Martin v. Jones , 2015 Ohio 3168 ( 2015 )

[Cite as Martin v. Jones, 2015-Ohio-3168.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
TERRY MARTIN, : Case No. 14CA992
Plaintiff/Cross-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
NANCY JONES, :
Defendant-Appellant, :
and :
KEAVIN HILL, : RELEASED: 8/5/2015
Defendant/Cross-Appellant. :
APPEARANCES:
Robert J. Judkins, Judkins & Hayes, LLC, Greenfield, Ohio, for appellant.
Joseph P. Sulzer, Chillicothe, Ohio, for cross-appellant.
John B. Caldwell, Young & Caldwell, LLC, West Union, Ohio, for appellee.
Harsha, J.
{¶1} Following a lengthy trial the jury returned a verdict finding that Nancy
Jones had breached a contract to lease farmland to Terry Martin for 2011 and that
Keavin Hill had tortiously interfered with Martin’s business relationship with Jones by
renting her land that year. The jury awarded Martin compensatory damages for his
breach-of-contract claim against Jones, and compensatory damages, punitive
damages, and attorney fees for his tortious-interference-with-a-business-relationship
claim against Hill. The court overruled Jones’s and Martin’s postjudgment motions
challenging these verdicts and entered a judgment adopting them.
Adams App. No. 14CA992 2
{¶2} In Jones’s first assignment of error she challenges the trial court’s denial
of her motion for summary judgment on Martin’s breach-of-contract claim. But any error
by the trial court in denying her motion was rendered moot or harmless because a
subsequent jury trial on the claim established genuine issues of material fact.
{¶3} In Jones’s second assignment of error she asserts that the trial court erred
in denying her motion for judgment notwithstanding the verdict, which found that she
breached her contract. However, there was sufficient evidence establishing that the
parties entered into a binding oral contract, notwithstanding some lack of specificity
regarding the rental price, which was supplied by the parties’ course of dealing. Nor
did the statute of frauds invalidate the oral lease, because Martin’s part performance of
the contract—by spraying the farmland with herbicide, purchasing fertilizer and seed,
entering into corn contracts, and leasing an additional tractor—removed the lease from
the operation of the statute. Jones was not entitled to judgment notwithstanding the
verdict on Martin’s claim for breach of contract. Jones’s related argument in her third
assignment of error contesting the denial of her motion for new trial fails for similar
reasons.
{¶4} In Jones’s fourth assignment of error she contends that the trial court
erred in denying her motion for remittitur1 seeking a reduced amount of damages. The
trial court did not abuse its discretion in denying her motion because the jury verdict
awarding Martin damages for her breach of their oral lease agreement was supported
1
Jones titled her motion in the trial court and on appeal as one in “remitter.” The term referring to the
process by which a court reduces the damages in a jury verdict is remittitur. See Garner, A Dictionary of
Modern Legal Usage 752 (2d Ed.1995), discussing the distinction between the terms. We will refer to the
term of remittitur in this opinion.
Adams App. No. 14CA992 3
by Martin’s calculation of lost profits, which included a sum of $12,000 for leasing an
additional tractor that was needed under the lease.
{¶5} In Hill’s first assignment of error he claims that the trial court erred in
denying his motion for summary judgment. Because Hill now concedes that he did not
file a motion for summary judgment, we reject his claim.
{¶6} In Hill’s second assignment of error he asserts that the trial court abused
its discretion by denying his motions for directed verdict and judgment notwithstanding
the verdict on Martin’s claim that Hill tortiously interfered with Martin’s business
relationship with Jones. There was sufficient evidence of an oral contract for Martin to
lease Jones’s farmland in 2011. Because the oral lease was not terminable at will, Hill
could not rely on the privilege of fair competition to justify his interference with the
business relationship. Hill was not entitled to a directed verdict or judgment
notwithstanding the verdict on Martin’s tortious-interference claim.
{¶7} In Hill’s third assignment of error he argues that the damages awarded
against him were against the manifest weight of the evidence. Hill invited any error in
the trial court’s adoption of the jury verdict against him of $2,175 in compensatory
damages because his trial counsel advised the court that this sum was “commensurate
with his liability” and “fair and proper.” And the record includes evidence that neither the
jury nor the trial court lost its way in assessing $45,000 in punitive damages against Hill
based on his conscious disregard of Martin’s rights to farm Jones’s farmland in 2011.
{¶8} Finally, in Hill’s fourth assignment of error he asserts that the trial court
erred in awarding attorney fees against him because there was no evidence submitted
on the reasonableness of those fees. Hill forfeited this claim on appeal by stipulating to
Adams App. No. 14CA992 4
the amount of attorney fees incurred by Martin and stipulating it could be submitted to
the jury for its consideration. Because the contentions raised in Jones’s appeal and
Hill’s cross-appeal are meritless, we affirm the judgment of the trial court.
I. FACTS
{¶9} Martin filed a complaint in the Adams County Court of Common Pleas
against Jones and Hill. In an amended complaint Martin raised claims that Jones
breached an oral lease agreement for Martin to farm her land in 2011, that Jones was
liable to him based on promissory estoppel, and that Hill and his business, Hills Agri-
Tech Services, Inc., tortiously interfered with Martin’s business relationship with Jones.
Jones and Hill filed answers and counterclaims alleging that Martin had tortiously
interfered with Jones’s business relationship with Hill.
{¶10} Jones filed motions for summary judgment, which the trial court denied.
The case proceeded to a jury trial, which produced the following evidence.
{¶11} Martin is an Adams County resident who has farmed for over 30 years.
He farms real property he owns as well as other land he leases in four different
counties. In 1998, he asked Jones, a retired schoolteacher who owns a farm in Adams
County with approximately 150 acres of farmland, whether he could lease her property
to farm. Jones’s property had last been farmed about 10-15 years before so it was
overrun with weeds. They reached an oral agreement for Martin to lease Jones’s
farmland in 1999 for $50 per acre. The only condition specified by Jones was that if her
son wanted to come back and farm her property, they would have to negotiate a
different arrangement.
Adams App. No. 14CA992 5
{¶12} Martin continued to lease Jones’s farm on a year-to-year basis for the next
12 years, through 2010. Martin delivered the annual rent to Jones in two different
installments—the first in the spring of the year before he started planting and the
second in the fall of the year following the harvest. According to Martin, they always
agreed on the lease of Jones’s farm for the following year in the fall of the preceding
year when he delivered the second check. This practice of leasing farmland for the next
year by reaching an agreement in the fall of the preceding year was consistent with the
general practice, which permitted farming tenants to determine what equipment, seed,
and fertilizer they needed for the upcoming year before they planted the crops.
{¶13} Martin testified that the lease agreement was never for a specific price;
instead, it followed from what was the year before, unless Jones told him in the fall of
the preceding year that she wanted more money or Martin decided to pay her more
based on increases in area rental and grain prices. The annual rent Martin paid
fluctuated from $7,000 in 1999 to $11,500 in 2010.
{¶14} When Martin farmed Jones’s property in 2010, there was a problem with
marestail, an invasive weed. By early August 2010, Martin had sprayed the property
three times to kill the weeds. According to Martin, around that time he told Jones that
he was going to have to spray the property again to get rid of the weeds and that he
would have to plant corn the next year—2011. Jones advised Martin that she did not
care what he planted on her farmland. Martin paid Winchester Ag $2,175 to spray
herbicide on Jones’s farmland in November 2010 in preparation for his planting of corn
on the property in 2011.
Adams App. No. 14CA992 6
{¶15} In early December 2010, Martin delivered his second rental payment for
2010 to Jones. Martin testified that at this time, he told Jones that they wouldn’t have a
problem with the weeds next year because of the November spraying of herbicide and
that he would be ready to plant corn in 2011. Jones told him that she would see him
next spring. According to Martin, they talked about renting her farmland for 2011 at that
time and they entered into a verbal lease agreement for the next crop year.
{¶16} Jones testified that she never agreed to lease Martin her farmland in 2011
and that during 2010 she had expressed her dissatisfaction with Martin’s repeated
spraying of chemicals on her property and her perception that the rent he was paying
was below the fair market value. She claimed that Martin told her that if she could find
someone to rent her land for a higher price, she should. Conversely, Martin testified
that Jones never expressed dissatisfaction with his farming practices, including the
spraying of chemicals, or that she thought her farmland was worth more. He also
denied telling her that she could rent her land to someone else if they offered a higher
rental price.
{¶17} Based in part on his conversations with Jones, Martin ordered seed and
fertilizer and entered into contracts to supply 40,000 bushels of corn for 2011. He also
leased an additional tractor for 2011 because of the agreement to farm Jones’s land.
{¶18} In December 2010, Jones met with Hill in Portsmouth after they had been
brought together by a mutual acquaintance. At that meeting Jones expressed her
dissatisfaction with Martin’s application of chemicals to her farmland and the low rent he
was paying. Hill, who was interested in “getting his foot in the door” of Adams County
farming, offered to rent Jones’s farm sight unseen for $140 an acre in 2011, which was
Adams App. No. 14CA992 7
significantly more than Martin had been paying her. Although Jones was excited about
the offer, she refused it.
{¶19} Martin proceeded to take actions consistent with an oral lease agreement
with Jones for the 2011 crop year, including drafting a first-half rent check in late March
2011 in the amount of $6,000. Martin testified that he intended to deliver it to Jones but
admitted he had not done so at that time. He also scheduled an appointment for early
April 2011 with the local U.S. Department of Agriculture Farm Service Agency to sign
farm-subsidy papers regarding property he would be farming in Adams County in 2011,
including Jones’s farm.
{¶20} On April 5, 2011, Jones telephoned Hill and asked him if he was still
interested in farming her land in 2011. The next day, Jones and Hill met at Jones’s farm
and entered into a verbal agreement for Hill to farm Jones’s property in 2011 for the
rental price of $140 per acre. On April 8, 2011, Jones contacted Martin and advised
him that she had rented her farm to Hill for 2011. Martin testified that Hill knew that
Jones’s farm was rented to him and that it had been sprayed to plant corn in 2011.
According to Martin, Hill knew the farm was rightfully Martin’s for 2011. Although he
thought he had a valid contract to lease the farm in 2011, Martin offered Jones $150 per
acre “just to get through the year” because of the obligations that he had already
incurred. Jones rejected Martin’s new offer because she believed she was then
obligated to Hill.
{¶21} Martin then went to his scheduled appointment at the Farm Service
Agency and signed up the Jones farm for the subsidy program, listing himself as the
tenant/producer entitled to the subsidy. Hill went to the same office and signed papers
Adams App. No. 14CA992 8
requesting the same subsidy. The agency later resolved the dispute by awarding the
subsidy to Hill after asking Jones who her tenant was for 2011.
{¶22} Martin testified that he could not secure farmland in 2011 to make up for
the almost 150 acres he lost because Jones breached their agreement. He calculated
his lost profit for 2011 as $52,019.28, and provided detailed testimony supporting his
calculation. Martin further testified that he lost an additional $12,000 attributable to the
extra tractor he leased to farm Jones’s land in 2011.
{¶23} At the conclusion of the state’s case-in-chief, Jones moved for a directed
verdict on the claims against her other than the claim for breach of contract; Hill and his
business moved for a directed verdict on the claims against them. The trial court denied
the motions for Martin’s claims of breach of contract and promissory
estoppel/detrimental reliance against Jones and for Martin’s claim of tortious
interference with a business relationship against Hill, but dismissed Martin’s remaining
claims, including his claims against Hill’s business.
{¶24} The jury returned verdicts: (1) in favor of Martin on his claim that Jones
had breached the contract and awarded him $64,019.28 in compensatory damages
against Jones; (2) in favor of Martin on his claim of promissory estoppel/detrimental
reliance and awarded him $45,000 in compensatory damages against Jones; (3) in
favor of Martin on his claim that Hill tortiously interfered with Martin’s business
relationship and awarded Martin $2,175 in compensatory damages, $45,000 in punitive
damages, and $53,000 in attorney fees against Hill; and (4) in favor of Martin on
Jones’s and Hill’s tortious-interference counterclaims against him.
Adams App. No. 14CA992 9
{¶25} Jones and Hill filed motions for judgment notwithstanding the verdict, for
new trial, and for remittitur. Martin filed memoranda in opposition, and the trial court
held a hearing on the postverdict motions. The trial court granted Jones’s motion for a
judgment notwithstanding the verdict on the $45,000 promissory estoppel claim against
her because it determined that it was duplicative of the breach-of-contract damages
against her. The trial court denied the motions in all other respects and entered
judgment adopting the remainder of the jury verdicts. Jones appeals and Hill cross-
appeals from the judgment.
II. ASSIGNMENTS OF ERROR
{¶26} Jones assigns the following errors for our review:
1. THE TRIAL COURT ERRED IN DENYING APPELLANT JONES’ [SIC]
MOTION FOR SUMMARY JUDGMENT ON APPELLEE’S CLAIM FOR
BREACH OF CONTRACT.
2. THE TRIAL COURT ERRED IN DENYING DEFENDANT APPELLANT
NANCY JONES’ [SIC] MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT ON THE BREACH OF
CONTRACT CLAIM.
3. THE TRIAL COURT ERRED IN DENYING DEFENDANT NANCY
JONES’ [SIC] MOTION FOR A NEW TRIAL.
4. THE TRIAL COURT ERRED IN DENYING DEFENDANT NANCY
JONES’ [SIC] MOTION FOR REMITTER [SIC] TO A REDUCED
AMOUNT OF DAMAGES.
{¶27} In his cross-appeal Hill assigns the following errors:
1. THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING
THE CROSS APPELLANTS MOTION FOR SUMMARY JUDGMENT.
2. THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING
THE CROSS APPELLANTS MOTIONS FOR DIRECTED VERDICT
AND JUDGMENT NOTWITHSTANDING THE VERDICT.
Adams App. No. 14CA992 10
3. THE AWARDING OF DAMAGES TO THE PLAINTIFF AS AGAINST
THE CROSS APPELLANT WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
4. THE AWARDING OF ATTORNEY FEES WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
III. LAW AND ANALYSIS
A. Summary Judgment
{¶28} In her first assignment of error Jones asserts that the trial court erred in
denying her motion for summary judgment on Martin’s breach-of-contract claim. In his
first assignment of error Hill asserts that the trial court erred in denying his motion for
summary judgment.
{¶29} Appellate review of summary judgment decisions is de novo, governed by
the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St.3d 199, 2013–Ohio–
3020, 992 N.E.2d 1126, ¶ 19. Summary judgment is appropriate if the party moving for
summary judgment establishes that (1) there is no genuine issue of material fact; (2) the
moving party is entitled to judgment as a matter of law; and (3) reasonable minds can
come to but one conclusion, which is adverse to the party against whom the motion is
made. Civ.R. 56(C); New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39,
2011–Ohio–2266, 950 N.E.2d 157, ¶ 24; Settlers Bank v. Burton, 4th Dist. Washington
Nos. 12CA36 and 12CA38, 2014–Ohio–335, ¶ 20.
{¶30} The moving party has the initial burden, by pointing to summary judgment
evidence, of informing the trial court of the basis for the motion and identifying the parts
of the record that demonstrate the absence of a genuine issue of material fact on the
pertinent claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).
Adams App. No. 14CA992 11
Once the moving party meets this initial burden, the nonmoving party has the reciprocal
burden under Civ.R. 56(E) to set forth specific facts showing that there is a genuine
issue for trial. Id.{¶31} Hill now concedes that the premise of his first assignment of error is
incorrect because he did not, in fact, file any motion for summary judgment. He
consequently has not met his burden of establishing error, much less prejudicial error.
Therefore, we overrule his first assignment of error.
{¶32} We turn now to Jones’s first assignment of error. A party may appeal the
denial of a motion for summary judgment after a subsequent adverse final judgment.
American Family Ins. Co. v. Hoop, 4th Dist. Adams No. 13CA983, 2014-Ohio-3773, ¶
23, citing Balson v. Dodd, 62 Ohio St.2d 287 (1980), paragraph one of the syllabus (“A
trial court's denial of a motion for summary judgment is reviewable on appeal by the
movant from a subsequent adverse final judgment”).
{¶33} Nevertheless, “[a]ny error by a trial court in denying a motion for summary
judgment is rendered moot or harmless if a subsequent trial on the same issues raised
in the motion demonstrates that there were genuine issues of material fact supporting a
judgment in favor of the party against whom the motion was made.” Continental Ins.
Co. v. Whittington, 71 Ohio St.3d 150, 642 N.E.2d 615 (1994), syllabus. Consequently,
as we detailed in American Family Ins. at ¶ 24 (citations omitted):
[I]f a trial court denies a summary judgment motion due to the existence of
genuine issues of material fact, and a subsequent trial on these issues of
fact results in a verdict supported by the evidence for the party who did not
move for summary judgment, then substantial justice requires an appellate
court to affirm the denial of summary judgment. To allow a summary
judgment decision based upon less evidence to prevail over a verdict
reached on more evidence would defeat the fundamental purpose of
judicial inquiry.
Adams App. No. 14CA992 12
On the other hand, when a trial court denies a motion for summary
judgment based upon the resolution of a purely legal question, an
appellate court may review that decision regardless of the movant's
success at trial. Unlike factual questions, legal questions are not mooted
by a subsequent trial that results in a verdict adverse to the movant.
{¶34} The trial court denied Jones’s motion for summary judgment because it
found that “there are genuine issues as to material facts involved in these proceedings.”
And at the conclusion of Martin’s case in chief at trial, Jones’s counsel specified that he
did not request a motion for a directed verdict at that time on Martin’s breach-of-contract
claim because he believed “that there is a factual issue as to whether or not there is a
breach of contract.” Moreover, for the reasons discussed in our disposition of Jones’s
second and third assignments of error, the jury verdict in favor of Martin on his breach-
of-contract claim was supported by the evidence adduced at trial. Therefore, Jones’s
first assignment of error lacks merit so we overrule it.
B. Jones’s Motion for Judgment Notwithstanding the Verdict
{¶35} In Jones’s second assignment of error she contends that the trial court
erred in denying her motion for judgment notwithstanding the verdict (JNOV). A motion
for judgment notwithstanding the verdict, like a motion for a directed verdict, tests the
sufficiency of the evidence and therefore presents a question of law which we review de
novo. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 25.
In deciding a motion for a judgment notwithstanding the verdict under Civ.R. 50(B) the
court must construe the evidence in favor of the nonmoving party. Only if the court finds
that upon any determinative issue reasonable minds could come to but one conclusion
and the moving party is entitled to judgment as a matter of law, the court must grant the
Adams App. No. 14CA992 13
motion. Vance v. Consol. Rail Corp., 73 Ohio St.3d 222, 231, 652 N.E.2d 776 (1995);
Bungard v. Jeffers, 2014-Ohio-334, 8 N.E.3d 336, ¶ 11 (4th Dist.). In doing so, a trial
court may not weigh the evidence or judge witness credibility. Id. at ¶ 11.
{¶36} Jones claims that the jury’s verdict finding that she had breached a
contract with Martin to allow him to lease her farmland for 2011 was not supported by
sufficient evidence. “In order to succeed on a breach of contract claim, a party must
prove the existence of a contract, the party’s performance under the contract, the
opposing party’s breach, and resulting damage.” DePompei v. Santabarbara, 8th Dist.
Cuyahoga No. 101163, 2015-Ohio-18, ¶ 20; Spectrum Benefit Options, Inc. v. Med.
Mut. of Ohio, 174 Ohio App.3d 29, 2007-Ohio-5562, 880 N.E2d 926, ¶ 25 (4th Dist.).
{¶37} Jones contends that she was entitled to JNOV because there was no
evidence of any offer or acceptance, or any evidence of an agreement as to price or
term. The threshold issue is thus whether the parties entered into a binding contract to
lease Jones’s property to Martin to farm in 2011. The essential elements of a contract
are an offer, acceptance, contractual capacity, consideration, a manifestation of mutual
assent, and the legality of the object and the consideration. Williams v. Ormsby, 131
Ohio St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶ 14.
{¶38} Courts recognize three types of contracts: express, implied in fact, and
implied in law. Legros v. Tarr, 44 Ohio St.3d 1, 6, 540 N.E.2d 257 (1989); Spectrum
Benefit Options at ¶ 26. “ ‘In express contracts the assent to its terms is actually
expressed in offer and acceptance.’ ” Legros at 6, quoting Hummel v. Hummel, 133
Ohio St. 520, 525, 14 N.E.2d 923 (1938). By contrast a contract implied in fact is “ ‘a
contract that the parties presumably intended, either by tacit understanding or by the
Adams App. No. 14CA992 14
assumption that it existed.’ ” State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-
Ohio-6716, 780 N.E.2d 998, ¶ 31, quoting Black’s Law Dictionary 322 (7th Ed.1999).
Finally, contracts implied in law are not true contracts, but liability is imposed based on
quasi or constructive contract. Legros at 7.
{¶39} Because the jury returned a general verdict in favor of Martin on his
breach of contract claims and no interrogatories were given to determine which theory
the jury may have adopted, we presume that the jury found in favor of Martin on all
pertinent issues. See Stephenson v. Upper Valley Family Care, Inc., 2nd Dist. Miami
No. 2009CA38, 2010-Ohio-4390, ¶ 50.
{¶40} The evidence supports a finding of an express oral contract. The primary
difference between express contracts and contracts implied in fact is one of proof—the
former is proven by words (oral or written) and the latter is proven by acts, conduct, and
circumstances. See J.S. Keate & Co. v. Barnett’s Car Wash, Inc., 1st Dist. Hamilton
Nos. C-920895 and A-8903768, 1994 WL 10650, *3 (Jan. 19, 1994), citing Weinstein v.
Newman, 89 Ohio App. 301, 101 N.E.2d 772 (1st Dist.1951).
{¶41} Jones asserts that there is no evidence of any offer or acceptance of the
parties for Martin to lease Jones’s farmland in 2011. There was evidence here from
Martin’s testimony that established the parties entered into an oral contract to lease
Jones’s property to farm in 2011 when the parties met in August and December 2010.
According to Martin’s testimony they agreed to the lease for 2011 in 2010. In August
2010, he advised Jones that he was going to have chemicals sprayed on the weeds in
the fall after he harvested the soybean crop and that he was going to plant corn in 2011,
and Jones said she did not care what he planted. In December 2010, Martin told Jones
Adams App. No. 14CA992 15
that the farm had been sprayed in November and that he would be ready to plant corn
in 2011, and Jones told him she wouldn’t see him until next spring. According to Martin,
their agreements to lease the property were always consummated in the fall of the
previous year, and this was true of their 2011 lease, which was agreed to by early
December 2010. Indeed, after their meeting in December 2010, Martin acted
consistently with the lease agreement by ordering seed and fertilizer, entering into corn
contracts, and leasing an additional tractor based on the oral contract for him to farm
Jones’s land.
{¶42} Jones claims that there was never any agreement concerning the per-acre
lease price until Martin delivered and she accepted the first check in the spring of each
year. So there was no contract because she never accepted any lease check from
Martin for 2011, i.e. without an agreed price term there was no contract. The parties
never agreed to a specific per-acre lease price after the first couple years that Martin
leased Jones’s farm. To be enforceable, a contract must be definite and certain.
Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-
Ohio-5676, 983 N.E.2d 1267, ¶ 19. A contract price must be definite and certain, and if
it so vague and indefinite that one party will charge what he will while the other party
must guess at his obligation, the contract is illusory and unenforceable. See Ameritech
Publishing, Inc. v. Snyder Tire Wintersville, Inc., 7th Dist. Jefferson No. 09 JE 35, 2010-
Ohio-4868, ¶ 32; Vargo v. Clark, 128 Ohio App.3d 589, 595, 716 N.E.2d 238 (4th Dist.
1998) (“Vagueness of expression, indefiniteness, and uncertainty as to any of the
essential terms of an agreement prevent the creation of an enforceable contract”).
Adams App. No. 14CA992 16
{¶43} Nevertheless, “ ‘[a]ll agreements have some degree of indefiniteness and
some degree of uncertainty [and] * * * [i]n spite of ignorance as to the language they
speak and write, with resulting error and misunderstanding, people must be held to the
promises they make.’ ” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770
N.E.2d 58, ¶ 17, quoting 1 Corbin, Corbin on Contracts, Section 4.1 at 530 (Perillo Rev.
Ed. 1993). Consequently, “ ‘[c]omplete clarity in every term of the agreement is
unnecessary because all agreements have some degree of indefiniteness and
uncertainty.’ ” DePompei, 8th Dist. Cuyahoga No. 101163, 2015-Ohio-18, at ¶ 22,
quoting Advantage Renovations, Inc. v. Maui Sands Resort, Co., LLC, 6th Dist. Erie No.
E-11-040, 2012-Ohio-1866, ¶ 18. “ ‘[S]eldom, if ever, does the evidence in proof of an
oral contract present its terms in the exact words of offer and acceptance found in
formal written contracts. And no such precision is required.’ ” DePompei at ¶ 22,
quoting Rutledge v Hoffman, 81 Ohio App. 85, 86, 75 N.E.2d 608 (1st Dist.1947).
{¶44} Martin testified that after the first couple years of leasing Jones’s farmland,
Jones never said anything about a specific lease price—she would tell him in the fall
when he paid the second of the biannual lease sum whether she wanted more money
for the next year. The agreed price was what he paid her the previous year unless
Jones indicated in the fall she wanted more—at times, Martin would increase the
amount he gave Jones on his own initiative based on the lease rates in the area or the
success of the crop season.
{¶45} Although the lease agreement could have been more specific regarding
the exact per-acre lease price, the parties’ course of dealing—their words and acts over
their twelve-year business relationship indicated that the price was sufficiently specific—
Adams App. No. 14CA992 17
at least the amount of the previous year unless the parties agreed to something different
in the fall when the oral lease was agreed upon. The fact that the first lease payment
was not normally made by Martin until the spring of the current lease year does not alter
this result. See Kuehnle and Levey, Baldwin’s Ohio Real Estate Law, Section 45:6
(2014) (“Particularly in commercial leases, there is often a difference between the date
that the lease term commences and the date that the obligation of the tenant to pay rent
commences”).
{¶46} Based upon Martin’s testimony and the course of dealing between the
parties, the evidence was sufficient to support a finding that the parties had an oral
contract for Martin to farm Jones’s land for 2011.
{¶47} Jones next contends that the parties’ lease was unenforceable because of
the statute of frauds and that the part-performance exception to the statute was
inapplicable. “In Ohio, the Statute of Frauds is embodied in R.C. Chapter 1335.” Ed
Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 438, 662 N.E.2d 1074(1996). R.C. 1335.04 provides that “[n]o lease * * * shall be assigned or granted except
by deed, or note in writing, signed by the party assigning or granting it, or his agent
thereunto lawfully authorized, by writing * * *.” R.C. 1335.05 provides that “[n]o action
shall be brought * * * upon a contract or sale of lands * * * or interest in or concerning
them * * * unless the agreement upon which such action is brought * * * is in writing and
signed by the party to be charged therewith * * *.” It is uncontroverted here that the
parties’ lease was not in writing.
{¶48} Nevertheless, part performance can remove an oral contract concerning
real property from the operation of the statute of frauds. See OBLH, L.L.C. v. O’Brien,
Adams App. No. 14CA992 18
11th Dist. Trumbull No. 2013-T-0111, 2015-Ohio-1208, ¶ 20; Bumgarner v. Bumgarner,
4th Dist. Highland No. 09CA22, 2010-Ohio-1894, ¶ 27; Kuehnle and Levey, Baldwin’s
Ohio Real Estate Law, Section 39.23 (2014); Hughes v. Oberholtzer, 162 Ohio St. 330,
337, 123 N.E.2d 393 (1954) (“Early in the history of the statute of frauds, courts of
equity, to prevent the statute [from] being used as a shield by a wrongdoer, evolved the
doctrine of part performance to remove a contract from the statute”). “Part performance
to be sufficient to remove an agreement from the operation of the statute of [frauds]
must consist of unequivocal acts by the party relying upon the agreement, which are
exclusively referable to the agreement and which have changed his position to his
detriment and make it impossible or impractical to place the parties in statu quo.”
Delfino v. Paul Davies Chevrolet, Inc., 2 Ohio St.2d 282, 209 N.E.2d 194 (1965),
paragraph four of the syllabus2; OBLH at ¶ 21.
{¶49} Thus “[t]he doctrine of part performance which will take a case out of the
operation of the statute of frauds is based upon the acts of the parties which are such
that it is clearly evident that such acts would not have been done in the absence of a
contract and that there is no other explanation for the performance of such acts except
a contract containing the provisions contended for by the plaintiff.” Hughes at 337-338;
Kiser v. Williams, 9th Dist. No. 24968, 2010-Ohio-3390, ¶ 15; King v. King, 4th Dist.
Adams No. 99 CA 680, 2000 WL 326131, *5 (Mar. 20, 2000).
{¶50} Jones suggests that the only pertinent act performed by Martin in reliance
on the claimed oral lease agreement was the November 2010 spraying of chemicals to
2
Although Delfino involved the statute of conveyances instead of the statute of frauds, the Supreme
Court noted that the part-performance exception applied to both provisions because “[t]he basic elements
necessary to remove an instrument from the operation of the statute of frauds are also necessary to
remove it from the operation of the statute of conveyances.” Id. at 286.
Adams App. No. 14CA992 19
kill the marestail weeds. However, the record establishes that Martin also purchased
seed and fertilizer, entered into corn contracts, and leased an additional tractor based
on the oral agreement to lease and farm Jones’s property. Even though he was able to
return some of his crop inputs and did not include them in his calculation of damages,
the fact that he went ahead with their purchase and the tractor lease supports his belief
there was a contract. He also drafted a check for the first half rent and set up an
appointment to sign farm-subsidy papers based on the agreement before he was
advised by Jones in April 2011 that she was leasing the property to Hill. These
constituted unequivocal acts that would not have been performed by Martin if an oral
lease did not exist.
{¶51} Rather than applying part performance to avoid the statute of frauds,
Jones claims that any damages incurred by Martin were readily ascertainable and could
be accounted for by reimbursing him for the $2,175 he spent on the chemical spraying
in November 2010 to kill the weeds in preparation for 2011 planting. But this ignores
the fact that Jones’s late breach of the oral contract prevented Martin from leasing
additional farmland to make up for the loss of Jones’s farmland; this caused him to lose
the profits he would have earned if she had not breached the contract. The doctrine of
part performance is not inapplicable simply because the plaintiff claiming a breach of an
oral contract seeks damages. See Delfino, 2 Ohio St.2d 282, 209 N.E.2d 194 (applying
the doctrine in a case involving a breach of a lease in which the plaintiff sought money
damages); Akron Pregnancy Servs., Inc. v. Mayer Investment Co., 9th Dist. Summit No.
27141, 2014-Ohio-4779, ¶ 16, 18 (Delfino court “applied the equitable doctrine of part
performance * * * to determine whether the plaintiff was entitled to money damages”).
Adams App. No. 14CA992 20
{¶52} Jones relies heavily on our decisions in Mark v. Long, 180 Ohio App.3d
832, 2009-Ohio-581, 907 N.E.2d 759 (4th Dist.) and Manifold v. Schuster, 67 Ohio
App.3d 251, 586 N.E.2d 1142 (4th Dist. 1990), to claim that the doctrine of part
performance does not apply. However, we did not discuss the doctrine of part
performance in Mark and we held that the acts involved in Manifold were deemed
insufficient by the trier of fact to invoke the exception. Moreover, in Mark, the case
involved a holdover tenant who had stayed on the farmland after the expiration of the
term in 2004. And there was evidence that the landowner had notified the tenant that he
would no longer be allowed to lease the property in late 2003 and early 2004.
Conversely, Martin testified that the parties agreed in late 2010 that he could farm the
land in 2011, i.e., he was not a holdover tenant who was subject to at-will lease
termination after the parties had agreed that he could farm Jones’s property in 2011.
Consequently, Mark, Manifold, and other cases cited by Jones addressing holdover
tenants and notice to commercial tenants who hold over after the expiration of their
terms are inapposite. Martin’s part performance of the contract thus removed it from the
statute of frauds.
{¶53} Based on Martin’s testimony about what he and Jones had agreed to in
their 2010 conversations and his actions based on those conversations, substantial
evidence exists upon which reasonable minds could come to different conclusions on
the essential elements of his breach-of-contract claim. Therefore, the trial court did not
err in denying Jones’s motion for judgment notwithstanding the verdict on Martin’s
breach-of-contract claim. See Pepin v. Hansing, 4th Dist. Scioto No. 13CA3552, 2013-
Ohio-4182, ¶ 11 (“A trial court must deny a motion for JNOV if substantial evidence
Adams App. No. 14CA992 21
exists upon which reasonable minds could come to different conclusions on the
essential elements of the claim”). We overrule Jones’s second assignment of error.
C. Jones’s Motion for New Trial
{¶54} In her third assignment of error Jones contends that the trial court erred in
denying her motion for new trial under Civ.R. 59(A)(6) and (7). Civ.R. 59(A)(6)
authorizes the trial court to order a new trial on a finding that the verdict on which the
judgment was entered is not sustained by the weight of the evidence. Civ.R. 59(A)(7)
authorizes the trial court to grant a new trial because the judgment is contrary to law. “
‘If the jury’s verdict is supported as to each element of the plaintiff’s case by some
competent and apparently credible evidence, a defendant’s [Civ.R. 59(A)(6)] motion for
new trial should not be granted.’ ” Watershed Mgt., LLC v. Neff, 2014-Ohio-3631, 20
N.E.23d 1011, ¶ 58 (4th Dist. 2014), quoting Pytel v. Crenshaw, 2d Dist. Montgomery
No. 25487, 2013-Ohio-3552, ¶ 27. A Civ.R. 59(A)(7) motion for new trial because a
judgment is contrary to law presents a question of law that we review de novo. See
Dolan v. Glouster, 4th Dist. Athens Nos. 11CA18, 11CA19, 11CA33, 12CA1, and
12CA6, 2014-Ohio-2017, fn. 22.
{¶55} Jones reiterates the same arguments we rejected in overruling her second
assignment of error—there was no offer and acceptance in the absence of a specific
price and any oral lease was unenforceable because of the statute of frauds. For the
reasons previously discussed, the jury verdict in favor of Martin on his claim for breach
of contract was sustained by the evidence and was not contrary to law. Therefore, the
trial court did not err in denying Jones’s motion for new trial. We overrule Jones’s third
assignment of error.
Adams App. No. 14CA992 22
D. Jones’s Motion for Remittitur
{¶56} In her fourth assignment of error Jones asserts that the trial court erred in
denying her motion for remittitur for a reduced amount of damages. Appellate courts
review trial court decisions on motions for remittitur under an abuse-of-discretion
standard of review. See Shepard v. Grand Trunk Western Railroad, Inc., 8th Dist.
Cuyahoga No. 92711, 2010-Ohio-1853, ¶ 81; Bd. of Trustees of Sinclair Community
College Dist. v. Farra, 2d Dist. Montgomery No. 22886, 2010-Ohio-568, ¶ 72. An abuse
of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable.
State ex rel. Nese v. State Teachers Retirement Bd. of Ohio, 136 Ohio St.3d 103,
2013–Ohio–1777, 991 N.E.2d 218, ¶ 25; Rose v. Cochran, 4th Dist. Ross No.
14CA3445, 2014-Ohio-4979, ¶ 17. An abuse of discretion includes a situation in which
a trial court did not engage in a “ ‘sound reasoning process.’ ” State v. Morris, 132 Ohio
St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River
Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d
597 (1990).
{¶57} “ ‘The general measure of damages for a breach of contract is the amount
necessary to place the non-breaching party in the position he or she would have been
had the breaching party fully performed under the contract.’ ” Watershed Mgt., 4th Dist.
Pickaway No. 10CA42, 2012-Ohio-1020, ¶ 33, quoting Osbourne v. Ahern, 4th Dist.
Jackson No. 10CA42, 2012-Ohio-1020, ¶ 21. That is, “ ‘[m]oney damages awarded in a
breach of contract action are designed to place the aggrieved party in the same position
it would have been in had the contract not been violated.’ ” State ex rel. Stacy v. Batavia
Local School Dist. Bd. of Edn., 105 Ohio St.3d 476, 2005-Ohio-2974, 829 N.E.2d 298, ¶
Adams App. No. 14CA992 23
26, quoting Schulke Radio Prod., Ltd. v. Midwestern Broadcasting Co., 6 Ohio St.3d
436, 439, 6 OBR 480, 453 N.E.2d 683 (1983). These damages can include lost profits.
See GM Gas Exploration, Inc. v. Johnson, 4th Dist. Athens No. 1438, 1991 WL 163644,
*5-6 (Aug. 13, 1991).
{¶58} Jones first argues that because Martin claimed lost profits due to the
breach of $52,019.28, the jury verdict of $64,019.28 was not supported by any credible
evidence. But Martin testified that in addition to the lost profits he incurred because of
the breach, he also lost $12,000 for leasing an additional tractor that he couldn’t use
when Jones breached the parties’ oral lease agreement. Thus, there was evidence that
the Martin’s total loss included $12,000 relating to his lease of the additional tractor.
Therefore, Jones’s argument is meritless.
{¶59} Jones next contends that Martin’s calculation of lost profits was not
supported by the evidence because he assumed a yield of 161 bushels of corn per
acre, even though he never obtained a comparable yield when he planted corn in 2003
on her farm. Martin testified, however, that his yield estimate was based on the amount
of corn yielded on a farm about three miles away from the Jones farm in 2011. We
reject Jones’s contention.
{¶60} Jones finally argues that Martin’s calculation of lost profits was not
supported by the evidence because it resulted in a sum that far exceeded Martin’s
average annual net profit from farming Jones’s land from 1999-2010. Yet Martin’s
detailed testimony about how he calculated the lost profits for 2011 fully supported his
calculation. He went through his records of his fertilizer, seed, lime, and spray costs
and determined how much these expenses cost per acre. He deducted these expenses
Adams App. No. 14CA992 24
as well as expenses for planting, combining, hauling, and rent he would have paid
Jones from gross sales based on the average yield per acre for corn and the price he
sold corn for in 2011. Again, we reject Jones’s argument.
{¶61} Therefore, the trial court did not abuse its broad discretion in denying
Jones’s motion for remittitur. The jury verdict awarding Martin $64,019.28 in damages
for Jones’s breach of their oral lease agreement was supported by evidence adduced at
trial. The trial court’s decision was based on a sound reasoning process, so we
overrule Jones’s fourth assignment of error.
E. Hill’s Motions for Directed Verdict and
Judgment Notwithstanding the Verdict
{¶62} In his second assignment of error Hill contends that the trial court abused
its discretion by overruling his motions for directed verdict and judgment notwithstanding
the verdict on Martin’s claim against Hill for tortious interference with Martin’s business
relationship with Jones. As noted, these motions test the sufficiency of the evidence
and present a question of law we review de novo. Eastley, 132 Ohio St.3d 328, 2012-
Ohio-2179, 972 N.E.2d 517, at ¶ 25. The court can grant the motion only if the court
construes the evidence in favor of the nonmoving party and finds that reasonable minds
could come to but one conclusion upon any determinative issue and the moving party is
entitled to judgment as a matter of law. Vance, 73 Ohio St.3d at 231, 652 N.E.2d 776;
Bungard, 2014-Ohio-334, 8 N.E.3d 336, at ¶ 11.
{¶63} The trial court entered judgment upon the jury verdict in favor of Martin on
his claim for tortious interference with a business relationship against Hill. The
elements of tortious interference with a business relationship are: (1) a business
Adams App. No. 14CA992 25
relationship; (2) the tortfeasor’s knowledge thereof; (3) an intentional interference
causing a breach or termination of the relationship; and (4) damages resulting
therefrom. Dolan, 4th Dist. Athens Nos. 11CA18 et seq., 2014-Ohio-2017, at ¶ 45;
compare Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 425, 650 N.E.2d 863(1995), paragraph two of the syllabus (setting forth comparable requirements to prove a
claim of intentional interference with a contract). Tortious interference with a business
relationship is similar to tortious interference with a contract, but the result of the
interference does not require the breach of contract. It is sufficient to prove that a third
party does not enter into or continue a business relationship with the plaintiff. See
Magnum Steel & Trading, LLC v. Mink, 9th Dist. Summit Nos. 26127 and 26231, 2013-
Ohio-2431, ¶ 10.
{¶64} Hill raises two arguments in support of his assignment of error. First, he
contends that there was no contract between Jones and Martin for him to interfere with.
But as noted in order for Martin to establish tortious interference with his business
relationship with Jones, he did not have to establish the existence of a contract. Id.And as we previously determined in overruling Jones’s second and third assignments of
error, the record contains sufficient evidence of a valid oral contract for Martin to lease
Jones’s farmland for 2011. Hill’s first contention is thus meritless.
{¶65} Hill’s remaining and primary claim is that because the contract between
Martin and Jones was terminable at will, he could not have tortiously interfered with it,
i.e. his actions seeking and in entering into a lease with Jones in 2011 constituted fair
competition. “Establishment of the privilege of fair competition, as set forth in Section
768 of the Restatement[, of Torts (1979)], will defeat a claim of tortious interference with
Adams App. No. 14CA992 26
contract where the contract is terminable at will.” Fred Siegel Co., L.P.A. v. Arter &
Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999), paragraph four of the syllabus.
“Thus, where an existing contract is terminable at will, and where all the elements of
Section 768 of the Restatement are met, a competitor may take action to attract
business, even if that action results in an interference with another’s existing contract.”
Id. at 179.
{¶66} We reject Hill’s argument because it is based on the erroneous premise
that the oral lease between Martin and Jones for 2011 was terminable at will. Hill relies
on our decisions in Mark, 180 Ohio App.3d 832, 2009-Ohio-581, 907 N.E.2d 759, and
Manifold, 67 Ohio App.3d 251, 586 N.E2d 1142, to support this premise. These cases
held that a tenancy at will occurred when possession of the premises was taken under
an oral lease that was rendered invalid because it did not comport with the statute of
frauds. No tenancy at will occurred here because there was sufficient evidence to
support a finding that the doctrine of part performance applied to remove the parties’
oral contract from the operation of the statute of frauds. Consequently, Hill was not
entitled to the privilege of fair competition set forth in Fred Seigel Co.
{¶67} Therefore, Hill’s arguments are meritless. The trial court did not err in
denying his motions for directed verdict and judgment notwithstanding the verdict. We
overrule his second assignment of error.
F. Award of Damages against Hill
{¶68} In his third assignment of error Hill asserts that the awarding of damages
to Martin was against the manifest weight of the evidence. When an appellate court
reviews whether a trial court's decision is against the manifest weight of the evidence,
Adams App. No. 14CA992 27
the court weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the factfinder
clearly lost its way and created such a manifest miscarriage of justice that the judgment
must be reversed. Eastley, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶
20 (clarifying that the same type of manifest-weight analysis applies in civil and criminal
cases); Pinkerton v. Salyers, 4th Dist. No. 13CA3388, 2015-Ohio-377, ¶ 18, citing In re
M.M., 4th Dist. Meigs No. 14CA6, 2014–Ohio–5111, ¶ 22 (applying this standard in a
case that involved a burden of proof of clear and convincing evidence). “Because the
trial court is best able to view the witnesses, observe their demeanor, gestures, and
voice inflections, and use those observations in weighing the credibility of the witnesses,
a reviewing court will presume that the trial court's findings of fact are accurate.”
Cadwallader v. Scovanner, 178 Ohio App.3d 26, 2008–Ohio–4166, 896 N.E.2d 748, ¶ 9
(12th Dist.), quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d
1273 (1984). “We will reverse a judgment as being against the manifest weight of the
evidence only in the exceptional case in which the evidence weighs heavily against the
judgment.” Pinkerton at ¶ 18.
{¶69} Hill first claims that the award of $2,175 in compensatory damages is
clearly a duplication of damages assessed against Jones. In response Martin argues
that the $2,175 awarded by the jury against Hill for compensatory damages could have
been justified as interest constituting a loss of use of the $64,019.28 awarded to Martin
on his breach-of-contract claim against Jones. But Martin’s argument is not persuasive.
Manifestly, the $2,175 awarded in compensatory damages to Martin represented the
amount he paid to have Jones’s farm sprayed with herbicide in November 2010 in
Adams App. No. 14CA992 28
preparation for planting corn on Jones’s farmland in 2011. Indeed, at the trial court’s
hearing on Hill’s and Jones’s motions for judgment notwithstanding the verdict, for new
trial, and remittitur, the court specifically recognized that the $2,175 in compensatory
damages “was the amount of the spray for the marestail that was applied in November
[2010].” This expense was already accounted for in Martin’s calculation of lost profits
for Jones’s breach of their 2011 lease agreement in Exhibit 16 and his testimony
concerning the exhibit at trial.
{¶70} Therefore, the awards for damages for Martin’s breach-of-contract claim
against Jones and for Martin’s tortious-interference claim against Hill were duplicative in
that small amount. “ ‘Regarding duplicative damages, ‘the fact that a plaintiff has
separate and independent causes of action in contract and tort does not permit him to
recover more than the amount of damage actually suffered as a consequence of the
injury resulting from the wrongful breach of his contract.’ ” D.A.N. Joint Venture III, L.P.
v. Med-XS Solutions, Inc., 11th Dist. Lake No. 2011-L-056, 2012-Ohio-980, ¶ 46,
quoting Davison Fuel & Dock Co. v. Pickands Mather & Co., 54 Ohio App.2d 177, 182,
376 N.E.2d 965 (1st Dist. 1977).
{¶71} Nevertheless, Hill is not entitled to reversal of this award of compensatory
damages on appeal. Hill invited this error when his trial counsel conceded in the past
trial hearings that the total judgment against him should be “commensurate with his
liability in this matter, or an amount not to exceed $2,175 which will reduce the amount
to an amount believed to be fair and proper.” In effect, Hill agreed that the jury verdict
against him for compensatory damages of $2,175 was appropriate. Based on this
concession, the trial court did not err in entering judgment on the jury verdict awarding
Adams App. No. 14CA992 29
this amount to Martin on his tortious-interference claim against Hill. See State ex rel.
Kline v. Carroll, 96 Ohio St.3d 404, 2002–Ohio–4849, 775 N.E.2d 517, ¶ 27 (“Under [the
invited-error] doctrine, a party is not entitled to take advantage of an error that he
himself invited or induced the court to make”); State v. Rohrbaugh, 126 Ohio St.3d 421,
2010–Ohio–3286, 934 N.E.2d 920, ¶ 10 (even plain error is waived where error is
invited); Faulks v. Flynn, 4th Dist. Scioto No. 13CA3568, 2014-Ohio-1610, ¶ 22.
{¶72} Hill next contends that the award of punitive damages to Martin on his
tortious-interference claim was against the manifest weight of the evidence. “ ‘[T]he
assessment of damages lies so thoroughly within the province of the [trier of fact] that a
reviewing court is not at liberty to disturb the [trier of fact’s] assessment,’ absent an
affirmative finding of passion and prejudice, or a finding that the award is manifestly
excessive or inadequate.’ ” Lewis v. Nease, 4th Dist. Scioto No. 05CA3025, 2006-Ohio-
4362, ¶ 53, quoting Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 655, 653
N.E.2d 331 (1994).
{¶73} “The purpose of punitive damages is not to compensate the plaintiff, but to
punish and deter the defendant’s conduct.” Burns v. Adams, 4th Dist. Scioto No.
12CA3508, 2014-Ohio-1917, ¶ 79. “Punitive damages may be awarded as a
punishment to discourage others from committing similar wrongful acts if a plaintiff
proves by clear and convincing evidence that a defendant acted with malice.”
Colegrove v. Fred A. Nemann Co., 1st Dist. Hamilton No. C-140171, 2015-Ohio-533, ¶
28. Malice is “that state of mind under which a person’s conduct is characterized by
hatred, ill will, or spirit of revenge, or a conscious disregard for the rights and safety of
Adams App. No. 14CA992 30
other persons that had a great probability of causing substantial harm.” Preston v.
Murty, 32 Ohio St.3d 334, 335, 512 N.E.2d 1174 (1984).
{¶74} Hill claims that there was no evidence, much less clear and convincing
evidence, presented that he had committed any conscious wrongdoing or conduct that
was characterized by hatred, ill will, or spirit of revenge.
{¶75} However, Hill ignores Martin’s specific testimony that Hill “knew the
ground was rented and he offered [Jones] extra money to get his foot in the door in this
area from what” Jones told Martin. Martin further testified that Hill knew that Martin was
renting the farm and that Martin had had the farmland sprayed in preparation for
planting in 2011. According to Martin, he had a good relationship with Jones until Hill
interfered. Hill benefitted from Martin’s November 2010 application of herbicide to
Jones’s farmland. This evidence supported the jury award of $45,000 in punitive
damages against Martin. Moreover, as the trial court itself observed at the hearing on
the defendants’ postverdict motions:
In regard to [remittitur] the Court does not intend to invade the province of
this jury on [remittitur]. And, Mr. Hill, I’ve tried to refrain but your constant
disdain that you displayed throughout 9 days of trial and even upon the
declaration of this Court’s award obviously this jury picked up on it and
they picked up on your behavior and interference with this contract and
just your noticeable sigh of disdain just now in a courtroom unfortunately is
reflective of this jur[y’s] verdict against you and their belief that you
intentionally interfered with this contract.
{¶76} Based upon our review of the voluminous record in this case, neither the
jury nor the trial court lost its way in assessing compensatory and punitive damages
against Hill on Martin’s claim for tortious interference with his business relationship with
Adams App. No. 14CA992 31
Jones. Thus, the award of these damages is not against the manifest weight of the
evidence. We overrule Hill’s third assignment of error.
G. Award of Attorney Fees against Hill
{¶77} In his fourth assignment of error Hill argues that the trial court erred in
awarding attorney fees against him on Martin’s tortious-interference claim. Hill claims
that the award of $53,000 was against the manifest weight of the evidence because
there was no evidence concerning the reasonableness of those fees. Martin testified
that he had agreed to pay his attorney $200 per hour, that he had paid his attorney
almost $28,000 in fees and costs by the time he testified at trial, and that he still owed
his counsel about $25,000 in fees at that time. After the jury had begun deliberating, it
requested the amount of attorney fees incurred by each party. Counsel stipulated the
amounts of attorney fees incurred by each party and these stipulated sums were
submitted to the jury. The parties stipulated that Martin had incurred $53,000 in
attorney fees. This amount was consistent with the sum testified to by Martin. The
parties did not object to the fee amounts submitted to the jury.
{¶78} By not objecting to the amount of Martin’s attorney fees submitted to the
jury, Hill forfeited any claim on appeal challenging that amount. See, e.g., Cain v. Cain,
11th Dist. Ashtabula No. 2002-A-0086, 2004-Ohio-2448, ¶ 17-22 (trial court did not err
by awarding attorney fees without first determining their reasonableness because
appellant waived the issue by not raising it below). We overrule Hill’s fourth assignment
of error.
IV. CONCLUSION
Adams App. No. 14CA992 32
{¶79} The evidence submitted at the jury trial supported the judgment of the trial
court finding in Martin’s favor on his breach-of-contract claim against Jones and on his
tortious-interference-with-a-business-relationship claim against Hill and the award of
damages, including attorney fees. Having overruled Jones’s and Hill’s assignments of
error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Adams App. No. 14CA992 33
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant and Cross-
Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams
County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & McFarland, A.J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.