COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 71070, 71368, & 71399 [CASE NO. 71070] : [CASE NO. 71399] : JAMES V. CAPPARA, et al. : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION LOREN SCHIBLEY, et al. : : DEFENDANTS-APPELLANTS : : [CASE NO. 71368] : JAMES V. CAPPARA, ET AL. : : PLAINTIFF-APPELLANT : : v. : : LOREN SCHIBLEY, et al. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 26, 1997 CHARACTER OF PROCEEDING: Civil appeals from Court of Common Pleas, Case No. CV-278643. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For James V. Cappara, et al: Dennis R. Lansdowne, Esq., John R. Liber, Esq., Spangenberg, Shibley & Liber, 2400 National City Center, 1900 East 9th Street, Cleveland, Ohio, 44114- 3400. For Loren Schibley, et al.: James A. Sennett, Esq., Adam E. Carr, Esq., Williams & Sennett Co., L.P.A., 126 W. Streetsboro Street, Suite 4, Hudson, Ohio, 44236, and Thomas C. Schrader, Esq., 2100 Bank One Center, 600 Superior Avenue, E., Cleveland, Ohio, 44114-2653. 2 SWEENEY, JAMES D., C.J.: Three separate appeals have been filed and consolidated for review herein. In appellate case number 71070, defendants Loren Schibley (Schibley) and Schibley Chemical Co., Inc. (Schibley Chemical) appeal from a jury verdict in favor of plaintiff James Cappara. In appellate case number 71368, Cappara filed an appeal regarding attorney fees awarded by the trial court, and in appellate case number 71399, Schibley and Schibley Chemical filed a separate appeal regarding the award of attorney fees. For ease of reference, Schibley and Schibely Chemical will be referred to as the appellants, and Mr. Cappara will be referred to as the appellee. This action arose out of a 1992 motor vehicle accident for which Schibley admitted liability. The appellee sought both compensatory and punitive damages as he believed the appellant to be under the influence of alcohol at the time of the accident. In addition, since the vehicle driven by Schibley was owned by Schibley Chemical, the appellee sought damages from Schibley Chemical for its negligent entrustment of the vehicle to Schibley. During both the discovery and trial depositions taken of Schibley it became apparent that his driving record was not stellar. In fact, Schibley admitted to having one prior conviction for driving under the influence of alcohol. Another prior driving citation was unearthed by the appellee. Also during the appellant's depositions it was learned that Schibley had two subsequent convictions for driving under the influence of alcohol 3 along with other driving citations. During the depositions, counsel for Schibley objected to the questions regarding the subsequent DUI convictions. On June 10, 1996, three days prior to trial, the appellants filed a motion in limine requesting that the court prohibit any evidence as to the subsequent driving record of the appellant. Just prior to trial, on the record, the court made the following ruling: Third is the defendant's motion in limine to exclude instances of intoxication. There are two parts of this which the Court must address. The first one relates to the claim of negligent entrustment. The plaintiff shall not introduce evidence of defendant's subsequent convictions for DWI on the claim of negligent entrustment. However, the plaintiff may introduce evidence of a prior DWI of defendant on that issue. The second part, the plaintiff shall be allowed to introduce evidence of subsequent DUI's and, of course, on the issue of punitive damages, provided plaintiff first introduces evidence of plaintiff's leaving the scene of the accident. (T. Vol.I 5) Counsel for appellant objected, arguing that future acts should not be used to determine the state of mind of Schibley and Schibley Chemical at the time of the accident, and that the use of such evidence is an improper use of character evidence under Evid. R. 404. Counsel urged that since no one had access to a crystal ball, the evidence was extremely prejudicial to the defendants. (T. Vol. I 11-13.) Based upon the court's ruling, the Schibley's trial deposition was read to the jury during trial. The jury returned a verdict in favor of the appellee and awarded compensatory damages in the sum of $28,325.72, and punitive 4 damages in the sum of $38,000.00. The trial court awarded $26,534.00 as reasonable attorney fees to the appellee. The appellants set forth twelve assignments of error and the appellee asserts one assignment of error. The appellants' first assignment of error; WAS ADMISSION OF A SUBSEQUENT DRIVING RECORD TO PROVE APPELLANTS' STATE OF MIND, AS IT EXISTED ON A PRIOR DATE, OF SUCH IMPORTANCE THAT IT MUST HAVE AFFECTED THE VERDICT? The appellants' argument made in their motion in limine, and made before the trial court, is repeated upon appeal. Essentially, the appellants assert that the admission of Schibley's subsequent driving record was both an impermissible and prejudicial use of character evidence. The appellants articulated that the use of subsequent citations for driving under the influence of alcohol should not be used to determine malice at the time of the accident. Since the trial court ruled the evidence of Schibley's subsequent driving record inadmissible for the purposes of proving negligent entrustment, this court will only consider the admissibility of Schibley's subsequent driving record as it pertains to the finding that Schibley and Schibley Chemical acted with malice. It was this finding by the jury which resulted in punitive damages being awarded against Schibley and Schibley Chemical. In Cabe v. Luinch (1994), the Supreme Court held at syllabus one: In a civil action for bodily injuries caused by the defendant's operation of a motor vehicle where liability is determined and compensatory damages 5 are awarded, punitive damages may be awarded upon a showing of actual malice, i.e., (1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. (Preston v. Murty [1987], 32 Ohio St. 3d 334, 512 N.E.2d 1174, approved and followed.) At syllabus two, the Cabe Court held: Evidence that a negligent driver had consumed alcohol prior to a vehicular accident is relevant and admissible to establish whether the driver acted with actual malice justifying an award of punitive damages. (Detling v. Chockley [1982], 70 Ohio St.2d 134, 24 O.O.3d 239, 436 N.E.2d 208, overruled to the extent inconsistent herewith.) Thus it is clear that in Ohio, where there is proof that a driver was intoxicated at the time of the accident, punitive damages may be awarded upon a finding of actual malice. In the case sub judice, there is no direct evidence that Schibley was intoxicated at the time of the accident, or that Schibley Chemical knew that Schibley was intoxicated when it gave him permission to drive the vehicle. The appellee attempted to prove the intoxication by way of Schibley's driving record, past and future. The parties do not contest that Schibley's prior driving record was admissible. In order to show that evidence of subsequent acts may be introduced to prove malice, the appellee cites to Moskowitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, where the Supreme Court found that an intentional alteration, falsification or destruction of medical records by a doctor, to avoid liability for his or her medical negligence, is sufficient to show actual malice. Id. at 6 syllabus one. What the appellee fails to appreciate is that the court so held because it found the doctor's alteration of the records was inextricably intertwined with the claims advanced by appellant for medical negligence. Moskovitz at 651. Clearly, such is not the case here. The appellee has no evidence that Schibley's subsequent DUI's were part and parcel of the accident which caused his injuries. The Supreme Court did not hold in Moskovitzthat the subsequent spoliation of evidence of one patient could be used to prove medical negligence in an action by another patient. Appellee's analogy, taken to its logical conclusion, does not hold. Turning to the argument advanced by the appellants that the use of subsequent acts is merely an improper use of character evidence, it must be noted that Evid.R. 404 instructs that character evidence may be used only in certain instances. This court agrees with the appellants' views that this was not a proper instance in which character evidence was admissible. It is seemingly impossible to show malice, i.e., a defendant's state of mind and/or conscious disregard, with occurrences which were subsequent in time to the event from which the negligence arose. This issue merits no further discussion. This court also agrees that the evidence of Schibley's subsequent driving record was prejudicial. Without evidence of subsequent driving infractions, it is not certain that a jury would find that the appellant was intoxicated at the time of the accident. 7 The appellants' first assignment of error is well taken. The appellants' second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth assignments of error are moot, pursuant to App.R. 12, as is the appellee's assignment of error in his appeal from the award of attorney fees. This case is reversed and remanded for a new trial. 8 This cause is reversed and remanded for a new trial. It is, therefore, considered that said Loren Schibley and Schibley Chemical Co., Inc. recover of said James V. Cappara their costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. JOSEPH J. NAHRA, J., and TIMOTHY E. McMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .