COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59411 JAMES CORY SMITH, ET. AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION DEAN M. HADLOCK : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1991 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 122976 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: PHILIP N. GEORGEADIS, ESQ. FREDRIC E. KRAMER, ESQ. WEAVER, KOLICK, GEORGEADIS MCNEAL, SCHICK, ARCHIBALD & ERNEWEIN AND BIRO 55 Public Square, #1350 Tenth Floor Cleveland, Ohio 44113 Illuminating Building Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellants, James Cory Smith, et al., obtained a verdict against appellee, Dean Hadlock, and subsequently filed a R.C. 1343.03(c) motion for prejudgment interest which was denied without a hearing. On appeal appellant assigns the following error for review. THE TRIAL COURT ERRED BY PREMATURELY DENYING PLAINTIFF'S MOTION FOR PRE-JUDGMENT INTEREST WITHOUT GIVING PLAINTIFF THE OPPORTUNITY TO COMPLETE DISCOVERY AND THE BENEFIT OF AN ORAL HEARING. A The first issue is whether a hearing was required. R.C. 1343.03(c) states that interest shall be computed in the specified manner "if, upon motion of any party to the action, the court determines at a hearing" that the requirements of the statute have been met. (Emphasis added.) The trial judge does not have the discretion to forego the hearing even when he or she has actively participated in the pre-trial process. Appellee cites Christopher v. Cleveland Builders Supply Co. (March 2, 1989), Cuyahoga App. No. 55069, unreported, for the proposition that a hearing was not required when the judge had actively participated in the case by conducting various pretrials and a lengthy trial. After stating that the trial judge's participation was dispositive Christopher held that "the court did not need to conduct a hearing." Christopher at 11-12. Christopher went on to add the following: - 2 - Moreover, we note when cross-appellants filed their motion, they declined to attach a brief or supporting affidavits. Thus they failed to take advantage of the perfect opportunity to apprise the court of any information they thought pertinent. Accordingly we overruled this assignment of error. (Emphasis added.) Christopher, at 12. Even if these statements (unsupported by authority) are not merely dicta Christopher only required a brief or supporting affidavits that provide information. No minimum evidentiary standard is set. Christopher also incorrectly applied the abuse of discretion standard applicable to ruling on the merits of motions for prejudgment interest to the failure to hold the hearing that R.C. 1343.03(C), on its face, requires. Finally, Christopher failed to address the prior case law from this district which held that R.C. 1343.03(C) mandates a hearing upon a motion for prejudgment interest. No statement of facts or presentation of evidence is required when the statute itself requires the hearing. This court has held as follows: This court, on more than one occasion, has specifically held that R.C. 1343.03(C) mandates that the trial court conduct an evidentiary hearing prior to a determination of a party's motion for prejudgment interest. Cox v. Fisher Fazio Foods, Inc. (1984), 13 Ohio App. 3d 336; Pecek, et al. v. Carlton, et al. (Jan. 10, 1985), Cuyahoga App. No. 47893, 47897, unreported. Dalton-Robinson, et al. v. Stark (December 21, 1989), Cuyahoga App. No. 57628, unreported at 4. There is no exception permitted. Pecek stated as follows: - 3 - [T]he critical question to be decided by a trial court in ruling on a motion for pre-judgment interest is the absence or existence of a good faith effort to settle by the parties. It is for this reason that the Legislature has made provision for a hearing to make such a determination. Ohio Revised Code section 1343.03(C) provides. (C) Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid, if, upon motion of any party to the action, 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. This court in Cox v. Fisher Fazio Foods, Inc., No. 47628, (8th App. Dist. Ohio, June 4, 1984), unreported, had occasion to interpret this statutory provision and recognized that a hearing should be conducted in order to afford the parties the opportunity to present the evidence necessary to establish or refute the existence of a good faith effort to settle the case. No provision is made for the trial court sua sponte to prepare or sign a statement pursuant to Appellate Rule 9(C) in lieu of an actual hearing. Thus, the trial court should have conducted a hearing on the issue of pre-judgment interest. (Emphasis added.) The Ohio Supreme Court stated "R.C. 1343.03(C) provides a hearing. ... On its face, R.C. 1343.03(C) creates a special statutory proceeding, i.e. a post-trial hearing." Cotterman v. Cleveland Electric Illum. Co. (1987), 34 Ohio St. 3d 48, 50. In - 4 - contrast, for example, R.C. 2953.21 requires some showing that the petitioner is entitled to relief before a hearing is required. R.C. 2953.21(C) and (E). Christopher is aberrational and fails to follow the law of Ohio. We hold that a movant is entitled to a hearing once a motion for prejudgment interest is filed. See Cotterman, Cox, Dalton-Robinson and Pecek. Accordingly, the decision of the trial court is reversed and this case is remanded for a R.C. 1343.03 hearing. B Appellant contends that the trial court erred in ruling before discovery could be completed. Discovery may be conducted in a R.C. 1343.03 proceeding, Cotterman, 34 Ohio St. 3d 48 (paragraphs two and three of the syllabus), despite appellant's assertion in his brief that he intended to conduct discovery there is nothing, however, in the motion to that effect and appellant failed to alert the trial judge to that fact in the four weeks between the motion and the denial. Had the hearing not been mandatory the denial would have been affirmed. A trial court would not abuse its discretion by ruling before the completion of post-trial discovery if it did not know that the movant wishes to commence such discovery. Judgment reversed and remanded. - 5 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN MCMANAMON, J., AND JAMES D. SWEENEY, J., CONCUR PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .