Tibbs v. National Homes Const. Corp.
| Decision Date | 16 March 1977 |
| Citation | 52 Ohio App.2d 281,369 N.E.2d 1218,6 O.O.3d 300 |
| Parties | , 6 O.O.3d 300 TIBBS et al., Appellees, v. NATIONAL HOMES CONSTRUCTION CORPORATION, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. A builder-vendor of a residence impliedly warrants to a vendee that he will perform his duties in a workmanlike manner. Benson v. Dorger, 33 Ohio App.2d 110, 292 N.E.2d 919, overruled.
2. An action which is found by the court to be based strictly on the breach of a contract does not permit an award of punitive damages.
3. Fraud cannot be predicated upon promises or representations relating to future actions or conduct.
Lindhorst & Dreidame, Leo J. Breslin, Cincinnati, and James D. Ruppert & Associates, Franklin, for appellees.
Beirne & Wirthlin, Michael A. Fulton, Cincinnati, Young & Jones, and William H. Kaufman, Lebanon, for appellant.
Plaintiffs-appellees entered into a contract on March 13, 1972, with the defendant-appellant for the purchase of a residence lot and for the construction of a home on that lot by the defendant. In due course, the structure was built; plaintiffs took occupancy and paid the purchase price of approximately $25,000. A number of serious defects in construction having become apparent, plaintiffs negotiated with agents of the defendant for the correction thereof and certain of these repairs were in fact undertaken by the defendant. The balance of problems remained unresolved, however, and on June 19, 1973, plaintiffs filed their complaint against defendant, 1 asserting multiple grounds of liability in four numbered counts: first, that defendant "negligently and carelessly, and without due regard for the rights of plaintiffs, constructed said house in a defective and unworkmanlike manner"; second, that the defects resulted from the negligent design, manufacture, inspection and/or assembly and preparation, and from the negligent inspection, preparation and construction; third, that defendant breached its warranties to plaintiffs; and, finally, that defendant committed fraudulent representations. The defendant at trial conceded the existence of substantial defects in the residence constructed by it and, after both sides rested, the court instructed the jury that the defendant was liable to plaintiffs for the breach of contract and instructed them to determine compensatory damages appropriate therefor. The jury responded to this by fixing compensatory damages at $15,000, which figure was subsequently reduced by the trial court to $9,650. This aspect of the trial below is not challenged by this appeal.
The trial court also submitted to the jury the issue of punitive damages claimed by plaintiffs, instructing them that if they found for the plaintiff on either of two theories, namely, on the basis of actual or constructive fraud committed by defendant against plaintiffs, or, alternately, that the failure to construct the house in a workmanlike manner was "deliberate, malicious, and evidences a willful disregard of defendant's obligation toward the plaintiffs," they might return punitive damages in favor of plaintiffs. The jury returned its verdict on this issue by finding the sum of $125,000 due plaintiffs as punitive damages. A judgment was accordingly entered and a motion for a new trial and for a judgment notwithstanding the verdict resulted in the remittitur heretofore mentioned in the amount determined for compensatory damages, but the court permitted the punitive damages to stand. The remittitur was accepted by plaintiffs and a judgment was accordingly entered awarding plaintiffs $9,650 compensatory and $125,000 punitive damages.
Defendant presents an aggregate of eleven assignments of error for review, but this unwieldly number may, we believe, be more readily dealt with by considering them in the two categories into which they seem logically to fall: first, those assignments dealing with alleged procedural deficiencies occurring during the trial and, secondly, those assignments dealing with what we deem to be the dispositive questions of general law raised by the pleadings and the evidence.
The procedural complaints of defendant are raised in its fourth, fifth, sixth, seventh, eighth, and eleventh assignments of error. In the fourth, fifth and eighth assignments, defendant raises objections to rulings of the trial court on matters which are essentially within the sound discretion of the court, 2 and in which rulings, after a careful review of the record, we are able to discover no error prejudicial to the defendant.
In the sixth assignment, the defendant asserts error in the court's refusal to permit it to show an alternate method of valuation of damages (i. e., the market value of the house had it been properly constructed as contemplated by the contract, less the reasonable market value of the house as actually delivered). Whatever merit this argument might have is unnecessary to determine inasmuch as the difference between the defendant's own value of $6,996 as the cost of repairs under the measure of damages given to the jury by the trial court, and its proffered evidence under its "alternate" method of valuation of damages of "between six and seven thousand dollar(s)," is so minimal that no prejudice can be apprehended in the denial of the proffered testimony by the trial court.
In the seventh and eleventh assignments of error, the appellant raises, first, the alleged failure of the trial court to charge the jury on one of the special instructions submitted by it, and second, the alleged failure of the trial court to respond to the jury's request to be furnished with a copy of the "rules for determining punitive damages." As to the first of these, the record reflects a failure to interject a timely objection to the court's instructions as required by Civ.R. 51. Thus, the following colloquy appears:
As to the second objection in this pairing of assignments of error, the jury interrupted its deliberations to make the following inquiry, as reflected in the court's comment:
The court went on to add that it would, if the jury requested it, "reread or review for you what I have already given you, if you want me to do that," or go over any point of the instructions with which the jury might be experiencing trouble. Since the jury had been deliberating only a few minutes, the court observed that it was doubtful if such trouble had actually been experienced, and advised them to go back to their deliberations, and to return to him if any specific question thereafter arose. No further requests for additional instructions were received. We conclude that no error prejudicial to appellant attended this procedure.
As a consequence of our determinations, we accordingly overrule appellant's fourth, fifth, sixth, seventh, eighth and eleventh assignments of error.
We come next to consider those assignments of error, the first, second, third, ninth, and tenth, which collectively raise the more substantial questions in this appeal, and which may in turn be divided into two categories: first, those assignments of error asserting that the judgment for punitive damages was contrary to the manifest weight of the evidence and/or was the product of passion and prejudice, and, second, those assignments asserting that, in view of the pleadings and the evidence, the issue of punitive damages should never as a matter of law have been submitted to the jury, but, having nevertheless been submitted, should have been remedied by granting the motion for a new trial or the motion for a judgment notwithstanding the verdict. Because we have concluded that the second of these two categories raises those questions clearly dispositive of the issues on appeal, we have elected to proceed to the disposition of this appeal on those issues.
In thus considering those assignments of error within this second category, namely, the second, ninth and tenth, and particularly the latter two relating to the overruling of the motions for a new trial and judgment n. o. v., we note appellant's argument, as phrased in its first proposition under the tenth assignment of error, that:
"Under any view of the facts of this case, conduct of the defendant's agents and the relationship of the plaintiffs and the defendant was such that no theory of liability could support submission of the issue of punitive damages to the jury."
If this proposition is true and we conclude that it is then it inescapably follows that the trial court erred in not granting to appellant a judgment notwithstanding the verdict on the issue of punitive damages.
The theory of the plaintiffs in seeking punitive damages was twofold: either fraud was committed on the plaintiffs, or, if not fraud, the defendant's failure to construct the house in a workmanlike manner grew out of a deliberate, malicious and willful disregard of its obligations to plaintiffs. As to the first of these grounds, while it is abundantly clear that a finding of fraud may sustain, under appropriate circumstances, a determination of punitive damages, 3 we are unable to discover within the record of this cause credible evidence in support of at least one essential element of fraud.
It is generally true that fraud cannot be predicated upon promises...
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