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First District: Judge Questions Whether Obscene Gesture Played Too Large a Role in Awarding $303,000 in Punitive Damages

A three-judge panel upheld a $303,000 judgment against a father and son accused of selling another man’s industrial equipment without his permission. However, the court split 2-1 on whether an obscene gesture caught on camera had too great an influence in calculating another $303,000 in punitive damages.

The First District Court of Appeals concurred with a Hamilton County Common Pleas Court judgment in favor of Robert Greer in his claim of conversion by Gerald Benjamin Bruce and his father, Earl L. Bruce.

In 2010, Greer entered into an oral agreement with Earl Bruce to use a swath of land as a “laydown yard” to store industrial equipment while offering for sale. According to the court, Earl Bruce already had some of his own industrial equipment on the land, and Greer was permitted to use the yard in exchange for upgrading the property and splitting any proceeds from Bruce’s items that Greer sold for him.

Earl Bruce then sold the property to his son, Gerald Bruce, without telling him of the arrangement he had with Greer, and the younger Bruce rarely visited the property to determine how it was being used. Greer had a key to the property and had items such as generators, fuel tanks and pumps in the yard for sale. On a Thursday in June 2011, he arrived at the property to discover a deputy sheriff blocking the property. An employee of Earl Bruce told Greer he had until Monday to remove the equipment from the land as it was going to be cleared and leased to another user.

Greer returned the next day to begin removing his equipment and was met by Robert Writesel, who was hired by Earl and Gerald Bruce to clear Greer’s equipment from the land. The court said that despite being told that he had until Monday to remove the equipment, Writesel already started hauling it away and selling it for scrap.

While Greer was taking photos of the removal of the property, and Writesel was caught on camera making an obscene gesture at Greer. Greer was unsuccessful in getting a court injunction to block the removal of his equipment, and learned it was all sold at scrap. He sued the Bruces for conversion after an expert valued the equipment at $344,990.

The case came before a magistrate where Earl Bruce testified that he never gave Greer permission to use the land, but instead meant for him to use another parcel of adjacent property. Earl Bruce also claimed the land was being cleared to lease to someone else, but Greer proved that only the valuable equipment that could be sold for scrap was removed by Writesel, and many non-valuable items remained.

The magistrate ruled in favor of Greer, who noted he would have paid a 12 percent commission to the Bruces had he actually sold the equipment, and awarded him actual damages of $303,591. The magistrate also recommended an additional $303,591 in punitive damages and a common pleas court judge upheld both the amounts.

In upholding the lower court’s ruling, the First District found that there was an oral lease between Greer and the Bruces and R.C. 1923.04 requires commercial landlords to give three days’ notice to evict and must use the judicial process for a proper eviction.  Writing for the court, Judge Lee H. Hildebrandt Jr. noted the courts recognize an exception to the three-day rule if the parties waive the safeguards in the law. However, the court found there was nothing to indicate the parties agreed to waive the rules.

“And there was certainly no evidence that Greer agreed to permit the Bruces to summarily confiscate and sell the property stored on the Bruces’ land without compensating him for its value,” Judge Hildebrandt wrote.

In sanctioning the punitive damages, the court took issue with giving Greer a deadline to remove his equipment and then taking it and selling it three days before the deadline. The court also noted that Greer was told they needed to clear the land when in fact they only removed the valuable items. “Under these circumstances, the trial court correctly held that the Bruces had acted with a conscious disregard for Greer’s rights, and punitive damages were warranted,” Judge Hildebrandt wrote.

While concurring in the decision, Judge Sylvia Sieve Hendon said she believed the trial court placed too much emphasis on the actions of Writesel, an independent contractor, to issue such a large punitive award against the Bruces.

“It is evident from the tenor of the magistrate’s decision that Writesel’s obscene gesture was the impetus for awarding punitive damages in the same amount as the compensatory award,” Judge Hendon wrote. “There is no evidence that the Bruces had any control over Writesel’s actions or that they had countenanced his lack of decorum.”

Judge Patrick Dinkelacker concurred in the ruling and damages award.

Greer v. Bruce, 2014-Ohio-4901
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 5, 2014

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