[Cite as Favors v. Burke, 2013-Ohio-823.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 98617

DELORES FAVORS 

PLAINTIFF-APPELLANT 

vs. 

WILLIAM BURKE, ET AL.

 DEFENDANTS-APPELLEES

JUDGMENT:

AFFIRMED IN PART, REVERSED 

IN PART AND REMANDED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-768958 

BEFORE: Stewart, A.J., Jones, J., and Blackmon, J. 

RELEASED AND JOURNALIZED: March 7, 2013 
ATTORNEY FOR APPELLANT

Andrew S. Pollis 

Milton A. Kramer Law Clinic Center 

Case Western Reserve University School of Law 

11075 East Boulevard 

Cleveland, OH 44106 

LEGAL INTERNS FOR APPELLANT 

Jeffrey Bieszczak 

Emily Grannis 

Milton A. Kramer Law Clinic Center 

Case Western Reserve University School of Law 

11075 East Boulevard 

Cleveland, OH 44106

FOR APPELLEE 

William Burke, Pro Se 

3019 Ruby Avenue 

Cleveland, OH 44106 
MELODY J. STEWART, A.J.: 

{¶1} The court entered a default judgment in favor of plaintiff-appellant Delores 

Favors and against defendant-appellee William Burke on Favors’s complaint that Burke 

violated the Ohio Consumer Sales Practices Act (the “Act”) by failing to complete a 

home remodeling contract. After a trial on damages, the court awarded Favors actual 

damages of $6,050, which it trebled pursuant to R.C. 1345.09(B) for a total damage 

award of $18,150 plus interest. On appeal, Favors complains that the court erred by 

failing to award her noneconomic and punitive damages, as well as failing to award 

attorney fees. 

{¶2} Favors’s complaint alleged that Burke engaged in fraud by accepting a down 

payment of $6,050 to remodel and enlarge her house. She alleged that Burke began 

work on the project by “digging a hole in her backyard,” but then abandoned the project, 

leaving nothing to show for her money but the unfilled hole. She further alleged that he 

ignored her calls and complaints and then lied to the Ohio Attorney General’s office 

about his progress on the project. 

{¶3} Although Burke was initially represented by counsel, the court allowed 

Burke’s lawyer to withdraw before answering the complaint. The court informed Burke 

that he had to answer the complaint or face a default judgment. Burke did not answer the 
complaint nor did he appear at the default hearing, despite having notice of the hearing. 

The court entered a default judgment and ordered a hearing on the issue of damages only. 

 I 

{¶4} Favors first argues that the court’s refusal to award her noneconomic 

damages for her inconvenience, frustration, embarrassment, and mental distress caused by 

Burke’s violations of the act was against the manifest weight of the evidence. 

 A 

{¶5} R.C. 1345.09(A) states: 

(A) Where the violation was an act prohibited by section 1345.02, 1345.03, 

or 1345.031 of the Revised Code, the consumer may, in an individual 

action, rescind the transaction or recover the consumer’s actual economic 

damages plus an amount not exceeding five thousand dollars in 

noneconomic damages. 

{¶6} In the context of tort law, “noneconomic loss” has been defined by R.C. 

2315.18(A)(4) as: 

[N]onpecuniary harm that results from an injury or loss to person or 

property that is a subject of a tort action, including, but not limited to, pain 

and suffering, loss of society, consortium, companionship, care, assistance, 

attention, protection, advice, guidance, counsel, instruction, training, or 

education, disfigurement, mental anguish, and any other intangible loss. 

{¶7} Although the Ohio Supreme Court has not expressly defined the scope of 

“noneconomic damages” allowed under R.C. 1345.09(A), it has noted that Ohio courts 

and federal courts interpreting comparable federal consumer protection laws have 

awarded noneconomic damages for inconvenience, aggravation, frustration, humiliation, 

and mental distress caused by violations of the act. See Whitaker v. M.T. Automotive, 
Inc., 111 Ohio St.3d 177, 2006-Ohio-5481, 855 N.E.2d 825, ¶ 21-22 (collecting cases). 

This interpretation is thus consistent with the general tort definition set forth in R.C. 

2315.18(A)(4) and is sometimes referred to as damages for pain and suffering. Id. at ¶ 

19. 

{¶8} Noneconomic damages are not presumed even if the plaintiff establishes 

proof of actual economic damages. See Uhlir v. State Farm Ins. Co., 164 Ohio App.3d 

71, 2005-Ohio-5545, 841 N.E.2d 344, ¶ 21; Metter v. Konrad, 8th Dist. No. 85271, 

2005-Ohio-4290, ¶ 15. “Evidence relative to pain and suffering in damages evaluations 

is within the province of the fact-finder.” Baughman v. Krebs, 8th Dist. No. 73832, 1998 

Ohio App. LEXIS 5925 (Dec. 10, 1998). We are not at liberty to disturb the trier of 

fact’s assessment of damages absent an affirmative finding of passion and prejudice or a 

finding that the award is manifestly excessive or inadequate. Moskovitz v. Mt. Sinai Med. 

Ctr., 69 Ohio St.3d 638, 655, 1994-Ohio-324, 635 N.E.2d 331. This is a very high legal 

hurdle for a plaintiff, for we have held that a damages award will not be found to be 

against the manifest weight of the evidence unless it is “so gross as to shock the sense of 

justice and fairness, cannot be reconciled with the undisputed evidence in the case, or is 

the result of an apparent failure by the jury to include all the items of damage making up 

the plaintiff’s claim.” Tenaglia v. Russo, 8th Dist. No. 87911, 2007-Ohio-833, ¶ 22, 

citing Iames v. Murphy, 106 Ohio App.3d 627, 666 N.E.2d 1147 (1st Dist.1995). 

 B 
{¶9} Favors testified that she contracted with Burke after receiving a notice from a 

neighborhood development group that peeling paint on her house might be considered a 

housing violation. She said that she took pride in her house, but acknowledged that it 

had peeling paint and rotting windows. Her contract with Burke called for the 

installation of vinyl siding and repair of the windows, in addition to a first-floor addition 

to the house that would include a bathroom. Favors’s evidence showed that Burke 

created a shallow excavation for the footprint of the addition in preparation to pour 

footers for the new addition, but otherwise did no other work on the house. She made 

numerous unsuccessful efforts to contact Burke, both directly and indirectly through her 

council person, the attorney general’s office, and the Better Business Bureau. 

{¶10} The testimony going to noneconomic damages consisted of Favors testifying 

that her unsuccessful attempts to resolve Burke’s failure to fulfill his contract left her 

feeling “let down” and that she felt “a lot of anxiety and I was really depressed.” She 

stated that she needed to “talk to somebody to try to get help for myself[,]” so she made 

three office visits to a psychologist. She said that the unfinished condition of Burke’s 

renovations left her feeling “depressed” and “ashamed of my property.” 

 C 

{¶11} At the outset, we note that the court’s refusal to award noneconomic 

damages was not necessarily against the manifest weight of the evidence solely because 

Burke did not appear for trial or otherwise contest Favors’s testimony. In Decapua v. 

Rychlik, 8th Dist. No. 91189, 2009-Ohio-2029, we stated: 
[T]he mere fact that testimony is uncontradicted, unimpeached, and 

unchallenged does not require the trier of fact to accept the evidence * * * 

(citation omitted). “The trier of facts always has the duty, in the first 

instance, to weigh the evidence presented, and has the right to accept or 

reject it.” Ace Steel Baling v. Porterfield (1969), 19 Ohio st.2d 137, 138, 

249 N.E.2d 892; see, also, Rogers v. Hill (1998), 124 Ohio App.3d 468, 

470,706 N.E.2d 438. 

Id. at ¶25. However, in its judgment entry, the court did not indicate that it found 

Favors’s evidence of noneconomic damages wanting in any way, let alone to the degree 

necessitating a rejection of her claim. In fact, the court did not address the noneconomic 

damages claim, but implicitly rejected it in the court’s judgment entry. We find that the 

court’s refusal to award noneconomic damages was manifestly inadequate. 

{¶12} Favors offered testimonial and documentary evidence showing that Burke’s 

violations of the Consumer Sales Practices Act left her anxious and depressed to such a 

degree that she sought psychological help. Whitaker specifically endorsed “aggravation, 

frustration, and humiliation” as compensable noneconomic damages under R.C. 

1345.09(A), so the court had no basis for denying damages for lack of evidence. And 

because Favors’s evidence of noneconomic damages was uncontested, it is unclear how 

the court could justify rejecting her claim. In related cases, courts have found that “when 

a plaintiff receives damages for medical expenses but does not receive an award of 

damages for past pain and suffering, and where there is evidence supporting such 
damages, such judgment is against the manifest weight of the evidence.” Juarez v. 

Osterman, 10th Dist. No. 98AP-1221, 1999 Ohio App. LEXIS 6536 (Aug. 12, 1999). See 

also Miller v. Irvin, 49 Ohio App.3d 96, 98, 550 N.E.2d 501 (3d Dist.1988). 

{¶13} The court awarded Favors damages under the Act, so it should have 

awarded noneconomic damages given her evidence that she suffered depression, anxiety, 

and frustration as a result of Burke’s violations. We therefore sustain this assignment of 

error and remand with instructions for the court to determine the amount of noneconomic 

damages that Favors is entitled to receive. 

 II 

{¶14} In addition to her claim that Burke violated the Ohio Consumer Sales 

Practices Act, Favors’s complaint set forth claims of fraud and civil theft. She sought 

punitive damages for each of those claims. The court declined to award punitive 

damages, finding that Favors failed to produce “enough evidence” to warrant punitive 

damages. 

{¶15} R.C. 2315.21(C)(1) states that punitive damages cannot be recovered unless 

“[t]he actions or omissions of [the] defendant demonstrate malice or aggravated or 

egregious fraud * * *.” “Actual malice, necessary for an award of punitive damages, is 

(1) that state of mind under which a person’s conduct is characterized by hatred, ill will or 

a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons 

that has a great probability of causing substantial harm.” Preston v. Murty, 32 Ohio 

St.3d 334, 336, 512 N.E.2d 1174 (1987), syllabus. The plaintiff has the burden to prove 
evidence of entitlement to punitive damages by clear and convincing evidence. R.C. 

2315.21(D)(4). “Clear and convincing evidence” is “proof which is more than a mere 

‘preponderance of the evidence,’ but not to the extent of such certainty as is required 

‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the 

trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. 

Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. 

{¶16} Favors offered no evidence of actual malice at the hearing — she relied on 

general statements in her complaint that alleged that Burke’s conduct “demonstrated 

actual malice and/or aggravated egregious fraud.” For example, Favors alleged in her 

complaint that Burke replied to an inquiry by the attorney general’s office by lying about 

his progress on the job. Although a defendant’s failure to answer or otherwise defend a 

complaint constitutes an admission of facts alleged in the complaint, Belfance v. Resash, 

Inc., 9th Dist. Nos. 23415 and 23437, 2007-Ohio-6614, ¶ 5, those admitted facts alone are 

not enough to warrant the imposition of punitive damages. In Carr v. Charter Natl. Life 

Ins. Co., 22 Ohio St.3d 11, 488 N.E.2d 199 (1986), the Supreme Court found that the 

evidence presented in a default judgment hearing must support the damages awarded, 

particularly punitive damages. Id. at 13. Under Carr, these general allegations were, 

without more, insufficient to support a finding by clear and convincing evidence that 

Burke acted with actual malice. 

{¶17} Favors cites Grodhaus v. Burson, 71 Ohio App.3d 477, 481, 594 N.E.2d 717 

(10th Dist.1991), as support for the proposition that punitive damages can be awarded 
solely on the allegations of a complaint. We do not believe that Grodhaus stands for the 

proposition suggested by Favors because the facts of that case show that Burson, the party 

against whom punitive damages were sought, actually testified at the hearing on damages 

and that testimony greatly informed the decision to award punitive damages. Id. at 480. 

(“Appellant’s testimony at the damage hearing was found not to be credible and we have 

no difficulty upholding that finding.”) That testimony was viewed in conjunction with 

the allegations of the complaint to uphold a trial court’s finding that Burson acted with 

malice. No such testimony was offered in this case. 

{¶18} Favors also relied on her request for admissions, which were deemed 

admitted when Burke failed to reply to her request. See Civ.R. 36(A). 

{¶19} “When a party fails to timely respond to requests for admissions under 

Civ.R. 36, the admissions become facts of record that the court must recognize.” N. 

Eagle, Inc. v. Kosas, 8th Dist. No. 92358, 2009-Ohio-4042, ¶ 22, citing Cleveland Trust 

Co. v. Willis, 20 Ohio St.3d 66, 67, 485 N.E.2d 1052 (1985). But the only request for 

admissions that touched on Burke’s malice was Request for Admission No. 21, which 

asked Burke to admit that “Defendant never intended to complete the work they agreed to 

perform in the Remodeling Contracts.” Taking it as admitted that Burke “never intended 

to complete the work,” that fact does not necessarily require a finding of malice or 

egregious fraud. 

{¶20} A party to a contract is free to breach the contract, subject to paying 

damages for the breach. Farnsworth, Contracts, Section 12.3, at 157 (2d ed. 1998). 
Indeed, this is why contract cases are not torts — for instance a party to Contract A ought 

to be free to breach that contract, subject to payment of damages for the breach, in order 

to perform Contract B if the profit earned on Contract B would exceed the loss to the 

non-breaching party to Contract A. Posner, Economic Analysis of Law, 106 (3d ed. 

1986) (“[I]t is not the policy of the law to compel adherence to contracts but only to 

require each party to choose between performing in accordance with the contract and 

compensating the other party for any injury resulting from a failure to perform.”). The 

breach of Contract A would thus not necessarily show malice against the aggrieved party 

to the contract. Farnsworth, Section 12.8, at 842. 

{¶21} Favors’s own evidence showed that Burke commenced some work, 

however minimal, on Favors’s house by excavating in preparation for pouring a footer for 

the new addition. This left open the possibility that Burke undertook the project with an 

intent to finish it, only to abandon it later. Admittedly, Burke conceivably could have 

started working on the project with no intent to finish it, but under contract law he was 

free to breach the contract with Favors, subject to making her whole for the breach. So 

even with the admission that Burke did not intend to finish the project, it would be 

speculation to say that Burke acted with malice. With the assertion that there was no 

intent to finish the work being speculative, the discovery admission would not suffice to 

carry Favors’s burden of proving actual malice by clear and convincing evidence. The 

court’s finding that Favors did not present enough evidence to obtain punitive damages 

was not against the manifest weight of the evidence. 
{¶22} We likewise find no basis for an award of punitive damages based on the 

fraud claim. To the extent that Favors’s fraud claim is based on Burke making a 

materially false representation via his admission that he never intended to honor the 

remodeling contract, that fact was admitted for purposes of liability when Burke failed to 

answer the complaint. However, Favors’s evidence at the damages hearing contradicted 

the allegation that Burke entered into that contract with no intention to do any work at all. 

 By her own testimony, Burke did commence work, however minimal, on the project, so 

the court could find that Favors did not establish evidence sufficient to show the kind of 

aggravated or egregious fraud necessary for an award of punitive damages. See, e.g., 

Apel v. Katz, 83 Ohio St.3d 11, 22, 1998-Ohio-420, 697 N.E.2d 600. 

 III 

{¶23} Finally, Favors argues that the court erred by failing to award her attorney 

fees under R.C. 1345.09(F)(2). She claims that the allegations of the complaint justified 

a finding that Burke knowingly violated the act and thus warranted the imposition of 

attorney fees. 

{¶24} R.C. 1345.09(F)(2) permits a trial court to award reasonable attorney fees to 

a prevailing party for legal services reasonably performed against a person who has 

“knowingly committed an act or practice” that violates the act. An award of attorney 

fees under R.C. 1345.09(F)(2) to a prevailing party is not mandatory, but within the 

discretion of the trial court, subject to review only for an abuse of that discretion. 
Reagans v. Mountainhigh Coachworks, Inc., 117 Ohio St.3d 22, 2008-Ohio-271, 881 

N.E.2d 245, ¶ 34. 

{¶25} Given the nature of the facts admitted by virtue of Burke’s failure to answer 

the complaint or respond to requests for admissions, the uncontradicted evidence 

submitted at the hearing on damages, and the apparent reasonableness of both the hourly 

rate and hours worked, we see nothing that would justify the court’s refusal to grant 

attorney fees. In the face of these factors, the court did not state any reasons for denying 

attorney fees, nor were any reasons obvious on the record. It was thus arbitrary and 

unreasonable for the court to deny attorney fees. 

{¶26} We note that the request for attorney fees was made on behalf of law 

students practicing as certified legal interns pursuant to Gov.Bar.R. II. Favors was 

represented pro bono by the Milton A. Kramer Law Clinic Center at Case Western 

Reserve University School of Law. The law students, under the supervision of an 

attorney-professor, handled the case. Gov.Bar.R. II, Section 6 states: 

A legal intern shall not ask for or receive any compensation or remuneration 

of any kind from a financially needy client on whose behalf services are 

rendered. However, the law school clinic, legal aid bureau, public 

defender’s office, or other legal services organization may be awarded 

attorney fees for services rendered by the legal intern consistent with the 

Ohio Rules of Professional Conduct and as provided by law. A law school 

clinic, legal aid bureau, public defender’s office, or other legal services 

organization, the state, or any municipal corporation may pay compensation 

to the legal intern. 

{¶27} In this case, the supervisor of the legal interns submitted an affidavit in 

which he stated that the interns logged 156.19 hours of time working on the case. He 
“conservatively” stated that the prevailing hourly rate for lawyers performing this kind of 

legal work would be $100 per hour. Nevertheless, the supervisor requested only $10,000 

in attorney fees. All of this complied with Gov.Bar.R. II, Section 6. 

{¶28} With there being no legal impediment to an award of attorney fees based on 

the work of the legal interns, and nothing to dispute or contradict the reasonableness of 

the hourly rate requested and number of hours worked, the court’s refusal to grant 

attorney fees was unreasonable, arbitrary, and capricious. We sustain the third 

assignment of error and remand with instructions for the court to award attorney fees of 

$10,000. 

{¶29} This cause is affirmed in part, reversed in part, and remanded to the trial 

court for further proceedings consistent with this opinion. 

It is ordered that appellant and appellee 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 Cuyahoga 

County 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. 

 

 

MELODY J. STEWART, ADMINISTRATIVE JUDGE 

LARRY A. JONES, SR., J., and 

PATRICIA ANN BLACKMON, J., CONCUR