COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72936 BERNICE DAVIDSON WILLIAMS, Plaintiff-appellee JOURNAL ENTRY vs. AND ESQUE CRAWFORD M.D., OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-290813 JUDGMENT: Affirmed in Part and Reversed in Part. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: PAUL W. FLOWERS 1406 West Sixth Street Suite 400 Cleveland, Ohio 44113 For defendant-appellant: ANDREW L. JOHNSON 733 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 -2- KARPINSKI, J.: Defendant-appellant, Esque Crawford, M.D., appeals from the judgment of the trial court which awarded plaintiff, Bernice Davidson Williams, $280,000 in compensatory damages, $15,285 in attorney's fees, as well as prejudgment interest on $30,000 of the compensatory damages. Appellant's arguments concern the actions of the trial court after the jury rendered its verdict. On appeal, appellant challenges the damages as well as the attorney fees and the prejudgment interest. For the reasons that follow, we find the trial court erred by awarding attorney fees; however, we affirm the remainder of the trial court's award. Appellant provided prenatal care to plaintiff when she was pregnant. However, because appellant was out of town, a second doctor, Dr. Louis Hammond, delivered her baby. Two days later, the baby died from untreated gestational diabetes. Plaintiff's counsel wrote to appellant and requested her entire chart. After reviewing the medical file, plaintiff's attorneys decided to sue only Dr. Hammond. The complaint sub judice alleges that later, during discovery for the lawsuit, plaintiff's counsel learned that appellant either withheld records or altered plaintiff's medical chart. Specifically, appellant produced three documents, two lab requisition forms and an ultrasound request, which were in plaintiff's file but were not provided in response to the previous request for discovery. Plaintiff subsequently dismissed her suit and refiled against both Dr. Hammond and appellant. The trial court dismissed the action against appellant because the case was -3- filed outside the statute of limitations. The case proceeded to trial against Dr. Hammond, whose defense was that appellant's negligent prenatal care caused the death of plaintiff's baby. The jury returned a verdict in favor of Dr. Hammond.. After this verdict, plaintiff filed the instant case against appellant for one million dollars in compensatory damages and $500,000 in punitive. The complaint alleged that appellant's actions of materially altering plaintiff's medical chart and, fraudulently or negligently failing to turn over information from plaintiff's file tortiously interfered with plaintiff's litigation against him. The jury returned a general verdict in favor of plaintiff. According to the Interrogatories to the Jury, the jury awarded plaintiff $630,000 on the negligence claim, $30,000 on the fraud claim, and $600,000 on the punitive damages claim. In a journal entry signed January 31, 1997, the trial court expressly found that the jury award was not the result of passion or prejudice, but determined that there was a duplicate finding of damages and that the complaint had asked for only $500,000 in punitive damages. The trial court, without differentiating between the fraud and negligence claims, reduced the award to $30,000 compensatory damages and $500,000 punitive damages resulting in a total award of $530,000. On the same day, the trial judge also signed two separate entries granting plaintiff attorney fees for $15,285 and prejudgment interest on the sum of $30,000 from June 9, 1995 at the rate of ten per cent. -4- On February 14, 1997, appellant then filed a motion for remittitur or a new trial. Specifically, he argued that the jury award was excessive and improperly based on passion and prejudice. Moreover, appellant's counsel argued that appellant was insolvent. At the hearing on the motions, the trial judge agreed that the award was excessive. On the condition that plaintiff agree to the remittitur, that is, reducing the award by $250,000, the judge denied the motion for a new trial. Plaintiff agreed and the trial court journalized a final award of $280,000 in compensatory damages. In his appeal, appellant specifically challenges the award of $280,000, the prejudgment interest on the $30,000, and the award of attorney fees. Appellant raises four assignments of error. The first two will be discussed together: I. THE TRIAL COURT ERRED BY AWARDING A JUDGMENT FOR $280,000.00 TO APPELLEE FOR HER COMPENSATORY DAMAGES. II. THE JUDGMENT RENDERED IN FAVOR OF APPELLEE FOR $280,000.00 TO APPELLEE FOR HER COMPENSATORY DAMAGES WAS AGAINST THE WEIGHT OF THE EVIDENCE. In these two assignments appellant challenges the total award of $280,000, which resulted from his motion for remittitur. In his motion for remittitur or new trial, appellant argued that the total award of $530,000 ($30,000 compensatory and $500,000 punitive) was excessive. The trial court agreed and obtained plaintiff's consent to reduce the total amount to $280,000, which the court said represented compensatory damages. Appellant now objects that the compensatory award was technically raised from $30,000 to $280,000. -5- These two assignments lack merit. The trial court granted defendant's motion for remittitur when it reduced a total award of $530,000 to $280,000 and, at the same time, denied his motion for a new trial. Initially, we note, even though his motion was granted, defendant still has standing to appeal and argue that the amount of remittitur entered by the trial court was insufficient. Allstate Contractors, Inc. v. Marriott Corp. (Ill.App. 1995), 652 N.E.2d 1113; 273 Ill.App.3d 820. However, appellant did not raise any objection when the trial judge discussed and defined the amount of the proposed remittitur in open court. More importantly, however, appellant has not provided a full transcript of the trial below. Without this transcript this court cannot determine whether the jury award was excessive or based on passion or prejudice, as appellant claims, or whether the trial court abused its discretion in denying the motion for a new trial. We clearly cannot consider the weight of the evidence since that evidence is not in the record provided to this court. All that appellant provides by way of a transcript is the January 18, 1997 hearing on the motions for prejudgment interest and attorney fees and the hearing on the remittitur on June 10, 1997. In support of his claim that the award of $280,000 compensatory damages is excessive, appellant observes that at the previous stage the judge had reduced the compensatory damages to $30,000. In addition he notes that the judge characterized the $280,000 as compensatory damages only after appellee expressed concern over collecting the amount from an insurance company. -6- Such a post hoc, ergo propter hoc analysis is unpersuasive. Nor will a few comments suffice in lieu of a transcript of the trial. The underlying question is whether the evidence supports the award. Without a transcript that question cannot be addressed. Moreover, we note a number of apparent contradictions in this case--contradictions that neither party recorded any objections to at the time. The interrogatories to the jury indicate the jury awarded the following: $ 630,000 on the negligence claim $ 30,000 on the fraud claim $ 600,000 on the punitive damages This would be a total of $660,000 in compensatory damages, in addition to $600,000 in punitive damages, for a total award of $1,260,000. At oral argument and in his brief, appellant's counsel claimed the jury awarded only a total of $630,000. The original journal entry reads as follows: The within action was submitted for a decision by the jury under two theories or propositions of law. The one was negligence and the issues on the negligence case were submitted by way of interrogatories under the Comparative Negligence Law of Ohio. The other basis was fraud. The jury made findings in favor of the Plaintiff and against the Defendant under both theories and assessed the compensatory damages under fraud at $30,000 and punitive damages in the sum of $600,000.00. The jury further returned answers to the interrogatories under the Comparative Negligence Law basically finding that the Plaintiff was entitled to recovery of $600,000.00 against the Defendant. The actions of the jury indicated that there was a duplicate finding of damages; there may be only one recovery for damages regardless of the number of causes of action asking for recovery. Punitive damages also may be allowed under the fraud cause of action. It asks for $500,000.00 for punitive damages and is the total allowable. Plaintiff is entitled to a recovery of -7- $30,000.00 for compensatory damages and $500,000.00 for punitive damages. Judgment is therefore hereby rendered in favor of the Plaintiff and against the Defendant for the amount of $530,000.00 together will [sic] all of the costs hereof. The judge relates the jury verdict for the negligence claim as $600,000 although the jury interrogatory lists it as $630,000. This appears to be an error that no one challenged. At this point the judge was not considering whether the damages were excessive. His concern was (1) that the damages were duplicate recoveries and (2) that the punitive damages allowable were only $500,000 because that was all the complaint asked for. So we are left with the problem of understanding how a jury award of $630,000 and $30,000 could be reduced to $30,000 solely on the basis of duplicate recovery. Again, there is nothing in the record before us indicating anyone objected on this point. It is not until the hearing on the remittitur that the court considered whether the damages were excessive. And when the judge decided to reduce the award by $250,000, the court never recounted the breakdown in the earlier award. (Tr. 32.) At the request of appellee, the judge clarified that the entire award of $280,000 was for compensatory damages. Later in his journal entry he added that this award was on the negligence claim. Because of the innate confusion both in the first court order and between that order and the jury interrogatories and because this original order was subsequently vacated, we cannot assume it accurately describes how the $280,000 was originally divided. Even the attorneys disagree as to what the jury award was (See January -8- 15, 1997 Tr. 38-39), although the interrogatories are clear enough on their face.1 From those interrogatories, we may conclude that a jury award of over one million dollars including $660,000 in compensatory damages was ultimately reduced to $280,000 in compensatory damages with the consent of the party who secured the verdict. Without a complete transcript, this court has no basis to review or reverse that award. Accordingly, the first and second assignments of error are overruled. III. THE TRIAL COURT ERRED BY ENTERING A JUDGMENT FOR PREJUDGMENT INTEREST FOR APPELLEE. In this assignment, appellant argues that the trial court erred when it awarded prejudgment interest on the initial award of $30,000 in compensatory damages. This assignment lacks merit. The determination whether a party is entitled to prejudgment interest is reviewed under the abuse of discretion standard. Nash v. Kaiser Foundation Health Plan of Ohio (1991), 76 Ohio App.3d 233. In the case at bar, plaintiff presented evidence that appellant refused to settle the case or engage in any type of discovery. 1 The transcript shows the attorneys disagreed on how to read the jury interrogatories. One interrogatory states in the body of the document that the total damages were $630,000. The caption to this document, however, indicates this interrogatory addressed only the negligence claim. There was a separate interrogatory awarding $30,000 on the fraud claim, and a third interrogatory awarding $600,000 in punitive damages. At oral argument appellee suggested the final order was an attempt to correct discrepancies in the first order. While this view is plausible, especially because it is easy to make a mistake when the numbers are so similar, nothing in the record indicates the trial court was correcting an error. -9- Moreover, plaintiff also argues that the award of prejudgment interest was improper because the claim was unliquidated. This argument fails because an award of prejudgment interest is not dependent on whether the claim is liquidated or unliquidated. Royal Electric Constr. Corp. v. Ohio State University (1995), 73 Ohio St.3d 110. Accordingly, the trial court did not abuse its discretion in awarding prejudgment interest. Appellant's fourth assignment of error states as follows: IV. THE TRIAL COURT ERRED IN AWARDING JUDGMENT FOR ATTORNEY FEES IN FAVOR OF APPELLEE WHEN THEY WERE NOT PRAYED FOR IN THE COMPLAINT. In this assignment appellant argues that plaintiff is not entitled to attorney fees because the fees were not requested in the complaint. This assignment has merit but not for the reasons espoused by appellant. Ultimately, no punitive damages were awarded to plaintiff. The final judgment of the trial court determined that the entire amount of $280,000 represented compensatory damages. In Ohio, punitive damages are a prerequisite to an award of attorney fees. Digital v. Analog Design Corp. v. N.Supply Co. (1992), 63 Ohio St.3d 657. As such, an award of attorney fees will not be sustained either by the denial or reversal of an award of punitive damages. Ferritto v. Olde & Co., Inc. (1989), 62 Ohio App.3d 582, 588. When no punitive damages are awarded, it is error for the trial court to award attorney fees. Czarnecki v. Basta (1996), 112 Ohio App.3d 418, 425. Therefore, because the punitive damages were -10- eliminated in the case at bar, the award of attorney fees must also be denied. The fourth assignment of error is granted. Judgment affirmed in part and reversed in part. -11- It is ordered that appellee and appellant share the 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. JOSEPH J. NAHRA, P.J., CONCURS; KENNETH A. ROCCO, J., CONCURS IN PART AND DISSENTS IN PART (See Concurring and Dissenting Opinion). DIANE KARPINSKI 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72936 BERNICE DAVIDSON WILLIAMS : : Plaintiff-appellee : CONCURRING AND DISSENTING : vs. : OPINION : ESQUE CRAWFORD, M.D. : : Defendant-appellant : DATE: OCTOBER 29, 1998 KENNETH A. ROCCO, J. CONCURRING IN PART AND DISSENTING IN PART: Although I concur with the majority's decision affirming appellant's first three assignments of error, I respectfully dissent from its decision regarding appellant's fourth assignment of error. The majority based its determination on the general rule that attorney fees may be awarded only where punitive damages have also been awarded. See Digital v. Analog Design Corp. v. N. Supply Co. (1992), 63 Ohio St.3d 657. In the court below, the jury determined that appellee was entitled to an award of punitive damages and found that appellant had acted with malice. Although the trial court eventually agreed that the jury's award was excessive and ultimately entered a final award of $280,000 in compensatory damages only, the jury's original determination, that appellant acted with malice and that appellee was entitled to punitive -2- damages, remains unchanged. There is nothing in the record to indicate the trial court found this determination by the jury to be in error. Although punitive damages may be a prerequisite to an award of attorney fees, the jury did actually award punitive damages, and the trial court's award of attorney fees was proper. Moreover, this court has held that punitive damages need not actually be awarded before a court may award attorney fees on the basis that punitive damages are appropriate. Atram v. Star Tool & Die Corporation (1989), 64 Ohio App.3d 388, 392, citing Oakwood v. Makar (1983), 11 Ohio App.3d 46. In contrast, in Czarnecki v. Basta (1996),112 Ohio App.3d 418, relied upon by the majority for the proposition that it is error for a trial court to award attorney fees when no punitive damages are awarded, the jury spe- cifically found that punitive damages were not appropriate. In the matter sub judice, the jury determined that punitive damages were appropriate; therefore, I respectfully dissent from .