COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73088 PHYSICIANS DIAGNOSTIC IMAGING,: ET AL. : : JOURNAL ENTRY Plaintiff-appellants: : AND vs. : : OPINION GRANGE INSURANCE COMPANY : : Defendant-appellee : : : DATE OF ANNOUNCEMENT : SEPTEMBER 24, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-291950 : JUDGMENT : AFFIRMED IN PART, REVERSED IN PART AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellee: JAY MILANO, ESQ. Akron, OH 44309 GWENDOLYN CIOLEK, ESQ. 2639 Wooster Road Rocky River, OH 44116 DONALD A. POWELL, ESQ. ROBERT L. TUCKER, ESQ. Buckingham, Doolittle & Burroughs 50 S. Main Street P.O. Box 1500 -2- JOHN T. PATTON, J.: Plaintiff Physicians Diagnostic Imaging, Inc. ( PDI ) brought this breach of contract and bad faith refusal to pay action against defendant Grange Mutual Casualty Co. alleging that Grange wrongfully failed to pay the proceeds of an insurance policy after a fire damaged portions of the PDI offices. At trial, PDI presented evidence to show that Grange falsified its claim file in order to avoid paying the claim. A jury found for PDI and awarded compensatory damages on both counts in an amount totaling $361,000, as well as punitive damages in the amount of $1,000,000. The day after the court journalized the verdict, plaintiff filed motions for prejudgment interest and attorney fees. Seven days later, Grange filed a notice of satisfaction of verdict and judgment in the amount of $1,361,000. That same day, the court denied the motions for prejudgment interest and attorney fees without a hearing. PDI's two assigned errors challenge the court's ruling. I Before addressing the assigned errors, we must consider the impact, if any, that Grange's satisfaction of judgment had on the viability of this appeal. Ordinarily, a satisfaction of judgment renders an appeal from that judgment moot. See Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, 245. PDI's appeal does not challenge any substantive aspect of the jury verdict, but instead concentrates on the court's refusal to grant prejudgment interest. Prejudgment interest is distinctly separate from the judgment. For this reason, the courts -3- have generally been permitted to consider requests for prejudgment interest filed before a satisfaction of judgment. See Woods v. Farmers Ins. of Columbus, Inc. (1995), 106 Ohio App.3d 389; Fazio v. Meridian Ins. Co. (Apr. 9, 1998), Cuyahoga App. No. 73320, unreported (no right to prejudgment interest when party gave uncontradicted evidence of tender of payment in full satisfaction of arbitration award prior to plaintiff requesting prejudgment interest). Because the parties did not specify that the satisfaction of judgment encompassed the motion for prejudgment interest, we find that motion to be viable. II The first assignment of error is that the court erred by summarily denying PDI's motion for attorney fees. PDI claimed $912,639 in attorney fees and costs as part of the punitive damages award, citing Grange's bad faith as grounds for the fees. PDI did not ask the court to submit the issue of entitlement to fees to the jury, instead choosing to have the court make that determination. Grange maintains that PDI's failure to ask the court to have the jury determine PDI's entitlement to attorney fees and costs constituted a waiver of those fees. In Digital & Analog Design Corp. v. North Supply Co. (1992), 63 Ohio St.3d 657, paragraph three of the syllabus states: In view of the public policy of this state that favors jury determination of issues of liability, as evidenced by the General Assembly's passage of R.C. 2315.21 and its amendment to R.C. 2315.18, a trial court must submit to a jury the issue of whether attorney -4- fees should be awarded in a tort action. The amount of those fees, however, shall be determined by the trial judge, who may, in his or her discretion, submit the question of the amount of the fees to the jury. (emphasis added) The court did not instruct the jury to consider whether PDI could recover its attorney fees. Although the limited record on appeal does not show whether PDI asked the court for an instruction on attorney fees, Grange maintains it raised the issue at trial and PDI, with full knowledge of the situation, made no attempt to have the court give an instruction on attorney fees. PDI does not challenge Grange on this point, but instead relies on Davis v. Owen (1986), 26 Ohio App.3d 62, for the proposition that a court should not allow evidence of attorney fees during a party's presentation of the case-in-chief. PDI's reliance on Davis is woefully misplaced. In Digital & Analog, the Supreme Court specifically rejected the approach used in Davis. The Supreme Court did uphold the Davis approach under the specific facts of the case, but only because both parties agreed that Davis set forth the applicable procedure. Id. at 664. The Supreme Court's syllabus leaves no room for doubt that the proper procedure is to submit the issue of entitlement to attorney fees to the jury. PDI also cites to two cases issued by this court, Anderle v. Ideal Mobile Home Park, Inc. (1995), 101 Ohio App.3d 122 and Mlinarcik v. E.E. Wehrung Parking, Inc. (1993), 86 Ohio App.3d 134, for the proposition that a court may submit attorney fees issues to the jury after liability has been determined. Neither citation is -5- on point because both were tried to the court. Anderle dealt with an express authorization of attorney fees under R.C. 3733.09(B) that had been tried to the housing court. No jury had been empaneled, so the court obviously could not defer the question of entitlement of fees to the jury. Mlinarcik concerned a derivative suit against corporation directors that was likewise tried to the court. Again, the absence of a jury necessarily foreclosed any option of having a jury consider punitive damages. Any discussion to that effect in Mlinarcik was obvious dicta, particularly since this court found no evidence to show that the shareholder suit benefitted the corporation in a way the would permit an award of attorney fees in the first instance. Mlinarcik, 86 Ohio App.3d at 147. Moreover, even had those cases involved jury trials, the Supreme Court's decision in Digital & Analog would necessarily dictate the outcome of the issue. We have no authority to disregard the law set forth by the Supreme Court. Because the record fails to show that PDI asked the court to submit the issue of its entitlement to attorney fees to the jury, we find it waived the opportunity to present the issue on appeal. The first assignment of error is overruled. III In its second assignment of error, PDI complains the court erred by denying the motion for prejudgment interest without first conducting a hearing. PDI based its motion for prejudgment interest entirely on the argument that Grange's falsification of -6- its claims file during discovery amounted to a failure to cooperate with discovery. The availability of prejudgment interest is designed to encourage litigants to make a good faith effort to settle disputes, thus conserving judicial resources. Peyko v. Frederick (1986), 25 Ohio St.3d 164, 167. Aside from its procedural aspects, at its core, the prejudgment interest statute focuses on whether a party made a good faith effort to settle the case. In Kalain v. Smith (1986), 25 Ohio St.3d 157, the syllabus states: A party has not `failed to make a good faith effor 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 reasonably belief that he has no liability, he need not make a monetary settlement offer. The decision to grant prejudgment interest is discretionary with the court. Ziegler v. Wendel Poultry Serv., Inc. (1993), 67 Ohio St.3d 10, 20. As a general proposition, the court must conduct a hearing when considering a motion for prejudgment interest under R.C. 1343.03(C)(1). See Lovewell v. Physicians Ins. Co. of Ohio (1997), 79 Ohio St.3d 143, 147; Kluss v. Alcan Aluminium Corp. (1995), 106 Ohio App.3d 528, 541; Andrews v. Riser Foods, Inc. (Oct. 16, 1997), Cuyahoga App. No. 71658, unreported. The requirement for a hearing may be dispensed when the motion for prejudgment interest is -7- obviously not well-taken. See Fazio v. Meridian Ins. Co. (Apr. 9, 1998), Cuyahoga App. No. 73320, unreported. Grange maintains it made a good faith offer to settle on the day trial began when it offered PDI $1.6 million to settle, on top of $600,000 that it paid to PDI prior to trial. PDI allegedly refused the offer, standing firm on its non-negotiable $5 million settlement demand. Grange claims its trial offer constituted a good faith effort to settle, particularly since the jury awarded PDI $239,000 less than Grange's offer. Grange urges us to find no hearing was necessary since the court not only knew about the settlement offer on the day of trial, but actively asked the parties if Grange's offer fully satisfied the amount of compensatory damages claimed by PDI. We have no way of knowing if Grange's assertions are true because they do not appear in the record. We have two limited excerpts of trial transcript the testimony of PDI's hand writing expert and the court's jury instructions. Ordinarily, the appellant has the duty to provide the record. See App.R. 9(B). This duty only extends to demonstrating the claimed error in the record, and we may disregard an assignment of error presented for review if the party presenting it fails to identify in the record the error on which the assignment of error is based. See App.R. 12(A)(2). Since PDI simply argues that the court erred by failing to conduct a hearing, it had no need to offer more. Once Grange learned that PDI would not make the entire record available to this court, it had the duty to file and serve on PDI a designation of -8- additional parts to be included if those parts of the record would substantiate its position. Id. We recognize that PDI does not exactly dispute Grange's factual assertions about the settlement, instead somewhat coyly referring to the offer, if it did exist. This is one of those rare times when the appellant's failure to provide a record actually aids the appeal. Because we cannot consider any evidence beyond the record presented to us, we are unable to find the motion for prejudgment interest was obviously not well-taken; therefore, the court should have conducted a hearing on the motion. The second assignment of error is sustained. Judgment affirmed in part, reversed in part and remanded. -9- This cause is affirmed in part, reversed in part 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. TERRENCE O'DONNELL, P.J. KENNETH A. ROCCO, J., CONCURS. JUDGE JOHN T. PATTON 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 .