Szuch v. King
| Decision Date | 03 December 2010 |
| Docket Number | Trial Court No. 2006-CV-614,Court of Appeals No. E-09-069 |
| Citation | 2010 Ohio 5896 |
| Parties | Edward J. Szuch, Jr., et al. Appellants/Cross-Appellees v. Kenneth King, et al. Appellees/Cross-Appellants |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT
Dennis E. Murray, Jr., and James S. Timmerberg, for appellants/ cross-appellees.
Harry Sigmier for appellees/cross-appellants Lake Fish Co., Dale Trent, and Craig Carr.
William H. Smith, Jr., for appellees Joe Smith and Joe Herr.
James W. Hart, for appellees Richard Stinson, Orvilee Stinson, and Port Clinton Fisheries, Inc.
Alan B. Dills and Amy M. Natyshak, for appellee Kenneth King.
{¶ 1} Appellants appeal an unfavorable judgment entered on a jury verdict in the Erie County Court of Common Pleas on a suit brought by a commercial fisherman for tortious interference, civil conspiracy and antitrust violations against wholesale fisheries, their principals and other fishermen. For the reasons that follow, we affirm.
{¶ 2} The Ohio Department of Natural Resources ("ODNR") regulates commercial fishing in the Ohio waters of Lake Erie. ODNR licenses the fishermen and, in the case of the most prized catch, the Lake Erie yellow perch, the agency sets a "quota," dictating the maximum weight of catch a licensee may take. If a licensee exceeds the set quota for any year, it is considered poaching and is unlawful.
{¶ 3} Appellant is Edward J. "Buckshot" Szuch, Jr.1 Appellant fished with his family beginning in 1985. He stopped in 1999 due to illness. When he returned to fishing in 2001, he fished on his own. In following years he sometimes fished with others.
{¶ 4} In 2001, appellant sold his fish to appellee Port Clinton Fisheries, Inc.2 In 2002 and 2003, appellant sold his catch to appellee Lake Fish Co.3 {¶ 5} In January 2004, ODNR agents, investigating commercial poaching, executed search warrants on a number of fish houses, including Port Clinton Fisheries and Lake Fish. Agents seized sales records and accounting documents. In the course of the investigation, ODNR officers interviewed appellant.
{¶ 6} In a recorded audio statement in April 2004, and again in a 2005 videotaped statement, appellant told agents that he and several other commercial fishermen conspired with the fish house operators to underreport the yellow perch catch. According to appellant, when he dealt with Port Clinton Fisheries, a separate running tabulation of the weight of the yellow perch catch sold, but not reported, was kept. At the end of the season, the fish house would issue a "bonus" check to each participating fisherman to compensate for the previously unreported catch.
{¶ 7} Lake Fish operated slightly differently, according to appellant. Lake Fish paid an apparently higher rate per pound, but this was offset by a commensurate reduction in the reported weight of the catch. The result of both schemes was to allow commercial fishermen to poach yellow perch substantially in excess of the ODNR quota and the submission of falsified reports to the agency.
{¶ 8} In the fall of 2005, the Cuyahoga County Grand Jury handed down criminal indictments against Port Clinton Fisheries and its principals, Lake Fish and its owners, appellee Joe Smith and several other commercial fishermen and women. Appellant was not charged. In the course of the criminal prosecution, appellant's statements becameknown and eventually a copy of his videotaped statement was provided to criminal defense counsel in discovery.
{¶ 9} In the allegations contained in the suit that underlies this appeal, appellant asserts that, in retaliation for his cooperation in the criminal investigation, appellees conspired to destroy his commercial fishing business, organized a boycott of the purchase of his fish and tortiously interfered with his business relationships. According to appellant's complaint, when the principals of Lake Fish viewed a copy of appellant's videotaped statement, they refused to buy more fish from appellant and ordered him off the property. Port Clinton Fisheries also refused to buy appellant's fish. Appellant insists that this forced him to sell the remainder of his 2005 catch to a Canadian wholesaler.
{¶ 10} Appellant also alleged that appellee Joe Smith provided a copy of appellant's videotaped statement to appellee Kenneth King, owner of the largest fishing operation on Lake Erie. King, appellant alleged, ordered Smith to take the tape to show to Canadian fishermen. Appellant also alleged that King told Lake Fish that he would no longer do business with them if they bought fish from appellant.
{¶ 11} King's purpose, according to appellant, was to block appellant from any market to sell his fish. King would economically benefit if appellant did not fish his quota because, under the ODNR rules then in effect, the underutilized portion of a quota was reallocated to other fishermen for the next season. As the largest, King would most benefit, as would appellee Joe Herr, who also fishes a large quota. Herr, appellantalleged, told one Canadian wholesaler that he would no longer sell to the wholesaler if the wholesaler bought appellant's fish.
{¶ 12} The result of all this intrigue, according to appellant, was that appellant was unable to identify in advance anyone who would agree to purchase his catch if he went fishing. Appellant never fished during the 2006 season or again. He eventually sold his licenses, boat and equipment.
{¶ 13} Appellees responded to appellant's complaint, denying any conspiracy, interference or organized boycott. Following extensive discovery, the matter proceeded to a trial before a jury.
{¶ 14} At trial, appellant testified to his own role in the poaching scheme. He also testified that, while he was poaching, he heard appellees King and Herr rail against poachers as "stealing" their fish and depressing the price of fish by overproduction. It was from King, appellant said, that he first learned of the ODNR raid on the fish houses and the investigation into poaching.
{¶ 15} According to appellant, once the investigation became known, appellant's 2004 fishing partner, Gary Meinke, hosted a meeting in Meinke's "red barn" between appellant and appellees Trent and Carr. Appellant testified that Trent and Carr told him that the ODNR raid on Lake Fish had yielded potentially incriminating documents. Nevertheless, the meeting participants agreed to keep silent: "stick to your stories, meaning don't tell ODNR." Appellant testified that once the news of his cooperation got out with the release of the DVD, he feared for his safety and that of his family.
{¶ 16} According to appellant, at one point shortly after the disclosure of his involvement in the ODNR investigation, he found a stuffed purple monkey with a noose around its neck hanging on the anchor light of his boat. On the monkey was a note saying, "Good luck fishing." Appellant never identified the source of the monkey.
{¶ 17} Appellant claimed another result of the release of the DVD was that his crew quit, leaving his nets in the water at the end of the season. It was at this point that appellant approached appellee King, offering to sell him the nets where they were, or even his whole business. Eventually, appellant's brother helped him collect his nets.
{¶ 18} Appellant maintains that he, nevertheless, intended to fish the 2006 season. Over the winter, he put on hands to help him mend nets. He reached an understanding with a Lorain broker, Chris Bennett, to sell his catch to a Canadian fish house. This was not to happen.
{¶ 19} According to appellant, in March or April 2006, Bennett notified him that he would not be able to broker appellant's fish. Appellant testified he called several fish houses, but could not find a buyer. Since the principals of appellees Port Clinton Fisheries and Lake Fish had already indicated that they did not wish to do business with appellant and did not respond to letters he sent, appellant concluded that he would have no market for a catch. Appellant did not fish that year.
{¶ 20} Appellant then introduced the deposition testimony from two hands who were to have fished with him in 2006. One of the hands testified to being present when appellee King told the other hand, referring to the 12.5 percent of profit each hand waspromised, "12 and a half percent of nothing [is] nothing." The other hand, now an employee of appellee King, testified that he did not recall the remark.
{¶ 21} A founding member of the Ohio Fish Producers Association, the lobbying group for the commercial fishing industry, testified that it was "scuttlebutt" at the association meetings that it might not be a good idea to buy fish from appellant because of his cooperation with ODNR. The witness denied that this tactic was ever officially discussed and could not ascribe a particular source for the suggestion.
{¶ 22} Christopher Bennett testified that about half of the fish he bought came from appellee King, but denied any pressure from King or anyone else to refrain from purchasing from appellant. Bennett said he had acted as an intermediary between appellant and Canadian fish house All-Temp, because All-Temp's owner had no direct relationship with appellant and wanted a trusted partner to assure the weight and handling of the fish. All-Temp's owner said he did not want to deal directly with appellant, according to Bennett, because of appellant's poaching history and because other suppliers had indicated they might not be happy to have their fish on the same truck as appellant.
{¶ 23} When asked about having been quoted in the newspaper as saying that commercial fishermen had "black-balled" appellant, Bennett testified that the quote was based on statements appellant made to him and that he had no independent knowledge of any specific individuals acting in furtherance of such an action. Bennett said at one point appellee Herr asked if he was going to buy fish from appellant. Bennett testified that when ...
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