Post on 25-May-2020
transcript
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IN THE SUPREME COURT OF OHIO
A ..». -v
DAVID DOLAN, JR.,D/B/A JD'S TOWING, ET AL.,
ON APPEAL FROM ATHENSCOUNTY COURT OF APPEALS,FOURTH APPELLATE DISTRICT
APPELLEES,
V.
THE CITY OF GLOUSTER, ET AL.,
APPELLANTS.
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANTS THE CITY OF GLOUSTER, ET AL.
Randall Lambert (0017987)Cassaundra Brislin (0087766)215 South Fourth StreetP.O. Box 725Ironton, Ohio 45638(740) 532-4333(740) 532-7341 (fax)rlambert@lambert-law.org
Counsel forAppellants,The City of Glouster, et al.
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Robert Paxton, II2142 Riverside DriveColumbus, Ohio 43221(614) 485-9670(614) 485-9671 (fax)robert.paxton@sbcglobal.net
C®unsel for• Appellees,David Dolan, Jr., D,^p/A JD's Totiving, et al.
COURT OF APPEALSCASE NO. 11-CA-18
11-CA-1911-CA-3312-CA-112-CA-6
TRIAL COURTCASE NO. 05-CI-100
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CLERK OF COURTSUPREME COUR7 OF 0%;10
TABLE OF CONTENTS
EXPLANATION AS TO WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL
INTEREST AND RAISES A CONSTITUTIONAL QUESTION ......................................... 1
STATEMENT OF THE CASE .................................................................................................. 3
STATEMENT OF THE FACTS ............................................................................................... 4
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ............................................... 7
PROPOSITION OF LAW NO. I: Where a verdict is the result of passion andprejudice, the trial court must order a new trial on all issues, and it is error toorder a new trial only on part of the verdict............................................................ 7
PROPOSITION OF LAW NO. II: Ohio Revised Code § 2744.04(A) sets forth atwo-year statute of limitations for claims made against a political subdivision, andas a result, it is er•-oa° ±or a pKrty to be re-joined, after it has previously beendismissed, beyond the aforesaid two-year statute of limitations.......................... 10
PROPOSITION OF LAW NO. HI: Lost profit figures must be proven bycalculations that are based on fact, and it is error for lost profit damages to beawarded when the testimony regarding lost profits is only speculative orconclusory statements. .... ................ .. .. .. .. .......................... .......... .. .. ........ .. .. .. .. .... .. ... 12
CONCLUSION ......................................................................................................................... 15
CERTIFICATE OF SERVICE ............................................................................................... 16
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EXPLANATION AS TO WHY THIS CASE IS OF PUBLIC OR GREAT GENERALINTEREST
This case involves issues of public and great general interest. The first issue is the
appropriate remedy on post-trial motions for a judgment rendered as a result of passion or
prejudice. This Court has recognized that a verdict that is a result of passion or prejudice
mandates a new trial. The court of appeals misconstrued that requirement by affirming the trial
court's decision to grant a limited new trial solely on noneconomic damages and punitive
damages, while expressly upholding the trial court's post-trial decision that the verdict was a
result of passion and prejudice.
This Court has made it a point to distinguish cases were remittitur is an appropriate
remedy where there has been an excessive verdict, but not the result of passion and prejudice,
and where the verdict was a result of passion and prejudice requiring a new trial. This same
distinction should preclude ordering a limited new trial on a verdict that has been found to result
from passion and prejudice to any degree. The rationale for the distinction where remittitur is an
appropriate remedy should apply equally to ordering a limited new trial. If remittitur is not
appropriate where there has been passion and prejudice because it is presumed that the passion
and prejudice also affected liability or other parts of the damage award, the same holds true to
bar a limited new trial as an effective remedy where there has been a verdict that results from
passion and prejudice. Once passion and prejudice have been found to influence any portion of
the jury's award, the entire award is flawed and a new trial must be ordered.
It is a fundamental principle of Ohio jurisprudence that a party should be granted a trial
by a fair and impartial jury. Article 1, *§5, of the Ohio Bill of Rights specifically confers the right
to a jury trial. Rule 59 of the Ohio Civil Rules is crafted to protect this right to a fair and
impartial jury and enumerates various bases for ordering a new trial, including where the verdict
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was "given under the influence of passion or prejudice." Civil Rule 59(A)(4). These protections
are undermined if a trial court could expressly find that a verdict was influenced by passion and
prejudice, yet not award an entire new trial.
If this Court allows the Fourth District Court of Appeals decision to stand in ordering
only a partial new trial, it will create an inconsistency between this Court's pronouncements that
remittitur is not a proper remedy where there is passion or prejudice involved in the verdict
award, but that a partial new trial on only limited issues is an adequate remedy. The only
recourse is for this Court to clearly settle Ohio law that any verdict that is influenced by passion
or prejudice must be set aside in its entirety and a new trial ordered.
The second issue is whether the statute of limitations set forth in R.C. § 2744.04(A)
precluded Robert Funk and Roger Taylor from being re-joined as Defendants, over three years
after the trial court dismissed them. Robert Funk and Roger Taylor were dismissed pursuant to
the Glouster Appellants' Motion for Judgment on the Pleadings. The aforesaid parties were re-
joined by the Appellees filing of the third amended complaint, which occurred over three years
after Robert Funk and Roger Taylor were dismissed. However, the third amended complaint
alleged the same claims as the original complaint against the two abovementioned parties. The
Appellees failed to present any new evidence or facts as a basis for the trial court to re-join
Robert Funk and Roger Taylor.
This case presents a unique question of whether the aforesaid statute of limitations is
applicable after a defendant is dismissed and the plaintiff seeks to re-join the dismissed
defendant beyond the applicable statute of limitations time period. This issue is of great public
interest because Robert Funk and Roger Taylor were re-joined pursuant to the same claims,
based on the same evidence, that the trial court previously granted the Glouster Appellants'
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Motion for Judgment on the Pleadings. Without any new factual allegations, Robert Funk and
Roger Taylor should have never been re-joined in this case.
The third issue concerns the established legal standards for proving lost profit damages.
This Court has held that a mere assertion that the plaintiff would have made a particular amount
in profits is insufficient. There must be calculations, based on facts, to establish lost profit
damages. However, in this case, the Appellees failed to present any testimony or evidence that
their lost profit calculations were based on facts.
This issue presents a public or great general interest because the trial court permitted the
jury's award of lost profit damages, even though the clear legal standards for establishing the
aforesaid damages were never proven by the Appellees. If this Court allows the Fourth District
Court of Appeals decision to stand, which upholds the lost profit damages, the protections
afforded through established legal precedent will be undermined,
STATEMENT OF THE CASE
On March 31, 2005, David Dolan, Jr., D/B/A, JD's Towing, David Dolan, Jr., and
Jennifer Dolan (collectively referred to as "Appellees") filed a Complaint in the Court of
Common Pleas, Athens County, Ohio, against Robert Funk, the then Mayor of Glouster, David
Angle, Glouster's previous Mayor, Roger Taylor, Glouster's Chief of Police (collectively
referred to as the "Glouster Appellants"), the City of Glousteri, Glouster City Council, as well as
the Athens County Commissioners and Douglas Bentley, the 911 coordinator for Athens
County2.
1 Throughout the proceedings, both the trial court and the court of appeals referred to the Villageof Glouster as the "City of Glouster". However, Glouster is actually a Village, and as such, willbe addressed as the Village of Glouster in this Memorandum.2 The Athens County Commissioners and Douglas Bentley, collectively referred to as the"Athens County Defendants", were represented by different counsel and dismissed on April 4,
3
A trial was conducted over seven days in September and October of 2010. At trial, Judge
Michael Ward dismissed all official capacity claims against Robert Funk, David Angle, and
Roger Taylor, leaving only the individual capacity claims remaining for the jury to decide.
Ultimately, the jury found that Appellants Angle, Funk, and Taylor, in their individual capacities,
interfered with the alleged business relationship between JD's Towing and the Village of
Glouster, and that Appellant Taylor, in his individual capacity, interfered with the alleged
business relationship between JD's Towing and Athens County. Specifically, the jury returned a
verdict against David Angle for $115,000 in compensatory damages, including $75,000 for
emotional distress, and $150,000 in punitive damages; against Robert Funk for $115,000 in
compensatory damages, including $75,000 for emotional distress, and $150,000 in punitive
damages; and against Roger Taylor for $210,600 in compensatory damages, including $80,000
for emotional distress, and $300,000 in punitive damages. (See Attached Judgment Entry on Post
Trial Motions filed on June 8, 2011, pp.1-2).
The Glouster Appellants filed a series of post-trial motions. On June 8, 2011, the trial
court issued its opinion denying the Motions for Judgment Notwithstanding the Verdict, but
partially granting the Motion for New Trial for the Glouster Appellants, limited to the punitive
damage award and compensatory damages for emotional distress. (See Attached Judgment Entry
on Post Trial Motions filed on June 8, 2011).
On May 5, 2014, the Fourth District Court of Appeals upheld all of the trial court's
opinions. (See Attached Decision and Judgment Entry filed on May 5, 2014).
STA 1 EM_ENT OF THE FAC,TS
David Dolan, Jr., along with his wife, Jennifer Dolan, began a towing business in 1998
2006, pursuant to the trial court granting the Athens County Defendants' Motion for Judgmenton the Pleadings.
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out of their home in Morgan County, Ohio. Their towing business operated under the name
"JD's Towing". In order to tow vehicles within the Village of Glouster, a tow owner had to
notify the Chief of Police that the towing company was available to start towing cars, which the
Dolans did. However, there was no formal process required for a tow company to be able to tow
vehicles within the Village of Glouster.
From 1998 through 2001, the Village of Glouster's police department operated on a
discretionary system regarding the towing of vehicles, which allowed the officer on the scene to
call the tow company of his choice, if the vehicle was an impoundment. However, if the vehicle
was not going to be impounded, the owner of the vehicle was able to request his/her preferred
towing company.
From 1998 through 2001, there were two main towing companies within the Village of
Glouster - JD's Towing and Valley View. Near the end of 2001, two new towing companies
moved within the vicinity of the Village of Glouster - Griffin's Towing and Glouster Car Care.
All four towing companies wanted to be the dominant tow company in Glouster. As a result, in
early 2002, the Village of Glouster started a monthly rotation list for the four local towing
companies, which was agreed upon by Mayor Angle, City Council, and the four local towing
companies.
At some point, former Mayor Angle determined it was best for the Village of Glouster to
return to the previous discretionary system of allowing the officer on the scene to call the tow
company of his/her choice. Ultimately, sometime at the end of 2002, or the beginning of 2003,
the rotation system ended.
Around the same time the discretionary system was re-implemented, Ronald Chalfant Jr.
was arrested for a DUI, and his car was impounded. As a result, JD's Towing was dispatched to
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tow the vehicle. Chalfant Jr. was required to appear in Mayor's Court at 10:00 a.m. on the
morning of his arrest, which was February 1, 2003. In Mayor's Court, Chalfant Jr. received a
release for his car, and after leaving court, he went to his parents' house and told them what
happened. Chalfant's dad, Ronald Chalfant Sr., asked his son where the car was, and Chalfant Jr.
told him that it was towed by JD's Towing. At that time, Chalfant Sr. called David Dolan
regarding the tow.
During the aforesaid phone call, David Dolan informed Chalfant Sr. that the tow and
storage fee amounted to a $125.00 charge. At that point, Chalfant Sr. called David Angle, who
was the Mayor of Glouster at that time, and explained the circumstances. At that time, Angle
decided that he would mediate the situation, since he was the Mayor, and called David Dolan to
try to remedy the situation.
During this phone call, David Angle asked David Dolan the cost of a basic tow and one
day storage. Mr. Dolan told Angle that a tow and one day storage fee amounted to a $70.00
charge. Mr. Angle then asked Mr. Dolan why he was charging Chalfant Sr. a $125.00 fee, and
Dolan responded that it was because Chalfant Sr. was an "asshole". Nonetheless, after talking to
Mr. Dolan, David Angle believed the problem was remedied.
Mr. Dolan alleges that David Angle told him that if JD's Towing did not reduce the tow
charge to a $25.00 fee, then David Angle would make sure JD's Towing business "goes to hell",
which David Angle denied. The Dolans allege that after Angle made this statement, their tow
business plummeted, contending that JD's Towing alleged business with Glouster "immediately
went to zero and the Athens 911 program declined by 50%". As a result, the Dolans filed a
Complaint in the Athens County Court of Common Pleas.
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ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
PROPOSITION OF LAW NO. I: Where a verdict is the result of passion and prejudice,the trial court must order a new trial on all issues, and it is error to order a new trial onlyon part of the verdict.
This Court, as well as lower courts in Ohio, have broadly stated that if a jury verdict is
the result of passion and prejudice, a new trial must be ordered. See, e.g., Moskovitz v. Mt. Sinai
Medical Center (1994), 69 Ohio St.3d 638, 669 (dissenting opinion) ("This court consistently has
ruled that where an excessive verdict is a product of passion and prejudice, a new trial must be
granted"); Larrissey v. Nonvalk Truck Lines (1951), 155 Ohio St. 207, syl. no. 4 ("Where a trial
court considers the verdict to be so excessive as to have been given under the influence of
passion or prejudice, it should set the verdict aside and grant a new trial"); Book v. Erskine &
Sons, Inc. (1951), 154 Ohio St.3d 391, syl. no. 2 ("[W]here the damages awarded are excessive
and appear to have been given under the influence of passion or prejudice, the resulting prejudice
cannot be corrected by remittitur; the only recourse is the granting of a new trial"); Blust v.
Lamar Advertising Co. (Montgomery Cty. 2004), 157 Ohio App.3d 787, 794.
This Court has also made a very explicit distinction between verdicts that are excessive in
amount and verdicts that are excessive because of the result of passion and prejudice. In the
former circumstance, where the verdict is found to be excessive, but not the result of passion and
prejudice, remittitur is an appropriate remedy. However, where the verdict is the result of passion
or prejudice, remittitur is not an adequate remedy.
In Harris v. Mt. Sinai Medical Center (2007), 116 Ohio St.3d 139, this Court upheld the
trial court's decision to grant a new trial. In discussing the impact of passion and prejudice on the
jury verdict, this Court stated:
Having established these grounds, we turn to the appellate court'sdecision to remand the case for a remittitur of damages. InWightman v. Consol. Rail Corp. (1999), 86 Ohio St.3d 431, 444,
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715 N.E.2d 546, we indicated the factors that a trial court mustfind before ordering a remittitur: "(1) unliquidated damages areassessed by a jury, (2) the verdict is not influenced by passion oa-py-ejudice, (3) the award is excessive, and (4) the plaintiff agrees tothe reduction in damages." (Emphasis added.)
169 Ohio St.3d at 145, ¶ 39, emphases supplied by the court. Thus, this Court made it clear by
specifically highlighting the factors for remittitur, that remittitur is not a proper remedy where
passion or prejudice influenced the verdict. See, also, Dardinger v. Anthem Blue Cross & Blue
Shield (2002), 98 Ohio St.3d 77, ¶¶ 184-185.
This Court, in Harris, recognized that remittitur is not an appropriate remedy where
passion or prejudice are involved because the passion or prejudice also likely "taint[s] the jury's
finding of liability itself." Harris, 116 Ohio St.3d at ¶ 39. The same rationale applies as to why it
is insufficient to order a new trial on only limited issues. If the passion or prejudice is presumed
to have tainted the entire verdict making remittitur an insufficient remedy, a limited new trial on
only certain damage issues is likewise deficient. "When passion or prejudice infects a jury's
award of damages, a trial court reasonably may infer that the same passion or prejudice likely
tainted the finding of liability as well." Blust, 157 Ohio App.3d at 797, ¶ 22. See, also, Scott v.
Hall (Montgomery Cty. 1988), 88-LW-3141, unreported at p.2 ("If any passion and prejudice
existed, the entire verdict must be vacated and a new trial must be ordered.") See, generally, l l
Wright & Miller, Federal Practice and Procedure, § 2815 at p. 208 (3d Ed. 2012); 90 O. Jur.3d,
Trial, § § 641-643 (2005).
In its post-trial judgment granting a limited new trial, the trial court held that the award of
$230,000 for emotional distress damages was "excessive" and appeared "to have been awarded
under the influence of passion and prejudice." (See Attached Judgment Entry on Post Trial
Motions filed on June 8, 2011, p.18). Likewise, the trial court held that the award of punitive
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damages were "excessive" and appeared "to have been awarded under the influence of passion
and prejudice." Id. The trial judge, who was in the best position to assess the evidence presented
and the impact it may have had on the jury 3, made this express determination in the judgment on
post-trial motions. As a result, the trial court ordered a new trial concerning the emotional
distress damages and punitive damages only, without vacating the entire verdict.
In its decision, the Fourth District Court of Appeals implicitly affirmed that the
noneconomic compensatory damages and punitive damages were a result of passion and
prejudice by holding:
Finally, at least in light of the arguments that the Glouster partiesadvanced in their brief, we find no merit to their second new trialmotion. First, the argument that the finding that punitive andemotional distress damages are the product of "passion andprejudice" necessarily required the trial court to also find thatevery other component of compensatory damages (as well as thefinding of liability itself) is equally the result of "passion andprejudice." The Glouster parties cite no authority of law to supportthat argument, however, and we find none in our research.
(See Attached Decision and Judgment Entry filed on May 5, 2014, p.40). The Fourth District
Court of Appeals thus affirmed the trial court's decision that the verdict was tainted by passion
and prejudice, at least as to the noneconomic compensatory damage and punitive damages. The
appellate court, however, incorrectly found that the Glouster Appellants provided no authority
for this proposition. The Glouster Appellants' brief cited Larrissey v. Norvvalk Truck Lines, Inc.,
supra, and Book v. Erskine & Sons, Inc., supra, on the requirement that a new trial be ordered
where the verdict was a result of passion and prejudice. The Glouster Appellants also cited
3 A determination of whether passion or prejudice tainted the verdict generally lies within thesound discretion of the trial court. See, e.g., Har-ris v. Mt. Sinai Medical Center, 116 Ohio St.3dat ¶ 38; Laarf°issey v. Norwalk Trust Lines, 155 Ohio St. at 220; Stephens v. Vick Express, Inc.(Butler Cty. 2003), 2003-Ohio-1611; Lance v. Leohr (Medina Cty. 1983), 9 Ohio App.3d 297,298.
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Mueller v. Hubbcerd Milling Co. (1978), 573 F.2d 1029, 1040, for the proposition that the finding
of passion and prejudice should require an entire new trial as the passion or prejudice may have
also influenced the jury on other issues, such as liability.
The Fourth District Court of Appeals erred in holding that Ohio law permits a limited
new trial only on certain damage issues where the underlying verdict was tainted by passion or
prejudice. The only appropriate relief once that finding has been made is a complete new trial.
The Glouster Appellants raised this issue requesting specific relief and assigning as error the trial
court's order for a limited new trial only on specific issues.
The general rule has been stated in Ohio, probably for over a century, that if the verdict is
in any way the result of passion and prejudice, a new trial is the only adequate relief. This Court
has the opportunity to not only correct the error in the lower courts in this case, but to make a
clear statement of Ohio law that just as a remittitur is an inadequate remedy where a verdict is
tainted by passion and prejudice, so is a limited trial only on certain damage issues. This Court
should accept jurisdiction of this case to make this clear pronouncement of law on post-trial
remedies and ensure that the right to a fair and impartial jury is preserved.
PROPOSITI^^"^ OP LAW NO. II: Ohio Revised Code § 2744.04(A) sets forth a two-yearstatute of limitations for claims made against a political subdivision, and as a result, it iserror for a party to be re-joined, after it has previously been dismissed, beyond theaforesaid two-year statute of limitations.
Ohio Revised Code ("R.C.") § 2744.04(A) provides:
Any action against a political subdivision to recover damages forinjury, death, or loss to persons or property allegedly caused byany act or omission in connection with a governmental orproprietary function, whether brought as an original action, cross-claim, counterclaim, third-party claim, or claim for subrogation,shall be brought within two years after the cause of action arose, orwithin any applicable shorter period of time for bringing the actionprovided by the Revised Code.
10
The specific two-year statute of limitations in R.C. § 2744.04(A) applies to claims against
political subdivisions and their employees. Read v. Fairview Park (Cuyahoga Cty. 2001), 146
Ohio App.3d 15, 19; See, also, Davis v. Clar-k Cty. Bd. of Comntrs. (Clark Cty. 2013), 994
N.E.2d 905, 909-910; Bojac Corp. v. Kutevac (Trumbull Cty. 1990), 64 Ohio App.3d 368, 371,
abrogated on other grounds by Nadra v. Mbah, 119 Ohio St.3d 305, 2008-Ohio-3918, 893
N.E.2d 829.
On July 10, 2006, the trial court granted the Glouster Appellants' Motion for Judgment
on the Pleadings, except for one claim - tortious interference with a business relationship against
former Glouster Mayor, David Angle, while acting in his personal capacity. Nevertheless, on
May 26, 2009, nearly three years after the trial court granted the Glouster Appellants' Motion for
Judgment on the Pleadings, the Appellees filed a motion requesting the trial court reconsider the
dismissal of the Village of Glouster, Robert Funk, and Roger Taylor. On June 1, 2009, the trial
court denied the Appellees' Motion for Reconsideration regarding the dismissal of the Village of
Glouster, Robert Funk, and Roger Taylor. Even after the trial court held that the Village of
Glouster, Robert Funk, and Roger Taylor were dismissed, the Appellees again filed a Motion to
Reconsider the dismissal of Robert Funk and Roger Taylor on August 26, 2009.
The trial court never ruled on the Appellees' Motion to Reconsider of August 26, 2009.
Instead, on September 1, 2009, the trial court held that even though Robert Funk and Roger
Taylor "were previously dismissed" on July 10, 2006, it must be determined, "with as much
finality as possible," who should be a defendant. The trial court's entry then directed the parties
to answer various questions regarding Robert Funk, David Angle, and Roger Taylor. The parties
were required to answer the questions by September 22, 2009, but no final determination or
finding was ever made.
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Subsequently, on October 6, 2009, the Appellees filed their third amended complaint re-
alleging claims of tortious interference with a business relationship against Robert Funk and
Roger Taylor, in their official and personal capacities. The third amended complaint, filed over
three years after Robert Funk and Roger Taylor had been dismissed, never alleged any new facts
and the Appellees never alleged or presented newly discovered evidence. However, the trial
court granted the Appellees leave to file their third amended complaint without any final
determination as to who the defendants were in the case.
The Appellees did not ever seek to rejoin the aforesaid parties until approximately three
years after the trial court dismissed them. R.C. § 2744.04(A) clearly establishes that any action
against a political subdivision, and its employees, must be brought within two years after the
cause of action arose. This case presents a unique set of circumstances because Robert Funk and
Roger Taylor were dismissed as parties in this case, and then rejoined over three years after their
dismissal. Accordingly, the Glouster Appellants respectfully request this Court accept
jurisdiction in order to correct the error in the lower courts.
PROPOSITION OF LAW NO. III: Lost profit figures must be proven by calculations thatare based on fact, and it is error for lost profit damages to be awarded when the testimonyregarding lost profits is only speculative or conclusory statements.
A plaintiff must prove any lost profit figure by calculations that are based on facts.
Brookeside Atnbulance, Inc. v. Walker Ambulance Sen,. (1996), 112 Ohio App.3d 150, 158, 678
N.E.2d 248, 253. A mere assertion that the plaintiff would have made a particular amount in
profits is insufficient. Id., citing Gahanna v. Eastgate Properties (1998), 36 Ohio St.3d 65, 68,
521 N.E.2d 814, 817-818. There must be more than a conclusory statement as to the amount of
lost profits, without any explanation of how that sum was determined:
More is required of the plaintiff than merely his assertion (eitherdirectly or through an expert witness) that he would have made aparticular amount in profits. Unless the figure is substantiated by
12
calculations based on facts available or in evidence, the courts willproperly reject it as speculative or uncertain.
Kinetico, Inc. v. Indep. Ohio Nail Co. (1984), 19 Ohio App.3d 26, 30, 482 N.E.2d 1345, 1350,
quoting R. Dunn, Recovery of Damages for Lost Profits 2d (1981) 223, Section 5.4.
Accordingly, if sufficient proof of the underlying facts is lacking, the judgment must be reversed
for a new trial. See Dunn, supra, at 247-248, Section 6.3.
The jury instructions given by Judge Ward explicitly set forth the standard to establish
lost profit damages: "A plaintiff must prove any lost profit figure by calculations based on facts.
A mere assertion that Plaintiff would have made a particular amount in profits is insufficient."
Nonetheless, the Plaintiffs simply presented conclusory statements regarding the amount of lost
profits, without any factual basis.
Initially, David Dolan testified that an average tow could cost anywhere between $100.00
to $300.00. (Day 3 of Trial Transcript, p.106). David Dolan then admitted that it is impossible to
figure out how much lost income he had due to the decrease in calls from the Village of Glouster
because he did not know how much the average tow charge was. (Day 3 of Trial Transcript,
p. 126-127). David Dolan changed his testimony once again by stating that the tows he performed
from 1999 through 2002 costs between $150.00 to $300.00 and that the aforesaid figures
reflected the cost of any lost tow between 2003 through 2008. (Day 3 of trial Transcript, p.290-
292). The undersigned counsel objected to this line of questioning based on the Brookeside case,
supra, by noting that there must be data to support the Appellees' testimony regarding the cost of
each tow. (Day 3 of Trial Transcript, p.290-291).4 However, Judge Ward overruled the
The Decision and Judgment Entry of the Fourth District Court of Appeals found that theundersigned counsel did not object at trial to the testimony regarding how much the Appelleesbelieved each tow was worth, and as a result, could not "be used as a predicate for assignment oferror. Evid.R. 103(A)(1)." (See Attached Decision and Judgment Entry filed on May 5, 2014,
13
undersigned counsel's objection, stating that the Appellees were permitted to testify about their
own business. (Day 3 of Trial Transcript, p.290-291).
For clarification purposes, the undersigned counsel then questioned Mr. Dolan regarding
his belief of the worth of each tow. David Dolan explicitly stated that he cannot give any data to
support his estimate regarding the cost for an average tow and could not provide any calculation
supporting his assertion for the cost of an average tow. (Day 3 of Trial Transcript, p.310-312).
Next, Mr. Dolan admitted that he did not know how he calculated the average cost for each tow,
and he never added up the total income he received from Glouster for towing and impoundment
for any particular year. (Day 3 of Trial Transcript, p.314, 316).
Jennifer Dolan also could not specify the cost of an average tow, stating that it is "no less
than" $100 and "it could be $250/$300." (Day 4 of Trial Transcript, p.60). Immediately after
this, Mrs. Dolan changed her testimony by stating that the cost for an average tow was
approximately $150.00 to $200.00, (Day 4 of Trial Transcript, p.61). Mrs. Dolan also
acknowledged that the aforesaid figures of an average tow did not reflect profit, just gross
income. (Day 5 of Trial Transcript, p.20). When Jennifer Dolan was asked whether there was a
reasonable degree of certainty of what her profit would be on a $200.00 tow, as opposed to gross
profit, the undersigned counsel objected based on the Brookeside case, suprcz, stating that a
guesstimate of lost profits is insufficient. (Day 5 of Trial Transcript, p.21-23). Nevertheless,
Judge Ward overruled the undersigned counsel's objection. (Day 5 of Trial Transcript, p.21-23).
p.35). However, the undersigned counsel objected to this line of questioning on two occasions.The undersigned counsel objected to David Dolan's testimony, based on the Brookeside case,sicprcz, regarding how much he believed each tow was worth. (Day 3 of Trial Transcript, p.290-291). The undersigned counsel also objected to Jennifer Dolan's testimony, based on the sameaforesaid case, regarding how much she believed each tow costs. (Day 5 of Trial Transcript,p.21-23). Nonetheless, Judge Ward overruled each of the undersigned counsel's abovementionedobjections.
14
After Judge Ward overruled the objection, the undersigned counsel then sought to clarify
Jennifer Dolan's testimony that was elicited on direct examination. Jennifer Dolan once again
changed her testimony and acknowledged that $70.00 is a more accurate cost of an average tow
than her estimate of $100.00 to $300.00. (Day 5 of Trial Transcript, p.45-48). Adding to the
confusion, Mrs. Dolan acknowledged in her earlier testimony that she never calculated the cost
per tow or the expenditures that would have been incurred in order to determine the profit per
tow. (Day 4 of Trial Transcript, p.105-106).
The general rule in Ohio is that a mere conclusory assertion of lost profits is insufficient.
The lost profit figure must be proven by calculations that are based on facts. In this case, the
Appellees failed to meet the requirements necessary to establish lost profit damages.
Accordingly, this Court should accept jurisdiction of this case and clearly pronounce the legal
requirements for lost profit damages in order to ensure that jury awards are being upheld
pursuant to the applicable legal standard.
CONCLUSION
For the foregoing reasons, the Glouster Appellants respectfully request this Court accept
jurisdiction.
Respectfully Submitted,Lambert Law Office
% /% i / ^ ^ 3 / i 3 ; %/Oe ^^ /^ ,• r ^ ,% ^ /,_ /,; r ,
Randall L . Lambeo^`tt (f 17987)Cassaundra L. B%iisFtn (0087766)Counsel for Glouster Appellants
15
CERTIFICATE OF SERVICE
I hereby certify that a true and accurate copy of the foregoing Memorandum in Support
of Jurisdiction of Appellants The City of Glouster, et al. was served on the 16 th day of June 2014
upon the following by regular U.S. mail, postage prepaid:
Robert Paxton, II2142 Riverside DriveColumbus, Ohio 43221
LAIVIBEItT LAW
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RANDALL L. LAl^^I (0017987).,CASSAUIVDRA L. BkISLIN (0087766);COUNSEL FOR GLOUSTER APPELLANTS
16
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A71i SI . ^`O
? APPEALS OF OHIO MAY Q 5 2014FOURTH APPELLATE DISTRICT
ATHENS COUNTY CLERK
is{JUfl1 ®FMrr E
DAVID DOLAN, et al., . Case Nos. 11CA1811CA19
Plaintiffs-Appellees, . 11CA33Cross-Appellants, 12CA1
12CA6 ^
vs.
CITY OF GLOUSTER', OHIO et al.,
Defendants-Appellants,Cross-Appellees.
DECISION AND JUDGMENT ENTRY
APPEARANCES:
COUNSEL FOR APPELLANTS: Randall L. Lambert, Lambert Law Office,215 South Fourth Street, P.O. Box 725,
Ironton, Ohio 45638
COUNSEL FOR APPELLEES: Robert C. Paxton, II, Robert C. Paxton& Associates,•2142 Riverside Drive,
Columbus, Ohio 43221
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:PER CURIAM.
This is a combination of five consolidated appeals from a
number of Athens County Common Pleas Court judgments on claims
originally brought by David Dolan and Jennifer Dolan2, plaintiffs
'We acknowledge that Glouster is frequently referred toduring the trial court proceedings as a"village.'° However,because Glouster was characterized as a city in the complaint(s),as well as in the trial court's various judgment entries, we doso here as well for the sake of consistency.
2 David Dolan brought this action in his individual capacityand as d/b/a "JD's Towing." For the sake of simplicity, we referto all three complainants collectively as 'the Dolans."
ATHENS 11CA18 11CA19 11CA33 12CA1 & 12CA6 2
below and cross-appellants herein, against, inter alia, Robert
Funk, the Mayor of Glouster, David Angle, Glouster's previous
Mayor, and Roger Taylor, Glouster's Chief of Police, (the
Glouster parties) defendants below and appellants herein.3 The
Glouster parties assign the following errors for our review:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ABUSED ITS DISCRETION BYUPHOLDING THE JURY'S FINDING THAT THEGLOUSTER DEFENDANTSIAPPELLANT'S TORTIOUSLYINTERFERED WITH THE ALLEGED BUSINESSRELATIONSHIP BETWEEN JD'S TOWING AND THE
VILLAGE OF GLOUSTER."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ABUSED ITS DISCRETION BYPERMITTING EVIDENCE AND TESTIMONY AT TRIALTHAT WAS IMPROPER BECAUSE IT WAS INACCURATE
AND MISLEADING."
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT ABUSED ITS DISCRETION BYPERMITTING THE PLAINTIFFS/APPELLEES TO FILE A
THIRD AMENDED COMPLAINT."
3Although the Dolans refer to themselves as "appellants" inboth their first Notice of Appeal (Case No. 11CA19) and in theirbriefs, they are actually "cross-appellants." Appellants are theparties who filed the initial a.ppeal, whereas cross-appellants
are the parties who file the secondary appeal. See Black's Law
Dictionary 338 511 Ed.1979) (definition of a"cross-appeal") . The
"Glouster parties," as we discuss later in the opinion, filedtheir first Notice of Appeal on July 5, 2011 (Case No. 11CA18),whereas the Dolans filed their first appeal the next day.Although understandable that the Dolans did not know that theopposing side filed an appeal the previous day, their use of theterm "appellants" in their briefs adds to the confusion.
ATHENS, I1CAI8, 11CAI9. I1CA33, I2CAI _&___12CA6 - 3
FOURTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ABUSED ITS DISCRETION WHENIT RE-JOINED GLOUSTER DEFENDANTS/APPELLANTSROBERT FUNK AND ROGER TAYLOR AFTER THEY HAD
BEEN DISMISSED."
FIFTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ABUSED ITS DISCRETION BYPERMITTING DAVID AND JENNIFER DOLAN TOTESTIFY CONCERNING LOST PROFITS WITHOUTHAVING A SPECIFIC MATHEMATICAL FORMULA ORSUFFICIENT PROOF TO ESTABLISH THE AMOUNT OF
LOST PROFITS."
SIXTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ABUSED ITS DISCRETION BYPERMITTING THE ISSUE OF PUNITIVE DAMAGES TOGO TO THE JURY WHEN THE EVIDENCE FAILED TOESTABLISH ANY MALICE ON THE PART OF THEGLOUSTER DEFENDANTS/APPELLANTS."
SEVENTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT COMMITTED REVERSIBLE ERRORBY FAILING TO GRANT A COMPLETE NEW TRIALAFTER DETERMINING THAT THE ORIGINAL DAMAGESAWARDED TO THE PLAINTIFFS/APPELLEES WERETAINTED BY PASSION AND PREJUDICE."
EIGHTH ASSIGNMENT OF ERROR:
`°PLAINTIFFS/APPELLEES ASSERTED THEIR CLAIMSAGAINST THE GLOUSTER DEFENDANTS/A1'PELLANTSBEYOND THE TIME PERMITTED BY THE APPLICABLESTATUTES OF LIMITATION, AND AS A RESULT, THETRIAL COURT COMMITTED REVERSIBLE ERROR BYFAILING TO DISMISS THESE CLAIMS."
NINTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT COMMITTED REVERSIBLE ERRORBY FAILING TO FIND THAT THE GLOUSTERDEFENDANTS/APPELLANTS WERE IMMUNE FROMLIABILITY IN THEIR INDIVIDUAL CAPACITIES."
f "
ATHENS `11CA18 11CA19 11CA33, 12CAI & I2CAG 4
The Dolans posit their own cross-assignments of error as
follows$ :
FIRST CROSS-ASSIGNMENT OF ERROR:
"THE TRIAL COURT COMMITTED ERROR WHEN ITGRANTED DEFENDANTS A NEW TRIAL ON THE ISSUEOF EMOTIONAL DISTRESS DAMAGES BY HOLDING THATTHE AWARD WAS INFLUENCED BY PASSION ANDPREJUDICE."
SECOND CROSS-ASSIGNMENT OF ERROR:
"THE TRIAL COURT COMMITTED ERROR WHEN ITGRANTED DEFENDANTS A NEW TRIAL ON THE ISSUEOF PUNITIVE DAMAGES, HOLDING THAT THE AWARDWAS INFLUENCED BY PASSION AND PREJUDICE."
THIRD CROSS-ASSIGNMENT OF ERROR:
"THE TRIAL COURT COMMITTED ERROR WHEN ITGRANTED DEFENDANT, ROGER TAYLOR'S MOTION FORJUDGMENT NOTWITHSTANDING THE VERDICT."
FOURTH CROSS-ASSIGNMENT OF ERROR:
"THE TRIAL COURT COMMITTED ERROR IN FAILINGTO ADDRESS THE LEGAL CONCEPT OF "LODESTAR°" ASSET FORTH IN BITTNER V. TRI-COUNTY TOYOTA,INC. (1991) 58 OHIO ST.3D, WHEN COUNTEREVIDENCE WAS NOT PRESENTED."
FIFTH CROSS-ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN OVERRULINGPLAINTIFFS' MOTION FOR PRE-JUDGMENTINTEREST."
4 The Dolans °^ri^f does not contain a separate statement ofthe assignments of error as A.pp.R. 16(A)(3) requires.Consequently, we take these assignments of error from the brief ° stable of oont^i-its.
ATHENS® 11GA1€3, J..1GA19, I1CA33, 12cA1 & 12CA6 , 5
In view of this case°s factual and procedural complexity, we
set forth a relatively brief recitation of the trial court
proceedings. The Dolans began their towing business in Morgan
County in 1998. A growing part of their business came from the
Glouster area in Athens County, to which they moved in 2001.5
Prior to 2002, when a tow was needed Glouster police
officers used their discretion regarding which tow company they
contacted. However, only two tow companies existed in Glouster
at that time and the Dolans received a considerable amount of the
business. After two more tow companies began operations and
wanted a share of the business, in 2002 Glouster adopted a
rotation system whereby one tow company received all calls during
a particular month, then another tow company rotated in the
following month.6 Apparently, this system led'to a sharp decline
in the Dolans' business.
After several companies complained, including the Dolans,
Glouster abandoned the monthly rotation system and returned to
its prior system to allow police officers to use their discretion
SThe Dolans contended that the defendants encouraged themto move to Glouster to obtain additional business from the city,but the Glouster parties deny that they encouraged them to move,moreso than they would for any other business to increase the taxbase.
6Glouster Chief of Police Roger Taylor explained that acall rotation system, rather than a monthly rotation system,-would have been impractical because of difficulties incommunication between the night shift and the day shiftdispatchers and the police.
ATHENSe IICA18, 11CA19e 11C1^33 12CA.I & 12CA6
as to which tow company to contact, ^
Although it is unclear if the abandonment of this monthly
rotation system had any impact on their business, the Dolans
claim that the fall-out from what is characterized as the
"Chalfant incident" all but destroyed their business with
Gl.ouster and considerably reduced the amount of Athens County
tows. This incident began after Ronald CYcalfant, Jr. 's 2003
arrest for driving under the influence and the Dolans towed and
impounded Chalfant' s ca.r.8 When Chalfant' s father attempted to
6
pay the fee and retrieve the car, he became upset over the amount
of the fees and complained to then mayor David Angle. Angle, in
turn, called the Dolans and asked them how much they charge for
vehicle towing and impoundment under circumstances similar to
those that applied to Chalfant. Allegedly, Angle was told that a
lesser amount would typically apply. When Angle asked the Dolans
why Chalfant was charged more, the Dolans reportedly said it was
because "°he" (Chalfant) was an "asshole." Angle informed the
7 The one exception was that if a vehicle owner requested
the services of a particular tow company, the police would accedeto those wishes and call that particular company.
^ ^^vid Dolan testified to the occurrence of two "Chalfant"incidents. The first occurred approximately two months beforethe February 1, 2003 incident and involved an improperly parkedmotor vehicle in front of a dumpster. When the Dolans werecalled to tow the vehicle, Chalfant reportedly acted in abelligerent manner. From the testimony, however, it isimpossible to ascertain if the individual being towed was"Chalfant" Sr. or "Chalfant" Jr.
Pl '
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 7
Dolans that they could not treat people that way and the Dolans
reportedly responded that it is their business and they could do
as they please.9 Whatever the circumstances, the evidence
adduced at trial revealed that the number of "tows" that Glouster
assigned to the Dolans declined precipitously thereafter.10 The
tows they received from Athens County were also greatly
diminished which together, according to the Dolans, led to
considerable financial hardship for the family.
The Dolans commenced this action on March 31, 2005 against
the Glouster parties, as well as various other defendants." The
complaint set forth sixteen "counts," but the gist of their
allegations, for purposes of this appeal, is that the Glouster
parties interfered with the business relationship that the Dolans
built with the city of Glouster-and Athens County and, thus,
injured their profitability. The Dolans requested, inter alia,
9 The Dolans disputed this version of the events. Althoughthe Chalfants claimed that their towing/impoundment bill wasroughly $150, the Dolans claimed it was $70 and not adjustedupward for any reason.
90 Although little mentioned in the briefs, the so-called"Fierce incident,°, wherein the parties described an individualnamed Fierce who drove around.Glouster and the surrounding areaswith a sign on the back of a truck that accused the Dolans ofstealing from them, may have also contributed to the decrease inthe Dolans' business.
" Those other defendants included (1) the City of Glousteritself, (2) the City "by and through" its current Mayor, (3) theGlouster City Council, (4) the Athens County Commissioners, (5)Doug Bentley, the 911 Coordinator for Athens County, and (6) fourunidentified "John Doe" defendants.
rS * _a
ATHENS 11CA18 11CA19, 11CA33, 12CA1 & 12CA6 8
compensatory and "exemplary" damages, as well as attorney fees.
The defendants denied liability.
On April 4, 2006; the trial court, pursuant to Civ.R. 12(C),
granted the "Athens County defendants" (defined as the Athens
County Commissioners as well as Douglas Bentley) judgment on the
pleadings. This Court affirmed, in part, and reversed, in part,
that judgment and remanded the case to the trial court for
further proceedings. See Dolan v. Glouster, 173 Ohio App.3d 617,
2007-Ohio-6275, 879 N.E.2d 838 (4 th Dist. ) (Do1an 1). This Court
largely agreed with the trial court's grant of a Civ.R. 12(C)
judgment, but held that the trial court erred in finding that
Douglas Bentley could not be held liable, in a personal capacity,
as Athens County 911 coordinator. Id. at 19I33-38. We remanded
the matter to the trial court for further proceedings consistent
with that opinzon.12
The case sub judice eventually came on for jury trial over
seven days in September and October 2010. As aforesaid, the gist
of the Dolans' claims is that the Glouster parties tortiously
interfered in the business relationship they had with (1) the
City of Glouster, and (2) Athens County. The evidence adduced
at trial was uncontroverted that no contractual relationship
existed between the Dolans and the City of Glouster, or, for that
12 The trial court granted summary judgment to DouglasBentley on November 25, 2008. That judgment was not appealed andBentley is no longer a party to these proceedings.
^i ^ ..
,ATHENS 11CA18, 11CA191 11CA33,12CA1 &12CA6 9
matter, Athens County. However, the evidence suggested the
existence of a less formal relationship between the parties and
that the Dolans provided tow services for Glouster and Athens
County.
David Dolan, to say the least, provided the most uneven
testimony during these proceedings. Jennifer Dolan provided the
strongest testimony and stated that the Dolans believed that they
"had a business relationship with Glouster." David Dolan
testified, however, only that he believed that they had a`°good
relation with Glouster." On the other hand, the Glouster parties
all testified to the effect that no business relationship existed
between the Dolans and Glouster.
The primary issue at the seven day jury trial was whether,
assuming that a business relationship did exist between the
Dolans and the Glouster parties, that the Glouster parties had
wrongly interfered with that relationship. It was uncontroverted
that the Dolanse tows were greatly diminished (1) as a result of
the monthly rotation system, and (2) after the rotation system
was abandoned and the city returned to a discretionary system
that followed the "Chalfant incident." The Dolans' argument, on
the latter point in particular, is that the Glouster parties
purposely interfered with the decision to assign them any tows.
Moreover, they introduced evidence to show that someone removed a
sign in town to promote the Dolans' business and actually placed
^ 9 F
ATI-iENS ., 11CA18, 11CAl9r 11CA33, 12CA1__& __12CA6 10
their sign in a city building.
The Glouster parties adduced considerable conflicting
evidence and all testified that the decrease in tows had nothing
to do with the "Chalfant incident," but rather due to the general
disagreeableness of the Dolans. For example, Ronald Chalfant,
Sr. testified for the Glouster parties and characterized David
Dolan as "mouf.hy. °" Lucas Mace® a Glouster police officer®
testified that David Dolan's "attitude" was so bad that neither
he nor anyone else could stand to deal with him. Officer Mace
testified that David Dolan was rude to other officers, refused to
clean up a tow scene on occasion and that people who had their
cars towed and impounded by his company accused him of "riffling"
through their property in the vehicle.
Other witnesses also testified that Giffin towing, another
local company, was faster to the scene than the Dolans and were
more pleasant to deal with. Witnesses for the Glouster parties
testified that, on the one hand, if vehicle owners requested the
Dolans, the police would contact the Dolans to tow the cars. On
the other hand, when the question of which company to call was
left to police discretion, police oftentimes called another
company. Mace related that, although he used the Dolans prior to
the rotation system, he stopped using them after the system was
abandoned. More important, none of the Glouster parties or their
witnesses testified that city council, the mayors or the chief of
td
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 11
police instructed them to stop using the Dolans for tows.
In the end, the jury returned from.deliberations with
interrogatories and verdicts that favored the Dolans. The trial
court entered judgment on October 20, 2010 and awarded the Dolans
damages against the Glouster parties as follows: (1) $115,000 in
compensatory damages against Angle (inclusive of $20,000 for lost
profits, $20,000 for consequential damages and $75,000 for
emotional distress), as well as $150,000 in punitive damages; (2)
$115,000 in compensatory damages against Funk (inclusive of
$20,000 for lost profits, $20,000 for consequential damages and
$75,000 for emotional distress), as well as $150,000 in punitive
damages; and (3) $210,60013 in compensatory damages against
Taylor, with $300,000 in punitive damages.
All of the Glouster parties filed motions for (1) judgment
notwithstanding the verdict (JNOV) pursuant to Civ.R. 50, (2) new
trial pursuant to Civ.R. 59, and (3) remittitur of damages
awarded against them. The Dolans filed a motion for pre-judgment
interest pursuant to R.C. 1343.03(C).
13 The compensatory damages against Taylor are in two parts.First, for interfering in their business relationship withGlouster, the Dolans were awarded $130,000 (inclusive of $25,000in lost profits, $25,0000 in consequential damages and $80,000for emotional distress). Second, for interfering with theirbusiness relationship with Athens County, the Dolans were awarded$80,600 (inclusive of $15,600 in lost profits, $25,000 inconsequential damages and $40,000 for emotional distress).
¢a f
ATHENS. 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 12
On June 8, 2011, the trial court filed a twenty-one page
decision on the post-atrial motions. The court overruled all the
JNOV motions, with the exception of one regarding the verdict
that Taylor interfered with the Dolans' business relationship
with Athens County. The court entered judgment in Taylor's favor
on that claim notwithstanding the verdict.
The trial court also granted the motion for new trial for
all Glouster parties as to the punitive damage awards and
compensatory damage awards for emotional distress, but denied the
motions on all other issues. The court also denied the motion
for remittitur of damages. The court then set a hearing date to
determine the amount of attorney fees and to rule on the
prejudgment interest motion. Finally, the trial court made a
Civ.R. 54(B) finding of "no just reason for delay."
On July 5, 2011, the Glouster parties filed an appeal from
that judgment (Athens App. No. 11CA18). The following day, the
Dolans` filed their notice of appeal from the trial court's
judgment (Athens App. No. 11CA19). On September 8, 2011, the
Glouster parties filed a motion for new trial, or, alternatively,
to ask the trial court to reconsider its decision to grant them a
new trial on damages only. The court overruled that motion on
September 29, 2011.
On December 6, 2011, the trial court denied the Dolans'
motion for prejudgment interest. The Dolans filed their second
/.e
ATHENS 11CA18d 11CA19, 11CA336 12CA1 & 12CA6 13
appeal from that judgment on December 29, 2011 (Athens App. No.
11CA33). On December 15, 2011, after several hearings regarding
attorney fees, the trial court filed a "partial judgment entry"
on the issue that disallowed some of the fees the Dolans' counsel
requested and instructed them to submit a revised statement based
on that ruling and granted the Glouster parties a week to
respond. Despite the interlocutory nature of that judgment, the
Glouster parties filed another notice of appeal from that order
on January 3, 2012 (Athens App. No. 12CA1). On January 20, 2012,
the trial court awarded the Dolans $95,553.33 in attorney fees.
The Dolans filed their third appeal from that entry.on February
15, 2012 (Athens App. No. 12CA6).
This Court, sua sponte on February 23, 2012, consolidated
all five appeals for purposes of final resolution. Consequently,
we believe that all of the errors and cross-assignments of error
are now properly before us for review and determination.
I. Juri,sdi.cta.oraal Issue (s)
Before we address the assignments of error on their merits,
we must first take note of several jurisdictional issues. Courts
of appeals have jurisdiction over final appealable orders. Ohio
Constitution, Article IV, Section 3(B)(2). A final order is one
that, inter alia, resolves the pending claims in a case and, in
effect, determines the action. R.C. 2505.02(8)(1). If the order
•9
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 14
appealed is neither final nor appealable, the appellate court has
no jurisdiction to consider it and the appeal must be dismissed.
See State v. Creech, 4t" Dist. Scioto No. 12CA 3500, 2813-ohio-
3791, at I11A Nolan v. Rase, 4th Dist. Scioto No. 12CA3463, 2012-
Ohio-4144, at 16.
Oftentimes, in a complicated case such as this with many
parties and many claims, the trial court and the parties
understandably tend to lose track of all of the competing claims
and may fail to resolve some claims. This is problematic when,
as in the case sub judice, multiple amended complaints have been
filed and those complaints are somewhat unclear as to whether
they simply elaborate on claims already presented in the case, or
if they, in fact, assert new claims.
One point of concern are the four "John Doe" defendants
against whom counts thirteen through sixteen of the original
complaint were addressed. The amended complaint, filed February
7, 2006, expressly stated it incorporated the contents of the
original complaint. This amended complaint did not set out a
list of the defendants and, although it referenced counts
thirteen through sixteen from the original complaint, it made no
mention of the aforementioned "John Doe" defendants.
On May 15, 2006, the Dolans filed a motion for leave to file
a second amended complaint. It does not appear that the trial
court expressly ruled•on this motion and that, of course,
e ° a
so
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 - 15
technically means that the motion is denied.lA However, several
defendants filed amended answers in response and thus treated.it
as if the complaint had been permitted after all. This proposed
second amended complaint incorporated all the claims of the
original complaint but, again, did not list the party defendants.
It also made no express mention of counts against the "John Doe"
defendants.
On October 6, 2009, the Dolans filed yet another amended
complaint. This time, however, they did not request leave of
court. At first, the trial court ordered the complaint stricken.
Later, when plaintiffs filed a motion for leave of court, the
court granted leave and allowed the amended complaint.
Practically speaking, this is their third amended complaint. It,
too, incorporated the original 2005 complaint, but, again, did
not list the party defendants or make reference to the counts in
the original complaint against the John Doe defendants.
Moreover, we do not find anything in the record of this case to
indicate that those claims have been resolved.
In view of the foregoing, it appears that claims thirteen
through sixteen of the first complaint remain unresolved against
the four "John Doe" defendants. On the one hand, various Ohio
14 Motions not expressly determined in a case are generallydeemed to be overruled. See State v. Payne, 4th Dist. Ross No.11CA3272, 2012-Ohio-4696, at 122® In re Sites, 4th Dist. LawrenceNo. 05CA39, 2006-Ohio-3787, at 118, at fn. 6.
4 + f
ATHENS 11CA18 , 11CA19 , 11CA33 12CA1 & 12CA6 16
appellate courts have concluded that unresolved claims against
unknown defendants renders a judgment interlocutory and, thus, no
final order for purposes of R.C. 2505.02 and Civ.R. 54(B). See
Nottingham v. Akron Bd. of Edn., 81 Ohio App.3d 319, 324 at fn.
2, 610 N.E.2d 1096 (9th Dist. 1992); United Methodist Church of
Berea v. Dunlop Const. Products, Inc., 8th Dist. Cuyahoga Nos.
55590 & 56202, 1989 WL 80979 (1989). On the other hand, this
Court has concluded that when service of process is not obtained
on "John Doe" defendants pursuant to Civ.R. 3(A), any unresolved
claims against them do not render the judgment interlocutory. See
Eastley v. Volkman, 4t" Dist. Scioto No. 08CA3223, 2009-®hio-522,
at 115.
After our review of the record in this case, it does not
appear that the claims against the four "John Doe" defendants
have been resolved. By the same token, it also does not appear
that the Dolans identified these defendants or, more important,
obtained service on them. Thus, consistent with Eastley, supra,
we conclude that they are no impediment to our review of this
matter.
Another potential jurisdictional problem is that we find no
judgment entry that expressly resolved the claims against
Glouster City Council. A July 10, 2006 entry granted partial
judgment on the pleadings to what was characterized as the
"Glouster defendants," but the trial court identified the
ATHENS , 11CA18 , 11CA19 , 11CA33 , 12CA1 &12CA6 17
"Glouster defendants" as "defendants Village of Glouster, Robert
Funk, David Angle and Roger Taylor.:" Thus, Glouster City Council
was technically excluded from the group to whom the court granted
partial judgment on the pleadings. We, however, regard this
omission as a scrivener's error in the six page decision and
judgment. At the outset of its entry, the trial court noted that
the motion it was about to decide is the motion filed on April
17, 2006 that began °'[n]ow come the defendants ®.. Glouster
Villaae Council ...'° (Emphasis added.) The Council, therefore,
was a party to the motion that the trial court granted for all
but Angle.
Furthermore, in ruling for all the "Glouster parties" except
Angle, the court opined as follows:
""Tortious interference with business occurs when aperson, without privilege, induces or otherwisepurposely causes a third party not to enter into, orcontinue, a business relationship, or perform acontract with another.' However, the wrongdoer must bea non-party to the contract. Parties to the contractinclude officers and employees in their officialcapacities. ** * Glouster's employees and officerswould not be subject to this claim for actionsundertaken in their official capacity." (Citationsomitted®)(Emphasis added.)
The trial court's references to "employees and officers"
would encompass Glouster City Council. There can be no doubt
that, had the trial court remembered when it drafted its entry
that the Council was a party, it would have dismissed them under
the same principles. This, taken together with the fact Glouster
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 18
City Council joined in the motion that was sustained for all but
Angle, leads us to conclude that the July 10, 2006 partial
judgment on the pleadings effectively concluded the claims
against the Council.
Therefore, we find some degree of dispository action against
all parties. What still is of concern, however, is whether all
the claims against those parties have been resolved. While the
Dolans' various amended complaints renders the procedure very
confusing, after a thorough review of the voluminous record we
conclude that it does indeed appear that all claims have been
resolved. However, the trial court's June 8, 2011 judgment on
the post-trial motions does contain the Civ.R. 54(B) language of
"'no just reason for delay." This gives us pause. Although the
court did not specify what claims and/or parties it thought may
remain to be determined in the case, a Civ.R. 54(B) finding
suggests that the court believed that residual claims may remain
somewhere in the case. The court, however, did not identify what
it thought those claims might be and none of the parties have
offered any such explanation in their briefs.
If a finding of "°no just reason for delay" is made so that
immediate appeals could be taken from the post-trial motions,
while the request for prejudgment interest and determination of
attorney fees remained pending, the Civ.R. 54(B) determination is
of no avail. At least with regard to attorney fees, that is a
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 &,12CA6 19
part of the Dolans' damages and not an independent claim in and
of itself. F.ifth Third Bank v. Rose, 4t' Dist. Gallia Nos. 07CA8
& 07CA9, 2008-Ohio-3919, at 9I110-11® McKee v. Inabnitt, 4th Dist.
Adams App. No. ®1CA711, 2001 WL 1913873 (Sep. 26, 2001). Thus,
the trial court's finding of no just reason for delay did not
render immediately appealable the rulings on the post-trial
motions.
This would account for the five appeals filed in this case
(no doubt out of an abundance of caution on counsels' part) when,
as the Dolans correctly concluded, no final order existed until
the January 20, 2012 judgment that awarded attorney fees. At..
that juncture, all previous interlocutory orders merged into that
one. See e.g. Rice v. Lewis, 4th Dist. Scioto No. 11CA3451,
2012-Ohio- 2588, at 115; Clark v. Butler, 4t'° Dist. Ross No.
10CA3191, 2011-Ohio- 4943, at T8.
Furthermore, if the trial court certified a finding of no
just reason for delay so that its rulings on the motions for new
trial could be reviewed while those new trials were pending, it
is unnecessary. Orders that grant judgments for new trial are
statutorily deemed to be final appealable orders. R.C. 2505.02
(B) (3) ; also see e.g. State v. Matthews, 81 Ohio St.3d 375, 691
N.E.2d 1041 (1998) (applying the same principle but in a criminal
context). In short, we are not sure why the trial court included
its Civ.R. 54(B) finding when it does not appear from the record
a ^ .
ATHENS, 11CAl8n 11CA19, 11CA33, 12CA1 & 12CA6 20
that any pending claims remained to be resolved.
To summarize, after our exhaustive review of the original
papers in this case, it appears that all of the claims against
all of the parties have been resolved. The exceptions to that
are the four John Doe defendants and the Glouster City Council,
but, as we indicated supra, we deemed the claims against those
parties disposed of on other grounds. We also conclude that the
January 20, 2012 judgment that awarded attorney fees is the final
judgment into which all of the prior, interlocutory orders
merged. Therefore, any and all prior judgments are now properly
before us for review and we have jurisdiction to review this case
in its entirety.
Having concluded that a final appealable order exists in
this case, we now turn our attention to the errors that the
Glouster parties assign for review and determination.
II. The Glouster Parties' A^sigpMents of Error
A. First A^si eaxt of Error
The Glouster parties maintain in their first assignment of
error that the trial court erred by "upholding" all the jury
verdicts against them. We assume that the gist of their
contention is that the trial court erred by not sustaining their
motion for JNOV on the question of whether sufficient evidence
ATHENS , 11CA18 , 11CA19 11CA33 , 12CA1 & 12CA6 21-
exists to show that they tortiously interfered with a business
relationship between the Dolans and the City of Glouster.
Pursuant to Civ.R. 50(B), when-a verdict has been rendered
for the plaintiffs the test that a trial court must use to
determine whether to sustain a motion for judgment
notwithstanding the verdict is whether, after the evidence is
construed most strongly in favor of the plaintiff, the defendants
are entitled to judgment as a matter of law. See Daniels v.
Fraternal Order of Eagles Aerie of Tecumseh #979, 162 Ohio App.3d
446, 2005-Ohio-3657, 833 N.E.2d 1253, at 112 (2°a Dist., 2005) ;
Mynes v. Brooks, 4t" Dist. Scioto No. 08CA3211, 2009-Ohio-5017,
at 125. A Civ.R. 50(B) motion for JNOV tests the legal
sufficiency of the evidence. See Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517 at 125 (a motion for
JNOV presents a question of law); Texler v. D.O. Summers Cleaners
& Shirt Laundry Co., 81 Ohio St.3d 677, 679, 693 N.E.2d 271
(1998) .15
Thus, in considering a motion for JNOV, a trial court must
construe the evidence most strongly in favor of the non-moving
15 Because the determination of whether JNOV is warrantedpresents a legal question,we apply a de novo standard of review.
See e.g. Spisak v. Salvation Army, 8g' Dist. Cuyahoga No. 99633,
2013-Ohio-5429, at 158; Meade v. lUatsonal. Bank of Adams County,
4th Dist. Adams No. No. 02CA733, 2003-Ohio-5747, at 1130. Inother words, by arguing that the trial court abused itsdiscretion in this matter, the Glouster parties did not set outthe correct standard of review in the text of their first
assignment of error.
,
ATHENS 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 22
party and deny the motion when some evidence exists to support
the non-moving party's case. See Texler, supra at 679; Gladon v.
Greater Cleveland Regional Trans.lt Auth., 75 Ohio St.3d 312, 318,
662 N.E.2d 287 (1996) ; Posin v. A.B.C. Motor Court Hotel, Inc.,
45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976). In so doing, a
trial court may not weigh evidence or judge witness credibility.
Os1er v. Lorain, 28 Ohio St.3d 345, 504 N.E.2d 19, at the
syllabus (1986); Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d 66,
67-68, 430 N.E.2d 935 (1982).
Generally, a trial court must deny a motion for JNOV if
substantial evidence exists upon which reasonable minds could
come to different conclusions on the essential elements of the
claim. Posin, supra at 275; Ramage v. Cent. Ohio Emergency 5erv.,
Inc., 64 Ohio St.3d 97, 109, 592 N.E.2d 828 (1992). Appellate
courts then review a trial court's decision de novo. Hicks v.
Garrett, 5 th Dist. Stark No. 2011CA109, 2012-Ohio-3560, at 1108;
Gindling v. Schiff, lst Dist. Hamilton No. C-100669, 2012-Ohio-
764, at 114; Britton v. Gibbs Associates, 4th Dist. Highland No.
08CA9, 2009-Ohio-3943, at 17.
The Dolans' claims are based on the theory of a tortious
interference in a business relationship to provide tow services
that they allegedly had with Glouster. The Glouster parties
argue that no evidence of a business relationship existed between
the Dolans and Glouster. We disagree. Admittedly, the Glouster
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 23
parties were unanimous in their testimony that no business
relationship existed. On the other hand, considerable evidence
indicated (at least before the adoption of the monthly rotation
system) that the Dolans received a large percentage of the
Glouster tows. While David Dolan's testimony on this issue was,
at a minimum, confusing, Jennifer Dolan did provide clear and
unequivocal testimony that they had a business relationship with
Glouster.
Interestingly, none of the parties has provided us with a
precise legal statement for what constitutes a`®business
relationship" in this context. Moreover, in our own research we
have found no definitive explanation of such a relationship in
either Ohio law or the law of any other jurisdiction. A
"business relationship" does appear to involve an ongoing
relationship between two or more parties when there is an
expectation of pecuniary advantage. See generally, Morrison v.
Renner, 5t" Dist. Muskingum No. CT2011 -0010, 2011-6780, at 9126;
Streb v. AMF Bowling Centers, Inc., lOt`' Dist. Franklin No.
99AP-633, 2000 WL 552198 (May 4, 2000)v also see Manna Funding,
LLC v. Kittitas County, 173 Wash.App. 879, 295 P.3d 1197, at 134
(Wash.App. 2013); MacLean v. Ryan, Wash.App. No. 69548-7-I, 2013
WL 6633745, at fn. 16 (Dec. 16, 2013); In re Cobb, N.J.Sup. No.
2011-302, 2013 WL 1187854 (Mar. 25, 2013).
9 11CA18,11CA199 11CA33, 12CA1& 12CA6 24&TUINS
Here, no question exists that the Dolans received pecuniary
advantage (financial renumeration) from their previous dealings
with. Glouster. This, taken together with Jennifer Dolan's
testimony, is sufficient for a reasonable jury to find that a
business relationship between them did, in fact, exist.
The Glouster parties further argue that even if a business
relationship with the Dolans did exist® no evidence exists to
show that they interfered with that relationship. Again, we
disagree. David Dolan testified that when he refused to modify
the charges in the Chalfant incident, Angle told him "I'll make
sure your business goes to hell." Moreover, the evidence adduced
at trial is uncontroverted that, except for those situations when
motorists expressly requested the Dolans, the tows assigned them
by the police after the Chalfant incident diminished
considerably. David Dolan also testified that shortly after the
Chalfant incident, a sign advertising his business (set on wooden
posts and sunk into concrete) was removed. When he inquired
about what happened to the sign, he found the sign sitting in a
city building.
We defined a tortious interference in business relationship
in Dolan 1, supra at 1133-34, as follows:
"The elements of tortious interference with a businessrelationship are (1) a business relationship; (2) thetortfeasor°s knowledge thereof; (3) an intentionalinterference causing a breach or termination of therelationship; and (4) damages resulting therefrom. It"includes intentional interference with prospective
i ^ 6a
ATHENSi 13CA1811CA19, 11CA33 -12CA1 & 12CA6 25
contractual relations not yet reduced to a contract.[This] interference must be intentional, not negligent.Further, [i]n such cases the law has generally requiredproof that the defendant has acted maliciously. Becausemalice is a necessary element of the claim and anexception to an employee"s immunity under R.C.2744.03(A)(6) . . ."• (Citations omitted)
We conclude that David Dolan's testimony concerning what Angle
purportedly said to him, the removal of the business sign shortly
thereafter and the uncontroverted evidence of a drop-off in the
business is sufficient for a reasonable trier of fact to find
intentional interference in the business relationship between the
Dolans and Glouster. We readily acknowledge that it is true that
no direct evidence was adduced to show that any of the Glouster
parties instructed officers to cease using the Dolans for towing.
However, the fact that the Glouster parties operated in
supervisory roles over police provides considerable
circumstantial evidence that this interference occurred. We also
hasten to add that nothing in Ohio law prohibits a judgment in a
civil case from being based on circumstantial evidence. See.
Abon, Ltd. v. Transcontinental Ins. Co., 5th Dist. Richland No.
2004-- CA-0029, 2005-cJhio-3052, at 9[38; Xenia Pizza, Inc. v.
Donahue, 2"d Dist. Montgomery No. 8853, 1985 WL 8732 (Jun. 24,
1985).
We also readily acknowledge that the Glouster parties denied
telling police not to use the Dolans and that some of the
officers denied that they were told not to use the Dolans.
ATHENS 11CA18 11CA19 11CA33 12CA1 & 12CA6 26
However, the jury, sitting as the trier of fact, is free to
believe all, part or none of the testimony of any witness who
appears before it. Khayyam Publishing Co. v. Marzvann, 4$" Dist.
Athens No. 12CA29, 2013-Ohio-5332, at 1124o Hawkins v. Creech, 4c"
Dist. Adams No. 12CA938, 2013-Chio-1318, at 120; Burchett v.
Mowery, 4th Dist. Scioto No. 11CA3419, 2012-Chio-2489, at 115.
In the case sub judice, the jury obviously rejected the evidence
that the Glouster parties presented and, instead, accepted the
evidence that the Dolans presented. This is well within the
jury°s province as the trier of fact.
Finally, the Glouster parties challenge the evidence insofar
as it supported the maliciousness component that we specified in
Dolan I as necessary for this particular tort. They argue that
nothing shows malice on their part, or anything to indicate some
"factual nexus" between a decline in the Dolans' business and
their actions. We, however, reject this argument for the same
reason that we rejected the previous argument. Evidence that the
jury apparently found credible showed Angle threatening to send
the Dolans' business operation "to hell." Shortly thereafter,
the Dolans' advertising sign disappeared and the number of tows
that they received from Glouster decreased to nothing. A
reasonable jury could find a nexus between the alleged actions of
the Glouster parties and the injuries the Dolans suffered.
I ® .,
ATHENS 11CA18 r 11CA19, 11CA33 E 12'CAl&__ _ 12CA6 27
Accordingly, for all of these reasons, we find no merit to
the first assignment of error and it is hereby overruled..
B. Second Assignment of Error
The Glouster parties maintain in their second assignment of
error that the trial court erred by allowing evidence that is
"inaccurate, prejudicial and misleading." We disagree with this
contention for several reasons.
First, App.R. 16(A)(7) requires that an appellate brief
include "citations to the authorities" upon which an appellant
relies in making their argument. Here, we find no authority of
law that the Glouster parties cite anywhere in this assignment of
error. Moreover, it is not clear that a rule of evidence or any
statute prohibited the presentation of any of this testimony and
other material. In any event, App.R. 16(A)(7) permits a
reviewing court to simply disregard this assi.gnment of error.
Chiro v. Foley, 8th Dist. Cuyahoga No. 99888, 2013-Ohio-4808, at
530; also see State v. Herron, llt'' Dist. Lake Nos. 2009-L-119,
2009-L-126, 2009-L- 127, 2009-L-128, 2009-L-129, 2009-L-130,
2009-L-131, 2009-L-132, 2009-L--133 & 2009-L-13, 2010-Ohio-2050,
at 116 ("It is not the obligation of an appellate court to search
for authority to support an appellant's argument as to an alleged
error . . . da]ccordingly, we may disregard an assignment of
error that fails to comply with App.R. 16(A)(7).'°)
ATHENS, 11C.AIB s 11CA19, 11CA33, 12CA1. & 12CA6 28
Second, even if we considered the substance of the
assignment of error, we would find no merit. If the evidence
that the Glouster parties cite is inaccurate or misleading, that
assertation goes to evidence weight rather than admissibility.
See e.g. State v. McClain, 5th Dist. Guernsey No. 10-CA-10, 2011---
®hio--1623, at 155® State v. Bizzell, 4th Dist. Ross No. 03CA2702,
2003-Ohio-6155, at 48. Whatever inaccuracies there may be, or
any potential to be misleading, those issues must be addressed on
cross-examination and, if there is anything that the lengthy
trial transcripts in this case does show, very extensive cross-
examination occurred for all of the witnesses.
Accordingly, for these reasons, we find no merit to this
assignment of error and it is hereby overruled.
C. Third Assignment of Error
The Glouster parties argue in their third assignment of
error that the trial court erred by allowing the Dolans to file a
third amended complaint. We disagree.
Generally, parties may amend their complaint once, as a
matter of course, within twenty-eight days after serving the
complaint and thereafter only with leave of court. Civ. R. 15 (A) .
Such leave, however, should be freely given. Id. The decision to
grant leave lies in a trial court's sound discretion and its
decision will not be reversed absent an abuse of that discretion.
a • .
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 29
McSweeney v. Jackson, 117 Ohio App.3d 623, 629-630, 691 N.E.2d
303 (4gh Dist. 1996); also see Merchants Nat1. Bank v. Overstake,
4$h Dist. Highland No. 11CA18, 2012-Ohio-6309, at 117.
Generally, an "abuse of discretion" is more than an error of law
or judgment; rather, it implies that a court's attitude is
unreasonable, arbitrary or unconscionable. State v. Herring, 94
Ohio St.3d 246, 255, 762 N.E.2d 940 (2002); State v. Adams, 60
Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Additionally, in
reviewing for an abuse of discretion, appellate courts must'not
substitute their judgment for that of the trial court. State ex
rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732,
654 N.E.2d 1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135,
137-138, 566 N.E.2d 1181 (1991). Further, to establish an abuse
of discretion, the result must be so palpably and grossly
violative of fact or logic that it evidences not the exercise of
will, but perversity of will; not the exercise of judgment, but
defiance of judgment; not the exercise of reason, but, instead,
passion or bias. See Vaught v. Cleveland Clinic Found., 98 Ohio
St.3d 485, 787 N.E.2d 631, 2003- Ohio-2181, 113; Nakoff v.
Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996).
In the case sub judice, the trial court granted the Dolans
(retroactively) leave to file their third amended complaint some
ten months before the trial. We believe that the Glouster
parties had sufficient time to respond to the allegations and we
I"
ATIIENS 13CA18, 11CA19, 11CA33® 12CAI& 12CA6 30
find no indication that they suffered any prejudice as a result
of the third amended complaint.
We also note that the only authority that the Glouster
parties cite to support their argument is Helman v. EPL Prolong,
Inc., 139 Ohio App.3d 231, 743 N.E.2d 484 (7t" Dist. 2000). That
case involved review of a trial court's refusal to allow an
amendment of a complaint. Id. at 250-252. Had we reviewed the
trial court decision in Helman, we, too, may have arrived at the
same result. Again, the "abuse of discretion" standard of review
is a°'highly deferential" standard of review. Grimes v. Grimes,
4 th Dist. Washington No. 10CA23, 2012-Ohio-3562, 975 N.E.2d 496,
at 116, fn. 5; . Habo v. Khattab, llth Dist. Portage No. 2012-P-
0117, 2013-Ohio-5809, at T55; Rarden v. Rarden, 12 Dist. Warren
No. CA2013-06- 054, 2013-Ohio-4985, at 110.
The application of the abuse of discretion standard will
potentially allow for different outcomes depending on a trial
court's decision. Thus, had the trial court in this case denied
leave to file an amended complaint, we could have deferred to its
decision unless it was demonstrated that the decision was
arbitrary, unreasonable or unconscionable as did the Helman
court. Nevertheless, just as the Helman court found no abuse of
discretion, we have not been persuaded that anything arbitrary,
unreasonable or unconscionable exists in the trial court's
decision to allow the third amended complaint. Moreover, our
M x' x
ATHENS 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 31
ruling is buttressed by the fundamental principle that cases
should be decided their merits when possible,.rather than on
pleading practice technicalities. See New Falls Corp. v.
Pierson, 12t°' Dist. Clermont No. CA2013-03-023, 2014-Ohio-567, at
116; ABN AMR® Mtge. Group, Inc. v. Evans, 8th Dist. Cuyahoga No.
90499, 2008-Ohio- 4223, at 119.
Here, the Dolans filed their third amended complaint to make
sure that all of their theories of recovery were properly before
the court. There being no apparent prejudice to the Glouster
parties, we find no merit to their third assignment of error and
it is hereby overruled.
D. Fourth Assi ent of Error
A resolution of the fourth assignment of error requires an
additional factual recitation." On July 10, 2006, the trial
court entered judgment on the pleadings for Funk and Taylor.
This left Angle as the only Glouster party in the proceeding.
The court's reasoning, in a nutshell, is that although the
complaint alleged that Angle is liable in his personal capacity,
there were no allegations to show the same was true for either
Funk or Taylor.
The exceedingly convoluted procedural posture of this case
"The Dolans do not appear to address this assignment of
error in their "answer brief."
i . . .
ATHENS, 11CA18® 11CA19, 11CA33, 12CA1 & 12CAG 32
eventually led an understandably exasperated trial court to issue
the September.l, 2009 order and ask counsel for both a factual
and legal clarification as to whether Funk and Taylor were still
parties insofar as potential (personal) liability for tortious
interference with a business relationship. Not unexpectedly, the
Dolans' memorandum answered this question affirmatively, whereas
the Glouster pa.rties" memorandum answered in the negative.
It does not appear that the trial court filed an entry in
response to the questions that it posed in its own entry.
However, the Dolans' filed an amended complaint the following
month that set out new allegations that Funk.and Taylor also
acted in their personal capaciti:es in this case. As mentioned
above, while the amended complaint was initially struck, it was
later reinstated and the parties proceeded to trial against Funk
and Taylor as much as Angle. The Glouster parties argue this is
error and that the only way the Dolans could proceed against Funk
and Taylor at trial is to have successfully appealed the July 10,
2006 judgment on the pleadings in their favor. We disagree.
First, even if we assume, arguendo, that the trial court
erred by allowing the trial to go forward against both Funk and
Taylor, we have found no objection in the transcript on the first
day of trial. Any error that could have been raised, but was
not, at a time when it could have been corrected is deemed waived
for purposes of appellate review. See Portsmouth v. Wrage, 4th
o ° •
ATHENS 11CA18 11CA19 , 11CA33 , 12CAI & 12CA6 33
Dist.- Scioto No. 08CA3237, 2009-Ohio-3390, at 5[26; Maynard v.
Norfolk S. Railway, 4t'' Dist. Scioto No. 08CA3267, 2009-Ohio-
3143, at 113.
The Glouster parties also fail to cite anything in the
original papers in which they objected to the trial proceeding
against Funk and Taylor and we have found nothing to that effect
in our own search. Hence, any arguable error has been waived.
Second, the Glouster parties have not persuaded us that any
error exists here in the first place. The July 10, 2006 judgment
on the pleadings neither determined the entire action, nor did it
contain a Civ.R. 54(B) finding of "no just reason for delay."
That judgmeait is in,terlocutory. This means not only that the
Dolans would have been Drohibited from an appeal, the judgment
could also have been changed any time prior to entry of an order
that was final and appealable. McClure v. Davis, 186 Ohio App.3d
25, 2010-®hio®409, 926 N.E.2d 333, at 1119 (4t'' Dis.); also see
Zions First 1Vat.1. Bank v. Shiva Hospitality, Inc., 311 Dist.
Wyandot No. 16- 12-12, 2013-®hio-5666, at 120; Littleton v.
Holmes Siding Contr., 10g' Dist. Franklin No. 13AP-138, 2013-
Ohio-5602, at 46. Although the better practice might have been
to enter judgment that formally re-introduced Funk and Taylor as
parties to the action, the trial court clearly reconsidered (and
then reversed) its prior decision to dismiss them from the
proceedings. This is well within its authority to control the
,
e <,
ATHENS iiCAl8 . i1^A19 11CA.33 12CAi & 12CA6
proceedings and we will not reverse the decision simply because
34
it was made sub silento and unopposed by those whom the decision
affected m We also again reiterate the principle that cases
should be decided on their merits when possible, rather than on
procedural issues. This is particularly true in case s such as
this when the procedural history is extremely convol.uted,
Accordingly, for these reasons, we find no merit to the
fourth assignment of error and it is hereby caverrul.edm
E. ^^fth.^signment of Error
The Glouster parties argue in their fifth assignment of
error that the trial court erred by permitting the Dolans to
testify as to their lost business profits without presenting a
specific "mathematical formula" by which to arrive at those
profits, or "sufficient proof" to establish them.
Our analysis begins with an acknowledgment of the precise
wording of the assignment of error. Although the phrase
a9suffic.ient proof" is included in the text of the assigned
error, the text itself is couched in terms of the trial court's
alleged error in actually allowing the testimony. Therefore, our
concern is not whether insufficient evidence exists to support
the jury verdict, but rather whether the trial court erred by
allowing the testimony of the Dolans concerning their lost
profits. This distinction is important for several reasons, not
ATHENS, 11CA18, 11CA13. 11CA33. 12CA1 & 12CA6 35
the least of which is that in five of the examples the Glouster
parties cited in their brief, the testimony to which they object
was actually elicited by their attorney, either on cross or re-
cross examination. Thus, even if arguably the testimony should
have been excluded, under the invited error doctrine parties
cannot take advantage of errors that they invite or induce the
trial court to make. See Fifth Third Mtge. ®Co. v.• Rankin, 4Eh
Dist. Pickaway No. 11CA18, 2012-Ohio-2804, at 116; Daugherty v.
Daugherty, 4t'' Dist. Hocking No. 11CA18, 2012-®hio-1520, at 9I18®
Lowe v. Lowe, 4t" Dist. Pickaway No. 10CA30, 2011-Ohio-3340, at
'439.17
Of the remaining instances the Glouster parties cite in
their brief, we find no objection in the trial transcript and,
thus, it cannot be used as a predicate for assignment of error.
Evid.R. 103(A)(1). The gist of their objections to the two
remaining instances is that the Dolans were insufficiently
" Even if we did consider this assignment of error as achallenge to the sufficiency of the evidence, in a civil case achallenge to the "sufficiency of the evidence" merges into achallenge that a verdict is against the "manifest weight of theevidence." Thompson v. Allen, 2°d Dist. Montgomery No. 23292,2010-®hi.d-1133, at 18; Wolfe v. Walsh, 2i° Dist. Montgomery No.21653, 2008-Ohzo-185 at 418. We have also held that in civilcases we will not reverse a jury verdict as against the manifestweight of the evidence if supported by some competent andcredible evidence. See Salmons v. Jones, 4ti'' Dist. Lawrence No.13CA11, 2013-®hio-- 5417, at I11. Even if we considered thisassignment of error in the context of challenging the weight ofthe evidence that the Dolans introduced below, we would find nomerit to the arguments the Glouster parties advanceci.
I ® ,,
A'FHENSX11CA18, 11CA19, 11GA33 12CA1 & 120A6 36
specific in testifying about revenue from each tow. David Dolan
testified that each tow is worth between $150 to $300. Jennifer
Dolan testified that each tow is ®"no less than a [sic] $100.00
and it could be $250/$300.00."
Both at the trial level and here on appeal, the Glouster
parties cite Brookeside Ambulance, Inc. v. Walker Ambulance
Serv., 112 Ohio App.3d 150, 158, 678 iV.E.2d 248 (6th Dist. 1996)
for the proposition that lost profits must be "proven to a
reasonable certainty." Id. They argue that the estimated range
of revenues from the Dolans° tows are anything but ""reasonable
certainty" and, therefore, the trial court erred by overruling
their-objections. We disagree.
A determination of whether a lost profits calculation is too
speculative lies within the trial court's discretion and its
determination will not be reversed absent an abuse of that
discretion. See Illinois Controls, Inc. v. Langham, 70 Ohio
St.3d 512, 526, 639 N.E.2d 771 (1994). As we noted earlier, to
find that the trial court abused its discretion by allowing the
Dolans to testify, we must find its decision so palpably and
grossly violative of fact or logic that it evidences not the
exercise of will, but perversity of will; not the exercise of
judgment, but defiance of judgment; not the exercise of rbason,
but, instead, passion or bias. Vaught, supra at 2003-Oh.lo-2181,
113; Nakoff, supra, 75 Ohio St.3d at 256. We do not find those
ATHENSx--11CA18 , l I0A19 11CA33 A12CAI & 120A6 37
factors present in the case sub judice.
Our understanding of the testimony is that when the Dolans
spoke of the revenue they received from each tow, they combined
at least two separate components: (1) the amount charged solely
for the tow itself;is and (2) storage fees for impoundment of the
vehicle on their lot. All tows, as the Dolans testified, are
different. David Dolan explained that most of the time, vehicles
are impounded one to five days. However, on some occasions they
would store a vehicle for a month, and had even stored vehicles
for eighteen months.
We emphasize that the Brookeside Ambulance court stated only
that evidence of lost profits must be "reasonably accurate."
Reasonable accuracy is not the same as "mathematical" accuracy or
certainty, thus we reject the claims of the Glouster parties that
the Dolans should have produced some kind of formula to prove
lost profits. Given the nature of their business, and that the
amount of revenue from each tow could vary widely based on the
number of days of impoundment, the trial court apparently
concluded that the evidence was reasonable under the
circumstances and we find no abuse of discretion in that
determination. In short, the $100 to $150 is as "reasonably
accurate" as the facts and circumstances in this case will allow.
'a Dav.id Dolan testified that the "[b] ase rate tow" was $40to $50.
I a ° s
ATHSNS, 11CA18® 11CA19, 11CA33, 12CA1 & 12CA6 38
Requiring a precise "mathematical formula," as the Glouster
parties advocate, simply is not be possible under these
circumstances. Thus, we conclude that the trial court did not
abuse its discretion by allowing this testimony to come into
evidence.
Accordingly, the fifth assignment of error is hereby
overruled.
F. Sixth Assi ent of Error
The Glouster parties argue in their sixth assignment of
error that the trial cocirt erred by allowing the issue of
punitive damages to go to°the jury. We decline to address this
argument.
As noted above, the trial court's June 8, 2011 judgment
granted the Glouster parties® post-trial motion for new trial and
vacated the punitive damages award. Therefore, the Glouster
parties no longer suffer any ill-effect from the trial court's
decision to give this issue to the jury. Moreover, appellate
courts, do not issue advisory opinions when a case or controversy
no longer exists. McClead v. McClead, 4t" Dist. Washington No.
06CA67, 2007-Ohio-4624, at 112; State v. Hardesty, 4th Dist.
Pickaway No. 06CA1, 2006-Ohio-5272, at 1110! State v. Davis, 4th
Dist. Washington No. 05CA50 at 117, 2006-Ohio-3549, fn. 6.
Because a new trial has been granted on the issue of punitive
. < ,
ATHENS , 11CA18. 11CA19a 11CA334 12CA1 & 12CA6. 39
damages, and in view of the fact that the Glouster parties are
the beneficiar.ie-s of that decision, no reason exists to address
their question of whether sufficient evidence was adduced to send
this particular issue to the jury.
Thus, based on the foregoing reasons, the sixth assignment
of error is hereby overruled.
G. Seventh Assignment of Error
The Glouster parties argue in their seventh assignment of
etror that the trial court erred by not granting their September
8, 2011 motion for new trial on all issues in this case. The
trial court denied their motion solely on grounds that "[b]oth
parties have appealed the Court's decision granting a new trial.•,
The Glouster parties argue that this is error. We affirm the
trial court's decision, albeit for reasons different than those
set out in the trial court®s 2011 entry.
The trial court is correct, as an abstract proposition of
the law, that "once an appeal is perfected, the trial court is
divested of jurisdiction over matters that are inconsistent with
the reviewing court's jurisdiction to reverse, modify, or affirm
the judgment." See State ex rel. Sullivan v. Ramsey, 124 Ohio
St.3d 355, 2010-Ohio 252® 922 N.E.2d 214, at 117. However, as we
discussed in relation to the jurisdictional issues in this case,
no final, appealable order existed in the case sub judice until
i ° •^
ATHENS, 11CA16, 11CA19, 1ICFy33, 12CA1 & 12CA6 40
the January 20, 2012 entry that awa:rded attorney fees. Thus, as
of September 29, 2011 when the trial court overruled the Glouster
parties' motion for new trial on all the i ssues, the trial court
retained jurisdiction to consider the Glouster parties' motion
and, technically, erred by denying the motion without a review on
the merits.
Yet, although couched in terms of a motion for new trial on
all issues, the Glouster parties also conceded that their motion
is in the nature of one for reconsideration of the previous
ruling that only granted a new trial insofar as damages are
ccincerned. The trial court had already denied their request'for
new trial on all issues and there is little reason to think the
court would have changed its view had it considered the substance
of the arguments advanced in this new motion.
Finally, at least in light of the arguments that the
Glouster parties advance in their brief, we find no merit to
their second new trial motion. First, the argument that the
finding that punitive and emotional distress damages are the
product of "passion and prejudice" necessarily required the trial
court to also find that every other component of compensatory
damages (as well as a finding of liability itself) is equally the
result of "passion and prejudice." The Glouster parties cite no
authority of law to support that argument, however, and we find
none in our research.
f • •p
ATHENS. 11CA18, 11CA19, 11CA33, 12CAl & 12CA6 41
"[T]he nature of punitive damages is different from that of
, compensatory damages." See Channell v. N.C.R. Emp. Ind. Union, 28
Ohio App.2d 260, 263, 277 N.E.2d 85 (2nd Dist. 1971). Punitive
damages are intended to punish and deter behavior such as that
exhibited by the party against which it was imposed. Telle v.
Pasley, 5th Dist. Delaware No. 12CAE080048, 2013-Chio-2907, at
164: Stephens v. Grange Mut. Ins. Co., 2°d Dist. Clark No. 2011
CA 102, 2012-0hio-4980, at 128; Tinney v. T.zte, 6t'' Dist. Huron
No, H-11-006, 2012--0hio-2347, at 119. Similarly, damages for
emotional distress are intended to compensate for "[a] highly
unpleasant mental reaction (such as anguish, grief, fright,
humiliation, or fury) that results-from another,person's
conduct [.)" G.ranger 'v. Auto Owners Ins., gth Dist. Summit No.
26473, 2013--tJhio-2792, at 114.
Suffice it to say that punitive damages and compensatory
damages for emotional distress cover very different, and far more
amorphous, injuries than damages for lost profits. Lost profits
can usually be determined with at least some degree of precision,
whereas punitive damages and compensation for emotional distress
are less precise. Thus, the Glouster parties have not persuaded
us the trial court's decision to grant a new trial on one part of
the damage award is logically indicative that it should have
granted a new trial on either (1) liability, or (2) all other
forms of damages in the case sub judice. We further note that in
ATHENS9 11CA18r IICA194 11CA33, .12CA1 & 12CA.6 42
our prior resolution of the Glouster parties' first and fifth
assi.gnMents of error, we found sufficient evidence to support the
jury verdicts as to liability and damages for lost profits.
Therefore, the Glouster parties have not persuaded us that the
jury was somehow motivated by passion or bias on these particular
issues.
The Glouster parties also cite the Taylor verdict for
tortiously interfering with the Dolans' business relationship
with Athens County, and on which the trial court later granted
JNOV, as further proof that the jury was swayed by "passion and
prejudice." We are not persuaded. First, carried to its.logi.cal
conclusion the Glou8ter-par^ies® ara^ument would mean that anytime
JNOV is granted on one issue in a case it must also be granted on
every other issue in the case. We disagree with that view.
More important, a good reason existed for granting JNOV for
Taylor on a claim of tortious interference with business
relations in Athens County, but not granting it for the same tort
with regard to Glouster. The jury concluded that Taylor
interfered with the business relationships that the Dolans had
with both governing bodies. However, they may not have
understood the hierarchical relations in this case. Taylor held
authority over the police officers in Glouster, but he did not
have the same authority over Athens County employees. This is a
distinction that the jury did not make and the trial court
I ° -
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 43
correctly granted JNOV when no evidence was adduced that he had
such authority. A trier of fact's failure to discern that
distinction should not result in the conclusion that every other
finding that it made is erroneous. Had there been evidence that
Taylor had any influence or authority over Athens County
officials, the result may well have been otherwise.
In any event, we do not believe that the trial court's
granting of the prior, partial motion for new trial necessitated
granting the second motion for new trial (or the motion for
reconsideration).
Accordingly, for these reasons, the seventh assignment of
error is' w.ithou.t..meri.t and is hereb.y..overruled-..
H. Eighth Assi emt of Error
In their eighth assignment of error, the Glouster parties
argue that several statutes of limitations bar the Dolans'
claims. First, they cite the two year statute of R.C.
2744.04(A)gg for bringing an action against a political
subdivision and argue that this same statute applies to employees
$9 R.C. 2744.04(A) states, in pertinent part, `°[a]n actionagainst a political subdivision to recover damages for injury,death, or loss to person or property allegedly caused by any actor omission in connection with a governmental or proprietaryfunction, whether brought as an original action, cross-claim,counterclaim, third-party claim, or claim for subrogation, shallbe brought within two years after the cause of action accrues[.]"
B ° [
ATHENS 11CA18,-11CA19. 11CA33, 12CA1 & 12CA6 44
of that subdivision as well.20 Then, to pinpoint when the
Dolans' claim accrued, they.cite David Dolan's testimony that
Angle allegedly stated February 3, 2003 that he would make sure
the Dolan's business would go "to hell" if they did not reduce
the tow fees. Taking the date of the Angle comment as the
starting point, the Glouster parties contend that the Dolans had
to file their complaint no later than February 3, 2005. Because
the complaint was filed on March 31, 2005, the Glouster parties
conclude that the statute of limitations had run. We reject this
argument for several reasons.
Our analysis begins with the well-settled principle that the
assertion that a claim is-barred by the operation of a statute of
limitation is an affirmative defense. Civ.R. 8(C): also see
Johnson v. Waterloo Coal Co., 184 Ohio App.3d 607, 2009-Ohio-
5318, 921 N.E.2d 1099, at 44 (4t' Dist.). The burden to prove
that affirmative defense lies with the party who asserts it. See
20 The Glouster parties cite Read v. Fairview Park, 146 Ohio
App.3d 15, 764 N.E.2d 1079 (2001), for the proposition that thisstatute applies to employees of a subdivision. As a preliminarymatter, we note that the Ohio Supreme Court does not appear tohave ruled on that proposition and the Read case is binding onlyin the Eighth district. This district addressed the questiononce, and declined to answer it given that it was not properly
raised in the trial court. See Strahler v. Roby, 4th Dist.
Washington No. 90CA25, 1992 W1, 21227 (Jan. 27, 1992). There hasbeen some expression of doubt in at least one other district as
to whether it applies. See Davis v. Clark Cty. Bd. of Comrnrs.,
994 N.E.2d 905, 2013-®hio- 2758 at 9[9[32-38 (2"d Dist.) (Froelich,J. Concurring in part, and dissenting in part). Nevertheless, for
purposes of our analysis here, we will assume that Read does
apply.
a a .
ATHENS, 11CA18. 11CA19, 11CA33, 12CA1 & 12CA6 45
Feller, L.L.C. v. Wagner, 10t1 Dist. Franklin No. 11AP-759, 2012-
Ohio-5972, at -Q34; Erie Cty. Sheriff v.. Dalton, 6th Dist. Erie
No. E-10-073, 2011-Ohio-5033, at 9I7; also see State v. Carter,
4th Dist. Ross No. 10CA3169, 2010-Ohio-6316, at 158 (applying the
principle in context of a criminal case). For the following
reasons, we conclude that the Glouster parties have not proven
that the statute of limitation(s) had run.
Even if the jury may have accepted Dolan's testimony as
true, we are not persuaded that this established an accrual date
for the Dolans® claims. The testimony of David Dolan, to which
the Glouster parties cite, stated that Angle had told them that
he would make Dolans' business go "to hell" if he did not reduce
the fee. Even if one accepts this statement as true, it is not
the same as Angle setting out and taking action to ruin their
business at that very moment. This situation is not the same as
a hit-and-run or a slip-and-fall on a snow covered step that can
be ascertained with pin-point accuracy. The Dolans' are claiming
a tortious interference with business interests and the argument
they advance in their brief alleges such interference occurred on
February 3, 2003. However, the actual interference with the
Dolans' business relationship (which was based on Angle, Funk and
Taylor allegedly instructing Glouster police not to use them for
towing) could have happened days, weeks or months later. In view
of the fact that the Dolans filed their complaint less than two
a ® g
ATHENS,_1.1CA1.8, 1ICA19, 11CA33. 12CA1 & 12CA6 46
months after the Glouster parties argue that the statute had run,
and considering that we have no precise date on which the
intentional tort (rather than the Angle comment) occurred, the
Glouster parties have not persuaded us that they carried their
burden of proof on this issue.
Our ruling on this point is once again buttressed by the
Ohio Supreme Court's admonition that cases should generally be
decided on their merits when possible. See e.g. Whitley v.
River's Bend Health Care, 126 Ohio St.3d 1217, 2010-Ohio-3269,
931 N.E.2d 583, at 115; Internl. Periodical Distrib. v. Bizmart,
Inc., 95 Ohio St.3d 452, 2002-Ohio-2488, 768 N.E.2d 1167, at 17.
Here, wefind'no evidence as to the actual date on which the
action accrued. Thus, it is not clear that the R.C. 2744.04(A)
two year time period had run.
The Glouster parties also maintain that to allow the actions
to be maintained against them violated the R.C. 2305.09(D) four
year statute of limitations.21 Suffice it to say, however, if we
cannot find that the claim violated a two year statute of
limitations, we cannot find they have violated a four year
period.
Therefore, based upon the foregoing reasons the eighth
assignment of error is without merit and is hereby overruled.
21 This is a four year limitations period for injuries thatdo not arise out of "contract nor enumerated in sections 1304.35,2305.10 to 2305.12, and 2305.14 of the Revised Code."
t - ,
ATHENS, 11CA1$, 1ICA19 11CA33, 12CA1 & 12CA6 47
1. Ninth Assi,gimerxt of Error
The Glouster parties argue in their ninth assignment of
error that the trial court erred, presumably in ruling on the
motion for directed verdict, by not finding them immune from any
civil liability in their individual capacities. In support of
their argument, they cite R.C. 2744.03 that states, inter alia,
as follows:
ea(A) In a civil action brought against a politicalsubdivision or an employee of a political subdivisionto recover damages for injury, death, or loss to personor property allegedly caused by any act or omission inconnection with a governmental or proprietary function,the following defenses or immunities may be asserted toestablish nonliability:
(6) In addition to any immunity or defense referred toin division (A)(7) of this section and in circumstancesnot covered by that division or sections 3314.07 and3746.24 of the Revised Code, the employee is immunefrom liability unless one of the following applies:
(a) The employee's acts or omissions were manifestlyoutside the scope of the employee's employment orofficial responsibilities;" ( Emphasis added.)
The determinative issue is whether the tortious interference
with the Dolans' business relationship with Glouster falls
outside the Glouster parties' scope of employment. We conclude
that it does. Generally speaking, Ohio law provides that
intentional torts fall outside of the scope of employment. See
Kravetz v. Streetsboro Bd. of Edn., 11t" Dist. Portage No.
2011-P-0025, 2012-Ohio-1455 at 135 (employer's torts against an
^
ATHENS , 11CA10 11CA19 , 11CA33 12CA1 & 12CA6 48
employee); Grassia v. Cleveland, Cuyahoga No. 93647, 2010-Ohio-
2483, at 523; Engleman v. Cincinnati Bd. of Educ., lst Dist.
Hamilton Na. C-000597, 2001 WL 705575 (Jun. 22, 2001). In Ohio,
tortious a.nterferesaee with business relations is deemed an
intentional tort. See e.g. Schafer v. RMS Realty, 138 Ohio
App.3d 244, 302, 741 N.E,2d 155 (2"d Dist. 2000); Sawyer v.
Devore, Cuyahoga iJo. 65306, 1994 WL 614978 (8th Dist. Nov. 3,
1994).
Accordingly, in light of the fact that the jury found an
intentional interference with the business relationship between
the Dolans and Glouster, that tort,- virtually by definition, is
outside the scope of the Glouster parties Y employment and cannot
be used as a defense.
Thus, we find no merit to the Glouster parties' ninth
assignment of error and it is hereby overruled.
Having reviewed those errors assigned and argued by the
Glouster parties, we now turn to the Dolans and their cross-
assignments of error.
Ill. THE DOLANS' CROSS-ASSIGNMENTS OF ERROR
AA. First & Second Cross®Assi en°^s of Error
We jointly consider the first and second oross-assa.gnments
of error because both assert that the trial court erred by
granting a new trial to the Glouster parties, insofar as
ATHENS^ 11CA18. 11CA19, 11CA33 12CA1 & 12CA6 49
compensatory damages for emotional distress and for punitive
damages. The damages that had been awarded for those issues, and
that the trial court subsequently vacated with its Civ.R. 59
ruling, was $230,000 for emotional distress against all three
Glouster parties, and $500,000 in punitive damages against all
three. In granting a new trial on these two issues, the court
noted that damages for emotional distress were "3.5 times that of
the award for lost profits" and for punitive damages was "7.7
times that of the total award for lost profits." The trial court
further opined, at least with regard to the emotional distress
award, that "[t)he jury may have punished the Defendants because
the officers did not give logxcal.reasons for not calling [the
Dolans] for a tow."
The trial court then concluded that these damages "were
excessive and.appear[ed] to have been given under the influence
of passion and bias" and were "not sustained by the weight of the
evidence and (were] contrary to law." The. Dolans argue this was
error.
Civ.R. 59(A) states, in pertinent part:
"A new trial may be granted to all or any of theparties and on all or part of the issues upon any ofthe following grounds:
* * *
(4) Excessive or inadequate damages, appearing to havebeen given under the influence of passion or prejudice;
* * *
ATHENS, 11CA18, 11CA19, 11CA33 12CAl & 12CA6 -50
(6) The judgment is not sustained by the weight of theevidence; however, only one new trial may be granted onthe weight of the evidence in the same case;
(7) The judgment is contrary to law;"
Although the text of the trial court's June 8, 2011 judgment on
the post-trial motions makes clear that the Glouster parties®
motion for new trial was granted on the basis of Civ.R.
59(A)(4)(6)&(7), we need not consider whether the ruling was
correct under all of those three subsections. Rather, we need
only consider whether the ruling is sustainable under any one.
Thus, we confine our review to Civ.R. 59(A)(4).
A decision to grant a new trial under Civ.R. 59(A)(4) lies
in a trial court's-sound discretion and will not be reversed
absent an abuse of that discretion.22 This again requires us, as
we have often mentioned herein, to f-ind tha-t the court's•decision
was so grossly violative of fact or logic that it evidenced not
the exercise of will, but perversity of will; not the exercise of
judgment, but the defiance of judgment; and not the exercise of
reason, but, instead, passion or bias. Vaught, supra at 113®
22 We hasten to add that an abuse of discretion standard ofreview does not apply to a decision under every Civ.R. 59subsection. The Ohio Supreme Court has held that it only appliesto those subsections where the decision to grant a new trial isdiscretionary. Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d139, 2007-Ohio-5587, 876 N.E.2d 1201, at 135. Granting of amotion for new trial because a judgment is contrary to law underCiv.R. 59(A) (7), for example, presents a question of law that wewould review de novo. Ball v. Stark, 10th Dist. Franklin No.11AP-177, 2013-Ohio-106, at 115; Lewis v. Nease, 4th Dist. SciotoNo. 05CA3025, 2006-Ohio-4362, at 176.
o . .
R
ATHENS, 11CA18> 11CA19 11CA33® 12CA1 & 12CA6 51
Nakoff, supra at 256. We further note that reviewing courts
should view the evidence most favorably to a trial court's
decision. Hacker v. Roddy, 31 Dist. Hancock No. 5-13-13, 2013-
Ohio-5085, at 128; Rieman v. Congemi, 8th Dist. Cuyahoga Noo
83187, 2004- Ohio-1269, 9[6. The basis for the rule springs, in
part, from the principle that a trial judge's discretion to grant
a new trial may be supported by the judge having determined from
the surrounding circumstances and atmosphere of the trial itself
that the jury's verdict resulted in a manifest injustice. Id. We
again are also mindful of the fact that, in reviewing for an
abuse of discretion, we•should not simply substitute our- own-
judgment for that of the trial court. Buckmaster v,. Buckmaster,
4th Dist. Highland No. 13A13, 2014-Ohio-793, at 1121; Dunford v.
Dunford, 4th 'Dist. Gallia No. 13CA7, 2014-Ohio-617, at ill0 °
Enyart v. Taylor, 4t'' Dist. Lawrence No. 13CA2, 2013-Ohio-4893,
at 127.
Although the trial court discussed these two issues over two
pages of its twenty-one page decision, we recognize that the
Glouster parties also challenged that the amount of damages
awarded in various other post-trial motions and considered by the
trial court in those contexts as well. Thus, it is difficult for
us to conclude the court acted arbitrarily or out of "passion or
bias. ®,
e d. ^
^
ATI^ENS. 31CA18, 11CA1 9B 11CA33, 12CA1 & 12^A6 52
The Dolans' arguments tend to primarily focus on the trial
court's remarks about the size of emotional distress damages and
punitive damages relative to the amount of damages for lost
pr^fits. They cite a number of cases for the proposition that a
disparity between these figures, standing alone, constitutes an
insufficient reason to vacate the awards and to grant a new trial
on punitive damages and emotional distress damages® Although we
readily agree with the Dolans as an abstract proposition of law,
their argument neglects to mention that the trial court also
opined that the jury may have been swayed to award these large
(non-fi^anclaY)- damages because defendants did not give adequate
exp.lanatiod*for falll,n'g to call the Dolans for t'ow sersrice ,s after
the Chalfant incident, and that the Glouster parties in their
motion for new trial cited to testimony elicited from the Dolans
about all the financial hardships they allegedly suffered as a
result of this incident. David Dolan testified at one point
that, as a result of what had happened in Glouster, he and his
family lost their Morgan County home due to foreclosure.
Although the trial court sustained an objection to this question,
and gave a limiting instruction to the jury to disregard it, we
emphasize that unlike the trial court judge, we were not present
in the court room to observe how the jurors reacted to the
testi.msanyo The trial judge was present and we should defer to
the court's judgment as to how the jury reacted to this and the
o .. ®
0
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6. 53
Dolans' other potentially inflammatory economic evidence®
In the end, as we stated above, we find no abuse of
discretion in sustaining the Glouster parties' Civ.R. 59 motion
for new trial on emotional distress damages and punitive damages.
Accordingly, the first and second cross-assignments of error are
without merit and are hereby overruled.
BB. Third Cross-Assignment of Error
The Dolans' third cross-assignment of error goes to the
trial court's determination to grant the Glouster parties partial
JNOV on their motion. Specifically, although the trial court
denied the motion insofar as the jury's determination that the
Glouster parties tortiously interfered with the business
relationship that - the --Dolans had wi:th- the -caty of- -Glouster
itself, the Dolans posit that the court erred by granting JNOV
for Taylor insofar as their claims that he interfered with the
(tow) business relationship the Dolans had with Athens County.
We disagree.
JNOV, as we noted earlier, presents a question of law that
we review de novo. Portsmouth Ins. Agency v. Med. Mut. of Ohio,
4 th Dist. Scioto No. 10CA3405, 2012-Ohio- 2046, at 9I79® Magnum
Steel & Trading, L.L.C. v. Mink, 9t'' Dist. Summit Nos. 26127 &
26231, 2013-Ohio-2431, at 141. In a de novo review, we afford no
deference whatsoever to the trial court's decision and will
e .. s
C
ATHENS 11CA18 11CA19 -1J:CA33 12CA1 & 12CA6 - 54
conduct our own, independent review to assure that the court's
decision is legally correct.. See e.g. Clark v. Butler, 4th Dist.
Ross No. 12CA3315, 2012-Ohio-5618, at 19® PNC Bank v. Dunlap, 4th
Dist. Ross No. 11CA3282, 2012-Ohio-2917, at 18.
In its June 8, 2011 judgment on the post-trial motions, the
trial court entered JNOV for Taylor with regard to the claim that
he tortiously interfered with the Dolans' business relationship
with Athens County. The court opined that "Chief Roger Taylor
does not supervise either [Robert Bentley, chief of operations
for Athens County 911 emergency communicationsJ or [any other]
911 personnel" in Athens County. We agree with the trial court's
reasoning on this point.
As noted earlier, in reviewing the Glouster parties'
argument- th-at - the---fa-ilure-- to grant....complete--JNCV- on--the -claims..--
against them constitutes error, we find no direct evidence that
the Glouster parties instructed any of the police officers in
G'louster to stop using the Dolans for tow services. The jury's
verdict on this point is based on ci.rcumstarrtia.l evidence, and
that evidence is sufficient to suppcsrt a judgment in a civil
case.
However, the claims against Taylor insofar as Athens County
are concerned are much different. Taylor, as the Glouster Chief,
of Police, had supervisory authority over the officers under his
command. As the trial court aptly noted, he had no jurisdiction
s .-s
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 . 55
or control over Athens County officials. The trier of fact could
reasonably conclude, from the hierarchy of the City of Glouster,
that the elimination of tows extended to the Dolans resulted from
the officers being told by Angle, Funk and/or Taylor not to use
them because the Glouster parties occupied positions of authority
over city police. However, they had no similar position of
authority over Athens County officials.
Absent that position of authority, the Dolans needed to
produce evidence to show that Taylor influenced Athens County
officials. They have cited to us nothing in the transcripts that
are persuasive on this issue and we have found no such evidence
in our own review.
Accordingly, we find no merit to the third cross assignment
----------------- - -------of- by--r^rer^-^:e-de --
CC. Fourth Cross-Assi ent of Error
In their fourth cross-assignment of error, The Dolans assert
that the trial court erred by calculating the amount of attorney
fees that it awarded to them. Specifically, they posit that the
trial court failed to account for the "Lodestar" principle of
B.zttner v. Tri-County Toyota, 58 Ohio St.3d 143,569 N.E.2d 464
(1991) and to award them only $95,553.33 in fees when they
requested $173,922.50. We find no merit to this contention.
------------------------------ -
• ..^
ATHENS, 11CA18, 11CA19, 11CA33, 12CA1 & 12CA6 56
With respect to attorney fees, Ohio adheres to the ®`American
Rule" that holds that a prevailing party in a civil action cannot
recover attorney fees absent a statute that expressly authorizes
such recovery, or some other legal authority that expressly
authorizes such recovery. State ex rel. Varnau v. Wenninger, 131
Ohio St.3d 169, 2012- Ohio-224, 962 N.E.2d 790, at 123s also see
e.g. Corbin v. Kelly Plating Co., 187 Ohio App.3d 129,
2010-Ohio-1760, 931 N.E.2d 204 (8th Dist). Exceptions to this
general rule must be narrowly construed. See In re Estate of
Fugate, 86 Ohio App.3d 293, 298, 620 N.E.2d 966 (4t'' Dist. Feb.
11, 1993); In re Keller, 65 Ohio App.3d 650, 656, 584 N.E.2d 1312
(8t°' Dist. Dec. 18, 1989).
One exception to that general rule is that when punitive
^----. --^^-;----^^^^^^^ ----^t^a^h-^^r---f-^pQy -- 156 --------------^e-e Colurobus
Finance, Inc. v. Howard, 42 Ohio St.2d 178, 183, 327 N.E.2d 654
(1975) ; also see Lowery v. Rizer, 4t'' Dist. Hocking No. 96CA11,
1996 WL 665015 (Nov. 12, 1996). Here, although the trial court
vacated the punitive damages award, this does not affect the
attorney fee award per se as the trial court did not rule that
punitive damages were not warranted, but only that the Glouster
parties would be granted a new trial on the issue.
Generally, the amount of an attorney fee award lies in a
trial court's sound discretion and its determination will not be
reversed absent an abuse of that discretion. Semco, Inc. v. Sims
I * ^: •
ATHENS, 11CA18, 11CA19, 11CA33 12CA1 & 12CA6 57
Bros., Inc., 311 Dist. Marion No. 9-12-62, 2013-Ohio-4109, at
140; Lamar Advantage GP Co. v. Patel, .12g' Dist. Warren No.
CA2011-10-105, 2012®Chio-3319, at T43; Friend v. Elsea, Inc., 4t''
Dist. Pickaway App. No. 98CA29, 2000 WL 1468499 (Sep. 26, 2000).
In reviewing the court's exercise of discretion, °`[u]nless the
amount of fees determined is so high or so low as to shock the
conscience, an appellate court will not interfere. The trial
judge which participated not only in the trial but also in many
of the preliminary proceedings leading up to the trial has an
infinitelv better opportun.ity to determine the value of services
rendered bv lawyers who have. tried a case before him than does an
apDellate court." (Emphasis added.) Cyrus v. Journey, 4t'' Dist.
Scioto No. 94CA2213, 1994 WL 675519 (Nov. 30, 1994); Cremeans v,"
^;^''Dzst. oss No. 9 ^A252^® "----2^0WL 781215 (Jun. 12,
2000).
In the case sub judice, the trial court held a hearing on
this issue and both sides adduced considerable evidence. Later,
the trial court issued two separate decisions that considered the
amount of fees to award. The first, on December 15, 2011,
ordered the Dolans submit a revised bill. The second, on January
20, 2012, included the trial court's final attorney fee award.
The considered judgments in both of those entries suggests
anything but an. arbitrary or unconscionable decision on the
issue. Of course, the primary argument that the Dolans advanced
r•
G ^r9
/
ATHRNS, 11CA18, 11CA19. 11CA33 12CA1 & 1CA6 58
in support of this cross-assignment of error is not that the
trial court abused its discretion, but rather that it failed to
comply with the "Lodestar" concept in Bittner. As this Court has
previously noted, however, B.ittxaer must be considered in light of
the context within which it was decided. See Brookover v. Flexmag
Industries, Inc., 4" Dist. Washington No. 00CA-49, 2002-®hio-
2404, at 1226, fn. 26. That context is attorney fees awarded
und^r R.C. Chapter 1345, Ohio's Consumer Sales Practices Act. See
58 Ohio St.3d 143 & syllabus. This legislation involves consumer
sales transactions that are defined by statute as follows:
"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 anindividual for purposes that are primarily personal,family, or household, or solicitation to supply any ofthese things. . ." R..C. 1345.01(A)
Whatever else can be said of the "business relationship" of
the Dolans and the various party defendants named in this action,
it obviously did not involve a consumer transaction. Therefore,
the trial court did not err by failing to apply a principle that .
had no bearing on the proceedings at hand.
Thus, the fourth cross-assignment of error is without merit
and is hereby overruled.
DD. Fifth Cr®ss-assi ent of Error
The Dolans argue in their fifth cross-assignment of error
the trial court erred by denying their motion for pre-judgment
r
Z z ^
^i
ATHENS , 11CA18 11CA19 11CA33 , 12CA1 & 12CA6 59
interest. We disagree.
As we noted various times herein, the Dolans recovered
against the Glouster parties under a theory of tortious
interference with a business relationship. Recovery of
prejudgment interest for such claims are covered under the
provisions R.C. 1343.03 (C)(1) that state in pertinent part:
"If, upon motion of any party to a civil action that isbased on tortious conduct, that has not been settled byagreement of the parties, and in which the court hasrendered a judgment, decree, or order for the paymentof money, the court determines at a hearing heldsubsequent to the verdict of decision in the actionthat the party required to pay the money failed to makea good faith effort to settle the case and that theparty to whom the money is to be paid did not fail tomake a good.faith effort to settle the base, intereston the judgment, decree, or order shall be computed [asfollows]" (Emphasis added.)
Whether a prejudgment interest award is warranted depends
on whether a court finds the existence of a good faith effort to
settle the case. That finding, and the decision to award
prejudgment interest on a tort claim, lies in a trial court's
sound discretion and its decision will not be disturbed absent
an abuse of that discretion. See generally Lewis v. Alfa Laval
Separation, Inc., 128 Ohio App.3d 200, 224, 714 N.E.2d 426 (1998
4th Dist.); Evans v. Dayton Power & Light Co., 4t'' Dist. Adams No.
05CA800, 2006-Ohio-319, at 112; Rothenbusch- Rhodes v. Mason,
lOt' Dist. Franklin No. 02AP- 1028, 2003-Ohio-4698, at 195. In
view of the stringent requirements for demonstrating an abuse of
discretion, as we have outlined several times in this opinion, we
P)
ATHENS 11CA10 11CA19 11CA33 12GAl F. 12GA6 60
are not persuaded that the Dolans have shown it in the case sub
j udice.
In its December 26, 2011 judgment that denied the Dolans'
request for pre-judgment interest, the trial court expressly
found that the "Defendants [meaning the Glouster parties] made a
good faith monetary settlement offer based upon their evaluation
of their case and the high settlement demands of the plaintiffs
[meaning the Dolans]." In so ruling, the court opined that the
Dolans were not particularly reasonable in their attempt to
settle this case. and could have "made a more realistic settlement
demand" as a counter-offer to that made by the Glouster parties.
As is true for all its rulings, the trial court's decision
to deny pre-judgment interest is contained in a lengthy, six page
issue. Even assuming, arguendo, that one or more members of this
Court may have exercised their own discretion differently, we
simply cannot conclude that in the case sub judice the trial
court's reasoned and judicious decision is in any way arbitrary,
unreasonable or unconscionable.
Thus, the fifth cross-assignment of error is without merit
and is hereby overruled.
ATHENS, 11GA18. 11GA19. 11GA33. 12GA1 & 12CA6 61
IV9 Conclusion
Having considered all of the errors and all of the cross-
assignments of error advanced and argued in the briefs, we hereby
affirm the various judgment(s) of the trial court consistent with
this opinion appealed herein by both the Glouster parties and the
Dolans.
JUDGMENT P,FFIRNIED.
^. . ^ •.k` '^
,'®4
ATHENS 11CA18 11CA19 11CA33 12CA1 & 12CA6
JUD NT ENTRY
It is ordered that the judgment be affirmed and that the
parties herein equally divide all costs herein taxed.
The Court fihds there were reasonable grounds for this
appeal and cross-appeal.
62
It is ordered that a special mandate issue out of this Court
directing the Athens County Common Pleas Court to carry this
judgment into execution.
A certified copy of this.entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J., Harsha, J. & McFarlan& Opinion
For the C
BY:"
Pet
J.: Concur in Judgment
B. AbeV, Presiding Judge
oor
BY:
GH. Harsha, Judge
t
BY• m ~
Matthew W. McFarland, Judge
NOTICE TO COUNSEI,
Pursuant to Local Rule No. 14, this document constitutes afinal judgment eritry and the time period for further appealcommences from the date of filing with the clerk.
^^^9 t5 Fronz:ATtiENS 00 Gc)NN0N PLEC) CRT 740 592 3020 0610V201I 18.45 #0l0 P.E01/021
^ z-..+rs^dS ^'^^^^y^ S^V^
^+A. . .. ^' ^^r°•^^ ^^q -^"'^^t
IN THE COURT OF CCMiSC}N PLEAS JUN 0 8 2011
David Dolan, et al.,
Flainti_ff,
vs,
.ATHENS COUNTY, OHIO ^10-F MMMos^ PLEAB 00W^T,
Case No. 05CI100
City of Glouster, C1hio, et al.,
Defendants.
JUDGE MICHAEL WARD
JUDGMENT ^NTRY CN POSTTRIAL N7C.s TI+IS
During the i:ria?,the Cou.rt granted the Defendants'
motion for directed verdict in part -and disi-n.zssed the
complaint against each rerraining Defendan.t in his afficzal
capacity. The jury rendered vekda.cts .in favor of Plaintiffs
David Dolan, Jr., and Jennifer Dolan against thP Defendarits
in their individual capacities for intentional interference
in Plaintiffs' business relationship as follows:
1. Robert David Angle in the sum of $115rOCto.(}0 in
compensatory damages and the sum of ^150, 000. 00 in punitive
damages for a total verdi ct of $265, 000. 00. The
compensatory damages consisted 'of $20r000.00 for lost
profits, $20,000.00 for consaquezitia3_ dartpages, and
$75, 0a0. 00 for emational distress regarding the V.illage of
Glouster.
2. Rolaert Funk in the sum of $115, 0t70. 00 for
h age -1-
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compensatory damages and the suin of $150,000.00 for punitive
damages for a total verdict of $265,000.00. The
compensatory damages consisted of ^20,000.00 for Zost
profits, $20,000.00 for consequential damages, and
$75, 000. 00 for emotional distress regarding the Village of
Glouster.
3, Roger•Taylor in the sum of $210,600.00 in
compensatory damages and the sum of $300, 000. 00 in punitive
damages ior a total verdict of $510,600.00. • The
compensatory damages a.ncluded $25,000.00 for J.ost profits,
$25, 000. 00 for consequential damages, and $80, 000. 00 for
emotional distress regarding the Village of Glouster. The
cornpensatory damages also i.ncludea. $15,600.00 for lost
profits, $25,000.00 f_or consequential damages, and
$40,000.00 for emotional distress regarding Athens County.
The punitive damages included $200, 00(). 00 regarding the
Viltage of Glouster and ^100, 00t}. 00 regarding Athens County.
The jury also awarded attorney fees to the Plaintiff.
Following the verdicts, each Defendant filed a motwon
Lo.r judgment notwithstanding the verd.icts, Also, the
Defendants jointly filed a motion for judgment
notwithstanding the vercii ct on the awards of puniLive
darita.ges, a motion for_ remittitur, and a motion for new
trial.
Page _2 --
Froni=ATHENS CD COhWOPt1 PLEAS CRT 740 592 81020 06l08/2011 13:45 #010 PffiQ03/(^^1,
The Plaintiffs filed motions for attorney fees and
projudgment: in'cerest.,
Defendant Angle was Glouster Mayo:r unt.il. December 31,
2003. Defendant Funk has been Glouster Mayor from January
1, 2004, to the present. âefendant Taylor has been Glouster
Police Chief for twenty-one (21) years to the present.
The Plaintiffs began their towing, btisiness in 1998. In
August or Dep-teanber 2002, they m.ovod their business five and
a half miles frotn Mozgan County to Cross Street in the
Village of Glouster, Athens County.
David Dolan testified that JD Towing a.nd Valley View
were the only towing businessos in Glouster until Giffin
Towing and Car Care moved into G1.ouste-t near the end of 2001
or the beginning of 2002. Prior to 2002, Glouster Police
Officers had discretion regarding which towing company to
call. In 2002, -Glousi^er instituted a rotation system so
tha.t every four-th month t:he offz.cers would call whichever of
the four towing companies had priority that month.
However, the tow txtick operators voiced their
complaints about, this .r_otation syst:.em. Glouster ended the
rotation system at the e.nd of 2002 and returned tto the
previous system of officer discretion.
Tn E'ebriiary 20a3, the Plaintiffs towed Roland Chalfant,
Jx .' s vehicle. Roland Chalfant; Sr., denied telephoning
Page -3-
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then-Mayor Angle and coh-Lp.laining about the P1.aa.ntiffs' bill.
Chalfant, Sr., recalls paying $45.00 to the Plaintiffs and
receiving his son's vehicle. Chalfant, Sr., testified that
he does not know Angle.
Angle testified that Clialfant, Sr., telephoned him and
complained about the PJ.aintii'f` s$1.25. 00 bill for towing and
iinpound. Angle then call.ed David Dolan to inquire about
Chalfant * s bill. Angle denies telling Dolan to reduce the
amount of the bill or threatening him in any way.
However, the Plaiftt:iffs test,;-fied that Angle telephoned
that Chalfant, Sr., told him that the bill was $125.00.
David Dolan testified that Angle told Ilim that his services
were only worth $25.00 and that he should not charge an
impound fee. Dolan told Angle that he would not Change his
fees. Dola.ri testified that. Angle told him that if he did
not charge $25.00, "I' ll make sure that your business will
go to hell.•,
The Plaintiffs proved that after this phone call they
did not receive any more towing business from the Village of
Glcauster and very little from Athens County.- The jury found
that Angle and Funk interfered with the Plaintiffs' towing
business relationship with Glouster- and that Taylor
interfered with the Plaintiffs` business re3.ationshs.p with
Glouster and Athens.County.
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The Plaintiffs' claim is based on the following
circumstantial evidence:
I. Prior to the Angle/Dolan telephone call, the
Plaintiffs received a substantial number of calls for towing
services. After the February 2003 telephone call to the
present, they did not receive any towing requests from the
Glouster police.
2. The Plaintiffs' business sign which was built on
4 x 4 wooden posts buried in concrete was removed. The sign
was found in aVilla.ge of Glouster building. A Glouster
employee who showed the sign to David Dolan stated that
Village officials told him to remove the sign.
3. Within weeks of the A.ngle/Do1an, phone call David
Dolan was cited on a taillight charge and for not having a;l
operator's license.
4. When Jennifer. Dolan complained to Village Council
about not receiving tow calls from Glouster police officers,
then--Coun.cilman Robert Funk laughed at hex. Mayor Angle
to3.d her to "stop whining and be happy with urha-t you've
got."
5. When Councilwoman Laura Patton asked Mayor Ftsnk
why the L'la.i.nta.ff s were not receiving tow calls, F-urik
replied that 'There's nothing to it. It's been dropped. He
brought it upon himself anyways.„
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6. The Defendants played softball together and were
all good friends in the Glouster community.
7. The Defendants testified that they could not
explain why the Plaintiffs did not receive tow calls from
2003 to the present except for officer di.scretion_
8. The Plaintiffs contend that as mayors, Angle and
Funk controlled the Village of Glouster's act.ivity and
business. Police Chie?° Taylor served at the pleasure of the
mayor.
9. Taylor testified that he would have told the
officers to include the Plalnt.iffs when calling for tows if
the mayor or council had so instructed. Taylor testified
that the officers could have used-JD Towing but did not.
10. The present, and form.er Glouster police officers
who testified did nat. provide sound reasons why they
exercised their discretion in not callirag the Plaintiffs for
tows.
11. Funk told Janathan. Taylor that 'We dor' t use J'D' s
Towing, we use Giffi^^ Towing."
The Defendants assert that, except for possibl.y Angle,
the Plaintiffs did not prove that the Defendants took any
dz.rect action to interfere with the.ir business
relationships. Defendants furtller assert that the
Plaintiffs did not prove that the Defendants instructed
Page -- 6-
From' ATHENS CO GOWCN PLEPS GRT 7110 592 8020 06/08/2011 13:46 4010 Pa007lQr2l}. .
•
anyone to interfere with their business relatiansliips,
DEYENDAN^.°S6 MOTION FOR R^...^ITTIT^'z^.
Defendants argue for remittitur of the jury's awards.
The Ohio Supreme Court has held that it is the function of
the jury to assess damages, and as a general rule i.-t _is not
for the trial or appellate court to substitute its judgment
for that af the trier of fact. Wightman v. Consalidatec.i
Rail Corp. (199-5), 86 Ohio St,3d 431.
The Court has applied rules forznulated in Chester ;'a-rk
Co. u a--_ Schulte (1929)E 120 Ohio St. 273. The Court finds
that it may not reduce the jury verdict by renderirig a
judgment fpr a lesser amount, because the parties have not
agreed to do so.
The Caurt deni es the Defendants' motion for remittitur.
^^^^MANTS' MOTIONS FOR xfUDGU-0,NT X0T"'^'1`.^HSKM-M1NG '^14E
V!^iZ^:' ^-^3119V) °- RMATI^+Z^^IP WITH V,} LI:A2^^ OIF GLOU^.^ ER
Civil Rule 50 and the Ohio Supreme Court state that the
standax:ds to be applied to motions for directed verdict and
inotions for judgment notwithstanding the verdict are
identical. Nickell v. Gonzalez (1985) , .17 Ohio St.3d 136;
Ma.ntaa. Mfam Co. v. Commerce Exchar^^^-,T^ank- (199Q, 75 Ohio
St.3d 1. That standard is set forth in Civi:I. RuI-e 50(A) (4),
and permits a d.irected. -verdict against a party where 'the
Page --7._
From:ATHENS CO MWYION PLEAS CRT 740 592 3020 06/08^2011 13:46 #010 P.008/021
trial court, after construing the evidence rn.ost strongly irz
fGiv^.^r of the party against whom the Inoi.ion is directed,
finds that upon any determinative issue reasoraable minds
conld. come to but one c.onclusion upon the evidence submitted
and that ooncl.uslon is adverse to such party [.]" Neither
the weight of the evidence nor the rred.3 bility of the
witnesses is for the court's determination in rul_ing on a
motion- for JNOV. Randall v. Mihm (1992), 84 Ohio App.3d
402.
MMnes v. BroC}ks, Scioto App. No. O8CR32 31, 2009---oha-o-
5017, Pa.ra. 25, stat^-s as fol.1ows:
•`Pursuant to Civ. R, 50 (B) ,whero there has been averdi.c;t for the P1.ainti.ff, the test to be employed bythe t-r.aaZ court in determining whether ' to sustain azrrotaon for judgment zzatwi_ttistand.ing the vardict iswhethe:c.th.e defendant is entitled to judgment as arnattor o-J^` law when -Ehe e"va.dezrco is construed rnoststrongly in favor of the plaintiff." Daniels v.
Aexie of Teguqsgh9, 162Ohio ApP.3d 446, 833 N.E.2d 1253, 2005-phio-3657, atparagraph 12a A xnotion for JNOV under Civ.R. 50(B)tests the legal sufficiency of the evidence. See,e.g., v,.__3^,C>. Surriters 1^^araer.s & Shi.^t T^^^un drvfso. (1988), 81 Ohio St.3d 677, 679; 693 N.E.2d 271;
Mcl^enny v. Hi1.3.sidet^51i:cY Co. (1996) ,1C19 Ohio App.;id
164, 176, 6`71 lq. E.2d 1291. Thus, a trial court rn.trstoonstrit^ the ev1dbnce xnost strongly in favor of therrfan°nroving par-ty and dfrny the tnotion wtiere there issome evidence to supoort the non--zaova-ng party's case.See generally, Texler at 679, 693 N.E.2d 271; gladqrIL_v.
Grea_ter f;^_e^a^Iand Re .a.ana^ lrarrsi^ A^xth. '(.1996) , 75Ohio St.3d. 312, 318, 662 N.E.2d 287; Posin v. A.B.C.N#otQr f'ouri ,klotelr Inc. (1976), 45 Oha.c St.2d 271, 275,344 N,F.2d 334_ In doing so, a trial court may notwe?-gtz the evidence or iudge the credibility ofwitnesses. C3sL1er v. Loraa.n (1986), 28 Ohio St.3d 345,
Ruta v_,Brc:^kenridqe-Re.504 N.E.2d 19, syllabus; __
Page -8-
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(1982), 69 Ohio Nt.2d 66, 67-68, 430 N.E„2d 935. Atrial court should deny a motion for J-NOV if there is,ubstantial evidence upon which reasonable minds couldcome to different conclusions on the essential eleinentsof the claim. Ramaae v. Cent. Ohio Emergency Serv.,Inc. (1992), 64 Utiio St.3d 97, 109, 592 N.E.2d 828;Pasin at 275, 344, N. E. 2d 334.
Based upon Brook.eside Atrmbulance inc vWalker•
Ambulance Sexv. (1996), 112 Ohio App.3d 150, the Court
concludes that the jury could have found a business
relationship existed between the Plaintiffs and Glouster as
to all three Detendants.
Lucas v. Monroe County {U. S. Ci.r. 6, 2000), 203 F.3d 964,
concerned a complaint in 14.ichigan: that the plaintiffs were
removed from a tow call list in retaliation for maki+ng
public criticisms of the sherift` s department. The i7 . S.
Couxt of Appeals held that fact issues precluded the
sheriff` s mot.ion fo-r sumrnary judgment, concluding that the
plaintiffs had adduced sufficient evidence that a jury could
find that the sheriff was liable fo^. tortious iraterference
with plaintiffs' economic relations.
The question is if the three Defendants individually
intentionally interfered with the Plaintiffs' business
relationship s-rith Giouster. Evidently, the jury found that
Angle threatened to ruiii the Plaintiffs' towing business.
Beyond Angle's telephone statements to David Dolan, Jr_, the
Plaintiffs h.ave not proven with direct evidence that the
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Defendants interfered or instructed others -to interfere with
the Plaintiffs' business.
G1.ouster did receive a benefit in calling tow truck
operators. Gioustex bas a duty to assist stranded drivers,
to tow vehicles for evidence and to perform other duties
regarding %nnpe.rable vehicles to help the c;i.tizens at large.
Citing Suru v, gity ai Cleveland (Feb. 25, 1999), Cuyahoga
App. No-73639, the court found that "towing services
performed by a, po1.itical. subdivision are governtnental
functions." Dolan V. City of Glouster (Nov. 15, 2007),
Athens App. No. 06CA16:
The jury found that the Plaintiffs and Glouster had a
•,busin^ss relationship" in that there was a "coritinuing
business or other customary relatzanship not amounting to a
contract." Giouste-r police officers in exerci.sing thes-r
d.iscre-tion called the Plaintiffs for tows prior to 2002.
Glouster instituted the rotation system in 2002 during which
the P1alrit.iffs received L ows . The rotation syst€:nx ended
approximately January 1, 2003, The village policy of
"officer discretion" resumed.
Angle, Funk and Taylor testif,ied that they did not
instruct the officsrs to call Giffin Tow:s.ng exclusively or
not to call the Plaintiffs. The three Defendants said they
did not know why the offa'cers did noU call the Plaintiffs.
Page -10-
From: ATHERS 00 COMM PLEAS CRi 740 692 3020 06/08/10l 1 13:46 #010 P.O 11r'021
They testified that they could have i nstraxcted their
subordinates to incluctb the Plaintiffs in their calls for
tows.
The officers testified they had the discretion to call
any tow.truc3c drivers they wanted. They explained why ti2ey
did not call the P? aintiffs .
The Court has reviewed the seven factors to be
considered in determining whether the Defendants were not
justified or privileged in intentionally interfering with a
business relationship. Brookside Ambulance Inc v Walker
Am3^ulance Ser^v., supra, 156. The Court iinds that there
wete facts sufficient for the jury to have found that
Defendant Angle interfered with the Plaintiffs' business
rel.ationsh.i.p with the Village of Glouster.
Plaintifi David Dolan testified during the conversation
that Angle told him he would ruin his business and told the
Plaintiff at the council meeting to quit whining. There is
not evidence that Angle told the police officers not to use
JD"sTowi.ng or to use Giffin exclus.ivel.y. The Court finds
that it was a jury issue for the jury to decide if the loss
of tow calls from Glouster Police was due to David A-qg7.e' s
actions.
Again, construing the evidence most strongly in
Plaintiffs' favor, the Court cannot say that Funk and Taylor
Pdge ._11.o
Fr•orn:ATffl\^ C-0 C01iiNI4N PLEAS CRT 740 592 3020 06/08/2011 13:46 #010 P,012r'021
are entitled to judgment as a matter of law. Based upon the
cixcumstant.ial eva.den.ce, the Caurt would infer that they
interfered i;».th the Pls.znt.iffs' towing business.
D^^^eNDAWTSf JN;Q"V - W,'r^'IT^VE W-10,GNS
The Court instructed the ;ury as follows:
Punitive damages are damages awarded not tocompensate the Plaintiffs for any injury or lossesbut to punish the Defendants for outrageousconduct and to deter them and others like themfrom similar conduct in the fu-Lure. Punitivedamages may be awarded for conduct that isoutrageous, because of the Defendants' recklessindifference to the rights of others, or anintentional and wanton violation of those r.i,ghts.You may award punitive damages only if you find,from facts established by a preponderance of thee-vYidence, that the conduct of the Defendants was,in fact, outrageous.
The law does not requ.ire you to awardpunitive damages. It is, instead, a matter foryour sound di_scretion. An award of punitivedamages must not reflect bias, prejudice orsSmpathy with respect to any party. It actust in-stead be fairly based on the evidence in the case.
There is no exact standard.for fixing theamount of punitive da.mages. The amotint awarded,if any, should be the ainount you find necessaryfor achieving the objectives of punitive damagesthat I have described. You should consider thedegree of reprehens^.ba.1ity of the Defendants'misconduct and the actual or pQtientzal harmsuffered by the Plaiinti.ffs.
The Gou.:rt has construed the evidence most strongly in
the Plaintiffs' favor>' The Court finds that there was
sufficient evidence for the jury to conclude that the
Page -12-
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Deiendants' conduct was outrageous because of their reckless
indifference to the Plaintiffs' rights or intentional..ly and
wantonly violated the Plaintiffs' riqhts d
R€3GMR MLLt;3R'S JSaO^l' _._".__^_̂ '_-_S_I1^^T^"^'Sf.__REL.^^?IO^dS^^7^VZITH ATHEIRS.v.COUNTY
Doug. Bentley is chief of operations for Athens County
911 emergency communication. JD Towing is on the rotati_on
list maintained by 911. When the Athens County Sherifc'' s
office: (ACSO) needs a tow truck, the deputy sheriff wi1.l
contact 911 which will'ccantact the next towing company on
the list. Bentley testified that the rotation list is for
the use of the ACSO and not for the use oi village officials
who have their own policy for determining which tow truck
operators to call.
Bentley testified that JD towing has been in good
stand.inci on the ACSO rotation list. since 2001. However,
being on the rotation list does not guarantee a certain
number of taws,
The Plaintiffs talked to Bentley about the decreased
number of tow calls froa Glouster they were receiving.
Bentley told them that their cota.cerns were with. Glouster and
that he does not work for Glouster. Bentley told the
Plaintiffs that the fact that they were not receiving tow
calls from Glouster had no relationships to their receiving
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From:RTOS 00 GOMMC^^ PLEAS ^^^ 740 592 3020 06/08/2011 13.50 4010 P.014/C12I
tow calls from ACSO.
Bentley testified that he had spoken to all three
Defendants at different times about the Plaintiffs but that
the conversations were not substantive. Bentley did testify
that none of the Defendara'ts did anything to try to i.nterfere
w.it}i JD Towing and the ACSO rotation list maintaa.n.ed by 911,
David Dolan testified that he did not have a contract
or agreernent with Athens County other thari to meet the
qualifications to be on the rotation list for tow truck
calls. He aclm.itted that this was his only relationship with
Athens County.
Bentley is an employee of Athens County. 911 is a
County of Athens organization. Chief Roger Taylor does not
supervise either Bentley or 911 personnel.
The Plaintiffs allege that their tows from. ACSO thraugkz
911 declined from 2003 to the present. The Plaintiffs did
not prove that Taylor in any way caused the number of ACSO
calls to decline.
The Court finds that the Plaintiffs did not have a
business relationship with the County of Athens just by
being on a xotati_or, list for ACSO tow requests that was
inaintained by 911. If the Plaintiffs had business
relationships with the County of Athens, they have failed to
prove both that Roger Taylor {1} intenta,onally interfered
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causing a breach or te.r_ml.nation of the relationship or (2)
damages resulted therefrom.
In construing the evidence most strongly in Plaintiffs'
favor, the Court concZudes that reasonable minds could only
find in favor of Rogdr Taylor and that Taylor is entitled to
judgment as a matter of law. For the reasons stated, the
Court grants Taylor's motion for judgment notwithstanding
the verdict as to Athens County. AccQrding'ly, the Court
sets aside the Plaintiffs' verdict agai-qst Taylor that he
intentionally znte.rfexed with their business relationship
with the County of Athens and the related awards of
coinpensatory damages in the 'sum of $80,600.00 and punitive
damages in the sum of $100,004.00.
IIEFEIg kyrml '^IAL
Civil Rule 59 states, in pertinent part, regarding a
motion for a new trial:
(A) Grounds. ,A new trial may be granted toall or any of the parties and on all or part of theissues upon any of the following grounds.
{9} Excess ive or inadequate ciamages,appearing to have been given under the influenceof passion or prejudice;
* -k *
(6) The judgment is not sustained by theweight of the evidence; however, only one new.
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trial may be gxan.Ged on the weight of the evidencein the same case;
(7) The judgment is contrary to law;
^ k x
In addition to the above grounds, a neua •trialmay also be granted in the sound discretion of thecourt for cause shown,
The Court previously has provided the law on
remittitur. The Court cannot reduce a judgment unless the
parties a.gree. " The Court may either accept or reject the
jury's verdi-ct.
Likewise, in considering a motion for new trial on
compensatory and/or punitive damages, the Court may either
accept the verdict or vacate it. The Court may not reduce
the verdict amount when deciding the motion• for a nevr trial.
The Court finds that the Plaintiffs properly presented
evidonce concerning their lost profits against Defendants.
The Plaintiffs testified about their averagE^ income and
expenses regarding each tow. They estimated their lost tows
from 2003 to the trial based upon their tows prior to and
iricluding 2002.
The jury found that the Pla.i.ntifis° lost profits due to
the Defendants' actions is $65, 00Q. (34. In their memoxandum,
the Plaintiffs mathematical.ly calculate their lost profits
irom 2003 to September 2010 as $65,437.00,
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The Court finds the $65, 000. 00 award for lost profits
against the Defendants is not excessive or contrary to lavf
and is sustained by the weight of the evidence.
The jury awarded consequential damages against the
Defendants for $65, 0(l0.{3{i . The jury awarded damages for
emotional distress or actual harzn to reputation that was
reasonably to be expected to restilt from interference -tqitI-i
their business rc:lationship with Glouster against the
Defendants in the amount qf $230,000,00.
The Court instructed the jury as follows:
As part of a compensatory damage award, youmay award damages for a plaintiff's,consoquentiallosses for which the interference is a 1ega7_cause, emotional distress, or actual harm toreputation, if any, praximately caused by adefendant's tortious conduct. Conseq°uentialdarnages are those that naturally flow or occurfrom a defendant's tortious conduct.
No evidence oi •the monetary value of an 'intangible such as emotional distress or, acttzalharm to reputation has been, or need be,introduced into evidence. There .?.-s no exactstandard for fixing compensation for -this type ofdamage. Eaiotional distress or actual harm toreputati.on. must be reasonably expected to resultyrom the interference. Any award you make shouldbe fair in light of the evidence presented at
trial.
The Plaintiffs testified how their loss of income
affected their children, Chxistntas, Thanksgiving, and
Jennifer Dolan's ability to visit her, son in South Car_olina
as evidence of consequential damages. The Plaintiffs
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presented testimony that Jennifer Dolan was laughed at by
city ceuncil rnembers when she complained about not getting
tows at a council meeting. They submit that the loss of
revenue caused emotional distress. They fe.it 3.aughed at
and scolded by the befendants and Village officials.
The Court finds that the award of 65,000.00 for
consequen-tial damages is not excessive, but that the award
of $230, U(}0. C1C7 for emotional distress dainages is excessive
and appears to have been awarded under.the influence,of
passion and pre j uda.ce. The award for emotional dis-tress
damages is 3.5 times that of tl3e award for lost profits. The
jury may have punzshed the Defendants because the officers
did not give logical reasons for not calling the Plaintiffs
-.f.or tows. The Court also finds the emotional distress
damage award is not sustained by the weight of the evidence
and is contrazy to law.
The jury awarded puni.t.ive dam«ges against Angle in the
sum of '$150, 000. 00, Funk in the sum of $150, t3Qb. Q0 and Roger
Ta'ylor in the sum of $200, 0flQ ,00 for -int.erference with their
bu,,^iness relationship with Glouster. The total. punitive
damages award is 7.7 times that of the total award for- lc^s;
profits. The Couxt finds that the punitive damage awards
agaa..nst the Defendants are excessive and appear to have
been awarded under the influence of passion a.nd prejizdice,
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and are not sustained by the weight of the evidence and are
contrary to law.
^ONCLUS$ ON
Following the Court's decision, the following verdicts
remain:
(1) ira favor of Plaintiffs David Dolan and Jennifer
Dolan and against Defendants David. Angle, Robert Funk and
Roger T'ay? or for lost profits and consequential damages for
intentional inference with the Plaintiffs' business
relationship with Glouster as follows:
a,. Against, Defendant David Angle in the sum of
$40,000.00.
b. Against Defendant Robert Funk in the sum of
$4o, b0(}. QO .
c. Against Defendant Roger Taylor in the sum of
$50,000.00.
(2) Attorney fees in an amount to be determ,ined.. . ,
For the reasons stated, the Court orders as to'Llows:
1. That the complaint against Defendants David Angle,
Robert Funk and Roger Taylor in their oLficial capacities be
di.;^inis sed.
2. That the Defendants' motion for re.m3_ttita.zr be
d.eni.ed.
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•
3. That the verdict in favor of the Plaintiffs and
against Defendant Roger Taylor for iRtentionally interfering
with the Plaintiffs' buslness relationship with the County
of Athens be set aside, and judgment rs.otwithstanding the
verdict be entered on this claint in Defendant Taylor's
f avor.
4. That Defendants' motion for judgrnent
notwithstanding the Plaintiffs' verdict agajLnst them for
intentionally interferin.g with the Plaintiffs' business
relationship with the Village of Glouster be denied.
5. That the Defendants' motion for judgment
notwithstanding the Plaintiffs' verdict against,them for
punitive dam.age be denied,
6. That the Defendants' rnotion for a new tri.al,-l--as.....to
the compensatory damaqes awards for emotlonal.cii.st^ess, and
the punitive damages awards against them be gx•a.nted. andthe
awards vacated,
7. That the Defendants' motion for a new trial as to
the compensatory dar,tages award for lost profits and
consequential damages against -them be denied.
8. The Plaint.i3fs' motions for prejudgment interest
and attorney fees are scheduled for June 10, 2011, at 1:30
p.m.
This is a judgment or final order, which may be
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appealed and the Court finds no just reason for delay. The
Clerk, puxsuant, to Civ. R. 58(B) shall serve notice of the
judgment and its date of entry upon the journal on all
parties who are not in default for failure to appear.
Within three (3) days after jou.r.nalization of this entry the
Clerk is r.equired to serve notice of the judgment pursu.ant
to Civ.R. 5(B) atad shall note the service .in the appearance
docket.
"141(--;'HAL'L WARD, jUDGF
cc: Robert C. Paxton, Esq..ROBERT C PAXTON & ASSOCIATES2142 Riverside DriveColumbus, OH 43221ATTORNEY FOR PLAINTIFFS DAVID DOLAN AND JENNIFER DOLAN
Randall L. Lambert:' Esq.LAMBERT, MCWHORTER & 130GILZNG215 S. Fourth Street, PC? Box 725Ironton, OH 45638AT'I`4RNEY FOR DEFENDANTS ROBERT FUNK, DAVID ANGLE,AND ROGER TAYLOR
^^URA^^^n^^^^')
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