[Cite as Robinson v. Turoczy Bonding Co., 2016-Ohio-7397.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 103787 

L. BRANDON ROBINSON

PLAINTIFF-APPELLEE

vs.

TUROCZY BONDING COMPANY, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-13-811184 

BEFORE: Boyle, J., Stewart, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: October 20, 2016 
ATTORNEY FOR APPELLANT 

Brett M. Mancino 

Mancino Co., L.P.A. 

75 Public Square, Suite 1016 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Joseph F. Scott 

Ryan A. Winters 

Scott & Winters Law Firm, L.L.C. 

The Superior Building 

815 Superior Avenue E., Suite 1325 

Cleveland, Ohio 44114 

Kevin V. Rogers, Jr. 

Kraig & Kraig 

815 Superior Avenue East, Suite 1920 

Cleveland, Ohio 44114 
MARY J. BOYLE, J.: 

{¶1} Defendant-appellant, Turoczy Bonding Company (“Turoczy Bonding”), 

filed this appeal after judgment was entered in favor of plaintiff-appellee, L. Brandon 

Robinson (“Robinson”), following a jury trial. Turoczy Bonding appeals from the jury 

verdict, the trial court’s decisions denying its motions for directed verdict, judgment 

notwithstanding the verdict and new trial, as well as the trial court’s order awarding 

prejudgment interest. Finding no merit to the appeal, we affirm. 

A. Procedural History and Factual Background

{¶2} Robinson worked for Turoczy Bonding (a.k.a. City Bonding) as an 

authorized bail bond agent from October 2009 through December 2011. Turoczy 

Bonding is a local company that posts surety bonds (up to one million dollars) entirely 

backed by Universal Insurance. Robinson became a bail bond agent after taking a 

course taught by Elizabeth Reyes Large (“Elizabeth”), who worked with Garrett 

McClellan, the manager of Turoczy Bonding. 

{¶3} In July 2013, Robinson filed a lawsuit against Turoczy Bonding, Spring 

Break, L.L.C., as well as Elizabeth and Donnell Mitchell (“Donnell”) — both bail bond 

agents of Turoczy Bonding, asserting claims for breach of contract, fraudulent 

inducement, conversion, and unjust enrichment. The matter proceeded to a jury trial, 

where the breach of contract claim against Turoczy Bonding was the only claim to 

survive defendants’ motion for a directed verdict following the close of Robinson’s case. 
{¶4} According to Robinson’s case at trial, Turoczy Bonding had failed to pay 

Robinson the commission that he was promised for bond premiums that he collected. In 

the bail bond industry, a bail bond company is required to charge the statutory rate of 10 

percent on the face value of a bond — which is the premium for the bond. Robinson 

established that Turoczy Bonding had agreed to pay him under the following commission 

structure: 40 percent commission on the premium for all bonds with a face value greater 

than $5,000, and 30 percent commission on all bonds with a face value of less than 

$5,000. For example, if Robinson wrote a bond for $10,000, he would be entitled to 

$400 of the $1,000 premium. According to Robinson’s case at trial, he was owed 

$103,444 in unpaid commissions. Robinson offered his receipt book and a detailed 

spreadsheet as evidence of every bond that he wrote and the commissions that had not 

been paid. Specifically, Robinson’s spreadsheet, which was admitted as an exhibit and 

not challenged on appeal, reflected that he handled 395 bonds, which produced a total of 

$361,060 in premiums. 

{¶5} Conversely, Turoczy Bonding maintained that it never employed Robinson, 

that he was solely an “independent-contracted agent,” and that Robinson “possessed” 

many of the commissions that he now claims he is owed but then turned these 

commissions over to Elizabeth or Donnell — not Turoczy Bonding. According to 

Turoczy Bonding’s records, Robinson was paid in full on all the commissions that he was 

due. Specifically, Turoczy Bonding offered a detailed spreadsheet, summarizing the 

weekly bail agent reports submitted by Robinson. McClellan testified that bail bond 
agents were paid based on the agent’s submission of weekly reports, and Turoczy 

Bonding’s records demonstrated that Robinson was paid $13,812.10 on the $38,596.10 in 

premiums collected on bonds that he wrote. 

{¶6} We will discuss the evidence presented at trial in greater detail as it relates 

to our disposition of the assignments of error. 

{¶7} The jury ultimately returned a verdict in Robinson’s favor in the amount of 

$75,000. The trial court entered judgment on this amount and awarded Robinson 

prejudgment interest. Turoczy Bonding subsequently filed motions for judgment 

notwithstanding the verdict and new trial, both of which the trial court denied. 

{¶8} Turoczy Bonding appeals, raising the following five assignments of error: 

I. The jury verdict against Turoczy was against the manifest weight 

of the evidence. 

II. The trial court erred in not granting a directed verdict in favor of 

Turoczy, or in the alternative, a new trial in light of the fact that Donnell 

was a named necessary party but never served with the complaint and he 

did not participate in the trial. 

III. The trial court erred in instructing the jury on the breach of 

commission claim. 

IV. The trial court erred in not dismissing the case because 

Robinson could not testify with any degree of reasonable certainty as to his 

claimed damages. 

V. The trial court erred when it granted prejudgment interest 

without a motion being filed and without a hearing. 

B. Manifest Weight of the Evidence
{¶9} In his first assignment of error, Turoczy Bonding argues that the jury’s 

verdict is against the manifest weight of the evidence. We disagree. 

{¶10} When reviewing the manifest weight of the evidence in a civil case, this 

court weighs the evidence and all reasonable inferences, considers the credibility of 

witnesses and determines whether in resolving conflicts in the evidence, the finder of fact 

clearly lost its way and created such a manifest miscarriage of justice that the judgment 

must be reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 

2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. Weight of the evidence concerns “‘the 

inclination of the greater amount of credible evidence, offered in a trial, to support one 

side of the issue rather than the other.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 

678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594 (6th Ed.1990). 

{¶11} “We are guided by a presumption that the findings of the trier of fact are 

correct.” Di v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 101760, 

2016-Ohio-686, ¶ 115, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 

461 N.E.2d 1273 (1984). This presumption arises because the trier of fact had an 

opportunity “to view the witnesses and observe their demeanor, gestures and voice 

inflections, and use these observations in weighing the credibility of the proffered 

testimony.” Id. 

{¶12} At the heart of Turoczy Bonding’s manifest weight of the evidence 

challenge is its claim that Robinson had collected but turned over to Elizabeth or Donnell 

many of the commissions that he later sought Turoczy Bonding to pay. Specifically, 
Turoczy Bonding relies on Robinson’s testimony admitting that he would collect payment 

from a client and then turn the payment over to Donnell or Elizabeth at the end of the day. 

 Turoczy Bonding argues that Robinson failed to present any evidence that Donnell or 

Elizabeth had any authority to accept payments on Turoczy Bonding’s behalf or that 

Turoczy Bonding actually received the payments. 

{¶13} But our review of the record reveals otherwise. The evidence at trial 

supported Robinson’s case that Donnell or Elizabeth had apparent authority to accept 

payments on behalf of Turoczy Bonding. The evidence revealed that Elizabeth brought 

Robinson on board at Turoczy Bonding, introduced him to McClellan and Donnell, and 

that Donnell took him under his wing. Robinson further testified that he initially 

believed Elizabeth to be his boss. And while Elizabeth was an independent bail bond 

agent of Turoczy Bonding during part of Robinson’s tenure with Turoczy Bonding, she 

also worked as one of the office employees in 2010. According to McClellan’s 

testimony, Elizabeth had authority to accept cash payments on financed bonds and deliver 

the commission owed to the respective bail bond agent while working as an office 

employee. Elizabeth also testified that she “may have” collected money from Turoczy 

Bonding to be paid to Robinson, specifically referencing if Robinson had a client coming 

into the office. 

{¶14} The other compelling evidence that supports the jury’s reasonable inference 

that Donnell or Elizabeth had apparent authority to accept payments on behalf of Turoczy 

Bonding is the fact that some of the weekly reports submitted on Robinson’s behalf were 
completed by either Donnell or Elizabeth. Notably, Turoczy Bonding’s defense at trial 

was that it paid Robinson what it owed him based on the weekly reports filed. 

According to McClellan, the weekly report was the sole method for determining the 

commissions owed a bail bond agent. Given that Turoczy Bonding was obviously 

paying Robinson for commissions based on reports filled out by Donnell or Elizabeth, we 

find that the jury reasonably believed that Turoczy Bonding was on notice of Donnell and 

Elizabeth accepting payments. McClellan further acknowledged that it was his 

responsibility and job duty as officer manager to make sure that commissions were 

properly delivered to the bail bond agent who earned them. While McClellan denied 

that Robinson ever complained about not being paid his commission, Robinson testified 

to the contrary. 

{¶15} Notably, Turoczy Bonding is not challenging Robinson’s evidence related to 

the number of bonds that he handled on Turoczy Bonding’s behalf. At trial, Robinson 

established that Turoczy Bonding is required to track all of the power of attorneys issued 

to its bail bondsmen and that they are required to keep on file for five years all 

applications filed in support of a bond. Robinson further demonstrated that, despite 

Turoczy Bonding’s ability to refute the receipt records offered by Robinson in support of 

his claim of unpaid commissions, Turoczy Bonding did not present any of the bond 

applications. McClellan acknowledged producing documents reflecting Robinson 

having issued only 45 powers of attorney to Robinson, despite Robinson’s receipts 
reflecting 395 powers of attorney. McClellan conceded, therefore, that Turoczy 

Bonding had some “missing records.” 

{¶16} Although conflicting evidence was presented at trial, we cannot say that the 

jury clearly lost its way. The jury clearly found Robinson to be more credible, which it 

was free to do. Based on the evidence in the record, we find that the verdict is not 

against the manifest weight of the evidence. 

{¶17} The first assignment of error is overruled. 

C. Motion for Directed Verdict, Judgment Notwithstanding the 

Verdict, or New Trial

{¶18} In its second assignment of error, Turoczy Bonding argues that the trial 

court erred in denying its request for directed verdict, judgment notwithstanding the 

verdict, or new trial on the basis that Donnell was never made a party to the action. 

According to Turoczy Bonding, Donnell’s absence from the trial as well as the trial 

court’s granting directed verdict in favor of Elizabeth were procedural irregularities that 

prejudiced its defense. Turoczy Bonding further argues that the trial court “exacerbated 

the issue when it erroneously and prejudicially instructed the jury” as follows during 

Turoczy Bonding’s cross-examination of Robinson: 

THE COURT: Ladies and gentlemen, I would explain to you that 

when the lawsuit was originally filed, there was a claim asserted against this 

additional person, Donnell Mitchell; however, that person has not been 

formally brought into the lawsuit, therefore, no one is being now — there is 

no claim before you against this person because that person has never been 

formally brought into the lawsuit. Thank you. 

{¶19} We find this argument to lack merit. 
{¶20} Civ.R. 50 sets forth the standard of granting a motion for directed verdict: 

When a motion for directed verdict has been properly made, and the trial 

court, after construing the evidence most strongly in favor of the party 

against whom the motion is directed, finds that upon any determinative 

issue reasonable minds could come to but one conclusion upon the evidence 

submitted and that conclusion is adverse to each party, the court shall 

sustain the motion and direct a verdict for the moving party as to that issue. 

{¶21} The same standard applies to a motion for judgment notwithstanding the 

verdict. Chem. Bank of N.Y. v. Neman, 52 Ohio St.3d 204, 207, 556 N.E.2d 490 (1990). 

 We employ a de novo standard of review in evaluating the grant or denial of a motion 

for a directed verdict or a motion for judgment notwithstanding the verdict. Grau v. 

Kleinschmidt, 31 Ohio St.3d 84, 90, 509 N.E.2d 399 (1987). “The trial court does not 

weigh or consider the credibility of the witnesses, but rather, reviews and considers the 

sufficiency of the evidence as a matter of law.” Siebert v. Lalich, 8th Dist. Cuyahoga 

No. 87272, 2006-Ohio-6274, ¶ 14 (citing a string of cases). 

{¶22} Although it broadly attacks the trial court’s denial of its motions for directed 

verdict and judgment notwithstanding the verdict, Turoczy Bonding raises no argument 

related to the evidence presented at trial. Instead, the gravamen of its argument is that it 

“was prejudiced because Donnell (and Elizabeth) were necessary and indispensable 

parties who should have participated at the trial.” This argument therefore relates solely 

to Turoczy Bonding’s motion for a new trial under Civ.R. 59(A). 

{¶23} The standard of review we apply to a trial court’s ruling on a motion for new 

trial filed under Civ.R. 59 depends on the grounds for the motion. For example, a 

motion for new trial premised upon a procedural irregularity under Civ.R. 59(A)(1) is 
reviewed for an abuse of discretion. Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 

2007-Ohio-5587, 876 N.E.2d 1201, ¶ 35 – 36. A motion for a new trial premised upon 

“error of law occurring at the trial and brought to the attention of the trial court” under 

Civ.R. 59(A)(9), however, is reviewed under a de novo standard. 

{¶24} Applying either standard to Turoczy Bonding’s motion for a new trial, we 

find no basis to reverse the trial court’s judgment. Contrary to Turoczy Bonding’s claim 

on appeal, we find no instance in the record where Turoczy Bonding raised this issue and 

asked that Donnell be made a party to the trial. In fact, despite that Turoczy Bonding’s 

defense strategy relied heavily on pointing the finger at Donnell as the culpable party, 

Turoczy Bonding never moved the court to have Donnell joined as a necessary party. 

Civ.R. 19(A) expressly provides that if a party fails to timely assert the defense of failure 

to join a party, the defense is waived. Bamba v. Derkson, 12th Dist. Warren No. 

CA2006-10-125, 2007-Ohio-5192, ¶ 22, citing Garcia v. O’Rourke, 4th Dist. Gallia No. 

04CA7, 2005-Ohio-1034, ¶ 18; see also Cawley JV, L.L.C. v. Wall St. Recycling L.L.C.,

8th Dist. Cuyahoga No. 102121, 2015-Ohio-1846, ¶ 18 (other than in a declaratory 

judgment action, “the failure to properly raise and maintain a joinder defense waives that 

defense”). In the instant case, Turoczy Bonding never raised this issue in the trial court 

proceedings below and therefore has waived it. 

{¶25} Likewise, Turoczy Bonding’s failure to raise the issue before or even during 

trial is fatal to the grounds asserted in its motion for a new trial. Indeed, “[a] movant 

may not obtain relief pursuant to Civ.R. 59(A)(1) for an irregularity in the proceedings 
when the movant could reasonably have avoided the prejudice the irregularity caused.” 

See Allin v. Hartzell Propeller, Inc., 161 Ohio App.3d 358, 2005-Ohio-2751, 830 N.E.2d 

413, ¶ 14 (2d Dist.) (plaintiff’s failure to seek continuance in order to properly serve 

witness waived his right to complain that irregularity chargeable to court prevented him 

from having a fair trial). Similarly, Civ.R. 59(A)(9) allows for a new trial based on an 

“[e]rror of law occurring at the trial and brought to the attention of the trial court by the 

party making the application.” Again, Turoczy Bonding never brought this alleged error 

to the trial court’s attention during the trial. Nor did it object to the trial court’s 

instruction during Turoczy Bonding’s cross-examination of Robinson, which it now 

argues deprived it of a fair trial. Aside from finding no error in the trial court’s 

explanation to the jury that Donnell “has not been formally brought into the lawsuit,” 

Turoczy Bonding has waived this issue on appeal by not objecting. See Galmish v. 

Cicchini, 90 Ohio St.3d 22, 32, 734 N.E.2d 782 (2000) (the failure to object at the trial 

court level constitutes a waiver of the issue on appeal). 

{¶26} Having found that the trial court neither abused its discretion nor erred, we 

overrule the second assignment of error. 

D. Jury Instruction

{¶27} In its third assignment of error, Turoczy Bonding argues that the trial court 

erred in instructing the jury on the breach of commission claim because “it attributed 

liability to Turoczy through ‘an authorized employee’ (presumably Donnell and 
Elizabeth) when there was no evidence that Donnell and Elizabeth were ‘authorized 

employees’ with authority to act on behalf of Turoczy.” 

{¶28} The decision to give a specific jury instruction rests within the sound 

discretion of the trial court and will not be disturbed on appeal absent an abuse of 

discretion. Sicklesmith v. Chester Hoist, 169 Ohio App.3d 470, 2006-Ohio-6137, 863 

N.E.2d 677, ¶ 62 (7th Dist.). In determining the appropriateness of jury instructions, an 

appellate court reviews the instructions as a whole. Wozniak v. Wozniak, 90 Ohio App.3d 

400, 629 N.E.2d 500 (9th Dist.1993). If the totality of the instructions clearly and fairly 

expresses the law, a reviewing court should not reverse a judgment based upon an error in 

a portion of a charge. Peffer v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 94356, 

2011-Ohio-450, ¶ 45. “A strong presumption exists in favor of the propriety of jury 

instructions.” Schnipke v. Safe-Turf Installation Group, L.L.C., 190 Ohio App.3d 89, 

2010-Ohio-4173, 940 N.E.2d 993, ¶ 30 (3d Dist.), citing Burns v. Prudential Sec., Inc., 

167 Ohio App.3d 809, 2006-Ohio-3550, 857 N.E.2d 621, ¶ 41 (3d Dist.). 

{¶29} With respect to Robinson’s commission claim, the trial court instructed the 

jury as follows: 

The undisputed evidence shows that Turoczy Bonding Company has 

agreed to pay Mr. Robinson 40 percent of any payment that he or Turoczy 

Bonding Company received for a bail bond that he sold that equaled or 

exceeded $5,000, and 30 percent of any payment he or Turoczy Bonding 

Company received for a bail bond he sold that was less than $5,000. Mr. 

Robinson earned a commission as part of any payment that he or any 

authorized employee of Turoczy Bonding Company received for a bail bond 

he sold. He did not earn a commission for money that a bond purchaser 

failed to pay him or Turoczy Bonding Company. 
{¶30} Turoczy Bonding objected to the instruction on the basis that it included 

language referring to payment that “any authorized employee of Turoczy Bonding 

Company received.” Specifically, defense counsel objected as follows: 

I propose that Mr. Robinson earned a commission as part of any 

payment for any premium actually paid and collected. 

I don’t think there is enough evidence that he was entitled to 

anything collected by any authorized employee. I think that [Elizabeth] 

has been dismissed from this case. That’s what I think their theory of the 

case was at the beginning. She’s testified that she’s not an authorized 

employee, authorized agent, to do anything on behalf of the company. 

{¶31} We cannot say that the trial court abused its discretion in refusing to accept 

defense counsel’s proposed change. As discussed above, there was evidence presented 

that would allow the jury to reasonably conclude that Elizabeth was an authorized 

employee to accept payment from a client for a bail bond that Robinson sold. Aside 

from Elizabeth expressly testifying that she was an employee of Turoczy Bonding in 2010 

and that she would collect cash payments from clients, she also testified that she may 

have collected money for Robinson from Turoczy Bonding. Further, Turoczy Bonding 

paid Robinson based on weekly reports completed by Donnell or Elizabeth on Robinson’s 

behalf. This evidence coupled with Robinson’s testimony supported the trial court’s 

instruction. 

{¶32} Turoczy Bonding further claims that the instruction was inadequate and 

misleading because “Robinson was not entitled to any commissions paid on a payment 
plan if Turoczy was not actually paid.” But the instruction expressly stated as much: 

“He did not earn a commission for money that a bond purchaser failed to pay him or 

Turoczy Bonding Company.” To the extent that Turoczy Bonding now complains that 

the trial court should have provided an agency instruction, we find that it has waived this 

argument by not requesting such an instruction. Goldfuss v. Davidson, 79 Ohio St.3d 

116, 121, 679 N.E.2d 1099 (1997) (failure to request a jury instruction generally results in 

the waiver of the issue on appeal). 

{¶33} Having found no abuse of discretion in the instruction given, we overrule 

the third assignment of error. 

E. Damages 

{¶34} In its fourth assignment of error, Turoczy Bonding argues that the trial court 

erred in not dismissing the case because the damages were merely speculative. 

According to Turoczy Bonding, “Robinson could not testify with any certainty as to the 

damages allegedly owed,” and therefore his action should have been dismissed. We find 

these arguments to lack merit. 

{¶35} First, under Ohio law, “[t]he uncertainty which prevents a recovery of 

damages is generally uncertainty as to the fact of the damages, not the amount.” 

Bemmes v. Pub. Emp. Retirement Sys., 102 Ohio App.3d 782, 789, 658 N.E.2d 31 (12th 

Dist.1995), citing 22 American Jurisprudence 2d, Damages, Section 25 (1988, 

Supp.1995). Ohio courts consistently recognized that recovery on a breach of contract is 

precluded only when the existence of damages is uncertain, not when the amount is 
uncertain. Woehler v. Brandenburg, 12th Dist. Clermont No. CA2011-12-082, 

2012-Ohio-5355, ¶ 35; Fiorilli Constr., Inc. v. A. Bonamase Contracting, Inc., 8th Dist. 

Cuyahoga No. 94719, 2011- Ohio-107, ¶ 36. 

{¶36} Second, we disagree that Robinson failed to satisfy his burden to prove his 

damages to a reasonable degree of certainty to support the award given. We find that 

Turoczy Bonding misconstrues Robinson’s statements and that they do not support its 

claim that Robinson could not testify to any reasonable certainty as to the damages 

amount. 

{¶37} As a general rule, “an injured party cannot recover damages for breach of 

contract beyond the amount that is established by the evidence with reasonable certainty, 

and generally, courts have required greater certainty in the proof of damages for breach of 

contract than in tort.” Rhodes v. Rhodes Indus., Inc., 71 Ohio App.3d 797, 808-809, 595 

N.E.2d 441 (8th Dist.1991). A plaintiff can only be compensated for damages for 

breach of contract for “an amount that is established by the evidence with reasonable 

certainty.” Kinetico, Inc. v. Indep. Ohio Nail Co., 19 Ohio App.3d 26, 30, 482 N.E.2d 

1345 (8th Dist.1985). But if sufficient evidence is presented from which the jury could 

award damages, then the jury’s verdict should not be disturbed. Fiorilli Constr., Inc. at 

¶ 38. 

{¶38} We find that sufficient evidence was presented to support the damages 

award in this case and that the amount of damages is established by the evidence with 

reasonable certainty. Robinson presented all of his receipts in support of the bonds that 
he wrote and testified in detail as to the commissions that he had not been paid but owed. 

 He further offered a detailed spreadsheet that was admitted as an exhibit and not 

challenged on appeal, which summarized the unpaid commission owed on each bond. 

To the extent that Robinson’s evidence could not account for whether Turoczy Bonding 

received payment on the financed bonds that Robinson sold, and Turoczy Bonding 

presented credible evidence that it never received payment on those financed bonds, the 

jury clearly deducted this amount from its damages award. The jury also obviously took 

into account some of the stated errors in Robinson’s receipt book. But the mere fact that 

Robinson had some inaccuracies in his recordkeeping does not preclude recovery on the 

other properly supported claims for unpaid commissions. 

{¶39} The fourth assignment of error is overruled. 

F. Prejudgment Interest

{¶40} In its final assignment of error, Turoczy Bonding argues that the trial court 

erred when it granted prejudgment interest sua sponte and without holding a hearing. 

We disagree. 

{¶41} Relying on the Twelfth Appellate District’s decision in Nguyen v. Chen, 

12th Dist. Butler No. CA2013-10-191, 2014-Ohio-5188, Turoczy Bonding argues that the 

trial court erred in awarding prejudgment interest on a breach of contract claim without a 

motion and without a hearing. Although the court in Nguyen found that the trial court 

erred in failing to hold a hearing based on the plain language of the statute, the court was 

addressing subsection R.C. 1343.03(C), which applied specifically to “a civil action that 
is based on tortious conduct.” The court was not discussing R.C. 1343.03(A), which 

governs a breach of contract claim as presented in this case. See Waina v. Abdallah, 8th 

Dist. Cuyahoga No. 86629, 2006-Ohio-2090, ¶ 55 (“award of prejudgment interest as to 

claims arising out of breach of contract is governed by R.C. 1343.03(A)”). Thus, the 

decision in Nguyen is not applicable. 

{¶42} Conversely, the subsection that governs the instant case, R.C. 1343.03(A), 

does not contain the same requirement to hold a hearing. The statute provides as 

follows: 

In cases other than those provided for in sections 1343.01 and 1343.02 of 

the Revised Code, when money becomes due and payable upon any bond, 

bill, note, or other instrument of writing, upon any book account, upon any 

settlement between parties, upon all verbal contracts entered into, and upon 

all judgments, decrees, and orders of any judicial tribunal for the payment 

of money arising out of tortious conduct or a contract or other transaction, 

the creditor is entitled to interest at the rate per annum determined pursuant 

to section 5703.47 of the Revised Code, unless a written contract provides a 

different rate of interest in relation to the money that becomes due and 

payable, in which case the creditor is entitled to interest at the rate provided 

in that contract. 

{¶43} This court has consistently recognized that in a breach of contract case 

between private parties where liability is established, “the trial court does not have 

discretion in awarding prejudgment interest.” Fiorilli Constr., Inc., 8th Dist. Cuyahoga 

No. 94719, 2011-Ohio-107, at ¶ 57, citing Waina, supra; Reminger & Reminger Co., 

L.P.A. v. Fred Siegel Co., 8th Dist. Cuyahoga No. 77712, 2001 Ohio App. LEXIS 760 

(Mar. 1, 2001). Indeed, “where a party has been granted judgment on an underlying 

contract claim, that party is entitled to prejudgment interest as a matter of law.” Id. 
{¶44} Thus, based on the argument raised, we find no error in the trial court’s 

granting of prejudgment interest without holding a hearing or waiting for a motion. 

{¶45} The final assignment of error is overruled. 

{¶46} Judgment affirmed. 

It is ordered that appellee recovers from appellant 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 common 

pleas court 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. 

 

 

MARY J. BOYLE, JUDGE 

MELODY J. STEWART, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR