COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59745 STEVEN LISY : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : BAYLINER MARINE CORP., ET AL. : OPINION : : DEFENDANT-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 153809. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: Dennis H. Sherman David E. Mack Attorney for Plaintiff-Appellant Attorney for Defendant- 360 Vantage Point Building Appellee Modern Marine, Inc. 27600 Chagrin Boulevard 75 Public Square, Suite 320 Cleveland, Ohio 44122 Cleveland, Ohio 44113 Thomas Brunn Attorney for Defendant-Appellee Bayliner Marine Corporation The Superior Building, 21st Floor 815 Superior Avenue, N.E. Cleveland, Ohio 44114 -2- SWEENEY, JAMES D., J.: Plaintiff-appellant Steven Lisy filed this appeal after a jury trial which rendered a verdict for appellant in the sum of One Thousand Dollars ($1,000.00) against appellee Modern Marine, Inc. and a verdict against appellant and for appellee Bayliner Marine Corp. (Bayliner). While attending the Cleveland Boat Show on January 24, 1988, appellant contracted with Modern Marine for a new Bayliner Sunbridge 2850 SB boat. At some point later in the spring, the purchase price was paid in full and appellant received title to the boat. In June, 1988, one day before the scheduled delivery, appellant and a professional marine surveyor, R. T. Chokan, inspected the boat on the lot of Modern Marine. After Mr. Chokan found numerous flaws in the boat, appellant instructed Modern Marine not to touch the boat until Mr. Chokan finished his report. Through his counsel, based on the surveyor's report, appellant requested appellees to either restore the boat to a "new" condition, refund the purchase price, or replace the defective boat with a new one. Negotiations were unsuccessful, and this suit was subsequently filed. On March 5, 1990, a jury trial was commenced. The jury returned their verdict on March 8, 1990. Appellant's first assignment of error. -3- I THE TRIAL COURT ERRED IN NOT GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLANT AND AGAINST APPELLEES. On March 20, 1989, appellant filed a motion for summary judgment as to both appellees. Both appellees responded. The trial judge initially granted the motion as to appellee Modern Marine, and denied it as to appellee Bayliner. The trial court then vacated its original decision as to Modern Marine stating: The court's entry of 5/17/89 granting plaintiff's motion for summary judgment against Modern Marine is hereby vacated. The court finds that there are genuine issues of fact and therefore the ruling is that plaintiff's motion for summary judgment is overruled. Trial to proceed as scheduled. 6/26/89 at 9:30 a.m. Appellant contends that the trial court erred by not granting his motion for summary judgment. We disagree. Appellant premised his motion for summary judgment on his experts' reports which found sufficient defects in the boat as to render it unseaworthy. The brief in response filed by appellee Bayliner also attaches an expert report which, in essence, states that once the cosmetic defects are corrected, the boat would be fit for sea duty. The experts do agree that there were some cosmetic defects in the boat at time of delivery. Bayliner submitted sufficient evidence under Civ. R. 56 to demonstrate a material issue of fact. Whether or not the defects are purely cosmetic or are serious enough to render the craft unseaworthy is a question of fact for a jury to decide. -4- The trial court also properly denied appellant's summary judgment motion as to Modern Marine even though Modern Marine did not attach evidence to its brief in opposition. The supreme court dealt with this very issue in Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St. 3d 45, when it stated: This court has recently, in Savransky v. Cleveland (1983), 4 Ohio St. 3d 118, 4 OBR 364, 447 N.E. 2d 98; Mathis v. Cleveland Public Library (1984), 9 Ohio St. 3d 199, 9 OBR 511, 459 N.E. 2d 877; and Toledo's Great Eastern Shoppers City, Inc., supra, had the opportunity to analyze Civ. R. 56(E). This rule provides in part that "* * * [w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Thus, it might appear that the nonmoving party must respond to an adverse motion for summary judgment or face the entry of judgment against him. However, this court has stated that even where the nonmoving party fails completely to respond to the motion, summary judgment is improper unless reasonable minds can come to only one conclusion and that conclusion is adverse to the nonmoving party. Toledo's Great Eastern Shoppers City, Inc., supra. Accordingly, as the burden is upon the moving party to establish the non- existence of any material factual issues, the lack of a response by the opposing party cannot, of itself, mandate the granting of summary judgment. Appellant here did not establish the nonexistence of material fact. As stated above, whether or not the defects found -5- on the boat were sufficient to render it unseaworthy, was for the jury to decide. Appellant's first assignment of error is overruled. Appellant's second assignment of error. II THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY. At trial, appellant requested jury instructions be given on R.C. 1345, the Ohio Consumer Protection Act. The judge declined to give the proposed instruction, stating: ". . . the court believes that what is couched in the Act is specifically provided for under the claims of an express or implied warranty, and believe that if I were to instruct the jury some confusion might result . . ." Nonetheless, we hold that the jury should have received a separate instruction on R.C. 1345. In order for appellant to receive damages as set forth under R.C. 1345.09, the jury would have to make a specific finding that the statute was violated. Here, the jury had no opportunity to consider the issue. Appellant's second assignment of error is well taken. Appellant's third assignment of error. III THE TRIAL COURT ERRED IN REFUSING TO SUBMIT APPELLANT'S SPECIAL INTERROGATORIES TO THE JURY FOR ANSWER. Appellant submitted six interrogatories to the court for the jury to answer. The trial court heard argument from both counsel -6- and then stated, "I'm going to deny the request for interrogatories." (T. 527) In Cincinnati Riverfront Coliseum, Inc. v. McNulty Co. (1986), 28 Ohio St. 3d 333, the supreme court spoke to the issue of the mandatory nature of Civ. R. 49. Civ. R. 49(B) governs the use of interrogatories in connection with a general verdict. The rule provides in pertinent part: "The court shall submit written interrogatories to the jury, together with appropriate forms for a general verdict, upon request of any party prior to the commencement of argument. * * * The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the interrogatories shall be submitted to the jury in the form that the court approves." (Emphasis added.) Following a timely request by a party, a mandatory duty arises to submit written interrogatories to the jury, provided they are in the form the court approves. "The wording of Civ. R. 49(B), that the 'court shall submit written interrogatories * * * upon request of any party,' is mandatory in character and leaves no discretion in the trial court on the question of submission, upon request, of proper interrogatories to the jury. The rule, however, reposes discretion in the court to pass upon the content of requested interrogatories as they 'shall be submitted to the jury in the form the court approves.'" (Emphasis added.) Riley v. Cincinnati (1976), 46 Ohio St. 2d 287, 298 [75 O.O.2d 331] citing Ragone v. Vitali & Beltrami, Jr., Inc. (1975), 42 Ohio St. 2d 161 [71 O.O.2d 164]. In the cause sub judice, the trial court did not refuse to submit the interrogatories to the jury following an examination of the form and content, but clearly denied Clark's timely request without any consideration. The request was flatly denied because it was -7- "impossible for the Court to take up additional interrogatories at this time." This court respects the time restraints under which trial courts must work; however, we can not approve the ignoring of the Civil Rules. We therefore agree with the decision of the court of appeals, and hold that the trial court erred when it failed to follow the mandate of Civ. R. 49(B). It is therefore mandatory for a trial judge to consider requested interrogatories, and make a decision as to form, not substance. In the case sub judice, the judge erred by refusing to consider the interrogatories requested by the appellant. We therefore find the appellant's third assignment of error well taken. Appellant's fourth assignment of error. IV THE TRIAL COURT ERRED IN FAILING TO ANSWER THE SECOND JURY QUESTION IN THE NEGATIVE. During deliberation, the jury submitted the question, "Does ownership of the boat stay with Mr. Lisy regardless of the outcome of the verdict." (T. 594) The court responded, "You have all the facts and the law that is applicable to the facts in this case. Now, based upon the law that I have given you, and the facts as you find them, you must render your verdict." (T. 598) Out of the jury's hearing, appellant contended that the court should respond "no" to the question. (T. 596) The court refused, reasoning that ownership of the boat was not at issue, and in effect, answering no would be placing new evidence before -8- the jury. The appellant argued he was attempting to rescind the contract. The judge stated: "Rescission is not an issue in this case. I didn't instruct the jury on rescission, and you didn't request it." (T. 597) Whenever a deliberating jury sends a question to the bench, the judge must determine whether or not the response proposed by the parties would further confuse the jury. The judge concluded that appellant's response would have injected a new issue for determination. We find that the trial judge did not err in her response to the jury's question. Only where the judge's response to a jury's question is sufficiently prejudiced should a new trial be granted. Gallagher v. Cooper (1984), 14 Ohio St. 3d 41. Here, the judge's response was not prejudicial, it was not subject to more than one interpretation and could not have confused the jury. Gallagher, supra. Appellant's fourth assignment of error is not well taken. Appellant's fifth assignment of error. V THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT/AND IN THE ALTERNATIVE FOR A NEW TRIAL. Appellant filed a motion for a judgment not withstanding the verdict as to appellee Modern Marine only. Appellant argues that all four experts agreed that the boat had numerous defects, and therefore appellee had breached the contract. -9- In Ostler v. Lorain (1986), 28 Ohio St. 3d 345, the court cited to Posin v. A.G.C. Motor Court Hotel (1976), 45 Ohio St. 2d 271, 275, which held that a motion for a judgment notwithstanding the verdict is not easily obtained. The Ostler court went on to hold: "The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions." (Emphasis added.) Construing the evidence most strongly in favor of Modern Marine, reasonable minds may reach different conclusions. Although the experts do agree the boat had defects, they disagree as to the severity of the defects. A jury could easily have found that the contract was not breached. We hold the trial court's ruling on the motion for judgment notwithstanding the verdict was correct. Turning to the motion for a new trial as to both appellees, on appeal the appellant argues that the jury verdict was inadequate, that the verdict was not supported by competent, credible evidence. Civ. R. 59(A)(5)(6). -10- The granting of a motion for a new trial is within the sound discretion of the trial court, and should not be disturbed absent an abuse of discretion. Verbon v. Pennese (1982), 7 Ohio App. 3d 182. Here, there was competent, credible evidence presented by appellees for the jury to find in favor of Bayliner, and against Modern Marine in the sum of $1,000.00. Appellees experts conceded the boat was not in perfect condition, but maintained the defects were easily remedied, and that the craft was indeed seaworthy. The court has wide discretion when determining whether the jury's verdict is against the manifest weight of the evidence. Ostler, supra. This court cannot say that the trial court abused its discretion. Appellant's fifth assignment of error is not well taken. Judgment reversed and remanded for a new trial. -11- This cause is reversed for further proceeding consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said 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. FRANCIS E. SWEENEY, J., CONCURS, and KRUPANSKY, C.J., CONCURS IN JUDGMENT ONLY. 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. .