Berry v. Lupica
2011 Ohio 3462
Ohio Ct. App.2011Background
- Berry sued Lupica and Wachovia alleging Wachovia breached an agreement to pay the full Merrill Lynch arbitration award; Wachovia counterclaimed Berry breached a settlement by turning over $125,000 from Merrill Lynch.
- NASD arbitration awarded Merrill Lynch $250,000 and Berry $125,000 for defamation; Wachovia paid the $250,000; Berry deposited the $125,000 with Wachovia.
- Berry demanded return of the $125,000; Wachovia refused; dispute centered on whether the $125,000/$250,000 arrangement formed a set-off/settlement.
- Trial: issues included whether there was a settlement requiring Berry to remit the $125,000 in exchange for Wachovia paying the $250,000; Wachovia prevailed.
- Jury awarded Wachovia $432,000 in attorney fees as damages for enforcing the settlement; post-judgment motions denied; appellate court ultimately affirmed, as modified, reducing damages to $133,691.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the counterclaim is barred by the statute of frauds | Berry | Wachovia | No error; frauds statute inapplicable to promise benefiting Wachovia |
| Whether the six-year statute of limitations barred the counterclaim | Berry | Wachovia | No error; claim accrued in 2007–2009 timeline, within six years |
| Whether there was a valid settlement agreement obligating Berry to turn over $125,000 | Berry | Wachovia | There was credible evidence of a settlement defining payment by Berry to Wachovia; contract upheld |
| Whether attorney fees can be recovered as damages for enforcing a settlement | Berry | Wachovia | Yes, as compensatory damages for enforcing settlement; fees limited to proven amount |
| Whether the damage award was excessive or in excess of proved damages | Berry | Wachovia | Partial new-trial relief granted; damages reduced to $133,691; no new trial on liability |
Key Cases Cited
- Ayers v. Woodard, 166 Ohio St. 138 (Ohio 1957) (directed-verdict standard; law on judgment notwithstanding the verdict)
- Wilson Floors Co. v. Scioto Park, Ltd., 54 Ohio St.2d 451 (Ohio 1978) (statute of frauds—promises to subserve promisor's own purposes not within frauds scope)
- Aluminum Line Prods. Co. v. Brad Smith Roofing Co., Inc., 109 Ohio App.3d 246 (Ohio App. 1996) (accrual of oral-contract claims when no time for repayment is specified)
- Dandrew v. Silver, 2005-Ohio-6355 (8th Dist.) (accrual and limitations for oral agreements)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (Ohio 1978) (standard for appellate review of weight of the evidence)
- Raymond J. Schaefer, Inc. v. Pytlik, 2010-Ohio-4714 (6th Dist.) (attorney-fee damages for enforcing settlement agreements)
- Tejada-Hercules v. State Auto. Ins. Co., 2008-Ohio-5066 (10th Dist.) (allowing attorney-fee damages incurred enforcing settlements)
- Allied Erecting & Dismantling Co., Inc. v. Youngstown, 2002-Ohio-5179 (8th Dist.) (measure of contract-damages; reasonable certainty)
- Rhodes v. Rhodes Indus., Inc., 1991-Ohio App.3d 797 (8th Dist.) (general rule on proving damages; reasonable-certainty standard)
- Pearson v. Cleveland Acceptance Corp., 1969-Ohio App.2d 239 (8th Dist.) (examination of damages and prejudice in awards)
- Airborne Express, Inc. v. Sys. Research Laboratories, Inc., 1995-Ohio App.3d 498 (8th Dist.) (excessive damages and prejudice considerations)
- Toledo, C. & O. Ry. Co. v. Miller, 1923-Ohio St. (Ohio Sup. Ct.) (pulled into discussion of punitive damages; award must shock sensibilities)