[Cite as Molai v. Standing Rock Cemetery Bd. of Trustees, 2022-Ohio-3004.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY

FRED MOLAI,

Plaintiff-Appellant,

- v -

STANDING ROCK CEMETERY

BOARD OF TRUSTEES,

Defendant-Appellee.

CASE NO. 2021-P-0117

Civil Appeal from the

Court of Common Pleas

Trial Court No. 2019 CV 00874

O P I N I O N

Decided: August 29, 2022

Judgment: Affirmed

Justin M. Alaburda, Daniel J. Rudary, Jack W. Hinneberg, and Stephen Colecchi, 

Brennan, Manna & Diamond, LLC, 75 East Market Street, Akron, OH 44308 (For 

Plaintiff-Appellant). 

Hope L. Jones, City of Kent Law Director, 320 South Depeyster Street, Kent, OH 44240 

(For Defendant-Appellee).

JOHN J. EKLUND, J.

{¶1} Appellant, Fred Molai (“Molai”), appeals the judgment of the Portage County 

Court of Common Pleas in his suit against appellee, Standing Rock Cemetery Board of 

Trustees (“Standing Rock”), in relation to a burial plot Molai purchased for his son, Adam. 

{¶2} Molai sued Standing Rock for intentional infliction of emotional distress 

(“IIED”), trespass, and breach of contract. Standing Rock made motions for directed 

verdicts on all claims. The court granted directed verdicts against Molai on the IIED and 

trespass claims. The jury returned a verdict in favor of Molai on the breach of contract 
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claim and awarded him damages of $750,000. Standing Rock filed a motion for a new 

trial and the court granted a new trial solely to determine damages. 

{¶3} Molai raises four assignments of error: (1) that the trial court erred in 

granting Standing Rock’s directed verdict on Molai’s claim for IIED; (2) that the trial court 

erred in granting Standing Rock’s directed verdict on Molai’s claim for trespass; (3) that 

the trial court erred in granting Standing Rock’s motion for a new trial; and (4) that the trial 

court erred in denying Molai’s motion for judicial recusal. 

{¶4} After a review of the record and applicable law, we find Molai’s assignments 

of error to be without merit. Molai did not provide sufficient evidence that Standing Rock’s 

actions proximately caused him serious emotional distress. Molai also did not establish 

a trespass claim because Standing Rock acted pursuant to a court order. The trial court 

did not err in granting a motion for a new trial because the award exceeded the amount 

of damages that the evidence established. Lastly, the trial judge did not err by declining 

to recuse himself from ruling on the motion for a new trial on damages. The judgment of 

the Portage County Court of Common Pleas is affirmed.

Relevant Facts

{¶5} The following facts are unfortunate, and we sympathize with Molai in 

grieving his late son. In 2011, Molai’s son, Adam, died in a boating accident. Molai 

decided to bury Adam at Standing Rock, and discussed with the cemetery his desire to 

purchase 16 burial plots. Standing Rock showed Molai the 16 plots available and 

allegedly promised to reserve the plots for him. Subsequently, Molai paid a deposit for, 

and obtained title to, only 12 of the 16 plots. 
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{¶6} Molai buried Adam in one of the middle plots. He placed various ornaments 

and decorations as a memorial to Adam on the remaining plots surrounding his son's plot. 

The decorations included fencing, a flower garden, and poles approximately six feet high 

with posters depicting his son.

{¶7} In 2013, Standing Rock determined that the posters were in violation of the 

cemetery rules and regulations. Standing Rock requested that Molai remove the poles, 

posters, and flowers from the burial plot. Molai refused and Standing Rock threatened to 

remove the objects if he would not do so. Molai brought suit requesting injunctive relief

to prevent Standing Rock from forcibly removing the objects.

{¶8} After several motions and years of litigation, the Portage County Court of 

Common Pleas entered a judgment in 2017 stating that “the poles and posters were 

placed on the lots without the permission of the superintendent. * * * the poles and posters

do not conform with the general appearance of the cemetery. Therefore, the poles and 

posters violate the rules and regulations of the cemetery.” The judgment entry ordered 

Molai to remove the poles and posters within ten days, and if he failed to do so within ten 

days, Standing Rock could enter the plot area and remove the poles and posters.

{¶9} Molai appealed the judgment and this court affirmed in 2019.

{¶10} Following this court affirming the judgment entry on appeal in 2019, Molai 

moved the poles and posters by attaching them over Adam’s grave, but did not remove 

the objects from the property. At this time, the poles and posters had not been altered 

and were the same objects that the court had found did not conform with the cemetery’s 

general appearance. Pursuant to the court order, Standing Rock removed the poles and 

posters. Molai retrieved the poles and posters from Standing Rock, and then had the 
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same objects bolted and welded on the headstone. Molai was notified that Standing Rock 

would once again remove the objects, and he came to the cemetery as the workers 

removed them. 

{¶11} While his first case was pending, Molai attempted to place a deposit for the 

four remaining burial plots he initially reserved in 2011. Molai also asked to purchase 

footers. However, Standing Rock denied both requests because they were in a lawsuit 

with Molai and did not want to conduct further business with him.

Procedural History

{¶12} Molai filed this suit in November 2019, bringing three claims: (1) breach of 

contract; (2) IIED; and (3) trespass. In 2021, a jury trial was held on all three claims.

{¶13} To support his claim for IIED, Molai’s grief counselor, Amanda Brace, who 

treated him from 2016 to 2019, testified as a lay person. Ms. Brace testified that Molai 

started grief counseling at her workplace in 2011 following Adam’s death. When 

discussing Standing Rock’s effect on Molai, Ms. Brace testified that Mr. Molai “continually 

brought up the issue with the cemetery in his counseling sessions, which is attached to 

the grief of his son, Adam, and being able to process the loss of his son.” Ms. Brace 

stated that Molai was upset about the issues with Standing Rock and did not understand 

“how could the people at the cemetery tell me how I should grieve.” Ms. Brace also 

testified that he was still unable to process grieving his son, that he was “crushed” by the 

court’s order that he remove the poles and posters, and was “heartbroken” that his former 

girlfriend had stopped talking to him.

{¶14} After Molai rested his case, Standing Rock moved for a directed verdict on 

all claims. The court denied the motion on the breach of contract claim. The court granted 
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a directed verdict against Molai on the IIED claim, finding that he did not demonstrate that 

Standing Rock’s actions caused him serious emotional distress. The court also granted 

a directed verdict against Molai on the trespass claim, finding that Standing Rock was 

allowed to enter the land and take the poles down pursuant to a court order. The only 

claim left to the jury was breach of contract. 

{¶15} The jury was instructed on how to assess damages for a breach of contract 

claim. While the jury deliberated, a juror sent a handwritten note to the judge asking three 

questions: (1) “How do we evaluate the cost of attorney’s fees?;” (2) “How do we evaluate 

the cost of emotional distress?;” and (3) “And can we write it as an amount plus lawyer 

fees?” The judge discussed his response with both attorneys and decided to simply 

instruct the jury to follow jury instructions no. 12 and no. 13. Standing Rock’s attorney 

asked the judge to explain that attorney fees and emotional distress were not available 

because the IIED and trespass claims had been dismissed. The judge declined to explain 

further than directing the jury to the instructions. 

{¶16} The jury returned and found for Molai and awarded him damages in the 

amount of $750,000. The judge spoke to the jury after their discharge to ask if they had 

any questions. During that conversation, one juror “blurted out” that the jury included 

attorney’s fees in the award. The judge said he replied to the juror by stating that his jury 

instruction did not include attorney’s fees, and that attorney’s fees are not recoverable 

under breach of contract unless contractually agreed upon. 

{¶17} Three motions were subsequently filed: (1) Standing Rock’s motion for 

judgment notwithstanding the verdict; (2) Standing Rock’s motion for a new trial; and (3) 

Molai’s motion for judicial recusal because the judge spoke with the jury after the trial. 
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{¶18} At the hearing on the motions, there was a conversation between the judge 

and Molai’s counsel concerning the discussion between the judge and the jury. The court 

granted the motion for a new trial and denied the remaining motions. Molai’s attorney 

argued that the judge must recuse himself from ruling on the motion for a new trial 

because he received information from the jury regarding how they assessed damages. 

The judge declined to recuse himself and consistently stated that his discussion with the 

jurors about damages did not affect his ability to be fair and impartial. 

Analysis

{¶19} Molai raises four assignments of error. 

{¶20} “FIRST ASSIGNMENT OF ERROR: The trial court erred to the prejudice of 

Plaintiff Appellant by granting Defendant Appellee’s motion for directed verdict on Plaintiff 

Appellant’s claim for intention infliction of emotion distress (9/9/21 T.p. 197).”

{¶21} In his first assignment of error, Molai asserts that the trial court erred by 

granting Standing Rock’s motion for directed verdict on the IIED claim. Molai contends 

that Ms. Brace’s testimony shows Standing Rock caused Molai serious emotional 

distress. 

{¶22} A motion for a directed verdict presents a question of law and an appellate 

court must conduct a de novo review of the trial court's judgment. Bliss v. Chandler, 11th 

Dist. Geauga No. 2006-G-2742, 2007-Ohio-6161, ¶ 48.

{¶23} “‘A trial court may not grant a directed verdict unless the evidence, when 

construed in the light most favorable to the nonmoving party, leads reasonable minds to 

only one conclusion, and that conclusion is adverse to the nonmovant.’” Bliss at ¶ 47, 
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quoting Huffman v. Kazak Bros. Inc., 11th Dist. No. 2000-L-152, 2002 WL 549858, * 3 

(Apr. 12, 2002.)

{¶24} “A motion for a directed verdict does not present a question of fact or raise 

factual issues, but instead presents a question of law, even though in deciding such a 

motion it is necessary to review and consider the evidence.” Ruta v. Breckenridge-Remy 

Co., 69 Ohio St.2d 66, 430 N.E.2d 935 (1982), paragraph one of the syllabus. A motion 

for a directed verdict tests the legal sufficiency of the evidence, not the weight of the 

evidence or the credibility of witnesses. Id. at 68.

{¶25} “To establish a claim for intentional infliction of emotional distress, a plaintiff 

must show (1) that the actor either intended to cause emotional distress or knew or should 

have known that the actions taken would result in serious emotional distress to the 

plaintiff; (2) that the actor's conduct was so extreme and outrageous as to go beyond all 

possible bounds of decency and was such that it could be considered as utterly intolerable 

in a civilized community; (3) that the actor's actions were the proximate cause of plaintiff's 

psychological injury; and (4) that the mental anguish suffered by the plaintiff was serious 

and of a nature that no reasonable man could be expected to endure it.” Kovacic v. 

Eastlake, 11th Dist. Lake No. 2005-L-205, 2006-Ohio-7016, ¶ 92. “The mental anguish 

suffered by the plaintiff must be so severe and debilitating that ‘a reasonable person, 

normally constituted, would be unable to cope adequately with the mental distress 

engendered by the circumstances of the case.’” Weir v. Krystie's Dance Acad., 11th Dist. 

Portage No. 2007-T-0050, 2007-Ohio-5910, ¶ 26, quoting Paugh v. Hanks, 6 Ohio St.3d 

72, 78, 451 N.E.2d 759 (1983).
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{¶26} Proximate cause is established “where an original act is wrongful or 

negligent and, in a natural and continuous sequence, produces a result [that] would not 

have taken place without the act.” Heard v. Dayton View Commons Homes, 2018-Ohio606, 106 N.E.3d 327, ¶ 12 (2d Dist); see also Clinger v. Duncan, 166 Ohio St. 216, 222, 

141 N.E.2d 156 (1957).

{¶27} To prevail on a claim for IIED “‘* * * It has not been enough that the 

defendant has acted with an intent which is tortious or even criminal, or that he has 

intended to inflict emotional distress, or even that his conduct has been characterized by 

“malice” * * *. Liability has been found only where the conduct has been so outrageous in 

character, and so extreme in degree, as to go beyond all possible bounds of decency, 

and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Yeager 

v. Local Union 20, 6 Ohio St.3d 369, 671, 453 N.E.2d 666 (1983), quoting Restatement 

of the Law 2d, Torts, Section 46(1), at 71 (1965). 

{¶28} In his brief, Molai asserts that Standing Rock intentionally caused him 

serious emotional distress when the cemetery removed the poles and posters from 

Adam’s memorial in 2019. Yet, a claim for intentional infliction of emotional distress

requires that the actor's actions were the proximate cause of plaintiff's psychological 

injury. Kovacic v. Eastlake, supra, at ¶ 92. Molai’s grief counselor, Ms. Brace, only 

testified at trial that Molai “continually brought up the issue with the cemetery in his 

counseling sessions” and that it is her opinion that he is suffering emotional distress. Ms. 

Brace did not testify that Molai’s emotional distress would not have taken place without 

Standing Rock taking down the poles and posters. Ms. Brace testified that Molai’s 

emotional distress had occurred before Standing Rock’s 2019 act, and that he was 
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already emotionally distressed, in her opinion, when she started treating him in 2016. She 

also testified that Molai’s emotional distress was caused by Adam’s death in 2011, when 

he began grief counseling, and only continued over the years when his girlfriend stopped 

talking to him in 2016 and when the Portage County Court of Common Pleas ordered him 

to take down the poles and posters in 2017. 

{¶29} Thus, there is no evidence demonstrating that Standing Rock’s actions 

proximately caused Molai serious emotional distress. In other words, notwithstanding 

Standing Rock removing the poles and posters from Adam’s memorial, the evidence 

showed that Molai was already suffering emotional distress from causes that had nothing 

to do with Standing Rock. 

{¶30} Molai also did not provide evidence establishing that Standing Rock’s 

conduct was so outrageous and extreme as to go beyond all possible bounds of decency. 

Standing Rock removed the poles and posters pursuant to a court order that this court 

affirmed on appeal. We cannot find that acting in a manner consistent with a court order 

affirmed on appeal goes beyond all possible bounds of decency and is outrageous, 

extreme, atrocious, or utterly intolerable. Moreover, there was no evidence or testimony 

presented to suggest that Standing Rock’s conduct was an aggravating cause to a 

preexisting condition.

{¶31} Here, when construed in the light most favorable to Molai, the evidence 

leads reasonable minds to only one conclusion, and that conclusion is adverse to Molai.

{¶32} Molai’s first assignment of error is without merit. 
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{¶33} “SECOND ASSIGNMENT OF ERROR: The trial court erred to the prejudice 

of Plaintiff Appellant by granting Defendant Appellee’s motion for directed verdict on 

Plaintiff Appellant’s claim for trespass (9/9/21 T.p. 203).”

{¶34} “A common-law tort in trespass upon real property occurs when a person, 

without authority or privilege, physically invades or unlawfully enters the private premises 

of another whereby damages directly ensue * * *.” Apel v. Katz, 83 Ohio St.3d 11, 19,

1998-Ohio-420, 697 N.E.2d 600 (1998), citing Linley v. DeMoss, 83 Ohio App.3d 594, 

598, 615 N.E.2d 631 (1992).

{¶35} Molai contends that Standing Rock unlawfully entered Adam’s memorial 

when the cemetery removed the poles and posters, and that Standing Rock did not 

produce any evidence supporting its claim that it was legally allowed to remove the 

objects. 

{¶36} The trial court previously held in 2017, and this court affirmed on appeal, 

that Molai must have excavated the land to post the poles on Adam’s memorial and that 

the memorial with poles and posters did not conform to the general appearance of the 

cemetery. The court then found that because of both findings, Molai violated Standing 

Rock’s rules and regulations. The court ordered Molai to remove the poles and posters, 

and if he failed to do so within ten days, Standing Rock was allowed to enter the memorial 

and remove the objects. Molai did not remove the objects. Instead, he bolted the same 

objects to the headstone. Pursuant to the court order, Standing Rock removed the objects 

from Adam’s memorial. 

{¶37} Molai asserts that Standing Rock had no legal authority to enter the 

memorial because he moved the poles by bolting them to Adam’s headstone. Yet, the 
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court order specifically states that the objects did not conform with the general 

appearance of the cemetery and needed to be removed. Molai did not remove the 

objects. He only moved the same unaltered objects to the headstone without removing 

them from the cemetery. Thus, by acting under a court order that this court affirmed on 

appeal, Standing Rock lawfully entered the memorial to remove the objects.

{¶38} When construed in the light most favorable to Molai, the evidence leads 

reasonable minds to only one conclusion, and that conclusion is adverse to Molai.

{¶39} Molai’s second assignment of error is without merit. 

{¶40} “THIRD ASSIGNMENT OF ERROR: The trial court erred to the prejudice of 

Plaintiff Appellant by granting Defendant Appellee’s motion for a new trial pursuant to Civ. 

R. 59(A)(5).”

{¶41} Civ. R. 59(A)(5) provides that a new trial may be granted when there is an 

error in the amount of recovery, whether too large or too small, when the action is upon 

a contract.

{¶42} “Where a trial court is authorized to grant a new trial for a reason which 

requires the exercise of sound discretion, the order granting a new trial may be reversed 

only upon a showing of abuse of discretion by the trial court.” Simon v. Aulino, 2020-

Ohio-6962, 165 N.E.3d 706, ¶ 85 (4th Dist.). 

{¶43} “In Ohio, it has long been held that the assessment of damages is so 

thoroughly within the province of the jury that a reviewing court is not at liberty to disturb 

the jury's assessment absent an affirmative finding of passion and prejudice or a finding 

that the award is manifestly excessive.” Price v. KNL Custom Homes, Inc., 2015-Ohio-
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436, 28 N.E.3d 640, ¶ 46 (9th Dist.), quoting Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio 

St.3d 638, 654, 635 N.E.2d 331 (1994).

{¶44} Thus, we review the order granting a new trial on damages for an abuse of 

discretion.

{¶45} Molai asserts that the court erred in granting a new trial to determine 

damages because a jury has broad discretion to assess damages. 

{¶46} Under Ohio law, “[a] claimant seeking to recover for breach of contract must 

show damage as a result of the breach. Damages are not awarded for a mere breach of 

contract; the amount of damages awarded must correspond to injuries resulting from the 

breach.” Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 684 

N.E.2d 1261 (9th Dist.1996). The damages awarded “should place the injured party in as 

good a position as it would have been in but for the breach.” Id.

{¶47} Here, the court gave a jury instruction that if the jury found Standing Rock 

broke a contract with Molai, then “Plaintiff is entitled to damages in the amount sufficient 

to place him in the same position he would have been if the contract had been fully 

performed by the Defendant to the extent of the damages that are reasonable, certain 

and foreseeable.” 

{¶48} To establish damages for his breach of contract claim, the only evidence 

Molai presented to the jury was exhibit 6, which showed receipts for four purchases of 

plots. The price paid for each ranged from $450 to $675. 

{¶49} Molai is correct in asserting that the jury has broad discretion in assessing 

damages. Price v. KNL Custom Homes, Inc., 2015-Ohio-436 at ¶ 46. Yet, a reviewing 
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court may “disturb” the jury’s assessment if it finds the award is “manifestly excessive.” 

Id. 

{¶50} Here, the jury was instructed to award compensatory damages in an 

amount sufficient to place Molai in as good a position as he would have been if the 

contract had been fully performed. The jury instruction did not instruct or allow for 

damages relating to emotional distress or attorney’s fees. However, the jury returned a 

verdict which clearly places Molai in a much better position than he would have been if 

the contract had been performed. Molai also did not present any evidence even 

suggesting he was entitled to the amount awarded. The court did not abuse its discretion 

in granting a new trial by finding that the award was “too large” because no evidence had 

been presented suggesting a damage award that would exceed the amount sufficient to 

place Molai in as good a position he would have been in if Standing Rock had sold him 

the plots.

{¶51} Molai’s third assignment of error is without merit. 

{¶52} “FOURTH ASSIGNMENT OF ERROR: The trial court erred to the prejudice 

of Plaintiff Appellant by refusing to recuse itself from ruling on Defendant Appellee’s 

motion for a New Trial after the trial court acknowledged that it had participated in a postverdict ex parte discussion with the jury regarding the rationale for the jury’s verdict and 

damages award (T.d. 48).”

{¶53} In his fourth assignment of error, Molai contends that the judge erred by not 

recusing himself from ruling on Standing Rock’s motion for a new trial after a juror 

revealed after the trial ended that the jury had included attorney’s fees in the award of 

damages. 
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{¶54} Ohio Constitution, Article IV, Section 5(C) provides: “The chief justice of the 

supreme court or any judge of that court designated by him shall pass upon the 

disqualification of any judge of the courts of appeals or courts of common pleas or division 

thereof.” This provision “vests exclusive authority to pass on disqualification matters in 

the chief justice or her designee.” Beer v. Griffith, 54 Ohio St.2d 440, 441–442, 377 

N.E.2d 775 (1978).

{¶55} In Beer, the court of appeals voided a judgment of the trial court, holding 

that the trial judge erred and should have recused himself. However, the Ohio Supreme 

Court reversed, holding: “Since only the Chief Justice or his designee may hear 

disqualification matters, the Court of Appeals was without authority to pass upon 

disqualification or to void the judgment of the trial court upon that basis.” (Footnote 

omitted.) Id. at 441.

{¶56} Thus, a court of appeals lacks jurisdiction to review a trial judge's refusal or 

failure to recuse. State ex rel. Hough v. Saffold, 131 Ohio St.3d 54, 2012–Ohio–28 960 

N.E.2d 451, ¶ 2 (2012).

{¶57} Therefore, we do not have authority to review Molai’s assertion that he was 

prejudiced by the trial judge ruling on the motion for a new trial.

{¶58} We have considered whether Evid. R. 606(B) bears on this issue; it 

provides: 

Upon an inquiry into the validity of a verdict or indictment, a 

juror may not testify as to any matter or statement occurring 

during the course of the jury's deliberations or to the effect of 

anything upon that or any other juror's mind or emotions as 

influencing the juror to assent to or dissent from the verdict or 

indictment or concerning the juror's mental processes in 

connection therewith. A juror may testify on the question 

whether extraneous prejudicial information was improperly 
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brought to the jury's attention or whether any outside influence 

was improperly brought to bear on any juror, only after some 

outside evidence of that act or event has been presented. 

However a juror may testify without the presentation of any 

outside evidence concerning any threat, any bribe, any 

attempted threat or bribe, or any improprieties of any officer 

of the court. A juror's affidavit or evidence of any statement by 

the juror concerning a matter about which the juror would be 

precluded from testifying will not be received for these 

purposes.

{¶59} Evid. R. 606(B) does not apply here. The judge’s discussion with the juror 

only resulted in him learning information that a juror “blurted out.” There had not been at 

that time any inquiry into the validity of the verdict. No juror testified nor was there an 

affidavit or evidentiary material of a juror’s statement offered into evidence. 

{¶60} Molai’s fourth assignment of error is without merit.

{¶61} Molai’s assignments of error are without merit and we affirm the judgment 

of the Portage County Court of Common Pleas.

THOMAS R. WRIGHT, P.J.,

MARY JANE TRAPP, J.,

concur.