Whetstone v. Binner

• Decision Date: 07 July 2014
• Docket Number: No. 13 CA 47.,13 CA 47.
• Citation: 15 N.E.3d 905
• Parties: Christine Marie WHETSTONE, Individually and as Parent and Natural Guardian and Next Friend of Olivia Castle, Minor and Lea Castle, Minor, Plaintiff–Appellant v. Erin K. BINNER, Administrator of the Estate of Roxanne McClellan, Deceased, Defendant–Appellee.
• Court: Ohio Court of Appeals

15 N.E.3d 905

Christine Marie WHETSTONE, Individually and as Parent and Natural Guardian and Next Friend of Olivia Castle, Minor and Lea Castle, Minor, Plaintiff–Appellant

v.Erin K. BINNER, Administrator of the Estate of Roxanne McClellan, Deceased, Defendant–Appellee.

No. 13 CA 47.

Court of Appeals of Ohio, Fifth District, Fairfield County.

July 7, 2014.

Grant A. Wolfe, Columbus, OH, for Plaintiff–Appellant.

Charles M. Elsea, Stebelton, Aranda & Snider, Lancaster, OH, for Defendant–Appellee.

Opinion

GWIN

, P.J.

{¶ 1} Plaintiff–Appellant Christine Marie Whetstone, Individually and as Parent and Natural Guardian and Next Friend of Olivia Castle, Minor, and Lea Castle, Minor, appeals the decision of the Court of Common Pleas of Fairfield County, Ohio, denying their claims for punitive damages and attorney fees.

{¶ 2} Defendant–Appellee is Erin K. Binner, Administrator of the Estate of Roxanne McClellan, Deceased.

STATEMENT OF THE FACTS AND CASE

{¶ 3} On October 1, 2010, Plaintiff–Appellant Christine Marie Whetstone, individually and as parent and natural guardian and next friend of Olivia Castle, minor, and Lea Castle, minor, filed a seven-count Complaint against Whetstone's aunt, Roxanne McClellan, setting forth claims for assault, battery, false and/or unlawful imprisonment, and intentional infliction of emotional distress, on behalf of herself and her two minor daughters, Olivia Castle and Lea Castle.

{¶ 4} On November 10, 2010, with no Answer or other responsive pleading having been filed, Plaintiff–Appellant filed a Motion for Default and Request for Damages Hearing. On November 18, 2010, Default Judgment was entered. A damages hearing was set for January 6, 2010.

{¶ 5} On December 29, 2010, McClellan filed a Motion for Leave to Plead alleging that the Complaint was received and signed for by McClellan's friend, Henry Fisher, and that McClellan was unaware of the lawsuit until after the answer date. The Motion further alleged that McClellan was receiving chemotherapy. McClellan simultaneously filed a Motion requesting a continuance of the damages hearing, in which she further indicated that she had been diagnosed with cancer

in October of 2010. The trial court continued the hearing, but ultimately denied McClellan's Motion for Leave to Plead.

{¶ 6} On May 5, 2011, Plaintiff–Appellant filed a Suggestion of Death indicating that Roxanne McClellan died on April 22, 2011. Plaintiffs filed an Amended Motion for Substitution of Party on November 14, 2011, indicating that Erin Binner, McClellan's daughter, had been appointed administrator of McClellan's estate by the Fairfield County Court of Common Pleas, Juvenile/Probate Division. The same was granted on December 30, 2011.

{¶ 7} Following a substitution of counsel for the Estate, the matter was reset for a hearing on damages on July 26, 2012. A damages hearing was held on July 26, 2012. On May 7, 2013, the trial court issued an Entry Regarding Damages. The trial court's factual findings regarding compensatory damages are not in dispute, as neither party has appealed the same.

{¶ 8} Pursuant to Civil Rule 8(D)

, “Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.” Thus, the following allegations in the Complaint, not pertaining to damages, are deemed admitted herein:

{¶ 9} “On or about June 29, 2010, ... Defendant also maliciously, wrongfully and unlawfully choked, smothered and attempted to kill Plaintiffs minor child, Olivia Castle, by holding the child down on a bed in a bedroom ... putting her hand over the child's mouth, and smothering the child with a pillow ...”

{¶ 10} The trial court awarded Christine Whetstone $500.00 in compensatory damages for lost wages, Lea Castle $1,000.00 in noneconomic damages for past and future emotional distress, and Olivia Castle $50,000.00 in noneconomic damages for physical injury and past and future emotional harm and distress.

{¶ 11} The court declined to impose punitive damages finding that they “cannot be awarded against the estate of a tortfeasor who is deceased.” The court likewise declined to award attorneys' fees based upon its finding that punitive damages cannot be awarded against the estate of a tortfeasor who is deceased.

{¶ 12} Appellant now appeals, assigning the following errors for review.

ASSIGNMENTS OF ERROR

{¶ 13} “I. THE TRIAL COURT ERRED BY DENYING APPELLANT'S CLAIM FOR PUNITIVE DAMAGES AGAINST DEFENDANT–APPELLEE AND/OR FAILING TO AWARD APPELLANT PUNITIVE DAMAGES AGAINST DEFENDANT–APPELLEE.

{¶ 14} “II. THE TRIAL COURT ERRED BY DENYING APPELLANT'S REQUEST AND/OR CLAIM FOR ATTORNEY FEES AGAINST DEFENDANT–APPELLEE AND/OR FAILING TO AWARD APPELLANT ATTORNEY FEES AGAINST DEFENDANT–APPELLEE.”

I .

{¶ 15} In her First Assignment of Error, Appellant argues that the trial court erred in finding that punitive damages cannot be awarded against the estate of a deceased tortfeasor. We agree.

{¶ 16} In Ohio, “the purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct.” Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 651, 635 N.E.2d 331 (1994)

; Dick v. Tab Tool & Die Co., Inc., 5th Dist. No. 2008–CA–0013, 2008-Ohio-5145, 2008 WL 4444765. “The policy for awarding punitive damages in Ohio * * * has been recognized * * * as that of punishing the offending party and setting him up as an example to others that they might be deterred from similar conduct.” Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987). The focus of the award should be the defendant, and the consideration should be what it will take to bring about the twin aims of punishment and deterrence as to that defendant. Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77, 102, 2002-Ohio-7113, 781 N.E.2d 121.

{¶ 17} In the instant case, as set forth above, the trial court denied Appellant's claim for punitive damages, finding that “punitive damages cannot be awarded against the estate of a tortfeasor who is deceased.” The trial court cited the Common Pleas Court case of Mongold v. Estate of Gilbert, 114 Ohio Misc.2d 32, 758 N.E.2d 1245 (Brown Cty. Com. Pl. Ct.2000)

in support of its holding.

{¶ 18} In Mongold, supra, the trial court held:

In Ohio, punitive damages are awarded to punish the offending party and set him up as an example to others that they might be deterred from similar conduct. See Preston, 32 Ohio St.3d at 335, 512 N.E.2d at 1176

. Agreeing with the majority, this court finds that the purpose of punishment cannot be separated from the purpose of deterrence. Through death, the tortfeasor is no longer subject to legal punishment. Without the punishment of the tortfeasor, the purpose of using the tortfeasor as an example to others to deter their behavior is greatly diminished, if not completely frustrated. Effective deterrence cannot be achieved when punishment is impossible. For this reason, the deterrent function of punitive damages is insufficient to support an award when the tortfeasor dies before trial. Hofer v. Lavender, 679 S.W.2d at 478 (Spears, J., dissenting).

Id. at 114 Ohio Misc.2d 32, 35–36, 758 N.E.2d 1245

.

{¶ 19} In support of its position, Appellant cites this Court to a more recent Common Pleas Court decision out of Montgomery County, Individual Business Services, Inc. v. Carmack, 2009 WL 8235992 (Montgomery Cty. Com. Pl. Ct.2009)

, which rejected the holding in Mongold, reasoning:

The Plaintiffs point to binding authority, namely the language of Ohio Rev.Code Section 2305.01

as well as decisions of the Ohio Supreme Court, to support the contention that it is entitled to punitive damages and attorney fees in this case. The Ohio Survivorship Statute specifically provides that “causes of action for ... fraud ... shall survive ... notwithstanding the death of the person entitled or liable thereto.” Ohio Rev.Code 2305.21. Although the statutory language does not directly address the right to punitive damages or attorney fees, they are an inherent component of a cause of action for fraud, and the death of Mr. Carmack has no impact on the plaintiffs' right to pursue such damages from his estate.

In addition, and on a somewhat related point, the Ohio Supreme Court has recognized that where a decedent had a right to punitive damages before his death, that right passes to his estate under Ohio Rev.Code section 2305.21

. Rubeck v. Huffman (1978), 54 Ohio St.2d 20, 23 . Since the statutory language explicitly authorized the survival of such a claim not only in favor of a decedent “entitled” to a claim, but also against a decedent “liable” for such a claim, the aforementioned reasoning dictates the survival of Plaintiffs claim against the Estate of Robert Carmack. Moreover, the Ohio Supreme Court has made it clear in other decisions that the purpose of punitive damages is not just to punish an individual defendant. Punitive damages are also designed to provide “an example to others that they might be deterred from similar conduct.” Preston v. Murty (1987), 32 Ohio St.3d 334, 335 .

{¶ 20} The Individual Business Services case cited by Appellant cites Ohio's survivor statute in support of its finding. This statute provides:

In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.

R.C. 2305.21

.

{¶ 21} The Court in Individual Business Services acknowledged that such statute is silent as to punitive damages but found that such damages were a component of a cause of action for fraud and allowed the same.

{¶ 22} It appears that the issue of whether the recovery of punitive damages is permitted against a deceased tortfeasor's estate is an issue of first impression at the Appellate level in the state of Ohio, though this issue has been addressed by courts and legislatures in...