[Cite as Hartman v. Perler-Tomboly, 2013-Ohio-1752.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO

TIFFANY HARTMAN, 

Plaintiff-Appellee/CrossAppellant, 

 vs. 

SAMUEL PERLER-TOMBOLY, 

Defendant-Appellant/CrossAppellee. 

 

:

: 

: 

: 

: 

: 

APPEAL NOS. C-120428 

 C-120597 

 C-120604 

 TRIAL NO. A-0802935 

 O P I N I O N.

Civil Appeal From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause 

Remanded 

Date of Judgment Entry on Appeal: May 1, 2013 

Robert A. Klingler, for Plaintiff-Appellee/Cross-Appellant, 

Lindhorst & Dreidame, Michael F. Lyon and Bradley D. McPeek, for DefendantAppellant/Cross-Appellee.

 

 

Please note: this case has been removed from the accelerated calendar. 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

2 

Per Curiam. 

{¶1} This civil action arises from the sexual battery of plaintiffappellee/cross-appellant Tiffany Hartman by defendant-appellant/cross-appellee 

Samuel Perler-Tomboly (“Perler”), and the resulting damages to Hartman. Perler 

appeals from the denial of his motion to dismiss and from that portion of the 

judgment awarding compensatory damages to Hartman for the period from May 

2008, when Hartman last saw her psychologist, until trial. Hartman, in turn, 

appeals from that portion of the trial court’s decision denying attorney fees to 

Hartman for one of Hartman’s previous attorneys who had filed a notice of charging 

lien against the judgment. 

{¶2} For the reasons that follow, we find merit in Hartman’s appeal, 

therefore, we reverse that portion of the trial court’s judgment denying attorney fees 

to Hartman for the attorney who had filed a charging lien. We affirm the remainder 

of the trial court’s judgment. 

Facts and Procedural Background 

{¶3} On October 9, 2007, Hartman sought emergency medical treatment at 

Mercy Hospital Anderson for abdominal pain. Perler was Hartman’s treating 

physician in the emergency room. After administering medications to Hartman, 

Perler sexually molested her, and, as a result, Perler was convicted of sexual battery 

and gross sexual imposition. Hartman sued Perler in February 2008, and the matter 

proceeded to a jury trial in April 2012, where the sole issue at trial was damages. 

{¶4} Hartman’s ex-husband, Steve Hartman, testified at trial as to 

Hartman’s change of behavior since the incident with Perler. Mr. Hartman testified 

that he and Hartman had divorced just weeks prior to the incident with Perler, but 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

3 

that Hartman had seemed hopeful about the future and had begun to go out more. 

After the incident, Mr. Hartman testified, Hartman’s behavior had changed 

dramatically: She had become anxious, especially in public places; she had no longer 

wanted to socialize; and she had felt unsafe at school-related events. Mr. Hartman 

testified that Hartman’s symptoms continued through the time of trial. 

{¶5} Hartman testified as to the effects of the incident as well. She 

remained unable to keep steady employment since the incident, she was not able to 

be the mother that she used to be, and she felt uncomfortable with physical touch. 

On cross-examination, Hartman acknowledged that she had had a history of mentalhealth issues. While growing up, Hartman had been emotionally and physically 

abused by her father. Her medical records referenced suicide attempts. She had 

been in an unhappy marriage, which had included a separation in 2003 where 

Hartman had overdosed, and an incident involving drugs where Hartman had called 

the police to report her then-husband. Hartman had been treated by a psychiatrist 

as early as 2002 for depression and anxiety, and had taken several different 

prescription antidepressants since that time. 

{¶6} Hartman had begun seeing psychologist Jill Bley shortly after the 

incident, until May 2008, and Bley testified that Hartman had developed posttraumatic stress disorder as a result of Perler’s conduct. Bley testified to the 

symptoms that Hartman had exhibited, including that Hartman had had trouble 

caring for her children, had had panic attacks, and had avoided conversations with 

others. Bley, however, had stopped treating Hartman on May 14, 2008, and 

Hartman had not been treated by anyone else for the issues she had been 

experiencing since the incident. 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

4 

{¶7} At the close of Hartman’s evidence, Perler made a motion for a 

directed verdict, arguing in part that, because Hartman had had emotional and 

psychological issues well before the incident with Perler, Hartman was required to 

present expert testimony to the jury on causation as to those damages sustained after 

treating with Bley. The trial court overruled Perler’s motion, but created a jury 

interrogatory regarding the amount of “emotional psychological damage” for the 

following time periods: (1) from the date of the incident, October 9, 2007, until 

Hartman’s last visit with Bley, May 2008; (2) from May 2008 until April 16, 2012, 

the first day of trial; and (3) beyond trial. 

{¶8} The jury awarded Hartman $150,000 for the first time period, 

$55,000 for the second, and $0 for the third. The jury also awarded $25,000 to 

Hartman in punitive damages, and determined that Perler should pay Hartman’s 

attorney fees. Hartman submitted three separate attorney affidavits in her 

application for attorney fees. The trial court determined that Hartman could recover 

$90,000 and $7,965 respectively for two of the attorneys. The trial court 

determined, however, that Hartman was not entitled to attorney fees for the third 

attorney, William Knapp, because Knapp had already filed a notice of a charging lien 

on the judgment. 

{¶9} Perler has appealed from the judgment of the trial court, and Hartman 

has cross-appealed. 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

5 

Perler’s Appeal 

{¶10} In his first assignment of error, Perler argues that the trial court erred 

by overruling his motion for a directed verdict. Perler specifically challenges the 

jury’s award for the time period of May 2008, when Hartman last treated with Bley, 

until trial. Perler argues that Hartman failed to present any expert testimony 

regarding causation for her psychological damages for this timeframe, which was 

required given Hartman’s mental-health history. 

{¶11} As a general matter, expert testimony is not required to prove painand-suffering damages. See Fantozzi v. Sandusky Cement Products Co., 64 Ohio 

St.3d 601, 612, 597 N.E.2d 474 (1992). As stated by the Sixth Appellate District, 

[s]ince pain and suffering are subjective feelings, the 

injured person’s testimony is the only direct proof of 

such damages. An expert can only support such 

evidence indirectly. Therefore, lay testimony is 

sufficient by itself to prove past pain and suffering 

damages. 

Youssef v. Jones, 77 Ohio App.3d 500, 505, 602 N.E.2d 1176 (6th Dist.1991). Those 

lay witnesses who are acquainted with an injured person may also testify as to the 

injured’s pain and suffering. Barker v. Barker, 147 Ohio App.3d 1, 18, 768 N.E.2d 

698 (10th Dist.2001). 

{¶12} Perler argues that when an injured party has a “long history of 

preexisting emotional and psychological problems,” expert testimony regarding 

causation of damages is required. Perler relies largely on Culp v. Federated Dept. 

Stores, Inc., 11 Ohio App.2d 165, 229 N.E.2d 100 (2d Dist.1965). In Culp, the 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

6 

plaintiff had been wrongfully detained at the defendant’s department store, and 

according to the complaint, the plaintiff had been suffering from a nervous condition 

at the time, which had been aggravated by the defendant’s conduct. At trial, the only 

medical expert refused to testify that the defendant’s conduct caused the plaintiff’s 

condition, stating that a causal relationship “could possibly” exist. Id. at 166. The 

court determined that expert testimony on causation of damages was required in 

light of the plaintiff’s pre-existing mental history, and, therefore, the court reversed 

the trial court’s denial of the defendant’s motion notwithstanding the verdict. Id. at 

168. 

{¶13} Unlike in Culp, where no expert testimony was offered to establish 

causation, Bley testified that Hartman had developed post-traumatic stress disorder 

as a result of Perler’s conduct. Bley also testified as to the nature of Hartman’s 

symptoms, including that Hartman had had trouble caring for her children, had had 

panic attacks, and had avoided conversations with others. Given Bley’s testimony 

and the testimony of Hartman and her ex-husband that the symptoms had continued 

through the time of trial, the jury was free to determine the amount of damages for 

pain and suffering, if any, for the time period when Hartman had last treated with 

Bley until trial. Therefore, we overrule Perler’s first assignment of error. 

{¶14} Perler’s second, third, and fourth assignments of error all relate to the 

trial court’s decision overruling the motion to dismiss Hartman’s original and 

amended complaints for failure to comply with Civ.R. 10(A), and allowing Hartman 

to file an amended complaint. Hartman filed her original complaint in February 

2008, and instead of using her full name and address in the complaint caption, 

Hartman used the initials “T.H.” and her lawyer’s address. Perler’s previous 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

7 

employer raised the failure to comply with Civ.R. 10(A) in February 2009, which was 

never expressly ruled on by the trial court. Perler then filed a renewed motion to 

dismiss on April 12, 2012, just prior to trial. After trial, but before the entry of final 

judgment, Hartman filed an amended complaint for the sole purpose of conforming 

with Civ.R. 10(A). 

{¶15} As a general matter, we review a trial court’s denial of a motion to 

dismiss de novo. Inwood Village, Ltd. v. The Christ Hosp., 1st Dist. No. C-110730, 

2012-Ohio-3434, ¶ 7. A failure to comply with Civ.R. 10(A) may be cause for 

dismissal. See, e.g., State ex rel. Sherrills v. State, 91 Ohio St.3d 133, 742 N.E.2d 651 

(2001). A court, however, is not required to dismiss a complaint for failure to strictly 

comply with Civ.R. 10(A). See Russell v. Scott, 10th Dist. No. 98AP-625, 1998 Ohio 

App. LEXIS 6170 (Dec. 15, 1998) (“[C]aption defects may be disregarded unless the 

complaining party can demonstrate prejudice resulting from the failure to comply 

with the requisites of Civ.R. 10(A).”). 

{¶16} The case relied upon by Perler, Group of Tenants from Grandview 

Homes v. Mar-Len Reality, Inc., 40 Ohio App.2d 449, 321 N.E.2d 241 (3d Dist.1974), 

is inapposite. In Group of Tenants, the court affirmed the dismissal of the plaintiff’s 

complaint where the complaint had listed the plaintiff as “A Group of Tenants From 

The Grandview Homes, on behalf of themselves and all others similarly situated” and 

had given only the address of the attorney as the plaintiff’s address. Id. at 449. In 

affirming the dismissal, the court determined that a plaintiff’s identity is essential to 

the complaint, and that “where an unidentified group is involved, there is no 

assurance that the individual components of the group may not drift in and out of the 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

8 

lawsuit with no one ultimately responsible for it, and no one set of facts 

determinative of it.” Id. at 450. 

{¶17} Unlike Group of Tenants, where the plaintiff’s identity had been 

unknown, the record indicates that Perler had known Hartman’s identity upon the 

filing of the initial complaint. Moreover, Perler suffered no prejudice by Hartman’s 

failure to strictly comply with Civ.R. 10(A). Therefore, we overrule Perler’s second, 

third, and fourth assignments of error. 

Hartman’s Cross-Appeal 

{¶18} In Hartman’s sole assignment of error, she argues that the trial court 

erred by refusing to include Knapp’s fees in its entry awarding attorney fees solely 

because Knapp had filed a notice of a charging lien. We review a trial court’s award 

of attorney fees under an abuse-of-discretion standard. Bittner v. TriCounty Toyota, 

58 Ohio St.3d 143, 146, 569 N.E.2d 464 (1991). 

{¶19} An award of attorney fees is proper “as an element of compensatory 

damages where the jury finds that punitive damages are warranted.” Zoppo v. 

Homestead Ins. Co., 71 Ohio St.3d 552, 557, 644 N.E.2d 397 (1994). The jury found 

that punitive damages were proper against Perler and also found that Hartman 

should recover attorney fees. Nevertheless, Perler opposed Hartman’s application 

for attorney fees, arguing that Knapp’s fees should not be recovered by Hartman 

because Knapp had filed a charging lien. Perler’s argument contravenes the findings 

of the jury, and unjustly punishes Hartman by preventing her from recovering 

reasonable attorney fees for Knapp’s services solely because Knapp had chosen to file 

a notice of charging lien before Hartman had even filed her attorney-fee application. 

We can discern no sound reasoning process that supports the trial court’s decision. 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

9 

See AAAA Ents. Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 

157, 161, 553 N.E.2d 597 (1990). Therefore, we sustain Hartman’s assignment of 

error. 

{¶20} In conclusion, we reverse that portion of the trial court’s decision 

omitting attorney Knapp’s fees from the fee award to Hartman, and we remand the 

issue to the trial court to consider the reasonableness of Knapp’s fees. In all other 

respects, the judgment of the trial court is affirmed. 

Judgment affirmed in part, reversed in part, and cause remanded. 

HILDEBRANDT, P.J., CUNNINGHAM andFISCHER, JJ.

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.