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Protek11/7/2005
nifest weight of the evidence standard. We are not factfinders; we neither weigh the evidence, nor judge the credibility of witnesses. Our role is to determine whether there is relevant competent and credible evidence upon which the factfinder could base its judgment. Therefore, a judgment supported by some competent, credible evidence going to all the necessary elements of the case will be affirmed. C.E. Morris Co. v. Foley Const. Co. (1978), 54 Ohio St.2d 279.
{ } Protek cites its amended complaint alleging damages, and the trial court's finding "LES failed to meet delivery dates" and "delivery was a material term of the parties' contract." Protek asserts, upon the trial court's concluding delivery was a material term of the contract and LES failed to meet the delivery deadlines; Protek was entitled to all of their damages sustained as a result of the breach.
{ } Protek notes the trial court properly cited R.C. 1302.88(C) allowing a buyer to recover incidental damages for a seller's breach, and defining "incidental damages" as those "resulting from the seller's breach [including] expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses, or commissions in connection with or effecting cover and any other reasonable expenses incident to the delay or other breach."
{ } The trial court awarded Protek back fees assessed by Goodyear, the expense incurred in expedited shipping and transportation. The trial court's December 14, 2004 Judgment Entry finds:
{ } "The Court finds that Protek is not entitled to recover or has not carried its burden of proof with respect to any other damages that it sought in this case, such as lost profits relating to another customer (PML), or in-house administrative or labor costs relating to sorting of non-conforming Bolts."
{ } Protek argues the trial court should have awarded damages for expedited freight of bolts to Protek's facility, and compensation for the idle time of presses and personnel resulting from LES' breach as found by the trial court.
{ } Protek cites the following testimony in support of its argument, relative to Exhibit 11:
{ } "Q: The very next column is expedited freight. What is that do you know?
{ } "A: That's expedited freight, and I believe that is just expedited freight of that bolt to our facility.
{ } "Q: Can you explain for us a little more clearly what expedited freight is?
{ } "A: Expedited freight is client carrier that, you know, as opposed to just normal LTL carrier, somebody that does that for a living that you are going to call and say it is the usual time to pick up, say, two in the morning and we need that driven straight through to our facility. We can't afford to wait for normal lead time.
{ } "Q: There is no number under expedited freight for that first part number, so you didn't incur any expedited freight cost for that particular bolt; is that correct?
{ } "A: That particular bolt shipped to the facility is how it is done.
{ } Tr. at 329-330.
{ } Upon review, we find the testimony cited by Protek does not provide supporting an award of expedited freight damages for shipping to Protek's facility.
{ } Protek also asserts the delivery failures by LES created a bottleneck effect causing valuable presses and operators to sit idle. Appellant does not support the argument with citations to the record. Accordingly, we find the trial court's award of damages was supported by competent, credible evidence, and the court did not err in failing to aw
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