Molai v. Standing Rock Cemetery Bd. of Trustees

[Cite as Molai v. Standing Rock Cemetery Bd. of Trustees, 2026-Ohio-1329.]


                   IN THE COURT OF APPEALS OF OHIO
                    ELEVENTH APPELLATE DISTRICT
                           PORTAGE COUNTY

FRED MOLAI,                                           CASE NO. 2025-P-0044

                 Plaintiff-Appellant,
                                                      Civil Appeal from the
        - vs -                                        Court of Common Pleas

STANDING ROCK CEMETERY
BOARD OF TRUSTEES,                                    Trial Court No. 2023 CV 00230

                 Defendant-Appellee.


                           OPINION AND JUDGMENT ENTRY

                                       Decided: April 13, 2026
                                        Judgment: Affirmed


Douglas M. Kehres, 638 West Main Street, Ravenna, OH 44366 (For Plaintiff-Appellant).

Hope L. Jones, The City of Kent, Ohio Law Director, 320 South Depeyster Street, Kent,
OH 44240 (For Defendant-Appellee).


SCOTT LYNCH, J.

        {¶1}     Plaintiff-appellant, Fred Molai, appeals the judgment entered by the Portage

County Court of Common Pleas for damages against defendant-appellee, Standing Rock

Cemetery Board of Trustees. For the following reasons, we affirm the judgment of the

court below.

Substantive and Procedural History

        {¶2}     On March 15, 2023, Molai filed a civil complaint against Standing Rock

Cemetery. Molai averred that he purchased numerous cemetery lots from Standing Rock

Cemetery in November 2011 and that one of these lots was used for the burial of his
deceased son. It was further averred: “For a period of many years Defendant has

continued to violate Plaintiff’s rights to said lot by entering upon said burial site[,] removing

items from the burial site, desecrating the burial site and in November 2022, Defendant

maliciously and intentionally planted two large pine trees which encroached on the burial

site.”

         {¶3}   On June 4-5, 2025, the matter was tried to a jury on claims of breach of

contract, intentional infliction of emotional distress, and trespass. Following the close of

testimony, counsel for Standing Rock Cemetery moved that an instruction on punitive

damages not be given citing R.C. 2744.05(A) which provides: “in an action against a

political subdivision to recover damages … in connection with a … proprietary function

…[p]unitive or exemplary damages shall not be awarded.” The following argument was

made:

                Plaintiff’s Counsel:       Your Honor, I do not believe the statute
                applies to this, because when you read the code section …, it refers
                to 2744.01[(G)(2)(b)1], and it says the design, construction,
                maintenance and operation of a public cemetery other than a
                township cemetery.

                And then, in the other section2, it says the design, construction, care,
                repair and maintenance of a township cemetery. This is neither one,
                it’s a union cemetery3, and I guess you could argue that the Township
                has a proprietary interest. It’s not [a] township cemetery, it’s a union
                cemetery.

                Secondly, it says from the design, construction, renovation and
                operation. This case has intentional tort in it, and so that has nothing
                to do with the maintenance or construction or reconstruction or


1. R.C. 2744.01(G)(2)(b): “[a] ‘proprietary function’ includes … [t]he design, construction, reconstruction,
repair, maintenance, and operation of a public cemetery other than a township cemetery.”
2. R.C. 2744.01(C)(2)(s): “[a] ‘governmental function includes … [t]he design, construction, reconstruction,
renovation, operation, care, repair, and maintenance of a township cemetery.”
3. R.C. 759.27: “[t]he legislative authorities … of one or more municipal corporations and the boards of
township trustees of one or more townships … may unite in the establishment and management of a
cemetery.”

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Case No. 2025-P-0044
              renovation of it, it’s an intentional tort, so I don’t think the statute
              applies.

              The Court:                   Attorney Jones, anything you want to add
              to that?

              Defendant’s Counsel:       Well, the definition that he read under
              proprietary functions said the operation, design, whatever of a
              cemetery other than a township cemetery, and we are “other than.”
              We’re not municipal, but we’re union.

              Plaintiff’s Counsel:      That’s not what I read. The first one I
              read was a public cemetery other than a township, that’s one. The
              second one says, what I read, maintenance of a township cemetery.
              This is not a township cemetery. I mean, clearly, it’s not a township
              cemetery.

              The Court:               Is it your position that, say it was a
              township cemetery, that you would not be entitled to punitive or
              attorney’s fees?

              Plaintiff’s Counsel:          No, because I don’t think that this case is
              the design, construction, reconstruction, renovation, operation,
              repair. This case is an intentional tort, and I don’t think this excludes
              those damages under this intentional tort, should the jury find it. If
              they don’t, then it’s all moot, but -- so, that’s my position.

              The Court:                All right. Thank you. I understand both
              of your positions. The Court is going to rule that the jury cannot
              award punitive damages or attorney’s fees in this matter because of
              the Revised Code section cited by the Defendant’s counsel.

       {¶4}   The jury found in favor of Molai on the breach of contract claim in the amount

of $10,000.00 and on the intentional infliction of emotional distress claim in the amount of

$90,000.00. The jury found in favor of Standing Rock Cemetery on the trespass claim.

Assignments of Error

       {¶5}   On July 8, 2025, Molai filed a Notice of Appeal. On appeal, he raises the

following assignments of error:

              [1.] The trial court committed prejudicial error in not granting plaintiff-
              appellant’s requested jury instruction on punitive damages because

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Case No. 2025-P-0044
              R.C. 2744.05 is unconstitutional.

              [2.] The trial court committed prejudicial error in not granting the
              plaintiff-appellant’s proposed jury instruction on punitive damages
              because said jury instruction was requested by both parties.

Standard of Review

       {¶6}   “[W]hen a trial court refuses to give a requested jury instruction, the proper

standard of review is whether the trial court abused its discretion under the facts and

circumstances of the case.” State v. Palmer, 2024-Ohio-539, ¶ 16.

First Assignment of Error: Constitutional Challenge Waived if not Raised in the
Trial Court

       {¶7}   Under the first assignment of error, Molai argues that “R.C. 2744.05 violates

the Plaintiff-Appellant’s Due Process and Equal Protection rights given that it prevents

him from receiving due process and from his right to have a jury decide the issue of

whether punitive damages should be awarded.” Brief of Plaintiff-Appellant at 8.

       {¶8}   Standing Rock Cemetery responds, and we agree, that Molai has waived

this issue on appeal by not raising it in the trial court. “Failure to raise at the trial court

level the issue of the constitutionality of a statute or its application, which issue is apparent

at the time of trial, constitutes a waiver of such issue and a deviation from this state’s

orderly procedure, and therefore need not be heard for the first time on appeal.” State v.

Awan, 22 Ohio St.3d 120 (1986), syllabus; State v. Wintermeyer, 2019-Ohio-5156, ¶ 10

(“[a] first principle of appellate jurisdiction is that a party ordinarily may not present an

argument on appeal that it failed to raise below”).

       {¶9}   We further note that the prohibition against the assessment of punitive

damages against a municipal corporation predates the effective date, November 20,

1985, of the Political Subdivision Tort Liability Act. Ranells v. Cleveland, 41 Ohio St.2d 1

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Case No. 2025-P-0044
(1975), syllabus (“[i]n the absence of a statute specifically authorizing such recovery,

punitive damages can not be assessed against a municipal corporation”).

       {¶10} The first assignment of error is without merit.

Second Assignment of Error: The Trial Court was not Bound by Proposed Jury
Instructions

       {¶11} In the second assignment of error, Molai argues that the trial court erred by

not giving an instruction on punitive damages “because the instruction on punitive

damages was proposed by both parties and no prejudice would have arisen from allowing

the instruction.” Brief of Plaintiff-Appellant at 10.

       {¶12} We disagree. Although Standing Rock Cemetery included an instruction on

punitive damages in the proposed jury instructions filed with the court, it was entitled to

argue otherwise prior to the actual instruction of the jury. In other words, we are aware

of no authority that would bind a party to the positions taken in its proposed jury

instructions.

       {¶13} More fundamentally, “[r]equested jury instructions should ordinarily be given

if they are correct statements of law, if they are applicable to the facts in the case, and if

reasonable minds might reach the conclusion sought by the requested instruction.” State

v. Adams, 2015-Ohio-3954, ¶ 240. The proposed instruction on punitive damages in the

present case was not a correct statement of law. There is no dispute that Standing Rock

Cemetery is “a public cemetery other than a township cemetery” and, therefore, the

prohibition against punitive damages in R.C. 2744.05(A) applies.               Thompson v.

Germantown Cemetery, 2010-Ohio-1920, ¶ 22 (2d Dist.) (“R.C. 2744.05(A) (‘Punitive or

exemplary damages shall not be awarded’) plainly prohibits awarding punitive damages




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Case No. 2025-P-0044
in a tort action against a political subdivision”). It was not an abuse of discretion not to

give the proposed instruction.

       {¶14} The second assignment of error is without merit.

       {¶15} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is affirmed. Costs to be taxed against the appellant.



EUGENE A. LUCCI, J.,

ROBERT J. PATTON, J.,

concur.




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Case No. 2025-P-0044
                                JUDGMENT ENTRY



       For the reasons stated in the Opinion of this court, the assignments of error are

without merit. The order of this court is that the judgment of the Portage County Court of

Common Pleas is affirmed.

       Costs to be taxed against appellant.




                                                 JUDGE SCOTT LYNCH



                                               JUDGE EUGENE A. LUCCI,
                                                      concurs



                                              JUDGE ROBERT J. PATTON,
                                                      concurs


           THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY

    A certified copy of this opinion and judgment entry shall constitute the mandate
              pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.




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Case No. 2025-P-0044