895 N.E.2d 875 | Ohio Ct. App. | 2008
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *685 {¶ 1} Appellant and cross-appellee, Aris W. Franklin, M.D., appeals from the decision of the Summit County Court of Common Pleas awarding judgment to appellee and cross-appellant, Ashokkumar J. Desai, M.D. Additionally, Desai cross-appeals from the trial court's ruling on the issues of punitive damages, attorney fees, and other various issues. This court affirms in part and dismisses in part.
For the year beginning July 1, 1978 30%
For the year beginning July 1, 1979 35%
For the year beginning July 1, 1980 40%
For the year beginning July 1, 1981 50%
The employment agreement also provided that Desai would receive a certain percentage of Diagnostic Imaging's accounts receivable upon his termination. Desai would be entitled to receive 45 percent of the accounts receivable for any termination occurring after July 1, 1981.
{¶ 3} Desai and Franklin signed a buy-sell agreement on the day that they executed their employment agreement. Desai received 15 shares of Diagnostic Imaging on the date of the execution, with Franklin holding the remaining 85 shares. Pursuant to the buy-sell agreement, Desai would purchase an additional 34 shares over the next three years so that he eventually would own 49 shares to Franklin's 51 shares. The buy-sell agreement restricted the sale of any common stock. Furthermore, the agreement contained a redemption clause whereby Diagnostic Imaging would buy back Desai's shares upon the termination of his employment. The agreement provided that the value of the shares would be the net worth of Diagnostic Imaging on the last day of the month preceding termination divided by the number of outstanding shares. The accounts receivable, *687 however, would not be included in the calculation of the corporation's net worth.
{¶ 4} Desai formally resigned as an employee of Diagnostic on September 1, 2000. After Desai's resignation, questions arose as to whether or not Franklin had comported with the terms of the employment agreement and the buy-sell agreement. Specifically, Desai and Franklin disagreed over the amount of money that Desai was entitled to for his percentage of the accounts receivable and deferred-compensation payments that he was due under the employment agreement. Desai also alleged that Diagnostic Imaging had failed to redeem his stock as provided for in the buy-sell agreement.
{¶ 5} On January 22, 2002, Desai filed suit against Franklin and Diagnostic Imaging for breach of fiduciary duty, breach of contract as to the employment agreement and the buy-sell agreement, unjust enrichment and self-dealing, punitive damages, and attorney fees. Franklin and Diagnostic Imaging answered on March 13, 2002, and counterclaimed against Desai for breach of contract and unjust enrichment. Subsequently, the parties engaged in a lengthy period of discovery.
{¶ 6} On March 20, 2006, Desai filed an amended complaint to bring an additional claim for fraud against Franklin. According to Desai, Franklin had failed to notify him of shareholder's meetings, had forged Desai's signatures on the shareholder's meeting minutes, and had fraudulently altered the employment agreement to receive a bigger profit. Desai informed the court that he discovered that Franklin had taken these additional actions only after receiving certain evidence in discovery. Consequently, the trial court permitted Desai to bring his fraud claim in addition to his remaining claims. Desai included a request for punitive damages and attorney fees in the prayer for relief of his fraud claim.
{¶ 7} On November 13, 2006, Desai filed a motion for an order compelling Franklin to engage in discovery and sanctioning him for providing incomplete and evasive answers to Desai's discovery requests. The court eventually denied Desai's motion, finding that there was no merit to the issues Desai had raised.
{¶ 8} The matter proceeded to a jury trial on June 4, 2007. Before the jurors began deliberating, the trial court (1) directed a verdict in Diagnostic Imaging's favor on the fraud claim; (2) directed a verdict in Desai's favor on the liability portion of Desai's breach-of-contract claim as to Diagnostic Imaging; (3) ordered that Desai's claim for breach of contract against Franklin be dismissed with prejudice; (4) directed a verdict in Desai's favor on the liability portion of Desai's breach-of-fiduciary-duty claim against Franklin; and (5) ordered that Desai's claim for punitive damages be dismissed with prejudice. Franklin and Diagnostic Imaging also agreed to dismiss their counterclaims against Desai. The jury subsequently awarded judgment to Desai and against Franklin in the following *688 amounts: (1) $50,670.18 for his breach-of-fiduciary-duty claim; (2) $116,248.00 for his fraud claim; and (3) $301,597.34 for his unjust-enrichment claim. The jury determined that Diagnostic Imaging did not owe Desai any compensatory damages pursuant to his breach-of-fiduciary-duty and breach-of-contract claims.
{¶ 9} On June 15, 2007, Desai filed a motion for prejudgment interest in which he argued that Franklin had failed to make a good-faith effort to settle the case in accordance with R.C.
{¶ 10} On October 23, 2007, Franklin filed his notice of appeal in this court. On October 31, 2007, Desai filed a separate notice of appeal. This court consolidated the appeals on December 7, 2007. The appeal, containing three assignments of error and five cross-assignments of error, is now before this court. For ease of analysis, we rearrange and consolidate several of the assignments and cross-assignments of error.
The trial court erred in denying Dr. Franklin's motion for judgment notwithstanding the verdict because Dr. Desai recovered damages that were barred by the applicable statute of limitations.
{¶ 11} In his first assignment of error, Franklin argues that the trial court erred in denying his JNOV on Desai's unjust-enrichment claim. Specifically Franklin argues that the court failed to apply R.C.
{¶ 12} After a court enters judgment on a jury's verdict, a party may file a JNOV to have the judgment set aside on grounds other than the weight of the evidence. See Civ. R. 50(B). This court reviews a trial court's grant or denial of a JNOV de novo. Williams v. Spitzer Auto World Amherst,Inc., 9th Dist. No. 07CA009098,
{¶ 13} Franklin argues that Desai's unjust-enrichment claim accrued on the date that he wrongly retained the benefit that rightfully belonged to Desai. He further argues that unjust-enrichment claims are governed by the six-year statute of limitations period set forth in R.C.
{¶ 14} "A successful claim of unjust enrichment requires that: (1) a benefit has been conferred by a plaintiff upon a defendant; (2) the defendant had knowledge of the benefit; and (3) the defendant retained the benefit under circumstances where it would be unjust to do so without payment." Chef Italiano v. Crucible Dev. Corp., 9th Dist. No. 22415,
{¶ 15} R.C.
{¶ 16} "Generally, a cause of action accrues at the time the wrongful act is committed." Harris v.Liston (1999),
{¶ 17} In Palm Beach Co. v. Dun Bradstreet, Inc. (1995),
[T]he traditional rule in Ohio appears to be that a cause of action for unjust enrichment accrues on the date that money is retained under circumstances where it would be unjust to do so. Although in certain cases the unlawfulness of the retention may not arise until there is a request for a return of the money, in the instant case * * * it was the receipt of the money that was unlawful, and therefore the cause of action accrued at the latest * * * in 1982 *691 when the last of the alleged overcharges, or false billings or accountings, occurred.
(Citations and emphasis omitted.) Palm Beach Co.,
{¶ 18} Since the First District decided PalmBeach Co., the Sixth, Eighth, and Tenth District Courts, have employed its decision to hold that the six-year statute of limitations barred various unjust-enrichment claims. SeeBinsack v. Hipp (June 5, 1998), 6th Dist. No. H-97-029,
{¶ 19} Although Palm Beach Co. refused to apply the discovery rule to unjust-enrichment claims, the First District's decision still recognized that unjust enrichment occurs when an individual confers an undeserved benefit. SeeChef Italiano,
{¶ 20} Previously, this court held that an unjust-enrichment claim did not begin to accrue until the point at which the defendant's retention became unjust. SeeChaplain Kieffer Post 1081 v. Wayne Cty. VeteransAssn. (Sept. 21, 1988), 9th Dist. No. 2358,
{¶ 21} Our reading of Palm Beach Co. also comports with the Sixth District's decision in Binsack.
In Binsack, Binsack filed an unjust-enrichment claim against Hipp in 1996 after learning from another minority shareholder that Hipp had redeemed Binsack's shares for less than they were worth. The Sixth District noted that claims for unjust enrichment arise when a party retains a benefit that justice and equity demand belongs to another. Binsack, 6th Dist. No. H-98-029,
{¶ 22} Finally, our reading of Palm BeachCo. comports with the "last rendition of services" test that several federal courts have employed to claims of unjust enrichment. Under this test, "a cause of action for [unjust enrichment] begins to run when the final service has been performed." Baer v. Chase (C.A.3 2004),
{¶ 23} The jury determined that Franklin had engaged in unjust enrichment from 1987 until Desai's departure in 2000. In 2000, Desai stopped working for Diagnostic Imaging, and thus, effectively stopped conferring a benefit to Franklin. Accordingly, we hold that Desai's unjust-enrichment claim accrued, at the latest, in 2000 when he resigned from the practice. We(need not reach the issue of whether the discovery rule actually applies to an unjust enrichment claim because Desai brought his claim within the six-year statute of limitations period under R.C.
The trial court erred in denying Dr. Franklin's motion for judgment notwithstanding the verdict because the jury awarded damages that exceeded those established by Dr. Desai's own evidence.
{¶ 24} In his third assignment of error, Franklin argues that the trial court erred in denying his JNOV on the issue of the jury's award of damages for Desai's fraud claim. Specifically, Franklin argues that there was no evidence to support the award of $116,248 and, that because the jury fully compensated Desai in the breach-of-fiduciary duty and unjust-enrichment awards, any additional award constituted a double recovery. We disagree. *694
{¶ 25} This court previously has held that a JNOV is not the proper mechanism for challenging the excessiveness of a jury's verdict. In Jemson, we opined:
Appellant has not alleged that it is entitled to [JNOV] because Appellee's * * * claim is unsupported by substantial evidence. Rather, Appellant has argued that the jury award is not supported by the evidence and contrary to law. Such an argument is not appropriate on a motion for [JNOV] because Civ. R. 50(B) provides the means to challenge the jury's verdict, not the jury's award of damages. Appellant's assertion that the evidence does not support the award of damages is better placed in its argument for a new trial and remittitur, and will be addressed by this Court therein.
Jemson v. Falls Village Retirement Community, Ltd., 9th Dist. No. 20845, 2002-Ohio-4155,
{¶ 26} Pursuant to Civ. R. 59(A), "[a] new trial may be granted * * * on all or part of the issues upon any of the following grounds: * * * (4)[e]xcessive * * * damages, appearing to have been given under the influence of passion or prejudice." This court reviews a trial court's decision to grant or deny a new trial for an abuse of discretion. Kallergisv. Quality Mold, Inc., 9th Dist. Nos. 23651 and 23736,
{¶ 27} Franklin argues that the jury's award was excessive because there was no evidence in the record to support the fraud award. He claims that the jury's unjust-enrichment award fully compensated Desai for Franklin's wrongdoing and that any additional award constituted duplication. We disagree.
{¶ 28} "In Ohio, it has long been held that the assessment of damages is so thoroughly within the province of the jury that a reviewing court is not at liberty to disturb the jury's assessment absent an affirmative finding of passion and prejudice or a finding that the award is manifestly excessive." (Emphasis omitted.) Moskovitz,
{¶ 29} Franklin also argues that the jury's verdict exceeded Desai's damages based on a conversation that one of the parties' attorneys had with the jury foreperson. Such evidence, however, is generally not admissible to impeach a jury verdict unless there is supporting evidence aliunde. Evid. R. 606(B); State v. Hessler (2000),
The trial court abused its discretion when it awarded prejudgment interest to Dr. Desai.
{¶ 30} In his second assignment of error, Franklin argues that the trial court abused its discretion when it awarded Desai $573,939.76 in prejudgment interest. Specifically, Franklin argues that (1) Desai failed to prove that he had made a good-faith effort to settle the case; (2) Franklin had made a good-faith effort to settle the case; and (3) the trial court improperly employed circular logic in determining what constituted a good-faith settlement offer by factoring the not-yet-awarded prejudgment interest into the calculation of Desai's potential, total award and using that number to access the reasonableness of the offers. We disagree.
{¶ 31} The version of R.C.
(C) Interest on a judgment, decree, or order for the payment of money rendered in a civil `action based on tortious conduct * * * shall be computed *696 from the date the cause of action accrued to the date on which the money is paid if * * * the [losing] party * * * failed to make a good faith effort to settle the case and * * * the [prevailing] party * * * did not fail to make a good faith effort to settle the case.
When a party prevails upon a contract rather than a tort, however, the party need not prove that there was a good-faith effort to settle or a lack thereof on the opposing party's part. R.C.
{¶ 32} Franklin argues that the trial court erred in awarding prejudgment interest on Desai's claims for breach of fiduciary duty, fraud, and unjust enrichment because Desai failed to satisfy the good-faith elements of R.C.
{¶ 33} Desai's remaining claims for breach of fiduciary duty and fraud are instances of tortious conduct and claims upon which the trial court had the discretion to award prejudgment interest. See R.C.
{¶ 34} In evaluating R.C.
"`(1) fully cooperated in discovery proceedings, (2) rationally evaluated his risks and potential liability, (3) [avoided any] attempt[s] to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party."
Moskovitz,
{¶ 35} The trial court determined that Desai had made a good-faith effort to settle because his counsel "formally demanded $1 million" before trial. The trial court reasoned that this was a good-faith offer, considering Desai's three potential claims and the prejudgment interest that he might recover on those claims. Franklin argues that the trial court abused its discretion in making this determination because not-yet-awarded prejudgment interest should not be factored into the total, potential award that a plaintiff might receive. According to Franklin, the trial court should have considered only Desai's possible, underlying award, excluding any potential prejudgment interest, in assessing the reasonableness of any settlement offer.
{¶ 36} Even if we were to agree that Desai's initial offer was unreasonable, the record reflects that Desai amended his initial offer after the trial commenced. Desai's trial counsel, Scott Ruport, testified at the R.C.
{¶ 37} Similarly, we cannot conclude that the court abused its discretion in finding that Franklin failed to make a good-faith settlement offer. The record reflects that Desai had multiple, potential claims against Franklin as an individual for his wrongful acts, which spanned more than a decade. Moreover, in response to Desai's lower settlement demand, Franklin's counsel ended the discussions by "thr[owing] up his hands and walk[ing] away." Given the severity of Franklin's conduct, the likelihood that Desai would prevail on his claims, and Desai's lower amended settlement demand, we cannot conclude that the trial court erred in concluding that Franklin failed to respond with a good-faith settlement offer. See id. Consequently, we hold that the trial court properly exercised its discretion in ruling that Desai had met all of R.C.
The trial court erred when it directed a verdict in favor of Franklin on the issue of punitive damages.
{¶ 38} In his first cross-assignment of error, Desai argues that the trial court erred in directing a verdict in Franklin's favor on the issue of punitive damages. Specifically, Desai argues that there was clear and convincing evidence that Franklin consciously disregarded Desai's rights with the knowledge that his actions would result in substantial harm to Desai. We disagree.
{¶ 39} Pursuant to Civ. R. 50(A)(4), a trial court may grant a directed verdict in the following instances:
When * * * the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party[.]
"`A motion for directed verdict * * * does not present factual issues, but a question of law, even though in deciding such a motion, it is necessary to review and consider the evidence.'"Goodyear Tire Rubber Co. v. Aetna Cos., Sur.Co.,
{¶ 40} "An award of punitive damages in a tort case may be made only upon a finding of actual malice on the part of the defendant." Niskanen v. *699 Giant Eagle, Inc., 9th Dist. No. 23445,
{¶ 41} Desai argues that he was entitled to punitive damages because Franklin clearly committed a fraud and engaged in multiple forms of wrongful conduct. Yet "[a]n award of compensatory damages, or a finding that a tort was committed, does not automatically result in an award of punitive damages."Smith v. Fortado (Sept. 21, 1994), 9th Dist. No. 16559,
The trial court erred when it failed to permit the jury to consider whether attorney fees should be awarded in favor of Desai.
{¶ 42} In his second cross-assignment of error, Desai argues that the trial court erred in not submitting his claim for attorney fees to the jury. Specifically, Desai argues that Franklin acted in bad faith as Diagnostic Imaging's majority shareholder. Alternatively, Desai argues that once this court reverses the trial court on the issue of punitive damages, his claim for punitive damages also will entitle him to reasonable attorney fees. We disagree.
{¶ 43} In Weber, this court opined:
"In Ohio, each party is responsible for [his] own attorney[] fees except as provided for in certain statutory actions or when the opposing party is found to have acted maliciously. Appellant has not cited to a statute which provides for an award of attorney fees under the facts of the underlying case, and as we did not find that Appellant demonstrated actual malice on behalf of Appellee, we overrule Appellant's * * * assignment of error." (Citations omitted.)
Weber,
The trial court abused its discretion when it denied Desai's motion for attorney fees and costs pursuant to [R.C.2323.51 ] and Local Rule 7.17(E).
{¶ 44} In his third cross-assignment of error, Desai argues that the trial court abused its discretion in denying his motion for attorney fees pursuant to R.C.
{¶ 45} Initially, we note that while Desai's captioned assignment of error includes an argument that he was entitled to attorney fees pursuant to Loc. R. 7.17(E), Desai fails to address the Local Rule in the body of his argument. An appellant bears the burden of constructing an argument on appeal and supporting that argument with citations to the record and applicable legal authority. App. R. 16(A)(7). Desai has not met this burden with regard to his argument that *701
Loc. R. 7.17(E) entitles him to reasonable attorney fees. Thus, we confine our analysis to his argument that R.C.
{¶ 46} R.C.
(i)[]obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation[; or]
(ii) [] is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.
R.C.
{¶ 47} Desai argues that Franklin engaged in frivolous conduct because he repeatedly sought to delay the litigation process, and he failed to produce "the critical April 25, 1987 handwritten letter in which he fraudulently instructed [Diagnostic Imaging's accountant] to increase [his] administrative fee" under the employment agreement. Desai discovered the letter only after subpoenaing Lester Sherman, Diagnostic Imaging's accountant. According to Desai, Franklin's conduct amounted to a failure to cooperate in the trial process and warranted the imposition of sanctions.
{¶ 48} Based on our review of the record, we cannot conclude that the trial court abused its discretion in ultimately denying Desai attorney fees based on R.C.
{¶ 49} As for the handwritten letter that Franklin sent to Sherman, we also must conclude that the trial court did not err in refusing to grant — sanctions against Franklin. Franklin sent Sherman the letter in 1987. Franklin never retained a copy of the letter and did not have it in his possession when Desai sent him a request to produce any documents that might potentially related (the parties' fee arrangement. Rather, Sherman turned over the letter, which he had kept since 1987, to Desai once Desai subpoenaed it from him in his role as Diagnostic Imaging's accountant. While Franklin might have been more forthcoming about the letter in his responses, we will not dissect the exact language of Desai's discovery requests so as to disturb the discretion of the trial court in this instance. As we find that the trial court did not abuse its discretion in deciding not to sanction Franklin, Desai's third cross-assignment of error is overruled.
The trial court abused its discretion when it denied Desai's motion for attorney fees, costs and expenses pursuant to Civ. R. 37(C) relating to Franklin's failure to admit key requests for admissions.
{¶ 50} In his fourth cross-assignment of error, Desai argues that the trial court erred in refusing to impose Civ. R. 37(C) sanctions upon Franklin. Specifically, he argues that sanctions were appropriate because Franklin refused to admit the truthfulness of certain matters of "substantial importance" that were later proven at trial. We disagree.
{¶ 51} Civ. R. 37(C) permits a trial court to award a party reasonable attorney fees as a form of sanctioning the opposing party when that party has failed to respond or has otherwise improperly denied a request for admission under Civ. R. 36(A). The rule provides:
If a party, after being served with a request for admission under Rule 36, fails to admit the genuineness of any documents or the truth of any matter as requested, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order, requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees.
(Emphasis added.) Civ. R. 37(C). As with the decision to award other sanctions, a trial court has the discretion to determine whether to award sanctions: under Civ. R. 37(C). Maurer v.Boyd, 9th Dist. No. 23818,
{¶ 52} On appeal, Desai argues that the trial court should have sanctioned Franklin for his failure to admit a multitude of items, including that he owed specific monetary amounts, forged Desai's and Carol Franklin's names on the shareholder meeting minutes, knew that Desai had no knowledge that Franklin had increased his administrative fee, failed to notify Desai of the shareholders meetings, and that Desai had performed all of his duties, and even additional — duties, under the parties' agreements. Desai argues that "[a]s a result of Franklin's failure to admit the truthfulness of these matters, Desai was required to prove the truth of each matter during the trial of this action." Yet Desai fails — to set forth what additional fees he incurred as a result of receiving Franklin's responses. That is, Desai has not demonstrated what additional work Franklin's answers caused him to incur in addition to the work that he had to perform anyway in order to prepare for trial. The responses to which Desai directs this court in support of his brief were not even filed with the trial court until June 4, 2007, the day that the jury trial commenced. It is unclear how Franklin's responses, not filed until the day of trial, could have been the cause of additional expenses to Desai before the trial. There would have been no reason for Desai to incur additional, expenses disproving Desai's responses before trial when the responses were not even filed until the day of trial. Accordingly, Desai has not demonstrated that he incurred any additional expenses or attorney fees in proving his case at trial as a result of Franklin's responses. See Civ. R. 37(C) (providing that a party may be awarded expenses, including attorney fees, incurred in proving the genuineness of a document or truth of the matter improperly denied by the opposing party in a request for admission). As such, his fourth cross-assignment of error lacks merit.
The trial court abused its discretion in failing to strike the affidavit of Lindsay M. Light.
{¶ 53} In-his fifth cross-assignment of error, Desai argues that the trial court erred in considering the affidavit of Lindsay M. Light, upon which Franklin relied to support his motion for JNOV. We have already determined, however, that the trial court properly denied Franklin's motion for JNOV. Accordingly, Franklin's fifth cross-assignment of error is moot, and we decline to address it. See App. R. 12(A)(1)(c).
The trial court abused its discretion in holding in abeyance Desai's motion to reconvey rather than immediately granting the motion so that the transferred asset could be preserved pending appeal.*704
{¶ 54} In his final cross-assignment of error, Desai argues that the trial court abused its discretion by ordering that Desai's motion to reconvey Franklin's property be held in abeyance. On October 23, 2007, Desai filed a motion to reconvey, requesting that the trial court order Franklin to reacquire certain property that he recently had conveyed to his son so that Desai might collect his judgment against Franklin. Subsequently, Franklin filed a motion to stay the execution of judgment and to ask the court to set a supersedeas bond. On October 31, 2007, Desai filed his notice of appeal with this court. Later that same day, the trial court entered an order setting the bond and ordering that Desai's motion to reconvey be held in abeyance. Desai seeks to challenge-this ruling on appeal.
{¶ 55} App. R. 3(D) provides that a notice of appeal must "designate the judgment, order or part thereof appealed from." In Dixon, this court concluded that it could not consider an assignment of error that addressed a ruling that occurred after the appellant had filed his notice of appeal. State v. Dixon, 9th Dist. No. 21463,
{¶ 56} Desai filed his notice of appeal before the trial court entered the ruling that he now seeks to challenge on appeal. The record reflects that Desai never sought to amend his notice of appeal in order to attach the court's order, and that order is not a part of the record on appeal. It is well established that "a trial court only speaks through [its] journal entry[.]" State v. Overstreet, 9th Dist. No. 21367, 2003-Ohio-4530,
Judgment affirmed.
SLABY, J., concurs.
MOORE, P.J., concurs in part and dissents in part.
Dissenting Opinion
{¶ 58} I concur in the thoughtful and well-reasoned opinion of the majority to the extent that it resolved assignments of error one, two, and three and cross-assignments of error three, four, five, and six. I must, however, respectfully dissent from the majority's overruling of Desai's first and second cross-assignments of error.
{¶ 59} As to Desai's first cross-assignment of error, he challenged the trial court's granting of Franklin's motion for directed verdict on the issue of punitive damages. Civ. R. 50(A)(4) requires the trial court, to construe all evidence in a light most favorable to Desai, the party against whom the motion was filed. Against the backdrop of that standard, it is clear that Desai produced clear and convincing evidence that Franklin consciously disregarded his rights, knowing it would result in substantial harm to Desai. The conduct of Franklin, a professional, can only be described as shocking. There is testimony in the record from which a jury could reasonably conclude that, although he was fully aware of the terms of a long-standing contract with Desai, Franklin secretly changed the terms, resulting in a substantial loss of income to Desai, withheld documents, forged signatures, and lied when confronted about these issues during a deposition taken under oath. Under these facts, I must respectfully dissent from the majority's finding that the trial court did not err in directing a verdict in favor of Franklin on the issue of punitive damages.
{¶ 60} The majority cites the award of compensatory damages and for prejudgment interest which Desai obtained, and then notes that Franklin was 83 years old at the time of trial. The majority sets out at ¶ 40 the appropriate factors for awarding punitive damages. The amount of compensatory damages, the fact of a prejudgment-interest award, or the age of the defendant is not among them. "`The jury is given wide discretion in determining whether punitive damages are justified and in assessing the amount of such damages-based upon its collective judgment as to the punitive and deterrent effect that such an award would have.'" Wright v. SuzukiMotor Corp., 4th Dist. Nos. 03CA2, 03CA3, 03CA4,
{¶ 61} As to the second cross-assignment of error, I would reverse the trial court's failure to submit to the jury the issue of attorney fees, as I find the record replete with evidence that Franklin acted with actual malice. Therefore, Desai was entitled to present to the jury his claim for attorney fees.