Dye v. J.J. Detweiler Ents., Inc.

[Cite as Dye v. J.J. Detweiler Ents., Inc., 2022-Ohio-3250.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JAMES DYE, ET AL. JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiffs-Appellants/Cross-Appellees Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2022 CA 00012
J.J. DETWEILER ENTERPRISES, INC.,
ET AL.
OPINION
Defendants-Appellees/Cross-Appellants

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2017 CV 02475

JUDGMENT: Affirmed in part; Reversed in part and
Remanded

DATE OF JUDGMENT ENTRY: September 15, 2022

APPEARANCES:

For Plaintiffs-Appellants For Defendants-Appellees

JON A. TROYER JAMES J. COLLUM
JON A. TROYER, ATTORNEY AT LAW LAW OFFICE OF JAMES J. COLLUM, LLC
5619 Tyro Street, NE 4618 Dressler Road, NW
Canton, Ohio 44721 Canton, Ohio 44718
Stark County, Case No. 2022 CA 00012 2

Wise, J.

{¶1} Plaintiffs-Appellants, James Dye, Andralett Dye, and J.B.A. Estate

Liquidators, LLC (“Appellants”), appeal from the December 22, 2021, Judgment Entry by

the Stark County Court of Common Pleas. Defendants-Appellees are Jennifer L. Lile,

Executor of the Estate of Joseph J. Detweiler and J.J. Detweiler Enterprises, Inc.

(“Appellees”). The relevant facts leading to this appeal are as follows.

STATEMENT OF THE FACTS AND CASE

{¶2} The dispute between Appellants and Appellees arose from monies owed by

Appellants on a cognovit note and past due rent for warehouse storage. Complaints were

filed in 2014 and 2015 and assigned to the Honorable John G. Haas. The parties entered

into a settlement agreement in December 2015, and the cases were dismissed.

{¶3} According to the settlement agreement Appellants were to auction off their

property stored at the warehouse (“disputed property”) to pay the amount owed

($54,079.57) (“the Debt”). The auctions would be conducted by Kaufman Realty &

Auctions, LLC (“Kaufman”). The unsold portion of the disputed property would remain at

the warehouse until the amount owed was paid off. After the first auction only generated

$3,127.20, a dispute arose over the settlement agreement. Appellant refused to let the

auctioneer conduct any more live auctions. Sometime thereafter oral modifications were

made to the settlement agreement.

{¶4} The verbal modification of the settlement agreement permitted Appellants

to auction the property themselves. The modification also included that if the agreed

amount was not paid in full to Appellees by June 30, 2016, Appellees would receive the

property.
Stark County, Case No. 2022 CA 00012 3

{¶5} On July 27, 2016, Appellants filed a complaint against Appellees alleging

breach of contract, conversion, and tortious interference, and sought punitive damages.

This case (No. 2016CV01730) was originally assigned to Judge Haas, but transferred to

the Honorable Frank G. Forchione due to a conflict of interest.

{¶6} On September 5, 2016, Appellee Joseph Detweiler passed away, and the

executor of his estate was substituted as a party.

{¶7} On June 26, 2017, the parties jointly dismissed their claims.

{¶8} On June 27, 2017, Appellants refiled their complaint, adding a claim for theft

(Case No. 2017CV01298).

{¶9} On July 20, 2017, Appellants amended their complaint to add a claim for

civil conspiracy.

{¶10} On February 9 and 26, 2018, Appellants filed responses to motions with

attached affidavits from their attorney, Jon Troyer, wherein he claimed during the

conversation between counsel and Judge Haas, he relied on certain representations from

Appellees’ then counsel to the detriment of his clients.

{¶11} On March 9, 2018, Appellees moved to disqualify Appellants’ attorney as

he may be called as a necessary witness based upon statements he made in his

affidavits. On April, 26, 2018, the trial court held a hearing on the matter.

{¶12} On May 7, 2018, the trial court denied the motion to disqualify counsel, but

ordered Appellants to obtain co-counsel for the trial in the event Appellants’ attorney was

called to testify.

{¶13} On October 12, 2018, Appellants moved for reconsideration of the trial

court’s May 7, 2018 decision.
Stark County, Case No. 2022 CA 00012 4

{¶14} On October 15, 2018, the trial court denied the motion for reconsideration,

again ordering Appellants to obtain co-counsel.

{¶15} Appellants’ claim the co-counsel they hired backed out shortly before trial,

and the trial court dismissed the case on October 16, 2018.

{¶16} On December 21, 2018, Appellants refiled their amended complaint (Case

No. 2018CV02475).

{¶17} On December 11, 2019, Appellees filed a response and counterclaim.

{¶18} On March 31, 2020, Appellants moved to continue the April 7, 2020 trial

date.

{¶19} On April 3, 2020, the trial court granted the motion and again ordered

Appellants to obtain co-counsel.

{¶20} On April 22, 2020, Appellees moved to dismiss for Appellants’ failure to

obtain co-counsel.

{¶21} On May 19, 2020, the trial court ordered Appellants to obtain co-counsel by

June 1, 2020.

{¶22} On June 2, 2020, Appellants moved for reconsideration of the trial court’s

order to obtain co-counsel.

{¶23} On June 8, 2020, Appellants filed their response to Appellees’ counterclaim.

{¶24} On June 17 2020, the trial court denied Appellants’ motion for

reconsideration and dismissed the case with prejudice.

{¶25} Appellants appealed the dismissal of cases 2018CV02475 and

2017CV01298.
Stark County, Case No. 2022 CA 00012 5

{¶26} In Dye v. J.J. Detweiler Enterprises, Inc., 5th Dist. Stark No. 2020CA00101,

2021-Ohio-1393, this Court found the trial court abused its discretion by dismissing the

case with prejudice. The matter was reversed and remanded to the trial court.

{¶27} On April 28, 2021, the trial court set the trial date for October 19, 2021.

{¶28} On October 7, 2021, Appellants submitted a Jury Demand.

{¶29} On October 12, 2021, Appellees filed a Motion to Strike Plaintiff’s Jury

Demand.

{¶30} On October 14, 2021, Appellants responded to the Motion to Strike.

{¶31} On October 15, 2021, the trial court denied Appellants’ Jury Demand.

{¶32} On October 22, 2021, the trial commenced.

{¶33} On October 27, 2021, Appellants attempted to serve a subpoena on former

Judge John Haas. Appellees filed a Motion in Limine to Exclude Judge John Haas’s

testimony. The trial court granted the Motion in Limine.

{¶34} Appellants called Robert Braybon to testify at trial. Mr. Braybon has some

experience in estate purchases and antique sales. Appellants requested the trial court

certify Mr. Braybon as an expert in estate purchases and antique sales. However, during

his testimony, Mr. Braybon stated, “I’m not an expert[.]”

{¶35} Next, Scott Zurakowski testified that the parties had modified the settlement

agreement allowing Appellants to conduct auctions of the disputed property instead of

Kaufmans. The modification also included the term that if the disputed property was not

sold by June 30, 2016, Appellees would take ownership of the disputed property.

{¶36} On December 22, 2021, the trial court issued its final Judgment Entry. In

that entry, the trial court found the parties entered into an oral modification of a settlement
Stark County, Case No. 2022 CA 00012 6

agreement. The modification allowed Appellants to auction off the property themselves;

however, if the amount owed was not paid off by June 30, 2016, the Appellees would take

ownership of the property as settlement of the Debt. The trial court also found to the extent

the value of the seized disputed property was in excess of the Debt, Appellees converted

that property. In the calculation of damages, the trial court instituted its own methodology

for the calculation of damages awarding $92,293 to Appellants.

ASSIGNMENTS OF ERROR

{¶37} Appellants filed a timely notice of appeal and herein raise the following

seven Assignments of Error:

{¶38} “I. THE TRIAL COURT ERRED BY REFUSING TO ALLOW PLAINTIFFS

TO CALL A WITNESS OF THEIR CHOOSING AND BY ITS OWN CONDUCT RELATED

THERETO.

{¶39} “II. THE TRIAL COURT ERRED IN NOT ALLOWING PLAINTIFFS A TRIAL

BY JURY.

{¶40} “III. THE TRIAL COURT ERRED IN FINDING THE PARTIES ORALLY

MODIFIED THE WRITTEN SETTLEMENT AGREEMENT TO ALLOW DEFENDANTS

TO TAKE ALL OF PLAINTIFFS’ PROPERTY.

{¶41} “IV. THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFFS

BREACHED THE SETTLEMENT AGREEMENT.

{¶42} “V. THE TRIAL COURT ERRED IN HOW IT CALCULATED PLAINTIFFS’

DAMAGES.

{¶43} “VI. THE TRIAL COURT ERRED IN ALLOWING THE INTRODUCTION AT

TRIAL OF A SELF-SERVING STATEMENT OF A DECEASED DEFENDANT MADE
Stark County, Case No. 2022 CA 00012 7

AFTER THE FACT TO HIS ATTORNEY WHILE AT THE SAME TIME EXCLUDING

OTHER EVIDENCE THAT CONTRADICTS THAT STATEMENT AND SUPPORTS

PLAINTIFFS’ CLAIM INSTEAD.

{¶44} VII. THE TRIAL COURT ERRED IN FINDING PLAINTIFFS’ EXPERT TO

NOT BE AN EXPERT AND BY THE COURT’S OWN CONDUCT RELATED THERETO.”

{¶45} Appellees herein raise the following two Cross-Assignments of Error:

{¶46} “I. THE TRIAL COURT ERRED IN FINDING APPELLEES CONVERTED

THE PROPERTY IN EXCESS OF THE AGREED AMOUNT.

{¶47} II. THE TRIAL COURT ERRED IN FINDING DAMAGES COULD BE

ESTABLISHED WITH A REASONABLE DEGREE OF CERTAINTY.”

{¶48} In an effort to extrapolate some organization from the convolution of issues,

we address the assignments of error and the cross-assignments of error out of order.

Assignment of Error II

{¶49} In Appellants’ second Assignment of Error, Appellants argue the trial court

erred by denying Appellants’ Jury Demand. We disagree.

{¶50} “The right to a trial by jury shall be inviolate[.]” Section 5, Article I, Ohio

Constitution. However, this constitutional guarantee still permits the legislature or courts

to set the procedure by which the right to a jury trial is obtained and to declare that failing

to conform to such procedure constitutes waiver. See Cincinnati v. Bossert Mach. Co.

(1968), 16 Ohio St.2d 76, 79, 243 N.E.2d 105; Cassidy v. Glossip (1967), 12 Ohio St.2d

17, 19, 231 N.E.2d 64.

{¶51} In order to invoke the right to a jury trial, a party must take affirmative action.

Soler v. Evans, St. Clair & Kelsey (2002), 94 Ohio St.3d 432, 437, 763 N.E.2d 1169. “Any
Stark County, Case No. 2022 CA 00012 8

party may demand a trial by jury on any issue triable of right by a jury by serving upon the

other parties a demand therefore at any time after the commencement of the action and

not later than fourteen days after the service of the last pleading directed to such issue.”

Civ.R. 38(B). Failure to timely serve and file a demand for a jury trial constitutes a waiver

of the right to a trial by jury. Civ.R. 38(D).

{¶52} Civ.R. 7(A) defines “pleadings” as: “a complaint and an answer; a reply to

a counterclaim denominated as such; an answer to a cross-claim, if the answer contains

a cross-claim; a third-party complaint, if a person who was not an original party is

summoned under the provisions of Rule 14; and a third-party answer, if a third-party

complaint is served. No other pleading shall be allowed, except that the court may order

a reply to an answer or a third-party answer.”

{¶53} In the case sub judice, Appellants filed their complaint on December 21,

2018. Appellees filed a response and counterclaim on December 11, 2019. On June 8,

2020, Appellants filed their response to Appellees’ counterclaim. On October 7, 2021,

Appellants filed a jury demand, outside of the fourteen-day window set forth in Civ.R.

38(D).

{¶54} Appellants claim that in Case No. 2017CV01298 they filed the jury demand

promptly. Case No. 2017CV01298 was dismissed and refiled under Case No.

2018CV02475. Case No. 2018CV02475 was then dismissed with prejudice. Appellants

filed an appeal on both Case Nos. 2017CV01298 and 2018CV02475. This Court in Dye

v. J.J. Detweiler Enterprises, Inc., 5th Dist. Stark No. 2020CA00101, 2021-Ohio-1393,

reversed and remanded the matter. In the opinion, this Court held that the trial court
Stark County, Case No. 2022 CA 00012 9

“abused its discretion in granting appellees’ motion to dismiss the complaint with

prejudice[.]” Id.

{¶55} Appellants argue that because they put both case numbers on the appeal,

a Jury Demand properly filed in Case No. 2017CV01298 should carry over to the case

sub judice. However, Appellants cite no statute, case law, rules of civil procedure, or

learned treatise from this or any other jurisdiction to support their argument. Appellants

also fail to provide the record to Case No. 2017CV01298 to this Court to review factual

claims.

{¶56} A refiled case represents a new controversy before the court. Williams v.

Thamann, 1st Dist. No. C-060632 & C-060633, 173 Ohio App.3d 426, 2007-Ohio-4320,

878 N.E.2d 1070, ¶10. The original case is no longer before the trial court. Appellants did

not precede in any way on Case No. 2017CV01298, and did not appeal Case No.

2017CV01298 in the current appeal. Therefore, as Appellants started a new case and

failed to precede with on Case No. 2017CV01298, the trial court did not err when it denied

Appellants request for a Jury Demand.

{¶57} Accordingly, Appellants’ second Assignment of Error is overruled.

Assignment of Error I

{¶58} In Appellants’ first Assignment of Error, Appellant argues the trial court erred

by excluding the testimony of Judge Haas. We disagree.

{¶59} “Ordinarily, a trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised in

line with the rules of procedure and evidence.” Rigby v. Lake County, 58 Ohio St.3d 269,

271, 569 N.E.2d 1056 (1991). The appellate court must limit its review of the trial court’s
Stark County, Case No. 2022 CA 00012 10

admission or exclusion of evidence to whether the trial court abused its discretion. Id. The

abuse of discretion standard is more than an error of judgment; it implies the court ruled

arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983).

{¶60} Ohio Evid.R. 103(A)(2) states: “In case the ruling is one excluding evidence,

the substance of the evidence was made known to the court by offer or was apparent

from the context within which questions were asked.”

{¶61} “It is basic to appellate practice that error in the form of excluded testimony

is not reviewable unless there has been a proffer of the excluded testimony or the content

of the testimony is apparent from the circumstances. Franks v. Rogers, 5th Dist. Licking

No. 2009CA00130, 2010-Ohio-3586, ¶15, citing Evid.R. 103. If a proffer is not made, a

reviewing court cannot determine whether a party suffers undue prejudice from any

alleged error. Id. If the party is unable to proffer the substance of the excluded evidence,

the error is deemed waived. Campbell v. Johnson, 87 Ohio App.3d 543, 551, 622 N.E.2d

717 (1993).

{¶62} The record does not show that Appellants deposed Judge Haas or proffered

his testimony to the trial court. In fact, during the trial, the trial court inquired of Appellants:

“[s]o you don’t even know what Judge Haas is going to say; that is my understanding?”

Day 2 trial trasc., pg. 16 lines 1-6. Appellants’ counsel responded, “[t]hat is correct[.]” Id.

{¶63} As Appellants failed to proffer the substance of Judge Haas’s evidence and

it is not apparent to the trial court, this issue is deemed waived. As such the trial court did

not abuse its discretion in excluding Judge Haas’s testimony.

{¶64} Accordingly, Appellant’s First Assignment of Error is overruled.
Stark County, Case No. 2022 CA 00012 11

Assignment of Error VI

{¶65} In Appellants’ sixth Assignment of Error, Appellants argue the trial court

erred in failing to admit a deceased Appellee’s statements and Appellants’ police report.

We disagree.

{¶66} Again, “a trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised in

line with the rules of procedure and evidence.” Rigby v. Lake County, 58 Ohio St.3d 269,

271, 569 N.E.2d 1056 (1991). The appellate court must limit its review of the trial court’s

admission or exclusion of evidence to whether the trial court abused its discretion. Id. The

abuse of discretion standard is more than an error of judgment; it implies the court ruled

arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983).

{¶67} Appellants summarily argue the trial court erred by failing to admit into

evidence a police report and statements made by Appellee Detweiler referencing the

judge’s ruling or motions in the record.

{¶68} Appellants have the burden of demonstrating an error on appeal. See,

App.R. 16(A)(7). “It is the duty of the appellant, not this court, to demonstrate his assigned

error through an argument that is supported by citations to legal authority and facts in the

record.” State v. Untied, 5th Dist. Muskingum No. CT2006-0005, 2007-Ohio-1804, ¶141,

quoting State v. Taylor, 9th Dist. Medina No. 2783-M, 1999 WL 61619 (Feb.9, 1999). See,

also, App.R. 16(A)(7).

{¶69} Admissibility of evidence may be challenged on several bases, but we are

not at liberty to make Appellants’ arguments for them. “If an argument exists that can
Stark County, Case No. 2022 CA 00012 12

support [an] assignment of error, it is not this court’s duty to root it out.” State v. Romy,

5th Dist. Stark No. 2020 CA 00066, 2021-Ohio-501, 168 N.E.3d 86, ¶35, citing Thomas v.

Harmon, 4th Dist. Lawrence No. 08CA17, 2009-Ohio-3299, ¶14. Therefore, we may

disregard assignments of error Appellants presented for review since they failed to

identify in the record the error on which the assignment of error is based. App.R. 12(A)(2).

{¶70} Appellants have not supported their general argument with citations to the

record. Furthermore, Appellants’ brief does not even disclose the statements, describe

the substance of the statements, the contents of the police report, or where in the record

the trial court denies the admission. Consequently, we find that Appellants have not

presented an argument, but rely only upon the assertion of error, and we thus disregard

this assignment of error.

{¶71} Accordingly, Appellants’ sixth Assignment of Error is overruled.

Assignment of Error VII

{¶72} In Appellants’ seventh Assignment of Error, Appellants argue the trial court

erred in finding Robert Braybon’s testimony to be that of a layman and not an expert. We

disagree.

{¶73} Again, “a trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised in

line with the rules of procedure and evidence.” Rigby v. Lake County, 58 Ohio St.3d 269,

271, 569 N.E.2d 1056 (1991). Ordinarily, “any decision concerning the admission or

exclusion of expert testimony will not be disturbed absent an abuse of discretion.” State

v. Burks, 3d Dist. Shelby No. 17-10-27, 2011-Ohio-3529, ¶22. The appellate court must

limit its review of the trial court’s admission or exclusion of evidence to whether the trial
Stark County, Case No. 2022 CA 00012 13

court abused its discretion. Id. The abuse of discretion standard is more than an error of

judgment; it implies the court ruled arbitrarily, unreasonably, or unconscionably.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶74} Evid.R. 702 governs the admissibility of expert testimony. It provides:

A witness may testify as an expert if all of the following apply:

(A) The witness’ testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons;

(B) The witness is qualified as an expert by specialized

knowledge, skill, experience, training, or education regarding the subject

matter of the testimony;

(C) The witness’ testimony is based on reliable scientific,

technical, or other specialized information. * * *

{¶75} Evid.R. 702(B) addresses the qualifications necessary to accord a witness

“expert” status. Under the rule, a witness may qualify as an expert if the witness contains

specialized knowledge, experience, skill, training, or education in to help determine a fact

at issue. Evid.R. 702. However, this does not require the witness to have a college degree

in order to be qualified as an expert. State v. Mack (1995), 73 Ohio St.3d 502, 511, 653

N.E.2d 329; citing State v. Beuke (1988), 38 Ohio St.3d 29, 43, 526 N.E.2d 274.

{¶76} Appellants called Robert Braybon to testify to the value of items converted

by Appellees. Robert Braybon, a machinist by trade, testified that he has purchased and

sold estate goods in the past, but he has never taken any classes or seminars on estate

valuation, has never testified as an expert before, and stated on the record “I’m not an
Stark County, Case No. 2022 CA 00012 14

expert[.]” Furthermore, the witness only looked at a sample of ten banana boxes out of

an alleged 9,000 banana boxes to calculate an estimated value for the total seized

disputed property. No evidence was in the record as to the uniformity of the disputed

property in the seized banana boxes.

{¶77} Accordingly, Appellants’ seventh Assignment of Error is overruled.

Assignments of Error III and IV

{¶78} In Appellants’ third and fourth Assignments of Error, Appellants argue the

trial court erred when it determined Appellants and Appellees orally modified the written

settlement agreement, and that Appellants breached the modified Settlement Agreement.

We disagree.

{¶79} “A contract can be modified when there is clear and convincing evidence of

the parties’ mutual intent to modify the contract through their course of dealing.” Third

Fed. S. & L. Assn. of Cleveland v. Formanik, 8th Dist. Cuyahoga Nos. 100562 & 100810,

2014-Ohio-3234, ¶13, citing Westgate Ford Truck Sales, Inc. v. Ford Motor Co., 2012-

Ohio-1942, 971 N.E.2d 967, ¶¶24-25 (8th Dist.); see also Rotosolutions, Inc. v. Crane

Plastics Siding, L.L.C., 10th Dist. Franklin Nos. 13AP-52, 2013-Ohio-4343, ¶19. “[E]ven

contracts that are required by the statute of frauds to be in writing can be modified orally

‘when the parties to the written agreement act upon the terms of the oral agreement.’ ”

Formanik at ¶13, quoting 200 W. Apts. v. Foreman, 8th Dist. Cuyahoga No. 66107, 1994

WL 505271 (Sept. 15, 1994); see also 3637 Green Rd. Co. v. Specialized Component

Sales Co., 8th Dist. Cuyahoga No. 103599, 2016-Ohio-5324, 69 N.E.3d 1083, ¶¶21-25,

30-35.
Stark County, Case No. 2022 CA 00012 15

{¶80} “[S]ubsequent acts and agreements may modify the terms of a contract, and

unless otherwise specified, neither consideration nor a writing is necessary. Oral

agreements to modify a prior written agreement are binding if based upon new and

separate legal consideration or, even if gratuitous, are so acted upon by the parties that

a refusal to enforce the oral modifications would result in fraud to the promissee.” Corsaro

v. ARC Westlake Village, Inc., 8th Dist. Cuyahoga No. 84858, 2005-Ohio-1982, ¶16.

{¶81} In the case sub judice, the trial court found that the parties orally modified

the Settlement Agreement. The new terms of the contract allowed Appellants to conduct

auctions; the proceeds of which would pay off the Debt. Appellants had until June 30,

2016, to sell enough merchandise to pay off the Debt, or Appellees would own enough of

the disputed property to satisfy the Debt. These terms were testified to by Scott

Zurakowski. To corroborate Zurakowski’s testimony, Appellants conducted online

auctions of the disputed properties. In accordance with the modified Settlement

Agreement and after the passage of the June 30, 2016 deadline, Appellees moved the

disputed property from the warehouse to a different location claiming ownership. While

James Dye testified to a modification of the Settlement Agreement, he disagreed that

such agreement included the term that if the Debt had not been satisfied as of June 30,

2016, Appellees could claim ownership over the disputed property. The trial court found

Scott Zurakowski’s testimony that the modified Settlement Agreement included the June

30, 2016 deadline to be credible. As such the trial court’s decision that the Settlement

Agreement was orally modified by Appellants and Appellees and that Appellants

breached the Settlement Agreement by not selling enough of the disputed property to pay

off the Debt is supported by competent, credible evidence.
Stark County, Case No. 2022 CA 00012 16

{¶82} Accordingly, Appellants’ third and fourth Assignments of Error is overruled.

Cross-Assignment of Error I

{¶83} In Appellees’ First Cross-Assignment of Error, Appellees argue the trial

court erred when it found that Appellees seizure of the disputed property was to satisfy

the Debt. We disagree.

{¶84} Again, “[a] contract can be modified when there is clear and convincing

evidence of the parties’ mutual intent to modify the contract through their course of

dealing.” Third Fed. S. & L. Assn. of Cleveland v. Formanik, 8th Dist. Cuyahoga Nos.

100562 & 100810, 2014-Ohio-3234, 2014 WL 3700514, ¶13, citing Westgate Ford Truck

Sales, Inc. v. Ford Motor Co., 2012-Ohio-1942, 971 N.E.2d 967, ¶¶24-25 (8th Dist.); see

also Rotosolutions, Inc. v. Crane Plastics Siding, L.L.C., 10th Dist. Franklin Nos. 13AP-

52, 2013-Ohio-4343, 2013 WL 5451702, ¶19. “[E]ven contracts that are required by the

statute of frauds to be in writing can be modified orally ‘when the parties to the written

agreement act upon the terms of the oral agreement.’ ” Formanik at ¶13, quoting 200 W.

Apts. v. Foreman, 8th Dist. Cuyahoga No. 66107, 1994 WL 505271 (Sept. 15, 1994); see

also 3637 Green Rd. Co. v. Specialized Component Sales Co., 2016-Ohio-5324, 69

N.E.3d 1083, ¶¶21-25, 30-35 (8th Dist.).

{¶85} “[S]ubsequent acts and agreements may modify the terms of a contract, and

unless otherwise specified, neither consideration nor a writing is necessary. Oral

agreements to modify a prior written agreement are binding if based upon new and

separate legal consideration or, even if gratuitous, are so acted upon by the parties that

a refusal to enforce the oral modifications would result in fraud to the promissee.” Corsaro
Stark County, Case No. 2022 CA 00012 17

v. ARC Westlake Village, Inc., 8th Dist. Cuyahoga No. 84858, 2005-Ohio-1982, 2005 WL

984502, ¶16.

{¶86} In the case sub judice, the trial court found the modified Settlement allowed

Appellees to seize the disputed property to satisfy the Debt. Scott Zurakowski testified

that the oral modification of the contract provided Appellants could auction the items

themselves, but if the Debt was not paid by June 30, 2016, then the disputed property

would become Appellees. The trial court found Scott Zurakowski’s testimony regarding

the transfer in ownership of the disputed property to be circumstantial evidence that it

satisfies the Debt. As such the trial court’s decision that the oral modification of the

settlement agreement allowed Appellees to obtain the disputed property to satisfy the

Debt is supported by competent credible evidence.

{¶87} Accordingly, Appellees first Cross-Assignment of Error is overruled.

Cross-Assignment of Error II

{¶88} In Appellees’ second Cross-Assignment of Error, Appellees argue the trial

court erred in finding damages could be established with reasonable certainty. We agree.

{¶89} In Kavalec v. Ohio Express, Inc., 8th Dist. Cuyahoga No. 103410, 2016-

Ohio-5925, 71 N.E.3d 660, ¶37, the Eighth District Court of Appeals stated:

Damages cannot be based on a mere “guestimate.” Buckeye

Trophy, Inc. v. S. Bowling & Billiard Supply Co., 3 Ohio App.3d 32, 443

N.E.2d 1043 (10th Dist.1982); Bevens v. Wooten Landscaping, Inc., 4th

Dist. Pike No.11CA819, 2012-Ohio-5137, 2012 WL 5391961, ¶17.

Damages need not be calculated with mathematical certainty, but cannot

be based on mere speculation and conjecture. Marzullo v. J.D. Pavement
Stark County, Case No. 2022 CA 00012 18

Maintenance, 2011-Ohio-6261, 975 N.E.2d 1, ¶40. Instead, a plaintiff must

show its entitlement to damages in an amount ascertainable with

reasonable certainty. Id., citing Barker v. Sundberg, 11th Dist. Ashtabula

No. 92-A-1756, 1993 WL 489236 (Oct. 25,1993); Glenwood Homes v.

State Auto Mut. Ins. Co., 8th Dist. Cuyahoga No. 72856 1998 WL 685493

(Oct. 1, 1998) (speculative damages are not recoverable).

{¶90} In Kavalec, Appellees could not produce receipts for the items converted,

as some items were bought thirty to forty years ago, and Appellees guessed at values

based upon similar items listed on craigslist and eBay. However, no corroborating

evidence of online research was submitted. The Eighth District held that the evidence

offered did not satisfy the standard.

{¶91} In the case sub judice, neither Appellants nor Appellees could produce a list

specifying the property converted. Both submitted estimates of amount of “banana boxes”

and other items. The evidence presented at trial was based upon an examination of a

sample of ten “banana boxes” out of an estimated 9,000 total banana boxes. This sample

was taken only from the unseized property. No items or values were presented from any

unexamined “banana box”. No evidence was presented to corroborate the amount of

“banana boxes.” No evidence was presented to show that the contents of all “banana

boxes” were similar enough that a representative sample could be used to arrive at a

reasonable estimated value.

{¶92} Appellants argue they could not supply business records because those

were also seized by Appellees. However, Appellants have not shown where they
Stark County, Case No. 2022 CA 00012 19

requested these documents in discovery or an accounting of the disputed property from

Appellees.

{¶93} Evidence and testimony failed to present the age, condition, amount, or

description of the disputed property obtained by Appellees. The lack of any meaningful

description of the property seized and valuation based upon the age and condition of the

property seized prevents damages from being ascertained with reasonable certainty. The

damages Appellants suffered by Appellees conversion of the disputed property amount

to nothing more than conjecture as they lack specificity in description, condition, age, and

amount. Appellants failed to offer proof of their damages with reasonable certainty. As

such, we find competent, credible evidence as to the value of damages incurred from the

conversion of the disputed property to be absent from the record.

{¶94} Accordingly, Appellees’ second Cross-Assignment of Error is well taken.

Assignment of Error V

{¶95} Based upon our disposition of Appellees’ second Cross-Assignment of

Error, we will refrain from addressing Appellant’s fifth Assignment of Error.
Stark County, Case No. 2022 CA 00012 20

{¶96} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed in part and reversed in part. The matter is remanded to

the Stark County Court of Common Pleas for further proceedings consistent with this

opinion.

By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.

JWW/br 0831