Alan J. Russ v. Trw, Inc.

• Court: Ohio Court of Appeals
• Writing for the Court: KRUPANSKY, Presiding Judge.
• Decision Date: 02 February 1989
• Docket Number: 54973,89-LW-0253
• Citation: Alan J. Russ v. Trw, Inc., 54973, 89-LW-0253 (Ohio App. Feb 02, 1989)
• Parties: Alan J. RUSS, Plaintiff-Appellee, v. TRW, INC., Defendant-Appellant.

Alan J. RUSS, Plaintiff-Appellee, v. TRW, INC., Defendant-Appellant.

No. 54973. Judgment affirmed and cause remanded, 59 Ohio St. 3d 42 (1991).

89-LW-0253 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

February 2, 1989

Civil appeal from Common Pleas Court Case No. 088,191.

Leonard F. Carr, Mayfield Heights, Judith A. Lehnowsky, Rocky River for plaintiff-appellee.

William H. Wallace, David L. Parham, Stephen F. Gladstone, Cleveland for defendant-appellant.

JOURNAL ENTRY and OPINION

KRUPANSKY Presiding Judge.

Plaintiff, Alan J. Russ, filed a complaint in Cuyahoga County Common Pleas Court case 88191 against defendant, TRW, Inc., his ex-employer. Plaintiff's second amended complaint alleges counts of breach of express and implied employment contract, intentional and negligent infliction of emotional distress, defamation and fraud. Plaintiff prayed for compensatory and punitive damages and attorney fees. Plaintiff voluntarily dismissed the defamation counts and the case proceeded to jury trial on the remaining counts. At trial, plaintiff's complaint was amended to conform to the evidence pursuant to Civ.R. 15(B) to include a count of promissory estoppel. The jury returned a general verdict in the amount of $600,000 compensatory damages and $100,000 punitive damages. Based upon the jury interrogatories, the jury found for plaintiff on his fraud and promissory estoppel allegations. Based upon the interrogatories, the jury found for defendant with respect to the breach of express and implied contract counts and with respect to the negligent infliction of emotional distress count.®1¯

Defendant filed a timely motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial. Also, plaintiff filed a post-judgment motion for prejudgment interest. In addition, plaintiff filed a post-judgment motion for attorney fees setting forth an itemization of fees. The trial court in a judgment entry journalized November 24, 1987 denied defendant's motion for new trial and for judgment notwithstanding the verdict. In the same entry the trial court also denied plaintiff's motion for prejudgment interest. However, this same entry also states "motion for att[orne]y fees to be determined after all appeals are exhausted." Therefore, the trial court failed to rule upon the issue of attorney fees.

Defendant filed a timely notice of appeal from the trial court's November 24, 1987 entry assigning nine errors on appeal.®2¯ Defendant's assigned errors need not be addressed since this Court of Appeals lacks jurisdiction to hear this appeal.

Ohio law allows the award of a claim for attorney fees where the losing party's conduct involves fraud and actual malice. See e.g., Columbus Finance v. Howard (1975), 42 Ohio St.2d 177. In a claim for fraud where punitive damages are awarded, attorney fees are recoverable. Id. In the case sub judice, since the general verdict awarded compensatory and punitive damages and since the jury found in its interrogatories defendant had committed fraud, attorney fees were recoverable.

Plaintiff's counsel prayed for attorney fees in his complaint and also filed an itemized statement of services rendered in plaintiff's post judgment motion for attorney fees. Plaintiff, through the filing of this post judgment motion for attorney fees has not waived the issue of attorney fees. The record on appeal reflects the trial court has not yet determined the separate issue of reasonable attorney fees. Since the issue of attorney fees has not been adjudicated, the trial court's judgment entry is not a final appealable order.

Civ.R. 54(B) provides:

Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third-party claim, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Since the court's November 24, 1987 entry failed to adjudicate the claim for attorney fees and was not certified as no just reason for delay, the November 24, 1987 entry did not terminate the action. See Vera M. Chapman v. Donald P Mull (March 10, 1983), Cuyahoga App. Nos. 45190 and 45472,...