Gerling and Associates Inc. v. Gearhouse Broadcast Pty Ltd

Filing 75

ORDER: Final Pretrial Order. Signed by Magistrate Judge Mark R. Abel on 12/18/12. (sh1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GERLING & ASSOCIATES, INC.,
Plaintiff,
v.
GEARHOUSE BROADCAST PTY, LTD.,
Defendant.
I.

)
)
)
)
)
)
)
)
)

CASE NO.: 2:10-CV-01074
MAGISTRATE JUDGE MARK R. ABEL
PLAINTIFF GERLING & ASSOCIATES,
INC. AND DEFENDANT GEARHOUSE
BROADCAST PTY, LTD.’S
FINAL PRETRIAL ORDER

APPEARANCES

For Plaintiff Gerling & Associates, Inc. (“G&A”):
Steven E. Hillman, Esq.
For Defendant Gearhouse Broadcast PTY, Ltd. (“Gearhouse”):
Wm. Joseph Baker, Esq. and John J. Roszczyk, Esq.
II.

NATURE OF ACTION

A.

This is an action by G&A, which sets forth a claim for declaratory judgment, and by
Gearhouse, which sets forth a counterclaim for breach of contract, breach of express and
implied warranty, and unjust enrichment. G&A and Gearhouse’s claims arise out of a
contract (“Contract”) between them to purchase a mobile television production trailer
(“Trailer”).

B.

The jurisdiction of the Court is invoked under Title 28, United States Code, Sections
1332, 1441, and 1446.

C.

The jurisdiction of the Court is disputed by G&A.
III.

TRIAL LENGTH

The estimated length of trial is four (4) to five (5) days.

1

IV.
A.

AGREED STATEMENTS AND LISTS

General Nature of Claims of the Parties
1. G&A’s Claims: G&A states an action for declaratory judgment and seeks a
declaration of the items of damage to the Trailer that are to be covered under its
warranty to Gearhouse. G&A claims that the warranty was voided by the acts of
Gearhouse.1
2. Gearhouse’s Claims: Gearhouse states actions for breach of contract, breach of
express warranty, breach of implied warranty, and unjust enrichment alleging that the
Trailer was not constructed in accordance with the Contract; and that G&A breached
the implied warranty for the Trailer. Gearhuose seeks damages in excess of
$600,000.00.2

B.

Uncontroverted Facts
The following facts are established by the admissions in the pleadings or by stipulations
of counsel:
1. G&A executed the Contract on March 9, 2010.
2. Gearhouse executed the Contract on March 17, 2010.
3. Gearhouse paid G&A $458,581.00.
4. The Trailer shipped in July, 2010.
5. Gearhouse received the Trailer in September, 2010.

C.

Contested Issues of Fact and Law
1. Contested Issues of Fact: There are numerous contested issues of fact, including:
a. Whether Gearhouse accepted the Trailer;
b. Whether the Trailer conformed to the Contract;
c. Whether G&A breached the Contract;

1

G&A has indicated it will move the Court for leave to amend its Complaint to include a claim that Gearhouse
voided the warranty, and Gearhouse has indicated it will oppose G&A’s motion.
2

G&A has indicated it will move the Court for leave to amend its Reply to Gearhouse’s Counterclaim to include the
affirmative defense of “prevention of performance,” and Gearhouse has indicated will oppose G&A’s motion.

2

d. Whether G&A breached the express warranty and the implied warranty of
fitness for purpose;
e. Whether Gearhouse breached the express warranty; and
f. Whether G&A was unjustly enriched.
2. Contested Issues of Law: In addition to those implicit in the foregoing issues of fact,
the contested issues of law are:
a. Whether the warranty came into effect under the terms of the Contract; and
b. Whether Gearhouse accepted the Trailer.
D.

Witnesses
1. G&A intends to call the following witnesses at trial:
a. Jennifer Fenton; and
b. Fred Gerling.
2. Gearhouse intends to call the following witnesses at trial:
a. Jennifer Fenton (on cross-examination; pursuant to subpoena served by
Defendant);
b. Fred Gerling (on cross-examination; pursuant to subpoena served by
Defendant );
c. Mark Shriver (on cross-examination; pursuant to subpoena served by
Defendant);
d. John Newton;
e. Graham Elliot;
f. John Fisher;
g. Adrian Young; and
h. Kevin Humphrey (by trial deposition).

3

E.

Expert Witnesses
Neither G&A nor Gearhouse will call expert witnesses to testify at trial. G&A objects to

the introduction of testimony of Kevin Humphrey on the ground that he is an expert witness not
previously identified by Gearhouse, and has filed a motion in limine seeking to exclude such
testimony. Gearhouse contends that such testimony is admissible as fact witness testimony, and
will only be offered as fact witness testimony.
F.

Depositions
Testimony of Kevin Humphrey will be offered by transcribed deposition transcript.

G.

Exhibits
In accordance with the Court’s December 5, 2012 Order, G&A and Gearhouse will agree

to and number the exhibits to be used at trial, and will submit a joint exhibit list, on or before
January 28, 2013. In addition to the forthcoming joint exhibit list, the parties have exchanged
their respective lists of exhibits they intend to introduce as evidence at trial.
H.

Stipulations
G&A and Gearhouse stipulate to the authenticity of all documents produced during the

litigation of this matter, but do not stipulate to their relevance or admissibility at trial.
V.

JURY INSTRUCTIONS

In accordance with the Court’s December 5, 2012 Order, G&A and Gearhouse will
submit proposed agreed jury instructions on or before January 22, 2013.

4

VI.

REMAINING ISSUES AND OTHER MATTERS

None at this time.
Respectfully submitted,
GIFFEN & KAMINSKI, LLC
/s/ Steven E. Hillman

/s/ Wm. Joseph Baker

Steven E. Hillman (0002578)
425 Metro Place North, Suite 460
Dublin, Ohio 43017
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorney for Plaintiff Gerling & Associates,
Inc.

Karen L. Giffen (0042663)
Wm. Joseph Baker (0072845)
John J. Roszczyk (0084430)
1300 East Ninth Street, Suite 1600
Cleveland, Ohio 44114
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant Gearhouse
Broadcast PTY, Ltd.

s/Mark R. Abel
United States Magistrate Judge

5