COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72856 GLENWOOD HOMES, LTD., et al. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION STATE AUTO MUTUAL INSURANCE : COMPANY : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OCTOBER 1, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-302857 JUDGMENT: Affirmed in part, Reversed in part and Remanded. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: JAMES E. NAGY, ESQ. 19120 Detroit Road Suite. 7 Rocky River, Ohio 44116 For Defendant-Appellee: JEROME W. COOK, ESQ. McDonald, Hopkins, Burke & Haber, 2100 Bank One Center 600 Superior Avenue Cleveland, Ohio 44114 - i - For Appellant: Glenwood Homes, Ltd. et al. ROBERT J. ANDREWS, ESQ. Andrews & Assoc. 8138 Main Street Garrettsville, Ohio 44231 ANN E. LEO, ESQ. Bertsch, Millican & Winslow Co. 1280 West 3rd Street Cleveland, Ohio 44113 Terrence R. Wilson, et al. CLARK D. RICE, ESQ. Bertsch, Millican & Wislow Co. 1280 West 3rd Street Cleveland, Ohio 44113 For Appellee: Emanuel Diligente, et al. GLENN D. SOUTHWORTH, ESQ. McDonald, Hopkins, Burke & Haber 2100 Bank One Center 600 Superior Avenue Cleveland, Ohio 44114 For State Auto Mutual Insurance BRIAN D. KERNS, ESQ. 7029 Pearl Road Suite 310 Middleburg Heights, Ohio 44130 -2- PATRICIA ANN BLACKMON, A.J.: Plaintiff-appellant Glenwood Homes, Ltd. appeals a decision by the trial court in favor of defendant-appellee Emanuel Diligente in Glenwood's action to recover the balance owed on three construction contracts. Glenwood assigns the following seven errors for our review.1 Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court in part and reverse it in part. The apposite facts follow. On February 5, 1996, Glenwood Homes, Ltd. filed a complaint against Emanuel Diligente and E.D. Masonry for money owed on three commercial construction contracts totaling $67,500.00. In a contract dated June 6, 1995, Glenwood agreed to perform preparatory site work including installation of sanitary sewers, water lines, and a storm sewer at a retail shopping plaza known as Garfield Plaza for $44,000.00. In another contract dated June 6, 1995, Glenwood agreed to provide labor only for the installation of wood plates, trusses, sheathing, soffit framing and metal truss straps at Garfield Plaza for $9500.00. In a contract dated July 11, 1995, Glenwood agreed to provide labor for construction of concession stands, bathrooms and a ticket booth at Stafford School in Maple Heights for $14,000.00. The complaint alleged that Diligente failed to pay $34,999.09 owed on the Garfield Plaza contracts and 1See Appendix. -3- $7280.66 owed on the Stafford School contract -- a total of $42,279.75. Diligente filed an answer and counterclaims against Glenwood for breach of contract, negligent construction, breach of implied covenant of workmanlike performance, fraud and deceit, and negligent misrepresentation. Diligente alleged that Glenwood negligently back-filled sanitary and sewer line trenches without first obtaining the required final inspection of the lines, then withheld the information from Diligente who surfaced the concrete parking lot over the site. Diligente also alleged that Glenwood improperly repaired the street opening for the sewer and poured footers for the building's foundation that were narrower than the twenty inches called for by the building's plans and specifications. The case proceeded to trial on June 18, 1997. At the close of Glenwood's evidence, the trial court granted Diligente's motion for directed verdict on the complaint. The case then went forward on Diligente's counterclaims. The jury ruled in favor of Diligente on his claims for breach of contract, negligence, and fraud. The jury also concluded that Diligente proved by a preponderance of the evidence that he sustained $4850 in damages due to his repair of the street opening. Diligente was awarded a total of $145,499.79 in compensatory damages, $62,000.00 in punitive damages, and attorneys fees. The court entered judgment on the verdict in favor of Diligente for $207,499.79 with 10% interest per annum, costs and attorney's fees. This appeal followed. -4- In its first and fourth assignments of error, Glenwood Homes argues the trial court erred in precluding the testimony of three of its witnesses -- Thomas Smith, Tim Perotti and Richard Jacobs. Smith was denied the opportunity to testify because Glenwood Homes failed to timely provide his expert report to Diligente. At a January 29, 1997 pretrial hearing, the court held that Glenwood's expert reports were due on May 19, 1997. A pretrial was set for March 10, 1997. The final pretrial was set for June 2, 1997. Trial was set for June 11, 1997. At the March 10, 1997 pretrial, the court changed the discovery deadline from April 1, 1997 to May 1, 1997. Another pretrial was held on May 7, 1997. On that date, the trial court accepted the report of Glenwood's expert, Dominick Levigne, even though it was filed after the 5/19/97 deadline. Also, at Glenwood's request, the trial date was changed to June 18, 1997. Thereafter, on the day of trial, Glenwood sought an extension of time to file the report of its expert, Thomas Smith & Co. The trial court denied the motion and granted Diligente's motion to preclude Smith's testimony. [S]ince this Court extended deadlines twice before and also permitted another plaintiff's expert and third-party defendant's expert report to be filed and accepted by this Court after its deadline, the Court *** grants defendant Emanuel Diligente's motion in limine which has been presented to this Court on this date, June 18, 1997, entitled Motion in Limine of Defendant-Counterclaimant Emanuel Diligente, E.D. Masonry Construction, Inc. So it's to preclude the report and testimony of Thomas E. Smith Company, a real estate appraiser, and the submission of any report generated by him. -5- (Tr. 8.) Glenwood argues the trial court did not set any deadline for submission of Smith's expert report. However, a review of the transcript reveals the trial court gave Glenwood additional time to obtain an appraisal of the property but cautioned that appraisals, inspections, and depositions of expert witnesses had to be completed prior to June 18, 1997. (Tr. 5.) (Emphasis added.) The trial court may, in its discretion, exclude the testimony of expert witnesses who are not properly identified before trial. Walworth v. BP Oil Co. (1996), 112 Ohio App.3d 340, 352, discretionary appeal not allowed (1996), 77 Ohio St.3d 1493. The discovery rules are designed to insure that opposing parties have sufficient time to prepare an effective cross-examination, a task which is particularly important when expert testimony will be presented. See Feichtnerv. Ohio Dept. Of Transp. (1996), 114 Ohio App.3d 346, 352-353, appeal dismissed (1997), Ohio St.3d 1201, motion for reconsideration denied (1997), 78 Ohio St.3d 1517. See also Local Rule 21.1(B) (a party may not call an expert witness to testify unless a written report has been procured from the witness and provided to opposing counsel.) The record reveals the trial court gave Glenwood a reasonable amount of time to fulfill its discovery obligations. The court had earlier accepted a report from one of Glenwood's experts despite the fact that it was not submitted until after the court imposed deadline for such reports. The court also extended the discovery deadline and delayed the start of trial by one week in order to -6- accommodate Glenwood's requests for additional time to complete discovery. We conclude the court did not abuse its discretion in excluding Smith's testimony when Glenwood failed to timely provide his expert report. Tim Perotti; Richard Jacobs. The testimony of Perotti and Jacobs was excluded because Glenwood failed to provide their names and addresses to Diligente during pretrial discovery. Loc.R. 21.1 provides that all parties must submit a trial witness list, including the full name and address of all witnesses expected to testify at the trial on their behalf, no later than seven (7) days prior to the final pretrial date. Loc.R. 21, Part III(E) requires each party to submit a pretrial statement at least (7) days in advance of the final pretrial including a list of non-expert trial witnesses with a brief summary of their expected testimony. In this case, Diligente failed to include the names of Perotti or Jacobs in either its pretrial statement or its trial brief. The trial court excluded the testimony of both witnesses. With respect to Perotti, the court said: The court is not going to permit the testimony of Tom Perotti for failure of counsel to comply with the Rules of this Court. I was not aware of Mr. Perotti being a witness until today, June 26th. (Tr. 701.) With respect to Jacobs, the court said: To give notice to trial counsel by mere mentioning that a sanitary engineer on the day of trial may be called as your witness is not sufficient notice to the defense counsel in -7- order to prepare for this trial, which we knew had been set back in January of 1997. You had plenty of time in which to give notice to defense counsel of all witnesses you intended on calling. (Tr. 651-652.) Civ.R. 37(B)(2)(b) provides that if any party fails to provide discovery, the court may make an order prohibiting the disobedient party from introducing designated matters in evidence. However, Diligente argues the evidence should not have been excluded since there was no prejudice to Glenwood. Specifically, Diligente argues that it advised Glenwood that it intended to call a representative of the city of Garfield Heights and a representative of the Cuyahoga County Engineering Department. We agree with the trial court's determination that those designations were not sufficient to comply with Loc.R. 21. Neither Jacobs nor Perotti was listed by name. As discussed above, Part II of Loc.R. 21.1 requires a party's trial witness list to include the full name and address of all witnesses expected to testify at trial on that party's behalf. Diligente's argument that Jacobs was to testify as a fact witness, not an expert witness, is irrelevant. Accordingly, the trial court properly excluded the testimony of Jacobs and Perotti. Glenwood's first and fourth assignments of error are overruled. In its second assignment of error, Glenwood Homes argues the trial court erred in denying its motion for a jury view prior to trial and in prohibiting the introduction of photographs showing the completed Garfield Plaza building. The purpose of a jury view -8- is to help the jury understand the evidence to be presented at trial. Kaufman v. Lake Cty. Bd. Of Revision (Dec. 2, 1994), Lake App. No. 93-L-174, unreported; Cincinnati Ins. Co., et al. v. Bellini(Dec. 30, 1991), Clermont App. No. CA91-05-034, unreported. The decision about whether to allow a jury view is within the discretion of the trial court. Id. [Citing Lacy v. Uganda Investment Corp. (1964), 7 Ohio App.2d 237.] In this case, the evidence presented included photographs and blueprints of the building as well as expert testimony to explain the construction process. Under the circumstances, there was sufficient evidence in the record to permit the jury to understand the issues involved in the case and the testimony presented. Accordingly, the trial court did not abuse its discretion by failing to permit a jury view of the premises. Glenwood also challenges the trial court's decision not to allow into evidence several photographs of the building taken by Wilson. The acceptance of photographic evidence rests within the sound discretion of the trial court. Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, 685; Andrews v. Riser Foods, Inc., (Oct 16, 1997), Cuyahoga App. No. 71658, unreported; Nelson v. McClintock, (Sept. 26, 1997), Portage App. No. 96-PA- 0204, unreported; Hoover v. Turner, Admr. (1931), 42 Ohio App. 528, 534. A photograph is not objectionable if it is properly identified, is relevant and competent, and is an accurate representation of the scene which it portrays. A proper foundation -9- is required in which there must be testimony that the photograph is a fair and accurate representation of that which it represents. See Heldman v. Uniroyal, Inc. (1977), 53 Ohio App.2d 21, 31, citing State v. Hill (1967), 12 Ohio St.2d 88, 90; Cincinnati, Hamilton & Dayton Ry. Co. v. De Onzo (1912), 87 Ohio St. 109; Ohio Power Co. v. Diller (1969), 18 Ohio App.2d 167; DeTunno v. Shull (1956), 75 Ohio Law Abs. 602. Glenwood challenges the trial court's failure to admit Exhibits CWG 17-24 and 27-35. However, Glenwood failed to lay a proper foundation for many of the photographs. During his testimony, Wilson made no mention of CWG 17, 18, 22, 23, 24, and 27. Accordingly, the trial court properly denied the admission of those photographs as they were not properly authenticated by the witness. During his testimony, Wilson identified CWG 19, 20, 21 and 28 and stated they were fair representations of what they depicted.2 CWG 19 depicted the Blythin Street repair. However, the condition of Blythin Street before the repair was depicted in Defendant's Exhibits M and RRR. Wilson admitted that he did not finish repairing the street. (Tr. 434-435, 904.) CWG 20 and 21 depicted the parking lot of the building. However, the parking lot was visible in Defendants' Exhibits AAA, EEE, and in CWG 7, all of which were admitted into evidence by the trial court. There is no indication that CWG 20 and 21 would be anything but cumulative of those exhibits. CWG 28 depicted the south wall of the building. 2 Wilson never said what CWG 28 depicted. -10- However, the evidence of Diligente's expert, Subodh Jain, established that the footer for the south wall was poured according to specifications. Because Diligente conceded there was nothing wrong with the south wall, Exhibit CWG 28 was not relevant to the claims before the court. Accordingly, we conclude the trial court did not abuse its discretion in excluding CWG 17-24 and CWG 27-34. With respect to CWG 35 (Wilson's appointment calendar), Wilson used it to refresh his recollection several times during his testimony. (Tr. 889, 892, 898, 909-910.) Also, although Wilson had entries in the calendar describing excavation work being done on the sanitary trenches, there was uncontradicted evidence that he was on vacation at the time and was not present at the site. (Tr. 978-981, 1022-1023.) Under the circumstances, the trial court properly excluded CWG 35 from evidence. Glenwood's second assignment of error is overruled. In its third assignment of error, Glenwood argues the trial court erred in directing a verdict in favor of Diligente and E.D. Masonry Construction Inc. at the close of Glenwood's evidence on its complaint. The trial court entered the directed verdict because Glenwood failed to comply with Civ.R. 10(D) which provides that when any claim or defense is founded on an account or other written instrument, a copy thereof must be attached to the pleading. If not so attached, the reason for the omission must be stated in the pleading. In this case, it is undisputed that Glenwood failed to attach the construction contracts with Diligente to its complaint. -11- However, it has been held repeatedly that when a plaintiff fails to attach a copy of a written instrument to his complaint, the proper method to challenge such failure is by filing a Civ.R. 12(E) motion for a more definite statement. Schwartz v. Bank One, Portsmouth, N.A.(1992), 84 Ohio App.3d 806, 812, fn 4 (citing Point Rental Co. v. Posani (1976), 52 Ohio App.2d 183, 186.) See also Home Bank, F.S.B. v. Pauer (February 19, 1998), Cuyahoga App. No. 72242, unreported; Aveni v. Howells (May 30, 1996), Cuyahoga App. No. 69809, unreported. A defendant who fails to file a Civ.R. 12(E) motion before filing his answer has been held to have waived his right to assert Civ.R. 10(D) as a basis for dismissing the plaintiff's complaint. Bomanite Designs, Inc. v. LeBail (Oct. 26, 1990), Lake App. No. 89-L-14-139, unreported (citing Phillips v. Fishel (Jan. 28, 1983), Lake App. No. 9-041, unreported.) In this case, Diligente never filed a motion for a more definite statement. Consequently, the trial court's decision to direct a verdict on Glenwood's complaint for failure to comply with Civ.R. 10(D) was erroneous. However, Glenwood failed to produce any clear evidence of the amount of damages claimed under the contracts. Q: So as you sit here today, from your knowledge, as you believe, related to the Maple Heights project, if there is something owing to you from Mr. Diligente, how much? A: Approximately $7,500. (Tr. 91.) During earlier questioning, Diligente testified that he had been paid approximately $10,500 of the $14,000 contract price on -12- the Maple Heights job. He admitted that he could not prove he was owed $7,500. Q: But all we can prove, based on this particular contract, is the $3,500; is that correct? A: Yes. (Tr. 91.) During later questioning, Diligente again testified he was seeking $7500. Q: Do you remember saying, though, yesterday, that you can't prove that you're owed $[7200]; do you remember testifying to that effect? A: Yes. Q: Now, and after now, October 20, 1995, however, you filed a lien with the City of Maple Heights indicating that you were owed $9364; isn't that right? A: I'm not sure of the dollar amount. (Tr. 239.) *** Q: But as you sit here today, you're not in a position to support $9000, or even $7200; isn't that right? A: I could if I had my books. I could ask my accountant to look it up with `95 and look up the record. (Tr. 240.) Wilson admitted that he had no documentary evidence to support his claim other than the contracts. (Tr. 128.) Though his claim was for 100% of the contract price on the Garfield Heights project, he admitted that he did not complete 100% of the work. (Tr. 170.) Because Wilson failed to meet his burden of proof with respect to -13- the damages owed, the directed verdict was properly granted in favor of Diligente. An appellate court must affirm a trial court's judgment if upon review any valid grounds are found to support it. Hackathorn v. Springfield Local School Dist. (1994), 94 Ohio App.3d 319, 326, appeal dismissed (1994), 70 Ohio St.3d 1440. Evidence of damages must be shown with a reasonable degree of certainty and speculative damages are not recoverable. Williams v. Ohio Exposition Comm. (Mar. 31, 1988), Franklin App. No. 87AP-733, unreported. Glenwood's third assignment of error is overruled. In its sixth assignment of error, Glenwood argues the trial court erred in charging the jury that they may award both damages for repair of the building as well as diminution in value. The trial court gave the jury the following instructions with respect to damages: When real property was been permanently or irreparably damaged, the measure of damages is the difference in the fair market value of the whole property, including improvements thereon, immediately before and immediately after the damage occurred. (Tr. 1135.) If the damage to the property is temporary and such that the property can be restored to its original condition, then the owner may recover the reasonable cost of these necessary repairs. If, however, these repair costs exceed the difference in the fair market value of the property immediately before or after the damage, then this difference in value is all that the owner may recover. (Tr. 1136.) (Emphasis added.) The jury instructions made clear that the jury could award only diminution in value if the cost of repairing the property was -14- greater than the diminution of its value. The court's instructions correctly stated the applicable law. The proper measure of damages for breach of a construction contract is the reasonable cost of placing the building in the condition contemplated by the parties at the time the contract was entered into. Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App.3d 7; Jones v. Honchell (1984), 14 Ohio App.3d 120, 123; Sites v. Moore (1992), 79 Ohio App.3d 694, 702; Barton v. Ellis (1986), 34 Ohio App.3d 251, 253; and Platner v. Herwald (1984), 20 Ohio App.3d 341, 342. However, if reconstruction and completion will involve unreasonable economic waste, damages are measured by the difference between the market value that the structure contracted for would have had and that of the imperfect structure received by the plaintiff. 5 Corbin on Contracts (1964), Section 1090. Because we find no error in the trial court's jury instructions, we overrule Glenwood's sixth assignment of error. In its seventh assignment of error, Glenwood argues the verdict in favor of Diligente is against the manifest weight of the evidence. Specifically, Glenwood argues the verdict was based upon an incomplete record due to the court's refusal to allow the testimony of Thomas Smith & Co., Tim Perotti, and Richard Jacobs, the denial of the motion for jury view, and refusal to admit photographs of the premises taken by Wilson. Because we addressed these issues in our discussion of Glenwood's first, second and fourth assignments of error, we need not revisit them here. Glenwood's seventh assignment of error is overruled. -15- In its fifth assignment of error, Glenwood argues the trial court erred in denying its motion for a directed verdict on the issues of fraud and the availability of punitive damages. The standard of review for a Civ.R. 50(B) motion for judgment notwithstanding the verdict is the same as that for a motion for a directed verdict. The question presented is one of law, and, therefore, review of the motion does not entail a weighing of the evidence or an assessment of the credibility of the witnesses. Osler v. Lorain (1986), 28 Ohio St. 3d 345. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record are construed most strongly in favor of the party against whom the motion is made, and where reasonable minds could, upon this evidence, reach different conclusions, the motion must be denied. Posin v. A.B.C. Motor Court Hotel, Inc. (1976), 45 Ohio St. 2d 271, 275. The evidence presented in support of Diligente's fraud claim was sufficient to withstand a motion for directed verdict. The elements of a fraud claim are a representation of a fact, which is material, made falsely -- either with knowledge of the falsity or utter disregard and recklessness as to falsity -- with an intent to mislead, with justifiable reliance thereupon and a resulting injury. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 632; Russ v. TRW, Inc. (1991), 59 Ohio St.3d 42, 49. Diligente produced evidence that when he questioned Wilson about the width of the building's footers, Wilson told him he measured wrong. Diligente also presented evidence that the -16- improper footers resulted in structural damage to the building. He also testified that Wilson failed to notify him that the building's water line connection had not been inspected as required by the Water Department. Diligente paved over the area of the connection and his water service was later terminated because of the failure to obtain the necessary inspection. In order to obtain the inspection and restore water service to the building, Diligente will have to remove parts of the parking lot and sidewalk in order to expose the water connection. He testified that it would cost him $6000.00 to remove and repair the concrete. After construing this evidence most strongly in favor of Diligente, reasonable minds could differ as to whether Glenwood committed fraud. However, we find that the motion for directed verdict should have been granted as to the punitive damages claim. In order to receive punitive damages, in addition to a showing that he has sustained actual damages resulting from the defendant's actions, a plaintiff must show that the defendant acted with malice. Malone v. Courtyard by Marriott Limited Partnership (1995), 74 Ohio St.3d 440, 445. Malice is defined as that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. Id.(Citing Preston v. Murty (1987), 32 Ohio St.3d 334, at syllabus.) In this case, there was no evidence that Glenwood Homes' actions were motivated by hatred, ill will, or revenge. Though Diligente argues Glenwood's concealment of various facts -17- regarding the construction of the building demonstrated a conscious disregard for the rights and safety of others, the undisputed evidence is that the building was being used for its intended purpose at the time of trial. Also, there was no evidence that the building posed a threat to the safety of its patrons. Because of the failure of proof as to the essential element of malice, Glenwood's motion for directed verdict should have been granted as to Diligente's fraud claim. Glenwood's fifth assignment of error is sustained as it pertains to Diligente's punitive damages claim. Accordingly, we reverse the decision of the trial court with respect to punitive damages only. Finding no merit to any of Glenwood's other assignments of error, the judgment is otherwise affirmed. Judgment affirmed in part, and reversed as to punitive damages only. This cause is affirmed in part, reverse in part and remanded. It is ordered that appellants and appellee share the 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, Domestic Relations Division 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. PATTON, J., and JAMES D. SWEENEY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). APPENDIX ASSIGNMENT OF ERRORS I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT, DILIGENTE'S MOTION IN LIMINE PRECLUDING THE REPORT AND TESTIMONY OF THOMAS SMITH & CO., REAL ESTATE APPRAISER. II. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR A JURY VIEW PRIOR TO TRIAL AND IN PROHIBITING THE INTRODUCTION OF PHOTOGRAPHS DEPICTING THE COMPLETED STRUCTURE. III. THE TRIAL COURT ERRED IN DIRECTING A VERDICT IN FAVOR OF THE DEFENDANTS, EMANUEL DILIGENTE AND E.D. MASONRY CONSTRUCTION INC. AT THE CLOSE OF PLAINTIFF'S EVIDENCE ON ITS COMPLAINT. IV. THE TRIAL COURT ERRED IN PRECLUDING THE TESTIMONY OF PLAINTIFF/COUNTERCLAIM DEFEN- DANT'S WITNESSES, TIM PEROTTI AND RICHARD JACOBS. V. THE TRIAL COURT ERRED IN DENYING PLAINTIFF/ COUNTERCLAIM DEFENDANT'S MOTION FOR A DIRECTED VERDICT ON THE ISSUES OF FRAUD AND THE AVAIL- ABILITY OF PUNITIVE DAMAGES. VI. THE TRIAL COURT ERRED IN CHARGING THE JURY THAT THEY MAY AWARD BOTH DAMAGES FOR REPAIR OF THE BUILDING AS WELL AS DIMINUTION IN VALUE. VII. THE VERDICT IN FAVOR OF THE DEFENDANT/ .