Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Andrew S. Pollis Milton A. Kramer Law
Clinic Milton A. Kramer Law Clinic Center ALSO LISTED Marvin
De Leon Santiago Riech Legal Interns Milton A. Kramer Law
APPELLEE Matthew Richardson, pro se d.b.a. Tazmainian Repair,
BEFORE: McCormack, J., Keough, A.J., and E.A. Gallagher, J.
JOURNAL ENTRY AND OPINION
Plaintiff-appellant Judy Berube appeals from the trial
court's award of punitive damages in connection with the
court's granting of Berube's motion for default
judgment against the defendant, Matthew Richardson. For the
reasons that follow, we reverse and remand.
History and Substantive Facts
On March 4, 2015, Berube filed a complaint against Matthew
Richardson, d.b.a. Tazmainian Repair, Inc., alleging
violations of Ohio's Consumer Sales Protection Act
("CSPA"), breach of contract, breach of warranty,
failure to perform in a workmanlike manner, civil action for
damages, and negligence. Berube's complaint stems from
Berube contracting with Richardson to make repairs to her
home. Berube claims that Richardson failed to make the
repairs for which he was hired, damaged her home, stalked her
daughter, and engaged in certain misconduct while purportedly
working on her home. Berube sought compensatory damages,
treble damages, attorney fees and costs, and punitive
damages. Berube's complaint also included a jury demand.
Richardson failed to answer the complaint or otherwise appear
in the action, and Berube moved for default judgment under
Civ.R. 55. In her motion, Berube also requested a jury trial
on the issue of damages. The trial court granted Berube's
motion for default judgment, yet it denied her request for a
jury trial and scheduled a hearing on damages. In denying her
request for a jury trial, the trial court determined that
Berube "availed herself of the summary procedure"
of a default judgment under Civ.R. 55 and therefore
"subject[ed] herself to the requirements of [Civ.R. 55],
which gives the court discretion to either conduct a hearing
on damages or allow Plaintiff to present the issue of damages
to a jury for determination."
On April 20, 2016, the court conducted a hearing on damages.
At the hearing, Berube testified concerning the contract she
entered with Richardson and the damages that she incurred.
Thereafter, the court issued an order awarding Berube total
damages in the amount of $70, 376. In its order, the court
stated that Berube established sufficient evidence of actual
damages in the amount of $15, 000. Having found that Berube
established a violation of the CSPA, the court determined
that she was therefore entitled to $45, 000 treble damages.
The court also found Berube established sufficient evidence
of mental anguish and awarded her $5, 000 in non-economic
damages under the CSPA.
Additionally, the court found that an award of punitive
damages were warranted, as the defendant's actions were
"egregious." However, finding that the defendant
did not appear in the litigation, the court determined that
there was "little evidence of what degree of sanction
would punish or deter him from similar action in the
future." The court therefore found that the general aim
of deterring the defendant from the actions that caused
physical damage to the plaintiffs house and caused the
plaintiffs mental anguish was sufficiently addressed by the
treble damages awarded under the CSPA, and it awarded the
nominal amount of $1 in punitive damages.
Finally, in considering the plaintiffs request for attorney
fees, the court noted that despite the fact that this was a
default judgment hearing on damages, Berube and her counsel
"spent considerable time and effort" in obtaining
the proper service on the defendant and in researching the
issues and presenting the evidence to the court for
determination. Having found that Richardson knowingly
committed actions that were in violation of the CSPA, the
court awarded Berube $20, 375 in attorney fees.
Berube now appeals the judgment of the trial court, alleging
that the court erred in rejecting her demand for a jury trial
on damages. In the alternative, Berube claims that the trial
court's award of $1 in ...