[Cite as Molek v. Nusseibeh, 2015-Ohio-5403.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


CHARLOTTE MOLEK                                 :   JUDGES:
                                                :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :   Hon. Sheila G. Farmer, J.
                                                :   Hon. Craig R. Baldwin, J.
-vs-                                            :
                                                :
RAED NUSSEIBEH, ET AL.                          :   Case No. 2015CA00085
                                                :
        Defendant-Appellants                    :   OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2012CV03502



JUDGMENT:                                           Affirmed/Reversed in Part &
                                                    Remanded



DATE OF JUDGMENT:                                   December 21, 2015




APPEARANCES:

For Plaintiff-Appellee                              For Defendants-Appellants

JEFF M. LEWIS                                       AMANDA L. WALLS
500 South Fourth Street                             4684 Douglas Circle, NW
Columbus, OH 43206                                  P.O. Box 35459
                                                    Canton, OH 44735-5459
DAVID E. BUTZ
4775 Munson Street, NW
P.O. Box 36963
Canton, OH 44735
Stark County, Case No. 2015CA00085                                                     2

Farmer, J.

      {¶1}   Appellant, Raed Nusseibeh, owned Advanced Auto Insurance Network,

LLC, a "non-standard" insurance agency in Canton, Ohio. Appellee, Charlotte Molek,

owns a "standard" insurance agency in Farmington, Pennsylvania.           Appellee was

seeking to expand her business into Ohio. On November 18, 2010, appellee purchased

Advanced Auto's assets via an Asset Purchase Agreement. The parties also executed

an Assignment of Commissions Agreement and a Security Agreement.

      {¶2}   On December 17, 2012, appellee filed an amended complaint against

appellant, Advanced Auto, and 942 LTD, a company formed by appellant Nusseibeh

after the asset sale, alleging twelve counts: fraudulent/fraud inducement, breach of

contract, aiding and abetting, tortious interference with contract, willful and wanton

breach of contract, promissory estoppel, unjust enrichment, breach of implied duty of

good faith, negligent misrepresentation, declaratory judgment, permanent injunction,

and piercing the corporate veil. On April 15, 2013, appellant filed an amended answer

and counterclaim, alleging breach of contract. A bench trial commenced on September

24, 2013. By amended judgment entry filed April 13, 2015, the trial court found in favor

of appellee on all of her claims except for the claims of aiding and abetting and breach

of the implied duty of good faith. The trial court also found in favor of appellee on

appellants' counterclaim. The trial court awarded appellee as against appellants, jointly

and severally, $549,641.50 in compensatory damages, $250,000.00 in punitive

damages, $184,365.40 in attorney fees, and costs of the proceeding.

      {¶3}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:
Stark County, Case No. 2015CA00085                                 3


                                      I

     {¶4}   "THE TRIAL COURT ERRED BY ENTERING JUDGMENT IN FAVOR OF

APPELLEE CHARLOTTE MOLEK ON HER CLAIM OF FRAUD BECAUSE SUCH

JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVDENCE."

                                     II

     {¶5}   "THE TRIAL COURT ERRED IN IN (SIC) ENTERING JUDGMENT IN

FAVOR OF APPELLEE CHARLOTTE MOLEK ON HER CLAIM FOR BREACH OF

CONTRACT AND IN ITS COMPUTATION AND AWARD OF COMPENSATORY

DAMAGES AGAINST APPELLANTS."

                                     III

     {¶6}   "THE TRIAL COURT ERRED BY FAILING TO ENTER JUDGMENT AS A

MATTER OF LAW IN FAVOR OF APPELLANTS ON PLAINTFF'S FOR CLAIMS OF

PROMISSORY ESTOPPEL AND UNJUST ENRICHMENT BECAUSE SUCH CLAIMS

ARE IMPROPER WHEN THERE IS AN EXPRESS CONTRACT."

                                     IV

     {¶7}   "THE TRIAL COURT ERRED IN AWARDING PUNITIVE DAMAGES IN

THE AMOUNT OF 250,000 AGAINST APPELLANTS BECAUSE SUCH AN AWARD IS

EXCESSIVE UNDER THE OHIO REVISED CODE AND IS AN UNCONSTITUTIONAL

VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS."

                                     V

     {¶8}   "THE TRIAL COURT ERRED BY ALLOWING THE ADMISSION OF

SURPRISE EVIDENCE THAT TAINTED THE ENTIRE TRIAL."
Stark County, Case No. 2015CA00085                                                       4


                                             I

       {¶9}   Appellants claim the trial court erred in finding for appellee on her fraud

claim as the decision is against the manifest weight of the evidence. We disagree.

       {¶10} On review for manifest weight, the standard in a civil case is identical to

the standard in a criminal case: a reviewing court is to examine the entire record, weigh

the evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact]

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983).    See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52;

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179. In weighing the evidence,

however, we are always mindful of the presumption in favor of the trial court's factual

findings. Eastley at ¶ 21.

       {¶11} In Burr v. Stark County Board of Commissioners, 23 Ohio St.3d 69 (1986),

paragraph two of the syllabus, the Supreme Court of Ohio found the elements of fraud

to be as follows:



              (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)
Stark County, Case No. 2015CA00085                                                  5


      justifiable reliance upon the representation or concealment, and (f) a

      resulting injury proximately caused by the reliance.



      {¶12} In its amended judgment entry filed April 13, 2015, the trial court

concluded the following on the fraud claim:



             The Court finds Plaintiff has proven, by clear and convincing

      evidence, that during negotiations leading to her execution of the Closing

      Documents,     Nusseibeh    and   Advanced     made    numerous   material

      misrepresentations of fact regarding the significant valuable return on her

      investment in the purchase of the assets of Advanced that Plaintiff would

      receive. Specifically, Nusseibeh and Advanced made numerous material

      misrepresentations of facts regarding: (1) the true advertising expenses

      that were necessary to enable Advanced to generate the income

      represented by Nusseibeh; (2) the cost of advertising in the Yellow Pages;

      (3) the amount of gross income generated by Advanced, as the deposits

      reflected in the bank statements did not match the gross income reflected

      in the Schedule Cs provided by Nusseibeh to Plaintiff; and, (4) the

      representation that Advanced's Schedule Cs and his personal tax returns

      for 2008 and 2009 had been filed with the Federal government, thereby

      providing Plaintiff a heightened indicia of accuracy. The Court finds the

      advertising issue most damaging. Instead of costs of $17,300 per year as

      represented by Nusseibeh/Advanced, in fact it is closer to $200,000. The
Stark County, Case No. 2015CA00085                                                  6


     Court finds that Advanced was an "advertising driven business."        This

     Court is convinced that the evidence demonstrated that there is a direct

     correlation between phonebook advertising and commissions/profit

     generated by Advanced.

           The Court finds Plaintiff has proven, by clear and convincing

     evidence, that during negotiations leading to her execution of the Closing

     Documents, Nusseibeh and Advanced failed to disclose material facts in

     knowingly: (1) failing to disclose that the income tax returns provided to

     Plaintiff had not been filed with the Federal government; (2) failing to

     disclose the advertising expenses necessary to generate the net income

     claimed by Nusseibeh to have been advertising expenses necessary to

     generate the net income claimed by Nusseibeh to have been generated

     by Advanced; (3) failing to disclose that Advanced had no errors and

     omissions insurance coverage, meaning that it was illegally selling policies

     of insurance as well as breaching its contract with its insurance providers,

     potentially making the policies sold void and the earned commissions

     subject to refund; (4) failing to disclose that Advanced had fraudulently

     represented to its insurance providers that it had errors and omissions

     coverage; (5) failing to disclose that Advanced had fraudulently

     underreported its premium volume to its errors and omissions carrier in

     violation of Ohio law; (6) failing to advise Plaintiff of claims against

     Advanced in the amount of over $400,000; and, (7) failing to advise
Stark County, Case No. 2015CA00085                                                        7


       Plaintiff that several insurance carriers had ceased operations in the state

       of Kentucky where Advanced generated substantial business.

              Nusseibeh, both individually and on behalf of Advanced, expressly

       represented to Plaintiff that information provided to her by himself and his

       accountants regarding the business prospects, income, expenses, and

       liabilities of Advanced was true, accurate, and complete.            These

       representations were made falsely, with knowledge of their falsity, or with

       such utter disregard and recklessness as to whether they were true or

       false that knowledge may be inferred.



       {¶13} Appellants challenge three specific findings of the trial court.         First,

appellants argue there was sufficient proof that the advertising expense erroneously

reported to appellant was not the driving force in the success of the agency, but that

appellant Nusseibeh was the major reason for the agency's success. Appellants argue

it is not the volume of calls, but the closing ratio of calls to successful issuance of

policies that is the greater measure. Appellants claim appellee's five percent closing

ratio is the reason for the fall off in business.        Second, appellants argue the

misstatement of commission revenue was refuted by appellee's admission that she

checked the figures, and there was evidence that the figures were correct and the

business was viable. Third, appellants argue the failure to provide the Schedule Cs did

not constitute fraud because appellant Nusseibeh had no duty to inform appellee that

the returns were not filed.
Stark County, Case No. 2015CA00085                                                     8


       {¶14} Throughout the five volumes of transcript, nondisclosure of the amount of

advertising needed to generate the claimed gross income was understated.

       {¶15} In the Schedule Cs given to appellee, the amount of advertising is listed

as an expense of $17,300, when in fact that amount was only for advertising in one

market.   Vol. 1 T. at 73-75, 196-197; Plaintiff's Exhibit 6.   Appellants placed many

advertisements in many cities. Id. at 191. Appellant Nusseibeh admitted he informed

appellee of a $17,300 advertising expense, when in fact it was $40,000 per year, and

over $100,000 was incurred over two years. Vol. 5 T. at 16, 20-21, 23. Appellant

Nusseibeh conceded he never informed appellee of the true advertising expenses. Id.

at 24-27. The proper amounts of advertising expenses were not listed in the Schedule

Cs that appellant Nusseibeh used as a justification of his actual business expenses.

       {¶16} Appellants argue the volume of the business was not advertising-driven,

but an independent witness, Christopher Lucco, a regional sales manager for User-

Friendly Phonebook, testified appellant Advanced was "an above-average client based

on annual purchases" and the business was advertising-driven. Vol. 1 T. at 177, 194-

195.

       {¶17} The documented items given to appellee to justify gross receipts and

expenses were Schedule Cs that were not filed and were not verified by the accountant

who prepared them.      Vol. 1 T. at 66-68, 70-72.     The purported tax returns and

projections were based not on audited books, but information provided by appellant

Nusseibeh. Id. at 66-68, 72. The accountant did not know if the returns had been filed

or not, and did not mark the documents sent to appellee as "drafts." Id. at 82. The

accountant was not provided with any backup to support the purported returns, just an
Stark County, Case No. 2015CA00085                                                        9

income and expense statement provided by appellant Nusseibeh. Id. at 101. It is

undisputed that the tax returns were not filed until after the commencement of the

litigation, and appellant Nusseibeh never informed appellee of this fact. Vol 1 T. at 89,

Vol. 5 T. at 27, 30.     Appellant Nusseibeh claimed at some point, an accountant

instructed him not to file any tax returns following his 1997 bankruptcy. Vol. 2 T. at 157,

Vol. 4 T. at 88. Appellant Nusseibeh was well aware that appellee would have no

independent verification of the expenses outside the tax returns. Vol. 5 T. at 10-12.

Under his direction, his own statement of premium volume was purposely understated

in his applications for professional liability insurance (Errors and Omission Coverage).

Id. at 46-49.

       {¶18} It is also undisputed that after the advertising contract ran out, appellee

experienced a significant drop in sales calls and premiums written. Vol. 1 T. at 267, Vol.

3 T. at 128. Appellant Nusseibeh argues the drop was a result of management style

(hands-on versus absent owner) and lack of a good closing ratio, as well as appellee's

inexperience in running a non-standard insurance agency as opposed to her previous

experience in a standard agency i.e., "bottom feeding" versus an established clientele.

       {¶19} Appellee relied on the numbers provided by appellants and never

expected the figures to be inaccurate. Vol. 3 T. at 36-39, 43. She envisioned rapid

growth and anticipated a positive cash flow of $323,102 based upon the documents

(income tax returns and Schedule Cs) provided by appellants' accountant. Id. at 57.

       {¶20} Upon review, we find sufficient credible evidence was presented to allow

the trier of fact to conclude that appellants made material misrepresentations and
Stark County, Case No. 2015CA00085                                                    10


appellee relied upon them to her detriment.       The trial court's finding of fraud is

supported by the evidence.

      {¶21} Assignment of Error I is denied.

                                           II

      {¶22} Appellants claim the trial court erred in finding in favor of appellee on her

breach of contract claim and in its computation of compensatory damages in the

amount of $549,641.50. We disagree.

      {¶23} In its amended judgment entry filed April 13, 2015, the trial court awarded

compensatory damages as a result of the fraudulent acts of appellant and not on the

breach of contract claim:



             The Court finds Plaintiff has proven, by a preponderance of the

      evidence, that she has incurred special damages as a direct and

      proximate result of the Nusseibeh's/Advanced's fraudulent acts. The true

      value of Advanced's assets on the date that Plaintiff purchased same was

      $77,202.50, meaning that Plaintiff has overpaid for said assets in the

      amount of $549,641.50, due to the false and fraudulent representations

      made by Nusseibeh, and the court therefore awards Plaintiff the sum of

      $549,641.50 against all Defendants, jointly and severally.



      {¶24} Because damages were not awarded for the breach of contract claim, we

find the arguments on the issue to be moot.         In addition, given our decision in
Stark County, Case No. 2015CA00085                                                      11


Assignment of Error I on the fraud claim, we find the trial court did not err in its

computation on compensatory damages. Vol. 3 T. at 226-234.

       {¶25} Assignment of Error II is denied.

                                             III

       {¶26} Appellants claim the trial court erred in finding in favor of appellee on her

claims for promissory estoppel and unjust enrichment. We disagree.

       {¶27} Because damages were not awarded for these claims, we find the

arguments hereunder to be moot.

       {¶28} Assignment of Error III is denied.

                                             IV

       {¶29} Appellants claim the trial court erred in awarding punitive damages in the

amount of $250,000.00 as the amount violates the cap set in R.C. 2315.21(D)(2)(a);

therefore, the award is grossly excessive and a violation of their constitutional rights to

due process. We agree in part.

       {¶30} R.C. 2315.21 governs punitive damages.           Subsection (C) states the

following:



             (C) Subject to division (E) of this section, punitive or exemplary

       damages are not recoverable from a defendant in question in a tort action

       unless both of the following apply:

             (1) The actions or omissions of that defendant demonstrate malice

       or aggravated or egregious fraud, or that defendant as principal or master
Stark County, Case No. 2015CA00085                                                        12


     knowingly authorized, participated in, or ratified actions or omissions of an

     agent or servant that so demonstrate.

            (2) The trier of fact has returned a verdict or has made a

     determination pursuant to division (B)(2) or (3) of this section of the total

     compensatory damages recoverable by the plaintiff from that defendant.



     {¶31} Subsections (D)(1) and (2)(a) and (b) state the following:



            (D)(1) In a tort action, the trier of fact shall determine the liability of

     any defendant for punitive or exemplary damages and the amount of

     those damages.

            (2) Except as provided in division (D)(6) of this section, all of the

     following apply regarding any award of punitive or exemplary damages in

     a tort action:

            (a) The court shall not enter judgment for punitive or exemplary

     damages in excess of two times the amount of the compensatory

     damages awarded to the plaintiff from that defendant, as determined

     pursuant to division (B)(2) or (3) of this section.

            (b) If the defendant is a small employer or individual, the court shall

     not enter judgment for punitive or exemplary damages in excess of the

     lesser of two times the amount of the compensatory damages awarded to

     the plaintiff from the defendant or ten percent of the employer's or

     individual's net worth when the tort was committed up to a maximum of
Stark County, Case No. 2015CA00085                                                       13


       three hundred fifty thousand dollars, as determined pursuant to division

       (B)(2) or (3) of this section.



       {¶32} In Barnes v. University Hospitals of Cleveland, 119 Ohio St.3d 173, 2008-

Ohio-3344, ¶ 31, the Supreme Court of Ohio stated, "[a]n award of punitive damages

violates due process when it can be categorized as 'grossly excessive' in relation to the

state's legitimate interests in punishing unlawful conduct and deterring its repetition,"

and held the following at paragraph two of the syllabus:



                 A court reviewing an award of punitive damages for excessiveness

       must independently analyze (1) the degree of reprehensibility of the

       party's conduct, (2) the ratio of the punitive damages to the actual harm

       inflicted by the party, and (3) sanctions for comparable conduct. (BMW of

       N. Am., Inc. v. Gore (1996), 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d

       809, applied.)



       {¶33} In its amended judgment entry filed April 13, 2015, the trial court stated

the following:



                 The Court finds that Plaintiff has established by the requisite proof

       that Nusseibeh's/Advanced's fraud was aggravated and egregious, and

       that their conduct showed a conscious disregard for the rights of Plaintiff

       and that such disregard has caused Plaintiff substantial financial harm.
Stark County, Case No. 2015CA00085                                                      14


       The Court finds that in addition to Advanced, Nusseibeh is personally

       liable for punitive damages, since it has long been recognized in Ohio that

       where fraudulent conduct occurs, the trial court will look through the

       corporate structure. John Palasics v. Steven Kerr (Ohio App. 8 Dist.),

       1991 WL 243655, citing Kalfas v. Board of Liquor Control (1963), 4 Ohio

       App. 2d 108.

              The court finds that an award of $250,000 in punitive damages is

       justified in this case, and therefore renders judgment against all

       Defendants, jointly and severally, for said sum.



       {¶34} Clearly the trial court was in the best position to evaluate the nature of the

fraud and to qualitatively analyze the amount of appellants' reprehensibility.

       {¶35} Given that the trial court awarded $549,641.50 in compensatory damages

and $250,000.00 in punitive damages, the punitive damage award did not violate the

statutory cap set forth in R.C. 2315.21(D)(2). However, appellant Nusseibeh's actions

in attempting to help appellee with her diminished revenue and his continued

acceptance of deferred payment for his share of the commissions from insurance

premiums per the terms of the parties' Asset Purchase Agreement are factors that

substantially mitigate against ill will and malice. Vol. 3 T. at 289-291, Vol. 4 T. at 76,

100, 106-110, 113-116, 118-119. There is no indication of ill will or malice, but clearly

an attempt to seize the moment when appellant Nusseibeh had an inexperienced buyer.

Appellee was inexperienced in managing or evaluating a business of this nature.

Therefore, we remand the matter for reconsideration of the punitive damage award
Stark County, Case No. 2015CA00085                                                      15


under R.C. 2315.21(D)(2) and/or for consideration of the appropriate amount of punitive

damages.

       {¶36} Assignment of Error IV is granted in part.

                                            V

       {¶37} Appellants claim the trial court erred in permitting appellee to present a

"surprise" witness at the trial, Janet Wilson, who was not identified during the discovery

process, and claims the trial court gave great weight to this witness's testimony. We

disagree.

       {¶38} A trial court has discretion in admitting the testimony of a surprise witness.

Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83 (1985). In order to find an abuse of

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).

       {¶39} Janet Wilson was an employee of USXS, the insurance company that

provided errors and omissions coverage to appellants, which had lapsed in 2010. Vol. 2

T. at 212. Appellants objected to her being called as a witness because they were not

informed of her until the Friday prior to trial via email. Id. at 202-206. The trial court

ruled the following (Id. at 206-207):



              THE COURT: Well, I let you both kind of call people at the last

       minute. I'll give you the same courtesy. I mean I haven't been real happy

       with the way documents have went between both sides, tax returns

       haven't been filed.
Stark County, Case No. 2015CA00085                                                      16


              So I'm going to let her testify because I think you need to have

       everything on the merits. I will decide how much merit I'll put on it, but you

       have had three days advance. You gave them something in three days,

       then I don't know why you wouldn't let them. I'm going to allow them to

       call that witness too. It's going to work both ways.



       {¶40} Appellants also objected to the testimony as to its relevancy, as it

constituted improper character evidence to prove appellant Nusseibeh purposefully

mislead appellee, as well as being cumulative and repetitive. Id. at 207-208. The trial

court overruled this objection. Id. at 208.

       {¶41} Evid.R. 403 governs exclusion of relevant evidence and states the

following:



              (A) Exclusion mandatory

              Although relevant, evidence is not admissible if its probative value

       is substantially outweighed by the danger of unfair prejudice, of confusion

       of the issues, or of misleading the jury.

              (B) Exclusion discretionary

              Although relevant, evidence may be excluded if its probative value

       is substantially outweighed by considerations of undue delay, or needless

       presentation of cumulative evidence.
Stark County, Case No. 2015CA00085                                                    17


        {¶42} Appellants argue by entering a finding of fraud, the trial court put

emphasis on this testimony as evident in its amended judgment entry filed April 13,

2015:



              Nusseibeh, as part of Advanced's assets, sold Plaintiff the rights to

        commissions that were to be paid by insurance companies in exchange

        for Advanced's having sold valid policies to its customers. However, after

        January 2, 2010, Advanced had no errors and omissions coverage, as

        said coverage had lapsed due to nonpayment, and therefore was not

        legally licensed to sell insurance policies, a fact admitted by Nusseibeh.

        R. II, pp. 106-7, 212-4; Defendants' Exhibit A.      In 2010, Nusseibeh

        directed his employee, Jennifer North, to send a document certifying that

        Advanced had procured errors and omissions insurance coverage (a

        document that he knew to have been falsified) to several insurance

        carriers for who Advanced wrote business.        Nusseibeh ordered the

        falsified document to be sent so that Advanced could continue to stay in

        business and sell insurance policies, telling Ms. North to do whatever she

        needed to do to "keep the business going/afloat." R. III pp. 116-27, 192-

        201; Plaintiff's Exhibit 8. Nusseibeh and Advanced were fully aware at the

        time they made these material misrepresentations that they had no

        intention of satisfying said promises to provide accurate or complete

        financial and other data or of providing accurate and complete financial
Stark County, Case No. 2015CA00085                                                    18

      and other data in the first instance with respect to Advanced. R. V, pp. 17-

      31.

             ***

             Nusseibeh, both individually and on behalf of Advanced, expressly

      represented to Plaintiff that information provided to her by himself and his

      accountants regarding the business prospects, income, expenses, and

      liabilities of Advanced was true, accurate, and complete.             These

      representations were made falsely, with knowledge of their falsity, or with

      such utter disregard and recklessness as to whether they were true or

      false that knowledge may be inferred.       Defendants in their proposed

      findings of facts and conclusions of law, paragraph 40 and 41, claim

      because of Nusseibeh's "inattention to detail", there were no formal profit

      or loss statements for the agency, or filed tax returns. The Court finds this

      inexcusable and material to the transaction, and even if believed,

      negligent.



      {¶43} Ms. Wilson testified that errors and omissions coverage was necessary in

order to write insurance in Ohio. Vol. 2 T. at 210. Appellant Nusseibeh also testified

the coverage was necessary to sell insurance in Ohio. Id. at 106-107, 116, 118.

      {¶44} Ms. Wilson testified "E&O coverage" was written for appellant Advanced

for 2008 and 2009, but was not renewed for 2010. Vol. 2 T. at 212. Ms. Wilson was

asked to review Plaintiff's Exhibit 8, a declarations page purportedly issued by her

company. Id. at 216. Ms. Wilson explained the exhibit was not a typical declarations
Stark County, Case No. 2015CA00085                                                     19

page issued by USXS, as the page had been altered. Id. The effective dates were

different, and the policy number was incorrect for a renewal policy. Id. at 216-217. In

2008, the premium financial company, UPAC, issued a notice of cancellation for

nonpayment of premium.       Id. at 227; Plaintiff's Exhibit 12.   Ms. Wilson identified

Plaintiff's Exhibit 13, a full application for errors and omissions coverage dated January

2, 2008. Id. at 227. Included in the application is a statement of the aggregate premium

volume for the year. Id. at 228. According to the applications made by appellants, the

premiums increased $100,000 from 2007 through 2009. Id. at 229-230.

      {¶45} When examined about the errors and omissions coverage for 2010,

appellant Nusseibeh could not remember if it had expired. Id. at 126. He identified the

same exhibits as Ms. Wilson identified. Id. at 128-129. On cross-examination, Ms.

Wilson admitted she never any contact with appellant Nusseibeh. Id. at 232.

      {¶46} Appellant Nusseibeh explained the numbers in the 2008 application for the

year 2009 would have been "gotten" from "the same place that the numbers" were

"gotten" that were given to appellee. Id. at 132-133. As the trial court noted, the issue

was whether the numbers declared on the applications as to the aggregate premiums

for the year which appellants presented to appellee was relevant to appellee's fraud

claim. Id. at 150-151.

      {¶47} In reviewing appellant Nusseibeh's testimony vis-á-vis Ms. Wilson's

testimony, we find her testimony was relevant to the issue of fraud. Further, the genesis

of the testimony was rooted in appellant Nusseibeh's own records and applications for

his error and omissions coverage. Based upon appellant Nusseibeh's own admissions
Stark County, Case No. 2015CA00085                                                    20


from his own records, we find undue prejudice did not occur with Ms. Wilson's testimony

that was not already contained in the evidence presented.

       {¶48} Upon review, we find the trial court did not err in permitting Ms. Wilson to

testify and in relying on her testimony.

       {¶49} Assignment of Error V is denied.

       {¶50} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed in part and reversed in part, and the matter is remanded to said court

for further proceedings consistent with this opinion.

By Farmer, J.

Baldwin, J. concur and

Hoffman, P.J., concurs in part and dissents in part.
Stark County, Case No. 2015CA00085                                                      21

Hoffman, P.J., concurring in part and dissenting in part

       {¶51} I concur in the majority’s analysis and disposition of Appellants’ first,

second, third, and fifth assignments of error.

       {¶52} I respectfully dissent from the majority’s decision to reverse and remand

part of Appellants’ fourth assignment of error as it relates to the punitive damage award.

I would overrule the assignment of error in toto and affirm the trial court’s full award on

punitive damages.




                                                 ________________________________
                                                 HON. WILLIAM B. HOFFMAN
