COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67812 GREGORY CHOTKEVYS, ET AL. : : : : JOURNAL ENTRY Plaintiff-Appellants: : AND vs. : : OPINION RICHARD SEMAN : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-253972 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellants: DAVID A. KULWICKI Dennis Seaman & Associates 1600 Rockefeller Building 614 Superior Avenue, N.W. Cleveland, Ohio 44113 For Defendant-Appellee: ROGER H. WILLIAMS THOMAS M. COUGHLIN, JR. 126 West Streetsboro Street Suite 4 Hudson, Ohio 44236 - 3 - O'DONNELL, J.: Appellants, Gregory Chotkevys and his wife, Barbara Hill, appeal from the decision of the trial court granting appellee Richard Seman's motion for a new trial. Because we find the trial court properly exercised its discretion, we affirm the judgment of the trial court. On the evening of March 4, 1993, Melody Seman contacted appellant seeking help in starting her Toro snowthrower. Appellant obliged and then voluntarily began cleaning appellee's driveway with the unit. Appellant testified the exhaust chute became clogged, so he disengaged the auger control switch and put his gloved hand inside the chute to clear the snow. At that time, the impeller blade caught the glove pulling his hand into the blade causing amputation of his right middle finger at the first knuckle and severe laceration and fracture of his right index and ring fingers. The Toro unit employed two augers to move snow, one parallel to the ground to clear snow, and the other called an impeller, perpendicular to the ground level auger, to throw snow through the exhaust chute. The safety interlock lever located on the handle controlled both augers thus preventing the operator from leaving the rear of the unit with the augers engaged. Here, however, appellee had earlier strapped the interlock lever to the handle of the snowthrower thus defeating its effectiveness. - 4 - On June 18, 1993 appellant filed this negligence suit against appellee. The emergency room records from Southwest General Hospital contained the notation ETOH, which the parties agree means that appellant smelled of alcohol when treated in the emergency room. Although the hospital conducted a blood alcohol test, those results reflecting appellant's level of intoxication were inadvertently not transmitted to appellee's counsel until the first day of trial. At the conclusion of all the evidence, defense counsel offered the blood alcohol test results into evidence as part of the hospital records; plaintiff objected and before the court ruled, the parties stipulated that the results would not be admitted into evidence. The jury, after deliberation, returned verdicts of $167,500 for appellant and $5,000 for his wife, but also found appellant 35% negligent. Thereafter, appellee moved for judgment n.o.v. or, in the alternative, for a new trial on the basis of newly discovered evidence, the results of the blood alcohol test showing appellant's state of intoxication. The court conducted a full hearing on that motion and appellee presented the testimony of a toxicologist who testified that appellant's blood alcohol level of 270 MG/DL evidenced a highly intoxicated condition and that appellant would have had to consume 13 cans of beer or 13 shots of liquor in a one-hour period in order to attain such a result. Appellee also presented several nurses who observed appellant in - 5 - the emergency room and testified that he appeared highly intoxicated and belligerent. The trial court granted appellee's motion for new trial finding that the failure to obtain the toxicology report showing appellant's level of intoxication could not be blamed on the defense and ruling that this newly discovered evidence had not been known by the fact finders and would have a high probability of creating a very different trial result. Appellant now appeals the decision to grant a new trial and raises seven assignments of error. I. Appellants' first five assignments of error challenge the trial court's decision to grant appellee's motion for a new trial and will, therefore, be addressed together. Appellant contends: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR A NEW TRIAL ALLOWING DEFENDANT-APPELLEE TO INTRODUCE ADDITIONAL EVIDENCE WHEN THE PARTIES STIPULATED AT TRIAL TO KEEP THE EVIDENCE OUT OF THE RECORD. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR A NEW TRIAL WHERE DEFENDANT-APPELLEE DOES NOT MEET ALL CRITERIA FOR A NEW TRIAL UNDER CIVIL RULE 59(A)(3) OR (A)(8). THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR A NEW TRIAL AS A DISCOVERY SANCTION WHEN THERE WAS NO FORMAL DISCOVERY REQUEST FOR THE SUBJECT EVIDENCE. THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR A NEW TRIAL ALLOWING - 6 - DEFENDANT-APPELLEE TO INTRODUCE ADDITIONAL EVIDENCE WHEN DEFENDANT-APPELLEE MADE NO OBJECTION AT TRIAL AND FAILED TO PROFFER THE SUBJECT EVIDENCE. THE TRIAL COURT ERRED IN GRANTING A NEW TRIAL AS TO BOTH LIABILITY AND DAMAGES. Appellant believes that the toxicology report of appellee's blood alcohol level was not newly discovered evidence under Civ.R. 59, that it cannot be the basis for a new trial because it was kept out of evidence by stipulation, that a new trial is essentially an unwarranted discovery sanction, and that the jury's finding as to the amount of damages should not be disturbed. Appellee urges that the toxicology report was either newly discovered evidence or provided "good cause" for a new trial under Civ.R. 59(A). Appellee further argues that the grant of a new trial was not an abuse of discretion or a "discovery sanction" by the trial court. Civ.R. 59(A) addresses motions for new trial and provides in relevant part: (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: *** (8) Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at trial; *** - 7 - In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown. ***. This rule then incorporates a dual standard of review as contemplated in Rohde v. Farmer, 23 Ohio St.2d 82 (1970), as set forth in paragraphs one and two of the syllabus: 1. Where a trial court is authorized to grant a new trial for a reason which requires the exercise of a sound discretion, the order granting a new trial may be reversed only upon a showing of abuse of discretion by the trial court. 2. Where a new trial is granted by a trial court, for reasons which involve no exercise of discretion but only a decision on a question of law, the order granting a new trial may be reversed upon the basis of a showing that the decision was erroneous as a matter of law. Our review then in this case is to determine whether or not the trial court erred or abused its discretion in granting the motion for new trial. In Sheen v. Kubiac (1936), 131 Ohio St. 52, the court set forth the standard of review for granting a new trial on the basis of newly discovered evidence: 3. *** [I]t must be shown that (1) the new evidence must be such as will probably change the result if a new trial is granted, (2) it must have been discovered since the trial, (3) it must be such as could not in the exercise of due diligence have been discovered before the trial, (4) it must be material to the issues, (5) it must not be merely cumulative to former evidence, and (6) it must not merely impeach or contradict the former evidence. In this case, upon receipt of the motion for new trial, the court conducted a full evidentiary hearing, applied the tests set - 8 - forth in Sheen, supra, and found a "high probability" that the trial result would change, that the failure to obtain the toxicology report could not be blamed on appellee, and that the report was relevant evidence. Applying the standard set forth in Civ. R. 59(A)(8) and in Rohde, we do not conclude this decision was erroneous as a matter of law. Viewing the trial court's action under the abuse of discretion standard, we note that the Ohio Supreme Court has defined abuse of discretion as involving more than an error of law or judgment; it implies that the court's attitude is unreasonable arbitrary or unconscionable. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217 at 219. In its opinion, the court stated, "Justice demands that *** for good cause shown" the new trial be granted. This is not an unreasonable, arbitrary or unconscionable act. Nor is it an abuse of discretion. Appellant's first five assignments of error are therefore not well taken. II. For his sixth assignment of error, appellant contends: THE TRIAL COURT ERRED IN STAYING THE ACCRUAL OF POST-JUDGMENT INTEREST. By order dated July 14, 1994, the trial court stayed the proceedings pending its ruling on the motion for new trial. Appellant, however, does not designate this ruling in his notice of appeal. - 9 - App.R. 3(C) provides in pertinent part that "[t]he notice of appeal *** shall designated the judgment, order or part thereof appealed from ***." App.R. 3 must be construed in light of the purpose of a notice of appeal, which is to notify an appellee of the appeal and advise him of "just what appellants *** [are] undertaking to appeal from." Maritime Manufacturers, Inc. v. Hi-Skipper Marina (1982), 70 Ohio St.2d 257, 258-59. The Ohio Supreme Court has previously held that it is without jurisdiction to review a judgment or order which is not designated in the appellant's notice of appeal. Schloss v. McGinness (1984), 16 Ohio App.3d 96, 97-98; Parks v. Baltimore & Ohio RR. (1991), 77 Ohio App.3d 426, 428. Since appellant has failed to designate this ruling in his notice of appeal, we are without jurisdiction to hear an appeal on that matter. Appellant's sixth assignment of error is not well taken. III. For his final assignment of error, appellant contends: THE TRIAL COURT ERRED IN NOT GRANTING PLAINTIFF- APPELLANTS' MOTION FOR PREJUDGMENT INTEREST. Appellant filed a motion for pre-judgment interest on February 28, 1994, ten days after appellee had filed his motion for a new trial. The trial court granted a new trial and did not rule on the motion for pre-judgment interest. Since no ruling - 10 - has been made on this motion, there is no judgment to appeal under App. R. 4 and we will not address this assignment of error. Appellant's final assignment of error is without merit. Judgment affirmed. - 11 - It is ordered that appellee(s) recover of appellant(s) 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. JOHN T. PATTON, C.J., and DAVID T. MATIA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .