Estate of Samples v. Lagrange Nursing & Rehab. Ctr., Inc.

2024 Ohio 4441, 252 N.E.3d 609

• Court: Ohio Court of Appeals
• Decided: September 9, 2024
• Docket: 23CA012051
• Status: Published

Opinion

[Cite as Estate of Samples v. Lagrange Nursing & Rehab. Ctr., Inc., 2024-Ohio-4441.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

ESTATE OF KESTER SAMPLES C.A. No. 23CA012051

Appellant/Cross-Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE LAGRANGE NURSING & COURT OF COMMON PLEAS REHABILITATION CENTER, INC., d/b/a COUNTY OF LORAIN, OHIO KEYSTONE POINT HEALTH AND CASE No. 20CV201448 REHABILITATION, et al.

Appellees/Cross-Appellants

DECISION AND JOURNAL ENTRY

Dated: September 9, 2024

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 Revised Code

Section 3721.13. The complaint alleged numerous instances of failure to provide proper care to

Mr. Samples that resulted in injury and, ultimately, in his death. The Estate also sought punitive

damages. The parties consented to trial by a magistrate pursuant to Civil Rule 53(C)(1)(c) and 2

53(C)(2), and trial proceedings began on July 18, 2022. The magistrate granted Lagrange’s

unopposed motion to bifurcate the punitive damage claims. After presentation of the evidence,

Lagrange moved for a directed verdict on punitive damages. The magistrate denied the motion.

The Estate moved the magistrate to apply the $500,000 damage cap set forth in Section

2323.43(A)(3) and, although the jury had already begun deliberations, submitted a proposed

interrogatory on the issue. The parties briefed the issue, and the magistrate denied the motion.

{¶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 Appellate Rule 3(C)(1) in the event that this Court reversed the order granting

1 Neither party has argued that there was an error in connection with the timing of the motion for JNOV. 3

judgment notwithstanding the verdict. For purposes of disposition, the assignments of error are

rearranged for ease of disposition.

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 IN R.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 Section 2323.43(A)(2). This Court does not agree.

{¶6} Section 2323.43(A)(2) limits the compensatory damages recoverable by a plaintiff

in a medical claim for injury, death, or loss to $250,000 in the absence of economic loss.

Noneconomic damages may exceed this cap but may not be greater than $500,000 per plaintiff

when they result from either “[p]ermanent and substantial physical deformity, loss of use of a limb,

or loss of a bodily organ system” or “[p]ermanent physical functional injury that permanently

prevents the injured person from being able to independently care for self and perform life

sustaining activities.” R.C. 2323.43(A)(3). Application of the damage caps is not dependent on

the initiative of the parties because “[a] court of common pleas has no jurisdiction to enter

judgment on an award of compensatory damages for noneconomic loss in excess of the limits set

forth in this section.” R.C. 2323.43(D)(1). See also R.C. 2323.43(C)(1) (“In no event shall a

judgment for compensatory damages for noneconomic loss exceed the maximum recoverable

amount that represents damages for noneconomic loss as provided in divisions (A)(2) and (3) of

this section.”). 4

{¶7} When a “catastrophic injury” under Section 2323.43(A)(3) is alleged, both the trial

court and the jury have a function. See Potts v. Durani, 2023-Ohio-4195, ¶ 50-51 (1st Dist.). “The

trial court must determine whether there is enough evidence to meet the basic evidentiary

threshold. Once that threshold is met, it is for the trier of fact, not the court, to determine whether

the damages constitute permanent and substantial deformity.” Fairrow v. OhioHealth Corp.,

2020-Ohio-5595, ¶ 68 (10th Dist.). “Prior to the trial in the civil action, any party may seek

summary judgment with respect to the nature of the alleged injury or loss to person or property,

seeking a determination of the damages as described in” Section 2323.43(A)(2) or (3). R.C.

2323.43(C)(2). The trial court also can perform its initial function by determining whether an

interrogatory should be submitted to the jury or by directing a verdict on the issue of catastrophic

injury. See Potts at ¶ 51, 53.

{¶8} In this case, neither party moved for summary judgment seeking a determination of

damages as provided by Section 2323.43(C)(2). The Estate did not propose an interrogatory before

the jury retired, and neither party moved for a directed verdict on the question of catastrophic

injury at the close of the evidence. The jury instructions did not reference catastrophic injury.

Instead, the Estate raised the issue after the magistrate instructed the jury and the jury retired for

deliberations. The Estate acknowledged that it was “late[,]” then moved “as a matter of law for a

finding of substantial physical deformity. . . .” The magistrate ordered the parties to brief the issue

over the weekend. The following Monday, the magistrate denied the motion. On the record, the

Estate moved to submit an interrogatory to the jury despite the fact that deliberations were

underway. Lagrange responded that doing so would lead to both confusion and undue prejudice,

and the Estate proposed submitting the interrogatory to the jury separately after a verdict was

reached. After the jury returned verdict in favor of the Estate on the negligence claim, the Estate 5

renewed its motion to submit a separate interrogatory to the jury, proposing that the jury consider

the issue in conjunction with punitive damages. The magistrate denied the motion.

{¶9} Because the trial court did not have jurisdiction to enter a judgment in excess of

the damage caps provided by Section 2323.43(A), Lagrange was not required to take the initiative

to invoke those caps in order for them to apply. See R.C. 2323.43(C)(1), (D)(1). To the extent

that the Estate’s assignment of error challenges the trial court’s decision not to submit an

interrogatory to the jury regarding catastrophic damages, the Estate’s request for an interrogatory

was untimely. Civil Rule 49(B) explains that proposed interrogatories must be submitted to

opposing counsel and the trial court “prior to the commencement of argument.” At that time, the

trial court must rule on the proposed interrogatories and, if accepted, submit them to the jury. Id.

A trial court is not required to consider proposed interrogatories that are submitted outside of the

timeframe provided by Rule 49(B). Waters v. Allied Machine & Eng. Corp., 2003-Ohio-2293, ¶

120 (5th. Dist.); Huggins Farms, Inc. v. Bucyrus Plaza Ltd., 1989 WL 49484, *7 (3d Dist. May 9,

1989). See also Ramage v. Cent. Ohio Emergency Servs., Inc., 64 Ohio St.3d 97 (1992), paragraph

three of the syllabus (concluding that the language of Rule 49(B) does not require a trial court to

submit all proposed interrogatories but may reject them if they are untimely or “legally

objectionable.”).

{¶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. 6

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.” R.C. 2315.21(C)(1). The plaintiff must demonstrate that punitive damages

are appropriate “by clear and convincing evidence[.]” Cruz v. English Nanny & Governess School,

2022-Ohio-3586, ¶ 44, quoting R.C. 2315.21(D)(4). “Even when a plaintiff can establish

entitlement to punitive damages, whether to impose punitive damages, and in what amount, is left

to the trier of fact.” Whetstone v. Binner, 2016-Ohio-1006, ¶ 20.

{¶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. 7

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. 8

{¶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 9

awareness of the risk and the degree of harm that is likely to result. See id.. On the other hand,

“actual malice” is a different issue than whether proof of a “direct intent to injure” is required. See

Buckeye Union Ins. Co. v. New England Ins. Co., 87 Ohio St.3d 280, 287 (1999).

{¶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 10

abused its discretion in awarding attorney fees. Because Ohio Courts adhere generally to the

“American Rule” regarding attorney fees, prevailing parties may not recover attorney fees unless

provided by statute or contract or in the event that punitive damages are awarded. In re S.S., 2023-

Ohio-245, ¶ 20 (9th Dist.) “When a party is awarded punitive damages, a trial court has the

discretion to order the losing party to pay the prevailing party’s attorney fees.” Phoenix Lighting

Group, L.L.C. v. Genlyte Thomas Group, L.L.C., 2020-Ohio-1056, ¶ 1.

{¶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 App.R. 27. 11

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

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.