[Cite as Malone v. Ford, 2021-Ohio-330.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PIKE COUNTY
FOREST J. MALONE, : Case No. 20CA903
Plaintiff-Appellant, :
v. : DECISION AND JUDGMENT ENTRY RICHARD FORD, ET AL., :
Defendants-Appellees. : RELEASED 1/29/2021
APPEARANCES:
Forest J. Malone, Portsmouth, Ohio, pro se.
Stacy M. Brooks, Waverly, Ohio, for appellees.
Hess, J. {¶1} Forest J. Malone appeals the trial court’s judgment in his favor on his
conversion claim and awarding him $150, plus interest and court costs. Malone argues
that the award of $150 in damages is absurdly inadequate. He contends that he presented
evidence that entitled him to an award of damages in the sum of $62,000. Malone
contends that the judge, who served as the factfinder, was prejudiced, arguing that “there
must be a conflict of interest.”
{¶2} Appellees argue that Malone’s appeal should be dismissed for failure to file
a brief that conforms with the Appellate Rules of Procedure. Alternatively, appellees
assert that the evidence presented in the trial court supports the damages award.
I. PROCEDURAL HISTORY
{¶3} Malone filed a complaint against Richard Ford, Tracey Young, and Michael
Young alleging a conversion of his property as it relates to a mobile home trailer and its Pike App. No. 20CA903 2
contents situated on Lake White. The trial court conducted a bench trial and found in favor
of Malone on his claim of conversion of property.1 The court found that Malone was
entitled to damages but that he failed to establish the fair market value of the property
sufficient to rebut the testimony provided by Michael Young. Malone was awarded $150
in compensatory damages, plus statutory interest and court costs.
{¶4} Malone appealed the judgment and filed his brief. We ordered him to file a
brief that complied with App.R. 16 and his original filing was stricken. Malone filed a
second brief and again we informed him it was not compliant. Malone filed a third brief
and we issued an order for appellees to file their responsive brief. Although Malone’s
brief does not comport with App.R. 16, we are able to discern the purported error he raises
and the relief he requests.
Because we prefer to review a case on its merits rather than dismiss it due to procedural technicalities, we give considerable leniency to pro se litigants. “Limits do exist, however. Leniency does not mean that we are required ‘to find substance where none exists, to advance an argument for a pro se litigant or to address issues not properly raised.’ ” We consider a pro se litigant's appellate brief if it contains some cognizable assignment of error. (Citations omitted.)
Viars v. Ironton, 4th Dist. Lawrence No. 16CA8, 2016-Ohio-4912, ¶ 25. Therefore, in the
interest of justice, we will review the merits of his appeal.
{¶5} Malone contends that his damages award of $150 on his conversion claim
is absurdly inadequate and that the factfinder must have a conflict of interest. He argues
that the contents of the trailer had a value of $18,000, the trailer had a value of $24,000,
and he experienced emotional “stress” and additional expenses related to boat storage,
1 A trial transcript was not included in the record. Pike App. No. 20CA903 3
which totaled another $20,000. He states that his total damages are $62,000, making the
award of $150 woefully inadequate.
II. LAW AND ANALYSIS
{¶6} A factfinder’s “determination of damages will ‘not be set aside unless the
damages awarded were so excessive as to appear to have been awarded as a result of
passion or prejudice, or unless the amount is so manifestly against the weight of the
evidence as to show a misconception’ ” by the factfinder of its duties. Black v. Hicks, 8th
Dist. Cuyahoga No. 108958, 2020-Ohio-3976, ¶ 78-82, quoting Berris v. Zaremba, 8th
Dist. Cuyahoga No. 60043, 1992 WL 74222 (Apr. 9, 1992). The assessment of damages
is so thoroughly within the province of the factfinder that a reviewing court is not at liberty
to disturb the award “absent an affirmative finding of passion and prejudice or a finding
that the award is manifestly excessive.” Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d
638, 655, 635 N.E.2d 331 (1994). “The size of the verdict, standing alone, is insufficient
to establish passion or prejudice.” Eisnaugle v. Munn, 4th Dist. Jackson No. 00CA12,
2000-Ohio-2037, *3.
{¶7} A party seeking to challenge the factfinder’s determination of damages does
so by filing a motion under Civ.R. 59 for new trial in the trial court. The failure to raise an
issue before the trial court waives that party's right to raise the issue on appeal. State ex
rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993). “An
appellate court will not consider any error which counsel for a party complaining of the
trial court's judgment could have called but did not call to the trial court's attention at a
time when such error could have been avoided or corrected by the trial court.” (Internal
quotations omitted.) State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 Pike App. No. 20CA903 4
N.E.3d 900, ¶ 15. Thus, by failing to raise an issue to the trial court, an appellant forfeits
that issue on appeal. Risner v. Ohio Dept. of Natural Resources, 144 Ohio St.3d 278,
2015-Ohio-3731, 42 N.E.3d 718, ¶ 26; Black v. Hicks, 2020-Ohio-3976, at ¶ 81 (party
who fails to file a motion for a new trial under Civ.R. 59 forfeits any errors in the damages
award on appeal).
{¶8} Although Malone forfeited any error in the damages award by failing to
object or otherwise raise the argument in the trial court, “[a]ppellate courts may, however,
consider a forfeited argument using a plain-error analysis.” Eichenlaub v. Eichenlaub,
2018-Ohio-4060, 120 N.E.3d 380, ¶ 21 (husband failed to raise his argument challenging
spousal support award and thus forfeited it on appeal). However, “[a]n appellate court
‘must proceed with the utmost caution’ in applying the doctrine of plain error in a civil
case.” Risner at ¶ 27, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d
1099 (1997); Jones v Cleveland Clinic Found., __Ohio St.3d__, 2020-Ohio-3780,
__N.E.3d__, ¶ 24. “Plain error should be strictly limited ‘to the extremely rare case
involving exceptional circumstances when the error, left unobjected to at the trial court,
rises to the level of challenging the legitimacy of the underlying judicial process itself.’ ”
(Emphasis sic.) Risner at ¶ 27, quoting Goldfuss at 122; Berry v. Paint Valley Supply,
LLC, et al., 4th Dist. Highland No. 16CA19, 2017-Ohio-4254, ¶ 29-30.
{¶9} We decline to apply the doctrine of plain error to this civil case. Malone
failed to provide a trial transcript, thus we have no choice but to presume the validity of
the trial court’s proceedings:
Pursuant to App.R. 9(B), it is the appellant's responsibility to order a complete transcript if he intends to argue that a finding is contrary to the weight of the evidence.
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[Cite as Malone v. Ford, 2021-Ohio-330.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PIKE COUNTY
FOREST J. MALONE, : Case No. 20CA903
Plaintiff-Appellant, :
v. : DECISION AND JUDGMENT ENTRY RICHARD FORD, ET AL., :
Defendants-Appellees. : RELEASED 1/29/2021
APPEARANCES:
Forest J. Malone, Portsmouth, Ohio, pro se.
Stacy M. Brooks, Waverly, Ohio, for appellees.
Hess, J. {¶1} Forest J. Malone appeals the trial court’s judgment in his favor on his
conversion claim and awarding him $150, plus interest and court costs. Malone argues
that the award of $150 in damages is absurdly inadequate. He contends that he presented
evidence that entitled him to an award of damages in the sum of $62,000. Malone
contends that the judge, who served as the factfinder, was prejudiced, arguing that “there
must be a conflict of interest.”
{¶2} Appellees argue that Malone’s appeal should be dismissed for failure to file
a brief that conforms with the Appellate Rules of Procedure. Alternatively, appellees
assert that the evidence presented in the trial court supports the damages award.
I. PROCEDURAL HISTORY
{¶3} Malone filed a complaint against Richard Ford, Tracey Young, and Michael
Young alleging a conversion of his property as it relates to a mobile home trailer and its Pike App. No. 20CA903 2
contents situated on Lake White. The trial court conducted a bench trial and found in favor
of Malone on his claim of conversion of property.1 The court found that Malone was
entitled to damages but that he failed to establish the fair market value of the property
sufficient to rebut the testimony provided by Michael Young. Malone was awarded $150
in compensatory damages, plus statutory interest and court costs.
{¶4} Malone appealed the judgment and filed his brief. We ordered him to file a
brief that complied with App.R. 16 and his original filing was stricken. Malone filed a
second brief and again we informed him it was not compliant. Malone filed a third brief
and we issued an order for appellees to file their responsive brief. Although Malone’s
brief does not comport with App.R. 16, we are able to discern the purported error he raises
and the relief he requests.
Because we prefer to review a case on its merits rather than dismiss it due to procedural technicalities, we give considerable leniency to pro se litigants. “Limits do exist, however. Leniency does not mean that we are required ‘to find substance where none exists, to advance an argument for a pro se litigant or to address issues not properly raised.’ ” We consider a pro se litigant's appellate brief if it contains some cognizable assignment of error. (Citations omitted.)
Viars v. Ironton, 4th Dist. Lawrence No. 16CA8, 2016-Ohio-4912, ¶ 25. Therefore, in the
interest of justice, we will review the merits of his appeal.
{¶5} Malone contends that his damages award of $150 on his conversion claim
is absurdly inadequate and that the factfinder must have a conflict of interest. He argues
that the contents of the trailer had a value of $18,000, the trailer had a value of $24,000,
and he experienced emotional “stress” and additional expenses related to boat storage,
1 A trial transcript was not included in the record. Pike App. No. 20CA903 3
which totaled another $20,000. He states that his total damages are $62,000, making the
award of $150 woefully inadequate.
II. LAW AND ANALYSIS
{¶6} A factfinder’s “determination of damages will ‘not be set aside unless the
damages awarded were so excessive as to appear to have been awarded as a result of
passion or prejudice, or unless the amount is so manifestly against the weight of the
evidence as to show a misconception’ ” by the factfinder of its duties. Black v. Hicks, 8th
Dist. Cuyahoga No. 108958, 2020-Ohio-3976, ¶ 78-82, quoting Berris v. Zaremba, 8th
Dist. Cuyahoga No. 60043, 1992 WL 74222 (Apr. 9, 1992). The assessment of damages
is so thoroughly within the province of the factfinder that a reviewing court is not at liberty
to disturb the award “absent an affirmative finding of passion and prejudice or a finding
that the award is manifestly excessive.” Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d
638, 655, 635 N.E.2d 331 (1994). “The size of the verdict, standing alone, is insufficient
to establish passion or prejudice.” Eisnaugle v. Munn, 4th Dist. Jackson No. 00CA12,
2000-Ohio-2037, *3.
{¶7} A party seeking to challenge the factfinder’s determination of damages does
so by filing a motion under Civ.R. 59 for new trial in the trial court. The failure to raise an
issue before the trial court waives that party's right to raise the issue on appeal. State ex
rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993). “An
appellate court will not consider any error which counsel for a party complaining of the
trial court's judgment could have called but did not call to the trial court's attention at a
time when such error could have been avoided or corrected by the trial court.” (Internal
quotations omitted.) State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 Pike App. No. 20CA903 4
N.E.3d 900, ¶ 15. Thus, by failing to raise an issue to the trial court, an appellant forfeits
that issue on appeal. Risner v. Ohio Dept. of Natural Resources, 144 Ohio St.3d 278,
2015-Ohio-3731, 42 N.E.3d 718, ¶ 26; Black v. Hicks, 2020-Ohio-3976, at ¶ 81 (party
who fails to file a motion for a new trial under Civ.R. 59 forfeits any errors in the damages
award on appeal).
{¶8} Although Malone forfeited any error in the damages award by failing to
object or otherwise raise the argument in the trial court, “[a]ppellate courts may, however,
consider a forfeited argument using a plain-error analysis.” Eichenlaub v. Eichenlaub,
2018-Ohio-4060, 120 N.E.3d 380, ¶ 21 (husband failed to raise his argument challenging
spousal support award and thus forfeited it on appeal). However, “[a]n appellate court
‘must proceed with the utmost caution’ in applying the doctrine of plain error in a civil
case.” Risner at ¶ 27, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d
1099 (1997); Jones v Cleveland Clinic Found., __Ohio St.3d__, 2020-Ohio-3780,
__N.E.3d__, ¶ 24. “Plain error should be strictly limited ‘to the extremely rare case
involving exceptional circumstances when the error, left unobjected to at the trial court,
rises to the level of challenging the legitimacy of the underlying judicial process itself.’ ”
(Emphasis sic.) Risner at ¶ 27, quoting Goldfuss at 122; Berry v. Paint Valley Supply,
LLC, et al., 4th Dist. Highland No. 16CA19, 2017-Ohio-4254, ¶ 29-30.
{¶9} We decline to apply the doctrine of plain error to this civil case. Malone
failed to provide a trial transcript, thus we have no choice but to presume the validity of
the trial court’s proceedings:
Pursuant to App.R. 9(B), it is the appellant's responsibility to order a complete transcript if he intends to argue that a finding is contrary to the weight of the evidence. This duty falls upon the appellant “because the appellant bears the burden of showing error by reference to matters in the Pike App. No. 20CA903 5
record.” Plum Run, Inc. v. Cantor, 4th Dist. Jackson No. 02CA14, 2003– Ohio-5545, ¶ 11. Where an appellant fails to provide the portions of the transcript required by an appellate court to resolve the assigned errors, “the appellate court has no choice but to presume the validity of the trial court's judgment and affirm.” Id.
Am. Family Ins. Co. v. Hoop, 4th Dist. Adams No. 13CA983, 2014-Ohio-3773, ¶ 36; 5
Ohio Jur. 3d Appellate Review § 455 (“An appellate court has nothing to pass on if the
appellant fails to provide a transcript of the lower court's proceedings, and the appellate
court has no choice but to presume the validity of the lower court's proceedings”).
III. CONCLUSION
{¶10} Malone forfeited any errors in the determination of damages when he failed
to preserve the issue for appellate review and because he failed to provide a trial
transcript, we presume the trial court’s damages determination was valid. We overrule
Malone’s assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED. Pike App. No. 20CA903 6
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pike County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J.: Concurs in Judgment and Opinion. Abele, J.: Concurs in Judgment Only.
For the Court
BY: ________________________________ Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.