Desai v. Franklin , 177 Ohio App. 3d 679 ( 2008 )

{¶ 58} I concur in the thoughtful and well-reasoned opinion of the majority to the extent that it resolved assignments of error one, two, and three and cross-assignments of error three, four, five, and six. I must, however, respectfully dissent from the majority's overruling of Desai's first and second cross-assignments of error.

{¶ 59} As to Desai's first cross-assignment of error, he challenged the trial court's granting of Franklin's motion for directed verdict on the issue of punitive damages. Civ. R. 50(A)(4) requires the trial court, to construe all evidence in a light most favorable to Desai, the party against whom the motion was filed. Against the backdrop of that standard, it is clear that Desai produced clear and convincing evidence that Franklin consciously disregarded his rights, knowing it would result in substantial harm to Desai. The conduct of Franklin, a professional, can only be described as shocking. There is testimony in the record from which a jury could reasonably conclude that, although he was fully aware of the terms of a long-standing contract with Desai, Franklin secretly changed the terms, resulting in a substantial loss of income to Desai, withheld documents, forged signatures, and lied when confronted about these issues during a deposition taken under oath. Under these facts, I must respectfully dissent from the majority's finding that the trial court did not err in directing a verdict in favor of Franklin on the issue of punitive damages.

{¶ 60} The majority cites the award of compensatory damages and for prejudgment interest which Desai obtained, and then notes that Franklin was 83 years old at the time of trial. The majority sets out at ¶ 40 the appropriate factors for awarding punitive damages. The amount of compensatory damages, the fact of a prejudgment-interest award, or the age of the defendant is not among them. "`The jury is given wide discretion in determining whether punitive damages are justified and in assessing the amount of such damages-based upon its collective judgment as to the punitive and deterrent effect that such an award would have.'" Wright v. SuzukiMotor Corp., 4th Dist. Nos. 03CA2, 03CA3, 03CA4,2005-Ohio-3494, 2005 WL 1594850, at ¶ 190, quotingWaddell v. Roxane Laboratories, Inc., 10th Dist. No. 03AP-558, 2004-Ohio-2499, 2004 WL 1103710, at ¶ 44. The jury might have awarded one dollar in punitive damages against Franklin. The point is that it was the jury's decision to make, not the trial court's. Accordingly, I would reverse and remand to the trial court for submission of punitive damages to the jury.

{¶ 61} As to the second cross-assignment of error, I would reverse the trial court's failure to submit to the jury the issue of attorney fees, as I find the record replete with evidence that Franklin acted with actual malice. Therefore, Desai was entitled to present to the jury his claim for attorney fees.