[Cite as Catalanotto v. Byrd, 2015-Ohio-277.]


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

JOHN CATALANOTTO, et al.                             C.A. No.    27302

        Appellants/Cross-Appellees

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
PHILLIS BYRD, et al.                                 COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellees/Cross-Appellants                   CASE No.   CV 2011 04 1811

                                 DECISION AND JOURNAL ENTRY

Dated: January 28, 2015



        CARR, Judge.

        {¶1}     Appellants/Cross-Appellees, John and Rita Catalanotto (“the Catalanottos”),

appeal from the judgment of the Summit County Court of Common Pleas.             Additionally,

Appellee/Cross-Appellant, Phyllis Byrd, appeals from the court’s judgment. This Court reverses

and remands for further proceedings.

                                                I.

        {¶2}     The Catalanottos and Byrd are neighbors who became embroiled in a long-

standing feud with one another. The feud resulted in the Catalanottos filing suit against Byrd

and her boyfriend, Defendant-Appellee, Edwin Moore. In their suit, the Catalanottos brought

counts against both Byrd and Moore for trespass, loss of enjoyment, intentional infliction of

emotional distress, invasion of privacy, and declaratory judgment. They also brought counts

against Byrd alone for conversion, trespass to chattels, malicious prosecution, and abuse of

process. Byrd and Moore answered the complaint, and Byrd filed several counterclaims against
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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.

       {¶3}     A jury trial took place and, relevant to this appeal, 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 any

compensatory damages. The jury awarded Byrd $5,000 in punitive damages on her claim for

assault and $10,000 in compensatory damages on her claim for intentional infliction of emotional

distress. The court entered a judgment on the verdicts and noted the need for a hearing on the

matter of attorney fees.

       {¶4}    After the court entered its judgment, the Catalanottos filed a motion for judgment

notwithstanding the verdict (“JNOV”). In their JNOV 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 arguments underlying it.

       {¶5}    The trial court granted the JNOV motion in part and denied it in part.

Specifically, the court vacated the punitive damage award, but allowed the award of attorney
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fees. The court later held a hearing on the issue of attorney fees and ordered the Catalanottos to

pay $15,000 for Byrd’s attorney fees.

       {¶6}    The Catalanottos now appeal from the court’s judgment, ordering them to pay

Byrd’s attorney fees. Additionally, Byrd cross-appeals from the court’s judgment, vacating her

punitive damage award. The parties collectively raise three assignments of error for our review.

For ease of analysis, we rearrange and consolidate several of the assignments of error.

                                                II.

                            BYRD’S ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN PARTIALLY GRANTING [THE
       CATALANOTTOS’] MOTION FOR JUDGMENT NOTWITHSTANDING THE
       VERDICT.

       {¶7}    In her sole assignment of error, Byrd argues that the trial court erred when it

partially granted the Catalanottos’ JNOV motion. She argues that the motion was procedurally

defective, so the court should have denied it on its face. Alternatively, she argues that she ought

to have prevailed on the merits underlying their motion. Because we agree that the court erred

by entering a JNOV rather than determining whether a new trial was warranted, we do not

address Byrd’s alternative argument regarding the merits.

       {¶8}    After a court enters judgment on a jury’s verdict, a party may file a motion for

JNOV to have the judgment set aside on grounds other than the weight of the evidence. See

Civ.R. 50(B). “JNOV is proper if upon viewing the evidence in a light most favorable to the

non-moving party and presuming any doubt to favor the nonmoving party reasonable minds

could come to but one conclusion, that being in favor of the moving party.” Williams v. Spitzer

Auto World, Inc., 9th Dist. Lorain No. 07CA009098, 2008-Ohio-1467, ¶ 9. Yet, an argument

that a jury’s damage award is contrary to law “is not appropriate on a motion for [JNOV]
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because Civ.R. 50(B) provides the means to challenge the jury’s verdict, not the jury’s award of

damages.” Jemson v. Falls Village Retirement Community, Ltd., 9th Dist. Summit No. 20845,

2002-Ohio-4155, ¶ 17. “Instead, Civ.R. 59 provides litigants with an avenue to challenge

damage awards in the form of a motion for a new trial.” Magnum Steel & Trading, L.L.C. v.

Mink, 9th Dist. Summit Nos. 26127 & 26231, 2013-Ohio-2431, ¶ 44. See also Civ.R. 59(A)(7).

       {¶9}    In their motion for JNOV, the Catalanottos did not take issue with any of the

evidence submitted at trial or argue that any portion of the jury’s verdict was unsupported by that

evidence. Compare Irvine v. Akron Beacon Journal, 147 Ohio App.3d 428, 2002-Ohio-2204, ¶

53-62 (9th Dist.) (punitive damage award contested through JNOV where movant argued there

had been no evidence of actual malice). Instead, they argued that Byrd’s award of punitive

damages could not stand in the absence of a compensatory damage award and that her award of

attorney fees could not stand in the absence of a punitive damage award. They specifically asked

the court to set aside the jury’s award of punitive damages and attorney fees because it was

“contrary to Ohio law.” Yet, an argument that a jury’s damage award is contrary to law “is not

appropriate on a motion for [JNOV].” Jemson at ¶ 17. See also Magnum Steel & Trading,

L.L.C. at ¶ 44. Because the Catalanottos were not entitled to relief under Civ.R. 50(B), the trial

court erred by affording them relief in the form of a JNOV.

       {¶10} While we agree with Byrd that the trial court erred by affording the Catalanottos

relief under Civ.R. 50(B), we do not agree that a simple reversal and reinstatement of her award

would be appropriate under these facts and circumstances. Byrd raised the same procedural

objection to the Catalanottos’ motion for JNOV in the court below. In response, the Catalanottos

continued to pursue their JNOV, but also asked, in the alternative, for a new trial. The trial court

did not address Byrd’s procedural argument or examine whether it would be appropriate to
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afford the Catalanottos relief in the form of a new trial. See Magnum Steel & Trading, L.L.C. at

¶ 44. See also Civ.R. 59(D) (court may order new trial on its own initiative “for any reason for

which it might have granted a new trial on motion of a party”).           Instead, the court only

considered the Catalanottos’ motion as one for JNOV and afforded them a remedy to which they

were not entitled. In light of the court’s error, we find it appropriate to reverse and remand this

matter for further proceedings. 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’ JNOV 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. Byrd’s

sole assignment of error is sustained on that basis.

                   THE CATALANOTTOS’ ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED BY DENYING [THE CATALONOTTOS’]
       MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

                  THE CATALANOTTOS’ ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BY REFUSING TO REDUCE [BYRD’S]
       REQUESTED ATTORNEY FEES, AS THE CALCULATION OF ATTORNEY
       FEES WAS UNREASONABLE.

       {¶11} In their first assignment of error, the Catalanottos argue that the court erred by

partially denying their JNOV because Byrd was not entitled to attorney fees in the absence of a

punitive damage award. In their second assignment of error, they challenge the amount of

attorney fees that the trial court awarded Byrd.       Based on our resolution of Byrd’s sole

assignment of error, the Catalanottos’ first assignment of error is moot and their second

assignment of error is premature. Accordingly, we decline to address their assignments of error.

See App.R. 12(A)(1)(c).
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                                                III.

       {¶12} Byrd’s sole assignment of error is sustained for the reasons set forth in the

foregoing opinion.    The Catalanottos’ first assignment of error is moot and their second

assignment of error is premature. The judgment of the Summit County Court of Common Pleas

is reversed, and the cause is remanded for further proceedings consistent with the foregoing

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.

       Costs taxed to Appellants/Cross-Appellees.




                                                       DONNA J. CARR
                                                       FOR THE COURT
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BELFANCE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

J. REID YODER, Attorney at Law, for Appellants/Cross-Appellees.

PAUL F. ADAMSON, Attorney at Law, for Appellees/Cross-Appellants.
