COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 66808, 66947 : RE AMERICA, INC., FKA : HENRIK SCHRODER, INC. : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION THEODORE M. GARVER, ET AL. : : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 8, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-245854 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: MICHAEL N. UNGAR, ESQ. WILLIAM F. SNYDER, ESQ. MICHAEL A. SCHROEDER, ESQ. LAURENCE R. SNYDER, ESQ. ULMER & BERNE MARSHMAN, SNYDER & KAPP 900 Bond Court Building Suite 450, One Erieview Plaza 1300 East Ninth Street Cleveland, Ohio 44114 Cleveland, Ohio 44114-1583 - 2 - KARPINSKI, J.: These consolidated appeals are the most recent in a series of litigation arising from a failed business transaction to purchase and operate a corporation. For simplicity, the parties shall be referred to by their proper names. Theodore Garver ("Garver") proposed the idea of purchasing and operating the A.A. Gage ("Gage") corporation to Henrik Schroder in the fall of 1989. Henrik Schroder is Danish and was the principal owner and chairman of the board of a corporation, which has gone through a series of name changes and is now known as RE America, Inc. (collectively, "RE America"). Garver was a director, officer or attorney for several organizations at the time of the transaction. Garver (1) was an officer and director of RE America; (2) was president and chief executive officer of Fostoria-Braude Corporation ("Fostoria-Braude"), a venture capital firm which purchased struggling businesses; and (3) operated a law firm under the name of Theodore Garver Co., L.P.A., which represented RE America. Schroder and Garver orally discussed the proposed acquisition and exchanged through their organizations a series of letters and telefaxes concerning the deal. No single document recited the parties' agreement or their relative contributions toward the acquisition of Gage. RE America, Inc. contributed a total of $600,000 toward the October 13, 1989, acquisition of Gage and its subsequent operation. Neither Fostoria-Braude nor - 3 - Garver made a matching contribution of capital. However, Garver guaranteed $200,000 of Gage debt and, with Edwin Braude, contributed $25,000 toward the $425,000 auction purchase price of Gage. Fostoria-Braude was listed as the sole owner of all the shares of Gage stock after the acquisition. Since RE America was owned by Schroder, a foreign national, RE America could not lawfully own or control Gage, a defense contractor. At the request of RE America, Fostoria-Braude subsequently executed a $600,000 demand promissory note, drafted by Garver, payable to RE America dated December 31, 1989. The relationship of the parties progressively deteriorated over the course of the following year and culminated in a series of litigation. On March 28, 1991, RE America filed a complaint against Fostoria-Braude on the $600,000 promissory note in common pleas court Case No. CV-208234 (the "Promissory Note Case"). Fostoria- Braude filed an answer to the complaint and sought to avoid paying the promissory note. During the course of the Promissory Note Case, Fostoria-Braude submitted an affidavit by Garver dated May 13, 1991, stating that the note was never intended to be a negotiable instrument or to be repaid in cash. Garver also stated that after the execution of the note RE America agreed to accept half the stock of Gage in lieu of payment on the note. The trial court ultimately granted summary judgment for RE America against Fostoria-Braude on the promissory note in an order journalized July 22, 1992 (the "Promissory Note Judgment"). - 4 - The record demonstrates that RE America filed two additional actions arising out of this transaction against (1) Garver, individually, and (2) his law firm, Theodore Garver Co., L.P.A. for (1) legal malpractice, (2) breach of contract, and (3) fraud. The first case, No. CV-229306, filed on March 23, 1992, was dismissed without prejudice by the trial court on January 13, 1993, after RE America failed to attend a scheduled pretrial. RE America filed the second case, No. CV-245854, which gives rise to the consolidated appeals sub judice, six days thereafter. In this second case, Garver and his law firm filed a motion for summary judgment arguing that RE America's (1) legal malpractice claim was barred by the one-year statute of limitations, (2) breach of contract claim was precluded by the prior litigation in the Promissory Note Case, and (3) fraud claim was not supported by the evidence. The trial court denied the motion for summary judgment following RE America's brief in opposition in an order journalized April 14, 1993. The case thereafter proceeded to a jury trial commencing on December 14, 1993. RE America presented testimony from the following five witnesses, viz.: (1) Henrik Schroder, principal owner and chairman of the board of RE America; (2) Dennis Vezzani, an independent CPA who audited RE America; (3) James McHale, secretary treasurer of RE America; (4) Andrew Bosworth, president of RE America; and (5) attorney Robert Malone. Following the denial of his motion for directed verdict, Garver and his law firm presented testimony from the following - 5 - three witnesses, viz.: (1) attorney Stanley Stein, (2) Edwin Braude, and (3) Garver. RE America thereafter presented rebuttal testimony by McHale. The trial court denied Garver's and his law firm's renewed motion for directed verdict and submitted the case to the jury on all three claims following closing arguments and its instructions. The jury returned a verdict for RE America on its legal malpractice and breach of contract claims and against RE America on its fraud claim. The jury awarded $600,000 in damages. The trial court entered judgment for RE America on the jury verdict in orders journalized on December 23, 1993, and January 10, 1994. The record demonstrates that each of the parties filed post- trial motions in the trial court. The motion by Garver and his law firm sought to set aside the jury verdict, whereas RE America's motion sought an award of prejudgment interest and costs. The trial court denied the motion to set aside the jury verdict and granted RE America $215,178 in prejudgment interest. Garver and his law firm appeal from the $600,000 judgment on the jury verdict against them in Court of Appeals Case No. 66808 and from the subsequent award of $215,178 prejudgment interest in Court of Appeals Case No. 66947. This court of appeals consolidated the two appeals for briefing and disposition in an order journalized March 8, 1994. I. - 6 - Garver's and his law firm's first assignment of error in Court of Appeals Case No. 66808 follows: THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT FOR THE PLAINTIFF ON COUNT ONE OF THE COMPLAINT WHEN THE CLAIM OF LEGAL MALPRACTICE WAS BARRED BY THE STATUTE OF LIMITATIONS. This assignment of error lacks merit. Garver and his law firm argue the trial court improperly found that RE America's claim for legal malpractice, filed for the first time on March 23, 1992, was not barred by the one-year statute of limitations set forth in R.C. 2305.11(A). They argue the statute of limitations commenced more than one year earlier on March 14, 1991, when different counsel for RE America sent a letter to Garver at Fostoria-Braude. Based on our review of the record, this claim lacks merit. The Ohio Supreme Court has summarized the law governing commencement of the statute of limitations in legal malpractice actions in Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio St.3d 54, as follows: Under 2305.11(A), an action for legal malpractice accrues and the statute of limitations begins to run when there is a cognizable event whereby the client discovers or should have discovered that his injury was related to his attorney's act or non-act and the client is put on notice of a need to pursue his possible remedies against the attorney or when the attorney-client relationship for that particular transaction or undertaking terminates, whichever occurs later. In other words, the statute of limitations does not begin to run until the later of the following two events, viz.: (1) the termination of the attorney-client relationship, or (2) the - 7 - occurrence of a "cognizable event." Garver and his law firm argue the March 14, 1991 letter, and a similar stipulation at trial, satisfy both of these requirements. However, Garver's and his law firm's argument that their attorney-client relationship with RE America terminated on March 14, 1991, ignores the express termination letter sent by RE America to "Theodore M. Garver, Esquire" on March 26, 1991. This evidence, whether reviewed in the context of Garver and his law firm's pre-trial motion for summary judgment, their subsequent motion for directed verdict at trial, or their post-trial motion to vacate the jury verdict, must be viewed in the light most favorable to RE America. The March 26, 1991, letter expressly and unambiguously directed Garver to discontinue all legal work for RE America, terminated him as an officer of RE America, and requested his resignation as a director of RE America and as trustee of an affiliated entity. As a result, the record contains sufficient evidence to find that the statute of limitations did not begin to run until March 26, 1991, and that RE America's legal malpractice claim, therefore, filed on March 23, 1992, was timely. See Harrell v. Crystal (1992), 81 Ohio App.3d 515, 526-527. The prior March 14, 1991, letter was addressed to "Theodore M. Garver, Esq. Fostoria-Braude Corporation" and did not address the termination of Garver's or his law firm's services as attorneys for RE America. Under the circumstances, the jury could properly find that the March 14, 1991, letter was addressed - 8 - to Garver in his capacity at Fostoria-Braude, and not in his capacity as attorney for RE America. The fact that the March 14, 1991, letter and the parties' stipulation at trial state that RE America retained different counsel for advice concerning the Gage transaction does not unambiguously indicate that Garver or his law firm were terminated by RE America at that time. The same standard for evaluating this evidence applies regardless of whether Garver and his law firm base their arguments on their pretrial motion for summary judgment, motion for directed verdict at trial, or post-trial motion to set aside the jury verdict. Hinkle v. Cornwell Quality Tool Co. (1987), 40 Ohio App.3d 162, 165. Based on our review of the record, Garver and his law firm failed to establish that their attorney-client relationship with RE America terminated more than one year before RE America's March 23, 1992, filing of the legal malpractice claim. We further note that, because this issue was properly submitted to the jury, any claim of error concerning the denial of their pretrial motion for summary judgment was rendered moot or harmless. Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150, 156. Under the circumstances, because the statute of limitations does not commence until the latter of the dates the attorney-client relationship was terminated or a cognizable event occurred, this action was timely filed and we need not address Garver and his law firm's remaining claims concerning the cognizable event. - 9 - Accordingly, Garver's and his law firm's first assignment of error in Court of Appeals Case No. 66808 is overruled. Garver's second assignment of error in Court of Appeals Case No. 66808 follows: THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT FOR THE PLAINTIFF ON COUNT TWO OF THE COMPLAINT WHEN THE BREACH OF CONTRACT CLAIM WAS BARRED BY THE DOCTRINE OF RES JUDICATA. This second assignment of error also lacks merit. Garver argues that RE America's breach of contract claim against him for failure to contribute $600,000 toward the purchase of Gage in this case was barred by the prior $600,000 Promissory Note Judgment against Fostoria-Braude. Garver argues the trial court improperly refused to apply the doctrines of res judicata and collateral estoppel to preclude RE America's breach of contract claim in this case. Based on our review of the record, Garver has failed to demonstrate any error. It is well established that the burden of proving either of these defenses is on the party asserting the defense. Hughes v. Minor (1984), 15 Ohio App.3d 141, 142-143 (res judicata); Andersen v. Lorain Cty. Title Co. (1993), 88 Ohio App.3d 367 (collateral estoppel). Both parties cite Whitehead v. General Tel. Co. (1969), 20 Ohio St.2d 108, 112, which generally summarized the elements of these two defenses, as follows: The doctrine of res judicata involves two basic concepts. [Citation omitted.] First, it refers to the effect a judgment in a prior action has in a second action based upon the same cause of action. The Restatement of the Law, Judgments, Section 45 uses the terms 'merger' and 'bar.' If the plaintiff in the prior action is successful, the entire cause of action - 10 - is 'merged' in the judgment. The merger means that a successful plaintiff cannot recover again on the same cause of action, although he may maintain an action to enforce the judgment. If the defendant is successful in the prior action, the plaintiff is 'barred' from suing, in a subsequent action, on the same cause of action. The bar aspect of the doctrine of res judicata is sometimes called 'estoppel by judgment.' [Citation omitted.] The second aspect of the doctrine of res judicata is 'collateral estoppel.' While the merger and bar aspects of res judicata have the effect of precluding a plaintiff from relitigating the same cause of action against the same defendant, the collateral estoppel aspect precludes the relitigation, in a second action, of an issue that has been actually and necessarily litigated and determined in a prior action which was based on a different cause of action. [Citation omitted.] In short, under the rule of collateral estoppel, even where the cause of action is different in a subsequent suit, a judgment in a prior suit may nevertheless affect the outcome of the second suit. Garver has failed to satisfy his burden of demonstrating the Promissory Note Case against Fostoria-Braude involves the same cause of action and same parties to preclude RE America's breach of contract claim against Garver individually in this case. The initial case involved a cause of action against Fostoria-Braude to recover on a promissory note, whereas this subsequent action involved claims of fraud, legal malpractice, and breach of a contract to contribute capital to purchase Gage. The Ninth District Court of Appeals has specifically held in a related context that a foreclosure action against a corporation does not constitute res judicata and bar a subsequent action by a creditor to enforce a promise against an officer of the corporation to obtain additional financing. Hughes v. Minor, supra. - 11 - Garver has likewise failed to demonstrate that his promise to contribute personally toward funding the purchase of Gage was "an issue that was actually and necessarily litigated and determined" in the prior Promissory Note Case against Fostoria- Braude. The record demonstrates the Promissory Note Case involved Fostoria-Braude's promise to pay RE America, and did not involve Garver's personal promises, if any, to RE America concerning the acquisition of Gage. The doctrine of collateral estoppel does not bar RE America's breach of contract claim against Garver individually because his promises to RE America were not an issue in the prior action by RE America to collect on the promissory note issued by Fostoria-Braude. See Interstate Steel Erectors, Inc. v. H & L Wolff, Inc. (1984), 17 Ohio App.3d 173, 174-175. Accordingly, Garver's second assignment of error in Court of Appeals Case No. 66808 is overruled. II. Garver's and his law firm's sole assignment of error in Court of Appeals Case No. 66947 follows: THE TRIAL COURT ERRED WHEN IT AWARDED PREJUDGMENT INTEREST WHERE THE UNDERLYING JUDGMENTS WERE ERRONEOUS. This assignment of error lacks merit. Appellant's remaining one-paragraph assignment of error argues the award of prejudgment interest should be reversed because the trial court improperly entered judgment against them on RE America's legal malpractice and breach of contract claims. - 12 - Garver and his law firm merely incorporate the arguments made above under the two assignments of error in Court of Appeals Case No. 66808. However, since those assignments of error lack merit and appellants have not offered any other reason to challenge the award of prejudgment interest, we reject this assignment of error for the reasons set forth above. Neither this three-sentence third assignment of error, nor the above first and second assignments of error raise any of the issues discussed in the concurring and dissenting opinion. The Ohio Supreme Court has generally directed appellate courts not to decide appeals on such unbriefed issues without notice to the parties and an opportunity to be heard. State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168. Even if this court were sua sponte to consider these issues for the first time on appeal, reviewing courts are not authorized to speculate on the basis for a damage award in a general jury verdict. Nott v. Homan (1992), 84 Ohio App.3d 372, 378. The record does not clearly demonstrate error, let alone plain error, concerning the $215,178 prejudgment interest award or underlying $600,000 breach of contract damage judgment. Accordingly, Garver's and his law firm's sole assignment of error in Court of Appeals Case No. 66947 is overruled. The judgments of the trial court are hereby affirmed. - 13 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas 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. DAVID T. MATIA, P.J., CONCURS; PORTER, J., CONCURS IN PART AND DISSENTS IN PART (See separate opinion). DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and the time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66808/66947 : RE AMERICA, INC., FKA : HENRIK SCHRODER, INC. : : : C O N C U R R I N G Plaintiff-Appellee : : A N D vs. : : D I S S E N T I N G THEODORE M. GARVER, ET AL. : : O P I N I O N : Defendants-Appellants : DATE: FEBRUARY 8, 1996 JAMES M. PORTER, J., CONCURRING IN PART AND DISSENTING IN PART: I find it necessary to concur in part and dissent in part from the majority opinion for the reasons set forth below. Simply stated, the parties Schroder/RE America and Garver agreed to contribute $600,000 each to the acquisition of A.A. Gage with funds left over for operating capital. Each party was to have 50% ownership. RE America kept its part of the bargain and contributed $600,000; in return therefor it received and accepted a promissory note by Fostoria-Braude Corporation which held 100% of the stock of A.A. Gage. This was the $600,000 note on which RE America recovered summary judgment in the action against Fostoria-Braude (CV 208234). RE America has been unable - 2 - to realize on that judgment because of Fostoria-Braude's bankruptcy. The instant action (CV 245854) was brought by RE America against Garver to recover for his legal malpractice, breach of contract and/or fraud in not making his $600,000 contribution to the acquisition and operation of A.A. Gage as promised. At trial, RE America's damage exhibit claimed $1,102,829 in damages, comprised of its original $600,000 cash contribution, out-of- pocket expenses, attorney fees and interest. (PX GG). Plaintiff's damage expert identified the original cash shown on PX GG as the "$600,000 that was given to Fostoria-Braude Corporation by the RE companies." (Tr. 294). The jury found for Garver on the fraud claim, but found for RE America on the legal malpractice and breach of contract claims and awarded $600,000 in damages. In the absence of special interrogatories, we cannot determine whether the $600,000 damage award was for breach of contract or on the malpractice claim, or both. The court awarded $215,178 in prejudgment interest under R.C. 1343.03(A). Assuming Garver breached his agreement to contribute $600,000 to the A.A. Gage venture, as the jury found, the issue is what injury RE America suffered by reason of the breach. For a contract measure of damages, it is elementary that RE America was entitled to be put in the same position it would have been in as if Garver made the promised $600,000 contribution to the A.A. Gage venture. - 3 - Generally speaking, a party whose contract has been breached is not entitled to more than he would have been entitled to, had the contract not been breached, and he is entitled so far as it is possible to be done by a monetary award, to be placed in the position he would have been in had the contract been performed. 30 O. Jur.3d Damages, 25 at 33. See, also, Homes by Calkins, Inc. v. Fisher (1993), 92 Ohio App.3d 262, 270; S & D Mech. Contrs. v. Enting Water Cond. (1991), 71 Ohio App.3d 228, 239; Livi Steel, Inc. v. Bank One (1989), 65 Ohio App.3d 581, 589; The Way International v. Ohio Center (1982), 3 Ohio App.3d 431, 452. I agree with appellant Garver that for breach of contract purposes RE America was not entitled to recover its original $600,000 investment twice, once on a judgment against Fostoria- Braude and a second time from Garver. RE America made no claim for rescission or restitution in this case. The trial court instructed the jury: "Plaintiff, RE America claims that the defendant, Theodore M. Garver, breached his agreement to make a $600,000 matching cash contribution toward the acquisition of A.A. Gage." (Tr. 976). Nor was RE America entitled to recover the $600,000 that Garver failed to invest. It should only have recovered as contract damages whatever benefits it would have derived had Garver fulfilled his part of the bargain. Put another way, there was no evidence that had Garver made his $600,000 contribution that RE America would have recaptured its $600,000 investment or other amount. It cannot be said that a - 4 - refund of RE America's $600,000 investment was the proper measure of contract damages in this case against Garver. However, the jury also found that RE America prevailed on its legal malpractice claim against Garver. There was sufficient evidence presented that Garver committed legal malpractice by breaching his fiduciary duties owed to plaintiff in counselling and representing RE America and Schroder in the A.A. Gage acquisition. Plaintiff's expert, Robert W. Malone, an attorney who has represented clients in over 100 acquisitions, testified that there was an attorney-client relationship between Garver and RE America in the AA Gage transaction; and that Garver breached the standard of ordinary care and his fiduciary obligations in handling the matter. Malone testified that Garver should have known that his personal investment with his client created a potential conflict of interest; that Garver did not adequately inform RE America regarding the nature of the investment (that plaintiff would be putting up most of the capital and Garver only contributing "sweat" equity); that Garver did not assure that his client received evidence of the investment in the acquired company; that Garver did not disclose that a Danish national could not own stock in a defense contractor like AA Gage; that Garver prepared a $600,000 non-interest bearing note from Fostoria-Braude to RE America without a cognovit provision and without securing the - 5 - note with any collateral; and that Garver then claimed the note was non-negotiable and never intended to be paid in cash, all contrary to his client's interest. According to this expert, based on Garver's various omissions and misrepresentations, his performance did not meet the standard of care required of an attorney under the circumstances and he did not act in the best interests of his client. Malone further testified that, given the evidence of defendant's malpractice, RE America was injured by defendant in the amount of $600,000 because if RE America had been adequately represented it would never have invested in the acquisition and lost $600,000 and suffered other incidental damages. I find, therefore, that there was sufficient evidence to support the jury's conclusion that Garver committed legal malpractice which injured RE America in the sum of $600,000. Under the application of the "two-issue" rule, it is possible to allow the $600,000 judgment to stand as an award on the legal malpractice claim, but not on the contract claim. As stated in 5 O. Jur.3d Appellate Review, 614 at 226: It is well settled in Ohio that where the jury returns a general verdict in a case involving two or more issues, a finding upon any one of which in favor of the successful party would entitle him to judgment, if the record does not disclose affirmatively by answers to interrogatories or otherwise upon which issue such verdict was based, the judgment will not be reversed if no error appears as to any one or more of them although there may be error as to other issues. This rule has been given effect for about a century and is the subject of discussion, and - 6 - application as well, in dozens of cases. This is known in jurisprudence as the "two-issue" rule and is a rule of policy designed to simplify the work of trial courts and to limit the range of proceedings on review. The Rule's application was most recently recognized by this Court in Springer v. Emerson Elec. (Sept. 14, 1995), Cuyahoga App. No. 67705, unreported at 5. See, also, Gallagher v. Cooper (1984), 14 Ohio St.3d 41, 42; McCarthy v. Kasperak (1981), 3 Ohio App.3d 206, 208. I find the rule applicable in the circumstances of this case and that the $600,000 judgment can stand on the malpractice claim. However, even though there was sufficient evidence to support the claim of legal malpractice and the $600,000 in damages awarded by the jury, the court erred in awarding prejudgment interest on the verdict under R.C. 1343.03(A). The lower court's journal entry awarding interest states as follows: Hearing held 2/3/94. Plaintiff's 12/29/93 motion for prejudgment interest and costs is granted in part, denied in part. The prejudgment interest is granted pursuant to R.C. 1343.03(A) from 5/23/90 (when the $600,000 was clearly due and payable) and in the amount of $215,178. The costs sought by plaintiff are not taxable. (Emphasis added). Contrary to the trial court's finding, the $600,000 in damages for legal malpractice was not "clearly due and payable" on May 23, 1990. That was the date Schroder wrote a letter to Garver stating: "I therefore would like to see an offer from you giving me my cash back with market interest plus a bonus for the risk I have carried ***." (PX Q). However, as the previous discussion - 7 - discloses, RE America was only entitled to damages for Garver's malpractice not repayment of the original cash it invested in A.A. Gage, for which it accepted the Fostoria-Braude note. Prejudgment interest is available under R.C. 1343.03(A) as follows: *** when money becomes due and payable upon any bond, bill, note, or other instrument of writing, upon any book account, upon any settlement between parties, upon all verbal contracts entered into, and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of tortious conduct or a contract or other transaction, the creditor is entitled to interest at the rate of ten per cent per annum, and no more ***. (Emphasis added). On its face, prejudgment interest is not available under this statute on a tort claim until it is reduced to judgment. RE America conceded in its motion papers below that a cause of action for legal malpractice is a tort. "Although Garver doesn't seem to understand this very basic principle from first year law school, legal malpractice, sometimes referred to as professional negligence is a well recognized tort." (Plaintiff RE America, Inc.'s Reply Brief in Support of its Motion for Prejudgment Interest and Costs at p. 5). Therefore, R.C. 1343.03(A) does not authorize prejudgment interest on the plaintiff's malpractice judgment. In any event, RE America has already sought the same prejudgment interest from the jury on its compensatory damage claims. There is a recognized common law claim to prejudgment - 8 - interest as part of compensatory damages in order to make the plaintiff whole in tort actions. See Moskowitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 656-57. Of the total damages claimed by RE America ($1,102,829), $332,453 of that sum was interest at 10% per year on its underlying damage items as set forth in PX GG. So, RE America already sought interest as part of its compensatory damage claim which was submitted to the jury. (Tr. 899). Either the jury rejected the request or awarded interest as part of the $600,000 verdict. Without interrogatories to test the damage award, we must assume the jury appropriately dealt with the plaintiff's interest claim. RE America cannot recover again for an interest award it may have already received from the jury or which the jury declined to award as compensatory damages. Accordingly, I would affirm the $600,000 judgment on the legal .