James H. Waldron v. Patrick E. Gammons, 84-LW-0743

• Decision Date: 27 January 1984
• Docket Number: E-83-14,84-LW-0743
• Parties: James H. Waldron, et al., APPELLEES v. Patrick E. Gammons, APPELLANT C. A.
• Court: Ohio Court of Appeals

James H. Waldron, et al., APPELLEES v. Patrick E. Gammons, APPELLANT

No. E-83-14.

84-LW-0743 (6th)

Court of Appeals of Ohio, Sixth District Erie

January 27, 1984

APPEAL FROM ERIE COUNTY COMMON PLEAS COURT NO. 44601.

DECISION AND JOURNAL ENTRY

PER CURIAM

This cause came on to be heard upon the record in the trial court.®1¯ Each assignment of error was reviewed by the court and upon review the following disposition made:

Footnote 1 The court notes that when the oral arguments in this case were heard, it was discovered that the trial court had not ruled on a pending motion for a new trial and, accordingly the judgment appealed from was not a final appealable order. See Hurt v. Rogers Transportation Co. (1953), 160 Ohio St 70; Mories v. Hendy (1965), 1 Ohio App. 2d 349; Fed. R. App Pro. 4(a)4. This court proceeded to hear oral arguments on the merits. Thereafter, the trial court denied the motion for a new trial. The parties have since executed a written waiver (the same now having been made part of the record) of any right to a new briefing schedule, briefing of new assignments of error and oral argument. The instant appeal is now ripe for decision.

This cause comes on appeal from the Common Pleas Court of Erie County. The record indicates that in 1979 the appellees, Mr. and Mrs. James Waldron, contacted appellant, an attorney, about filing bankruptcy. An attorney-client relationship was formed and appellant filed a bankruptcy petition for the Waldrons, which eventually led to a discharge. During the existence of the attorney-client relationship, the Waldrons loaned to appellant a tractor-trailer for appellant to use in his business operation, Gammons Products Company. Thereafter, James Gammons, appellant's brother and operations manager of Gammons Products Company, sold the trailer to a third party, Peter Dellisanti. At no time did the Waldrons give permission to have the trailer sold. Dellisanti testified that James Gammons and appellant led him to believe that they owned the trailer. Dellisanti later contacted appellant in order to obtain title to the trailer. Appellant admitted at trial that at no time after learning of the sale to Dellisanti did he contact the Waldrons to inform them of the sale, nor did he remit to the Waldrons any of the purchase price. Instead, appellant sent a check to a bank to release a lien on the trailer. Dellisanti testified that appellant told him that he had acquired the trailer in partial payment of legal work he had done for some people. The testimony indicates that appellant then authorized the bank to issue a duplicate title to Dellisanti. It is uncontroverted that at all times the Waldrons possessed title to the trailer, the Waldrons did not authorize the sale of the trailer, and were never informed by appellant that the trailer had been sold. Subsequently, the Waldrons learned of the sale of the trailer and filed suit against appellant. The cause proceeded to a trial by jury and at the close of all the evidence, the trial court directed a verdict against appellant as to liability. The trial court submitted the issue of damages to the jury. The trial judge thoroughly instructed the jury on the law relative to compensatory and punitive damages, including damages as and for attorney fees. The jury returned a verdict in favor of appellees in the amount of $1,050 for compensatory damages, $10,000 for punitive damages and $1,000 for attorney fees. The trial court entered judgment on the verdict and appellant filed the instant appeal.

Appellant's assignments of error state as follows:

"I. IT WAS AN ABUSE OF THE COURT'S DISCRETION TO GRANT THE PLAINTIFFS' MOTION FOR A DIRECTED VERDICT.

"II. THE JUDGMENT ENTERED FROM THE VERDICT OF THE JURY BY THE COURT FOR PUNITIVE DAMAGES IS NOT SUSTAINED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO LAW."

As to appellant's first assignment of error, we note the following ruling of the trial court which was dictated into the record pursuant to Civ. R. 50(E):

"The court has listened intently for the last two days to the testimony in this case, the court finds that construing the evidence most strongly in favor of the defendant, in light of the defendant's testimony the court must direct a verdict as to liability in behalf of the plaintiff. The court feels that reasonable minds could come to but one conclusion that the defendant, having represented these parties as an attorney, and being in that fiduciary relationship at the time he acquired the use of that trailer, by his own admission, had control of that trailer, learned of it at least at the time that Mr. Dellisanti came in, and by his own admission, did nothing to contact his clients or

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