COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72433 MARY PAWUL : : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : KENNETH PAWUL : OPINION : Defendant-Appellee : Date of Announcement of Decision: MARCH 19, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 266757 Judgment: Affirmed in part; reversed in part Date of Journalization: Appearances: For Plaintiff-Appellant: For Defendant-Appellee: ALAN I. GOODMAN, ESQ. JOHN V. HEUTSCHE, ESQ. 620 Terminal Tower 300 Courthouse Square 50 Public Square 310 Lakeside Avenue Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- JAMES M. PORTER, J.: Plaintiff-appellant Mary Pawul appeals from a decision of the Common Pleas Court denying attorney fees and prejudgment interest arising out of plaintiff's malicious prosecution action against her former husband, defendant-appellee Kenneth Pawul. We reverse in part and affirm in part for the reasons hereinafter stated. This case arose from more than fifty episodes when Mary Pawul attempted to visit her children at the home of her estranged husband in Parma. Each of these incidents became the subject of a separate police report dated and signed by Mrs. Pawul. On January 26, 1993, although she had been ordered by Parma police to report to the station before attempting to visit her children, Mrs. Pawul went directly to Kenneth's residence; he called the police when she arrived. As a result, the Parma police issued a complaint against her for trespass in violation of a police order. At a pretrial conference, the criminal proceedings were dismissed after plaintiff signed a release discharging the Parma authorities from any liability. Plaintiff brought a civil malicious prosecution suit against the defendant husband. The parties submitted the claim to binding arbitration pursuant to Loc. C.P. Rules 21.2 and 29. The arbitration panel awarded the plaintiff $2,200 in compensatory damages and $2,200 as punitive damages. The arbitration panel declined to address plaintiff's claim for attorney fees and prejudgment interest, referring those claims back to the trial court. The trial court denied the claims without a hearing. -3- On appeal to this Court, we held that the trial court abused its discretion in denying plaintiff's motion for attorney fees or prejudgment interest without holding a hearing. This Court remanded the matter for the court to hold an evidentiary hearing on plaintiff's motions. Pawul v. Pawul (1996), 113 Ohio App.3d 548 (Pawul I). On remand, the trial court held a hearing on February 20, 1997, at which the parties stated their positions and plaintiff's counsel opined about the reasonableness and necessity for his legal services in support of his claim for attorney fees and a showing for prejudgment interest. The trial court requested proposed findings of fact and conclusions of law from the respective parties. Following the filing of those, on April 1, 1997, the trial court entered a final order stating as follows: Having presided over an Evidentiary Hearing and reviewed the Findings of Fact and Conclusions of Law submitted by the Parties, this Court finds that plaintiff is not entitled to Pre-judgment interest and Attorney Fees. From the order denying attorney fees and prejudgment interest, plaintiff has timely appealed. We will address plaintiff's assignments of error in the order asserted. I. THE TRIAL COURT ERRED IN FAILING TO GRANT ATTORNEY FEES. Plaintiff argues that this Court mandated in Pawul I that the trial court make an award of attorney fees and that the hearing that the court ordered was not for purposes of determining if fees should be paid but rather the amount that should be paid. (Aplt's -4- Brf. at 3). In other words, plaintiff contends the law of the case by this Court in Pawul I compels an award of attorney fees. Defendant's argument advances on two fronts. First, he renews the argument previously made in this Court in Pawul I that all claims were submitted to binding arbitration, that the arbitrators made no award of attorney fees or prejudgment interest and that this Court had no jurisdiction to order consideration by the trial court of attorney fees or prejudgment interest. Secondly, defendant argues that the trial court did not abuse its discretion in denying an award of attorney fees or prejudgment interest. We have closely reviewed this Court's decision in Pawul I. Although there is some language suggesting that plaintiff is entitled to an attorney's fee award, the court nevertheless concluded its opinion by saying there may be grounds for an award of prejudgment interest and/or attorney fees. In this instance, the trial court abused its discretion in failing to hold an evidentiary hearing on plaintiff-appellant's motion. Pawul I. We understand this to be a remand for the trial court to exercise its discretion in determining whether to award attorney fees. In short, the law of the case doctrine of Pawul I did not dictate an award of attorney fees or prejudgment interest. Addressing the defendant's points, we conclude that the doctrine of res judicata (issue preclusion) bars this Court's reconsideration of the arbitration issue, i.e., whether the failure of the arbitrators to award attorney fees or prejudgment interest prevents plaintiff's recovery. This very issue was presented by -5- defendant on his previous appeal in Pawul I and this Court remanded the matter to the trial court for a hearing on attorney fees and prejudgment interest. This Court would not have ruled as it did if it believed the lower court did not have jurisdiction to address the subject. We will not revisit this issue. After a careful review of the record, we find that the trial court abused its discretion in not awarding any attorney fees to the plaintiff despite the award of punitive damages. We are compelled to this conclusion by the Supreme Court's guidelines in Digital & Analog Design Corp. v. N. Supply Co. (1992), 63 Ohio St.3d 657, 664: Although the general rule is that reasonable attorney fees may be awarded in an action where punitive damages have also been awarded, Columbus Finance, Inc. v. Howard (1975), 42 Ohio St.2d 178, 183, 71 O.O.2d 174, 177, 327 N.E.2d 654,658, a trial court may decline to award any amount of attorney fees if the defendant upon whom such fees will be imposed successfully rebuts the presumption that reasonable fees should be awarded. Thus a trial court may consider whether the punitive damages awarded are adequate both to compensate the plaintiff for his attorney fees and to fulfill the punitive and deterrent purpose of the exemplary damages awarded. The award of attorney fees is therefore not automatic once punitive damages are awarded. The trial court is given a degree of discretion in determining whether they should be awarded. However, as the Digital opinion makes clear, once there is an award of punitive damages, there is a presumption in favor of the attorney fee award unless the defendant rebuts it. We agree with plaintiff that defendant offered no evidence to rebut the -6- presumption or explanation why attorney fees should not be awarded. Since the claimed amount of attorney fees is $3,331.50, the punitive damage award of $2,200 is not adequate both to compensate the plaintiff for [her] attorney fees and to fulfill the punitive and deterrent purpose of the exemplary damage awarded. See Digital, supra. Accordingly, we conclude the trial court abused its discretion in failing to award attorney fees in this instance since the evidence presented at the hearing failed to rebut the presumption in favor of awarding attorney fees and the punitive damages award is plainly not adequate per Digital, supra. Accordingly, this assignment is well taken and we again remand the matter for the trial court to now award attorney fees in this case. I. THE TRIAL COURT ERRED IN FAILING TO AWARD PREJUDGMENT INTEREST. We have carefully reviewed the record and the hearing transcript and see no reason to disturb the trial court's denial of prejudgment interest. The principles that govern our review are set forth as follows in Marous v. Ohio Bell Tel. Co. (1992), 80 Ohio App.3d 306, 308-09: The decision as to whether a party's settlement efforts indicate good faith is generally within the sound discretion of the trial court *** [and] [t]his court will not overturn a finding on this issue unless the court's actions indicate an abuse of discretion. Kalain v. Smith (1986), 25 Ohio St.3d 157, 159, 25 OBR 201, 203, 495 N.E.2d 572, 574. An abuse of discretion connotes more than an error of law or judgment; it implies an unreasonable, arbitrary or unconscionable attitude. Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19, 552 N.E.2d 202. -7- A party has not `failed to make a good faith effort to settle' under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. If a party has a good faith, objectively reasonable belief that he has no liability, he need not make a monetary settlement offer. Kalain supra, at syllabus (holding award of prejudgment interest an abuse of discretion). We note that the Ohio Supreme Court more recently addressed the issue of whether a failure to make a good faith effort to settle exists by stating as follows: Furthermore, a lack of good faith means more than poor judgment or negligence; rather, it imports a dishonest purpose, conscious wrongdoing or ill will in the nature of fraud. Ware v. Richey (1983), 14 Ohio App.3d 3, 9, 14 OBR 6, 12, 469 N.E.2d 899, 905. Villella v. Waiken Motors, Inc. (1989), 45 Ohio St.3d 36, 42, 543 N.E.2d 464, 470. We will not second guess the trial court's judgment in denying prejudgment interest in the specific circumstances of this case. Assignment of Error II is overruled. Given our disposition of Assignment of Error I, this case is reversed in part and remanded to the trial court for determination of reasonable attorney fees to appellant. We also direct the trial court to fix reasonable attorney fees for appellant's efforts expended on both appeals in this case. Judgment affirmed in part; reversed in part and remanded for further proceedings in accordance with this opinion. -8- It is ordered that appellee and appellant shall pay their respective costs herein taxes. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas 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. BLACKMON, A.J., and O'DONNELL, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .