DELORES FAVORS v. WILLIAM BURKE, ET AL.
No. 98617
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 7, 2013
2013-Ohio-823
Stewart, A.J., Jones, J., and Blackmon, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-768958
AFFIRMED IN PART, REVERSED
IN PART AND REMANDED
RELEASED AND JOURNALIZED: March 7, 2013
Andrew S. Pollis
Milton A. Kramer Law Clinic Center
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
LEGAL INTERNS FOR APPELLANT
Jeffrey Bieszczak
Emily Grannis
Milton A. Kramer Law Clinic Center
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
FOR APPELLEE
William Burke, Pro Se
3019 Ruby Avenue
Cleveland, OH 44106
{¶1} The court entered a default judgment in favor of plaintiff-appellant Delores Favors and against defendant-appellee William Burke on Favors‘s complaint that Burke violated the Ohio Consumer Sales Practices Act (the “Act“) by failing to complete a home remodeling contract. After a trial on damages, the court awarded Favors actual damages of $6,050, which it trebled pursuant to
{¶2} Favors‘s complaint alleged that Burke engaged in fraud by accepting a down payment of $6,050 to remodel and enlarge her house. She alleged that Burke began work on the project by “digging a hole in her backyard,” but then abandoned the project, leaving nothing to show for her money but the unfilled hole. She further alleged that he ignored her calls and complaints and then lied to the Ohio Attorney General‘s office about his progress on the project.
{¶3} Although Burke was initially represented by counsel, the court allowed Burke‘s lawyer to withdraw before answering the complaint. The court informed Burke that he had to answer the complaint or face a default judgment. Burke did not answer the
I
{¶4} Favors first argues that the court‘s refusal to award her noneconomic damages for her inconvenience, frustration, embarrassment, and mental distress caused by Burke‘s violations of the act was against the manifest weight of the evidence.
A
{¶5}
(A) Where the violation was an act prohibited by section
1345.02 ,1345.03 , or1345.031 of the Revised Code, the consumer may, in an individual action, rescind the transaction or recover the consumer‘s actual economic damages plus an amount not exceeding five thousand dollars in noneconomic damages.
{¶6} In the context of tort law, “noneconomic loss” has been defined by
[N]onpecuniary harm that results from an injury or loss to person or property that is a subject of a tort action, including, but not limited to, pain and suffering, loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education, disfigurement, mental anguish, and any other intangible loss.
{¶7} Although the Ohio Supreme Court has not expressly defined the scope of “noneconomic damages” allowed under
{¶8} Noneconomic damages are not presumed even if the plaintiff establishes proof of actual economic damages. See Uhlir v. State Farm Ins. Co., 164 Ohio App.3d 71, 2005-Ohio-5545, 841 N.E.2d 344, ¶ 21; Metter v. Konrad, 8th Dist. No. 85271, 2005-Ohio-4290, ¶ 15. “Evidence relative to pain and suffering in damages evaluations is within the province of the fact-finder.” Baughman v. Krebs, 8th Dist. No. 73832, 1998 Ohio App. LEXIS 5925 (Dec. 10, 1998). We are not at liberty to disturb the trier of fact‘s assessment of damages absent an affirmative finding of passion and prejudice or a finding that the award is manifestly excessive or inadequate. Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 655, 1994-Ohio-324, 635 N.E.2d 331. This is a very high legal hurdle for a plaintiff, for we have held that a damages award will not be found to be against the manifest weight of the evidence unless it is “so gross as to shock the sense of justice and fairness, cannot be reconciled with the undisputed evidence in the case, or is the result of an apparent failure by the jury to include all the items of damage making up the plaintiff‘s claim.” Tenaglia v. Russo, 8th Dist. No. 87911, 2007-Ohio-833, ¶ 22, citing Iames v. Murphy, 106 Ohio App.3d 627, 666 N.E.2d 1147 (1st Dist.1995).
B
{¶10} The testimony going to noneconomic damages consisted of Favors testifying that her unsuccessful attempts to resolve Burke‘s failure to fulfill his contract left her feeling “let down” and that she felt “a lot of anxiety and I was really depressed.” She stated that she needed to “talk to somebody to try to get help for myself[,]” so she made three office visits to a psychologist. She said that the unfinished condition of Burke‘s renovations left her feeling “depressed” and “ashamed of my property.”
C
{¶11} At the outset, we note that the court‘s refusal to award noneconomic damages was not necessarily against the manifest weight of the evidence solely because Burke did not appear for trial or otherwise contest Favors‘s testimony. In Decapua v. Rychlik, 8th Dist. No. 91189, 2009-Ohio-2029, we stated:
[T]he mere fact that testimony is uncontradicted, unimpeached, and unchallenged does not require the trier of fact to accept the evidence * * * (citation omitted). “The trier of facts always has the duty, in the first instance, to weigh the evidence presented, and has the right to accept or reject it.” Ace Steel Baling v. Porterfield (1969), 19 Ohio st.2d 137, 138, 249 N.E.2d 892; see, also, Rogers v. Hill (1998), 124 Ohio App.3d 468, 470, 706 N.E.2d 438.
Id. at ¶ 25. However, in its judgment entry, the court did not indicate that it found Favors‘s evidence of noneconomic damages wanting in any way, let alone to the degree necessitating a rejection of her claim. In fact, the court did not address the noneconomic damages claim, but implicitly rejected it in the court‘s judgment entry. We find that the court‘s refusal to award noneconomic damages was manifestly inadequate.
{¶12} Favors offered testimonial and documentary evidence showing that Burke‘s violations of the Consumer Sales Practices Act left her anxious and depressed to such a degree that she sought psychological help. Whitaker specifically endorsed “aggravation, frustration, and humiliation” as compensable noneconomic damages under
{¶13} The court awarded Favors damages under the Act, so it should have awarded noneconomic damages given her evidence that she suffered depression, anxiety, and frustration as a result of Burke‘s violations. We therefore sustain this assignment of error and remand with instructions for the court to determine the amount of noneconomic damages that Favors is entitled to receive.
II
{¶14} In addition to her claim that Burke violated the Ohio Consumer Sales Practices Act, Favors‘s complaint set forth claims of fraud and civil theft. She sought punitive damages for each of those claims. The court declined to award punitive damages, finding that Favors failed to produce “enough evidence” to warrant punitive damages.
{¶15}
{¶16} Favors offered no evidence of actual malice at the hearing she relied on general statements in her complaint that alleged that Burke‘s conduct “demonstrated actual malice and/or aggravated egregious fraud.” For example, Favors alleged in her complaint that Burke replied to an inquiry by the attorney general‘s office by lying about his progress on the job. Although a defendant‘s failure to answer or otherwise defend a complaint constitutes an admission of facts alleged in the complaint, Belfance v. Resash, Inc., 9th Dist. Nos. 23415 and 23437, 2007-Ohio-6614, ¶ 5, those admitted facts alone are not enough to warrant the imposition of punitive damages. In Carr v. Charter Natl. Life Ins. Co., 22 Ohio St.3d 11, 488 N.E.2d 199 (1986), the Supreme Court found that the evidence presented in a default judgment hearing must support the damages awarded, particularly punitive damages. Id. at 13. Under Carr, these general allegations were, without more, insufficient to support a finding by clear and convincing evidence that Burke acted with actual malice.
{¶17} Favors cites Grodhaus v. Burson, 71 Ohio App.3d 477, 481, 594 N.E.2d 717 (10th Dist.1991), as support for the proposition that punitive damages can be awarded
{¶18} Favors also relied on her request for admissions, which were deemed admitted when Burke failed to reply to her request. See
{¶19} “When a party fails to timely respond to requests for admissions under
{¶20} A party to a contract is free to breach the contract, subject to paying damages for the breach. Farnsworth, Contracts, Section 12.3, at 157 (2d ed. 1998).
{¶21} Favors‘s own evidence showed that Burke commenced some work, however minimal, on Favors‘s house by excavating in preparation for pouring a footer for the new addition. This left open the possibility that Burke undertook the project with an intent to finish it, only to abandon it later. Admittedly, Burke conceivably could have started working on the project with no intent to finish it, but under contract law he was free to breach the contract with Favors, subject to making her whole for the breach. So even with the admission that Burke did not intend to finish the project, it would be speculation to say that Burke acted with malice. With the assertion that there was no intent to finish the work being speculative, the discovery admission would not suffice to carry Favors‘s burden of proving actual malice by clear and convincing evidence. The court‘s finding that Favors did not present enough evidence to obtain punitive damages was not against the manifest weight of the evidence.
III
{¶23} Finally, Favors argues that the court erred by failing to award her attorney fees under
{¶24}
{¶25} Given the nature of the facts admitted by virtue of Burke‘s failure to answer the complaint or respond to requests for admissions, the uncontradicted evidence submitted at the hearing on damages, and the apparent reasonableness of both the hourly rate and hours worked, we see nothing that would justify the court‘s refusal to grant attorney fees. In the face of these factors, the court did not state any reasons for denying attorney fees, nor were any reasons obvious on the record. It was thus arbitrary and unreasonable for the court to deny attorney fees.
{¶26} We note that the request for attorney fees was made on behalf of law students practicing as certified legal interns pursuant to Gov.Bar.R. II. Favors was represented pro bono by the Milton A. Kramer Law Clinic Center at Case Western Reserve University School of Law. The law students, under the supervision of an attorney-professor, handled the case. Gov.Bar.R. II, Section 6 states:
A legal intern shall not ask for or receive any compensation or remuneration of any kind from a financially needy client on whose behalf services are rendered. However, the law school clinic, legal aid bureau, public defender‘s office, or other legal services organization may be awarded attorney fees for services rendered by the legal intern consistent with the Ohio Rules of Professional Conduct and as provided by law. A law school clinic, legal aid bureau, public defender‘s office, or other legal services organization, the state, or any municipal corporation may pay compensation to the legal intern.
{¶27} In this case, the supervisor of the legal interns submitted an affidavit in which he stated that the interns logged 156.19 hours of time working on the case. He
{¶28} With there being no legal impediment to an award of attorney fees based on the work of the legal interns, and nothing to dispute or contradict the reasonableness of the hourly rate requested and number of hours worked, the court‘s refusal to grant attorney fees was unreasonable, arbitrary, and capricious. We sustain the third assignment of error and remand with instructions for the court to award attorney fees of $10,000.
{¶29} This cause is affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
LARRY A. JONES, SR., J., and PATRICIA ANN BLACKMON, J., CONCUR