COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 66801 and 67018 RICHARD L. BOWEN & ASSOCIATES : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JAMES KASSOUF, ET AL. : OPINION DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: JUNE 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-217432. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Nicholas M. DeVito, Esq. Christopher M. DeVito, Esq. Morganstern, McAdams & DeVito 1406 W. 6th Street, Suite 400 Cleveland, OH 44113 Gregory M. Lichko, Esq. Garfield & Zagrans 2600 Bank One Center 600 Superior Avenue Cleveland, OH 44114 For Defendants-Appellants: Harry A. Hanna, Esq. Carol H. Gelman, Esq. Thompson, Hine & Flory 1100 National City Bank Building Cleveland, OH 44114 Jeffrey H. Light, Esq. 1476 Davenport Avenue Cleveland, OH 44114 -2- DAVID T. MATIA, P.J.: James Kassouf, Kassouf Development Company and 1313 West 6th Street Limited Partnership, defendants-appellants, appeal from the jury verdict and judgment of the Cuyahoga County Court of Common Pleas. Defendants-appellants assign four errors for this court's review. Defendants-appellants' appeal is not well taken. I. THE FACTS On September 4, 1991 Richard L. Bowen and Associates, Inc., plaintiff-appellee, filed a complaint against James Kassouf, defendant-appellant, alleging breach of contract, on account, unjust enrichment and fraud. On December 8, 1992 an amended complaint was filed in which Kassouf Development Company, 1313 West 6th Street Limited Partnership and Steven L. Wasserman were named as additional defendants. Kassouf and Wasserman were named in their capacity as general partners in 1313 West 6th Street Limited Partnership. The amended complaint alleged the identical causes of action as the original complaint. This action arose out of an alleged oral agreement between James Kassouf, defendant-appellant, and Richard L. Bowen and Associates, Inc., plaintiff-appellee, for architectural and engineering services in connection with the renovation of former industrial buildings owned by Kassouf located in Cleveland's "warehouse district." At the heart of the dispute is the issue of whether Bowen and Associates contracted with Kassouf only or with Kassouf, -3- Wasserman, 1313 West 6th Street Limited Partnership and Kassouf Development Company. Prior to the commencement of the jury trial, the trial court granted defendants-appellants' motion to dismiss the fraud allegations contained within the amended complaint. Jury trial commenced on all remaining claims on December 14, 1993. During trial, there was significant testimony relating to the alleged oral agreement and the possible application of the statute of frauds. Richard Bowen, president of Bowen and Associates, and James Buell, project manager for Bowen and Associates, each testified that, in their respective opinions, the project in question could have been easily completed in less than one year. In addition, defendants-appellants' witness, Alan Ellett, also testified as to the estimated length of the project. Defendants-appellants argued that the testimony of both Bowen and Buell as it related to the estimated length of the project should have been classified by the trial court as expert testimony and stricken for failure to provide pretrial notice or expert reports. Defendants-appellants' objections and motions for mistrial upon the use of expert testimony were denied by the trial court. Plaintiff-appellee contends that the testimony of Bowen and Buell was in no way expert testimony. After the close of the evidence, the jury was given four general verdict forms: 1) the option of finding against all four defendants; 2) the option of finding for all defendants; -4- 3) the option of finding against James Kassouf and Kassouf Development Co. and for the remaining defendants; and 4) the option of finding against Kassouf Development Co. only. During deliberations, the jury submitted the following question to the trial court: Can we change against all defendants to against Kassouf Development Company, 1313 West 6th Street Limited Partnership and James Kassouf and in favor of Steven Wasserman? The trial court then went on the record outside of the presence of the jury and read the jury's question to the parties. The following proceedings took place on the record: THE COURT: What I am prepared to answer would be as follows: "Jury --" and this will be on the question that they sent here -- "If the above is your verdict, you may so write it on a verdict form, and it must be executed as to amount, and signed by those jurors that agree -- at least six. Notify the bailiff when you are ready to report." Is there any reason that this should not be the response? Everybody seems to say that they agree that this should be the response; is that correct? MR. HANNA: Yes, sir. MR. LICHKO: Wait a minute. I am still thinking about it, Your Honor. THE COURT: So I will respond to the jury in writing on the same for that they sent here, as I just read it to the lawyers here. Here, I have written out the response as I read it to you. I have signed it. The bailiff will take it and get some copies of it, and then you can look at it. And then he will take the response to the jury. -5- MR. HANNA: May I have a moment with Mr. Wasserman before it goes in? THE COURT: Yes. Go ahead. MR. HANNA: I just reviewed the response, Your Honor, with Mr. Wasserman, and it is okay to give it as the Court has written it. THE COURT: I understand it is satisfactory to counsel on both sides for me to respond to the inquiry as I have indicated and as is contained, like written out in my response. Is that right? Counsel for the Plaintiff says yes? MR. LICHKO: Yes, Your Honor. THE COURT: And counsel for the defense? MR. HANNA: Yes, Your Honor. The trial court then instructed the jury as previously indicated. On December 17, 1993 the jury returned a verdict against Kassouf Development Company, 1313 West 6th Street Limited Partnership and James Kassouf in the amount of $144,609.68 and in favor of Steven Wasserman. In reaching their verdict, the jury completed a number of interrogatories finding that a contract existed between Kassouf Development Company, 1313 West 6th Street Limited Partnership, James Kassouf and Richard L. Bowen and Associates, Inc. The jury interrogatories also indicated that Steven L. Wasserman did not enter into a contract with Bowen and Associates, Inc. -6- On January 3, 1994, James Kassouf, Kassouf Development Company and 1313 West 6th Street Limited Partnership, defendants- appellants, filed motions for new trial and 1313 West Sixth Street Limited Partnership and James Kassouf filed separate motions for judgment notwithstanding the verdict. On January 21, 1994 defendants-appellants filed their notice of appeal from the trial verdict. On February 17, 1994 the trial court denied all defendants-appellants' post-trial motions. Defendants-appellants filed a second notice of appeal from the denial of the post- judgment motions on March 15, 1994. Upon defendants-appellants' motion, this court has consolidated the two separate appeals. II. FIRST AND SECOND ASSIGNMENTS OF ERROR Defendants-appellants' first assignment of error states: THE TRIAL COURT ERRED IN ACCEPTING A GENERAL VERDICT THAT WAS INCONSISTENT AND IRRECONCILABLE WITH THE JURY INTERROGATORIES, JURY INSTRUCTIONS, AND THE EVIDENCE PRESENTED IN THE CASE BELOW. Defendants-appellants' second assignment of error states: BECAUSE OF THE INCONSISTENT AND ILLOGICAL NATURE OF THE VERDICT RENDERED IN THE TRIAL COURT, THERE IS PLAIN ERROR WHICH MANDATES CORRECTIVE MEASURES BY THIS COURT OF APPEALS. Having a common basis in both law and fact, this court shall consider defendants-appellants' first and second assignments of error concurrently. A. INCONSISTENT VERDICT Defendants-appellants argue through their first and second assignments of error that the jury verdict and answers to the -7- interrogatories were totally inconsistent with the applicable law and the trial court's jury instructions. Specifically, defendants-appellants contend that this action involved four defendants, two individuals sued in their capacity as general partners, the partnership itself and an Ohio corporation. The jury returned a verdict against the corporation, the partnership and only one of the general partners. It is defendants-appellants' position that such a result contradicts Ohio law. Plaintiff-appellee contends that defendants-appellants waived their right to argue inconsistency on appeal by failing to object to the alleged error prior to the jury being discharged. Defendants-appellants maintain that, while there was no immediate objection to the inconsistent verdict, the result amounts to plain error and should be reversed. B. STANDARD OF REVIEW FOR PLAIN ERROR In State v. Long (1978), 53 Ohio St.2d 91 the Ohio Supreme Court stated that the plain error doctrine should be applied with, "utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at paragraph three of syllabus. The plain error doctrine is almost universally applied in criminal cases, however, the doctrine may be applied to civil cases, even if the party seeking application of the doctrine failed to object at trial, if the error complained of would have a material adverse effect on the character and public confidence -8- in judicial proceedings. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209. C. STANDARD OF REVIEW FOR INCONSISTENT VERDICT Ohio courts have held that a party must object to an inconsistency between an answer to a special interrogatory and a general verdict before the jury is discharged. There are two main policy rationales for this requirement: 1) to promote the efficiency of trials by permitting the reconciliation of inconsistencies without the need for a new presentation of evidence to a different jury panel, and 2) to prevent jury shopping by litigants who might wait to object to an inconsistency until after the original jury is discharged. Greynolds v. Kurman (1993), 91 Ohio App.3d 389, citing to Haehnlein v. Henry (1987), 41 Ohio App.3d 233, 234. Accordingly, the plain error doctrine should only be applied to cases where an inconsistent verdict is alleged to prevent a manifest miscarriage of justice. D. NO PLAIN ERROR In the case sub judice, a review of the record demonstrates that, while the verdict and answers to interrogatories are somewhat inconsistent, the inconsistency does not provide the basis for invocation of the plain error doctrine. Here, the jurors found against James Kassouf, Kassouf Development Company and 1313 West 6th Street Limited Partnership for which Steven Wasserman served as one of the general partners. -9- R.C. 1775.14, which deals with liability of partners, provides: Subject to section 1339.65 of the Revised Code, all partners are liable as follows: (A)(1) Except as provided in division (A)(2) of this section, jointly and severally for everything chargeable to the partnership under sections 1775.12 and 1775.13 of the Revised Code. This joint and several liability is not subject to division (D) of section 2315.19 of the Revised Code with respect to a negligence claim that otherwise is subject to that section. (2) A partner in a partnership having limited liability and registered under section 1775.61 of the Revised Code is not jointly or severally liable for anything that is chargeable to the partnership under sections 1775.12 and 1775.13 of the Revised Code and that is allegedly caused by an action or omission of another partner in the partnership or an employee, agent, or other representative of the partnership, unless the partner has direct supervision and control over that other partner or that employee, agent, or other representative of the partnership. Division (A)(2) of this section does not afford any immunity from joint or several liability to a partner in a registered partnership having limited liability for anything that is chargeable to the partnership under sections 1775.12 and 1775.13 of the Revised Code and this allegedly caused by the partner's own actions or omissions. (B) Jointly for all other debts and obligations of the partnership, but any partner may enter into a separate obligation to perform a partnership contract. This section distinguishes the nature of a partner's liability for contractual obligations of the partnership from the nature of his or her liability for tortious claims against the firm. While -10- the partner is rendered jointly and severally liable to third persons for the wrongful acts of another partner acting in the ordinary course of business (R.C. 1775.12) and for a partner's breach of trust (R.C. 1775.13), he or she is only jointly liable for the ordinary debts of the partnership. Wayne Smith Constr. Co., Inc. v. Wolman Duberstein & Thompson (1992), 65 Ohio St.3d 383. Therefore, in spite of the fact that the jury returned a verdict in favor of Steven Wasserman as general partner, Wasserman is still jointly liable for the judgment rendered against the partnership as it arose out of a breach of contract claim. Accordingly, no manifest miscarriage of justice occurred in this instance. In addition, defendants-appellants' failure to object to the trial court's incorrect reply to the question of the jury and failure to object to the alleged inconsistent verdict when it was read in open court prior to discharge of the jury were clearly tactical decisions given the nature of the original jury question. This is especially true in light of the fact that the jury interrogatories that caused the initial confusion were drafted and submitted by defendants-appellants. It is well settled that deliberate tactical decisions not to object to the actions of the trial court during trial preclude claims of "plain error" concerning the trial court's actions in subsequent appeals. State v. Edwards (1985), 26 Ohio App.3d 199. Accordingly, defendants-appellants are now precluded from -11- potentially benefiting from a situation from which defendants- appellants choose not to object at trial. Faber v. Queen City Terminals, Inc. (1994), 93 Ohio App.3d 197, 203. Defendants-appellants' first and second assignments of error are not well taken. -12- III. THIRD ASSIGNMENT OF ERROR Defendants-appellants' third assignment of error states: THE TRIAL COURT ERRED IN ALLOWING TWO OF PLAINTIFF'S FACTUAL WITNESSES TO GIVE EXPERT TESTIMONY, WITHOUT ANY PRETRIAL NOTICE OR EXPERT REPORTS TO THE DEFENDANTS. A. THE ISSUE RAISED: EXPERT TESTIMONY Defendants-appellants contend that the trial testimony of plaintiff-appellee's witnesses Richard L. Bowen and James Buell was, in fact, expert testimony. Specifically, defendants- appellants argue that the testimony of Bowen and Buell as it related to the estimated time of completion of the project should have been classified as expert testimony and disallowed due to the alleged prejudicial nature of the testimony and plaintiff- appellee's failure to comply with Loc.R. 21.1 of the Court of Common Pleas of Cuyahoga County, General Division. Plaintiff- appellee maintains that the disputed testimony was not expert testimony but factual in nature. Defendants-appellants' third assignment of error is not well taken. B. STANDARD OF REVIEW Evid.R. 701, Opinion testimony by lay witness, provides: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. -13- 1 Evid.R. 702, Testimony by experts, provides: If scientific, technical, or other specialized knowledge will assist trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Evid.R. 702 permits expert testimony only after a threshold determination is made pursuant to Evid.R. 104(A) concerning the qualification of an individual to testify as an expert witness. Vinci v. Ceraola (1992), 79 Ohio App.3d 640; Kitchens v. McCoy (1987), 38 Ohio App.3d 165, 168. On appeal, the trial court's determination with respect to a witness' qualifications as an expert will not be reversed unless there is a clear showing that the trial court abused its discretion. Id. at 169. The term abuse of discretion, however, connotes more than an error in law or judgment, it implies an unreasonable, arbitrary or unconscionable attitude on the part of the trial court. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. C. TESTIMONY WAS PROPERLY ADMITTED The main issue this court must determine is whether the testimony of Richard Bowen and James Buell was expert testimony as described pursuant to Evid.R. 702 or opinion testimony by a lay witness pursuant to Evid.R. 701. A review of the disputed 1 On July 1, 1994, Evid.R. 702, Testimony by experts, was amended. (See Ohio Rules of Evidence for full text of amended Evid.R. 702). The above version of the rule was in effect at the time of trial. -14- testimony demonstrates that the testimony of both Bowen and Buell was factual testimony relating to the estimated length of the project. Accordingly, the trial court did not abuse its discretion by denying defendants-appellants' motion for mistrial and allowing the testimony into the record. In addition, defendants-appellants' witness, Alan Ellett, testified at length regarding the project and the estimated length of time needed for completion thereby minimizing any alleged prejudice caused by the admission of Bowen and Buell's testimony. Defendants-appellants' third assignment of error is not well taken. IV. FOURTH ASSIGNMENT OF ERROR Defendants-appellants' fourth and final assignment of error states: THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANTS-APPELLANTS' MOTIONS FOR NEW TRIAL AND JUDGMENT NOTWITHSTANDING THE VERDICT. A. THE ISSUE RAISED: NEW TRIAL/J.N.O.V. Defendants-appellants' fourth and final assignment of error arises out of the trial court's denial of defendants-appellants' motions for a new trial and judgment notwithstanding the verdict. Many of the issues raised in defendants-appellants' post-trial motions have already been raised and disposed through this court's determination of defendant-appellant's first three assignments of error. The remaining issues are without merit. B. STANDARD OF REVIEW FOR MOTION FOR NEW TRIAL -15- The decision as to whether a motion for new trial should be granted lies within the sound discretion of the trial court, and the ruling will not be reversed upon appeal absent a showing of an abuse of discretion. Verbon v. Pennese (1982), 7 Ohio App.3d 182, 184. In reviewing a trial court's ruling on a motion for a new trial, an appellate court should view the evidence before it favorably to the trial court's action, rather than the jury's verdict, where the trial court's decision involves questions of fact. Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App.3d 249, 253; Rolanda Ellis v. Ruby Jackson (June 9, 1994), Cuyahoga App. No. 65661, unreported at 5. C. STANDARD OF REVIEW FOR JUDGMENT NOTWITHSTANDING THE VERDICT The Ohio Supreme Court set forth the following standard of review for motions for judgment notwithstanding the verdict: "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." Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 430, 344 N.E.2d 334, 338; Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 522 N.E.2d 511. D. POST-TRIAL MOTIONS PROPERLY DENIED -16- Defendants-appellants' motion for new trial raises three arguments that were not previously raised in this appeal: 1) The verdict against 1313 West 6th Street Limited Partnership cannot stand, since there was absolutely no evidence of consideration for the partnership to assume the liabilities of Kassouf Development Company; 2) Despite defendants-appellants' request to do so, the court failed to give jury instructions, which were correct statements of law, or incorporate these statements into its charge to the jury; and 3) The jury found defendant-appellant James Kassouf liable for the obligations of Kassouf Development Company, despite the manifest weight of the testimony demonstrating that he was acting as an agent on behalf of Kassouf Development Company. Such a finding is contrary to Ohio law. Viewing the evidence before this court favorably to the trial court's action, we are unable to conclude that the trial court abused its discretion by denying defendants-appellants' motion for a new trial. A review of the record demonstrates that sufficient evidence was presented to enable the jury to find that there was consideration between plaintiff-appellee and 1313 West 6th Street Limited Partnership. There was also sufficient evidence to support the jury's verdict against James Kassouf. Lastly, a review of the trial court's instruction to the jury reveals that the trial court's instruction was an accurate statement of the law in Ohio. In light of this accuracy and given the presumption that the jury follows the instructions -17- given to it by the court, Pang v. Minch (1990), 53 Ohio St.3d 286, this court finds that the trial court properly denied defendants-appellants' motion for a new trial. Defendants-appellants filed two separate motions for judgment notwithstanding the verdict, one on behalf of 1313 West 6th Street Limited Partnership and one on behalf of James Kassouf. Upon review of both motions, it is apparent that the motions are merely one paragraph restatements of arguments previously set forth in defendants-appellants' motion for new trial. Viewing the evidence before the court in a light most favorable to plaintiff-appellee, this court finds that reasonable minds could conclude that judgments against 1313 West 6th Street Limited Partnership and James Kassouf were appropriate. Accordingly, the trial court properly denied defendants-appellants' motion for judgment notwithstanding the verdict. Defendants-appellants' fourth and final assignment of error is not well taken. Judgment of the trial court is affirmed. -18- It is ordered that appellee recover of appellants its 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. JAMES M. PORTER, J. and DIANE KARPINSKI, J. CONCUR. DAVID T. MATIA PRESIDING 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 .