[Cite as Schutte v. Fitzgibbon , 2021-Ohio-2669.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

ROBERT SCHUTTE Appellant

v. BRIAN FITZGIBBON Appellee C.A. No. 29686

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2015-04-2129

DECISION AND JOURNAL ENTRY Dated: August 4, 2021

SUTTON, Judge. {¶1} Plaintiff-Appellant, Robert Schu tte, appeals the judgment of th e Summit County

Court of Common Pleas. For the r easons that follow, this Court affirms.

I. Relevant Background Information {¶2} This appeal arises due to an ongoing dispute between the City o f Green and certain neighbors on Berna Road regarding a shared gravel driveway, kno wn as Tim Drive. This shared gravel driveway was once owned a nd maintained by the City but h as since been vacated and granted by easement to individua l property owners. By way of t his Court’s previous decision in

Schutte v. Strittmatter , 9th Dist. Summit No. 28886, 2018-Ohio-3472, ¶ 2-6, the releva nt factual and procedural background in thi s matter is as follows: [Mr.] Schutte, along with his wif e and daughter (“Schuttes”), f iled a complaint involving a property dispute agai nst the City of Green and seve ral of the Schuttes’ neighbors, including Countercla im Plaintiff-Appellee, Brian Fit zgibbon. The matter was referred to a magistrate. After a denial of Mr. Fitz gibbon’s motion to2

dismiss the Schuttes’ complai nt, Mr. Fitzgibbon filed an answer and a compulsory counterclaim against Mr. Schutte arising out of the property di spute and alleging intentional interference with contractual relations and crimina l acts against property pursuant to R.C. 2307.60. The trial court eventually granted summary judgment to all of t he defendants on each claim raised in the Schuttes’ complaint. In a subsequent o rder the magistrate noted that Mr. Fitzgibbon’s counter claim remained outstanding a nd that the matter was scheduled for a bench trial. Mr. Schutte ther eafter filed a “motion for clarification” asserting that a lthough the magistrate had sched uled a bench trial in the matter, Mr. Fitzgibbon had filed a jury demand in his answe r and counterclaim. Upon review of Mr. Fitzgibbon’s an swer and counterclaim, the ma gistrate found that no request or demand for tri al by jury existed and denied Mr. Schutte’s “motion for clarification” in a magist rate’s order filed October 19, 20 16. On October 24, 2016, Mr. Schutte filed an “objec tion to denial of right to jur y trial.” The matter then proceeded to a bench trial before the magistrat e. In a decision filed December 19, 2016, the magistrate determined that judgment shou ld be granted to Mr. Fitzgibbon on the claims of intentional interference with a contract and criminal acts against property. On December 27, 2016, Mr. Schutte filed an objection to the magistrate’s decision. Following a damages hearing, the magistr ate filed a second magistrate’s decision on Apr il 18, 2017, awarding Mr. Fitzgibbo n damages in the amount of $24,738.92. Both Mr. Schu tte and Mr. Fitzgibbon filed objections to the April 18, 2017 magistrate’s decision. The trial court ultimately overruled both Mr. Schutte’s and Mr. Fitzgibbon’s objections and adopted the magistr ate’s decision in its entiret y on July 27, 2017. Because Mr. Schutte did not waive his constitutional right to a jury trial, this Court reversed and

remanded the matter for furthe r proceedings on Mr. Fitzgibbon’s counterclaims. Id . at ¶ 15. The Fitzgibbon Counterclaims {¶3} As indicated above, Mr. Fitzgibbon filed two counterclaims agai nst Mr. Schutte: (1) intentional interference with contractual relations; and (2 ) criminal acts against property. In

his counterclaim for intentiona l interference with contractual relations, Mr. Fitz gibbon alleged he accepted an offer to purchase his property at 1806 Berna Road f or $195,000.00, and, with knowledge of the existing contra ct, Mr. Schutte intentionally p rocured a breach of the contract “without privilege to do so or ju stification,” thus causing dam ages to Mr. Fitzgibbon. Specifically,3

Mr. Fitzgibbon alleged the buyers “abandoned the purchase” beca use Mr. Schutte approached them during a septic inspection s houting “buyer beware,” falsel y telling them “the septic was bad and had flooded the backyard,” say ing if they purchased the pro perty “he would sue them,” and promising to make their lives “ni ghtmares” if they purchased th e Berna Road property. {¶4} Further, in his counterclaim fo r criminal acts against property , pursuant to R.C. 2307.60, Mr. Fitzgibbon alleged from 2012 to 2015, Mr. Schutte “removed or destroyed over 200 snow markers” placed by Mr. Fitzgibbon for the purpose of “dema rcating the gravel road in winter.” Mr. Fitzgibbon also a lleged that, on January 9, 2013, Mr. Schutte “used a backhoe to remove a landscaping [boulder] a nd destroy a flower bed,” and o n February 3, 2016, “Mr. Schutte removed large amounts of gravel from the road through the [righ t-of-way] maintained by Mr. Fitzgibbon,” causing damage to the road and “leav ing the road d ifficult to pass.” The Jury Trial {¶5} Subsequent to additional pre- trial litigation, including a Moti on in Limine regarding Mr. Schutte’s excavation of the g ravel driveway, and stipulatio ns as to Jury Instructions, Interrogatories and Verdict Forms, a jury trial ensued. Mr. Fi tzgibbon’s counterclaims for

intentional interference with contractual relations and crimina l acts against property were tried to a jury on August 26, 2019. At trial, Mr. Fitzgibbon testified and also called the following witnesses in his case-in-chief: (1) Benjamin Skelley, sanitarian; (2) Jod i Hodson, realtor for Mr. Woo; (3) Jennifer Senskey Woo; (4) Chris topher Woo; (5) Tyson Hartzler, realtor for Mr. Fitzgibbon; (6) Paul Pickett, City of Green Engin eer; and (7) Detective Robert DiSabato, Summit County Sheriff’s Office. Although Mr. Schutte did not testify at trial, he call ed the following witnesses in his casein-chief: (1) Warren Stone, an ex cavator; and (2) Susan Schutte , Mr. Schutte’s wife.4

{¶6} Mr. Skelley testifie d he worked for the Summit County Public He alth Department as a sanitarian for “almost seven years” and “performed the wel l and septic insp ection” on June 2, 2015, at the Fitzgibbon residence. As a result of the septic i nspection, Mr. Skelley observed “no nuisance,” meaning there was no raw sewage coming out of the gr ound or bleeding out of the septic system. Mr. Skelley also verified he was not aware of a ny historical problems involving the Fitzgibbon septic system. During the septic inspection, Mr. Sk elley observed the neighbor, Mr. Schutte, going “up and down” the gravel driv eway, dragging a ra ke behind him while saying, “[b]uyer beware. Buyer beware[. ]” Mr. Skelley also recalled M r. Schutte yelling “ that the septic was failing.” In response, Mr. Skelley informed Mr. Schutte, “ [t]hat’s why we’re here. That’s why we’re doing this and I’ll find out if it is. That’s the re ason for the inspection.” {¶7} Ms. Hodson has been a realtor for approximately twenty-six year s and she represented Mr. Woo, the buyer, in the real estate transaction with Mr. Fitzgibbon. During her testimony, Ms. Hodson reviewed Exhibit 1, the standard Ohio res idential disclosure form prepared by Mr. Fitzgibbon, which disclosed the following issue with the boundary between the Fitzgibbon and Schutte propertie s: “January 14th-City Council passed ordin ance which vacated right of way * * * between 1806 and 1794, gave easements for gravel drive. Neighbor petitioning County to restore right of way.” Prior to the home and septic inspection s, Mr. Woo sought more detailed information from Mr. Fitzgibbon in Addendum 1 to the real estat e purchase agreement, stating: “[Mr. Fitzgibbon] to provide in writing an explanation for the boundary dispute that is listed on the property disclosure for [Mr. Woo’s] review and acceptance. This is to be done before the home inspection is scheduled.” Ms. H odson explained she did not wan t Mr. Woo to pay for a home inspection if he was not “comfor table” with “the explanation on the boundary dispute.” On May5

20, 2015, the Fitzgibbons responded to Mr. Woo’s request for ad ditional information, and after receiving the response, Mr. Woo sch eduled the home inspections. {¶8} Additionally, Ms. Hodson testified she attended the septic insp ection at the Fitzgibbon residence on June 2, 2015, along with Mr. Woo’s fian cé, Jennifer, a nd Mr. Skelley. Ms. Hodson recalled the neighbor, Mr. Schutte, coming down with a “stick or something,” saying, “[b]uyer beware[,] [b]uyer beware[,]” and taking photographs a nd or videotaping the inspection. Further, Ms. Hodson recalled Mr. Schutte saying the “septic was going to fail” and “there was something wrong with the driveway[.]” Mr. Schutte also stated, “there’s an ongoing lawsuit * * * [and] [Mr. Woo] would be included in any future lawsuits” and “ would be inheriting a nightmare.”

Mr. Schutte indicated Mr. Woo woul d have to “install a driveway ” and Mr. Fitzgibbon, through Keller Williams, did not disclose “everything regarding the pro perty dispute[.]” Based upon the

interaction with Mr. Schutte a t the septic inspection, Ms. Hods on believed Mr. Schutte and Mr. Fitzgibbon “had something going on[.] * * * Like, [] [Mr. Schut te] didn’t like [Mr. Fitzgibbon] or whatever and [Mr. Schutte] was trying to kill the deal.” Ultim ately, Ms. Hodson testified that Mr.

Woo and his fiancé “didn’t want t o move forward with the purcha se of the [Fitzgibbon] property” and Mr. Schutte “was the catalys t for the deal falling apart.” {¶9} Ms. Woo, formerly Ms. Senskey, te stified at the time of the sep tic inspection on June 2, 2015, she was engaged to M r. Woo and attende d the inspe ction as his representative. Ms. Woo agreed, at the time the real estate purchase agreement was signed, the issue regarding the property dispute was not a great concern. Ms. Woo also testifi ed Mr. Fitzgibbon gave them “the answers” they were looking for about the property dispute prior to proceeding with the home and septic inspections. At the se ptic inspection, Ms. Woo remember s Mr. Schutte walking down the shared road next to the house saying, “[b]uyers beware.” Mr. S chutte then told Ms. Woo they6

“would probably get pulled in or dragged into some sort of laws uit if we were to purchase the

house.” Ms. Woo testified she wa s “concerned” about this inter action and Mr. Sc hutte “started [their] concern about the contract which led [them] to dig in a little bit more and to find additional

information about the current law suit[.]” Ms. Woo also testifi ed she was concerned about “what that relationship would look like if we bought the house” as we ll as “being involved in any lawsuits[.]” Ms. Woo did not sa y, “but for Mr. Schutte’s sudde n appearance and behavior” they

would have closed the deal. F urther, Ms. Woo indicated, based upon Mr. Fitzgibbon’s disclosure,

she and Mr. Woo were not awa re they would be involved in an ong oing lawsuit. {¶10} Mr. Woo testified he wanted more informa tion about the boundary dispute before scheduling the home and septic ins pections, and he remembers re ceiving the information and “reading it.” Further, Mr. Woo understood the driveway was “sh ared” and, as of January 2014, the City of Green was “no longer taking care of it[.]” Mr. Woo testified, “the fact that there was a lawsuit pending and the fact that the city had vacated some rig ht-of-way,” did not stop him from entering into the real estate purchase agreement for the Fitzgi bbon property. However, Mr. Woo also testified he “didn’t fully appreciate the extent of what w as going on.” When asked, “[w]hat happened to this contract ,” Mr. Woo testified: [A]fter the septic inspection [Ms. Woo] came home and told me a bout her interaction with the neighbor and that he w as walking up [and] down the driveway with a rake saying, “[b]uyers beware.”

And that he also mad e statements that [] if we bought the house we would be involved or be brought into the l awsuits that were going on. And then at that point is when I did more research into the pen ding case and the previous cases and what had b een going on over the years with t hat property. On June 3, 2015, the day after the septic inspection, Mr. Woo o fficially indicated his desire to terminate the real estate purch ase agreement for the Fitzgibbon property through a mutual release7

of the contract. When asked “[w] hether or not, but for Mr. Sch utte’s interaction,” Mr. Woo would

have terminated the cont ract, Mr. Woo responded: [Mr. Schutte’s] interaction played a large part of it. * * * [ T]he fact there was [these] pending lawsuits against each other played a part in it , but the fact that it was, at least, implied or state d to us that we would be involve d or get involved [] did play a large role in that. Further, in a written explanation to Mr. Fitzgibbon regarding t he termination of the contract, Mr.

Woo stated: This is further detail regarding the encounters with the neighb or at 1795 Berna which [helped] lead to my decision to step away from purchasing 1806 Berna. During the well [and] septic inspections, the neighbor [Mr. Sch utte] walked down the gravel road stating “buyer be ware” over and over. He did n ot shout just spoke those words and said he was going to get his mail. He took the mail from 1794. He then proceeded to sit near h is pond and watch as the well [a nd] septic inspections were being performed. He kept s taring and my [r]ealtor caught him taking pictures and she told him to stop. She went over to him along with my f iancé and spoke to [Mr. Schutte]. He said that there are cameras all over the pro perty, that we would be included in any future litigation and that the septic drains onto the neighboring property. He did say that Ke ller Williams and [Mr. Fitzgibbon] were not disclosing everything. He said that we woul d have to have a new driveway put in for access to the house. We just don’t want anything to do with it. This all took place on June 2, 2015 mid-afternoon.

Mr. Woo described Mr. Schutte’s b ehavior, specifically in wavin g a rake, as “not typical behavior” and said it was a “catalyst” i n his decision to terminate the r eal estate purchase agreement. {¶11} Mr. Hartzler, Mr. Fitzgibbon’s realtor, testified he assisted w ith listing the Fitzgibbon residence fo r sale and placed a “for sale sign” in t he yard. Mr. Hartzler verified an

executed contract existed betwee n the parties, and that Mr. Woo requested additional information regarding the boundary dispute prior to scheduling the home ins pections. When asked why this deal did not “get done,” Mr. Hartzler responded, “because [Mr. Woo] decided not to follow through with the purchase.” On June 2, 2015, the same day as t he septic inspection, Mr. Hartzler testified he received a telephone call from Ms. Hodson indicati ng Mr. Woo did not wish to follow8

through with the purchase of the Fitzgibbon property and they w ould be sending over a mutual release. Based upon a series o f communications with Ms. Hodson and Mr. Woo, Mr. Hartzler concluded Mr. Woo was not “comfortable” proceeding with the pur chase of the Fitzgibbon

residence because of the i nteraction with Mr. Schutte. {¶12} Mr. Pickett, an engineer with t he City of Green, provided the j ury with an historical overview of the boundary dispute between the neighbors regardin g the right-of-way known as Tim Drive, which abuts Berna Road. Mr. and Mrs. Schutte had petiti oned the City to build an actual road on the right-of-way, at the City’s expense, which the City entertained for some time. Ultimately, however, instead of building a road, the City vacat ed the right-of-way in January of 2014 and granted easements to the homeowners for its use becaus e it did not have a public purpose of being used as a “through” street to “connect to other land d evelopment.” Additionally, Mr.

Pickett testified that Mr. Schutte could have built the road at his own cost, which would have caused the City to have to perpet ually maintain it, but he did not do so. {¶13} Detective DiSabato, with the S ummit County Sheriff’s Office, te stified about an incident report dated January 9, 2013, regarding an easement on private property that was being excavated by Mr. Schutte and “moved and shifted to the east,” a nd a large rock, owned by Mr. Fitzgibbon, that had been relocated. The City of Green Law Dir ector made the report and listed Mr. Fitzgibbon as one of the witnesses. A criminal complaint w as filed against Mr. Schutte for excavation without a permit, a mis demeanor, which was dismissed by Barberton Municipal Court. Further, Detective DiSabato tes tified about an incident report dated December 4, 2014, made by Mr. Fitzgibbon against Mr. Schutte , for the removal of Mr. Fitz gibbon’s snow markers, but no criminal charges were filed. Overall, Detective DiSabato indic ated there were thirteen incident reports involving Mr. Schu tte and the ongoing dispute.9

{¶14} Mr. Fitzgibbon testified he purch ased his residence on Berna Ro ad in November of 2007 and “fell in love with the house[.]” In describing his lo ve for this property, Mr. Fitzgibbon explained: It’s a beautiful, beautiful property. I had never lived in an area that was so open, so green, if you will[.] I grew up in the inner city of New York. A rough place for a y oung person to grow up. And to have an opportunity to live in a place as beautiful as t he home was on Berna Road was just like the American dream. It was a beautiful hous e. I had everything except for the white picket fence. I had a two-story deck that butted up against a series of ponds. And I would sit out there and watch the stars and listen to the ponds and the wildlife. In 2010, Mr. Fitzgibbon met Mr. Sc hutte for the first time when he came to inquire about a concrete pad Mr. Fitzgibbon installed at h is property, and whether Mr. F itzgibbon had acquired the proper permits from the City. At that meeting, Mr. Fitzgibbons recall ed that Mr. Schutte said, “[y]ou’re not from here[,]” and informed Mr. Fitzgibbon he was reporting him to the City regarding the concrete pad. Mr. Fitzgibbon al so recalled Mr. Schutte asking him about possibly petitioning the City together about building a road. {¶15} Mr. Fitzgibbon’s interactions with Mr. Schutte increased in 201 1 when Mr. Fitzgibbon saw individuals from the City surveying Tim Drive fo r the purpose of possibly building

a road. From that time forwar d, Mr. Fitzgibbon was involved in a series of meetings with the City and petitions involving the right-of-way, which culminated in t he City vacating the right-of-way in 2014. In describing the effect the entire “ordeal” with Mr. Schutte has had on his life, Mr. Fitzgibbon testified: there was a time I thought I was losing my mind. I thought I w as going to lose my marriage. * * * I had absolutel y everything to lose. * * * And what I didn’t understand was I became a target because I disagreed with a roa d going in. Personally I became a target. Professionally I became a target . And it got to the10

point where we had to leave. * * * I [] couldn’t tell if things were going to continue to escalate and something real bad was going to happen. I coul dn’t raise my children in this area. My wife specifically told me after three years of living with s ome of the issues and the problems and heartache and headache was, “I’m leaving. You coming with me?” From 2012 to 2015, Mr. Fitzgibbon te stified he had been “dragge d into” three lawsuits, either as a witness or party, involving Mr. Schutte and the right-of-way. As to the property disclosure, Mr. Fitzgibbon stated there was “no wa y” for him to know if Mr. Sch utte would have sued Mr. Woo, had he purchased the residence, because “[o]nly Mr. Schutte cou ld control who he’s going to sue[.]” {¶16} In terms of the events of June 2, 2015, involving Mr. Schutte, Mr. Fitzgibbon explained June 2nd is his birt hday and “we finally had our hous e sold and we were getting away from this problem. We were rea dy to move on.” Then, Mr. Fitzg ibbon received a telephone call from his realtor indicating, “[t] he buyers met the creepy neigh bor. He freaked them out. They want out.” Mr. Fitzgibbon furthe r explained, “[w]e did everyth ing possible to keep things away from [Mr. Schutte] finding out about when these things were bei ng done to prevent [Mr. Schutte from meeting Mr. Woo]. Mr. F itzgibbon indicated, “we couldn’t enjoy peace of mind, quality of life in our house.” Mr. Fitzgibbon also testified that, on Jun e 2, 2015, he and his wife were in contract on another house to get a “fresh start and start over. ” Realizing he was now “stuck” with two mortgage notes, Mr. Fitzgi bbon “went from living a pretty d ecent comfortable lifestyle to [a] [] tight budget.” Specifically, Mr. Fitzgibbon recalled having to eat “macaroni and cheese” for 18 months, pulling his son out of p rivate daycare and having his m other-in-law step in for childcare, borrowing fifteen thousand dollars from his father-in-law who w as battling cancer at the time, and borrowing fifty thousand dollars from his own retirement. Mr. Fitzgibbon stated: “June 2nd you11

[Mr. Schutte] had the opportunity to get rid of me. I would be gone. If you didn’t like me this much why interfere with the cont ract and then [] I can’t get ou t.” {¶17} Mr. Fitzgibbon testified he was “ forced into signing” the mutua l release in order to continue to try to sell his resi dence. According to Mr. Fitzgib bon, his realtor indicated, “[i]f you don’t release [Mr. Woo] you can’t continue to try to sell your house.” However, because of the realtor notes regarding the house previously being “under contr act” and the “neighbor dispute,” the Fitzgibbons did not “get a single person through there agai n or foot traffic. Shut the deal down for us moving forward.” Mr. F itzgibbon described having “sleep less nights” from worry regarding his inability to sell the house, being in “limbo,” and “being h eld hostage[,]” with two mortgage notes and his wife working part-time. Mr. Fitzgibbon indicated “my mind was just overcome,” and he was eating and drinking poorly during this time period, and he “never valued the importance of a wonderful neighbor before [he] met [Mr. Schutte].” In Feb ruary of 2016, Mr. Fitzgibbon rented the Berna Road residence for $1500 per month, and ultima tely sold it in November of 2016 for $193,800.00. {¶18} On cross examination, Mr. Fitz gibbon also admitted he had kidne y stones in March of 2016, which his doctor directly attributed to “stress,” and he engaged in confidential peer counseling offered through his place of employment and spoke wi th his pastor at church about the negative effect this incident had on his marriage. Mr. Fitzgib bon, however, did not produce any

documentation as to his medi cal condition or counseling. {¶19} After the close of Mr. Fitzgibbon’s case, Mr. Schutte called tw o witnesses, Mr.

Stone and Mrs. Schutte. Mr. St one testified he did some work a t Mr. Schutte’s Berna Road property, but Mr. Schutte did not ask him to remove the large r ock from Mr. Fitzgibbon’s residence. Instead, Mr. Stone indicated he moved the rock due to a letter he received from a group12

named “Berna Fest” who have a Berna Road festival during the su mmer and felt the rock caused a safety issue. Further, Mrs. S chutte, Mr. Schu tte’s wife of t hirty-four years, testified she and her family felt intimidated by the neighbors on Berna Road and “fel t like we were always being

watched.” Mrs. Schutte indicated that, due to the neighbors’ “ derogatory” comments and behavior, “it became very difficult to con tinue to access the property[.] ” The Jury Award and Stipulated Damages {¶20} On August 29, 2019, the jury returned a verdict in favor of Mr. Fitzgibbon on his counterclaims and awarded compen satory damages in the amount of $159,313.38. Further, because the issue of punitive dama ges and attorney fees was bif urcated from the other issues at trial, the jury reconvened on August 30, 2019, and found Mr. Sc hutte acted with actual malice.

Prior to deliberations on this i ssue, the jury w as instructed a s follows: Punitive damages may be awarded against [Mr.] Schutte as a puni shment to discourage others from committing similar wrongful acts. You a re not required to award punitive damages to [Mr .] Fitzgibbon, and you may not do so unless you find that [Mr.] Fitzgibbon has me t his burden to prove by clear and convincing evidence that [Mr.] Schutte acted with malice. [Malice] means either: [1] a state of mind character ized by hatred, ill will, or a spi rit of revenge, or [2] a conscious disregard for t he rights of another person or e ntity that has a great probability of causing substantial harm. Further, the jury was instruct ed if they found Mr. Schutte liab le for punitive damages, they must

also determine whether Mr. Schu tte is liable for Mr. Fitzgibbon ’s reasonable attorney fees. The trial court would then, if nece ssary, determine the amount of r easonable attorney fees. The jury awarded Mr. Fitzgibbon $200,000 in punitive damages and determi ned Mr. Schutte is liable for reasonable attorney fees. Following the jury’s award of puniti ve damages, the parties stipulated13

to punitive damages in the amount of $20,000 and attorney fees in the amount of $35,000, plus expenses in the amount of $976.56. {¶21} Based upon the jury verdic t and the parties’ s tipulation as to punitive damages and attorney fees, the trial court entered a Final Judgment in favo r of Mr. Fitzgibbon and against Mr. Schutte in the amount of $215,289.94.

Post-Trial Motions {¶22} Mr. Schutte then file d several post-trial motions, including: ( 1) a motion for judgment notwithstanding the verdi ct (“JNOV”); (2) a motion for new trial; and (3) a motion for remittitur. In his motion for JNOV, Mr. Schutte argued that Mr . Fitzgibbon did not prove two of

the five elements of tortious int erference with a contract. Sp ecifically, Mr. Schutte claimed his comments at the septic inspecti ons regarding Mr. Woo being name d in a lawsuit were truthful and justified, and, due to the mutual release, there was no breach of contract. Mr. Schutte also claimed Mr. Fitzgibbon was not entitled to an award of noneconomic dama ges. In the alternative, Mr. Schutte sought a new trial, pursuant to Civ.R. 59(A)(2), miscon duct of the jury or prevailing party, Civ.R. 59(A)(4), excessive damag es given under the influence of passion or prejudice, Civ.R. 59(A)(6), the judgment is not sustained by the weight of the ev idence, and Civ.R. 59(A)(7), the judgment is contrary to law. Las tly, Mr. Schutte moved for rem ittitur on the amount of noneconomic damages if the trial court upheld the jury’s verdic t and award. {¶23} In response, Mr. Fitzgibbon argue d Mr. Schutte is precluded fro m attacking the jury verdict based upon his stipulati on to damages prior to the tria l court entering judgment. Further, Mr. Fitzgibbon contende d Mr. Schutte failed to demonstrate, “as a matter of fact or law,” that the trial court should overturn the j ury verdict and damages award.14

Trial Court Order {¶24} In denying Mr. Schutte’s moti ons, the trial court reasoned:

* * * Mr. Schutte makes several argum ents in support of overturning t he jury verdict in this matter. First, he argues that [Mr.] Fitzgibbon failed to establish the essential elements of his tortious interference with contract claim. How ever, the issue of whether the elements of this claim were met rested heavily upon factual issues and disputes that the jury necessarily had to consider based upon a ll of the evidence before it. The court simply ca nnot find that, based upon the e vidence before the jury, the jury could only find in favor of [Mr.] Schutte. Furt her, the court finds that an actual breach of contract is not required if the conduct inv olved induced the contract to be terminated. 88 Ohio Jur.3d Torts § 17. The jur y could have reasonably found based upon the history in this case[] between the parties and [Mr.] Schutte’s conduct on the day of the septic inspection - that [M r.] Schutte’s conduct caused the termination of the o therwise sound contract. [Mr.] Schutte further argues that non-economic damages should not have been allowed i n this case. However, pursuant to R.C. []2315.18 non-economic damages are al lowable in a tort action and this case involved a tort action, not a contract act ion. As such, the court rejects this argument as well. * * * In the instant case, the jury awarded non-economic damages in t he amount of $150,000.00. * * * In the instant case, there were many facts u pon which the jury could have reached its number. [Mr.] Fitzgibbon testified abou t the strain the failed sale placed upon him, his family a nd his marriage. His wife ga ve him an ultimatum that she could no longer live next to Mr. [Schutte] due to the stress it was causing for all of them and after the sale fell through he and his fami ly moved from the home to be away from Mr. [Schu tte]. [Mr.] Fitzgibbon was then forced to maintain two homes for an extended period of time until it sold even tho ugh he worked and lived over an hour away. The court simply cannot find that the jury made its award based upon passion and prejudice. * * * In this case, the jury was presented with ample evidence to sup port its award. * * * Similarly [] the court does not agree that the judgment in th is case is contrary to law. * * * As to the motion for remittitur, this court does not agree that the jury award was excessive in light of the conten tious relationship of the parti es and the protracted litigation in this case. * * * {¶25} Mr. Schutte appeale d, citing four assignments of error for our review.15

II.

ASSIGNMENT OF ERROR I THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, BY DENYING [MR. SCHUTTE’S] MOTIONS F OR A DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT IN VIOLATION OF CIV.R. 50(A) AND (B). {¶26} In his first assignment of error, Mr. Schutte argues Mr. Fitzgi bbon did not prove all

five elements of intentional interference with contractual rela tions. Specifically, Mr. Schutte argues there was: (1) no proof t hat Mr. Schutte was aware a bin ding contract existed; (2) no proof that Mr. Schutte intentionally b reached a valid contract becaus e a mutual release was signed by Mr. Fitzgibbon and Mr. Woo; and (3 ) Mr. Schutte’s comments at t he septic sewer inspection were justified. Mr. Schutte further argues his comments were mere “ opinions” and he cannot be held liable for expressing his constitutionally protected subjective beliefs regarding the purchase of the Fitzgibbon residence. We disagree. Application of L aw to the Record {¶27} “A party may move for directed v erdict upon the ‘opening statem ent of the opponent, at the close of the opponent’s evidence or at the clo se of all the evidence.’” Alonso v.

Thomas , 9th Dist. Lorain No. 19CA011483 , 2021-Ohio-341, ¶ 53, quoting Civ.R. 50(A)(1). A

motion for directed verdict can only be granted when, having co nstrued the evidence most strongly in favor of the nonmoving party, the trial court concludes that reasonable minds could only reach a conclusion upon the evidence submitted that is adverse to the nonmoving party. See J. P. v. T.

H ., 9th Dist. Lorain No. 19CA011469, 2020-Ohio-320, ¶ 8. “Conve rsely, if there is substantial and competent evidence supporting the position of the nonmoving party and reasonable minds might reach different conclusions , a trial court must deny the motion.” Id ., citing Hawkins v. Ivy , 50 Ohio St.2d 114, 115 (1977). “The ‘reasonable minds’ test ma ndated by Civ.R. 50(A)(4)16

requires the court to discern only whether there exists any evi dence of substantive probative value that favors the position of the nonmoving party.” Id., quoting Goodyear Tire & Rubber Co. v.

Aetna Cas. & Sur. Co. , 95 Ohio St.3d 512, 2002-Ohio-2842, ¶ 3. {¶28} “After a court enters judgment on a jury’s verdict, a party may file a motion for judgment notwithstanding the ver dict to have the judgment set a side on grounds other than the weight of the evidence.” Alonso at ¶ 54, citing Civ.R. 50(B)(1) . “The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the ve rdict is the same test to be applied

on a motion for directed verdict.” Alonso at ¶ 54, quoting Posin v. A.B.C. Motor Court Hotel, Inc. , 45 Ohio St.2d 271, 275 (1976). See also Williams v. Spitzer Auto World, Inc ., 9th Dist. Lorain No. 07CA009098, 2008-Ohio-1467, ¶ 9, citing Osler v. Lorain , 28 Ohio St.3d 345, 347 (1986). {¶29} Indeed, both a motion for directed verdict and a motion for jud gment notwithstanding the verdict test t he legal sufficiency of the e vidence, and not the credibility of the witnesses or the weight of the evidence. Alonso at ¶ 55. “While it is necessary to review the evidence, a motion for directed verdict and a motion for judgme nt notwithstanding the verdict do not present factual issues, but r ather questions of law which w e review de novo.” Alonso at ¶ 55, citing Goodyear Tire & Rubber Co. at ¶ 4, quoting O’Day v. Webb , 29 Ohio St.2d 215 (1972), paragraph three of the syllabus. {¶30} In the present matter, the jury returned a verdict in favor of Mr. Fitzgibbon on his

counterclaim for intentional in terference with contractual rela tions, which is also known as tortious

interference with a contract. “The elements of tortious interf erence with [a] contract are (1) the existence of a contract, (2) the wrongdoer's knowledge of the c ontract, (3) the wrongdoer's intentional procurement of the c ontract’s breach, (4) lack of j ustification, and (5) resulting damages.” Fred Siegel Co. v. Arter & Hadden , 85 Ohio St.3d 171 (1999), paragraph one of the17

syllabus. Moreover, establishmen t of the fourth element, lack of justification, re quires proof that

the defendant’s interference w ith another’s contract was improp er. Id . at paragraph two of the syllabus. In determining impropr iety, the following factors sh ould be considered: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s c onduct interferes, (d) the intere sts sought to be advanced by the actor, (e) the so cial interests in protecting t he freedom of action of the actor and the contractual interests of the other, (f) the p roximity or remoteness of the actor’s conduct to the int erference, and ( g) the relatio ns between the parties.

Id . at paragraph three of the sy llabus, citing Restatement of the Law 2d, Torts, Section 767 (1979). {¶31} As a preliminary issue, in his motion for JNOV, Mr. Schutte did not argue insufficient evidence regarding the first two elements of torti ous interference with a contract: (1) the existence of a contract; and (2) Mr. Sc hutte’s knowledge of the contract. Instead, Mr. Schutte only argued insufficient evidence as to the third and fourth el ements, intentional procurement of

the contract’s breach and lack o f justification. Notably, in h is closing argument, Mr. Schutte’s counsel indicated to the jury: I mean, we all know there’s a contract here. We know Mr. Woo s igned the contract with Mr. Fitzgibbon to buy his house , that’s not in dispute. We are not challenging that Mr. Schutte was aware of the contra ct. I mean, there’s a for sale sign. I don’t rea lly know that a nybody testified to it, but it was alluded to in his closing that ther e was a for sale sign. And certainly if Mr. Schutte wal ks by and says, “[b]uyer beware ,” you, know, we’re not going to sit here and claim th at he didn’t know there was a contract. It’s really the third and four th elements * * * I [took] issue with[.] As this Court has often stated, “[w]hen reviewing arguments on appeal, this Court cannot consider issues that are raised for the first time on appeal.” Magnum Steel & Trading, L.L.C. v. Mink , 9th Dist. Summit Nos. 26127, 26231, 2013-Ohio-2431, ¶ 23, citing Carnegie Cos., Inc. v. Summit Properties, Inc. , 9th Dist. Summit No. 25622, 2012-Ohio-1324, ¶ 8, quoting Harris v. Akron , 9th18

Dist. Summit No. 24499, 2009-Ohio-3865, ¶ 9. Thus, because Mr. Schutte did not raise any arguments regarding the insufficiency of evidence as to the fir st two elements of tortious

interference with a contract belo w, this Court will not address them on appeal. Id. at ¶ 23. {¶32} As to the third element, whether Mr. Schutte intentionally proc ured the contract’s breach, Mr. Schutte argues a breach, in fact, did not occur bec ause Mr. Fitzgibbon and Mr. Woo executed a mutual release. In the parties’ stipulated instruct ions to the jury, breach is defined as follows: “[a] contract is breached when one party fails or refuses to perform his duty under the contract.” (Emphasis added.) The jury heard testimony from Ms . Hodson, Mr. Woo, Mr. Hartzler, and Mr. Fitzgibbon that, after th e encounter with Mr. Schutte a t the septic inspection, Mr. Woo expressed his desire to terminat e the contract to purchase the Fitzgibbon residence. Specifically, Ms. Hodson, Mr. Woo’s realtor, c ontacted Mr. Hartzler, Mr. Fitz gibbon’s realtor, the same day as the septic inspection, to let h im know that Mr. Woo did not wis h to close on this deal and would be sending Mr. Fitzgibbon a mutual release. Mr. Fitzgibbon tes tified he was “forced” into signing the mutual release in order to keep showing the residence to ot her potential buyers. Certainly, even though Mr. Fitzgibbon agreed to release Mr. Woo from any l iability in order to continue showing the property, the jury heard ample testimony that Mr. W oo refused to continue performing on the contract. Additionally, the jury heard testimony that M r. Schutte was the “catalyst,” for the termination of the real estate purchase agreement and his actio ns played a “large part” in Mr. Woo’s decision to terminate the contract. The jury also heard Mr. Fitzgibbon testify that, after the septic inspection, his realtor ca lled him that same day and sai d: “[t]he buyers met the creepy neighbor. He freaked them out. T hey want out.” Mr. Woo also testified “the fact that there was a lawsuit pending and the fact that the city had vacated some r ight-of-way,” did not stop him from entering into the real estate purch ase agreement for the Fitzgi bbon property.19

{¶33} Further, as to the fourth eleme nt, justification, the jury hear d testimony regarding the detailed response Mr. Fitzgi bbon provided Mr. Woo regarding the boundary dispute. During deliberations, the jur y also was able to review the actual May 20, 2015 Addendum, which stated: 1. The [Schuttes] made multiple requests to the City of Green to construct a dedicated road over the Unname d, Unimproved Right-of-Way, known as Tim Drive. The City of Green denied funding for these requests. T he [Fitzgibbons] along with the owners of 1800 opposed the construction of a roa d and instead, favored the vacati on of Tim Drive. 2. Green City Ordinance No. 2013-22, passed January 14, 2014, Vacating the Unnamed, Unimproved Right-of-Way Alleyway, known as Tim Drive w hich [a]buts Berna Road. This Ordinance was sponsored by the City o f Green Council President, supported by the City of Green Mayor and unanimously passed by the City of Green Council. The [Sc huttes] were in opposition to th is Ordinance. 3. The City of Green prepared a Plat Map Vacating the Unnamed, Unimproved Right-of-Way, known as Tim Drive, per Ordinance No. 2013-22, fo r Summit County Records. The Ordinance ou tlined the permanent easements for 1794, 1800 and 1806 for use of the gravel driv e to access their properties

. 4. Property owners of 1794 named Robert, Susan and Sarah Schut te, filed a Complaint in Summit County Common Pleas Court, Case No. CV 2015 -04-2129, dated March 31, 2015, against the City of Green and several per sons, including the [Fitzgibbons], which disputes the City’s Ordinance and Vacation Plat, among other things, and includes a Petition demanding that the Court establ ish a right-of-way on the property known as Tim Drive (Prior actions were filed a nd dismissed as Summit County Case No. CV 2012-05-3149 and CV 2014-07-3377). 5. [The Schutte Property at] 1794 [Berna Road] has been an [uni nhabited] property since 1806 was purchased by the [ Fitzgibbons] in November of 20 07. The jury heard testimony that, after receiving the above respon se from Mr. Fitzgibbon, Mr. Woo moved forward under the contract and scheduled the home inspect ions. However, after the encounter with Mr. Schutte, Mr. Woo immediately terminated the contract by sending a mutual release the next day. Accordi ng to the testimony of Ms. Hobson , Mr. Schutte told Ms. Woo that if they purchased the Fitzgibbon pr operty they “would be includ ed in any future lawsuits[,]” and “would be inheriting a nightmare .” Indeed, as Mr. Fitzgibbon t estified, only Mr. Sc hutte controls20

who he will, or will not, sue in r elation to the boundary dispu te. As such, Mr. Sc hutte’s comment that Mr. Woo will be sued can be construed as more of a threat, than a good citizen’s warning to another person or the expression of an opinion. Moreover, the Addendum, provided by Mr. Fitzgibbon, contains very detaile d information about the bounda ry dispute, including case numbers

and the fact that Mr. Schutte s ued individual neighbors, which painted a very clear picture of the ongoing, contentious situation for Mr. Woo and the jury. The j ury also heard detailed testimony regarding the personal animosity between Mr. Schutte and Mr. Fi tzgibbon, the damage to Mr. Fitzgibbon’s health, marriage, a nd finances from Mr. Schutte’s interference, and that Mr. Schutte’s comments about the septic failing and needing to put in a new d riveway were untruthful. Nevertheless, the record indicates that Mr. Schutte’s comments, even though untruthful, ultimately sound in fact, not protected opinion. See Fred Siegel Co . at paragraph three of the syllabus. {¶34} Based upon the foregoing, and in construing the evidence most s trongly in favor of Mr. Fitzgibbon, the trial court did not err in denying Mr. Schu tte’s motion for JNOV and concluding that, upon the submitted evidence, reasonable minds could not only reach a conclusion

that is adverse to Mr. Fitzgibbon on the elements of procuring a breach and ju stification. Therefore, Mr. Schutte’s a rguments are not well-taken. {¶35} Mr. Schutte’s first assign ment of error is overruled.

ASSIGNMENT OF ERROR II THE TRIAL JUDGE ABUSED HER DISCRETION, TO [MR. SCHUTTE’S] CONSIDERABLE DETRIMENT, BY FAILING TO ORDER A NEW TRIAL AS WARRANTED UNDER CIV.R. 59(A). {¶36} In his second assignment of error, Mr. Schutte argues the trial court erred in denying his motion for new trial because: (1) “[g]rounds for jury misco nduct exist under Civ.R.59(A)(2) when a jury awards an amount for damages which is unsupported b y the evidence,” and (2)21

“grounds for a new trial are warranted under Civ.R. 59(A)(4) wh ere there is an excessive or inadequate award that appears to have been given under the infl uence of passion or prejudice[.]” We, however, are not persuaded by M r. Schutte’s arguments. Application of L aw to the Record {¶37} Pursuant to Civ.R. 59(A), “[a] new trial may be granted to all or any of the parties and on all or part of the issue s” upon a finding of one of the nine grounds. Mr. Schutte specifically sought a new trial under the fo llowing subsections of Civ.R. 59 (A): (2) Misconduct of the jur y or prevailing party; [and] (4) Excessive or inadequate damages, appearing to have been gi ven under the influence of passion or prejudice[.] “Depending upon the basis of a motion for a new trial, this Cou rt reviews the trial court's decision to grant or deny the motion under either a de novo or an abuse of discretion standard of review.” Designers Choice, Inc. v. Attractive Floorings, LLC , 9th Dist. Lorain No. 19CA011576, 2020- Ohio-4617, ¶ 10, quoting Calame v. Treece , 9th Dist. Wayne No. 07CA0073, 2008-Ohio-4997, ¶ 13, citing Rohde v. Farmer , 23 Ohio St.2d 82 (1970), paragra phs one and two of the syllab us. “[If] the basis of the motion involves a question of law, the de novo standard of review applies, and

when the basis of the motion invol ves the determination of an i ssue left to the trial court's discretion, the abuse of discr etion standard applies.” Dragway 42, L.L.C. v. Kokosing Constr. Co.,

Inc ., 9th Dist. Wayne No. 09CA0073, 2010-Ohio-4657, ¶ 32. {¶38} Additionally, “[w]here there ha s been irregularity or misconduc t on the part of the jury, which might affect its judgment, or improperly influence the verdict, a new trial should be granted. Where, however, it clearly appears that no improper ef fect could arise from the alleged misconduct, the verdi ct should stand.” McDonald v. Akron , 86 Ohio App.3d 209, 210 (9th22

Dist.1993). The quintessential que stion, then, is whether the jury’s misconduct could have an “improper effect on the verdict.” Id

. {¶39} As this Court aptly explained in Pena v. Northeast Ohio Emergency Affiliates, Inc. , 108 Ohio App.3d 96, 104 (9th Dist.1995): [a]n appellate court reviewing whether a trial court abused its discretion in ruling on a motion for a new trial pursuant to Civ.R. 59(A)(4) must co nsider (1) the amount of the verdict, and (2) wh ether the jury considered impr oper evidence, improper argument by counsel, or other inappropriate conduct wh ich had an influence on the jury. To support a finding of passion or preju dice, it must be demonstrated that the jury’s assessment of the damages was so o verwhelmingly disproportionate as to shock reasonable sensibilities. The mere size of the verdict is insufficient to establis h proof of passion or prejudice. (Internal c itation omitted.) {¶40} Here, the jury heard testimony re garding Mr. Fitzgibbon’s healt h relating to stress and kidney stones, dietary issues , sleepless nights, monetary c oncerns with two mortgages, a

marital ultimatu m and counseling, and that Mr. Fitzgibbon’s “mi nd was consumed” due to Mr. Schutte’s interference with the real estate purchase agreement. Further, the stipulated jury instructions stated, as to non economic loss, that: “[n]oneconom ic loss means harm other than economic loss that results from [Mr.] Fitzgibbon’s loss, includ ing, but not limited to, emotional distress or actual harm to reput ation, and any other intangible loss, if they are reasonably to be expected to result from the inte rference.” The jury was also i nstructed as follows: Circumstances in the case may a rouse sympathy for one party or the other. Sympathy is a common human emotion. The law does not expect yo u to be free of such normal reactions. However, the law and your oath as juror s require you to disregard sympathy and not to pe rmit it to influence your verdi ct. You must not be influenced by a ny consideration of sympathy or prejudice. It is your duty to weigh the evidence, to decide the disputed questio n of fact, to apply the instructions of law to your findings, and to render your ve rdict accordingly. Your duty as jurors is to arrive at a fair and just verdict.23

During his closing argument, M r. Fitzgibbon’s counsel also warn ed the jury, in their calculation of noneconomic damages, against being “inflamed by passion and prejudice against Mr. Schutte,” and coming back with a “manife stly excessive” award. {¶41} Based upon the record before us, there is no evidence of irregu larity or misconduct on the part of the jury, or that the jury disregarded the trial court’s instructions in any way. Further, as to Mr. Schutte’s argument that the jury acted with passion o r prejudice in awarding noneconomic damages to Mr. Fitz gibbon, Mr. Schutte has failed t o demonstrate that the “jury’s assessment of the damages was s o overwhelmingly disproportionat e as to shock reasonable sensibilities.” Thus, this Court cannot say the trial court er red in denying Mr. Schutte’s motion

for new trial. {¶42} Mr. Schutte’s second assignm ent of error is overruled.

ASSIGNMENT OF ERROR III

A FURTHER ABUSE OF DISCRETION WAS COMMITTED WHEN THE TRIAL JUDGE REFUSED TO ORDER A REMITTITUR OF THE CLEARLY EXCESSIVE VERDICT AS WARRANTED UNDER THE CIRCUMSTANCES[.] {¶43} In his third assignment or error, Mr. Schutte argues $150,000. 00 in noneconomic damages is “inappropriate” when t he jury only awarded Mr. Fitzg ibbon $9,147.20 for his “actual pecuniary, or economic damages.” Mr. Schutte, for argument’s s ake, further contends one-half of the economic damages, or $4,573.60, should be offered to Mr. Fi tzgibbon for noneconomic damages. For the reasons that f ollow, Mr. Schutte’s argument i s not well-taken. {¶44} “[R]emittitur is merely an alternative to a new trial[.]” Brooks v. Wilson , 98 Ohio App.3d 301, 307 (9th Dist.1994). Where a party has been awarde d “[e]xcessive or inadequate damages, appearing to have been given under the influence of pa ssion or prejudice” it is within a trial court's discretion to grant a new trial. Civ.R. 59(A)(4) . If the trial court is faced with a verdict24

that is manifestly excessive but does not appear to be influenc ed by passion or prejudice, the court may order a remittitur. Lance v. Leohr , 9 Ohio App.3d 297, 298 (9th Dist.1983). This Court reviews a trial court’s decision to deny remittitur for an abus e of discretion. Tesar Industrial Contractors, Inc. v. Republic Steel , 9th Dist. Lorain Nos. 16CA010957, 16CA010960, 2018-Ohio2089, ¶ 31, citing Jemson v. Falls Village Retirement Community, Ltd., 9th Dist. Summit No. 20845, 2002-Ohio-4155, ¶ 26. {¶45} Moreover, “the assessment of dam ages is so thoroughly within th e province of the jury that a reviewing court is not at liberty to disturb the ju ry’s assessment absent an affirmative finding of passion and prejudice or a finding that the award is manifestly excessive.” (Emphasis sic.) Price v. KNL Custom Homes, Inc ., 9th Dist. Summit No. 26968, 2015-Ohio-436, ¶ 46, quoting Moskovitz v. Mt. Sinai Med. Ctr. , 69 Ohio St.3d 638, 654 (1994). See also Tesar Indus. Contractors, Inc . at ¶ 33. {¶46} Here, the jury heard Mr. Fitzgi bbon testify, at length, regardi ng the level of

emotional distress he suffered at the hand of Mr. Schutte regar ding the terminated real estate purchase agreement. Mr. Fitzgibbon admitted “his mind was cons umed,” he had health and sleep issues, had two mortgages, and would potentially lose his marri age if he did not leave his Berna Road residence. On cross-examination, Mr. Fitzgibbon stated he sought counseling through a peer group at work and through his pa stor at church. Mr. Fitzgibbon also described having to borrow money from his sick father-in-la w and his own retirement in ord er to keep afloat. The jury was instructed by the trial court, with no objection from Mr. Schut te, about the prope r calculation of economic and noneconomic damages. As such, based upon this rec ord, we cannot say the trial

court abused its discretion in d enying Mr. Schutte’s motion for remittitur because the jury’s award of noneconomic damages was not man ifestly excessive in light of the testimony and evidence.25

ASSIGNMENT OF ERROR IV THE JURY’S VERDICT AGAINST [ MR. SCHUTTE] IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE[.] {¶47} In his fourth assignment of error, Mr. Schutte argues the jury’ s verdict and award is against the manifest weight of the evidence because: (1) no evidence was presented that Mr. Schutte lacked justification for advising Mr. Woo he would be b rought into the lawsuit; (2) there was no breach of contract due to the mutual release; and (3) $1 50,000.00 in noneconomic damages is not supported by the weight of the evidence, “even if no pas sion or prejudice is shown.” We disagree. {¶48} When reviewing the manifest wei ght of the evidence in a civil c ase, this Court: weighs the evidence and all reas onable inferences, considers th e credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest misca rriage of justice that the [judgment] must be reverse d and a new trial ordered. Coeurvie v. McGonigal , 9th Dist. Summit No. 27981, 2017-Ohio-2634, ¶ 15, citing Eastley v.

Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001). “Ma nifest weight challenges t he burden of persuasion.” Stocker

v. Stocker , 9th Dist. Wayne No. 12CA0021, 2012-Ohio-5821, ¶ 26. “In weig hing the evidence, the court of appeals must always be mindful of the presumption in favor of the finder of fact.” Eastley at ¶ 21. {¶49} Here, as thoroughly discussed a bove, the jury heard testimony a nd viewed the May 20, 2015 Addendum to the real estat e purchase agreement wherein Mr. Fitzgibbon provided Mr.

Woo with detailed information regarding the boundary dispute an d the lawsuits filed by Mr. Schutte against the City and indi vidual neighbors on Berna Road . Although Mr. Woo testified he did not “appreciate” the “extent ” of the issues with the proper ty until speaking with the City Law26

Director, the jury also heard Mr . Woo testify, “the fact that t here was a lawsuit pending and the fact that the [C]ity had vacated some right-of-way,” did not st op him from entering into the real estate purchase agreement. Further, because Mr. Schutte has ex clusive control over which individuals he may sue, Mr. Fitzgibbon could not say Mr. Schutt e would absolutely bring Mr. Woo into the pending lawsuit. Inst ead, Mr. Schutte advised Mr. Woo if he bought the Fitzgibbon property, he would be sued. The only logical reas on for making such a threat was to poison the deal between Mr. Fitzgibbon and M r. Woo, especially in light of the fact Mr. Woo had nothing to

do with Mr. Schutte’s claims a gainst the City, Mr. Fitzgibbon, and Mr. Strittmatter. {¶50} Further, as to the issue of breach, Mr. Schutte agreed to the l anguage in the jury instructions defining “breach” as “when one party fails or refu ses to perform his duty under the contract.” The jury heard tes timony that, on the same day as t he septic inspection and Mr. Schutte’s interference, Mr. Woo decided to terminate the contra ct and advised Mr. Fitzgibbon’s realtor that he would be sending over a mutual release. Mr. Wo o stated Mr. Schutte was the “catalyst” in his decision to ter minate the contract, and, thro ugh a series of communications between the realtors, explained in detail why he wanted “nothin g to do” with the Fitzgibbon property. As such, based upon this testimony, the jury could r easonably believe Mr. Woo refused to perform his duty to close on the Fitzgibbon property based u pon Mr. Schutte’s behavior and comments at the septic inspection. {¶51} Finally, as to the issue of noneconomic damages, the jury obvio usly found Mr. Fitzgibbon’s testimony credible reg arding the emotional distres s he suffered due to the termination of the real estate purchase agreement with Mr. Woo by way of Mr . Schutte’s interference. Importantly, Mr. Schutte agreed, after hearing all of the testi mony in this matter, to instruct the jury about the difference betw een economic and noneconomic dama ges, and the proper way to27

calculate each type of damage. Common sense then dictates the jury could not have clearly lost its way in considering Mr. Fitz gibbon’s emotional distress in a warding noneconomic damages in the amount of $150,000.00, which are we ll within statutory limi ts. {¶52} Based upon this record, we cannot say the jury clearly lost its way and created such a manifest miscarriage of justi ce that the judgment must be rev ersed and a new trial ordered. {¶53} Mr. Schutte’s fourth assignm ent of error is overruled.

III. {¶54} For the reasons stated above, Mr . Schutte’s four assignments of error are overruled. The Judgment of the Summit County Court of Common Pleas is affi rmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State o f Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file sta mped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30.28

Costs taxed to Appellant.

B ETTY SUTTON FOR THE COURT

CARR, P. J. CALLAHAN, J. CONCUR.

APPEARANCES: PAUL W. FLOWERS and LOUIS E. GRUBE, Attorneys at Law, for Appel lant.

BRYAN P. O’MALLEY and DEAN M. VALOR E, Attorneys at Law, for App ellee.