Verdict Against Rick Dees : Law: More than $10 million in damages in ‘Top 40’ radio suit is awarded to ex-partner of KIIS deejay and his business manager.

A Los Angeles Superior Court jury determined Tuesday that radio and television personality Rick Dees and his business manager acted with “malice and oppression” in diverting profits from Dees’ Top 40 countdown program and awarded the pair’s former business partner a total of more than $10 million.

Cos Cappellino was awarded $3.5 million in compensatory damages for profits the jury decided were owed Cappellino since the syndicated radio program’s debut in 1983. The jury also ruled that Dees and his business manager, Walter A. Clark, owed Cappellino an additional $6.8 million in punitive damages, because the two “siphoned off” money owed to Cappellino, according to court documents. Of that sum, Dees was ordered to pay Cappellino $3.1 million and Clark $3.7 million.

Dees and Clark plan to appeal the decision, said their attorney, David R. Evans. He called the multimillion-dollar award “outrageous and shocking” and said he expected it to be overturned.

Jury foreman John McIntosh said Clark and Dees’ testimony during the monthlong trial was “not credible.” He cited Clark’s testimony as the main factor in deciding that the pair breached their fiduciary responsibility to Cappellino. The jury deliberated 4 1/2 days.

“We felt that Wally Clark was the main culprit. . . ,” McIntosh said. “Rick kind of just went along . . . Wally was the mastermind. He was the money sleuth. So we used that in the judgment against him.”

According to court documents, Dees, a top-rated morning personality at KIIS-FM and KIIS-AM, Clark, who was then general manager of radio station KIIS, and Cappellino, then the general sales manager of KIIS, entered into a partnership in 1983 to “produce, develop, own, market, license, distribute and otherwise deal in a radio show that was tentatively called ‘Rick Dees’ Weekly Top 40.’ ”

The partnership was to last five years and Dees was to get 50% of the profits and Clark and Cappellino would each receive 25%, according to Henry D. Gradstein, Cappellino’s attorney.

“The show became fantastically successful, generating millions of dollars,” court documents filed by Gradstein said. “However, during the five-year term, defendants Wally Clark and Rick Dees secretly established another corporation, CD Productions Inc., and secretly diverted $2,469,815.51 in connection with the ‘Rick Dees’ Weekly Top 40’ radio program.”

That figure was determined to be Cappellino’s percentage of an $11-million deal struck with the radio show’s distributors in 1986, Gradstein said in an interview. Dees and Clark struck the deal secretly, according to court documents, and failed to give Cappellino his 25% share of the profits.

Evans denied those allegations and also disputed Cappellino’s role as a co-creator of the program. “He was just a salesman,” Evans said. The notion of secret partnerships excluding Cappellino was “fantasy,” he added.