Ohio Appellate Reports

Unpublished

GRADY v. AMT GROUP, Unpublished Decision (12-14-2006)
2006-Ohio-6597 FRANCIS X. GRADY, ET AL.,
Plaintiffs-Appellants, v. AMT GROUP, INC.,
Defendant-Appellee. No. 87833. Court of Appeals of Ohio,
Eighth District, Cuyahoga County. Released: December 14,
2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Civil Appeal from the Cuyahoga County Common
Pleas Court Case No. CV-57166.

ATTORNEYS FOR APPELLANT: Joseph R. Compoli, James R.
Goodluck, OH.

ATTORNEY FOR APPELLEE: AMT Group, Inc., Pro Se, NJ.

BEFORE: CORRIGAN, J., SWEENEY, P.J., AND GALLAGHER, J.

JUDGMENT: AFFIRMED

MICHAEL J. CORRIGAN, JUDGE[fn*]

[fn*] (Sitting by Assignment: Judge Michael J. Corrigan,
Retired, of the Eighth District Court of Appeals.)

This case came to be heard upon the
accelerated calendar pursuant to App.R. 11.1 and Loc.R.
11.1, the record from the Cuyahoga County Court of Common
Pleas and the briefs of counsel.

The court entered a default judgment in favor
of plaintiffs Francis X. Grady and Grady & Associates
(collectively referred to as “Grady”), on their claim that
defendant AMT Group, Inc. violated the Telephone Consumer
Protection Act, Section 227, Title 47, U.S. Code, by
sending them unsolicited advertisements by fax machine. The
court found 14 separate violations of the Act, and awarded
damages of $7,000. Grady appeals, claiming that the court
erred by not finding that there were 16 violations and
further erred by not concluding that the faxes were sent
willfully, thus entitling him to treble damages under the
Act.

We find no error with the court’s judgment, as
the exhibits attached to Grady’s complaint show that three
of the faxes were received on January 1, 2005, at 10:56:34
p.m. While we could assume, without deciding, that separate
faxes sent on the same date might constitute separate
violations of the Act, we have no difficulty in deciding
that faxes showing the same date and time are not proof of
separate violations. Hence, the court correctly entered
judgment for only one violation on January 1, 2005. In
reaching this conclusion, we reject Grady’s argument that
AMT’s failure to respond to the complaint somehow
constituted an admission of 16 violations for purposes of
Civ.R. 8(D). Grady’s evidence contradicted his allegations,
and that evidence is controlling.

We also find the court did not err by refusing
to award treble damages under Section 227(b)(3), Title 47,
U.S. Code. In doing so, we again reject Grady’s argument
that AMT’s failure to deny the allegations of the complaint
constituted a Civ.R. 8(D) admission of willful conduct
under the Act. See McIntosh v. Willis, Butler App. No.
CA2004-03-076, 2005-Ohio-1925.

Judgment affirmed.

It is ordered that appellee recover of appellants its costs
herein taxed.

The court finds there were reasonable grounds for this
appeal.

It is ordered that a special mandate issue out of this
court directing the Cuyahoga County Common Pleas Court to
carry this judgment into execution.

A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.

JAMES J. SWEENEY, P.J., and SEAN C. GALLAGHER, J., CONCUR