COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69926 NANCY KOVACIC : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION ALL STATES FREIGHT SYSTEMS : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION AUGUST 15, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 267938 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: RICHARD C. HABER, ESQ. JAMES J. McDONNELL, ESQ. BETH ANN CHASE, ESQ. 936 Terminal Tower Reminger & Reminger Cleveland, Ohio 44113 Co., L.P.A. The 113 St. Clair Bldg. Cleveland, Ohio 44114 - 2 - JAMES M. PORTER, J., Plaintiff-appellant Nancy Kovacic appeals from an order of the trial court granting a new trial in favor of defendant-appellee All States Freight Systems against which plaintiff had obtained a jury verdict of $447,860.45 for sales commissions arising out of trucking shipments by All States' customers. Plaintiff contends that the trial court erred in considering its post trial interviews with jurors in exercising its discretion to order a new trial; that there were no independent grounds to justify the vacating of the jury verdict; and the court erred in granting defendant's motion for a directed verdict on the issue of punitive damages. For the reasons hereinafter stated, we affirm the order granting a new trial. The relevant facts follow. At trial, plaintiff contended that she entered into an oral agreement with All States in December 1989. All States is run by plaintiff's husband's uncle and cousin and is a small family owned business engaged in highway hauling of heavy equipment. Pursuant to oral agreement plaintiff was hired as a sales representative to solicit freight shipments for 6% commission on the gross revenue (less permits and escort fees) generated from shipments by her customers. Though defendant All States disputed the 6% commission rate was due on all shipments, the evidence showed that 6% was coded into All States' computer for Nancy Kovacic's compensation. Defendant contended that sales agents were paid less than the 6% if the shipping rate had to be negotiated. - 3 - During her tenure with All States, plaintiff brought in new customers and reestablished relationships with former customers of All States. According to plaintiff, as a result of her sales efforts in a period of over four years, shipping revenues of $2,491,199.77 were obtained by All States. Joint Exhibit 1, stipulated by the parties as a summary of the invoices in evidence, identified each customer and the annual revenues (1990-94) received by All States from each customer. It also specified that 6% commission on the total business came to $149,471.98; that plaintiff had been paid $88,917.96; and a balance described as "damages" equalled $60,554.02. Initially, plaintiff received 6% commission for shipments that appeared on the handwritten 1990 summaries she received. Because she had personally booked this traffic, she could confirm that she was being paid 6%. In 1991, however, All States began computerizing its records and placed essential information on drivers' statements including the revenue which All States received and the percentage of the commission paid to the agent. This information, however, was retained only on All States' original copy, but deleted from Mrs. Kovacic's copy, which she claimed prevented her from verifying the percentage to which was entitled. Defendants contended that this information was excluded from all of the sales agent's statements to prevent the information from falling into the hands of competitors. Mrs. Kovacic claimed she was required to rely on All States' good faith that she was being - 4 - compensated at a 6% commission rate. Some of Mrs. Kovacic's customers would call All States directly, preventing her from knowing of the shipments and computing her commissions. There was much disputed evidence about which customers and/or shipments Mrs. Kovacic was entitled to claim commissions for, and whether it was necessary to reduce commissions in order to get the business of specific customers. Starting early in 1990, Mrs. Kovacic complained frequently to All States about being shorted on commissions and from time to time adjustments were made to account for commissions although not always at the 6% rate plaintiff claimed. After these commission disputes escalated, plaintiff was terminated on February 28, 1994, effective as of March 3, 1994. On March 28, 1994, plaintiff brought suit to recover commissions alleging breach of contract, promissory estoppel, conversion, fraud and requested an award of punitive damages and attorney fees. At the close of All States' case, following a six- day jury trial, All States moved for a directed verdict on all counts. The trial court directed out the conversion and punitive damage claims. The case was submitted to the jury which was instructed on the issues of breach of contract, promissory estoppel and fraud. In closing argument, plaintiff's counsel argued for $463,562.54 in compensatory damages which he broke down as follows: - 5 - 1. Past damages for unpaid $64,166.47 commissions prior to termination: 2. Fraud damages: a. Emotional Distress/ $64,166.47 Pain & Suffering: b. Loss of anticipated $335,229.60 income or profit: ($67,045.92 x 5) Total: $463,562.54 (Closing Argument of Pltf., Tr. 850-854). No objection was made to this argument or damage summary. On September 6, 1994, the jury returned a general verdict in favor of Mrs. Kovacic for $447,860.45 in compensatory damages. It is noted that the total shipping revenue received by All States from Figgie International over the four year period was the identical sum -- $447,860.45. (Jt. Ext. 1). No special interrogatories were requested or submitted to test the reasoning behind the jury's verdict. Civ. R. 49(A). All States filed a motion for j.n.o.v. or in the alternative for a new trial. The trial court granted defendant's motion for a new trial pursuant to Civ. R. 59(A)(4)-(7) and issued a 14-page Judgment Entry Granting New Trial--Civil Rule 59 and Opinion journalized on November 22, 1994. In its Judgment Entry the trial court denied defendant's j.n.o.v. motion but set aside the verdict and granted a new trial on the grounds that the verdict was excessive, appearing to have been given under the influence of passion or prejudice, Civ.R. - 6 - 59(A)(4); error in the amount of recovery, whether too large or too small in a contract action, Civ.R. 59(A)(5); not sustained by the weight of the evidence, Civ.R. 59(A)(6); and contrary to law, Civ.R. 59(A)(7). (Judgment Entry at 1-2). After summarizing the evidence and reviewing the authorities governing the granting of a new trial, the court stated that it had committed "absolute error" in submitting the issue of fraud to the jury since there was "no fraud involved in this case;" that if the jury believed plaintiff "there was no question there was either $60,554.02 or $64,166.47 as past [contract] damages for unpaid commissions; [t]hat would not have been an excessive verdict *** [t]hat the amount of the award [$447,860.45] is clearly an excessive verdict under the factors presented during the course of trial" and the court "was shocked by the excessive nature of the award." (Judgment Entry at 6-7). The trial court discussed with members of the jury how they reached the amount of their verdict and recites their response as follows (Judgment Entry 8-9): "Well, with all the boxes of invoices that we had in the room, (there were four boxes of invoices for the 4 years and 2 months of the plaintiff's employment) we would have to take three weeks to begin to examine the invoices. So what they did was that since they felt that the plaintiff was solely responsible for bringing in the Figgie account and then since Joint Exhibit 1 placed the total income earned from the Figgie account at the figure of $447,860.45, then they used that figure on the verdict form!" - 7 - In talking with the jury, it became clear they had no understanding of the evidence presented during trial and it is clear the jury did not understand the intricacies of Joint Exhibit 1. This Court hesitates to put this additional reason for granting the Motion for New Trial in its opinion but it must because it demonstrates how this excessive verdict was reached. The Court did not rely upon its conversation with the jurors to grant this new trial; however, the conversation with the jury demonstrates further just how shocking the verdict is in that the jury did not take the time to go through the evidence but merely picked an arbitrary figure. In holding that the verdict was excessive under Civ.R. 59(A)(5), the court stated that the arrangement with plaintiff was "an oral, at-will employment agreement ***. There was no showing that the parties contemplated any payment of compensation after the employment relationship terminated, even for customers recruited by plaintiff"; "that the jury failed to calculate damages according to the terms of the contract"; "the argument of [plaintiff's] counsel mislead (sic) the jury so as to violate the law on damages" by arguing plaintiff was entitled to five years of anticipated commissions, for which there was no supporting evidence. The court likewise concluded that the verdict was manifestly against the weight of the evidence and contrary to law for the reasons above mentioned. (Judgment Entry 9-14). From the trial court's order granting a new trial, this timely appeal ensued. - 8 - We will address plaintiff's assignments of error in the order asserted and treat her "propositions of law" as part of the relevant assignment. I. THE TRIAL COURT ERRED BY VACATING THE VERDICT AND GRANTING A NEW TRIAL. A. WHERE THE TRIAL COURT ENGAGES IN POST TRIAL DISCUSSIONS WITH THE JURY AND RELIES UPON OR UTILIZES INFORMATION EXPRESSED DURING THESE DISCUSSIONS TO ORDER A NEW TRIAL A REBUTTABLE PRESUMPTION EXISTS THAT THE TRIAL COURT ABUSED ITS DISCRETION. B. A TRIAL COURT MAY REBUT THE PRESUMPTION THAT IT ABUSED ITS DISCRETION IN RELYING UPON POST VERDICT CONVERSATIONS WITH MEMBERS OF THE JURY IN GRANTING A NEW TRIAL IF IT SETS FORTH A VALID INDEPENDENT BASIS UPON WHICH A NEW TRIAL SHOULD BE GRANTED. C. THE TRIAL COURT FAILED TO PRESENT INDEPENDENT CONSIDERATIONS SUFFICIENT TO SUPPORT A GRANTING OF A NEW TRIAL IN THE ABSENCE OF HIS RELIANCE UPON STATEMENTS OR CONVERSATIONS WITH THE JURY POST-VERDICT. It is appropriate to address, in the first instance, the standards which are applicable to the grant or denial of a new trial by the trial court and the scope of this Court's review of such an order. The Ohio Supreme Court set forth the standard for considering a new trial in Poske v. Mergl (1959), 169 Ohio St. 70, at 73-74: ***where there is a motion for a new trial upon the ground that the judgment is not sustained by sufficient evidence, a duty devolves upon the trial court to review the evidence adduced during the trial and to itself pass upon the credibility of the witnesses and the evidence in general. It is true that, in the first instance, it is the function of the jury to - 9 - weigh the evidence, and the court may not usurp this function, but, when the court is considering a motion for a new trial upon the sufficiency of the evidence, it must then weigh the evidence. A court may not set aside a verdict upon the weight of the evidence upon a mere difference of opinion between the court and jury. *** But where a court finds a judgment on a verdict manifestly against the weight of the evidence, it is its duty to set it aside. (Citations omitted.) In Rohde v. Farmer (1970), 23 Ohio St.2d 82, paragraph one of syllabus, the Court held that: Where a trial court is authorized to grant a new trial for a reason which requires the exercise of a sound discretion, the order granting a new trial may be reversed only upon a showing of abuse of discretion by the trial court. See, also, Verbon v. Pennesse (1982), 7 Ohio App.3d 182, 183; Bible v. Kerr (1991), 81 Ohio App.3d 77, 79. The abuse of discretion standard requires a reviewing court to view the evidence favorably to the trial court's action rather than to the original jury verdict. Malone v. Courtyard By Marriott (1996), 74 Ohio St.3d 440, 448. Plaintiff contends that the trial court's post verdict discussions with the jury were an abuse of discretion vitiating its order granting a new trial. In the Rohde case, immediately after the trial, the judge did, as did the judge here, discuss the trial with the jurors and the reasons for their verdict. It became apparent how the jury reached its erroneous decision. In the Rohde case, the Supreme Court, while condemning the practice of impeaching the jury verdict by judicial interviews, nevertheless - 10 - held that the judge's post-trial discussions with the jury was not necessarily an abuse of discretion. The court stated: However, where the order of the court [granting a new trial] is based upon considerations which do not require any statements of members of the jury to warrant the particular action of the court, we cannot conclude, merely because of the reference by the court to impressions gained by him from discussion with the jury (which only tend to support factual conclusions which he was warranted in making) that the order granting the new trial necessarily resulted from such an abuse of discretion as to require reversal. The Court of Appeals found no such abuse and we find no error in such respect. Id. at 98. See, also, Greene v. American Bankers Ins. Co. (Oct. 13, 1994), Cuyahoga App. No. 66091, unreported (trial court did not err in ordering new trial where jury informed court that it awarded amount based on punitive damages, as court did not instruct on that issue). Furthermore, given that the jury awarded plaintiff, down to the penny, the total amount of Figgie revenues on Jt. Ex. 1 ($447,860.45), it is obvious, even without considering the jury's explanation, how it calculated the damages. In the instant case, the trial court, in its Judgment Entry (at 9), made it explicit that the court "did not rely upon its conversation with the jurors to grant this new trial." Given the trial court's disclaimer, which we will take at face value in the spirit of the Rohde case, we find that the discussions the trial judge had with the jury only tended to support the factual conclusions which he was warranted in making as to excessiveness of - 11 - the verdict and exemplified by his Judgment Entry. We find no abuse of discretion on that point alone. Based on the evidence presented there is no support for the jury's verdict of $447,860.45. Joint Exhibit 1 represented plaintiff's damages if she was paid, on all the customers claimed, at the disputed 6% commission rate. On a plaintiff's best case scenario, her damages would have totaled $60,554.02. To this figure, plaintiff's attorney added invoices that CEI provided and also added $2,000 to even out the discrepancy in plaintiff's pay for the year 1990. This grand total of past commissions due came to $64,166.47. (Tr. 851). Therefore, any amount above the $64,166.47 figure would have to necessarily include future commissions without evidentiary support in the record or damages for fraud, as the $447,860.45 award is far beyond the alleged contract damages. If the jurors intent was to award plaintiff all the commissions from Figgie, the amount would be 6% of $447,860.45 or $26,871.63. We now turn our attention to the issue of whether or not the trial court erroneously submitted the issue of fraud to the jury. Plaintiff's appeal correctly focuses on this paramount issue (Applt's Brf. at 10-11): As the basis of the Court's ruling granting a new trial is premised predominately, if not solely, upon his conclusion that he had directed a verdict in favor of the Defendant [All States] on the issue of fraud. Whether this is in fact true, and whether a directed verdict on the issue of fraud is appropriate are the predominant issue in this appeal. - 12 - There is no question that the record reveals that the trial court overruled All States' motion for a directed verdict on the fraud claim. (Tr. 832-34). Furthermore, the jury was instructed, without objection, on the legal principles of fraud as applied to the case. (Tr. 908-14). However, in granting the new trial, the trial court found that it had erroneously charged on fraud and that fraud should have been directed out when punitive damages were. Indeed, the court found in each of its new trial rulings under Civ. R. 59(A)(4-7) that the fraud charge improperly prejudiced the defendant and tainted the jury's verdict. The law allows for a new trial in the event of prejudicial instructions. As the Supreme Court observed in such a situation: Where a new trial is granted by a Trial Court, for reasons which involve no exercise of discretion, but only a decision on a question of law, the order granting a new trial may be reversed upon the basis of a showing that the decision was erroneous as a matter of law. Rohde, at paragraph two of syllabus. Whether the trial court in fact directed a verdict on the fraud issue; whether it thought it had or had not directed a verdict; or even wished it had directed a verdict on the fraud issue are all besides the point. The issue, squarely put, is whether a new trial is warranted because: (1) the plaintiff's evidence was not sufficient to submit a fraud claim to the jury; and (2) even if the evidence was sufficient to avoid a directed verdict on the fraud issue, did the plaintiff offer sufficient - 13 - evidence to sustain the damages awarded, i.e., was the award nevertheless excessive. In order to present a valid claim for fraud, the claimant must prove the following elements: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 55. We do not find that plaintiff offered sufficient evidence to establish justifiable reliance required to maintain a fraud claim. Plaintiff claims that defendant committed fraud by paying her lower than 6% on some of the shipments; by not paying her for customers that she claimed were hers; by not paying her for shipments that were directly telephoned in to All States by her customers; by directing customers to call All States directly with their orders; and by generally concealing from her information necessary to computing commissions. However, since plaintiff was constantly arguing with defendant over these problems, there was no justifiable reliance on plaintiff's part. Each time she brought her complaints to defendant's attention, the problem was corrected or addressed: commissions were paid; she was told the account was not her account but a house account or another agent's account; or - 14 - that she was not entitled to the straight 6% since the price for shipping was negotiated down. Near the end of plaintiff's tenure, customers were told to call All States directly due to plaintiff referring job leads given to her by defendant to other carriers for whom she was also soliciting freight. She was aware this was going on so there was no reliance on her part that these customers were placing all their orders through her. Plaintiff also contends fraud was committed when the defendant in 1991 began using computerized commission statements. These new statements no longer furnished the sales agents with the revenue charged and the commission percentage. This was done to avoid sensitive information reaching competitors. (Tr. 804-09). Plaintiff claims this forced her to rely on defendant's calculations. However, even after these statements were computerized, plaintiff constantly disputed the commissions she was receiving. (Tr. 15-16, 370-74, 586, 725-27). There was no justifiable reliance on her part regarding these statements. Plaintiff also kept her own records of her customers' shipments as evidenced by her daybook which contained the information she needed to make quotes to her clients. She therefore would have the information available to compute her commissions. Regarding the customers who did not call her directly, she testified that she found out about those shipments through her routine calls to them regarding their shipping needs. Evidence at trial showed that plaintiff was very aggressive and - 15 - that she would call her customers several times a week to determine their shipping needs. This Court has held that in determining whether reliance is justifiable "*** courts consider the various circumstances involved, such as the nature of the transaction, the form and the materiality of the representation, the relationship of the parties, *** and their respective knowledge and means of knowledge." Finomore v. Epstein (1984), 18 Ohio App.3d 88, 89, citing Feliciano v. Moore (1979), 64 Ohio App.2d 236, 241. A plaintiff cannot allege an action for fraud where the true facts are equally open to both parties. Finomore, supra, at 90; LaVeck v. Al's Mustang Stable (1991), 73 Ohio App.3d 700,704; Higgenbottom v. Manhattan Life Ins. (Feb.3, 1994), Cuyahoga App. No. 64633, unreported; Renner v. Derin Acquisition Corp. (May 2, 1996), Cuyahoga App. No. 69181, unreported at 23, 25. Therefore, given that plaintiff constantly disputed these issues and had information at her disposal to calculate her commissions, there was no justifiable reliance on her part and therefore no fraud. We further agree with the trial court that these continuing commission disputes were essentially contract disputes. It is well settled in Ohio that it is no "tort to breach a contract, no matter how willful or malicious the breach." Motorist Mut. Ins. Co. v. Said (1992), 63 Ohio St.3d 690, 694, citing Ketcham v. Miller (1922), 104 Ohio St.372. See, also, The - 16 - Salvation Army v. Blue Cross and Blue Shield of Northern Ohio (1993), 92 Ohio App. 3d 571, 578. In any event, even if the fraud issue was properly submitted to the jury, there was no evidence that the measure of economic losses (i.e., commissions not paid) would be any different for fraud than for breach of contract. Under either theory, plaintiff's recovery would be limited to the shortfall in commissions paid up to termination. Under either theory, or both together, the damages awarded were clearly excessive. As the court in Davison Fuel & Dock Co. v. Pickands Mather & Co. (1977), 54 Ohio App.2d 177, 182 held: [T]he fact that a plaintiff has separate and independent causes of action in contract and in tort does not permit him to recover more than the amount of damage actually suffered as a consequence of the injury resulting from the wrongful breach of contract. [cites omitted]. Proof of actual injury or damage is essential to recovery in either action; thus, where a plaintiff earlier has recovered full damages for breach of contract against the defaulting party to the contract, and fails to allege and prove the existence of additional damages attributable solely to the wrongful acts of interference by the alleged tortfeasor, he is precluded from any further recovery against a defendant in a subsequent tort action [cites omitted]. See, also, Brenner Marine, Inc. v. George J. Goudreau, Jr. Trust (Jan. 13, 1995), Lucas App. No. L-93-077, unreported ("plaintiff is entitled to only single recovery of damages even though such plaintiff may be entitled to plead alternative theories of recovery"). - 17 - In final argument, plaintiff contended she was entitled to past contract damages for unpaid commissions prior to termination ($64,166.47); fraud damages broken down into: (a) emotional distress/pain and suffering ($64,166.47); and (b) loss of anticipated income or profit ($67,045.92 x 5 [years] = $335,229.60). The total damages claimed in final argument were $463,562.54. The jury awarded $447,860.45. Plaintiff's commission arrangement with defendant was at- will. There was no evidence that plaintiff had any tenure with defendant or that her commission arrangement would continue after termination. Plaintiff herself testified as follows: Q. Surely. There was no discussion at all held between yourself, Mr. Kovacic and Jack Ward of All States Freight as to what, if anything, you would be entitled to if you left All States Freight? A. No. Q. And there was no discussion regarding if you left All States Freight and allegedly or arguable some of the customers that you brought in were retained by All States Freight, true? A. True. (Tr. at 420). Jack Ward, III also testified that no long term employment promises were made to plaintiff and that plaintiff never mentioned future commissions after termination. (Tr. 719). There was no meeting of the minds and therefore no contractual basis for future commissions. In the case of Weiper v. W.A. Hill & Assoc. (1995), 104 Ohio App.3d 250, the court held: - 18 - Simply because a commissioned employee through his or her efforts makes a company more profitable does not entitle that person to post-employment commissions. Such a result would be tantamount to giving the employee a perpetual equitable share of that company's earnings. Id. at 259. In the instant case, plaintiff admitted that there was no mention of future commissions if she was terminated. For her counsel to make a claim in final argument for loss of future income was clearly prejudicial and unwarranted by the evidence. That being the case, there was no basis in the record for the plaintiff's counsel arguing for five years of damages at $67,049.72 per year and totalling future damages at $335,229.60. The fact that defendant did not object to this argument does not justify an award for which there is no legal basis. The evidence and law must still support the amount awarded. The $64,166.47 in "fraud damages" for which plaintiff argued bears the same essential defect. To the extent it duplicates the contract award claimed for unpaid commissions (also $64,166.47) it is a double recovery. To the extent it reflects emotional distress, pain and suffering resulting from skin rash, sleeplessness, stress or fibromyalgia. (Tr. 101, 102, 254, 306, 308, 852), the award fails for lack of expert medical testimony causally connecting these injuries to the "fraud" or her commission disputes with All States. In Darnell v. Eastman (1970), 23 Ohio St.2d 13, syllabus, the Court held: - 19 - *** the issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry and must be established by the opinion of medical witnesses competent to express such opinion. In the absence of such medical opinion, it is error to refuse to withdraw that issue from the consideration of the jury. We find it was error to submit these fraud damage claims to the jury as they were not supported by the evidence. The submission of these claims to the jury was clearly prejudicial. Accordingly, we find the trial court did not abuse its discretion in granting a new trial. Assignment of Error I and its subparts are overruled. II. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR A DIRECTED VERDICT ON THE ISSUE OF PUNITIVE DAMAGES. The rule in Ohio is that irrespective of the motive on the part of the defendant and regardless of how willful the breach, an action for breach of contract does not allow an award for punitive damages. Digital & Analog Design Corp. v. North Supply Co. (1989), 44 Ohio St.3d 36; Spalding v. Coulson (May 11, 1995), Cuyahoga App. Nos. 64962, 65185, 66457, unreported at 8; Host v. Ursem (July 15, 1993), Cuyahoga App. No. 63109, unreported at 6. In order to receive punitive damages, the plaintiff must demonstrate actual damages distinct from the breach of contract action attributed solely to the alleged tortious conduct of the defendant. Shimola v. Nationwide Ins. Co. (1986), 25 Ohio St.3d 84, 86. In essence, plaintiff's argument is that because there was fraud the court should have instructed on punitive damages. We - 20 - have found previously, however, that there was no evidence of fraud and, therefore, the court acted properly when it granted the motion for directed verdict as it relates to punitive damages. Furthermore, as our previous discussion necessarily implies, the commission disputes between the parties were plain, garden variety contractual disputes. It is not every fraud claim that evokes the extraordinary remedy of punitive damages. In cases alleging fraud, in order to be awarded punitive damages, the plaintiff must establish not only the elements of the tort itself, but must also show either the fraud is aggravated by the existence of malice or ill will or must demonstrate that the wrongdoing is particularly gross or egregious. Atram v. Star Tool & Die Corp. (1989), 64 Ohio App.3d 388; Mid-America Acceptance Co. v. Lightle (1989), 63 Ohio App.3d 590, 602. There must be an element of malice, oppressive conduct or outrage to sustain such an award. We find no such evidence here. Assignment of Error II is overruled. Having carefully reviewed the record and evidence in this case, we agree with the trial court that the jury verdict was shocking and the result of passion or prejudice. We find no abuse of discretion in the trial court's order granting a new trial. Judgment ordering a new trial affirmed and the case is remanded for further proceedings consistent with this opinion. - 21 - It is ordered that appellee recover of appellant its 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 Court of Common Pleas 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, P.J., and DAVID T. MATIA, J., CONCUR. JAMES M. PORTER 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 .