Cincinnati v. Triton Servs., Inc.

Excerpt

SPOLIATION OF EVIDENCE – EVID.R. 403(A) – EVIDENCE/WITNESS/TRIAL – HOME-OFFICE-OVERHEAD DAMAGES – PROCEDURE/RULES – INVOLUNTARY DISMISSAL – UNJUST ENRICHMENT – ABUSE OF PROCESS – MOOTNESS: The trial court erred in granting a motion in limine preventing a contractor from presenting evidence concerning differing site conditions at a construction site due to spoliation of the evidence on the basis that the contractor failed to collect and preserve soil samples at the job site where the contractor had no duty to collect and preserve them the doctrine of spoliation of the evidence was not implicated since no evidence existed to be destroyed. The trial court erred in granting a motion in limine precluding one of the contractor's employees from testifying about damages under Evid.R. 403(A) when that evidence would not have caused the defendant unfair prejudice and when any defects in the employee's testimony went to its weight and not its admissibility. The trial court did not err in granting partial summary judgment in favor of the city on the contractor's claim for home-office-overhead damages where the contractor was not put on standby and was not prevented from accepting other work during a period of delay. Directed verdicts are inapplicable in bench trials where no jury exists in a nonjury action, a defendant must move for an involuntary dismissal under Civ.R. 41(B)(2). The trial court erred in granting the city's motion for an involuntary dismissal where the trial court erred in excluding evidence and failing to consider that evidence, and therefore, its judgment on the motion to dismiss was erroneous as a matter of law. The trial court did not err in granting summary judgment in favor of the city on the city's claim for unjust enrichment where the city mistakenly paid the contractor twice and the contractor refused to return the payment made in error. The trial court did not err in granting summary judgment in favor of the city on the contractor's claim for abuse of