579 N.E.2d 721 | Ohio Ct. App. | 1989
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *592 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *593 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *594 Plaintiff-appellant, Mid-America Acceptance Company, appeals both from a judgment of the Franklin County Municipal Court dismissing plaintiff's complaint and awarding defendant-appellee, Pam E. Lightle, judgment based upon her counterclaim and also from an order denying plaintiff's motion for relief from the previous judgment. In this appeal, plaintiff raises the following assignments of error:
"I. Whether the trial court erred in ruling that the failure to appear of Appellant's counsel did not constitute excusable neglect pursuant to Rule 60(B)(1) of the Ohio Rules of Civil Procedure and whether the trial courts [sic] erred in denying Appellant's Rule 60(B)(1) motion.
"II. Whether the trial court erred in awarding both treble damages under O.R.C. Section
"III. Whether the trial court erred in awarding $3,000 as reasonable attorney's fees pursuant to O.R.C. Section
"IV. Whether the trial court erred in awarding the Appellee both monetary damages and rescission of the contract under O.R.C. Section
"V. Whether the trial court erred in ruling that the Ohio Consumer Sales Practices Act does not supersede the common law action for fraud where an express statutory remedy is provided by O.R.C. Section
Defendant entered into a contract with Scandinavian Health Spa ("Scandinavian"), which later assigned its rights in this contract to plaintiff. Defendant testified that she went to Scandinavian in response to an advertisement that two people could join the health spa for the price of one. During her first visit to the spa, defendant spoke with Saul Ivy, a sales representative of Scandinavian, regarding the membership contract. She told him that a friend wanted to join with her, so that together they could take advantage of the "two-for-one" offer. Ivy indicated that it would be no problem, and, as a result, defendant signed a contract with Scandinavian, which indicates that the effective date of the contract is May 11, 1985, and that it expires May 11, 1989, making it a four-year contract on its face. Originally, defendant was the sole member on the contract, but was promised by Ivy that the friend's name would be added later. *595
Several days later, defendant returned to the spa with her friend but was informed by another employee of Scandinavian that the friend could not join under the "two-for-one" special. However, defendant testified that they were told to use the facilities and that the problem would be corrected. Two days later defendant went back to the spa to talk with Ivy about the problem. According to defendant's testimony, Ivy changed his original representation and stated instead that defendant's friend could not join to take advantage of the special. However, Ivy promised that Scandinavian would put defendant's husband's name on the contract, but defendant's friend could use his membership card. Relying upon these representations, defendant agreed to accept a membership card in her husband's name for the sole purpose of allowing her friend access to the spa.
After receiving the membership cards in the mail, defendant also received a notice that, in order to use the facilities, a driver's license must be shown along with the membership card. Specifically, defendant testified:
"A. * * * And we were waiting for our membership cards to come so she could go with me; and then after we got the membership cards, there was a notice up that you had to show your driver's license when you presented the card. And it didn't have her name on it, so she couldn't use it.
"Q. So that at that point in time, when you saw that notice up, what did you believe with respect to the truth of what Mr. Ivie [sic] told you?
"A. Well, I knew we didn't have any chance of her using it; and, you know, I tried contacting him."
Defendant further testified that she made attempts with Scandinavian to correct the situation but that eventually she just quit making payments on the contract. She made an initial $50 payment and two subsequent payments of $44.93 each, making the total defendant paid on the contract $139.86.
Plaintiff, who bought the contract from Scandinavian, began making efforts to collect under the contract and sent defendant numerous past-due notices threatening legal action. Plaintiff instigated this action in May 1987, seeking $988.46, the remaining balance of the contract, interest and costs. Defendant filed an answer and a counterclaim alleging fraud on the part of Scandinavian, detrimental reliance and violations of the Consumer Protection Act of R.C. Chapter 1345. Defendant sought compensatory damages of $139.89, punitive damages of $5,000, and attorney fees.
Following five continuances, including at least one requested by defendant and one requested by the trial court, a trial date was set for August 1, 1988. Neither plaintiff nor its counsel appeared, but the trial court proceeded without them. The court dismissed plaintiff's complaint and received evidence *596 regarding defendant's counterclaim. Judgment was entered on August 5, 1988, finding that Scandinavian had committed fraud by inducing defendant to enter into a contract and that the contract as written with a duration of four years constituted a violation of the Consumer Protection Act. Plaintiff, the assignee of the contract, was found liable as the party in interest. The court awarded defendant $419.58, representing three times defendant's actual damages, $2,500 in punitive damages, and $3,000 for attorney fees.
Following receipt of notice of this judgment, plaintiff filed a motion for a new trial and also a motion to vacate the judgment. The motion for new trial, pursuant to App.R. 4(A), served to suspend the time for appeal until an entry denying such motion was filed.
The motion to vacate the judgment was predicated upon Civ.R. 60(B)(1), plaintiff contending that its failure to appear for the August 1, 1988 trial date constituted excusable neglect. The trial court denied this motion at the same time it overruled the motion for new trial. Plaintiff appealed both final orders.
On January 20, 1989, defendant filed a motion to dismiss the appeal contending that plaintiff had failed to include a transcript in the record on appeal. Plaintiff filed a memorandum in opposition and a motion to supplement the record. The motion to supplement was granted by this court. Plaintiff timely complied. To the extent that defendant's motion to dismiss has not been heretofore expressly denied, it is hereby overruled.
Plaintiff's assignments of error will be addressed by discussing the fourth assignment of error first. Both parties agree that the contract between Scandinavian and defendant constitutes a "prepaid entertainment contract" as defined in R.C.
"(B) Prepaid entertainment contracts shall:
"* * *
"(3) Not have a duration of service other than a duration that is a precisely measured period of years or any definite part of a year and shall not have a duration of service for aperiod in excess of three years[.]" (Emphasis added.)
Furthermore, R.C.
"Failure to comply with sections
The contract at issue here was written with an effective date of May 11, 1985, and an expiration date of May 11, 1989, thereby constituting a four-year *597
prepaid entertainment contract. Furthermore, plaintiff, in paragraph two of its reply to defendant's counterclaim, specifically "* * * admits that this contract is for a period of four (4) years." Therefore, this contract on its face violated R.C.
Plaintiff contends that defendant was not entitled to both rescission of the contract and monetary damages. Plaintiff contends that R.C.
R.C.
"(A) Where the violation was an act prohibited by section
"(B) Where the violation was an act or practice declared to be deceptive or unconscionable by rule adopted under division (B)(2) of section
In order for treble damages to be available as a remedy under R.C.
Here, there has been a violation of R.C.
This conclusion is supported by the common principle of statutory construction, expressio unius est exclusio alterius,
meaning the expression of one thing is the exclusion of another. Here, R.C.
However, the determination of whether R.C.
"(A) It shall be a deceptive act or practice in connection with a consumer transaction for a supplier to use the word `free' or other words of similar import or meaning, except in conformity with this rule. * * *
"(B) For the purposes of this rule, all references to the word `free' shall include within that term all other words of similar import and meaning. Representative of the word or words to which this rule is applicable would be the following: `Free;' `Buy 1, Get 1 Free;' `2 for 1 Sale;' `50% Off with Purchase of 2.' * * *
"(C) When using the word `free' in a consumer transaction,all the terms, conditions, and obligations upon which receiptand retention of the `free' goods or services are contingentshall be set forth clearly and conspicuously at the outset ofthe offer. Terms, conditions, and obligations of the offer must be printed in a type size half as large as the word `free,' and all of the terms, conditions, and obligations should appear in close conjunction with the offer of `free' goods or services." * * * (Emphasis added.)
Therefore, a consumer transaction which involves, for example, a "buy one, get one free" offer must specifically set forth the terms and conditions of the offer in such a manner as to be clear and conspicuous to the consumer. If the offer fails to do so, it is a deceptive act in violation of the rule, and the remedy provision of R.C.
In the case sub judice, not only did the contract fail to set forth any conditions of the "two-for-one" offer, but a representative of Scandinavian repeatedly assured defendant that she and a friend could participate in the special. Only after these repeated assurances did defendant learn that the representations made to her were false. From the evidence, it is clear that Scandinavian did not clearly and conspicuously set forth the conditions and terms of their "two-for-one" special, and thus committed a deceptive act as specifically defined in Ohio Adm. Code
R.C.
At common law, generally, a party who has been fraudulently induced to enter into a contract has the option of rescinding the contract or retaining the contract and suing for damages based upon the tort of fraudulent inducement. See Cross v.Ledford (1954),
If rescission is elected, it necessarily follows that the defrauded party is entitled to recover whatever he has already paid on the contract. This recovery is necessary because rescission is not merely a termination of the contract; it is an annulment of the contract. The primary purpose of "rescission" is to restore the parties to their original positions as if the contract had never been formed. Returning the parties to status quo is an integral part of rescission, and in doing so it is generally necessary to award the party seeking rescission at least his out-of-pocket expenses. These out-of-pocket expenses are properly characterized as "damages" for they represent the loss not cured by the cancellation of the contract that defendant has suffered as a result of the fraudulent inducement.
The "actual damages" referred to in R.C.
It follows from this interpretation of R.C.
By awarding defendant $139.86 (the amount she had already paid on the contract), the court would be merely "restoring the benefit received by" Scandinavian. An award of $139.86 to defendant is necessary in order to restore the parties to their original position prior to the formation of the contract.
However, the trial court did err in awarding three times that amount. Treble damages, as provided for in R.C.
Turning to the second and fifth assignments of error, plaintiff raises two interrelated issues that will be addressed together. By its fifth assignment of error, plaintiff contends that R.C.
In addition to awarding defendant damages under the statute, the trial court also determined that Scandinavian had fraudulently induced defendant to enter into the contract. This common-law fraud perpetrated upon defendant is separate and distinct from the statutory violations. In inducing defendant to sign the contract by representing to her (1) that her friend could join with defendant under the "two-for-one" special when, in fact, that offer was limited to family members, and later (2) that her friend could use defendant's husband's membership card to use the health spa facilities, Scandinavian fraudulently induced defendant to enter into that contract. *601 Plaintiff, who is subject to all of the same defenses as Scandinavian, makes no contention that the evidence does not support a finding of common-law fraud. Rather, plaintiff contends that any award of which defendant was entitled under the common-law fraud claim is superseded by the Consumer Protection Act.
Nowhere in the Consumer Protection Act is it either expressly stated or implied that the Act is intended to supersede or abrogate any common-law remedies already available to the consumer. Rather, exactly the opposite is expressly set forth in R.C.
"The remedies in sections
Furthermore, R.C.
Courts will not presume that a statute is intended to abrogate or supersede the common law unless that intention is expressly declared by the legislature or necessarily implied by the language of the statute. See LaCourse v. Fleitz (1986),
Plaintiff's contention that the Consumer Protection Act superseded defendant's remedies under a common-law fraud action is without merit. Accordingly, plaintiff's fifth assignment of error is not well taken.
By the second assignment of error, plaintiff contends that it was error for the trial court to award both the statutory treble damages and punitive damages. Plaintiff's contention is predicated upon two different bases. First, as addressed in the fourth assignment of error, plaintiff contends that the award of treble damages is inappropriate where, as here, defendant elected rescission. Second, as addressed in the fifth assignment of error, plaintiff contends that punitive damages, a common-law remedy, were superseded by the Consumer Protection Act. As we held in the fourth assignment of error, treble damages under the statute were not appropriate in this case as defendant sought rescission, not retention of the contract.
However, even if treble damages had properly been awarded, it would not preclude a finding of punitive damages. As we held in the fifth assignment of error, the Consumer Protection Act does not supersede or abrogate any *602 common-law remedy the consumer may have in addition to the statutory remedies available. Thus, in the appropriate case, treble damages under the statute and punitive damages may both be proper.
Turning to the award of punitive damages in this case, merely because they may be proper under the common-law fraud action, it does not automatically follow that defendant is entitled to punitive damages.
In other words, while defendant may be able to show that she was fraudulently induced to enter into the contract with Scandinavian, without additional proof, defendant is not automatically entitled to punitive damages.
The Ohio Supreme Court held in the third paragraph of the syllabus of Combs Trucking, Inc. v. Internatl. Harvester Co.
(1984),
"In each case of alleged fraud the plaintiff, in order to be awarded punitive damages, must establish not only the elements of the tort itself but, in addition, must either show that the fraud is aggravated by the existence of malice or ill will, or must demonstrate that the wrongdoing is particularly gross or egregious."
See, also, Logsdon v. Graham Ford Co. (1978),
"`Consistently with the general rule as to the allowance of exemplary or punitive damages, the jury may, in a fraud action where there is gross or malicious fraud or something showing a very corrupt condition of affairs, go beyond the rule of mere compensation and award exemplary or punitive damages, even though the defendant may have been punished criminally for the same wrong. However, a bare case of fraud or constructive fraud does not warrant the assessment of exemplary damages.'" (Citation omitted.)
Therefore, gross or egregious fraud may support an award of punitive damages but simple fraud does not. In order to prove that punitive damages are appropriate, it must be shown that the fraud contained an element of malice or ill will.
Defendant did not present any evidence which would elevate the fraud to the level contemplated by the court in CombsTrucking or Logsdon. There was no evidence presented above that needed to establish a "bare case of fraud." Defendant did not establish that the fraud was aggravated by malice or ill will on the part of Scandinavian, nor did defendant demonstrate that the fraudulent inducement was "particularly gross or egregious."
The case sub judice is distinguishable from the recent decision in Digital Analog Design Corp. v. North Supply Co.
(1989),
The trial court did not state its basis for awarding $2,500 in punitive damages, and the evidence does not support such an award. Accordingly, plaintiff's second assignment of error is well taken.
By the third assignment of error, plaintiff contends that the trial court erred in awarding defendant $3,000 in attorney fees. Plaintiff raises two issues: (1) that defendant was not entitled to attorney fees; and (2) even if defendant was so entitled, $3,000 is not reasonable under the evidence presented. Each issue will be discussed separately.
R.C.
"The court may award to the prevailing party a reasonable attorney's fee limited to the work reasonably performed, if either of the following apply:
"* * *
"(2) The supplier has knowingly committed an act or practice that violates this chapter."
"Supplier" is defined in R.C.
"`Supplier' means a seller, lessor, assignor, franchisor, or other person engaged in the business of effecting or soliciting consumer transactions, whether or not he deals directly with the consumer."
R.C.
"`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."
From these definitions, it is clear that Scandinavian was a "supplier" for purposes of determining whether attorney fees could be awarded pursuant to R.C.
Since Scandinavian is a "supplier," we must next determine whether the evidence permits a finding that it "* * * knowingly committed an act or practice that violates * * *" R.C. Chapter 1345. R.C.
A supplier must have knowledge or actual awareness that the act or practice is wrong or in violation of the law. However, it does not automatically follow that the supplier must have knowledge or actual awareness that the act violates the consumer protection statutes. See Bierlein v. Alex's Continental Inn,Inc. (1984),
In this case, the trial court found that the contract between Scandinavian and defendant was four years in duration and, thus, violative of R.C.
The trial court also found that Scandinavian had fraudulently induced defendant into entering into the contract. This fraudulent inducement in addition to constituting common-law fraud also violates the Consumer Protection Act. R.C.
"No supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction."
Furthermore, R.C.
"(A) No supplier shall commit an unconscionable act or practice in connection with a consumer transaction. * * *
"(B) In determining whether an act or practice is unconscionable, the following circumstances shall be taken into consideration: *605
"* * *
"(6) Whether the supplier knowingly made a misleading statement of opinion on which the consumer was likely to rely to his detriment[.]"
In its findings, the trial court did not specify upon what evidence the finding of fraudulent inducement was predicated, or what statute Scandinavian violated. However, a review of the record supports such a finding under either statute, in addition to a finding of common-law fraud, as the elements of fraud include an unfair, deceptive, or unconscionable act.
Defendant specifically testified that, initially, representations were made to her by an employee of Scandinavian that she and a friend would be permitted to take advantage of the "two-for-one" special. As defendant was subsequently informed, this representation was completely untrue and deceptive. Defendant further testified that at this point she was prepared to cancel the contract until the same employee represented to her that "everything could be worked out" with defendant's friend using a membership card in defendant's husband's name. Specifically, defendant stated:
"Q. Had he not told you — Had Mr. Ivie [sic] not told you the things he did tell you, is it your testimony that you would have cancelled the contract?
"A. I would have never signed it if he hadn't of [sic] told me she could use it."
By making deliberate false and misleading representations to defendant, Scandinavian caused defendant to rely to her detriment. These representations were deceptive and unconscionable, therefore falling under either R.C.
The question remains of whether a $3,000 award for attorney fees was reasonable based upon the evidence submitted at trial. That evidence demonstrates that legal fees incurred through April 26, 1988, were $1,889.50. The trial court, at the end of the trial, stated:
"* * * the Court is of the opinion that defendant is entitled to receive or recover $139.86 in triplicate as a refund. And, in addition thereto, she is entitled to recover from Scandinavian the sum of — let's see — $1,889.50 as of 4-26-88, so make that $3,000 as of this date for legal services incurred, and $2,500 punitive damages, plus interest and costs."
The evidence supports an award of attorney fees in the amount of $1,889.50; however, the trial court's decision to increase that award to $3,000 is unsupported *606 by competent, credible evidence. Based upon the evidence presented by defendant at trial, reasonable attorney fees could not properly be awarded in the amount of $3,000. Accordingly, plaintiff's third assignment of error is well taken.
Turning to the first assignment of error, plaintiff contends that the trial court erred in denying plaintiff's motion to vacate the judgment on the grounds of excusable neglect. Even if it were error to deny plaintiff's motion for relief from judgment, it was not prejudicial.
Civ.R. 60(B) provides in pertinent part:
"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; * * * The motion shall be made within a reasonable time, and for reasons (1) * * * not more than one year after the judgment, order or proceeding was entered or taken. * * *"
The decision whether to grant relief from judgment is within the sound discretion of the trial court and will not be disturbed on appeal unless a clear abuse of discretion is shown. See Griffey v. Rajan (1987),
The court held in paragraph two of the syllabus of GTEAutomatic Electric v. ARC Industries (1976),
"To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken."
Both parties agree that plaintiff's motion for relief was timely filed. Therefore, the third prong of GTE is met.
Turning to the second prong of GTE, it must be determined if plaintiff's missing the scheduled trial was "excusable neglect." In making this determination, we are mindful of the following interpretation enunciated by the court in Colley v. Bazell
(1980),
"In our view, the concept of `excusable neglect' must be construed in keeping with the proposition that Civ.R. 60(B)(1) is a remedial rule to be liberally construed, while bearing in mind that Civ.R. 60(B) constitutes an attempt to `strike a proper balance between the conflicting principles that *607 litigation must be brought to an end and justice should be done.'" (Citations omitted.)
It is further the policy of courts in Ohio to decide cases on their merits whenever possible, for as the court held percuriam in Svoboda v. Brunswick (1983),
"The primary objective and function of our courts is to adjudicate cases on the merits by applying the substantive law whenever possible, and not to adjudicate cases with finality upon a strained construction of procedural law yielding unjust results."
The standard for determining what conduct will give rise to "excusable neglect" is set forth in the syllabus of Griffey,supra, where the court held:
"A trial court does not abuse its discretion in overruling a Civ.R. 60(B)(1) motion for relief from a default judgment on the grounds of excusable neglect, if it is evident from all of the facts and circumstances in the case that the conduct of the defendant, combined with the conduct of those persons whose conduct is imputable to the defendant, exhibited a disregard forthe judicial system and the rights of the plaintiff. (Colley v.Bazell [1980],
Inexcusable neglect does not necessarily mean that the party's disregard is intentional. However, the greater the degree of willfulness of the movant, the less likely it is that his conduct will be characterized as "excusable neglect." Our determination necessarily involves an examination of all the facts and circumstances surrounding plaintiff's conduct to determine if it rises to the level of a complete disregard of the judicial system. In doing so, any doubt should be resolved in favor of the movant. GTE, supra.
The record indicates that this case had been set for trial at least six times, including August 1, 1988, the date which plaintiff admittedly missed. In support of its motion for relief from judgment, plaintiff's counsel supplied the trial court with an affidavit stating in pertinent part, as follows:
"3. That the above-referenced case had been scheduled for trial for at least eight times, including the last trial date of August 1, 1988.
"4. That on the seven times that the instant action had been continued, Plaintiff had only specifically requested one of the continuances and this was due to a conflict in Affiant's schedule.
"5. That on at least four separate occasions, Affiant and a representative of Mid-America Acceptance Co. appeared in court fully prepared to try the *608 instant action. However, on the occasions that Affiant appeared, the case was continued by the Court's own motion.
"6. Due to a clerical error, the latest trial date of August 1, 1988 for the instant action was not placed on Affiant's calendar. This was due, in part, to the fact that at the time that the notices were issued by the Court informing Affiant of the new trial date, Affiant was in the process of changing secretaries."
Defendant does not dispute that plaintiff had appeared on the prior trial dates, but, rather, dismisses this fact as irrelevant. However, those appearances are very relevant for this is not a case where, as in Griffey, supra, defendant's counsel did not even answer plaintiff's complaint, thus indicating there was no intention to defend the action.
Here, plaintiff filed a complaint against defendant, who then counterclaimed against plaintiff. Plaintiff answered the counterclaim within the prescribed time and denied the allegations of defendant's counterclaim. Furthermore, after receiving notice of the court's decision to dismiss plaintiff's complaint and awarding judgment to defendant upon her counterclaim, plaintiff was diligent in pursuing its legal remedies.
Plaintiff's counsel admits that he received notice of the trial date of August 1, 1988, but that, because of a clerical error, his staff neglected to note it on his calendar. Plaintiff's failure to appear for the trial date was "excusable neglect." His behavior does not rise to the level of inexcusable. More specifically, plaintiff's conduct, considering all of the facts and circumstances, cannot be characterized as conduct which "* * * exhibited a disregard for the judicial system and the rights of * * * [the other party]." Griffey, supra. The trial court abused its discretion in determining that plaintiff's conduct did not constitute "excusable neglect" within the meaning of Civ.R. 60(B)(1).
In order to prevail upon a Civ.R. 60(B) motion, plaintiff must further establish that it has a meritorious claim or defense. In Volodkevich v. Volodkevich (1988),
Plaintiff established a meritorious defense to certain aspects of this case, but not to all. Plaintiff has demonstrated that punitive damages were not proved in this case (see Assignments of Error Two and Five), that defendant has not proved $3,000 of attorney fees (see Assignment of Error Three), and *609 further that treble damages are not appropriate when rescission is awarded (see Assignment of Error Four).
However, plaintiff's claimed defenses to the violations of the Consumer Protection Act of R.C. Chapter 1345 are not meritorious. Plaintiff specifically admits in its reply to defendant's counterclaims that the contract was for a four-year duration. Prepaid entertainment contracts with a duration of more than three years are per se illegal. R.C.
Plaintiff further contends that, even if defendant was fraudulently induced by Ivy, Ivy was acting outside his scope of employment and, thus, Scandinavian could not be held liable. This contention has no merit whatsoever. Ivy was a sales representative for Scandinavian who was purportedly authorized to bind Scandinavian contractually. Simply because he performed his authorized tasks incorrectly, it does not follow that Ivy was acting outside his apparent scope of authority. Thus, Scandinavian is liable for the acts of its agent Ivy. Accordingly, plaintiff does not have any meritorious defenses with respect to the fraud claims of defendant.
Although plaintiff did establish a meritorious defense with respect to the award of punitive damages, attorney fees, and treble damages, denial of relief from those parts of the judgment was not prejudicial because direct appeal from the judgment was available and taken and the error cured by our determination of plaintiff's second, third, and fourth assignments of error. Accordingly, plaintiff's first assignment of error is not well taken.
For the foregoing reasons, plaintiff's first and fifth assignments of error are overruled, while the second, third, and fourth assignments of error are sustained, the judgment of the Franklin County Municipal Court is reversed, *610 and this cause is remanded to that court for further proceedings consistent with the law in this opinion.
Judgment reversed,and cause remanded.
STRAUSBAUGH and YOUNG, JJ., concur.
