Cincinnati v. Triton Servs., Inc.
140 N.E.3d 1249
Ohio Ct. App.2019Background
- Triton contracted with Cincinnati (MSD) on multiple sewer projects (Wesselman, Carroll, Sagebrush); Ohio Farmers provided surety bonds.
- For Wesselman/Carroll, the city accidentally paid Triton twice ($496,256.09); Triton deposited and did not return the overpayment; city sued for unjust enrichment and bond recovery; later amended to add fraud claims then withdrew them.
- For Sagebrush, Triton encountered unexpected wet/sloughing soils and submitted multiple change-order requests for differing site conditions and damages; some CORs were later approved, others denied.
- The city moved in limine to exclude (a) evidence of differing site conditions for spoliation (Triton had not preserved soil samples) and (b) Triton director Gessner’s damages testimony; both motions were granted and evidence excluded.
- The court granted summary judgment for the city on unjust enrichment (Wesselman/Carroll) and on some bond issues for Triton/Farmers; the Sagebrush differing-site-conditions claim proceeded but was dismissed after the court (sitting as bench) granted the city’s motion to dismiss.
- On appeal, the court affirmed in part, reversed as to the Sagebrush evidentiary exclusions and the dismissal, and remanded for a new trial on the differing-site-conditions claim.
Issues
| Issue | City’s Argument | Triton’s Argument | Held |
|---|---|---|---|
| Spoliation sanction excluding soil-condition evidence | Triton failed to collect/preserve soil samples; exclusion proper | No duty to collect samples; city could have collected; no evidence existed to be destroyed | Reversed: exclusion for spoliation was improper (no spoliation where evidence never existed) |
| Exclusion of Gessner’s damages testimony (Evid.R. 403/702) | Testimony speculative, based on lost/withheld documents, improper total-cost method; unfairly prejudicial | Testimony probative and reasonably certain; defects go to weight not admissibility | Reversed: excluding Gessner was abuse of discretion; admissibility should be decided on record at trial |
| Directed verdict / dismissal of differing-site-conditions claim (Civ.R. 41(B)(2)) | After evidentiary rulings, no sufficient evidence to proceed | Rulings prevented Triton from presenting essential evidence; dismissal therefore erroneous | Reversed: dismissal erroneous as a matter of law because excluded evidence was wrongly barred; remand for new trial |
| Unjust enrichment for double payment (Wesselman/Carroll) | Triton received benefit, knew of it, retained it; equity favors repayment | Triton had earned original payment and disputes liability to subcontractor; city’s bookkeeping fault should bar recovery | Affirmed: summary judgment for city; Triton unjustly enriched by retaining mistaken overpayment |
Key Cases Cited
- Loukinas v. Roto-Rooter Servs. Co., 167 Ohio App.3d 559 (1st Dist. 2006) (trial court may exclude expert testimony as sanction for intentional spoliation)
- Wheatley v. Marietta College, 48 N.E.3d 587 (Ohio Ct. App. 2016) (spoliation requires prior existence and loss of relevant evidence)
- Complete Gen. Constr. Co. v. Ohio Dept. of Transp., 94 Ohio St.3d 54 (Ohio 2002) (Eichleay formula and prerequisites for home-office-overhead recovery for government-caused delays)
- Robb v. Chagrin Lagoons Yacht Club, 75 Ohio St.3d 264 (Ohio 1996) (elements of abuse of process and scope of court’s power)
- Hambleton v. R.G. Barry Corp., 12 Ohio St.3d 179 (Ohio 1984) (elements of unjust enrichment)
- Osler v. Lorain, 28 Ohio St.3d 345 (Ohio 1986) (directed verdict standard and its inapplicability in bench trials)