Wagoner v. Obert

WAGONER Et Al., Appellants, v. OBERT Et Al., Appellees

180 Ohio App. 3d 387, 2008 Ohio 7041, 905 N.E.2d 694 • 2008-12-31

Citation180 Ohio App. 3d 387, 2008 Ohio 7041, 905 N.E.2d 694

Date Filed2008-12-31

DocketNo. 07 CA 31.

JudgeEdwards, Farmer, Hoffman

Cited7 times

StatusPublished

Attorneys

Michael O’Reilly, for appellants., Stebelton, Aranda & Snider and John N. Snider, for appellees., Maguire & Schneider, for appellees Winona Donnall and Home Connection Realty., John Harker, for appellees Martin and Rosemary Kellenbarger.

Procedural Posture

Appeal from the Court of Common Pleas, Fairfield County, No. 2005 CV 00860.

Full Opinion (html_with_citations)

Hoffman, Presiding Judge,

concurring in part and dissenting in part.

{¶ 177} I concur in the majority’s thorough and well-reasoned analysis and disposition of appellants and cross-appellees’ three assignments of error. I further concur in the majority’s analysis and disposition of appellees and cross-appellants’ cross-appeal, except for its decision to deny the Oberts a new trial because of the inconsistency between the jury’s $0 verdict on the Oberts’ claim for punitive damages and its recommendation to award the Oberts attorney fees.

{¶ 178} Although I agree that a jury does not have the right to determine the amount of attorney fees, the jury does have a right to recommend an award of them. Having been instructed that attorney fees are allowable if it awards punitive damages, I believe the trial court erred in not implementing the remedies available under Civ.R. 49(B) to resolve the inconsistency. I find the proper remedy now to be a new trial under Civ.R. 59(A).

{¶ 179} Accordingly, I dissent from the majority’s decision to overrule appellees and cross-appellants’ third assignment of error.