COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67808 : LONNIE TURNER, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION DENNIS COZZENS : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-248486 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: AVERY S. FRIEDMAN, ESQ. HENRY A. HENTEMANN, ESQ. KENNETH D. MEYERS, ESQ. KEITH D. THOMAS, ESQ. 701 Citizens Building MYERS, HENTEMANN, SCHNEIDER Cleveland, Ohio 44114 & REA 815 Superior Avenue, N.E. Suite 2100 Cleveland, Ohio 44114 - 2 - KARPINSKI, J.: Plaintiffs-appellants Lonnie and Janis Turner appeal from orders of the trial court granting judgment on a jury verdict for defendant-appellee Dennis Cozzens and denying their post-trial motion for judgment notwithstanding the verdict or for new trial. Plaintiffs filed a complaint against defendant in the trial court on March 8, 1993. Plaintiffs' complaint alleged defendant collided with the rear of their vehicle at a stop sign two years earlier on March 8, 1991. Lonnie Turner, the driver, alleged he sustained serious injuries. Janis Turner, who was riding as a passenger, did not claim any physical injury from the incident, but joined a claim for lack of consortium. Defendant filed an answer denying the substantive allegations of plaintiffs' complaint. The parties subsequently filed a written joint stipulation in the trial court on March 17, 1994, which stipulated defendant's negligence in pertinent part as follows: The Defendant agrees that he negligently operated the motor vehicle he was driving and such negligence is the direct and proximate cause of the collision which gave rise to this lawsuit. Still remaining was the question of liability for the specific damages claimed. The matter ultimately proceeded to a four-day jury trial commencing approximately one year thereafter on April 18, 1994. Plaintiffs presented testimony from the following six witnesses, viz.: Frederick Harris, M.D., Charles Hudson, D.D.S., - 3 - and Herald Brodkey, M.D., all three by videotape deposition, Scott Finerman, C.P.A., and Lonnie and Janice Turner. Plaintiffs' theory of the case at trial was that Lonnie Turner struck his teeth and/or head on the steering wheel of his vehicle after his vehicle was struck in the rear bumper by defendant's vehicle. Plaintiffs argued Lonnie Turner injured his neck and suffered from Acute Cervical Cord Syndrome as a result of the collision. Defendant presented testimony from two witnesses, viz.: (1) Richard Kaufman, M.D. by videotape, and (2) defendant. Defendant testified that he struck plaintiffs' vehicle at two to five miles per hour and the minor impact only cracked a lens on the right front of his vehicle. Defendant, who is an M.D., denied seeing any sign that plaintiff was injured. Dr. Kaufman testified that Lonnie Turner suffered from a pre-existing condition of degenerative disc disease. Following deliberations, the jury returned a verdict, seven to one, for defendant. The trial court entered judgment for defendant on the jury verdict in an order journalized April 22, 1994. With new counsel, plaintiffs thereafter filed a timely post-trial motion for judgment notwithstanding the verdict or for new trial. The trial court heard these motions on two separate days and denied plaintiffs' post-trial motion in an order journalized July 28, 1994. Represented again by new appellate counsel, plaintiffs appeal raising six interrelated assignments of error. - 4 - Plaintiffs' first and second assignments of error raise the following related issues: THE TRIAL COURT ERRED IN ADMITTING EVIDENCE ABOUT THE PLAINTIFF'S [SIC] CREDIBILITY WHEN THE PARTIES HAD STIPULATED TO LIABILITY. THE TRIAL COURT ERRED IN NOT ADMITTING EVIDENCE ABOUT THE CREDIBILITY OF THE DEFENDANT, ESPECIALLY ABOUT HIS ALCOHOL AND DRUG USE NEAR THE TIME OF THE ACCIDENT, WHILE AT THE SAME TIME ADMITTING EVIDENCE ABOUT THE PLAINTIFF'S CREDIBILITY. Plaintiffs' first and second assignments of error lack merit. Plaintiffs contend the trial court (1) improperly permitted cross-examination of Lonnie Turner concerning his claim that he wrote a hit song "Second Time Around," and (2) improperly excluded cross-examination of defendant concerning his drug or alcohol use. Evid.R. 611(B) governs the scope of cross- examination and provides as follows: Cross-examination shall be permitted on all relevant matters and matters affecting credibility. Based on our review of the record, plaintiffs have failed to demonstrate the trial court erred or abused its discretion concerning the scope of cross-examination by the parties in this case. Plaintiffs' first assignment of error contends the trial court should not have permitted cross-examination of Lonnie Turner concerning authorship of the song "Second Time Around." Plaintiffs argue this questioning was not relevant to any issues at trial and improperly challenged Lonnie Turner's credibility. This argument lacks merit for two reasons. - 5 - First, the record demonstrates plaintiffs raised this matter at the outset of trial. Plaintiffs claimed as an element of damages that Lonnie Turner was unable to pursue his musical interests. Lonnie Turner testified, as an example of his prior success, that he had written "Second Time Around," which reached number one on the billboard charts. Defense counsel cross- examined Lonnie Turner concerning why he was not listed as author of the "Second Time Around" when the song was released. The record demonstrates, contrary to plaintiffs' argument, that evidence concerning authorship of the song "Second Time Around" was relevant for more than impeachment of Lonnie Turner's credibility. This evidence was relevant to evaluating Lonnie Turner's musical talents and the substantive issue of Lonnie Turner's damages resulting from the automobile accident. Moreover, the trial court did not err by permitting cross- examination on this subject for purposes of impeachment. Evid.R. 611(B) expressly recognizes that the credibility of witnesses is a proper subject for inquiry. Defendant's credibility concerning his damage claims was a central issue in this case. As a result, the trial court did not err or abuse its discretion by permitting cross-examination of Lonnie Turner concerning whether he wrote the song "Second Time Around" and defense counsel did not improperly refer to this matter during closing argument. Plaintiffs' second assignment of error argues conversely that the trial court improperly prohibited cross-examination of defendant concerning his drug or alcohol use. Plaintiffs argue - 6 - the trial court erroneously excluded such evidence for two reasons, viz.: (1) the trial court should not have granted defendant's pretrial motion in limine to prohibit the introduction of such evidence, and (2) such evidence was admissible to undermine the credibility of defendant's testimony concerning the collision. The record demonstrates, however, plaintiffs failed to preserve any claim of error by failing to raise either of these arguments during trial. State v. Grubb (1986), 28 Ohio St.3d 199; Estate of Jackson v. Pollack (Oct. 7, 1993), Cuyahoga App. No. 63769, unreported. The trial court's docket sheet and transcript of trial proceedings in this case do not indicate that such motion in limine was filed, ruled upon before trial, renewed at trial or that such evidence was proffered by plaintiffs at trial. As a result, plaintiffs failed to show the trial court improperly excluded this evidence. Nor was plaintiffs' alternate theory to support the admissi- bility of this evidence ever raised at any time in the trial court. Plaintiffs' brief on appeal argues for the first time that evidence concerning defendant's drug or alcohol use was admissible to impeach defendant's credibility concerning the circumstances of the collision. Plaintiffs have cited no authority that a new trial is warranted to enable the presentation of evidence which merely challenges the credibility of a witness. Accordingly, plaintiffs' first and second assignment of error are overruled. - 7 - Plaintiffs' third assignment of error challenges the trial court's jury instructions as follows: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT THE PARTIES HAD STIPULATED TO THE DEFENDANT'S NEGLIGENCE BUT THAT THE JURY COULD FIND IN FAVOR OF DEFENDANT WHEN THE PARTIES HAD IN REALITY STIPULATED TO THE DEFENDANT'S LIABILITY. Plaintiffs' third assignment of error lacks merit. Plaintiffs argue for the first time on appeal that the trial court improperly instructed the jury concerning (1) their burden of proof, and (2) the parties' stipulation of negligence in this case. Based on our review of the record, plaintiffs' arguments lack merit for both substantive and procedural reasons. First, the record unambiguously demonstrates that plaintiffs waived any claim of error by failing to raise a timely objection to the challenged instructions in the trial court as required by Civ.R. 51(A). Civ.R. 51(A) provides in pertinent part as follows: On appeal, a party may not assign as error the giving or the failure to give any instruction unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection. Plaintiffs' failure to object in any way to the challenged instructions in this case precludes this argument on appeal. (Tr. 334.) Leber v. Smith (1994), 70 Ohio St.3d 548, 552. We note that plaintiffs' arguments concerning the challenged instructions lack merit even if they had been properly raised in the trial court. The trial court's general introductory - 8 - instructions, challenged by plaintiffs, informed the jury that plaintiffs had the burden of proving their claims as follows: The law states you should take into consideration the party who asserts the affirmative proposition. The party who asserts that a cause of action exists must prove it or them by a preponderance of the evidence. * * * As I indicated, the burden of proof rests upon the plaintiff; chiefly, the driver of the car, to prove by a preponderance of all the evidence the essential and material facts asserted by plaintiffs. (Tr. 313-315). The trial court thereafter instructed the jury concerning undisputed facts in light of the parties' stipulations, as follows: *** As far as the occurrence itself is concerned, there is no dispute about the fact as to what occurred there. There is further no dispute about the fact, as far as the defendant is concerned, he admits the accident happened in the manner in which you have just been told in connection with it. He also admits he was negligent with respect to the accident itself in the manner in which he did run into the back end of the Turner automobile. Now, the plaintiff in this case contends he sustained certain injuries and damages in connection with this as a result of the collision between the two automobiles and as a result of the negligent operation by Dr. Cozzens [defendant] in this case. The defendant denies that the plaintiff, Mr. Turner, was injured in the occurrence that is the subject of this trial. (Tr. 316-317). Plaintiffs contend these instructions were erroneous in light of the parties' stipulations. It is well established that - 9 - to recover under a "negligence" cause of action, plaintiff must demonstrate the following four elements, viz.: (1) duty, (2) breach, (3) proximate cause, and (4) damages. Plaintiffs contend defendant stipulated to liability and, therefore, conceded the first three rather than merely the first two elements. However, as set forth above, the written joint stipulations filed by counsel for plaintiffs in this case, unambiguously stipulated only to "negligence," which addressed the first two elements. (Joint Stipulation at Paragraph Four.) The stipulations did not concede the third element that defendant's negligence "proximately caused" Lonnie Turner's injuries. It is well established that a party may not contest the validity of its own stipulations. Lentz v. Schnippel (1991), 71 Ohio App.3d 206, 210. Plaintiffs seek to circumvent the written "negligence" stipulation by contending that defendant's motion in limine concerning defendant's drug and alcohol use, filed after the parties' joint stipulations, broadened the stipulations to concede "liability." However, the record unambiguously demonstrates the case was in fact tried to the jury by both plaintiffs and defendant on a stipulation of "negligence" only. From opening statements through closing argument and the trial court's instructions, the record is replete with references to the parties' joint stipulation of "negligence." New counsel for plaintiffs after trial and on appeal are the first to raise this claim that defendant stipulated to "liability." Arguments in a - 10 - brief cannot be construed to expand beyond a joint written stipulation and constitute a stipulation of liability. The trial court properly instructed the jury concerning plaintiffs' burden of proving their claims and the parties' stipulations. The parties' stipulation concerning defendant's "negligence" did not warrant eliminating these instructions or relieve plaintiffs of their burden of proving the remaining "proximate cause" and "damage" elements of the negligence action, or the remaining elements of the lack of consortium claim, by a preponderance of the evidence. Accordingly, plaintiffs' third assignment of error is overruled. Plaintiffs' fourth assignment of error follows: THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Plaintiffs' fourth assignment of error lacks merit. Plaintiffs argue the jury verdict was against the manifest weight of the evidence because the jury ignored the uncontradicted proximate causation medical opinion testimony of Dr. Brodkey. It is well established, however, that a reviewing court will not reverse a judgment verdict which is supported by some competent credible evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 79-80. Based on our review of the record, plaintiffs have failed to demonstrate the jury lost its way and created a manifest miscarriage of justice. As noted above, the parties presented sharply conflicting theories of the case. Plaintiffs argued that Lonnie Turner's - 11 - spinal condition was caused by the accident, whereas defendant argued Lonnie Turner suffered from a pre-existing degenerative spinal condition unrelated to the accident. The jury was presented with a $216 repair bill for defendant's vehicle, photographs of the two vehicles showing signs of only a minor impact, and evidence that neither Janis Turner nor defendant was physically injured in the collision. Lonnie Turner did not obtain dental treatment for weeks or medical treatment for months following the accident and recited several different explanations concerning the cause of his injuries to different people at different times. Out of court, Lonnie Turner (1) testified at deposition that he did not know what he struck in the vehicle, (2) told dentist Hudson that he struck his teeth on the steering wheel, and (3) told neurosurgeon Dr. Brodkey that he struck his head on the steering wheel. Lonnie Turner testified in court at trial that he struck his teeth on the steering wheel. The jury was not required to believe the testimony of Dr. Brodkey that Lonnie Turner's spinal condition was caused by the motor vehicle accident. Dr. Brodkey's opinion was based on Lonnie Turner's statement that he hit his head on the steering wheel, but Lonnie Turner changed his story at trial by stating that he struck his teeth. Even if Lonnie Turner's explanation of the cause of his injuries had been consistent, it is within the province of the jury to believe all, part, or none of a witness' testimony. State v. Antill (1964), 176 Ohio St. 61, 67. Mere - 12 - speculation by one juror that the jury disregarded Dr. Brodkey because he was black cannot impeach the jury verdict, especially when the speculation does not alter this conclusion. State v. Schiebel (1990), 55 Ohio St.3d 71. Accordingly, plaintiffs' fourth assignment of error is overruled. Plaintiffs' fifth assignment of error follows: THE TRIAL COURT ERRED IN NOT ORDERING A NEW TRIAL WHEN JURY MISCONDUCT WAS ESTABLISHED. Plaintiffs' fifth assignment of error lacks merit. Alleging two jurors spoke about the case at a public restaurant and drank alcohol at lunch during trial, plaintiffs contend the trial court improperly denied their motion for new trial on grounds of juror misconduct. Plaintiffs also contend the trial court should have granted a new trial since the jury verdict was against the manifest weight of the evidence and resulted from passion or prejudice. It is well established, however, that a trial court's determination whether to grant a new trial will not be reversed absent an abuse of discretion. Savage v. Correlated Health Serv., Ltd. (1992), 64 Ohio St.3d 42, 47; Apaydin v. The Cleveland Clinic Foundation (July 6, 1995), Cuyahoga App. No. 67100, unreported at p. 6. An abuse of discretion involves more than an error of law or judgment. To warrant reversal, the trial court's action must be arbitrary, unreasonable or unconscionable. Based on our review of the record, plaintiffs have failed to demonstrate the trial court abused its discretion in this case. - 13 - The trial court conducted a hearing on plaintiffs' post- trial motion over the course of a two-day period. The transcript demonstrates plaintiffs overheard two jurors discussing the case at a public restaurant on the fourth day of trial prior to deliberations. Evidence indicated the two jurors were drinking alcoholic beverages. Plaintiffs did not inform the trial court of this alleged misconduct until after the jury returned its verdict for defendant. It is well established that a party may not elect to await the outcome of trial and, after an adverse verdict, belatedly raise a claim of juror misconduct when the party knew of the alleged misconduct prior to the submission of the case to the jury. Feldman v. Bernard Lumber Co. (1934), 18 Ohio Law Abs. 156, 160. Plaintiffs have likewise failed to demonstrate the trial court abused its discretion by denying their motion for new trial on the manifest weight of the evidence or passion and prejudice grounds. Under the circumstances, as noted above under plaintiffs' fourth assignment of error, the trial judge and jury could properly find in favor of defendant based on the evidence presented in this case. Accordingly, plaintiffs fifth assignment of error is overruled. Plaintiffs' sixth assignment of error follows: THE TRIAL COURT ERRED IN ALLOWING DEFENSE COUNSEL TO MAKE IMPROPER REMARKS DURING CLOSING ARGUMENT. Plaintiffs' sixth assignment of error lacks merit. - 14 - Plaintiffs argue the trial court improperly permitted defense counsel to comment during closing argument on the evidence concerning Lonnie Turner's authorship of the song "Second Time Around." Based on our review of the record, plaintiffs have failed to demonstrate any error. It should be noted at the outset that plaintiffs raised no objection to these comments during closing argument. Moreover, even if plaintiffs had raised a timely objection, the record demonstrates defense counsel did not make any improper argument. As discussed above in plaintiffs' first assignment of error, evidence concerning this subject was properly admitted at trial pursuant to Evid.R. 611(B). Counsel may comment during closing argument upon the evidence adduced at trial. Drake v. Caterpillar Tractor Co. (1984), 15 Ohio St.3d 346. As a result, the trial court did not err by permitting defense counsel to comment on the evidence and Lonnie Turner's credibility. Accordingly, plaintiffs' sixth assignment of error is overruled. Judgment affirmed. - 15 - It is ordered that appellee recover of appellants his 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. PORTER, P.J., and PRYATEL*, J., CONCUR. DIANE KARPINSKI 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 .