COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59051, 59148 GEORGIUS H. STAVROU, ET AL. : : PLAINTIFF-APPELLEE AND : JOURNAL ENTRY APPELLANT : v. : AND : CITY OF CLEVELAND : OPINION : DEFENDANT-APPELLANT AND : APPELLEE : and : : JOHN MARTICH : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 10, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 113154. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: Bartley Troy, Esq. Craig S. Miller, Esq. 75 Public Square, #714 Kathleen A. Martin, Esq. Cleveland, Ohio 44113-2078 Drew A. Carson, Esq. Attorney for Plaintiff- Room 106, City Hall Appellees, Georgius Stavrou 601 Lakeside Avenue Cleveland, Ohio 44114 Richard D. McClure, Esq. Attorneys for Defendant- 75 Public Square, #1100 Appellant, City of Cleveland Cleveland, Ohio 44113-2078 (Continued on next page) - 1 - and Sherry A. Croyle, Esq. 113 St. Clair Avenue Suite 525 Cleveland, Ohio 44113 Attorneys for Defendant- Appellee, John Martich - 2 - SWEENEY, JAMES D., J.: Defendant-appellant appellee City of Cleveland ("City") appeals from the jury trial verdict and pre/post judgment motion rulings in favor of plaintiffs-appellees appellants Georgius and Maureen Stavrou ("Georgius" and "Maureen")/1\ and defendant- appellee John Martich, Jr. ("Martich"). A review of the record reveals that on September 4, 1985, at approximately 8:30 a.m., Martich entered the Pewter Mug restaurant located at Interstate 71 and West 150th Street in the City of Cleveland. Martich was an on-duty, City of Cleveland, police officer with twenty-three years of service at the time who was assigned to one-officer traffic patrol on the freeways. It was customary for officers assigned to the freeway patrol to stop at restaurants during their assigned shift and fill out required paperwork while enjoying a cup of coffee and a piece of pastry. Since these officers did not have radios, they would also use these stops to report by telephone into the local district station every two hours as required by department regulation. Martich, in full uniform, stopped at the restaurant to fill out his daily duty assignment record and finish recording some traffic ticket entries. Martich walked into the restaurant, which only had several patrons at that hour, and proceeded to a /1\ The City's notice of appeal was assigned appellate case number 59051. The Stavrou's notice of appeal from the trial court's denial of pre-judgment interest was assigned appellate case number 59148. These two appeals were consolidated on February 26, 1990, for briefing, hearing and disposition. - 3 - booth in the rear of the dining area. Near the booth, Martich was met by Georgius, a cook at the restaurant. The two men had known one another for several years and were on friendly terms. A waitress, who was nearby, left to get Martich his regular order of coffee. Martich testified that Georgius, after exchanging pleasantries, asked to see the officer's .38 caliber service revolver. This request was not disputed by plaintiff, who, according to Martich, had asked to see the revolver on several different times during their acquaintance. Martich stated that he did not honor the requests made prior to the date of the shooting because he felt that the restaurant had too many people present so as to constitute an unsafe environment for viewing the weapon. On this particular date, with only several patrons in the restaurant, Martich decided to comply with Georgius's request. Martich testified that he did so in furtherance of good public relations for the police department. Martich drew the revolver from its holster, extracted the rounds from the cylinder of the weapon, and with one hand extended the empty weapon toward Georgius. Martich then withdrew the weapon, without Georgius touching the revolver, and reloaded the gun. While reloading, the weapon was pointed in a downward angle. Martich reloaded the weapon and closed the cylinder. At that point the weapon discharged, striking Georgius at close range in the left anterior chest wall and resulting in injury to his diaphragm, spleen and colon. Georgius collapsed into a seat in the booth. Martich - 4 - called for EMS, then assisted the victim to his patrol car where the officer attempted to make the victim more comfortable. EMS arrived and transported the victim to the hospital. Off and on, the victim spent a total of forty-two days in the hospital due to his injuries. The victim did not return to work until January 20, 1986. Plaintiff Georgius filed his original complaint against the City and Martich on July 14, 1986. The City answered the complaint on November 21, 1986. Martich filed his answer, cross- claim against the City, and complaint for declaratory judgment on the City's duty to defend Martich on January 20, 1987. On February 18, 1987, the City filed its answer to the cross-claim and declaratory judgment pleadings of Martich. On October 20, 1987, with leave of court, the plaintiff amended his complaint by adding his wife, Maureen, as a party plaintiff with a claim for loss of consortium. The defendants filed their respective answers to this amended complaint in a timely manner. Following a hearing, the court, on March 28, 1988, found in favor of Martich on the declaratory judgment complaint. Journal Vol. 1033, page 916. The City filed a notice of appeal from this order on April 26, 1988. This appeal was dismissed and remanded for lack of a final appealable order. See Stavrou v. City of Cleveland (July 27, 1989), Cuyahoga App. No. 55624, unreported. The case proceeded to trial before a jury on November 21, 1989. On November 24, 1989, the jury returned a verdict in favor - 5 - of plaintiff Georgius against the City and Martich in the amount of $275,000. The jury also returned a verdict in favor of plaintiff Maureen against the City and Martich in the amount of $75,000. The jury, by interrogatory, also unanimously found that: Martich had been negligent; the victim's injuries were proximately caused by Martich's negligence; and, Martich was acting within the course and scope of his employment when his service revolver discharged. The court also overruled the City's motion to disclose and deduct collateral sources pursuant to R.C. 2744. The court journalized its final order on December 4, 1989. Journal Vol. 1208, page 880. The plaintiffs filed a motion for pre-judgment interest on December 8, 1989. The City filed a motion for a new trial on December 18, 1989. The City filed its original notice of appeal on January 3, 1990, from the jury verdict order of December 4, 1989. See appellate case number 59051. By order journalized on January 3, 1990, the trial court overruled the motions for a new trial and for prejudgment interest. Journal Vol. 1217, page 492. On January 16, 1990, the plaintiffs filed a notice of appeal from the denial of pre-judgment interest. See appellate case number 59148. On February 6, 1990, this court granted the City's motion to amend its notice of appeal. This amended notice of appeal was taken from: (1) the jury verdict of December 4, 1989; (2) the - 6 - judgment entered on December 14, 1989, in favor of Martich on his cross-claim against the City; (3) the denial of the city's motion for a new trial; (4) the order of the court entered in the declaratory judgment action relative to this case; and (5) the denial of the City's motion to dismiss/motion for summary judgment. For our review, the City raises seven assignments of error and the Stavrous raise one assignment of error. The City's assignments will be discussed first. I THE TRIAL COURT ERRED IN DENYING THE CITY OF CLEVELAND'S MOTIONS FOR DIRECTED VERDICT ON THE ISSUE OF WHETHER OFFICER MARTICH'S CONDUCT WAS WITHIN THE COURSE AND SCOPE OF HIS EMPLOYMENT OR OFFICIAL DUTIES, AND THEREBY ALLOWING THIS ISSUE TO GO TO THE JURY. The standard of review for this assignment was stated by then Judge Moyer in Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App. 3d 94, 96: Civ. R. 50(A)(4) governs directed verdicts and provides: "When a motion for a 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 such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue." The determination to be made by a trial court when a motion for directed verdict has been made is not whether one version of the facts presented is more persuasive than - 7 - another; rather, it is a determination that only one result could be reached under the theories of law presented in the complaint. When a motion for directed verdict is entered, it is the legal sufficiency of the evidence to take the case to the jury that is being tested. The trial court may not weigh the evidence or try the credibility of witnesses, but must give to the party opposing the motion the benefit of all reasonable inferences from the evidence. The "reasonable minds" test of Civ. R. 50(A)(4) requires the court only to determine whether there is any evidence of substantial probative value in support of the non-moving party's claim. A motion for a directed verdict raises a question of law because it examines the materiality of the evidence rather than the conclusions to be drawn from the evidence. See Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St. 2d 66 [23 O.O.3d 115]. This court provided the following in Sudman v. Wilson (November 29, 1990), Cuyahoga App. No. 57856, 57587, unreported, at page 6: With respect to the substantive law, regarding an employer's liability for those acts of his employee, it is well-settled that vicarious liability may be imposed only for those acts which are performed in the course and scope of the employment. Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St. 2d 271, 278; Rogers v. Allis-Chalmers Mfg. Co. (1950), 153 Ohio St. 513, 526; Calhoun v. Middletown Coca-Cola Bottling (1974), 43 Ohio App. 2d 10, 13. Thus, an employer is not liable for those acts which have no relationship to the conduct of the employer's business. Thornberry v. Oyler Bros., Inc. (1955), 164 Ohio St. 395, paragraph two of the syllabus; Thomas v. Ohio Dept. of Rehab. & Corr. (1988), 48 Ohio App. 3d 86, 89. Testimony presented at trial indicated that other police officers besides Martich had shown their service issued weapons - 8 - to private citizens in the past at the request of those citizens. There was also conflicting testimony over whether the displaying of the weapon violated Rule 10.03(D) of the Rules and Regulation for Conduct and Discipline of Officers./2\ Officer McComb, who trained officers in the handling and operation of weapons, testified that Rule 10.03(D) is not a prohibition against showing one's service weapon to a member of the general public. R. 251. In fact, Officer McComb testified that after the filing of this case, he was specifically told to instruct his students not to show their weapons to the public if requested. Under the facts presented, the jury could reasonably find that there was no prohibition in showing the revolver to the victim and that Martich was, as alleged, acting in the scope of his employment at the time of the shooting. Accordingly, we find no error in the court's denial of the City's motions for directed verdict. Assignment overruled. II THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN REFUSING TO PERMIT THE INTRODUCTION INTO EVIDENCE AT TRIAL THAT OFFICER MARTICH WAS (1) CHARGED BY THE CITY OF CLEVELAND'S SAFETY DIRECTOR WITH VIOLATING RULE 10.03(D) OF CHAPTER 10 OF THE CLEVELAND POLICE DEPARTMENT'S MANUAL OF RULES AND REGULATIONS AND (2) PLED NO CONTEST TO THE CHARGE, (3) /2\ Rule 10.03(D), contained in the chapter titled "Use of Deadly Force," provides: "(D). Drawing and Displaying Firearms. An officer may draw, display, or point a weapon if he has reason to fear for his personal safety or the safety of others." - 9 - WAS FOUND TO HAVE VIOLATED THIS RULE, (4) DID NOT APPEAL THE DECISION AND (5) RECEIVED A TEN (10) DAY SUSPENSION AS A PENALTY. Prior to trial, Martich made a motion in limine to prohibit the introduction of Martich's departmental disciplinary proceedings arising from the accidental shooting. This motion was granted by the court. At the conclusion of its case, the City proffered the following items from the disciplinary proceeding: (1) the charging letter against Martich; (2) the dispositional letter from the City Safety Director; and (3) evidence of the no-contest plea made by Martich to the charges. The trial court did not make clear why it refused to allow the admission of this evidence. Evid. R. 403(A) and (B) provides that relevant evidence may be deemed to be inadmissible if its probative value is "substantially outweighed by the danger of unfair prejudice of, confusion of the issues, of misleading the jury," or "outweighed by considerations of undue delay, or needless presentation of cumulative evidence." During its case in chief, the City elicited the testimony of Cleveland Police Commander Robert Tolliver. Commander Tolliver was in the internal affairs unit at the time of the shooting and testified that it was his understanding that Rule 10.03(D) did not authorize the displaying of Martich's weapon, and that his unit had investigated the shooting in search of violations of department regulations. Furthermore, the regulation relied upon, Rule 10.03(D), was in the record. - 10 - The supreme court, in Railway v. Shields (1890), 47 Ohio St. 387, determined that whether an employee's actions are prohibited by an employer's regulations is not determinative as to whether those actions are within the scope of one's employment. See also Prosser and Keeton on Torts (5th ed. 1984) 502-03, Section 70. Accordingly, the admission of the proffered evidence would add little to the determination of the scope of Martich's employment. It's probative value was outweighed by its tendency to mislead the jury, confuse the issues, and delay the proceedings. Evid. R. 403. Assignment overruled. III THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN REFUSING TO INCLUDE IN ITS CHARGE TO THE JURY, WITH RESPECT TO "SCOPE OF EMPLOYMENT," THAT TO FIND THAT OFFICER MARTICH'S CONDUCT WAS WITHIN THE SCOPE OF HIS EMPLOYMENT, IT IS NECESSARY TO FIND THAT SAID CONDUCT FURTHERED THE INTERESTS OF HIS EMPLOYER, THE CITY OF CLEVELAND. The court stated the following in its charge to the jury on the issue of scope of employment: The term scope of employment has never been accurately defined. This court has stated that it cannot be defined because it is a question of fact. Each case is what is known as unique or of its own kind. It has also been stated that the act of the agent is the act of the principal within the course of employment when the act can fairly and reasonably be deemed to be the ordinary and natural incident or attribute of the service to be rendered or the natural, direct and logical result of it. To sever the servant or the employee from the scope of - 11 - his employment, the act complained of must be such a divergence from his regular duties that its very character severs the relationship of master/servant or employer and employee. (R. p. 430) The court correctly stated the standard to be applied under the case law enunciated previously in Sudman v. Wilson, supra. The court acted reasonably in refusing to use the city's proposed charge since to do so would be redundant. Bostic v. Connor (1988), 37 Ohio St. 3d 144. Assignment overruled. IV THE TRIAL COURT ERRED IN REFUSING TO DISMISS OFFICER MARTICH'S DECLARATORY JUDGMENT ACTION CONCERNING WHETHER THE CITY OF CLEVELAND WAS OBLIGATED TO PROVIDE HIS DEFENSE TO THE STAVROUS' ACTION SINCE OFFICER MARTICH WAS PRECLUDED FROM RELITIGATING THIS ISSUE, AN ISSUE PREVIOUSLY DETERMINED PURSUANT TO FINAL AND BINDING ARBITRATION. The contract between the City and the Cleveland Police Patrolmen's Association in effect at the time of this action, and attached as exhibit three in the City's appellate appendix, provides the following at Article XXIX, Legal Representation of Officers, Paragraphs 59(a) and 62(a): (59) The City shall provide the legal defense of, shall assume the litigation costs for, and shall indemnify any officer in any civil action or civil claim for any judgment or settlement, except as herein limited, arising out of any alleged act or omission which occurred or allegedly occurred while the officer was acting within the course and scope of his duties as an officer, unless: - 12 - (a) the Director of Law has good cause to believe that the acts or omissions were manifestly outside the course and scope of his employment or official duties; * * * (62) (a) If the Director of Law elects to decline representation of an officer under the circumstances described in 1(a) and the trial court, either judge or jury, by written judgment order or answer to special interrogatory to the jury, expressly finds that the officer was acting within the course and scope of his employment and official duties, then the City shall indemnify and pay reasonable attorneys' fees and costs, subject to the limitations of paragraph 5. In the present case, the jury, by interrogatory, unanimously found that Martich was acting within the scope of his employment when the shooting occurred. The court found in favor of Martich on his cross-claim for indemnity. Supplemental Journal Entry, journalized December 14, 1989, pages 1-2. Pursuant to the terms of the above-mentioned contract, the City is obligated to indemnify Martich and pay reasonable attorneys' fees and costs. Any error of the court in failing to dismiss the Martich declaratory judgment cause of action based upon a duty to defend the officer, is rendered harmless by the findings of the jury and the terms of the contract. Assignment overruled. V THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN REFUSING TO INSTRUCT THE JURY ON THE ISSUE OF MR. STAVROU'S COMPARATIVE NEGLIGENCE AND ASSUMPTION OF THE RISK SINCE IT WAS - 13 - UNCONTROVERTED AT TRIAL THAT OFFICER MARTICH DREW AND DISPLAYED HIS WEAPON ON THE DATE OF INJURY AT MR. STAVROU'S REQUEST. Although it was not controverted that Martich unholstered his revolver at the request of Mr. Stavrou, the record is equally clear that Mr. Stavrou never touched the weapon in any way. Merely requesting to see an officer's revolver, without more, does not warrant a jury charge on comparative negligence. Assignment overruled. VI THE TRIAL COURT ERRED BY DENYING THE CITY OF CLEVELAND'S POST-JUDGMENT MOTION FOR DISCLOSURE OF AND DEDUCTION OF COLLATERAL SOURCES. R.C. 2744.05(B) deals with the deduction of collateral sources from a jury award. Vogel v. Wells (1991), 57 Ohio St. 3d 91, syllabus, provides: Section 28, Article II of the Ohio Constitution prohibits the legislature from retroactively applying laws that affect substantive rights. Therefore, the application of R.C. 2744.05(B) to causes of action arising before November 20, 1988, the effective date of the statute, is unconstitutional. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St. 3d 100, 522 N.E. 2d 489, paragraphs one and three of the syllabus, followed.) Also see Thomas v. City of East Cleveland (February 16, 1989), Cuyahoga App. No. 54999, unreported. R.C. 2744.05(B) became effective on November 20, 1985. The cause of action in this case arose on September 4, 1985. We find that the court properly refused to apply R.C. 2744.05(B) to this - 14 - case because the cause of action arose prior to the effective date of the statute. Assignment overruled. VII THE TRIAL COURT ERRED IN DENYING THE CITY OF CLEVELAND'S MOTION FOR A NEW TRIAL SINCE THE DAMAGE AWARD OF THE JURY WAS EXCESSIVE TO THE EXTENT IT COULD ONLY HAVE BEEN, AS A MATTER OF LAW, THE RESULT OF PASSION AND/OR PREJUDICE. The City bases its argument for a new trial on Civ. R. 59(A)(4), which provides: RULE 59. New trials (A) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds: * * * (4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice; During the trial of this case, plaintiff presented evidence of the damages sustained as a proximate result of the shooting. Mr. Stavrou's medical bills exceeded $38,000, and his lost wages amounted to $6,300 from the date of the shooting until January 20, 1986. He spent a total of forty-two days in the hospital, during which time his spleen was removed and his colon resected in separate operations. For a substantial portion of the time prior to his returning to work, plaintiff was forced to live with a temporary colostomy while his internal injuries healed. There was also no intimate relations between the plaintiffs during the - 15 - healing period, and financial arguments arose between the spouses who were forced to borrow funds and take in a relative to live at the house in order to provide proper care for the victim and still maintain as normal a lifestyle as possible for the children. The care of his wounds and their dressings totally disrupted and altered plaintiff's normal living experience and activities until the healing process was complete. Much pain and anguish was evident during this healing process. Fortunately, there was no permanency associated with the injuries, although plaintiff testified that he was still experiencing some pain as of the time of trial. The City argues on appeal that the jury damage award is excessive as a result of the influence of passion and prejudice against the City. The City makes the general allegation that the passion and prejudice resulted from the trial tactics of counsel for plaintiff and Martich whose theme was the City supposedly "hung" Martich "out to dry." The City does not provide any example of the tactics relied upon. Also, size of a verdict, per se, will not suffice for proof of passion or prejudice. Pearson v. Cleveland Acceptance Corp. (1969), 17 Ohio App. 2d 239, 245. The record fails to disclose any such inflammatory tactics of the sort complained of by the City. Without a showing of passion or prejudice, we cannot say that the jury award was unreasonable under the facts presented, and therefore, we decline to intrude on their determination. Barnes v. Youngstown (1982), 4 Ohio App. 3d 112; 40 Ohio Jurisprudence 2d (1967), New Trial, Section 65. - 16 - Assignment overruled. Plaintiff's sole assignment of error provides: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AGAINST PLAINTIFFS BY REFUSING TO GRANT PLAINTIFFS' MOTION FOR PREJUDGMENT INTEREST AND EXCLUDING EVIDENCE CRITICAL TO PLAINTIFFS' ARGUMENT. R.C. 1343.03(C), relative to prejudgment interest, states the following: "Interest on a judgment, decree, or order for the payment of money rendered in a civil action based on tortious conduct and not settled by the agreement of the parties, shall be computed from the date the cause of action accrued to the date on which the money is paid, if, upon motion of any party to the action, the court determines at a hearing held subsequent to the verdict or decision in the action that the party required to pay the money failed to make a good faith effort to settle the case and that the party to whom the money is to be paid did not fail to make a good faith effort to settle the case." (Emphasis added). Whether a party's actions indicate good faith is within the discretion of the trial court, and a reviewing court will not overturn the court's decision absent an abuse of discretion. Kalain v. Smith (1986), 25 Ohio St. 3d 157, 159. A party has not "failed to make a good faith effort to settle" under R.C. 1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any of the proceedings, and (4) made a good faith monetary settlement offer or responded in good faith to an offer from the other party. If a party has a good faith, objectively reasonable belief that he has no liability, he need not make a - 17 - monetary settlement offer. (Emphasis added). Id., syllabus. "The trial court's decision to deny interest must be so violative of logic that it evidences a perversity of will, defiance of judgment, and the exercise of passion or bias in order to amount to an abuse of discretion." Cox v. Oliver Machinery Co. (1987), 41 Ohio App. 3d 28, 38, citing Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St. 3d 83. The trial court held an evidentiary hearing on the motion for prejudgment interest on Friday, December 29, 1989. See Supplemental Transcript, pages 14-52. Following the opening statements of counsel for the parties, attorney Stanley Stein was sworn in and testified on behalf of the plaintiff-movant. Mr. Stein stated that plaintiff originally offered to settle the case for an aggregate amount of $500,000, and on the day of trial reduced the offer to an aggregate of $250,000. The City originally offered $5,000 to settle the case and subsequently increased that offer to approximately $10,000. Mr. Stein also indicated that the City told him it had further authority to settle, but no exact figure was raised. The court's journal reflects only two motions for a continuance filed by the city: (1) January 15, 1988 -- to continue the declaratory judgment hearing; and (2) October 27, 1989 -- for continuance of trial set for November 13, 1988. The court directed counsel to center their line of questioning to the fourth element of Kalain, to wit, whether there was a reasonable belief supporting no - 18 - liability by the City and Martich sufficient to excuse the City and Martich from making a monetary offer. Supplemental Transcript, pages 36-38, 42, 43. The court, sustaining City's objection, refused to allow into evidence another scope of employment case in which the City was a defendant to prove the City's defense was not reasonable in the present case. Supplemental Transcript, pages 45-47. Mr. Stein then concluded his testimony. When asked by the court if anyone had anything further to present, none of the parties answered. Supplemental Transcript, page 47. The court then ruled that the City had a reasonable belief that there was no liability in this case, thereby obviating any need to make an offer of settlement, and denied the motion for prejudgment interest. Plaintiff argues that the trial court abused its discretion in three respects, each of which will be dealt with in the order presented in Stavrou's appellate brief at pages 26-33. A THE TRIAL COURT'S ADMINISTRATION OF THE PREJUDGMENT INTEREST HEARING CONSTITUTED ABUSE OF DISCRETION. Plaintiff alleges that the court deprived the plaintiffs of their right to be heard at the hearing by the court's indifference and refusing to admit the similar unrelated case involving the City. The record of the evidentiary hearing fails to support plaintiff's allegation of indifference by the court. Rather, the - 19 - court's attitude was reflected in a concise, efficient, and economical use of its time. Furthermore, we find no error in the court's refusal to consider the similar unrelated case put forward by plaintiff. Each scope of the employment case is sui generis, thus the determination of the unrelated case is irrelevant to the present case. Posin, supra. B THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING PLAINTIFF'S MOTION FOR PREJUDGMENT INTEREST BY APPLYING THE WRONG TEST AND COMING TO A RESULT WHICH CONTRADICTS THE CLEAR WEIGHT OF THE EVIDENCE. The court restricted the testimony at the hearing to the main issue of whether the defendants had a reasonable belief of non-liability. None of the parties at the hearing objected to this restriction. Plaintiff specifically stated that he had no problem with the restriction. Supplemental Transcript, page 43. The matter is therefore waived on appeal. The testimony also supports the court's decision on the motion. The City's belief of non-liability was based on a purported violation of Rule 10.03(D) by Martich, thereby rendering his actions outside the scope of his employment. Whether Rule 10.03(D) prohibited Martich's showing of the weapon was a viable question of fact to be determined from the evidence. Evidence was submitted at the trial which went for and against the City's interpretation of the rule. Thus, there was - 20 - sufficient competent evidence to support the reasonableness of the City's belief in non-liability. C THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING FOR DEFENDANT ON THE QUESTION OF PREJUDGMENT INTEREST BECAUSE ALL FACTORS FOR DETERMINING PREJUDGMENT INTEREST WEIGH IN PLAINTIFF'S FAVOR. Since the defendants had a reasonable belief of non- liability, they had no obligation to put forward any settlement offer. Kalain, supra. Inquiry into the four Kalain elements is warranted where it is necessary to determine whether a party has not met the definition of "failed to make a good faith effort to settle." All four of the elements are to be shown to meet the definition. It makes no sense to make an express determination on the first three of the Kalain elements where the fourth element is found lacking. The trial court correctly determined that the remaining three elements of Kalain are of no consequence where a non-moving party has a reasonable belief of non- liability. Accordingly, we conclude that the trial court did not abuse its discretion in denying plaintiff's motion for prejudgment interest. Assignment overruled. Judgments affirmed. - 21 - It is ordered that costs be taxed to appellant and appellee equally. 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. Exceptions. NAHRA, P.J., and PATTON, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .