[Cite as Sanders v. Clark, 2016-Ohio-7267.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


JODI SANDERS,                                  :      OPINION

                 Plaintiff-Appellant,          :
                                                      CASE NO. 2016-T-0041
        - vs -                                 :

MONICA CLARK,                                  :

                 Defendant-Appellee.           :


Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2015 CV 00961.

Judgment: Reversed and remanded.


Michael D. Rossi, Guarnieri & Secrest, P.L.L., 151 East Market Street, P.O. Box 4270,
Warren, OH 44482 (For Plaintiff-Appellant).

Anne C. Fantelli, Meyers, Roman, Friedberg & Lewis, Eton Tower, 28601 Chagrin
Boulevard, Suite 500, Cleveland, OH 44122 (For Defendant-Appellee).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Jodi Sanders, appeals the judgment of the Trumbull County

Court of Common Pleas granting actual damages in the amount of $127.50 and punitive

damages in the amount of $5,000.00 in her favor.

        {¶2}     On May 15, 2015, appellant filed a complaint against appellee, Monica

Clark, in the Trumbull County Court of Common Pleas, alleging invasion of privacy for

the publication of appellant’s private affairs. On August 19, 2015, after appellee failed
to move or plead, appellant filed a motion for default judgment. On September 29,

2015, the court granted appellant’s motion for default judgment and awarded judgment

in her favor, reserving the issue of damages. The matter was set for a hearing before a

magistrate on the issue of damages.

        {¶3}   The magistrate’s decision was filed on February 3, 2016, following the

hearing.   The magistrate’s decision did not include separate findings of fact and

conclusions of law.    In a general decision, the magistrate stated that “[t]hough this

hearing regarded only damages because the Plaintiff was granted a judgment by default

as Defendant failed to answer the complaint, Plaintiff established her claim.”         The

magistrate recommended judgment against appellee for actual damages for loss of

wages in the amount of $127.50. The magistrate also found that appellee acted with a

conscious disregard for the rights of appellant that amounted to actual malice and

accordingly recommended punitive damages in the amount of $5,000.00.

        {¶4}   Following the filing of the magistrate’s decision, appellant did not request

that the magistrate file findings of fact and conclusions of law.

        {¶5}   On February 17, 2016, appellant filed an objection to the magistrate’s

decision of February 3, 2016. Appellant maintained that the magistrate “erred in making

no award whatsoever for [appellant’s] ‘shame, humiliation, embarrassment, anger, and

emotional distress’ that naturally and necessarily resulted from [appellee’s] wrongful

act.”   Appellant stated that, “[p]resumably, the Magistrate misapprehended ‘actual

damages’ to mean damages for economic loss alone * * * without regard for damages

resulting from noneconomic loss.”




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        {¶6}     The trial court entered judgment on April 19, 2016, overruling appellant’s

objection in full and adopting the magistrate’s decision in its entirety. The court entered

judgment in favor of appellant for actual damages of $127.50 and for punitive damages

in the amount of $5,000.00. The court also noted that appellant did not provide the

court with a transcript of the evidence submitted to the magistrate pursuant to Civ.R.

53(D)(3)(b).

        {¶7}     Appellant filed a timely notice of appeal from the April 19, 2016 judgment.

        {¶8}     On appeal, appellant assigns a single assignment of error:

        {¶9}     “The trial court erred in adopting and affirming the Magistrate’s Decision in

its entirety.”

        {¶10} Appellant argues the trial court should not have overruled her objection to

the magistrate’s decision and that she was not required to provide a transcript “where

the nature of [her] objection is ‘legal,’ without regard for any factual findings.” Appellant

argues the magistrate found appellant suffered emotional, noneconomic harm but failed

to appropriately apply the law because, although appellant was awarded special

damages for her lost wages, she was not awarded general damages for the

noneconomic harm associated with her claim.

        {¶11} We review a trial court’s determination to adopt a magistrate’s decision for

an abuse of discretion. In re Guardianship of Salaben, 11th Dist. Ashtabula No. 2008-

A-0037, 2008-Ohio-6989, ¶39 (citations omitted). An abuse of discretion implies the

trial court acted in a way that was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983) (citations omitted).

        {¶12} Pursuant to Civ.R. 53(D)(3)(b)(iii),




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                 [a]n objection to a factual finding, whether or not specifically
                 designated as a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be
                 supported by a transcript of all the evidence submitted to the
                 magistrate relevant to that finding or an affidavit of that evidence if
                 a transcript is not available.

“‘Without a transcript of the hearing, [a] trial court [is] required to accept all of the

magistrate’s findings of fact as true and only review the magistrate’s conclusions of law

based upon the accepted findings of fact. It follows that [the appellate court] must do the

same.’” Stewart v. Hickory Hills Apts., 9th Dist. Medina No. 14CA0038-M, 2015-Ohio-

5046, ¶11, quoting Walker v. Lou Restoration, 9th Dist. Summit No. 26236, 2012-Ohio-

4031, ¶6 (internal citations omitted). Pursuant to Civ.R. 53(D)(3)(a)(ii), a magistrate’s

decision “may be general unless findings of fact and conclusions of law are timely

requested by a party or otherwise required by law.”

       {¶13} In the present case, although the magistrate’s decision did not include

findings of fact and conclusions of law, the magistrate did analyze the applicable law

and summarize some of the evidence of damages apparently presented by appellant at

the hearing held before the magistrate. Appellant objected to the magistrate’s decision,

but failed to file a transcript of the proceedings before the magistrate. As such, in

considering appellant’s objections to the magistrate’s decision, the trial court was limited

to reviewing the general decision of the magistrate and the court file. The trial court

properly noted appellant’s failure to file a transcript and the requirement that it accept as

fact the evidence summarized in the magistrate’s decision. This court is equally limited

in our review.

       {¶14} Appellant is appealing an order pertaining to the damages awarded to her

following a default judgment in her favor. The standard of review as to a challenge to




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an award of damages is whether the trial court abused its discretion in its determination

of damages. Reitz v. Giltz & Assocs., 11th Dist. Trumbull No. 2005-T-0126, 2006-Ohio-

4175, ¶28 (citations omitted).

       {¶15} The tort of invasion of privacy protects a mental interest, rather than an

economic or pecuniary one. LeCrone v. Ohio Bell Tel. Co., 120 Ohio App. 129, 131

(10th Dist.1963). To recover for invasion of privacy, “[a]ctual damage is not necessary.

Proof of the unjustified invasion entitles the plaintiff to at least nominal damages, and

the [trier of fact] may award substantial damages. Special pecuniary loss as well as

punitive damages may be recovered if pleaded and proved.” Id. at 131-132; see also

Filotei v. Booth Broadcasting, Co., 8th Dist. Cuyahoga No. 43454, 1981 Ohio App.

LEXIS 10461, *5 (Dec. 10, 1981) (“[I]t is not necessary to prove actual damages, and * *

* proof of the unjustified invasion of privacy entitles the plaintiff to at least nominal

damages.”). “In an action for invasion of privacy, it is not essential to recovery to allege

and prove special damages; if a wrongful invasion of such right is shown, substantial

damages for injured feelings and mental anguish alone may be recovered.”

Montgomery v. Wiland, 11th Dist. Portage No. 1534, 1985 Ohio App. LEXIS 7304, *6

(Sept. 27, 1985) (citation omitted).

       {¶16} Upon review of the record and accepting as fact the evidence summarized

in the magistrate’s decision, we find the magistrate’s decision reveals a fundamentally

flawed legal conclusion.     The magistrate found that appellant’s “testimony further

revealed damages in the form of shame, humiliation, embarrassment, anger, and other

mental and emotional distress.” The magistrate noted appellee attempted to minimize

these damages but concluded that “the damages were not as limited as the Defendant




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argues as the photo was substantially certain to become public knowledge.”             As a

result, as a matter of law, appellant was entitled to an award of at least some

compensatory damage for those enumerated types of harm.

       {¶17} It appears the magistrate may have intended to incorporate the award for

these items into the punitive damage award.         However, that is not the purpose of

punitive damages. If punitive damages are appropriate, as they were found to be here,

the award for punitive damage is to be considered separate from the award for

compensatory damage. Punitive damages are intended to punish and deter conduct.

See Preston v. Murty, 32 Ohio St.3d 334, 335 (1987). Compensatory damages are

intended to compensate and make whole the victim. See Columbus Finance, Inc. v.

Howard, 42 Ohio St.2d 178, 184 (1975).

       {¶18} We also note that, pursuant to R.C. 2315.21(C)(2), “punitive * * * damages

are not recoverable from a defendant in question in a tort action unless * * * [t]he trier of

fact has returned a verdict or has made a determination * * * of the total compensatory

damages recoverable by the plaintiff from the defendant.”                Additionally, R.C.

2315.21(D)(2)(a) states, in pertinent part,      “the court shall not enter judgment for

punitive * * * damages in excess of two times the amount of the compensatory damages

awarded to the plaintiff from that defendant[.]” Here, the total compensatory damages

totaled $127.50 and the punitive damages totaled $5,000.00, well over the limitation

contained in the statute. Therefore, as it stands, appellant’s award of punitive damages

exceeds the amount permitted by law.

       {¶19} The trial court erred in adopting the magistrate’s decision where the

decision made a finding that appellant was damaged but did not award any general




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compensatory, or even nominal, damages. Appellant’s sole assignment of error is with

merit.

         {¶20} The decision of the Trumbull County Court of Common Pleas is reversed,

and this matter is remanded to the trial court or, in the discretion of the trial court to the

magistrate for an assessment of compensatory damages for those items of harm

identified by the magistrate for which no compensatory damage award was made.

Based on the total amount of compensatory damages awarded on remand, appellant’s

punitive damage award may also require adjustment to comply with R.C. 2315.21(C)(2).



CYNTHIA WESTCOTT RICE, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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