Eysoldt v. Proscan Imaging ( 2011 )

[Cite as Eysoldt v. Proscan Imaging, 2011-Ohio-6740.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JEFF EYSOLDT, : APPEAL NO. C-110138
TRIAL NO. A-0703129
MARK EYSOLDT, :
O P I N I O N.
and :
JILL EYSOLDT, :
Plaintiffs-Appellees, :
and :
KATHERINE EYSOLDT, et al., :
Plaintiffs, :
vs. :
PROSCAN IMAGING, et al., :
Defendants, :
and :
GO DADDY.COM, INC., :
Defendant-Appellant. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 28, 2011
William M. Gustavson, for Plaintiffs-Appellees,
Thompson Hine, LLP, Christopher M. Bechhold, and Heather M. Hawkins, for
Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Presiding Judge.
{¶1} Defendant-appellant Go Daddy.com., Inc., (“Go Daddy”) appeals from
the trial court’s judgment denying its motion for an entry of partial satisfaction of a
judgment entered in favor of plaintiffs-appellees Jeff Eysoldt, Mark Eysoldt and Jill
Eysoldt. We find no merit in its sole assignment of error, and we affirm the trial
court’s judgment.
{¶2} The Eysoldts filed a complaint for invasion of privacy and conversion
against Go Daddy. They also filed other causes of action against several other
defendants, who eventually settled their claims with the Eysoldts. The case proceeded to
a jury trial against Go Daddy, the only remaining defendant.
{¶3} The jury found in favor of the Eysoldts and awarded each of them
compensatory damages on all of their claims against Go Daddy, including claims for
conversion and invasion of privacy. Go Daddy filed motions for directed verdicts, for
judgment notwithstanding the verdicts, and for a new trial. The trial court granted Go
Daddy’s motion for a directed verdict as to the punitive damages, concluding that the
evidence did not show actual malice. It overruled the motion for directed verdicts in all
other respects, as well as the other motions. The court granted judgment in favor of Jeff
Eysoldt for $50,000, Jill Eysoldt for $10,000, and Mark Eysoldt for $10,000.
{¶4} All parties appealed to this court. We affirmed the trial court’s judgment
in all respects in Eysoldt v. Proscan Imaging, 1st Dist. Nos. C-100528 and C-100529,
2011-Ohio-2359. Go Daddy appealed our decision to the Ohio Supreme Court, which
refused to hear the case. Eysoldt v. Proscan Imaging, 129 Ohio St.3d 1506, 2011-Ohio-
5358, 955 N.E.2d 388.
{¶5} Subsequently, Go Daddy filed its motion for entry of partial satisfaction
of judgment. It argued that the Eysoldts’ damages should have been reduced by any
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monies paid to them by the other defendants according to the various settlement
agreements because those monies constituted a partial satisfaction of the judgment
against it. The trial court overruled the motion. This appeal followed.
{¶6} In its sole assignment of error, Go Daddy contends that the trial court
erred in denying its motion for entry of partial satisfaction of judgment. It argues that
the Eysoldts were not entitled to a double recovery, and that under R.C. 2307.28 it was
entitled to a set-off for the monies paid by the other defendants. This assignment of
error is not well taken.
{¶7} R.C. 2307.22 et seq. governs the apportionment of liability in certain
civil actions. R.C. 2307.28 sets forth the effect of a release or covenant not to sue or not
to enforce judgment. Kritzwiser v. Bonetzky, 3rd Dist. No. 8-07-24, 2008-Ohio-4952,
¶27. Under that statute, a release reduces the claim against the other tortfeasors by the
amount of the consideration paid in exchange for the release. Spalla v. Fransen, 188
Ohio App.3d 666, 2010-Ohio-3461, 936 N.E.2d 559, ¶45. Go Daddy argues that the trial
court misinterpreted the statute in various ways.
{¶8} We need not reach that issue. Go Daddy’s arguments ignore the plain
language of R.C. 2307.25(A). See Merchants Bank and Trust Co. v. Five Star Fin.
Corp., 1st Dist. No. C-100037, 2011-Ohio-2476, ¶10. It specifically states, “There is no
right of contribution in favor of any tortfeasor against whom an intentional tort claim
has been alleged and established.” Thus, “a joint tortfeasor who acted intentionally
should be treated differently as to damages from one who was merely negligent.”
Klosterman v. Fussner (1994), 99 Ohio App.3d 534, 539, 651 N.E.2d 64.
{¶9} In interpreting former R.C. 2307.28, which was then numbered 2307.32,
and former R.C. 2307.25, which was then numbered 2307.31, the Ohio Supreme Court
stated, “Further, defendant is not entitled to a reduction of plaintiffs’ judgment by the
amount plaintiffs received from defendant’s suppliers in exchange for a covenant not to
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sue. R.C. 2307.31(A) provides that ‘[t]here is no right of contribution in favor of any
tortfeasor who had intentionally caused or intentionally contributed to * * * [an] injury
or wrongful death.’ Although R.C. 2307.32(F) allows for a reduction of a judgment by
the amount paid by another tortfeasor in exchange for a covenant not to sue, we are
persuaded that the legislature did not intend that such reduction may benefit an
intentional wrongdoer. It would be nonsensical to hold that while an intentional
tortfeasor may not profit by means of contribution from a fellow wrongdoer, he may
nevertheless secure a reduction in the judgment against him by the sum paid to plaintiff
in exchange for a covenant not to sue. We refuse to presume that the legislature
intended this incongruous result.” Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 98,
472 N.E.2d 1046 (citations omitted).
{¶10} Thus, the supreme court interpreted the former version of R.C. 2307.25
as providing a narrow legislative exception to the general rule that among joint
tortfeasors, the plaintiff is entitled to only one recovery. Under that exception, when a
plaintiff recovers from or settles with another tortfeasor and subsequently obtains a
judgment against an intentional tortfeasor for the same injury, the plaintiff may recover
more than the amount required to make the plaintiff whole because the intentional
tortfeasor is not entitled to any reduction in the award against him, regardless of the
amount of the previous judgment or settlement. Klosterman, supra, at 540.
{¶11} Go Daddy contends that the intentional torts in this case did not
necessarily involve intentional conduct. It argues that invasion of privacy can result
from negligence and that conversion can result from mistake. This argument is
disingenuous at best. The jury found Go Daddy liable for the two intentional torts, and
the record contains no interrogatories or any other indication that the jury concluded
that Go Daddy had not acted intentionally.
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{¶12} In our previous decision, we held that Go Daddy’s conduct did not rise to
the level of actual malice necessary for the imposition of punitive damages. But that is a
higher standard than intentional conduct. We specifically stated that “[p]laintiffs must
show more than an intentional tort. They must demonstrate that the wrongdoing is
‘particularly gross or egregious.’ ” Eysoldt, supra, at ¶49. Nowhere did we state that Go
Daddy’s conduct was not intentional. To the contrary, we held that the economic-loss
rule did not apply because the case involved intentional conduct. Id. at ¶19-23.
{¶13} Go Daddy’s argument also misinterprets the concept of intent. “The
intent with which tort liability is concerned is not necessarily a hostile intent, or a desire
to do any harm. Rather it is an intent to bring about a result which will invade the
interests of another in a way the law forbids[.]” Jones, supra, at 94-95, quoting Prosser
& Keeton, Law of Torts (5 Ed. 1984) 36, section 8; Phillips v. Rayburn (1996), 113 Ohio
App.3d 374, 383, 680 N.E.2d 1279. This case involved intentional conduct, and the
cases to which Go Daddy cites are inapplicable.
{¶14} Under R.C. 2307.25, Go Daddy was not entitled to any set-off. Although
the trial court overruled Go Daddy’s motion based on its interpretation of R.C. 2307.28,
it was right for the wrong reasons. See Condit v. Condit, 190 Ohio App.3d 634, 2010-
Ohio-5202, 943 N.E.2d 1041, ¶10; Hall v. Gill (1995), 108 Ohio App.3d 196, 205, 670
N.E.2d 503. We hold that the trial court did not err in denying Go Daddy’s motion for
partial satisfaction of judgment. Therefore, we overrule Go Daddy’s assignment of error
and affirm the trial court’s judgment.
Judgment affirmed.
H ENDON and C UNNINGHAM , JJ., concur.
Please note:
The court has recorded its own entry this date.
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