[Cite as Catalanotto v. Byrd, 2016-Ohio-2815.]


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

JOHN CATALANOTTO, et al.                               C.A. No.       27824

        Appellants

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

                                 DECISION AND JOURNAL ENTRY

Dated: May 4, 2016



        SCHAFER, Judge.

        {¶1}     Plaintiffs-Appellants, John and Rita Catalanotto, appeal the judgment of the

Summit County Court of Common Pleas denying their request for a new trial. For the reasons

that follow, we reverse the trial court’s judgment.

                                                  I.

        {¶2}     This is the second time that this matter has come before us on appeal. In the first

appeal, we outlined the relevant background of the case as follows:

        The Catalanottos and [Defendant-Appellee, Phyllis] Byrd[,] are neighbors who
        became embroiled in a longstanding feud with one another.1 The feud resulted in
        the Catalanottos filing suit against Byrd and her boyfriend, Defendant-Appellee,
        Edwin Moore. In their suit, the Catalanottos brought [claims] against Byrd and
        Moore for trespass, loss of enjoyment, intentional infliction of emotional distress,


        1
          The trial transcript is not part of the record so the nature of the parties’ feud is not
entirely clear. However, based on the pleadings, it appears that the feud first developed due to
the fence that separates their properties. Byrd was alleged to have painted the part of the fence
facing her property a dark brown color and the paint bled through to the other side facing the
Catalanottos’ property, which was painted white. This ominous beginning led to a variety of
later disputes.
                                                2


       invasion of privacy, and declaratory judgment. They also brought [claims]
       against Byrd alone for conversion, trespass to chattels, malicious prosecution, and
       abuse of process. * * * Byrd filed several counterclaims against the Catalanottos,
       including claims for trespass, assault, and 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 compensatory damages.
       The jury awarded Byrd $5,000 in punitive damages on her claim for assault and
       $10,000 in compensatory damages for her claim of intentional infliction of
       emotional distress. The court entered judgment on the verdicts[.]

               * * * [T]he Catalanottos filed a motion for judgment notwithstanding the
       verdict [under Civ.R. 50(B)]. In their [Civ.R. 50(B)] 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 [merits].

              The trial court granted the [Catalanottos’] motion in part and denied 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 I”).

       {¶3}   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.” We 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. Id. at ¶ 8-9. We further determined that the
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appropriate relief for this error was to reverse and remand and we 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.

Id. at ¶ 10.

        {¶4}   On remand, the trial court denied the Catalanottos’ motion for judgment

notwithstanding the verdict and their “prayer for a new trial.”2 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. 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.

        {¶5}   The Catalanottos timely appealed this judgment, presenting two assignments of

error for our review.

        2
         The parties filed several pleadings after this matter was remanded but the trial court
struck them from the record based on the guidance we handed down in Catalanotto I regarding
the scope of the proceedings on remand. Neither party has challenged this order.
                                                  4


                                                 II.

                                      Assignment of Error I

       The trial court erred by failing to order a new trial.

       {¶6}    In their first assignment of error, the Catalanottos argue that the trial court erred in

denying their request for a new trial. We agree to the extent that we determine the trial court

abused its discretion by denying the Catalanottos’ request as untimely.

                                       A. Standard of Review

       {¶7}    Our review of a trial court’s ruling on a motion for new trial “depends upon the

grounds of the motion.” Jackovic v. Webb, 9th Dist. Summit No. 26555, 2013-Ohio-2520, ¶ 17.

The Catalanottos assert that they are challenging the trial court’s exercise of discretion in

denying their request for a new trial. As a result, we review the trial court’s ruling in this matter

for an abuse of discretion. See Price v. KNL Custom Homes, Inc., 9th Dist. Summit No. 26968,

2015-Ohio-436, ¶ 43.       An abuse of discretion implies the court’s decision is arbitrary,

unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

When applying this standard, a reviewing court is precluded from simply substituting its own

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

                   B. The Catalanottos’ Request for a New Trial Was Timely

       {¶8}    On remand, the trial court denied the Catalanottos’ request for a new trial on the

basis that the request was untimely. In doing so, the trial court relied on former Civ.R. 59(B),

which provided that “[a] motion for a new trial shall be served not later than fourteen days after

the entry of the judgment.” But, effective July 1, 2013, Civ.R. 59(B) was amended to provide

that “[a] motion for a new trial shall be served not later than twenty-eight days after the entry of

judgment.” By virtue of Civ.R. 86(JJ), this amendment to Civ.R. 59(B) “govern[ed] * * * all
                                                5


further proceedings in actions then pending, except to the extent that their application in a

particular action pending when the amendments take effect would not be feasible or would work

injustice, in which event the former procedure applies.” To resolve whether the Catalanottos’

request for a new trial was timely, we must determine which version of Civ.R. 59(B) applied.

          {¶9}   When the trial court entered judgment in favor of Byrd, former Civ.R. 59(B) was

in effect. However, by the time that the trial court ruled on the Catalanottos’ Civ.R. 50(B)

motion and their request for a new trial in August 2013, the amended version of Civ.R. 59(B)

was in effect and applicable to all actions then-pending. See Civ.R. 86(JJ). Since this matter

was pending when the amended version of Civ.R. 59(B) became effective, we conclude that the

amendment’s 28-day time limitation applied to this matter. See Hubiak v. Ohio Family Practice

Ctr., 9th Dist. Summit No. 26949, 2014-Ohio-3116, ¶ 32 (applying amended version of Civ.R.

4.1 to matter based on provisions of Civ.R. 86(II)); see also Albers v. Tri-State Implement, Inc.,

D.S.D.No. CR. 06-4242-KES, 2010 WL 960010, *6 (Mar. 12, 2010) (determining that 28-day

limitation of amended Fed.R.Civ.P. 59(b), which is nearly identical to the amended version of

Civ.R. 59(B), applied even though judgment was entered before the effective date of the

amendment “because the court had not ruled on the plaintiffs’ postjudgment motions” until after

the effective date). The 28-day time limitation in this matter commenced with the entry of

judgment on May 17, 2013 and expired on June 14, 2013. Because the Catalanottos filed their

reply brief with a request for a new trial on June 14, 2013, we conclude that their request was

timely.

          {¶10} The trial court could have decided that the 14-day limitation of former Civ.R.

59(B) applied only if it determined that the amended limitation of 28 days was “not * * * feasible

or would work injustice[.]” Civ.R. 86(JJ). But, the trial court never made such a finding. And,
                                                   6


we are unable to discern any basis in the record for concluding that applying the 28-day

limitation would be unfeasible or unjust. See Hubiak at ¶ 30 (“Civ.R. 86(II) directs courts to

apply the amended rules to ‘all further proceedings in actions then pending’ except where it

would not be feasible or work an injustice. No injustice is found after an examination of the

record for the application of the amended rules to the present case.”); see also Albers at *6

(“Defendants may lose the ‘potential windfall’ of having plaintiffs’ motions dismissed on the

timing issue, but this loss does not equate to prejudice to defendants.”), citing Burt v. Ware, 14

F.3d 256, 260 (5th Cir.1994).

        {¶11} In sum, we determine that the amended version of Civ.R. 59(B) and its 28-day

time limitation applied to this matter. Since the Catalanottos filed their request for a new trial

within that timeframe, their request was timely and the trial court erred by finding otherwise.

Consequently, the trial court abused its discretion in denying the Catalanottos’ request for a new

trial as untimely.

                     C. The Trial Court Must Consider Merits in the First Instance

        {¶12} Since the trial court denied the Catalanottos’ request for a new trial as untimely, it

did not reach the merits of their argument for Civ.R. 59 relief. “If [we] were to reach issues that

had not been addressed by the trial court in the first instance, [we] would be usurping the role of

the trial court and exceed [our] authority on appeal.” (Internal citations and quotations omitted.)

Nationstar Mtge., L.L.C. v. Young, 9th Dist. Summit No. 27499, 2015-Ohio-3868, ¶ 6. Due to

our role as a reviewing court, we cannot make a determination regarding the merits of an

argument in the first instance. State v. M.D., 9th Dist. Lorain No. 14CA010657, 2015-Ohio-

4003, ¶ 7. Rather, we must remand this matter for the trial court to address the merits of the

Catalanottos’ request for a new trial in the first instance.
                                                  7


       {¶13} Accordingly, we sustain the Catalanottos’ first assignment of error to the extent

that the trial court erred in denying the request for a new trial as untimely.

                                      Assignment of Error II

       The trial court abused its discretion by not reducing Byrd’s requested
       attorney fees because the trial court’s award of attorney fees was
       unreasonable.

       {¶14} Our resolution of the Catalanottos’ first assignment of error renders their second

assignment of error moot and we decline to address it. See App.R. 12(A)(1)(c).

                                                 III.

       {¶15} Having sustained the Catalanottos’ first assignment of error in part, we reverse the

judgment of the Summit County Court of Common Pleas and remand this matter for further

proceedings consistent with this opinion.

                                                                                  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.
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      Costs taxed to Appellees.




                                             JULIE A. SCHAFER
                                             FOR THE COURT



CARR, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

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

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