Facts
- The Supreme Court of Ohio dismissed the appeal of B.C.A. as having been improvidently accepted, with no specific adjudication on the merits. [lines="17-19"]
- The dismissal followed a related case, In re Application for Correction of Birth Record of Adelaide, in which issues similar to those in B.C.A.’s appeal were initially raised. [lines="118-119"]
- The dissenting justices expressed concern that dismissing B.C.A.'s appeal would hinder applicants seeking changes to sex markers on birth certificates under R.C. 3705.15. [lines="114-116"]
- The court's majority voiced frustration over the dissent's contradiction regarding adversity in the previous case and in B.C.A.'s appeal. [lines="51-60"]
- The case’s dismissal did not allow the court to address the ongoing confusion surrounding the application of R.C. 3705.15 as it pertains to birth record corrections. [lines="164-165"]
Issues
- Whether the appeal of B.C.A. should proceed, given prior case determinations surrounding similar issues. [lines="115-116"]
- Whether the concept of judicial adversity was properly considered in both B.C.A. and the Adelaide case. [lines="40-45"]
Holdings
- The court held that B.C.A.’s appeal was dismissed as improvidently accepted and therefore the merits were not reached. [lines="29"]
- The dissenting opinion contended that dismissing the appeal was a disservice to applicants seeking guidance under R.C. 3705.15, arguing that the court failed to fulfill its responsibility to resolve important legal questions. [lines="155-165"]
OPINION
ESTATE OF KESTER SAMPLES v. LAGRANGE NURSING & REHABILITATION CENTER, INC., d/b/a KEYSTONE POINT HEALTH AND REHABILITATION, et al.
C.A. No. 23CA012051
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 9, 2024
[Cite as Estate of Samples v. Lagrange Nursing & Rehab. Ctr., Inc., 2024-Ohio-4441.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 20CV201448
HENSAL, Judge.
{1} The Estate of Kester Samples (“the Estate“) appeals a judgment of the Lorain County Court of Common Pleas. Lagrange Nursing & Rehabilitation Center, Cardinal Care Management, and Foundations Health Solutions (collectively “Lagrange“) cross-appeal. This Court affirms in part and reverses in part.
I.
{2} The Estate filed a complaint against Lagrange for medical negligence and recklessness, wrongful death, and violations of nursing home residents’ rights under
{3} The jury returned a verdict in the amount of $500,000 on the Estate‘s survivorship claim and, after hearing evidence related to punitive damages, returned a punitive-damage verdict in the amount of $250,000. The magistrate capped the compensatory damages at $250,000. On December 1, 2023, the magistrate awarded the Estate $319,570 in attorney‘s fees and $1,319.94 in litigation expenses. Lagrange moved for judgment notwithstanding the verdict (“JNOV“) on the issue of punitive damages, arguing that the Estate did not present sufficient evidence of actual malice. Lagrange and the Estate attempted to appeal at that time, but this Court dismissed the appeals because the trial court had not independently entered judgment on the magistrate‘s decision.1 Once the appeals were dismissed, the trial court entered a judgment consistent with the magistrate‘s decision on September 11, 2023. On September 23, 2023, the trial court granted Lagrange‘s motion for JNOV, concluding that there was not sufficient evidence to have permitted the punitive-damages claim to go to the jury. The trial court, therefore, entered judgment awarding the Estate $250,000 in compensatory damages plus costs and statutory interest.
{4} The Estate appealed, and Lagrange cross-appealed, challenging the award of attorney‘s fees under
II.
THE ESTATE‘S ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT IMPOSED THE LOWER CAP FOR NONECONOMIC DAMAGES SET FORTH IN
R.C. 2323.43(A)(2) RATHER THAN THE HIGHER $500,000 CAP SET FORTH INR.C. 2323.43(A)(3) BECAUSE THE EVIDENCE CONCLUSIVELY SHOWED THAT KESTER SAMPLES SUFFERED A “PERMANENT AND SUBSTANTIAL PHYSICAL DEFORMITY” PRIOR TO HIS DEATH.
{5} The Estate‘s third assignment of error is that the trial court erred by applying the damage cap provided by
{6}
{7} When a “catastrophic injury” under
{8} In this case, neither party moved for summary judgment seeking a determination of damages as provided by
{9} Because the trial court did not have jurisdiction to enter a judgment in excess of the damage caps provided by
{10} To the extent that the Estate‘s argument is that the trial court should have applied the higher damage cap of its own accord, that argument is not well taken. “[I]t is for the trier of fact, not the court, to determine whether the damages constitute permanent and substantial deformity.” Fairrow, 2020-Ohio-5595, at ¶ 68 (10th Dist.). Accord Arbino v. Johnson & Johnson, 2007-Ohio-6948, ¶ 40-41 (explaining that the roles of trial court and jury under an analogous statute comport with the right to a jury trial). The Estate‘s third assignment of error is overruled.
THE ESTATE‘S ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS’ MOTION FOR [JNOV] OVERRIDING THE JURY‘S VERDICT AWARDING PUNITIVE DAMAGES.
{11} The Estate‘s first assignment of error argues that the trial court erred by granting Lagrange‘s motion for judgment notwithstanding the verdict on punitive damages. This Court agrees.
{12} Punitive damages may only be awarded when “[t]he actions or omissions of [the] defendant demonstrate malice or aggravated or egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate.”
{13} “Actual malice,” for purposes of punitive damages, consists of either “that state of mind under which a person‘s conduct is characterized by hatred, ill will or a spirit of revenge” or “a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.” Preston v. Murty, 32 Ohio St.3d 334 (1987), syllabus. The latter is at issue in this case. This definition describes “a positive element of conscious wrongdoing . . . . This element has been termed conscious, deliberate or intentional. It requires the party to possess knowledge of the harm that might be caused by his behavior[,]” and “mere negligence” is not sufficient. Id. at 335. The Supreme Court of Ohio has also clarified that a demonstration of recklessness will not establish that punitive damages are warranted. Motorists Mut. Ins. Co. v. Said, 63 Ohio St.3d 690, 696-697 (1992), overruled in part on other grounds by Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552 (1994).
{14} This Court has recognized the distinction between the “actual malice” standard and recklessness, on the one hand, and intentional conduct, on the other. See Gibbons v. Shalodi, 2021-Ohio-1910, ¶ 50-65 (9th Dist.). In Gibbons, the trial court concluded that a magistrate erred by instructing the jury on punitive damages, and on appeal, the appellant maintained that the trial court applied the wrong standard. Id. at ¶ 46, 50. The appellant argued that recklessness was the correct standard, while the trial court‘s decision “focused on the lack of evidence of intentional conduct.” Id. at ¶ 61, 63. This Court concluded that neither acknowledged the standard for actual malice articulated by the Supreme Court of Ohio. Id. at ¶ 62. This Court then considered whether the evidence was sufficient to support an award of punitive damages, noting that “[a]ctual malice may be inferred from the [defendant‘s] conduct and surrounding circumstances.” Id. at ¶ 92, citing Davis v. Tunison, 168 Ohio St. 471, 475 (1959). We concluded that the conduct that constituted the defendant‘s negligent acts demonstrated that she “acted with a conscious disregard for the rights and safety of [a minor] in a way that had a great probability of causing substantial harm. . . .” Id. at ¶ 95.
{15} As in Gibbons, the trial court‘s decision in this case “focused on the lack of evidence of intentional conduct.” Gibbons at ¶ 61, 63. The trial court referenced the standard for actual malice set forth in Preston and Motorists, but also required an additional element. Citing Gibbons, the trial court wrote that “[t]he Ninth District, in reliance upon Preston, further defined malice as having a component of ‘deliberate or intentional’ conduct.” This Court‘s decision in Gibbons mentioned the language cited by the trial court, but we did not discuss the relationship between that language and the definition of malice articulated by the Supreme Court of Ohio.
{16} In the course of its analysis in Preston, the Supreme Court referenced competing definitions of actual malice and articulated two principles that governed its decision. The first principle was that punitive damages are not awarded as compensation, but as punishment. Preston, 32 Ohio St.3d at 335. Consequently, the Supreme Court reasoned that “positive element of conscious wrongdoing is always required” and explained that “[t]his element has been termed conscious, deliberate or intentional[,] [and] [i]t requires the party to possess knowledge of the harm that might be caused by the behavior.” Id. The second principle was that punitive damages cannot be awarded based on “mere negligence.” Id. The Supreme Court explained that this principle “requires a finding that the probability of harm is great and that the harm will be substantial.” Id. Having addressed these two principles, the Supreme Court articulated a standard that incorporated both, holding that actual malice is “that state of mind under which a person‘s conduct is characterized by hatred, ill will or a spirit of revenge” or “a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.” Id. at 336, syllabus.
{17} As noted above, recklessness will not suffice to establish actual malice. Motorists, 63 Ohio St.3d at 696-697. “Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.” Anderson v. Massillon, 2012-Ohio-5711, paragraph four of the syllabus. In contrast, “actual malice requires consciousness of the near certainty (or otherwise stated ‘great probability‘) that substantial harm will be caused by the tortious behavior. Any less callous mental state is insufficient to incur that level of societal outrage necessary to justify an award of punitive damages.” Motorists at 698. “Actual malice” for purposes of punitive damages, therefore, differs from recklessness with respect to the actor‘s
{18} The trial court‘s decision was based on the conclusion that the evidence did not establish “‘a positive element of conscious wrongdoing’ that was ‘deliberate or intentional....‘” This language, however, is not an additional element required to establish actual malice. It reflects one of the principles that the Ohio Supreme Court recognized in Preston and considered when articulating the standard to be applied. That standard is whether a defendant had “a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.” Preston, 32 Ohio St.3d 334 at syllabus. Stated differently, “actual malice requires consciousness of the near certainty (or otherwise stated ‘great probability‘) that substantial harm will be caused by the tortious behavior.” Motorists at 698. The trial court, therefore, erred by applying the wrong standard, and the Estate‘s assignment of error is sustained on that basis. This Court will not consider whether the motion for JNOV should have been granted under the correct standard in the first instance. See McCormick v. McCormick, 2022-Ohio-3543, ¶ 10 (9th Dist.).
THE ESTATE‘S ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT RULES THAT THE ESTATE‘S LITIGATION EXPENSES WERE LIMITED TO ITEMS CONSIDERED REIMBURSABLE “COSTS” UNDER
OHIO CIV.R. 54(D) .
LAGRANGE‘S ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING [THE ESTATE] $319,570 IN ATTORNEY FEES UNDER THE LODESTAR ANALYSIS.
{19} The Estate‘s second assignment of error argues that the trial court erred by limiting its award of litigation expenses, and Lagrange‘s assignment of error argues that the trial court
{20} This Court must remand this matter so that the trial court can apply the correct standard to Lagrange‘s JNOV motion in the first instance. For that reason, the Estate‘s second assignment of error and Lagrange‘s assignment of error are premature.
III.
{21} The Estate‘s third assignment of error is overruled. The Estate‘s first assignment of error is sustained. The Estate‘s second assignment of error and Lagrange‘s assignment of error are premature. The judgment of the Lorain County Court of Common Pleas is affirmed in part and reversed in part, and this matter is remanded to the trial court for proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part, 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 Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed equally to both parties.
JENNIFER HENSAL
FOR THE COURT
STEVENSON, P. J. CONCURS.
SUTTON, J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
GERHARDT A. GOSNELL, II and DAMION M. CLIFFORD, Attorneys at Law, for Appellant/Cross-Appellee.
WILLIAM B. EADIE, Attorney at Law, for Appellant/Cross-Appellee.
SUSAN M. AUDEY, ELISABETH C. ARKO, RAYMOND KRNCEVIC and ERNEST W. AUCILLO, Attorneys at Law, for Appellees/Cross-Appellants.