William J. Powell v. Eddie Lee Mayle, David A. Gould, David C. Gould, Carol Gould

• Decision Date: 10 August 1992
• Docket Number: CA-8835,92-LW-3551
• Parties: WILLIAM J. POWELL, Plaintiff-Appellee v. EDDIE LEE MAYLE, DAVID A. GOULD, DAVID C. GOULD, CAROL GOULD, Defendants-Appellants Case
• Court: Ohio Court of Appeals

WILLIAM J. POWELL, Plaintiff-Appellee v. EDDIE LEE MAYLE, DAVID A. GOULD, DAVID C. GOULD CAROL GOULD, Defendants-Appellants

No. CA-8835.

92-LW-3551 (5th)

Court of Appeals of Ohio, Fifth District Stark.

August 10, 1992

Civil Appeal from Municipal Court, Case No. 90CVF7648.

For Plaintiff-Appellee: LESLIE ANN IAMS, 4775 Munson St. N.W P.O. Box 36963, Canton, Ohio 44735-6963.

For Defendants-Appellants: JEFFREY S. WILKOF, 124 15th St. N.W. Canton, Ohio 44703.

Before Hon. W. Scott Gwin, P.J., Hon. John R. Milligan, J. and Hon. Irene B. Smart, J.

OPINION

GWIN P.J.

On November 16, 1990, plaintiff, William J. Powell (appellee), filed a complaint in the Canton Municipal Court to recover damages caused by defendants, Eddie Lee Mayle and David A. Gould, a minor, who appellee claimed unlawfully trespassed and caused serious physical harm to his property, Clearview Golf Club. In count one of the complaint, appellee sought damages jointly and severally against Eddie Lee Mayle and David A. Gould in the amount of $5,140. In the second count, appellee sought joint and several liability for compensatory and punitive damages against David A. Gould's parents, David C. and Carol Gould, up to $5,000 for the damages caused by their son, pursuant to R.C. 2307.70.

Following a bench trial, the court concluded Eddie Lee Mayle and David A. Gould did intentionally trespass and vandalize appellee's golf course, causing damages in the amount of $5,140. The court further found David C. and Carol Gould to be the parents and legal custodians of David A. Gould, an unmarried minor living in their residence. Compensatory damages of $5,140 and punitive damages of $2,000 were granted in plaintiff's favor jointly and severally against Eddie Lee Mayle, David A. Gould, David C. and Carol Gould. However, David C. and Carol Gould's liability for the aggregate punitive and compensatory damages was ordered not to exceed the total sum of $5,000 pursuant to R.C. 2307.70.

David A. Gould, David C. and Carol Gould filed a timely motion for new trial pursuant to Civ. R. 59, which motion was subsequently denied. All defendants, except Eddie Lee Mayle, seek our review and assign as error:

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN OVERRULING THE MOTION OF THE DEFENDANTS DAVID C. GOULD AND CAROL GOULD FOR DISMISSAL UNDER OHIO CIVIL RULE 41(B) (2) WHICH WAS MADE FOLLOWING PRESENTATION OF THE PLAINTIFF'S CASE.

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN OVERRULING THE MOTION OF THE DEFENDANTS DAVID C. GOULD AND CAROL GOULD FOR A NEW TRIAL WITH REGARD TO SECTION 2307.70 OF THE OHIO REVISED CODE.

THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING PUNITIVE DAMAGES TO THE PLAINTIFF.

I & II

Through their first assignments, appellants David C. and Carol Gould argue their civil liability under R.C. 2307.70 cannot be imposed in this case for appellee's failure to prove that David A. Gould, the minor, actually was guilty of criminal vandalism in violation of R.C. 2909.05. We disagree.

R.C. 2307.70 provides:

(A) Any person who suffers injury or loss to person or property as a result of an act committed in violation of section 2909.05, 2927.11, or 2927.12 of the Revised Code has a civil action and may recover in that action full damages, including, but not limited to, punitive damages and damage for emotional distress, the reasonable costs of maintaining the civil action, and reasonable attorney's fees.

(B) Any person who suffers injury or loss to person or property as a result of an act committed in violation of section 2909.05, 2927.11, or 2927.12 of the Revised Code by an unmarried child under the age of eighteen has a civil action against the parents who have custody and control of the child, and may recover in that action compensatory damages, costs, and attorney's fees, which damages, costs, and fees in the aggregate shall not exceed five thousand dollars. The parents and their child are jointly and severally liable for any damages for injury or loss to person or property caused by the child's act committed in violation of section 2909.05, 2927.11, or 2927.12 of the Revised Code. If a person recovers damages from the parents of a child pursuant to this division, that recovery does not preclude the person from maintaining a civil action against the child pursuant to division (A) of this section.

(C) The monetary limitation upon compensatory damages set forth in section 3109.09 or 3109.10 of the Revised Code does not apply to a civil action brought pursuant to this section.

(D) No record of conviction, unless obtained by confession in open court, shall be used as evidence in a civil action brought pursuant to this section.

(Emphasis added.)

It is appellant's position that the underscored portion of R.C. 2307.70 requires one who seeks to impose the civil liability of that section upon the parents of a minor child to prove the minor child was adjudicated delinquent or unruly by reasons of violating one of the criminal statutes listed therein. Here, no evidence of a juvenile adjudication regarding David A. Gould's alleged criminal violation of R.C. 2909.05 (Vandalism) was offered at trial. We, however, do not read R.C. 2307.70 as appellants argue.

In giving R.C. 2307.70 its plain and ordinary meaning, a person seeking to impose civil liability against a minor child's parents would only be required to prove beyond a preponderance of the...