[Cite as Lee v. Cooke,
2019-Ohio-1163.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
PETER M. LEE, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-L-045
- vs - :
ROLAND COOKE, III, et al., :
Defendants-Appellants. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 2016 CV
000159.
Judgment: Affirmed.
Mark A. Ziccarelli, Ziccarelli & Martello, 8754 Mentor Avenue, Mentor, OH 44060 (For
Plaintiff-Appellee).
Charles A. Bakula, 30500A Euclid Avenue, 2nd Floor, Wickliffe, OH 44092 (For
Defendants-Appellants).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellants, Roland Cooke, III, and Madison Country Club (“MCC”), appeal
from the March 19, 2018 judgment entry of the Lake County Court of Common Pleas
granting a motion for directed verdict in favor of movants, Eagle Trading Company, LLC
and Peter Lee. Mr. Lee is the sole appellee herein. At issue is whether appellants
adequately met their burden of proving damages at trial such that a directed verdict was
not warranted. For the reasons set forth herein, we find they did not and affirm the
judgment of the trial court.
{¶2} In February 2012, Mr. Cooke purchased the Madison Country Club
(“MCC”) out of receivership. MCC is comprised of a golf course and a clubhouse,
located across the street from one another, each operating separately and distinctly.
This appeal relates primarily to the golf course. Mr. Cooke orally agreed to keep on, as
salaried employees, the three individuals who were operating the MCC golf course prior
to its purchase: Mr. Lee, Kevin Leymaster, and Todd Bishop. Mr. Lee was responsible
for finances, receivables and payables, Mr. Leymaster was the general manager, and
Mr. Bishop handled all maintenance. Mr. Cooke did not involve himself in the operation
of MCC and admitted he gave the three men “total control” over the operation of the golf
course.
{¶3} Mr. Cooke did not utilize credit cards for purchases. Accordingly, he did
not provide a company credit card for MCC and expected vendors to be paid by check.
MCC memberships were often solicited off-site and prospective members wished to pay
dues via credit card. However, MCC had no portable credit card reader and only one
credit card reader on location at the golf course. Mr. Lee personally owned a Square,
Inc. (the “Square”) mobile credit card reader, which was connected to the account of
Eagle Trading Company, a company owned by Mr. Lee. Since MCC membership dues
were collected off-site, Mr. Lee primarily used the Square to accept payment. Although
Mr. Lee had sole access to the Eagle Trading Company account, Mr. Leymaster knew
and approved of its use. Mr. Lee would routinely transfer funds from the Eagle Trading
Company account into the MCC Chase Bank account for certain payments to be made
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by check, including payment of taxes. The funds not transferred to MCC is the primary
focus on appeal.
{¶4} In late 2013 or early 2014, Mr. Lee informed Mr. Cooke that MCC did not
have enough money to pay certain taxes that were due and offered to provide a short-
term loan to cover the deficiency. Mr. Cooke accepted, and Mr. Lee transferred
$35,000 from his personal account into the MCC Chase Bank account.
{¶5} Mr. Cooke’s ex-wife, Laura Cooke, ran operations at the clubhouse across
the street from MCC from April 2012 until approximately October 2013. In March 2015,
a fire occurred in the clubhouse. Investigators determined the fire was caused by
arson, which prompted an audit of MCC finances. Ms. Cooke was asked to return and
facilitate the audit; she was given financial information for both the golf course and the
clubhouse. When she saw the Eagle Trading Company account entries, she brought it
to Mr. Cooke’s attention, who said this was the first he heard of it. In April 2015,
believing Mr. Lee had misappropriated funds, Mr. Cooke terminated Mr. Lee’s
employment. The $35,000 loan has not been repaid.
{¶6} In January 2016, Mr. Lee filed the initial suit in the Lake County Court of
Common Pleas against Mr. Cooke and MCC seeking recovery of the $35,000 loan.
Early in the trial, the parties stipulated to the following facts: Mr. Lee loaned MCC
$35,000, which MCC agreed to repay; Mr. Lee has requested repayment, and MCC has
not repaid the $35,000. Mr. Lee testified he believed Mr. Cooke was personally
responsible for the loan. However, the court eventually found the loan was to MCC
alone and Mr. Cooke was not personally responsible. Ultimately, the court granted a
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directed verdict for Mr. Lee on the repayment of the loan, which is not at issue on
appeal.
{¶7} In their answer to the complaint, Mr. Cooke and MCC joined Eagle
Trading Company and brought a counterclaim for “breach, justifiable reliance, fraud,
unjust enrichment, negligence, breach of fiduciary duty and for an accounting”. The
record shows the following undisputed numbers: Eagle Trading Company’s account had
a beginning balance of $41.46 as of February 1, 2013 and an ending balance of $25.00
the close of April 2015; from February 2013 to April 2015, the Eagle Trading Company
account took in $208,030.31; during that time, approximately 40 checks totaling
$123,432.89 were written and deposited directly into the MCC Chase Bank account.
The remaining $84,597.42 exited the account by use of the debit card and was the
focus at trial.
{¶8} Mr. Lee testified the Eagle Trading Company account was used only for
MCC expenses. As to Mr. Cooke’s knowledge of the Eagle Trading Company account,
Mr. Lee testified he sent Mr. Cooke monthly statements of the Eagle Trading Company
account, which indicated frequent transfers from Eagle Trading Company to the MCC
Chase Bank account. At trial, Mr. Cooke admitted he did not pay much attention to
these monthly statements. Mr. Lee also testified he never intentionally used any MCC
funds for his own benefit but admitted there were several relatively low-dollar-amount
personal expenses mistakenly paid out of this account that were promptly reversed and
refunded to the account. Mr. Cooke offered no evidence to the contrary and the record
confirms the refunds.
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{¶9} Mr. Cooke alleges Mr. Lee owes him the entire $84,597.42 as damages.
At trial, Ms. Cooke, who has no golf-course experience or first-hand information as to
the operation of the MCC golf course, testified for Mr. Cooke as to which expenses on
the Eagle Trading Company account record she thought may or may not be necessary
to operation of a golf course. She freely and repeatedly admitted she did not have
adequate information to determine which of the transactions on the Eagle Trading
Company debit card were or were not MCC related. Moreover, both Mr. Cooke and Ms.
Cooke acknowledged that at least some of the debit card charges were country club
related expenses. Nevertheless, Mr. Cooke maintains he is entitled to $84,597.42 in
damages because the funds should not have been funneled through Eagle Trading
Company in the first place.
{¶10} After the parties rested, Mr. Lee and Eagle Trading Company, LLC,
moved for directed verdict against Mr. Cooke and MCC, which the trial court granted
citing Mr. Cooke’s failure to establish damages. Mr. Cooke and MCC now appeal,
assigning a single error for our review:
{¶11} “The Trial Court Committed Reversible Error by granting the Appellees’
Motion for Directed Verdict at the conclusion of the trial.”
{¶12} Civ. R. 50(A)(4) provides: “When a motion for a directed verdict has been
properly made, and the trial court, after construing the evidence most strongly in favor of
the party against whom the motion is directed, finds that upon any determinative issue
reasonable minds could come to but one conclusion upon the evidence submitted and
that conclusion is adverse to such party, the court shall sustain the motion and direct a
verdict for the moving party as to that issue.” The trial court ‘must neither consider the
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weight of the evidence nor the credibility of the witnesses in disposing of a directed
verdict motion.’ Estate of Cowling v. Estate of Cowling, 109 Ohio St.3d 276, 2006-Ohio-
2418 ¶31, quoting Strotler v. Hutchinson,
67 Ohio St.2d 282-284 (1981). “Thus, ‘if there
is substantial competent evidence to support the party against whom the motion is
made, upon which evidence reasonable minds might reach different conclusions, the
motion must be denied.’”
Cowling, supra, quoting Kellerman v. J.S. Durig Co.,
176 Ohio
St. 320,
199 N.E.2d 562 (1964). The “trial court’s decision to grant a motion for a
directed verdict involves a question of law [thus] our review de novo.” White v.
Leimbach,
131 Ohio St.3d 21,
2011-Ohio-6238, ¶22.
{¶13} Appellants’ brief spends several pages listing the elements of fraud in the
inducement, including a definition for the element of justifiable reliance; breach of
fiduciary duty; negligence; and breach of contract. However, the crux of their argument
is that the amount of damages in this case was not readily ascertainable and thus the
case should have been submitted to the jury to determine the appropriate amount of
damages. The trial court granted directed verdict based on its finding that Mr. Cooke
and MCC failed to establish they were damaged. Thus, we assume arguendo the other
elements of their claims have been met and focus our discussion on whether Mr. Cooke
and MCC established the element of damages.
{¶14} Mr. Cooke and MCC asserted causes of action in both torts and contracts.
As we have previously held, “[a] plaintiff bears the burden of ‘proving the nature and
extent of damages whether an action sounds in tort or contract.’ Adams v. Pitorak &
Coenen Invests., Ltd., 11th Dist. Geauga No. 2011-G-3019, 2012-Ohio-3015, ¶28,
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quoting Countywide Home Loans, Inc. v. Huff, 11th Dist. Trumbull No. 2009-T-0044,
2010-Ohio-1164, ¶47.
{¶15} Mr. Cooke and MCC assert that the damages were unascertainable and
thus it would be appropriate for the jury, as trier of fact, to determine the amount of
damages. In support, appellants cite Story Parchment Co. v. Patterson P. Paper Co.,
282 U.S. 555 (1931), affirmed by Bigelow v. RKO Radio Pictures,
327 U.S. 251 (1946)
and Modic v. Modic,
91 Ohio App.3d 775 (8th Dist.1993) for the principle: “once the fact
of damage is established with reasonable certainty the plaintiff is given considerable
latitude in proving the amount of the loss lest the wrongdoer escape his obligation to
make restitution.” (Emphasis original).
Id. at 783. Moreover, appellants argue, “[t]he
‘reasonable certainty’ requirement applies only to the cause or fact of damages and not
to the amount of damages.”
Id., citing Kinetico, Inc. v. Indep. Ohio Nail Co.,
19 Ohio
App.3d 26, 33, (8th Dist.1984). We point out these cases dealt with actions in tort.
However, even applying this rule to Mr. Cooke and MCC’s tort claims, we find that they
have failed to establish with reasonable certainty even that they were damaged. The
only testimony regarding which debits from the Eagle Trading Company account were
not spent on MCC expenses was pure speculation. In fact, Ms. Cooke, who was called
as witness to establish which transactions were used for non-MCC purposes, testified:
{¶16} “Q: And you had told me that other than questioning some of these
payments, that you don’t have any direct knowledge as to whether in fact those are
country club related expenses or not?”
{¶17} “A: Correct.”
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{¶18} As for his tort claims of fraud, negligence, and breach of fiduciary duty, Mr.
Cooke and MCC had the burden to prove their right to damages with a reasonable
degree of certainty and failed to do so.
{¶19} Mr. Cooke and MCC also failed to adequately prove damages for their
breach of contract claim. Damages for breach of contract must be shown to a greater
degree of certainty than for tort claims and the amount of damages must not be left to
speculation. James v. Sky Bank, 11th Dist. Trumbull No. 2010-T-0116, 2012-Ohio-
3883, ¶33. Mr. Cooke and MCC do not argue they pled damages with specificity.
Indeed, Mr. Cooke testified:
{¶20} “Q: … [D]o you have any specific amounts that you are alleging that Mr.
Lee took that should have belonged to Madison Country Club?”
{¶21} “A: Do I have exact numbers, as I said before, I don’t.”
{¶22} Thus, Mr. Cooke and MCC failed to adequately establish damages for any
of their causes of action.
{¶23} In his brief, Mr. Cooke and MCC also alleged bias and partiality on the
part of the trial court, which we now briefly discuss. Judicial bias or prejudice “implies a
hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the
litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of
the judge, as contradistinguished from an open state of mind which will be governed by
the law and facts.” State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph
four of the syllabus. Presumably in support of his assertion, appellants brief states Mr.
Lee’s wife is a current Magistrate with the Lake County Court of Common Pleas.
However, Magistrate Lee played no part in the underlying proceedings. Without more,
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her disqualification is not automatically imputed to other judges. See In re
Disqualification of Parker, 135 Ohio St.3d 1216,
2012-Ohio-6307, ¶5.
{¶24} Appellants also assert the trial court judge materially assisted opposing
party at their expense. However, the record shows no evidence of material assistance
in either party’s favor, nor do they point to any specific statement or conduct. Moreover,
it is well established that “a judge’s adverse rulings … are not evidence of bias or
prejudice.” In re Disqualification of Fuerst, 134 Ohio St.3d 1267,
2012-Ohio-6344, ¶14.
Moreover, “[a] judge is presumed to follow the law and not to be biased, and the
appearance of bias or prejudice must be compelling to overcome these
presumptions.’”
Fuerst, supra, ¶20, quoting In re Disqualification of George,
100 Ohio
St.3d 1241,
2003-Ohio-5489, ¶5. Mr. Cooke and MCC have failed to overcome that
presumption. We find no bias, partiality, or material assistance on the part of the trial
court.
{¶25} In light of the foregoing, we hold the trial court did not err in granting
directed verdict for Mr. Lee. Mr. Cooke and MCC’s assignment of error is without merit.
{¶26} The judgment of the Lake County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
TIMOTHY P. CANNON, J.,
concur.
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