TERRY MARTIN, Plaintiff/Cross-Appellee, v. NANCY JONES, Defendant-Appellant, and KEAVIN HILL, Defendant/Cross-Appellant.
Case No. 14CA992
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY
RELEASED: 8/5/2015
[Cite as Martin v. Jones, 2015-Ohio-3168.]
APPEARANCES:
Robert J. Judkins, Judkins & Hayes, LLC, Greenfield, Ohio, for appellant.
Joseph P. Sulzer, Chillicothe, Ohio, for cross-appellant.
John B. Caldwell, Young & Caldwell, LLC, West Union, Ohio, for appellee.
Harsha, J.
{¶1} Following a lengthy trial the jury returned a verdict finding that Nancy Jones had breached a contract to lease farmland to Terry Martin for 2011 and that Keavin Hill had tortiously interfered with Martin‘s business relationship with Jones by renting her land that year. The jury awarded Martin compensatory damages for his breach-of-contract claim against Jones, and compensatory damages, punitive damages, and attorney fees for his tortious-interference-with-a-business-relationship claim against Hill. The court overruled Jones‘s and Martin‘s postjudgment motions challenging these verdicts and entered a judgment adopting them.
{¶3} In Jones‘s second assignment of error she asserts that the trial court erred in denying her motion for judgment notwithstanding the verdict, which found that she breached her contract. However, there was sufficient evidence establishing that the parties entered into a binding oral contract, notwithstanding some lack of specificity regarding the rental price, which was supplied by the parties’ course of dealing. Nor did the statute of frauds invalidate the oral lease, because Martin‘s part performance of the contract—by spraying the farmland with herbicide, purchasing fertilizer and seed, entering into corn contracts, and leasing an additional tractor—removed the lease from the operation of the statute. Jones was not entitled to judgment notwithstanding the verdict on Martin‘s claim for breach of contract. Jones‘s related argument in her third assignment of error contesting the denial of her motion for new trial fails for similar reasons.
{¶4} In Jones‘s fourth assignment of error she contends that the trial court erred in denying her motion for remittitur1 seeking a reduced amount of damages. The trial court did not abuse its discretion in denying her motion because the jury verdict awarding Martin damages for her breach of their oral lease agreement was supported
{¶5} In Hill‘s first assignment of error he claims that the trial court erred in denying his motion for summary judgment. Because Hill now concedes that he did not file a motion for summary judgment, we reject his claim.
{¶6} In Hill‘s second assignment of error he asserts that the trial court abused its discretion by denying his motions for directed verdict and judgment notwithstanding the verdict on Martin‘s claim that Hill tortiously interfered with Martin‘s business relationship with Jones. There was sufficient evidence of an oral contract for Martin to lease Jones‘s farmland in 2011. Because the oral lease was not terminable at will, Hill could not rely on the privilege of fair competition to justify his interference with the business relationship. Hill was not entitled to a directed verdict or judgment notwithstanding the verdict on Martin‘s tortious-interference claim.
{¶7} In Hill‘s third assignment of error he argues that the damages awarded against him were against the manifest weight of the evidence. Hill invited any error in the trial court‘s adoption of the jury verdict against him of $2,175 in compensatory damages because his trial counsel advised the court that this sum was “commensurate with his liability” and “fair and proper.” And the record includes evidence that neither the jury nor the trial court lost its way in assessing $45,000 in punitive damages against Hill based on his conscious disregard of Martin‘s rights to farm Jones‘s farmland in 2011.
{¶8} Finally, in Hill‘s fourth assignment of error he asserts that the trial court erred in awarding attorney fees against him because there was no evidence submitted on the reasonableness of those fees. Hill forfeited this claim on appeal by stipulating to
I. FACTS
{¶9} Martin filed a complaint in the Adams County Court of Common Pleas against Jones and Hill. In an amended complaint Martin raised claims that Jones breached an oral lease agreement for Martin to farm her land in 2011, that Jones was liable to him based on promissory estoppel, and that Hill and his business, Hills Agri-Tech Services, Inc., tortiously interfered with Martin‘s business relationship with Jones. Jones and Hill filed answers and counterclaims alleging that Martin had tortiously interfered with Jones‘s business relationship with Hill.
{¶10} Jones filed motions for summary judgment, which the trial court denied. The case proceeded to a jury trial, which produced the following evidence.
{¶11} Martin is an Adams County resident who has farmed for over 30 years. He farms real property he owns as well as other land he leases in four different counties. In 1998, he asked Jones, a retired schoolteacher who owns a farm in Adams County with approximately 150 acres of farmland, whether he could lease her property to farm. Jones‘s property had last been farmed about 10-15 years before so it was overrun with weeds. They reached an oral agreement for Martin to lease Jones‘s farmland in 1999 for $50 per acre. The only condition specified by Jones was that if her son wanted to come back and farm her property, they would have to negotiate a different arrangement.
{¶13} Martin testified that the lease agreement was never for a specific price; instead, it followed from what was the year before, unless Jones told him in the fall of the preceding year that she wanted more money or Martin decided to pay her more based on increases in area rental and grain prices. The annual rent Martin paid fluctuated from $7,000 in 1999 to $11,500 in 2010.
{¶14} When Martin farmed Jones‘s property in 2010, there was a problem with marestail, an invasive weed. By early August 2010, Martin had sprayed the property three times to kill the weeds. According to Martin, around that time he told Jones that he was going to have to spray the property again to get rid of the weeds and that he would have to plant corn the next year—2011. Jones advised Martin that she did not care what he planted on her farmland. Martin paid Winchester Ag $2,175 to spray herbicide on Jones‘s farmland in November 2010 in preparation for his planting of corn on the property in 2011.
{¶16} Jones testified that she never agreed to lease Martin her farmland in 2011 and that during 2010 she had expressed her dissatisfaction with Martin‘s repeated spraying of chemicals on her property and her perception that the rent he was paying was below the fair market value. She claimed that Martin told her that if she could find someone to rent her land for a higher price, she should. Conversely, Martin testified that Jones never expressed dissatisfaction with his farming practices, including the spraying of chemicals, or that she thought her farmland was worth more. He also denied telling her that she could rent her land to someone else if they offered a higher rental price.
{¶17} Based in part on his conversations with Jones, Martin ordered seed and fertilizer and entered into contracts to supply 40,000 bushels of corn for 2011. He also leased an additional tractor for 2011 because of the agreement to farm Jones‘s land.
{¶18} In December 2010, Jones met with Hill in Portsmouth after they had been brought together by a mutual acquaintance. At that meeting Jones expressed her dissatisfaction with Martin‘s application of chemicals to her farmland and the low rent he was paying. Hill, who was interested in “getting his foot in the door” of Adams County farming, offered to rent Jones‘s farm sight unseen for $140 an acre in 2011, which was
{¶19} Martin proceeded to take actions consistent with an oral lease agreement with Jones for the 2011 crop year, including drafting a first-half rent check in late March 2011 in the amount of $6,000. Martin testified that he intended to deliver it to Jones but admitted he had not done so at that time. He also scheduled an appointment for early April 2011 with the local U.S. Department of Agriculture Farm Service Agency to sign farm-subsidy papers regarding property he would be farming in Adams County in 2011, including Jones‘s farm.
{¶20} On April 5, 2011, Jones telephoned Hill and asked him if he was still interested in farming her land in 2011. The next day, Jones and Hill met at Jones‘s farm and entered into a verbal agreement for Hill to farm Jones‘s property in 2011 for the rental price of $140 per acre. On April 8, 2011, Jones contacted Martin and advised him that she had rented her farm to Hill for 2011. Martin testified that Hill knew that Jones‘s farm was rented to him and that it had been sprayed to plant corn in 2011. According to Martin, Hill knew the farm was rightfully Martin‘s for 2011. Although he thought he had a valid contract to lease the farm in 2011, Martin offered Jones $150 per acre “just to get through the year” because of the obligations that he had already incurred. Jones rejected Martin‘s new offer because she believed she was then obligated to Hill.
{¶21} Martin then went to his scheduled appointment at the Farm Service Agency and signed up the Jones farm for the subsidy program, listing himself as the tenant/producer entitled to the subsidy. Hill went to the same office and signed papers
{¶22} Martin testified that he could not secure farmland in 2011 to make up for the almost 150 acres he lost because Jones breached their agreement. He calculated his lost profit for 2011 as $52,019.28, and provided detailed testimony supporting his calculation. Martin further testified that he lost an additional $12,000 attributable to the extra tractor he leased to farm Jones‘s land in 2011.
{¶23} At the conclusion of the state‘s case-in-chief, Jones moved for a directed verdict on the claims against her other than the claim for breach of contract; Hill and his business moved for a directed verdict on the claims against them. The trial court denied the motions for Martin‘s claims of breach of contract and promissory estoppel/detrimental reliance against Jones and for Martin‘s claim of tortious interference with a business relationship against Hill, but dismissed Martin‘s remaining claims, including his claims against Hill‘s business.
{¶24} The jury returned verdicts: (1) in favor of Martin on his claim that Jones had breached the contract and awarded him $64,019.28 in compensatory damages against Jones; (2) in favor of Martin on his claim of promissory estoppel/detrimental reliance and awarded him $45,000 in compensatory damages against Jones; (3) in favor of Martin on his claim that Hill tortiously interfered with Martin‘s business relationship and awarded Martin $2,175 in compensatory damages, $45,000 in punitive damages, and $53,000 in attorney fees against Hill; and (4) in favor of Martin on Jones‘s and Hill‘s tortious-interference counterclaims against him.
II. ASSIGNMENTS OF ERROR
{¶26} Jones assigns the following errors for our review:
- THE TRIAL COURT ERRED IN DENYING APPELLANT JONES’ [SIC] MOTION FOR SUMMARY JUDGMENT ON APPELLEE‘S CLAIM FOR BREACH OF CONTRACT.
- THE TRIAL COURT ERRED IN DENYING DEFENDANT APPELLANT NANCY JONES’ [SIC] MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE BREACH OF CONTRACT CLAIM.
- THE TRIAL COURT ERRED IN DENYING DEFENDANT NANCY JONES’ [SIC] MOTION FOR A NEW TRIAL.
- THE TRIAL COURT ERRED IN DENYING DEFENDANT NANCY JONES’ [SIC] MOTION FOR REMITTER [SIC] TO A REDUCED AMOUNT OF DAMAGES.
{¶27} In his cross-appeal Hill assigns the following errors:
- THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING THE CROSS APPELLANTS MOTION FOR SUMMARY JUDGMENT.
- THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING THE CROSS APPELLANTS MOTIONS FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT.
THE AWARDING OF DAMAGES TO THE PLAINTIFF AS AGAINST THE CROSS APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. - THE AWARDING OF ATTORNEY FEES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. LAW AND ANALYSIS
A. Summary Judgment
{¶28} In her first assignment of error Jones asserts that the trial court erred in denying her motion for summary judgment on Martin‘s breach-of-contract claim. In his first assignment of error Hill asserts that the trial court erred in denying his motion for summary judgment.
{¶29} Appellate review of summary judgment decisions is de novo, governed by the standards of
{¶30} The moving party has the initial burden, by pointing to summary judgment evidence, of informing the trial court of the basis for the motion and identifying the parts of the record that demonstrate the absence of a genuine issue of material fact on the pertinent claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).
{¶31} Hill now concedes that the premise of his first assignment of error is incorrect because he did not, in fact, file any motion for summary judgment. He consequently has not met his burden of establishing error, much less prejudicial error. Therefore, we overrule his first assignment of error.
{¶32} We turn now to Jones‘s first assignment of error. A party may appeal the denial of a motion for summary judgment after a subsequent adverse final judgment. American Family Ins. Co. v. Hoop, 4th Dist. Adams No. 13CA983, 2014-Ohio-3773, ¶ 23, citing Balson v. Dodd, 62 Ohio St.2d 287 (1980), paragraph one of the syllabus (“A trial court‘s denial of a motion for summary judgment is reviewable on appeal by the movant from a subsequent adverse final judgment“).
{¶33} Nevertheless, “[a]ny error by a trial court in denying a motion for summary judgment is rendered moot or harmless if a subsequent trial on the same issues raised in the motion demonstrates that there were genuine issues of material fact supporting a judgment in favor of the party against whom the motion was made.” Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150, 642 N.E.2d 615 (1994), syllabus. Consequently, as we detailed in American Family Ins. at ¶ 24 (citations omitted):
[I]f a trial court denies a summary judgment motion due to the existence of genuine issues of material fact, and a subsequent trial on these issues of fact results in a verdict supported by the evidence for the party who did not move for summary judgment, then substantial justice requires an appellate court to affirm the denial of summary judgment. To allow a summary judgment decision based upon less evidence to prevail over a verdict reached on more evidence would defeat the fundamental purpose of judicial inquiry.
On the other hand, when a trial court denies a motion for summary judgment based upon the resolution of a purely legal question, an appellate court may review that decision regardless of the movant‘s success at trial. Unlike factual questions, legal questions are not mooted by a subsequent trial that results in a verdict adverse to the movant.
{¶34} The trial court denied Jones‘s motion for summary judgment because it found that “there are genuine issues as to material facts involved in these proceedings.” And at the conclusion of Martin‘s case in chief at trial, Jones‘s counsel specified that he did not request a motion for a directed verdict at that time on Martin‘s breach-of-contract claim because he believed “that there is a factual issue as to whether or not there is a breach of contract.” Moreover, for the reasons discussed in our disposition of Jones‘s second and third assignments of error, the jury verdict in favor of Martin on his breach-of-contract claim was supported by the evidence adduced at trial. Therefore, Jones‘s first assignment of error lacks merit so we overrule it.
B. Jones‘s Motion for Judgment Notwithstanding the Verdict
{¶35} In Jones‘s second assignment of error she contends that the trial court erred in denying her motion for judgment notwithstanding the verdict (JNOV). A motion for judgment notwithstanding the verdict, like a motion for a directed verdict, tests the sufficiency of the evidence and therefore presents a question of law which we review de novo. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 25. In deciding a motion for a judgment notwithstanding the verdict under
{¶36} Jones claims that the jury‘s verdict finding that she had breached a contract with Martin to allow him to lease her farmland for 2011 was not supported by sufficient evidence. “In order to succeed on a breach of contract claim, a party must prove the existence of a contract, the party‘s performance under the contract, the opposing party‘s breach, and resulting damage.” DePompei v. Santabarbara, 8th Dist. Cuyahoga No. 101163, 2015-Ohio-18, ¶ 20; Spectrum Benefit Options, Inc. v. Med. Mut. of Ohio, 174 Ohio App.3d 29, 2007-Ohio-5562, 880 N.E.2d 926, ¶ 25 (4th Dist.).
{¶37} Jones contends that she was entitled to JNOV because there was no evidence of any offer or acceptance, or any evidence of an agreement as to price or term. The threshold issue is thus whether the parties entered into a binding contract to lease Jones‘s property to Martin to farm in 2011. The essential elements of a contract are an offer, acceptance, contractual capacity, consideration, a manifestation of mutual assent, and the legality of the object and the consideration. Williams v. Ormsby, 131 Ohio St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶ 14.
{¶38} Courts recognize three types of contracts: express, implied in fact, and implied in law. Legros v. Tarr, 44 Ohio St.3d 1, 6, 540 N.E.2d 257 (1989); Spectrum Benefit Options at ¶ 26. “‘In express contracts the assent to its terms is actually expressed in offer and acceptance.‘” Legros at 6, quoting Hummel v. Hummel, 133 Ohio St. 520, 525, 14 N.E.2d 923 (1938). By contrast a contract implied in fact is “‘a contract that the parties presumably intended, either by tacit understanding or by the
{¶39} Because the jury returned a general verdict in favor of Martin on his breach of contract claims and no interrogatories were given to determine which theory the jury may have adopted, we presume that the jury found in favor of Martin on all pertinent issues. See Stephenson v. Upper Valley Family Care, Inc., 2nd Dist. Miami No. 2009CA38, 2010-Ohio-4390, ¶ 50.
{¶40} The evidence supports a finding of an express oral contract. The primary difference between express contracts and contracts implied in fact is one of proof—the former is proven by words (oral or written) and the latter is proven by acts, conduct, and circumstances. See J.S. Keate & Co. v. Barnett‘s Car Wash, Inc., 1st Dist. Hamilton Nos. C-920895 and A-8903768, 1994 WL 10650, *3 (Jan. 19, 1994), citing Weinstein v. Newman, 89 Ohio App. 301, 101 N.E.2d 772 (1st Dist.1951).
{¶41} Jones asserts that there is no evidence of any offer or acceptance of the parties for Martin to lease Jones‘s farmland in 2011. There was evidence here from Martin‘s testimony that established the parties entered into an oral contract to lease Jones‘s property to farm in 2011 when the parties met in August and December 2010. According to Martin‘s testimony they agreed to the lease for 2011 in 2010. In August 2010, he advised Jones that he was going to have chemicals sprayed on the weeds in the fall after he harvested the soybean crop and that he was going to plant corn in 2011, and Jones said she did not care what he planted. In December 2010, Martin told Jones
{¶42} Jones claims that there was never any agreement concerning the per-acre lease price until Martin delivered and she accepted the first check in the spring of each year. So there was no contract because she never accepted any lease check from Martin for 2011, i.e. without an agreed price term there was no contract. The parties never agreed to a specific per-acre lease price after the first couple years that Martin leased Jones‘s farm. To be enforceable, a contract must be definite and certain. Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-Ohio-5676, 983 N.E.2d 1267, ¶ 19. A contract price must be definite and certain, and if it so vague and indefinite that one party will charge what he will while the other party must guess at his obligation, the contract is illusory and unenforceable. See Ameritech Publishing, Inc. v. Snyder Tire Wintersville, Inc., 7th Dist. Jefferson No. 09 JE 35, 2010-Ohio-4868, ¶ 32; Vargo v. Clark, 128 Ohio App.3d 589, 595, 716 N.E.2d 238 (4th Dist. 1998) (“Vagueness of expression, indefiniteness, and uncertainty as to any of the essential terms of an agreement prevent the creation of an enforceable contract“).
{¶44} Martin testified that after the first couple years of leasing Jones‘s farmland, Jones never said anything about a specific lease price—she would tell him in the fall when he paid the second of the biannual lease sum whether she wanted more money for the next year. The agreed price was what he paid her the previous year unless Jones indicated in the fall she wanted more—at times, Martin would increase the amount he gave Jones on his own initiative based on the lease rates in the area or the success of the crop season.
{¶45} Although the lease agreement could have been more specific regarding the exact per-acre lease price, the parties’ course of dealing—their words and acts over their twelve-year business relationship indicated that the price was sufficiently specific—
{¶46} Based upon Martin‘s testimony and the course of dealing between the parties, the evidence was sufficient to support a finding that the parties had an oral contract for Martin to farm Jones‘s land for 2011.
{¶47} Jones next contends that the parties’ lease was unenforceable because of the statute of frauds and that the part-performance exception to the statute was inapplicable. “In Ohio, the Statute of Frauds is embodied in
{¶48} Nevertheless, part performance can remove an oral contract concerning real property from the operation of the statute of frauds. See OBLH, L.L.C. v. O‘Brien,
{¶49} Thus “[t]he doctrine of part performance which will take a case out of the operation of the statute of frauds is based upon the acts of the parties which are such that it is clearly evident that such acts would not have been done in the absence of a contract and that there is no other explanation for the performance of such acts except a contract containing the provisions contended for by the plaintiff.” Hughes at 337-338; Kiser v. Williams, 9th Dist. No. 24968, 2010-Ohio-3390, ¶ 15; King v. King, 4th Dist. Adams No. 99 CA 680, 2000 WL 326131, *5 (Mar. 20, 2000).
{¶50} Jones suggests that the only pertinent act performed by Martin in reliance on the claimed oral lease agreement was the November 2010 spraying of chemicals to
{¶51} Rather than applying part performance to avoid the statute of frauds, Jones claims that any damages incurred by Martin were readily ascertainable and could be accounted for by reimbursing him for the $2,175 he spent on the chemical spraying in November 2010 to kill the weeds in preparation for 2011 planting. But this ignores the fact that Jones‘s late breach of the oral contract prevented Martin from leasing additional farmland to make up for the loss of Jones‘s farmland; this caused him to lose the profits he would have earned if she had not breached the contract. The doctrine of part performance is not inapplicable simply because the plaintiff claiming a breach of an oral contract seeks damages. See Delfino, 2 Ohio St.2d 282 (applying the doctrine in a case involving a breach of a lease in which the plaintiff sought money damages); Akron Pregnancy Servs., Inc. v. Mayer Investment Co., 9th Dist. Summit No. 27141, 2014-Ohio-4779, ¶ 16, 18 (Delfino court “applied the equitable doctrine of part performance * * * to determine whether the plaintiff was entitled to money damages“).
{¶53} Based on Martin‘s testimony about what he and Jones had agreed to in their 2010 conversations and his actions based on those conversations, substantial evidence exists upon which reasonable minds could come to different conclusions on the essential elements of his breach-of-contract claim. Therefore, the trial court did not err in denying Jones‘s motion for judgment notwithstanding the verdict on Martin‘s breach-of-contract claim. See Pepin v. Hansing, 4th Dist. Scioto No. 13CA3552, 2013-Ohio-4182, ¶ 11 (“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”). We overrule Jones‘s second assignment of error.
C. Jones‘s Motion for New Trial
“ ‘If the jury‘s verdict is supported as to each element of the plaintiff‘s case by some competent and apparently credible evidence, a defendant‘s [
Civ.R. 59(A)(6) ] motion for new trial should not be granted.’ ” Watershed Mgt., LLC v. Neff, 2014-Ohio-3631, 20 N.E.3d 1011, ¶ 58 (4th Dist. 2014), quoting Pytel v. Crenshaw, 2d Dist. Montgomery No. 25487, 2013-Ohio-3552, ¶ 27. ACiv.R. 59(A)(7) motion for new trial because a judgment is contrary to law presents a question of law that we review de novo. See Dolan v. Glouster, 4th Dist. Athens Nos. 11CA18, 11CA19, 11CA33, 12CA1, and 12CA6, 2014-Ohio-2017, fn. 22.
{¶55} Jones reiterates the same arguments we rejected in overruling her second assignment of error—there was no offer and acceptance in the absence of a specific price and any oral lease was unenforceable because of the statute of frauds. For the reasons previously discussed, the jury verdict in favor of Martin on his claim for breach of contract was sustained by the evidence and was not contrary to law. Therefore, the trial court did not err in denying Jones‘s motion for new trial. We overrule Jones‘s third assignment of error.
{¶56} In her fourth assignment of error Jones asserts that the trial court erred in denying her motion for remittitur for a reduced amount of damages. Appellate courts review trial court decisions on motions for remittitur under an abuse-of-discretion standard of review. See Shepard v. Grand Trunk Western Railroad, Inc., 8th Dist. Cuyahoga No. 92711, 2010-Ohio-1853, ¶ 81; Bd. of Trustees of Sinclair Community College Dist. v. Farra, 2d Dist. Montgomery No. 22886, 2010-Ohio-568, ¶ 72. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable. State ex rel. Nese v. State Teachers Retirement Bd. of Ohio, 136 Ohio St.3d 103, 2013-Ohio-1777, 991 N.E.2d 218, ¶ 25; Rose v. Cochran, 4th Dist. Ross No. 14CA3445, 2014-Ohio-4979, ¶ 17. An abuse of discretion includes a situation in which a trial court did not engage in a “ ‘sound reasoning process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶57} “ ‘The general measure of damages for a breach of contract is the amount necessary to place the non-breaching party in the position he or she would have been had the breaching party fully performed under the contract.’ ” Watershed Mgt., 4th Dist. Pickaway No. 10CA42, 2012-Ohio-1020, ¶ 33, quoting Osbourne v. Ahern, 4th Dist. Jackson No. 10CA42, 2012-Ohio-1020, ¶ 21. That is, “ ‘[m]oney damages awarded in a breach of contract action are designed to place the aggrieved party in the same position it would have been in had the contract not been violated.’ ” State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d 298, ¶
{¶58} Jones first argues that because Martin claimed lost profits due to the breach of $52,019.28, the jury verdict of $64,019.28 was not supported by any credible evidence. But Martin testified that in addition to the lost profits he incurred because of the breach, he also lost $12,000 for leasing an additional tractor that he couldn‘t use when Jones breached the parties’ oral lease agreement. Thus, there was evidence that the Martin‘s total loss included $12,000 relating to his lease of the additional tractor. Therefore, Jones‘s argument is meritless.
{¶59} Jones next contends that Martin‘s calculation of lost profits was not supported by the evidence because he assumed a yield of 161 bushels of corn per acre, even though he never obtained a comparable yield when he planted corn in 2003 on her farm. Martin testified, however, that his yield estimate was based on the amount of corn yielded on a farm about three miles away from the Jones farm in 2011. We reject Jones‘s contention.
{¶60} Jones finally argues that Martin‘s calculation of lost profits was not supported by the evidence because it resulted in a sum that far exceeded Martin‘s average annual net profit from farming Jones‘s land from 1999-2010. Yet Martin‘s detailed testimony about how he calculated the lost profits for 2011 fully supported his calculation. He went through his records of his fertilizer, seed, lime, and spray costs and determined how much these expenses cost per acre. He deducted these expenses
{¶61} Therefore, the trial court did not abuse its broad discretion in denying Jones‘s motion for remittitur. The jury verdict awarding Martin $64,019.28 in damages for Jones‘s breach of their oral lease agreement was supported by evidence adduced at trial. The trial court‘s decision was based on a sound reasoning process, so we overrule Jones‘s fourth assignment of error.
E. Hill‘s Motions for Directed Verdict and Judgment Notwithstanding the Verdict
{¶62} In his second assignment of error Hill contends that the trial court abused its discretion by overruling his motions for directed verdict and judgment notwithstanding the verdict on Martin‘s claim against Hill for tortious interference with Martin‘s business relationship with Jones. As noted, these motions test the sufficiency of the evidence and present a question of law we review de novo. Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at ¶ 25. The court can grant the motion only if the court construes the evidence in favor of the nonmoving party and finds that reasonable minds could come to but one conclusion upon any determinative issue and the moving party is entitled to judgment as a matter of law. Vance, 73 Ohio St.3d at 231, 652 N.E.2d 776; Bungard, 2014-Ohio-334, 8 N.E.3d 336, at ¶ 11.
{¶63} The trial court entered judgment upon the jury verdict in favor of Martin on his claim for tortious interference with a business relationship against Hill. The elements of tortious interference with a business relationship are: (1) a business
{¶64} Hill raises two arguments in support of his assignment of error. First, he contends that there was no contract between Jones and Martin for him to interfere with. But as noted in order for Martin to establish tortious interference with his business relationship with Jones, he did not have to establish the existence of a contract. Id. And as we previously determined in overruling Jones‘s second and third assignments of error, the record contains sufficient evidence of a valid oral contract for Martin to lease Jones‘s farmland for 2011. Hill‘s first contention is thus meritless.
{¶65} Hill‘s remaining and primary claim is that because the contract between Martin and Jones was terminable at will, he could not have tortiously interfered with it, i.e. his actions seeking and in entering into a lease with Jones in 2011 constituted fair competition. “Establishment of the privilege of fair competition, as set forth in Section 768 of the Restatement[, of Torts (1979)], will defeat a claim of tortious interference with
{¶66} We reject Hill‘s argument because it is based on the erroneous premise that the oral lease between Martin and Jones for 2011 was terminable at will. Hill relies on our decisions in Mark, 180 Ohio App.3d 832, 2009-Ohio-581, 907 N.E.2d 759, and Manifold, 67 Ohio App.3d 251, 586 N.E.2d 1142, to support this premise. These cases held that a tenancy at will occurred when possession of the premises was taken under an oral lease that was rendered invalid because it did not comport with the statute of frauds. No tenancy at will occurred here because there was sufficient evidence to support a finding that the doctrine of part performance applied to remove the parties’ oral contract from the operation of the statute of frauds. Consequently, Hill was not entitled to the privilege of fair competition set forth in Fred Seigel Co.
{¶67} Therefore, Hill‘s arguments are meritless. The trial court did not err in denying his motions for directed verdict and judgment notwithstanding the verdict. We overrule his second assignment of error.
F. Award of Damages against Hill
{¶68} In his third assignment of error Hill asserts that the awarding of damages to Martin was against the manifest weight of the evidence. When an appellate court reviews whether a trial court‘s decision is against the manifest weight of the evidence,
{¶69} Hill first claims that the award of $2,175 in compensatory damages is clearly a duplication of damages assessed against Jones. In response Martin argues that the $2,175 awarded by the jury against Hill for compensatory damages could have been justified as interest constituting a loss of use of the $64,019.28 awarded to Martin on his breach-of-contract claim against Jones. But Martin‘s argument is not persuasive. Manifestly, the $2,175 awarded in compensatory damages to Martin represented the amount he paid to have Jones‘s farm sprayed with herbicide in November 2010 in
{¶70} Therefore, the awards for damages for Martin‘s breach-of-contract claim against Jones and for Martin‘s tortious-interference claim against Hill were duplicative in that small amount. “ ‘Regarding duplicative damages, ‘the fact that a plaintiff has separate and independent causes of action in contract and tort does not permit him to recover more than the amount of damage actually suffered as a consequence of the injury resulting from the wrongful breach of his contract.’ ” D.A.N. Joint Venture III, L.P. v. Med-XS Solutions, Inc., 11th Dist. Lake No. 2011-L-056, 2012-Ohio-980, ¶ 46, quoting Davison Fuel & Dock Co. v. Pickands Mather & Co., 54 Ohio App.2d 177, 182, 376 N.E.2d 965 (1st Dist. 1977).
{¶71} Nevertheless, Hill is not entitled to reversal of this award of compensatory damages on appeal. Hill invited this error when his trial counsel conceded in the past trial hearings that the total judgment against him should be “commensurate with his liability in this matter, or an amount not to exceed $2,175 which will reduce the amount to an amount believed to be fair and proper.” In effect, Hill agreed that the jury verdict against him for compensatory damages of $2,175 was appropriate. Based on this concession, the trial court did not err in entering judgment on the jury verdict awarding
{¶72} Hill next contends that the award of punitive damages to Martin on his tortious-interference claim was against the manifest weight of the evidence. “ ‘[T]he assessment of damages lies so thoroughly within the province of the [trier of fact] that a reviewing court is not at liberty to disturb the [trier of fact‘s] assessment,’ absent an affirmative finding of passion and prejudice, or a finding that the award is manifestly excessive or inadequate.’ ” Lewis v. Nease, 4th Dist. Scioto No. 05CA3025, 2006-Ohio-4362, ¶ 53, quoting Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 655, 653 N.E.2d 331 (1994).
{¶73} “The purpose of punitive damages is not to compensate the plaintiff, but to punish and deter the defendant‘s conduct.” Burns v. Adams, 4th Dist. Scioto No. 12CA3508, 2014-Ohio-1917, ¶ 79. “Punitive damages may be awarded as a punishment to discourage others from committing similar wrongful acts if a plaintiff proves by clear and convincing evidence that a defendant acted with malice.” Colegrove v. Fred A. Nemann Co., 1st Dist. Hamilton No. C-140171, 2015-Ohio-533, ¶ 28. Malice is “that state of mind under which a person‘s conduct is characterized by hatred, ill will, or spirit of revenge, or a conscious disregard for the rights and safety of
{¶74} Hill claims that there was no evidence, much less clear and convincing evidence, presented that he had committed any conscious wrongdoing or conduct that was characterized by hatred, ill will, or spirit of revenge.
{¶75} However, Hill ignores Martin‘s specific testimony that Hill “knew the ground was rented and he offered [Jones] extra money to get his foot in the door in this area from what” Jones told Martin. Martin further testified that Hill knew that Martin was renting the farm and that Martin had had the farmland sprayed in preparation for planting in 2011. According to Martin, he had a good relationship with Jones until Hill interfered. Hill benefitted from Martin‘s November 2010 application of herbicide to Jones‘s farmland. This evidence supported the jury award of $45,000 in punitive damages against Martin. Moreover, as the trial court itself observed at the hearing on the defendants’ postverdict motions:
In regard to [remittitur] the Court does not intend to invade the province of this jury on [remittitur]. And, Mr. Hill, I‘ve tried to refrain but your constant disdain that you displayed throughout 9 days of trial and even upon the declaration of this Court‘s award obviously this jury picked up on it and they picked up on your behavior and interference with this contract and just your noticeable sigh of disdain just now in a courtroom unfortunately is reflective of this jur[y‘s] verdict against you and their belief that you intentionally interfered with this contract.
{¶76} Based upon our review of the voluminous record in this case, neither the jury nor the trial court lost its way in assessing compensatory and punitive damages against Hill on Martin‘s claim for tortious interference with his business relationship with
G. Award of Attorney Fees against Hill
{¶77} In his fourth assignment of error Hill argues that the trial court erred in awarding attorney fees against him on Martin‘s tortious-interference claim. Hill claims that the award of $53,000 was against the manifest weight of the evidence because there was no evidence concerning the reasonableness of those fees. Martin testified that he had agreed to pay his attorney $200 per hour, that he had paid his attorney almost $28,000 in fees and costs by the time he testified at trial, and that he still owed his counsel about $25,000 in fees at that time. After the jury had begun deliberating, it requested the amount of attorney fees incurred by each party. Counsel stipulated the amounts of attorney fees incurred by each party and these stipulated sums were submitted to the jury. The parties stipulated that Martin had incurred $53,000 in attorney fees. This amount was consistent with the sum testified to by Martin. The parties did not object to the fee amounts submitted to the jury.
{¶78} By not objecting to the amount of Martin‘s attorney fees submitted to the jury, Hill forfeited any claim on appeal challenging that amount. See, e.g., Cain v. Cain, 11th Dist. Ashtabula No. 2002-A-0086, 2004-Ohio-2448, ¶¶ 17-22 (trial court did not err by awarding attorney fees without first determining their reasonableness because appellant waived the issue by not raising it below). We overrule Hill‘s fourth assignment of error.
IV. CONCLUSION
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant and Cross-Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J. & McFarland, A.J.: Concur in Judgment and Opinion.
For the Court
BY: ______________________________
William H. Harsha, 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.