COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73320 ACCELERATED DOCKET THOMAS FAZIO, ET AL. : : JOURNAL ENTRY Plaintiff-appellants: : AND vs. : : OPINION MERIDIAN INSURANCE COMPANY : : PER CURIAM Defendant-appellee : : : APRIL 9, 1998 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-334761 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellee: M. DAVID SMITH, ESQ. TERRENCE J. KENNEALLY, ESQ. MICHAEL L. EISNER, ESQ. SHAWN ALLEN, ESQ. Friedman, Domiano & Smith Terrence J. Kenneally & Co., L.P.A. Associates 600 Standard Building 20525 Center Ridge Road, #505 1370 Ontario Street Rocky River, OH 44116 Cleveland, Ohio 44113 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs. The issue in this appeal is whether the court erred by denying plaintiff Thomas Fazio's motion for prejudgment interest on a $160,000 arbitration award without first conducting a hearing. Defendant Meridian Insurance Co. argues the court did not err by denying the motion without a hearing because it tendered payment of the arbitration award in full before plaintiff requested prejudgment interest. As a general proposition, the court must first conduct a hearing when considering a motion for prejudgment interest under R.C. 1343.03. See Lovewell v. Physicians Ins. Co. of Ohio (1997), 79 Ohio St.3d 143, 147; Kluss v. Alcan Aluminum Corp. (1995), 106 Ohio App.3d 528, 541; Andrews v. Riser Foods, Inc. (Oct. 16, 1997), Cuyahoga App. No. 71658, unreported. However, the court need not conduct a hearing when the motion for prejudgment interest is obviously not well-taken. R.C. 1343.03(C)(1) permits recovery of prejudgment interest on a judgment in a civil action if the movant can show the judgment was based on tortious conduct and not settled by agreement of the parties ***. (emphasis added). The record indicates defendant tendered payment of the arbitration award in full before plaintiff filed the motion for prejudgment interest, and plaintiff did not deny accepting this payment. Under the express terms of R.C. -3- 1343.03(C)(1), plaintiff was not entitled to prejudgment interest. See Vanderhoof v. General Accident Ins. Group (1987), 39 Ohio App.3d 91, 93-94; Buckeye Union Ins. Co. v. Gray (May 11, 1995), Cuyahoga App. No. 67813, unreported at 3; Barker v. Lightning Rod Mut. Ins. Co. (Apr. 4, 1991), Franklin App. No. 90AP-1406, unreported. Therefore, a hearing would have been futile. In Woods v. Farmers Ins. of Columbus, Inc. (1995), 106 Ohio App.3d 389, the Franklin County Court of Appeals held that the parties had not settled a matter for purposes of R.C. 1343.03(C) when they settled liability and damages issues before one of the parties asked for prejudgment interest on those damages. After receiving a declaration of coverage under an uninsured motorist provision, the parties in Woods submitted the issues of liability and damages to arbitration. One party, the Governors, prevailed in arbitration, collected the full amount of their award, and settled with the express reservation of the right to collect prejudgment interest on the arbitration award. When the Governors asked the court of common pleas to confirm the arbitration award and enter judgment for prejudgment interest, the court of common pleas refused. The court of appeals held the Governors had not settled the matter: After litigating the issue of coverage, the parties submitted the issues of liability and damages to arbitration, and the Governors asked the court of common pleas to confirm their arbitration award and enter judgment thereon. Id. at 399. -4- We assume the court of appeals reached the conclusion that the Governors had not settled the matter for purposes of the prejudgment interest statute because the Governors made an express reservation of the right to seek prejudgment interest. If we correctly understand Woods, our conclusion here is not in conflict with that case because we have no reason to believe plaintiff reserved his right to pursue prejudgment interest after settling with defendant. The record does not contain the actual settlement, but defendant did submit proof to the court that it tendered a check for the full amount of the arbitration award seven weeks before plaintiff sought prejudgment interest. At no point did plaintiff dispute accepting this tender, so we have no reason to conclude the settlement had not been final before the court decided to deny the motion for prejudgment interest. Under these facts, we find a hearing on the matter would have been futile, particularly since plaintiff gave no reason for the court to think that he would present any further evidence to justify his claimed entitlement to prejudgment interest. The assigned error is overruled. Judgment affirmed. -5- It is ordered that appellee recover of appellants 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 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. PATRICIA A. BLACKMON, ADMINISTRATIVE JUDGE JOHN T. PATTON, JUDGE LEO M. SPELLACY, 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 reconsidera- ation 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 .