Concrete Creations & Landscape Design L.L.C. v. Wilkinson
2021 Ohio 2508
Ohio Ct. App.2021Background
- Diane Wallace and George Wilkinson formed Concrete Creations & Landscape Design LLC (CCLD) and signed an Operating Agreement (Oct. 11, 2017); Wallace was manager and provided funding; Wilkinson provided labor and equipment.
- Wilkinson performed plowing with his personal truck; Wallace purchased a plow and salt box for the truck and deposited funds into a company account. Wilkinson resigned on Jan. 13, 2018; CCLD hired a subcontractor (DD) to cover services.
- Wallace/CCLD sued Wilkinson for breach of contract (wrongful dissociation and violating a non-compete), fraud, defamation, conversion (retention of plow), intentional interference with business relations, breach of fiduciary duty, and conspiracy; Wilkinson counterclaimed (all counterclaims were rejected).
- After a bench trial the trial court found Wilkinson liable for wrongful dissociation and for breaching the non-compete clause, awarded $15,000 (dissociation) and $20,000 (non-compete), found conversion of the plow and awarded $13,948.50, and rejected claims for defamation, fraud, and intentional interference.
- On appeal the Seventh District affirmed liability rulings generally, upheld the $15,000 dissociation award, reversed the $20,000 non-compete award as speculative (remanding for nominal damages), and reduced conversion damages to $12,000 (value at time of conversion).
Issues
| Issue | Plaintiff's Argument (Wallace/CCLD) | Defendant's Argument (Wilkinson) | Held |
|---|---|---|---|
| Defamation (labels: "liar," "cheat," "scammer," "mentally ill," "stupid") | Statements were defamatory per se and harmful to trade/occupation | Statements were opinion protected by Scott/Vail totality-of-circumstances test | Statements were constitutionally protected opinion; defamation claim denied |
| Fraud (truck, debit/gift card, promises not to compete) | Wilkinson knowingly misrepresented ownership/use of truck, misused cards, and concealed equipment | No actionable false representations proved with required specificity; promises of future performance not fraud | Fraud claim rejected; judgment not against manifest weight of evidence |
| Intentional interference with business relations (work for Cornerstone) | Wilkinson induced customers to stop using CCLD by joining Cornerstone in violation of non-compete | No evidence of active inducement or intent to procure termination; mere breach of contract insufficient | Claim failed — no proof of intentional procurement or lack of justification |
| Breach of contract — Wrongful dissociation (Section 13.04) | Lost profits and cover costs (DD) >$44,000; testified winter profit ~$100–150k | Damages speculative; plaintiff failed to prove lost profits with reasonable certainty | $15,000 award affirmed as within trial court discretion; not speculative abuse of discretion |
| Breach of contract — Non-compete (Section 19.07) | Lost jobs to Cornerstone; seeks lost profits (high-value jobs) | Damages speculative and unsupported (no proof of specific lost contracts or net profits) | $20,000 award reversed; evidence of lost profits insufficient; remanded for nominal damages |
| Conversion (retained plow) & measure of damages | Plow retained after sheriff demand; replacement cost introduced | Initial possession lawful; refusal not proven; if conversion, damages should be market value at time of conversion (not replacement cost) | Conversion liability affirmed (failure to return plow); damages reduced from $13,948.50 to $12,000 (value when purchased) |
Key Cases Cited
- Scott v. News-Herald, 25 Ohio St.3d 243 (1986) (totality-of-circumstances test to distinguish protected opinion from actionable fact)
- Vail v. The Plain Dealer Publ'g Co., 72 Ohio St.3d 279 (1995) (reaffirming Scott test under Ohio Constitution)
- Wampler v. Higgins, 93 Ohio St.3d 111 (2001) (applying Scott/Vail to private-party opinion privilege)
- Eastley v. Volkman, 132 Ohio St.3d 328 (2012) (standards for reviewing manifest-weight and sufficiency of the evidence)
- Digital & Analog Design Corp. v. North Supply Co., 44 Ohio St.3d 36 (1989) (lost-profits proof: must show receipts and costs with reasonable certainty)
- Erie R.R. Co. v. Steinberg, 94 Ohio St. 189 (1916) (measure of damages in conversion: value at time of conversion)
- Bishop v. East Ohio Gas Co., 143 Ohio St. 541 (1944) (value-to-owner rule when market value cannot be obtained)
- American Chemical Society v. Leadscope Inc., 133 Ohio St.3d 366 (2012) (elements of defamation under Ohio law)