[Cite as Catalanotto v. Byrd, 2017-Ohio-7688.]


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

JOHN CATALANOTTO, et al.                               C.A. No.        28426

        Appellants

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
PHYLLIS BYRD, et al.                                   COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellee                                       CASE No.   CV 2011-04-1811

                                 DECISION AND JOURNAL ENTRY

Dated: September 20, 2017



        CALLAHAN, Judge.

        {¶1}     Appellants, John and Rita Catalanotto (“the Catalanottos”), appeal the judgment

entered in favor of Appellee, Phyllis Byrd, in the Summit County Court of Common Pleas. For

the reasons set forth below, this Court reverses and remands.

                                                  I.

        {¶2}     This case arises from a long-standing feud between neighbors. This is the fourth

appeal in this matter following the jury trial and post-judgment motions.

        {¶3}     The first appeal was dismissed upon the parties’ joint motion. See Catalanotto v.

Byrd, 9th Dist. Summit No. 27144 (Jan. 22, 2014) (“Catalanotto I”). The second appeal outlined

the parties’ claims, the jury’s verdict, and the disposition of the post-trial motions:

        In their suit, the Catalanottos brought counts against both Byrd and [Edwin]
        Moore for trespass, loss of enjoyment, intentional infliction of emotional distress,
        invasion of privacy, and declaratory judgment. They also brought counts against
        Byrd alone for conversion, trespass to chattels, malicious prosecution, and abuse
        of process. Byrd and Moore answered the complaint, and Byrd filed several
        counterclaims against the Catalanottos, including claims for trespass, assault, and
                                                 2


       intentional infliction of emotional distress. Byrd’s counterclaims for trespass and
       assault included a request for punitive damages and attorney fees.

       A jury trial took place and * * * resulted in verdicts in favor of Byrd on her
       counterclaims for trespass, assault, and intentional infliction of emotional distress.
       As to her claim for trespass, the jury found that the Catalanottos had acted with
       malice and that Byrd was entitled to attorney fees, but did not award her either
       compensatory or punitive damages. As to her claim for assault, the jury likewise
       found that the Catalanottos had acted with malice and that Byrd was entitled to
       attorney fees, but once again did not award her any compensatory damages. The
       jury awarded Byrd $5,000 in punitive damages on her claim for assault and
       $10,000 in compensatory damages on her claim for intentional infliction of
       emotional distress. The court entered a judgment on the verdicts and noted the
       need for a hearing on the matter of attorney fees.

       * * * [T]he Catalanottos filed a motion for judgment notwithstanding the verdict
       (“JNOV”). In their JNOV motion, they argued that Byrd was not entitled to
       punitive damages on her assault claim because the jury had failed to award her
       compensatory damages on that claim. They further argued that, once the court
       overturned the punitive damage award, Byrd would not be entitled to attorney
       fees. Byrd responded in opposition, arguing both that the Catalanottos’ motion
       was procedurally defective and that she should prevail on the arguments
       underlying it.

       The trial court granted the JNOV motion in part and denied it in part. Specifically,
       the court vacated the punitive damage award, but allowed the award of attorney
       fees. [After an attorney fee hearing, the trial court] ordered the Catalanottos to pay
       $15,000 for Byrd’s attorney fees.

Catalanotto v. Byrd, 9th Dist. Summit No. 27302, 2015-Ohio-277, ¶ 2-5 (“Catalanotto II”).1 In

Catalanotto II,

       Both parties appealed the original trial court’s ruling on the Civ.R. 50(B) motion.
       Byrd argued on appeal that the trial court erred in partially granting the
       Catalanottos’ Civ.R. 50(B) motion because the motion was procedurally defective
       in that it only challenged the punitive damages and attorney fee awards as
       “contrary to Ohio law.” [This Court] agreed and sustained Byrd’s assignment of
       error on that basis since Civ.R. 50(B) only allows parties to challenge a jury’s
       verdict, not the jury’s damages award. [This Court] further determined that the

1
  While the Catalanottos asserted a claim for intentional infliction of emotional distress against
Ms. Byrd and Mr. Moore, Catalanotto II, 2015-Ohio-277, at ¶ 2, the record does not reflect any
disposition of that cause of action. However, the judgment entry following the jury trial included
Civ.R. 54(B) language. Accordingly, the Catalanottos’ intentional infliction of emotional distress
claim remains pending.
                                                   3


        appropriate relief for this error was to reverse and remand and [this Court]
        explained the scope of the proceedings on remand as follows:

        “On remand, the parties will be placed in the positions they occupied prior to the
        entry of the trial court’s erroneous judgment in favor of the Catalanottos. Thus,
        the Catalanottos’ [Civ.R. 50(B)] motion will be before the court, and it will be for
        the court to decide whether to deny the motion on procedural grounds or to
        employ Civ.R. 59(D) and determine whether the Catalanottos should be afforded
        relief in the form of a new trial.”

        On remand, the trial court denied the Catalanottos’ motion for judgment
        notwithstanding the verdict and their “prayer for a new trial.” As to the Civ.R.
        50(B) motion, the trial court stated that “[s]ince there is no provision in Civ.R.
        50(B) for relief based on a jury award that is contrary to law, [the Catalanottos’]
        Civ.R. 50(B) motion * * * is denied as it is a remedy to which they are not
        entitled.” As to the Catalanottos’ request for a new trial, the trial court noted that
        the entry of judgment was filed on May 17, 2013 and the Catalanottos did not
        assert their request for a new trial until filing a reply brief on June 14, 2013. The
        trial court concluded that under the provisions of former Civ.R. 59, the
        Catalanottos had to request a new trial within 14 days of the entry of judgment
        and since they failed to do that, the trial court denied the Catalanottos’ request as
        untimely. The trial court also declined to sua sponte grant a new trial under
        Civ.[R.] 59(D) on the basis that this provision only allows such relief within 28
        days of the entry of judgment. The court determined that since the time period for
        such relief expired on June 14, 2013, it was precluded from sua sponte granting a
        new trial.

(Internal citations and footnote omitted.) Catalanotto v. Byrd, 9th Dist. Summit No. 27824,

2016-Ohio-2815, ¶ 3-4 (“Catalanotto III”).

        {¶4}    The Catalanottos appealed the trial court’s denial of their motion for new trial as

being untimely filed. Catalanotto III at ¶ 6. This Court sustained the Catalanottos’ assignment

of error because pursuant to Civ.R. 86(JJ) “this matter was pending when the amended version of

Civ.R. 59(B) became effective, [and] the amendment’s 28-day time limitation [for filing a

motion for new trial] applied to this matter.” Id. at ¶ 9. Applying the amended version of Civ.R.

59(B), this Court held that the Catalanottos’ request for new trial in their reply brief was filed on

the 28th day and thus was timely. Id. The matter was remanded “for the trial court to address

the merits of the Catalanottos’ request for a new trial in the first instance.” Id. at ¶ 12.
                                                 4


       {¶5}    On the second remand, the trial court denied the Catalanottos’ motion for new

trial. Reviewing the merits of the Catalanottos’ argument, the trial court “[found] that the

punitive damages award and award of attorney fees [were] not contrary to law.”                  The

Catalanottos timely appeal this judgment, raising two assignments of error for review.

                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED BY FAILING TO ORDER A NEW TRIAL.

       {¶6}    In the first assignment of error, the Catalanottos argue the trial court erred when it

denied their motion for new trial because the jury’s award of punitive damages and attorney fees

was 1) contrary to law, 2) awarded excessive damages, and 3) erred in the amount of recovery.

This Court agrees as to their first argument only.

       {¶7}    The applicable standard of review of an order granting or denying a motion for

new trial is based upon the specific grounds of the motion. Jackovic v. Webb, 9th Dist. Summit

No. 26555, 2013-Ohio-2520, ¶ 17. “[W]hen the basis of the motion involves a question of law,

the de novo standard of review applies, and when the basis of the motion involves the

determination of an issue left to the trial court’s discretion, the abuse of discretion standard

applies.” Dragway 42, L.L.C. v. Kokosing Constr. Co., Inc., 9th Dist. Wayne No. 09CA0073,

2010-Ohio-4657, ¶ 32; see also Rohde v. Farmer, 23 Ohio St.2d 82 (1970), paragraphs one and

two of the syllabus.

       {¶8}    Pursuant to Civ.R. 59(A), “[a] new trial may be granted to all or any of the parties

and on all or part of the issues” upon a finding of one of the nine grounds. In this appeal, the

Catalanottos seek a new trial under the following subsections of Civ.R. 59(A):

       (4) Excessive or inadequate damages, appearing to have been given under the
       influence of passion or prejudice;
                                                   5



          (5) Error in the amount of recovery, whether too large or too small, when the
          action is upon a contract or for the injury or detention of property;


          ***

          (7) The judgment is contrary to law[.]

          {¶9}   In Catalanotto II, this Court ordered that upon remand “the parties [were to] be

placed in the positions they occupied prior to the entry of the trial court’s erroneous judgment in

favor of the Catalanottos.” Catalanotto II, 2015-Ohio-277, at ¶ 10. In compliance with that

mandate, the trial court ordered “[a]ll pleadings filed after the [trial court’s] August 22, 2013

ruling [were] stricken from the record.” Accordingly, the only briefs relative to the request for

new trial that were before the trial court were the Catalanottos’ May 23, 2013 motion and June

14, 2013 reply, and Ms. Byrd’s June 6, 2013 response.

          {¶10} While the Catalanottos did not specifically cite to any Civ.R. 59(A) grounds in

their trial briefs, their argument was limited to the judgment is contrary to law analysis under

Civ.R. 59(A)(7). The Catalanottos did not argue Civ.R. 59(A)(4), excessive or inadequate

damages, or Civ.R. 59(A)(5), error in the amount of recovery, to the trial court as the basis for a

new trial. “Arguments that were not raised in the trial court cannot be raised for the first time on

appeal.” JPMorgan Chase Bank, Natl. Assn. v. Burden, 9th Dist. Summit No. 27104, 2014-

Ohio-2746, ¶ 12; see State ex rel. Zollner v. Indus. Comm. of Ohio, 66 Ohio St.3d 276, 278

(1993).

          {¶11} Moreover, the trial court also noted the Catalanottos’ failure to identify a Civ.R.

59(A) subsection, but construed their motion as being brought under subsection (7), the

judgment is contrary to law. Accordingly, the trial court reviewed and decided the Catalanottos’
                                                 6


request for new trial pursuant to Civ.R. 59(A)(7) only. The appellate scope of review of the trial

court’s ruling on a motion for new trial is limited to that which the court has specified as the

basis for its ruling. See Pangle v. Joyce, 76 Ohio St.3d 389, 391 (1996), fn. 2. Based on the

scope of the Catalanottos’ arguments in their trial brief and the trial court’s decision, this Court

will limit its review to Civ.R. 59(A)(7), the judgment is contrary to law.

       {¶12} Civ.R. 59(A)(7) allows a court to grant a new trial if the judgment is contrary to

law. When a party asserts that a judgment is contrary to law, the question presented is one of law

and requires a de novo review. Gateway Consultants Group, Inc. v. Premier Physicians Ctrs.,

Inc., 8th Dist. Cuyahoga No. 104014, 2017-Ohio-1443, ¶ 12. De novo review encompasses an

independent examination of the trial court’s decision without deference to the underlying

decision. Ohio Receivables, L.L.C. v. Landaw, 9th Dist. Wayne No. 09CA0053, 2010-Ohio-

1804, ¶ 6, quoting State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.

Punitive Damages: Assault

       {¶13} The Catalanottos argue the jury’s award of $5,000 in punitive damages on Ms.

Byrd’s assault counterclaim is contrary to law in the absence of compensatory damages. This

Court agrees.

       {¶14} R.C. 2315.21(C) permits recovery of punitive damages in a tort action when both

of the following apply:

       (1) The actions or omissions of that defendant demonstrate malice * * * [; and]

       (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.

See K.R.G. Inc. v. Patel, 9th Dist. Summit Nos. 24083, 24190, 2008-Ohio-5446, ¶ 11. The Ohio

Supreme Court has repeatedly held that punitive damages may not be awarded in the absence of
                                                7


an award of actual or compensatory damages. Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d

486, 2009-Ohio-3626, ¶ 12; Malone v. Courtyard by Marriott L.P., 74 Ohio St.3d 440, 447

(1996); Cabe v. Lunich, 70 Ohio St.3d 598, 601 (1994); Shimola v. Nationwide Ins. Co., 25 Ohio

St.3d 84, 87 (1986); Bishop v. Grdina, 20 Ohio St.3d 26, 27 (1985); Seasons Coal Co., Inc. v.

City of Cleveland, 10 Ohio St.3d 77, 82 (1984); Richard v. Hunter, 151 Ohio St. 185 (1949),

paragraph one of the syllabus.

       {¶15} Relying on Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638 (1994), Ms. Byrd

argues that she does not need a compensatory damage award on the assault claim to support the

punitive damages on the same claim.        Ms. Byrd asserts that her causes of action are so

intertwined that the compensatory damages award for her intentional infliction of emotional

distress claim is sufficient to satisfy the compensatory damages requirement for the assault

claim. See id. at 561.

       {¶16} Moskovitz is not applicable because the claims and damages sought in that case

were pled and presented to the jury differently than in this case. In Moskovitz, the plaintiff pled

claims for wrongful death and survivorship. Id. at 644. The plaintiff did not plead a separate

cause of action for alteration of records, but instead included such allegations and request for

punitive damages under the survivorship claim. Id. at 643-644.           The Moskovitz decision

recognized a party could either bring a separate claim for spoliation or include allegations of

spoliation within an underlying medical malpractice claim. Id. at 650-651. The jury returned a

verdict for compensatory damages upon the survivorship claim and awarded punitive damages

on the same claim based on the defendants’ alteration of records. Id. at 647. By attaching the

spoliation allegations to the survivorship claim, the plaintiff did not need to prove separate

compensatory harm arising from the spoliation allegation. Id. at 650-651.
                                                 8


        {¶17} This case is different for two reasons. First, Ms. Byrd pled three torts: trespass,

assault, and intentional infliction of emotional distress. Each claim included allegations of malice

arising from that respective claim. Unlike Moskovitz, Ms. Byrd’s allegations of malice arose

from the same tort and facts in which she sought compensatory damages.

        {¶18} Second, in her prayer for relief, Ms. Byrd made a general request as to all claims

“for compensatory and punitive damages []according to proof.” At trial, the issue of malice and

punitive damages on the intentional infliction of emotion distress claim was not submitted to the

jury. The jury was only instructed on malice and punitive damages on the trespass and assault

claims. As to the assault claim, the jury found malice and awarded punitive damages, but found

no underlying compensatory harm arising from the assault. Because Ms. Byrd pled intentional

infliction of emotional distress and assault as separate and distinct claims and she pursued

separate and distinct relief for each claim, Moskovitz does not permit her to combine the claims

post-verdict to support a punitive damages award. Accordingly, Moskowitz is not applicable in

this case.

        {¶19} On Ms. Byrd’s assault counterclaim, the jury found in favor of Ms. Byrd but

awarded zero compensatory damages. The jury went on to find the Catalanottos acted with

malice and awarded $5,000 in punitive damages. While the jury made the requisite finding of

malice, it failed to award Ms. Byrd any compensatory damages. The jury’s punitive damages

award is contrary to R.C. 2315.21(C)(1)-(2). The trial court ignored the requirement of

compensatory damages for the awarding of punitive damages, see Niskanen, 2009-Ohio-3626, at

¶ 12, and thus erred in denying the Catalanottos’ motion for new trial on the basis that the

judgment was contrary to law.
                                                  9


       {¶20} The Catalanottos’ first assignment of error as it pertains to the punitive damages

award on Ms. Byrd’s assault counterclaim is sustained.

Attorney Fees: Trespass and Assault

       {¶21} The Catalanottos argue the jury’s award of attorney fees relative to Ms. Byrd’s

trespass and assault counterclaims is contrary to law in the absence of compensatory damages

and the unwarranted award of punitive damages. This Court agrees.

       {¶22} “Ohio has long adhered to the ‘American rule’ with respect to recovery of

attorney fees: a prevailing party in a civil action may not recover attorney fees as a part of the

costs of litigation.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, ¶ 7.

“However, there are exceptions to this rule. Attorney fees may be awarded when a statute or an

enforceable contract specifically provides for the losing party to pay the prevailing party’s

attorney fees, or when the prevailing party demonstrates bad faith on the part of the unsuccessful

litigant[.]” (Internal citations omitted.) Id. Attorney fees may also be awarded as an element of

compensatory damages if punitive damages are awarded by a jury. Zoppo v. Homestead Ins. Co.,

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

       {¶23} Ms. Byrd argues her attorney fees are permissible under the second exception: the

prevailing party has demonstrated bad faith by the opponent. Relying on Schiavoni v. Roy, 9th

Dist. Medina No. 11CA0108-M, 2012-Ohio-4435, Ms. Byrd asserts that punitive damages are

not a prerequisite to an attorney fee award when there is bad faith conduct by the defendant. Id.

at ¶ 32. While this is an accurate statement of law, this exception is not applicable in this matter.

       {¶24} Ms. Byrd’s counterclaim did not allege bad faith conduct, but instead alleged

“intentional” conduct and “intentional[] and willful[]” conduct by the Catalanottos as to the
                                                  10


trespass and assault claims, respectively. Moreover, the jury was instructed on the definition of

malice which followed the definition set forth in Preston v. Murty, 32 Ohio St.3d 334 (1987):

       Actual malice, necessary for an award of punitive damages, is (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.

(Emphasis sic.) Id. at syllabus. The jury instructions did not address bad faith. Nor did the

verdicts specify a finding of bad faith. Further, the parties did not file a complete transcript of the

jury trial. Accordingly, there is no evidence before this Court of bad faith by the Catalanottos

with regard to the trespass and assault counterclaims. Based on the foregoing, Ms. Byrd’s

reliance on the bad faith exception is misplaced.

       {¶25} In this case, the only applicable exception for awarding attorney fees is upon an

award of punitive damages. See Columbus Fin., Inc. v. Howard, 42 Ohio St.2d 178, 183 (1975).

As to Ms. Byrd’s trespass counterclaim, the jury found the Catalanottos acted with malice,

awarded zero punitive damages, but awarded attorney fees. “Because no punitive damages were

awarded, attorney fees may not be awarded either.” Dotson v. Village Res. Dev. Co., 9th Dist.

Lorain No. 98CA007066, 1999 WL 494068, *5 (July 14, 1999); see Henry v. City of Akron, 27

Ohio App.3d 369, 371 (9th Dist.1985). The jury’s attorney fees award as to Ms. Byrd’s trespass

counterclaim is contrary to law and the trial court erred in denying the Catalanottos’ motion for

new trial.

       {¶26} With regard to Ms. Byrd’s assault counterclaim, the jury found the Catalanottos

acted with malice and awarded $5,000 in punitive damages and attorney fees.2 While the jury




2
 While the assault verdict form included a verdict regarding attorney fees therein, the jury was
not instructed regarding the application of attorney fees on the assault counterclaim.
                                                 11


awarded punitive damages, it did so contrary to law as addressed above. Because Ms. Byrd’s

punitive damages award on the assault counterclaim was not proper, an award of attorney fees is

not permissible. See Columbus Fin., Inc. at 183. The jury’s attorney fees award on Ms. Byrd’s

assault counterclaim is contrary to law and the trial court erred in denying the Catalanottos’

motion for new trial.

       {¶27} The Catalanottos’ first assignment of error as it pertains to the attorney fees award

on Ms. Byrd’s trespass and assault counterclaims is sustained.

Scope of new trial for trespass and assault counterclaims

       {¶28} Civ.R. 59(A) permits a new trial to be granted “on all or part of the issues.” A

new trial is only awarded as to the portion of the trial where prejudicial error was found. Mast v.

Doctor’s Hosp. N., 46 Ohio St.2d 539, 541 (1976).

       {¶29} In this case, the Catalanottos’ motion sought to “set aside the jury’s damages

awards or, in the alternative, grant a new trial as to the claims” of trespass and assault. While the

Catalanottos sought a new trial on the “claims,” they did not present any arguments challenging

the jury’s liability determinations on the trespass and assault claims. Instead, the Catalanottos

limited their arguments to the damages awards on those claims. Further, this Court has only

found prejudicial error as to the damages portion of the trial. Accordingly, the scope of the new

trial is limited to the issue of damages (compensatory, punitive, and attorney fees) on Ms. Byrd’s

trespass and assault counterclaims. See Mast at 541-542.

                               ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ABUSED ITS DISCRETION BY NOT REDUCING [MS.]
       BYRD’S REQUESTED ATTORNEY FEES BECAUSE THE TRIAL COURT’S
       AWARD OF ATTORNEY FEES WAS UNREASONABLE.
                                                 12


       {¶30} In their second assignment of error, the Catalanottos argue Ms. Byrd’s attorney

fees were unreasonable and the trial court erred by failing to reduce the attorney fees award. In

light of this Court’s resolution of the first assignment of error, this Court declines to address the

Catalanottos’ second assignment of error as it has been rendered moot. See App.R. 12(A)(1)(c).

                                                III.

       {¶31} The Catalanottos’ first assignment of error is sustained. This Court declines to

address the Catalanottos’ second assignment of error as it has been rendered moot. The judgment

of the Summit County Court of Common Pleas is reversed and the cause is remanded for a new

trial on damages as to Ms. Byrd’s counterclaims for trespass and assault against John and Rita

Catalanotto.

                                                                                 Judgment reversed
                                                                               and cause remanded.




       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.
                                        13


      Costs taxed to Appellee.




                                             LYNNE S. CALLAHAN
                                             FOR THE COURT



CARR, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

J. REID YODER and BENJAMIN R. SORBER, Attorneys at Law, for Appellants.

PAUL F. ADAMSON, Attorney at Law, for Appellee.
