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Smith v. Lima Memorial Hospital5/27/1999
d to be excusable neglect. See Perry v. Gen. Motors Corp. (1996), 113 Ohio App.3d 318, 680 N.E.2d 1069, Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App.3d 578, 607 N.E.2d 914, Sycamore Messenger, Inc. v. Cattle Barons (1986), 31 Ohio App.3d 196, 509 N.E.2d 977, and Kinter v. Giannaris (Mar. 25, 1994), Geauga App. No. 93-G-1781. The evidence before the trial court indicates that the secretary previously had delayed sending complaints to counsel. However, there is no evidence in the record to indicate that any prior default judgments against LMH exist. Based upon the rapid response to the default judgment, the evidence proffered to substantiate its claim of excusable neglect, and the steps taken to prohibit the problem from repeating itself in the future, the trial court erred in finding a "complete disregard of the judicial system." Therefore, I would sustain the first assignment of error.
The second assignment of error alleges that the trial court should have granted LMH's motion for a directed verdict on the issue of lost profits. LMH claims that the lost profits were too speculative to permit recovery.
The general rule for the recovery of compensatory damages is that injury and the resulting damage must be shown with certainty and not be left to conjecture and speculation. It is uncertainty as to the existence of damages, not uncertainty as to the amount, which precludes recovery. Pietz v. Toledo Trust Co. (1989), 63 Ohio App.3d 17, 22, 577 N.E.2d 1118, 1123 (citations omitted).
This court has addressed the issue of proof required to receive lost profits previously.
Proof of lost profits must be reasonably certain and may not be speculative. Where conclusory evidence of lost profits is presented, without supporting information explaining how the profits were calculated, there is insufficient evidence of such lost profits.
More is required of the plaintiff than merely his assertion (either directly or through an expert witness) that he would have made a particular amount in profits. Unless the figure is substantiated by calculations based on facts available or in evidence, the courts will properly reject it as speculative and uncertain. Endersby v. Schneppe (1991), 73 Ohio App.3d 212, 216-17, 596 N.E.2d 1081, 1084. Here, the only evidence of the lost profits was Smith's testimony that she might have earned between $2,500 and $3,000 per year in profits. There was no documentary evidence admitted to verify this information. Without more than Smith's assertion as to the amounts of profits, regardless of how minimal, they are speculative and the court should have rejected it. The second assignment of error should be sustained. For these reasons, I would reverse the judgment of the trial court.
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