Vinci v. Ceraolo , 79 Ohio App. 3d 640 ( 1992 )

I concur in the majority's disposition of the first three assignments of error in case No. 60100, however, I respectfully dissent from the majority opinion with regard to the fourth and fifth assignments of error in case No. 60100 and both assignments of error in case No. 61000, as these all have merit.

In case No. 60100, appellant's fourth assignment of error challenges the trial court's award of punitive damages. Appellant contends that since the trial court made no award of compensatory damages, an award of punitive damages was improper. Appellant's argument is persuasive: in overruling this assignment of error, the majority opinion completely overlooksstare decisis.

In the case sub judice, although appellees prayed for compensatory damages, the trial court specifically made the following finding:

"This Court further finds that there was no credible evidence presented that establishes that there is money owing from either party to the other and therefore Defendant's claim of loans to Plaintiffs under Defendant's counterclaim in Case No. 170039 should be dismissed as well as Plaintiffs' claims for an accounting of funds under Counts III and IV of it's [sic] Complaint in case No. 171308 should also be dismissed."

The trial court then entered the following judgment:

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that judgment is hereby rendered in favor of the Plaintiff 1540 Columbus Corp. under Case No. 171308 as follows:

"1. As to Count I, Plaintiff 1540 Columbus Corp. is granted a permanent injunction against Defendant Ross Ceraolo restraining him from holding himself out to others in any manner as an agent, officer, director or owner of Plaintiff 1540 Columbus Corp.

"2. Judgment is rendered in favor of the Plaintiff 1540 Columbus Corp. under Count II of the Complaint in Case No. 171308 for punitive damages in the amount of Seven Thousand Five Hundred Dollars ($7,500.00) and additional damages in reasonable attorney's fees, the amount of which shall be submitted by counsel for Plaintiff and ruled on by this Court by supplemental entry."

As can be seen from the foregoing judgment entry, the trial court found appellees had sustained no actual damages. The Supreme Court of Ohio has expressly stated that punitive damages may not be awarded in the absence of proof of actual damages.Bishop v. Grdina (1985), 20 Ohio St. 3d 26, 20 OBR 213,485 N.E.2d 704. In the case of Preston v. Murty (1987), 32 Ohio St. 3d 334, 512 N.E.2d 1174, cited by the majority in the casesub judice in support of an award of punitive damages, the jury first made an award of compensatory damages. Therefore, that case is not applicable to the facts herein.

Furthermore, in Bishop, the Supreme Court specifically stated as follows:

"Punitive damages are awarded as punishment for causing compensable harm and as a deterrent against similar action in the future. No civil cause of action in this state may be maintained simply for punitive damages." (Citation omitted.)Id., 20 Ohio St.3d at 28, 20 OBR at 214, 485 N.E.2d at 705.

Thus, it has long been the practice and the requirement for the trier of fact to separately state compensatory damages and punitive damages. In the case sub judice, appellee 1540 Columbus Corp. claimed actual damages as a result of appellant's actions and prayed for both compensatory and punitive damages. However, the trial court found no evidence of actual damages. It merely granted appellee's prayer for an injunction. It then awarded punitive damages to appellee. This was clearly improper underBishop, supra.

Accordingly, appellant's fourth assignment of error should be sustained.

Appellant's fifth assignment of error in case No. 60100 and two assignments of error in case No. 61000 are interrelated as they all deal with aspects of the trial court's award of attorney fees and costs to appellees. The majority opinion states that none of these assignments of error has merit. Once again, I disagree.

The majority opinion in the case sub judice, although stating the general rule regarding an award of attorney fees, proceeds to arbitrarily determine that the trial court's award of attorney fees to appellee was an award of compensatory damages. This determination is made despite the fact that the complaintdoes not make a request for attorney fees. Moreover, the award of attorney fees against appellant in the case sub judice was improper for the following reasons, viz., (1) attorney fees are not recoverable where an award of punitive damages is not properly made, Carr v. Charter Natl. Life Ins. Co. (1986),22 Ohio St. 3d 11, 22 OBR 9, 488 N.E.2d 199; (2) attorney fees are not recoverable absent a statutory provision allowing attorney fees unless the party against whom the fees are taxed was found to have acted in bad faith, Buller v. Respicare, Inc. (1987),39 Ohio App. 3d 17, 528 N.E.2d 1282; and (3) the fact that appellant "interposed a defense which was ultimately overruled does not, in and of itself, demonstrate bad faith." State ex rel. Kabatekv. Stackhouse (1983), 6 Ohio St. 3d 55, 56, 6 OBR 73, 74,451 N.E.2d 248, 249.

In Columbus Finance, Inc. v. Howard (1975), 42 Ohio St. 2d 178,183, 71 O.O.2d 174, 177, 327 N.E.2d 654, 658, the Supreme Court stated the general rule thusly: "If punitive damages are proper, the aggrieved party may also recover reasonable attorney fees." However, this rule must be read in conjunction withBishop v. Grdina, supra. Thus, since punitive damages were not properly awarded in the case sub judice, attorney fees were also not properly awarded. In fact, none of the cases relied upon by the majority can be cited for the proposition that attorney fees can be awarded without an award of compensatory and punitive damages.

Secondly, in the case sub judice, the trial court awarded punitive damages solely on the ground that "the stock certificates upon which defendant Ross Ceraolo relies to establish his claim of ownership in 1540 Columbus Corp. are in fact forgeries * * *."

The judgment entry of the trial court thus states as follows:

"Further, this Court finds that the acts of Ross Ceraolo in claiming ownership through forged stock certificates to 1540 Columbus Corp. were intentional and malicious and that punitive damages should be granted in favor of the Plaintiff 1540 Columbus Corp. in the Case No. 171308 in the amount of Seven Thousand Five Hundred dollars ($7,500.00) based on a penalty of Two Thousand Five Hundred Dollars ($2,500.00) for each stock certificate."

However, the trial court's determination to award punitive damages on this ground was improper, since appellees' complaint never alleged nor did appellees argue in the trial court that appellant committed forgery. Moreover, even if appellant did commit forgery, this court has expressly found that forgery does not amount to the kind of "egregious conduct" which absent a statutory provision justifies an award of attorney fees.

In Patio Enclosures, Inc. v. Haire (Apr. 11, 1985), Cuyahoga App. No. 48862, unreported, 1985 WL 7951, appellant assigned as error the trial court's refusal to grant an award of attorney fees in an action against its employee who had forged customers' signatures on contracts. Responding to appellant's argument that an award of attorney fees was proper in such a case, this court stated the following:

"It is well-settled that the award of attorney fees is appropriate in two specific instances. The first, where statutorily authorized, is not applicable here. The other instance in which the award of attorney fees is authorized is in situations when punitive damages would be appropriate, i.e. the conduct is so egregious as to constitute fraud, malice, bad faith or wantonness. Cf. Columbus Finance v. Howard (1975), 42 Ohio St. 2d 178 [71 O.O.2d 174, 327 N.E.2d 654]; Village of Oakwood v.Makar (1983), 11 Ohio App. 3d 46 [11 OBR 79, 463 N.E.2d 61].

"Appellant's reliance on Locafrance United States Corp. v.Interstate Dist. Serv., Inc. (1983), 6 Ohio St. 3d 198 [6 OBR 252, 451 N.E.2d 1222], is misplaced. Appellant maintains that that case authorized the award of attorney fees where the conduct was willful, intentional and deliberate. There, the Supreme Court cited Detling v. Chockley (1982), 70 Ohio St. 2d 134,138 [24 O.O.3d 239, 241, 436 N.E.2d 208, 210], in which it stated that actual malice signifies, inter alia, intent, deliberation or a willful design to do another injury. There was no evidence presented here to show intent, deliberation or a willful design to do injury to Patio in defendant Haire's conduct.

"Additionally, the Logsdon [v. Graham Ford Co. (1978),54 Ohio St. 2d 336, 8 O.O.3d 349, 376 N.E.2d 1333] court's example of the kind of egregious fraud that would warrant punitive damages involved a jeweler who represented a watch as new although the purchaser had to return it five times in two months for repairs. Testimony of two experts revealed that the watchcase was new but the working parts were at least 25 years old and beyond repair. Defendant Haire's insistence to his employer that the signatures were genuine cannot be equated with the example cited by the Logsdon court." (Emphasis in original.)

Finally, the court in Buller v. Respicare, Inc. (1987),39 Ohio App. 3d 17, 17, 528 N.E.2d 1282, 1283, made the following circumspect observation:

"In the facts before us, neither party has demonstrated that the other party acted so wantonly or maliciously as to warrant an award of attorney fees. Neither party has proven the requisite `bad faith' to qualify as an exception to the `American Rule.' Furthermore, if the general rule is to be modified, extended or otherwise changed, this must be accomplished by the Supreme Court. Likewise, if an additional exception is to be engrafted, it must be done by the Supreme Court, not an intermediate appellate court which is bound by Supreme Court decisions."

Therefore, the trial court erred in awarding attorney fees to appellees and appellant's fifth assignment of error in case No. 60100 should be sustained.

Furthermore, as appellant argues in his first assignment of error in case No. 61000, review of the record in the case subjudice also reveals the trial court did not have sufficient evidence pertaining to all the relevant factors which must be considered before making an award of attorney fees. Swanson v.Swanson (1976), 48 Ohio App. 2d 85, 2 O.O.3d 65, 355 N.E.2d 894. The only evidence regarding fees was counsel's itemized document and an attorney from counsel's office who stated he hadcursorily reviewed the case file. There was no evidence concerning "`novelty of issues raised, * * * necessary skill to pursue the course of action; * * * customary fees in the locality * * *; and experience, reputation and ability of counsel.'" Yarber v. Cooper (1988), 61 Ohio App. 3d 609, 615,573 N.E.2d 713, 717.

Appellant also assigned as error in case No. 61000 the trial court's award of other litigation costs to appellees. I agree that in this the trial court also erred, since, generally, deposition costs are expenses of litigation to be borne by the parties taking those depositions. Barrett v. Singer Co. (1979),60 Ohio St. 2d 7, 14 O.O.3d 122, 396 N.E.2d 218; Rice v. DudickCorrosion-Proof, Inc. (1989), 57 Ohio App. 3d 156,567 N.E.2d 315. It has also been held "[a] party's expert witness' fee is not taxable as costs to be charged against the losing party."Gold v. Orr Felt Co. (1985), 21 Ohio App. 3d 214, 21 OBR 228,487 N.E.2d 347, syllabus.

In support of its finding to the contrary, the majority opinion cites Guardado v. Newton Buying Corp. (Dec. 13, 1990), Cuyahoga App. No. 57798, unreported, 1990 WL 204110, for the proposition that this award was within the trial court's discretion. However, in Guardado, the cost concerned the videotaped deposition of a witness crucial to the case who wasunavailable for trial. That was not the situation in the casesub judice. Guardado is further distinguishable from the casesub judice since despite allowing the trial court the discretion to consider the deposition to be a taxable litigation expense, pursuant to local rule of superintendence applicable to videotape depositions, this court determined the prevailing party was required to bear a portion of the cost of the deposition. In the case sub judice, the trial court merely stated in its "Supplemental Judgment Entry" that in addition to attorney fees, appellees were entitled to

"* * * the incidental costs related to such fees and litigation consisting of Court Reporter fees, costs of depositions and expert testimony amounting to Three Thousand Nine Hundred and Twenty-One and 49/100 Dollars ($3,921.49), or a total of Thirty-nine Thousand Six Hundred Sixty-Three and 24/100 Dollars ($39,663.24), with the exception that such Judgment shall also include the filing fee of Plaintiff 1540 Columbus Corp. * * *"

A review of the record in the case sub judice thus clearly reveals the trial court's award of damages was an abuse of its discretion. Therefore, this case should not be affirmed in its entirety.

Accordingly, I would strike the award of punitive damages and attorney fees and enter final judgment for appellant based upon a finding that appellant's fourth and fifth assignments of error in case No. 60100 have merit. The trial court abused its discretion in the case sub judice and improperly awarded punitive damages and attorney fees contrary to the well-established law, completely ignoring the stare decisis governing these issues.

In case No. 61000 I would strike the award of attorney fees on the basis there was insufficient evidence to sustain the attorney fees awarded and enter final judgment on this issue for appellant. In addition, I would reverse and remand to the trial court for a redetermination of expenses based upon reasonableness and stare decisis since the trial court abused its discretion in making such an award.