IN THE SUPREME COURT OF OHIO JANE DOE A.K.A. LISA PHELPS CASE NO. 0 0 4 ^ Plaintiff-Appellant, V. WILLIAM BARLOCK, Jr. Defendant- Appellee On Appeal from the Cuyahoga County Court of Appeals of Ohio, Eighth District, Case Nos. CA-08-091698 and CA-08-091706 and Cuyahoga County Common Pleas Case No. CV-06-606140 PLAINTIFF-APPELLANT JANE DOE A.K.A. LISA PHELPS' MEMORANDUM IN SUPPORT OF JURISDICTION JOHN F. BURKE, III (0059974) Mansour, Gavin, Gerlack & Manos Co., LPA 55 Public Square, Suite 2150 Cleveland, OH 44113-1994 Phone 216-523-1500; Fax 216-523-1705 Email: jburke@mggmlpa.com Attorney for Plaintiff-Appellant Jane Doe a.k.a. Lisa Phelps DANIEL F. LINDNER (0063918) Lindner & Jordan LLP 55 Public Square, Suite 1800 Cleveland, OH 44113 216-737-8888; FAX 216-737-9999 Email: daniel@justuslawyers.com and MARCUS S. SIDOTI (0077476) Sidoti & Sidoti Co., LPA 55 Public Square, Suite 1800 Cleveland, OH 44113 Phone 216-357-3350; Fax 216-737-9999 Email: msid165@aol.com Attorneys for Defendant-Appellee William Barlock, Jr. MAli `! Mf;;1 CLERK OF COURT SUPREME COURT OF OHIO i
TABLE OF CONTENTS EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST OR INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION...1 STATEMENT OF THE CASE AND FACTS...3 LAW AND ARGUMENT............................................................................... 8 Proposition of Law No. I: The granting of a motion for a new trial on one cause of action is a final appealable order...8 CONCLUS ION..........................................................................................10 CERTIFICATE OF SERVICE...1 I Paee APPENDIX Anpx. Page Court of Appeals of Ohio, Eighth District, Decision... I Court of Appeals of Ohio, Eighth District, Journal Entry denying Appellant's Motion for Reconsideration...2 ii
EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST OR INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION This cause presents an issue critical to the appellate process and a party's legislatively granted right to appellate review of a trial court's taking away of a jury's verdict via the granting of a motion for new trial. In this case, the court of appeals dismissed Plaintiff-Appellant Jane Doe a.k.a. Lisa Phelps' appeal of the trial court's granting Defendant-Appellee William Barlock's motion for new trial on her claim of intentional infliction of emotional distress. The Cuyahoga County Eighth District Court of Appeals erred when it dismissed, sua sponte, Plaintiff-Appellant's appeal erroneously claiming a lack of a final appealable order. Subsequently, Plaintiff-Appellant filed an application requesting that the appellate court correct its error as such appeal is specifically authorized by O.R.C. 2505(B)(3) which affirmatively states that an order granting a new trial is a final appealable order. Nonetheless, the appellate court denied Plaintiff- Appellant's Application for Reconsideration of that order without analyzing its error. The implication of the decision of the court of appeals is to fundamentally eliminate Plaintiff-Appellant's legal right to review of the trial court's granting of a motion for new trial. Implications of this decision affect every party to litigation in the State of Ohio. Such a process sabotages the entirety of government regulations and undermines the fundamental legal principle that the rule of law constrains the courts as well as citizens. Similarly, the public interest is affected if an appellate court is allowed to defy to rules of procedures and dismiss Plaintiff- Appellant's appeal. Apart from the aforementioned considerations which makes this case one of great public interest, the decision of the court of appeals also has broad general significance. Thousands and thousands of litigants rely on the court on appeals to review decisions made by the trial courts. 1
The General Assembly has specifically recognized the right to immediate appellate review of the grant or denial of a motion for new trial. The decision of the court of appeals sets a dangerous precedent that would exclude from review the trial court's grant of a motion for new trial. If allowed to stand, the decision of the court of appeals would destroy a fundamental tenet of the American legal system which is appellate review of lower court's decisions. In sum, this case puts in issue the essence of appellate review and the legislature's specific requirements that appellate courts be able to immediately review the grant of a motion for new trial. To promote the purposes and preserve the integrity of the courts, this Court must grant jurisdiction to hear this case and review and reverse the erroneous and dangerous decision of the court of appeals dismissing Plaintiff-Appellant's appeal. 2
STATEMENT OF THE CASE AND FACTS On October 24, 2006, Plaintiff-Appellant Jane Doe a.k.a. Lisa Phelps ("Plaintiff- Appellant" or "Ms. Phelps") was awoken by a phone call indicating that nude photographs of her had been emailed to over 100 employees at her place of employment. She immediately knew who had perpetrated such a heinous act, it was her ex-boyfriend Defendant-Appellee William Barlock ("Defendant-Appellee" or "Barlock"). On November 2, 2006, Plaintiff-Appellant, as "Jane Doe," filed a Complaint seeking a temporary restraining order, and preliminary and permanent injunction prohibiting Barlock from further disseminating the pictures. (R. 2, 3, 4) Ms. Phelps also sought compensatory and punitive damages for intentional infliction of emotional distress and invasion of privacy along with attorney fees, costs and expenses. The court granted the TRO on November 2, 2006, prohibiting Barlock from further disseminating the photographs. (R. 4) An agreed upon permanent injunction was subsequently entered into and approved by the court. (R. 10) The agreed injunction stated: (R. 10) 1. Defendant is prohibited from disseminating, copying, transferring or otherwise publishing any photographs of Plaintiff; 2. Defendant must provide to Plaintiff, through her counsel, the original copies of all photographs and all electronic data relating to said photographs or the transference of such photographs. 3. Defendant is prohibited from possessing or disseminating any photographs of Plaintiff. 4. Defendant must execute a document verifying his compliance with this Order. Defendant-Appellee failed to answer the Complaint and December 15, 2006, Plaintiff- Appellant filed a motion for default judgment. (R. 11) On December 18, 2006, Barlock filed a 3
motion for leave to file answer instanter (R. 12) and a brief in opposition to the motion for default. (R. 13) Defendant-Appellee's motion contained no good cause for failing to answer the Complaint. Nonetheless, the trial court granted Defendant-Appellee's motion for leave to answer instanter and denied the motion for default judgment. (R. 15) Defendant-Appellee answered the Complainti and denied the material allegations alleged therein. On January 11, 2007, Defendant-Appellee filed a motion to dismiss attempting to force Plaintiff-Appellant to put her legal name on the Complaint subjecting her to further public humiliation.2 (R. 17) Plaintiff-Appellant opposed that motion arguing that she should be allowed to maintain her anonymity due to the private and embarrassing nature of this matter. (R. 20) The trial court granted Defendant-Appellee's motion without opinion. (R. 22) Plaintiff- Appellant filed her Amended Complaint pursuant to the trial court's order. (R. 30) Defendant- Appellee failed to answer the Amended Complaint and on August 30, 2007, Plaintiff-Appellant filed her second motion for default judgment due to Defendant-Appellee's failure to answer the Amended Complaint. (R. 60) Again, Defendant-Appellee filed a brief in opposition to Plaintiff- Appellant's motion for default and motion for leave to file answer instanter. (R. 62) Plaintiff- Appellant opposed the motion to file answer instanter. (R. 64) Again, the trial court denied the motion for default and granted Defendant-Appellee's motion to file answer instanter. (R. 78) Defendant-Appellee filed a motion for summary judgment claiming that Plaintiff- Appellant could not present a prima facie case for invasion of privacy and intentional infliction of emotional distress. (R. 30) Plaintiff-Appellant opposed said motion. (R. 59) The trial court, in a written opinion, denied Defendant-Appellee's motion for summary judgment. (R. 79) 'Defendant-Appellee's answer denied that he had sent the email. (R. 12, 9[4.) 2 The only rationale for this motion was either an attempt to inflict further embarrassment upon Plaintiff-Appellant or to force her to dismiss the case. 4
This matter was tried before a jury beginning September 19, 2007. At the close of Plaintiff-Appellant's case in chief (R. 82, Tr. 212) and at the end of Defendant-Appellee's case (R. 82, Tr. 321), the Defendant-Appellee moved for a directed verdict on all of Plaintiff- Appellant's claims. Both motions were denied. (Tr. 212, 321) On September 20, 2007, the jury entered a unanimous verdict in favor of the Plaintiff- Appellant on her claim of invasion of privacy and awarded her $25,000 in compensatory damages and $75,000 in punitive damages. (Tr. 318) The jury also unanimously found in favor of Plaintiff-Appellant on her claim of intentional infliction of emotional distress and awarded $25,000 in compensatory damages and $75,000 in punitive damages. (Tr. 318-319) The jury also found that the Defendant-Appellee should pay Plaintiff-Appellant's legal fees on both claims. (Tr. 318-319; see also Jury Verdict Forms.) On or about September 28, 2007, the Defendant-Appellee filed a motion for JNOV and new trial contending that the court should overturn the jury's unanimous verdict or in the alternative award a new trial. (R. 80) Defendant-Appellee falsely claimed that the damage award was unsubstantiated and that Plaintiff-Appellant did not present sufficient evidence to support her claims. (R. 80, Defendant-Appellee's motion, p. 3.) The Defendant-Appellee's claims were specious and belied by the evidence that was before the jury. Barlock also moved for a new trial under Civil Rule 59(A). (R. 80, see Defendant-Appellee's motion.) Plaintiff- Appellant filed a brief in opposition to Defendant-Appellee's motion. (R. 85) Additionally, Plaintiff-Appellant filed motions for prejudgment interest and attorney fees.3 (R. 86, 88) Defendant-Appellee did not file a brief in opposition to either motion. Nonetheless, the trial ' The trial court never ruled on those unopposed motions. However, eight months after they were filed, on June 18, 2008, the trial court indicated that it would hold those motions in abeyance awaiting the conclusion of the new trial on Plaintiff-Appellant's claim of intentional infliction of emotional distress. (R. 93) 5
court did not rule on them. (See docket.) Eight months later, on May 30, 2008, the trial court issued its ruling denying Defendant-Appellee's motion for JNOV and motion for new trial on the claim for invasion of privacy. (R. 92) The trial court did, however, grant Defendant-Appellee's motion for a new trial on Plaintiff-Appellant's claim for intentional infliction of emotional distress. (R. 92) Notwithstanding the fact that the court previously denied both the motion for summary judgment and the motions for directed verdict on the same evidence, incredibly the trial court now claimed that the judgment in regard to the intentional infliction of emotional distress shocked its conscience. The court stated: In this case, Plaintiff did not present such evidence of serious emotional distress. The jury's verdict on this issue shocks the Court's sense of justice and faitness and cannot be reconciled with the evidence. Although Plaintiff suffered some degree of emotional distress, the events giving rise to this lawsuit did not preclude Plaintiff from performing her daily tasks. Plaintiff was actively occupied with her obligations and coped adequately, as a reasonable person. *** Although the Court does not mean to diminish the significance of the distress that Plaintiff endured, the weight of the evidence clearly shows that Plaintiff's distress did not rise to the level of severe and debilitating under the law. Therefore, the jury's verdict on Plaintiff's claim for intentional infliction of emotional distress was not sustained by the weight of the evidence, and Defendant's motion for a new trial pursuant to Civil Rule 59(A)(6) is granted as to this claim. (R. 92, trial court's Joumal Entry and Opinion, p. 7-8.) On June 24, 2008, Ms. Phelps timely filed her notice of appeal on the issue of the trial court granting Barlock's motion for new trial on the intentional infliction of emotional stress claim. (R. 94) On June 26, 2008, Barlock filed a notice of appeal. (R. 95) On June 30, 2008, the trial court stayed the proceedings in this case due to the filing of the notice of appeal. (R. 96) Both parties fully briefed their positions in the court of appeals. 6
Seven months later, after briefing was complete, on January 22, 2009, the Cuyahoga County Eighth District Court of Appeals dismissed the appeals, sua sponte, claiming a lack of a final appealable order. The appellate court stated: ALTHOUGH THE TRIAL COURT ENTERED THE PARTIES' AGREED PERMANENT INJUNCTION (#10) AND THE TRIAL COURT ENTERED JUDGMENT ON THE JURY'S VERDICT ON THE OTHER TWO CLAIMS (#83) AS WELL AS BARLOCK'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND FOR NEW TRIAL (#92), THE TRIAL COURT HAS NOT DETERMINED ATTORNEY FEES AND PREJUDGMENT INTEREST. LIKEWISE, THE TRIAL COURT GRANTED BARLOCK'S MOTION FOR NEW TRIAL ON THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM. SUA SPONTE, THIS APPEAL IS DISMISSED FOR LACK OF A FINAL APPEALABLE ORDER. EACH PARTY TO BEAR HIS OR HER OWN COSTS. SEE CIV.R. 54(B); INTERNATL. BHD. OF ELECTRICAL WORKERS, LOCAL UNION NO. 8 V. VAUGHN INDUSTRIES, L.L.C., 116 OHIO ST.3D 335, 2007-OHIO-6439, 879 N.E.2D 187 [ATTORNEY FEES]; MILLER V. FIRST INTERNATL. FID. & TRUST BLDG., LTD., 113 OHIO ST.3D 474, 2007-OHIO-2457, 866 N.E.2D 1059 [PREJUDGMENT INTEREST]... On January 28, 2009, Ms. Phelps filed a motion requesting that the appellate court reconsider its decision dismissing her appeal as the trial court's granting a motion for new trial was a final appealable order as specifically outlined in O.R.C. 2505(B)(3) which affirmatively states that an order granting a new trial is a final appealable order. Nonetheless, on February 26, 2009, the appellate court denied Plaintiff-Appellant's Application for Reconsideration stating: MOTION BY APPELLANT FOR RECONSIDERATION OF ENTRY NO. 417547 DISMISSING THESE APPEALS IS DENIED. COURTS AVOID PIECEMEAL APPEALS IN THE INTEREST OF JUDICIAL ECONOMY. SEE, E.G., INTERNATL. BHD. OF ELECTRICAL WORKERS, LOCAL UNION NO. 8 V. VAUGHN INDUSTRIES, L.L.C., 116 OHIO ST.3D 335, 2007-OHIO-6439, 879 N.E.2D 187 (ATTORNEY FEES]; MILLER V. FIRST INTERNATL. FID. & TRUST BLDG., LTD., 113 OHIO ST.3D 474, 2007-OHIO- 2457, 866 N.E.2D 1059 [PREJUDGMENT INTEREST]. VOL. 676 PG. 624. NOTICE ISSUED. Nonetheless, this decision by the appellate court is in error and deprives Plaintiff- Appellant of her fundamental right to appellate review. In support of her position, the Plaintiff- Appellant presents the following argument. 7
LAW AND ARGUMENT Proposition of Law No. I: The granting of a motion for a new trial on one cause of action is a final appealable order. The Ohio Constitution specifically provides the right to appeal a judgment or final order unless the appellate court's jurisdiction is limited by law. Court of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district. See, O.Const. Art. IV, Sec. 3(B)(2). Accordingly, any judgment or final order not otherwise restricted by law, i.e., an enactment by the General Assembly, is immediately reviewable through the appellate process and constitutionally guaranteed. The appellate court's dismissal of Plaintiff-Appellant's appeal was in error as it is well established in Ohio's jurisprudence that the granting of a motion for a new trial is a final appealable order. See, Colvin v. Abbey's Restaurant, 1999-Ohio-286 ("It is now well settled... that the granting of a motion for a new trial is a final appealable order under R.C. 2505.02 citing Price v. McCoy Sales & Service, Inc. (1965), 2 Ohio St.2d 131, 11 of the syllabus; see also, Rohde v. Farnaer (1970), 23 Ohio St.2d 82, 86-90. R.C. 2505.02 specifically provides simply that "an order that... grants a new trial" is a final appealable order. See O.R.C. 2505.02(B)(3) ("An order is a final order that may be reviewed, affirmed, modified or reversed, with or without a retrial, when it is one of the following:... (3) an order that vacates or sets aside a judgment or grants a new trial"). Thus, the appellate court's sua sponte dismissal of Ms. Phelps' appeal was improper. The appellate court determination, sua sponte, that there was no final appealable order created an unworkable situation where Plaintiff-Appellant will not have an opportunity for an appellate court to review the trial court's decision to grant Barlock's motion for new trial on the 8
intentional infliction of emotional distress claim. If this matter returns to the trial court for a new trial on Ms. Phelps' claim of intentional infliction of emotional distress, Ms. Phelps will be deprived of her lawful right to have the trial court's grant of a new trial on that claim reviewed by a superior court. Ms. Phelps did not disagree that a motion for prejudgment interest and a motion for attorney fees should be finalized prior to an appeal of the court's final judgment order, but those motions are not germane to Ms. Phelps' appeal of the trial court's order granting a new trial on the intentional infliction of emotional distress claims. They do, however, preclude the appeal by Barlock. Here, the decisions regarding attorney fees and prejudgment interest cannot be resolved until the appellate court resolves the granting of the new trial on the intentional infliction of emotional distress claim. What is legally required to happen in the present case is that the Court of Appeals must rule on Ms. Phelps' appeal of the trial court's grant of a new trial on her claim for intentional infliction of emotional distress while at the same time dismissing Barlock's appeal as there is no final appealable order related to him. If the appellate court's order dismissing the appeal is affirmed, the matter would return to the trial court and jurisdiction would again vest in that court for the new trial on the intentional infliction claim. However, if the appellate court overrules the trial court's grant of a new trial, then the matter would return to the trial court for a final determination as to Ms. Phelps' unopposed motions for attorney fees and prejudgment interest. Thus, as it is a final order as it relates to Plaintiff-Appellant's claims, the appeal must be heard. The appellate court's sua sponte decision dismissing the appeal is directly contrary to O.R.C. 2505(B)(3) which affirmatively states that an order granting a new trial is a final appealable order. 9
CONCLUSION The Ohio legislature and this Court have expressly held that an order granting a new trial is a final appealable order. There are no additional statutory requirements and such an order is immediately reviewable by the appellate court. Allowing the court of appeals' sua sponte dismissal of Plaintiff-Appellant's appeal effectively precludes her from her right to have an appellate court review the decision granting the motion for a new trial and impermissibly violates Plaintiff-Appellant's constitutional and statutory right to an appeal. This matter clearly raises a substantial constitutional question and is one of great general or public interest. Respectfully submitted, JOA F. BURR LM-(00599-74-) ansour, Gavin, Gerlack & Manos Co., LPA Public Square, Suite 2150 Cleveland, OH 44113-1994 Phone 216-523-1500; Fax 216-523-1705 Attorney for Plaintiff-Appellant Jane Doe a.ka. Lisa Phelps 10
CERTIFICATE OF SERVICE A copy for the foregoing Memorandum in Support of Jurisdiction has been sent via regular U.S. Mail on this 11th day of March 2009, to: Daniel F. Lindner Lindner & Jordan LLP 55 Public Square, Suite 1800 Cleveland, OH 44113 Marcus S. Sidoti Sidoti & Sidoti Co., LPA 55 Public Square, Suite 1800 Cleveland, OH 44113 Attorneys for Defendant-Appellee William Barlock, Jr. JrO r^^yf. BURKE Att rneyfor Plaintiff-Appellant Jane Doe a. a. Lisa Phelps 11
ttts'g0 cuuzi APPENDIX 1 Taurt of Apptttls uf M41u, TEuo* 19istrict County of Cuyahoga Gerald E. Fuerst, Clerk of Courts JANE DOE, A.K.A., LISA PHELPS Appellant COA NO. LOWER COURT NO. 91698 CP CV-606140 91706 CP CV-606140 -vs- COMMON PLEAS COURT WILLIAM BARLOCK, JR. Appellee MOTION NO. 417547 Date 01/22109 0 ALTHOUGH THE TRIAL COURT ENTERED THE PARTIES' AGREED PERMANENT INJUNCTION (#10) AND THE TRIAL COURT ENTERED JUDGMENT ON THE JURY'S VERDICT ON THE OTHER TWO CLAIMS (#83) AS WELL AS BARLOCK'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND FOR NEW TRIAL (#92), THE TRIAL COURT HAS NOT DETERMINED ATTORNEY FEES AND PREJUDGMENT INTEREST. LIKEWISE, THE TRIAL COURT GRANTED BARLOCK'S MOTION FOR NEW TRIAL ON THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM. SUA SPONTE, THIS APPEAL IS DISMISSED FOR LACK OF A FINAL APPEALABLE ORDER. EACH PARTY TO BEAR HIS OR HER OWN COSTS. SEE CIV.R. 54(B); INTERNATL. BHD. OF ELECTRICAL WORKERS, LOCAL UNION NO. 8 V. VAUGHN INDUSTRIES, L.L.C., 116 OHIO ST.3D 335, 2007-OHIO-6439, 879 N.E.2D 187 [ATTORNEY FEES]; MILLER V. FIRST INTERNATL. FID. & TRUST BLDG., LTD., 113 OHIO ST.3D 474, 2007-OHIO-2457, 866 N.E.2D 1059 [PREJUDGMENT INTEREST] ADDITIONALLY, JANE DOE'S APPELLEE'S BRIEF FILED IN CASE NO. 91698 ON OCTOBER 22,2008 DOES NOT CONTAIN A STATEMENT OF THE ASSIGNMENTS OF ERROR OR A STATEMENT OF THE ISSUES. APP.R. 16. BARLOCK'S REPLY BRIEF FILED IN CASE NO. 91698 ON DECEMBER 1, 2008 AND APPELLANT'S BRIEF FILED IN CASE NO. 91706 ON OCTOBER 10, 2008 AS WELL AS JANE DOE'S APPELLEE'S BRIEF FILED IN CASE NO. 91698 ON OCTOBER 22, 2008 ALL CONTAIN FOOTNOTES WHICH FAIL TO MEET THE MINIMUM TYPE SIZE OF TWELVE POINTS AS MANDATED BY APP,R. 19(A). FAILURE TO COMPLY WITH APP.R. 16 AND 19 AS WELL AS LOC. APP.R. 16 MAY RESULT IN DISMISSAL OF THE APPEAL, STRIKING THE BRIEF OR DENIAL OF THE RIGHT TO ARGUE. LOC.APP.R. 16(B). COUNSEL ARE ADMONISHED TO COMPLY WITH ALL APPLICABLE RULES IN FUTURE FILINGS IN THIS COURT. JUDGE SEAN C. GALLAGHER, CONCURS ANNOIINCEMENT OF DBCISION Administrative Judge PER APP. R. 2211^1, 22i=1 AND 2eIM COLLEEN CONWAY E,D RALD E. FUERST CLERK F HRT OF APFEALS CA08091698 56221112 oone'filed AAiD 90URNALIZED PER APP. R. 22(E) FEB 2 6 2009 GEI4ALD E. FUERST gy DEP Tnis Is an announcement of Courf's dec7;fon. CLERK 0^0 T OF APPEALS }A,ailon for reooqrlderq^iop must be filed within 10 days trom cu e^^.. DEP. E9 0 61 64
APPENDIX 2 Tuur# uf Ap.^ea1s af 04tn, Erg4t4 DYstrtct County of Cuyahoga Gerald E. Fuerst, Clerk of Courts JANE DOE, A.K.A., LISA PHELPS Appellant COA NO. LOWER COURT NO. 91698 CP CV-606140 91706 CP CV-606140 -vs- COMMON PLEAS COURT WILLIAM BARLOCK, JR. Appellee MOTION NO. 417889 Date 02126/2009 Journal Entry MOTION BY APPELLANT FOR RECONSIDERATION OF ENTRY NO. 417547 DISMISSING THESE APPEALS IS DENIED. COURTS AVOID PIECEMEAL APPEALS IN THE INTEREST OF JUDICIAL ECONOMY. SEE, E.G., INTERNATL. BHD. OF ELECTRICAL WORKERS, LOCAL UNION NO. 8 V. VAUGHN INDUSTRIES, L.L.C., 116 OHIO ST.3D 335, 2007-OHIO-6439, 879 N.E.2D 187 [ATTORNEY FEES]; MILLER V. FIRST INTERNATL. FID. & TRUST BLDG., LTD., 113 OHIO ST.3D 474, 2007-OHIO-2457, 866 N.E.2D 1059 [PREJUDGMENT INTEREST]. RECEIVED FOR FILING FEB 2 6.2009 GERALD E. FU CLERK OF TSIE 41JiJRY. BY Adm. Judge, COLLEEN CONWAY COONEY, Concurs