceedings and affirm on 

that issue. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980); White v. Ohio 

Dept. of Rehab. & Corr., 10th Dist. No. 12AP-927, 2013-Ohio-4208. Appellant's 

assignment of error is overruled. 

IV. CONCLUSION 

{¶ 9} Accordingly, we overrule the sole assignment of error and affirm the 

judgment of the Court of Claims of Ohio. 

Judgment affirmed. 

BROWN and DORRIAN, JJ., concur.