2013 Ohio 823
Ohio Ct. App.2013Background
- Default judgment entered against Burke on Ohio Consumer Sales Practices Act claim; damages trial conducted separately.
- Favors obtained actual damages of $6,050, trebled to $18,150 under R.C. 1345.09(B) plus interest.
- Favors sought noneconomic, punitive damages, and attorney fees; relied on evidence of anxiety, depression, and frustration.
- Burke did not answer the complaint or appear at the default hearing.
- Evidence on noneconomic damages consisted of Favors’ testimony of distress and psychologist visits; Burke did not contest at hearing.
- Court remanded for determination of noneconomic damages and award of attorney fees; punitive damages addressed but not awarded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Noneconomic damages under the Act. | Favors seeks noneconomic damages for inconvenience and distress. | Burke disputed entitlement to noneconomic damages. | Remand to determine noneconomic damages; awarded should reflect evidence of distress. |
| Punitive damages for fraud and civil theft. | Burke acted with malice or egregious fraud. | Insufficient evidence of actual malice or egregious fraud. | No punitive damages awarded; evidence insufficient to meet clear and convincing standard. |
| Attorney fees under R.C. 1345.09(F)(2). | Prevailing party entitled to reasonable attorney fees due to knowing violation. | Discretionary мала? (Burke contested absence of justification) | Award attorney fees of $10,000 to case interns; remand for fee entry consistent with finding. |
Key Cases Cited
- Whitaker v. M.T. Automotive, Inc., 111 Ohio St.3d 177 (2006-Ohio-5481) (noneconomic damages for aggravation, frustration, humiliation recognized)
- Uhlir v. State Farm Ins. Co., 164 Ohio App.3d 71 (2005-Ohio-5545) (noneconomic damages not presumed; fact-finder weighs pain and suffering)
- Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638 (1994-Ohio-324) (manifest weight standard for damages review)
- Carr v. Charter Natl. Life Ins. Co., 22 Ohio St.3d 11 (1986-Ohio-) (default judgment damages must be supported by evidence in order to award punitive damages)
- Cross v. Ledford, 161 Ohio St. 469 (1954) (clear and convincing standard defined)