SUPREME COUR7 OF 0%;10 CLERK OF COURT...court's decision to grant a limited new trial solely on noneconomic damages and punitive damages, while expressly upholding the trial court's

%ii^^ ^V

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)[email protected]

Counsel forAppellants,The City of Glouster, et al.

,. ....... , . . ^.i %^ ^.i :.i .. . . .

R" "'s £.;'s^ € "s

Robert Paxton, II2142 Riverside DriveColumbus, Ohio 43221(614) 485-9670(614) 485-9671 (fax)[email protected]

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

^.;, '

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

ii

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

1

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'

2

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.

4

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

5

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.

6

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,

7

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

8

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.

9

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.

11

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^Î (0017987).,CASSAUIVDRA L. BkISLIN (0087766);COUNSEL FOR GLOUSTER APPELLANTS

16

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? 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 oontî-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.

î ^ ..

,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


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


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


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


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 • .


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 . i1Â19 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-parîes® araûment 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 ° -


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. ^

^

ATIÊNS. 31CA18, 11CA1 9B 11CA33, 12CA1 & 12Â6 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-fiânclaY)- 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.

------------------------------ -

• ..^


With respect to attorney fees, Ohio adheres to the ®Àmerican

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

^----. --^^-;----^^^^^^^ ----^tâ^h-^^r---f-^pQy -- 156 --------------ê-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 Â252^® "----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 ^

î

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, -Glousiêr 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^...ÎTTIT^'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!îZ^:' ^-^3119V) °- RMATI^+Z^ÎP 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^^^-,Tânk- (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^âraer.s & Shi.^t T^^ûn drvfso. (1988), 81 Ohio St.3d 677, 679; 693 N.E.2d 271;

Mclênny 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;^_eâÎand 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; __

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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

Am3ûlance 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^^êNDAWTSf 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

Page -13-

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 'ÎAL

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,,îness 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.

ÔNCLUS$ 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.;înis 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.stêss, 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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Ft'o3naATWo 00 f;ONC ►hl PLEAS GRT 740 692 3020 06/08/2011 13:52 #010 P.021l021 °

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

^ÛRA^^^n^^^^')

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Documents

SUPREME COUR7 OF 0%;10 CLERK OF COURT...court's decision to grant a limited new trial solely on noneconomic damages and punitive damages, while expressly upholding the trial court's