[Cite as Novy v. Ferrara, 2015-Ohio-4428.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


DR. EUGENE NOVY, et al.,                       :        OPINION

                 Plaintiffs-Appellants,        :
                                                        CASE NO. 2014-P-0064
        - vs -                                 :

JOSEPH FERRARA, JR., et al.,                   :

                 Defendants-Appellees.         :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2009 CV
01654.

Judgment: Affirmed.


Diane A. Calta and Joseph W. Diemert, Jr., Joseph W. Diemert, Jr. & Associates Co.,
L.P.A., 1360 S.O.M. Center Road, Cleveland, OH 44124 (For Plaintiffs-Appellants).

Harry A. Tipping, Harold M. Schwarz, III, and Christopher A. Tipping, Stark & Knoll Co.,
L.P.A., 3475 Ridgewood Road, Akron, OH 44333 (For Defendants-Appellees).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiffs-appellants, Dr. Eugene and Anne Novy, appeal from the Order

and Journal Entry of the Portage County Court of Common Pleas, denying their Motion

Requesting an Award of Punitive Damages and Attorney’s Fees.           The issue to be

determined in this case is whether the law of the case doctrine prevents a party from

raising an argument that has already been ruled upon by an appellate court. For the

following reasons, we affirm the decision of the lower court.
        {¶2}     On October 28, 2009, the Novys filed a Complaint against their neighbors,

Joseph and Victoria Ferrara, based on the contention that the Ferraras caused a mound

of dirt to be constructed abutting the Novys’ property, which “serve[d] as a dam to the

natural flow of water,” causing water drainage problems on their property.1            The

Complaint raised claims for Trespass, Nuisance, and Intentional Interference with the

Flow of Water. On the same date, the Novys filed a Motion for Preliminary Injunction,

which was subsequently denied.

        {¶3}     Both parties filed motions for summary judgment. On April 30, 2012, the

trial court issued an Order and Journal Entry, granting the Ferraras’ Motion for

Summary Judgment as to the claim for Intentional Interference with the Flow of Water,

holding that “[n]either common law nor Ohio statutory law recognizes such a cause of

action.”     The Motions for Summary Judgment as to the remaining claims were

overruled.

        {¶4}     A jury trial was held on the remaining claims in April 2013. The testimony

and evidence presented are fully described in Novy v. Ferrara, 11th Dist. Portage No.

2013-P-0063, 2014-Ohio-1776, ¶ 13-25. In summary, the Novys owned property next

to the Ferraras’. According to Eugene Novy, Joseph Ferrara created a dirt mound on

the portion of his property adjoining the Novys’, which affected water flow on their

property. He also testified that Ferrara added both a pipe and boulders which extended

onto his property. A surveyor, Steven Hovanscek, confirmed that the pipe and boulders

were on the Novys’ property by less than a foot.

        {¶5}     Joseph Ferrara testified that although he completed a project on his land

using dirt/fill material, it did not impact water flow. A civil engineer, Dustin Keeney,

1. During the trial, the court dismissed Victoria Ferrara as a party.


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explained that changes made by the Novys on their own property may have caused the

drainage problems.

      {¶6}   On the Trespass claim, the jury found that Ferrara entered upon the

Novys’ land without permission, but that no damage was caused. The jury also found

that no nuisance was created. A Magistrate Entry of Judgment on Jury Verdict was filed

on April 25, 2013.

      {¶7}   On May 8, 2013, the Novys filed a Motion for Permanent Injunction,

Judgment Notwithstanding the Verdict, or New Trial, which the court denied.

      {¶8}   The Novys filed an appeal in Novy, 2014-Ohio-1776. This court held that

the trial court properly dismissed the Novys’ claim for Intentional Interference with the

Flow of Water, as well as correctly denied the request for an injunction and other

motions. We also held that, “[s]ince the jury in this case found that trespass did occur,

nominal damages should have been awarded,” and reversed solely as to this issue,

ordering nominal damages to be awarded by the trial court upon remand. Id. at ¶ 47

and 49.

      {¶9}   On July 22, 2014, a Magistrate Decision was filed, in which the magistrate,

pursuant to the remand, determined that the Novys should receive nominal damages in

the amount of $100.00.      The Decision also stated that no punitive damages or

attorney’s fees should be awarded.

      {¶10} The Novys filed a Motion Requesting an Award of Punitive Damages and

Attorney’s Fees on August 13, 2014. Ferrara filed a brief in opposition.

      {¶11} The court filed an Order and Journal Entry Adopting Magistrate Decision

on September 15, 2014, adopting the Magistrate Decision awarding nominal damages.




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        {¶12} On September 29, 2014, the trial court filed an Order and Journal Entry,

denying the Novys’ Motion Requesting an Award of Punitive Damages and Attorney’s

Fees. The court noted that “the Jury, the Court of Appeals, and the Magistrate found

that there should be no award for punitive damages or attorney’s fees” and that it “sees

no reason to award punitive damages or attorney fees from the facts of this case.”

        {¶13} On appeal, the Novys raise the following assignment of error:2

        {¶14} “The trial court erred as a matter of law when it overruled Appellants’

motion requesting an award of punitive damages and attorneys’ fees on Appellants’

trespass claim.”

        {¶15} We will evaluate the trial court’s denial of the Novys’ Motion under an

abuse of discretion standard. Lozada v. Lozada, 11th Dist. Geauga No. 2012-G-3100,

2014-Ohio-5700, ¶ 65 (“[s]ave a clear abuse of discretion, an appellate court may not

reverse the trial court’s judgment on attorney fees”); Becker Equip., Inc. v. Flynn, 12th

Dist. Butler No. CA2002-12-313, 2004-Ohio-1190, ¶ 11 (evaluating a motion for punitive

damages and attorney’s fees under an abuse of discretion standard).

        {¶16} The Novys argue that the trial court erred by failing to consider the facts

supporting their contention that punitive damages should have been awarded on their

Trespass claim, since the award of nominal damages on remand provided a basis for

considering punitive damages.




2. Ferrara filed a Motion to Dismiss the present appeal on the grounds that the matter was barred by the
law of the case doctrine. On April 17, 2015, this court denied the Motion, holding that, in the absence of
case law to support dismissal, the issues raised would be properly resolved through the normal appellate
process.


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        {¶17} Ferrara contends, inter alia, that this exact issue has already been

decided by this court in the prior appeal and the ruling on that matter is the law of the

case.

        {¶18} As an initial matter, Ferrara contends that the Novys did not object to the

Magistrate Decision awarding nominal damages and determining no punitive damages

or attorney’s fees should be awarded and are barred from raising this issue on appeal.

        {¶19} Pursuant to Civ.R. 53(D)(3)(b)(iv), “[e]xcept for a claim of plain error, a

party shall not assign as error on appeal the court’s adoption of any factual finding or

legal conclusion, whether or not specifically designated as a finding of fact or conclusion

of law under Civ.R. 53(D)(3)(a)(ii), unless the party has objected to that finding or

conclusion as required by Civ.R. 53(D)(3)(b).”

        {¶20} It is correct that the Novys did not object to the July 22, 2014 Magistrate

Decision awarding nominal damages, adopted by the trial court on September 15, 2014.

The Novys, however, do not appeal from that judgment but from the court’s separate

September 29, 2014 Order and Journal Entry, denying their Motion for punitive

damages and attorney’s fees. While that Order did note that the magistrate had found

no punitive damages were warranted, it did not expressly adopt that finding or any other

finding or magistrate decision. Thus, we decline to apply Civ.R. 53(D)(3)(b)(iv).

        {¶21} Regardless, the law of the case doctrine prevented the Novys from

rearguing their claim for punitive damages before the trial court. The law of the case

doctrine provides that “the decision of a reviewing court in a case remains the law of

that case on the legal questions involved for all subsequent proceedings in the case at

both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410




                                            5
(1984). “[T]he decision of an appellate court in a prior appeal will ordinarily be followed

in a later appeal in the same case and court.” Id. at 4; Weller v. Weller, 11th Dist.

Geauga No. 2004-G-2599, 2005-Ohio-6892, ¶ 15.             Where the appellate court has

already addressed and rejected an appellant’s claims, they lack merit under this

doctrine. State v. Jackson, 11th Dist. Trumbull No. 2008-T-0024, 2010-Ohio-1270, ¶

29.

       {¶22} The law of the case doctrine is “necessary to ensure consistency of results

in a case, to avoid endless litigation by settling the issues, and to preserve the structure

of superior and inferior courts as designed by the Ohio Constitution.” Nolan at 3.

       {¶23} In the previous Novy appeal, this court held the following:

              The Novys argue that, if the jury had properly awarded nominal

              damages, it also would have considered awarding punitive

              damages and attorney fees.         However, since the jury failed to

              determine that even nominal damages were necessary to remedy

              the trespass, it appears that it had no intent to award any other

              damages.    The jury was instructed as to punitive damages and

              chose to give no award, a determination which we need not

              second-guess.     Furthermore, it has been noted that “[n]ominal

              damages * * * are not the actual damages that are a prerequisite to

              an award of punitive damages.”        Caserta v. Connolly, 6th Dist.

              Ottawa No. OT-03-004, 2004-Ohio-6001, ¶ 14, citing Seasons Coal

              Co. v. Cleveland, 10 Ohio St.3d 77, 82, 461 N.E.2d 1273 (1984);

              Utz v. Stovall, 11th Dist. Portage No. 2012-P-0135, 2013-Ohio-




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              4299, ¶ 62 (“[p]unitive damages may not be awarded when a jury

              fails to award compensatory damages”).

2014-Ohio-1776, at ¶ 48. This ruling directly addressed the exact argument raised by

the Novys in the present appeal, whether punitive damages are warranted when

nominal damages are awarded. The Novys specifically argued in their prior appeal that

“the trial court should have also required the jury to enter a finding in favor of the

Appellants for an award of punitive damages and attorney’s fees,” the same argument

they raise here. In fact, two of the primary cases cited by the Novys in their brief in the

present matter were also raised in their prior brief. The Novys are not entitled to have

the trial court or this court consider this issue for a second time. Aurora Loan Servs.,

LLC v. Cart, 11th Dist. Ashtabula No. 2011-A-0070, 2012-Ohio-5024, ¶ 23 (where an

argument was previously raised on appeal, it was barred by both res judicata and the

law of the case doctrine).

       {¶24} The lower court did exactly what this court ordered and awarded nominal

damages, also holding that there was no basis for punitive damages and attorney’s

fees. This was not an error but, instead, appropriate compliance with this court’s prior

decision. It is also noteworthy that the prior matter was appealed to the Ohio Supreme

Court, which declined to exercise jurisdiction, thus permitting the application of the law

of the case doctrine. Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320, 323, 649

N.E.2d 1229 (1995) (when an appeal to the Ohio Supreme Court was denied, the law of

the case doctrine applied).

       {¶25} Even if the Novys were permitted to reargue whether punitive damages

can be awarded based upon nominal damages, there is no basis to contend that




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punitive damages should have been either considered or awarded by the lower court.

As we noted in our prior opinion, the jury had no intent to award punitive damages,

since it did not even believe nominal damages were warranted and there was no basis

to second guess that decision. 2014-Ohio-1776, at ¶ 48.

      {¶26} Regarding the issue of attorney’s fees, the Novys argue that, since

punitive damages should have been awarded, such fees could have then been

recoverable.   However, since punitive damages were not warranted, an award of

attorney’s fees also would not be permissible. See Langaa v. Pauer, 11th Dist. Geauga

No. 2004-G-2600, 2005-Ohio-6295, ¶ 61 (“[u]nder the ‘American Rule’ the parties bear

their own attorney fees unless an exception applies, such as * * * when the prevailing

party has recovered punitive damages”).

      {¶27} The sole assignment of error is without merit.

      {¶28} For the foregoing reasons, the Order and Journal Entry of the Portage

County Court of Common Pleas, denying the Novys’ Motion Requesting an Award of

Punitive Damages and Attorney’s Fees, is affirmed.           Costs to be taxed against

appellants.



COLLEEN MARY O’TOOLE, J., concurs,

TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion.



                     ___________________________________



TIMOTHY P. CANNON, P.J., concurring.




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       {¶29} I concur with the majority opinion that this appeal must be affirmed. The

law of the case doctrine prevents appellants from raising their argument for punitive

damages and attorney fees, as it has already been ruled upon by this court in Novy v.

Ferrara, 2014-Ohio-1776. I write separately to address two points.

       {¶30} First, I do not believe our standard of review of the trial court’s denial of

appellants’ motion is whether the trial court abused its discretion. This suggests the trial

court could have allowed consideration of punitive damages and attorney fees. As we

have noted, however, the law of the case doctrine applies, and the denial of the motion

was mandated as a matter of law. Those questions we review de novo.

       {¶31} Second, we should address appellants’ specific argument, which is that

the law of the case doctrine does not apply because nominal damages allow for

consideration of an award of punitive damages in a tort case as “actual damages” are

inclusive of “nominal damages.” Appellants argue that when this case was returned to

the trial court with instructions to issue an award of nominal damages, the trial court

should have assessed the question of punitive damages and attorney fees anew. That

is incorrect.

       {¶32} Appellants cite to several old Ohio Supreme Court cases and to the

Restatement of Torts §163. However, this issue is resolved by statute in Ohio. The

version of R.C. 2315.21 that was in effect in 2001 provided that “[p]unitive or exemplary

damages are recoverable from a defendant in a tort action irrespective of whether the

plaintiff in question has adduced proof of actual damages.” This statute was amended

several times over the next several years.       The current version, effective in 2005,

provides at R.C. 2315.21(C):




                                             9
              (C) Subject to division (E) of this section, punitive or exemplary
              damages are not recoverable from a defendant in question in a tort
              action unless both of the following apply:

              (1) The actions or omissions of that defendant demonstrate malice
              or aggravated or egregious fraud, or that defendant as principal or
              master knowingly authorized, participated in, or ratified actions or
              omissions of an agent or servant that so demonstrate.

              (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.

       {¶33} In Novy, we held that nominal damages “‘are not the actual damages that

are a prerequisite to an award of punitive damages.’” Id. at ¶48, quoting Caserta v.

Connolly, 6th Dist. Ottawa No. OT-03-004, 2004-Ohio-6001, ¶14; citing Utz v. Stovall,

11th Dist. Portage No. 2012-P-0135, 2013-Ohio-4299, ¶62. Although we did not cite

the statute in the prior opinion, the case law we cited in support of this holding is rooted

in R.C. 2315.21.     See Caserta, supra, ¶13-14 (citation omitted) (“R.C. 2315.21(B)

permits an award of punitive damages in a tort action where the actions or omissions of

a defendant demonstrate actual malice and the plaintiff proves actual damages as a

result of those actions or omissions. * * * Nominal damages, however, are not the

actual damages that are a prerequisite to an award of punitive damages.”); Utz, supra,

¶59-60 (“Pursuant to R.C. 2315.21(B) * * * Utz was required to demonstrate evidence of

malice on the part of Stovall and actual damages before her claim for punitive damages

could be considered by the jury.”).

       {¶34} Therefore, the law of the case doctrine applies, and appellants are unable

to recover punitive damages because they were not awarded “actual damages” (or,

according to the current text found in R.C. 2315.21(C), because they were not awarded




                                            10
“compensatory damages”).       This issue was already argued and decided in Novy;

therefore, I concur that appellants’ argument is barred by the law of the case doctrine.




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