[Cite as Sivit v. Village Green of Beachwood, L.P., 2016-Ohio-2940.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 103340 and 103498




                                CARLOS SIVIT, ET AL.
                                                            PLAINTIFFS-APPELLEES
                                                     vs.

      VILLAGE GREEN OF BEACHWOOD, L.P., ET AL.

                                                            DEFENDANTS-APPELLANTS




                              JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART
                             AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-08-671776

        BEFORE:          E.A. Gallagher, J., Keough, P.J. and Blackmon, J.

        RELEASED AND JOURNALIZED:                           May 12, 2016
ATTORNEYS FOR APPELLANT
VILLAGE GREEN OF BEACHWOOD, L.P.

Marvin L. Karp
Lawrence D. Pollack
Ulmer & Berne L.L.P.
Skylight Office Tower, Suite 1100
1660 West 2nd Street
Cleveland, Ohio 44113-1448

ATTORNEYS FOR APPELLANT
DAVID GRUHIN AND SYDNEY SIGLER GRUHIN

Michael H. Gruhin
Gruhin & Gruhin, L.L.C.
24100 Chagrin Boulevard, Suite 250
Beachwood, Ohio 44122

ATTORNEYS FOR APPELLEES CARLOS SIVIT, SONYA PACE, JASON
EDWARDS, RENEE EDWARDS, NATALIE RUDD, PRATHIBHA MARATHE,
HALLIE GELB, MOHAMMAD MARWALI, SELVY PANGKEY, LUCIANA
ARMAGANIJAN AND MITCHELL ROSENBERG

Joseph W. Diemert, Jr.
Daniel A. Powell
Diemert & Associates Co., L.P.A.
1360 S.O.M. Center Road
Cleveland, Ohio 44124
EILEEN A. GALLAGHER, J.:

       {¶1} In this consolidated appeal, defendant-appellant Village Green of

Beachwood, L.P. (“Village Green”) and plaintiffs-appellants David Gruhin and Sydney

Sigler Gruhin (the “Gruhins”) appeal from orders of the trial court (1) awarding the

Gruhins and plaintiffs-appellees Carlos Sivit, Sonya Pace, Jason Edwards, Renee

Edwards, Natalie Rudd, Prathibha Marathe, Hallie Gelb, Mohammad Marwali, Selvy

Pangkey, Luciana Armaganijan and Mitchell Rosenberg (collectively, the “Sivit

plaintiffs”) 1 a total of $1,537,555.90 in punitive damages and (2) allocating those

punitive damages equally among the Gruhins and nine other groups of individual

plaintiffs (the “individual plaintiff groups”), i.e., allocating $153,755.59 in punitive

damages to each individual plaintiff group.2 Village Green claims that the trial court’s

punitive damages award exceeds the cap on punitive damages set forth in R.C.

2315.21(D)(2)(a). The Gruhins contend that the trial court’s per capita allocation of the

punitive damages award violates R.C. 2315.21(D)(2)(a) and that, based on the statute,

they should have been allocated a share of the punitive damages award equal to two times

their compensatory damages, i.e., $222,466 instead of $153,755.59. For the reasons that


           The Gruhins and the Sivit plaintiffs are collectively referred to herein as the “individual
       1


plaintiffs.” All of the individual plaintiffs were initially represented by the Diemert law firm;
however, after an issue arose with respect to the allocation of the punitive damages award, the
Gruhins terminated their relationship with that firm and retained separate counsel.

         The 13 individual plaintiffs were grouped into 10 individual plaintiff groups based on the 10
       2


apartment units they occupied, as follows: Carlos Sivit, Sonya Pace, Jason and Renee Edwards,
Natalie Rudd, Prathibha Marathe, Hallie Gelb, Mohammad Marwali and Selvy Pangkey, Luciana
Armaganijan, Mitchell Rosenberg and the Gruhins.
follow, we affirm the trial court’s judgment in part, reverse the trial court’s judgment in

part and remand the case for the trial court to enter an order setting the total amount of

punitive damages awarded to the individual plaintiffs at $1,194,294, to be allocated

equally among the ten individual plaintiff groups, i.e., $119,429.40 to each of the ten

individual plaintiff groups.

       Factual and Procedural Background

       {¶2} Following a 2007 fire in the Village Green apartment complex in

Beachwood, Ohio, the individual plaintiffs — tenants residing in ten apartment units that

sustained property damage in the fire — filed suit against Village Green and Forest City

Residential Management, Inc. (“FCRM”) (collectively, the “defendants”).                            The

individual plaintiffs alleged that the building had been negligently constructed and

negligently maintained in violation of R.C. Chapter 5321, the Ohio Landlord-Tenant Act,

and that this negligence caused the fire. Several subrogated insurers (collectively, the

“insurer plaintiffs”) filed separate lawsuits against the defendants related to the fire, and

these actions were consolidated with the action filed by the individual plaintiffs.3 The

individual plaintiffs sought both compensatory and punitive damages.                     The insurer

plaintiffs sought only compensatory damages.

       {¶3} The case proceeded to trial, and the trial was bifurcated on issues of

compensatory damages and punitive damages. Following the compensatory damages

phase of the trial, the jury returned a verdict in favor of the plaintiffs and against the


         The insurer plaintiffs and the individual plaintiffs are collectively referred to herein as the
       3


“plaintiffs.”
defendants on their negligence claims.                 The jury awarded a total of $582,146 in

compensatory damages to seven groups of individual plaintiffs against the defendants as

follows:

       Sonya Pace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       $214,873.00
       David and Sidney [sic] Gruhin . . . . . . . . . . . . . . $111,233.00
       Carlos Sivit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$107,430.00
       Jason and Renee Edwards. . . . . . . . . . . . . . . . . . $47,484.00
       Natalie Rudd . . . . . . . . . . . . . . . . . . . . . . . . . . . . $38,850.00
       Prathibha Marathe . . . . . . . . . . . . . . . . . . . . . . . $35,020.004
       Hallie Gelb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      $27,256.00
                                                                              Total $582,146.00

The jury’s verdict awarded compensatory damages to each of the plaintiff groups in the

full amounts they requested.

       {¶4} In addition, pretrial stipulations, contingent upon a finding of liability, were

submitted as to the amount of compensatory damages sustained by three groups of

individual plaintiffs as follows:

       Mohammed Marwali/Selvey [sic] Pangkey . . . . .$12,000.00
       Luciana Armanijigan [sic] . . . . . . . . . . . . . . . . . .$3,000.00
       Mitchell Rosenberg . . . . . . . . . . . . . . . . . . . . . . . Nominal damages ($1)
                                                                       Total $15,001.00

Accordingly, the total compensatory damages awarded to the individual plaintiffs was

$597,147.


        These compensatory damages figures are based on the trial court’s statement, in its May 14,
       4


2012 final judgment entry, of the compensatory damages awarded to the plaintiffs by the jury. In its
answer to the jury interrogatory specifying the amount of compensatory damages to be awarded to
each individual plaintiff group, the jury actually identified $35,200.00 as the amount of compensatory
damages to be awarded to Marathe, not $35,020.00 as the trial court stated, and ultimately awarded to
Marathe, in its judgment entry. Thus, the total compensatory damages the jury awarded the
individual plaintiff groups (not including the stipulated damages) actually totaled $582,236. As no
issue was raised by the parties regarding this error, we will ignore it in this appeal.
       {¶5}     Pretrial stipulations, contingent upon a finding of liability, were also

submitted as to the compensatory damages sustained by the four insurer plaintiffs as

follows:

       State Farm Insurance . . . . . . . . . . . . . . . . . . . . . $95,500.00
       Nationwide Insurance . . . . . . . . . . . . . . . . . . . . . $41,026.00
       Allstate Insurance . . . . . . . . . . . . . . . . . . . . . . . .$25,104.95
       Safeco Insurance . . . . . . . . . . . . . . . . . . . . . . . . . $10,000.00
                                                                          Total $171,630.95

Accordingly, the total compensatory damages awarded to all plaintiffs was $768,777.95.

       {¶6} The trial court then submitted the issue of punitive damages to the jury. In

contrast to the particularized claims the individual plaintiff groups submitted as to their

compensatory damages, the individual plaintiffs requested punitive damages collectively.

In the verdict forms submitted to the jury, the trial court asked the jury to consider

whether the individual plaintiffs as a group were entitled to an award of punitive damages

and, if so, in what amount.

       {¶7} The jury awarded punitive damages to the individual plaintiffs against

Village Green in a lump sum of $2,000,000.5 The jury also found that the individual

plaintiffs were entitled to recover their reasonable attorney fees from Village Green.




        The jury was not asked to determine the amount of punitive damages to be awarded to each
       5


individual plaintiff or individual plaintiff group. Rather, with respect to the amount of punitive
damages to be awarded, the jury was asked, “If you answered yes on either Verdict Form ‘A’ or ‘B,’
please state the amount of punitive damages to be awarded.” The jury’s response was
$2,000,000.00. “Verdict Form A” addressed the liability of Village Green for punitive damages;
“Verdict Form B” addressed the liability of FCRM for punitive damages. The jury found that
FCRM was not liable for punitive damages.
Village Green filed various post-trial motions, including a motion to reduce the punitive

damages award pursuant to R.C. 2315.21(D)(2)(a). The trial court denied that motion.

      {¶8} On May 14, 2012, the trial court issued a final judgment entry setting forth

the separate compensatory damages awards to each of the individual plaintiff groups and

insurer plaintiffs — totaling $768,777.95 in compensatory damages — and collectively

awarding the ten individual plaintiff groups $2,000,000 in punitive damages, $1,040,000

in attorney fees and $51,757.15 in litigation costs against Village Green.     On January

17, 2013, this court affirmed the trial court’s judgment.      Sivit v. Village Green of

Beachwood, 8th Dist. Cuyahoga No. 98401, 2013-Ohio-103.

      {¶9} The Gruhins thereafter began to question how the punitive damages award

would be allocated among the plaintiffs. In a series of emails sent to counsel on January

23, 2013, David Gruhin inquired:

      Can you please explain your intentions as to the distribution of the punitive
      damages award?

      Are you distributing the punitive award based on a pro-rata share of the
      compensatory awards? If not how do you plan on dividing the award as
      there is no language in our engagement letter indicating how this would be
      done. There may be some expressed intent in the Jury Interrogatories or
      the Verdict Forms, that I am unaware of, and would like you to send me
      PDF copies of both of those documents for my review.

      Additionally, is the award to be divided by the 13 listed plaintiffs or by the
      10 listed parties receiving compensatory awards in the final judgment? If
      you are intending on dividing the punitive award by the 13 plaintiffs, I see
      that both Jason and Renee are listed as individual plaintiffs, would they
      each be entitled to a portion of the award, or would they receive one award
      as a single entity? If they were to be given 2 shares of the punitive award,
      why was Sydney never made a plaintiff? She was a co-signer on our
      original lease, yet she was never added to the class. Also I noticed on the
       final judgement that both Sydney and I are listed to receive an award. How
       would that be possible if she was not a plaintiff?

He further stated, “If the money is to be divided equally I have an issue with this, and I

would guess both Carlos [Sivit] and Sonya [Pace] would as well. I can only assume the

punitive damage award would not have been as high without our 3 compensatory awards.

 As such it would seem fairly unreasonable to divide the money equally when the

remainder of the plaintiff’s loss was significantly less than the 3 of ours.” On January

24, 2013, counsel responded, in relevant part, as follows:

       [W]e anticipate dividing the punitives into 10 plaintiff groups equally....
       they are NOT compensatory damages, and not linked to the compensatory
       damages....they are meant to punish the defendants, so regardless of the
       individual losses as tabulated, the purpose for the punitive award was
       equally shared. [I] believe the court’s judgement entry will help clarify this
       for you....but, as [I] said, once you review them [sic] we will chat again. [I]
       believe everyone had other family members, and were not all listed in the
       lawsuit for their own individual reasons. * * *

David Gruhin claimed that he never received this response, but, in any event, he did not

raise any further issue with respect to the allocation of the punitive damages award until

April 2015 — more than two years later.

       {¶10} In June 2013, the Ohio Supreme Court accepted Village Green’s

discretionary appeal on several issues, including whether the individual plaintiffs’ claims

constituted a “tort action” within the meaning R.C. 2315.21(A) to which the cap on

punitive damages set forth in R.C. 2315.21(D)(2)(a) applied. Sivit v. Village Green of

Beachwood, 136 Ohio St.3d 1404, 2013-Ohio-2645, 989 N.E.2d 1019. Specifically, as it

related to the amount of punitive damages awarded to the individual plaintiffs, the Ohio

Supreme Court agreed to review the issue of whether
       [a]n action to recover damages for injury to person or property caused by
       negligence or other tortious conduct is a ‘tort action’ within the meaning of
       R.C. 2315.21(A) even though the plaintiff’s claim may have arisen from a
       breach of duty created by a contractual relationship and even though the
       defendant’s conduct may have constituted both tortious conduct and a
       breach of contract.

Sivit v. Village Green of Beachwood, L.P., 143 Ohio St.3d 168, 2015-Ohio-1193, 35

N.E.3d 508, ¶ 4.

       {¶11} On appeal, the Ohio Supreme Court affirmed all of the issues related to the

verdict except the award of punitive damages. Id. at ¶ 12. With respect to the award of

punitive damages, the court agreed with Village Green that the action brought by the

plaintiffs was indeed a “tort action” and that the $2,000,000 punitive damages award

exceeded the cap on punitive damages set forth in R.C. 2315.21(D)(2)(a). As the court

explained in its opinion:

       We conclude that this is a tort action and, therefore, that it is subject to R.C.
       2315.21.

       R.C. 2315.21(D)(2)(a) states that “in a tort action,” a “court shall not enter
       judgment for punitive or exemplary damages in excess of two times the
       amount of the compensatory damages awarded to the plaintiff.” The
       compensatory-damages award by the jury totaled $582,146. The judgment
       entry of the trial court also included stipulated compensatory damages of
       $186,631.95, which were contingent on a finding of liability. The punitive
       damages awarded totaled $2,000,000. The $2,000,000 award for punitive
       damages is more than twice the total compensatory damages. Accordingly,
       it is clear that the award of punitive damages is contrary to the mandate of
       R.C. 2315.21(D)(2). * * *

       Remittitur of punitive damages is required. * * * [T]he punitive damages *

       * * are in excess of the statutory limit. * * * We order reduction of the

       amount of punitive damages to twice the amount of compensatory damages
       that were awarded in the trial court’s judgment entry, which we deem an

       appropriate amount to deter the conduct at issue in this case.

Id. at ¶ 5-6, 8.

       {¶12} In the conclusion of its opinion, the court further stated:

       In summary, we affirm the court of appeals with respect to all issues related
       to the verdict except the award of punitive damages. We agree with Village
       Green that the amount of punitive damages allowed exceeds the limit
       prescribed by R.C. 2315.21(D)(2)(a). Therefore, we hold that punitive
       damages in the amount of two times the award of compensatory damages is
       the appropriate amount and remand to the trial court to set the amount of
       damages.

Id. at ¶ 12.

       {¶13} The opinion was accompanied by a judgment entry, dated April 2, 2015,

which provided as follows:

       This cause, here on appeal from the Court of Appeals for Cuyahoga County,
       was considered in the manner prescribed by law. On consideration thereof,
       the judgment of the court of appeals is affirmed with respect to all issues
       related to the verdict except the award of punitive damages, consistent with
       the opinion rendered herein.

       It is further ordered that the court holds that punitive damages in the amount
       of two times the award of compensatory damages is the appropriate amount,
       and this issue is remanded to the trial court to set the amount of damages.

       It is further ordered that mandates be sent to and filed with the clerks of the

       Court of Appeals for Cuyahoga County and the Court of Common Pleas for

       Cuyahoga County.

       {¶14} Village Green filed a motion for reconsideration on the issue of the

individual plaintiffs’ entitlement to punitive damages, which the Ohio Supreme Court

denied.        Sivit v. Village Green of Beachwood, L.P., 142 Ohio St.3d 1479,
2015-Ohio-2104, 31 N.E.3d 656. On June 3, 2015, the Ohio Supreme Court issued its

mandate and sent certified copies of its April 2, 2015 judgment entry to the trial court and

this court.

       {¶15} After the punitive damages award was reversed, counsel sent a letter to the

Gruhins advising them of the Ohio Supreme Court’s decision and stating that, “[b]ased on

preliminary calculations,” the Gruhins’ punitive damages award was estimated “to be

adjusted from $200,000 to approximately $153,750, not inclusive of interest earned” as a

result of the decision. After receiving the letter, David Gruhin once again sent emails to

counsel inquiring as to how the punitive damage award “is being divided up” and

indicating that he assumed that he and Sydney would receive a 2/13ths share of the

reduced punitive damages award. Counsel responded as follows:

       The final judgment entry split the punitive damage award 10 ways, in the

       same manner we presented damages to the jury. It was done by unit. * * *

       If it is your intent to challenge the divide, you will need to hire separate

       legal counsel as any such disputes amongst the clients would present a

       conflict of interest for us.

       {¶16} Counsel and the Gruhins continued to exchange correspondence related to

the allocation issue. On May 6, 2015, counsel sent a letter to the Sivit plaintiffs advising

them of a potential dispute with the Gruhins relating to the allocation of the punitive

damages award. In June 2015, the Gruhins retained separate counsel, and the Sivit

plaintiffs continued to be represented by their original counsel.
       {¶17} After the case was remanded, Village Green filed a motion for application

of the Ohio Supreme Court’s ruling capping punitive damages. Village Green argued

that, based on the cap on punitive damages set forth in R.C. 2315.21(D)(2)(a), the

punitive damages award should be reduced to $1,194,294, i.e., two times the total

compensatory damages awarded to the individual plaintiffs who sought punitive damages.

 The Sivit plaintiffs filed a response in which they argued that, pursuant to the mandate

from the Ohio Supreme Court, the trial court was required to consider all of the

compensatory damages, including the stipulated damages awarded to the insurance

plaintiffs, in calculating the cap on punitive damages. They argued that this would result

in a reduction of the punitive damages awarded to the individual plaintiffs from

$2,000,000 to $1,537,555.90.

       {¶18} The Gruhins joined in Village Green’s motion to the extent it sought to

apply R.C. 2315.21(D)(2)(a) on an individual basis to the claims of each individual

plaintiff and joined in the response filed by the Sivit plaintiffs to the extent they asserted

that the punitive damages award should be capped at $1,537,555.90 rather than

$1,194,294.    With respect to allocation and distribution of the $1,537,555.90, the

Gruhins denied that they had agreed to share the punitive damages award equally with the

other individual plaintiff groups and submitted affidavits to that effect. They argued

that, consistent with R.C. 2315.21(D)(2)(a), $1,194,294 of the $1,537,555.90 should be

allocated and distributed among the 13 individual plaintiffs in amounts equal to two times

their share of the $597,147 in compensatory damages the trial court had awarded to the

individual plaintiffs and that the remaining $343,261.90 in punitive damages should be
allocated and distributed either (1) to the 13 individual plaintiffs on a pro rata basis, based

on their compensatory damages awards, or (2) to one or more nonprofit public

institutions.

       {¶19} The Sivit plaintiffs maintained that the individual plaintiffs had agreed that

each of the ten individual plaintiff groups would receive an equal share of any punitive

damages award regardless of the amount of compensatory damages awarded to that

plaintiff group, i.e., $153,755.59 or 10% of the $1,537,555.90 that they claimed was the

proper calculation of the punitive damages award. In support of their argument, the Sivit

plaintiffs submitted affidavits from Sonya Pace and Carlos Sivit in which they attested, in

relevant part: “With regard to the request for punitive damages, as advised by my

attorneys, I was aware that the punitive damages would be shared equally amongst the 10

groups of plaintiffs represented by my attorneys.” They further attested that although

they were aware of the Gruhins’ position on the allocation of punitive damages and that

such position — were it to be accepted — would result in a larger punitive damages

award to them, they were “not in agreement with the Gruhins’ stated position and do not

join in their motion to change the equal allocation of punitive damages.”

       {¶20} Following a hearing on the reduction of the punitive damages award, the

trial court entered an order reducing the jury’s $2,000,000 punitive damages award to

$1,537,555.90, plus statutory interest from the date of the trial court’s original judgment

entry. In its July 10, 2015 order, the trial court explained the reasoning behind its

decision as follows:
      It is a rock bed principle of our system of jurisprudence that trial courts are
      subordinate to superior courts. In this instance, this Court has been ordered
      to re-access [sic] punitive damages at twice the compensatory damages in
      the original journal entry — an award which has been affirmed by the entire
      Eighth District Court of Appeals and a unanimous Supreme Court. The
      defendant now presents an elaborate and somewhat engaging argument to
      this Court to reduce the amount of compensatory damages subject to the
      statutory multiplier. This Court is not at liberty to do so. A trial court
      must obey the mandates of superior courts. If the defendant perceived any
      ambiguity in the mandate, the time and place to raise the current theory was
      at the Supreme Court in the motion for reconsideration, not here and not
      now.

      Pursuant to the mandate of the Supreme Court of Ohio, punitive damages

      are reduced from $2,000,000.00 to $1,537,555.90 plus statutory interest

      from May 14, 2012 to date of payment.

      {¶21} On July 13, 2015, the trial court ordered Village Green to pay the

$1,537,555.90 in punitive damages plus statutory interest to the Cuyahoga County Clerk

of Courts.   The trial court thereafter entered a stipulated amended judgment entry

pursuant to which the parties agreed that Village Green would deposit $1,194,294.00, the

portion of the trial court’s $1,537,555.90 punitive damages award it allegedly did not

dispute, with the Cuyahoga County Clerk of Courts and a stay of execution would be

granted as to the remaining $343,261.90 with interest pending appeal upon Village

Green’s posting of a $400,000 supersedeas bond.

      {¶22} The trial court then addressed the dispute between the Gruhins and the Sivit

plaintiffs related to the allocation of the punitive damages award. Following additional

briefing and a hearing in which the trial court heard argument from both sides on the
allocation issue,6 on August 31, 2015, the trial court issued an order and opinion in which

it found that “a distribution of punitive damages does not have to be pro rata,” that

“plaintiffs may participate in determining the mode of distribution” and that “the

agreement of the [p]laintiffs was to equally share any award of punitive damages.” The

trial court further found that an equal distribution of the punitive damages award “is fair,

reasonable and equitable.” The trial court, therefore, awarded $153,755.59 in punitive

damages to each of the ten individual plaintiff groups.

       {¶23} Village Green appealed the trial court’s July 10, 2015, July 13, 2015 and

August 31, 2015 orders, raising the following two assignments of error for review:

       Assignment of Error No. 1:
       The Common Pleas Court erred in awarding punitive damages in the
               amount of $153,755 to seven of the individual plaintiff
               groups.
       Assignment of Error No. 2:
       The Common Pleas Court erred in issuing preliminary orders reducing
       plaintiffs’ total punitive damages from $2,000,000 to $1,537,555 and
       ordering defendant to pay that latter amount into court.

The Gruhins appealed the trial court’s August 31, 2015 order, raising the following three

assignments of error for review:

       First Assignment of Error:
       The lower court abused its discretion in finding in its August 31, 2015
       Order and Opinion (the “August 31st Order”) * * * that Plaintiffs had
       “banded together” and entered into an “agreement” amongst themselves,
       allocating and distributing the $1,537,555.90 punitive damages award in
       equal shares to ten “groups” of them — one share to Plaintiffs-Appellants
       (consisting of two individuals), and nine shares to Plaintiffs-Appellees
       (consisting of eleven individuals).

         It does not appear from the record that any request was made for an evidentiary hearing on
       6


the allocation issue.
      Second Assignment of Error:
      The lower court erred when, in contravention of the punitive damages “cap”
      set forth in O.R.C. §2315.21 * * *, it failed in the August 31st Order * * *
      to find each Plaintiff entitled to punitive damages equal to “two times” his
      or her individual compensatory damages awarded by the jury and, instead,
      allocated and distributed the punitive damages to Plaintiffs in excess of
      “two times” their respective compensatory damages award.

      Third Assignment of Error:
      The lower court’s misplaced acceptance of and reliance upon material
      unsworn and unsubstantiated “facts” proffered by Plaintiffs-Appellees’
      counsel during the remand proceedings in lieu of any testimony or other
      evidentiary proofs from Plaintiffs-Appellees themselves, resulted in the
      inclusion of myriad false findings in the August 31st Order * * *, requiring
      its reversal, along with a clarification of the punitive damages award
      provision contained in the May 14, 2012 Final Judgment Entry * * * , and
      further modification of the October 19, 2015 Judgment Entry.

      Law and Analysis

      Application of the Cap on Punitive Damages Set Forth in R.C.
      2315.21(D)(2)(a)

      {¶24} Village Green’s assignments of error and the Gruhins’ second assignment of

error are interrelated; we, therefore, address them together. All three assignments of

error involve the interpretation and application of the statutory cap on punitive damages

set forth in R.C. 2315.21(D)(2)(a) and the mandate of the Ohio Supreme Court following

Village Green’s appeal of the judgment entered on the jury verdict in this case. Village

Green argues that under R.C. 2315.21(D)(2)(a), the trial court erred in awarding the

individual plaintiffs more than $1,194,294.00 — two times the total compensatory

damages awarded the individual plaintiffs — in punitive damages.           The Gruhins

similarly argue that under R.C. 2315.21(D)(2)(a), the punitive damages “allocable and

distributable to each of [the individual plaintiffs] must * * * not exceed a maximum of
two times their respective individual, distinct, separate and unique compensatory damages

awards.” The Sivit plaintiffs assert that, consistent with R.C. 2315.21(D)(2)(a) and the

mandate of the Ohio Supreme Court, the trial court properly considered the total amount

of compensatory damages awarded all plaintiffs in the case, including the compensatory

damages awarded the insurer plaintiffs, in reducing the jury’s punitive damages award

from $2,000,000 to $1,537,555.90. Following a careful review of the record and the

applicable authority, we agree with Village Green and the Gruhins that the trial court’s

punitive damages award of $1,537,555.90 exceeds the limit prescribed by R.C.

2315.21(D)(2)(a) and is contrary to the mandate previously issued in this case by the Ohio

Supreme Court.

      {¶25} “Reviewing courts ‘will not disturb a decision of the trial court as to a

determination of damages absent an abuse of discretion.’” Sivit, 143 Ohio St.3d 168,

2015-Ohio-1193, 35 N.E.3d 508, at ¶ 9, quoting Roberts v. United States Fid. & Guar.

Co., 75 Ohio St.3d 630, 634, 665 N.E.2d 664 (1996). A trial court abuses its discretion

where it acts unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

      {¶26} R.C. 2315.21(D)(2)(a) provides: “The court shall not enter judgment for

punitive or exemplary damages in excess of two times the amount of the compensatory

damages awarded to the plaintiff from that defendant, as determined pursuant to division

(B)(2) or (3) of this section.” R.C. 2315.21(B)(2) provides:

      In a tort action that is tried to a jury and in which a plaintiff makes a claim
      for both compensatory damages and punitive or exemplary damages, the
      court shall instruct the jury to return, and the jury shall return, a general
       verdict and, if that verdict is in favor of the plaintiff, answers to an
       interrogatory that specifies the total compensatory damages recoverable by
       the plaintiff from each defendant.

R.C. 2315.21(B)(3) applies to bench trials and, therefore, is not applicable here.
      {¶27} R.C. 2315.21(C) further provides:

       Subject to division (E) of this section, punitive or exemplary damages are
       not recoverable from a defendant in question in a tort action unless both of
       the following apply:

       (1) The actions or omissions of that defendant demonstrate malice or
       aggravated or egregious fraud, or that defendant as principal or master
       knowingly authorized, participated in, or ratified actions or omissions of an
       agent or servant that so demonstrate.

       (2) The trier of fact has returned a verdict or has made a determination
       pursuant to division (B)(2) or (3) of this section of the total compensatory
       damages recoverable by the plaintiff from that defendant.

       {¶28} “The primary goal in construing a statute is to ascertain and give effect to

the intent of the legislature.” In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538, 978

N.E.2d 164, ¶ 17, citing State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804

N.E.2d 471, ¶ 11.      We examine the plain language of the statute, “read words and

phrases in context[,] and construe them according to the rules of grammar and common

usage.” In re M.W. at ¶ 17, citing R.C. 1.42. In doing so, we attempt to give effect to

“every word, phrase, sentence, and part of the statute” and to avoid an interpretation that

would “restrict, constrict, qualify, narrow, enlarge, or abridge the General Assembly’s

wording” or that would otherwise render a provision meaningless or superfluous. State

ex rel. Carna v. Texas Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478,

2012-Ohio-1484, 967 N.E.2d 193, ¶ 18-19. Where, as here, a statute is clear on its face,
we must apply the statute as written. The General Assembly is presumed to mean what it

said. San Allen v. Buehrer, 2014-Ohio-2071, 11 N.E.3d 739, ¶ 81 (8th Dist.).

       {¶29} Applying these principles of statutory construction, we conclude that under

R.C. 2315.21(D)(2)(a), the trial court was precluded from entering a judgment for

punitive damages to the individual plaintiffs that exceeded two times the compensatory

damages awarded to those plaintiffs.    In other words, in computing the cap on punitive

damages, the trial court could only consider the total compensatory damages awarded to

the individual plaintiffs; it could not also consider the amount of compensatory damages

awarded to other plaintiffs, i.e., the insurer plaintiffs, who were not seeking punitive

damages, who were not involved in the punitive damages proceeding, and as to whom no

determination of entitlement to punitive damages was made by the jury.

       {¶30} Under R.C. 2315.21(D)(2)(a), the cap on punitive damages is computed by

multiplying “the amount of the compensatory damages awarded to the plaintiff” times

two.     (Emphasis added.)        The definite “the plaintiff” referenced in R.C.

2315.21(D)(2)(a) refers back, by its terms, to (1) the “plaintiff” identified in R.C.

2315.21(B)(2) (jury trials) or (3) (bench trials), as applicable, i.e., “a plaintiff [who]

makes a claim for both compensatory damages and punitive or exemplary damages,” and

(2) the “determin[ation]” made in accordance with that provision, i.e., the jury’s “answers

to an interrogatory that specifies the total compensatory damages recoverable by the

plaintiff from each defendant.”     (Emphasis added.)      See also R.C. 2315.21(C)(2)

(“punitive or exemplary damages are not recoverable from a defendant in question in a

tort action unless * * * [t]he trier of fact has returned a verdict or has made a
determination pursuant to division (B)(2) or (3) of this section of the total compensatory

damages recoverable by the plaintiff from that defendant.”) (Emphasis added.).

       {¶31} The Sivit plaintiffs argue that their interpretation is simply a matter of

reading the singular “the plaintiff” in R.C. 2315.21(D)(2)(a) as the plural “the plaintiffs”;

however, it is much more than that. Although it is an accepted principle of statutory

construction that “(t)he singular includes the plural, and the plural includes the singular,”

R.C. 1.43(A), this rule does not apply where there is “clear language in [the statute] to the

contrary, or evidence which adequately demonstrates that such a construction is out of

context with the remaining language of that statute or its related provisions.” Wingate v.

Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979).

       {¶32}   Furthermore,     under   the   Sivit   plaintiffs’   interpretation   of   R.C.

2315.21(D)(2)(a), we would have to read “the plaintiff” not only as “the plaintiffs” but to

include persons other than “plaintiff[s] [who] make[] a claim for both compensatory

damages and punitive or exemplary damages” as set forth in R.C. 2315.21(B)(2) and (3)

— to which R.C. 2315.21(D)(2)(a) expressly refers.             Under the Sivit plaintiffs’

interpretation, we would have to ignore the reference to R.C. 2315.21(B)(2) and (3) and

read “the plaintiff” as encompassing all plaintiffs in the case who are awarded

compensatory damages, regardless of whether they have made a claim for punitive

damages.    Such an interpretation is contrary to the plain meaning of the statute.

Although “the plaintiff” as used in R.C. 2315.21(D)(2)(a), when read in context, could be

reasonably interpreted as including all plaintiffs who “make[ ] a claim for both

compensatory damages and punitive or exemplary damages” as set forth in R.C.
2315.21(B)(2) and (3), there is nothing in R.C. 2315.21 that permits “the plaintiff” as

used in R.C. 2315.21(D)(2)(a) to be interchangeable with “a plaintiff [who] makes a

claim for both compensatory damages and punitive or exemplary damages” and any other

plaintiff in the case who receives a compensatory damages award — as the Sivit plaintiffs

argue here.

       {¶33} Further, when reading R.C. 2315.21(D)(2)(a) in context with the other

provisions of the statute, it is worth noting that it is only where a plaintiff makes a claim

for both compensatory damages and punitive or exemplary damages, that R.C. 2315.21

requires the jury, if a verdict is returned for the plaintiff, to answer an interrogatory that

specifies the total compensatory damages recoverable by the plaintiff from each

defendant. There is no such requirement in R.C. 2315.21 with respect to a plaintiff who

does not make a claim for punitive damages. The reason for this distinction is that where

a plaintiff makes a claim for both compensatory and punitive damages, there must be a

basis upon which the court can calculate the cap on punitive damages set forth in R.C.

2315.21(D)(2)(a); where there is no claim for punitive damages, no such calculation is

required.

       {¶34}    Thus, any compensatory damages awarded to plaintiffs who have not

asserted claims for punitive damages are not properly considered in applying the cap on

punitive damages set forth in R.C. 2315.21(D)(2)(a). See also Freudeman v. Landing of

Canton, 702 F.3d 318, 331-334 (6th Cir.2012) (compensatory damages awarded for

wrongful death claim could not be considered when determining the statutory cap on

punitive damages awarded for survival claims under R.C. 2315.21(D)(2)(a) because
punitive damages are not available for a wrongful death claim and R.C. 2315.21(D)(2)(a)

instructs the trial court to look at “the amount of the compensatory damages awarded to

the plaintiff”; whereas the “real plaintiff” for a survival claim is the decedent’s estate, the

decedent’s statutory beneficiaries are the “real parties” for a wrongful death claim).

       {¶35}      The Sivit plaintiffs claim that such an interpretation of R.C.

2315.21(D)(2)(a) is contrary to the purpose for which punitive damages are awarded.

However, it is not only the purpose of awarding punitive damages, but also the purpose of

having a cap on punitive damages that is relevant here. While the purpose of punitive

damages is “to punish and deter certain conduct,” Moskovitz v. Mt. Sinai Med. Ctr., 69

Ohio St.3d 638, 651, 635 N.E.2d 331 (1994), the purpose of the cap on punitive damages

— to which R.C. 2315.21(D)(2)(a) is directed — is to limit the amount of punitive

damages that can be awarded against a defendant to “mak[e] the civil justice system more

predictable.” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880

N.E.2d 420, ¶ 102.

       {¶36} Furthermore, the only reason an issue exists in this case as to whether the

punitive damages cap should be based on the compensatory damages awarded to the

individual plaintiffs or the total compensatory damages awarded to all plaintiffs

(including the insurer plaintiffs who did not assert claims for punitive damages), is

because the action filed by the individual plaintiffs was consolidated, for purposes of

judicial economy, with the actions filed by the insurer plaintiffs who did not assert claims

for punitive damages. If the insurer plaintiffs’ actions had not been consolidated with

the action filed by the individual plaintiffs, there is no basis upon which the individual
plaintiffs could claim that they were entitled, under R.C. 2315.21(D)(2)(a), to punitive

damages in excess of two times their own awards of compensatory damages. Given the

purpose of the cap on punitive damages, we do not believe the legislature intended that

the amount of punitive damages a trial court may award a plaintiff under R.C.

2315.21(D)(2)(a) should vary depending upon the number of other plaintiffs (or the

amount of compensatory damages awarded to other plaintiffs) whose claims are tried with

the plaintiff’s claims but who do not themselves seek punitive damages (or as to whom no

determination is made that they are entitled to punitive damages).

       {¶37} The Sivit plaintiffs also argue that even if R.C. 2315.21(D)(2)(a) would

have otherwise required the trial court to consider only the compensatory damages

awarded to the individual plaintiffs in calculating the cap on punitive damages, the trial

court was constrained by, and bound to follow, the mandate of the Ohio Supreme Court

and award $1,537,555.90, two times the total compensatory damages awarded all

plaintiffs, in punitive damages.

       {¶38} An inferior court generally has “no discretion to disregard the mandate of a

superior court in a prior appeal in the same case.” Nolan v. Nolan, 11 Ohio St.3d 1, 462

N.E.2d 410 (1984), syllabus. The Sivit plaintiffs assert that the Ohio Supreme Court’s

mandate is found in paragraph 8 of its opinion, which states as follows:

       We order reduction of the amount of punitive damages to twice the amount
       of compensatory damages that were awarded in the trial court’s judgment
       entry, which we deem an appropriate amount to deter the conduct at issue in
       this case.
Village Green argues that this language should not be construed as mandating a reduction

in the punitive damages award to $1,537,555, i.e., twice the compensatory damages

awarded to all of the plaintiffs, because the court’s opinion “did not mention — and

certainly did not consider the significance of — the fact that $171,630.95 of the

‘stipulated compensatory damages of $186,671.95’ had been awarded to four subrogated

insurance company plaintiffs who had not been awarded any punitive damages by the

jury” given that that fact had no relevance to the issues then before the court. (Emphasis

omitted.) Village Green also contends that paragraph 8 is inconsistent with paragraph 12

of the opinion that remands the matter to the trial court to “set the amount of damages.”

The Sivit plaintiffs respond that because the court pointed out in its opinion that the

“compensatory-damages awarded by the jury totaled $582,146” and that “[t]he judgment

entry of the trial court also included stipulated compensatory damages of $186,631.95,

which were contingent on a finding of liability,” the court clearly understood that “the

amount of compensatory damages that were awarded in the trial court’s judgment entry”

included the compensatory damages awarded to the insurer plaintiffs who had not

requested punitive damages.

      {¶39} We need not resolve the issue of whether the Ohio Supreme Court, in

rendering its decision, understood and considered the fact that the total compensatory

damages awarded in this case included compensatory damages to plaintiffs who did not

seek punitive damages or precisely what the Ohio Supreme Court intended by its

reference to “the amount of compensatory damages that were awarded in the trial court’s

judgment entry” in paragraph 8 of its opinion because paragraph 8 is not the mandate of
the Ohio Supreme Court in this case. S.Ct.Prac.R. 18.04(C) provides: “A certified copy

of the judgment entry shall constitute the mandate.” In this case, the Ohio Supreme

Court’s mandate, i.e., a certified copy of its April 2, 2015 judgment entry, stated, in

relevant part, as follows:

       This cause * * * is affirmed with respect to all issues related to the verdict
       except the award of punitive damages, consistent with the opinion rendered
       herein.

       It is further ordered that the court holds that punitive damages in the amount
       of two times the award of compensatory damages is the appropriate amount,
       and this issue is remanded to the trial court to set the amount of damages.

       {¶40} Accordingly, the Ohio Supreme Court remanded the case for the trial court

“to set the amount of damages.” For the reasons explained above, properly “set[ting] the

amount of [punitive] damages,” in accordance with R.C. 2315.21(D)(2)(a), required the

trial court to award a total of $1,194,294 in punitive damages, not $1,537,555.90 in

punitive damages, as the trial court did here.       We do not find that applying R.C.

2315.21(D)(2)(a) as written, i.e., limiting the punitive damages award to two times the

total compensatory damages awarded to the individual plaintiffs, would violate the

mandate of the Ohio Supreme Court.

       {¶41} Although we agree with Village Green that the trial court erred in setting the

amount of the punitive damages award at $1,537,555.90, rather than $1,194,294, we

also agree with the Sivit plaintiffs that the punitive damages award must be reversed in

total — not just, as Village Green suggests, as to the punitive damages allocated to the

seven individual plaintiff groups — Jason and Renee Edwards, Natalie Rudd, Prathibha

Marathe, Hallie Gelb, Mohammad Marwali and Selvy Pangkey, Luciana Armaganijan
and Mitchell Rosenberg — who would receive more than two times their compensatory

damages under the trial court’s per capita allocation of the punitive damages award.

Accordingly, we sustain Village Green’s first assignment of error in part and the Gruhins’

second assignment of error in part and overrule them in part. We also sustain Village

Green’s second assignment of error. We reverse the trial court’s punitive damage award

and remand the matter to the trial court to reset the total amount of punitive damages

awarded to the individual plaintiffs at $1,194,294.

       The Trial Court’s Allocation of the Punitive Damages Award

       {¶42} In their first and third assignments of error, the Gruhins argue that they are

entitled to punitive damages equal to twice their compensatory damages award —

$222,466 in punitive damages — and that the trial court abused its discretion in allocating

the punitive damages equally, on a per capita basis, among the ten individual plaintiff

groups.

       {¶43} The Gruhins do not dispute that the individual plaintiffs could have entered

into an agreement specifying how any punitive damages award they received was to be

allocated among them, and that, if such an agreement had been made, the trial court could

have enforced that agreement and ordered the allocation and distribution of the punitive

damages award consistent with that agreement. The Gruhins assert, however, that no

such agreement existed among the individual plaintiffs. The Gruhins contend that the

trial court’s findings that the individual plaintiffs had “banded together” and agreed to

equally share any punitive damages award among the ten individual plaintiff groups “are

patently false and erroneous,” that “no testimony or other evidentiary proofs supportive of
such findings exist,” and that the trial court “inexplicably allowed itself to be swayed” by

“unsworn, unsubstantiated, untrue, wholly gratuitous and self-serving statements

improperly proffered as ‘fact’” by the Diemert law firm.

       {¶44} We disagree with the Gruhins that there was “no evidence” in the record to

support the trial court’s finding that the individual plaintiffs had agreed to equally share

any award of punitive damages. In addition to the affidavits from Sivit and Pace setting

forth their understanding that the punitive damages award would be shared equally among

the ten individual plaintiff groups,7 the verdict forms submitted to the jury on the issue of

punitive damages reflect an intent or understanding on the part of the individual plaintiffs

to share in any punitive damages award (particularly when compared with the

interrogatory submitted on the issue of compensatory damages, which required the jury to

specify the amount of compensatory damages awarded to each of the individual plaintiff

groups).   Furthermore, after counsel advised David Gruhin in January 2013 that,

consistent with the trial court’s judgment entry, he “anticipate[d] dividing the punitives

into 10 plaintiff groups equally” because “the purpose for the punitive award was equally

shared,” the Gruhins did not raise any further issue with respect to proposed allocation of

the punitive damages award until April 2015 — more than two years later — and, then,

only after counsel sent a letter advising the Gruhins that their share of the punitive

damages award would likely be reduced from $200,000 to $153,750 as a result of the


       Sivit and Pace would have each received a much larger share of the punitive
       7

damages award if the award had been allocated on a pro rata basis, based on the
compensatory damages they were awarded, rather than a per capita basis, shared
equally among the ten individual plaintiff groups.
decision by the Ohio Supreme Court. Although David Gruhin claims he never received

counsel’s January 24, 2013 email, it strains credulity to believe that he would have waited

more than two years for a response to his January 2013 emails without following up,

particularly given that, due to his “hectic” work schedule, he had requested “a written

response detailing your intentions in regard to the punitive damages, sent within 7 days.”

       {¶45} Although the Gruhins dispute that an agreement existed among the plaintiffs

to share any punitive damages award equally, they do not claim that there was some other

agreement among the plaintiffs as to how the lump sum punitive damages award would

be allocated. Nor do they indicate how they thought the award would be allocated when

the jury was asked to award punitive damages to the plaintiffs collectively.8

       {¶46} We need not decide the issue of whether sufficient evidence existed to

support the trial court’s finding that an agreement existed among the individual plaintiffs

to equally share any award of punitive damages because even if the trial court erred in

concluding that such an agreement existed, we would still affirm the trial court’s decision

to distribute the punitive damages award equally among the ten individual plaintiff groups

based on the particular facts and circumstances in this case.

       {¶47} The Gruhins argue that R.C. 2315.21(D)(2)(a) controls the allocation of the

punitive damages award in this case and that the trial court’s failure to allocate punitive

damages to each of the plaintiff groups in an amount equal to two times their


         As discussed below, at that time, there had been no determination that plaintiffs’ action was a
       8


“tort action” within the meaning of R.C. 2315.21. Accordingly, the Gruhins could not have then
expected that R.C. 2315.21 applied to the plaintiffs’ claims or that they would receive a pro rata share
of the total punitive damages awarded, as they now claim, based on R.C. 2315.21(D)(1)(a).
compensatory damages violates R.C. 2315.21(D)(2)(a). The Gruhins contend that R.C.

2315.21(D)(2)(a) requires the court to (1) “look to the ‘groups’ of Plaintiffs who made

claims for both compensatory and punitive damages,” (2) “take into account the varying

amounts of compensatory damages awarded to each individual ‘group’ of Plaintiffs” and

(3) multiply “each of these ten individual amounts * * * by two * * * to determine the

amount of punitive damages to which each Plaintiff is entitled pursuant to the Statute.”

(Emphasis omitted.) The Gruhins contend that because certain plaintiff groups will

receive more than two times their awarded compensatory damages and other plaintiff

groups will receive less than two times their awarded compensatory damages under the

trial court’s allocation of the punitive damages award, the trial court’s allocation of

punitive damages must be reversed. Once again, we disagree.

       {¶48} The purpose of R.C. 2315.21(D)(2)(a) is to limit the damages awarded

against a defendant, not to ensure that a particular plaintiff gets a particular punitive

damage award (or a particular share of a punitive damages award).               Thus, R.C.

2315.21(D)(2)(a) does not, as the Gruhins contend, “entitle” a plaintiff to a particular

amount of punitive damages.

       {¶49} Significantly, in this case, the jury was not asked to make (and, therefore,

did not make) separate determinations, as to each individual plaintiff or plaintiff group (1)

whether the plaintiff or plaintiff group was entitled to punitive damages from Village

Green and (2) if so, in what amount. There was no ruling that R.C. 2315.21 — and

specifically, the cap on punitive damages set forth in R.C. 2315.21(D)(2)(a) — applied to

the individual plaintiffs’ claims for punitive damages prior to the jury’s verdicts on
punitive damages.      Thus, for strategic reasons, no doubt with an eye toward (1)

convincing the jury to award punitive damages to the plaintiffs in the first instance and

(2) maximizing any punitive damages award ultimately awarded by the jury, the

individual plaintiffs’ claims for punitive damages were presented collectively to the jury

and the jury was asked to consider an award of punitive damages to the plaintiffs as a

group.

         {¶50} Consistent with that approach, two verdict forms were submitted to the jury

in the punitive damages phase of the trial. The jury was asked to consider (1) whether

the individual plaintiffs as a group should be awarded punitive damages against Village

Green and (2) if so, in what amount. No objection was raised to the trial court’s

submission of these verdict forms to the jury. Likewise, no objection was made after the

jury awarded punitive damages to the individual plaintiffs in a lump sum. Nor was any

claim made on appeal that the trial court erred in failing to submit jury interrogatories

asking the jury to independently consider the punitive damages claim of each individual

plaintiff or in permitting the jury to make a lump sum punitive damages award. The only

objection that was made and the only error that was raised on appeal related to the verdict

forms was Village Green’s objection to the total amount of punitive damages awarded

against it. Accordingly, any error allegedly associated with the trial court’s failure to

request separate determinations from the jury on the plaintiffs’ punitive damages claims

or the jury’s lump sum punitive damages award has been waived and any claim based on

any such alleged error would be barred by res judicata. See also Faieta v. World Harvest

Church, 10th Dist. Franklin No. 08AP-527, 2008-Ohio-6959, ¶ 80-85 (trial court did not
commit plain error by submitting to the jury general verdict forms and interrogatories that

did not require the jury to specify the amount of punitive damages awarded to each

individual plaintiff where defendants, who on appeal claimed the submission of the

verdict forms and interrogatories was plain error, not only failed to object to the verdict

forms and interrogatories, but invited the alleged error by submitting draft verdict forms

and interrogatories to the trial court that asked the jury to determine the amount of

damages awarded to the plaintiffs collectively, not individually).

       {¶51} Although we agree, reading the statute as a whole, that R.C. 2315.21 seems

to contemplates that the trier of fact will make individualized determinations of both the

compensatory damages to be awarded to a particular plaintiff (or a plaintiff group where,

as here, the claims of individual plaintiffs such as a husband and wife are presented

together) and whether a particular plaintiff is entitled to recover punitive damages, there

is nothing in R.C. 2315.21 that expressly requires the trial court, in a multi-plaintiff case,

to submit an interrogatory to the jury that specifies the amount of punitive damages

recoverable by each plaintiff from a defendant. Compare R.C. 2315.21(B)(2) (“In a tort

action that is tried to a jury and in which a plaintiff makes a claim for both compensatory

damages and punitive or exemplary damages, the court shall instruct the jury to return,

and the jury shall return, a general verdict and, if that verdict is in favor of the plaintiff,

answers to an interrogatory that specifies the total compensatory damages recoverable by

the plaintiff from each defendant.”) with R.C. 2315.21(B)(1)(b) (“If the jury determines in

the initial stage of the trial that the plaintiff is entitled to recover compensatory damages

for the injury or loss to person or property from the defendant, evidence may be presented
in the second stage of the trial, and a determination by that jury shall be made, with

respect to whether the plaintiff additionally is entitled to recover punitive or exemplary

damages for the injury or loss to person or property from the defendant.”) and R.C.

2315.21(D)(1)(“In a tort action, the trier of fact shall determine the liability of any

defendant for punitive or exemplary damages and the amount of those damages.”).

Further, R.C. 2315.21 does not address the allocation of a lump sum punitive damages

award where, as here, the trier of fact was not asked to make an individualized

determination of the amount of punitive damages to be awarded to each plaintiff

determined to be entitled to recover punitive damages.

       {¶52} Given that the jury was not asked to make separate determinations of the

amount of punitive damages each individual plaintiff was entitled to recover, the

allocation of the punitive damages the jury awarded to the individual plaintiffs as a group

was properly left to the discretion of the trial court.

       {¶53}     As the Ohio Supreme Court explained in Dardinger v. Anthem Blue Cross

& Blue Shield, 98 Ohio St.3d 77, 2002-Ohio-7113, 781 N.E.2d 121, courts have “a central

role to play” in determining how punitive damage awards should be distributed:

       [A] punitive damages award is about the defendant’s actions. “The
       purpose of punitive damages is not to compensate a plaintiff but to punish
       the guilty, deter future misconduct, and to demonstrate society’s
       disapproval.” * * * At the punitive-damages level, it is the societal element
       that is most important. The plaintiff remains a party, but the de facto party is
       our society, and the jury is determining whether and to what extent we as a
       society should punish the defendant.

             There is a philosophical void between the reasons we award punitive
       damages and how the damages are distributed. The community makes the
       statement, while the plaintiff reaps the monetary award. * * * In Ohio,
       punitive damages are an outgrowth of the common law. * * * Therefore,
       Ohio’s courts have a central role to play in the distribution of punitive
       damages. Punitive damages awards should not be subject to bright-line
       division but instead should be considered on a case-by-case basis, with
       those awards making the most significant societal statements being the most
       likely candidates for alternative distribution.

       Clearly, we do not want to dissuade plaintiffs from moving forward with
       important societal undertakings. The distribution of the jury’s award must
       recognize the effort the plaintiff undertook in bringing about the award and
       the important role a plaintiff plays in bringing about necessary changes that
       society agrees need be made. Plaintiffs themselves might get involved in
       how the award is distributed. * * *

Id. at ¶ 187-189.

       {¶54} The Gruhins claim that the trial court’s allocation of the punitive damages

award in ten equal shares is a case of “robbing Peter to pay Paul” and that the Gruhins are

entitled to have the punitive damages award “allocated and distributed in line with their

respective, distinct, separate and unique individually awarded compensatory damages”

just as would have occurred “[h]ad each [p]laintiff filed a separate action.” The Gruhins’

argument assumes that if they had brought their claims separately from those of the other

plaintiffs (1) the jury would have still awarded them punitive damages and (2) the

punitive damages the jury awarded them would not have been less than the statutory cap

of two times their compensatory damages. There is, however, no guarantee that that

would have been the case.

       {¶55} While the Gruhins are correct that they and each of the other individual

plaintiffs could have filed separate actions asserting their claims for compensatory and

punitive damages on a “wholly separate and independent basis,” it is not necessarily true

if they had done so, that they would have received the punitive damages award to which
they now claim they are entitled. Two times compensatory damages was simply the

maximum amount the Gruhins could have recovered in punitive damages had their claims

been tried separately. Had the Gruhins’ claims been tried separately (or if separate

interrogatories had been submitted to the jury on their punitive damages claim), they

could have received the same punitive damages award, a lower punitive damages award

or even no punitive damages at all. As the Ohio Supreme Court recently stated in

Whetstone v. Binner, Slip Opinion. No. 2016-Ohio-1006, ¶ 20, “[A]n award of punitive

damages is not automatic. Even when a plaintiff can establish entitlement to punitive

damages, whether to impose punitive damages, and in what amount, is left to the trier of

fact.”

         {¶56} No doubt the reason the individual plaintiffs joined their claims together in a

single lawsuit and submitted their punitive damages claims to the jury collectively was

because they saw potential advantages to doing so, including an increased likelihood of

receiving a substantial punitive damages award. The fact that ten plaintiff groups (some

of whom were elderly, some of whom had children) all suffered significant losses as a

result of the defendant’s malicious conduct may have very well increased the punitive

damages award to the individual plaintiffs beyond what they would have received had

their claims been tried independently.       Likewise, the fact certain plaintiffs, such as

Rosenberg and Armaganijan, were clearly harmed by Village Green’s conduct but Village

Green was required to pay only “nominal” “agreed upon” compensatory damages for their

losses may have led the jury to increase the amount of punitive damages awarded to the

individual plaintiffs as a group.
       {¶57} Based on our review of the record, we cannot say that the trial court acted

arbitrarily, unreasonably or unconscionably in ordering the lump sum punitive damages

award to be shared equally among the ten individual plaintiff groups. In determining

what a “fair, reasonable and equitable” allocation of the punitive damages should be, the

trial court considered the relevant facts and equities of the situation, including the verdict

forms and interrogatories submitted to the jury, the manner in which the plaintiffs’ claims

were presented at trial, i.e., as ten plaintiff groups representing the ten apartment units the

individual plaintiffs occupied at the time of the fire, the role and purpose of the

stipulations that had been entered as to the compensatory damages sustained by certain of

the individual plaintiffs and the nature of the claims asserted.

       {¶58} As the trial court observed, every plaintiff was a victim of the same

malicious conduct that justified the award of punitive damages against Village Green.

Some of the plaintiffs, such as Rosenberg, were subject to such conduct for a much longer

period of time than the Gruhins. Every plaintiff lost items that were of great personal

value for which the law may not have provided adequate compensation. Every plaintiff

was displaced from his or her home due to the damage caused by the fire. To the extent

that some individual plaintiff groups suffered higher compensable losses than others,

those differences were already accounted for in the compensatory damages awards the

plaintiff groups received and need not have been considered by the trial court in

allocating the punitive damages award.

       {¶59} Accordingly, we overrule the Gruhins’ first and third assignments of error.

We affirm the trial court’s judgment in part, reverse the trial court’s judgment in part, and
remand the matter for the trial court to enter an order setting the total amount of punitive

damages awarded to the individual plaintiffs at $1,194,294, to be distributed equally

among the ten individual plaintiff groups, i.e., $119,429.40 to each of the ten individual

plaintiff groups.

       {¶60} This cause is affirmed in part, reversed in part and remanded to the lower

court for further proceedings consistent with this opinion.

       It is ordered that the Gruhins and Village Green share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.



_____________________________________________
EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
