dissenting. So much for the old adage that cheaters never prosper. After the majority’s opinion today, it is apparent that not only do they prosper, but they may be entided to punitive damages in addition to all the prosperity. There was no substantial evidence presented at trial to support an award of punitive damages to Appellant Ashel Gordon. To the contrary, there was evidence presented to the jury, including Gordon’s own admissions, which demonstrated that Gordon was not entided to the entire proceeds of the check and that this cause of action resulted only because Gordon’s former partner, Wallace, happened to catch Gordon while he was attempting to keep the proceeds of the check all to himself. The trial judge said it best when he stated:
[M]y conscience tells me that Mr. Gordon is trying to make — is already doubling his money on this deal. And to — to allow for him to shoot for punitive damages on top of that, after he has been frustrated in his attempt to possibly avoid his liability to Mr. — Mr. Wallace, that I can’t in good conscience go with that.
The majority opinion mischaracterizes the trial testimony when it states that substantial evidence existed to present the issue of punitive damages to the jury. The majority is correct that both Gordon and his wife testified that it was their understanding that the partnership had been bought out by Gordon, and that, at the time, Wallace was not entided to half of the money. The majority neglects to point out, however, that during the trial, on cross-examination, Gordon testified that ultimately he agreed that the check did not belong entirely to him. There was a further admission by Gordon that the Co-op had in the interim paid one-half of the proceeds of the check to him and the other half to Wallace. Thus, the trial judge was correct in his observation that Gordon had already gained all that he was rightfully entided to when the Co-op paid him his share of the proceeds. The fact that he received the other half of the proceeds of the check when Planters moved for a directed verdict against itself demonstrates that Gordon had in fact gained twice the amount to which he was ever entided.
The testimony elicited through Gordon’s own witnesses does not support his contention that Wallace, and Planters as Wallace’s employer, maliciously and intentionally caused damage to him. Virginia Woodward, the Stuttgart Co-op bookkeeper, stated that Wallace called her on September 27, 1990, and asked her if the check to “Gordon Wallace Farms” had cleared the bank. She stated that she did not know, but she would call her bank and find out, and then call Wallace. When she found out the check had cleared, she called Wallace and told him. She stated that Wallace did not identify himself as a bank officer with Planters. She stated that she next heard from an employee of First National Bank, informing her that there was a dispute among the parties to the check, and that the Co-op could bring the check back to the bank for credit if the Coop desired to do so. She stated that the bank employee told her it was up to the Co-op to do what it wished in the situation, since the check had already been paid. She stated that ultimately, she decided that it would be best to return the check to First National Bank for credit. She verified that she had no input from Wallace in her decision, and that Wallace said nothing that influenced her in any way.
Jack Barber, the loan officer at First National Bank, stated that he knew Wallace through some bank seminars and classes that they had attended together. He stated that he recalled being contacted by Wallace concerning the check. He stated that the purpose of Wallace’s call was to inform him that a check had been deposited in Planters bank from the Stuttgart Co-op, payable to a farming partnership that had been dissolved for a couple of years. He stated that Wallace informed him that he (Wallace) had personal information that the entity was dissolved, because he had been involved in the partnership. He stated that Wallace did not ask him to do anything about the check, only that he wanted to inform Barber that a check had been written to a dissolved partnership so that Barber could inform its customer, the Co-op. Barber stated that to the best of his recollection, Wallace never called him about the check again.
Donna Harr, the bookkeeper at First National Bank, stated that she had been on vacation when the information initially came in about the check. She stated that when she returned, she was notified that the Co-op wanted to return the check because it questioned the propriety of the endorsement. She stated that it would have been her decision whether or not to return the check to Planters as unpaid. She further stated that in her opinion the endorsement was improper, because it lacked an individual signature by the person who signed “Gordon Wallace Farms” on the back of the check, and because there was no indication from the endorsement whether the person signing the check was authorized to endorse such checks. She further stated that she had not heard the name of “Lloyd Earl Wallace” connected with the check, and that she did not even know who Wallace was.
Bonnie Wilbanks, the bookkeeper at Planters, stated that when she received the check, now marked “Refer to Maker,” back from First National Bank, she asked Wallace, her supervisor, what to do with it. She stated that Wallace told her it was a return item, that it would have to be returned to the person who deposited it, and that there was a problem with it. She further stated that she knew that Wallace was the Wallace referred to in “Gordon Wallace Farms,” but that she did not consider the situation as one in which Wallace had a personal interest in the proceeds of the check. She stated that when she asked Wallace what she should do with the check, Larry Bauer, the bank’s president, was present in the room. She stated that it was normal practice that when the bank received a dishonored check it would be charged back to the customer’s account.
Gordon testified that after his wife had discovered that their bank account was overdrawn due to the returned check from the Stuttgart Co-op, he went to the bank to talk to the president, Larry Bauer. Gordon stated that when he approached Bauer to ask him what happened, he was told by Bauer that he would have to check with Wallace, because the situation was between Gordon and Wallace. Gordon did, however, state that he received half of the funds due to him from the Co-op, and that the other half went to Wallace. It was at that point that Gordon acknowledged that he was not entitled to all of that money to the detriment of his former partner, Wallace.
None of the actions taken by Wallace, not to mention any actions which may have been attributable to Planters, demonstrate any malice or deliberate intent to harm or injure Gordon. Moreover, Gordon presented no testimony that he was in fact injured by the charge-back, other than the fact that he was out half the proceeds of the check, money which he was later paid by the Coop. There was no testimony presented concerning the amount of money that Gordon’s bank account was overdrawn due to the charge-back. In fact, during oral argument before this court, it was pointed out that none of the checks written by Gordon during that interim period were returned to him for reasons of insufficient funds; Planters covered any amount that the account was overdrawn. In short, I can see no justification for actual damages, let alone punitive damages.
The evidence recited above demonstrates nothing more than that Wallace contested Gordon’s actions in cashing a check made payable to the dissolved partnership and attempting to deprive Wallace of his share of the money. Wallace was attempting to defend his own interest in the proceeds of the check. Such defensive action hardly amounts to malicious, intentional, or willful desire to cause injury to Gordon. Gordon has already received a windfall from this cause of action to the tune of double his money. For this court to sanction his behavior by allowing him a chance to receive punitive damages, which he seeks in the amount of $150,000.00, is unconscionable.
For all of the above reasons, I respectfully dissent.