[Cite as Berry v. Lupica, 196 Ohio App.3d 687, 2011-Ohio-5381.]



                     [Please see vacated opinion at 2011-Ohio-3462.]


                     Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 95393



                                              BERRY,

                                                          APPELLANT,

                                                    v.

                                      LUPICA ET AL.,
                                                          APPELLEES.


                                   JUDGMENT:
                              AFFIRMED, AS MODIFIED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-613669

        BEFORE: Stewart, J., Blackmon, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                     October 18, 2011
       ATTORNEYS:

       Morganstern, MacAdams & DeVito Co., L.P.A., Christopher M. DeVito, and Alexander
J. Kipp, for appellant.


       Moscarino & Treu, L.L.P., Kris H. Treu, William H. Falin, and Michael J. Kahlenberg,
for appellees.
         ON RECONSIDERATION.1

         MELODY J. STEWART, Judge.

         {¶ 1} Plaintiff-appellant,            Robert      Berry,      brought      suit    against      his    supervisor,

defendant-appellee James Lupica, and their employer, defendant-appellee Wachovia Securities,

alleging that Wachovia had breached an agreement to pay the full amount of an arbitration award

between Berry and his former employer, Merrill Lynch. Wachovia counterclaimed, alleging that

Berry had breached an agreement that he would compensate Wachovia for certain amounts that it

advanced to Merrill Lynch in partial satisfaction of Berry’s obligation under the arbitration award.

A jury ruled against Berry on all of his claims and ruled in favor of Wachovia on its counterclaim.

Berry unsuccessfully filed postjudgment motions seeking a remittitur, a new trial, and judgment

notwithstanding the verdict. In this appeal, he offers overlapping arguments that he was neither

legally nor factually obligated to repay the amounts that Wachovia advanced to Merrill Lynch and

that the jury’s award of damages beyond that specifically requested by Wachovia constituted

grounds for a new trial.

                                                                   I

         {¶ 2} Berry worked for Merrill Lynch as a financial advisor before being hired by

Wachovia (he was actually hired by First Union Corporation, which was taken over by Wachovia,

which in turn was taken over by Wells Fargo, but the parties have agreed to use the name

“Wachovia” in this litigation, so we use it too). The terms of Berry’s employment agreement with

Merrill Lynch contained a noncompetition agreement.                             When Berry started working for

          1
            The original announcement of decision, Berry v. Lupica, 8th Dist. No. 95393, 2011-Ohio-3462, released and
journalized July 14, 2011, is hereby vacated. This opinion, issued upon reconsideration, is the court’s journalized decision in
this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 2.2(A)(1).
Wachovia, Merrill Lynch claimed that he did so in violation of the noncompetition agreement;

Berry claimed that Merrill Lynch made defamatory statements about him regarding the violation

of the noncompetition agreement.       Berry and Merrill Lynch took their dispute to binding

arbitration before the National Association of Securities Dealers (“NASD”). An NASD panel

ruled in favor of Merrill Lynch on its claims against Berry and awarded it $250,000. The NASD

panel also found for Berry on his defamation claim against Merrill Lynch and awarded him

$125,000 in damages.

       {¶ 3} Wachovia paid Merrill Lynch the $250,000 judgment against Berry. Two days

later, Merrill Lynch issued a check to Berry for $125,000. Berry endorsed the Merrill Lynch

check and gave it to his Wachovia branch manager with a note saying:

       {¶ 4} “As we discussed attached is the award I received from Merrill Lynch. Please

place this check on deposit with First Union Corporation to offset the interest due on our contract.

The $125,000 is to be returned on demand. Thank you for your consideration and cooperation.”

       {¶ 5} The branch manager forwarded the check to the Wachovia legal department, and

the check was deposited into a Wachovia account dedicated to legal settlements. Berry later

demanded to have the check returned to him, but Wachovia refused to return it.

       {¶ 6} Berry brought this action raising a number of claims that collectively accused

Wachovia of breaching the agreement to hold Berry’s Merrill Lynch proceeds and produce them

on demand. Wachovia counterclaimed, arguing that Berry breached a settlement agreement

under which he would set off the $250,000 Wachovia paid to Merrill Lynch by delivering to

Wachovia the $125,000 he received from Merrill Lynch—Wachovia would pay the remaining

$125,000 of the arbitration award as a courtesy to Berry. It claimed as damages the attorney fees

it had expended or would be required to expend in enforcing the settlement.
        {¶ 7} At trial, the issue was whether the parties had an agreement that the proceeds from

the $125,000 Merrill Lynch award to Berry should be applied as a setoff for the $250,000 that

Wachovia paid to Merrill Lynch. Berry claimed that at the time he was hired, Wachovia

represented to him not only that it would pay for any legal fees associated with the Merrill Lynch

arbitration, but also that it would pay any damage award. Berry also offered testimony that the

financial-industry standard was for a current employer to make a transferring broker like Berry

whole from any claims asserted by a former employer. Wachovia conceded that it agreed to pay

for Berry’s legal defense in the arbitration, but denied that it agreed, prior to the arbitration, to pay

any damage award from the arbitration. It presented witnesses who testified that Wachovia and

Berry agreed after the arbitration that Wachovia would pay the entire $250,000 Merrill Lynch

judgment on the condition that Berry pay over to Wachovia his $125,000. Wachovia thus said it

agreed to pay a net total of $125,000, an amount that it had been willing to pay to settle the

arbitration.

        {¶ 8} The jury found against Berry on all his claims. The jury found in favor of

Wachovia on its counterclaim and awarded $432,000 in damages for the attorney fees Wachovia

had expended in enforcing the settlement agreement.             Berry filed a motion for judgment

notwithstanding the verdict and a new trial, arguing that the verdict was against the manifest

weight of the evidence because the $432,000 damage award exceeded the $130,000 that Wachovia

claimed as damages. The excessive award, Berry argued, showed that the jury’s verdict had been

the product of passion or prejudice. Berry also asked the court for remittitur. All postjudgment

motions were denied.

                                                   II
       {¶ 9} Berry argues that the court erred both by failing to direct a verdict and to grant

judgment notwithstanding the verdict on Wachovia’s counterclaim because it was barred by the

statutes of fraud and limitations.

                                                A

       {¶ 10} The court must issue a directed verdict when, “after construing the evidence most

strongly in favor of the party against whom the motion is directed, [the court] finds that upon any

determinative issue reasonable minds could come to but one conclusion upon the evidence

submitted and that conclusion is adverse to such party.” Civ.R. 50(A)(4). This is the same legal

standard applied to motions for judgment notwithstanding the verdict, Ayers v. Woodard (1957),

166 Ohio St. 138, 140 N.E.2d 401, and tests the legal sufficiency of the evidence. This is a

question of law that does not require the reviewing court to weigh the evidence or test the

credibility of witnesses. See Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 430

N.E.2d 935.

                                                B

       {¶ 11} The statute of frauds is set forth in R.C. 1335.05 and states: “No action shall be

brought whereby to charge the defendant, upon a special promise, to answer for the debt, default,

or miscarriage of another person; * * * unless the agreement upon which such action is brought, or

some memorandum or note thereof, is in writing and signed by the party to be charged therewith or

some other person thereunto by him or her lawfully authorized.”

       {¶ 12} As Wachovia notes, its counterclaim was not brought in order to force Berry to pay

a debt that he owed to another person—it brought the counterclaim seeking compensation for

Berry’s breach of the settlement agreement. “When the leading objection of the promisor is not to

answer for another’s debt but to subserve some pecuniary or business purpose of his own involving
a benefit to himself, his promise is not within the statute of frauds * * *.” See Wilson Floors Co.

v. Sciota Park, Ltd. (1978), 54 Ohio St.2d 451, 377 N.E.2d 514, syllabus. The statute of frauds is

therefore inapplicable, and the court did not err as a matter of law by refusing to direct a verdict or

grant judgment notwithstanding the verdict on that basis.

                                                  C

       {¶ 13} Berry next argues that the court should have directed a verdict on

statute-of-limitations grounds. He maintains that the parties did not reduce their settlement

agreement to writing, so the six-year statute of limitations for oral contracts began to run in April

2002, when he appealed from the arbitration award and otherwise sought to vacate the award.

       {¶ 14} R.C. 2305.07 provides a six-year statute of limitations for contracts not reduced to

writing. The statute of limitations for oral contracts begins when the cause accrues. Id. When

an oral agreement does not specify a time for repayment of a debt, the cause does not accrue until

a party demands payment. See Aluminum Line Prods. Co. v. Brad Smith Roofing Co., Inc. (1996),

109 Ohio App.3d 246, 258, 671 N.E.2d 1343; Dandrew v. Silver, 8th Dist. No. 86089,

2005-Ohio-6355, ¶ 14.

       {¶ 15} It is unclear why Berry concludes that his breach occurred in April 2002 upon his

appeal of the arbitration award. He gave Wachovia the $125,000 check he received from Merrill

Lynch as part of his arbitration award. Even though Berry contests whether he intended the check

to be used in settlement for Wachovia paying the $250,000 award against him, it was only when

Berry filed this action in January 2007, seeking the return of the $125,000, that he could be said to

have breached the settlement agreement. Wachovia filed its counterclaim in January 2009, just

two years after Berry filed his complaint—well within the six-year statute of limitations. The

court did not err by refusing to direct a verdict on statute-of-limitations grounds.
                                                  D

        {¶ 16} Finally, Berry complains that the court should have granted judgment

notwithstanding the verdict on the ground that the alleged settlement agreement between him and

Wachovia was not truly a settlement agreement because the parties were not adversaries in the

NASD arbitration.

        {¶ 17} It is true that the parties were not adversaries in the NASD arbitration (Merrill

Lynch and Berry were the adversaries), but that fact has no bearing on whether Berry and

Wachovia reached an agreement on how they would handle the payment of Merrill Lynch’s

arbitration award. The right of parties to form contracts is general unless specifically prohibited

by law or prevented by reason of fixed public policy. Pittsburgh, Cincinnati, Chicago & St. Louis

Ry. Co. v. Kinney (1916), 95 Ohio St. 64, 115 N.E. 505, paragraph one of the syllabus. To the

extent that the parties differed on the question of who would pay the Merrill Lynch award, their

agreement was, in a broad sense, a “settlement” of that question. In any event, the nomenclature

used to define the contractual parameters agreed to by the parties is far less important than the

obligations imposed.     Regardless of whether Wachovia correctly labeled the contract as a

“settlement,” the fact remains that the jury did, in fact, find that there was a valid contract between

the parties.

                                                  III

        {¶ 18} Berry next raises issues relating to the award of attorney fees as damages for the

breach of the settlement. He maintains that under the American rule of attorney fees, which states

that the prevailing party in a legal action may not, in the absence of statutory authority, recover

attorney fees, the court could not allow Wachovia to recover its legal fees as compensatory

damages.
       {¶ 19} As Berry notes, Ohio adheres to the rule that “a prevailing party in a civil action

may not recover attorney fees as a part of the costs of litigation.” Wilborn v. Bank One Corp., 121

Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, at ¶ 7. However, attorney fees are allowed as

compensatory damages when the fees are incurred as a direct result of the breach of a settlement

agreement. See Raymond J. Schaefer, Inc. v. Pytlik, 6th Dist. No. OT-09-026, 2010-Ohio-4714,

¶ 34; Tejada-Hercules v. State Auto. Ins. Co., 10th Dist. No. 08AP-150, 2008-Ohio-5066, ¶ 10.

The rationale behind the exception for allowing attorney fees expended as a result of enforcing a

settlement agreement is that “any fees incurred after the breach of the settlement agreement were

relevant to the determination of compensatory damages, including those fees [a party was]

‘forced’ to incur by filing the action.” Tejada-Hercules at ¶ 10.

       {¶ 20} The legal fees awarded in this case were the measure of compensatory damages

directly related to Wachovia’s need to enforce the settlement agreement. The court did not err by

awarding Wachovia its attorney fees as compensatory damages.

                                                IV

       {¶ 21} Berry’s primary argument, raised in various assignments of error, is that the jury’s

finding that a contract existed between him and Wachovia relating to the payment of Merrill Lynch

is against the manifest weight of evidence.

       {¶ 22} It is a basic principle of appellate review that judgments supported by competent,

credible evidence going to all the material elements of a case must not be reversed as against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279,

376 N.E.2d 578, syllabus; Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 226, 638 N.E.2d

533. We therefore indulge every reasonable presumption in favor of the trial court’s judgment,

Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273, and to the extent
that the evidence is susceptible of more than one interpretation, we construe it consistently with the

jury’s verdict. Ross v. Ross (1980), 64 Ohio St.2d 203, 414 N.E.2d 426.

       {¶ 23} Berry premised his complaint on two grounds: (1) the Wachovia branch manager

who recruited Berry told him that Wachovia “would take care of everything” in the event Merrill

Lynch brought suit, including the payment of legal fees and any damages award, and (2)

Wachovia’s promise was consistent with a financial-industry practice under which firms that

recruited brokers away from other firms would provide the recruited broker a legal defense in an

arbitration and pay any damage award resulting from the arbitration.

       {¶ 24} The evidence was in conflict whether Wachovia would indemnify Berry in the

event that he received an adverse arbitration ruling. Wachovia’s branch manager recalled that at

the time he recruited Berry, he offered to pay Berry’s legal expenses but had no recollection that he

had agreed to pay for any damages.         And the attorney who represented Wachovia in the

arbitration said that when preparing the Berrys for their testimony in the arbitration, they told him

that Wachovia “had not agreed to pay them for any awards.” On the other hand, Berry’s wife

(who herself was recruited by Wachovia from Merrill Lynch and was a party to the arbitration)

testified at the arbitration hearing that Wachovia had not used the word “indemnify” with her, but

she also said that even though she had no discussion with Wachovia about indemnification, she

understood from industry practice that Wachovia would pay any arbitration awards.

       {¶ 25} Berry points to testimony from both parties that firms in the financial-services

industry that recruited a broker from another firm would typically pay both legal fees and damages

associated with any claims based on that recruitment. With that practice in mind, he takes

Wachovia’s silence on the issue of indemnity as proof that it intended to adhere to the industry

practice of reimbursing any damages awarded against him. In other words, he argues that
Wachovia could only vary from the industry practice by specifically telling him, at the recruitment

stage, that it would not reimburse him in the event Merrill Lynch decided to enforce the terms of

his employment contract.

       {¶ 26} What is merely “typical” or “practice” in a heavily regulated field like the

financial-services industry is not necessarily binding in the absence of a specific rule or regulation.

To be binding, an industry custom must be so well known, uniform, long established, and

generally acquiesced in as to induce a belief that the parties contracted with reference to it, nothing

appearing in their contract to the contrary. See, e.g., Fid. Mtge. v. Bruno Airport Industry (Dec.

10, 1981), 2d Dist. No. 1544, citing Restatement of the Law 2d, Contracts (1981), Section 221.

       {¶ 27} Although Wachovia’s in-house attorney acknowledged the “normal” practice

whereby an investment firm would make a recruit whole for any arbitration award stemming from

that recruitment, he testified that Wachovia would not make any promises to indemnify recruited

brokers during the recruitment stage. Such a promise, said in-house counsel, could expose

Wachovia to potential liability for interfering with business relations.          The attorney who

represented Wachovia at the arbitration agreed, noting that in preparation for the arbitration, he

specifically asked the Berrys whether Wachovia agreed to indemnify them in order to prepare for a

possible line of questioning from Merrill Lynch. He said he did so because a promise of

indemnity by Wachovia could have raised the specter of interference with a contract resulting from

Wachovia’s recruitment of the Berrys. So even though Wachovia might “normally” make a

broker whole for any arbitration award resulting from the recruitment process, it was not in any

sense a “practice” from which the parties could be understood to have agreed to during the

recruitment stage, and it was not clearly understood at the time of Berry’s recruitment that

Wachovia intended to reimburse him.
        {¶ 28} Berry cites evidence showing that two other employees recruited by Wachovia

were promised that Wachovia would reimburse them for any arbitration award entered against

them stemming from their recruitment. This evidence actually supports the jury’s verdict because

it shows that if Wachovia had the intention to reimburse Berry, it would have told him that from

the outset. That Wachovia did reimburse some brokers it recruited, but not Berry, suggests that

Wachovia did not adhere to any industry practice—not that it deliberately ignored the practice

only in this case. Wachovia’s in-house counsel testified that most cases involving the recruitment

of brokers ended with a settlement prior to arbitration and that Wachovia would pay the settlement.

But paying to settle arbitration before the fact is not the same as paying an after-the-fact arbitration

award when the broker is found personally liable for the award. Wachovia’s payment of an

arbitration claim for other employees does not establish a binding practice that could be applied to

Berry’s case.

        {¶ 29} Other evidence supports the conclusion that Wachovia had no understanding that it

would reimburse Berry for the entire Merrill Lynch arbitration award. At the close of the

arbitration, the Wachovia branch manager spoke with the attorney who represented Wachovia at

the arbitration, saying that Berry had made a demand for indemnification.               He asked for

instructions on what obligations, if any, Wachovia might have in relation to paying the award.

That attorney e-mailed Wachovia’s in-house counsel, stating his opinion that Wachovia had no

obligation to indemnify Berry. The attorney recounted his recollection of settlement negotiations

that occurred prior to the arbitration, noting that Wachovia had agreed in principle with Merrill

Lynch to settle the matter on terms that would net Berry $130,000. There was credible evidence

that Berry’s attorney rejected the offer, instead demanding “millions.” The attorney said that

Berry’s rejection of the settlement offer left Wachovia as a “hostage” to Berry’s decision because
Merrill Lynch would not settle with Wachovia alone. This meant that Wachovia would be forced

to pay the costs of arbitration solely because Berry wished to “roll the dice” in the hope of being

awarded more damages.

       {¶ 30} The jury also heard evidence from which it could conclude that Berry agreed to turn

over the $125,000 he received from Merrill Lynch in consideration of Wachovia’s $250,000

payment to Merrill Lynch. A few weeks after the arbitration award, the branch manager sent

in-house counsel an e-mail stating that Berry was “very appreciative of our settlement to [sic]

$125,000.” A later e-mail from the arbitration attorney recounted how he had spoken with

Berry’s arbitration attorney over the logistics of handling the various awards, stating that Berry’s

attorney had the “understanding that [Wachovia] has agreed to pay half the award against the

brokers.” When Berry turned over his Merrill Lynch check to Wachovia, the branch manager

noted, “[T]this is the $125,000 check for the Spencer/Berry settlement.”

       {¶ 31} Evidence concerning a settlement and representations from Berry’s own attorney

that Wachovia had agreed to pay half the award were credible evidence that the parties had reached

an agreement over how the Merrill Lynch arbitration award would be paid between them. This

was consistent with Wachovia’s act of placing the money in an account reserved for legal

settlements. Berry’s own actions enforce the conclusion that a settlement existed because he

turned the $125,000 check over to Wachovia in 2002 and did not demand its return until 2005.

Although Berry argued that he left the check in Wachovia’s custody to cover potential interest, the

jury could validly reject that argument because there was no evidence of any interest being due.

Moreover, during the three years that Wachovia held the money, Berry never asked for any interest

statements or otherwise inquired as to the debt that he claimed was accruing.
       {¶ 32} The jury could find the totality of the evidence credibly established that Wachovia

understood that it would pay the $250,000 Merrill Lynch award as a courtesy to Berry, but that

Berry would remit the $125,000 he received from Merrill Lynch. The jury could also find that the

parties did not have an agreement to adhere to any industry practice of reimbursement. It follows

that the jury’s verdict was not against the manifest weight of the evidence and that the court did not

err by refusing to grant judgment notwithstanding the verdict or a new trial on the same grounds.

                                                  V

       {¶ 33} The jury awarded Wachovia attorney fees totaling $432,000. Berry complains

that Wachovia only presented evidence that it had expended $133,691 in attorney fees. Berry

argues that he is entitled to a new trial because the damage award showed that the jury’s verdict

was the product of passion and prejudice, a conclusion that he reinforces by noting that the jury

had asked the court whether it could also award punitive damages against him.

                                                  A

       {¶ 34} In its closing argument, Wachovia asked the jury to “return an award * * * for

$133,691 which is the amount of the fees and expenses we’ve incurred in defending the case.”

This amount was supported by billing statements and Berry does not question either the hourly rate

charged by Wachovia’s attorneys or the number of hours worked.

       {¶ 35} During its deliberations, the jury asked the court: “[A]re we able to award more to

the defense above the requested legal fees?” and “[C]an the defense get punitive damages?”

When considering the questions, the court noted that there had been no claim for punitive

damages. It also told the parties that “[Wachovia] certainly can’t get more than the requested

legal fees, so that’s the answer to that.” The jury awarded $432,000.
       {¶ 36} In response to Berry’s motion for judgment notwithstanding the verdict on the issue

of attorney fees, Wachovia argued that the $133,691 it asked for at trial reflected only the fees and

costs up to the second day of trial and that the jury knew that “additional fees and expenses would

be incurred” based on testimony that there had been “time that hasn’t been billed yet.” It claimed

that by the close of trial, its attorney fees were $163,758. Including posttrial motion practice, the

total amount rose to $171,268.

       {¶ 37} In a contract case, the general measure of damages is the amount necessary to place

the nonbreaching party in the position it would have been in had the breaching party fully

performed under the contract. Allied Erecting & Dismantling Co., Inc. v. Youngstown, 151 Ohio

App.3d 16, 2002-Ohio-5179, 783 N.E.2d 523, ¶ 62. Wachovia proved legal fees related to the

enforcement of the settlement agreement in the amount of $133,691. Although it claimed that it

incurred additional legal fees, it did not prove that assertion. “As a general rule, an injured party

cannot recover damages for breach of contract beyond the amount that is established by the

evidence with reasonable certainty * * *.” Rhodes v. Rhodes Industries, Inc. (1991), 71 Ohio

App.3d 797, 808-809, 595 N.E.2d 441. At a minimum, a party seeking legal fees must adhere to

Prof.Cond.R. 1.5(a) and offer evidence showing the fee charged, the reasonableness of that fee,

and the number of hours worked. Testimony by a Wachovia witness that there had “been time

that hasn’t been billed yet” is insufficient to establish any additional amount of legal fees, because

that testimony did not establish the hours expended or the necessity of that work. It follows that

any award for legal fees beyond that specifically proven at trial was excessive.

       {¶ 38} Berry argues that the jury’s desire to impose more damages than had been proven,

along with its request to impose punitive damages even though they were not requested, shows that

it was prejudiced against him.
        {¶ 39} Civ.R. 59(A)(4) states that the court may grant a new trial on grounds of

“[e]xcessive or inadequate damages, appearing to have been given under the influence of passion

or prejudice.” Because the assessment of damages is solely within the province of the jury,

Jeanne v. Hawkes Hosp. of Mt. Carmel (1991), 74 Ohio App.3d 246, 258, 598 N.E.2d 1174, the

courts do not look to the size of the award alone as proving the existence of passion or prejudice,

Pearson v. Cleveland Acceptance Corp. (1969), 17 Ohio App.2d 239, 245, 246 N.E.2d 602.

Instead, it is said that the award must be so grossly disproportionate as to shock the sensibilities.

Airborne Express, Inc. v. Sys. Research Laboratories, Inc. (1995), 106 Ohio App.3d 498, 510, 666

N.E.2d 584; Toledo, C. & O. RR. Co. v. Miller (1923), 108 Ohio St. 388, 140 N.E. 617.

        {¶ 40} Although the damages awarded were excessive in relation to that requested and

proven at trial, that fact alone is not enough to warrant reversal for a new trial.        As we have

recounted, there was more than enough competent, credible evidence to support the jury’s finding

that Berry breached his settlement agreement with Wachovia, so we can affirm the liability aspect

of the jury’s verdict separately from the issue of damages.

        {¶ 41} In Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77,

2002-Ohio-7113, 781 N.E.2d 121, the Supreme Court stated:

        {¶ 42} “The court in Chester Park Co. v. Schulte (1929), 120 Ohio St. 273, 166 N.E. 186,

paragraph three of the syllabus, set forth the four criteria necessary for a court to order a remittitur:

(1) unliquidated damages are assessed by a jury, (2) the verdict is not influenced by passion or

prejudice, (3) the award is excessive, and (4) the plaintiff agrees to the reduction in damages.”

        {¶ 43} The damages sought by Wachovia were unliquidated, and we have found that the

jury’s verdict was supported by competent, credible evidence. A question that remains is whether

the damages were the product of passion and prejudice. This means that they must be so grossly
disproportionate as to shock sensibilities. Pena v. Northeast Ohio Emergency Affiliates, Inc.

(1995), 108 Ohio App.3d 96, 104, 670 N.E.2d 268.

       {¶ 44} The jury awarded Wachovia almost three times what it requested. This was

plainly excessive, but excessiveness by itself does not prove passion and prejudice.      The jury

could have concluded that the evidence showed that Berry acted opportunistically by demanding

the return of the money that he gave to Wachovia in settlement of the Merrill Lynch dispute. This

was a logical conclusion given Berry’s demand, made by counsel, that he wanted “millions” to

settle the Merrill Lynch arbitration. This was an entirely unrealistic demand, the futility of which

was all the more apparent because Berry knew that if no settlement were forthcoming (Merrill

Lynch would not settle with him alone), Wachovia would have to bear the costs of arbitration. In

short, the jury could have found Berry’s conduct throughout to be of a kind that justified, albeit

erroneously, more damages than those requested by Wachovia. Viewed this way, the award is not

shocking to the senses in a manner that shows passion and prejudice. We are confident that any

error in the damages award did not influence the substantive finding that Berry breached the

settlement agreement. The court did not err by refusing to order a new trial on liability grounds.

       {¶ 45} As a court of appeals, we have the same power and control of verdicts and

judgments as the trial court and may exercise our independent judgment on questions of excess

damages if no passion or prejudice is apparent on the record. Duracote Corp. v. Goodyear Tire &

Rubber Co. (1983), 2 Ohio St.3d 160, 162-163, 186, 443 N.E.2d 184. We can thus modify and

affirm the judgment by ordering a remittitur with the consent of the prevailing party. Id., citing

Chester Park Co. v. Schulte (1929), 120 Ohio St. 273, 166 N.E. 186.

       {¶ 46} Unlike tort cases in which the jury is required to award compensation based on

abstract calcula of pain and suffering or future damages, this contract case presented an easily
ascertainable damage award in the form of the legal fees expended to enforce the settlement

agreement. As noted, Wachovia asked the jury to award it $133,691 as the amount of the fees and

expenses it had incurred in defending the case. Although it now maintains that the damage award

was not excessive, Wachovia notes that remittitur exists as an alternative to a new trial. We agree.

We therefore grant Wachovia the option of accepting a remittitur of the damages award to

$133,691—the amount that Wachovia requested and proved at trial. Wachovia may, no later than

ten days after the date on which this judgment entry is issued, agree to accept this option for

remittitur or a new trial on all issues will be ordered. See Burke v. Athens (1997), 123 Ohio

App.3d 98, 102, 703 N.E.2d 804, ¶ 78; Harris v. Univ. Hospitals of Cleveland (Mar.7, 2002), 8th

Dist. No. 76724.

                                                 B

       {¶ 47} Berry next argues that the court abused its discretion by refusing to grant him a new

trial under Civ.R. 59(A)(1), which allows a new trial upon a showing of irregularity in the

proceedings of the court or jury not caused by the movant. He claims that the attorney hired by

Wachovia for the arbitration proceedings, attorney William Falin, unfairly represented Wachovia

in this breach-of-contract action by refusing to disqualify himself voluntarily during the discovery

phase and then invoking the attorney-client privilege to avoid answering questions during

cross-examination that Berry claims would have benefited his case.

       {¶ 48} For purposes of Civ.R. 59(A)(1), an “irregularity” is a departure from the due,

orderly, and established mode of proceeding, whereby a party, through no fault of his own, is

deprived of some right or benefit otherwise available to him. Reeves v. Healy, 10th Dist. No.

10AP-418, 2011-Ohio-1487, ¶ 18. Berry’s claim of irregularity is premised on his opinion that

Falin should not have been allowed to represent Wachovia. The court disagreed with Berry and
twice denied his motions to compel Falin’s withdrawal. Whether or not this was an error, it did

not constitute an irregularity for purposes of Civ.R. 59(A)(1).

       {¶ 49} Moreover, the record shows that Falin did voluntarily withdraw from the case prior

to trial because he concluded that he might be called as a witness.            If he was no longer

representing Wachovia at the time of the trial, there could be no irregularity that affected the trial.

       {¶ 50} Finally, we note that it was Berry who called Falin as a witness, not Wachovia.

Falin’s presence as a trial witness was thus Berry’s doing. Even if we were to find that Falin gave

slanted testimony (a finding we decidedly do not make), that irregularity was caused by Berry’s

decision to call as a witness someone who he claimed all along was beholden to Wachovia. Berry

alone is responsible for Falin testifying and cannot claim error when he caused the situation giving

rise to the alleged error.      See Allin v. Hartzell Propeller, Inc., 161 Ohio App.3d 358,

2005-Ohio-2751, 830 N.E.2d 413, ¶ 17.

                                                  C

       {¶ 51} Finally, Berry claims that the court erred by refusing to grant him a new trial under

Civ.R. 59(A)(2) on grounds of misconduct by the jury or the prevailing party.

       {¶ 52} The argument going to jury misconduct does nothing more than repeat those made

in relation to the excessiveness of the jury award. We addressed those arguments in the context of

Civ.R. 59(A)(5) and incorporate that reasoning to this assignment of error.

       {¶ 53} Berry argues that Wachovia engaged in misconduct by ignoring two motions in

limine granted by the court: one excluded evidence of prior legal proceedings by the parties and

the other excluded mention of a lawsuit that Berry filed against a home contractor. Objections to

questions that were the subject of the alleged violations of the pretrial order were sustained by the

court, and at one point, the court ordered the jury to disregard the question. We presume that the
jury followed the court’s instructions, so no error is manifest. State v. Raglin (1998), 83 Ohio

St.3d 253, 264, 699 N.E.2d 482.

       {¶ 54} Finally, Berry complains that Wachovia’s counsel acted improperly during closing

argument by calling him a bully and equating him with Captain Hook, who Berry says is “one of

the most notoriously evil characters recognized by the majority of society.”

       {¶ 55} “‘[A] judgment will not be reversed on the grounds of misconduct in closing

arguments unless the circumstances are of such reprehensible and heinous nature as to constitute

prejudice.’” Hinkle v. Cleveland Clinic Found., 159 Ohio App.3d 351, 2004-Ohio-6853, 823

N.E.2d 945, ¶ 67, quoting Hitson v. Cleveland (Dec. 13, 1990), 8th Dist. No. 57741, citing

Plavcan v. Longo (July 3, 1980), 8th Dist. No. 39964. Wachovia’s counsel should not have

referred to Berry as a bully, nor should he have compared Berry to Captain Hook, and we do not

condone such trial tactics. See Secrest v. Gibbs, 11th Dist. No. 2003-L-083, 2005-Ohio-2074,

¶ 87. Nevertheless, these references were not so reprehensible or heinous that we can confidently

say that they compelled the jury’s verdict. The trial court reached the same conclusion and we

necessarily defer to it because the judge was in the better position to determine whether the

remarks prejudiced Berry so as to require a new trial.

                                                                               Judgment affirmed

                                                                                    as modified.


BLACKMON, P.J., and CELEBREZZE, J., concur.
