[Cite as Sivit v. Village Green of Beachwood, L.P., 2013-Ohio-103.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 98401



                                 CARLOS SIVIT, ET AL.
                                                   PLAINTIFFS-APPELLEES

                                                      vs.

      VILLAGE GREEN OF BEACHWOOD, L.P., ET AL.
                                                   DEFENDANTS-APPELLANTS




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                          Case Nos. CV-671776, CV-674795, CV-701195,
                                   CV-706333, and CV-707545

            BEFORE:           Blackmon, P.J., Celebrezze, J., and S. Gallagher, J.

            RELEASED AND JOURNALIZED:                                 January 17, 2013
ATTORNEYS FOR APPELLANTS

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


ATTORNEYS FOR APPELLEES

For Carlos Sivit, et al.

Joseph W. Diemert, Jr.
Thomas M. Hanculak
Daniel A. Powell
Mark V. Guidetti
Joseph W. Diemert, Jr. & Associates Co., LPA.
1360 S.O.M. Center Road
Cleveland, Ohio 44124

For Allstate Insurance Co., et al.

James A. Marx
Shapero & Green, LLC
Signature Square II, Suite 220
25101 Chagrin Blvd.
Beachwood, Ohio 44122

For Nationwide Mutual Insurance Co., et al.

Joseph A. Ferrante
2 Summit Park Drive, Suite 540
Independence, Ohio 44131

For Safeco Insurance Co., of America, et al.

Jeffrey A. Kaleda
Markesbery & Richardson Co., LPA
2368 Victory Parkway, Suite 200
P.O. Box 6491
Cincinnati, Ohio 45206

For State Farm Fire & Casualty Co., et al.

Richard H. Blake
Robert James
Bricker & Eckler, LLP
1001 Lakeside Avenue, Suite 1350
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, P.J.:

       {¶1} Appellants, Village Green of Beachwood, L.P. (“Village Green”) and Forest

City Residential Management, Inc. (“FCRM”), appeal the trial court’s denial of their

motion for directed verdict and assign 11 errors for our review.1 Having reviewed the

record and pertinent law, we affirm the trial court’s decision. The apposite facts follow.

       {¶2} In the early morning of October 23, 2007, a fire erupted and quickly

engulfed Building 8 of the Verdant at Village Green apartment complex, located at 26800

Amhearst Circle in Beachwood, Ohio.           After several hours, the Beachwood Fire

Department, with mutual aid from surrounding communities, extinguished the fire. All

the residents escaped unharmed, but there was considerable property damage, and

Building 8 was ultimately demolished.

       {¶3} Immediately following the fire, the Beachwood Fire and Police Departments,

the State Fire Marshall’s office, as well as professional fire investigators began

investigating the cause of the fire.       Collectively, they evaluated the scene, took

photographs, and spoke to witnesses and residents to ascertain the cause of the fire.

       {¶4} The occupants of Suite 310 indicated that they smelled a camp-like odor

around 1:00 p.m. the day before and notified the maintenance department of the smell of

smoke. Around 9:00 p.m., Beachwood fire and police responded to Suite 310, but could

not locate the source of the odor.    The occupant of Suite 210 indicated that she smelled

a barbeque or campfire odor around 8:30 p.m. the night before the fire. The occupant of


       1See   appendix.
Suite 110 indicated that her lights were flickering on and off around 10:30 p.m. the night

before the fire and at approximately 11:15 p.m., she smelled the odor of burning tar.

Most of the other residents of Building 8 reported unresolved electrical and maintenance

issues with the building.

        {¶5} As part of the investigation, the Beachwood Fire Department retained Ralph

Dolence (“Dolence”), a fire investigator and electrical expert, to assist in their

investigation.   Dolence, who had previously been retained to investigate a fire in 2004

that destroyed Building 3 of the same apartment complex, ruled out arson or accelerants as

causes of the fire, which was supported by the other investigators.

        {¶6} Following his investigation, Dolence determined that the fire originated in

the interstitial space between the floor and ceiling space of Units 210 and 310, and that

there was no fire internally in Units 110, 210, and 310. Dolence concluded that the fire

was caused by faulty electrical wiring contaminated by water leaks within the building.

Dolence’s conclusion was in keeping with that of the Beachwood Fire Department.

        {¶7} On September 26, 2008, Carlos Sivit (“Sivit”), along with ten other residents

who lost most of their personal belongings and were displaced when Building 8 was

demolished, filed a complaint against several entities including      Village Green and

FCRM, the managers of the developers and owners of the apartment complex, alleging

that negligence or gross negligent construction and maintenance of the building caused the

fire.
       {¶8} Sivit also brought a cause of action for breach of lease alleging that Village

Green had failed to maintain Building 8 and the mechanical devices therein in a clean,

safe, and working condition. Sivit further alleged that throughout the course of the lease,

Village Green and FCRM failed to perform building repairs within a reasonable time that

were of an emergency in nature, including electrical faults and other fire hazards.

       {¶9} On December 16, 2011, after a two-week trial, the jury rendered a verdict in

favor of Sivit and awarded compensatory damages of $582,328. The jury also awarded

punitive damages in the amount of $2,000,000. In addition, the trial court awarded

attorney fees in the amount of $1,040,000 to Sivit’s attorneys. Village Green and FCRM

now appeal.

                     Directed Verdict, Negligent Maintenance, and
                               Negligent Construction

       {¶10} We will address assigned errors 1 and 5 together because they both contend

the trial court erred when it denied the motion for directed verdict on Sivit’s claims of

negligent maintenance and construction.

       {¶11} The standard of appellate review on a motion for directed verdict is de

novo. Loreta v. Allstate Ins. Co., 8th Dist. No. 97921, 2012-Ohio-3375, citing Grau v.

Kleinschmidt, 31 Ohio St.3d 84, 90, 509 N.E.2d 399 (1987). This court is to construe the

evidence presented most strongly in favor of the nonmoving party and, after so doing,

determine whether reasonable minds could only reach a conclusion that is against the

nonmoving party. Titanium Indus. v. S.E.A. Inc., 118 Ohio App.3d 39, 691 N.E.2d 1087
(7th Dist.1997), citing Byrley v. Nationwide Ins. Co., 94 Ohio App.3d 1, 640 N.E.2d 187

(6th Dist.1993), appeal not accepted, 70 Ohio St.3d 1441, 638 N.E.2d 1044 (1994).

        {¶12} An appellate court does not weigh the evidence or test the credibility of the

witnesses. Id. In considering the motion, this court assumes the truth of the evidence

supporting the facts essential to the claim of the party against whom the motion is directed,

and gives to that party the benefit of all reasonable inferences from that evidence. Becker

v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 206, 560 N.E.2d 165 (1990), citing Ruta

v. Breckenridge-Remy Co., 69 Ohio St.2d 66, 68, 430 N.E.2d 935 (1982).

        {¶13} To prevail in a negligence action, the plaintiff must show (1) the existence of

a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the breach.

Mann v. Northgate Investors L.L.C., 10th Dist. No. 11AP-684, 2012-Ohio-2871, citing

Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195, ¶ 21. At

common law, a landlord was charged with a general duty to exercise reasonable care to

keep the premises retained in his control for the common use of his tenants in a reasonably

safe condition. Mullins v. Grosz, 10th Dist. No. 10AP-23, 2010-Ohio-3844, ¶ 23.

        {¶14} In 1974, the Ohio General Assembly modified the common law regarding

landlords and tenants when it “enacted R.C. 5321.01 et seq., the Landlord-Tenant Act, in

an attempt to clarify and broaden tenants’ rights as derived from common law.” Mullins at

¶ 23.

        {¶15} In Shroades v. Rental Homes, Inc., 68 Ohio St.2d 20, 427 N.E.2d 774

(1981), the Supreme Court of Ohio held that a landlord is liable for injuries sustained on
leased premises that are proximately caused by the landlord’s failure to fulfill the duties

imposed by R.C. 5321.04(A), which provides, in pertinent part:

       (A) A landlord who is a party to a rental agreement shall do all of the
       following:

       (1) Comply with the requirements of all applicable building, housing,
       health, and safety codes that materially affect health and safety;

       (2) Make all repairs and do whatever is reasonably necessary to put and
       keep the premises in a fit and habitable condition;

       ***

       (4) Maintain in good and safe working order and condition all electrical,
       plumbing, sanitary, heating, ventilating, and air conditioning fixtures
       and appliances, and elevators, supplied or required to be supplied by
       him[.]

       {¶16} A landlord’s violation of the duties imposed by Ohio’s Landlord-Tenant Act

constitutes negligence per se. Allstate Ins. Co. v. Henry, 12th Dist. No. CA2006-07-168,

2007-Ohio-2556, ¶ 9, citing Sikora v. Wenzel, 88 Ohio St.3d 493, 2000-Ohio-406, 727

N.E.2d 1277, syllabus. With negligence per se, proof of a landlord’s violation of the

statute dispenses with the plaintiff’s burden to establish the existence of a duty and the

breach of that duty. Henry at ¶10; Chambers v. St. Mary’s School, 82 Ohio St.3d at 563.

       {¶17} However, negligence per se does not equate to liability per se, as it does not

dispense with the plaintiff’s obligation to prove the landlord’s breach was the proximate

cause of the injury complained of, nor does it obviate the plaintiff’s obligation to prove the

landlord received actual or constructive notice of the condition causing the statutory

violation. Packman v. Barton, 12th Dist. No. CA2009-03-009, 2009-Ohio-5282, citing
Turner v. Tiemeyer, 12th Dist. No. CA95-08-053, 1996 Ohio App. LEXIS 428, *3 (Feb.

12, 1996); Henry at ¶ 11. In turn, landlords will be excused from liability where they

“neither knew nor should have known of the factual circumstances that caused the

violation.” Mounts v. Ravotti, 7th Dist. No. 07 MA 182, 2008-Ohio-5045, ¶ 30, quoting

Sikora, 88 Ohio St.3d at 498.

       {¶18} In the instant case, the record reveals that Village Green and FCRM’s

collective violation of the duties imposed by Ohio’s Landlord-Tenant Act proximately

caused the fire. As it relates to the claim of negligent maintenance, numerous tenants

gave statements regarding various maintenance issues with Building 8 to the on-scene

investigators at the time of the fire. Several of these tenants testified at trial, but in the

interest of brevity, the recurrent element can be summed up in the testimony of Detective

Don Breckenridge of the Beachwood Police Department.                Detective Breckenridge

investigated the 2004 fire in Building 3 as well as the 2007 Fire in Building 8.      Detective

Breckenridge testified in pertinent part about the 2004 and 2007 fires, as follows:

       Q.     Without repeating exactly what those tenants and witnesses said
              to you, was there a consensus or general theme behind the
              complaints or statements that you received?

       A.     Yes. It seemed to be a consensus of opinion that most problems
              with electrical surges; lights flashing off and on, lights dimming.
              There were reports of people who could hear water running
              between the walls, mildew, light bulbs flashing real bright then
              dim, and then finally going out; numerous fire alarms, false fire
              alarms.

       Q.     Okay. Detective, did you then have an opportunity, in 2007, to
              investigate the fire that took place in the same location but a
              different building?
       A.      Yes.

       ***

       Q.      The general responses or theme was what, Detective?

       A.      Power surges, lights dimming, lights flashing off and on, light
               bulbs blowing out, mildew, water in the walls, elevator not
               working.

       Q.      Okay. And how did that compare with those that you had
               investigated and found out in your investigation in the 2004 fire?

       A.      They seemed very much the same to me. Tr. 1305-1307.

       {¶19}     In addition to the tenants’ maintenance concerns, as illuminated in

Detective Breckenridge’s testimony above, Michael Farlow, Village Green’s former

maintenance supervisor, who moved out of Building 8 shortly before the fire, testified in

conformity with the tenants, as follows:

       Q.      * * * Okay. At some time after you moved out, did the police
               ever contact you about the fire in the building?

       A.      Yes, they did.

       Q.      Okay. What was the purpose of their contacting you?

       A.      They wanted to know if I knew any information prior --- or about
               the building since I was the most recent Maintenance Supervisor,
               because I don’t think at the time they filled my position yet.

       Q.      Okay. What was your reaction to the news of the fire?

       A.      To be frank, I wasn’t surprised.

       ***

       Q.      What did you tell the police officers at that time?
      A.     Well, that was like four years ago but I --- like I said, I told them I
             wasn’t surprised. I think he may have asked me why I said that,
             and I think I just said because there was a lot of water problems
             in that building, also with water and electrical problems
             downstairs in the parking garage.

      Q.     Okay.     Did you mention anything to them about your
             characterization of the building as a whole?

      ***

      A.     I would say, to the best of my knowledge --- like I said, I don’t
             really recall the whole report, but I probably said it was
             waterlogged.

      Q.     And what did you mean by that?

      A.     With the siding especially and the roof problems with the vents
             and everything, there was a lot of water inside the walls; a lot of
             water infiltrating the building, especially a lot in the basement so
             ---

      Q.     And so you could see visible water infiltrating inside the
             apartment building?

      A.     Oh, yes, absolutely. Tr. 416-418.

      {¶20} Further, the record reveals that sometime in 2006, Forest City Enterprise

(“FC”) acquired a full interest in Village Green. Prior to the purchase, Rod Brannon,

FC’s Vice President of Engineering, conducted a due diligence inspection of the property.

At trial, Brannon testified that the buildings needed a lot of work due to the lack of

preventative maintenance and because of deferred maintenance. (Tr. 248.)          Brannon

testified that Building 8 needed a lot of work, admitted that he was aware of the 2004 fire
in Building 3, but indicated that the purpose of his due diligence inspection was to justify a

low bid offer for the property. Tr. 253-254.

       {¶21}    Subsequent to Brannon’s inspection, the city of Beachwood housing

department inspected the properties and specifically noted numerous violations in Building

8. The city inspector notified Village Green in writing of the numerous violations and

advised them to refrain from renting the property until the violations were corrected,

reinspected, and certified by the city. However, the record reveals that Village Green

continued to rent out units in Building 8 despite not addressing the city’s concerns.

       {¶22} Pivotally, Dolence, who as previously noted, investigated the 2004 fire in

Building 3, was present at the site during the fire, testified that the 2007 fire in Building 8

was caused by faulty electrical wiring contaminated by water leaks within the building.

Dolence specifically stated:

       Water is very significant in a fire. It was the cause of this fire. If you
       have an electrical issue — we talked about resistance heating, we talked
       about arc tracking. Many of them are stimulated arc tracking;
       specifically by water and moisture. You could have an electrical fault if
       — you know, it can sit there forever or a code violation. If something
       doesn’t stimulate it or a catalyst to induce it, nothing is going to happen.
        That’s my opinion. And it’s always been my opinion that it’s been the
       water ingress contributed with or linked with poor wiring. That was
       the cause of this fire and the physical evidence in my opinion showed
       that. Tr. 1187-1188.

       {¶23} Here, the testimony adduced at trial, through previous tenants and previous

employees of Village Green and FCRM, as well as the city of Beachwood’s Housing

Inspection Department, along with fire investigator Dolence, clearly established that

Building 8 was in a general state of disrepair. Said testimonies also established that
electrical and water infiltration issues noted as the cause of the fire in Building 8 paralleled

the findings of the 2004 fire in Building 3.

       {¶24} Of prime importance, said testimonies established that Village Green and

FCRM knew or should have known of the complained-of conditions that caused the fire

in Building 8. As such, Village Green and FCRM cannot be excused from liability under

the duties imposed by R.C. 5321.04(A)(1) or 5321.04(A)(2). Consequently, the trial court

properly denied Village Green and FCRM’s motion for directed verdict on Sivit’s

negligent maintenance claim.

       {¶25}     We now turn our attention to Village Green’s contention that Sivit’s

negligent construction claim should not have survived a motion for directed verdict.

       {¶26} At trial, Dolence testified at length about his investigation, including

presenting a slide presentation that showed numerous pictures of Building 8. Dolence

testified that during his investigation, he observed numerous national electrical code

violations and shoddy workmanship. Dolence stated that he observed numerous examples

of unsecured feeder cables, wires double stapled, and wires pulled up against metal gusset

plates with insulation damage. Ultimately, Dolence pinpointed the root source of the fire to

three wires under the living room floor of Unit 310.      We conclude, Sivit established that

Building 8 was negligently constructed.

       {¶27} However, Village Green claims that liability should not have been attached

because it hired independent contractors for the construction of the property. We are not

persuaded.
       {¶28} A landlord may not shift the responsibility to an independent contractor of

complying with laws designed for the physical safety of others.             Shump v. First

Continental-Robinwood Assn., 71 Ohio St.3d 414, 1994-Ohio-427, 644 N.E.2d 29. Such

duties are not delegable. Id., citing Restatement of the Law 2d, Property, Section 19.1.

The record indicates that throughout the construction of the property, Village Green was

the developer and maintained oversight on the project. We have previously held that a

developer of a condominium project is liable for construction defects, notwithstanding the

fact a general contractor was hired to perform the construction work. See Point E. Condo.

Owners’ Assn. v. Cedar House Assn. Co., 104 Ohio App.3d 704, 663 N.E.2d 343 (8th

Dist. 1994). Accordingly, we overrule the first and fifth assigned error.

       {¶29} Based on the foregoing, the trial court properly denied Village Green’s

motion for directed verdict on Sivit’s negligent construction claim. Accordingly, we

overrule the first and fifth assigned errors.

                Manifest Weight of Evidence and Negligent Maintenance

       {¶30} In the second assigned error, Village Green and FCRM argue the judgment

on Sivit’s negligent maintenance claim was against the manifest weight of the evidence.

       {¶31} In Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, the Ohio Supreme Court recently clarified the standard of review appellate courts

should apply when assessing the manifest weight of the evidence in a civil case. The Ohio

Supreme Court held the standard of review for manifest weight of the evidence for
criminal cases stated in State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d

541, is also applicable in civil cases. Eastley at ¶ 17-19.

       {¶32} A reviewing court is to examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses, and determine “whether in

resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a

manifest miscarriage of justice that the judgment must be reversed and a new trial

ordered.” Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750

N.E.2d 176 (9th Dist.2001); see also Sheet Metal Workers Local Union No. 33 v. Sutton,

5th Dist No. 2011CA00262, 2012-Ohio-3549, citing State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983).

       {¶33} In the instant case, as discussed in detail in the first and fifth assigned error,

we found the evidence presented at trial through the testimony of Building 8’s tenants,

former employees of Village Green and FCRM respectively, Detective Breckenridge, and

Dolence, clearly established that the property was negligently maintained. In the face of

the overwhelming evidence in the record regarding the state of disrepair of Building 8, we

cannot conclude that the jury lost its way and created a manifest miscarriage of justice.

Accordingly, we overrule the second assigned error.

                           Admission of Evidence and 2004 Fire

       {¶34} In the third assigned error, Village Green and FCRM argue the trial court

erred by admitting evidence of the 2004 fire in Building 3.
       {¶35} The admission or exclusion of evidence is a matter within the trial court’s

discretion and will be reversed only for an abuse of that discretion. Robertson v. Mt.

Carmel E. Hosp., 10th Dist. No. 09AP-931, 2011-Ohio-2043, ¶ 27, citing Valentine v.

Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683 ¶ 9. An abuse of discretion

requires more than an error of law or judgment; it connotes that the court’s attitude is

unreasonable, unconscionable, or arbitrary. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983). For evidence to be admissible, it must be relevant. Pazin v.

Pazin, 7th Dist. No. 07-CO-43, 2008-Ohio-6975; Evid.R. 402. Evidence is relevant if it

has any tendency to make the existence of any fact that is of consequence in the

determination of an action more or less probable. Id.; Evid.R. 401.

       {¶36} In the instant case, as previously discussed, the cause of the 2004 fire

in Building 3 was identical to the cause of the 2007 fire in Building 8.           Detective

Breckenridge, who investigated both fires, testified that the tenants’ complaints regarding

electrical and water problems were substantially the same. Dolence testified that the same

factors caused both fires.    Specifically, after the 2004 fire in Building 3, Dolence

concluded that it originated in the interstitial space between the floor and ceiling of units

311 and 211. Likewise, and as previously stated, Dolence concluded that the 2007 fire in

Building 8 originated in the interstitial space between the floor and ceiling of units 210

and 310.

       {¶37} Here, introduction of evidence relating to the fire in 2004 was relevant to

the claims of negligent construction and maintenance. In addition, it was relevant to show
that Village Green and FCRM were on notice of the conditions leading to the 2007 fire in

Building 8. As such, the trial court did not abuse its discretion in admitting evidence of

the 2004 fire in Building 3. Accordingly, we overrule the third assigned error.

                        Jury Instruction, Negligent Maintenance,
                               and Negligent Construction

       {¶38} We will address assigned errors 4 and 6 together because they both contend

the trial court erroneously instructed the jury on Sivit’s negligent maintenance and

construction claims.

       {¶39} When considering the appropriateness of a jury instruction, or when a

specific jury instruction is in dispute, a reviewing court must examine the instructions as a

whole. Withers v. Mercy Hosp. of Fairfield, 12th Dist. No. CA2010-02-033,

2010-Ohio-6431,     citing   Enderle   v.   Zettler,   12th   Dist.   No.   CA2005-11-484,

2006-Ohio-4326; Coyne v. Stapleton, 12th Dist. No. CA2006-10-080, 2007-Ohio-6170.

       {¶40} Taken in their entirety, when the instructions fairly and correctly state the law

applicable to the evidence presented at trial, reversible error will not be found merely on

the possibility that the jury may have been misled. Wozniak v. Wozniak, 90 Ohio App.3d

400, 410, 629 N.E.2d 500 (9th Dist.1993), citing Ohio Farmers’ Ins. Co. v. Cochran, 104

Ohio St. 427, 135 N.E. 537 (1922).

       {¶41} Moreover, misstatements and ambiguity in a portion of the instructions will

not constitute reversible error unless the instructions are so misleading that they

prejudicially affect a substantial right of the complaining party. Wozniak at 410. Silver v.
Jewish Home of Cincinnati, 190 Ohio App.3d 549, 2010-Ohio-5314, 943 N.E.2d 577 (12th

Dist.).

          {¶42} In the instant case, the evidence presented at trial on the issues of negligent

maintenance and construction was exhaustive. The record indicates that the trial court’s

jury instructions comported with the evidence presented. As such, we find no merit to

Village Green and FCRM’s contention. Accordingly, we overrule the fourth and sixth

assigned errors.

                                            Damages

          {¶43} In the seventh assigned error, Village Green and FCRM argue the trial court

erred when it allowed seven plaintiffs to each recover an additional $5,000 in damages that

had not been previously included on the property inventory.

          {¶44} We first note that the assessment of damages is a matter within the province

of the jury. Retina Assn. of Cleveland v. Smith, 11th Dist. No. 2002-T-0170,

2003-Ohio-7188, citing Weidner v. Blazic, 98 Ohio App.3d 321, 334, 648 N.E.2d 565

(12th Dist.1994). Therefore, to prevail on a motion for a new trial based on the jury’s

assessment of damages, the moving party must demonstrate that the verdict was the result

of jury passion or prejudice and that it was so disproportionate in amount as to shock

reasonable sensibilities. Id.

          {¶45} In the instant case, the jury awarded each plaintiff the additional $5,000 to

cover the loss of miscellaneous household items that had not been previously itemized.

Under the circumstances, where you have lost all your personal belongings and invariably
do not remember certain items until much later, $5,000 is hardly a sum that would shock

reasonable sensibilities. Nonetheless, Village Green and FCRM contend the trial court

erred in allowing the additional amount.

       {¶46} A reviewing court generally will not reverse a trial court’s decision regarding

its determination of damages absent an abuse of discretion. Kaufman v. Byers, 159 Ohio

App.3d 238, 2004-Ohio-6346, 823 N.E.2d 530 (11th Dist.), citing Williams v. Kondziela,

11th Dist. No. 2002-L-190, 2004-Ohio-2077, citing Roberts v. United States Fid. & Guar.

Co., 75 Ohio St.3d 630, 634, 1996-Ohio-101, 665 N.E.2d 664 (1996).

       {¶47} Here, we find no evidence that the trial court exhibited an unreasonable,

arbitrary, or unconscionable attitude in allowing the additional $5,000 per plaintiff to

stand. Blakemore, supra. Accordingly, we overrule the seventh assigned error.

                                     Punitive Damages

       {¶48} In the eighth assigned error, Village Green argues the trial court erred by

including the issue of punitive damages in the trial.

       {¶49} The decision whether to award punitive damages is within the trial court’s

discretion and, absent an abuse of discretion, the court’s ruling will be upheld. Kemp v.

Kemp, 161 Ohio App.3d 671, 2005-Ohio-3120, 831 N.E.2d 1038 (5th Dist.). Ohio law

provides that an award of punitive damages is available only on a finding of actual malice.

 Berge v. Columbus Community Cable Access, 136 Ohio App.3d 281, 316, 736 N.E.2d

517 (10th Dist.1999).
       {¶50} The “actual malice” necessary for purposes of an award of punitive damages

has been 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.’”

Id., quoting Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987), at syllabus.

       {¶51} As discussed throughout, the testimony presented at trial established that

Village Green consciously ignored the severe state of disrepair of Building 8, despite

being presented with glaring evidence. Village Green totally disregarded the rights and

safety of its tenants.   The tenants had a litany of electrical and water-related complaints

that remained unaddressed.

       {¶52} As such, Village Green’s inaction was sufficient to support a finding of

malice to justify awarding punitive damages. Consequently, the trial court did not err in

allowing the claim for punitive damages to be submitted to the jury. Accordingly, we

overrule the eighth assigned error.

                 Punitive Damages and Manifest Weight of the Evidence

       {¶53} In the ninth assigned error, Village Green argues the award of punitive

damages was against the manifest weight of the evidence.

       {¶54} Punitive damages are intended to deter conduct resulting from a mental state

that is so callous in its disregard for the rights and safety of others that society deems it

intolerable. Gold Craft Co. v. Egbert’s Constr. & Remodeling, L.L.C., 10th Dist. No.

09AP-448, 2010-Ohio-3741, citing Ward v. Hengle, 124 Ohio App.3d 396, 405, 706
N.E.2d 392 (9th Dist.1997), quoting Calmes v. Goodyear Tire & Rubber Co., 61 Ohio

St.3d 470, 473, 575 N.E.2d 416 (1991). A party seeking punitive damages has the burden

of proving by clear and convincing evidence that it is entitled to them. Cabe v. Lunich, 70

Ohio St.3d 598, 601, 1994-Ohio-4, 640 N.E.2d 159.

       {¶55} As discussed in the preceding assigned error, the issue of punitive damages

was properly allowed to go to the jury. As previously stated, Village Green totally

disregarded the rights and safety of its tenants by failing to address the electrical and water

infiltration issues that were brought to their attention through tenants’ complaints, previous

employees, the city inspector, and the 2004 fire in Building 3.

       {¶56} We conclude, the plaintiffs carried their burden of proving by clear and

convincing evidence that they were entitled to punitive damages.            Accordingly, we

overrule the ninth assigned error.

                                Punitive Damages and Cap

In the tenth assigned error, Village Green argues the trial court erred when it failed to cap

the award of punitive damages. Specifically, Village Green argues that R.C. 2315.21

required the trial court to limit the punitive damages award to an amount that was two

times the compensatory damages.

       {¶57} The recovery and determination of punitive damage awards is addressed in

R.C. 2315.21 and states in pertinent part as follow:

       “(A) As used in this section: (1) “Tort action” means a civil action for
       damages for injury or loss to person or property. “Tort action” includes
       a product liability claim for damages for injury or loss to person or
       property that is subject to sections 2307.71 to 2307.80 of the Revised
      Code, but does not include a civil action for damages for a breach of
      contract or another agreement between persons.”

      {¶58}    Initially, we note, a plain reading of the statute reveals that the Ohio

General Assembly specifically exempted civil actions for damages in contract when it

stated the following: “but does not include a civil action for damages for breach of

contract or another agreement between the parties.” In construing a statute, a court’s

paramount concern is the legislative intent in enacting the statute. Rice v. CertainTeed

Corp., 84 Ohio St.3d 417, 1999-Ohio-361, 704 N.E.2d 1217. To this end, we must first

look to the statutory language and the “purpose to be accomplished.” Id. In assessing the

language employed by the General Assembly, the court must take words at their usual,

normal, or customary meaning. Most important, it is the court’s duty to “give effect to the

words used and to refrain from inserting words not used.” Id.

      {¶59} Because Landlord-Tenant agreements are contractual in nature and injurious

conduct arising out of the contract is not a tort action, as defined above, but “another

agreement between the parties,” we agree with the trial court and hold as a matter of law

that this action is not subject to R.C. 2315.21. The trial court specifically invoked this

provision when it denied Village Green’s motion to invoke R.C. 2315.21 and cap the

punitive damages awarded.

      {¶60} In the instant case, plaintiffs sued Village Green for violating the statutory

duties imposed under R.C. 5321.04, Ohio’s Landlord-Tenant Act. The jury found that

Village Green, the landlord, breached its duties imposed by the statute and as such

breached the rental agreement between the parties. Of note, the only relationship between
Village Green and the individual plaintiffs is that borne out in the rental agreement —

specifically, Village Green’s promise to fulfill the duties imposed by R.C. 5321.04(A) and

the plaintiffs-tenants’ duty to, but not limited to, pay the rent on time. As such, said rental

agreement is a “* * * contract or another agreement between persons,” as defined above.

       {¶61} As previously discussed at length in the first and fifth assigned errors, the

jury found that Village Green breached the duty created by Section 5321.04 by failing to

keep the premises in a fit and habitable condition, failing to keep all common areas of the

premises in a safe and sanitary condition, and failing to maintain in good and safe working

order and condition all electrical fixtures required to be supplied by them. The jury

further found that Village Green demonstrated a reckless disregard for the rights and

safety of these tenants, the plaintiffs herein, and awarded punitive damages in accordance

with that finding. Tr. 2564-2565.

       {¶62} We are mindful that punitive damages are generally not recoverable in a

breach of contract action. Mabry-Wright v. Zlotnik, 165 Ohio App.3d 1, 2005-Ohio-5619,

844 N.E.2d 858 (3d Dist.), citing Digital & Analog Design Corp. v. N. Supply Co., 44

Ohio St.3d 36, 540 N.E.2d 1358 (1989). However, punitive damages are recoverable in a

civil action alleging a breach of contract where the conduct constituting the breach is also

a tort for which punitive damages are recoverable. Unifirst Corp. v. Yusa Corp., 12th Dist.

No. CA2002-08-014, 2003-Ohio-4463. Here, Village Green breached the contractual

agreement by negligently maintaining Building 8.
       {¶63} We also find that the trial court’s reliance on Kramer Consulting, Inc. v.

McCarthy, S.D. Ohio No. C2-02-116, 2006 U.S. Dist. LEXIS 12857 (Mar. 8, 2006), was

not misplaced. In Kramer, the district court held that the definition of “tort action”

outlined in R.C. 2315.21 did not apply to R.C. 1701.59, which governed the breach of

fiduciary claim at issue.

       {¶64} In addition, we remain reliant on our determination in Luri v. Republic

Servs., 193 Ohio App.3d 682, 2011-Ohio-2389, 953 N.E.2d 859 (8th Dist.), rev’d on other

grounds, 132 Ohio St.3d 316, 2012-Ohio-2914, 971 N.E.2d 944, that R.C. 2315.21

applies to retaliatory discharge actions brought under R.C. Chapter 4112, and that the trial

court was required to apply its provisions if appropriately asked. Id. Unlike Luri, in the

present action, it is Village Green’s noncompliance with the Landlord-Tenant Act and the

duties that arise from the rental agreement that formed the basis of plaintiffs’s negligence

action. In Luri, there was no semblance of “another agreement between the parties.” As

such, R.C. 2315.21 does not apply to the punitive damages recovered in the instant case.

       {¶65} We conclude that in enacting R.C. 2315.21, the General Assembly was

mindful that when parties agree in writing to a code of conduct, the legislature will not

adjust or interfere in the parties’ agreement. As such, when Village Green, the landlord,

agreed to certain defined conduct, imposed by R.C. 5321.04(A), and plaintiffs-tenants

agreed, among other things, to pay their rents on time, the intent of the legislature is not to

interfere with the parties’ contracts nor bring their agreement under the purview of R.C.

2315.21.
       {¶66} Unlike an action where the parties have no agreement, but instead, the legal

relationship is defined solely by the tortuous conduct of the wrongdoer, such as in Luri,

then R.C. 2315.21 would be applicable to cap a punitive damages award. Under the

circumstances, the trial court did not err when it denied Village Green’s request to cap the

punitive damages award. Accordingly, we overrule the tenth assigned error.

                                      Attorney Fees

       {¶67} In the eleventh assigned error, Village Green argues the trial court abused its

discretion in the amount of attorney fees it awarded.

       {¶68} Initially, we note, attorney fees may be awarded as an element of

compensatory damages where the jury finds that punitive damages are warranted. See,

e.g., Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 1994-Ohio-461, 644 N.E.2d 397.

       {¶69} In the preceding assigned error, we concluded that the trial court did not err

by refusing to limit the punitive damages award to twice the amount of the compensatory

damages. The record reveals that plaintiffs’ counsel was operating under a contingent fee

basis. Specifically, the contingent fee was 40 percent of the amount recovered. The trial

court awarded plaintiffs’ attorney $1,040,000 in fees or 40 percent of the approximately

$2,600,000 that plaintiffs received in compensatory and punitive damages.

       {¶70} The record reveals that plaintiffs’ counsel submitted an unchallenged lodestar

calculation to justify the fees.   The United States Supreme Court has prescribed the

“lodestar” method for calculating reasonable attorney fees, which requires a multiplication

of the “number of hours reasonably expended on the litigation times a reasonable hourly
rate.” See Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989),

quoting Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The

lodestar is strongly presumed to yield a “reasonable” fee. See Burlington v. Dague, 505

U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992).

         {¶71} “Reasonable fees” are to be calculated according to the prevailing market

rates in the relevant community, taking into consideration the experience, skill, and

reputation of the attorney. See Blum, 465 U.S. at 895.

         “To inform and assist the court in the exercise of its discretion, the
         burden is on the fee applicant to produce satisfactory evidence — in
         addition to the attorney’s own affidavits — that the requested rates are
         in line with those prevailing in the community for similar services by
         lawyers of reasonably comparable skill, experience and reputation.” Id.
         at 896.”

         {¶72} In the instant case, the trial court was mindful that the lawsuit was filed in

2008, involved extensive investigation and discovery, and involved a 10-day jury trial

followed by significant post-verdict motions. The trial court also heard testimony that

Village Green sent plaintiffs’ attorney 42 disorganized banker boxes of construction

documents, maintenance records, and public records that had to be sifted through by the

firm’s paralegal. Further, the trial court considered that plaintiffs’ counsel undertook the

case on a contingent fee basis, expending time and resources, with no guarantee of

success.

         {¶73} Based on the aforementioned, we conclude that the trial court did not err in

the amount of attorney fees awarded. Accordingly, we overrule the eleventh assigned

error.
       {¶74} Judgment affirmed.

It is ordered that appellees recover from appellants their costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules

of Appellate Procedure.



PATRICIA ANN BLACKMON, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
SEAN C. GALLAGHER, J., CONCUR
                                APPENDIX

Assignments of Error

I. The Trial court erred in denying defendants’ motion for directed verdict with respect to
plaintiffs’ claim for negligent maintenance.

II. The judgment against each defendants with respect to negligent maintenance was
contrary to the manifest weight of the evidence.

III. The trial court erred in allowing the jury to consider evidence relating to the 2004 fire
in Building 3.

IV. The trial court erred in instructing the jury with respect to plaintiffs’ negligent
maintenance claim.

V. The trial court erred in denying Village Green of Beachwood’s motion for directed
verdict with respect to plaintiffs’ claim for negligent construction of Building 8.

VI. The trial court erred in instructing the jury that defendant Village Green of Beachwood
was strictly liable for any negligence in the construction of Building 8.
VII. The trial court erred in allowing seven plaintiffs to each recover $5000 more than the
amount of damages that they testified to at trial.

VIII.   The trial court erred in allowing plaintiffs’ claim for punitive damages to go to the
jury.

IX. The judgment against defendant Village Green of Beachwood for punitive damages
was contrary to the manifest weight of the evidence.

X. The trial court erred in refusing to “cap” the award of punitive damages as required by
R.C. 2315.21(D)(2)(a).

XI. The trial court erred in its determination of the amount of attorney fees to be awarded
to plaintiffs.
