Opinion
No. 106189
04-12-2018
RAYMOND KELLEY PLAINTIFF-APPELLANT v. CHRISTOPHER L. SULLIVAN, ET AL. DEFENDANTS-APPELLEES
ATTORNEY FOR APPELLANT Andrew S. Pollis Milton A. Kramer Law Clinic 11075 East Blvd. Case Western Reserve University Cleveland, Ohio 44106 FOR APPELLEES Christopher L. Sullivan, pro se Lake County Jail 104 East Erie St. Painesville, Ohio 44077 For Sullivan Restoration & Construction, Inc. c/o Christopher L. Sullivan, S.A. Lake County Jail 104 East Erie St. Painesville, Ohio 44077
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-17-877312 BEFORE: E.T. Gallagher, P.J., Stewart, J., and Blackmon, J. ATTORNEY FOR APPELLANT Andrew S. Pollis
Milton A. Kramer Law Clinic
11075 East Blvd.
Case Western Reserve University
Cleveland, Ohio 44106 FOR APPELLEES Christopher L. Sullivan, pro se
Lake County Jail
104 East Erie St.
Painesville, Ohio 44077 For Sullivan Restoration & Construction, Inc. c/o Christopher L. Sullivan, S.A.
Lake County Jail
104 East Erie St.
Painesville, Ohio 44077 EILEEN T. GALLAGHER, P.J.:
{¶1} Plaintiff-appellant, Raymond Kelley, appeals the denial of his request for punitive damages and claims the following sole assignment of error:
1. The trial court erred in concluding that it was precluded by law from awarding Mr. Kelley punitive damages in addition to trebling his economic damages.
{¶2} We find no merit to the appeal and affirm the trial court's judgment.
I. Facts and Procedural History
{¶3} In March 2015, a community development organization, acting on behalf of the Cleveland Department of Building and Housing, issued a citation to Kelley for several building code violations on his property. The violations pertained to defects in Kelley's roof, peeling exterior paint, and a dilapidated awning. The citation warned that failure to correct the violations was a criminal offense subject to penalties of $1,000 per day of noncompliance.
{¶4} After receiving the citation, Kelley received repair estimates from five contractors and awarded the project to defendant-appellee, Christopher Sullivan, because he offered the lowest price. Kelley paid Sullivan a total of $13,000 pursuant to the parties' contract, but Sullivan never performed the work promised in the agreement. Consequently, Kelley filed a complaint against Sullivan and his company, defendant-appellee Sullivan Restoration Construction, Inc., alleging violations of the Ohio Consumer Sales Practices Act ("CSPA") (R.C. 1345.02), violations of the Home Solicitation Sales Act (R.C. 1345.21-1345.28), breach of contract, fraud, conversion, civil theft, and unjust enrichment. In the prayer for relief, Kelley sought compensatory damages, trebled economic damages, noneconomic damages, attorney fees, costs, and punitive damages. Requests for admissions were attached to the complaint.
{¶5} Neither defendant filed an answer to the complaint, and Kelley moved for default judgment under Civ.R. 55. And since Sullivan failed to respond to the requests for admissions, they were deemed admitted pursuant to Civ.R. 36. The trial court granted the motion for default and awarded Kelley compensatory damages, treble damages under the CSPA, noneconomic damages, attorney fees, and costs, but declined to award punitive damages. The trial court's journal entry states, in relevant part: "This court declines to enter an award of puntive damages in addition to its award of treble damages. See Boland v. DiFiori's Custom Home Ext., Inc., 8th Dist. Cuyahoga No. 82425, 2004-Ohio-5201." Kelley now appeals the trial court's denial of his request for punitive damages.
II. Law and Analysis
{¶6} In his sole assignment of error, Kelley argues the trial court erred in denying his claim for punitive damages. He contends the court should have awarded him punitive damages because nothing in the CSPA precludes an award of punitive damages in addition to treble economic damages and attorney fees.
{¶7} The CSPA, R.C. Chapter 1345, prohibits unfair, deceptive, and unconscionable acts or practices by suppliers in consumer transactions. Einhorn v. Ford Motor Co., 48 Ohio St.3d 27, 29, 548 N.E.2d 933 (1990). It is a consumer protection statute providing a variety of remedies, including multiple forms of damages, in an effort to promote its objectives. Indeed, punitive damages and treble damages may both be awarded in an appropriate case under the CSPA. Samber v. Mullinax Ford E., 173 Ohio App.3d 585, 2007-Ohio-5778, 879 N.E.2d 814 (11th Dist.); Crawford v. Bill Swad Chevrolet, Inc., 10th Dist. Franklin No. 00AP-188, 2000 Ohio App. LEXIS 4221 (Sept. 19, 2000); Mid-America Acceptance Co. v. Lightle, 63 Ohio App.3d 590, 579 N.E.2d 721 (10th Dist.1989).
{¶8} Kelley argues the trial court erred in failing to award him punitive damages in the default judgment entered against the defendants in this case. However, punitive damages are not recoverable under the CSPA unless "'[t]he actions or omissions of [the] defendant demonstrate actual malice or aggravated or egregious fraud * * * .'" Favors v. Burke, 8th Dist. Cuyahoga No. 98617, 2013-Ohio-823, quoting R.C. 2315.21(C)(1); see also Charles R. Combs Trucking, Inc. v. Internatl. Harvester Co., 12 Ohio St.3d 241, 466 N.E.2d 883 (1984).
{¶9} Actual malice, necessary for an award of punitive damages, is (1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987), syllabus.
{¶10} A trial court lacks authority to award punitive damages in the absence of evidence supporting the punitive damage award. Carr v. Charter Natl. Life Ins. Co., 22 Ohio St.3d 11, 488 N.E.2d 199 (1986), syllabus. "Where a damages claim is "liquidated" or based on a readily ascertainable amount, such as an account, no additional proof is necessary." K. Ronald Bailey & Assocs. Co., L.P.A. v. Soltesz, 6th Dist. Erie No. E-05-077, 2006-Ohio-2489, ¶ 16. Punitive damages are, by nature, unliquidated and thus require additional evidence to establish an appropriate amount. Id. at ¶ 20 (Even where fraud was established, trial court erred in awarding punitive damages where there was no evidence submitted to support the punitive damages award.). See also Carr at syllabus.
{¶11} In determining an appropriate amount of punitive damages, the trial court must consider the "'reprehensibility of the defendant's conduct, the disparity between the harm suffered by the plaintiff and the amount of the punitive damages award, and the difference between the punitive damages award and civil or criminal penalties authorized or imposed in similar cases.'" Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77, 2002-Ohio-7113, 781 N.E.2d 121, ¶ 152, quoting Wightman v. Consol. Rail Corp., 86 Ohio St.3d 431, 439-440, 715 N.E.2d 546 (1999).
{¶12} Indeed, the degree of reprehensibility of the defendant's conduct is "'the most important indicium of the reasonableness of a punitive damages award.'" Id. at ¶ 154, quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed. 2d 809 (1996). The more reprehensible the defendant's conduct, the more an award of punitive damages may be justified.
{¶13} The plaintiff bears the burden of establishing entitlement to punitive damages by clear and convincing evidence. Whetstone v. Binner, 146 Ohio St.3d 395, 2016-Ohio-1006, 57 N.E.3d 1111, ¶ 20.
Clear and convincing evidence is that measure or degree of proof which is more than a mere "preponderance of the evidence," but not to the extent of such certainty as is required "beyond a reasonable doubt" in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231 ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶14} Kelley provided no evidence to support an amount of punitive damages except for requests for admissions. Although there is evidence establishing that Sullivan acted with "actual malice" or "egregious fraud" because these facts were deemed admitted, there is no evidence regarding Sullivan's actual reasons for failing to perform the work he promised. There is no evidence establishing that Sullivan's failure to perform the contracted work was driven by actual malice, hatred, or ill will, or whether it was the result of any other myriad of possible causes such as neglect or illness.
{¶15} Admissions deemed admitted by default may satisfy the preponderance of the evidence measure of proof, but the clear and convincing standard requires something more.
{¶16} Moreover, punitive damages are not recoverable as of right; their allowance is discretionary. Roark v. Rydell, 174 Ohio App.3d 186, 2007-Ohio-6873, 881 N.E.2d 333 (1st Dist.). The trial court is not required to award punitive damages even if it finds that the defendant was moved by actual malice. Binner, 146 Ohio St.3d 395, 2016-Ohio-1006, 57 N.E.3d 111, at ¶ 20; Popke v. Hoffman, 21 Ohio App. 454, 153 N.E. 248 (6th Dist.1926.); Kemp v. Kemp, 161 Ohio App.3d 371, 2005-Ohio-3120, 831 N.E.2d 1038 (5th Dist.); Sears v. Holly, 113 Ohio App. 349, 178 N.E.2d 91 (2d Dist.1960). In the absence of clear and convincing evidence establishing that Kelley acted with actual malice, we cannot say the trial court abused its discretion in denying punitive damages even though such evidence was deemed admitted by Kelley's failure to respond to the requests for admissions.
{¶17} Finally, Kelley argues the trial court erred in relying on Boland, 8th Dist. Cuyahoga No. 82425, 2004-Ohio-5201, to support its denial of Kelley's request for punitive damages. He asserts that Boland lacked analysis to support its holding that the plaintiff in that case was not entitled to punitive damages in addition to treble damages.
{¶18} Although the Boland decision does not contain a lengthy analysis, the plaintiff in that case failed to demonstrate entitlement to punitive damages because he obtained a default judgment in the absence of any evidence. Indeed, we reversed the default judgment because the plaintiff failed "to articulate" the amount of his total expenses in his affidavit in support of default judgment. Boland at ¶ 19. Therefore, despite Kelley's argument to the contrary, Boland is consistent with this court's decision in Favors, 8th Dist. Cuyahoga No. 98617, 2013-Ohio-823, the Ohio Supreme Court's decision in Carr, 22 Ohio St.3d 11, 488 N.E.2d 199, and our decision in this case.
{¶19} The sole assignment of error is overruled.
{¶20} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. EILEEN T. GALLAGHER, PRESIDING JUDGE MELODY J. STEWART, J., and
PATRICIA ANN BLACKMON, J., CONCUR