[Cite as Clifford v. Aleshire, 2013-Ohio-2591.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: JACQUIN CLIFFORD FKA : Hon. W. Scott Gwin, P.J. COTTRELL, ET AL : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. Plaintiffs-Appellants : : -vs- : Case No. 2012-CA-76 : LONNIE J. ALESHIRE, JR. : : OPINION Defendant-Appellee
CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court of Common Pleas, Case No. 2010CV093
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 20, 2013
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
BEVERLY FARLOW ALVAND MOKHTARI CHELSEA BERGER PLUNKETT COONEY 270 Bradenton Avenue, Ste. 100 300 East Broad Street, Ste. 590 Dublin, OH 43017 Columbus, OH 43215 [Cite as Clifford v. Aleshire, 2013-Ohio-2591.]
Gwin, P.J.
{¶1} Appellants appeal the September 4, 2012 judgment entry of the Licking
County Common Pleas Court denying their motion for prejudgment interest.
Facts & Procedural History
{¶2} Appellants, former parishioners of Licking Baptist Church, filed a complaint
against appellee Lonnie J. Aleshire, Jr., the church music director and youth leader,
alleging sexual assault, battery, false imprisonment, intentional infliction of emotional
distress, defamation, and loss of consortium. At the conclusion of a jury trial, the jury
awarded appellants a total of $4,350,623. On August 31, 2012, the trial court
memorialized the jury verdict in a final judgment entry.
{¶3} On July 12, 2012, appellants filed a motion for prejudgment and post
judgment interest and requested oral hearings on the motions. Appellants initiated
discovery pertaining to the motions for prejudgment and post judgment interest by
sending a Request for Production of Documents to appellee and a Notice of Submittal
of Plaintiffs’ Request for Production of Documents Pertaining to Plaintiffs’ Motion for
Prejudgment and Postjudgment Interest with the trial court on July 16, 2012. Appellee
filed an opposition to the motion on July 30, 2012 and filed a motion for protective order
regarding all post-trial production of documents. In their opposition to the motion for
prejudgment interest, appellee argued appellants knew appellee had no insurance
coverage for the award of damages as Church Mutual denied coverage to appellee
because appellants’ lawsuit alleged intentional sexual misconduct.
{¶4} The trial court did not set a date certain for the submission of evidentiary
materials or an oral evidentiary hearing on the motion for prejudgment interest. The trial Licking County, Case No. 2012-CA-76 3
court entered a judgment entry on September 4, 2012, granting appellants’ motion for
post judgment interest, but denying appellants’ motion for prejudgment interest. In the
judgment entry the trial court stated, “Defendant’s insurer offered to pay the costs of
defense, but they are not liable for defendant’s intentional sexual assaults.”
{¶5} Appellants now raise the following assignments of error on appeal:
{¶6} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO
SET AN EVIDENTIARY HEARING PRIOR TO RULING ON A MOTION FOR
PREJUDGMENT INTEREST, AS IS REQUIRED BY THE OHIO SUPREME COURT IN
PRUSZYNSKI V. REEVES, 117 OHIO ST.3D 92, 93-96 (2008).
{¶7} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT BY
ISSUING A RULING ON PLAINTIFFS-APPELLANTS’ MOTION FOR PREJUDGMENT
INTEREST THAT RELIES ON EVIDENCE THAT IS NOT AVAILABLE WITHIN THE
RECORD.
{¶8} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT BY
MAKING A FINDING OF FACT ABOUT DEFENDANT-APPELLEE’S INSURER’S
LIABILITY WHEN THERE IS NO SUPPORT FOR THE FINDING WITHIN THE
{¶9} “IV. ALTERNATIVELY, THE TRIAL COURT ABUSED ITS DISCRETION
IN FINDING THAT “THE FACTORS SET FORTH IN SECTION 1343.03(C) HAVE NOT
BEEN DEMONSTRATED NOR CAN THEY BE,” AND THUS IN DENYING
PLAINTIFFS-APPELLANTS’ MOTION FOR PREJUDGMENT INTEREST.” Licking County, Case No. 2012-CA-76 4
I.
{¶10} Questions of law are reviewed by the court de novo. Erie Ins. v. Paradise,
5th Dist. No. 2008CA00084, 2009-Ohio-4005, ¶ 12.
{¶11} R.C. 1343.03(C)(1) states as follows:
“If, upon motion of any party to a civil action that is based on
tortious conduct, that has not been settled by agreement of the parties,
and in which the court has rendered a judgment, decree, or order for the
payment of money, the court determines at a hearing held subsequent to
the verdict or decision in the action that the party required to pay the
money failed to make a good faith effort to settle the case and that the
party to whom the money is to be paid did not fail to make a good faith
effort to settle the case, interest on the judgment, decree, or order shall be
computed * * *”
{¶12} In 2008, the Ohio Supreme Court considered the meaning of the word
“hearing” found in R.C. 1343.03(C) in Pruszynski v. Reeves, 117 Ohio St.3d 92, 2008-
Ohio-510, 881 N.E.2d 1230. The Supreme Court specifically stated a trial court cannot
“drift away from the plain text of the statute” and rule on a motion for prejudgment
interest without a hearing simply because “it appears that no award of prejudgment
interest is likely.” Id. at 96. The Ohio Supreme Court reasoned that if they did not
require an evidentiary hearing, the “resulting presumption would be that no new
evidence is required. To the contrary, a motion for prejudgment interest addresses
facts and issues different from those submitted at trial.” Id. at 95. In its conclusion, the
Supreme Court held a “trial court must set a date certain for an evidentiary hearing Licking County, Case No. 2012-CA-76 5
before ruling on the merits of an R.C. 1343.03(C) motion for prejudgment interest.” Id.
at 97. Further, “courts of appeals do not have the authority to grant a motion for
prejudgment interest when the trial court has denied the motion without setting a date
for an evidentiary hearing.” Id.
{¶13} Here, the trial court did not set a date certain for the submission of
evidentiary materials or an oral evidentiary hearing on appellants’ motion for
prejudgment interest. Since a motion for prejudgment interest addresses facts and
issues different from those submitted at trial, we have no record upon which to review
the trial court’s decision to deny prejudgment interest.
{¶14} Pursuant to the Ohio Supreme Court’s holding in Pruszynski v. Reeves,
we find the trial court erred as a matter of law by failing to set a date certain for the
submission of evidentiary materials or an oral evidentiary hearing on appellants’ motion
for prejudgment interest. Appellants’ first assignment of error is sustained.
III.
{¶15} Appellants argue the trial court erred in making a finding of fact about the
insurer’s liability in its judgment entry on prejudgment and post judgment interest.
Appellee argues the trial court did not make a factual finding there is no insurance
coverage; rather, the trial court made a conclusion, based upon the law, that public
policy precludes insurance coverage for such acts.
{¶16} Both parties agree appellants can file a declaratory judgment action
pursuant to R.C. 2721.02(B) to determine whether the insurance policy’s coverage
extends to the occurrences at issue in this case since the trial court entered its final Licking County, Case No. 2012-CA-76 6
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[Cite as Clifford v. Aleshire, 2013-Ohio-2591.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: JACQUIN CLIFFORD FKA : Hon. W. Scott Gwin, P.J. COTTRELL, ET AL : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. Plaintiffs-Appellants : : -vs- : Case No. 2012-CA-76 : LONNIE J. ALESHIRE, JR. : : OPINION Defendant-Appellee
CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court of Common Pleas, Case No. 2010CV093
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 20, 2013
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
BEVERLY FARLOW ALVAND MOKHTARI CHELSEA BERGER PLUNKETT COONEY 270 Bradenton Avenue, Ste. 100 300 East Broad Street, Ste. 590 Dublin, OH 43017 Columbus, OH 43215 [Cite as Clifford v. Aleshire, 2013-Ohio-2591.]
Gwin, P.J.
{¶1} Appellants appeal the September 4, 2012 judgment entry of the Licking
County Common Pleas Court denying their motion for prejudgment interest.
Facts & Procedural History
{¶2} Appellants, former parishioners of Licking Baptist Church, filed a complaint
against appellee Lonnie J. Aleshire, Jr., the church music director and youth leader,
alleging sexual assault, battery, false imprisonment, intentional infliction of emotional
distress, defamation, and loss of consortium. At the conclusion of a jury trial, the jury
awarded appellants a total of $4,350,623. On August 31, 2012, the trial court
memorialized the jury verdict in a final judgment entry.
{¶3} On July 12, 2012, appellants filed a motion for prejudgment and post
judgment interest and requested oral hearings on the motions. Appellants initiated
discovery pertaining to the motions for prejudgment and post judgment interest by
sending a Request for Production of Documents to appellee and a Notice of Submittal
of Plaintiffs’ Request for Production of Documents Pertaining to Plaintiffs’ Motion for
Prejudgment and Postjudgment Interest with the trial court on July 16, 2012. Appellee
filed an opposition to the motion on July 30, 2012 and filed a motion for protective order
regarding all post-trial production of documents. In their opposition to the motion for
prejudgment interest, appellee argued appellants knew appellee had no insurance
coverage for the award of damages as Church Mutual denied coverage to appellee
because appellants’ lawsuit alleged intentional sexual misconduct.
{¶4} The trial court did not set a date certain for the submission of evidentiary
materials or an oral evidentiary hearing on the motion for prejudgment interest. The trial Licking County, Case No. 2012-CA-76 3
court entered a judgment entry on September 4, 2012, granting appellants’ motion for
post judgment interest, but denying appellants’ motion for prejudgment interest. In the
judgment entry the trial court stated, “Defendant’s insurer offered to pay the costs of
defense, but they are not liable for defendant’s intentional sexual assaults.”
{¶5} Appellants now raise the following assignments of error on appeal:
{¶6} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO
SET AN EVIDENTIARY HEARING PRIOR TO RULING ON A MOTION FOR
PREJUDGMENT INTEREST, AS IS REQUIRED BY THE OHIO SUPREME COURT IN
PRUSZYNSKI V. REEVES, 117 OHIO ST.3D 92, 93-96 (2008).
{¶7} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT BY
ISSUING A RULING ON PLAINTIFFS-APPELLANTS’ MOTION FOR PREJUDGMENT
INTEREST THAT RELIES ON EVIDENCE THAT IS NOT AVAILABLE WITHIN THE
RECORD.
{¶8} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT BY
MAKING A FINDING OF FACT ABOUT DEFENDANT-APPELLEE’S INSURER’S
LIABILITY WHEN THERE IS NO SUPPORT FOR THE FINDING WITHIN THE
{¶9} “IV. ALTERNATIVELY, THE TRIAL COURT ABUSED ITS DISCRETION
IN FINDING THAT “THE FACTORS SET FORTH IN SECTION 1343.03(C) HAVE NOT
BEEN DEMONSTRATED NOR CAN THEY BE,” AND THUS IN DENYING
PLAINTIFFS-APPELLANTS’ MOTION FOR PREJUDGMENT INTEREST.” Licking County, Case No. 2012-CA-76 4
I.
{¶10} Questions of law are reviewed by the court de novo. Erie Ins. v. Paradise,
5th Dist. No. 2008CA00084, 2009-Ohio-4005, ¶ 12.
{¶11} R.C. 1343.03(C)(1) states as follows:
“If, upon motion of any party to a civil action that is based on
tortious conduct, that has not been settled by agreement of the parties,
and in which the court has rendered a judgment, decree, or order for the
payment of money, the court determines at a hearing held subsequent to
the verdict or decision in the action that the party required to pay the
money failed to make a good faith effort to settle the case and that the
party to whom the money is to be paid did not fail to make a good faith
effort to settle the case, interest on the judgment, decree, or order shall be
computed * * *”
{¶12} In 2008, the Ohio Supreme Court considered the meaning of the word
“hearing” found in R.C. 1343.03(C) in Pruszynski v. Reeves, 117 Ohio St.3d 92, 2008-
Ohio-510, 881 N.E.2d 1230. The Supreme Court specifically stated a trial court cannot
“drift away from the plain text of the statute” and rule on a motion for prejudgment
interest without a hearing simply because “it appears that no award of prejudgment
interest is likely.” Id. at 96. The Ohio Supreme Court reasoned that if they did not
require an evidentiary hearing, the “resulting presumption would be that no new
evidence is required. To the contrary, a motion for prejudgment interest addresses
facts and issues different from those submitted at trial.” Id. at 95. In its conclusion, the
Supreme Court held a “trial court must set a date certain for an evidentiary hearing Licking County, Case No. 2012-CA-76 5
before ruling on the merits of an R.C. 1343.03(C) motion for prejudgment interest.” Id.
at 97. Further, “courts of appeals do not have the authority to grant a motion for
prejudgment interest when the trial court has denied the motion without setting a date
for an evidentiary hearing.” Id.
{¶13} Here, the trial court did not set a date certain for the submission of
evidentiary materials or an oral evidentiary hearing on appellants’ motion for
prejudgment interest. Since a motion for prejudgment interest addresses facts and
issues different from those submitted at trial, we have no record upon which to review
the trial court’s decision to deny prejudgment interest.
{¶14} Pursuant to the Ohio Supreme Court’s holding in Pruszynski v. Reeves,
we find the trial court erred as a matter of law by failing to set a date certain for the
submission of evidentiary materials or an oral evidentiary hearing on appellants’ motion
for prejudgment interest. Appellants’ first assignment of error is sustained.
III.
{¶15} Appellants argue the trial court erred in making a finding of fact about the
insurer’s liability in its judgment entry on prejudgment and post judgment interest.
Appellee argues the trial court did not make a factual finding there is no insurance
coverage; rather, the trial court made a conclusion, based upon the law, that public
policy precludes insurance coverage for such acts.
{¶16} Both parties agree appellants can file a declaratory judgment action
pursuant to R.C. 2721.02(B) to determine whether the insurance policy’s coverage
extends to the occurrences at issue in this case since the trial court entered its final Licking County, Case No. 2012-CA-76 6
judgment on August 31, 2012. Both parties also agree the issue of insurance coverage
is not properly before the trial court at this time.
{¶17} We agree with the parties that the issue of insurer liability is not properly
before the trial court at this point in time. Accordingly, to the extent that the trial court
made a finding of fact involving insurer liability for appellee’s torts, the trial court erred.
Assignment of Error III is sustained.
II. & IV.
{¶18} Because we found the trial court erred in failing to set a date certain for
the submission of evidentiary materials or an oral evidentiary hearing on appellants’
motion for prejudgment interest, we need not reach the issue of whether the trial court
erred in relying on evidence not available in the record or abused its discretion in finding
the factors set forth in R.C. 1343.03(C) have not been demonstrated. Licking County, Case No. 2012-CA-76 7
{¶19} The September 4, 2012 judgment entry of the Licking County Common
Pleas Court denying appellants’ motion for prejudgment interest is reversed and the
matter is remanded to the trial court for further proceedings in accordance with the law
and this opinion.
By Gwin, P.J.,
Farmer, J. and
Baldwin, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. SHEILA G. FARMER
_________________________________ HON. CRAIG R. BALDWIN
WSG:clw 0528 [Cite as Clifford v. Aleshire, 2013-Ohio-2591.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JACQUIN CLIFFORD FKA COTTRELL, ET AL : : Plaintiffs-Appellants : : : -vs- : JUDGMENT ENTRY : LONNIE J. ALESHIRE, JR. : : : Defendant-Appellee : CASE NO. 2012-CA-76
For the reasons stated in our accompanying Memorandum-Opinion, the
September 4, 2012 judgment entry of the Licking County Common Pleas Court denying
appellants’ motion for prejudgment interest is reversed and the matter remanded to the
trial court for further proceedings in accordance with the law and this opinion. Costs to
appellee.