Opinion · Ohio Supreme Court
Apel v. Katz
Apel v. Katz, 83 Ohio St. 3d 11 (Ohio 1998)
- Type
- Opinion
- Court
- Ohio Supreme Court
- Jurisdiction
- Ohio
- Date
- 1998-08-19
- Topic
- general
reversing court of appeals’ judgment in action for declaratory judgment interpreting the scope of an easement | rather than remand issues to be resolved by the lower courts, we chose to decide the issues in this court based on the briefs filed therein | rather than remand issues to be resolved by the lower courts, we chose to decide the issues in this court based on the briefs filed therein | “Attorney fees are potentially recoverable as a part of compensatory damages when punitive damages have been awarded.” | “A common-law tort in trespass upon real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another whereby damages directly ensue.” | “ ‘A common-law tort in trespass upon real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another whereby damages directly ensue.’ ” | defining trespass as an unauthorized or unprivileged entry
Citator
- Cited by
- 46 opinions
[This opinion has been published in Ohio Official Reports at83 Ohio St.3d 11
.]
APEL ET AL., APPELLANTS, v. KATZ ET AL., APPELLEES.
[Cite as Apel v. Katz, 1998-Ohio-420
.]
Real property—Interpretation of scope of the reservation of the right to keep and
maintain a roadway easement.
(No. 97-641—Submitted March 24, 1998—Decided August 19, 1998.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 68294.
__________________
{¶ 1} This appeal revolves around a dispute over the scope of an easement
on a parcel of land, and the often acrimonious relationship of the owners of the two
properties directly affected by that easement. Plaintiffs-appellants, Zeev and Atara
Apel, are the holders of the dominant tenement benefited by the easement.
Defendants-appellees, Shai and Linda Katz, are the holders of the servient tenement
subject to the easement.
{¶ 2} The parcels now owned by appellants and by appellees at one time
constituted one larger parcel, owned by Laura L. Goodman. In 1976, Goodman,
while retaining the rear, larger (south) parcel (now owned by appellants) for her
own use, sold the front (north) parcel (now owned by appellees) to Angela M.
Saporito and Marie C. Saporito. The front parcel abuts on Pike Drive in the village
of Orange, in Cuyahoga County. The rear parcel does not abut any public access
street. The deed transferring the front parcel to the Saporitos contains the following
provisions:
“Grantor [Goodman] reserves for herself, her heirs and assigns, an easement
to provide ingress and egress to and from the property owned by the Grantor
abutting the above-described premises on the South. Grantor shall be allowed to
keep and maintain a roadway;
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“Further, Grantor reserves for herself, her heirs and assigns, the right to
install upon the easement public utility lines and poles, or underground utilities,
and sewer and water lines below ground.”
{¶ 3} The deed described the easement area as a thirty-foot-wide strip of
land along the length of one side of the front property.
{¶ 4} Goodman conveyed the rear, larger parcel to appellants in 1979. In
the deed conveying the rear parcel, the following language appears:
“TOGETHER WITH an easement as described in Deed from Laura L.
Goodman to Angela M. Saporito and Marie C. Saporito * * *, which easement
provides ingress and egress to and from the above described property to Pike Drive,
the right to keep and maintain a roadway, to install upon the easement Public utility
lines and poles or underground utilities and sewer and water lines below ground.”
{¶ 5} In a deed recorded on December 12, 1988, the succeeding owner of
the front parcel, Rose Marie Lentini, f.k.a. Rose Marie Saporito, transferred her
interest in the parcel to appellees. This deed contained the following provision:
“And the Grantors [sic, grantor, Lentini] * * * hereby covenant with the
said Grantees [appellees] * * * that the said Grantors [sic] are the true and lawful
owners of said premises and are well seized of same in fee simple[,] have good
right and full power to bargain[,] sell and convey the same in the manner aforesaid
and that the same are free and clear of all encumbrances, EXCEPT * * * conditions
and restrictions of record and any conditions, reservations or easements created
therewith * * *.”
{¶ 6} After appellees purchased the front parcel, they began to construct a
house on the land. A disagreement arose between appellants and appellees over the
scope of the easement over the property. One of the points of contention concerned
a rough gravel road or pathway over the front parcel used by the appellants, and
previously used by Goodman, to access the rear parcel. The disagreement
eventually escalated into animosity.
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January Term, 1998
{¶ 7} On August 9, 1989, appellants filed a complaint in the Court of
Common Pleas of Cuyahoga County, seeking a declaration of rights under the
easement, damages, and an injunction. Appellants alleged that appellees had
interfered with their use of the easement. In their answer, appellees disagreed with
appellants’ position on the scope of the easement. Appellees counterclaimed for
compensatory damages, punitive damages, and attorney fees, alleging, inter alia,
that appellants had exceeded the scope of the easement and had trespassed on their
property.
{¶ 8} On October 10, 1990, appellees filed a motion for partial summary
judgment. Appellees did not dispute the existence of appellants’ easements for
ingress and egress and for utilities, but did dispute that appellants possessed the
right to keep and maintain a roadway on the front parcel. Appellees argued that,
by failing to include the phrase “heirs and assigns” or other terms of inheritance
and succession in the “roadway” portion of the easement reservation, Goodman
merely made a reservation of roadway rights personal to herself, which could not
be passed on to future purchasers of the rear parcel. The original reservation of the
right to keep and maintain a roadway is hereinafter referred to as the “roadway
provision,” and the issue of whether the reservation benefits subsequent owners is
the “roadway issue.”
{¶ 9} Appellants responded in opposition to appellees’ motion, and
requested summary judgment in their favor, asserting that Goodman’s reservation
of roadway rights was a clarification of the scope of the easement for ingress and
egress, and was not meant to be taken as a limitation of the rights retained by
Goodman. Appellants also requested that the trial court order appellees to return
the strip over which they had the easement to its previous condition, based on their
allegations that appellees had improperly altered it. Furthermore, appellants moved
for summary judgment on appellees’ counterclaims, contending that there was no
trespass and that appellees had suffered no damages.
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{¶ 10} Appellees, in their reply brief, asserted that they had not obstructed
or blocked the easement. They attached an affidavit of a surveyor, stating that much
of the gravel pathway used by appellants to reach the property in the rear was not
on the thirty-foot-wide easement, to support their trespass claim.
{¶ 11} On June 11, 1991, the trial court, without opinion, issued the
following journal entry unaccompanied by a declaration of the rights of the parties:
“Motion of Defendants, Shai Katz, et al., for Partial Summary Judgment is
GRANTED.
“Motion of Plaintiffs, Zeev Apel, et al., for Summary Judgment is DENIED
as there are genuine issues of fact regarding interference with the easement.”
{¶ 12} The case progressed toward a trial on appellees’ counterclaims.
Following some apparent misunderstandings regarding the assignment of a visiting
judge and the setting of a trial date, an ex parte trial was held on appellees’
counterclaims on December 9, 1991, with counsel for appellants not present. The
trial court awarded appellees $12,530 in compensatory damages and $50,000 in
punitive damages, plus costs, on their counterclaims. On appeal, the court of
appeals reversed the damages awards and remanded for a new trial, holding that the
ex parte trial had deprived appellants of their due process rights. Apel v. Katz (Apr.
29, 1993), Cuyahoga App. No. 63084, unreported, 1993 WL 135787
. The court of
appeals declined to review appellants’ assignment of error regarding the trial
court’s grant of partial summary judgment to appellees on the interpretation of the
roadway reservation, finding that the remand for a new trial on damages on the
counterclaims rendered that decision of the trial court an interlocutory,
unappealable order.
{¶ 13} On remand, the trial court left undisturbed the earlier decision to
grant partial summary judgment to appellees on the roadway issue. The case
proceeded to a jury trial on appellees’ counterclaims, with appellees dismissing
their counterclaims against Atara Apel and proceeding on their trespass
4
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counterclaim against appellant Zeev Apel. After the trial court denied appellant’s
motion for a directed verdict, the jury returned a compensatory damage award in
favor of appellees for $500, and also found appellant liable for punitive damages
and attorney fees. The trial judge later ruled that appellees were entitled to $500 in
punitive damages and $14,298.78 in attorney fees.1
{¶ 14} Appellants appealed to the Court of Appeals for Cuyahoga County.
Appellees filed a notice of cross-appeal, but later withdrew their cross-appeal. In
their first assignment of error, appellants challenged the trial court’s grant of partial
summary judgment in favor of appellees on the interpretation of the roadway
reservation pertaining to the easement over appellees’ property. In four other
assignments of error, appellant Zeev Apel raised issues regarding the jury’s verdict
against him on appellees’ trespass counterclaim.
{¶ 15} The court of appeals found that the trial court erred in granting partial
summary judgment in favor of appellees on the roadway issue, in that a genuine
issue of material fact remained to be determined regarding the rights and burdens
of the parties. The court of appeals declined to address the remaining assignments
of error, relating to the trespass counterclaim, finding no need to address those
assignments of error based on the disposition of the first assignment of error. The
cause was remanded to the trial court for further proceedings.
1. The trial judge determined the amount of punitive damages pursuant to former R.C.
2315.21(C)(2). In Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 552
,644 N.E.2d 397
,
paragraph two of the syllabus, this court found that R.C. 2315.21(C)(2) violated the right to trial by
jury set forth in Section 5, Article I of the Ohio Constitution, and held that, in a case tried to a jury,
the jury rather than the judge is the proper assessor of the amount of punitive damages. That the
trial judge set the amount of punitive damages is not an issue pertinent to this appeal.
Once punitive damages were found to be appropriate by the jury, the jury then also
determined that attorney fees were appropriate as well. Attorney fees are potentially recoverable as
a part of compensatory damages when punitive damages have been awarded. See Columbus Fin.,
Inc. v. Howard (1975), 42 Ohio St.2d 178, 183
,71 O.O.2d 174, 177
,327 N.E.2d 654, 658
; Zoppo,71 Ohio St.3d at 558
, 644 N.E.2d at 402.
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{¶ 16} Both appellants and appellees filed motions for reconsideration in
the court of appeals. Both contended that the court of appeals had erred in
determining that the assignments of error relating to the trespass counterclaim were
dependent on the trial court’s resolution on remand of the roadway issue. The
parties agreed that the trespass counterclaim was based on facts unrelated to the
roadway dispute, and requested that the court reconsider its decision not to address
the assignments of error regarding the trespass damages.
{¶ 17} In a journal entry issued after its opinion was announced, the court
of appeals denied the motions for reconsideration, but clarified that, in remanding
for further proceedings, it was not expressly ordering a trial on all issues, but was
allowing the trial court on remand the discretion to determine what issues should
be tried (or, presumably, retried), subject to appeal at the conclusion of all trial court
proceedings.
{¶ 18} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
__________________
J. Michael Goldberg, for appellants.
Hahn, Loeser & Parks, L.L.P., Michael J. Garvin and Andrew S. Pollis, for
appellees.
__________________
ALICE ROBIE RESNICK, J.
{¶ 19} This case first presents the issue of the correct interpretation to be
given to the scope of the reservation of the right to keep and maintain a roadway
over the easement on appellees’ property. Second, the case raises various issues
regarding the damage awards in appellees’ favor on their trespass counterclaim
against appellant Zeev Apel. For the reasons which follow, after a thorough review
of the record, we determine that the trial court erred in ruling against appellants on
their request for a declaratory judgment interpreting the scope of the easement
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January Term, 1998
across appellees’ property. We also determine that the damages awarded to
appellees on their trespass counterclaim were properly assessed against appellant.
We reverse the judgment of the court of appeals, enter final judgment for appellants
on the roadway issue, and enter final judgment for appellees on the compensatory
damages, punitive damages, and attorney fees awarded on the trespass
counterclaim.
I
{¶ 20} In the initial ruling interpreting the scope of the reservation by
Goodman in the deed to the Saporitos allowing Goodman to “keep and maintain a
roadway” on the easement over the property now owned by appellees, the trial court
granted appellees’ motion for partial summary judgment. Since appellees had
argued that the roadway provision was merely a personal reservation by Goodman,
it seems logical to assume that the trial court must have accepted that argument in
ruling the way that it did, and must have rejected appellants’ argument that the
roadway easement was an express easement that runs with the land for appellants’
benefit. However, we share the concerns expressed by the court of appeals in this
case that the trial court, in issuing what amounted to a declaratory judgment on the
scope of the easement, should have included a determination of the rights of the
parties involved. The failure of the trial court to issue an explanation of the
consequences of its ruling was the first in a series of misunderstandings and
missteps involving this case that have compounded as the case has progressed to
place it in the confusing posture we now encounter.
{¶ 21} The complaint in this case was filed in 1989. Thus far, this case has
gone through the trial court two times, and has also gone through the court of
appeals two times, and it seems that the case is no closer to resolution now than it
was prior to the issuance of any rulings by the trial court in its early stages. In the
opinion now being appealed from, the court of appeals has ordered yet another
remand to the trial court, apparently for the trial court to readdress the scope of the
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roadway easement—the key question raised in appellants’ request for a declaratory
judgment almost ten years ago. There still has been no appellate review of the
ultimate propriety of the trial court’s determination on this question, a question of
law that in our view was ripe for decision at the time the trial court rendered its
initial judgment on June 11, 1991.
{¶ 22} Our review of the record convinces us that this issue is capable of
resolution from an examination of the materials before us. We disagree with the
determination reached by the court of appeals that “a genuine issue of material fact
remains pending for litigation relative to whether the grantor intended to reserve
for herself an express easement with the right to maintain a roadway.” We see no
reason to remand this cause to the trial court, and therefore we reverse the judgment
of the court of appeals ordering that result. We proceed to an examination of the
terms of the roadway provision of the reservation, to review what we understand to
be the trial court’s construction of its scope.
{¶ 23} In arguing for what they each contend is the proper interpretation of
this provision, the parties cite R.C. 5301.02, and dispute how that statute applies to
the inquiry. R.C. 5301.02 provides that “[t]he use of terms of inheritance or
succession are [sic] not necessary to create a fee simple estate, and every grant,
conveyance, or mortgage of lands, tenements, or hereditaments shall convey or
mortgage the entire interest which the grantor could lawfully grant, convey, or
mortgage, unless it clearly appears by the deed, mortgage, or instrument that the
grantor intended to convey or mortgage a less [sic] estate.”
{¶ 24} In citing this statute, the parties dispute whether it even applies at all,
with appellees arguing that the statute on its face applies only to grants,
conveyances, and mortgages, not reservations, of interests. In the event that this
statute is found to apply, the parties dispute how it affects the outcome. The parties
also cite cases to support their interpretations.
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January Term, 1998
{¶ 25} For purposes here, R.C. 5301.02 principally provides that the failure
to include language of inheritance or succession, typically the phrase “heirs and
assigns,” is not automatically fatal to the creation of a fee estate. See, generally,
Ewing v. McClanahan (1986), 33 Ohio App.3d 46, 48
,514 N.E.2d 444, 445, fn. 4
; DeShon v. Parker (1974),49 Ohio App.2d 366, 367
,3 O.O.3d 430, 431
,361 N.E.2d 457, 458
. Beyond that limited proposition, we find that the statute and other cited
authorities are of little help in clarifying the specifics of our inquiry. R.C. 5301.02
in essence goes on to direct a court to look to the wording of the provision at issue
to determine its meaning. We see no need to rely on the statute or on the parties’
specific references to case law to support our interpretation of the roadway
provision, but instead look to the wording of the reservation itself to determine its
scope.
{¶ 26} In this situation, the language employed, considered in light of the
surrounding circumstances, is the best indication of what Goodman and the
Saporitos intended when they agreed to the transfer of the front parcel in 1976. See
Gill v. Fletcher (1906), 74 Ohio St. 295
,78 N.E. 433
, paragraph one of the syllabus.
While the authorities cited by the parties appear to consistently support this general
approach in resolving disputes of this type, the specifics of such an inquiry depend
upon the facts of each case. Thus, regardless of whether we apply R.C. 5301.02 or
not, the analysis is the same.
{¶ 27} We disagree with appellees’ contention, voiced throughout this
litigation, that the roadway provision is a separate “clause” in the deed from
Goodman to the Saporitos reserving the easement. We instead agree with
appellants’ contention that the roadway provision is a part of the same clause earlier
reserving an easement for ingress and egress, and actually complements that earlier
reservation. Appellees have not disputed that the easement for ingress and egress
runs with the land. Furthermore, appellees have not contended that the easement is
limited to foot access to the property, and the reservation’s terms do not support
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such an interpretation. Thus appellees must necessarily concede that access to
vehicles is implied by the easement for ingress and egress. It seems clear that to
make vehicle access practicable and meaningful, the right to keep and maintain a
roadway was contemplated by Goodman and the Saporitos to be a part of the right
of ingress and egress, rather than an independent reservation.
{¶ 28} This view is buttressed by the language contained in the deed
transferring the rear parcel to appellants from Goodman, in which the reservation
of the easement is also passed, and in which Goodman describes that easement as
providing “ingress and egress to and from the above described property to Pike
Drive, the right to keep and maintain a roadway,” and utility access rights.
(Emphasis added.) Obviously, Goodman felt that she had reserved as an
appurtenant easement running with the land the right to keep and maintain the
roadway, and also felt that she could transfer that roadway right to appellants.
{¶ 29} Appellees’ position throughout this litigation implies that Goodman,
in the deed transferring the rear parcel to appellants, must have been mistaken in
her belief that the roadway easement could be transferred to appellants. However,
it seems to us to be more likely that it is appellees who are mistaken about the
construction of the roadway provision, and about the intent of Goodman and the
Saporitos evidenced in the 1976 deed for the sale of the front parcel.
{¶ 30} In conclusion, we find that no ambiguity is present in the provision
at issue, and we resort to no specific rules of construction to resolve the easement’s
scope. The trial court erred in granting partial summary judgment for appellees on
this question, and instead should have granted summary judgment for appellants,
and should have declared that appellants’ easement rights over appellees’ property
include the right to keep and maintain a roadway in order to facilitate “ingress and
egress to and from the property” of appellants. The contours of the roadway right
over the thirty-foot-wide easement are defined by what is reasonable under the
circumstances present here.
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January Term, 1998
II
{¶ 31} The court of appeals below appears to have decided that it was
unclear whether the issues raised in appellant Zeev Apel’s assignments of error
regarding trespass damages were interrelated with the roadway issue remanded to
the trial court, and so declined to address those remaining assignments of error.
The parties to this appeal agree that the trespass issues are unrelated to the roadway
issue, and contend that the court of appeals erred in not addressing them. The
parties suggest that we order a remand on those questions to the court of appeals,
accompanied by a directive from this court ordering the court of appeals to address
those issues.
{¶ 32} To that end, the parties cite App.R. 12(A)(1), and argue that the court
of appeals had a mandatory duty to review and rule on the remaining assignments
of error. App.R. 12(A)(1) provides:
“On an undismissed appeal from a trial court, a court of appeals shall do all
of the following:
“***
“(c) Unless an assignment of error is made moot by a ruling on another
assignment of error, decide each assignment of error and give reasons in writing for
its decision.”
{¶ 33} After a thorough review of the record, we agree with the parties’
position that the trespass issues raised in the court of appeals were unrelated to the
roadway issue raised there, and should have been addressed by the court of appeals.
Furthermore, we have already determined that the court of appeals should not have
ordered a remand to the trial court on the roadway issue. However, rather than
remanding this cause to the court of appeals with orders to address those
assignments of error, we choose to decide the issues, based on the briefing of those
issues by the parties both here and in the court of appeals.
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{¶ 34} The remaining assignments of error raised in the court of appeals by
appellant Zeev Apel are:
“II. The trial court erred in failing to sustain Zeev Apel’s motion for
directed verdict; and, the jury’s verdict was against the manifest weight of the
evidence.
“III. The trial court erred as a matter of law in failing to instruct the jury
properly on the issue of restoration damages.
“IV. The trial court erred as a matter of law in failing to sustain Zeev Apel’s
motion to dismiss the Katzes’ punitive damages claim.
“V. The trial court erred as a matter of law in permitting the jury to consider
the issue of punitive damages.”
{¶ 35} In his second assignment of error, appellant argues that no
compensatory damages for trespass should have been awarded in this case.
Appellant argues both that the elements of trespass were not proven, so that the trial
court should have sustained his motion for a directed verdict, and further that the
jury’s verdict was unfounded.
{¶ 36} Civ.R. 50(A)(4) provides:
“When a motion for a directed verdict has been properly made, and the trial
court, after construing the evidence most strongly in favor of the party against
whom the motion is directed, finds that upon any determinative issue reasonable
minds could come to but one conclusion upon the evidence submitted and that
conclusion is adverse to such party, the court shall sustain the motion and direct a
verdict for the moving party as to that issue.”
{¶ 37} A motion for a directed verdict must be denied if substantial
competent evidence supports the position of the party opposing the motion, so that
reasonable minds might reach different conclusions based upon the evidence. See
Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116, 119
,671 N.E.2d 252, 255
; Strother v. Hutchinson (1981),67 Ohio St.2d 282, 284-285
,21 O.O.3d 177
,
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January Term, 1998
179, 423 N.E.2d 467, 469
. Appellant argues that appellees did not raise a prima
facie case of trespass against him.
{¶ 38} “A common-law tort in trespass upon real property occurs when a
person, without authority or privilege, physically invades or unlawfully enters the
private premises of another whereby damages directly ensue * * *.” Linley v.
DeMoss (1992), 83 Ohio App.3d 594, 598
,615 N.E.2d 631, 633
. See, also, Chance v. BP Chemicals, Inc. (1996),77 Ohio St.3d 17, 24
,670 N.E.2d 985, 991
. Based
on our review of the record, we find that appellees raised a prima facie case of
trespass sufficient to get the issue to the jury, so that appellant’s directed verdict
motion was properly denied by the trial court. Appellees presented evidence
regarding appellant’s use of the portion of the gravel pathway located off the
easement. The trial court did not err in allowing the matter to go to the jury.
{¶ 39} Further, for the same reasons, we find on the record here that
substantial competent evidence was presented to support the jury’s verdict, and we
defer to the jury’s determination that a trespass occurred.
{¶ 40} In his third assignment of error, appellant takes issue with the trial
court’s instruction to the jury on the proper measure of damages. Appellant argues
that the trial court erred by not instructing that appellees’ damage award was limited
to the diminution in fair market value of the property caused by appellant’s conduct.
We find that appellant’s view of the measure of damages is unduly restrictive as
applied to the facts of this case, and does not recognize that some flexibility is
permissible in the ascertainment of damages suffered in the appropriate situation.
See, e.g., Thatcher v. Lane Constr. Co. (1970), 21 Ohio App.2d 41, 48-49
,50 O.O.2d 95, 99
,254 N.E.2d 703, 708
(“The general rule that the measure of damages
for injury to real estate shall not exceed the difference in the market value of the
entire tract immediately before and immediately after the injury is not an * * *
exact formula to be applied in every case without regard to whether its application
would compensate the injured party fully for losses which are the proximate result
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of the wrongdoer’s conduct.”). Furthermore, in the circumstances of this case, we
find that the failure of appellees to put on evidence regarding the fair market value
of their property before and after the trespass conduct occurred is not fatal to
appellees’ claim for damages.
{¶ 41} In appellant’s fourth and fifth assignments of error, he challenges the
propriety of punitive damages in this situation. Appellant first argues that
appellees’ counterclaim was based on an ordinary trespass, and that the trial court
should have dismissed the punitive damages component of the counterclaim as
insufficient as a matter of law. In support of this position, in his fourth assignment
of error, appellant argues that appellees failed to specifically plead malice or insult
in their counterclaim, and also argues that appellees pled no facts to warrant
punitive damages. After a review of the record, we determine that appellees in their
pleadings adequately put forth their punitive damages claim to put appellant on
notice of the substance of the claim, and to avoid a dismissal of that claim by the
trial court.
{¶ 42} Appellant, in his fifth assignment of error, next argues that the trial
court should not have allowed the jury to consider whether appellees were entitled
to punitive damages because the facts of this case do not, as a matter of law, support
a punitive damages award. The punitive damages in this case were awarded
pursuant to former R.C. 2315.21. The parties, not challenging the validity of that
statute in the course of these proceedings, frame their arguments around whether
the requirements of former R.C. 2315.21 are met in the circumstances of this case.
The parties’ arguments focus on the following provisions of former R.C. 2315.21:
“(B) * * * [P]unitive 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,
aggravated or egregious fraud, oppression, or insult * * *;
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“(2) The plaintiff in question has adduced proof of actual damages that
resulted from actions or omissions as described in division (B)(1) of this section.
“(C) * * *
“***
“(3) In a tort action, the burden of proof shall be upon a plaintiff in question,
by clear and convincing evidence, to establish that he is entitled to recover punitive
or exemplary damages.” Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661, 1690-
1691.
{¶ 43} Because appellant was opposing the punitive damages sought in
appellees’ counterclaim, he is the “defendant” for purposes of this statute, and
appellees are the “plaintiffs.”
{¶ 44} Appellant, citing Bishop v. Grdina (1985), 20 Ohio St.3d 26
, 20 OBR 213,485 N.E.2d 704
, argues that there must be a nexus between the
underlying tortious action and the related punitive damages claim. Further, citing
former R.C. 2315.21(B), appellant argues that punitive damages must flow directly
from the tortious “actions or omissions” of the defendant. Appellant contends that
the required nexus is not present here, because the compensatory damages were
based on his alleged trespassing onto appellees’ land (and the resulting damage to
appellees’ property), while the punitive damages were based on verbal insults, or
malicious behavior unrelated to that entry and damage.
{¶ 45} Appellees cite Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638
,635 N.E.2d 331
, paragraph one of the syllabus, for the proposition that
punitive damages may be awarded for acts different from those directly causing
compensatory damages, so long as the punitive damages flow from a course of
conduct related to the compensatory damages. Appellant points out that this court
in Moskovitz was not applying former R.C. 2315.21(B), because the cause of action
in that case predated the effective date of the statute. However, even though
appellant may be correct in this regard, we find that Moskovitz is relevant to our
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consideration, because the argument of appellees based on Moskovitz is not
inconsistent with the terms of former R.C. 2315.21(B). We accept appellees’
position that the relationship between the tortious conduct and the punitive damages
is not so remote in the circumstances of this case to make punitive damages
unavailable under former R.C. 2315.21, and so disagree with appellant’s position
that the required nexus is missing.
{¶ 46} Finally, appellant’s remaining contentions can be summarized as
arguing in essence that appellees did not prove either “malice” or “insult” under
former R.C. 2315.21(B)(1) by the clear-and-convincing-evidence standard of
former R.C. 2315.21(C)(3). See Preston v. Murty (1987), 32 Ohio St.3d 334
,512 N.E.2d 1174
. Appellant argues that, at the most, his conduct leading to the punitive
damages award was merely negligent, so that punitive damages should not have
been awarded in this case.
{¶ 47} We acknowledge that this case does not present a classic punitive
damages situation, as opposed to the situations in cases such as Zoppo v. Homestead
Ins. Co. (1994), 71 Ohio St.3d 552
,644 N.E.2d 397
(punitive damages award based
on allegation of bad faith refusal to settle claim against insurer), and Moskovitz
(punitive damages award based on claim that defendant doctor in medical
malpractice action altered patient records), which involved allegations of more
egregious conduct. We also recognize that the level of wrongfulness in appellant’s
acts is somewhat open to question based on the differing interpretations the parties
here place on their respective representations of the facts. However, after a
comprehensive review of the record, we conclude that the trial court was justified
in allowing the question of punitive damages to go to the jury, precisely because
the facts are open to interpretation. Having concluded that the trial court did not
err in submitting the punitive damages question to the jury, we defer to the jury’s
finding that punitive damages were appropriate.
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January Term, 1998
{¶ 48} In conclusion, for all the foregoing reasons, the judgment of the court
of appeals remanding this cause to the trial court is reversed. Furthermore, on the
merits, we grant judgment in favor of appellants on their complaint in accordance
with the rights declared in this opinion, and grant judgment in favor of appellees on
their counterclaim.
Judgment accordingly.
DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., concur in part and
dissent in part.
__________________
COOK, J., concurring in part and dissenting in part.
{¶ 49} I respectfully dissent from the majority decision on the issue of
punitive damages.
{¶ 50} Compensatory damages in this case were awarded to the Katzes
because Mr. Apel damaged weeds, grass, and wildflowers by driving outside the
easement benefiting his property. The punitive damage award, on the other hand,
is not based on that activity. Instead, it is tied to verbal insults that stem from the
roadway dispute.
{¶ 51} The applicable version of R.C. 2315.21(B) provided:
“[P]unitive 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,
aggravated or egregious fraud, oppression, or insult, or that defendant as principal
or master authorized, participated in, or ratified actions or omissions of an agent or
servant that so demonstrate;
“(2) The plaintiff in question has adduced proof of actual damages that
resulted from actions or omissions as described in division (B)(1) of this section.”
(Emphasis added.) Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661, 1690-1691.
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SUPREME COURT OF OHIO
{¶ 52} Because it cannot be said that the tortious activity for which the
Katzes recovered actual damages (i.e., physical damage to vegetation resulting
from Apel’s driving off the easement) “resulted” from the acts or omissions
demonstrating malice, fraud, oppression, or insult (i.e., verbal insults uttered by
Apel and directed at the Katz family), the Katzes failed to demonstrate that they
were entitled to punitive damages under former R.C. 2315.21(B).
{¶ 53} The long-standing rule in Ohio is that “[e]xemplary or punitive
damages may not be awarded in the absence of proof of actual damages.” Richard
v. Hunter (1949), 151 Ohio St. 185
,39 O.O. 24
,85 N.E.2d 109
, syllabus. “The purpose of the Richard rule is to keep the punitive damages awarded a mere incident of the cause of action, rather than let it become a cause of action in and of itself. * * * No civil cause of action in this state may be maintained simply for punitive damages.” (Emphasis sic.) Bishop v. Grdina (1985),20 Ohio St.3d 26, 28
, 20 OBR 213, 214,485 N.E.2d 704, 705
. Consistent with this rule, former R.C.
2315.21(B) required punitive damages to flow from the same tortious activity
causing actual damages.
{¶ 54} The judicial policy preferences announced in Moskovitz v. Mt. Sinai
Med. Ctr. (1994), 69 Ohio St.3d 638
,635 N.E.2d 331
, cannot trump the unambiguous expression of the General Assembly in former R.C. 2315.21(B). In Moskovitz, the court declined to “establish a rule requiring that malicious conduct giving rise to a claim for punitive damages must independently cause compensable harm before punitive damages may be awarded.”Id. at 651
,635 N.E.2d at 343
.
As noted by the majority, Moskovitz did not apply former R.C. 2315.21(B) because
the cause of action predated the effective date of that statute. But we are now
squarely faced with conflicting legislative (former R.C. 2315.21[B]) and judicial
(Moskovitz) views on a nonconsitutional issue, and the General Assembly’s view
must prevail.
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January Term, 1998
{¶ 55} The majority justifies its application of Moskovitz by reasoning that
“Moskovitz is not inconsistent with the terms of former R.C. 2315.21(B).” Because
I do not read the first paragraph of the syllabus of Moskovitz and former R.C.
2315.21(B) as being amenable to the majority’s reconciliation, I dissent. A directed
verdict was warranted on the punitive damages issue, and the Katzes are not entitled
to a punitive damages award or attorney fees.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
opinion.
__________________
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