Blust v. Lamar Advertising of Mobile, Inc.

2009 Ohio 3947, 917 N.E.2d 373, 183 Ohio App. 3d 478
CourtOhio Court of Appeals
DecidedAugust 7, 2009
DocketNo. 22917
StatusPublished
Cited by9 cases

This text of 2009 Ohio 3947 (Blust v. Lamar Advertising of Mobile, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blust v. Lamar Advertising of Mobile, Inc., 2009 Ohio 3947, 917 N.E.2d 373, 183 Ohio App. 3d 478 (Ohio Ct. App. 2009).

Opinion

Grady, Judge.

{¶ 1} In 1998, agents for Lamar Advertising Company who were engaged in erecting an advertising billboard on land abutting a farm owned by John and Jean Blust entered the Blusts’ property and removed a woodland growth of 34 trees that were growing wild.

{¶ 2} The Blusts commenced an action against Lamar on several claims for relief. Following a trial, the jury returned verdicts awarding the Blusts $32,000 in compensatory damages and $2,245,105 in punitive damages. Following an evidentiary hearing, the trial court awarded the Blusts $88,250 for their attorney fees.

{¶ 3} Lamar moved for a new trial. Finding the punitive-damages award excessive, the court ordered a remittitur of the punitive-damages award to $550,316.80, with half to be allocated to a charitable nature preserve. The Blusts declined the remittitur. The court then ordered a new trial on all issues, including compensatory damages and attorney fees. The Blusts appealed from that final order.

{¶ 4} On review, we held that the trial court did not err in finding the jury’s punitive-damages award excessive and ordering a new trial on that issue. However, we held that the court abused its discretion in ordering a new trial on the other issues in the case. We also held that with respect to the issue of punitive damages, the jury’s finding that the Blusts are entitled to punitive damages in some amount should not be disturbed, and we therefore directed the trial court to limit a new trial to the issue of the proper amount of punitive damages. Blust v. Lamar Advertising Co., 157 Ohio App.3d 787, 2004-Ohio-2433, 813 N.E.2d 902, at ¶ 20 (“Blust I”).

{¶ 5} On remand, the trial court submitted both the issue of punitive damages and the issue of attorney fees to the jury. The jury awarded $66,000 in punitive damages but no attorney fees. The trial court entered a judgment on those verdicts. The Blusts appealed from that final judgment.

[482]*482FIRST ASSIGNMENT OF ERROR

{¶ 6} “The unappealed judgment of the trial court on the issue of attorneys fees was unaffected by the reversal and remand on other issues and was res judicata and/or law of the case between the parties and binding on the trial court on remand.”

{¶ 7} In Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 635 N.E.2d 331, the Supreme Court held that where actual malice necessary to an award of punitive damages is proved, but the amount awarded is excessive, the remand following a reversal should be limited to determining the amount of punitive damages to be awarded. We followed and applied the rule of Moskovitz in Blust I.

{¶ 8} On remand, the trial court was apparently persuaded that our reversal of the $2,245,105 punitive-damages award undermined the finding of malice on which the court in the prior trial had awarded the Blusts attorney fees of $88,250. The trial court erred in so finding, because Moskovitz does not require rejection of a finding of malice merely because the amount of punitive damages awarded is excessive.

{¶ 9} In Blust I, we reversed the final judgment granting Lamar’s motion for a new trial on all issues. That judgment restored the award of attorney fees that the trial court had ordered. The special mandate we ordered pursuant to App.R. 27 was limited to the amount of punitive damages to be awarded.

{¶ 10} The law-of-the-case doctrine holds that the decision of the reviewing court in a case remains the law of that case on the questions of law involved for all subsequent proceedings at the trial and appellate levels. Nolan v. Nolan (1984), 11 Ohio St.3d 1, 11 OBR 1, 462 N.E.2d 410. The doctrine functions to compel trial courts to follow the mandates of reviewing courts. Thatcher v. Sowards (2001), 143 Ohio App.3d 137, 757 N.E.2d 805. “Moreover, the trial court is without authority to extend or vary the mandate.” Id. at 142, 757 N.E.2d 805.

{¶ 11} The trial court erred when it varied from our mandate in Blust I and extended its requirement of a new trial on the amount of punitive damages to be awarded to also include the issue of attorney fees.

{¶ 12} The first assignment of error is sustained.

SECOND ASSIGNMENT OF ERROR

{¶ 13} “The trial court erred and/or abused its discretion in failing to correct its judgment awarding attorneys fees where a clerical error is apparent on the record.”

[483]*483{¶ 14} In the first trial, after finding that the Blusts are entitled to an award of attorney fees at the rate of $200 per hour for the services each of their two counsel had performed, the court wrote:

{¶ 15} “The question of how many hours for which the Plaintiffs should be compensated for this case is not as easily resolved. While during the Posh-Trial Hearing it was indicated that the Plaintiffs’ counsel had dedicated over 550 hours to this case, there was nothing offered into evidence by virtue of testimony or exhibit that would support this estimation. Instead, the only evidence on record is the Post-Trial Hearing testimony offered by Attorney Huber that he had spent 325.25 hours working on the case and from Attorney Roach that he had spent 116.0 hours working on the case, a total of 441.25 hours. As such was the evidence placed on record by the Plaintiffs during the Post Trial Hearing, the Court will fix the number of hours at this figure. Thus multiplying the $200.00 hourly rate by 441.25 hours, the Court calculates a figure of $88,250.00. As such, the Court sustains Plaintiffs’ Motion for Attorneys Fees and orders Defendant to render payment of such in the amount of $88,250.00.”

{¶ 16} Following our decision in Blust I, and during the proceedings on the remand we ordered, the Blusts moved pursuant to Civ.R. 60(A) to correct the amount of attorney fees awarded. The Blusts argued that the court had committed a clerical error in its calculations, pointing out that the record on which the court said it relied showed that attorney Huber had spent 425.25 hours on the case, not the 325.25 hours the court employed in its calculations. On that basis, the Blusts are entitled to an award including the 100-hour difference, for an additional amount of $20,000.

{¶ 17} The greater number of hours spent by attorney Huber, 425.25 hours, in addition to the 116 hours spent by attorney Roach, total 541.25 hours. The court rejected the Blusts’ contention that their two attorneys “had dedicated over 550 hours to this case,” and denied the Blusts’ request for Civ.R. 60(A) relief. The lesser total of 541.25 hours is not excluded by the finding that the court made.

{¶ 18} Civ.R. 60(A) states:

{¶ 19} “Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders.

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Cite This Page — Counsel Stack

Bluebook (online)
2009 Ohio 3947, 917 N.E.2d 373, 183 Ohio App. 3d 478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blust-v-lamar-advertising-of-mobile-inc-ohioctapp-2009.