[Cite as Utz v. Stovall, 2013-Ohio-4299.]


                                    IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


JEAN UTZ,                                       :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2012-P-0135
        - vs -                                  :

PHYLLIX STOVALL,                                :

                 Defendant-Appellant.           :


Civil Appeal from the Portage County Court of Common Pleas.
Case No. 2009 CV 00378.

Judgment: Affirmed.


Thomas N. Ganiaris, 1930 Route 70 East, Suite L-59, Cherry Hill, NJ          08003 (For
Plaintiff-Appellee).

Edward G. Kramer, Fair Housing Law Clinic, Jeremiah Ensworth House, 3214
Prospect Avenue, East, Cleveland, OH 44115-2601 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Phyllix Stovall, appeals the judgments of the Portage County

Court of Common Pleas denying her motion for summary judgment, denying her

motions for directed verdict, and granting plaintiff, Jean Utz’s, motion for a new trial.

The underlying action is a cause for breach of contract and defamation per se arising

out of letters Stovall sent to Utz’s employer, the superintendent of Streetsboro schools.

The correspondence basically alleged that Utz made a derogatory racial comment,
harassed her children, and was a threat to other school children. Upon close of Utz’s

case, the trial court determined the statements were not made in good faith and/or were

made with actual malice and, as a result, did not give an instruction regarding the

defense of qualified privilege. The jury returned a verdict in favor of Utz, awarding

$191,000 in punitive damages, though no compensatory damages.

        {¶2}   We conclude the following: the trial court’s ruling on summary judgment is

moot by virtue of the subsequent trial on the same issues demonstrating that there

were, in fact, genuine issues of material fact supporting a judgment in favor of Utz, the

nonmoving party; the trial court did not err in determining a qualified privilege did not

apply; the trial court did not err in denying Stovall’s motions for directed verdict because

there was a sufficient evidentiary basis on which to conclude all elements of defamation

per se had been met; and the trial court did not abuse its discretion in ordering a new

trial because of confusing instructions requiring the jury to consider both the

compensatory and punitive damages, and because punitive damages may not be

awarded when a jury fails to award compensatory damages. As we affirm the order for

a new trial, the issue of whether the punitive damages are excessive is moot. We affirm

the judgments of the trial court.

        {¶3}   Stovall and Utz are neighbors and have abutting properties in Streetsboro,

Ohio.   Since 2000, the pair have quarreled over property and zoning issues, most

notably Stovall’s decision to erect a privacy wall on the property line which Utz

previously characterized as a “monstrosity.”        The long-standing property dispute

culminated in Stovall and her husband, Ray Stovall, filing a complaint in federal court

against numerous defendants, including Utz.        Relevant to this appeal, the Stovalls




                                             2
alleged Utz’s various complaints concerning their property were racially motivated. The

factual allegations of the complaint filed in federal court set forth that Utz “took on a

campaign to continually harass and intimidate the Stovall family because of their race

and color.” The complaint noted that Utz works at the school district the Stovall children

attend, and that one of the Stovall children witnessed Utz “declining to assist a black

child.”    The complaint charged that Utz has harassed, intimidated, humiliated, and

embarrassed every member of the Stovall family and noted that the Stovalls “fear for

the safety of their two young children.”

          {¶4}   On August 20, 2008, the Stovalls entered into a settlement agreement

with certain defendants, including Utz. The agreement provided, in relevant part:

                 The Stovalls expressly agree that they will not use as a basis for
                 any future claim they might pursue against * * * Utz, any fact or
                 circumstance that occurred prior to the execution of this Agreement
                 asserting that such fact or circumstance is a basis of a continuing
                 violation for the purposes of establishing timeliness relating to a
                 statute of limitations.

          {¶5}   On January 22, 2009, Stovall attended a spelling bee at Streetsboro

Middle School in which her son was a participant. Utz attended the same spelling bee;

her daughter was also a participant and, ultimately, the victor.       The following day,

Stovall wrote a letter to Utz’s boss, Streetsboro Superintendent Linda Keller, wherein

she alleged that Utz made a racially-motivated, derogatory, and “vexatious” comment

during the spelling bee. Stovall alleged that Utz made a comment to her daughter

purposefully within earshot of Stovall’s son, remarking: “Kaley what’s wrong? Do you

smell an odor?”       Stovall explained that this comment was directed at her son and

concluded, in part:




                                              3
              I don’t believe my child is being protected by the school district if
              Mrs. Utz is allowed to verbally attack my son’s character. She
              works for the school district and has been questioned about
              previous demeaning behavior. * * * Her intentional infliction of
              emotional distress on my children is dangerous; due to her willful
              and wanton misconduct, her loss of regard for morality is a threat to
              the safety and wellbeing among their peers.

       {¶6}   As a result, a formal school inquiry was initiated, and Stovall wrote

numerous follow-up letters as the investigation into the harassment allegations

unfolded. On February 9, 2009, Stovall wrote to Superintendent Keller, attaching an

article from the Indian Reservation that reminded her “of the many abuses my children

faced living in Streetsboro and dealing with the City’s school employee.” The parties

had a meeting together, after which Stovall wrote she was not satisfied with Utz’s

responses. Stovall attached two articles on racially-divided communities, explaining

that the articles would provide insight into “why the remark was made, the reason it was

made at that time and place, and why it is allowed to continue.”

       {¶7}   On February 17, 2009, Dr. Richard F. Vrable, Director of Special Services

for Streetsboro Schools, sent a letter to the Stovalls informing them that he would be

initiating a further, full investigation. Stovall responded to the letter on February 22,

2009, explaining, in part:

              Mrs. Utz’s offensive behavior deprives all of our children of an
              environment that is conducive to learning. There have been many
              attempts to solve other problems created by Mrs. Utz. We have
              been unsuccessful instilling ideals and behavioral patterns which
              are consistent with mutual understanding, cooperation and respect.

       {¶8}   The letter went on to explain that Utz’s “harassing and humiliating

behavior has had a negative effect” on the educational development of the Stovall

children.




                                            4
       {¶9}   On March 12, 2009, Utz filed a complaint against Stovall alleging that

Stovall had published false statements to the school and had repeated references to

alleged past discriminatory conduct. Thus, the complaint alleged defamation, libel, and

slander per se (Count One); intentional infliction of emotional distress (Count Two);

intentional interference with business relationship (Count Three); and breach of

contract, arising out of the settlement agreement (Count Four). Count Two and Count

Three are not at issue in this appeal.

       {¶10} The trial court denied competing motions for summary judgment, and the

matter proceeded to a jury trial. Upon close of Utz’s evidence, Stovall requested the

trial court find a qualified privilege. The trial court explained it found actual malice,

which negated the element of good faith required for a qualified privilege.

       {¶11} Upon the close of all evidence, the parties agreed the claim for

compensatory damages and the claim for punitive damages would not be bifurcated

pursuant to R.C. 2315.21(B)(1). As such, the jury instructions set forth the issue of both

categories of damage.      The jury returned a verdict for Utz, awarding $191,000 in

punitive damages, though awarding no compensatory damages.

       {¶12} Following trial, Stovall filed a motion for judgment notwithstanding the

verdict, claiming the punitive damages award could not stand without compensatory

damages and was excessive. Specifically, Stovall contended that Utz failed to prove

actual damages, and thus, the punitive damages award should be stricken. Utz also

filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for

a new trial. Utz argued that she did, in fact, prove compensatory damages, imploring

the court to respect the $191,000 damages award, but restate the award as $31,000 to




                                             5
$96,000 for compensatory damages and the remainder as punitive damages.

Alternatively, Utz argued a new trial should be granted, asserting that the jury found she

should prevail, but apparently did not follow the instructions concerning damages.

       {¶13} The trial court granted Utz’s motion for a new trial, noting:

              The jointly prepared jury instructions included instructions for
              nominal damages, compensatory damages and punitive damages.
              It is clear that the jury instructions were deficient and lacked proper
              guidance to assist the trier of fact in reaching a reasonable verdict.
              The instructions, lack of interrogatories and general verdict forms
              confused the jury in their analysis and findings.

       {¶14} Stovall now appeals and asserts five assignments of error for review by

this court which, for ease of discussion, will be addressed out of numerical order.

       Summary Judgment

       {¶15} Stovall’s first and second assignments of error state:

              [1.] The trial court erred in not granting Appellant Stovall’s motion
              for summary judgment since there was no clear and convincing
              evidence that Stovall’s administrative complaint was made with
              actual malice.

              [2.] The trial court erred in not granting Appellant Stovall’s summary
              judgment since there was no breach of the settlement agreement.

       {¶16} Under her first and second assignments of error, Stovall claims the trial

court erred as a matter of law in denying her motion for summary judgment. Utz points

out the trial court did not technically rule on Stovall’s motion, but in any respect, Utz

argues the matter is moot. We point out that “a trial court’s failure to rule on a motion

creates a presumption that the trial court overruled the motion.”        Cunnane-Gygli v.

MacDougal, 11th Dist. Geauga No. 2004-G-2597, 2005-Ohio-3258, ¶20. Further, the

trial court also denied Utz’s motion for summary judgment, determining genuine issues

of material fact existed with regard to her claims.



                                             6
       {¶17} As a preliminary matter, we address Utz’s contention that the matter is

moot. As argued by Utz, the Supreme Court of Ohio has stated that “[a]ny error by a

trial court in denying a motion for summary judgment is rendered moot or harmless if a

subsequent trial on the same issues raised in the motion demonstrates that there were

genuine issues of material fact supporting a judgment in favor of the party against whom

the motion was made.” Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150 (1994),

syllabus.

       {¶18} As this court further explained in Kessler v. Totus Tuss, L.L.C., 185 Ohio

App.3d 240, 2009-Ohio-6376, ¶38 (11th Dist.):

             The point is, even if the trial court’s ruling on a moving party’s
             motion was incorrect on a matter of law, reversing the matter would
             be more unjust to the party who won judgment after the evidence
             was more completely presented, cross-examination had, and where
             witnesses were heard and their credibility appraised. * * * In effect,
             even if appellants’ motion had some legal merit prior to
             presentation of all the evidence, the denial was inconsequential due
             to the court’s judgment after the trial on the merits.

      {¶19} Here, the court’s judgment after the trial on the merits has been set aside

and held for naught, subject to review by this court; accordingly, we cannot conclude the

matter is moot.

      {¶20} Our concern, however, lies with the procedural effect of this denial after a

new trial has been ordered.      The denial of a summary judgment motion does not

determine an action and prevent a judgment and, therefore, generally does not

constitute a final order.    Celebrezze v. Netzley, 51 Ohio St.3d 89, 90 (1990).

Specifically, “the denial of summary judgment in defamation actions is not ‘an order

made in a special proceeding,’ pursuant to R.C. 2505.02[.]” Id. at 92-93. However, “[i]f

a trial court determines, as here, that a genuine issue exists as to whether the allegedly-



                                            7
libelous statements were not protected expressions of opinion, then summary judgment

must be denied, and such denial ‘is reviewable on appeal by the movant [only] from a

subsequent adverse final judgment.’” Id., quoting Balson v. Dodds, 62 Ohio St.2d 287

(1980), paragraph one of the syllabus. This case presents something of a procedural

quagmire: Stovall did indeed face a subsequent adverse judgment; however, that

judgment has been set aside and held for naught, subject to review by this court. In

effect, this order still does not determine the action or prevent a judgment.

       {¶21} Stovall argues summary judgment as to the defamation claim was

appropriate as a matter of law because her complaint to the school enjoyed a qualified

privilege.

       {¶22} This court has previously cited the elements a defendant must prove to

invoke the qualified privilege defense as follows: “[A] defendant must establish that (1)

he acted in good faith; (2) there was an interest to be upheld; (3) the statement was

limited in its scope to the purpose of upholding that interest; (4) the occasion was

proper; and (5) the publication was made in a proper manner and only to proper

parties.” Mosley v. Evans, 90 Ohio App.3d 633, 636 (11th Dist.1993), citing Hahn v.

Kotten, 43 Ohio St.2d 237, 246 (1975).

       {¶23} In McCoy v. Maxwell, 11th Dist. Portage No. 2001-P-0132, 2002-Ohio-

7157, ¶30, citing Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996), we addressed a

defendant’s motion for summary judgment on the grounds of qualified privilege:

              A defendant moving for summary judgment on the basis of qualified
              privilege must present sufficient evidence to demonstrate that no
              genuine issue of material fact exists as to each of the elements of
              the affirmative defense. * * * If the defendant can establish that
              there is no genuine issue of material fact on each element, then the
              plaintiff can only overcome qualified privilege by establishing with



                                             8
              convincing clarity that defendant acted with actual malice. In a
              summary judgment motion claiming an affirmative defense,
              however, the nonmoving plaintiff does not have to present any
              evidence unless the defendant first satisfies her burden.

       {¶24} Upon review, the evidentiary material supported that Stovall’s complaint

was framed under a concern about her children. This is an appropriate interest to be

upheld.    The issue, however, becomes whether Stovall acted in good faith and,

moreover, whether these complaints were limited in their scope to the purpose of

upholding that interest. The issue is whether Stovall’s comments beyond the mere

recitation of Utz’s objectionable remark satisfied the “limited scope” element. When

construing the evidence in favor of the nonmoving party, it is clear this is a question that

cannot be resolved based on the evidentiary materials submitted.             It cannot be

concluded the court erred in finding there to be genuine issues of fact which needed to

be resolved at trial.

       {¶25} Stovall next argues summary judgment as to the breach of contract claim

was appropriate as a matter of law because, quite simply, she did not breach the terms

of the settlement agreement, and assuming she did, Utz could not prove damages.

       {¶26} Paragraph 3 of the Settlement Agreement releases Utz from “any and all

manner of claims, demands, warranties, actions, causes of action, suits * * * damages

of whatever nature * * * including, but not limited to, those matters asserted in the Action

or that could have been asserted in the Action.” The Settlement Agreement also stated

that the Stovalls “expressly agree that they will not use as a basis for any future claim

they might pursue against * * * Utz, any fact or circumstance that occurred prior to the

execution of this Agreement asserting that such fact or circumstance is a basis of a




                                             9
continuing violation for the purposes of establishing timeliness relating to a statute of

limitations.”

       {¶27} Paragraph 9 of the Settlement Agreement states “there will be no

retaliatory action taken by the Parties against one another.”

       {¶28} Generally, a breach of contract occurs when a party demonstrates the

existence of a binding contract or agreement; the non-breaching party performed its

contractual obligations; the other party failed to fulfill its contractual obligations without

legal excuse; and the non-breaching party suffered damages as a result of the breach.

See National City Bank v. Erskine & Sons, 158 Ohio St. 450 (1953).

       {¶29} The Settlement Agreement, executed August 20, 2008, specifically

prohibits Stovall from asserting as “the basis for any future claim” any fact or

circumstance that occurred prior to the execution of the agreement and releases Utz

from, inter alia, any and all claims asserted in the prior action or claims that could have

been asserted in the prior action.      Evidentiary material demonstrates that Stovall’s

writings are laced with incidents and allegations that occurred prior to the parties

executing the Settlement Agreement, to wit: “Mrs. Utz has taunted us with racially

motivated rhetoric for the past eleven years”; “I have had to endure this behavior, the

verbal abuse and insults for many years”; “[s]he works for the school district and has

been questioned about previous demeaning behavior”; and “[w]e have been

unsuccessful instilling ideals and behavioral patterns which are consistent with mutual

understanding, cooperation and respect.” A jury could determine that this complaint

against Utz was presented, at least in part, based on incidents that occurred prior to

execution of the Settlement Agreement. With regard to damages, Utz averred that after




                                             10
seeing the formal written complaint she was ill and has experienced numerous physical

ailments for which she has sought medical treatment. Utz also averred that she has

had to use numerous personal days as a result of Stovall’s breach of the Settlement

Agreement.

       {¶30} It therefore cannot be concluded that the trial court erred in finding this to

be an issue for determination at trial.

       {¶31} Stovall’s first and second assignments of error are without merit.

       {¶32} Stovall’s third and fifth assignments of error state:

       Qualified Privilege

       {¶33} “[3.] [The] trial court erred in not making a ruling that filing of the

administrative complaint was subject to qualified privilege.”

       Directed Verdict

       {¶34} “[5.] The trial court erred in not granting Appellant Stovall’s two motions for

a directed verdict stating that there was no clear and convincing evidence that Stovall’s

complaint was made with actual malice and that Stovall breached the terms of the

settlement agreement.”

       {¶35} Pursuant to Civ.R. 50(A)(4), a motion for directed verdict should be

granted when, after construing the evidence most strongly in favor of the party against

whom the motion is directed, “reasonable minds could come to but one conclusion upon

the evidence submitted and that conclusion is adverse to such party[.]”

       {¶36} When a trial court determines whether to grant a motion for directed

verdict, it is testing the legal sufficiency of the evidence by examining the materiality of

the evidence rather than the conclusions which can be drawn from such evidence.




                                            11
Eldridge v. Firestone Tire & Rubber Co., 24 Ohio App.3d 94, 96 (10th Dist.1985). It is

therefore a legal determination of whether only one result can be reached under the

“theories of law presented.” Id. The trial court must give the opposing party the benefit

of all reasonable inferences from the evidence and must not independently weigh the

evidence or determine the credibility of the witnesses. Id. As the motion for directed

verdict presents questions of law and not factual issues, this court employs a de novo

standard of review. Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d

107, 108 (1995).

       {¶37} After Utz rested, Stovall moved for a directed verdict, which was denied

with respect to the counts of breach of contract, defamation, libel, and slander per se.

The trial court stated, “after listening to the evidence, at least from the Plaintiff’s side,

there seems to be actual malice, and, therefore, no qualified privilege.”

       {¶38} After the close of evidence, Stovall renewed the motion for directed

verdict. The motion was again denied.

       {¶39} The parties then argued whether the issue of qualified privilege should be

presented to the jury.    Utz’s attorney indicated that Stovall could not meet all five

requirements to invoke qualified privilege, i.e, that she acted in good faith; there was an

interest to be upheld; the statement was limited in its scope to the purpose of upholding

that interest; the occasion was proper; and the publication was made in a proper

manner and only to proper parties. Specifically, Utz’s attorney argued that Stovall could

not demonstrate that she acted in good faith and that the statement was properly limited

in its scope. Conversely, Stovall argued that she met the five elements of qualified

privilege.




                                             12
       {¶40} The trial court found Stovall’s affirmative defense of qualified privilege

inapplicable, noting it agreed with Stovall that the statement was limited in its scope, but

stated: “on lack of good faith, that’s a little different. Do I believe there was actual

malice here? Yes, I do. I mean, it’s overwhelming, I think. So I’m going to deny

qualified privilege.”

       {¶41} Therefore, in denying Stovall’s motions for directed verdict, the trial court

found the doctrine of qualified privilege inapplicable. On appeal, Stovall maintains that

a parent has the right to file a complaint against a school employee and that the

defense of qualified privilege is applicable to this case. We must decide whether the

statements made by Stovall were qualifiedly privileged.

       {¶42} Conditional or qualified privilege is based on public policy. It does
             not change the actionable quality of the words published, but
             merely rebuts the inference of malice that is imputed in the absence
             of privilege, and makes a showing of falsity and actual malice
             essential to the right of recovery.

       {¶43} A qualified or conditionally privileged communication is one made in
             good faith on any subject matter in which the person
             communicating has an interest, or in reference to which he has a
             right or duty, if made to a person having a corresponding interest or
             duty on a privileged occasion and in a manner and under
             circumstances fairly warranted by the occasion and duty, right or
             interest. The essential elements thereof are good faith, an interest
             to be upheld, a statement limited in its scope to this purpose, a
             proper occasion, and publication in a proper manner and to proper
             parties only.

50 American Jurisprudence 2d 698, Libel and Slander, Section 195. (Emphasis added.)

       {¶44} Some measure of clarification should be made regarding the issue of

“good faith” and “actual malice” in the context of a claim of qualified privilege. As the

Ohio Supreme Court has held in A & B-Abell Elevator Co., Inc. v. Columbus/Cent. Ohio

Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 11 (1995):



                                            13
      {¶45} The issue of ‘good faith’ necessary to establish the privilege should
            not be confused with the issue of ‘state of mind’ necessary to
            defeat it. See, e.g., St. Amant v. Thompson (1968), 390 U.S. 727,
            732 * * *.

      {¶46} ‘This distinction has been obscured, especially in the English
            cases, by the theory that a privileged occasion is such because the
            circumstances repel the inference of malice; that is, they are more
            consistent with the absence than the presence of malice. The
            fallacy of this rationale is apparent when it is remembered that
            “malice” in any real sense is an unimportant factor in defamation
            unless the publication is made upon a privileged occasion. It is
            strange indeed, then, that the fact that the circumstances negative
            the inference of malice is the factor that makes a situation
            privileged.’ [2 Harper, James & Gray, The Law of Torts, Section
            5.25, at 214-215 (2d Ed.1986).]

      {¶47} The issue of malice is consigned to the question of abuse of
            privilege. It does not arise unless a privilege is first found to exist.
            It is anomalous to suggest that the existence of a privilege is
            dependent upon that which is not called into play but for the
            existence of the privilege. Moreover, in Ohio a qualified privilege
            can be defeated only by a clear and convincing showing that the
            communication was made with actual malice. [Jacobs v. Frank, 60
            Ohio St.3d 111 (1990)], paragraph two of the syllabus.

      {¶48} In essence, if the statements were not made in good faith, the qualified

privilege is inapplicable. Assuming satisfaction of all other aforementioned elements, if

the statements were made in good faith, such as in a situation where there was a belief

in the truth of the assertions, the qualified privilege defense is applicable, thereby

negating recovery by plaintiff. DeAngelo v. W.T. Grant Co., 8th Dist. Cuyahoga No.

22411, 1952 Ohio App. LEXIS 874, *9 (May 26, 1952) (“if the occasion be privileged,

the plaintiff may not recover although he proves that defendant used language

actionable per se and that same was false”). Once the defense of the qualified privilege

is invoked, it can be defeated only through a clear and convincing showing of actual

malice. Id.




                                           14
       {¶49} In this case, the trial court seems to have determined the statements were

not made in good faith and were made with malicious intent.                In reality, once a

determination is made that the statements were not made in good faith, there is no need

for further inquiry. Quite simply, under that circumstance, the qualified privilege defense

is inapplicable.

       {¶50} Furthermore, it was not error for the trial court to determine qualified

privilege inapplicable as a matter of law. “Where the circumstances of the occasion for

the alleged defamatory communications are not in dispute, the determination of whether

the occasion gives the privilege is a question of law for the court.” Blantik v. Dennison,

148 Ohio App.3d 494, 505 (11th Dist.2000), citing A & B-Abell Elevator Co., Inc., supra,

at 7. We agree with the conclusion of the trial court that the statements were not made

in good faith, and therefore, the qualified privilege did not apply; it was not error to fail to

instruct the jury on the defense of qualified privilege.

       {¶51} Similarly, the trial court did not err in denying Stovall’s motion for directed

verdict with regard to the breach of contract claim.           Paragraphs 3 and 9 of the

Agreement provide that Stovall will not use any fact or circumstance that occurred prior

to the execution of the Agreement and will refrain from retaliatory action against Utz. In

Stovall’s letters, she references the past conduct of Utz spanning an 11-year period.

Moreover, Stovall cites to Utz’s past conduct, including “verbal abuse and insults for

many years,” “previous demeaning behavior,” and “behavioral patterns” of Utz.

Furthermore, Stovall maintains that even if Utz demonstrated a breach, she failed to

prove damages as evidenced by the jury verdict. This argument, however, is addressed

in Stovall’s fourth assignment of error.




                                              15
       {¶52} We do not find error in the trial court’s denial of Stovall’s motion for a

directed verdict with regard to the breach of contract claim.

       {¶53} Stovall’s third and fifth assignments of error are without merit.

       New Trial

       {¶54} Stovall’s fourth assignment of error states:

       {¶55} “The trial court erred in granting Utz’s motion for a new trial rather than

only striking the punitive damage verdict and leaving the remainder of the judgment.”

       {¶56} In her fourth assignment of error, Stovall argues the trial court erred in

granting Utz’s motion for a new trial and, instead, should have granted Stovall’s motion

for judgment notwithstanding the verdict; i.e., the $191,000 punitive damages award

should have been set aside, thereby leaving the remainder of the jury’s verdict.

Although not properly characterized as error, compounded in this assignment of error is

the trial court’s denial of Stovall’s motion for judgment notwithstanding the verdict. We

find the trial court did not err by granting Utz’s motion for a new trial. Similarly, the trial

court did not err in denying Stovall’s motion for judgment notwithstanding the verdict.

       {¶57} An order that vacates or sets aside a judgment or grants a new trial is a

final, appealable order under R.C. 2505.02(B)(3). Pursuant to Civ.R. 50(B), a motion for

a new trial may be joined with a motion for judgment notwithstanding the verdict, or a

new trial may be prayed for in the alternative, as in the case sub judice. New trials are

governed by Civ.R. 59. The trial court granted the new trial based upon the grounds set

forth in Civ.R. 59(A)(3)(4)(5)(7) and (9): Accident or surprise which ordinary prudence

could not have guarded against; Excessive or inadequate damages, appearing to have

been given under the influence of passion or prejudice; Error in the amount of recovery,




                                              16
whether too large or too small, when the action is upon a contract or for the injury or

detention of property; The judgment is contrary to law; and Error of law occurring at the

trial and brought to the attention of the trial court by the party making the application.

       {¶58} The decision of whether to grant a motion for a new trial is entrusted to the

sound discretion of the trial court, which “witnessed the trial firsthand and relied upon

more than a cold record to justify a decision.” Harris v. Mt. Sinai Med. Ctr., 116 Ohio

St.3d 139, 2007-Ohio-5587, ¶39. Accordingly, this court reviews a trial court’s decision

on a motion for new trial under the abuse of discretion standard of review. Effingham v.

XP3 Corp., 11th Dist. Portage No. 2006-P-0083, 2007-Ohio-7135, ¶18.

       {¶59} Pursuant to R.C. 2315.21(B):

              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 that defendant as principal or master authorized,
              participated in, or ratified actions or omissions of an agent or
              servant that so demonstrate; [and]

              (2) The plaintiff in question has adduced proof of actual damages
              that resulted from actions or omissions as described in division
              (B)(1) of this section.

       {¶60} Consequently, Utz was required to demonstrate evidence of malice on the

part of Stovall and actual damages before her claim for punitive damages could be

considered by the jury.

       {¶61} “Malice” is defined as “(1) that state of mind under which a person’s

conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious

disregard for the rights and safety of other persons that has a great probability of

causing substantial harm.” Preston v. Murty, 32 Ohio St.3d 334 (1987).



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      {¶62} Here, the jury awarded $191,000 in punitive damages, but did not award

Utz any compensatory damages. Punitive damages may not be awarded when a jury

fails to award compensatory damages. Bishop v. Grdina, 20 Ohio St.3d 26 (1985).

However, in this case, it is clear the trial court felt that compensatory damages, at least

to some degree, had been established.            The trial court then noted that the jury

instructions were confusing with regard to damages and concluded that, in the interest

of justice, the proper remedy was to grant a new trial and that the jury should have, at

the very least, awarded nominal damages. We cannot say this was an abuse of the trial

court’s discretion, and we thus concur with the conclusion that a new trial is a proper

remedy under these facts.

      {¶63} Stovall’s fourth assignment of error is without merit.

      {¶64} Based on the opinion of this court, the judgment of the Portage County

Court of Common Pleas is hereby affirmed.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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