[Cite as Black v. Stouffer Realty, Inc., 2013-Ohio-5723.]


STATE OF OHIO                      )                        IN THE COURT OF APPEALS
                                   )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

PAMELA BLACK                                                C.A. No.   26550

        Appellant/Cross-Appellee

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
STOUFFER REALTY, INC.                                       COURT OF COMMON PLEAS
                                                            COUNTY OF SUMMIT, OHIO
        Appellee                                            CASE No.   CV-2010-11-7671

        and

NIKKI KONSTAND RELIC

        Appellee/Cross-Appellant

                                  DECISION AND JOURNAL ENTRY

Dated: December 26, 2013



        BELFANCE, Presiding Judge.

        {¶1}     Plaintiff-Appellant Pamela Black and Defendants-Cross-Appellants Stouffer

Realty, Inc. and Nikki Konstand Relic appeal the judgment of the Summit County Court of

Common Pleas.

                                                       I.

        {¶2}     Mrs. Black and her husband Theodore Black wanted to buy a condominium

owned by Joseph Martha. The condominium was listed with Stouffer Realty. The Blacks signed

a dual-agency agreement with Ms. Relic, Stouffer’s agent, because she also represented Mr.
                                                  2


Martha. Mrs. Black made an initial offer of $500,000 for the condominium.1 That offer

included a clause that made it contingent upon the Blacks selling their current home. Mr. Martha

rejected the offer and made a counteroffer of $515,000 that still contained the contingency for

the Blacks selling their home.     The parties dispute whether Ms. Relic ever brought this

counteroffer to the Blacks, but, in any case, Mr. Martha’s offer was not accepted. Ms. Relic

agreed to give up $5,000 of her commission, and the parties agreed on a sale price of $510,000

with a $150,000 down payment. If Mrs. Black did not apply for financing within five business

days, Mr. Martha had the option to declare the contract to be void. The parties also agreed that

the closing date of the sale would be April 30, 2010, which was the last day that the Blacks

would be eligible for $6,500 in stimulus money for the sale. However, the final agreement was

not contingent on the sale of the Blacks’ home.

       {¶3}    The Blacks went to their bank to seek a home-equity loan on their current home in

order to pay the down payment. However, they did not seek a loan for the purchase of Mr.

Martha’s house until March 2010, well beyond the five days required by the purchase agreement.

The appraisal came back lower than the purchase price, and, thus, the lender declined to issue a

loan. Ms. Relic appealed the appraisal, sending in suggested comparable homes, but the new

appraisal came back in lower. Unable to obtain financing, the Blacks did not purchase Mr.

Martha’s house.

       {¶4}    Mr. Martha ultimately sold the property for $487,500 and then sued Mrs. Black

for breach of contract, seeking restitution for the difference between the $510,000 contract price

and the sale price as well as compensation for expenses he had incurred, including condominium



1
  Although Mr. and Mrs. Black signed the purchase agreement and the dual agency agreement,
the purchase agreement only named Mrs. Black as the buyer.
                                                 3


fees and maintenance costs. Mrs. Black counterclaimed against Mr. Martha and also filed a

complaint against third-party defendants Stouffer Realty and Ms. Relic, alleging breach of

contract, breach of fiduciary duty, and fraud. Mrs. Black eventually settled with Mr. Martha for

$7,500, and his portion of the case was dismissed.

         {¶5}   Mrs. Black continued pursuing her claims against Stouffer Realty and Ms. Relic,

and a jury trial was held. At trial, the Blacks testified that Ms. Relic had not told them about Mr.

Martha’s counteroffer for $515,000 contingent upon the sale of the Blacks’ home, had not

explained the $150,000 down payment requirement, and had generally advocated in favor of Mr.

Martha to their detriment.     The jury eventually found in Mrs. Black’s favor and awarded

$8,907.67 in damages for breach of fiduciary duty, $7,657.67 for breach of contract, and

$9,991.67 for fraud.

         {¶6}   The trial court reconvened the jury to have it determine whether Stouffer Realty

and Ms. Relic should also be subject to punitive damages. The trial court informed the jurors

that, if they determined that punitive damages should be awarded, the jurors should then decide

whether Mrs. Black was also entitled to attorney’s fees. The jurors returned a verdict indicating

that punitive damages were not appropriate but also awarding Mrs. Black attorney fees. Mrs.

Black objected to the verdict as being inconsistent and requested that the issue be returned to the

jury. The trial court declined to return the matter to the jury and entered a judgment of $0 in

punitive damages and attorney’s fees.

         {¶7}   Mrs. Black appealed, raising two assignments of error, and Stouffer Realty and

Ms. Relic cross-appealed, raising three assignments of error. For ease of discussion, we initially

address the cross-appellants’ assignments of error, starting with their third cross-assignment of

error.
                                                  4


                                                II.

                             CROSS-ASSIGNMENT OF ERROR III

       BLACK’S CLAIMS FOR BREACH OF FIDUCIARY DUTY, FRAUD AND
       MISREPRESENTATION MUST BE REVERSED AS THE UNDERLYING
       PURCHASE AGREEMENT CONTRACT BETWEEN MARTHA AND BLACK
       WAS VOID DUE TO THE FAILURE OF THE FINANCING CONTINGENCY.

       {¶8}    In their third cross-assignment of error, Stouffer Realty and Ms. Relic essentially

argue that their breach of fiduciary duty, breach of contract, and fraud were not viable claims

because the purchase agreement between Mr. Martha and Mrs. Black was void upon Mrs.

Black’s failure to secure financing.2 We disagree.

       {¶9}    We initially observe that Stouffer Realty and Ms. Relic seem to suggest Mrs.

Black could not maintain any claims against them as a matter of law if the purchase agreement

became void. However, they have not provided any precedent in support of their argument.

Stouffer and Ms. Relic also argue that Mrs. Black had no claims against them because she could

not suffer any damage as a result of a void contract. However, the argument they advance is

based upon the incorrect premise that any injury suffered by Mrs. Black flowed exclusively from

her liability to Mr. Martha. While the Blacks testified that the impetus for filing their suit against

Stouffer Realty and Ms. Relic was Mr. Martha’s lawsuit, their claims go beyond whether they

were liable to Mr. Martha. Mrs. Black’s contention at trial was that Ms. Relic’s actions and

omissions, including failing to properly explain the contract and failing to disclose Mr. Martha’s

counteroffer for $515,000 that contained the contingency on the sale of their home, had harmed


       2
         Stouffer Realty and Ms. Relic do not argue that the jury’s determinations of breach of
contract, breach of fiduciary, and fraud were against the manifest weight of the evidence.
Rather, they argue that the claims must fail because Mrs. Black did not suffer any damage as a
result of Stouffer’s or Relic’s conduct. We confine our analysis accordingly. See App.R.
16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6,
1998).
                                                5


her. The Blacks testified that, because of the purchase agreement, they incurred loan origination

costs, stopped looking for other homes, and were unable to take advantage of the $6,500 stimulus

tax credit. All of those damages were separate from Mr. Martha’s suit and existed irrespective of

the enforceability of the purchase agreement.

       {¶10} Thus, even assuming that the purchase agreement was void because Mrs. Black

could not obtain financing, that fact would not negate all of the injuries Mrs. Black argued that

she had suffered. Her claims of fraud, breach of contract, and breach of fiduciary duty were all

causes of action independent of the status of the purchase agreement, and Stouffer Realty and

Ms. Relic have not cited any authority to support their argument to the contrary. See App.R.

16(A)(7). Accordingly, their third cross-assignment of error is overruled.

                             CROSS-ASSIGNMENT OF ERROR I

       BLACK’S CLAIM AGAINST RELIC/STOUFFER FOR INDEMNIFICATION
       FOR THE $7,500 PAYMENT TO MARTHA MUST FAIL AS A MATTER OF
       LAW SINCE ANY CLAIM MARTHA HAD AGAINST BLACK WAS DUE
       EXCLUSIVELY TO THE BLACKS’ ACTIONS AND NOT TO ACTIONS OF
       RELIC/STOUFFER.

       {¶11} In Stouffer Realty and Ms. Relic’s first cross-assignment of error, they argue that

Mrs. Black could not succeed on her claim of indemnification, which they describe as her “main

claim” against them. However, it is apparent from the record that Mrs. Black’s claims at trial

were based on breach of contract, breach of fiduciary duty, and fraud, not indemnification.3

Accordingly, Stouffer Realty and Ms. Relic’s first assignment of error is overruled.


       3
         Mrs. Black’s third-party complaint did contain a claim for indemnification. However,
Mrs. Black attempted to dismiss all of her claims other than breach of contract, breach of
fiduciary duty, and fraud prior to trial by means of Civ.R. 41(A)(1)(a), which is why her
indemnification claim was not presented to the jury. This Court has recognized that Civ.R.
41(A)(1)(a) only permits a party to dismiss all of its claims against a defendant, not some of
them. Foley v. Empire Die Casting Co., Inc., 9th Dist. No. 24558, 2009-Ohio-5539, ¶ 4. Mrs.
Black’s purported dismissal was, therefore, ineffective. However, because the court included
                                                 6


                             CROSS-ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN PERMITTING
       THE REMAINING DAMAGES TO BE CONSIDERED BY THE JURY, AS
       THE COURT GRANTED A DIRECTED VERDICT AS TO CERTAIN OF
       THOSE DAMAGES, AND THERE WAS NO EVIDENCE AT ALL OF
       “SERIOUS” PAIN, SUFFERING AND MENTAL ANGUISH.

       {¶12} Stouffer Realty and Ms. Relic argue in their final cross-assignment of error that

the jury’s verdict against them must be reversed because the trial court had granted a motion for

directed verdict regarding some of Mrs. Black’s claimed damages and because “there was

absolutely no evidence presented at trial to support a finding of ‘serious pain, suffering, or

mental anguish’ damages.” We disagree.

       {¶13} With regard to the assertion that the trial court granted a directed verdict for

Stouffer Realty and Ms. Relic on some of the damages claimed by Mr. and Mrs. Black, the

record reveals that the trial court actually denied the motion on two occasions—at the end of the

plaintiff’s case and at the end of the defendants’ case—and Stouffer Realty and Ms. Relic have

not challenged the denial of the motion on appeal. Thus, to the extent that their arguments are

premised on the court improperly allowing the jury to consider damages that had been eliminated

by a directed verdict, they are without merit.

       {¶14} The jury awarded the Blacks $9,991.67 on their claim of fraud, $7,657.67 on their

breach of contract claim, and $8,907.67 for breach of fiduciary duty. While Stouffer Realty and

Ms. Relic offer suggestions as to what specific damages the jury awarded, no interrogatories

were submitted to the jury, and, therefore, the breakdown of the damages offered by the cross-




Civ.R. 54(B) language in its journal entry, Mrs. Black’s pending claims do not deprive this Court
of jurisdiction over this appeal. Foley at ¶ 4.
                                                  7


appellants is speculative since there is no evidence in the record to indicate what injuries

constituted the damage awards. See Colvin v. Abbey’s Restaurant, Inc., 85 Ohio St.3d 535, 538

(1999) (“The purpose of using interrogatories is to test the general verdict.”). In the absence of

interrogatories, an appellate court may not overturn a jury’s damage award unless it is apparent

from the record that the award was the result of passion or prejudice. See Grimm v. Summit Cty

Children Services Bd., 9th Dist. Summit No. 22702, 2006-Ohio-2411, ¶ 43, citing Patio

Enclosures, Inc. v. Four Seasons Marketing Corp., 9th Dist. Summit No. 22458, 2005-Ohio-

4933, ¶ 47. See also Magnum Steel & Trading, L.L.C. v. Mink, 9th Dist. Summit Nos. 26127,

26231, 2013-Ohio-2431, ¶ 32, quoting Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 655

(1994) (‘“In Ohio, it has long been held that the assessment of damages is so thoroughly within

the province of the jury that a reviewing court is not at liberty to disturb the jury’s assessment

absent an affirmative finding of passion and prejudice or a finding that the award is manifestly

excessive.’”). Stouffer Realty and Ms. Relic have not argued that the jury’s award was the result

of passion or prejudice. See Cardone, 1998 WL 224934, at *8. Furthermore, after a thorough

review of the record, we cannot conclude that it is apparent that the jury’s damages award is the

result of passion and prejudice. See Grimm at ¶ 43. See also Pena v. Northeast Ohio Emergency

Affiliates, Inc., 108 Ohio App.3d 96, 104 (9th Dist.1995) (“The mere size of the verdict is

insufficient to establish proof of passion or prejudice.”).

       {¶15} Accordingly, the second cross-assignment of error of Stouffer Realty and Ms.

Relic is overruled.

                                   ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, TO THE
       PREJUDICE OF PAMELA BLACK, BY FAILING AND REFUSING TO RE-
       CLARIFY TO THE JURY WHAT THE LAW IS ON PUNITIVE DAMAGES
       AND ATTORNEY FEES, AND TO GIVE THE MEMBERS OF THE JURY
                                                8


       THE OPPORTUNITY TO THEN CURE THEIR VERDICT OF ANY
       CONFUSION OR MISTAKE.

       {¶16} In support of Mrs. Black’s first assignment of error, she argues that, when the jury

returned verdicts indicating that she was not entitled to punitive damages but entitled to attorney

fees, the trial court should have ordered the jury to reconsider its verdicts. Because Mrs. Black

confines her arguments to the whether the trial court violated Civ.R. 49(B), we confine our

analysis accordingly. See App.R. 16(A)(7); Cardone at *8.

       {¶17} The jury returned a verdict indicating that it found that Mrs. Black was not

entitled to punitive damages but also found that Mrs. Black was entitled to attorney fees. This

verdict was inherently inconsistent because attorney fees may not be awarded unless provided

for by contract, the prevailing party has demonstrated bad faith, or punitive damages are

awarded. See Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009–Ohio–306, ¶ 7; Zoppo v.

Homestead Ins. Co., 71 Ohio St.3d 552, 558 (1994).

       {¶18} Mrs. Black argues that the trial court’s actions violated Civ.R. 49(B). According

to Mrs. Black, because the attorney fee verdict “essentially was in the nature of a jury

interrogatory[,]” Civ.R. 49(B) would apply, and the trial court failed to comply with Civ.R.

49(B). “Civ.R. 49(B) details the procedures a trial court must follow when the parties submit

interrogatories to go to the jury upon the court’s approval. The purpose of using interrogatories

is to test the general verdict.” Colvin, 85 Ohio St.3d at 538. Civ.R. 49(B) allows the trial court

to submit interrogatories to the jury at the request of a party, which “may be directed to one or

more determinative issues whether issues of fact or mixed issues of fact and law.” In the event

that the jury’s answers to the interrogatories are inconsistent with its general verdict, the trial

court may enter judgment in accordance with the interrogatories, return the jury for further

consideration of its answers and verdict, or may order a new trial. Civ.R. 49(B).
                                                 9


       {¶19} Mrs. Black argues that, because the trial court did not use one of the options

permitted by Civ.R. 49(B), it committed reversible error.       However, we disagree with the

premise underlying Mrs. Black’s argument, namely, that the verdict form functioned as

interrogatories to the jury. The jury verdict form contains an area to indicate an award of

punitive damages as well as an area for the jury to award attorney fees. The portion of the

verdict form allowing the jury to indicate whether attorney fees were appropriate was not testing

the jury’s award of punitive damages but was actually a general verdict in and of itself.4 See,

e.g., Lynch v. Greenwald, 9th Dist. Summit No. 26083, 2012-Ohio-2479, ¶ 7-8. Therefore,

Civ.R. 49(B), which governs jury interrogatories, is inapplicable. Kenney v. Fealko, 75 Ohio

App.3d 47, 53 (11th Dist.1991) (Civ.R. 49(B) “is inapplicable to th[e] situation in which the jury

is asked to return more than one general verdict.”).

       {¶20} Accordingly, Mrs. Black’s limited argument is without merit, and her first

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE
       PREJUDICE OF PAMELA BLACK, BY GIVING THE JURY AN
       AMBIGUOUS AND CONFUSING PUNITIVE DAMAGES VERDICT FORM.

       {¶21} In Mrs. Black’s second assignment of error, she argues that the trial court abused

its discretion when it provided the jury with an ambiguous and confusing verdict form.

       {¶22} Mrs. Black is correct that the jury form does not specify that an award of attorney

fees may only be made if the jury awards punitive damages. Instead, the form simply read, “We,

the jury, being duly impaneled, sworn, and affirmed find the Plaintiff, PAM BLACK, *____

       4
         Mrs. Black recognizes this problem, which is why she does not claim that the attorney
fee portion of the verdict form actually is an interrogatory. For this reason, her reliance upon
Anousheh v. Planet Ford, Inc., 2d Dist. Montgomery Nos. 21960, 21967, 2007-Ohio-4543, is
misplaced since the jury in that case answered interrogatories. Id. at ¶ 9.
                                                 10


entitled to punitive damages.” Underneath that sentence, there was a place for the jury to enter

the amount of punitive damages, and, underneath that, was the following sentence: “We further

find the Plaintiff, PAM BLACK *___ entitled to Attorney Fees.”

       {¶23} Mrs. Black never objected to the jury form before it was submitted to the jury

notwithstanding the fact that counsel was aware of the content of the form upon the court reading

it to the jury.   While Mrs. Black argues that the trial court never presented her with an

opportunity to review the verdict forms, the trial court’s judgment entry indicates that the trial

court had allowed counsel to review the forms. There is nothing in the record indicating that

counsel for either party asked the trial court to examine the verdict form. Even accepting as true

Mrs. Black’s assertion that the trial court did not allow the attorneys to review the punitive

damage verdict form, we conclude that Mrs. Black forfeited all but plain error on appeal. See

White v. Artistic Pools, Inc., 9th Dist. Summit No. 24041, 2009-Ohio-443, ¶ 7 (“Where a party

has forfeited an objection by failing to raise it, the objection may still be assigned as error on

appeal if a showing of plain error is made.”) (Internal quotations and citations omitted.).

       {¶24} The Supreme Court has cautioned that,

       [i]n applying the doctrine of plain error in a civil case, reviewing courts must
       proceed with the utmost caution, limiting the doctrine strictly to those extremely
       rare cases where exceptional circumstances require its application to prevent a
       manifest miscarriage of justice, and where the error complained of, if left
       uncorrected, would have a material adverse effect on the character of, and public
       confidence in, judicial proceedings.

Goldfuss v. Davidson, 79 Ohio St.3d 116, 121 (1997). Mrs. Black argues that the trial court

committed plain error because the jury’s verdict was inconsistent. However, that argument does

not address Mrs. Black’s assignment of error. Mrs. Black does not develop any argument or

provide applicable authority in support of her stated assignment of error, namely, that the trial

court abused its discretion when it submitted the jury verdict form to the jury under
                                                  11


circumstances where neither party objected to the contents of the verdict form. See App.R.

16(A)(7); Cardone, 1998 WL 224934, at *8.

       {¶25} Accordingly, Mrs. Black’s second assignment of error is overruled.

                                                III.

       {¶26} We overrule the parties’ assignments and cross-assignments of error.             The

judgment of the Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.



       Costs taxed equally to both parties.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT
                                         12



WHITMORE, J.
HENSAL, J.
CONCUR.

APPEARANCES:

DOUGLAS P. WHIPPLE, Attorney at Law, for Appellant/Cross-Appellee.

MARK A. ROPCHOCK, Attorney at Law, for Appellee/Cross-Appellant.
