2005 Ohio 868 | Ohio Ct. App. | 2005
{¶ 3} However, GMAC disbursed the payments without obtaining the lien waivers. Thus, when Connecticut Homes' principal ran off with the money without paying the subcontractors or completing the construction, the subcontractors were able to foreclose on their liens. Specifically, Morgan Co. filed a foreclosure action against the Titchs, Connecticut Homes, GMAC, and six other subcontractors. GMAC answered the complaint by denying the allegations.
{¶ 4} In January 2001, the Titchs answered and filed a cross-claim against GMAC, charging breach of contract and gross negligence, and seeking punitive damages for reckless indifference as well as attorney fees. GMAC answered the cross-claim and proceeded to discovery, with the several parties, including the Titchs, exchanging numerous discovery requests.
{¶ 5} In March 2001, the Titchs served GMAC with Civ.R. 36(A) requests for admissions, including admissions that GMAC undertook a duty in disbursing the construction loan funds, GMAC failed to obtain the lien waivers before disbursing said funds, the Titchs were damaged by GMAC's negligence and reckless indifference, and the Titchs were not at fault for any nonpayment to the lien holders. The Titchs offered GMAC 28 days to respond. GMAC never responded, and the requests were deemed admitted in accordance with the Civ.R. 36(A). The Titchs later filed a motion to compel discovery from GMAC and others, for other outstanding requests, which the court granted but with a determination of any attorney fees award left pending.
{¶ 6} In June 2001, the Titchs filed a motion for summary judgment against GMAC, for liability on the cross-claim, which had appended to it an affidavit by the Titchs and the requests for admissions that had been deemed admitted by GMAC. In July 2001, GMAC moved for an extension of time to reply, and the court granted the motion, allowing GMAC until September 21, 2001. GMAC never replied. On September 24, 2001, the court heard the matter and thereafter granted partial summary judgment to the Titchs, on the liability issue, with the damages to be determined by a jury at trial.
{¶ 7} On December 7, 2001, the court conducted a trial on the damage issue. The jury returned a general verdict of $185,000 for the Titchs, and answered four interrogatories: (1) $155,000 was compensatory damages; (2) GMAC did act so maliciously, oppressively or wantonly as to justify punitive damages; (3) $30,000 was punitive damages; and, (4) the Titchs were entitled to attorney fees. In formalizing the verdict the court set the attorney fees issue to be decided by a magistrate. In December 2003, the magistrate found that the Titchs had incurred $66,302.39 in attorney fees, but only a portion was inseparable from GMAC's conduct. The magistrate recommended $38,523.47 plus interest dating from the time of the decision, December 7, 2001, be paid by GMAC to the Titchs. Both parties contested the magistrate's findings, but on January 22, 2004, the trial court issued an order adopting the decision in its entirety.
{¶ 8} Finally, following trial, GMAC had filed a motion for remittitur, which the Titchs opposed. On January 27, 2004, the trial court denied GMAC's motion for remittitur, effectively concluding the final outstanding issue in the case. GMAC timely appealed, asserting six assignments of error for review.
{¶ 9} GMAC alleges that the trial court improperly granted summary judgment to the Titchs, based on two alterative arguments. We disagree with both.
{¶ 10} An appellate court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996),
{¶ 11} The party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying portions of the record that demonstrate an absence of a genuine issue of material fact as to some essential element of the nonmoving party's claim. Dresher v. Burt (1996),
{¶ 12} In the present case, the Titchs moved for summary judgment on the liability issues, and supported that motion with an affidavit by the Titchs and the Civ.R. 36(A) requests for admissions that had been deemed admitted by GMAC. Civ.R. 56(C) requires supporting evidence to be of a certain form:
"Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Emphasis added.) Civ.R. 56(C).
Therefore, the Titchs satisfied their burden as the moving party, at least in form, and GMAC was thereafter obligated to produce some reciprocal evidence of a genuine issue of material fact. See Mitseff,
{¶ 13} On September 24, 2001, the trial court heard the matter and the next day granted partial summary judgment to the Titchs, stating:
"After reviewing the evidence allowable under Civ.R. 56(C), and construing that evidence in the light most favorable to the nonmoving party, the Court finds there are no genuine issues of material fact to litigate. * * * Defendants John J. Titch and Terasa M. O'Neil-Titch are granted judgment as to liability on their Crossclaim against GMAC Mortgage Corporation."
{¶ 14} GMAC replies now. GMAC contends that the summary judgment was based solely on the requests for admissions that were deemed admitted under an "archaic procedural rule." GMAC argues that their distaste for Civ.R. 36(A) invalidates the admissions (if not the rule), thereby rendering the resulting summary judgment improper. This argument is patently wrong at best, frivolous at worst, and in either event warrants no further discussion at this point as it is discussed fully in the second assignment of error below.
{¶ 15} GMAC also offers a second reply. Despite insisting that the requests for admission were the sole basis for the summary judgment, GMAC insists as an alternative argument that the trial court granted summary judgment simply because GMAC failed to respond to the Titchs' motion. Although not as meritless as the first argument, this contention is unsupported by the record and therefore unavailing to GMAC.
{¶ 16} The Titchs had satisfied their burden to disprove any genuine issue of material fact, and thereby deem summary judgment appropriate. See Dresher,
{¶ 17} Notably, the evidence before this Court is limited to the evidence that was properly before the trial court. See Norris,
{¶ 18} For breach of contract, the elements are the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff. See Preferred Capital, Inc., v.Sturgil, 9th Dist. No. 21787, 2004-Ohio-4453, at ¶ 11. The affidavit sets out that the parties entered into a contract, that GMAC failed to fulfill its obligations under the contact, and that this failure caused harm to the Titchs. GMAC does not dispute these facts or offer any alternative theory. Rather, GMAC erroneously contends that Civ.R. 36(A) admissions are not allowed and that summary judgment cannot be granted when opposing party does not respond. The facts before the court, as applied to the prevailing law, leave us with little doubt that reasonable minds could come to but one conclusion, that GMAC is liable to the Titchs on the contract claim.
{¶ 19} For negligence, a plaintiff must show a duty and breach of that duty as the direct and proximate cause of an injury. Chambers v. St.Mary's School (1998),
{¶ 20} Based on the facts before us, even viewed most favorably to GMAC, we must agree with the trial court that summary judgment in favor of the Titchs was appropriate. GMAC's first assignment of error is overruled.
{¶ 21} GMAC alleges that the trial court acted improperly by following Civ.R. 36(A) and deeming admitted the requests for admission that the Titchs sent to GMAC but to which GMAC made no response. We disagree.
{¶ 22} When a party files with an opponent some requests for admissions, and that opponent fails to respond, the pertinent provisions of Civ.R. 36 state:
"The matter is admitted unless, within a period designated in the request, not less than twenty-eight days after service thereof or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney." Civ.R. 36(A).
"Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Civ.R. 36(B).
{¶ 23} First, GMAC contends that they did deny the admissions. This statement is unsupported by the record. There is no record of such a response ever being filed, no affidavit or sworn testimony that such a response was made, and no explanation as to why the Titchs and the trial court so confidently asserted and concluded that there had been no such response. We cannot conclude that GMAC denied these requests for admissions within the 28 days following their receipt of the requests.
{¶ 24} Next, GMAC refutes its own first argument:
"In any event, whether the requests for admissions were answered or not is not determinative of this Assignment of Error. To the contrary, [GMAC]'s Assignment of Error is based upon the fact that the trial court deemed the request for admissions admitted, thereby determining liability through a procedural device as opposed to a consideration of the law and facts."
GMAC apparently fails to realize that the civil rules, even those GMAC finds distasteful, are in fact the law. See Rockey v. 84 Lumber Co.
(1993),
{¶ 25} GMAC alleges that the jury incorrectly awarded damages to the Titchs, despite GMAC's asserted evidence that the damage was due to the misconduct of other parties, that the award exceeds the contract based benefit-of-the-bargain remedy, and that there was no evidence of recklessness or wantonness, other than GMAC's admissions. Based on this argument, GMAC insists that the jury's finding was against the manifest weight of the evidence. We disagree.
{¶ 26} Reversal on manifest weight grounds is reserved for the exceptional case where the evidence demonstrates that the "trier of fact clearly lost its way and created such a manifest miscarriage of justice that the [decision] must be reversed." State v. Otten (1986),
{¶ 27} First, GMAC argues that the evidence at trial demonstrated that the Titchs are entitled to nothing because they already received $290,000 from GMAC, the benefit of their contractual bargain. GMAC alleges that any further costs, such as repairs necessary to bring the house into conformance with their expectations, are the liability of others, not GMAC. Correspondingly, GMAC argues that the Titchs obtained a default judgment of $50,000 from Connecticut Homes, which should be subtracted from any compensatory damages due to the Titchs. Next, GMAC contradicts its first argument by alleging that the Titchs's remedy is limited to the benefit of their contractual bargain, and that the evidence produced at trial proves this amount to be only $51,065 and not the $155,000 awarded by the jury. Finally, GMAC argues that the Titchs not only failed to prove that GMAC acted recklessly, maliciously or wantonly, as would be necessary to justify punitive damages, but furthermore, that the evidence proves that GMAC acted diligently to ensure that there were no liens placed on the property.
{¶ 28} We begin by noting that at every relevant point, the Titchs' crossclaim, the trial court's partial summary judgment ruling, and the jury's award, all encompassed claims for both breach of contract and gross negligence.1 At trial, the Titchs produced evidence of almost $200,000 in damages, including the testimony of three experts. In contrast, GMAC did not rebut this evidence and even conceded over $100,000 in damages ($29,050 at one point and $73,558 at another) during GMAC's own closing argument. As such, we cannot say that the decision demonstrates that the jury clearly lost its way and created a manifest miscarriage of justice. Otten,
{¶ 29} At trial, both John and Terasa Titch testified to their relationship with GMAC, the circumstances underlying the suit, and the harm that had arisen from GMAC's conduct. John Titch testified that GMAC had assured him repeatedly, both verbally and in writing, that GMAC would verify the work, obtain the liens and ensure the quality completion of the construction. Yet, despite these promises, GMAC never sent a single inspector or prepared any inspection report before paying any of the eight separate construction disbursements to Connecticut Homes. The Titchs relied on GMAC, but when the trouble began with the contractors, the liens, the bill collectors, the harassment, and the lawsuits, GMAC made no response to the Titchs' repeated pleas for assistance. Terasa Titch testified to the stress and emotional strain that beset their family when GMAC failed to fulfill its empty promises that it would take care of them. This testimony was consistent with GMAC's admission that it had acted with reckless indifference to the harm to the Titchs. The jury could have found from this evidence that GMAC induced the Titchs into the agreement, and then abandoned them with reckless disregard or wanton indifference.
{¶ 30} Finally, we must refute GMAC's assertion that the evidence proves that GMAC acted "diligently" to ensure that there were no liens placed on the property. While GMAC dutifully supported this assertion with a citation to the trial transcript, the referenced "testimony" is actually no more than GMAC's own counsel suggesting such diligence in a question posed to a witness on cross examination. We need not belabor the point that the opinion of GMAC's counsel during questioning is not the conclusive evidence of diligence that GMAC represents it to be in its brief on appeal.
{¶ 31} We cannot conclude that the jury clearly lost its way and created a manifest miscarriage of justice. Otten,
{¶ 32} GMAC alleges that the jury granted the Titchs a windfall, and therefore the trial court incorrectly denied GMAC's motion for remittitur. We disagree.
{¶ 33} Under the concept of remittitur, "if a verdict in an action for unliquidated damages is excessive, but not appearing to have been influenced by passion or prejudice, the court may, with the assent of plaintiff, reduce the verdict by remittitur to any amount warranted by the evidence." Larrissey v. Norwalk Truck Lines, Inc. (1951),
{¶ 34} GMAC alleges that the trial court incorrectly allowed the Titchs to recover attorney fees that were not limited to the Titchs claim against GMAC. Accordingly, GMAC argues that the attorney fees are disproportionate to their liability and insupportable as a matter of law. We disagree.
{¶ 35} Decisions regarding the award of attorney fees are within the discretion of the trial court and will not be disturbed without an abuse of discretion. Motorists Mut. Ins. Co. v. Brandenburg (1995),
{¶ 36} The limitations on attorney fees are that the award of those fees must be necessary and proper. Motorists Mut. Ins. Co.,
{¶ 37} GMAC alleges that the trial court incorrectly determined that the date of judgment for the purpose of post-judgment interest was the date of the jury verdict, December 7, 2001. GMAC contends that the date of judgment for such purpose must be the date on which the attorney fees are tabulated, in this case January 22, 2004. We disagree.
{¶ 38} Essentially, GMAC erroneously argues that attorney fees are the same as punitive damages, and since prejudgment interest is not allowed on punitive damages it cannot be allowed on attorney fees. See, e.g.,Ariguzo v. K-Mart Corp. (Sept. 30, 1999), 10th Dist. No. 98AP-1268. First, we find that prejudgment interest is appropriate from the date of judgment, even though the amount may be unliquidated at the time of that judgment. R.C.
{¶ 39} Next, although some courts have analogized the two, attorney fees are not the exact same thing as punitive damages. See, e.g.,Ariguzo, supra. Considering the two from the viewpoint of recoverable interest, as is the case before us, we note that punitive damages involve no aspect of repayment for money expended or lost opportunity to invest that money. Hence, there is no lost profit during the period of time in which the wronged party is without this (punitive damages) money. Conversely, attorney fee awards are comprised of money actually expended by the wronged party, albeit for their attorney, but which could otherwise have been invested and earning some type of profit, interest or otherwise. Therefore, we disagree with GMAC's position that attorney fees are the same as punitive damages for purposes of calculating this post judgment interest.
{¶ 40} In the present case, the Titchs were awarded a jury verdict on December 7, 2001, which included $180,000 and attorney fees. The trial court entered judgment on that verdict on December 13, 2001. GMAC has not alleged that the Titchs did not pay their attorney the attorney fees at that time. When a party is without money, rightfully awarded to it, for over two years while the parties proceed through a series of post judgment motions, then that party is entitled to interest on that money. See R.C.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Exceptions.
Carr, P.J. Baird, J. Concur.
(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.)