Dolan v. City of GlousterDolan v. City of Glouster
- Reporters:
- ,
- Before:
- Peter B. Abele, William H. Harsha, Matthew W. McFarland (per curiam)
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY UPHOLDING THE JURY‘S FINDING THAT THE GLOUSTER DEFENDANTS/APPELLANT‘S TORTIOUSLY INTERFERED WITH THE ALLEGED BUSINESS RELATIONSHIP BETWEEN JD‘S TOWING AND THE VILLAGE OF GLOUSTER.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING EVIDENCE AND TESTIMONY AT TRIAL THAT WAS IMPROPER BECAUSE IT WAS INACCURATE AND MISLEADING.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE PLAINTIFFS/APPELLEES TO FILE A THIRD AMENDED COMPLAINT.”
FOURTH ASSIGNMENT OF ERROR: “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RE-JOINED GLOUSTER DEFENDANTS/APPELLANTS ROBERT FUNK AND ROGER TAYLOR AFTER THEY HAD BEEN DISMISSED.”
FIFTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING DAVID AND JENNIFER DOLAN TO TESTIFY CONCERNING LOST PROFITS WITHOUT HAVING A SPECIFIC MATHEMATICAL FORMULA OR SUFFICIENT PROOF TO ESTABLISH THE AMOUNT OF LOST PROFITS.”
SIXTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE ISSUE OF PUNITIVE DAMAGES TO GO TO THE JURY WHEN THE EVIDENCE FAILED TO ESTABLISH ANY MALICE ON THE PART OF THE GLOUSTER DEFENDANTS/APPELLANTS.”
SEVENTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GRANT A COMPLETE NEW TRIAL AFTER DETERMINING THAT THE ORIGINAL DAMAGES AWARDED TO THE PLAINTIFFS/APPELLEES WERE TAINTED BY PASSION AND PREJUDICE.”
EIGHTH ASSIGNMENT OF ERROR:
“PLAINTIFFS/APPELLEES ASSERTED THEIR CLAIMS AGAINST THE GLOUSTER DEFENDANTS/APPELLANTS BEYOND THE TIME PERMITTED BY THE APPLICABLE STATUTES OF LIMITATION, AND AS A RESULT, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO DISMISS THESE CLAIMS.”
NINTH ASSIGNMENT OF ERROR: “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO FIND THAT THE GLOUSTER DEFENDANTS/APPELLANTS WERE IMMUNE FROM LIABILITY IN THEIR INDIVIDUAL CAPACITIES.”
{¶ 2} The Dolans posit their own cross-assignments of error as follows4:
FIRST CROSS-ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED ERROR WHEN IT GRANTED DEFENDANTS A NEW TRIAL ON THE ISSUE OF EMOTIONAL DISTRESS DAMAGES BY HOLDING THAT THE AWARD WAS INFLUENCED BY PASSION AND PREJUDICE.”
SECOND CROSS-ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED ERROR WHEN IT GRANTED DEFENDANTS A NEW TRIAL ON THE ISSUE OF PUNITIVE DAMAGES, HOLDING THAT THE AWARD WAS INFLUENCED BY PASSION AND PREJUDICE.”
THIRD CROSS-ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED ERROR WHEN IT GRANTED DEFENDANT, ROGER TAYLOR‘S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.”
FOURTH CROSS-ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED ERROR IN FAILING TO ADDRESS THE LEGAL CONCEPT OF “LODESTAR” AS SET FORTH IN BITTNER V. TRI-COUNTY TOYOTA, INC. (1991) 58 OHIO ST.3D, WHEN COUNTER EVIDENCE WAS NOT PRESENTED.”
FIFTH CROSS-ASSIGNMENT OF ERROR: “THE TRIAL COURT ERRED IN OVERRULING PLAINTIFFS’ MOTION FOR PRE-JUDGMENT INTEREST.”
{¶ 3} In view of this case‘s factual and procedural complexity, we set forth a relatively brief recitation of the trial court proceedings. The Dolans began their towing business in Morgan County in 1998. A growing part of their business came from the Glouster area in Athens County, to which they moved in 2001.5
{¶ 4} Prior to 2002, when a tow was needed Glouster police officers used their discretion regarding which tow company they contacted. However, only two tow companies existed in Glouster at that time and the Dolans received a considerable amount of the business. After two more tow companies began operations and wanted a share of the business, in 2002 Glouster adopted a rotation system whereby one tow company received all calls during a particular month, then another tow company rotated in the following month.6 Apparently, this system led to a sharp decline in the Dolans’ business.
{¶ 6} Although it is unclear if the abandonment of this monthly rotation system had any impact on their business, the Dolans claim that the fall-out from what is characterized as the “Chalfant incident” all but destroyed their business with Glouster and considerably reduced the amount of Athens County tows. This incident began after Ronald Chalfant, Jr.‘s 2003 arrest for driving under the influence and the Dolans towed and impounded Chalfant‘s car.8 When Chalfant‘s father attempted to pay the fee and retrieve the car, he became upset over the amount of the fees and complained to then mayor David Angle. Angle, in turn, called the Dolans and asked them how much they charge for vehicle towing and impoundment under circumstances similar to those that applied to Chalfant. Allegedly, Angle was told that a lesser amount would typically apply. When Angle asked the Dolans why Chalfant was charged more, the Dolans reportedly said it was because “he” (Chalfant) was an “asshole.” Angle informed the Dolans that they could not treat people that way and the Dolans reportedly responded that it is their business and they could do as they please.9 Whatever the circumstances, the evidence adduced
{¶ 7} The Dolans commenced this action on March 31, 2005 against the Glouster parties, as well as various other defendants.11 The complaint set forth sixteen “counts,” but the gist of their allegations, for purposes of this appeal, is that the Glouster parties interfered with the business relationship that the Dolans built with the city of Glouster and Athens County and, thus, injured their profitability. The Dolans requested, inter alia, compensatory and “exemplary” damages, as well as attorney fees. The defendants denied liability.
{¶ 8} On April 4, 2006, the trial court, pursuant to
{¶ 9} The case sub judice eventually came on for jury trial over seven days in September and October 2010. As aforesaid, the gist of the Dolans’ claims is that the Glouster parties tortiously interfered in the business relationship they had with (1) the City of Glouster, and (2) Athens County. The evidence adduced at trial was uncontroverted that no contractual relationship existed between the Dolans and the City of Glouster, or, for that matter, Athens County. However, the evidence suggested the existence of a less formal relationship between the parties and that the Dolans provided tow services for Glouster and Athens County.
{¶ 10} David Dolan, to say the least, provided the most uneven testimony during these proceedings. Jennifer Dolan provided the strongest testimony and stated that the Dolans believed that they “had a business relationship with Glouster.” David Dolan testified, however, only that he believed that they had a “good relation with Glouster.” On the other hand, the Glouster parties all testified to the effect that no business relationship existed between the Dolans and Glouster.
{¶ 11} The primary issue at the seven day jury trial was whether, assuming that a business relationship did exist between the Dolans and the Glouster parties, that the Glouster parties had wrongly interfered with that relationship. It was uncontroverted that the Dolans’ tows were greatly diminished (1) as a result of the monthly rotation system, and (2) after the rotation system was abandoned and the city returned to a discretionary system that followed the
{¶ 12} The Glouster parties adduced considerable conflicting evidence and all testified that the decrease in tows had nothing to do with the “Chalfant incident,” but rather due to the general disagreeableness of the Dolans. For example, Ronald Chalfant, Sr. testified for the Glouster parties and characterized David Dolan as “mouthy.” Lucas Mace, a Glouster police officer, testified that David Dolan‘s “attitude” was so bad that neither he nor anyone else could stand to deal with him. Officer Mace testified that David Dolan was rude to other officers, refused to clean up a tow scene on occasion and that people who had their cars towed and impounded by his company accused him of “riffling” through their property in the vehicle.
{¶ 13} Other witnesses also testified that Giffin towing, another local company, was faster to the scene than the Dolans and were more pleasant to deal with. Witnesses for the Glouster parties testified that, on the one hand, if vehicle owners requested the Dolans, the police would contact the Dolans to tow the cars. On the other hand, when the question of which company to call was left to police discretion, police oftentimes called another company. Mace related that, although he used the Dolans prior to the rotation system, he stopped using them after the system was abandoned. More important, none of the Glouster parties or their witnesses testified that city council, the mayors or the chief of police instructed them to stop using the Dolans for tows.
{¶ 14} In the end, the jury returned from deliberations with interrogatories and verdicts
{¶ 15} All of the Glouster parties filed motions for (1) judgment notwithstanding the verdict (JNOV) pursuant to
{¶ 16} On June 8, 2011, the trial court filed a twenty-one page decision on the post-trial motions. The court overruled all the JNOV motions, with the exception of one regarding the verdict that Taylor interfered with the Dolans’ business relationship with Athens County. The court entered judgment in Taylor‘s favor on that claim notwithstanding the verdict.
{¶ 17} The trial court also granted the motion for new trial for all Glouster parties as to the punitive damage awards and compensatory damage awards for emotional distress, but denied the motions on all other issues. The court also denied the motion for remittitur of damages.
{¶ 18} On July 5, 2011, the Glouster parties filed an appeal from that judgment (Athens App. No. 11CA18). The following day, the Dolans’ filed their notice of appeal from the trial court‘s judgment (Athens App. No. 11CA19). On September 8, 2011, the Glouster parties filed a motion for new trial, or, alternatively, to ask the trial court to reconsider its decision to grant them a new trial on damages only. The court overruled that motion on September 29, 2011.
{¶ 19} On December 6, 2011, the trial court denied the Dolans’ motion for prejudgment interest. The Dolans filed their second appeal from that judgment on December 29, 2011 (Athens App. No. 11CA33). On December 15, 2011, after several hearings regarding attorney fees, the trial court filed a “partial judgment entry” on the issue that disallowed some of the fees the Dolans’ counsel requested and instructed them to submit a revised statement based on that ruling and granted the Glouster parties a week to respond. Despite the interlocutory nature of that judgment, the Glouster parties filed another notice of appeal from that order on January 3, 2012 (Athens App. No. 12CA1). On January 20, 2012, the trial court awarded the Dolans $95,553.33 in attorney fees. The Dolans filed their third appeal from that entry on February 15, 2012 (Athens App. No. 12CA6).
{¶ 20} This Court, sua sponte on February 23, 2012, consolidated all five appeals for purposes of final resolution. Consequently, we believe that all of the errors and cross-assignments of error are now properly before us for review and determination.
I. Jurisdictional Issue(s)
{¶ 21} Before we address the assignments of error on their merits, we must first take note of several jurisdictional issues. Courts of appeals have jurisdiction over final appealable orders. Ohio Constitution, Article IV, Section 3(B)(2). A final order is one that, inter alia, resolves the pending claims in a case and, in effect, determines the action.
{¶ 22} Oftentimes, in a complicated case such as this with many parties and many claims, the trial court and the parties understandably tend to lose track of all of the competing claims and may fail to resolve some claims. This is problematic when, as in the case sub judice, multiple amended complaints have been filed and those complaints are somewhat unclear as to whether they simply elaborate on claims already presented in the case, or if they, in fact, assert new claims.
{¶ 23} One point of concern are the four “John Doe” defendants against whom counts thirteen through sixteen of the original complaint were addressed. The amended complaint, filed February 7, 2006, expressly stated it incorporated the contents of the original complaint. This amended complaint did not set out a list of the defendants and, although it referenced counts thirteen through sixteen from the original complaint, it made no mention of the aforementioned “John Doe” defendants.
{¶ 24} On May 15, 2006, the Dolans filed a motion for leave to file a second amended complaint. It does not appear that the trial court expressly ruled on this motion and that, of
{¶ 25} On October 6, 2009, the Dolans filed yet another amended complaint. This time, however, they did not request leave of court. At first, the trial court ordered the complaint stricken. Later, when plaintiffs filed a motion for leave of court, the court granted leave and allowed the amended complaint. Practically speaking, this is their third amended complaint. It, too, incorporated the original 2005 complaint, but, again, did not list the party defendants or make reference to the counts in the original complaint against the John Doe defendants. Moreover, we do not find anything in the record of this case to indicate that those claims have been resolved.
{¶ 26} In view of the foregoing, it appears that claims thirteen through sixteen of the first complaint remain unresolved against the four “John Doe” defendants. On the one hand, various Ohio appellate courts have concluded that unresolved claims against unknown defendants renders a judgment interlocutory and, thus, no final order for purposes of
{¶ 27} After our review of the record in this case, it does not appear that the claims against the four “John Doe” defendants have been resolved. By the same token, it also does not appear that the Dolans identified these defendants or, more important, obtained service on them. Thus, consistent with Eastley, supra, we conclude that they are no impediment to our review of this matter.
{¶ 28} Another potential jurisdictional problem is that we find no judgment entry that expressly resolved the claims against Glouster City Council. A July 10, 2006 entry granted partial judgment on the pleadings to what was characterized as the “Glouster defendants,” but the trial court identified the “Glouster defendants” as “defendants Village of Glouster, Robert Funk, David Angle and Roger Taylor.” Thus, Glouster City Council was technically excluded from the group to whom the court granted partial judgment on the pleadings. We, however, regard this omission as a scrivener‘s error in the six page decision and judgment. At the outset of its entry, the trial court noted that the motion it was about to decide is the motion filed on April 17, 2006 that began “[n]ow come the defendants . . . Glouster Village Council . . .” (Emphasis added.) The Council, therefore, was a party to the motion that the trial court granted for all but Angle.
{¶ 29} Furthermore, in ruling for all the “Glouster parties” except Angle, the court opined as follows:
“‘Tortious interference with business occurs when a person, without privilege,
induces or otherwise purposely causes a third party not to enter into, or continue, a business relationship, or perform a contract with another.’ However, the wrongdoer must be a non-party to the contract. Parties to the contract include officers and employees in their official capacities. * * * Glouster‘s employees and officers would not be subject to this claim for actions undertaken in their official capacity.” (Citations omitted.)(Emphasis added.)
{¶ 30} The trial court‘s references to “employees and officers” would encompass Glouster City Council. There can be no doubt that, had the trial court remembered when it drafted its entry that the Council was a party, it would have dismissed them under the same principles. This, taken together with the fact Glouster City Council joined in the motion that was sustained for all but Angle, leads us to conclude that the July 10, 2006 partial judgment on the pleadings effectively concluded the claims against the Council.
{¶ 31} Therefore, we find some degree of dispository action against all parties. What still is of concern, however, is whether all the claims against those parties have been resolved. While the Dolans’ various amended complaints renders the procedure very confusing, after a thorough review of the voluminous record we conclude that it does indeed appear that all claims have been resolved. However, the trial court‘s June 8, 2011 judgment on the post-trial motions does contain the
{¶ 32} If a finding of “no just reason for delay” is made so that immediate appeals could be taken from the post-trial motions, while the request for prejudgment interest and
{¶ 33} This would account for the five appeals filed in this case (no doubt out of an abundance of caution on counsels’ part) when, as the Dolans correctly concluded, no final order existed until the January 20, 2012 judgment that awarded attorney fees. At that juncture, all previous interlocutory orders merged into that one. See e.g. Rice v. Lewis, 4th Dist. Scioto No. 11CA3451, 2012-Ohio- 2588, at ¶15; Clark v. Butler, 4th Dist. Ross No. 10CA3191, 2011-Ohio- 4943, at ¶8.
{¶ 34} Furthermore, if the trial court certified a finding of no just reason for delay so that its rulings on the motions for new trial could be reviewed while those new trials were pending, it is unnecessary. Orders that grant judgments for new trial are statutorily deemed to be final appealable orders.
{¶ 35} To summarize, after our exhaustive review of the original papers in this case, it appears that all of the claims against all of the parties have been resolved. The exceptions to that are the four John Doe defendants and the Glouster City Council, but, as we indicated supra,
{¶ 36} Having concluded that a final appealable order exists in this case, we now turn our attention to the errors that the Glouster parties assign for review and determination.
II. The Glouster Parties’ Assignments of Error
A. First Assignment of Error
{¶ 37} The Glouster parties maintain in their first assignment of error that the trial court erred by “upholding” all the jury verdicts against them. We assume that the gist of their contention is that the trial court erred by not sustaining their motion for JNOV on the question of whether sufficient evidence exists to show that they tortiously interfered with a business relationship between the Dolans and the City of Glouster.
{¶ 38} Pursuant to
{¶ 39} Thus, in considering a motion for JNOV, a trial court must construe the evidence most strongly in favor of the non-moving party and deny the motion when some evidence exists to support the non-moving party‘s case. See Texler, supra at 679; Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 318, 662 N.E.2d 287 (1996); Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976). In so doing, a trial court may not weigh evidence or judge witness credibility. Osler v. Lorain, 28 Ohio St.3d 345, 504 N.E.2d 19, at the syllabus (1986); Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 67-68, 430 N.E.2d 935 (1982).
{¶ 40} Generally, a trial court must deny a motion for JNOV if substantial evidence exists upon which reasonable minds could come to different conclusions on the essential elements of the claim. Posin, supra at 275; Ramage v. Cent. Ohio Emergency Serv., Inc., 64 Ohio St.3d 97, 109, 592 N.E.2d 828 (1992). Appellate courts then review a trial court‘s decision de novo. Hicks v. Garrett, 5th Dist. Stark No. 2011CA109, 2012-Ohio-3560, at ¶108; Gindling v. Schiff, 1st Dist. Hamilton No. C–100669, 2012-Ohio-764, at ¶14; Britton v. Gibbs Associates, 4th Dist. Highland No. 08CA9, 2009-Ohio-3943, at ¶7.
{¶ 41} The Dolans’ claims are based on the theory of a tortious interference in a business relationship to provide tow services that they allegedly had with Glouster. The Glouster parties argue that no evidence of a business relationship existed between the Dolans and Glouster. We disagree. Admittedly, the Glouster parties were unanimous in their testimony that no business relationship existed. On the other hand, considerable evidence indicated (at least before the adoption of the monthly rotation system) that the Dolans received a large percentage of the Glouster tows. While David Dolan‘s testimony on this issue was, at a minimum, confusing, Jennifer Dolan did provide clear and unequivocal testimony that they had a business relationship with Glouster.
{¶ 42} Interestingly, none of the parties has provided us with a precise legal statement for what constitutes a “business relationship” in this context. Moreover, in our own research we have found no definitive explanation of such a relationship in either Ohio law or the law of any other jurisdiction. A “business relationship” does appear to involve an ongoing relationship between two or more parties when there is an expectation of pecuniary advantage. See generally, Morrison v. Renner, 5th Dist. Muskingum No. CT2011 –0010, 2011-6780, at ¶26; Streb v. AMF Bowling Centers, Inc., 10th Dist. Franklin No. 99AP-633, 2000 WL 552198 (May 4, 2000); also see Manna Funding, LLC v. Kittitas County, 173 Wash.App. 879, 295 P.3d 1197, at ¶34 (Wash.App. 2013); MacLean v. Ryan, Wash.App. No. 69548–7–I, 2013 WL 6633745, at fn. 16 (Dec. 16, 2013); In re Cobb, N.J.Sup. No. 2011–302, 2013 WL 1187854 (Mar. 25, 2013).
{¶ 43} Here, no question exists that the Dolans received pecuniary advantage (financial renumeration) from their previous dealings with Glouster. This, taken together with Jennifer Dolan‘s testimony, is sufficient for a reasonable jury to find that a business relationship between
{¶ 44} The Glouster parties further argue that even if a business relationship with the Dolans did exist, no evidence exists to show that they interfered with that relationship. Again, we disagree. David Dolan testified that when he refused to modify the charges in the Chalfant incident, Angle told him “I‘ll make sure your business goes to hell.” Moreover, the evidence adduced at trial is uncontroverted that, except for those situations when motorists expressly requested the Dolans, the tows assigned them by the police after the Chalfant incident diminished considerably. David Dolan also testified that shortly after the Chalfant incident, a sign advertising his business (set on wooden posts and sunk into concrete) was removed. When he inquired about what happened to the sign, he found the sign sitting in a city building.
{¶ 45} We defined a tortious interference in business relationship in Dolan I, supra at ¶¶33-34, as follows:
“The elements of tortious interference with a business relationship are (1) a business relationship; (2) the tortfeasor‘s knowledge thereof; (3) an intentional interference causing a breach or termination of the relationship; and (4) damages resulting therefrom. It “includes intentional interference with prospective contractual relations not yet reduced to a contract. [This] interference must be intentional, not negligent. Further, [i]n such cases the law has generally required proof that the defendant has acted maliciously. Because malice is a necessary element of the claim and an exception to an employee‘s immunity under
R.C. 2744.03(A)(6) . . .‘” (Citations omitted)
We conclude that David Dolan‘s testimony concerning what Angle purportedly said to him, the removal of the business sign shortly thereafter and the uncontroverted evidence of a drop-off in the business is sufficient for a reasonable trier of fact to find intentional interference in the business relationship between the Dolans and Glouster. We readily acknowledge that it is true that no direct evidence was adduced to show that any of the Glouster parties instructed officers to
{¶ 46} We also readily acknowledge that the Glouster parties denied telling police not to use the Dolans and that some of the officers denied that they were told not to use the Dolans. However, the jury, sitting as the trier of fact, is free to believe all, part or none of the testimony of any witness who appears before it. Khayyam Publishing Co. v. Marzvann, 4th Dist. Athens No. 12CA29, 2013-Ohio-5332, at ¶24; Hawkins v. Creech, 4th Dist. Adams No. 12CA938, 2013-Ohio-1318, at ¶20; Burchett v. Mowery, 4th Dist. Scioto No. 11CA3419, 2012-Ohio-2489, at ¶15. In the case sub judice, the jury obviously rejected the evidence that the Glouster parties presented and, instead, accepted the evidence that the Dolans presented. This is well within the jury‘s province as the trier of fact.
{¶ 47} Finally, the Glouster parties challenge the evidence insofar as it supported the maliciousness component that we specified in Dolan I as necessary for this particular tort. They argue that nothing shows malice on their part, or anything to indicate some “factual nexus” between a decline in the Dolans’ business and their actions. We, however, reject this argument for the same reason that we rejected the previous argument. Evidence that the jury apparently found credible showed Angle threatening to send the Dolans’ business operation “to hell.” Shortly thereafter, the Dolans’ advertising sign disappeared and the number of tows that they
{¶ 48} Accordingly, for all of these reasons, we find no merit to the first assignment of error and it is hereby overruled.
B. Second Assignment of Error
{¶ 49} The Glouster parties maintain in their second assignment of error that the trial court erred by allowing evidence that is “inaccurate, prejudicial and misleading.” We disagree with this contention for several reasons.
{¶ 50} First,
{¶ 51} Second, even if we considered the substance of the assignment of error, we would find no merit. If the evidence that the Glouster parties cite is inaccurate or misleading, that
{¶ 52} Accordingly, for these reasons, we find no merit to this assignment of error and it is hereby overruled.
C. Third Assignment of Error
{¶ 53} The Glouster parties argue in their third assignment of error that the trial court erred by allowing the Dolans to file a third amended complaint. We disagree.
{¶ 54} Generally, parties may amend their complaint once, as a matter of course, within twenty-eight days after serving the complaint and thereafter only with leave of court.
Generally, an “abuse of discretion” is more than an error of law or judgment; rather, it implies that a court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d 940 (2002); State v. Adams, 60 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Additionally, in reviewing for an abuse of discretion, appellate courts must not substitute their judgment for that of the trial court. State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991). Further, to establish an abuse of discretion, the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will, but perversity of will; not the exercise of judgment, but defiance of judgment; not the exercise of reason, but, instead, passion or bias. See Vaught v. Cleveland Clinic Found., 98 Ohio St.3d 485, 787 N.E.2d 631, 2003- Ohio-2181, ¶13; Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996). In the case sub judice, the trial court granted the Dolans (retroactively) leave to file their third amended complaint some ten months before the trial. We believe that the Glouster parties had sufficient time to respond to the allegations and we find no indication that they suffered any prejudice as a result of the third amended complaint.
{¶ 55} We also note that the only authority that the Glouster parties cite to support their argument is Helman v. EPL Prolong, Inc., 139 Ohio App.3d 231, 743 N.E.2d 484 (7th Dist. 2000). That case involved review of a trial court‘s refusal to allow an amendment of a complaint. Id. at 250-252. Had we reviewed the trial court decision in Helman, we, too, may have arrived at the same result. Again, the “abuse of discretion” standard of review is a “highly deferential” standard of review. Grimes v. Grimes, 4th Dist. Washington No. 10CA23, 2012-Ohio-3562, 975 N.E.2d 496, at ¶16, fn. 5; Habo v. Khattab, 11th Dist. Portage No. 2012–P–0117, 2013-Ohio-5809, at ¶55; Rarden v. Rarden, 12 Dist. Warren No. CA2013–06– 054, 2013-Ohio-4985, at ¶10.
{¶ 56} The application of the abuse of discretion standard will potentially allow for
{¶ 57} Here, the Dolans filed their third amended complaint to make sure that all of their theories of recovery were properly before the court. There being no apparent prejudice to the Glouster parties, we find no merit to their third assignment of error and it is hereby overruled.
D. Fourth Assignment of Error
{¶ 58} A resolution of the fourth assignment of error requires an additional factual recitation.16 On July 10, 2006, the trial court entered judgment on the pleadings for Funk and Taylor. This left Angle as the only Glouster party in the proceeding. The court‘s reasoning, in a nutshell, is that although the complaint alleged that Angle is liable in his personal capacity, there were no allegations to show the same was true for either Funk or Taylor.
{¶ 59} The exceedingly convoluted procedural posture of this case eventually led an
{¶ 60} It does not appear that the trial court filed an entry in response to the questions that it posed in its own entry. However, the Dolans’ filed an amended complaint the following month that set out new allegations that Funk and Taylor also acted in their personal capacities in this case. As mentioned above, while the amended complaint was initially struck, it was later reinstated and the parties proceeded to trial against Funk and Taylor as much as Angle. The Glouster parties argue this is error and that the only way the Dolans could proceed against Funk and Taylor at trial is to have successfully appealed the July 10, 2006 judgment on the pleadings in their favor. We disagree.
{¶ 61} First, even if we assume, arguendo, that the trial court erred by allowing the trial to go forward against both Funk and Taylor, we have found no objection in the transcript on the first day of trial. Any error that could have been raised, but was not, at a time when it could have been corrected is deemed waived for purposes of appellate review. See Portsmouth v. Wrage, 4th Dist. Scioto No. 08CA3237, 2009-Ohio-3390, at ¶26; Maynard v. Norfolk S. Railway, 4th Dist. Scioto No. 08CA3267, 2009-Ohio-3143, at ¶13.
{¶ 62} The Glouster parties also fail to cite anything in the original papers in which they objected to the trial proceeding against Funk and Taylor and we have found nothing to that effect
{¶ 63} Second, the Glouster parties have not persuaded us that any error exists here in the first place. The July 10, 2006 judgment on the pleadings neither determined the entire action, nor did it contain a
{¶ 64} Accordingly, for these reasons, we find no merit to the fourth assignment of error and it is hereby overruled.
E. Fifth Assignment of Error
{¶ 65} The Glouster parties argue in their fifth assignment of error that the trial court
{¶ 66} Our analysis begins with an acknowledgment of the precise wording of the assignment of error. Although the phrase “sufficient proof” is included in the text of the assigned error, the text itself is couched in terms of the trial court‘s alleged error in actually allowing the testimony. Therefore, our concern is not whether insufficient evidence exists to support the jury verdict, but rather whether the trial court erred by allowing the testimony of the Dolans concerning their lost profits. This distinction is important for several reasons, not the least of which is that in five of the examples the Glouster parties cited in their brief, the testimony to which they object was actually elicited by their attorney, either on cross or re-cross examination. Thus, even if arguably the testimony should have been excluded, under the invited error doctrine parties cannot take advantage of errors that they invite or induce the trial court to make. See Fifth Third Mtge., Co. v. Rankin, 4th Dist. Pickaway No. 11CA18, 2012-Ohio-2804, at ¶16; Daugherty v. Daugherty, 4th Dist. Hocking No. 11CA18, 2012-Ohio-1520, at ¶18; Lowe v. Lowe, 4th Dist. Pickaway No. 10CA30, 2011-Ohio-3340, at ¶39.17
{¶ 67} Of the remaining instances the Glouster parties cite in their brief, we find no
{¶ 68} Both at the trial level and here on appeal, the Glouster parties cite Brookeside Ambulance, Inc. v. Walker Ambulance Serv., 112 Ohio App.3d 150, 158, 678 N.E.2d 248 (6th Dist. 1996) for the proposition that lost profits must be “proven to a reasonable certainty.” Id. They argue that the estimated range of revenues from the Dolans’ tows are anything but “reasonable certainty” and, therefore, the trial court erred by overruling their objections. We disagree.
{¶ 69} A determination of whether a lost profits calculation is too speculative lies within the trial court‘s discretion and its determination will not be reversed absent an abuse of that discretion. See Illinois Controls, Inc. v. Langham, 70 Ohio St.3d 512, 526, 639 N.E.2d 771 (1994). As we noted earlier, to find that the trial court abused its discretion by allowing the Dolans to testify, we must find its decision so palpably and grossly violative of fact or logic that it evidences not the exercise of will, but perversity of will; not the exercise of judgment, but defiance of judgment; not the exercise of reason, but, instead, passion or bias. Vaught, supra at 2003-Ohio-2181, ¶13; Nakoff, supra, 75 Ohio St.3d at 256. We do not find those factors present in the case sub judice.
{¶ 70} Our understanding of the testimony is that when the Dolans spoke of the revenue they received from each tow, they combined at least two separate components: (1) the amount
{¶ 71} We emphasize that the Brookeside Ambulance court stated only that evidence of lost profits must be “reasonably accurate.” Reasonable accuracy is not the same as “mathematical” accuracy or certainty, thus we reject the claims of the Glouster parties that the Dolans should have produced some kind of formula to prove lost profits. Given the nature of their business, and that the amount of revenue from each tow could vary widely based on the number of days of impoundment, the trial court apparently concluded that the evidence was reasonable under the circumstances and we find no abuse of discretion in that determination. In short, the $100 to $150 is as “reasonably accurate” as the facts and circumstances in this case will allow. Requiring a precise “mathematical formula,” as the Glouster parties advocate, simply is not be possible under these circumstances. Thus, we conclude that the trial court did not abuse its discretion by allowing this testimony to come into evidence.
{¶ 72} Accordingly, the fifth assignment of error is hereby overruled.
F. Sixth Assignment of Error
{¶ 73} The Glouster parties argue in their sixth assignment of error that the trial court erred by allowing the issue of punitive damages to go to the jury. We decline to address this
{¶ 74} As noted above, the trial court‘s June 8, 2011 judgment granted the Glouster parties’ post-trial motion for new trial and vacated the punitive damages award. Therefore, the Glouster parties no longer suffer any ill-effect from the trial court‘s decision to give this issue to the jury. Moreover, appellate courts, do not issue advisory opinions when a case or controversy no longer exists. McClead v. McClead, 4th Dist. Washington No. 06CA67, 2007-Ohio-4624, at ¶12; State v. Hardesty, 4th Dist. Pickaway No. 06CA1, 2006-Ohio-5272, at ¶10; State v. Davis, 4th Dist. Washington No. 05CA50 at ¶17, 2006-Ohio-3549, fn. 6. Because a new trial has been granted on the issue of punitive damages, and in view of the fact that the Glouster parties are the beneficiaries of that decision, no reason exists to address their question of whether sufficient evidence was adduced to send this particular issue to the jury.
{¶ 75} Thus, based on the foregoing reasons, the sixth assignment of error is hereby overruled.
G. Seventh Assignment of Error
{¶ 76} The Glouster parties argue in their seventh assignment of error that the trial court erred by not granting their September 8, 2011 motion for new trial on all issues in this case. The trial court denied their motion solely on grounds that “[b]oth parties have appealed the Court‘s decision granting a new trial.” The Glouster parties argue that this is error. We affirm the trial court‘s decision, albeit for reasons different than those set out in the trial court‘s 2011 entry.
{¶ 77} The trial court is correct, as an abstract proposition of the law, that “once an appeal is perfected, the trial court is divested of jurisdiction over matters that are inconsistent
{¶ 78} Yet, although couched in terms of a motion for new trial on all issues, the Glouster parties also conceded that their motion is in the nature of one for reconsideration of the previous ruling that only granted a new trial insofar as damages are concerned. The trial court had already denied their request for new trial on all issues and there is little reason to think the court would have changed its view had it considered the substance of the arguments advanced in this new motion.
{¶ 79} Finally, at least in light of the arguments that the Glouster parties advance in their brief, we find no merit to their second new trial motion. First, the argument that the finding that punitive and emotional distress damages are the product of “passion and prejudice” necessarily required the trial court to also find that every other component of compensatory damages (as well as a finding of liability itself) is equally the result of “passion and prejudice.” The Glouster parties cite no authority of law to support that argument, however, and we find none in our research.
{¶ 80} “[T]he nature of punitive damages is different from that of compensatory damages.” See Channell v. N.C.R. Emp. Ind. Union, 28 Ohio App.2d 260, 263, 277 N.E.2d 85 (2nd Dist. 1971). Punitive damages are intended to punish and deter behavior such as that exhibited by the party against which it was imposed. Telle v. Pasley, 5th Dist. Delaware No. 12CAE080048, 2013-Ohio-2407, at ¶64; Stephens v. Grange Mut. Ins. Co., 2nd Dist. Clark No. 2011 CA 102, 2012-Ohio-4980, at ¶28; Tinney v. Tite, 6th Dist. Huron No. H–11–006, 2012-Ohio-2347, at ¶19. Similarly, damages for emotional distress are intended to compensate for “[a] highly unpleasant mental reaction (such as anguish, grief, fright, humiliation, or fury) that results from another person‘s conduct[.]” Granger v. Auto Owners Ins., 9th Dist. Summit No. 26473, 2013-Ohio-2792, at ¶14.
{¶ 81} Suffice it to say that punitive damages and compensatory damages for emotional distress cover very different, and far more amorphous, injuries than damages for lost profits. Lost profits can usually be determined with at least some degree of precision, whereas punitive damages and compensation for emotional distress are less precise. Thus, the Glouster parties have not persuaded us the trial court‘s decision to grant a new trial on one part of the damage award is logically indicative that it should have granted a new trial on either (1) liability, or (2) all other forms of damages in the case sub judice. We further note that in our prior resolution of the Glouster parties’ first and fifth assignments of error, we found sufficient evidence to support the jury verdicts as to liability and damages for lost profits. Therefore, the Glouster parties have not persuaded us that the jury was somehow motivated by passion or bias on these particular issues.
{¶ 82} The Glouster parties also cite the Taylor verdict for tortiously interfering with the Dolans’ business relationship with Athens County, and on which the trial court later granted JNOV, as further proof that the jury was swayed by “passion and prejudice.” We are not
{¶ 83} More important, a good reason existed for granting JNOV for Taylor on a claim of tortious interference with business relations in Athens County, but not granting it for the same tort with regard to Glouster. The jury concluded that Taylor interfered with the business relationships that the Dolans had with both governing bodies. However, they may not have understood the hierarchical relations in this case. Taylor held authority over the police officers in Glouster, but he did not have the same authority over Athens County employees. This is a distinction that the jury did not make and the trial court correctly granted JNOV when no evidence was adduced that he had such authority. A trier of fact‘s failure to discern that distinction should not result in the conclusion that every other finding that it made is erroneous. Had there been evidence that Taylor had any influence or authority over Athens County officials, the result may well have been otherwise.
{¶ 84} In any event, we do not believe that the trial court‘s granting of the prior, partial motion for new trial necessitated granting the second motion for new trial (or the motion for reconsideration).
{¶ 85} Accordingly, for these reasons, the seventh assignment of error is without merit and is hereby overruled.
H. Eighth Assignment of Error
{¶ 86} In their eighth assignment of error, the Glouster parties argue that several statutes
{¶ 87} Our analysis begins with the well-settled principle that the assertion that a claim is barred by the operation of a statute of limitation is an affirmative defense.
{¶ 88} Even if the jury may have accepted Dolan‘s testimony as true, we are not persuaded that this established an accrual date for the Dolans’ claims. The testimony of David Dolan, to which the Glouster parties cite, stated that Angle had told them that he would make Dolans’ business go “to hell” if he did not reduce the fee. Even if one accepts this statement as true, it is not the same as Angle setting out and taking action to ruin their business at that very moment. This situation is not the same as a hit-and-run or a slip-and-fall on a snow covered step that can be ascertained with pin-point accuracy. The Dolans’ are claiming a tortious interference with business interests and the argument they advance in their brief alleges such interference occurred on February 3, 2003. However, the actual interference with the Dolans’ business relationship (which was based on Angle, Funk and Taylor allegedly instructing Glouster police not to use them for towing) could have happened days, weeks or months later. In view of the fact that the Dolans filed their complaint less than two months after the Glouster parties argue that the statute had run, and considering that we have no precise date on which the intentional tort (rather than the Angle comment) occurred, the Glouster parties have not persuaded us that they carried their burden of proof on this issue.
{¶ 89} Our ruling on this point is once again buttressed by the Ohio Supreme Court‘s admonition that cases should generally be decided on their merits when possible. See e.g. Whitley v. River‘s Bend Health Care, 126 Ohio St.3d 1217, 2010-Ohio-3269, 931 N.E.2d 583, at ¶15; Internl. Periodical Distrib. v. Bizmart, Inc., 95 Ohio St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167, at ¶7. Here, we find no evidence as to the actual date on which the action accrued. Thus, it is not clear that the
{¶ 90} The Glouster parties also maintain that to allow the actions to be maintained against them violated the
{¶ 91} Therefore, based upon the foregoing reasons the eighth assignment of error is without merit and is hereby overruled.
I. Ninth Assignment of Error
{¶ 92} The Glouster parties argue in their ninth assignment of error that the trial court erred, presumably in ruling on the motion for directed verdict, by not finding them immune from any civil liability in their individual capacities. In support of their argument, they cite
“(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
* * *
(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or
sections 3314.07 and3746.24 of the Revised Code , the employee is immune from liability unless one ofthe following applies: (a) The employee‘s acts or omissions were manifestly outside the scope of the employee‘s employment or official responsibilities;” (Emphasis added.)
{¶ 93} The determinative issue is whether the tortious interference with the Dolans’ business relationship with Glouster falls outside the Glouster parties’ scope of employment. We conclude that it does. Generally speaking, Ohio law provides that intentional torts fall outside of the scope of employment. See Kravetz v. Streetsboro Bd. of Edn., 11th Dist. Portage No. 2011–P–0025, 2012-Ohio-1455 at ¶35 (employer‘s torts against an employee); Grassia v. Cleveland, Cuyahoga No. 93647, 2010-Ohio-2483, at ¶23; Engleman v. Cincinnati Bd. of Educ., 1st Dist. Hamilton No. C-000597, 2001 WL 705575 (Jun. 22, 2001). In Ohio, tortious interference with business relations is deemed an intentional tort. See e.g. Schafer v. RMS Realty, 138 Ohio App.3d 244, 302, 741 N.E.2d 155 (2nd Dist. 2000); Sawyer v. Devore, Cuyahoga No. 65306, 1994 WL 614978 (8th Dist. Nov. 3, 1994).
{¶ 94} Accordingly, in light of the fact that the jury found an intentional interference with the business relationship between the Dolans and Glouster, that tort, virtually by definition, is outside the scope of the Glouster parties’ employment and cannot be used as a defense.
{¶ 95} Thus, we find no merit to the Glouster parties’ ninth assignment of error and it is hereby overruled.
{¶ 96} Having reviewed those errors assigned and argued by the Glouster parties, we now turn to the Dolans and their cross-assignments of error.
III. THE DOLANS’ CROSS-ASSIGNMENTS OF ERROR
{¶ 97} We jointly consider the first and second cross-assignments of error because both assert that the trial court erred by granting a new trial to the Glouster parties, insofar as compensatory damages for emotional distress and for punitive damages. The damages that had been awarded for those issues, and that the trial court subsequently vacated with its
{¶ 98} The trial court then concluded that these damages “were excessive and appear[ed] to have been given under the influence of passion and bias” and were “not sustained by the weight of the evidence and [were] contrary to law.” The Dolans argue this was error.
{¶ 99}
“A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:
* * *
(4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice;
* * *
(6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case;
(7) The judgment is contrary to law;”
Although the text of the trial court‘s June 8, 2011 judgment on the post-trial motions makes clear that the Glouster parties’ motion for new trial was granted on the basis of
{¶ 100} A decision to grant a new trial under
{¶ 101} Although the trial court discussed these two issues over two pages of its twenty-one page decision, we recognize that the Glouster parties also challenged that the amount of damages awarded in various other post-trial motions and considered by the trial court in those contexts as well. Thus, it is difficult for us to conclude the court acted arbitrarily or out of “passion or bias.”
{¶ 102} The Dolans’ arguments tend to primarily focus on the trial court‘s remarks about the size of emotional distress damages and punitive damages relative to the amount of damages for lost profits. They cite a number of cases for the proposition that a disparity between these figures, standing alone, constitutes an insufficient reason to vacate the awards and to grant a new trial on punitive damages and emotional distress damages. Although we readily agree with the Dolans as an abstract proposition of law, their argument neglects to mention that the trial court also opined that the jury may have been swayed to award these large (non-financial) damages because defendants did not give adequate explanation for failing to call the Dolans for tow services after the Chalfant incident, and that the Glouster parties in their motion for new trial cited to testimony elicited from the Dolans about all the financial hardships they allegedly suffered as a result of this incident. David Dolan testified at one point that, as a result of what had happened in Glouster, he and his family lost their Morgan County home due to
{¶ 103} In the end, as we stated above, we find no abuse of discretion in sustaining the Glouster parties’
BB. Third Cross-Assignment of Error
{¶ 104} The Dolans’ third cross-assignment of error goes to the trial court‘s determination to grant the Glouster parties partial JNOV on their motion. Specifically, although the trial court denied the motion insofar as the jury‘s determination that the Glouster parties tortiously interfered with the business relationship that the Dolans had with the city of Glouster itself, the Dolans posit that the court erred by granting JNOV for Taylor insofar as their claims that he interfered with the (tow) business relationship the Dolans had with Athens County. We disagree.
{¶ 105} JNOV, as we noted earlier, presents a question of law that we review de novo. Portsmouth Ins. Agency v. Med. Mut. of Ohio, 4th Dist. Scioto No. 10CA3405, 2012-Ohio- 2046, at ¶79; Magnum Steel & Trading, L.L.C. v. Mink, 9th Dist. Summit Nos. 26127 & 26231, 2013-Ohio-2431, at ¶41. In a de novo review, we afford no deference whatsoever to
{¶ 106} In its June 8, 2011 judgment on the post-trial motions, the trial court entered JNOV for Taylor with regard to the claim that he tortiously interfered with the Dolans’ business relationship with Athens County. The court opined that “Chief Roger Taylor does not supervise either [Robert Bentley, chief of operations for Athens County 911 emergency communications] or [any other] 911 personnel” in Athens County. We agree with the trial court‘s reasoning on this point.
{¶ 107} As noted earlier, in reviewing the Glouster parties’ argument that the failure to grant complete JNOV on the claims against them constitutes error, we find no direct evidence that the Glouster parties instructed any of the police officers in Glouster to stop using the Dolans for tow services. The jury‘s verdict on this point is based on circumstantial evidence, and that evidence is sufficient to support a judgment in a civil case.
{¶ 108} However, the claims against Taylor insofar as Athens County are concerned are much different. Taylor, as the Glouster Chief of Police, had supervisory authority over the officers under his command. As the trial court aptly noted, he had no jurisdiction or control over Athens County officials. The trier of fact could reasonably conclude, from the hierarchy of the City of Glouster, that the elimination of tows extended to the Dolans resulted from the officers being told by Angle, Funk and/or Taylor not to use them because the Glouster parties occupied positions of authority over city police. However, they had no similar position
{¶ 109} Absent that position of authority, the Dolans needed to produce evidence to show that Taylor influenced Athens County officials. They have cited to us nothing in the transcripts that are persuasive on this issue and we have found no such evidence in our own review.
{¶ 110} Accordingly, we find no merit to the third cross assignment of error and it is hereby overruled.
CC. Fourth Cross-Assignment of Error
{¶ 111} In their fourth cross-assignment of error, The Dolans assert that the trial court erred by calculating the amount of attorney fees that it awarded to them. Specifically, they posit that the trial court failed to account for the “Lodestar” principle of Bittner v. Tri-County Toyota, 58 Ohio St.3d 143,569 N.E.2d 464 (1991) and to award them only $95,553.33 in fees when they requested $173,922.50. We find no merit to this contention.
{¶ 112} With respect to attorney fees, Ohio adheres to the “American Rule” that holds that a prevailing party in a civil action cannot recover attorney fees absent a statute that expressly authorizes such recovery, or some other legal authority that expressly authorizes such recovery. State ex rel. Varnau v. Wenninger, 131 Ohio St.3d 169, 2012- Ohio-224, 962 N.E.2d 790, at ¶23; also see e.g. Corbin v. Kelly Plating Co., 187 Ohio App.3d 129, 2010-Ohio-1760, 931 N.E.2d 204 (8th Dist). Exceptions to this general rule must be narrowly construed. See In re Estate of Fugate, 86 Ohio App.3d 293, 298, 620 N.E.2d 966 (4th Dist. Feb. 11, 1993); In re Keller, 65 Ohio App.3d 650, 656, 584 N.E.2d 1312 (8th Dist. Dec. 18, 1989).
{¶ 113}
{¶ 114} Generally, the amount of an attorney fee award lies in a trial court‘s sound discretion and its determination will not be reversed absent an abuse of that discretion. Semco, Inc. v. Sims Bros., Inc., 3rd Dist. Marion No. 9–12–62, 2013-Ohio-4109, at ¶40; Lamar Advantage GP Co. v. Patel, 12th Dist. Warren No. CA2011–10–105, 2012-Ohio-3319, at ¶43; Friend v. Elsea, Inc., 4th Dist. Pickaway App. No. 98CA29, 2000 WL 1468499 (Sep. 26, 2000). In reviewing the court‘s exercise of discretion, “[u]nless the amount of fees determined is so high or so low as to shock the conscience, an appellate court will not interfere. The trial judge which participated not only in the trial but also in many of the preliminary proceedings leading up to the trial has an infinitely better opportunity to determine the value of services rendered by lawyers who have tried a case before him than does an appellate court.” (Emphasis added.) Cyrus v. Journey, 4th Dist. Scioto No. 94CA2213, 1994 WL 675519 (Nov. 30, 1994); Cremeans v. Robbins, 4th Dist. Ross No. 99CA2520, 2000 WL 781215 (Jun. 12, 2000).
{¶ 115} In the case sub judice, the trial court held a hearing on this issue and both sides adduced considerable evidence. Later, the trial court issued two separate decisions that considered the amount of fees to award. The first, on December 15, 2011, ordered the Dolans
“Consumer transaction” means a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, a franchise, or an intangible, to an individual for purposes that are primarily personal, family, or household, or solicitation to supply any of these things. . .”
R..C. 1345.01(A)
{¶ 116} Whatever else can be said of the “business relationship” of the Dolans and the various party defendants named in this action, it obviously did not involve a consumer transaction. Therefore, the trial court did not err by failing to apply a principle that had no bearing on the proceedings at hand.
{¶ 117} Thus, the fourth cross-assignment of error is without merit and is hereby overruled.
DD. Fifth Cross-assignment of Error
{¶ 118} The Dolans argue in their fifth cross-assignment of error the trial court
{¶ 119} As we noted various times herein, the Dolans recovered against the Glouster parties under a theory of tortious interference with a business relationship. Recovery of prejudgment interest for such claims are covered under the provisions
“If, upon motion of any party to a civil action that is based on tortious conduct, that has not been settled by agreement of the parties, and in which the court has rendered a judgment, decree, or order for the payment of money, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case, interest on the judgment, decree, or order shall be computed [as follows]” (Emphasis added.)
{¶ 120} Whether a prejudgment interest award is warranted depends on whether a court finds the existence of a good faith effort to settle the case. That finding, and the decision to award prejudgment interest on a tort claim, lies in a trial court‘s sound discretion and its decision will not be disturbed absent an abuse of that discretion. See generally Lewis v. Alfa Laval Separation, Inc., 128 Ohio App.3d 200, 224, 714 N.E.2d 426 (1998 4th Dist.); Evans v. Dayton Power & Light Co., 4th Dist. Adams No. 05CA800, 2006-Ohio-319, at ¶12; Rothenbusch- Rhodes v. Mason, 10th Dist. Franklin No. 02AP- 1028, 2003-Ohio-4698, at ¶95. In view of the stringent requirements for demonstrating an abuse of discretion, as we have outlined several times in this opinion, we are not persuaded that the Dolans have shown it in the case sub judice.
{¶ 121} In its December 26, 2011 judgment that denied the Dolans’ request for pre-judgment interest, the trial court expressly found that the “Defendants [meaning the Glouster
{¶ 122} As is true for all its rulings, the trial court‘s decision to deny pre-judgment interest is contained in a lengthy, six page judgment that carefully weighed all competing claims on the issue. Even assuming, arguendo, that one or more members of this Court may have exercised their own discretion differently, we simply cannot conclude that in the case sub judice the trial court‘s reasoned and judicious decision is in any way arbitrary, unreasonable or unconscionable.
{¶ 123} Thus, the fifth cross-assignment of error is without merit and is hereby overruled.
IV. Conclusion
{¶ 124} Having considered all of the errors and all of the cross-assignments of error advanced and argued in the briefs, we hereby affirm the various judgment(s) of the trial court consistent with this opinion appealed herein by both the Glouster parties and the Dolans.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that the parties herein equally divide all costs herein taxed.
The Court finds there were reasonable grounds for this appeal and cross-appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to
Abele, P.J., Harsha, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Presiding Judge
BY:
William H. Harsha, Judge
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.