Villella v. Waikem Motors, Inc.

• Decision Date: 16 August 1989
• Docket Number: No. 88-64,88-64
• Citation: 543 N.E.2d 464,45 Ohio St.3d 36
• Parties: VILLELLA, Appellee, v. WAIKEM MOTORS, INC., Appellant.
• Court: Ohio Supreme Court

Page 36

45 Ohio St.3d 36

543 N.E.2d 464

VILLELLA, Appellee, v. WAIKEM MOTORS, INC., Appellant.

No. 88-64.

Supreme Court of Ohio.

Submitted Feb. 15, 1989.

Decided Aug. 16, 1989.

Syllabus by the Court

A jury verdict as to punitive damages which is not the result of (1) passion and prejudice or (2) prejudicial error will not be reduced on appeal.

On December 30, 1985, appellee, Roy J. Villella, Jr., delivered his 1985 Chrysler New Yorker Fifth Avenue automobile to appellant, Waikem Motors, Inc., for routine servicing. When Villella returned to pick up his vehicle, he paid his bill and was asked to speak with Waikem's general manager, Lou Robb. Robb told Villella that his car would not be released until he paid the car repair bill of approximately $800 for his twenty-seven-year-old daughter.

Robb engaged in a highly charged dispute with Villella which lasted approximately two hours. Ultimately Villella agreed to pay $250 toward his daughter's repair bill.

Waikem Motors asserted that it held Villella's car because he had guaranteed payment for the work performed on his daughter's car. However, Villella contended that he made no oral or written promise concerning the payment of his daughter's repair bill. ¹

On February 5, 1986, Villella filed suit for conversion against Waikem Motors, seeking $25,250 as compensatory damages and $250,000 in punitive damages. At trial, the evidence showed that Waikem Motors' gross revenue in 1986 was $11,653,761, and its net pre-tax profits were approximately $200,000. In addition, Waikem Motors' net worth at the end of 1986 was calculated to be $568,168.

The jury awarded compensatory damages of $15,250 ($250 actual damages and $15,000 attorney fees), and punitive damages of $150,000. Waikem Motors' motion for partial judgment notwithstanding the verdict was overruled. Villella moved for prejudgment interest on the entire award, which was granted at ten percent per annum from December 28, 1985. The court of appeals affirmed.

The cause is now before this court upon the allowance of a motion to certify the record.

Donald C. Steiner, Canton, for appellee.

Messerman & Messerman Co., L.P.A., and Gerald A. Messerman, Cleveland, for appellant.

ALICE ROBIE RESNICK, Justice.

I

In its first proposition of law, the appellant asserts that punitive damages should not have been awarded to appellee, because the evidence produced at trial was insufficient to support a finding of actual malice, which is a prerequisite to punitive damages recovery.

Historically, punitive damages in Ohio have been allowed in civil tort actions which involve ingredients of fraud, malice, or insult. Roberts v. Mason (1859), 10 Ohio St. 277; Detling v. Chockley (1982), 70 Ohio St.2d 134, 136, 24 O.O. 3d 239, 240, 436 N.E.2d 208, 209. Additionally, in construing the reasoning behind punitive damages, this court has held that " '[t]he principle of permitting [punitive] damages, in certain cases, to go beyond naked compensation, is for example, and the punishment of the guilty party for the wicked, corrupt, and malignant motive and design, which prompted him to the wrongful act.' " Detling, supra, at 136, 24 O.O. 3d at 240-241, 436 N.E.2d at 209-210, citing Simpson v. McCaffrey (1844), 13 Ohio 508, 522; see, also, Rayner v. Kinney (1863), 14 Ohio St. 283, 286-287; Smith v. Pittsburg, Ft. W. & C. Ry. Co. (1872), 23 Ohio St. 10, 18; Railroad Co. v. Hutchins (1881), 37 Ohio St. 282, 294.

The conduct necessary to support punitive damages awards has been a major concern of trial courts. In Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174, paragraph one of the syllabus, we set forth the elements of malice needed in order to support an award of punitive damages, by noting that the defendant must have operated under "(1) that state of mind * * * which * * * 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." Also, we have noted "that it is rarely possible to prove actual malice otherwise than by conduct and surrounding circumstances." Davis v. Tunison (1959), 168 Ohio St. 471, 475, 7 O.O.2d 296, 298, 155 N.E.2d 904, 907. Moreover, actual malice can be inferred from conduct and surrounding circumstances which may be characterized as reckless, wanton, willful or gross. Columbus Finance, Inc. v. Howard (1975), 42 Ohio St.2d 178, 184, 71 O.O.2d 174, 177, 327 N.E.2d 654, 658; Rubeck v. Huffman (1978), 54 Ohio St.2d 20, 23, 8 O.O.3d 11, 13, 374 N.E.2d 411, 413.

In applying the applicable law to the instant case, we do not find substantial evidence adduced at trial which would support a finding by a preponderance of the evidence as to hatred, ill will, or a spirit of revenge under the first standard announced in Preston for determining actual malice. Preston, supra, 32 Ohio St.3d at 335, 512 N.E.2d at 1175. However, as to the second prong of the Preston test we do find that Lou Robb acted with a conscious disregard for the rights and safety of the appellee. We find therefore that there was a preponderance of the evidence ² submitted from which the jury could conclude that the appellant acted with actual malice. Specifically, the record demonstrates the following reckless behavior on the part of appellant.

George Waikem, Sr. had been in the automobile business since 1946. His son, David C. Waikem, had worked at all his father's dealerships his "whole life" and had been the dealer principal at the Waikem Chrysler Plymouth Dealership for two and one-half years. David Waikem informed Louis Robb, the general manager, that Renee Villella's bill had not been paid. Thus, David Waikem admitted that jointly he and Robb had the idea of, and he, Waikem, was instrumental in, arranging the situation whereby Villella was not to be given his car unless he paid his daughter's bill.

Appellee testified that when he was informed by Robb that Waikem Motors was going to keep his car until he discharged his daughter's obligation, he stated, "I have never heard of this before but what can we do about it?" His testimony continued: "And that then led into a [sic] probably one of the most heated traumatic arguments, fights whatever you want to call it that I have ever had in my entire life including all of my business life."

When asked what Robb's general demeanor and attitude towards him were, appellee testified:

"A. Very hostile, almost threatening.

"Q. You mean over bearing?

"A. Almost threatening, more than over bearing.

"Q. OK.

"A. I think some names he used like dead beat if I am not mistaken, that we were dead beats and a number of things like that which is a personal [af]front to me. I have a lot of integrity and I didn't like that."

Mrs. Villella, who entered the discussions after waiting about an hour in her car, observed that Robb acted "kind of arrogant"; and that he was "set in the fact that this was what he wanted and he wasn't going to settle for anything else."

In response to a question as to whether Robb changed his posture subsequent to a call to a lawyer after an hour and one-half of discussions, appellee answered, "[n]one whatsoever, he continually badgered me about the $800."

Appellee testified that as he was leaving, following the discussions, he was shaking and he was not feeling well. His wife testified that her husband's "face was flushed and he was shaking and he [sic] you could just see that he was agitated."

It was not until appellee walked outside and threatened a lawsuit that Robb asked if there was some way that they could negotiate again.

Appellee testified that he was under tremendous pressure to get to a $2,000,000 business negotiation for the selling of his employer's factory the next day, and that he had to have his automobile because he had no other means of transportation to his out-of-town meeting.

He testified that after he finally obtained the release of his car, he and his wife went home. Further, he stated that he "didn't even eat that evening." He had intended to spend two to three hours reading the papers and legal documents relating to the next day's negotiations, but he was so upset he was not able to do so. Moreover, he was able to sleep only for an hour.

Having found there was sufficient evidence from which actual malice could be inferred, we hold it was proper for the jury to assess punitive damages.

II

In the second proposition of law, the appellant contends that the amount of punitive damages awarded by the jury was unreasonable. He contends that they were the result of passion and prejudice in light of the misconduct of appellee's counsel at trial, the amount of compensatory damages assessed compared with the punitive damages awarded, and the appellant's conduct in relation to the appellee's injuries.

In Fromson & Davis Co. v. Reider (1934), 127 Ohio St. 564, 189 N.E. 851, paragraph three of the syllabus, we held that "[i]n order to determine whether excessive damages were so influenced [by passion or prejudice], a reviewing court should consider, not only the amount of damages returned and the disparity between the verdict and remittitur where one had been entered, but it becomes the duty of such court to ascertain whether the record discloses that the excessive damages were induced by * * * misconduct on the part of the court or counsel, or * * * by any other action occurring during the course of the trial which can reasonably be said to have swayed the jury in their determination of the amount of [punitive] damages that should be awarded."

We have maintained that in closing arguments counsel may not "comment on evidence which has been excluded or declared inadmissible by the trial court or otherwise make statements which are intended to get evidence before the jury which counsel was not entitled to have the jury consider." Drake v. Caterpillar Tractor Co. (1984), 15 Ohio St.3d 346, 347, 15 OBR 468, 470, 474 N.E.2d...