Brondes Ford, Inc., et al, Appellees/Cross-Appellants v. Habitec Security, et al., Appellant/Cross-Appellee

Court of Appeals No. L-12-1358

COURT OF APPEALS OF OHIO, SIXTH APPELLATE DISTRICT, LUCAS
COUNTY

2015-Ohio-2441; 2015 Ohio App. LEXIS 2346


June 19, 2015, Decided

PRIOR HISTORY:     [**1] Trial Court Nos. CI0200403303, CI0200801281.

DISPOSITION:    Judgment affirmed, in part, and reversed, in part.

COUNSEL: Peter C. Munger, Thomas G. Mackin and Randy L. Meyer, for
appellees/cross-appellants.

John T. McLandrich and Frank H. Scialdone, for appellant/cross-appellee.

JUDGES: OSOWIK, J. Arlene Singer, J., Thomas J. Osowik, J., James D. Jensen, J.,
CONCUR.

OPINION BY: Thomas J. Osowik.

OPINION


DECISION AND JUDGMENT

   OSOWIK, J.

    [*P1] This is an appeal filed by appellant/cross-appellee, Habitec Security
(“Habitec”), from summary judgment rulings issued by the Lucas County Court of
Common Pleas on January 4, 2007, and a jury verdict issued on September 22,
2011, and a cross-appeal filed by appellees/cross-appellants, Brondes Ford, Inc.
(“Brondes”), Phil Brondes, Sr. and Universal Underwriters, from the trial court's post-verdict rulings issued on November 20, 2012. The relevant, undisputed facts are as follows.

    [*P2] On September 14, 1993, appellee/cross-appellant, Phil Brondes, Sr.
("Brondes, Sr."), the owner, vice president and majority shareholder of Brondes,
a 60-year-old Ford dealership located at 5715 Secor Road in Toledo, Ohio,
entered into a “Commercial Lease Agreement” (“Agreement”) with Habitec. Pursuant
to the Agreement, Habitec was to [**2] provide a fire detection system and
monitoring services for Brondes which, at the time, housed a showroom, offices
and a large bay area (“quick lube”) that was used to service vehicles.

    [*P3] The Agreement stated that Habitec would supply and install the following equipment at Brondes' location: one Silent Knight 4724 master control panel with rechargeable battery back-up, one 24-hour digital communicator, one zone annunciator, five smoke detectors, 56 heat detectors, and five strobe horns. The Agreement further stated that Brondes agreed to pay Habitec $1,500 to install the equipment, followed by lease payments of $99 per month for five years. The fire detection system was installed by Habitec's employees.

    [*P4] Over the next several years the system was periodically inspected by both Habitec and the city of Toledo. During that time, Brondes renovated several
areas of the building, and some of the heat detectors were removed and then put
back in place. In March 2002, another alarm service company, Simplex Grinnel
Fire and Security (“Simplex”), was hired by Brondes to inspect the system. Simplex performed a virtual check of some of the heat detectors. However, it did
not physically check each [**3] one of the heat detectors to see if they were functioning properly, and did not check any of the detectors in the quick lube
area.

    [*P5] On May 27, 2002, Memorial Day weekend, at approximately 1:48 a.m.,
Habitec's alarm system reported a fire at Brondes' facility. The Toledo Fire Department arrived at the scene within eight minutes of the alarm sounding but,
by then, the building was totally engulfed in flames. When the fire was completely extinguished, the building was determined to be a total loss. Although several theories were proposed as to the origin of the fire, the exact cause was never determined.

    [*P6] On May 25, 2004, Brondes and its insurer, Universal Underwriters Insurance Company (“Universal”), filed a complaint in the Lucas County Court of
Common Pleas against Habitec, Simplex, the city of Toledo fire inspection department, and other parties,1 in which they set forth claims of negligent design, manufacture, installation and service of the alarm system by Habitec. The complaint further alleged that, as a result of Habitec's actions, Brondes and Universal suffered in excess of $5 million in combined damages. The amount of the damage claim was based, in part, on the cost of moving the [**4] location of the dealership to newly purchased property and greatly expanding the size of the building.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1   As stated
above, all defendants except Habitec were dismissed before trial and are not
parties to this appeal.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P7] Habitec filed an answer on June 15, 2004, and Simplex filed its
answer on July 6, 2004. On August 2, 2004, the trial court granted summary
judgment to the city of Toledo and dismissed Universal's claim against the city.
On August 12, 2004, Brondes filed a motion to designate the case as complex
litigation, which the trial court granted on September 15, 2004.

    [*P8] On August 22, 2006, Simplex and Habitec filed a joint motion for
summary judgment in which they asked the trial court to limit Brondes' damages
to the property's diminished value. In support, Simplex and Habitec argued that
their liability, if any, should be based on the difference in fair market value
of the dealership before and after the fire, not the difference between the
value of the 10,000 square foot, 60-year-old dealership that burned and the new,
42,000 square-foot building that Brondes relocated and built to replace the
original structure.

    [*P9] Habitec and Simplex filed a joint motion for summary judgment on
September [**5] 1, 2006, in which they argued that Brondes and Universal failed
as a matter of law to allege facts that prove Habitec either caused the fire or
contributed to their damages. On September 7, 2006, Habitec filed a separate
motion for summary judgment and memorandum in support, in which Habitec asserted
that it is either not liable to Brondes and Universal in damages, or the damages
are limited by the terms of the Agreement. In support, Habitec argued that: (1)
Pursuant to section 25 of the Agreement, any legal action arising out of the
Agreement must be brought within one year, (2) Pursuant to section 19 of the
Agreement, Brondes agreed to hold Habitec harmless from any third party claims,
including those of Underwriters, and (3) Section 21 of the Agreement limits
Habitec's liability in damages, if any, to $250.

    [*P10] Attached to Habitec's motion was the affidavit of its salesman,
Robert Seymour, who stated that Phil Brondes, Sr. signed the Agreement, and a
reduced-size copy of the original, legal-sized Agreement.

    [*P11] On September 8, 2006, Habitec filed yet another motion for summary
judgment, in which it argued that the record contains no evidence to show that
Habitec negligently manufactured, [**6] designed, sold, installed, serviced, or
inspected the alarm system that was installed at the Brondes dealership. In
support, Habitec argued that Brondes and Universal did not meet their burden to
show that either Habitec's alleged negligence or a product defect caused the
fire.

    [*P12] On September 18, 2006, Habitec filed four motions in limine. The
first was a motion to exclude any evidence by lay and/or expert witnesses at
trial concerning a causal connection between witnesses' reports that they
smelled smoke, and the fire that was later reported at Brondes' dealership.
Habitec also filed a motion in which it asked the trial court to prohibit Brondes and Universal from presenting evidence of property damage relating to the fire. In addition, Habitec filed motions to exclude both the expert testimony of Gary Wymer as to the actual cause of the fire, and any evidence related to "fire modeling, Fire Dynamics Simulator (“FDS”) and/or Smokeview technology“ which it characterized as ”unfounded“ and ”speculative."

    [*P13] On September 25, 2006, Brondes and Universal filed a combined memorandum in opposition to Habitec's and Simplex's motions for summary judgment, in which they argued that summary judgment [**7] is not appropriate
in this case because: (1) negligence and proximate cause are issues to be resolved by the trier of fact, and (2) Habitec and Simplex are "negligent per se" for violating applicable statutes. On October 6, 2006, Habitec filed a combined reply in support of all of its summary judgment motions, in which it argued that: (1) Brondes and Universal did not meet their burden to establish the actual cause of the fire, (2) the one-year limitation period established by the Agreement is enforceable and does not violate public policy, (3) the clause in the Agreement limiting Habitec's liability to $250 is not unconscionable on its face, and (4) damages claimed by Brondes to rebuild the dealership are outrageous and not related to the fair market value of the original dealership.


    [*P14] On October 17, 2006, four years after the fire, Brondes and Universal filed a motion to amend their complaint “by interlineation” to add Phil Brondes, Jr., Phil Brondes, Sr., and Brondes Land Management, Ltd. (“BLM”) as additional party-plaintiffs. In support of the motion, Brondes and Universal argued that, “but for” Habitec's actions, the original dealership would not have been a total loss, and asked [**8] the court to allow Phil Brondes, Jr. and/or Phil Brondes, Sr. and/or BLM, to be added as plaintiffs four years after the fire occurred because their respective connections to the Brondes dealership did not exist at the time that the original complaint was filed. On November 1, 2006, Habitec filed a memorandum in opposition, in which it argued that "[n]one of [the] proposed parties relate back to the original pleading," and the motion to add them at this point in the proceedings is really "an attempt to extend the
statute of limitations for this action."

    [*P15] On November 9, 2006, a summary judgment hearing was held on all of
Habitec's outstanding motions. On January 4, 2007, the trial court filed an opinion and judgment entry, in which it found that the issues of whether Brondes' damages should be limited to the $1,270,000 diminution in the value of the property, as well as "the reasonableness and necessity of rebuilding a more modern and updated dealership," are questions of fact for a jury to decide. The
trial court further found that the one-year limitation clause and the limitation of Habitec's damages to $250, as stated in the Agreement, are unconscionable.
Accordingly, Habitec's and Simplex's [**9] motions for summary judgment were
denied. Habitec filed a motion for reconsideration on January 23, 2007, which
the trial court denied on June 6, 2007.

    [*P16] On November 16 and December 17, 2007, a hearing was held pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 1135 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (“Daubert hearing”), to determine whether James Moore, Jason Floyd and Rick Spencer were qualified to testify as experts for Brondes on the issues of causation, fire modeling and amount of damages.

    [*P17] James Moore,2 a fire protection engineer who designs new fire protection systems and evaluates the effectiveness of existing systems, and who
was hired by Universal to determine whether a delay in reporting the fire enhanced Brondes' damages, testified that he has never done fire modeling, and
he was unable to state how much loss could have been avoided by proper placement of the heat detectors. However, J. Moore opined that a delay in detection of the fire contributed to "causing much more extensive damage than should otherwise have occurred if the fire detection system had been properly designed, installed, tested and serviced before the fire." At the close of J. Moore's testimony, Habitec stipulated to his qualifications as an expert, except as to the issues of delay [**10] and amount of damages. Thereafter, the trial court
qualified him as an expert, stating that any challenges to his methodology would
be subject to cross-examination at trial.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2   Testimony
in this case was presented by James Moore and Douglas Moore. For the sake of
clarity, the parties will be referred to in this decision as J. Moore and D.
Moore, respectively.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P18] Jason E. Floyd, a senior engineer for Hughes Associates, Inc. in
Baltimore, Maryland, testified that he performs fire experiments for detection
and regulatory testing for the Navy, as well as validating fire models for
commercial and government purposes. Floyd said that he ran five different
scenarios, with different delay times and temperatures. However, Floyd admitted
that, in constructing his model, he was somewhat unclear as to the exact
placement of the heat detectors, which would affect the amount of delay in
detecting the fire. On cross-examination, Floyd admitted that he is not an
expert in determining the causes and origins of fires.

    [*P19] Rick Spencer testified that he is an expert in the origin and causes
of fires. He stated that the fire probably began in the quick lube area,
approximately two feet above the floor, based on [**11] the burn patterns at
the scene. Spencer testified that the time delay allowed the fire to do more
damage, but he could not say when the fire started. He also testified that he
took part of a heat detector from the scene and stored it in his barn, however,
the device was lost when a tornado swept over his property in June 2006.

    [*P20] Gary Wymer, an insurance loss adjuster hired by Universal, testified
that only a flammable liquid scenario or an alarm delay could cause such a total
loss. Wymer stated that Brondes insured the building for $1.1 million and
Cousino Construction, the company hired to rebuild the dealership, estimated the
building's replacement cost was $1,765,000, however, he believed its actual fair
market value was $2.5 million. Wymer testified that it is a common economic
decision for businesses to "not buy enough insurance." On cross-examination,
Wymer testified that he was hired to determine the amount of damage to the
dealership, and to negotiate the settlement between Brondes and Universal, and
said he hired other experts because he is in "no way, shape or form" an expert
on the cause and origin of fires. At the close of Wymer's testimony, the trial
court ruled that, although [**12] Wymer could testify generally at trial, he
was not qualified to offer an expert opinion.

    [*P21] Next, the trial court entertained Brondes' motion to amend its
complaint by interlineation. In support of the motion, Brondes' attorney argued
that the new dealership was not built for two and one-half years after the fire;
consequently, BLM could not have been listed as an original plaintiff because it
was not in existence at that time. Counsel further argued that BLM is funded by
Brondes and its sole shareholder, Phil Brondes, Jr., and Brondes, Sr. are named
as insured parties on Brondes' insurance policy, and no prejudice would result
by adding them as plaintiffs in this case, or by allowing their claims to relate
back to the filing of the original complaint in October 2004.

    [*P22] In response, counsel for Habitec and Simplex argued that allowing
additional plaintiffs at this stage in the proceedings is prohibited by the
applicable statute of limitations. Counsel further argued that Brondes was
trying to add the extra plaintiffs to finance its decision to buy additional
property and build a bigger and better dealership, despite the fact that the
original dealership was underinsured. In addition, counsel [**13] argued that
Brondes' losses were less than it claimed because it raised some of the money to
finance the new dealership by selling other properties. Finally, counsel argued
that Civ.R. 15, which governs the amendment of pleadings, does not cover an
amendment by interlineation.

    [*P23] At the close of the parties' arguments, the trial court stated:
"what I'm going to allow is the amendment by interlineation because * * * I
think justice requires it." The trial court also allowed the amendment to relate
back to the original date the complaint was filed, because "the nature of who
the plaintiff is does not necessarily change the notice of some party who may
have to pay for the potential damages." As to the timing of the request, the
trial court found: "the time frame is reasonable under [Civ.R.] 17(A) to allow
the amendment and the joining of the plaintiff or the movement for amendment by
interlineation."

    [*P24] On January 8, 2008, Habitec filed a renewed motion to exclude or limit Spencer's and Wymer's testimony at trial, due to spoliation of the evidence upon which their testimony was based. In support, Habitec argued that Spencer lost the one salvaged heat detector before it could be examined by the defense, [**14] and all other evidence from the scene of the fire was removed, leaving the case "to be tried upon speculation and inadmissible circumstantial evidence supplied by Plaintiffs with little or no ability of the Defendants to respond."

    [*P25] On January 11, 2008, Brondes, BLM, Phil Brondes, Sr., Phil Brondes,
Jr. and Universal filed a separate complaint in the trial court ("case No.
CI0200801281"), in which they collectively asked for damages in excess of $8
million from Habitec and Simplex. On January 14, 2008, Brondes and Universal
filed a motion to consolidate case No. CI0200801281 with case No. CI0200403303,
which the trial court granted on January 15, 2008. On January 16, 2008, Habitec
filed a "Motion for More Definite Statement and/or Amended Complaint by Plaintiffs" pursuant to Civ.R. 12(E). In support, Habitec argued that no specific claims were set forth against Habitec by BLM, or Phil Brondes, Sr. or Jr., (“other plaintiffs”) since the complaint in CI0200403303 was amended by interlineation and then consolidated with case No. CI0200801281, which Brondes and Universal opposed.

    [*P26] On August 1, 2008, Simplex was voluntarily dismissed, leaving Habitec as the only defendant in the case. On November 13, [**15] 2008, the trial court granted Habitec's motion for a more definite statement and ordered Brondes, Universal and the other plaintiffs to file an amended complaint. The second amended complaint was filed on December 5, 2008, in which Brondes and BLM
sought recovery in excess of $3 million each, Phil Brondes, Sr. and Jr. each sought recovery in excess of $1 million, and Universal sought recovery in excess
of $3,900,000.

    [*P27] On December 31, 2008, Habitec filed a "Motion for More Definite Statement and/or Amended Complaint by Plaintiffs and Motion for Sanctions" in
which it stated that the second amended complaint "does nothing to clarify the issues and claims that were deficient in the originally filed Complaint," which the plaintiffs opposed on January 15, 2009. On March 12, 2009, the trial court granted Habitec's motion and ordered the plaintiffs to "file a responsive leading to such motion * * *."

    [*P28] The third amended complaint was filed on March 30, 2009, in which
the plaintiffs collectively sought damages for negligence and/or breach of
contract. Habitec filed a motion to dismiss the third amended complaint, and
plaintiffs filed a revised third amended complaint on July 16, 2009, which
[**16] set forth separate claims of negligence, negligence per se, and breach
of oral and written contract. In addition, the revised third complaint contained
allegations that portions of the Agreement limiting damages to $250 and limiting
the time for bringing claims against Habitec to one year are unconscionable, and
setting forth a subrogation claim on behalf of Universal.

    [*P29] On August 6, 2009, Habitec filed a partial motion to dismiss, in
which it asked the trial court to dismiss all except Brondes' claim for breach
of written contract and Universal's subrogation claim "to the extent of money
paid to [Brondes] only * * *." That same day, Habitec answered the third amended
complaint, in which it asserted affirmative defenses of unclean hands, failure
to join necessary parties, comparative/contributory negligence, statute of
frauds, parole evidence rule, lack of proximate cause, spoliation of evidence,
and "superseding, intervening causation," and asserted that Brondes' damages are
limited by the terms of the Agreement. Brondes filed a memorandum in opposition
to partial dismissal on August 27, 2009.

    [*P30] On November 19, 2009, the trial court filed an opinion and judgment
entry in which it dismissed [**17] Count 3 (breach of oral contract) as to all
of the plaintiffs, and found that BLM cannot state a claim for either ordinary
negligence or negligence per se, as stated in Count 4. However, the trial court
said that the Agreement was not entirely unconscionable, and Brondes is not
prohibited from subrogating its rights to Universal, to the extent that benefits
were paid to Brondes under the terms of the policy. Accordingly, Habitec's
motion to dismiss was granted in part and denied in part. On January 12, 2010,
Brondes filed a motion for reconsideration, in which it asked the trial court to
reconsider the dismissal of Count 3. Habitec filed a memorandum in opposition,
to which Brondes filed a reply.

    [*P31] On August 5, 2010, Habitec filed a motion in which it asked the
trial court to order a set-off of $375,000, the amount paid in partial
settlement of the Brondes' claim against Simplex because, until Simplex was
dismissed as a defendant, Brondes claimed that Habitec and Simplex were joint
tortfeasors, with joint liability for Brondes' losses due to the fire. On August
11, 2010, the trial court denied Brondes' motion for reconsideration and, on
August 13, 2010, Brondes filed a motion in opposition [**18] to Habitec's
request for set-off. The trial court filed an order on August 24, 2010,
disposing of all pending motions. As part of that order, the trial court found
no evidence that Simplex was liable, either wholly or in part, for Brondes'
loss, and denied Habitec's motion for judicial set-off.

    [*P32] A jury trial began on August 25, 2010. Before jury selection began,
the parties and the trial court addressed Brondes' motion to prevent the
Agreement from being introduced as evidence at trial. After discussing the size
of the original document, and reviewing the trial court's earlier order to
exclude paragraphs 21 and 25, the court ruled that the rest of the Agreement
would not be excluded at trial. A jury was empaneled and sworn in on August 26,
2010. Testimony was presented on behalf of Brondes by Phil Brondes, Sr., Habitec
salesman Robert Seymour, Toledo Firefighter Richard Syroka, former Toledo city
building plan inspector Corky Hahn, city fire prevention worker William Caton,
Habitec installer Jeffrey Long, Habitec employees Anthony Adams and Jesus
Cordaro, electrical worker Duane Anthony Gibel, and former Brondes employee
Benjamin Hazzard. Additional testimony was given by Michael Peatee, [**19]
Louise Schlatter, Michael Dean Bay and Kristin Bay, Curtis McDuffy, Frank Szocs,
Rick Spencer, Toledo Fire Captain Kenneth Gehring, Thomas Moran, Dennis Jackson,
Terrance Minsel, and Michael Cousino.

    [*P33] Brondes, Sr. testified that in 2002, he was the vice-president and
52 percent owner of Brondes, and that he purchased the dealership when his
brother, Don Brondes, died. However, Don's wife, Pat Brondes, inherited a
one-half interest in the property on which the dealership was located, and he
and Pat received monthly rent payments of $3,500 each until the day of the fire.
Brondes, Sr. also stated that Pat had the option not to rebuild the dealership
if it ever burned down, which forced him to purchase her interest in the
property at a “big premium” after the fire.

    [*P34] Brondes, Sr. further testified that, before the fire, the dealership
had no mortgage whereas, after rebuilding, the business had to pay $48,000 per
month in mortgage payments. He stated that, after the fire, he was forced to
sell and build in another nearby location due to required setbacks for new
construction, and because Ford Motor Company required the dealership to build a
“Taj Mahal” to replace its old facility. He said [**20] that a vacant lot and a
building formerly used by the dealership were sold to Monnette's market to help
finance the project.

    [*P35] Brondes, Sr. said he purchased the Habitec fire alarm system after a
small fire happened at the dealership. He recalled telling Habitec to do
“whatever has got to be done” to avoid a catastrophic fire. He never questioned
the type of alarm system that was installed, and assumed the alarm system
"immediately sent [a signal] to a station * * * that's manned 24 hours a day"
and is "a little over a mile away." Brondes, Sr. said the heat detectors were
put “up in the ceiling” on trusses where available, and on the ceiling "in the
open areas." He said the system was selected and installed by Habitec, and the
dealership paid Habitec $100 per month to “maintain it” and provide 24/7
monitoring. Brondes, Sr. said the signature on the Agreement was probably his,
since he handled "the fire detector thing," however, he did not know the
Agreement was actually a lease. He also said: "I looked at the front side and
read the cost and various things but I didn't spend much time reading it. I
signed it. I figured it was a contract just to put in the system." He said he
did not [**21] read the back of the Agreement, and would not have understood
the terms written there even if he had read them.

    [*P36] On cross-examination, Brondes, Sr. said he “half remembers” signing
the Agreement, which states that the signer acknowledges they read the front and
the back, and he would have turned the document over if he knew there were
important disclaimers on the back. He did not know if Brondes applied for a
variance to rebuild on the same location after the fire, however, Brondes
already owned part of the property on which the new dealership was built. On
redirect, Brondes, Sr. stated that he could read the larger print on the
Agreement, but not the smaller type, and he did not have an attorney review the
lease. He stated that his son, Phil Brondes, Jr., planned the rebuilt
dealership.

    [*P37] Robert Seymour, who sells commercial fire detection systems for
Habitec, testified that he is aware of the National Fire Protection Association
(“NFPA”) guidelines for alarm systems, he is experienced in the area of security
and fire detection systems, and he tailors each system to meet the client's
needs. He said that Brondes, Sr. asked for a "fire alarm system," which he
provided after taking a tour [**22] of the facility. Seymour explained that
commercial heat detectors often detect the “rate of rise” in temperature, which
produces less false alarms than detectors that measure a set threshold
temperature. Seymour said that he installed a Silent Knight control panel, five
smoke detectors, and 56 heat detectors, which were designed to sound an alarm
when a 135 degree rise in temperature is detected. He said the design drawings
for the Brondes system were approved by the Toledo Building Inspector and the
Toledo Fire Prevention Bureau, and the equipment charge for the system was
$1,805.38, with a monthly monitoring charge of $99. Seymour testified that
installers are instructed to mount the heat detectors "as high as they possibly
can," and no revisions were made by Habitec after the initial installation.
Seymour testified that the Agreement is "a commercial lease not a purchase," and
the original document, which was 8.5 by 14 inches in size, with printing on both
sides, was executed by "Phil Brondes,“ with no designation of ”Sr.“ or ”Jr."

    [*P38] At the close of Seymour's testimony, the jury was excused and a
discussion between the parties and the court was held as to paragraphs 21 and 25
of the [**23] Agreement, which the court previously excluded as unconscionable.
The court noted that, although the copy of the Agreement used at trial was 8.5
by 11 inches, the original document was 8.5 by 14 inches, with correspondingly
larger type. The jury was then brought back in and testimony resumed.

    [*P39] Richard Syroka, of the Toledo Fire Department, testified that he
responded to the alarm at Brondes on May 27, 2002. He said the fire was marked
as “suspicious” because of its size, which required 58 firefighters and 15 rigs,
and the origin of the fire remained "undetermined." He said that a check of the
fire detection system on February 2, 2002, resulted in one violation in the
quick lube area, and tests were performed by shorting electrical wires to make
the heat detectors go off. On cross-examination, Syroka stated that the Fire
Protection Bureau conducts yearly inspections on commercial properties, and it
is the owner's responsibility to correct any violations. He said that the alarm
recorded on May 27, 2002, at 1:49:58 a.m. was a "commercial fire alarm at
Brondes coming from the quick lube area." He also said that a fire can grow
quickly if fed the right fuel, i.e., oil, gas, or wood paneling. [**24] On
further direct examination, Syroka said that when city inspections do occur,
they only note that equipment is present, with no assurance that the system is
in working order, since performance evaluations are performed by outside
contractors.

    [*P40] Corky Hahn, a construction plan examiner for the city of Toledo,
testified that he played a role in the permit process. Hahn stated that the
Toledo Municipal Code specifies what is required, and that an inspector checks
later, after a system is installed. He said that his approval of a system
drawing does not relieve the designer of the system from liability, and that the
drawings submitted to him contained no information as to how high the heat
detectors were to be mounted, or what structures they would be mounted on, but
he did know that the roof of the old Brondes building was curved. Finally, Hahn
stated that the fire detection system was not required, therefore, it only
needed a permit, as opposed to full compliance.

    [*P41] William Caton, a former Toledo firefighter, testified that Brondes'
fire system plan did not say where the heat detectors were placed, or list the
height and shape of the ceilings. He said detectors are to be placed as high
[**25] as possible in a room. Caton said he has never performed any fire system
tests, which are commonly done with “smoke cans” and magnets. On
cross-examination, Caton testified that the number of heat detectors in the
Brondes facility was correct, based on the size of the building.

    [*P42] After Caton's testimony, the trial deposition of William Bojarski,
city fire inspector, was read for the jury. In his deposition, Bojarski
testified that he uses NFPA form 72 when inspecting fire systems, however, the
standards are not mandatory regulations, and are subordinate to municipal fire
codes. Bojarski further testified that when he inspected Brondes' facility in
2000, no violations were found. He stated that, if a violation is found, the
owner of the building is responsible for hiring a contractor to fix the problem.

    [*P43] Jeffrey Long testified that he installed Brondes' fire detection
system in 1993. Long said that the only change he made to the original plan was
to relocate the control panel and add a heat detector at the new location to
protect the panel. Long said he did not remember where he placed the heat
detectors; however, the bottoms of the trusses in the quick lube area were six
feet below the [**26] ceiling, and "there is no way I would have mounted them
six feet below" because, according to NFPA standards, heat detectors should be
mounted as high as possible.

    [*P44] Long stated that after the Brondes fire, wires were found on the top
sides of the trusses, mounted with clamps. Long said that he could not testify
as to the condition of the system after the fire because, by the time he got to
the dealership, the quick lube area had been bulldozed and debris was piled
where the panel had been. Long described the range of the Brondes sensors as
"50ft coverage, 25ft radius, 25ft in any direction in a circle," and said the
sensors would set off an alarm if the rate of temperature rise exceeded 15
degrees per minute. He also said that the Brondes detectors were installed by
using a lift because of their height above the floor.

    [*P45] On cross-examination Long testified that all of the clamps from the
fire scene were lost, however, the clamps are usually “malleable” iron clamps
that can be mounted horizontally or vertically, as long as they are near the
ceiling. He recalled being told that Simplex could not inspect the heat
detectors in March 2002 because they did not have a tall enough ladder or a
[**27] lift. On redirect Long said that he walked through the building after
the fire, but found none of the equipment he installed. He remembered telling
ATF investigators that "he ran the lines along the angle of the bottom chord in
order to obscure them from view from the floor," but he did not remember if the
sensors were actually attached to the bottom or the top chord.

    [*P46] Anthony Adams, a Habitec employee, testified that he added the “419”
prefix to the Brondes fire system on October 11, 2001. At that time, he tested
the power supply, the battery backup, and the burglar alarm system and ran a
test to see if a signal was being sent and received from the alarm. Jesus
Cordaro testified that he serviced the system on December 2, 1999, when he
replaced a heat detector, tested the power to the fire detection system, and
checked the key pad. He did not remember the locations of the heat detectors, or
the type of roof over the building.

    [*P47] Duane Gibel, an electrician, testified that he added electrical
plugs and conduits in the service area in 1999. He described the building as an
“old airplane hangar” that is steel-ribbed, and has a 180 degree curved ceiling,
with steel trusses on 20 to 25 foot [**28] centers. Gibel also stated that he
installed outlets and a panel in the body shop and hung new lights in the
service area on March 24, 2002. Gibel testified that he has previous experience
with heat detector systems. He said the bottoms of the trusses in the quick lube
area were about 13 feet above the floor, not at the height of the ceiling. Gibel
said he did not see any heat detectors on the bottoms of the trusses in the
quick lube area, and he never installed a heat detector on a bowed ceiling.

    [*P48] Benjamin Hazzard, a former Brondes employee, testified that the
quick lube area had an open, 10 to 12 foot high ceiling in the waiting area, a
steel curved roof in the lube area, and the middle of the room was higher than
the ends. Hazzard said that several containers of oil were kept in a hallway
outside of the quick lube area. Hazzard remembered that, in an earlier
deposition, he stated the room had a “normal flat panel” ceiling, however, at
trial, he was certain the roof was curved and open and that the fire detectors
were mounted on the bottoms of the girders.

    [*P49] Michael Peatee, a Toledo Edison employee, testified that he lives
several blocks from the original Brondes dealership, where he [**29] helped to
install electrical service in the 1980s. Peatee said he was in bed the night of
the fire, near an open window, when he smelled smoke, which reminded him of "tar
and/or building material," but he did not see a fire. He heard about the fire
the next morning and, two days later, he went to the fire scene to recover some
equipment for his employer, where he gave a statement to an ATF agent. On
cross-examination, Peatee said that there was electrical equipment on the wall
of the quick lube area which he was asked to retrieve because there was
suspicion that the fire was caused by an electrical failure.

    [*P50] Louise Schlatter testified that she saw her husband walking around
the house after 11 p.m. because he smelled smoke. She did not hear any sirens
after 1:50 a.m., and did not hear about the fire until the next day.

    [*P51] Michael Bay, a Brondes mechanic who lived one-half mile north of the
dealership, said he was awakened by the smell of smoke around 12:15 a.m. on May
27, 2002. Bay, a volunteer fireman, said the smell reminded him of a burning
building so he went outside, got into his car, and drove around looking for a
fire; however, he did not drive toward the Brondes dealership. He went [**30]
to Brondes the next day to get his tools, but they were destroyed by the
collapsed ceiling. Bay testified that heat detectors were placed on "the bottom
of the metal rails, the beams," in the quick lube area, and that the building
had a "big dome roof and it had two opening sky lights. Kristin Bay, his wife,
testified that she went outside after her husband woke up. Although she could
smell smoke, she did not see anything, and did not hear any sirens.

    [*P52] Curtis McDuffy testified that he and his cousin, Terry
Kachenmeister, were driving on Secor Road after midnight on May 27, 2002, when
they saw an open garage door with flames inside the building and smoke coming
out. They called 911 to report the fire. McDuffy said a “detective” came to his
home the next day to ask him about what he saw. On cross-examination, McDuffy
stated that he heard sirens before he made the 911 call.

    [*P53] Former Universal account executive Frank Szocs testified that
Brondes, Phil Brondes, Sr., Pat Brondes and several others were listed as
insured parties on Brondes' policy, and that the business was insured for
approximately $1,161,000. He explained that businesses can purchase a value
protection endorsement that will [**31] pay if the owner is required to rebuild
at more than the cost of the loss, but it does not cover a move to a new
business location. Szocs said that Brondes was paid a total of $2,018,788.03 in
insurance benefits.

    [*P54] Rick Spencer, a licensed investigator for the Ohio Department of
Public Safety, division of Homeland Security, testified that Wymer hired him to
determine the cause and origin of the fire. He went to the burned dealership on
May 29, 30, 31, June 17, and July 2 and 10, 2002, after which he generated two
reports on April 5 and 9, 2006. Spencer said that when he first saw the quick
lube area after the fire, the scene was "pretty much intact." He said that the
trusses over the quick lube area, which were 12 feet above the floor and were 20
feet long, collapsed due to heat. Spencer also said that damage to the trusses
showed that fire burned longer in that area, which he called "ground zero."

    [*P55] Spencer stated that the heat detectors were programmed to respond if
the rate of rise was more than 15 degrees per minute, or if the temperature of
the room was between 135 and 190 degrees. He said his investigation included
collecting remnants of burned trusses and what he thought were heat [**32]
detectors, and he took one heat detector home and kept it in his barn; however,
the barn was leveled by a tornado in 2006 and it was lost. Spencer said that the
fire was not caused by an intentional human act and, in his opinion, placement
of the heat detectors on the bottoms of the trusses contributed to the extent of
the damage.

    [*P56] On cross-examination, Spencer testified that he is not an expert in
fire detection. While he did not believe that Habitec caused the fire, there was
a two-hour delay before Habitec's system reported it. Spencer said the evidence
shows the fire was caused by an unspecified electrical event and its
temperature, based on Kachenmeister's and McDuffy's descriptions, was at least
425 degrees Fahrenheit.

    [*P57] Spencer explained that a bowed roof has a pocket near the ceiling in
which heat builds up, preventing the heat detectors from reading the temperature
of the fire in a timely manner. He said that a fire can multiply by ten times
every minute that it burns. However, he did not know what materials were present
in the building, or how fast they would have burned. He also stated that vents
in the ceiling may have caused a delay in detection, although he did not analyze
[**33] the effect of such vents in this scenario. Spencer testified that
detection delay allowed the fire to "progress uninhibited and caused more
damages than if it would have activated early on." He said that black smoke
spotted by witnesses indicates the presence of petroleum distillate, and the
open metal door may have been caused by an "electrical event." He also said that
heat sufficient to twist metal trusses would have to be more than 2,000 degrees,
and would have to build over some amount of time.

    [*P58] Toledo Fire Captain Kenneth Gehring testified that the fire was
“significant” by the time he arrived on the scene, and the first thing he saw
was an open overhead door with flames licking out. Gehring said his focus was on
keeping the fire from spreading and that the temperature of the quick lube area
was probably a “couple 1000 degrees” by the time he got there.

    [*P59] Toledo Fire Inspector Thomas Moran testified that he inspected
Brondes in 2002 to see if earlier violations found by Simplex had been
corrected. Moran said an inspection consists of a visual inspection, during
which some of the detectors are “shorted” to make them go off. Moran recalled
that Brondes' ceiling was flat.

    [*P60] Brondes' [**34] general manager Dennis Jackson testified that he
hired Simplex to inspect the fire system in 2002 and, at that time, heat
detectors were mounted on the bottoms of trusses in the quick lube area. On
cross-examination, Jackson said that he did not smell the fire, even though he
lives only one mile from Brondes' original location. He also said that service
and customer relations manager Robert ("Bobby D.") DeSimpeleare and Bobby's
brother, Richard, were in the building to clean floors the weekend before the
fire.

    [*P61] Simplex repair technician Terrance Minsel testified that he went to
Brondes in March 2002, where he checked the phone line, disconnected the alarm
bell, and tested the heat detectors, monitors, horns and smoke detectors.
However, he was unable to reach the heat detectors on the trusses because he did
not have a tall enough ladder or a lift. Minsel said the heat detectors were
tested "by shorting across wires." He also said that some of the heat and smoke
detectors in the conference room were not mounted. On cross-examination, Minsel
said that zones four through seven were inaccessible to all but a visual
inspection, and there would have been an extra charge to get high enough [**35]
to actually touch them. Minsel expressed doubt as to whether he had the right
equipment to test the heat detectors, and said that, in any event, activating a
rate of rise heat detector to test it would destroy the mechanism.

    [*P62] Michael Cousino testified that he was hired by Brondes to clean up
and rebuild the dealership after the fire, which was a total loss. He stated
that new set back requirements and zoning laws applied to the rebuilt structure,
and that a "like kind, and equal" estimate to rebuild was $1,622,930.76. He said
Brondes did not apply for a permit to rebuild on the original site, and did not
attempt to find out if the set back and zoning issues could have been resolved.

    [*P63] In addition to the above testimony, video depositions of Bobby D.,
deceased, and fire expert D. Moore were played for the jury, followed by
additional testimony by real estate appraiser Robert Domini, Toledo city
building inspector James Gilmore, fire experts J. Moore and Jason Floyd,
Universal underwriter James Redfern, Brondes' comptroller Linda Gaudaen, and
real estate appraiser Michael Ducey. Brondes' final witness was Phil Brondes,
Jr.

    [*P64] Bobby D. testified that he and his brother attempted to clean floors
[**36] at the dealership the day before the fire but the machine they rented
did not work, so they closed the door that opened onto Coral Street and left.
Bobby D. said the heat detectors were on the bottoms of beams in the quick lube
area, and that there was a “dome-like” ceiling 10 to 12 feet above the trusses
that had one big vent at the top, with flaps that could be opened with a crank.
However, the vent was closed the last time he was in the building. Bobby D.
stated that, before the fire, workers from Gibel Electric were in the building
to move his desk and the vending machines, and put in some electrical outlets.
He said that doors opening onto to Coral Street could only be opened from the
inside. He also said that Simplex did not discuss getting a lift to inspect the
heat detectors on the quick lube trusses.

    [*P65] Testimony given in D. Moore's depositions was as follows. In his
first deposition, given on September 19, 2007, D. Moore, an ATF employee and
certified fire inspector, testified that he was trained to determine the cause
and origin of fires, and was familiar with NFPA guidelines. D. Moore stated that
he performed his own investigation of the Brondes fire, in addition to
coordinating [**37] with other investigators on May 28 and 29, 2002. He said
that the first indication of a fire was on May 26, 2002, at 10:30 p.m., when a
witness reported smelling smoke and, later, at 1:48 a.m., when another witness
saw fire and called 911. At that same time, a sensor reported a fire in the
quick lube area. The fire department was contacted at 1:50 a.m. By 2:03 a.m.,
there was a heavy fire in the southwest corner of the quick lube area.

    [*P66] D. Moore said the original Brondes facility was a 60-year-old,
2-story commercial structure that encompassed 7,800 square feet. The roof was
supported by steel, bowstring trusses that ran in a north-south direction, and
two skylights 12 by 20 feet in size were centered in the east and west halves of
the ceiling. Lights were suspended from the trusses, and heat detection sensors
were located on the bottoms of the trusses in the quick lube area. D. Moore
stated that the system was recently "upgraded to meet code specifications." He
said the trouble signal sent to the fire department was probably due to system
failure caused by the fire, which burned out the telephone line, and opined that
the system responded when it was first capable of detecting the [**38] fire.
However, he said the detectors would have activated sooner if they had been
placed at the highest point of the ceiling, which would have allowed for less
damage to the building.

    [*P67] In his second deposition, given on December 11, 2007, D. Moore
testified that the origin of the fire was narrowed to an area, not a specific
point, and that the fire was accidental. D. Moore also said that he is not
qualified as a fire determination expert, and has no training in assessment of
damages or the nature and extent of damages beyond issuing a broad estimate,
using the policy amounts as a guide. He said physical evidence and testimony
placed the detectors on the bottoms of the trusses, and it is possible the smoke
detected by witnesses did not come from the Brondes fire. D. Moore also said
that the fire was "slow-developing, smoldering, eventually it reached a point
where it had enough energy where it broke out."

    [*P68] Real estate appraiser Robert Domini testified that the value of
Brondes' facility was $2.5 million before the fire, with an additional
$2,172,000 after the fire. Toledo chief building inspector James Gilmore
testified that Brondes would have needed a variance to rebuild at the same
[**39] location. Gilmore also said that the building's owner could have asked
for a variance from the setback regulations, and could have appealed a denial of
such a request. He stated that it is normal to discuss rebuilding a facility
with the same dimensions and location if 75 percent or less of the structure is
destroyed.

    [*P69] J. Moore, a fire protection and fire code research consultant for
Hughes Associates, Inc. who also testified at the Daubert hearing, testified
that NFPA develops fire codes and standards. He said that he visited Brondes on
June 17 and July 17, 2002, after Spencer asked him to determine the type of
alarm that was used and how it was installed. During those visits, he took
photos inside and outside the building. J. Moore stated that NFPA requires heat
detectors to be installed on the tops, not the bottoms, of trusses. He further
stated that a rate of rise heat detector works when a diaphragm heats up along
with the air temperature, putting pressure on a circuit and closing it, setting
off an alarm, and a fixed temperature detector has a piece of solder in it that
melts, releasing a small plunger that closes a switch and sets off an alarm. J.
Moore said that heat detectors [**40] should be mounted no more than 12 inches
below the ceiling, because the dome shape traps rising heat, preventing
low-mounted detectors from noticing it until the heat eventually builds up and
travels back down.

    [*P70] J. Moore testified that heat detectors come with mounting
instructions, that the original plan for the Brondes system does not show the
actual placement of the detectors, and no NFPA certificate of completion was
issued. He concluded that: (1) the detectors at the facility did not comply with
NFPA standards, (2) the installation was not performed correctly, (3) there was
no evidence of proper testing, (4) the large number of alarms between the first
signal and the fire department's arrival indicates either a rapidly growing fire
or damage to the circuits, (5) there were no indications of smoke detection
placement in relation to air ducts, (6) it cannot be determined how many
detectors there were per zone or circuit, and (7) there was no indication of a
primary, as opposed to a secondary power source, or a calculation of how much
power is needed to feed the entire circuit. Based on these conclusions, J. Moore
opined that the delay in detection of the fire resulted in a larger [**41] fire
and more damage. Although he is not an expert in fire modeling, J. Moore
calculated that even a relatively minor delay in detecting a fire could allow
the fire to become two and one-half times bigger.

    [*P71] On cross-examination, J. Moore testified that a pole can be used to
test high-placed heat detectors, but none was used in this case. He said that
Spencer lost the only surviving heat detector that could have been tested after
the fire. He further said that Brondes did not complete the $1,400 of fixes that
Simplex recommended for the system. J. Moore stated that the heat detectors
probably failed because they were placed on the bottoms of the trusses, and that
a “flurry” of signals indicates an “attack of the fire alarm system by the fire”
as opposed to a single signal from a functioning system.

    [*P72] Jason Floyd, author of the fire dynamic simulator computer program
which performed fire modeling in this case, defined the program as software that
simulates "how a fire will grow and behave inside of a building or piece of
equipment * * * determining the effect of that fire on either people,
structures, equipment in terms of either * * * temperature, radiant heat, or
toxicity * * *." Floyd [**42] said he was called in by J. Moore to evaluate the
potential delay in activation of heat detectors, and he was given drawings and
photos that showed the layout and size of the space, after which he ran five
scenarios, based on varying possibilities, including assumptions of slower,
rather than faster, fire acceleration, and different placement of the heat
detectors.

    [*P73] On cross-examination, Floyd testified that he could not “pinpoint” a
dollar amount of damage due to later fire detection, and he did not know when
the fire started or how fast the flames spread. Also, he did not know what
materials were available to burn, and he did not include calculations based on
the presence of oil. He said the only three known facts are the time smoke was
first seen, the time the alarm went off and the time the roof collapsed.

    [*P74] James Redfern, a retired Universal investigator, testified that he
flew to Toledo on May 28, 2002, but ATF investigators would not let him see the
site. Redfern said that Brondes' insurance policy had a value protection clause
that would pay the increased cost to rebuild a facility of the same kind,
quality, use and occupancy, even if it was built at a different location.
Redfern [**43] estimated the value of the fire-damaged property to be
$2,172,000, and the real estate to be $2.5 million. He said that Universal paid
Brondes approximately $4 million.

    [*P75] Linda Gaudaen, Brondes' comptroller, testified that Ford, through
its Blue Oval program, dictates how a dealership looks and, if a dealership
participates in the program, it receives funds based on the level of sales.
Gauden also said that Brondes paid $7,600 per month in rent to Brondes, Sr. and
Pat Brondes, but had no mortgage to pay before the fire. However, the new
dealership now has “quite a large mortgage” of $4,480,000, for which it made
payments of $48,000 per month. She stated that the new facility is owned by BLM,
not Brondes. Gauden further testified that property taxes on the new dealership
were twice that of the old site, and Universal paid Brondes a total of
$3,844,401 for its losses. She also said that BLM, not Brondes, paid Pat Brondes
$1.175 million for her share of the original site.

    [*P76] Real estate appraiser Michael Ducey estimated that, before the fire,
the dealership was worth $2.5 million. He testified that Brondes owned seven
parcels of land before selling a lot to Monnette's Market, and that Pat [**44]
Brondes was paid $1.72 million for her interest in the original site of the
dealership.

    [*P77] Phil Brondes, Jr., president of Brondes, testified that BLM was created after the fire as "a financial planning thing actually for our family." He said that his father, Brondes, Sr. is the majority stockholder of BLM. Brondes, Jr. also said that the dealership “kind of went along” with Ford's suggestion to build a bigger facility, however, the “bottom line” is to sell cars cheaper. He also said that, although the rent was set by Brondes in the past, the company now had no choice because $48,000 per month was needed to make the new mortgage payment. Brondes, Jr. stated that his father wanted a fire detection system because Pat Brondes, who owned part of the original dealership, had the right to influence the decision to rebuild in the event of a fire.

    [*P78] On cross-examination, Brondes, Jr. testified that before the fire, the dealership sat on 5 acres of land, whereas the new facility was on 9.2 acres, and "[Brondes] could not rebuild the facility that we needed on the property that we have left that we had total control over, and had it not been for the fire we'd still be operating right there right [**45] now * * *." He said that the new dealership sits on one parcel of land, which is owned by BLM and Brondes, Sr. He also said that after the fire, Monnette's Market bought one parcel from BLM for $460,000, and several other lots were sold for a total of $1,070,000. He testified that BLM was set up to shield the Brondes family from taxes and liability, and it is "the sole owner and holder of whatever it is for Brondes Land Management LLC." Brondes, Jr. said that the $48,000 monthly rent paid to BLM by Brondes is a "business expense."

    [*P79] At the close of Brondes, Jr.'s testimony, Brondes rested its case, and the jury was dismissed. Habitec made a motion for a directed verdict, which the trial court denied. In addition, Brondes, Jr. was removed as a plaintiff. Habitec then presented testimony by Simplex technician Dave Sibberson, after which the deposition of David Gibel was played for the jury. Testimony was then given by William Tapper and fire investigator Timothy Wilhelm.

    [*P80] Sibberson testified that he inspected the panel and tested the fire alarm system for Simplex before the fire by tripping alarms in different parts of the building. He said there were heat detectors "everywhere," but someone [**46] at Brondes turned down his request for a lift because it involved an additional cost. However, he did complete a "visual inspection." Sibberson testified that the ceiling in the lube area was “dome type” and was 15 to 20 feet above the floor. He opined that there "wasn't enough power in the control panel to run all the horns and everything else."

    [*P81] On cross-examination, Sibberson stated that he disconnected the horns during the test and blew smoke in the smoke detectors, but he did not short out wires or use a heat gun to test the heat detectors in the quick lube area because he could not reach them. Sibberson said that he checked the current to the alarm panel and unsuccessfully attempted to convince Brondes to buy a new panel with an increased electrical capacity. Sibberson stated that one heat detector in the conference room should have been replaced because it had drywall on it due to recent remodeling, and he saw un-mounted smoke detectors in the furnace room.

    [*P82] Tapper, a building light and safety technician at the University of Toledo, testified that he was a technical manager for Habitec in 2002, but he did not install the Brondes alarm system. Tapper said that the first alarm signal [**47] was sent at 1:48 a.m. by an alarm in the quick lube area. He said the telephone line was compromised at 1:53 a.m., and that, most likely, the trouble signals sent by the Habitec system were generated by telephone line failure caused by the fire. On cross-examination, Tapper said there should be a “working document” that shows the locations of the installed devices.


    [*P83] Wilhelm, a firefighter and fire investigator from Erie, Pennsylvania, testified that "bowstring trusses have been known in the fire service to be dangerous and have potential for early collapse." Wilhelm also said that he visited the site on June 17, 2002, as part of Spencer's investigation, and he revisited the site three times more between June 17 and 19, 2001. Pursuant to "NFPA 921 protocol," he did not touch anything, however, the entire area was cleared out when he saw it, and 3,466-plus photos of the original condition of the site were all that was available for study. Wilhelm said that, in 18 dumpsters full of debris, no heat detectors were to be found. Consequently, no heat detectors were examined by anyone other than Spencer, and it was otherwise impossible to determine how the fire had progressed through the structure. [**48]

    [*P84] Wilhelm opined that the ATF's investigators prematurely concluded the fire was accidental. He identified three possible causes: fireworks on the roof, a catastrophic failure of the ceiling-mounted gas heaters, and an unspecified electrical event. But, he also stated: "I don't believe anybody can state how this fire started with any degree of certainty." As to the structure of the building, Wilhelm stated that steel begins to weaken at 600 degrees Fahrenheit and loses 75 percent of its strength and sags at 1,200 degrees Fahrenheit, an opinion that differed from Spencer's assumption that steel begins to weaken at 2,000 degrees Fahrenheit. Wilhelm further stated that "Mr. Spencer's theory of a fire multiplying in size ten times per minute is just plain wrong." Wilhelm testified that it would be helpful to know more about the building's ventilation, the point of origin of the fire, the ignition source, and the quantity of available fuel sources for the fire. He described fire growth as a “dynamic feature” and said that knowledge of possible fuel sources and surrounding environment is critical to an investigation, and opined that Bay may have smelled smoke from a source other than the Brondes [**49] fire. He did not agree with Spencer's conclusion that a prior issue with the system should have put Habitec on notice of a problem.

    [*P85] On cross-examination, Wilhelm stated that he is not licensed as a fire investigator in Ohio, and he is not familiar with Ohio's Basic Building Code or Fire Code. He did, however, consider and apply NFPA standards. Wilhelm said that the fire scene was “cleaned out to some extent” when he first saw it, and he was not allowed to access the dumpsters. He said that a burning building does not have any particular smell, and he did not believe that either Peatee or Bay smelled smoke from the Brondes fire at 11:15 p.m. and 12:15 a.m., respectively.

    [*P86] At the close of Wilhelm's testimony, the defense rested and the jury
was excused. Habitec renewed its motion for a directed verdict as to Brondes'
claims for negligent performance and negligence per se. The trial court granted
the motion in part, dismissing Brondes' negligence per se claim as not supported
by any specific law or regulation, and denied Habitec's request for a jury instruction as to superseding, intervening cause. Thereafter, the trial court instructed the jury as to the remaining issues, and the jury [**50] retired to
deliberate.

    [*P87] On September 22, 2010, the jury returned its verdict, in which it answered seven separate interrogatories and calculated damages based on the
answers to those interrogatories, as follows:


   Answer 1: The alarm system delayed reporting of the Brondes fire.

   Answer 2: There was a commercial lease agreement between Habitec
and Brondes.

   Answer 3: There was a commercial lease agreement between Habitec
and Phil Brondes, Sr.

   Answer 4: Habitec acted negligently and/or breached the terms of
the commercial lease by selecting, installing, servicing, inspecting,
and monitoring the system.

   Answer 5: Habitec's negligence and/or breach of the terms of the
commercial lease caused the delayed reporting of the Brondes fire.

   Answer 6: Such delay caused additional damages to occur.

   Answer 7: Brondes suffered damages that would not have occurred but
for the delayed reporting of the fire.



    [*P88] Based on the above answers, the jury further found that Habitec was
liable for a total of $4,080,284.80 in damages. That amount was further broken
down into specific amounts, with the stated percentages of Habitec's liability
for each amount:

    [*P89] In favor of Universal:


   Autos: $72,240.75 ($144,487.49 at 50 percent)

   Buildings: $1,009,394 [**51] ($2,018,788.03 at 50 percent)

   Equipment: $285,980.83 ($866,608.59 at 33 percent)

   Stock: $151,498.12 ($302,966.21 at 50 percent)

   Earnings: $211,363.44 ($528,408.60 at 40 percent)

   Employee Tools:

   $9,107.85 ($27,599.56 at 33 percent)

   Extra Expenses:

   $0.00 ($100,000 at 0 percent)



    [*P90] In favor of Brondes:


   Increased Rent:

   $2,300,000.00 ($4,600,000 at 50 percent)

   Property tax: $0.00 ($0.00 at 0 percent)

   Unreimbursed Payroll:

   $0.00 ($91,260.74 at 0 percent)



    [*P91] In favor of Phil Brondes, Sr.:


   Rent: $19,500.00 ($19,500.00 at 100 percent)

   Unreimbursed Real Estate Loss:

   $21,200.00 ($21,200.00 at 100 percent)



    [*P92] On October 6, 2010, Brondes and Universal filed a "Motion for costs,
prejudgment and post-judgment interest, and attorney fees, with [an]
accompanying memorandum in support, and request for hearing," which Habitec
opposed. On October 7, 2010, Habitec filed a motion for judgment notwithstanding the verdict (“JNOV”) pursuant to Civ.R. 50(B), or for a new trial pursuant to Civ.R. 59(A) in which it argued that: (1) Brondes is barred from asserting a negligence claim against Habitec because the parties' obligations were established by contract through the Agreement, (2) there is no separate duty of care owed to Brondes because the trial court granted a directed verdict in favor of Habitec on the issue of negligence per se, (3) the plaintiffs' breach of
contract claims are limited by the terms of the Agreement, [**52] (4) insufficient evidence was presented at trial to support a finding that Habitec's actions proximately caused Brondes' damages, (5) insufficient evidence was presented to support an award for increased rent which, in this case, was actually a mortgage payment, (6) the trial court should have instructed the jury as to superseding, intervening cause by Simplex, and (7) the jury should not have awarded damages to Phil Brondes, Sr. because his negligence claims are barred by the statute of limitations. That same day, Habitec filed a motion in which it renewed its pretrial motion for sanctions, and asked the court to set-off $375,000 from the judgment awarded to Brondes from Simplex, which Brondes and Universal opposed. On November 10, 2010, Brondes and Universal filed a reply in support of their motion for costs, interest and attorney fees. On February 17, 2011, the trial court granted the parties' joint motion for a stay pending resolutions of all outstanding motions, after which the parties renewed their outstanding motions.

    [*P93] On November 29, 2012, the trial court issued a judgment in which it
vacated the jury award for increased rent, and denied the other issues raised in
Habitec's [**53] motion for JNOV. The trial court also overruled Habitec's
motions for a new trial and for sanctions and set off. As to Brondes' motion for
costs, fees, interest and attorney fees, the trial court granted the motion as
to a "portion of Plaintiffs' claimed costs" and post-judgment interest, and
denied Brondes' requests for prejudgment interest and attorney fees.

    [*P94] On December 20, 2012, Habitec filed a notice of appeal in this
court, in which it set forth the following assignments of error:


   [First Assignment of Error]

   The trial court erred when it failed to enforce the terms of the
Commercial Lease Agreement.

   [Second Assignment of Error]

   The trial court erred when it failed to enter judgment as a matter
of law in favor of Habitec.

   [Third Assignment of Error]

   The trial court erred by refusing to instruct the jury on the
defense of intervening superseding cause.

   [Fourth Assignment of Error]

   The trial court erred as a matter of law when it added Phil Brondes
Sr., who was not a party to the contract, as a new-party plaintiff
after the expiration of the statute of limitations and refused to
grant judgment as matter of law dismissing him from this litigation.



    [*P95] On December 21, 2002, Brondes, Phil Brondes, [**54] Sr., and
Universal filed a notice of cross-appeal, in which they set forth the following
cross-assignments of error:


   First [Cross-] Assignment of Error

   The trial court erred when it abandoned and ignored the jury's verdict awarding replacement rent overhead damages consistent with a month of testimony, two and a half days of focused deliberation, and strict compliance with the court's jury instruction, interrogatories and verdict forms[.]

   Second [Cross-] Assignment of Error

   The trial court abused its discretion when it subsequently ruled the jury verdict for Brondes was against the weight of the evidence[.]

   Third [Cross-] Assignment of Error

   The trial court erred in granting JNOV and vacating the replacement rent overhead award given Habitec repeatedly waived the issue[.]

   Fourth [Cross-] Assignment of Error

   The trial court erred in not awarding prejudgment interest on the jury's verdict which unquestionably found Habitec breached its contract[.]

   Fifth [Cross-] Assignment of Error

   The trial court erred in not awarding the proper amount of costs due [to] the prevailing parties[.]



    [*P96] In its first assignment of error, Habitec asserts that the trial court erred when it denied Habitec's motion for summary [**55] judgment and failed to enforce the terms of the Agreement. Specifically, Habitec argues that the contract clause limiting damages to $250 was not unconscionable or against public policy, the one-year limitation on bringing an action against Habitec is enforceable and the Agreement bars enforcement of Universal's third-party claim against Habitec.

    [*P97] We note at the outset that an appellate court reviews the trial court's granting or denying of summary judgment de novo, applying the same standard used by the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 573 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment will be granted when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the non-moving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). Initially, the party seeking summary judgment bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the non-moving party's claims. Id. Similarly, "a determination as to whether a written contract is unconscionable is a matter of
law" which courts review [**56] de novo. Taylor Bldg. Corp. of Am. v. Benfield,
117 Ohio St.3d 352, 2009-Ohio-938, 884 N.E.2d 12, ¶ 35. With these standards in mind, we will address Habitec's three arguments.

A. The Damages Limitation Clause

    [*P98] The trial court summarily found that the clause limiting Habitec's liability under the Agreement to $250 was "against public policy," and denied Habitec's motion for summary judgment as to that issue. On appeal, Habitec argues that the clause is a limitation on damages, not a liquidated damages provision. Habitec further argues that the $250 limitation is not unconscionable and is not against public policy because the Agreement clearly states that Habitec is not an insurer, Brondes was required to obtain fire insurance to cover its losses, and the parties were free to limit Habitec's liability for damages because the Agreement was a "non-personal, commercial transaction between sophisticated businesses."

    [*P99] In contrast, appellees make the argument that the damage limitation is unconscionable because the typeface used in the Agreement is "so small it requires a magnifying glass to read it." They also argue that Habitec tried to fine print away” its responsibility to provide fire detection services through paragraphs 17 and 21 of the Agreement, in violation of R.C. 1302.93. We will now address each of these arguments. [**57]

    [*P100] As to appellees' first argument, the record shows that, at one point, the trial court remarked that the typeface used in the Agreement was too small to be read without a magnifying glass. However, the trial court later corrected that impression, after being told that it was looking at a reduced-size copy of the original 8.5 by 14 inch document, which was in the trial court's record. Accordingly, appellees' attempt to generally characterize the Agreement as being written in “minute” type or “fine print” is misleading.

    [*P101] Further, in their appellate brief, appellees quoted paragraph 17 of the Agreement as follows: "Company assumes no liability for delay . . . or for interruption of service due to . . . fires." However, paragraph 17 reads, in its entirety:


   17. DELAY IN INSTALLATION AND INTERRUPTION OF SERVICE: Company assumes no liability for delay in installation of the equipment or for the interruption of service due to strikes, riots, floods, storms, earthquakes, tornadoes, fires, power failures, insurrections, interruption of or unavailability of telephone services, act of God, or any other causes beyond the control of Company, and Company will not be required to give service to Subscriber [**58] while interruption of service due to any such cause shall continue.



    [*P102] A plain reading of the language used in paragraph 17, in its entirety, shows that it addresses delays in installing or providing services due to a variety of forces that are outside of Habitec's control. It does not support appellees' argument that Habitec is attempting to absolve itself of a duty to monitor the fire alarm equipment that it installed at the Brondes dealership, or at any other facility. Therefore, appellees' attempt to characterize paragraph 17 of the Agreement as an attempt to absolve Habitec of all such responsibility is also misleading.

    [*P103] In addition, R.C. 1302.92(B), part of Ohio's version of the Uniform
Commercial Code (“UCC”), allows for contracting parties to limit or alter
damages, provided that such disclaimers are conspicuous. R.C. 1302.29 and Ins.
Co. of N. Am. v. Automatic Sprinkler Corp. of Am., 67 Ohio St.2d 91, 423 N.E.2d
151 (1981). It also provides for at least a minimum adequate remedy for the
victim of a breach. Targetronix v. Flextronics Intern., USA, Inc., 8th Dist.
Cuyahoga No. 82225, 2003-Ohio-3963, ¶ 15. However, in this case, R.C. 1302.92 and 1302.29 do not apply, since appellees' claims against Habitec revolve around alleged improper design, installation and monitoring, which predominantly involve the provision of services, not goods. See Allied Indus. Serv. Corp. v. Kasle Iron & Metals, Inc., 62 Ohio App.2d 144, 405 N.E.2d 307 (6th Dist.1977) (If the contract is for mixed goods and services, the UCC does not apply [**59] if its predominate factor and purpose "is the rendition of service, with goods incidentally involved * * *.").

    [*P104] As for appellees' last argument, generally, in Ohio:


   [P]arties to a contract are free to insert provisions which apportion damages in the event of default. "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. Responsibility for the exercise,
however improvident, of that right is one of the roots of its preservation." Blount v. Smith (1967), 12 Ohio St.2d 41, 47, 41 O.O.2d 250, 253, 231 N.E.2d 301, 305. Lake Ridge Academy v. Carney, 66 Ohio St.3d 376, 381, 613 N.E.2d 183 (1993).



    [*P105] In spite of the foregoing, for public policy reasons, parties are
not permitted to have "complete freedom of contract." Id. at 381. Limitations
may be imposed in cases where a contract provision violates public policy or
constitutes a penalty. In order to resolve such issues, courts are required to
consider on a case-by-case basis "[whether] the provision was reasonable at the
time of formation and [whether] it bears a reasonable (not necessarily exact)
relation to actual damages * * *." Id. at 382.

    [*P106] The following language is printed on the front side of the
Agreement,3 above the signature line:


   By signing this Agreement, Subscriber acknowledges [**60] that he
has read the entire Agreement, both the front and the back pages; that
he has an opportunity to have it reviewed by his attorney and/or
insurance consultant, that he understands and agrees to all of the
terms, conditions and provisions herein contained; and has in
particular read paragraph 21 herein, wherein Subscriber understands
that Company's liability is limited. THIS AGREEMENT BECOMES BINDING ON
COMPANY ONLY WHEN SIGNED BY A MANAGEMENT REPRESENTATIVE OF COMPANY. NO
REPRESENTATION MADE BY ANY SALESMAN OF COMPANY OR ANY OTHER PERSON
SHALL SURVIVE THE SIGNING OF THIS AGREEMENT.




- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3   All bold
face and capitalized type used in this decision was in the original document.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P107] Paragraph 21, which is printed on the reverse side of the
Agreement, states:


   21. COMPANY NOT AN INSURER AND LOSS FOR DAMAGES: It is understood
and agreed that: Company is NOT AN INSURER; insurance, if any, shall
be obtained by Subscriber; the payments provided for herein are based
solely on the value of service and are unrelated to the value of
Subscriber's property or property of others located on Subscriber's
premises; Company makes NO GUARANTEE OR WARRANTY, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS [**61] , that equipment
or services supplied will avert or prevent occurrences or consequences
therefrom which the System or service is designed to detect or avert.
Subscriber acknowledges that it is impractical and extremely difficult
to fix actual damages, if any, which may proximately result from a
failure to perform any of the obligations herein, or failure of the
System to properly operate with resulting loss to subscriber because
of, among other things: (a) the uncertain amount or value of
Subscriber's property or property of others kept on the premises which
may be lost, stolen, destroyed, damaged or otherwise affected by
occurrences which the System or service is designed to detect or
avert; (b) the uncertainty of response time of any police or fire
department, should the police or fire department be dispatched as a
result of a signal being received or an audible device sounding; (c)
the inability to ascertain what portion, if any, of any loss would be
proximately caused by Company's failure to perform or by a failure of
its equipment to operate; (d) the nature of the service to be
performed by Company.

   Subscriber understands and agrees that if Company should be found
liable for loss [**62] or damage due from a failure of Company to
perform any of the obligations herein, including but not limited to
installation, maintenance, monitoring or service or failure of the
System or equipment in any respect whatsoever, Company's liability
shall be limited to Two Hundred Fifty ($250.00) Dollars and this
liability shall be exclusive; and that the provisions of this section
shall apply if loss or damage irrespective of cause or origin, results
directly or indirectly to persons or property, from performance or
non-performance of the obligations imposed by this Agreement, or from
negligence, active or otherwise, of Company, its agents, successors,
assigns or employees.

   In the event that Subscriber wishes Company to assume greater
liability, Subscriber has the right to obtain from Company a higher
liability by paying an additional amount per month for the increase in
liability, and a rider shall be attached hereto setting forth such
higher limit and cost, but such additional obligation shall in no way
be interpreted to hold company as an insurer. This increased amount is
up and above the additional payment for the extended limited warranty.



    [*P108] Appellees argue on appeal that the test articulated [**63] by the
Ohio Supreme Court in Samson Sales, Inc. v. Honeywell, Inc., 12 Ohio St.3d 27,
465 N.E.2d 392 (1984), is controlling of the outcome of the case. In Samson, the
predecessor of the Honeywell alarm company installed a burglar alarm in a pawn
shop, which failed to transmit an alarm signal to local authorities. As a
result, merchandise worth $68,303 was stolen from the shop. The contract for
alarm services stated that the company's liability was unconditionally limited
to $50 in "liquidated damages."

    [*P109] In deciding whether the contract provision was enforceable, the
Ohio Supreme Court stated:


   Where the parties have agreed on the amount of damages, ascertained
by estimation and adjustment, and have expressed this agreement in
clear and unambiguous terms, the amount 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
[**64] thereof. Id. at the syllabus.



    [*P110] The Samson court concluded that the provision at issue had "the
nature and appearance of a penalty" which required the shop owner to pay $10,500
for services only to receive $50 in liquidated damages, and voided the
liquidated damages provision. Id. at 394.

    [*P111] In the wake of Samson, numerous Ohio courts have considered cases
involving "liquidated damages and/or limitation of liability clauses in alarm
systems contracts" without always distinguishing between the two types of cases.
Nahra v. Honeywell, Inc., 892 F.Supp. 962, 969 (N.D.Ohio 1995). (Citations
omitted.) However, in contrast to liquidated damage clauses, which are subject
to the full analysis under Samson, clauses that limit liability between
commercial parties are generally enforceable unless the breaching party is found
to be grossly negligent, or the contract is shown to be unconscionable.
Motorists Mut. Ins. Co. v. ADT Security Sys., 2d Dist. Montgomery Nos. 14799,
14803, 1995 WL 461316 (Aug. 4, 1995), citing Richard A. Berjian, D.O., Inc. v.
Ohio Bell Telephone Co. (1978), 54 Ohio St.2d 147, 158, 375 N.E.2d 410 (1978).
The distinction between the two is clear:


   While both types of clauses may under certain circumstances be
found to be unconscionable or to violate public policy, the factual
predicates for these findings, like the legal rationales allowing such
clauses in the first instance, differ [**65] with the type of clause
involved. * * * Liquidated damages clauses, properly employed, attempt
to fix in advance "reasonable compensation for actual damages."
However, a limitation of liability clause by definition restricts the
amount of compensation available, regardless of the actual damages
ultimately suffered. * * *. Nahra, supra, at 969, citing Restatement
(First) of Contracts, Section 339, Comment g (1932).4 See also Whittle
v. Davis, 12th Dist. Butler No. CA2012-08-169, 2013-Ohio-1950, ¶ 14-15
.




- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4   Comment g
states that a limitation of liability clause "is not an agreement to pay either
liquidated damages or a penalty. * * * [Accordingly], the contracting parties
can by agreement limit their liability in damages to a specified amount, either
at the time of making their principal contract, or subsequently thereto."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P112] In this case, paragraph 21 limits the amount of compensation to
$250, without making an attempt to determine in advance what damages would
result from a breach of the Agreement. Accordingly, the analyses in Samson and
its progeny, while instructive, are not controlling in this instance. Nevertheless, the controversy still centers on whether the $250 damage limitation in paragraph 21 is unconscionable, or constitutes a penalty.

    [*P113] In order to determine whether [**66] a commercial contract
provision is unconscionable, "courts will examine, as in consumer transactions,
the harshness of the terms of the contract and the relative bargaining positions
and experience of the parties, although the commercial plaintiff is held to a
higher standard than the ordinary consumer." Motorists Mutual, supra, citing
Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 55, 537
N.E.2d 624 (1989). In commercial settings, courts rarely find unconscionability.
Id.

    [*P114] In Motorists Mut. Ins. Co. v. ADT Security Sys., the Second
District Court of Appeals found that a contract provision limiting the liability
of a fire alarm company to "10 percent of the annual service charge or $1,000,
whichever is greater" was not unconscionable, and granted summary judgment to
ADT on that basis. In so doing, the appellate court determined that the contract
clause at issue was a limitation of liability provision, not a liquidated
damages provision. Id. The court reasoned that the provision did not constitute
a penalty, because it was clearly articulated in the parties' contract, which
had a warning displayed above the signature line on the front side of the
document directing the signers' attention to the limiting conditions stated on
the back. Also, clause E on the back of the document [**67] contained
all-capitalized type that stated the limitations on ADT's liability, including
the $1,000 cap on monetary damages "if ADT should be found liable for loss,
damage or injury due to a failure of service or equipment in any respect * * *."
Id.

    [*P115] Appellees did not present evidence to show that Habitec was the
only provider of fire alarm services in the Toledo area, or that no other alarm
company could have provided similar services at a reasonable cost. In addition,
it is undisputed that the plain, unambiguous terms of the Agreement allowed
Brondes to procure damage limits above $250 for an addition premium, but Brondes
did not purchase the additional protection. Also, paragraph 21 states, in bold,
capitalized letters, that Habitec "IS NOT AN INSURER," and that Brondes could
purchase its own fire insurance coverage, which Brondes did obtain. Accordingly,
under the circumstances of this case, we find that the damage limitation set
forth in paragraph 21 of the Agreement does not violate public policy, and is
not unconscionable or in the nature of a penalty due to the size of the typeface
or lack of warning of its contents. Finally, Phil Brondes, Sr.'s claim that he
did not read the [**68] reverse side of the Agreement and did not show the
document to an attorney before signing it is not a valid defense to the
enforcement of its terms. Haller v. Borror Corp., 50 Ohio St.3d 10, 14, 552
N.E.2d 207 (1990).

    [*P116] For the foregoing reasons, we find that the trial court erred when
it found that the $250 damage limitation in paragraph 21 violated public policy
and denied Habitec's motion for summary judgment as to that issue. Habitec's
argument is, therefore, well-taken.

B. The One-Year Claim Limitation

    [*P117] The trial court found that paragraph 25 of the Agreement, which
limits the time for bringing any cause of action to one year, instead of the
otherwise applicable twoyear statutory period, is unconscionable because it "was
not conspicuously marked and is therefore of no effect." The trial court relied
on R.C. 2305.10 and 2305.06, as well as Zurich-Am. Ins. Co. v. Citadel Alarm,
Inc., 8th Dist. Cuyahoga No. 50499, 1986 WL 5291 (May 8, 1986).

    [*P118] On appeal, Habitec argues that the time limitation was set off "in
bold, capital letters at the end of the Agreement." Habitec also asserts that
Phil Brondes, Sr. admitted that he was unaware of the limitation because he did
not read the Agreement in spite of the warning above his signature, and the
language of the limitation is "straightforward and not difficult to understand."

    [*P119] In contrast, appellees argue that the trial court [**69] correctly
concluded that the print used in paragraph 25 of the agreement is small enough
to render its provision unconscionable. In addition, appellees cite Miller v.
Progressive Cas. Ins. Co., 69 Ohio St.3d 619, 635 N.E.2d 317 (1994), in support
of their argument that the one-year claim limitation is against public policy.
We disagree, for the following reasons.

    [*P120] Paragraph 25 of the Agreement states:


   STATUTE OF LIMITATIONS: any action by Subscriber under this
Agreement in negligence, misrepresentation or fraud, or for any and
all other actions, causes of action, claims or charges, must be
commenced within one year from the date of occurrence or shall be
forever barred.



    [*P121] We have already determined that the typeface and bold, capitalized
headings used on the reverse side of the Agreement, coupled with the advisement
above the signature line and Phil Brondes, Sr.'s admission that he did not read
the Agreement before he signed it, do not demonstrate that the Agreement was
unconscionable on its face. We now turn to appellees' argument that paragraph 25
is void as against public policy, based on Miller v. Progressive Cas. Ins. Co.

    [*P122] In Miller, the Ohio Supreme Court stated generally that in Ohio,
the parties to a contract may validly limit the time for bringing an action
[**70] to a period that is shorter than the one provided by statute, so long as
the provision is reasonable. Id. at 625. However, Miller involved a contract to
provide uninsured motorists' insurance which contained a provision limiting the
time for filing a request to arbitrate claims to one year after the date of the
accident. In finding that such a provision violated public policy, the Supreme
Court held:


   [A] provision in a policy for uninsured or underinsured motorist
coverage which precludes the insured from commencing any action or
proceeding against the insurance carrier for payment of uninsured or
underinsured motorist benefits, unless the insured has demanded
arbitration and/or commenced suit within one year from the date of the
accident, is void as against public policy. Id. at the syllabus.



    [*P123] Unlike the circumstances in Miller, supra, the limitation in
paragraph 25 of the Agreement applies only to Brondes' ability to seek damages
from Habitec. The Agreement does not limit the time in which Brondes can bring
an action to recover benefits under its insurance contract with Universal.
Accordingly, we find that the policy considerations at issue in Miller do not
apply in this instance and we are [**71] not persuaded by the holding of that
case. In addition, as set forth above, the typeface used in the Agreement is not
so minute as to make its provisions unconscionable on its face, and the record
contains no additional evidence to show that limiting the time for filing a
claim to one year, rather than two years, is unreasonable.

    [*P124] For the foregoing reasons, we find that the trial court erred when
it found that the one-year limitation in paragraph 25 violated public policy and
denied Habitec's summary judgment motion as to that issue. Habitec's argument
is, therefore, well-taken.

C. Subrogation v. Indemnification

    [*P125] After the jury verdict was entered, Habitec filed a motion for JNOV
in which it argued that Universal's subrogation claim is barred by the language
in paragraph 19. On November 29, 2012, the trial court filed an opinion and
judgment entry in which it found that indemnification provisions require "'one
who is primarily liable to reimburse another who had discharged a liability for
which that other is only secondarily liable.' Krasny-Kaplan Corp. v. Flo-Tork,
Inc., 66 Ohio St.3d 75, 78, 609 N.E.2d 152 (1993)." In contrast, the trial court
stated that the concept of subrogation allows Universal to “stand in the shoes”
of appellees and directly seek to recover [**72] damages from Habitec. The
trial court concluded that the indemnification provision of paragraph 19 "does
not negate [Brondes'] separate agreement with Universal Underwriters for
subrogation," and denied Habitec's motion on that basis.

    [*P126] Similar to our review on summary judgment, our review of a trial
court's order denying a motion for a directed verdict or a motion for JNOV is de
novo. Link v. FirstEnergy Corp., 8th Dist. Cuyahoga No. 101286, 2014-Ohio-5432, ¶ 14, citing Zappola v. Rock Capital Sound Corp., 8th Dist. Cuyahoga No. 100055, 2014-Ohio-2261, ¶ 63. Accordingly, we are required to construe the evidence in the light most favorable to the non-moving party. Id.; Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976). "The motion should be denied if there is substantial evidence to support the non-moving party's side of the case and if reasonable minds could reach different conclusions." Id. "In deciding the motion, the trial court shall not weigh the evidence or the credibility of the witnesses." Id.

    [*P127] In construing the language of a contract that provides for
indemnification, a court must look at the plain and ordinary meaning of the
words used. Motorist Ins. Co. v. Shields, 4th Dist. Athens No. 00CA26, 2001 WL
243285 (Jan. 29, 2001), citing Worth v. Aetna Cas. & Sur. Co., 32 Ohio St.3d
238, 256, 513 N.E.2d 253 (1987). In this case, the indemnification provision set
forth in paragraph 19 was part of an agreement between Habitec and Brondes.
Paragraph 19 of the Agreement states:


   THIRD PARTY INDEMNIFICATON: Subscriber agrees to and shall
indemnify, defend and [**73] hold harmless, Company, its employees
and agents, for and against all claims, lawsuits and losses which
claim and/or lawsuit is brought or loss sustained by parties or
entitied [sic] other than parties to this Agreement (referred herein
as third parties). This provision shall apply to all claims, lawsuits
or damages caused by Company's negligent performance, active or
passive, express or implied, contract or warranty, contribution or
indemnification or strict or product liability of Company, its agents,
successors, assigns or employees.



    [*P128] A review of the language of paragraph 19 shows that it does nothing
to limit Universal's rights as a subrogor, since the subrogation agreement was
between Universal and Brondes, and not between Brondes and Habitec. See
Motorists Mut. Ins. Co. v. Hall, 10th Dist. Franklin No. 02AP-1256,
2005-Ohio-3811, ¶ 15. Accordingly, as a matter of law, the trial court correctly
denied Habitec's motion for JNOV on that particular issue.5 However, Ohio courts
have held that "[a] subrogated insurer stands in the shoes of the
insured-subrogor and has no greater rights than those of its insured-subrogor.
Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 42, 537
N.E.2d 624 (1989)." Nationwide Mut. Fire Ins. Co. v. Buckley, 9th Dist. Medina
No. 06CA0013-M, 2006-Ohio-5362, ¶ 14. Accordingly, as set forth above, Brondes'
rights to collect damages from Habitec [**74] are limited by the terms of the
Agreement.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -5   The issue
of whether Habitec is entitled to indemnification by Brondes is not before this
court.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P129] Upon consideration of the foregoing, we find that the trial court
erred as a matter of law when it found that paragraphs 21 and 25 were
unconscionable and/or violated public policy, and denied Habitec's motion for
summary judgment on that basis. We further find that the trial court correctly
concluded that the indemnification provision contained in paragraph 19 does not
bar Universal from asserting a subrogation claim against Habitec, subject to the
limitations expressed elsewhere in the Agreement.

    [*P130] This court has reviewed the record as to the issues raised in
Habitec's first assignment of error and, after reviewing all of the relevant,
admissible evidence and construing it most strongly in favor of appellees, finds
that Habitec's first assignment of error is well-taken in part and not
well-taken in part.

    [*P131] In its second assignment of error, Habitec asserts that the trial
court erred when it failed to enter judgment in Habitec's favor as a matter of
law. In support, Habitec argues that the record contains insufficient competent,
credible evidence to [**75] support the jury's finding that Habitec's actions
were the proximate cause of Brondes' additional damages. Specifically, Habitec
asserts that Rick Spencer could not testify as to the amount of damages due to a
late reporting of the fire; J. Moore stated that he never actually calculated
the amount of damage due to the fire; AFT Agent D. Moore stated that he did not
know the requirements for fighting a fire but, "hopefully," earlier detection
would have resulted in less damage; Dr. Jason Floyd could not state what effect
earlier detection would have had on damages; and the testimony of various people
who smelled smoke is not sufficient to prove that the smoke came from the
Brondes fire. Also, Habitec asserts that the record contains no expert testimony
on the issue of "additional damage."

    [*P132] In its November 29, 2012 judgment entry, after reviewing the
evidence presented by both parties at trial, the trial court found that
appellees presented “sufficient credible evidence for the jury to consider” as
to the issue of proximate cause. As set forth above, in reviewing the trial
court's decision, we must conduct a de novo review, construing the evidence most
favorably in light of the non-moving [**76] party. Link v. FirstEnergy Corp.,
8th Dist. Cuyahoga No. 101286, 2014-Ohio-5432, supra, at ¶ 13.

    [*P133] The Ohio Supreme Court has stated that:


   "[I]t is generally true that, where an original act is wrongful or
negligent and in a natural and continuous sequence produces a result
which would not have taken place without the act, proximate cause is
established, and the fact that some other act unites with the original
act to cause injury does not relieve the initial offender from
liability." One is thus liable for the natural and probable
consequences of his negligent acts. Strother v. Hutchinson, 67 Ohio
St.2d 282, 287, 423 N.E.2d 467 (1981), quoting Foss-Schneider Brewing
Co. v. Ulland, 97 Ohio St. 210, 119 N.E. 454 (1918).

   [I]n determining what is direct or proximate cause, the rule
requires that the injury sustained shall be the natural and probable
consequence of the negligence alleged; that is, such consequence as
under the surrounding circumstances of the particular case might, and
should have been foreseen or anticipated by the wrongdoer as likely to
follow his negligent act. Id., quoting Miller v. Baltimore & Ohio
Southwestern Rd. Co., 78 Ohio St. 309, 325, 85 N.E.499 (1908).



    [*P134] Ordinarily, proximate cause is a question of fact for the jury.
Strother, supra, at 288, citing Clinger v. Duncan, 166 Ohio St. 216, 223, 141
N.E.2d 156 (1957). However, "where no facts are alleged justifying any
reasonable inference that the acts or failure of the defendant constitute the
proximate cause of the injury, there is nothing for the jury [to decide], and,
as a matter of law, [**77] judgment must be given for the defendant." Kemerer
v. Antwerp Bd. of Edn., 105 Ohio App.3d 792, 796, 664 N.E.2d 1380 (3d Dist.1995)
; quoting Case v. Miami Chevrolet Co., 38 Ohio App. 41, 45-46, 175 N.E.2d 224
(1st Dist.1930); Vermett v. Fred Christen & Sons Co., 138 Ohio App.3d 586, 612,
741 N.E.2d 954 (6th Dist.2000).

    [*P135] Expert testimony as to the elements of proximate cause is not
required in every case to establish negligence. The need for expert testimony
depends on the nature of the negligence claim and the circumstances. Bernardini
v. Fedor, 9th Dist. Wayne No. 12CA0063, 2013-Ohio-4633, ¶ 6, citing Yates v.
Brown, 185 Ohio App.3d 742, 2010-Ohio-35, 925 N.E.2d 669, ¶ 18 (9th Dist.).
However, expert testimony is necessary whenever a factual issue is beyond the
ordinary, common and general knowledge and experience of a layperson. Ramage v.
Cent. Ohio Emergency Servs., Inc., 64 Ohio St.3d 97, 103, 592 N.E.2d 828 (1992),
and Darnell v. Eastman, 23 Ohio St.2d 13, 261 N.E.2d 114 (1970), syllabus.

    [*P136] An expert testifying on the issue of proximate cause must state an
opinion with respect to the causative event in terms of probability. Stinson v.
England, 69 Ohio St.3d 451, 633 N.E.2d 532 (1994), paragraph one of the
syllabus. Nonetheless, no “magic words” are required. Rather, the expert's
testimony, when considered in its entirety, must be equivalent to an expression
of probability. Charlesgate Commons Condo. Assn. v. W. Reserve Group, 6th Dist.
Lucas No. 2014-Ohio-4342, ¶ 14; Frye v. Weber & Sons Serv. Repair, Inc., 125
Ohio App.3d 507, 514-515, 708 N.E.2d 1066 (8th Dist.1998).

    [*P137] As set forth above, testimony was presented at the Daubert hearing
and at trial as to how and where Habitec placed the heat detectors in the
Brondes facility. Specifically, although several witnesses did not know where
the detectors were placed, Long testified that they were placed on the bottoms
of trusses spanning the quick lube area, at least six feet below the ceiling.
Rick Spencer testified that a two-hour delay in [**78] reporting the fire
contributed to the damage, and that placing the detectors on the bottoms of the
trusses added to the delay. In his deposition, D. Moore stated that the
detectors would have activated sooner if they were placed closer to the ceiling.
J. Moore said the installation did not comply with NFPA safety standards, and
the delay in detecting the fire resulted in more damage. Other witnesses
testified as to the amount of the actual damages.

    [*P138] On consideration of the foregoing, we agree with the trial court's
conclusion that the record contains sufficient competent, credible evidence to
allow the jury to determine whether Habitec's actions proximately caused
additional damages to the Brondes facility by delaying the detection of the
fire. Accordingly, the trial court did not err by denying Habitec's motion for a
directed verdict on that issue. Habitec's second assignment of error is not
well-taken.

   In its third assignment of error, Habitec asserts that the trial court erred
when it refused to instruct the jury as to the defense of superseding,
intervening cause. In support, Habitec argues that the requested instruction was
a correct statement of the law, reasonable minds might [**79] have concluded
that Simplex's actions were “new” and "independent," and, if Simplex had
performed its duties correctly, "the purported failure of the system would have
been avoided." Habitec further argues that, because the trial court did not give
the instruction, Habitec was precluded from obtaining a set-off of the $375,000
settlement paid by Simplex.

    [*P139] Generally, a requested jury instruction should be given if it is "a
correct statement of the law as applied to the facts in a given case." Tabatha
N.S. v. Zimmerman, 6th Dist. Lucas No. L-06-1252, 2008-Ohio-1639, ¶ 44, citing
Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 575 N.E.2d 828 (1991). In
addition, this court has stated that:


   "[A] court's instructions to the jury should be addressed to the
actual issues in the case as posited by the evidence and the
pleadings." State v. Guster, 66 Ohio St.2d 266, 271, 421 N.E.2d 157
(1981). Further, a determination as to jury instructions is a matter
left to the sound discretion of the trial court. Id. "In reviewing a
record to ascertain the presence of sufficient evidence to support the
giving of an * * * instruction, an appellate court should determine
whether the record contains evidence from which reasonable minds might
reach the conclusion sought by the instruction." Feterle v. Huettner,
28 Ohio St.2d 54, 275 N.E.2d 340 (1971), at syllabus. Id.



    [*P140] In Berdyck v. Shinde, 66 Ohio St.3d 573, 613 N.E.2d 1040 (1993),
the Ohio Supreme Court set forth the following rule as to the defense of
superseding, intervening cause: [**80]


   The intervention of a responsible human agency between a wrongful
act and an injury does not absolve a defendant from liability if that
defendant's prior negligence and the negligence of the intervening
agency co-operated in proximately causing the injury. If the original
negligence continues to the time of the injury and contributes
substantially thereto in conjunction with the intervening act, each
may be a proximate, concurring cause for which full liability may be
imposed. * * *

   In order to relieve a party of liability, a break in the chain of
causation must take place. A break will occur when there intervenes
between an agency creating a hazard and an injury resulting therefrom
another conscious and responsible agency which could or should have
eliminated the hazard. * * * However, the intervening cause must be
disconnected from the negligence of the first person and must be of
itself an efficient, independent, and self-producing cause of the
injury. Id. at 584-585.



    [*P141] In Ohio, a break in the causal connection between the original
negligent act "is broken and superseded by later negligence only if the latter
act is both 'new' and 'independent.'" Tabatha N.S., supra, at ¶ 50. In this
case, however, [**81] Habitec disputes appellees' claim that it was negligent
in the first place. In addition, the evidence presented shows only that Simplex
inspected a system that was installed by Habitec. Accordingly, while the
requested instruction may be a correct statement of the law, the record does not
contain evidence to show that Simplex performed any “new” or “independent” acts
that, in themselves, may have caused the alarm system to fail.

    [*P142] On consideration of the foregoing, we find that the trial court's
decision not to provide the requested instruction was not unreasonable,
arbitrary or unconscionable and therefore did not constitute an abuse of
discretion. Habitec's third assignment of error is not well-taken.

    [*P143] In its fourth assignment of error, Habitec asserts that the trial
court erred by: (1) allowing Phil Brondes, Sr. to be added as a new plaintiff
after the expiration of the statute of limitations, and (2) later denying
Habitec's motion for JNOV on that issue because "justice requires it." In
support, Habitec argues that Brondes, Sr.'s negligence claim, which was brought
four years after the fire, is barred by a two-year statute of limitation.

    [*P144] The trial court's decision to grant or deny [**82] a motion to add
a party will not be overturned on appeal absent a finding of abuse of
discretion. Landis v. Grange Mut. Ins. Co., 95 Ohio App.3d 422, 429, 642 N.E.2d
679 (6th Dist.1994), citing Peterson v. Teodosio, 34 Ohio St.2d 161, 297 N.E.2d
113 (1973). An abuse of discretion connotes that the trial court's attitude in
reaching its decision was unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

    [*P145] Pursuant to Civ.R. 15(A), a pleading may be amended either: (1) as
a matter of course any time before a responsive pleading is filed, or (2) by
leave of court "when justice so requires." The process is further addressed in
Civ.R. 15(C), which governs the relation back of amended pleadings as follows:


   Whenever the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the amendment
relates back to the date of the original pleading. An amendment
changing the party against whom a claim is asserted relates back if
the foregoing provision is satisfied and, within the period provided
by law for commencing the action against him, the party to be bought
in by amendment (1) has received such notice of the institution of the
action that he will not be prejudiced in maintaining his defense on
the merits, and (2) knew or should have known that, but for a mistake
concerning [**83] the identity of the proper party, the action would
have been brought against him. * * *



    [*P146] A careful review of the language used in Civ.R. 15(C) shows that it
governs three different sets of circumstances. The first two involve the
addition of a “claim” or "defense." The third scenario involves the later
addition of a defendant. In no case does the rule refer to the addition of a
"plaintiff."

    [*P147] The Ohio Supreme Court has held that "[t]he primary purpose of
Civ.R. 15(C) is to preserve actions which, through mistaken identity or
misnomer, have been filed against the wrong person." Littleton v. Good Samaritan
Hosp. & Health Ctr., 39 Ohio St.3d 86, 101, 529 N.E.2d 449 (1988). Relation back
is not generally allowed in cases where "a new plaintiff brings a new cause of
action." Id. Under both Federal and Ohio law, the "chief consideration of policy
is that of the statute of limitations." Shefkiu v. Worthington Industries, Inc.,
6th Dist. Fulton No. F-13-014, 2014-Ohio-2970, ¶ 23. For that reason, in order
for an amendment to relate back to the original date the complaint was filed
pursuant to Civ.R. 15(C), it must be filed within the period for bringing such
an action. Unless specifically prohibited by statute, such time period may be
reasonably established by a contract between the parties. Kraly v. Vannewkirk,
69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). As set forth above, we have
determined that the one-year [**84] limitation set forth in paragraph 25 of the
Agreement is reasonable.

    [*P148] In other cases involving the addition of a new party plaintiff,
some courts have considered Civ.R. 17(A), which provides, in relevant part,
that:


   No action shall be dismissed on the ground that it is not
prosecuted in the name of the real party interest until a reasonable
time has been allowed after objection for ratification of commencement
of the action by, or joinder or substitution of, the real party in
interest. Such ratification, joinder, or substitution shall have the
same effect as if the action had been commenced in the name of the
real party in interest.



    [*P149] In Shefkiu, supra, this court addressed the application of Civ.R.
15(C) and 17(A) to the addition of a plaintiff after the statute of limitation
had expired. In that case, we held that neither is available where, as in this
case, the party commencing the litigation lacks standing. Id. at ¶ 27.

    [*P150] Standing is defined as "[a] party's right to make a legal claim or
seek judicial enforcement of a duty or right." Ohio Pyro, Inc. v. Ohio Dept. of
Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, quoting
Black's Law Dictionary (8th Ed.2004). "The Ohio Supreme Court has recently
explained that standing is required to invoke the jurisdiction of the trial
court, and that, therefore, it is [**85] determined as of the filing of the
complaint." BK Builders, Ltd. v. The E. Ohio Gas Co., 5th Dist. Stark No.
2013CA00210, 2014-Ohio-3850, ¶ 28, citing Fed. Home Loan Mtge. Corp. v.
Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 3.

    [*P151] In its decision, the trial court stated that Brondes, Sr.'s
negligence claim should relate back to the original filing of the complaint
because it "is based on the same event or transaction as stated in the original
pleading." However, as set forth above, in support of their motion to add
Brondes, Sr. as an additional plaintiff, appellees argued that the cause of
action which formed the basis of Brondes, Sr.'s negligence claim did not exist
at the time the original complaint was filed.

    [*P152] On consideration we find that, at the time the original complaint
was filed, Brondes, Sr. did not have standing to bring a negligence claim
against Habitec. We further find that by the time Brondes, Sr. attempted to file
his claim, the one-year limitation period under the Agreement had expired.
Accordingly, the trial court erred as a matter of law, and therefore abused its
discretion, when it granted appellees' motion to amend the original complaint
and allow Brondes, Sr.'s claim to relate back to the original filing date
pursuant to Civ.R. 15(C). Habitec's fourth assignment of error is well-taken.
Having disposed of Habitec's assignments of error, we will [**86] now address
appellees' cross-assignments of error.

    [*P153] In their first cross-assignment of error, appellees assert that the
trial court erred when it granted Habitec's motion for JNOV and vacated the
jury's award for “replacement” rent based on the increased costs of building a
new, bigger dealership. In their second cross-assignment of error, appellees
assert that the trial court erred when it substituted its own opinion for that
of the jury and found that the arrangement between Brondes and BLM, which fixed
the amount of rent for the new dealership, was not an arm's length transaction.
In their third cross-assignment of error, appellees assert that the trial court
erred by granting the motion for JNOV because Habitec failed to object to the
issue before it was given to the jury. Since all three of these
cross-assignments of error are related, they will be considered together.

    [*P154] In support of its first three cross-assignments of error, appellees
argue that the jury's award of damages for increased rent was consistent with:
(1) the evidence and testimony presented at trial, and (2) Ohio law, which
allows for recovery of increased rent as damages. Appellees further argue that
the court's ruling [**87] was inconsistent with its own earlier decisions,
which denied Habitec's prior attempts to have the issue of increased rent
dismissed and fashioned specific interrogatories on that issue for the jury's
consideration. Finally, appellees argue that the jury's answers to the
interrogatories were internally consistent with the award, and Habitec's failure
to prevent the issue from being presented to the jury amounts to a waiver of the
issue on appeal.

    [*P155] We note initially that, based on our determinations of Habitec's
assignments of error, the issue of the amount of the jury award, to the extent
that it exceeds $250, is moot. However, in the interest of clarity, we will
consider the legal issue of whether the trial court erred in granting Habitec's
motion for JNOV.

    [*P156] On appeal, "[w]e review a trial court's ruling on a motion for
judgment notwithstanding the verdict (“JNOV”) de novo." Seese v. Ohio Bur. of
Workers' Comp., 11th Dist. Trumbull No. 2009-T-0018, 2009-Ohio-6521, ¶ 11.


   Where a party seeks JNOV, "[t]he evidence adduced at trial and the
facts established by admissions in the pleadings and in the record
must be construed most strongly in favor of the party against whom the
motion is made, and, where there is substantial [**88] evidence to
support his side of the case, upon which reasonable minds may reach
different conclusions, the motion must be denied. Neither the weight
of the evidence nor the credibility of the witnesses is for the
court's determination in [making its] ruling * * *." Id., citing Posin
v. A.B.C. Motor Court Hotel, 45 Ohio St.2d 271, 275, 344 N.E.2d 334
(1976).



    [*P157] A motion for JNOV presents questions of law, not fact, "even though
in deciding such a motion, it is necessary to review and consider the evidence."
Id., citing Blatnik v. Dennison, 148 Ohio App.3d 494, 504, 774 N.E.2d 282 (11th
Dist.2002), quoting O'Day v. Webb, 29 Ohio St.2d 215, 280 N.E.2d 896 (1972),
paragraph three of the syllabus.

    [*P158] In its decision on Habitec's post-verdict motions, issued on
November 29, 2012, the trial court found, based on evidence presented at trial,
that Brondes, Sr. and Brondes, Jr. were "the sole decision makers for Brondes
Ford, and Brondes, Jr. is the sole shareholder in BLM * * *." The trial court
further found that the new dealership was significantly superior to the old
facility, and appellees' "own appraiser agreed that the lease is not an arm's
length agreement." Accordingly, the trial court concluded that appellees failed
to present sufficient evidence at trial to show that the $48,000 rent payment
from Brondes to BLM was an arm's length transaction, and granted Habitec's
motion for JNOV pursuant to this [**89] court's decision in Ma Chere Hair
Academy v. The Rolo Co., 6th Dist. Lucas No. L-85-287, 1986 WL 7111 (June 20,
1986). Upon reviewing the record we agree with the trial court's findings, and
further find that evidence was presented to show that the amount of the “rent”
paid to BLM by Brondes was set to correspond to the amount of the mortgage
payments for the new dealership.

    [*P159] As to whether the issue was waived on appeal, the record shows that
Habitec filed pre-trial motions to remove the issue of increased rent from the
jury's consideration, which the trial court denied. Habitec's decision to not
challenge the form and content of the jury instructions and interrogatories did
not preclude a later challenge to the jury's verdict. See Bicudo v. Lexford
Properties, Inc., 157 Ohio App.3d 509, 2004-Ohio-3202, 812 N.E.2d 315, ¶ 43-44
(7th Dist).

    [*P160] On consideration of the foregoing, and after construing the
evidence most strongly in favor of appellees we find, as a matter of law, that
the lease between BLM and Brondes was not an arm's length transaction and
Habitec did not waive the issue for purposes of appeal. Appellees' first three
cross-assignments of error are not well-taken.

    [*P161] In their fourth cross-assignment of error, appellees assert that
the trial court erred by denying their request for prejudgment interest. In
support, [**90] appellees argue collectively that they are entitled to
prejudgment interest pursuant to R.C. 1343.03(A), which states that prejudgment
interest begins to accrue when a payor's obligation becomes "due and payable
under the contract." Accordingly, they argue that: (1) Universal is entitled to
$901,436.39 in statutory interest on the jury's award of $1,739,584.99, (2)
Brondes is entitled to $840,854.79 in statutory interest on the jury's award of
$2,300,000, from August 1, 2004 until March 25, 2011, and (3) Phil Brondes, Sr.,
is entitled to $23,360.68 in statutory interest on the jury's verdict of
$40,700.00 from May 27, 2002, until March 25, 2011.

    [*P162] As with appellees' first three cross-assignments of error, based on
our determinations of Habitec's assignments of error, the issue of prejudgment
interest on the jury award to appellees, to the extent that the judgment exceeds
$250, is moot. However, in the interest of clarity, we will consider the legal
issue of whether the trial court erred by not awarding prejudgment interest in
this case.

    [*P163] Generally, prejudgment interest "acts as compensation and serves
ultimately to make the aggrieved party whole." Royal Elec. Constr. Corp. v. Ohio
State Univ., 73 Ohio St.3d 110, 117, 652 N.E.2d 687 (1995). The purpose of
prejudgment interest is to compensate [**91] the plaintiff "for the period of
time between the accrual of the claim and the judgment, regardless of whether
the judgment is based upon a claim that was liquidated or unliquidated, and even
if the amount due was not capable of ascertainment until determined by the
court." Gates v. Praul, 10th Dist. Franklin No. 10AP-784, 2011-Ohio-6230, ¶ 60,
citing Royal Elec. Constr. Corp. at syllabus.

    [*P164] The Supreme Court of Ohio has "specifically and clearly declined to
establish a bright-line rule regarding the accrual date of prejudgment interest
but rather left such a determination to the trial courts on a case-by-case
basis." Gates at ¶ 62, quoting Miller v. Gunckle, 96 Ohio St.3d 359, fn. 4, 775
N.E.2d 475 (2002). (Additional citations omitted.)

    [*P165] On appeal, appellees argue that prejudgment interest should be paid
for breach of contract pursuant to R.C. 1343.03(A). The statute provides, in
relevant, part, that:


   [W]hen money becomes due and payable upon any bond, bill, note, or
other instrument of writing, upon any book account, upon any
settlement between parties, upon all verbal contracts entered into,
and upon all judgments, decrees, and orders of any judicial tribunal
for the payment of money arising out of tortious conduct or a contract
or other transaction, the creditor is entitled to interest [**92] at
the rate per annum determined pursuant to section 5703.47 of the
Revised Code, unless a written contract provides a different rate of
interest in relation to the money that becomes due and payable, in
which case the creditor is entitled to interest at the rate provided
in that contract. * * *



    [*P166] Once judgment is rendered for the plaintiff on a contract claim,
the only remaining issue to be resolved by the trial court "with respect to
prejudgment interest under R.C. 1343.03(A) is how much interest is due."
Zunshine v. Cott, 10th Dist. No. 06AP-868, 2007-Ohio-1475, ¶ 26. However, "[t]he
trial court must make factual determinations as to when interest commences to
run, based on when the claim became due and payable, and as to what legal rate
of interest applies." Id., citing Dwyer Elec., Inc. v. Confederated Bldrs., Inc.
, 3d Dist. No. 3-98-18, 1998 WL 767442 (Oct. 29, 1998). "[A]lthough the right to
prejudgment interest on a contract claim is a matter of law, pursuant to R.C.
1343.03(A), the amount awarded is based on the trial court's factual
determinations of the accrual date of the plaintiff's claim and the applicable
interest rate." Id.; Bell v. Teasley, 10th Dist. Franklin No. 10AP-850,
2011-Ohio-2744, ¶ 28.

    [*P167] On appeal, the trial court's decision will not be overturned absent
a finding of an abuse of discretion. Bell, supra. An [**93] abuse of discretion
connotes more than a mere error of law or judgment, instead requiring a finding
that the trial court's decision was unreasonable, arbitrary, or unconscionable.
Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 276.

    [*P168] In this case, the trial court found that the jury's award was based
on "negligence and/or breach of contract, and [was] not specifically for breach
of contract." In addition, the trial court found that appellees did not "provide
* * * argument or evidence of damages that might be read back to the contract as
a contractual debt owed * * *." Accordingly, the trial court found that
appellees were not entitled to any prejudgment interest pursuant to R.C.
1343.03(A).

    [*P169] While the total amount of appellees' claims is limited by the terms
of the Agreement as set forth above, the jury did find liability on the part of
Habitec that was due, at least in part, to breach of contract. We further find
that the trial court denied appellees' request for prejudgment interest without
stating when appellees' claims began to accrue and therefore became "due and
payable," as required by R.C. 1343.03(A) and applicable Ohio case law, and
without stating the applicable legal rate of interest. Accordingly, on
consideration, we find that the trial court abused [**94] its discretion in
this instance, and appellees' fourth cross-assignment of error is well-taken.

    [*P170] In their fifth cross-assignment of error, appellees assert that the
trial court erred by awarding an insufficient amount of costs as reimbursement
for their deposition and hearing transcript charges. In support, appellees argue
that they are entitled to reimbursement on $1,644.50, the cost of preparing a
transcript of the Daubert hearing, and $16,873.47 "in other expenses and fees
for their five expert witnesses to prepare for, appear, testify, and travel to
and from the two day hearing." Appellees further argue that those witnesses'
testimony was necessary "to defeat Habitec's motions for summary judgment,
motions to dismiss, motions in limine, and for directed verdict."

    [*P171] Generally, the trial court's decision to deny or award expenses as
costs will not be overturned on appeal absent an abuse of discretion. Jackson v.
Sunforest OB-GYN Assoc., Inc., 6th Dist. Lucas No. L-08-1133, 2008-Ohio-6170, ¶
7. However where, as here, the issue is whether or not the expense in question
is actually a "cost," the issue presented is a question of law, which we must
review de novo. Jackson, supra. Kmotorka v. Wylie, 6th Dist. Wood Nos.
WD-11-018, WD-11-026, 2013-Ohio-321, 2013 WL 425866, ¶ 51.

    [*P172] Civ.R. 54(D) states that "[e]xcept when express provision [**95]
therefor is made either in a statute or in these rules, costs shall be allowed
to the prevailing party6 unless the court otherwise directs." The Ohio Supreme
Court has held that the “costs” allowed by Civ.R. 54(D) "are limited to those
allowed by statute." Jackson, supra, at ¶ 8, citing Williamson v. Ameritech
Corp., 81 Ohio St.3d 342, 691 N.E.2d 288 (1998), syllabus. Those “costs” are
generally defined as "'the statutory fees to which officers, witnesses, jurors
and others are entitled for their services in an action and which the statutes
authorize to be taxed and included in the judgment.'" (Emphasis added.)
Williamson, supra, at 290, quoting Benda v. Fana, 10 Ohio St.2d 259, 227 N.E.2d
197 (1967), paragraph one of the syllabus.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -6   For
purposes of deciding the issue presented herein, and based on our determinations
as to Habitec's second and third assignments of error, we presume that appellees
were the “prevailing parties” in the underlying litigation.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P173] In addition, pursuant to R.C. 2303.21:


   [w]hen it is necessary in an appeal, or other civil action to
procure a transcript of a judgment or proceeding, or exemplification
of a record, as evidence in such action or for any other purpose, the
expense of procuring such transcript or exemplification shall be taxed
in the bill of costs and recovered as in other cases.



    [*P174] This court has held that transcripts [**96] that are filed and
used for any purpose that was necessary can be awarded as costs. Atkinson v.
Toledo Area Reg. Transit Auth., 6th Dist. Lucas No. L-05-1106, 2006-Ohio-1638, ¶
11, citing Raab v. Wenrich, 2d Dist. Montgomery No. 19066, 2001 WL 1782785 (Feb.
22, 2001). As noted by the trial court, Lucas County Court of Common Pleas
Gen.R. 5.07(C) requires that a transcript of a deposition must be filed if it
will be used as evidence at trial. In addition, in Boomershine v. Lifetime
Capital, Inc., 182 Ohio App.3d 495, 2009-Ohio-2736, 913 N.E.2d 520 (2d Dist.),
the Second District Court of Appeals, citing Keaton v. Pike Comm. Hosp., 125
Ohio App.3d 153, 705 N.E.2d 734 (4th Dist.1997), held that deposition expenses
may be recovered if they are used to support or oppose a motion for summary
judgment, where no trial was held. Id. at ¶ 13. The “evidence” referred to in
Civ.R. 56(C) includes "depositions,“ ”affidavits,“ and ”transcript of evidence,"
the “costs” of which may, pursuant to the trial court's discretion, be taxed to
a non-prevailing party. Id. This court has interpreted Boomershine to mean that
"the cost of depositions which are filed in an action and are 'necessary to the
trial' may be taxed as 'costs' pursuant to Civ.R. 54(D)." Kmotorka, supra, at ¶
53.

    [*P175] "[I]n seeking costs under Civ.R. 54(D), the prevailing party has
the burden of establishing that the expenses it seeks to have taxed as costs are
authorized by applicable law." Naples v. Kinczel, 8th Dist. Cuyahoga No. 89138,
2007-Ohio-4851, ¶ 6. Once this burden is established, the non-prevailing party
has the burden to overcome this presumption. Id.

    [*P176] In its decision, after considering the parties' [**97] motions and
hearing evidence, the trial court identified eight transcripts that were
actually filed by appellees pursuant to Lucas County Court of Common Pleas
Gen.R. 5.07(C) and used in some capacity during the trial, and assessed costs of
$1,917.40 for those items.7 However, the trial court further found that
appellees did not meet their burden to establish that the additional “costs” of
paying expert witnesses to appear and testify at the Daubert hearing and
preparing a transcript of that hearing were "necessary." Our review of the
record and the arguments presented on appeal confirms the trial court's finding,
particularly in light of our above determination that appellees' recovery is
limited by the terms of the Agreement. Accordingly, we cannot say that the court
abused its discretion by refusing to award those items to appellees as “costs”
pursuant to Civ.R. 54(D) and R.C. 2303.21. Appellees' fifth cross-assignment of
error is not well-taken.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -7   The
depositions identified in the trial court's judgment entry dated November 29,
2012, were those of Dave Gibel (invoice 1125 for $90), Bobby D. (invoice 1264
for $285), Phil Brondes, Jr. (invoice 1264 for $290), Dennis Jackson (invoice
1357 for $120), Corky Hong [**98] (invoice 857 for $189), Michael Bay (invoice
dated 07/06/06 for $56.40), D. Moore video (invoice 11973 for $507.50), and
William Bojarski (invoice 61360 for $379.50).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P177] The judgment of the Lucas County Court of Common Pleas is hereby
affirmed, in part, and reversed, in part. The case is remanded to the trial
court for further proceedings consistent with this decision. Appellant and
appellees are ordered to share the costs of this appeal pursuant to App.R. 24.

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

On June 20, 2015 at 7:11 AM LexisNexis Email Delivery <lexisnexis@prod.lexisnexis.com> wrote:



1 of 1 DOCUMENT

Brondes Ford, Inc., et al, Appellees/Cross-Appellants v.
Habitec Security, et al., Appellant/Cross-Appellee

Court of Appeals No. L-12-1358

COURT OF APPEALS OF OHIO, SIXTH APPELLATE DISTRICT, LUCAS
COUNTY

2015-Ohio-2441; 2015 Ohio App. LEXIS 2346


June 19, 2015, Decided

PRIOR HISTORY:     [**1] Trial Court Nos. CI0200403303, CI0200801281.

DISPOSITION:    Judgment affirmed, in part, and reversed, in part.

COUNSEL: Peter C. Munger, Thomas G. Mackin and Randy L. Meyer, for
appellees/cross-appellants.

John T. McLandrich and Frank H. Scialdone, for appellant/cross-appellee.

JUDGES: OSOWIK, J. Arlene Singer, J., Thomas J. Osowik, J., James D. Jensen, J.,
CONCUR.

OPINION BY: Thomas J. Osowik.

OPINION


DECISION AND JUDGMENT

   OSOWIK, J.

    [*P1] This is an appeal filed by appellant/cross-appellee, Habitec Security
("Habitec"), from summary judgment rulings issued by the Lucas County Court of
Common Pleas on January 4, 2007, and a jury verdict issued on September 22,
2011, and a cross-appeal filed by appellees/cross-appellants, Brondes Ford, Inc.
("Brondes"), Phil Brondes, Sr. and Universal Underwriters, from the trial
court's post-verdict rulings issued on November 20, 2012. The relevant,
undisputed facts are as follows.

    [*P2] On September 14, 1993, appellee/cross-appellant, Phil Brondes, Sr.
("Brondes, Sr."), the owner, vice president and majority shareholder of Brondes,
a 60-year-old Ford dealership located at 5715 Secor Road in Toledo, Ohio,
entered into a "Commercial Lease Agreement" ("Agreement") with Habitec. Pursuant
to the Agreement, Habitec was to [**2] provide a fire detection system and
monitoring services for Brondes which, at the time, housed a showroom, offices
and a large bay area ("quick lube") that was used to service vehicles.

    [*P3] The Agreement stated that Habitec would supply and install the
following equipment at Brondes' location: one Silent Knight 4724 master control
panel with rechargeable battery back-up, one 24-hour digital communicator, one
zone annunciator, five smoke detectors, 56 heat detectors, and five strobe
horns. The Agreement further stated that Brondes agreed to pay Habitec $1,500 to
install the equipment, followed by lease payments of $99 per month for five
years. The fire detection system was installed by Habitec's employees.

    [*P4] Over the next several years the system was periodically inspected by
both Habitec and the city of Toledo. During that time, Brondes renovated several
areas of the building, and some of the heat detectors were removed and then put
back in place. In March 2002, another alarm service company, Simplex Grinnel
Fire and Security ("Simplex"), was hired by Brondes to inspect the system.
Simplex performed a virtual check of some of the heat detectors. However, it did
not physically check each [**3] one of the heat detectors to see if they were
functioning properly, and did not check any of the detectors in the quick lube
area.

    [*P5] On May 27, 2002, Memorial Day weekend, at approximately 1:48 a.m.,
Habitec's alarm system reported a fire at Brondes' facility. The Toledo Fire
Department arrived at the scene within eight minutes of the alarm sounding but,
by then, the building was totally engulfed in flames. When the fire was
completely extinguished, the building was determined to be a total loss.
Although several theories were proposed as to the origin of the fire, the exact
cause was never determined.

    [*P6] On May 25, 2004, Brondes and its insurer, Universal Underwriters
Insurance Company ("Universal"), filed a complaint in the Lucas County Court of
Common Pleas against Habitec, Simplex, the city of Toledo fire inspection
department, and other parties,1 in which they set forth claims of negligent
design, manufacture, installation and service of the alarm system by Habitec.
The complaint further alleged that, as a result of Habitec's actions, Brondes
and Universal suffered in excess of $5 million in combined damages. The amount
of the damage claim was based, in part, on the cost of moving the [**4]
location of the dealership to newly purchased property and greatly expanding the
size of the building.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1   As stated
above, all defendants except Habitec were dismissed before trial and are not
parties to this appeal.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P7] Habitec filed an answer on June 15, 2004, and Simplex filed its
answer on July 6, 2004. On August 2, 2004, the trial court granted summary
judgment to the city of Toledo and dismissed Universal's claim against the city.
On August 12, 2004, Brondes filed a motion to designate the case as complex
litigation, which the trial court granted on September 15, 2004.

    [*P8] On August 22, 2006, Simplex and Habitec filed a joint motion for
summary judgment in which they asked the trial court to limit Brondes' damages
to the property's diminished value. In support, Simplex and Habitec argued that
their liability, if any, should be based on the difference in fair market value
of the dealership before and after the fire, not the difference between the
value of the 10,000 square foot, 60-year-old dealership that burned and the new,
42,000 square-foot building that Brondes relocated and built to replace the
original structure.

    [*P9] Habitec and Simplex filed a joint motion for summary judgment on
September [**5] 1, 2006, in which they argued that Brondes and Universal failed
as a matter of law to allege facts that prove Habitec either caused the fire or
contributed to their damages. On September 7, 2006, Habitec filed a separate
motion for summary judgment and memorandum in support, in which Habitec asserted
that it is either not liable to Brondes and Universal in damages, or the damages
are limited by the terms of the Agreement. In support, Habitec argued that: (1)
Pursuant to section 25 of the Agreement, any legal action arising out of the
Agreement must be brought within one year, (2) Pursuant to section 19 of the
Agreement, Brondes agreed to hold Habitec harmless from any third party claims,
including those of Underwriters, and (3) Section 21 of the Agreement limits
Habitec's liability in damages, if any, to $250.

    [*P10] Attached to Habitec's motion was the affidavit of its salesman,
Robert Seymour, who stated that Phil Brondes, Sr. signed the Agreement, and a
reduced-size copy of the original, legal-sized Agreement.

    [*P11] On September 8, 2006, Habitec filed yet another motion for summary
judgment, in which it argued that the record contains no evidence to show that
Habitec negligently manufactured, [**6] designed, sold, installed, serviced, or
inspected the alarm system that was installed at the Brondes dealership. In
support, Habitec argued that Brondes and Universal did not meet their burden to
show that either Habitec's alleged negligence or a product defect caused the
fire.

    [*P12] On September 18, 2006, Habitec filed four motions in limine. The
first was a motion to exclude any evidence by lay and/or expert witnesses at
trial concerning a causal connection between witnesses' reports that they
smelled smoke, and the fire that was later reported at Brondes' dealership.
Habitec also filed a motion in which it asked the trial court to prohibit
Brondes and Universal from presenting evidence of property damage relating to
the fire. In addition, Habitec filed motions to exclude both the expert
testimony of Gary Wymer as to the actual cause of the fire, and any evidence
related to "fire modeling, Fire Dynamics Simulator ("FDS") and/or Smokeview
technology" which it characterized as "unfounded" and "speculative."

    [*P13] On September 25, 2006, Brondes and Universal filed a combined
memorandum in opposition to Habitec's and Simplex's motions for summary
judgment, in which they argued that summary judgment [**7] is not appropriate
in this case because: (1) negligence and proximate cause are issues to be
resolved by the trier of fact, and (2) Habitec and Simplex are "negligent per
se" for violating applicable statutes. On October 6, 2006, Habitec filed a
combined reply in support of all of its summary judgment motions, in which it
argued that: (1) Brondes and Universal did not meet their burden to establish
the actual cause of the fire, (2) the one-year limitation period established by
the Agreement is enforceable and does not violate public policy, (3) the clause
in the Agreement limiting Habitec's liability to $250 is not unconscionable on
its face, and (4) damages claimed by Brondes to rebuild the dealership are
outrageous and not related to the fair market value of the original dealership.

    [*P14] On October 17, 2006, four years after the fire, Brondes and
Universal filed a motion to amend their complaint "by interlineation" to add
Phil Brondes, Jr., Phil Brondes, Sr., and Brondes Land Management, Ltd. ("BLM")
as additional party-plaintiffs. In support of the motion, Brondes and Universal
argued that, "but for" Habitec's actions, the original dealership would not have
been a total loss, and asked [**8] the court to allow Phil Brondes, Jr. and/or
Phil Brondes, Sr. and/or BLM, to be added as plaintiffs four years after the
fire occurred because their respective connections to the Brondes dealership did
not exist at the time that the original complaint was filed. On November 1,
2006, Habitec filed a memorandum in opposition, in which it argued that "[n]one
of [the] proposed parties relate back to the original pleading," and the motion
to add them at this point in the proceedings is really "an attempt to extend the
statute of limitations for this action."

    [*P15] On November 9, 2006, a summary judgment hearing was held on all of
Habitec's outstanding motions. On January 4, 2007, the trial court filed an
opinion and judgment entry, in which it found that the issues of whether
Brondes' damages should be limited to the $1,270,000 diminution in the value of
the property, as well as "the reasonableness and necessity of rebuilding a more
modern and updated dealership," are questions of fact for a jury to decide. The
trial court further found that the one-year limitation clause and the limitation
of Habitec's damages to $250, as stated in the Agreement, are unconscionable.
Accordingly, Habitec's and Simplex's [**9] motions for summary judgment were
denied. Habitec filed a motion for reconsideration on January 23, 2007, which
the trial court denied on June 6, 2007.

    [*P16] On November 16 and December 17, 2007, a hearing was held pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 1135 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ("Daubert hearing"), to determine whether James Moore, Jason Floyd and Rick Spencer were qualified to testify as experts for Brondes on the issues of causation, fire modeling and amount of damages.

    [*P17] James Moore,2 a fire protection engineer who designs new fire
protection systems and evaluates the effectiveness of existing systems, and who
was hired by Universal to determine whether a delay in reporting the fire
enhanced Brondes' damages, testified that he has never done fire modeling, and
he was unable to state how much loss could have been avoided by proper placement
of the heat detectors. However, J. Moore opined that a delay in detection of the
fire contributed to "causing much more extensive damage than should otherwise
have occurred if the fire detection system had been properly designed,
installed, tested and serviced before the fire." At the close of J. Moore's
testimony, Habitec stipulated to his qualifications as an expert, except as to
the issues of delay [**10] and amount of damages. Thereafter, the trial court
qualified him as an expert, stating that any challenges to his methodology would
be subject to cross-examination at trial.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2   Testimony
in this case was presented by James Moore and Douglas Moore. For the sake of
clarity, the parties will be referred to in this decision as J. Moore and D.
Moore, respectively.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P18] Jason E. Floyd, a senior engineer for Hughes Associates, Inc. in
Baltimore, Maryland, testified that he performs fire experiments for detection
and regulatory testing for the Navy, as well as validating fire models for
commercial and government purposes. Floyd said that he ran five different
scenarios, with different delay times and temperatures. However, Floyd admitted
that, in constructing his model, he was somewhat unclear as to the exact
placement of the heat detectors, which would affect the amount of delay in
detecting the fire. On cross-examination, Floyd admitted that he is not an
expert in determining the causes and origins of fires.

    [*P19] Rick Spencer testified that he is an expert in the origin and causes
of fires. He stated that the fire probably began in the quick lube area,
approximately two feet above the floor, based on [**11] the burn patterns at
the scene. Spencer testified that the time delay allowed the fire to do more
damage, but he could not say when the fire started. He also testified that he
took part of a heat detector from the scene and stored it in his barn, however,
the device was lost when a tornado swept over his property in June 2006.

    [*P20] Gary Wymer, an insurance loss adjuster hired by Universal, testified
that only a flammable liquid scenario or an alarm delay could cause such a total
loss. Wymer stated that Brondes insured the building for $1.1 million and
Cousino Construction, the company hired to rebuild the dealership, estimated the
building's replacement cost was $1,765,000, however, he believed its actual fair
market value was $2.5 million. Wymer testified that it is a common economic
decision for businesses to "not buy enough insurance." On cross-examination,
Wymer testified that he was hired to determine the amount of damage to the
dealership, and to negotiate the settlement between Brondes and Universal, and
said he hired other experts because he is in "no way, shape or form" an expert
on the cause and origin of fires. At the close of Wymer's testimony, the trial
court ruled that, although [**12] Wymer could testify generally at trial, he
was not qualified to offer an expert opinion.

    [*P21] Next, the trial court entertained Brondes' motion to amend its
complaint by interlineation. In support of the motion, Brondes' attorney argued
that the new dealership was not built for two and one-half years after the fire;
consequently, BLM could not have been listed as an original plaintiff because it
was not in existence at that time. Counsel further argued that BLM is funded by
Brondes and its sole shareholder, Phil Brondes, Jr., and Brondes, Sr. are named
as insured parties on Brondes' insurance policy, and no prejudice would result
by adding them as plaintiffs in this case, or by allowing their claims to relate
back to the filing of the original complaint in October 2004.

    [*P22] In response, counsel for Habitec and Simplex argued that allowing
additional plaintiffs at this stage in the proceedings is prohibited by the
applicable statute of limitations. Counsel further argued that Brondes was
trying to add the extra plaintiffs to finance its decision to buy additional
property and build a bigger and better dealership, despite the fact that the
original dealership was underinsured. In addition, counsel [**13] argued that
Brondes' losses were less than it claimed because it raised some of the money to
finance the new dealership by selling other properties. Finally, counsel argued
that Civ.R. 15, which governs the amendment of pleadings, does not cover an
amendment by interlineation.

    [*P23] At the close of the parties' arguments, the trial court stated:
"what I'm going to allow is the amendment by interlineation because * * * I
think justice requires it." The trial court also allowed the amendment to relate
back to the original date the complaint was filed, because "the nature of who
the plaintiff is does not necessarily change the notice of some party who may
have to pay for the potential damages." As to the timing of the request, the
trial court found: "the time frame is reasonable under [Civ.R.] 17(A) to allow
the amendment and the joining of the plaintiff or the movement for amendment by
interlineation."

    [*P24] On January 8, 2008, Habitec filed a renewed motion to exclude or
limit Spencer's and Wymer's testimony at trial, due to spoliation of the
evidence upon which their testimony was based. In support, Habitec argued that
Spencer lost the one salvaged heat detector before it could be examined by the
defense, [**14] and all other evidence from the scene of the fire was removed,
leaving the case "to be tried upon speculation and inadmissible circumstantial
evidence supplied by Plaintiffs with little or no ability of the Defendants to
respond."

    [*P25] On January 11, 2008, Brondes, BLM, Phil Brondes, Sr., Phil Brondes,
Jr. and Universal filed a separate complaint in the trial court ("case No.
CI0200801281"), in which they collectively asked for damages in excess of $8
million from Habitec and Simplex. On January 14, 2008, Brondes and Universal
filed a motion to consolidate case No. CI0200801281 with case No. CI0200403303,
which the trial court granted on January 15, 2008. On January 16, 2008, Habitec
filed a "Motion for More Definite Statement and/or Amended Complaint by
Plaintiffs" pursuant to Civ.R. 12(E). In support, Habitec argued that no
specific claims were set forth against Habitec by BLM, or Phil Brondes, Sr. or
Jr., ("other plaintiffs") since the complaint in CI0200403303 was amended by
interlineation and then consolidated with case No. CI0200801281, which Brondes
and Universal opposed.

    [*P26] On August 1, 2008, Simplex was voluntarily dismissed, leaving
Habitec as the only defendant in the case. On November 13, [**15] 2008, the
trial court granted Habitec's motion for a more definite statement and ordered
Brondes, Universal and the other plaintiffs to file an amended complaint. The
second amended complaint was filed on December 5, 2008, in which Brondes and BLM
sought recovery in excess of $3 million each, Phil Brondes, Sr. and Jr. each
sought recovery in excess of $1 million, and Universal sought recovery in excess
of $3,900,000.

    [*P27] On December 31, 2008, Habitec filed a "Motion for More Definite
Statement and/or Amended Complaint by Plaintiffs and Motion for Sanctions" in
which it stated that the second amended complaint "does nothing to clarify the
issues and claims that were deficient in the originally filed Complaint," which
the plaintiffs opposed on January 15, 2009. On March 12, 2009, the trial court
granted Habitec's motion and ordered the plaintiffs to "file a responsive
pleading to such motion * * *."

    [*P28] The third amended complaint was filed on March 30, 2009, in which
the plaintiffs collectively sought damages for negligence and/or breach of
contract. Habitec filed a motion to dismiss the third amended complaint, and
plaintiffs filed a revised third amended complaint on July 16, 2009, which
[**16] set forth separate claims of negligence, negligence per se, and breach
of oral and written contract. In addition, the revised third complaint contained
allegations that portions of the Agreement limiting damages to $250 and limiting
the time for bringing claims against Habitec to one year are unconscionable, and
setting forth a subrogation claim on behalf of Universal.

    [*P29] On August 6, 2009, Habitec filed a partial motion to dismiss, in
which it asked the trial court to dismiss all except Brondes' claim for breach
of written contract and Universal's subrogation claim "to the extent of money
paid to [Brondes] only * * *." That same day, Habitec answered the third amended
complaint, in which it asserted affirmative defenses of unclean hands, failure
to join necessary parties, comparative/contributory negligence, statute of
frauds, parole evidence rule, lack of proximate cause, spoliation of evidence,
and "superseding, intervening causation," and asserted that Brondes' damages are
limited by the terms of the Agreement. Brondes filed a memorandum in opposition
to partial dismissal on August 27, 2009.

    [*P30] On November 19, 2009, the trial court filed an opinion and judgment
entry in which it dismissed [**17] Count 3 (breach of oral contract) as to all
of the plaintiffs, and found that BLM cannot state a claim for either ordinary
negligence or negligence per se, as stated in Count 4. However, the trial court
said that the Agreement was not entirely unconscionable, and Brondes is not
prohibited from subrogating its rights to Universal, to the extent that benefits
were paid to Brondes under the terms of the policy. Accordingly, Habitec's
motion to dismiss was granted in part and denied in part. On January 12, 2010,
Brondes filed a motion for reconsideration, in which it asked the trial court to
reconsider the dismissal of Count 3. Habitec filed a memorandum in opposition,
to which Brondes filed a reply.

    [*P31] On August 5, 2010, Habitec filed a motion in which it asked the
trial court to order a set-off of $375,000, the amount paid in partial
settlement of the Brondes' claim against Simplex because, until Simplex was
dismissed as a defendant, Brondes claimed that Habitec and Simplex were joint
tortfeasors, with joint liability for Brondes' losses due to the fire. On August
11, 2010, the trial court denied Brondes' motion for reconsideration and, on
August 13, 2010, Brondes filed a motion in opposition [**18] to Habitec's
request for set-off. The trial court filed an order on August 24, 2010,
disposing of all pending motions. As part of that order, the trial court found
no evidence that Simplex was liable, either wholly or in part, for Brondes'
loss, and denied Habitec's motion for judicial set-off.

    [*P32] A jury trial began on August 25, 2010. Before jury selection began,
the parties and the trial court addressed Brondes' motion to prevent the
Agreement from being introduced as evidence at trial. After discussing the size
of the original document, and reviewing the trial court's earlier order to
exclude paragraphs 21 and 25, the court ruled that the rest of the Agreement
would not be excluded at trial. A jury was empaneled and sworn in on August 26,
2010. Testimony was presented on behalf of Brondes by Phil Brondes, Sr., Habitec
salesman Robert Seymour, Toledo Firefighter Richard Syroka, former Toledo city
building plan inspector Corky Hahn, city fire prevention worker William Caton,
Habitec installer Jeffrey Long, Habitec employees Anthony Adams and Jesus
Cordaro, electrical worker Duane Anthony Gibel, and former Brondes employee
Benjamin Hazzard. Additional testimony was given by Michael Peatee, [**19]
Louise Schlatter, Michael Dean Bay and Kristin Bay, Curtis McDuffy, Frank Szocs,
Rick Spencer, Toledo Fire Captain Kenneth Gehring, Thomas Moran, Dennis Jackson,
Terrance Minsel, and Michael Cousino.

    [*P33] Brondes, Sr. testified that in 2002, he was the vice-president and
52 percent owner of Brondes, and that he purchased the dealership when his
brother, Don Brondes, died. However, Don's wife, Pat Brondes, inherited a
one-half interest in the property on which the dealership was located, and he
and Pat received monthly rent payments of $3,500 each until the day of the fire.
Brondes, Sr. also stated that Pat had the option not to rebuild the dealership
if it ever burned down, which forced him to purchase her interest in the
property at a "big premium" after the fire.

    [*P34] Brondes, Sr. further testified that, before the fire, the dealership
had no mortgage whereas, after rebuilding, the business had to pay $48,000 per
month in mortgage payments. He stated that, after the fire, he was forced to
sell and build in another nearby location due to required setbacks for new
construction, and because Ford Motor Company required the dealership to build a
"Taj Mahal" to replace its old facility. He said [**20] that a vacant lot and a
building formerly used by the dealership were sold to Monnette's market to help
finance the project.

    [*P35] Brondes, Sr. said he purchased the Habitec fire alarm system after a
small fire happened at the dealership. He recalled telling Habitec to do
"whatever has got to be done" to avoid a catastrophic fire. He never questioned
the type of alarm system that was installed, and assumed the alarm system
"immediately sent [a signal] to a station * * * that's manned 24 hours a day"
and is "a little over a mile away." Brondes, Sr. said the heat detectors were
put "up in the ceiling" on trusses where available, and on the ceiling "in the
open areas." He said the system was selected and installed by Habitec, and the
dealership paid Habitec $100 per month to "maintain it" and provide 24/7
monitoring. Brondes, Sr. said the signature on the Agreement was probably his,
since he handled "the fire detector thing," however, he did not know the
Agreement was actually a lease. He also said: "I looked at the front side and
read the cost and various things but I didn't spend much time reading it. I
signed it. I figured it was a contract just to put in the system." He said he
did not [**21] read the back of the Agreement, and would not have understood
the terms written there even if he had read them.

    [*P36] On cross-examination, Brondes, Sr. said he "half remembers" signing
the Agreement, which states that the signer acknowledges they read the front and
the back, and he would have turned the document over if he knew there were
important disclaimers on the back. He did not know if Brondes applied for a
variance to rebuild on the same location after the fire, however, Brondes
already owned part of the property on which the new dealership was built. On
redirect, Brondes, Sr. stated that he could read the larger print on the
Agreement, but not the smaller type, and he did not have an attorney review the
lease. He stated that his son, Phil Brondes, Jr., planned the rebuilt
dealership.

    [*P37] Robert Seymour, who sells commercial fire detection systems for
Habitec, testified that he is aware of the National Fire Protection Association
("NFPA") guidelines for alarm systems, he is experienced in the area of security
and fire detection systems, and he tailors each system to meet the client's
needs. He said that Brondes, Sr. asked for a "fire alarm system," which he
provided after taking a tour [**22] of the facility. Seymour explained that
commercial heat detectors often detect the "rate of rise" in temperature, which
produces less false alarms than detectors that measure a set threshold
temperature. Seymour said that he installed a Silent Knight control panel, five
smoke detectors, and 56 heat detectors, which were designed to sound an alarm
when a 135 degree rise in temperature is detected. He said the design drawings
for the Brondes system were approved by the Toledo Building Inspector and the
Toledo Fire Prevention Bureau, and the equipment charge for the system was
$1,805.38, with a monthly monitoring charge of $99. Seymour testified that
installers are instructed to mount the heat detectors "as high as they possibly
can," and no revisions were made by Habitec after the initial installation.
Seymour testified that the Agreement is "a commercial lease not a purchase," and
the original document, which was 8.5 by 14 inches in size, with printing on both
sides, was executed by "Phil Brondes," with no designation of "Sr." or "Jr."

    [*P38] At the close of Seymour's testimony, the jury was excused and a
discussion between the parties and the court was held as to paragraphs 21 and 25
of the [**23] Agreement, which the court previously excluded as unconscionable.
The court noted that, although the copy of the Agreement used at trial was 8.5
by 11 inches, the original document was 8.5 by 14 inches, with correspondingly
larger type. The jury was then brought back in and testimony resumed.

    [*P39] Richard Syroka, of the Toledo Fire Department, testified that he
responded to the alarm at Brondes on May 27, 2002. He said the fire was marked
as "suspicious" because of its size, which required 58 firefighters and 15 rigs,
and the origin of the fire remained "undetermined." He said that a check of the
fire detection system on February 2, 2002, resulted in one violation in the
quick lube area, and tests were performed by shorting electrical wires to make
the heat detectors go off. On cross-examination, Syroka stated that the Fire
Protection Bureau conducts yearly inspections on commercial properties, and it
is the owner's responsibility to correct any violations. He said that the alarm
recorded on May 27, 2002, at 1:49:58 a.m. was a "commercial fire alarm at
Brondes coming from the quick lube area." He also said that a fire can grow
quickly if fed the right fuel, i.e., oil, gas, or wood paneling. [**24] On
further direct examination, Syroka said that when city inspections do occur,
they only note that equipment is present, with no assurance that the system is
in working order, since performance evaluations are performed by outside
contractors.

    [*P40] Corky Hahn, a construction plan examiner for the city of Toledo,
testified that he played a role in the permit process. Hahn stated that the
Toledo Municipal Code specifies what is required, and that an inspector checks
later, after a system is installed. He said that his approval of a system
drawing does not relieve the designer of the system from liability, and that the
drawings submitted to him contained no information as to how high the heat
detectors were to be mounted, or what structures they would be mounted on, but
he did know that the roof of the old Brondes building was curved. Finally, Hahn
stated that the fire detection system was not required, therefore, it only
needed a permit, as opposed to full compliance.

    [*P41] William Caton, a former Toledo firefighter, testified that Brondes'
fire system plan did not say where the heat detectors were placed, or list the
height and shape of the ceilings. He said detectors are to be placed as high
[**25] as possible in a room. Caton said he has never performed any fire system
tests, which are commonly done with "smoke cans" and magnets. On
cross-examination, Caton testified that the number of heat detectors in the
Brondes facility was correct, based on the size of the building.

    [*P42] After Caton's testimony, the trial deposition of William Bojarski,
city fire inspector, was read for the jury. In his deposition, Bojarski
testified that he uses NFPA form 72 when inspecting fire systems, however, the
standards are not mandatory regulations, and are subordinate to municipal fire
codes. Bojarski further testified that when he inspected Brondes' facility in
2000, no violations were found. He stated that, if a violation is found, the
owner of the building is responsible for hiring a contractor to fix the problem.

    [*P43] Jeffrey Long testified that he installed Brondes' fire detection
system in 1993. Long said that the only change he made to the original plan was
to relocate the control panel and add a heat detector at the new location to
protect the panel. Long said he did not remember where he placed the heat
detectors; however, the bottoms of the trusses in the quick lube area were six
feet below the [**26] ceiling, and "there is no way I would have mounted them
six feet below" because, according to NFPA standards, heat detectors should be
mounted as high as possible.

    [*P44] Long stated that after the Brondes fire, wires were found on the top
sides of the trusses, mounted with clamps. Long said that he could not testify
as to the condition of the system after the fire because, by the time he got to
the dealership, the quick lube area had been bulldozed and debris was piled
where the panel had been. Long described the range of the Brondes sensors as
"50ft coverage, 25ft radius, 25ft in any direction in a circle," and said the
sensors would set off an alarm if the rate of temperature rise exceeded 15
degrees per minute. He also said that the Brondes detectors were installed by
using a lift because of their height above the floor.

    [*P45] On cross-examination Long testified that all of the clamps from the
fire scene were lost, however, the clamps are usually "malleable" iron clamps
that can be mounted horizontally or vertically, as long as they are near the
ceiling. He recalled being told that Simplex could not inspect the heat
detectors in March 2002 because they did not have a tall enough ladder or a
[**27] lift. On redirect Long said that he walked through the building after
the fire, but found none of the equipment he installed. He remembered telling
ATF investigators that "he ran the lines along the angle of the bottom chord in
order to obscure them from view from the floor," but he did not remember if the
sensors were actually attached to the bottom or the top chord.

    [*P46] Anthony Adams, a Habitec employee, testified that he added the "419"
prefix to the Brondes fire system on October 11, 2001. At that time, he tested
the power supply, the battery backup, and the burglar alarm system and ran a
test to see if a signal was being sent and received from the alarm. Jesus
Cordaro testified that he serviced the system on December 2, 1999, when he
replaced a heat detector, tested the power to the fire detection system, and
checked the key pad. He did not remember the locations of the heat detectors, or
the type of roof over the building.

    [*P47] Duane Gibel, an electrician, testified that he added electrical
plugs and conduits in the service area in 1999. He described the building as an
"old airplane hangar" that is steel-ribbed, and has a 180 degree curved ceiling,
with steel trusses on 20 to 25 foot [**28] centers. Gibel also stated that he
installed outlets and a panel in the body shop and hung new lights in the
service area on March 24, 2002. Gibel testified that he has previous experience
with heat detector systems. He said the bottoms of the trusses in the quick lube
area were about 13 feet above the floor, not at the height of the ceiling. Gibel
said he did not see any heat detectors on the bottoms of the trusses in the
quick lube area, and he never installed a heat detector on a bowed ceiling.

    [*P48] Benjamin Hazzard, a former Brondes employee, testified that the
quick lube area had an open, 10 to 12 foot high ceiling in the waiting area, a
steel curved roof in the lube area, and the middle of the room was higher than
the ends. Hazzard said that several containers of oil were kept in a hallway
outside of the quick lube area. Hazzard remembered that, in an earlier
deposition, he stated the room had a "normal flat panel" ceiling, however, at
trial, he was certain the roof was curved and open and that the fire detectors
were mounted on the bottoms of the girders.

    [*P49] Michael Peatee, a Toledo Edison employee, testified that he lives
several blocks from the original Brondes dealership, where he [**29] helped to
install electrical service in the 1980s. Peatee said he was in bed the night of
the fire, near an open window, when he smelled smoke, which reminded him of "tar
and/or building material," but he did not see a fire. He heard about the fire
the next morning and, two days later, he went to the fire scene to recover some
equipment for his employer, where he gave a statement to an ATF agent. On
cross-examination, Peatee said that there was electrical equipment on the wall
of the quick lube area which he was asked to retrieve because there was
suspicion that the fire was caused by an electrical failure.

    [*P50] Louise Schlatter testified that she saw her husband walking around
the house after 11 p.m. because he smelled smoke. She did not hear any sirens
after 1:50 a.m., and did not hear about the fire until the next day.

    [*P51] Michael Bay, a Brondes mechanic who lived one-half mile north of the
dealership, said he was awakened by the smell of smoke around 12:15 a.m. on May 27, 2002. Bay, a volunteer fireman, said the smell reminded him of a burning
building so he went outside, got into his car, and drove around looking for a
fire; however, he did not drive toward the Brondes dealership. He went [**30]
to Brondes the next day to get his tools, but they were destroyed by the
collapsed ceiling. Bay testified that heat detectors were placed on "the bottom
of the metal rails, the beams," in the quick lube area, and that the building
had a "big dome roof and it had two opening sky lights. Kristin Bay, his wife,
testified that she went outside after her husband woke up. Although she could
smell smoke, she did not see anything, and did not hear any sirens.

    [*P52] Curtis McDuffy testified that he and his cousin, Terry
Kachenmeister, were driving on Secor Road after midnight on May 27, 2002, when they saw an open garage door with flames inside the building and smoke coming out. They called 911 to report the fire. McDuffy said a "detective" came to his home the next day to ask him about what he saw. On cross-examination, McDuffy stated that he heard sirens before he made the 911 call.

    [*P53] Former Universal account executive Frank Szocs testified that
Brondes, Phil Brondes, Sr., Pat Brondes and several others were listed as
insured parties on Brondes' policy, and that the business was insured for
approximately $1,161,000. He explained that businesses can purchase a value
protection endorsement that will [**31] pay if the owner is required to rebuild
at more than the cost of the loss, but it does not cover a move to a new
business location. Szocs said that Brondes was paid a total of $2,018,788.03 in
insurance benefits.

    [*P54] Rick Spencer, a licensed investigator for the Ohio Department of
Public Safety, division of Homeland Security, testified that Wymer hired him to
determine the cause and origin of the fire. He went to the burned dealership on
May 29, 30, 31, June 17, and July 2 and 10, 2002, after which he generated two
reports on April 5 and 9, 2006. Spencer said that when he first saw the quick
lube area after the fire, the scene was "pretty much intact." He said that the
trusses over the quick lube area, which were 12 feet above the floor and were 20
feet long, collapsed due to heat. Spencer also said that damage to the trusses
showed that fire burned longer in that area, which he called "ground zero."

    [*P55] Spencer stated that the heat detectors were programmed to respond if
the rate of rise was more than 15 degrees per minute, or if the temperature of
the room was between 135 and 190 degrees. He said his investigation included
collecting remnants of burned trusses and what he thought were heat [**32]
detectors, and he took one heat detector home and kept it in his barn; however,
the barn was leveled by a tornado in 2006 and it was lost. Spencer said that the
fire was not caused by an intentional human act and, in his opinion, placement
of the heat detectors on the bottoms of the trusses contributed to the extent of
the damage.

    [*P56] On cross-examination, Spencer testified that he is not an expert in
fire detection. While he did not believe that Habitec caused the fire, there was
a two-hour delay before Habitec's system reported it. Spencer said the evidence
shows the fire was caused by an unspecified electrical event and its
temperature, based on Kachenmeister's and McDuffy's descriptions, was at least
425 degrees Fahrenheit.

    [*P57] Spencer explained that a bowed roof has a pocket near the ceiling in
which heat builds up, preventing the heat detectors from reading the temperature
of the fire in a timely manner. He said that a fire can multiply by ten times
every minute that it burns. However, he did not know what materials were present
in the building, or how fast they would have burned. He also stated that vents
in the ceiling may have caused a delay in detection, although he did not analyze
[**33] the effect of such vents in this scenario. Spencer testified that
detection delay allowed the fire to "progress uninhibited and caused more
damages than if it would have activated early on." He said that black smoke
spotted by witnesses indicates the presence of petroleum distillate, and the
open metal door may have been caused by an "electrical event." He also said that heat sufficient to twist metal trusses would have to be more than 2,000 degrees, and would have to build over some amount of time.

    [*P58] Toledo Fire Captain Kenneth Gehring testified that the fire was
"significant" by the time he arrived on the scene, and the first thing he saw
was an open overhead door with flames licking out. Gehring said his focus was on
keeping the fire from spreading and that the temperature of the quick lube area
was probably a "couple 1000 degrees" by the time he got there.

    [*P59] Toledo Fire Inspector Thomas Moran testified that he inspected
Brondes in 2002 to see if earlier violations found by Simplex had been
corrected. Moran said an inspection consists of a visual inspection, during
which some of the detectors are "shorted" to make them go off. Moran recalled
that Brondes' ceiling was flat.

    [*P60] Brondes' [**34] general manager Dennis Jackson testified that he
hired Simplex to inspect the fire system in 2002 and, at that time, heat
detectors were mounted on the bottoms of trusses in the quick lube area. On
cross-examination, Jackson said that he did not smell the fire, even though he
lives only one mile from Brondes' original location. He also said that service
and customer relations manager Robert ("Bobby D.") DeSimpeleare and Bobby's
brother, Richard, were in the building to clean floors the weekend before the
fire.

    [*P61] Simplex repair technician Terrance Minsel testified that he went to
Brondes in March 2002, where he checked the phone line, disconnected the alarm
bell, and tested the heat detectors, monitors, horns and smoke detectors.
However, he was unable to reach the heat detectors on the trusses because he did
not have a tall enough ladder or a lift. Minsel said the heat detectors were
tested "by shorting across wires." He also said that some of the heat and smoke
detectors in the conference room were not mounted. On cross-examination, Minsel
said that zones four through seven were inaccessible to all but a visual
inspection, and there would have been an extra charge to get high enough [**35]
to actually touch them. Minsel expressed doubt as to whether he had the right
equipment to test the heat detectors, and said that, in any event, activating a
rate of rise heat detector to test it would destroy the mechanism.

    [*P62] Michael Cousino testified that he was hired by Brondes to clean up
and rebuild the dealership after the fire, which was a total loss. He stated
that new set back requirements and zoning laws applied to the rebuilt structure,
and that a "like kind, and equal" estimate to rebuild was $1,622,930.76. He said
Brondes did not apply for a permit to rebuild on the original site, and did not
attempt to find out if the set back and zoning issues could have been resolved.

    [*P63] In addition to the above testimony, video depositions of Bobby D.,
deceased, and fire expert D. Moore were played for the jury, followed by
additional testimony by real estate appraiser Robert Domini, Toledo city
building inspector James Gilmore, fire experts J. Moore and Jason Floyd,
Universal underwriter James Redfern, Brondes' comptroller Linda Gaudaen, and
real estate appraiser Michael Ducey. Brondes' final witness was Phil Brondes,
Jr.

    [*P64] Bobby D. testified that he and his brother attempted to clean floors
[**36] at the dealership the day before the fire but the machine they rented
did not work, so they closed the door that opened onto Coral Street and left.
Bobby D. said the heat detectors were on the bottoms of beams in the quick lube
area, and that there was a "dome-like" ceiling 10 to 12 feet above the trusses
that had one big vent at the top, with flaps that could be opened with a crank.
However, the vent was closed the last time he was in the building. Bobby D.
stated that, before the fire, workers from Gibel Electric were in the building
to move his desk and the vending machines, and put in some electrical outlets.
He said that doors opening onto to Coral Street could only be opened from the
inside. He also said that Simplex did not discuss getting a lift to inspect the
heat detectors on the quick lube trusses.

    [*P65] Testimony given in D. Moore's depositions was as follows. In his
first deposition, given on September 19, 2007, D. Moore, an ATF employee and
certified fire inspector, testified that he was trained to determine the cause
and origin of fires, and was familiar with NFPA guidelines. D. Moore stated that
he performed his own investigation of the Brondes fire, in addition to
coordinating [**37] with other investigators on May 28 and 29, 2002. He said
that the first indication of a fire was on May 26, 2002, at 10:30 p.m., when a
witness reported smelling smoke and, later, at 1:48 a.m., when another witness
saw fire and called 911. At that same time, a sensor reported a fire in the
quick lube area. The fire department was contacted at 1:50 a.m. By 2:03 a.m.,
there was a heavy fire in the southwest corner of the quick lube area.

    [*P66] D. Moore said the original Brondes facility was a 60-year-old,
2-story commercial structure that encompassed 7,800 square feet. The roof was
supported by steel, bowstring trusses that ran in a north-south direction, and
two skylights 12 by 20 feet in size were centered in the east and west halves of
the ceiling. Lights were suspended from the trusses, and heat detection sensors
were located on the bottoms of the trusses in the quick lube area. D. Moore
stated that the system was recently "upgraded to meet code specifications." He
said the trouble signal sent to the fire department was probably due to system
failure caused by the fire, which burned out the telephone line, and opined that
the system responded when it was first capable of detecting the [**38] fire.
However, he said the detectors would have activated sooner if they had been
placed at the highest point of the ceiling, which would have allowed for less
damage to the building.

    [*P67] In his second deposition, given on December 11, 2007, D. Moore
testified that the origin of the fire was narrowed to an area, not a specific
point, and that the fire was accidental. D. Moore also said that he is not
qualified as a fire determination expert, and has no training in assessment of
damages or the nature and extent of damages beyond issuing a broad estimate,
using the policy amounts as a guide. He said physical evidence and testimony
placed the detectors on the bottoms of the trusses, and it is possible the smoke
detected by witnesses did not come from the Brondes fire. D. Moore also said
that the fire was "slow-developing, smoldering, eventually it reached a point
where it had enough energy where it broke out."

    [*P68] Real estate appraiser Robert Domini testified that the value of
Brondes' facility was $2.5 million before the fire, with an additional
$2,172,000 after the fire. Toledo chief building inspector James Gilmore
testified that Brondes would have needed a variance to rebuild at the same
[**39] location. Gilmore also said that the building's owner could have asked
for a variance from the setback regulations, and could have appealed a denial of
such a request. He stated that it is normal to discuss rebuilding a facility
with the same dimensions and location if 75 percent or less of the structure is
destroyed.

    [*P69] J. Moore, a fire protection and fire code research consultant for
Hughes Associates, Inc. who also testified at the Daubert hearing, testified
that NFPA develops fire codes and standards. He said that he visited Brondes on
June 17 and July 17, 2002, after Spencer asked him to determine the type of
alarm that was used and how it was installed. During those visits, he took
photos inside and outside the building. J. Moore stated that NFPA requires heat
detectors to be installed on the tops, not the bottoms, of trusses. He further
stated that a rate of rise heat detector works when a diaphragm heats up along
with the air temperature, putting pressure on a circuit and closing it, setting
off an alarm, and a fixed temperature detector has a piece of solder in it that
melts, releasing a small plunger that closes a switch and sets off an alarm. J.
Moore said that heat detectors [**40] should be mounted no more than 12 inches
below the ceiling, because the dome shape traps rising heat, preventing
low-mounted detectors from noticing it until the heat eventually builds up and
travels back down.

    [*P70] J. Moore testified that heat detectors come with mounting
instructions, that the original plan for the Brondes system does not show the
actual placement of the detectors, and no NFPA certificate of completion was
issued. He concluded that: (1) the detectors at the facility did not comply with
NFPA standards, (2) the installation was not performed correctly, (3) there was
no evidence of proper testing, (4) the large number of alarms between the first
signal and the fire department's arrival indicates either a rapidly growing fire
or damage to the circuits, (5) there were no indications of smoke detection
placement in relation to air ducts, (6) it cannot be determined how many
detectors there were per zone or circuit, and (7) there was no indication of a
primary, as opposed to a secondary power source, or a calculation of how much
power is needed to feed the entire circuit. Based on these conclusions, J. Moore
opined that the delay in detection of the fire resulted in a larger [**41] fire
and more damage. Although he is not an expert in fire modeling, J. Moore
calculated that even a relatively minor delay in detecting a fire could allow
the fire to become two and one-half times bigger.

    [*P71] On cross-examination, J. Moore testified that a pole can be used to
test high-placed heat detectors, but none was used in this case. He said that
Spencer lost the only surviving heat detector that could have been tested after
the fire. He further said that Brondes did not complete the $1,400 of fixes that
Simplex recommended for the system. J. Moore stated that the heat detectors
probably failed because they were placed on the bottoms of the trusses, and that
a "flurry" of signals indicates an "attack of the fire alarm system by the fire"
as opposed to a single signal from a functioning system.

    [*P72] Jason Floyd, author of the fire dynamic simulator computer program
which performed fire modeling in this case, defined the program as software that
simulates "how a fire will grow and behave inside of a building or piece of
equipment * * * determining the effect of that fire on either people,
structures, equipment in terms of either * * * temperature, radiant heat, or
toxicity * * *." Floyd [**42] said he was called in by J. Moore to evaluate the
potential delay in activation of heat detectors, and he was given drawings and
photos that showed the layout and size of the space, after which he ran five
scenarios, based on varying possibilities, including assumptions of slower,
rather than faster, fire acceleration, and different placement of the heat
detectors.

    [*P73] On cross-examination, Floyd testified that he could not "pinpoint" a
dollar amount of damage due to later fire detection, and he did not know when
the fire started or how fast the flames spread. Also, he did not know what
materials were available to burn, and he did not include calculations based on
the presence of oil. He said the only three known facts are the time smoke was
first seen, the time the alarm went off and the time the roof collapsed.

    [*P74] James Redfern, a retired Universal investigator, testified that he
flew to Toledo on May 28, 2002, but ATF investigators would not let him see the
site. Redfern said that Brondes' insurance policy had a value protection clause
that would pay the increased cost to rebuild a facility of the same kind,
quality, use and occupancy, even if it was built at a different location.
Redfern [**43] estimated the value of the fire-damaged property to be
$2,172,000, and the real estate to be $2.5 million. He said that Universal paid
Brondes approximately $4 million.

    [*P75] Linda Gaudaen, Brondes' comptroller, testified that Ford, through
its Blue Oval program, dictates how a dealership looks and, if a dealership
participates in the program, it receives funds based on the level of sales.
Gauden also said that Brondes paid $7,600 per month in rent to Brondes, Sr. and
Pat Brondes, but had no mortgage to pay before the fire. However, the new
dealership now has "quite a large mortgage" of $4,480,000, for which it made
payments of $48,000 per month. She stated that the new facility is owned by BLM,
not Brondes. Gauden further testified that property taxes on the new dealership
were twice that of the old site, and Universal paid Brondes a total of
$3,844,401 for its losses. She also said that BLM, not Brondes, paid Pat Brondes
$1.175 million for her share of the original site.

    [*P76] Real estate appraiser Michael Ducey estimated that, before the fire,
the dealership was worth $2.5 million. He testified that Brondes owned seven
parcels of land before selling a lot to Monnette's Market, and that Pat [**44]
Brondes was paid $1.72 million for her interest in the original site of the
dealership.

    [*P77] Phil Brondes, Jr., president of Brondes, testified that BLM was
created after the fire as "a financial planning thing actually for our family."
He said that his father, Brondes, Sr. is the majority stockholder of BLM.
Brondes, Jr. also said that the dealership "kind of went along" with Ford's
suggestion to build a bigger facility, however, the "bottom line" is to sell
cars cheaper. He also said that, although the rent was set by Brondes in the
past, the company now had no choice because $48,000 per month was needed to make
the new mortgage payment. Brondes, Jr. stated that his father wanted a fire
detection system because Pat Brondes, who owned part of the original dealership,
had the right to influence the decision to rebuild in the event of a fire.

    [*P78] On cross-examination, Brondes, Jr. testified that before the fire,
the dealership sat on 5 acres of land, whereas the new facility was on 9.2
acres, and "[Brondes] could not rebuild the facility that we needed on the
property that we have left that we had total control over, and had it not been
for the fire we'd still be operating right there right [**45] now * * *." He
said that the new dealership sits on one parcel of land, which is owned by BLM
and Brondes, Sr. He also said that after the fire, Monnette's Market bought one
parcel from BLM for $460,000, and several other lots were sold for a total of
$1,070,000. He testified that BLM was set up to shield the Brondes family from
taxes and liability, and it is "the sole owner and holder of whatever it is for
Brondes Land Management LLC." Brondes, Jr. said that the $48,000 monthly rent
paid to BLM by Brondes is a "business expense."

    [*P79] At the close of Brondes, Jr.'s testimony, Brondes rested its case,
and the jury was dismissed. Habitec made a motion for a directed verdict, which
the trial court denied. In addition, Brondes, Jr. was removed as a plaintiff.
Habitec then presented testimony by Simplex technician Dave Sibberson, after
which the deposition of David Gibel was played for the jury. Testimony was then
given by William Tapper and fire investigator Timothy Wilhelm.

    [*P80] Sibberson testified that he inspected the panel and tested the fire
alarm system for Simplex before the fire by tripping alarms in different parts
of the building. He said there were heat detectors "everywhere," but someone
[**46] at Brondes turned down his request for a lift because it involved an
additional cost. However, he did complete a "visual inspection." Sibberson
testified that the ceiling in the lube area was "dome type" and was 15 to 20
feet above the floor. He opined that there "wasn't enough power in the control
panel to run all the horns and everything else."

    [*P81] On cross-examination, Sibberson stated that he disconnected the
horns during the test and blew smoke in the smoke detectors, but he did not
short out wires or use a heat gun to test the heat detectors in the quick lube
area because he could not reach them. Sibberson said that he checked the current to the alarm panel and unsuccessfully attempted to convince Brondes to buy a new panel with an increased electrical capacity. Sibberson stated that one heat detector in the conference room should have been replaced because it had drywall on it due to recent remodeling, and he saw un-mounted smoke detectors in the furnace room.

    [*P82] Tapper, a building light and safety technician at the University of
Toledo, testified that he was a technical manager for Habitec in 2002, but he
did not install the Brondes alarm system. Tapper said that the first alarm
signal [**47] was sent at 1:48 a.m. by an alarm in the quick lube area. He said
the telephone line was compromised at 1:53 a.m., and that, most likely, the
trouble signals sent by the Habitec system were generated by telephone line
failure caused by the fire. On cross-examination, Tapper said there should be a
"working document" that shows the locations of the installed devices.

    [*P83] Wilhelm, a firefighter and fire investigator from Erie,
Pennsylvania, testified that "bowstring trusses have been known in the fire
service to be dangerous and have potential for early collapse." Wilhelm also
said that he visited the site on June 17, 2002, as part of Spencer's
investigation, and he revisited the site three times more between June 17 and
19, 2001. Pursuant to "NFPA 921 protocol," he did not touch anything, however,
the entire area was cleared out when he saw it, and 3,466-plus photos of the
original condition of the site were all that was available for study. Wilhelm
said that, in 18 dumpsters full of debris, no heat detectors were to be found.
Consequently, no heat detectors were examined by anyone other than Spencer, and
it was otherwise impossible to determine how the fire had progressed through the
structure. [**48]

    [*P84] Wilhelm opined that the ATF's investigators prematurely concluded
the fire was accidental. He identified three possible causes: fireworks on the
roof, a catastrophic failure of the ceiling-mounted gas heaters, and an
unspecified electrical event. But, he also stated: "I don't believe anybody can
state how this fire started with any degree of certainty." As to the structure
of the building, Wilhelm stated that steel begins to weaken at 600 degrees
Fahrenheit and loses 75 percent of its strength and sags at 1,200 degrees
Fahrenheit, an opinion that differed from Spencer's assumption that steel begins
to weaken at 2,000 degrees Fahrenheit. Wilhelm further stated that "Mr.
Spencer's theory of a fire multiplying in size ten times per minute is just
plain wrong." Wilhelm testified that it would be helpful to know more about the
building's ventilation, the point of origin of the fire, the ignition source,
and the quantity of available fuel sources for the fire. He described fire
growth as a "dynamic feature" and said that knowledge of possible fuel sources
and surrounding environment is critical to an investigation, and opined that Bay
may have smelled smoke from a source other than the Brondes [**49] fire. He did
not agree with Spencer's conclusion that a prior issue with the system should
have put Habitec on notice of a problem.

    [*P85] On cross-examination, Wilhelm stated that he is not licensed as a
fire investigator in Ohio, and he is not familiar with Ohio's Basic Building
Code or Fire Code. He did, however, consider and apply NFPA standards. Wilhelm
said that the fire scene was "cleaned out to some extent" when he first saw it,
and he was not allowed to access the dumpsters. He said that a burning building
does not have any particular smell, and he did not believe that either Peatee or
Bay smelled smoke from the Brondes fire at 11:15 p.m. and 12:15 a.m.,
respectively.

    [*P86] At the close of Wilhelm's testimony, the defense rested and the jury
was excused. Habitec renewed its motion for a directed verdict as to Brondes'
claims for negligent performance and negligence per se. The trial court granted
the motion in part, dismissing Brondes' negligence per se claim as not supported
by any specific law or regulation, and denied Habitec's request for a jury
instruction as to superseding, intervening cause. Thereafter, the trial court
instructed the jury as to the remaining issues, and the jury [**50] retired to
deliberate.

    [*P87] On September 22, 2010, the jury returned its verdict, in which it
answered seven separate interrogatories and calculated damages based on the
answers to those interrogatories, as follows:


   Answer 1: The alarm system delayed reporting of the Brondes fire.

   Answer 2: There was a commercial lease agreement between Habitec
and Brondes.

   Answer 3: There was a commercial lease agreement between Habitec
and Phil Brondes, Sr.

   Answer 4: Habitec acted negligently and/or breached the terms of
the commercial lease by selecting, installing, servicing, inspecting,
and monitoring the system.

   Answer 5: Habitec's negligence and/or breach of the terms of the
commercial lease caused the delayed reporting of the Brondes fire.

   Answer 6: Such delay caused additional damages to occur.

   Answer 7: Brondes suffered damages that would not have occurred but
for the delayed reporting of the fire.



    [*P88] Based on the above answers, the jury further found that Habitec was
liable for a total of $4,080,284.80 in damages. That amount was further broken
down into specific amounts, with the stated percentages of Habitec's liability
for each amount:

    [*P89] In favor of Universal:


   Autos: $72,240.75 ($144,487.49 at 50 percent)

   Buildings: $1,009,394 [**51] ($2,018,788.03 at 50 percent)

   Equipment: $285,980.83 ($866,608.59 at 33 percent)

   Stock: $151,498.12 ($302,966.21 at 50 percent)

   Earnings: $211,363.44 ($528,408.60 at 40 percent)

   Employee Tools:

   $9,107.85 ($27,599.56 at 33 percent)

   Extra Expenses:

   $0.00 ($100,000 at 0 percent)



    [*P90] In favor of Brondes:


   Increased Rent:

   $2,300,000.00 ($4,600,000 at 50 percent)

   Property tax: $0.00 ($0.00 at 0 percent)

   Unreimbursed Payroll:

   $0.00 ($91,260.74 at 0 percent)



    [*P91] In favor of Phil Brondes, Sr.:


   Rent: $19,500.00 ($19,500.00 at 100 percent)

   Unreimbursed Real Estate Loss:

   $21,200.00 ($21,200.00 at 100 percent)



    [*P92] On October 6, 2010, Brondes and Universal filed a "Motion for costs,
prejudgment and post-judgment interest, and attorney fees, with [an]
accompanying memorandum in support, and request for hearing," which Habitec
opposed. On October 7, 2010, Habitec filed a motion for judgment notwithstanding
the verdict ("JNOV") pursuant to Civ.R. 50(B), or for a new trial pursuant to
Civ.R. 59(A) in which it argued that: (1) Brondes is barred from asserting a
negligence claim against Habitec because the parties' obligations were
established by contract through the Agreement, (2) there is no separate duty of
care owed to Brondes because the trial court granted a directed verdict in favor
of Habitec on the issue of negligence per se, (3) the plaintiffs' breach of
contract claims are limited by the terms of the Agreement, [**52] (4)
insufficient evidence was presented at trial to support a finding that Habitec's
actions proximately caused Brondes' damages, (5) insufficient evidence was
presented to support an award for increased rent which, in this case, was
actually a mortgage payment, (6) the trial court should have instructed the jury
as to superseding, intervening cause by Simplex, and (7) the jury should not
have awarded damages to Phil Brondes, Sr. because his negligence claims are
barred by the statute of limitations. That same day, Habitec filed a motion in
which it renewed its pretrial motion for sanctions, and asked the court to
set-off $375,000 from the judgment awarded to Brondes from Simplex, which
Brondes and Universal opposed. On November 10, 2010, Brondes and Universal filed a reply in support of their motion for costs, interest and attorney fees. On
February 17, 2011, the trial court granted the parties' joint motion for a stay
pending resolutions of all outstanding motions, after which the parties renewed
their outstanding motions.

    [*P93] On November 29, 2012, the trial court issued a judgment in which it
vacated the jury award for increased rent, and denied the other issues raised in
Habitec's [**53] motion for JNOV. The trial court also overruled Habitec's
motions for a new trial and for sanctions and set off. As to Brondes' motion for
costs, fees, interest and attorney fees, the trial court granted the motion as
to a "portion of Plaintiffs' claimed costs" and post-judgment interest, and
denied Brondes' requests for prejudgment interest and attorney fees.

    [*P94] On December 20, 2012, Habitec filed a notice of appeal in this
court, in which it set forth the following assignments of error:


   [First Assignment of Error]

   The trial court erred when it failed to enforce the terms of the
Commercial Lease Agreement.

   [Second Assignment of Error]

   The trial court erred when it failed to enter judgment as a matter
of law in favor of Habitec.

   [Third Assignment of Error]

   The trial court erred by refusing to instruct the jury on the
defense of intervening superseding cause.

   [Fourth Assignment of Error]

   The trial court erred as a matter of law when it added Phil Brondes Sr., who was not a party to the contract, as a new-party plaintiff after the expiration of the statute of limitations and refused to grant judgment as matter of law dismissing him from this litigation.



    [*P95] On December 21, 2002, Brondes, Phil Brondes, [**54] Sr., and Universal filed a notice of cross-appeal, in which they set forth the following cross-assignments of error:


   First [Cross-] Assignment of Error

   The trial court erred when it abandoned and ignored the jury's verdict awarding replacement rent overhead damages consistent with a month of testimony, two and a half days of focused deliberation, and strict compliance with the court's jury instruction, interrogatories and verdict forms[.]

   Second [Cross-] Assignment of Error

   The trial court abused its discretion when it subsequently ruled the jury verdict for Brondes was against the weight of the evidence[.]

   Third [Cross-] Assignment of Error

   The trial court erred in granting JNOV and vacating the replacement
rent overhead award given Habitec repeatedly waived the issue[.]

   Fourth [Cross-] Assignment of Error

   The trial court erred in not awarding prejudgment interest on the
jury's verdict which unquestionably found Habitec breached its
contract[.]

   Fifth [Cross-] Assignment of Error

   The trial court erred in not awarding the proper amount of costs
due [to] the prevailing parties[.]



    [*P96] In its first assignment of error, Habitec asserts that the trial
court erred when it denied Habitec's motion for summary [**55] judgment and
failed to enforce the terms of the Agreement. Specifically, Habitec argues that
the contract clause limiting damages to $250 was not unconscionable or against
public policy, the one-year limitation on bringing an action against Habitec is
enforceable and the Agreement bars enforcement of Universal's third-party claim
against Habitec.

    [*P97] We note at the outset that an appellate court reviews the trial
court's granting or denying of summary judgment de novo, applying the same
standard used by the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio
App.3d 127, 129, 573 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment will be granted
when there remains no genuine issue of material fact and, when construing the
evidence most strongly in favor of the non-moving party, reasonable minds can
only conclude that the moving party is entitled to judgment as a matter of law.
Civ.R. 56(C). Initially, the party seeking summary judgment bears the burden of
informing the trial court of the basis for the motion and identifying portions
of the record demonstrating an absence of genuine issues of material fact as to
the essential elements of the non-moving party's claims. Id. Similarly, "a
determination as to whether a written contract is unconscionable is a matter of
law" which courts review [**56] de novo. Taylor Bldg. Corp. of Am. v. Benfield,
117 Ohio St.3d 352, 2009-Ohio-938, 884 N.E.2d 12, ¶ 35. With these standards in mind, we will address Habitec's three arguments.

A. The Damages Limitation Clause

    [*P98] The trial court summarily found that the clause limiting Habitec's
liability under the Agreement to $250 was "against public policy," and denied
Habitec's motion for summary judgment as to that issue. On appeal, Habitec
argues that the clause is a limitation on damages, not a liquidated damages
provision. Habitec further argues that the $250 limitation is not unconscionable
and is not against public policy because the Agreement clearly states that
Habitec is not an insurer, Brondes was required to obtain fire insurance to
cover its losses, and the parties were free to limit Habitec's liability for damages because the Agreement was a "non-personal, commercial transaction between sophisticated businesses."

    [*P99] In contrast, appellees make the argument that the damage limitation
is unconscionable because the typeface used in the Agreement is "so small it
requires a magnifying glass to read it." They also argue that Habitec tried to
"fine print away" its responsibility to provide fire detection services through
paragraphs 17 and 21 of the Agreement, in violation of R.C. 1302.93. We will now address each of these arguments. [**57]

    [*P100] As to appellees' first argument, the record shows that, at one
point, the trial court remarked that the typeface used in the Agreement was too
small to be read without a magnifying glass. However, the trial court later
corrected that impression, after being told that it was looking at a reduced-size copy of the original 8.5 by 14 inch document, which was in the trial court's record. Accordingly, appellees' attempt to generally characterize the Agreement as being written in "minute" type or "fine print" is misleading.

    [*P101] Further, in their appellate brief, appellees quoted paragraph 17 of
the Agreement as follows: "Company assumes no liability for delay . . . or for
interruption of service due to . . . fires." However, paragraph 17 reads, in its
entirety:


   17. DELAY IN INSTALLATION AND INTERRUPTION OF SERVICE: Company
assumes no liability for delay in installation of the equipment or for the  interruption of service due to strikes, riots, floods, storms, earthquakes, tornadoes, fires, power failures, insurrections, interruption of or unavailability of telephone services, act of God, or any other causes beyond the control of Company, and Company will not be required to give service to Subscriber [**58] while interruption of service due to any such cause shall continue.



    [*P102] A plain reading of the language used in paragraph 17, in its
entirety, shows that it addresses delays in installing or providing services due
to a variety of forces that are outside of Habitec's control. It does not
support appellees' argument that Habitec is attempting to absolve itself of a
duty to monitor the fire alarm equipment that it installed at the Brondes
dealership, or at any other facility. Therefore, appellees' attempt to
characterize paragraph 17 of the Agreement as an attempt to absolve Habitec of
all such responsibility is also misleading.

    [*P103] In addition, R.C. 1302.92(B), part of Ohio's version of the Uniform
Commercial Code ("UCC"), allows for contracting parties to limit or alter
damages, provided that such disclaimers are conspicuous. R.C. 1302.29 and Ins.
Co. of N. Am. v. Automatic Sprinkler Corp. of Am., 67 Ohio St.2d 91, 423 N.E.2d
151 (1981). It also provides for at least a minimum adequate remedy for the
victim of a breach. Targetronix v. Flextronics Intern., USA, Inc., 8th Dist.
Cuyahoga No. 82225, 2003-Ohio-3963, ¶ 15. However, in this case, R.C. 1302.92 and 1302.29 do not apply, since appellees' claims against Habitec revolve around alleged improper design, installation and monitoring, which predominantly involve the provision of services, not goods. See Allied Indus. Serv. Corp. v. Kasle Iron & Metals, Inc., 62 Ohio App.2d 144, 405 N.E.2d 307 (6th Dist.1977) (If the contract is for mixed goods and services, the UCC does not apply [**59] if its predominate factor and purpose "is the rendition of service, with goods incidentally involved * * *.").

    [*P104] As for appellees' last argument, generally, in Ohio:


   [P]arties to a contract are free to insert provisions which apportion damages in the event of default. "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. Responsibility for the exercise,
however improvident, of that right is one of the roots of its preservation." Blount v. Smith (1967), 12 Ohio St.2d 41, 47, 41 O.O.2d 250, 253, 231 N.E.2d 301, 305. Lake Ridge Academy v. Carney, 66 Ohio St.3d 376, 381, 613 N.E.2d 183 (1993).



    [*P105] In spite of the foregoing, for public policy reasons, parties are
not permitted to have "complete freedom of contract." Id. at 381. Limitations
may be imposed in cases where a contract provision violates public policy or
constitutes a penalty. In order to resolve such issues, courts are required to
consider on a case-by-case basis "[whether] the provision was reasonable at the
time of formation and [whether] it bears a reasonable (not necessarily exact)
relation to actual damages * * *." Id. at 382.

    [*P106] The following language is printed on the front side of the
Agreement,3 above the signature line:


   By signing this Agreement, Subscriber acknowledges [**60] that he
has read the entire Agreement, both the front and the back pages; that
he has an opportunity to have it reviewed by his attorney and/or
insurance consultant, that he understands and agrees to all of the
terms, conditions and provisions herein contained; and has in
particular read paragraph 21 herein, wherein Subscriber understands
that Company's liability is limited. THIS AGREEMENT BECOMES BINDING ON
COMPANY ONLY WHEN SIGNED BY A MANAGEMENT REPRESENTATIVE OF COMPANY. NO REPRESENTATION MADE BY ANY SALESMAN OF COMPANY OR ANY OTHER PERSON SHALL SURVIVE THE SIGNING OF THIS AGREEMENT.




- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -3   All bold
face and capitalized type used in this decision was in the original document.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P107] Paragraph 21, which is printed on the reverse side of the
Agreement, states:


   21. COMPANY NOT AN INSURER AND LOSS FOR DAMAGES: It is understood
and agreed that: Company is NOT AN INSURER; insurance, if any, shall
be obtained by Subscriber; the payments provided for herein are based
solely on the value of service and are unrelated to the value of
Subscriber's property or property of others located on Subscriber's
premises; Company makes NO GUARANTEE OR WARRANTY, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS [**61] , that equipment
or services supplied will avert or prevent occurrences or consequences
therefrom which the System or service is designed to detect or avert.
Subscriber acknowledges that it is impractical and extremely difficult
to fix actual damages, if any, which may proximately result from a
failure to perform any of the obligations herein, or failure of the
System to properly operate with resulting loss to subscriber because
of, among other things: (a) the uncertain amount or value of
Subscriber's property or property of others kept on the premises which
may be lost, stolen, destroyed, damaged or otherwise affected by
occurrences which the System or service is designed to detect or
avert; (b) the uncertainty of response time of any police or fire
department, should the police or fire department be dispatched as a
result of a signal being received or an audible device sounding; (c)
the inability to ascertain what portion, if any, of any loss would be
proximately caused by Company's failure to perform or by a failure of
its equipment to operate; (d) the nature of the service to be
performed by Company.

   Subscriber understands and agrees that if Company should be found
liable for loss [**62] or damage due from a failure of Company to
perform any of the obligations herein, including but not limited to
installation, maintenance, monitoring or service or failure of the
System or equipment in any respect whatsoever, Company's liability
shall be limited to Two Hundred Fifty ($250.00) Dollars and this
liability shall be exclusive; and that the provisions of this section
shall apply if loss or damage irrespective of cause or origin, results
directly or indirectly to persons or property, from performance or
non-performance of the obligations imposed by this Agreement, or from
negligence, active or otherwise, of Company, its agents, successors,
assigns or employees.

   In the event that Subscriber wishes Company to assume greater
liability, Subscriber has the right to obtain from Company a higher
liability by paying an additional amount per month for the increase in
liability, and a rider shall be attached hereto setting forth such
higher limit and cost, but such additional obligation shall in no way
be interpreted to hold company as an insurer. This increased amount is
up and above the additional payment for the extended limited warranty.



    [*P108] Appellees argue on appeal that the test articulated [**63] by the
Ohio Supreme Court in Samson Sales, Inc. v. Honeywell, Inc., 12 Ohio St.3d 27,
465 N.E.2d 392 (1984), is controlling of the outcome of the case. In Samson, the
predecessor of the Honeywell alarm company installed a burglar alarm in a pawn
shop, which failed to transmit an alarm signal to local authorities. As a
result, merchandise worth $68,303 was stolen from the shop. The contract for
alarm services stated that the company's liability was unconditionally limited
to $50 in "liquidated damages."

    [*P109] In deciding whether the contract provision was enforceable, the
Ohio Supreme Court stated:


   Where the parties have agreed on the amount of damages, ascertained
by estimation and adjustment, and have expressed this agreement in
clear and unambiguous terms, the amount 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
[**64] thereof. Id. at the syllabus.



    [*P110] The Samson court concluded that the provision at issue had "the
nature and appearance of a penalty" which required the shop owner to pay $10,500
for services only to receive $50 in liquidated damages, and voided the
liquidated damages provision. Id. at 394.

    [*P111] In the wake of Samson, numerous Ohio courts have considered cases
involving "liquidated damages and/or limitation of liability clauses in alarm
systems contracts" without always distinguishing between the two types of cases.
Nahra v. Honeywell, Inc., 892 F.Supp. 962, 969 (N.D.Ohio 1995). (Citations
omitted.) However, in contrast to liquidated damage clauses, which are subject
to the full analysis under Samson, clauses that limit liability between
commercial parties are generally enforceable unless the breaching party is found
to be grossly negligent, or the contract is shown to be unconscionable.
Motorists Mut. Ins. Co. v. ADT Security Sys., 2d Dist. Montgomery Nos. 14799,
14803, 1995 WL 461316 (Aug. 4, 1995), citing Richard A. Berjian, D.O., Inc. v.
Ohio Bell Telephone Co. (1978), 54 Ohio St.2d 147, 158, 375 N.E.2d 410 (1978).
The distinction between the two is clear:


   While both types of clauses may under certain circumstances be
found to be unconscionable or to violate public policy, the factual
predicates for these findings, like the legal rationales allowing such
clauses in the first instance, differ [**65] with the type of clause
involved. * * * Liquidated damages clauses, properly employed, attempt
to fix in advance "reasonable compensation for actual damages."
However, a limitation of liability clause by definition restricts the
amount of compensation available, regardless of the actual damages
ultimately suffered. * * *. Nahra, supra, at 969, citing Restatement
(First) of Contracts, Section 339, Comment g (1932).4 See also Whittle
v. Davis, 12th Dist. Butler No. CA2012-08-169, 2013-Ohio-1950, ¶ 14-15
.




- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4   Comment g
states that a limitation of liability clause "is not an agreement to pay either
liquidated damages or a penalty. * * * [Accordingly], the contracting parties
can by agreement limit their liability in damages to a specified amount, either
at the time of making their principal contract, or subsequently thereto."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P112] In this case, paragraph 21 limits the amount of compensation to
$250, without making an attempt to determine in advance what damages would
result from a breach of the Agreement. Accordingly, the analyses in Samson and
its progeny, while instructive, are not controlling in this instance.
Nevertheless, the controversy still centers on whether the $250 damage
limitation in paragraph 21 is unconscionable, or constitutes a penalty.

    [*P113] In order to determine whether [**66] a commercial contract
provision is unconscionable, "courts will examine, as in consumer transactions,
the harshness of the terms of the contract and the relative bargaining positions
and experience of the parties, although the commercial plaintiff is held to a
higher standard than the ordinary consumer." Motorists Mutual, supra, citing
Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 55, 537
N.E.2d 624 (1989). In commercial settings, courts rarely find unconscionability.
Id.

    [*P114] In Motorists Mut. Ins. Co. v. ADT Security Sys., the Second
District Court of Appeals found that a contract provision limiting the liability
of a fire alarm company to "10 percent of the annual service charge or $1,000,
whichever is greater" was not unconscionable, and granted summary judgment to
ADT on that basis. In so doing, the appellate court determined that the contract
clause at issue was a limitation of liability provision, not a liquidated
damages provision. Id. The court reasoned that the provision did not constitute
a penalty, because it was clearly articulated in the parties' contract, which
had a warning displayed above the signature line on the front side of the
document directing the signers' attention to the limiting conditions stated on
the back. Also, clause E on the back of the document [**67] contained
all-capitalized type that stated the limitations on ADT's liability, including
the $1,000 cap on monetary damages "if ADT should be found liable for loss,
damage or injury due to a failure of service or equipment in any respect * * *."
Id.

    [*P115] Appellees did not present evidence to show that Habitec was the
only provider of fire alarm services in the Toledo area, or that no other alarm
company could have provided similar services at a reasonable cost. In addition,
it is undisputed that the plain, unambiguous terms of the Agreement allowed
Brondes to procure damage limits above $250 for an addition premium, but Brondes
did not purchase the additional protection. Also, paragraph 21 states, in bold,
capitalized letters, that Habitec "IS NOT AN INSURER," and that Brondes could
purchase its own fire insurance coverage, which Brondes did obtain. Accordingly,
under the circumstances of this case, we find that the damage limitation set
forth in paragraph 21 of the Agreement does not violate public policy, and is
not unconscionable or in the nature of a penalty due to the size of the typeface
or lack of warning of its contents. Finally, Phil Brondes, Sr.'s claim that he
did not read the [**68] reverse side of the Agreement and did not show the
document to an attorney before signing it is not a valid defense to the
enforcement of its terms. Haller v. Borror Corp., 50 Ohio St.3d 10, 14, 552
N.E.2d 207 (1990).

    [*P116] For the foregoing reasons, we find that the trial court erred when
it found that the $250 damage limitation in paragraph 21 violated public policy
and denied Habitec's motion for summary judgment as to that issue. Habitec's
argument is, therefore, well-taken.

B. The One-Year Claim Limitation

    [*P117] The trial court found that paragraph 25 of the Agreement, which
limits the time for bringing any cause of action to one year, instead of the
otherwise applicable twoyear statutory period, is unconscionable because it "was
not conspicuously marked and is therefore of no effect." The trial court relied
on R.C. 2305.10 and 2305.06, as well as Zurich-Am. Ins. Co. v. Citadel Alarm,
Inc., 8th Dist. Cuyahoga No. 50499, 1986 WL 5291 (May 8, 1986).

    [*P118] On appeal, Habitec argues that the time limitation was set off "in
bold, capital letters at the end of the Agreement." Habitec also asserts that
Phil Brondes, Sr. admitted that he was unaware of the limitation because he did
not read the Agreement in spite of the warning above his signature, and the
language of the limitation is "straightforward and not difficult to understand."

    [*P119] In contrast, appellees argue that the trial court [**69] correctly
concluded that the print used in paragraph 25 of the agreement is small enough
to render its provision unconscionable. In addition, appellees cite Miller v.
Progressive Cas. Ins. Co., 69 Ohio St.3d 619, 635 N.E.2d 317 (1994), in support
of their argument that the one-year claim limitation is against public policy.
We disagree, for the following reasons.

    [*P120] Paragraph 25 of the Agreement states:


   STATUTE OF LIMITATIONS: any action by Subscriber under this
Agreement in negligence, misrepresentation or fraud, or for any and
all other actions, causes of action, claims or charges, must be
commenced within one year from the date of occurrence or shall be
forever barred.



    [*P121] We have already determined that the typeface and bold, capitalized
headings used on the reverse side of the Agreement, coupled with the advisement
above the signature line and Phil Brondes, Sr.'s admission that he did not read
the Agreement before he signed it, do not demonstrate that the Agreement was
unconscionable on its face. We now turn to appellees' argument that paragraph 25
is void as against public policy, based on Miller v. Progressive Cas. Ins. Co.

    [*P122] In Miller, the Ohio Supreme Court stated generally that in Ohio,
the parties to a contract may validly limit the time for bringing an action
[**70] to a period that is shorter than the one provided by statute, so long as
the provision is reasonable. Id. at 625. However, Miller involved a contract to
provide uninsured motorists' insurance which contained a provision limiting the
time for filing a request to arbitrate claims to one year after the date of the
accident. In finding that such a provision violated public policy, the Supreme
Court held:


   [A] provision in a policy for uninsured or underinsured motorist
coverage which precludes the insured from commencing any action or
proceeding against the insurance carrier for payment of uninsured or
underinsured motorist benefits, unless the insured has demanded
arbitration and/or commenced suit within one year from the date of the
accident, is void as against public policy. Id. at the syllabus.



    [*P123] Unlike the circumstances in Miller, supra, the limitation in
paragraph 25 of the Agreement applies only to Brondes' ability to seek damages
from Habitec. The Agreement does not limit the time in which Brondes can bring
an action to recover benefits under its insurance contract with Universal.
Accordingly, we find that the policy considerations at issue in Miller do not
apply in this instance and we are [**71] not persuaded by the holding of that
case. In addition, as set forth above, the typeface used in the Agreement is not
so minute as to make its provisions unconscionable on its face, and the record
contains no additional evidence to show that limiting the time for filing a
claim to one year, rather than two years, is unreasonable.

    [*P124] For the foregoing reasons, we find that the trial court erred when
it found that the one-year limitation in paragraph 25 violated public policy and
denied Habitec's summary judgment motion as to that issue. Habitec's argument
is, therefore, well-taken.

C. Subrogation v. Indemnification

    [*P125] After the jury verdict was entered, Habitec filed a motion for JNOV
in which it argued that Universal's subrogation claim is barred by the language
in paragraph 19. On November 29, 2012, the trial court filed an opinion and
judgment entry in which it found that indemnification provisions require "'one
who is primarily liable to reimburse another who had discharged a liability for
which that other is only secondarily liable.' Krasny-Kaplan Corp. v. Flo-Tork,
Inc., 66 Ohio St.3d 75, 78, 609 N.E.2d 152 (1993)." In contrast, the trial court
stated that the concept of subrogation allows Universal to "stand in the shoes"
of appellees and directly seek to recover [**72] damages from Habitec. The
trial court concluded that the indemnification provision of paragraph 19 "does
not negate [Brondes'] separate agreement with Universal Underwriters for
subrogation," and denied Habitec's motion on that basis.

    [*P126] Similar to our review on summary judgment, our review of a trial
court's order denying a motion for a directed verdict or a motion for JNOV is de
novo. Link v. FirstEnergy Corp., 8th Dist. Cuyahoga No. 101286, 2014-Ohio-5432,
¶ 14, citing Zappola v. Rock Capital Sound Corp., 8th Dist. Cuyahoga No. 100055,
2014-Ohio-2261, ¶ 63. Accordingly, we are required to construe the evidence in
the light most favorable to the non-moving party. Id.; Posin v. A.B.C. Motor
Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976). "The motion
should be denied if there is substantial evidence to support the non-moving
party's side of the case and if reasonable minds could reach different
conclusions." Id. "In deciding the motion, the trial court shall not weigh the
evidence or the credibility of the witnesses." Id.

    [*P127] In construing the language of a contract that provides for
indemnification, a court must look at the plain and ordinary meaning of the
words used. Motorist Ins. Co. v. Shields, 4th Dist. Athens No. 00CA26, 2001 WL
243285 (Jan. 29, 2001), citing Worth v. Aetna Cas. & Sur. Co., 32 Ohio St.3d
238, 256, 513 N.E.2d 253 (1987). In this case, the indemnification provision set
forth in paragraph 19 was part of an agreement between Habitec and Brondes.
Paragraph 19 of the Agreement states:


   THIRD PARTY INDEMNIFICATON: Subscriber agrees to and shall
indemnify, defend and [**73] hold harmless, Company, its employees
and agents, for and against all claims, lawsuits and losses which
claim and/or lawsuit is brought or loss sustained by parties or
entitied [sic] other than parties to this Agreement (referred herein
as third parties). This provision shall apply to all claims, lawsuits
or damages caused by Company's negligent performance, active or
passive, express or implied, contract or warranty, contribution or
indemnification or strict or product liability of Company, its agents,
successors, assigns or employees.



    [*P128] A review of the language of paragraph 19 shows that it does nothing
to limit Universal's rights as a subrogor, since the subrogation agreement was
between Universal and Brondes, and not between Brondes and Habitec. See
Motorists Mut. Ins. Co. v. Hall, 10th Dist. Franklin No. 02AP-1256,
2005-Ohio-3811, ¶ 15. Accordingly, as a matter of law, the trial court correctly
denied Habitec's motion for JNOV on that particular issue.5 However, Ohio courts
have held that "[a] subrogated insurer stands in the shoes of the
insured-subrogor and has no greater rights than those of its insured-subrogor.
Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut. Ins. Co., 42 Ohio St.3d 40, 42, 537
N.E.2d 624 (1989)." Nationwide Mut. Fire Ins. Co. v. Buckley, 9th Dist. Medina
No. 06CA0013-M, 2006-Ohio-5362, ¶ 14. Accordingly, as set forth above, Brondes'
rights to collect damages from Habitec [**74] are limited by the terms of the
Agreement.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -5   The issue
of whether Habitec is entitled to indemnification by Brondes is not before this
court.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P129] Upon consideration of the foregoing, we find that the trial court
erred as a matter of law when it found that paragraphs 21 and 25 were
unconscionable and/or violated public policy, and denied Habitec's motion for
summary judgment on that basis. We further find that the trial court correctly
concluded that the indemnification provision contained in paragraph 19 does not
bar Universal from asserting a subrogation claim against Habitec, subject to the
limitations expressed elsewhere in the Agreement.

    [*P130] This court has reviewed the record as to the issues raised in
Habitec's first assignment of error and, after reviewing all of the relevant,
admissible evidence and construing it most strongly in favor of appellees, finds
that Habitec's first assignment of error is well-taken in part and not
well-taken in part.

    [*P131] In its second assignment of error, Habitec asserts that the trial
court erred when it failed to enter judgment in Habitec's favor as a matter of
law. In support, Habitec argues that the record contains insufficient competent,
credible evidence to [**75] support the jury's finding that Habitec's actions
were the proximate cause of Brondes' additional damages. Specifically, Habitec
asserts that Rick Spencer could not testify as to the amount of damages due to a
late reporting of the fire; J. Moore stated that he never actually calculated
the amount of damage due to the fire; AFT Agent D. Moore stated that he did not
know the requirements for fighting a fire but, "hopefully," earlier detection
would have resulted in less damage; Dr. Jason Floyd could not state what effect
earlier detection would have had on damages; and the testimony of various people
who smelled smoke is not sufficient to prove that the smoke came from the
Brondes fire. Also, Habitec asserts that the record contains no expert testimony
on the issue of "additional damage."

    [*P132] In its November 29, 2012 judgment entry, after reviewing the
evidence presented by both parties at trial, the trial court found that
appellees presented "sufficient credible evidence for the jury to consider" as
to the issue of proximate cause. As set forth above, in reviewing the trial
court's decision, we must conduct a de novo review, construing the evidence most
favorably in light of the non-moving [**76] party. Link v. FirstEnergy Corp.,
8th Dist. Cuyahoga No. 101286, 2014-Ohio-5432, supra, at ¶ 13.

    [*P133] The Ohio Supreme Court has stated that:


   "[I]t is generally true that, where an original act is wrongful or
negligent and in a natural and continuous sequence produces a result
which would not have taken place without the act, proximate cause is
established, and the fact that some other act unites with the original
act to cause injury does not relieve the initial offender from
liability." One is thus liable for the natural and probable
consequences of his negligent acts. Strother v. Hutchinson, 67 Ohio
St.2d 282, 287, 423 N.E.2d 467 (1981), quoting Foss-Schneider Brewing
Co. v. Ulland, 97 Ohio St. 210, 119 N.E. 454 (1918).

   [I]n determining what is direct or proximate cause, the rule
requires that the injury sustained shall be the natural and probable
consequence of the negligence alleged; that is, such consequence as
under the surrounding circumstances of the particular case might, and
should have been foreseen or anticipated by the wrongdoer as likely to
follow his negligent act. Id., quoting Miller v. Baltimore & Ohio
Southwestern Rd. Co., 78 Ohio St. 309, 325, 85 N.E.499 (1908).



    [*P134] Ordinarily, proximate cause is a question of fact for the jury.
Strother, supra, at 288, citing Clinger v. Duncan, 166 Ohio St. 216, 223, 141
N.E.2d 156 (1957). However, "where no facts are alleged justifying any
reasonable inference that the acts or failure of the defendant constitute the
proximate cause of the injury, there is nothing for the jury [to decide], and,
as a matter of law, [**77] judgment must be given for the defendant." Kemerer
v. Antwerp Bd. of Edn., 105 Ohio App.3d 792, 796, 664 N.E.2d 1380 (3d Dist.1995)
; quoting Case v. Miami Chevrolet Co., 38 Ohio App. 41, 45-46, 175 N.E.2d 224
(1st Dist.1930); Vermett v. Fred Christen & Sons Co., 138 Ohio App.3d 586, 612,
741 N.E.2d 954 (6th Dist.2000).

    [*P135] Expert testimony as to the elements of proximate cause is not
required in every case to establish negligence. The need for expert testimony
depends on the nature of the negligence claim and the circumstances. Bernardini
v. Fedor, 9th Dist. Wayne No. 12CA0063, 2013-Ohio-4633, ¶ 6, citing Yates v.
Brown, 185 Ohio App.3d 742, 2010-Ohio-35, 925 N.E.2d 669, ¶ 18 (9th Dist.).
However, expert testimony is necessary whenever a factual issue is beyond the
ordinary, common and general knowledge and experience of a layperson. Ramage v.
Cent. Ohio Emergency Servs., Inc., 64 Ohio St.3d 97, 103, 592 N.E.2d 828 (1992),
and Darnell v. Eastman, 23 Ohio St.2d 13, 261 N.E.2d 114 (1970), syllabus.

    [*P136] An expert testifying on the issue of proximate cause must state an
opinion with respect to the causative event in terms of probability. Stinson v.
England, 69 Ohio St.3d 451, 633 N.E.2d 532 (1994), paragraph one of the
syllabus. Nonetheless, no "magic words" are required. Rather, the expert's
testimony, when considered in its entirety, must be equivalent to an expression
of probability. Charlesgate Commons Condo. Assn. v. W. Reserve Group, 6th Dist.
Lucas No. 2014-Ohio-4342, ¶ 14; Frye v. Weber & Sons Serv. Repair, Inc., 125
Ohio App.3d 507, 514-515, 708 N.E.2d 1066 (8th Dist.1998).

    [*P137] As set forth above, testimony was presented at the Daubert hearing
and at trial as to how and where Habitec placed the heat detectors in the
Brondes facility. Specifically, although several witnesses did not know where
the detectors were placed, Long testified that they were placed on the bottoms
of trusses spanning the quick lube area, at least six feet below the ceiling.
Rick Spencer testified that a two-hour delay in [**78] reporting the fire
contributed to the damage, and that placing the detectors on the bottoms of the
trusses added to the delay. In his deposition, D. Moore stated that the
detectors would have activated sooner if they were placed closer to the ceiling.
J. Moore said the installation did not comply with NFPA safety standards, and
the delay in detecting the fire resulted in more damage. Other witnesses
testified as to the amount of the actual damages.

    [*P138] On consideration of the foregoing, we agree with the trial court's
conclusion that the record contains sufficient competent, credible evidence to
allow the jury to determine whether Habitec's actions proximately caused
additional damages to the Brondes facility by delaying the detection of the
fire. Accordingly, the trial court did not err by denying Habitec's motion for a
directed verdict on that issue. Habitec's second assignment of error is not
well-taken.

   In its third assignment of error, Habitec asserts that the trial court erred
when it refused to instruct the jury as to the defense of superseding,
intervening cause. In support, Habitec argues that the requested instruction was
a correct statement of the law, reasonable minds might [**79] have concluded
that Simplex's actions were "new" and "independent," and, if Simplex had
performed its duties correctly, "the purported failure of the system would have
been avoided." Habitec further argues that, because the trial court did not give
the instruction, Habitec was precluded from obtaining a set-off of the $375,000
settlement paid by Simplex.

    [*P139] Generally, a requested jury instruction should be given if it is "a
correct statement of the law as applied to the facts in a given case." Tabatha
N.S. v. Zimmerman, 6th Dist. Lucas No. L-06-1252, 2008-Ohio-1639, ¶ 44, citing
Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 575 N.E.2d 828 (1991). In
addition, this court has stated that:


   "[A] court's instructions to the jury should be addressed to the
actual issues in the case as posited by the evidence and the
pleadings." State v. Guster, 66 Ohio St.2d 266, 271, 421 N.E.2d 157
(1981). Further, a determination as to jury instructions is a matter
left to the sound discretion of the trial court. Id. "In reviewing a
record to ascertain the presence of sufficient evidence to support the
giving of an * * * instruction, an appellate court should determine
whether the record contains evidence from which reasonable minds might
reach the conclusion sought by the instruction." Feterle v. Huettner,
28 Ohio St.2d 54, 275 N.E.2d 340 (1971), at syllabus. Id.



    [*P140] In Berdyck v. Shinde, 66 Ohio St.3d 573, 613 N.E.2d 1040 (1993),
the Ohio Supreme Court set forth the following rule as to the defense of
superseding, intervening cause: [**80]


   The intervention of a responsible human agency between a wrongful
act and an injury does not absolve a defendant from liability if that
defendant's prior negligence and the negligence of the intervening
agency co-operated in proximately causing the injury. If the original
negligence continues to the time of the injury and contributes
substantially thereto in conjunction with the intervening act, each
may be a proximate, concurring cause for which full liability may be
imposed. * * *

   In order to relieve a party of liability, a break in the chain of
causation must take place. A break will occur when there intervenes
between an agency creating a hazard and an injury resulting therefrom
another conscious and responsible agency which could or should have
eliminated the hazard. * * * However, the intervening cause must be
disconnected from the negligence of the first person and must be of
itself an efficient, independent, and self-producing cause of the
injury. Id. at 584-585.



    [*P141] In Ohio, a break in the causal connection between the original
negligent act "is broken and superseded by later negligence only if the latter
act is both 'new' and 'independent.'" Tabatha N.S., supra, at ¶ 50. In this
case, however, [**81] Habitec disputes appellees' claim that it was negligent
in the first place. In addition, the evidence presented shows only that Simplex
inspected a system that was installed by Habitec. Accordingly, while the
requested instruction may be a correct statement of the law, the record does not
contain evidence to show that Simplex performed any "new" or "independent" acts
that, in themselves, may have caused the alarm system to fail.

    [*P142] On consideration of the foregoing, we find that the trial court's
decision not to provide the requested instruction was not unreasonable,
arbitrary or unconscionable and therefore did not constitute an abuse of
discretion. Habitec's third assignment of error is not well-taken.

    [*P143] In its fourth assignment of error, Habitec asserts that the trial
court erred by: (1) allowing Phil Brondes, Sr. to be added as a new plaintiff
after the expiration of the statute of limitations, and (2) later denying
Habitec's motion for JNOV on that issue because "justice requires it." In
support, Habitec argues that Brondes, Sr.'s negligence claim, which was brought
four years after the fire, is barred by a two-year statute of limitation.

    [*P144] The trial court's decision to grant or deny [**82] a motion to add
a party will not be overturned on appeal absent a finding of abuse of
discretion. Landis v. Grange Mut. Ins. Co., 95 Ohio App.3d 422, 429, 642 N.E.2d
679 (6th Dist.1994), citing Peterson v. Teodosio, 34 Ohio St.2d 161, 297 N.E.2d
113 (1973). An abuse of discretion connotes that the trial court's attitude in
reaching its decision was unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

    [*P145] Pursuant to Civ.R. 15(A), a pleading may be amended either: (1) as
a matter of course any time before a responsive pleading is filed, or (2) by
leave of court "when justice so requires." The process is further addressed in
Civ.R. 15(C), which governs the relation back of amended pleadings as follows:


   Whenever the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the amendment
relates back to the date of the original pleading. An amendment
changing the party against whom a claim is asserted relates back if
the foregoing provision is satisfied and, within the period provided
by law for commencing the action against him, the party to be bought
in by amendment (1) has received such notice of the institution of the
action that he will not be prejudiced in maintaining his defense on
the merits, and (2) knew or should have known that, but for a mistake
concerning [**83] the identity of the proper party, the action would
have been brought against him. * * *



    [*P146] A careful review of the language used in Civ.R. 15(C) shows that it
governs three different sets of circumstances. The first two involve the
addition of a "claim" or "defense." The third scenario involves the later
addition of a defendant. In no case does the rule refer to the addition of a
"plaintiff."

    [*P147] The Ohio Supreme Court has held that "[t]he primary purpose of
Civ.R. 15(C) is to preserve actions which, through mistaken identity or
misnomer, have been filed against the wrong person." Littleton v. Good Samaritan
Hosp. & Health Ctr., 39 Ohio St.3d 86, 101, 529 N.E.2d 449 (1988). Relation back
is not generally allowed in cases where "a new plaintiff brings a new cause of
action." Id. Under both Federal and Ohio law, the "chief consideration of policy
is that of the statute of limitations." Shefkiu v. Worthington Industries, Inc.,
6th Dist. Fulton No. F-13-014, 2014-Ohio-2970, ¶ 23. For that reason, in order
for an amendment to relate back to the original date the complaint was filed
pursuant to Civ.R. 15(C), it must be filed within the period for bringing such
an action. Unless specifically prohibited by statute, such time period may be
reasonably established by a contract between the parties. Kraly v. Vannewkirk,
69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). As set forth above, we have
determined that the one-year [**84] limitation set forth in paragraph 25 of the
Agreement is reasonable.

    [*P148] In other cases involving the addition of a new party plaintiff,
some courts have considered Civ.R. 17(A), which provides, in relevant part,
that:


   No action shall be dismissed on the ground that it is not
prosecuted in the name of the real party interest until a reasonable
time has been allowed after objection for ratification of commencement
of the action by, or joinder or substitution of, the real party in
interest. Such ratification, joinder, or substitution shall have the
same effect as if the action had been commenced in the name of the
real party in interest.



    [*P149] In Shefkiu, supra, this court addressed the application of Civ.R.
15(C) and 17(A) to the addition of a plaintiff after the statute of limitation
had expired. In that case, we held that neither is available where, as in this
case, the party commencing the litigation lacks standing. Id. at ¶ 27.

    [*P150] Standing is defined as "[a] party's right to make a legal claim or
seek judicial enforcement of a duty or right." Ohio Pyro, Inc. v. Ohio Dept. of
Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, quoting
Black's Law Dictionary (8th Ed.2004). "The Ohio Supreme Court has recently
explained that standing is required to invoke the jurisdiction of the trial
court, and that, therefore, it is [**85] determined as of the filing of the
complaint." BK Builders, Ltd. v. The E. Ohio Gas Co., 5th Dist. Stark No.
2013CA00210, 2014-Ohio-3850, ¶ 28, citing Fed. Home Loan Mtge. Corp. v.
Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 3.

    [*P151] In its decision, the trial court stated that Brondes, Sr.'s
negligence claim should relate back to the original filing of the complaint
because it "is based on the same event or transaction as stated in the original
pleading." However, as set forth above, in support of their motion to add
Brondes, Sr. as an additional plaintiff, appellees argued that the cause of
action which formed the basis of Brondes, Sr.'s negligence claim did not exist
at the time the original complaint was filed.

    [*P152] On consideration we find that, at the time the original complaint
was filed, Brondes, Sr. did not have standing to bring a negligence claim
against Habitec. We further find that by the time Brondes, Sr. attempted to file
his claim, the one-year limitation period under the Agreement had expired.
Accordingly, the trial court erred as a matter of law, and therefore abused its
discretion, when it granted appellees' motion to amend the original complaint
and allow Brondes, Sr.'s claim to relate back to the original filing date
pursuant to Civ.R. 15(C). Habitec's fourth assignment of error is well-taken.
Having disposed of Habitec's assignments of error, we will [**86] now address
appellees' cross-assignments of error.

    [*P153] In their first cross-assignment of error, appellees assert that the
trial court erred when it granted Habitec's motion for JNOV and vacated the
jury's award for "replacement" rent based on the increased costs of building a
new, bigger dealership. In their second cross-assignment of error, appellees
assert that the trial court erred when it substituted its own opinion for that
of the jury and found that the arrangement between Brondes and BLM, which fixed
the amount of rent for the new dealership, was not an arm's length transaction.
In their third cross-assignment of error, appellees assert that the trial court
erred by granting the motion for JNOV because Habitec failed to object to the
issue before it was given to the jury. Since all three of these
cross-assignments of error are related, they will be considered together.

    [*P154] In support of its first three cross-assignments of error, appellees
argue that the jury's award of damages for increased rent was consistent with:
(1) the evidence and testimony presented at trial, and (2) Ohio law, which
allows for recovery of increased rent as damages. Appellees further argue that
the court's ruling [**87] was inconsistent with its own earlier decisions,
which denied Habitec's prior attempts to have the issue of increased rent
dismissed and fashioned specific interrogatories on that issue for the jury's
consideration. Finally, appellees argue that the jury's answers to the
interrogatories were internally consistent with the award, and Habitec's failure
to prevent the issue from being presented to the jury amounts to a waiver of the
issue on appeal.

    [*P155] We note initially that, based on our determinations of Habitec's
assignments of error, the issue of the amount of the jury award, to the extent
that it exceeds $250, is moot. However, in the interest of clarity, we will
consider the legal issue of whether the trial court erred in granting Habitec's
motion for JNOV.

    [*P156] On appeal, "[w]e review a trial court's ruling on a motion for
judgment notwithstanding the verdict ("JNOV") de novo." Seese v. Ohio Bur. of
Workers' Comp., 11th Dist. Trumbull No. 2009-T-0018, 2009-Ohio-6521, ¶ 11.


   Where a party seeks JNOV, "[t]he evidence adduced at trial and the
facts established by admissions in the pleadings and in the record
must be construed most strongly in favor of the party against whom the
motion is made, and, where there is substantial [**88] evidence to
support his side of the case, upon which reasonable minds may reach
different conclusions, the motion must be denied. Neither the weight
of the evidence nor the credibility of the witnesses is for the
court's determination in [making its] ruling * * *." Id., citing Posin
v. A.B.C. Motor Court Hotel, 45 Ohio St.2d 271, 275, 344 N.E.2d 334
(1976).



    [*P157] A motion for JNOV presents questions of law, not fact, "even though
in deciding such a motion, it is necessary to review and consider the evidence."
Id., citing Blatnik v. Dennison, 148 Ohio App.3d 494, 504, 774 N.E.2d 282 (11th
Dist.2002), quoting O'Day v. Webb, 29 Ohio St.2d 215, 280 N.E.2d 896 (1972),
paragraph three of the syllabus.

    [*P158] In its decision on Habitec's post-verdict motions, issued on
November 29, 2012, the trial court found, based on evidence presented at trial,
that Brondes, Sr. and Brondes, Jr. were "the sole decision makers for Brondes
Ford, and Brondes, Jr. is the sole shareholder in BLM * * *." The trial court
further found that the new dealership was significantly superior to the old
facility, and appellees' "own appraiser agreed that the lease is not an arm's
length agreement." Accordingly, the trial court concluded that appellees failed
to present sufficient evidence at trial to show that the $48,000 rent payment
from Brondes to BLM was an arm's length transaction, and granted Habitec's
motion for JNOV pursuant to this [**89] court's decision in Ma Chere Hair
Academy v. The Rolo Co., 6th Dist. Lucas No. L-85-287, 1986 WL 7111 (June 20,
1986). Upon reviewing the record we agree with the trial court's findings, and
further find that evidence was presented to show that the amount of the "rent"
paid to BLM by Brondes was set to correspond to the amount of the mortgage
payments for the new dealership.

    [*P159] As to whether the issue was waived on appeal, the record shows that
Habitec filed pre-trial motions to remove the issue of increased rent from the
jury's consideration, which the trial court denied. Habitec's decision to not
challenge the form and content of the jury instructions and interrogatories did
not preclude a later challenge to the jury's verdict. See Bicudo v. Lexford
Properties, Inc., 157 Ohio App.3d 509, 2004-Ohio-3202, 812 N.E.2d 315, ¶ 43-44
(7th Dist).

    [*P160] On consideration of the foregoing, and after construing the
evidence most strongly in favor of appellees we find, as a matter of law, that
the lease between BLM and Brondes was not an arm's length transaction and
Habitec did not waive the issue for purposes of appeal. Appellees' first three
cross-assignments of error are not well-taken.

    [*P161] In their fourth cross-assignment of error, appellees assert that
the trial court erred by denying their request for prejudgment interest. In
support, [**90] appellees argue collectively that they are entitled to
prejudgment interest pursuant to R.C. 1343.03(A), which states that prejudgment
interest begins to accrue when a payor's obligation becomes "due and payable
under the contract." Accordingly, they argue that: (1) Universal is entitled to
$901,436.39 in statutory interest on the jury's award of $1,739,584.99, (2)
Brondes is entitled to $840,854.79 in statutory interest on the jury's award of
$2,300,000, from August 1, 2004 until March 25, 2011, and (3) Phil Brondes, Sr.,
is entitled to $23,360.68 in statutory interest on the jury's verdict of
$40,700.00 from May 27, 2002, until March 25, 2011.

    [*P162] As with appellees' first three cross-assignments of error, based on
our determinations of Habitec's assignments of error, the issue of prejudgment
interest on the jury award to appellees, to the extent that the judgment exceeds
$250, is moot. However, in the interest of clarity, we will consider the legal
issue of whether the trial court erred by not awarding prejudgment interest in
this case.

    [*P163] Generally, prejudgment interest "acts as compensation and serves
ultimately to make the aggrieved party whole." Royal Elec. Constr. Corp. v. Ohio
State Univ., 73 Ohio St.3d 110, 117, 652 N.E.2d 687 (1995). The purpose of
prejudgment interest is to compensate [**91] the plaintiff "for the period of
time between the accrual of the claim and the judgment, regardless of whether
the judgment is based upon a claim that was liquidated or unliquidated, and even
if the amount due was not capable of ascertainment until determined by the
court." Gates v. Praul, 10th Dist. Franklin No. 10AP-784, 2011-Ohio-6230, ¶ 60,
citing Royal Elec. Constr. Corp. at syllabus.

    [*P164] The Supreme Court of Ohio has "specifically and clearly declined to
establish a bright-line rule regarding the accrual date of prejudgment interest
but rather left such a determination to the trial courts on a case-by-case
basis." Gates at ¶ 62, quoting Miller v. Gunckle, 96 Ohio St.3d 359, fn. 4, 775
N.E.2d 475 (2002). (Additional citations omitted.)

    [*P165] On appeal, appellees argue that prejudgment interest should be paid
for breach of contract pursuant to R.C. 1343.03(A). The statute provides, in
relevant, part, that:


   [W]hen money becomes due and payable upon any bond, bill, note, or
other instrument of writing, upon any book account, upon any
settlement between parties, upon all verbal contracts entered into,
and upon all judgments, decrees, and orders of any judicial tribunal
for the payment of money arising out of tortious conduct or a contract
or other transaction, the creditor is entitled to interest [**92] at
the rate per annum determined pursuant to section 5703.47 of the
Revised Code, unless a written contract provides a different rate of
interest in relation to the money that becomes due and payable, in
which case the creditor is entitled to interest at the rate provided
in that contract. * * *



    [*P166] Once judgment is rendered for the plaintiff on a contract claim,
the only remaining issue to be resolved by the trial court "with respect to
prejudgment interest under R.C. 1343.03(A) is how much interest is due."
Zunshine v. Cott, 10th Dist. No. 06AP-868, 2007-Ohio-1475, ¶ 26. However, "[t]he
trial court must make factual determinations as to when interest commences to
run, based on when the claim became due and payable, and as to what legal rate
of interest applies." Id., citing Dwyer Elec., Inc. v. Confederated Bldrs., Inc.
, 3d Dist. No. 3-98-18, 1998 WL 767442 (Oct. 29, 1998). "[A]lthough the right to
prejudgment interest on a contract claim is a matter of law, pursuant to R.C.
1343.03(A), the amount awarded is based on the trial court's factual
determinations of the accrual date of the plaintiff's claim and the applicable
interest rate." Id.; Bell v. Teasley, 10th Dist. Franklin No. 10AP-850,
2011-Ohio-2744, ¶ 28.

    [*P167] On appeal, the trial court's decision will not be overturned absent
a finding of an abuse of discretion. Bell, supra. An [**93] abuse of discretion
connotes more than a mere error of law or judgment, instead requiring a finding
that the trial court's decision was unreasonable, arbitrary, or unconscionable.
Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 276.

    [*P168] In this case, the trial court found that the jury's award was based
on "negligence and/or breach of contract, and [was] not specifically for breach
of contract." In addition, the trial court found that appellees did not "provide
* * * argument or evidence of damages that might be read back to the contract as
a contractual debt owed * * *." Accordingly, the trial court found that
appellees were not entitled to any prejudgment interest pursuant to R.C.
1343.03(A).

    [*P169] While the total amount of appellees' claims is limited by the terms
of the Agreement as set forth above, the jury did find liability on the part of
Habitec that was due, at least in part, to breach of contract. We further find
that the trial court denied appellees' request for prejudgment interest without
stating when appellees' claims began to accrue and therefore became "due and
payable," as required by R.C. 1343.03(A) and applicable Ohio case law, and
without stating the applicable legal rate of interest. Accordingly, on
consideration, we find that the trial court abused [**94] its discretion in
this instance, and appellees' fourth cross-assignment of error is well-taken.

    [*P170] In their fifth cross-assignment of error, appellees assert that the
trial court erred by awarding an insufficient amount of costs as reimbursement
for their deposition and hearing transcript charges. In support, appellees argue
that they are entitled to reimbursement on $1,644.50, the cost of preparing a
transcript of the Daubert hearing, and $16,873.47 "in other expenses and fees
for their five expert witnesses to prepare for, appear, testify, and travel to
and from the two day hearing." Appellees further argue that those witnesses'
testimony was necessary "to defeat Habitec's motions for summary judgment,
motions to dismiss, motions in limine, and for directed verdict."

    [*P171] Generally, the trial court's decision to deny or award expenses as
costs will not be overturned on appeal absent an abuse of discretion. Jackson v.
Sunforest OB-GYN Assoc., Inc., 6th Dist. Lucas No. L-08-1133, 2008-Ohio-6170, ¶
7. However where, as here, the issue is whether or not the expense in question
is actually a "cost," the issue presented is a question of law, which we must
review de novo. Jackson, supra. Kmotorka v. Wylie, 6th Dist. Wood Nos.
WD-11-018, WD-11-026, 2013-Ohio-321, 2013 WL 425866, ¶ 51.

    [*P172] Civ.R. 54(D) states that "[e]xcept when express provision [**95]
therefor is made either in a statute or in these rules, costs shall be allowed
to the prevailing party6 unless the court otherwise directs." The Ohio Supreme
Court has held that the "costs" allowed by Civ.R. 54(D) "are limited to those
allowed by statute." Jackson, supra, at ¶ 8, citing Williamson v. Ameritech
Corp., 81 Ohio St.3d 342, 691 N.E.2d 288 (1998), syllabus. Those "costs" are
generally defined as "'the statutory fees to which officers, witnesses, jurors
and others are entitled for their services in an action and which the statutes
authorize to be taxed and included in the judgment.'" (Emphasis added.)
Williamson, supra, at 290, quoting Benda v. Fana, 10 Ohio St.2d 259, 227 N.E.2d
197 (1967), paragraph one of the syllabus.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -6   For
purposes of deciding the issue presented herein, and based on our determinations
as to Habitec's second and third assignments of error, we presume that appellees
were the "prevailing parties" in the underlying litigation.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P173] In addition, pursuant to R.C. 2303.21:


   [w]hen it is necessary in an appeal, or other civil action to
procure a transcript of a judgment or proceeding, or exemplification
of a record, as evidence in such action or for any other purpose, the
expense of procuring such transcript or exemplification shall be taxed
in the bill of costs and recovered as in other cases.



    [*P174] This court has held that transcripts [**96] that are filed and
used for any purpose that was necessary can be awarded as costs. Atkinson v.
Toledo Area Reg. Transit Auth., 6th Dist. Lucas No. L-05-1106, 2006-Ohio-1638, ¶
11, citing Raab v. Wenrich, 2d Dist. Montgomery No. 19066, 2001 WL 1782785 (Feb.
22, 2001). As noted by the trial court, Lucas County Court of Common Pleas
Gen.R. 5.07(C) requires that a transcript of a deposition must be filed if it
will be used as evidence at trial. In addition, in Boomershine v. Lifetime
Capital, Inc., 182 Ohio App.3d 495, 2009-Ohio-2736, 913 N.E.2d 520 (2d Dist.),
the Second District Court of Appeals, citing Keaton v. Pike Comm. Hosp., 125
Ohio App.3d 153, 705 N.E.2d 734 (4th Dist.1997), held that deposition expenses
may be recovered if they are used to support or oppose a motion for summary
judgment, where no trial was held. Id. at ¶ 13. The "evidence" referred to in
Civ.R. 56(C) includes "depositions," "affidavits," and "transcript of evidence,"
the "costs" of which may, pursuant to the trial court's discretion, be taxed to
a non-prevailing party. Id. This court has interpreted Boomershine to mean that
"the cost of depositions which are filed in an action and are 'necessary to the
trial' may be taxed as 'costs' pursuant to Civ.R. 54(D)." Kmotorka, supra, at ¶
53.

    [*P175] "[I]n seeking costs under Civ.R. 54(D), the prevailing party has
the burden of establishing that the expenses it seeks to have taxed as costs are
authorized by applicable law." Naples v. Kinczel, 8th Dist. Cuyahoga No. 89138,
2007-Ohio-4851, ¶ 6. Once this burden is established, the non-prevailing party
has the burden to overcome this presumption. Id.

    [*P176] In its decision, after considering the parties' [**97] motions and
hearing evidence, the trial court identified eight transcripts that were
actually filed by appellees pursuant to Lucas County Court of Common Pleas
Gen.R. 5.07(C) and used in some capacity during the trial, and assessed costs of
$1,917.40 for those items.7 However, the trial court further found that
appellees did not meet their burden to establish that the additional "costs" of
paying expert witnesses to appear and testify at the Daubert hearing and
preparing a transcript of that hearing were "necessary." Our review of the
record and the arguments presented on appeal confirms the trial court's finding,
particularly in light of our above determination that appellees' recovery is
limited by the terms of the Agreement. Accordingly, we cannot say that the court
abused its discretion by refusing to award those items to appellees as "costs"
pursuant to Civ.R. 54(D) and R.C. 2303.21. Appellees' fifth cross-assignment of
error is not well-taken.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -7   The
depositions identified in the trial court's judgment entry dated November 29,
2012, were those of Dave Gibel (invoice 1125 for $90), Bobby D. (invoice 1264
for $285), Phil Brondes, Jr. (invoice 1264 for $290), Dennis Jackson (invoice
1357 for $120), Corky Hong [**98] (invoice 857 for $189), Michael Bay (invoice
dated 07/06/06 for $56.40), D. Moore video (invoice 11973 for $507.50), and
William Bojarski (invoice 61360 for $379.50).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

    [*P177] The judgment of the Lucas County Court of Common Pleas is hereby
affirmed, in part, and reversed, in part. The case is remanded to the trial
court for further proceedings consistent with this decision. Appellant and
appellees are ordered to share the costs of this appeal pursuant to App.R. 24.

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