Richard L. Bowen & Associates v. James Kassouf

• Decision Date: 22 June 1995
• Docket Number: 66801 and 67018,95-LW-1951
• Citation: Richard L. Bowen & Associates v. James Kassouf, 66801 and 67018, 95-LW-1951 (Ohio App. Jun 22, 1995)
• Parties: RICHARD L. BOWEN & ASSOCIATES, PLAINTIFF-APPELLEE v. JAMES KASSOUF, ET AL., DEFENDANTS-APPELLANTS NOS. 66801 and 67018.
• Court: Ohio Court of Appeals

RICHARD L. BOWEN & ASSOCIATESPLAINTIFF-APPELLEE v. JAMES KASSOUF, ET AL., DEFENDANTS-APPELLANTSNOS. 66801, 67018.

95-LW-1951 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

June 22, 1995

Civil appeal from Common Pleas Court, Case No. CV-217432.

For Plaintiff-Appellee: Nicholas M. DeVito, Esq., Christopher M DeVito, Esq., Morganstern, McAdams & DeVito, 1406 W. 6th Street, Suite 400, Cleveland, OH 44113 and Gregory M. Lichko Esq., Garfield & Zagrans, 2600 Bank One Center, 600 Superior Avenue, Cleveland, OH 44114.

For Defendants-Appellants: Harry A. Hanna, Esq., Carol H. Gelman, Esq., Thompson, Hine & Flory, 1100 National City Bank Building, Cleveland, OH 44114 and Jeffrey H. Light, Esq., 1476 Davenport Avenue, Cleveland, OH 44114.

OPINION

DAVID T. MATIA, P.J.

James Kassouf, Kassouf Development Company and 1313 West 6th Street Limited Partnership, defendants-appellants, appeal from the jury verdict and judgment of the Cuyahoga County Court of Common Pleas.Defendants-appellants assign four errors for this court's review.

Defendants-appellants' appeal is not well taken.

I.THE FACTS

On September 4, 1991 Richard L. Bowen and Associates, Inc., plaintiff-appellee, filed a complaint against James Kassouf, defendant-appellant, alleging breach of contract, on account, unjust enrichment and fraud.On December 8, 1992 an amended complaint was filed in which Kassouf Development Company, 1313 West 6th Street Limited Partnership and Steven L. Wasserman were named as additional defendants.Kassouf and Wasserman were named in their capacity as general partners in 1313 West 6th Street Limited Partnership.The amended complaint alleged the identical causes of action as the original complaint.

This action arose out of an alleged oral agreement between James Kassouf, defendant-appellant, and Richard L. Bowen and Associates, Inc., plaintiff-appellee, for architectural and engineering services in connection with the renovation of former industrial buildings owned by Kassouf located in Cleveland's "warehouse district."At the heart of the dispute is the issue of whether Bowen and Associates contracted with Kassouf only or with Kassouf, Wasserman, 1313 West 6th Street Limited Partnership and Kassouf Development Company.

Prior to the commencement of the jury trial, the trial court granted defendants-appellants' motion to dismiss the fraud allegations contained within the amended complaint.Jury trial commenced on all remaining claims on December 14, 1993.

During trial, there was significant testimony relating to the alleged oral agreement and the possible application of the statute of frauds.Richard Bowen, president of Bowen and Associates, and James Buell, project manager for Bowen and Associates, each testified that, in their respective opinions, the project in question could have been easily completed in less than one year.In addition, defendants-appellants' witness, Alan Ellett, also testified as to the estimated length of the project.

Defendants-appellants argued that the testimony of both Bowen and Buell as it related to the estimated length of the project should have been classified by the trial court as expert testimony and stricken for failure to provide pretrial notice or expert reports.Defendants-appellants' objections and motions for mistrial upon the use of expert testimony were denied by the trial court.Plaintiff-appellee contends that the testimony of Bowen and Buell was in no way expert testimony.

After the close of the evidence, the jury was given four general verdict forms:

1) the option of finding against all four defendants;

2) the option of finding for all defendants;

3) the option of finding against James Kassouf and Kassouf Development Co. and for the remaining defendants; and

4) the option of finding against Kassouf Development Co. only.

During deliberations, the jury submitted the following question to the trial court:

Can we change against all defendants to against Kassouf Development Company, 1313 West 6th Street Limited Partnership and James Kassouf and in favor of Steven Wasserman?

The trial court then went on the record outside of the presence of the jury and read the jury's question to the parties.The following proceedings took place on the record:

THE COURT: What I am prepared to answer would be as follows: "Jury --" and this will be on the question that they sent here -- "If the above is your verdict, you may so write it on a verdict form, and it must be executed as to amount, and signed by those jurors that agree -- at least six.Notify the bailiff when you are ready to report."

Is there any reason that this should not be the response?Everybody seems to say that they agree that this should be the response; is that correct?

MR. HANNA: Yes, sir.

MR. LICHKO: Wait a minute.I am still thinking about it, Your Honor.

THE COURT: So I will respond to the jury in writing on the same for that they sent here, as I just read it to the lawyers here.

Here, I have written out the response as I read it to you.I have signed it.

The bailiff will take it and get some copies of it, and then you can look at it.And then he will take the response to the jury.

MR. HANNA: May I have a moment with Mr. Wasserman before it goes in?

THE COURT: Yes.Go ahead.

MR. HANNA: I just reviewed the response, Your Honor, with Mr. Wasserman, and it is okay to give it as the Court has written it.

THE COURT: I understand it is satisfactory to counsel on both sides for me to respond to the inquiry as I have indicated and as is contained, like written out in my response.

Is that right?

Counsel for the Plaintiff says yes?

MR. LICHKO: Yes, Your Honor.

THE COURT: And counsel for the defense?

MR. HANNA: Yes, Your Honor.

The trial court then instructed the jury as previously indicated.

On December 17, 1993 the jury returned a verdict against Kassouf Development Company, 1313 West 6th Street Limited Partnership and James Kassouf in the amount of $144,609.68 and in favor of Steven Wasserman.In reaching their verdict, the jury completed a number of interrogatories finding that a contract existed between Kassouf Development Company, 1313 West 6th Street Limited Partnership, James Kassouf and Richard L. Bowen and Associates, Inc.The jury interrogatories also indicated that Steven L. Wasserman did not enter into a contract with Bowen and Associates, Inc.

On January 3, 1994, James Kassouf, Kassouf Development Company and 1313 West 6th Street Limited Partnership, defendants-appellants, filed motions for new trial and 1313 West Sixth Street Limited Partnership and James Kassouf filed separate motions for judgment notwithstanding the verdict.On January 21, 1994defendants-appellants filed their notice of appeal from the trial verdict.On February 17, 1994the trial court denied all defendants-appellants' post-trial motions.Defendants-appellants filed a second notice of appeal from the denial of the post-judgment motions on March 15, 1994.Upon defendants-appellants' motion, this court has consolidated the two separate appeals.

II.FIRST AND SECOND ASSIGNMENTS OF ERROR

Defendants-appellants' first assignment of error states:

THE TRIAL COURT ERRED IN ACCEPTING A GENERAL VERDICT THAT WAS INCONSISTENT AND IRRECONCILABLE WITH THE JURY INTERROGATORIES, JURY INSTRUCTIONS, AND THE EVIDENCE PRESENTED IN THE CASE BELOW.

Defendants-appellants' second assignment of error states:

BECAUSE OF THE INCONSISTENT AND ILLOGICAL NATURE OF THE VERDICT RENDERED IN THE TRIAL COURT, THERE IS PLAIN ERROR WHICH MANDATES CORRECTIVE MEASURES BY THIS COURT OF APPEALS.

Having a common basis in both law and fact, this court shall consider defendants-appellants' first and second assignments of error concurrently.

A.INCONSISTENT VERDICT

Defendants-appellants argue through their first and second assignments of error that the jury verdict and answers to the interrogatories were totally inconsistent with the applicable law and the trial court's jury instructions.Specifically, defendants- appellants contend that this action involved four defendants, two individuals sued in their capacity as general partners, the partnership itself and an Ohio corporation.

The jury returned a verdict against the corporation, the partnership and only one of the general partners.It is defendants-appellants' position that such a result contradicts Ohio law.

Plaintiff-appellee contends that defendants-appellants waived their right to argue inconsistency on appeal by failing to object to the alleged error prior to the jury being discharged.Defendants-appellants maintain that, while there was no immediate objection to the inconsistent verdict, the result amounts to plain error and should be reversed.

B.STANDARD OF REVIEW FOR PLAIN ERROR

In State v. Long(1978), 53 Ohio St.2d 91 the Ohio Supreme Court stated that the plain error doctrine should be applied with, "utmost caution, under exceptional circumstances and only to present a manifest miscarriage of justice."Id. at paragraph three of syllabus.

The plain error doctrine is almost universally applied in criminal cases, however, the doctrine may be applied to civil cases, even if the party seeking application of the doctrine failed to object at trial, if the error complained of would have a material adverse effect on the character and public confidence in judicial proceedings.Schade v. Carnegie Body Co.(1982), 70 Ohio St.2d 207, 209.

C.STANDARD OF REVIEW FOR INCONSISTENT VERDICT

Ohio courts have held that a party must object to an inconsistency between an answer to a special interrogatory and a general verdict before the jury is discharged.There are two main policy rationales for this requirement: 1) to promote the efficiency of trials by permitting the reconciliation of...