[Cite as Clifford v. Aleshire, 2013-Ohio-2591.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                          JUDGES:
JACQUIN CLIFFORD FKA                              :       Hon. W. Scott Gwin, P.J.
COTTRELL, ET AL                                   :       Hon. Sheila G. Farmer, J.
                                                  :       Hon. Craig R. Baldwin, J.
                      Plaintiffs-Appellants       :
                                                  :
-vs-                                              :       Case No. 2012-CA-76
                                                  :
LONNIE J. ALESHIRE, JR.                           :
                                                  :       OPINION
                      Defendant-Appellee




CHARACTER OF PROCEEDING:                              Civil appeal from the Licking County Court
                                                      of Common Pleas, Case No. 2010CV093

JUDGMENT:                                             Reversed and Remanded




DATE OF JUDGMENT ENTRY:                               June 20, 2013

APPEARANCES:

For Plaintiffs-Appellants                             For Defendant-Appellee

BEVERLY FARLOW                                        ALVAND MOKHTARI
CHELSEA BERGER                                        PLUNKETT COONEY
270 Bradenton Avenue, Ste. 100                        300 East Broad Street, Ste. 590
Dublin, OH 43017                                      Columbus, OH 43215
[Cite as Clifford v. Aleshire, 2013-Ohio-2591.]


Gwin, P.J.

        {¶1}     Appellants appeal the September 4, 2012 judgment entry of the Licking

County Common Pleas Court denying their motion for prejudgment interest.

                                            Facts & Procedural History

        {¶2}     Appellants, former parishioners of Licking Baptist Church, filed a complaint

against appellee Lonnie J. Aleshire, Jr., the church music director and youth leader,

alleging sexual assault, battery, false imprisonment, intentional infliction of emotional

distress, defamation, and loss of consortium. At the conclusion of a jury trial, the jury

awarded appellants a total of $4,350,623.                 On August 31, 2012, the trial court

memorialized the jury verdict in a final judgment entry.

        {¶3}     On July 12, 2012, appellants filed a motion for prejudgment and post

judgment interest and requested oral hearings on the motions.              Appellants initiated

discovery pertaining to the motions for prejudgment and post judgment interest by

sending a Request for Production of Documents to appellee and a Notice of Submittal

of Plaintiffs’ Request for Production of Documents Pertaining to Plaintiffs’ Motion for

Prejudgment and Postjudgment Interest with the trial court on July 16, 2012. Appellee

filed an opposition to the motion on July 30, 2012 and filed a motion for protective order

regarding all post-trial production of documents. In their opposition to the motion for

prejudgment interest, appellee argued appellants knew appellee had no insurance

coverage for the award of damages as Church Mutual denied coverage to appellee

because appellants’ lawsuit alleged intentional sexual misconduct.

        {¶4}     The trial court did not set a date certain for the submission of evidentiary

materials or an oral evidentiary hearing on the motion for prejudgment interest. The trial
Licking County, Case No. 2012-CA-76                                                  3


court entered a judgment entry on September 4, 2012, granting appellants’ motion for

post judgment interest, but denying appellants’ motion for prejudgment interest. In the

judgment entry the trial court stated, “Defendant’s insurer offered to pay the costs of

defense, but they are not liable for defendant’s intentional sexual assaults.”

       {¶5}   Appellants now raise the following assignments of error on appeal:

       {¶6}   “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO

SET AN EVIDENTIARY HEARING PRIOR TO RULING ON A MOTION FOR

PREJUDGMENT INTEREST, AS IS REQUIRED BY THE OHIO SUPREME COURT IN

PRUSZYNSKI V. REEVES, 117 OHIO ST.3D 92, 93-96 (2008).

       {¶7}   “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT BY

ISSUING A RULING ON PLAINTIFFS-APPELLANTS’ MOTION FOR PREJUDGMENT

INTEREST THAT RELIES ON EVIDENCE THAT IS NOT AVAILABLE WITHIN THE

RECORD.

       {¶8}   “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT BY

MAKING A FINDING OF FACT ABOUT DEFENDANT-APPELLEE’S INSURER’S

LIABILITY WHEN THERE IS NO SUPPORT FOR THE FINDING WITHIN THE

RECORD.

       {¶9}   “IV. ALTERNATIVELY, THE TRIAL COURT ABUSED ITS DISCRETION

IN FINDING THAT “THE FACTORS SET FORTH IN SECTION 1343.03(C) HAVE NOT

BEEN DEMONSTRATED NOR CAN THEY BE,” AND THUS IN DENYING

PLAINTIFFS-APPELLANTS’ MOTION FOR PREJUDGMENT INTEREST.”
Licking County, Case No. 2012-CA-76                                                       4


                                                I.

       {¶10} Questions of law are reviewed by the court de novo. Erie Ins. v. Paradise,

5th Dist. No. 2008CA00084, 2009-Ohio-4005, ¶ 12.

       {¶11} R.C. 1343.03(C)(1) states as follows:

              “If, upon motion of any party to a civil action that is based on

       tortious conduct, that has not been settled by agreement of the parties,

       and in which the court has rendered a judgment, decree, or order for the

       payment of money, the court determines at a hearing held subsequent to

       the verdict or decision in the action that the party required to pay the

       money failed to make a good faith effort to settle the case and that the

       party to whom the money is to be paid did not fail to make a good faith

       effort to settle the case, interest on the judgment, decree, or order shall be

       computed * * *”

       {¶12} In 2008, the Ohio Supreme Court considered the meaning of the word

“hearing” found in R.C. 1343.03(C) in Pruszynski v. Reeves, 117 Ohio St.3d 92, 2008-

Ohio-510, 881 N.E.2d 1230. The Supreme Court specifically stated a trial court cannot

“drift away from the plain text of the statute” and rule on a motion for prejudgment

interest without a hearing simply because “it appears that no award of prejudgment

interest is likely.” Id. at 96. The Ohio Supreme Court reasoned that if they did not

require an evidentiary hearing, the “resulting presumption would be that no new

evidence is required. To the contrary, a motion for prejudgment interest addresses

facts and issues different from those submitted at trial.” Id. at 95. In its conclusion, the

Supreme Court held a “trial court must set a date certain for an evidentiary hearing
Licking County, Case No. 2012-CA-76                                                      5

before ruling on the merits of an R.C. 1343.03(C) motion for prejudgment interest.” Id.

at 97.    Further, “courts of appeals do not have the authority to grant a motion for

prejudgment interest when the trial court has denied the motion without setting a date

for an evidentiary hearing.” Id.

         {¶13} Here, the trial court did not set a date certain for the submission of

evidentiary materials or an oral evidentiary hearing on appellants’ motion for

prejudgment interest. Since a motion for prejudgment interest addresses facts and

issues different from those submitted at trial, we have no record upon which to review

the trial court’s decision to deny prejudgment interest.

         {¶14} Pursuant to the Ohio Supreme Court’s holding in Pruszynski v. Reeves,

we find the trial court erred as a matter of law by failing to set a date certain for the

submission of evidentiary materials or an oral evidentiary hearing on appellants’ motion

for prejudgment interest. Appellants’ first assignment of error is sustained.

                                                III.

         {¶15} Appellants argue the trial court erred in making a finding of fact about the

insurer’s liability in its judgment entry on prejudgment and post judgment interest.

Appellee argues the trial court did not make a factual finding there is no insurance

coverage; rather, the trial court made a conclusion, based upon the law, that public

policy precludes insurance coverage for such acts.

         {¶16} Both parties agree appellants can file a declaratory judgment action

pursuant to R.C. 2721.02(B) to determine whether the insurance policy’s coverage

extends to the occurrences at issue in this case since the trial court entered its final
Licking County, Case No. 2012-CA-76                                                          6


judgment on August 31, 2012. Both parties also agree the issue of insurance coverage

is not properly before the trial court at this time.

       {¶17} We agree with the parties that the issue of insurer liability is not properly

before the trial court at this point in time. Accordingly, to the extent that the trial court

made a finding of fact involving insurer liability for appellee’s torts, the trial court erred.

Assignment of Error III is sustained.

                                                II. & IV.

       {¶18} Because we found the trial court erred in failing to set a date certain for

the submission of evidentiary materials or an oral evidentiary hearing on appellants’

motion for prejudgment interest, we need not reach the issue of whether the trial court

erred in relying on evidence not available in the record or abused its discretion in finding

the factors set forth in R.C. 1343.03(C) have not been demonstrated.
Licking County, Case No. 2012-CA-76                                                   7


       {¶19} The September 4, 2012 judgment entry of the Licking County Common

Pleas Court denying appellants’ motion for prejudgment interest is reversed and the

matter is remanded to the trial court for further proceedings in accordance with the law

and this opinion.

By Gwin, P.J.,

Farmer, J. and

Baldwin, J., concur



                                            _________________________________
                                            HON. W. SCOTT GWIN


                                            _________________________________
                                            HON. SHEILA G. FARMER


                                            _________________________________
                                            HON. CRAIG R. BALDWIN




WSG:clw 0528
[Cite as Clifford v. Aleshire, 2013-Ohio-2591.]


                IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


JACQUIN CLIFFORD FKA
COTTRELL, ET AL                                   :
                                                  :
                         Plaintiffs-Appellants    :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
LONNIE J. ALESHIRE, JR.                           :
                                                  :
                                                  :
                         Defendant-Appellee       :       CASE NO. 2012-CA-76




       For the reasons stated in our accompanying Memorandum-Opinion, the

September 4, 2012 judgment entry of the Licking County Common Pleas Court denying

appellants’ motion for prejudgment interest is reversed and the matter remanded to the

trial court for further proceedings in accordance with the law and this opinion. Costs to

appellee.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. SHEILA G. FARMER


                                                      _________________________________
                                                      HON. CRAIG R. BALDWIN
