# Duracote Corp. v. Goodyear Tire & Rubber Co. > Ohio Supreme Court · January 5, 1983 · 2 Ohio St. 3d 160 URL: https://www.frixlaw.com/law-library/cases/6757837 ## Case - **Full name:** Duracote Corporation, and v. Goodyear Tire & Rubber Company, and - **Court:** Ohio Supreme Court - **Decided:** January 5, 1983 - **Citations:** 2 Ohio St. 3d 160; 443 N.E.2d 184 - **Precedential status:** Published - **Opinion:** Concurring in part by Brown - **Judges:** Brown, Celebrezze, Holmes, Krupansky, Locher, Sweeney - **Cited by:** 52 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6757837 ## How later opinions describe it (automated extraction) - reaffirming the principle stated in paragraph five of Schulte ## Opinion text Clifford F. Brown, J., concurring in part and dissenting in part. The judgment of the court of appeals is properly reversed as to the erroneous calculation of the remittitur. Our remand of this case to the court of appeals for further proceedings may result in a redetermination by the court of appeals of the amount of the remittitur and an affirmance of the judgment as reduced by the remittitur, provided Duracote accepts such newly calculated remittitur. Should the plaintiff not accept such remittitur then the court of appeals must reverse and order a new trial. In the alternative the court of appeals upon remand might not order a remittitur, but, within its discretion, could properly adhere to its original judgment reversing the trial court and ordering a new trial for error in submitting two items of damages to the jury, namely, interest on a Duracote loan and lost profits. However, I disagree with Part III A of the opinion which affirms that part of the judgment of the court of appeals which declines to review the assignments of error of Duracote filed in the court of appeals. Duracote is the appellee in both the court of appeals and in this court. As a result of our decision today the posture of this case is such that by our reversal of the court of appeals and remand to it, we are directing the court of appeals to reverse the trial court and to grant a new trial unless the court of appeals recalculates the remittitur and, with the consent of Duracote, affirms the judgment based on the recalculated remittitur. We have, therefore, the equivalent of a reversal by the court of appeals of the judgment of the trial court and a new trial ordered. Given a reversal of both the court of appeals and the trial court, the ap *165 pellee Duracote has the right to review of its assignments of error by the court of appeals without filing a cross-appeal there. This is based upon the statutory mandate of R.C. 2505.22, which provides, in part: “Assignments of error may be filed on behalf of an appellee which shall be passed upon by a reviewing court before a judgment or order is reversed in whole or in part * * *.” 1 The effect of our reversal of the court of appeals is to create a likelihood that a new trial will occur in the trial court. Appellee should have a right to a ruling on its assignments of error so that the trial court and all litigants in the case will know by guidelines from the reviewing courts what disposition to make of the issues of punitive damages and attorney’s fees at the new trial. This conclusion is supported by Parton v. Weilnau (1959), 169 Ohio St. 145 , at 170-171 [ 8 O.O.2d 134 ]: “* * * Obviously this section of the Code [R.C. 2505.22] authorizes the assignment of error filed on behalf of defendant, but it indicates by its words that such an assignment of error ‘shall be passed upon * * * [only] before a judgment or order is reversed.’ There is nothing in the statute to indicate that such assignments of error shall necessarily be passed upon where, as here, the judgment of the Court of Appeals is being affirmed. “In the instant case, for example, if this court had determined that the Court of Appeals had erred in finding each of the errors that it found as a basis for its reversal of the judgment of the trial court, then, before reversing the judgment of the Court of Appeals, this court would have had to pass upon the assignment of error by the defendant. * * *” In Parton, supra, we were dealing with an assignment of error filed by an appellee in the Ohio Supreme Court, not in the court of appeals, and with an affirmance by the Supreme Court of the judgment of the court of appeals. By contrast, in this Duracote case we are dealing with the assignments of error filed by appellee in the court of appeals, not the Supreme Court, and with a reversal of the court of appeals, not an affirmance. The applicable rationale of Parton, supra, requires us to direct the court of appeals to pass upon the assignments of error filed by Duracote. There is good reason for this. In the event of a new trial the trial court will have rules established by the reviewing court to guide it on the issues raised by appellee in its assignments of error. Otherwise the trial court can only guess on the disposition that should be made on the issues of punitive damages and attorney’s fees. Therefore, I concur in the judgment and in the opinion of the court, except for Part III A of the opinion with which I dissent. Also, App. Rule 12 (A) provides in part: “* * * All errors assigned and briefed shall be passed upon by the court in writing, stating the reasons for the court’s decision as to each such error.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6757837. Public record. Not legal advice.