COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60414 LAWRENCE COLEMAN : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : DELORISE BROWN, ET AL. : OPINION : : DEFENDANT-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CP-166998 JUDGMENT: AFFIRMED, IN PART; REVERSED, IN PART. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: BARRY L. SWEET ATTORNEY NO. 0016558 22408 LAKE SHORE BOULEVARD EUCLID, OHIO 44123 For Defendant-Appellants: DANIEL D. WILT 11202 LORAIN AVENUE CLEVELAND, OHIO 44111 -2- SPELLACY, P.J.: Defendants-appellants/cross-appellees Delorise Brown ("Brown") and I & K Pharmacy, Inc. ("I & K") appeal from a jury verdict awarding plaintiff-appellee/cross-appellant Lawrence Coleman ("Coleman") $13,811.58 in compensatory damages against Brown and I & K, jointly, for breach of contract and attorney fees, lost wages, and $10,000.00 in punitive damages against Brown, individually, for tortious interference with a contract. Coleman cross-appeals from the trial court's decision not to award attorney fees. On August 28, 1989, Coleman filed an amended complaint alleging, among other things, that Brown, I & K, and defendant Delorise Brown, M.D., Inc., had breached an employment contract. Coleman's complaint further alleged that Brown and Delorise Brown, M.D., Inc., had intentionally interfered with his contract with I & K. A jury trial commenced on June 14, 1990. The following pertinent evidence was adduced at trial: Brown is president and sole shareholder of I & K, a corpora- tion which owns and operates a pharmacy, and Delorise Brown, M.D., Inc., a corporation which owns and operates Brown's medical practice. I & K and Delorise Brown, M.D., Inc., are located in the same building, but they occupy different offices. In January 1989, Pharmacist Support Services, an employment agency for pharmacists, referred Coleman, a pharmacist with a masters degree in business administration, to Brown because she needed someone to operate I & K's pharmacy. Coleman and Brown -3- met approximately four times to discuss the possibility of Coleman's becoming the pharmacist and manager of I & K's pharmacy. On February 1, 1989, Coleman and Brown met and executed an employment contract Brown had prepared and typed on Delorise Brown, M.D., Inc. stationery. The contract provided that: This contract and agreement made [and] entered into this 13 day of February, 1989 by and between Lawrence Coleman, R.ph [sic] ("The Pharmacist") and I & K Pharmacy, Inc. ("The Owner"). The contract also stated that, among other things, The manager [Coleman] must consult the owner during the following circumstances. 1. Justification of the need initially of clerical help ie [sic]: consist [sic] volume increase. Brown's signature on the contract is "Delorise Brown, M.D." The contract provided that it was to last for one year and is dated February 1, 1989. Coleman testified that during their negotiations he told Brown that he would need an assistant and that he recommended Lisha Carter. Coleman stated that Brown told him that Carter should set up an interview with her. Lisha Carter testified that she applied for the position as pharmacy technician with Brown and received an interview. Carter further testified that during the interview Brown offered her a part-time position and that she accepted. Carter went on to state that the day after the interview Brown asked her to help -4- out in the medical practice. Carter stated that she worked in Brown's medical practice on Saturday, February 4, 1989, and Monday, February 6, 1989. She further stated that when she went to speak with Brown on the afternoon of Tuesday, February 7, 1989, Brown told her that she would not be needed in I & K's pharmacy. Brown testified that she did interview Carter, but that it was for a position in the future when the business in I & K's pharmacy had grown. Brown also stated that she wanted to observe Carter in a working situation, so she had her work as a medical assistant for one day. Brown went on to state that on Friday, February 10, 1989, Carter came to her office and stated that Coleman had hired her to be his assistant in I & K's pharmacy. Brown testified that she became upset because she felt that Coleman had breached the contract by hiring Carter. Brown then sent the following Mailgram to Coleman: "DO NOT REPORT FOR WORK FEBRUARY 13, 1989. YOU HAVE BREACHED PARAGRAPH 1 OF YOUR CONTRACT." The mailgram was sent by "Delorise Brown" and signed "Delorise Brown, M.D., Inc." Coleman testified that he tried to work something out with Brown, but eventually he went back to his former job. At the conclusion of the trial, the jury found for Coleman and against Brown and I & K. The jury did not find against Delorise Brown, M.D., Inc. The jury interrogatories reveal the jury found that both Brown and I & K entered into a contract with -5- Coleman and that they had both breached the contract. The jury then awarded Coleman $13,811.58 in compensatory damages. The jury interrogatories further reveal the jury found that Brown had tortiously interfered with the contract between Coleman and I & K. The jury then awarded Coleman "legal fees" and "loss (sic) wages of three days in court" in compensatory damages for Brown's tortious interference with the contract. Finally, the jury awarded Coleman $10,000.00 in punitive damages against Brown. On June 25, 1990, Coleman filed an application for attorney fees and lost wages. On July 19, 1990, the trial court denied Coleman's application. Brown and I & K raise the following assignments of error: I. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT-APPELLANTS['] MOTION FOR A DIRECTED VERDICT AS TO COUNT ONE OF THE AMENDED COMPLAINT AT THE CLOSE OF THE TRIAL OF THIS CASE. II. THE TRIAL COURT ERRED IN NOT GRANT- ING DEFENDANT-APPELLANTS' MOTION FOR A DIRECTED VERDICT AS TO COUNT FOUR OF THE AMENDED COMPLAINT AT THE CLOSE OF THE TRIAL OF THIS CASE. III. THE TRIAL COURT ERRED IN CHARGING THE JURY THAT THE PLAINTIFF- APPELLEE MAY RECOVER NOT ONLY FOR THE LOSS OF EARNINGS ALREADY ACCRUED, BUT FOR THE PROSPECTIVE LOSS FOR THE UNEXPIRED PERIOD. IV. THE TRIAL COURT ERRED IN ITS CHARGE TO THE JURY BY NOT DEFINING THE PHRASE "WITHOUT PRIVILEGE" IN CHARGING AS TO COUNT FOUR OF THE AMENDED COMPLAINT DEALING WITH THE ALLEGED TORT OF INTEN- TIONAL INTERFERENCE WITH A CONTRACT. -6- V. THE JURY DID NOT AWARD ANY COMPEN- SATORY DAMAGES AS TO COUNT FOUR OF THE AMENDED COMPLAINT. THEREFORE, THE TRIAL COURT ERRED IN GRANTING A JUDGMENT FOR PUNITIVE DAMAGES AGAINST ONE OF THE DEFENDANT- APPELLANTS. VI. THE VERDICT OF THE JURY AND THE JUDGMENT OF THE TRIAL COURT ARE BOTH MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE. Coleman raises the following cross-assignment of error: THE COMMON PLEAS COURT ERRED IN ITS APPLICATION OF THE LAW AND ABUSED ITS DISCRETION BY DENYING PLAIN- TIFF'S APPLICATION FOR ATTORNEY FEES MADE PURSUANT TO THE JURY'S JUDGMENT TO AWARD PLAINTIFF'S ATTORNEY FEES AS ACTUAL DAMAGES AND PURSUANT TO THE TRIAL COURT'S INSTRUCTION. I. In the first assignment of error, Brown and I & K contend the trial court erred when it denied their motion for a directed verdict on Coleman's claim for breach of contract. Brown and I & K's assignment of error lacks merit. "The test for granting a directed verdict *** is whether the movant is entitled to judgment as a matter of law when the evidence is construed most strongly in favor of the non-movant." Sanek v. Duracote Corp. (1989), 43 Ohio St. 3d 169, 172. First, Brown and I & K argue that although a contract existed between Coleman and I & K, Brown was not a party to the contract. "An officer of a corporation is not personally liable on contracts *** for which his corporate principal is -7- liable, unless he intentionally or inadvertently binds himself as an individual." Centennial Ins. Co. v. Tanny Int'l. (1975), 46 Ohio App. 2d 137, 142. If a contract does not expressly address the liability of the corporate officer, then liability is determined by the intent of the parties. Id. Signatures which appear without a corporate officer's title, such as Brown's, indicate that a contract is signed in the corporate officer's individual capacity. Spicer v. James (1985), 21 Ohio App. 3d 222, 223. We find, therefore, that Brown is personally liable on the contract. Second, Brown and I & K argue that February 13, 1989, was a condition precedent. This argument is unconvincing, however, because a date cannot be a condition precedent since it is certain to occur. See Mumaw v. The Western & Southern Life Ins. Co. (1917), 97 Ohio St. 1, 9; Restatement of the Law 2d, Contracts (1979) 160, Section 224. Third, Brown and I & K argue that Coleman breached the contract by hiring Carter without permission. After construing the facts most favorably for Coleman, however, a trier of fact could properly conclude that Coleman did not hire Carter. Accordingly, the first assignment of error is not well taken. II. In the second assignment of error, Brown contends the trial court erred when it denied her motion for a directed verdict on Coleman's claim for tortious interference with a contract. Brown's assignment of error lacks merit. -8- Brown argues that her response to Coleman's request for admissions, made under Civ. R. 36, conclusively established that she acted solely in her capacity as president of I & K when she sent the mailgram to Coleman. Coleman's request for admission and Brown's response were as follows: REQUESTED ADMISSION NO. 2: You sent a mailgram to plaintiff instructing him not to report for work on February 13, 1989. ANSWER: Admitted but only in my capacity as President of I & K Pharmacy, Inc. Brown correctly points out that "[a]ny matter admitted under *** [Civ. R. 36] is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Civ. R. 36(B). Brown's qualification of her admission, however, was not responsive to Coleman's requested admission. This qualification, therefore, did not constitute a matter admitted under Civ. R. 36. As a result, Brown's qualified admission did not conclusively establish that she acted solely in her capacity as president of I & K when she sent the mailgram to Coleman. Accordingly, the second assignment of error is not well taken. III. In the third assignment of error, Brown and I & K contend the trial court erred during its jury instruction on damages for breach of contract. -9- Brown and I & K's assignment of error lacks merit. During its instructions to the jury, the trial court stated: Where a contract has been breached, the plaintiff need not wait until the term of his employment has expired before suing for the entire damages for wrongful discharge. The plaintiff may recover not only for the loss of earnings already accrued, but for the prospective loss for the unexpired period. (Tr. 298). At the time of trial, the contract, which by its terms was limited to one year, had expired. Brown and I & K, therefore, could not have been prejudiced by this portion of the trial court's jury instruction. Accordingly, the third assignment of error is not well taken. IV. In the fourth assignment of error, Brown contends the trial court erred during its jury instruction on intentional interference with a contract because it failed to define "without privilege." Brown's assignment of error lacks merit. During its instructions to the jury, the trial court stated: Ohio law also recognizes the tort of business interference. It is defined as, when a person, without privilege, induces or otherwise purposely causes a third party not to enter into or continue a business relationship or perform a contract with another. (Tr. 306-307). (Emphasis added.) At the conclusion of the trial court's jury instruction, the following dialogue occurred concerning this issue: -10- [MR. WILT:] *** I'd like to enter for the record an objection to the charge on the intentional tort part of this case -- THE COURT: With regard to the fourth count? MR. WILT: Yes. THE COURT: Okay. You were saying I should have just granted the directed verdict, or is there something wrong or incorrect-- MR. WILT: I just felt there probably should have been an instruction as to what "without privilege" means. I don't know if the jurors know -- THE COURT: Did you submit one in your instructions? If you did, I didn't come across it -- MR. WILT: I don't know if I did or not. THE COURT: I don't recall seeing it in your instructions. MR. WILT: I'd just like to enter that for the record ***. (Tr. 310-311). A trial court's error of omission in its instruction to the jury does not justify reversal unless trial counsel objects to the incomplete charge and suggests a further instruction. Knotts v. Valocchi (1963), 2 Ohio App. 2d 188, 190; See also, Rhoades v. Cleveland (1952), 157 Ohio St. 107, syllabus; Northwestern Ohio Natural Gas Co. v. First Congregational Church (1933), 126 Ohio St. 140, paragraph two of the syllabus. -11- Although Brown's trial counsel objected, he failed to suggest a further instruction on the term "without privilege". Brown, therefore, has waived her right to raise this issue on appeal. Accordingly, the fourth assignment of error is not well taken. V. In the fifth assignment of error, Brown argues that punitive damages could not be awarded because the jury did not award compensatory damages. Brown's assignment of error has merit. Punitive damages may only be awarded after actual damages have been proven. Shimola v. Nationwide Ins. Co. (1986), 25 Ohio St. 3d 84, 86; Bishop v. Grdina (1985), 20 Ohio St. 3d 26, 27; Giglio v. Doherty (1988), 55 Ohio App. 3d 59, 61-62. Although attorney fees constitute actual damages, they may only be awarded when punitive damages are properly awardable. Hutchinson v. J. C. Penney Cos. Ins. Co. (1985), 17 Ohio St. 3d 195, 200; Oakwood v. Maker (1983), 11 Ohio App. 3d 46, 49. The attorney fees awarded in this case, therefore, may not compose the actual damages upon which the punitive damages depend. In addition, a review of the record reveals that there is no evidence supporting the jury's finding that Coleman lost three days wages during trial. We find, therefore, that punitive damages were improperly awarded because they were not supported by actual damages. -12- Accordingly, the fifth assignment of error is well taken. VI. In the sixth assignment of error, Brown and I & K contend the verdict is against the manifest weight of the evidence. Brown's assignment of error has some merit and I & K's assignment of error lacks merit. Brown argues the jury's award of actual and punitive damages for tortious interference with a contract was against the manifest weight of the evidence. We agree. As discussed above, neither the actual nor the punitive damages were properly proven. Brown and I & K argue the jury's award of actual damages for breach of contract is against the manifest weight of the evidence. We disagree. A careful review of the record reveals that the jury's verdict is supported by competent and credible evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80. Accordingly, the sixth assignment of error is well taken. VII. In the cross-assignment of error, Coleman contends the trial court erred when it found that he had failed to demonstrate his attorney fees. Coleman's cross-assignment of error lacks merit. As discussed above, attorney fees may only be awarded when punitive damages are proper. Hutchinson, supra; Oakwood, supra. Punitive damages were not proper in this case because no actual -13- damages were proven. Shimola, supra; Bishop, supra; Giglio, supra. As a result, attorney fees were not properly awardable. Accordingly, the cross-assignment of error is not well taken. Judgmant affirmed, in part; and reversed, in part. - 14 - It is ordered that appellee recover of appellant her costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J., AND BLACKMON, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .