SARA LIOI, District Judge.
Before the Court are post-judgment motions for judgment as a matter of law filed under Fed. R. Civ. P. 50(b) by defendant IIP Ohio, LLC ("IIP Ohio") (Doc. No. 205 ["IIP Ohio Mot."]) and defendant Davor Rom ("Rom") (Doc. No. 213 ["Rom Mot."]). Plaintiffs Xudong Song and Sunshine International, LLC (collectively, "Song") filed briefs in opposition to each motion. (Doc. No. 206 ["IIP Ohio Mot. Opp'n"]; Doc. No. 222 ["Rom Mot. Opp'n"].) IIP Ohio and Rom filed replies. (Doc. No. 209 ["IIP Ohio Mot. Reply"]; Doc. No. 225 ["Rom Mot. Reply"].) As set forth herein, the motion of IIP Ohio, LLC (Doc. No. 205) is
Song attached a chart to plaintiffs' brief in opposition to Rom's motion. (Doc. No. 222-1.) Both defendants have moved to strike this chart. (Doc. No. 224 ["Mot. Strike"].) Song filed an opposition brief (Doc. No. 227 ["Mot. Strike Opp'n"]) and defendants filed a reply (Doc. No. 228 ["Mot. Strike Reply"]). As set forth herein, defendants' motion to strike is
Song, a Chinese national who invests in real estate, sued IIP Ohio and Rom alleging fraudulent inducement with respect to his purchase of certain rental properties in Ohio. (See Doc. No. 67, Third Amended Complaint, Count One.) Song claimed that he was promised double-digit returns on his investment, but the anticipated income never materialized due to the allegedly undisclosed condition of the properties. A jury trial was conducted and, on June 30, 2017, verdicts in favor of Song were entered against each defendant separately. However, when it came to the award of actual damages, the jury awarded $0 against IIP Ohio and $50,000.00 against Rom. No punitive damages were awarded against either defendant. (See Doc. No. 202 at 8102 and 8103.
IIP Ohio seeks judgment as a matter of law, claiming that, given the zero award of damages, Song failed to establish the sixth element of a fraudulent inducement claim as to IIP Ohio. Rom also seeks judgment, claiming that there is insufficient evidence in the record to support the award of $50,000.00 and, in any event, the "no-reliance" clause in all of the agreements between the parties precludes recovery.
Judgment as a matter of law is appropriate only when, construing the evidence in the light most favorable to the nonmoving party, "`there is a complete absence of fact to support the verdict, so that no reasonable juror could have found for the nonmoving party.'" Kiphart v. Saturn Corp., 251 F.3d 573, 581 (6th Cir. 2001) (quoting Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078 (6th Cir. 1999)). The Court does not "weigh the evidence, evaluate the credibility of the witnesses, or substitute [its] judgment for that of the jury." Black v. Zaring Homes, Inc., 104 F.3d 822, 825 (6th Cir. 1997) (citations omitted). "If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L. Ed. 2d 202 (1986) (citing Wilkerson v. McCarthy, 336 U.S. 53, 62, 69 S.Ct. 413, 93 S.Ct. 497 (1949)).
The jury was instructed
IIP Ohio moves for judgment as a matter of law, arguing that, in light of the jury's award of $0 in actual damages against IIP Ohio, "reasonable minds could only conclude that plaintiffs had not satisfied their burden of proof as to the sixth element of their fraudulent inducement claim when viewing the evidence in the light most favorable to plaintiffs." (IIP Ohio Mot. at 8121.)
IIP Ohio is correct. "Resulting injury" is an element of the claim of fraudulent inducement, and Song failed to establish that element as to IIP Ohio, as reflected by the jury's answer to Interrogatory No. 2. (Doc. No. 201 at 8082.) As a result, IIP Ohio is entitled to judgment as a matter of law on the fraudulent inducement claim. See, Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986) (holding that summary judgment
IIP Ohio LLC's motion for judgment as a matter of law (Doc. No. 205) is
In Rom's motion for judgment as a matter of law, he argues that Song failed to present the jury with any evidence of damages and/or any reasonable method to calculate damages. (Rom Mot. at 8254.) Rom notes that the proper measure of damages, as the jury was instructed, is "the difference between the value of the property as represented and the actual value of the property at the time of the sale." (Id. at 8254-55 (footnote omitted).) Rom points out that there was no expert testimony to establish the value of any properties at the time of the transaction, and Song, as the owner (who would have been permitted to testify as to value in lieu of an expert
In opposition, Song states that Rom is "conflat[ing] the existence of an injury with the quantification of its damage." (Rom Mot. Opp'n at 8464.) Song concedes that plaintiffs did not "explain to the jury how to utilize [the] evidence so as to maximize the calculation of those damages." (Id.) To correct this failure, Song now attaches to the opposition brief a chart purportedly based on the trial record that would support an award of damages in excess of $350,000.00. (See Doc. No. 222-1.)
Rom and IIP Ohio jointly move to strike this chart, arguing that it is not a part of the trial record and was never shown to the jury, although it could have been shown during the presentation of Song's case. (Mot. Strike at 8585.) Song asserts, in opposition to the motion to strike, that the chart is merely "an illustrative aid which summarizes, clarifies, and simplifies the calculations of the damages caused by Rom's misconduct." (Mot. Strike Opp'n at 8655, citing United States v. Bray, 139 F.3d 1104, 1111 (6th Cir. 1998).) In Bray, the court distinguished charts or summaries that are "`admitted as evidence under [Fed. R. Evid.] 1006'" from those that are "`pedagogical devices which organize or aid the jury's examination of testimony or documents which are themselves admitted into evidence.'" Id. (quoting Gomez v. Great Lakes Steel Div., Nat'l Steel Corp., 803 F.2d 250, 257-58 (6th Cir. 1986)). The court in Bray further clarified that the latter pedagogical devices "`are more akin to argument than evidence [and are] [q]uite often . . . used on summation.'" Id. (quoting Gomez). Therefore, they should be "`accompanied by a limiting instruction which informs the jury of the summary's purpose and that it does not itself constitute evidence.'" Id. (quoting Gomez).
The Court finds disconcerting Song's belated attempt to marshal alleged damages evidence, perhaps with an eye toward influencing the record on appeal.
Accordingly, the motion to strike (Doc. No. 224), which the Court considers as a motion to disregard the document, is granted.
Although there is no requirement that damages be proved with mathematical precision, "[i]n general, compensatory damages must be shown with certainty, and damages that are merely speculative will not give rise to recovery." The RAE Assoc., Inc. v. Nexus Commc'ns, Inc., 36 N.E.3d 757, 764 (Ohio Ct. App. 2015) (citation omitted). In view of the evidence presented at trial, Rom's argument that the $50,000.00 award of damages for fraudulent inducement was purely speculative is unpersuasive.
The jury had sufficient information from which to compute damages according to the Court's instructions. The various purchase agreements supplied the actual value of each property at the time of the transaction and, although Rom characterizes the projected ROIs contained in the various exhibits as mere estimates of future profits, the Court concludes that the promised ROI was evidence of the value of each investment property as represented by Rom.
Although there is no mathematical way to definitively compute a damages award of $50,000.00, the Court cannot conclude that "there is a complete absence of fact to support the verdict[.]" Kiphart, 251 F.3d at 581. The jury determined from the information in the exhibits admitted and in the testimony given that damages in the amount of $50,000.00 was established. It is not for the Court to second guess the jury at this juncture. Williams v. Nashville Network, 132 F.3d 1123, 1130-31 (6th Cir. 1997) (when the sufficiency of the evidence is challenged in the context of a Rule 50(b) motion, "[t]he judgment of [the] court should not be substituted for that of the jury").
Rom also asserts that Song failed to establish the requisite reliance for a fraudulent inducement claim.
Rom first argues that the "no-reliance" provision of the various purchase agreements forecloses any conclusion that Song justifiably relied upon any representations made outside of the agreements. (Id. at 8256.) Although not citing any Ohio court opinion that has addressed the impact of a contractual no-reliance provision on a fraudulent inducement claim, Rom argues that "the rule in the majority of jurisdictions appears to be that a contractual agreement to `forego reliance on any prior false representation and limit . . . reliance to the representations . . . expressly contained in the contract' has the binding effect of negating an action based on fraud in the inducement." (Id. at 8257,
In a Sixth Circuit case not cited by Rom, addressing a similar argument at the summary judgment stage
Rom next argues that Song's failure to read the purchase agreements negated any claim of justifiable reliance, notwithstanding Song's assertion that, due to his limited ability with English, he was unable to understand the agreements. Rom points to Song's testimony that, despite having a bilingual translator available to him, Song opted not to read or translate any of the purchase agreements. (Rom Mot. at 8261, citing Tr. [Doc. No. 212] at 8233.) Rom claims that Song is the victim of his own lack of diligence, not Rom's actions.
Song properly argues in opposition that Rom's argument is no more than an attack on the jury's express finding, in response to interrogatories, that Song justifiably relied on one or more representations by IIP Ohio and by Rom. (Rom Mot. Opp'n at 8471, citing Answers to Jury Interrogatory Nos. 1 and 6 [Doc. No. 201].) The Court concludes, as Song also argues, that, in making this factual finding, the jury necessarily considered the Court's instruction on justifiable reliance, directing the jury to "consider the various circumstances involved, such as the nature of the transaction, the form and materiality of the representation, the relationship of the parties, the respective intelligence, experience, age, and mental and physical condition of the parties, and their respective knowledge and means of knowledge." Notably, in making its determination, the jury had before it for consideration the copy of the relevant contracts, each with their "no reliance" clause. There is no reason to conclude that the jury did not make an informed "final determination of fact" in this regard. Brown, 481 F.3d at 921.
Finally, Rom challenges admission of the various representations that Song claims to have relied upon, asserting that (1) they are barred by the parol evidence rule, especially given Song's acknowledgments in the purchase agreements that no additional representations had been made; and, (2) they do not relate to present or past fact, but to future assertions.
The Court cannot conclude that no reasonable juror would find justifiable reliance. Therefore, Rom is not entitled to judgment based on the failure of that element of the claim of fraudulent inducement.
For the reasons set forth, the motion to strike (Doc. No. 224) filed by defendants IIP Ohio LLC and Davor Rom is
