STALLOY METALS, INC., Plaintiff-Appellant, v. KENNAMETAL, INC., Defendant-Appellee.
CASE NO. 2013-G-3151
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
September 8, 2014
[Cite as Stalloy Metals, Inc. v. Kennametal, Inc., 2014-Ohio-4134.]
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 10 M 000478. Judgment: Affirmed.
Mark S. Fusco and William R. Hanna, Walter & Haverfield LLP, The Tower at Erieview, 1301 E. Ninth Street, Suite 3500, Cleveland, OH 44114 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
O P I N I O N
{¶1} Appellant, Stalloy Metals, Inc., appeals the judgment of the Geauga County Court of Common Pleas, following this court‘s remand, in which the trial court found in favor of appellee, Kennametal, Inc., on Stalloy‘s breach-of-contract claim. At issue is whether the trial court‘s finding that Stalloy failed to prove its entitlement to damages was against the manifest weight of the evidence. For the reasons that follow, we affirm.
{¶3} Stalloy‘s president, Suger Peck, testified that Stalloy had 120,000 pounds of carbide it wanted to sell to Kennametal. On October 17, 2008, she called Kennametal‘s buying agent, David Burns, and asked if Kennametal was interested in buying it. He said Kennametal was interested and offered to buy it at a price of $12.25/pound, which Ms. Peck accepted.
{¶4} Ms. Peck was familiar with Kennametal‘s terms and conditions regarding shipping, which required that no more than 1,000 pounds of carbide be shipped in any one container. She told Mr. Burns that the material was already packaged in 2,000-pound containers, and asked if she needed to repackage it in 1,000-pound containers. Mr. Burns said it would be all right to send it in the 2,000-pound containers. Later that day, Mr. Burns sent Ms. Peck a confirmation order by e-mail, stating that Kennametal had purchased 120,000 pounds of carbide at $12.25/pound. Ms. Peck sent an e-mail to him, stating that Kennametal‘s confirmation order had been received and was accepted.
{¶6} A few days later, Ms. Peck met with Mr. Barrett. She told him that Mr. Burns had said the drums were fine the way they were. He asked her if she had it in writing and she said she did not. He said, “well, then you have no proof.”
{¶7} Thereafter, between November 2008 and January 2009, Stalloy resold the material to another purchaser in a series of private sales at an average price of $7.12/pound for a total of $854,880.
{¶8} Following the trial, the court entered judgment in favor of Kennametal on Stalloy‘s complaint. The court found that, due to a no-oral modification clause in Kennametal‘s terms and conditions, the parol evidence rule prevented Stalloy from relying on the parties’ oral agreement to vary the 1,000-pound weight limitation. Thus, the court found it could not consider the oral agreement between Ms. Peck and Mr. Burns to vary the weight limit. The court found that since the parol evidence rule prevented any modification of the weight limit, Kennametal was entitled to reject Stalloy‘s shipment and did not breach the parties’ contract.
{¶10} On remand, the trial court entered two orders. First, on April 1, 2013, the court found that, based on those parts of the record identified by this court in Stalloy I, Stalloy reasonably relied on Kennametal‘s (via Mr. Burns) representation that it would be acceptable for Ms. Peck to ship the carbide in 2,000-pound drums. Thus, the court found that Kennametal waived its requirement that scrap not be shipped in containers weighing more than 1,000 pounds. As a result, the court found that Kennametal wrongfully rejected Stalloy‘s shipment. The court entered judgment in favor of Stalloy in an amount to be established by the court from its review of the record. The court ordered the parties to submit memoranda regarding the proper amount of damages.
{¶11} In its initial brief, Stalloy argued it should be awarded the difference between the contract price ($1,470,000) and the amount it received from reselling the
{¶12} After considering the parties’ briefs, on July 3, 2013, the trial court entered final judgment. The court found that because Stalloy did not give notice of its intent to resell the scrap, it could not use
{¶14} “[1.] The Trial Court erred when it found that Plaintiff-Appellant failed to offer credible evidence of its market damages at the time of Kennametal‘s breach of contract.
{¶15} “[2.] The Trial Court erred when it found that Plaintiff-Appellant was barred from obtaining damages because it failed to give notice of a sale under
{¶16} Appellant argues that, although it failed to give notice to Kennametal of its intent to resell the scrap, it was entitled to an award of damages using the difference between the contract price and the market price as the measure of damages. We do not agree.
{¶17} For the reasons set forth in Stalloy I, we apply Pennsylvania law in addressing the substantive issues and Ohio law in addressing procedural matters in Stalloy‘s appeal. Id. at ¶35; see Lawson v. Valve-Trol Co., 81 Ohio App.3d 1, 4 (9th Dist.1991), citing Howard v. Allen, 30 Ohio St.2d 130 (1972).
{¶18} The interpretation of a statute is a question of law. Wilson v. Transport Ins. Co., 2005 Pa. Super. 401, 889 A.2d 563, 570 (2005). “As with all questions of law, the appellate standard of review is de novo * * *.” In re Wilson, 2005 Pa. Super. 211, 879 A.2d 199, 218 (2005). The goal in interpreting any statute is to ascertain and effectuate the intent of the General Assembly. Cimino v. Valley Family Medicine, 2006 Pa. Super. 342, 912 A.2d 851, 853 (2006). The plain language of a statute is the best indication of the legislative intent that gave rise to the statute. Id. When the language is clear and
{¶19}
{¶20}
{¶21} Alternatively,
{¶22} Neither party cites any Pennsylvania case law addressing the interplay of these statutes. We note, however, that the courts of other states have analyzed them. “[T]he mandate of
{¶23} In Pennsylvania, the term “market value” is defined as “the price which a purchaser, willing but not obligated to buy, would pay an owner, willing but not obligated to sell, taking into consideration all uses to which the property is adapted and might in reason be applied.” Buhl Found. v. Board of Property Assessment, Appeals and Review, 407 Pa. 567, 180 A.2d 900, 902 (1962).
{¶24} Thus, pursuant to
{¶25} Here, it is undisputed that, following Kennametal‘s breach of contract, Stalloy resold the scrap at private sale, but did not give notice of that sale to Kennametal. Thus, Stalloy is not entitled to recover damages based on the price it received at private sale. In an effort to avoid this rule, Stalloy argues on appeal, as it did below, that it is entitled to recover the difference between the contract price and the market value.
{¶26} “It is well-settled in Ohio that a reviewing court will not consider issues which the appellant failed to raise in the trial court.” Fijalkovich v. W. Bishop Co., 123 Ohio App.3d 38, 43 (8th Dist.1997), citing Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41 (1975).
{¶27} Stalloy argues it did not waive the right to damages based on market value because its complaint for breach of contract was broad enough to encompass such damages. Further, Stalloy argues it presented evidence of market value at trial and the issue was therefore tried by implied consent.
{¶28} Stalloy argues that the trial court erred in finding no credible evidence was presented as to market value. However, the argument lacks merit because the trial court, as the finder of fact, was entitled to find, as it did, that Stalloy presented no credible evidence on the issue of market value.
{¶30} In support of Stalloy‘s argument that it presented competent evidence of the market value of the scrap, it references the testimony of Ms. Peck concerning Stalloy Exhibit 4. That exhibit was a one-page document, entitled “Tungsten Carbide Scrap WC Inserts Prices in US$LB.” It listed prices for scrap on various dates between August 2008 and May 2009. In explaining this document at trial, Ms. Peck testified as follows:
{¶31} Q. Would you take a look at Plaintiff‘s Exhibit 4, please?
{¶32} A. Yes.
{¶33} Q. Can you identify that for the record?
{¶34} A. This is a gauge. It is not like prices for gold or silver where it is exact. This is a gauge of pricing for tungsten carbide scrap during that time period.
{¶35} Q. During what time?
{¶37} Q. What happened to the price of carbide after you sold the 120,000 pounds to Kennametal?
{¶38} A. It dropped like a rock.
{¶39} Q. Do you know why?
{¶40} A. There were many different factors involved. A lot of it had to do with the Chinese. A lot of it had to do with the economy. Everything was just starting to drop. I don‘t know.
{¶41} Thus, contrary to Stalloy‘s argument, Ms. Peck did not testify that the prices listed on this chart reflected the market value of scrap. Further, on its face, the chart does not purport to show the market value as of the dates listed, but, rather, shows a “low price,” a “high price,” and a “mean price” for certain listed dates. While Stalloy argues on appeal that the chart is used as “a standard in the industry,” Ms. Peck did not testify to that effect. Ms. Peck testified that the chart was not intended to provide the exact price of scrap. Instead, she said it was meant only to provide a gauge or estimate of the price of carbide for the relevant dates noted on the chart. In addition, Ms. Peck did not provide the source of this chart or the prices listed thereon. Nor did she testify as to how the prices are obtained. Further, she did not testify that the chart is considered reliable by her or the industry. In any event, Ms. Peck did not use the chart to demonstrate the market value of the scrap. To the contrary, she used it to
{¶42} We further note that under
{¶43} We therefore hold the trial court‘s finding that Stalloy failed to present any credible evidence of the market value of the scrap was not against the manifest weight of the evidence.
{¶44} Further, Stalloy argues that because Kennametal did not cross-examine Ms. Peck on her “market value testimony” or present countervailing evidence on this issue, the trial court‘s judgment was against the manifest weight of the evidence. However, Ms. Peck did not offer any testimony regarding the market value of the scrap so there was nothing for Kennametal to discredit.
{¶45} Moreover, Stalloy argues the trial court improperly disregarded the testimony of Kennametal‘s employees that the price of carbide was $10 to $12 a pound in August 2008; that the price “dropped big” during the week of October 20, 2008; and that by the end of the year the price dropped to $2 to $4 a pound. However, the fact
{¶46} In addition, Stalloy argues that the amount it realized from the resale of the scrap is evidence of the market value of the property so it was entitled to damages based on market value, even though it did not give Kennametal notice of its intent to resell the scrap. The trial court rejected this argument, finding that the amount realized by Stalloy from the resale of the scrap could not be bootstrapped to establish market value. The trial court did not err in making this finding in light of Stalloy‘s failure to present any evidence that the price obtained on resale represented the market value of the scrap.
{¶47} Stalloy‘s reliance on B&R Textile Corp. v. Paul Rothman, Ltd., 101 Misc.2d 98, 420 N.Y.S.2d 609 (1979), is misplaced. In that case, the court held that market value may be proved by a resale of the rejected goods where the seller has taken proper measures to ensure as fair and reasonable a sale as possible. Id. at 100. The court in B&R Textile held that the resale price of the goods accurately reflected the market value because the goods were sold to several buyers at similar prices, which indicated there was an available market for the goods. Id. Here, virtually all the scrap was resold to only one purchaser in a series of private sales, and Stalloy presented no evidence that it took any measures to ensure that the sales were fair and reasonable or that there was an available market for the scrap.
{¶48} Further, Stalloy argues that a comparison of the prices it received on resale and the alleged market values reflected on Stalloy‘s chart shows that the resale prices were higher than the market value. Stalloy does not explain the legal significance
{¶49} We therefore hold the trial court‘s judgment finding that Stalloy was not entitled to the difference between the contract price and the market value was not against the manifest weight of the evidence.
{¶50} Stalloy‘s first and second assignments of error are overruled.
{¶51} For its third and final assignment of error, Stalloy alleges:
{¶52} “The Trial Court erred when it failed to award plaintiff-Appellant prejudgment interest.”
{¶53} The right to prejudgment interest on the principal amount of the judgment entered on a contract claim is a matter of law that we review de novo. Cresci Constr. Servs. v. Martin, 2013 Pa. Super. 66, 64 A.3d 254, 258 (2013); accord Dwyer Elec. v. Confederated Builders, 3d Dist. Crawford No. 3-98-18, 1998 Ohio App. LEXIS 5490, *11 (Oct. 29, 1998).
{¶54} Because the trial court found that no amount of damages was owed to Stalloy and, further, because this finding was supported by credible evidence, Stalloy was likewise not entitled to prejudgment interest.
{¶55} Appellant‘s third assignment of error is overruled.
TIMOTHY P. CANNON, P.J.,
COLLEEN MARY O‘TOOLE, J.,
concur.