Here are the facts as laid out by the court:
“In November 2002, Jeff Eysoldt opened account number 1165490 with Go Daddy and transferred his domain name, Eysoldt.com, into that account.
When he set up the account, he agreed to the terms of Go Daddy‟s Domain Name Registration Agreement, which was subsequently replaced by Go Daddy‟s Universal Terms of Service Agreement (“UTOS”).
Though he could have opened multiple accounts, Jeff used account number 1165490 to register various personal and business domain names and the associated email accounts. He paid fees for those services with his credit card.
He also opened email accounts for his sister, Jill, and his brother, Mark. He helped Jill develop a website for her business, Good Karma Cookies. He locked all his domain names, which, according to Go Daddy, meant that the only way a third party could access any of the domain names was if the third party knew Jeff‟s user name and password.
Subsequently, Jeff began a business relationship with the owners of Proscan Imaging to operate cosmetic surgery centers called Rejuvenate Aesthetic Laser Centers (“Rejuvenate”).
During the negotiations, he registered the domain name Myrejuvenate.com through his Go Daddy account. He paid the monthly fee forthe website and its associated email through an automatic monthly withdrawal from Rejuvenate‟s checking account.
Ruth Wallace was ProScan‟s chief financial officer and a minority owner of Rejuvenate. When Rejuvenate did not perform as anticipated, the relationship between Jeff and his business partners began to sour. Jeff and his partners began negotiations to remove Jeff from the business. But they had difficulty coming to an agreement, and Jeff refused to turn the website over to Rejuvenate.
Consequently, Wallace called Go Daddy‟s customer service. Daniel Baranowsky, a call-center employee, randomly answered her call. Wallace told Baranowsky that she wanted to put Myrejuvinate.com into her name. Baranowsky testified that he had been trained that when a third party asked to change a domain name, the registrant was required to request the change.
Wallace did not know Jeff‟s user name or password. Baranowsky asked Wallace to validate the account by providing the last four to six digits of the method of payment for the account. Since Wallace was the chief financial officer of ProScan, she knew the last four digits of the bank account number used to pay for the Myrejuvenate.com website.
Baronowsky testified that validating an account only meant that he, as a customer-service representative, could access the account on his computer.
When Baronowsky accessed the account after speaking to Wallace, he saw a screen that showed that Jeff was the owner of account number 1165490. It also listed his address, phone number, and e-mail address.
Jeff testified that he had contacted Go Daddy on a number of occasions because he was worried that people associated with ProScan might try to steal his account.
A representative from Go Daddy had told him that no one could take his account unless that person had his user name and password or PIN. Jeff stated that nobody but him knew the user name and password for account number 1165490.
Baranowsky testified that he had looked through the log of telephone contacts during his conversation with Wallace and would have seen Jeff‟s contacts with Go Daddy.
Baranowsky walked Wallace through every step that she needed to complete to take control of all of account number 1165490, including all the domain names and email accounts that Jeff had paid for over the years. Baranowsky knew that he was transferring complete control of all the domain names to Wallace, even though she had only inquired about Myrejuvenate.com, and that Jeff would be completely excluded from his own account.
Wallace was given access to Jeff and his family‟s email accounts. Those accounts included communications with doctors, lawyers, the Internal Revenue Service, and others. They contained medical records, credit card numbers, bank records and other private information.
Jeff first learned that something was wrong when he received an email from Go Daddy informing him that his account had been changed. He tried to log in and saw that he was completely excluded from the account. He immediately contacted Go Daddy, and a representative told him that if he thought that his account had been taken fraudulently, he could fill out a form called “Request for Change of Account/Email Update” and fax it, along with a copy of his driver‟s license, to Go Daddy.
Jeff sent Go Daddy the form and a photocopy of his driver‟s license. The faxed form was readable and clearly showed his name and address. Nevertheless, Go Daddy sent him an email stating that it could not identify the person pictured on the copy of the driver‟s license it had received. It went on to state that “our legal department requires a clear, readable copy of government-issued photo identification in order for us to make any changes to an account.” It told him to scan or take a digital photograph of his photo identification and email it to Go Daddy. Jeff did not do so, instead filing this lawsuit.
When Wallace discovered that Jeff and his family‟s websites and emailaccounts were included in the account that Baranowsky had given her control over, she sent an email to Baronowsky asking him to transfer everything but Myrejuvenate.com back to Jeff. Baranowsky did not do so. Instead, he ignored the email. Go Daddy never allowed Jeff to access the account and never returned control of his and his family‟s websites or email accounts. Since Jeff could no longer access the account, he stopped paying for it.
The Eysoldts filed a complaint for invasion of privacy and conversion against Go Daddy. The trial court overruled Go Daddy‟s motion for summary judgment, and the case proceeded to a jury trial.
The jury found in favor of the Eysoldts and awarded each of them compensatory damages on all their claims.
It also awarded each of them punitive damages.
Go Daddy filed motions for directed verdicts, for judgment notwithstanding the verdicts (“JNOV”), and for a new trial. The trial court granted Go Daddy‟s motion for a directed verdict as to the punitive damages, concluding that the evidence did not show actual malice. It overruled the motion for directed verdicts in all other respects, as well as the other motions. Both parties have filed timely appeals from the trial court‟s judgment.
Go Daddy first argues that the Eysoldts could not recover on their claims for conversion and invasion of privacy under the economic-loss doctrine. The economic-loss doctrine generally prevents recovery of damages in tort for purely economic loss.
The Eysoldts argue that it only applies in negligence cases, not in cases involving intentional torts. We agree.
Here, the tort claims went beyond the failure to perform promises contained in the contract; they involved separate injuries.
We hold that the economic-loss doctrine does not apply in this case because the causes of actions are for intentional torts. Consequently, the trial court did not err in overruling Go Daddy‟s various motions on that basis.
Go Daddy next argues that the trial court should have granted its motions relating to the Eysoldts‟ conversion claims because Ohio law does not recognize a cause of action for conversion of intangible property.
In this case, the converted property was readily identifiable. It was Jeff‟s account with Go Daddy and its accompanying domain names and email accounts.
At least one federal court has held that domain names are intangible property subject to conversion.
Other federal courts have held that emails and computer programs can be converted. Consequently, we hold that the trial court did not err in submitting the conversion claims to the jury.
Next, Go Daddy contends that the trial court should have granted its motion for directed verdicts as to Mark and Jill‟s conversion claims because they testified that they lacked any ownership interest in or control over the account.Conversion is the wrongful exercise of dominion over property in exclusion of tte owner‟s right, or the withholding of property from the owner‟s possession under claim inconsistent with the owner‟s rights.
While Jill and Mark acknowledged that the account was registered to Jeff, the evidence showed that each of them had email accounts set up within Jeff‟s account.
Additionally, Jeff and Jill had created content for Jill‟s website for her business, Good Karma Cookies.
When Go Daddy gave control of the account to Wallace and ProScan, Jill could not access her website. Likewise, Jill and Mark could not access their email accounts.
Thus, as the trial court stated, “there was sufficient evidence produced at trial that would support the jury finding that Go Daddy converted the conditional and private email communications of Mark and Jill Eysoldt that were contained in the GoDaddy account.”
Finally, Go Daddy contends that the Eysoldts‟ invasion-of-privacy claims should have failed because they presented no evidence that Go Daddy had ever accessed or read any of their emails. The Eysoldts each raised an invasion-of- seclusion type of invasion-of-privacy claim.
Go Daddy took private domain names and private email accounts and turned them over to a third party who had no right to access them and who easily could have viewed their contents.””
The decision did not disclose what damages were awarded to the plaintiff’s.