Roberts v. Mike's Trucking, Ltd., s. CA2013–04–011

• Decision Date: 03 March 2014
• Docket Number: CA2013–04–014.,Nos. CA2013–04–011,s. CA2013–04–011
• Citation: 9 N.E.3d 483
• Parties: Teresa L. ROBERTS, Appellant/Cross–Appellee, v. MIKE'S TRUCKING, LTD., et al., Appellees/Cross–Appellants.
• Court: Ohio Court of Appeals

9 N.E.3d 483

Teresa L. ROBERTS, Appellant/Cross–Appellee,

v.MIKE'S TRUCKING, LTD., et al., Appellees/Cross–Appellants.

Nos. CA2013–04–011, CA2013–04–014.

Court of Appeals of Ohio, Twelfth District, Madison County.

March 3, 2014.

Marshall and Morrow, LLC, John S. Marshall, Edward R. Forman, Columbus, OH, for appellant/cross-appellee.

Luper Neidenthal & Logan, Gregory H. Melick, Matthew T. Anderson, Columbus, OH, for appellees/cross-appellants.

HENDRICKSON, P.J.

{¶ 1} Appellant/cross-appellee, Teresa L. Roberts, appeals from a decision of the Madison County Court of Common Pleas denying her motion for attorney fees. Appellee/cross-appellant, Mike's Trucking and Mike Culbertson, appeal from the jury's verdict finding that Mike's Trucking and Culbertson liable for sexual harassment towards Roberts.

{¶ 2} On April 22, 2011, Roberts filed a complaint against Mike's Trucking and Culbertson alleging a number of claims. Roberts is a former employee of Mike's Trucking. Culbertson is the sole owner of Mike's Trucking and was Roberts' supervisor during her employment. One of Roberts' allegations was that Culbertson and Mike's Trucking created a hostile workplace environment through sexual harassment. Roberts alleged that Culbertson was individually liable under Ohio law while Mike's Trucking was liable under both Ohio and federal law.

{¶ 3} A jury trial began on February 25, 2013. The trial was bifurcated and the first phase focused on the sexual harassment hostile workplace claim. ¹ Upon conclusion of the first portion of the trial, the jury found in favor of Roberts and against both Culbertson and Mike's Trucking. Specifically, the jury found that Culbertson, individually, violated Ohio law and awarded Roberts $42,000. The jury also returned a verdict in favor of Roberts against Mike's Trucking under both Ohio and federal law. The jury awarded Roberts $100 against Mike's Trucking.

{¶ 4} The court then proceeded with the second phase of the trial and instructed the jury regarding the award of punitive damages and attorney fees. The jury found that Culbertson should pay punitive damages to Roberts but set the amount of those damages at zero dollars. Additionally, the jury indicated that Culbertson should pay Roberts' attorney fees. In regards to Mike's Trucking under the Ohio claim, the jury again found for Roberts on the issue of punitive damages but granted an award of zero dollars. The jury also found that Roberts' attorney fees should be paid by Mike's Trucking. Under the federal claim against Mike's Trucking, the jury found that the business should be responsible for punitive damages and awarded zero dollars. The jury was not asked to determine whether Culbertson should be awarded attorney fees under the federal claim as this was a question for the court.

{¶ 5} Subsequently, Roberts filed a motion for attorney fees while Culbertson and Mike's Trucking filed a motion for judgment notwithstanding the verdict regarding the award of attorney fees. On April 5, 2013, the trial court denied Roberts' request for attorney fees, overruling her motion under both Ohio and federal law.

{¶ 6} Roberts now appeals, raising the following assignments of error:

{¶ 7} Assignment of Error No. 1:

{¶ 8} AN AWARD OF ATTORNEYS' FEES IS NOT CONTINGENT ON AN ACTUAL AWARD OF AT LEAST A PENNY IN PUNITIVE DAMAGES; INSTEAD, A JURY'S FINDING OF PROOF BY CLEAR AND CONVINCING EVIDENCE OF MALICE AND ENTITLEMENT TO PUNITIVE DAMAGES JUSTIFIES A JURY'S AWARD OF FEES.

{¶ 9} Assignment of Error No. 2:

{¶ 10} AS INSTRUCTED THE JURY AVOIDED ANY OVERLAPPING DAMAGES AND, USING PARALLEL FACTS AND LEGAL STANDARDS, AWARDED FAR GREATER THAN NOMINAL DAMAGES, ENTITLING MS. ROBERTS TO A FEES AWARD UNDER FEDERAL LAW.

{¶ 11} Assignment of Error No. 3:

{¶ 12} A REASONABLE FEDERAL FEES AWARD NEED NOT BE PROPORTIONATE TO THE DAMAGES AWARDED UNDER FEDERAL LAW FOR THE SAME DISCRIMINATION.

{¶ 13} Assignment of Error No. 4:

{¶ 14} UNDER THE OHIO CONSTITUTION, THE TRIAL JUDGE WAS REQUIRED TO IMPLEMENT, RATHER THAN DISCARD, THE JURY'S FINDING THAT MS. ROBERTS WAS ENTITLED TO AN AWARD OF ATTORNEY'S FEES.

{¶ 15} Assignment of Error No. 5:

{¶ 16} BY NEITHER OBJECTING TO INSTRUCTIONS OR VERDICT FORMS, NOR INVOKING CIV.R. 49(B), THE EMPLOYER AND SUPERVISOR WAIVED THE GROUNDS OF AN INCONSISTENCY IN THE JURY'S VERDICTS ON ZERO DAMAGES AND ATTORNEY'S FEES.

{¶ 17} Assignment of Error No. 6:

{¶ 18} THE TRIAL JUDGE WAS NOT AUTHORIZED BY CIV.R. 49(B) TO DISCARD THE JURY'S SEEMINGLY INCONSISTENT VERDICT OF AN AWARD OF ZERO PUNITIVE DAMAGES AND AN AWARD OF ATTORNEY'S FEES.

{¶ 19} Culbertson and Mike's Trucking cross-appeal from the same judgment, assignment the following as error:

{¶ 20} Cross–Assignment of Error No. 1:

{¶ 21} THE JURY'S AWARD OF COMPENSATORY AND NOMINAL DAMAGES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 22} For ease of discussion, we will discuss the assignments of error in three parts: 1.) the challenges to attorney fees under the Ohio claim; 2.) the challenges to attorney fees under the federal claim; and 3.) whether the verdict under both claims was against the manifest weight of the evidence.

I. Ohio Claim

{¶ 23} Roberts challenges the trial court's decision in overruling her motion for attorney fees under the Ohio cause of action. She argues that the court erred in its interpretation of the law regarding the award of attorney fees in the context of punitive damages. Roberts also contends that the court's action in not awarding attorney fees violated her constitutional right to a jury trial and Civ.R. 49(B).

{¶ 24} Roberts' arguments all concern questions of law and we will review Roberts' contentions under a de novo standard of review. State ex rel. Doran v. Preble Cty. Bd. of Commrs., 2013-Ohio-3579, 995 N.E.2d 239, ¶ 15. In a de novo review, this court independently reviews the record without giving deference to the trial court's decision. State v. Kormos, 2012-Ohio-3128, 974 N.E.2d 725, ¶ 13.

A. Attorney Fees and Punitive Damages Law

{¶ 25} Roberts' first argument concerns the trial court's interpretation of the law regarding attorney fees and punitive damages. In overruling Roberts' motion for attorney fees, the trial court reasoned that in order to receive attorney fees, the jury must (1) determine punitive damages are proper and (2) award an actual amount of punitive damages. In this case, the jury granted punitive damages but awarded zero dollars. On appeal, Roberts argues that the trial court's interpretation of the law was in error and the jury's finding that she was entitled to punitive damages, even though it did not award an actual punitive damage amount, is sufficient to grant attorney fees.

{¶ 26} “Ohio has long adhered to the ‘American rule’ with respect to recovery of attorney fees: a prevailing party in a civil action may not recover attorney fees as a part of the costs of litigation.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7, quoting Nottingdale Homeowners' Assn. Inc. v. Darby, 33 Ohio St.3d 32, 33, 514 N.E.2d 702 (1987). An exception to this rule exists when punitive damages are awarded in tort cases involving malice. Touhey v. Ed's Tree & Turf, L.L.C., 194 Ohio App.3d 800, 2011-Ohio-3432, 958 N.E.2d 212 (12th Dist.), ¶ 17. If punitive damages are proper, reasonable attorney fees may be awarded as an element of compensatory damages. Galmish v. Cicchini, 90 Ohio St.3d 22, 35, 734 N.E.2d 782 (2000).

{¶ 27} The Seventh District has considered a plaintiff's entitlement to attorney fees when the jury makes a finding of malice but does not award punitive damages. Nolan v. Conseco Health Ins. Co., 7th Dist. Jefferson Nos. 07 JE 30, 07 JE 31, 2008-Ohio-3332, 2008 WL 2609659. In Nolan, the trial court instructed the jury that even though it had determined the defendant's actions constituted malice, it could not award attorney fees unless it granted an actual dollar amount of punitive damages. Id. at ¶ 198. The Seventh District held that this instruction was not an abuse of discretion because “there has to be an actual award of punitive damages before attorney fees can be awarded.” Id. at ¶ 206.

{¶ 28} In coming to this conclusion, the court looked to the Fourth District's decision in Tulloh v. Goodyear Atomic Corp., 93 Ohio App.3d 740, 639 N.E.2d 1203 (4th Dist.1994). In Tulloh, the trial court vacated an attorney fees award when the jury did not award punitive damages but granted attorney fees. Id. at 756, 639 N.E.2d 1203. The appellate court found that the trial court did not err in vacating the award, stating,

Most courts hold that the jury must actually award punitive damages before an award of attorney fees is proper. In Digital & Analog Design Corp v. N. Supply Co., 62 [63] Ohio St.3d 657 (1992), the court stated:

[T]he requirement that a party pay attorney fees * * * is a punitive (and thus equitable) remedy that flows from a jury finding of malice and the award of punitive damages. * * * Without a finding of malice and the award of punitive damages, plaintiff cannot justify the award of attorney fees, unless there is a basis for sanctions under Civ.R. 11. See, also, Davis v. Tunison, 168 Ohio St. 471, 477 (1959); Henry v. Akron, 27 Ohio App.3d 369, 371 (9th Dist.1985); Howard v. Urey, 11th Dist. Trumbull No. 3889, 1988 WL 94379 (Sept. 9, 1988). But see, Atram v. Star Tool & Die Corp., 64 Ohio App.3d 388, 392 (8th Dist.1989), holding that punitive damages need not be actually awarded, i.e., a finding that punitive damages could properly have been awarded is sufficient to support an attorney fees award.²

(Emphasis sic.) Id.See Capretta v. Goodson, 8th Dist. Cuyahoga No. 76932, 2000 WL 1876404, *5 (Dec. 18, 2000); Padgett v. Sanders, 130 Ohio App.3d 117, 122, 719 N.E.2d 636 (12th Dist.1998).

{¶ 29} We find Nolan's reasoning persuasive and hold that in order to receive attorney fees in the context of a punitive damages award, the jury must find malice and then award an actual...