COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68111 THOMAS McKEEGAN, et al : : Plaintiff-appellants : : JOURNAL ENTRY vs. : and : OPINION SEARS, ROEBUCK & COMPANY : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 7, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 254,071 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellants: DAVID J. MURRAY Attorney at Law 795 I.N.A. Building 14701 Detroit Avenue Lakewood, Ohio 44107 For defendant-appellee: WILLIAM P. FARRALL Attorney at Law The 113 St. Clair Building Cleveland, Ohio 44114 JOHN V. CORRIGAN, J.: This is an appeal from a motion for a directed verdict entered by the Cuyahoga County Court of Common Pleas with regard to a product liability claim brought by plaintiff-appellant, Thomas McKeegan (hereinafter "McKeegan" or "appellant"), against defendant-appellee, Sears, Roebuck and Company (hereinafter "Sears" or "appellee"). The facts as adduced from the record are as follows: I. On November 24, 1990, a fire occurred at the home of Thomas and Anne McKeegan. The fire caused damage to the home and con- tents in excess of $70,000.00. The home and its contents were insured under a homeowner's policy written by Western Reserve Mutual Casualty Company. Three days after the fire, the insurance adjuster, Edward Borocz, employed George L. Kramerich, Ph.D., a professor of electrical engineering at Cleveland State University, to examine the fire scene. Dr. Kramerich examined the electrical appliances in the kitchen where it was determined the fire had begun. Dr. Kramerich conducted an investigation of the stove and refrigerator in order to render an opinion as to the involvement of - 3 - any electrical appliances as well as the cause and origin of the fire. The City of Cleveland Fire Department conducted a separate investigation and concluded that the cause of the fire was a short circuit in the refrigerator. On December 2, 1990, after his ini- tial investigation, Dr. Kramerich issued a report that differed with the fire department's conclusions, determining that the cause of the fire was within the electrical wiring of the stove. Defen- dant's expert, Richard Schults, was an employee of the Roper Company, the manufacturer of the stove. Mr. Schults had worked for the Roper Company for seventeen years and currently worked in quality control. Mr. Schults conducted an examination of the electrical components of both the stove and refrigerator; however, Mr. Schults was unable to determine the cause or origin of the fire as the entire range was not retained by Dr. Kramerich. Thereafter, on June 22, 1993, after a previous filing was dismissed without prejudice, the appellant filed the herein action. In the complaint, appellant alleged causes of action based upon appellee's alleged breach of implied and expressed warranties and appellee's negligence in the manufacturer of the electric cooking range. Sears filed two motions in limine concerning the testimony of appellant's expert, Dr. Kramerich. In its first motion in limine, filed on August 2, 1994 and refiled on September 29, 1994, Sears asserted that Dr. Kramerich's testimony, photographs and report - 4 - should be excluded because appellant destroyed critical evidence that might have contradicted or refuted Dr. Kramerich's opinions. In its second motion in limine, Sears asserted that Dr. Kamerich's testimony relating to the cause and origin of the fire should be excluded because Dr. Kramerich does not hold a valid Ohio license as a private investigator of fires pursuant to R.C. 4749.03. On Friday, September 30, 1994, prior to the trial court's ruling on appellee's motions in limine, the trial began. Plain- tiff's initial witness was the defendant's expert witness, Richard Schults, called upon for cross-examination. In addition, plain- tiff presented the testimony of Thomas and Ann McKeegan, as well as Edward Borocz. On Monday, October 3, 1994, prior to Dr. Kramerich being presented as a witness, the trial court conducted a voir dire hearing to determine the issues presented by Sears' motions in limine as they pertained to Dr. Kramerich. At the conclusion of the voir dire examination, the trial court ruled that pursuant to R.C. 4749.13, Dr. Kramerich could not testify with regard to the cause and origin of the fire. Appellant then rested its case without calling any further witnesses. Thereafter, appellee's Civ.R. 50 motion for directed verdict was granted by the trial court. Appellant timely appealed raising the following assignments of error for our review: - 5 - I. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PLAINTIFFS' PREJUDICE IN EXCLUDING THE TESTIMONY OF PLAINTIFFS' CAUSE AND ORIGIN EXPERT ON THE GROUNDS THAT HE WAS ENGAGED IN THE BUSINESS OF PRIVATE INVESTIGATION AND UNLICENSED AS REQUIRED BY REVISED CODE CHAPTER 4749. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFS IN CONSIDERING AND GRANTING THE DEFENDANT'S SECOND MOTION IN LIMINE TO EXCLUDE PLAINTIFFS' EXPERT TESTIMONY, WITHOUT PERMITTING PLAINTIFFS ADEQUATE TIME TO RESPOND AS REQUIRED BY LOCAL RULE 11. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFFS IN EXCLUDING THE TESTIMONY OF PLAINTIFFS' CAUSE AND ORIGIN EXPERT WHERE THE COURT PERMITTED DEFENDANT TO CROSS-EXAMINE OTHER PLAINTIFFS' WITNESSES REFERRING TO THE EXPERT'S REPORT AND WHERE PART OF THE EXPERT'S REPORT (PHOTOGRAPHS) WERE STIPULATED BETWEEN COUNSEL AS ADMISSIBLE. IV. THE TRIAL COURT ERRED IN ALLOWING AND CONSIDERING THE DEFENDANT'S MOTION IN LIMINE, TO EXCLUDE THE PLAINTIFFS' EXPERT TESTIMONY, AS THE BASIS OF SUCH MOTION WAS KNOWN OR AVAILABLE TO THE DEFENDANT FOR YEARS PRIOR TO FILING AND SUCH MOTION WAS IN THE NATURE OF A SURPRISE COMING AT THE BEGINNING OF THE TRIAL. A. In his first assignment of error, appellant contends that the trial court's refusal to allow Dr. Kramerich to testify with regard to the cause and origin of the fire was an abuse of discretion. In reviewing a ruling on the admissibility of evidence, an appellate court applies an abuse of discretion standard of review. See, Peters v. Ohio State Lottery Comm. (1992), 63 Ohio St.3d 296. "The - 6 - term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Initially, it must be noted that the trial court did not rule to exclude all of Dr. Kramerich's expert testimony; rather, the trial court held the following: The Court is of the opinion that Professor Kramerich, although a highly qualified and competent professor, and a credit to Cleveland State University, which is a fine university, is not permitted under the Ohio Revised Code to give testimony as to cause and origin. I would permit him to give detailed testimony as to his observations based upon photographs which he took and based upon photographs of others and certainly I believe to some extent would permit him to testify as to electrical matters without regard to cause and origin, but I am ruling that I will not allow him to testify as to cause and origin because of the statute. * * * I will not allow him to give the ultimate opinion of the cause and origin of the fire, but I would allow him to give opinion testi- mony in the field of his expertise. After this ruling by the trial court, appellant decided not to present any of Dr. Kramerich's testimony to the jury and, thereafter, rested its case. Now on appeal, appellant contends that this granting of the appellee's motion in limine was an abuse of discretion by the trial court. We do not agree. - 7 - In the present case, the trial court conducted a voir dire hearing of Dr. Kramerich five days after appellee filed its second motion in limine. After an examination was conducted by both parties, the trial court ruled to exclude Dr. Kramerich's testi- mony as it related to the cause and origin of the fire. Supra. The trial court deemed that Dr. Kramerich was not qualified to testify regarding the cause and origin of the fire because he was not licensed as a private investigator pursuant to R.C. 4749.01, which states, in pertinent part, as follows: (B) "Business of private investigation" means ***, the conducting, for hire, in person or through a partner or employees, of any investigation relevant to any crime or wrong done or threatened, *** or to determine the cause of or responsibility for any libel or slander, or any fire, accident, or damage to property, or to secure evidence for use in any legislative, administrative, or judicial investigation or proceeding. (Emphasis added) During the voir dire examination, Dr. Kramerich testified that he was aware of the licensing requirement but had not yet obtained the necessary license. Of utmost importance in the trial court's decision to exclude Dr. Kramerich's cause and origin testimony was Pennsylvania Lumbermens Insurance Corp. v. Landmark Electric, Inc. (Dec. 29, 1993), Montgomery App. No. 13882, unreported, where the court, interpreting R.C. 4749, held that "people who investigate the cause of fire are generally required to be licensed private inves- tigators." The trial court followed this ruling and refused to - 8 - allow Dr. Kramerich to testify regarding the cause and origin of the fire. There is no dispute between the parties as to Dr. Kramerich's extensive academic experience; however, there is also no dispute that Dr. Kramerich was not duly licensed pursuant to the mandates of R.C. 4749. Without this licensing, Dr. Kramerich was precluded, by statute, from engaging in the business of private investigation to determine the origin of fires. See, R.C. 4749.13. Dr. Kramerich was also statutorily unauthorized to secure evidence of the origin of a fire for use in a judicial proceeding. See, R.C. 4749.01(B). Recognizing the clear wording of the statute, counsel for appellant, nevertheless, argues that the Ohio General Assembly never intended to bar such a thoroughly qualified expert from testifying in this type of case. He contends that the statute applies only to certain types of persons conducting private inves- tigations, such as private detectives and divorce case investiga- tors. The heading of Chapter 4749 reads as follows: "Private Inves- tigators; Security Systems." This might then indicate that the legislature sought to address certain problems by regulating certain private investigators; however, as written, it requires persons conducting private investigations for hire in Ohio be licensed. The original statutes enacted in 1970 excluded public officers, attorneys and some other occupations. Amended in 1985 - 9 - and again in 1994, additional job classifications, including professional engineers and registered accountants, were added to the exclusion. Due to the broad effect on the testimony of all types of hired experts not licensed, further legislative review may be in order. For now, we must agree with the holding of Pennsylvania Lumbermens, supra and find that the trial court did not abuse its discretion in ruling that Dr. Kramerich, being an unlicensed fire investigator, was precluded by statute from giving expert testi- mony as to the cause and origin of the fire. Accordingly, appellant's first assignment of error is over- ruled. B. In his second and fourth assignments of error, appellant contends that the trial court committed prejudicial error in granting appellee's second motion in limine without permitting appellant adequate time to respond. Appellant contends appellee violated Loc.R. 11(C) and "sandbagged" by filing its second motion in limine the day before trial began. Loc.R. 11(C) regards the filing of motions with the trial court and states, as follows: (C) Each party opposing the motion, except a motion for summary judgment, shall serve and file within seven (7) days thereafter, a brief written statement of reasons in opposition to the motion and a list of citations of the authorities which are relied upon. *** - 10 - However, court rules make no express provisions for the time in which a motion in limine must be filed. A motion in limine is generally a tentative, interlocutory, precautionary ruling by a trial court reflecting its anticipatory treatment of an evidentia- ry issue. State v. Grubb (1986), 28 Ohio St.3d 199, 201-202. In Hammond v. Moon (1982), 8 Ohio App.3d 66, 70, the court defined how a trial court should properly use a motion in limine as follows: Proper use of a motion in limine is to pre- clude any evidence of a certain nature which is inherently prejudicial and inadmissable without a proper foundation being established, until such time as the trial court, through a voir dire examination or otherwise, may determine during the course of the trial the admissibility of the evidence. A motion in limine ordinarily is not a substitute for a motion to suppress evidence and is not a means of determining the admissibility of evidence. Under some circumstances, a motion in limine may determine the competency of evidence and may preclude any evidence upon an issue as to which there is no possibility of any evidence being properly admissible. In the present case, the appellee filed its second motion in limine on the day before trial began. By the time trial com- menced, the trial court had not yet ruled on either of the appellee's motions in limine. Instead, the trial court reserved ruling on the motions until such time as they became relevant. In disposing of a motion in limine, a trial court is at liberty to consider the admissibility of the disputed evidence in its actual context and at the appropriate time during trial. State v. White (1982), 6 Ohio App.3d 1; Hitson v. City of Cleveland (Dec. 13, 1990), Cuyahoga App. No. 57741, unreported. This is the very - 11 - occurrence that happened in the present case. The fact that appellee's second motion in limine was filed a day before trial began does not alone compel the conclusion that the trial court abused its discretion. See, Leygraff v. Andren (Dec. 1, 1994), Cuyahoga App. No. 65811, unreported. Rather, the trial court in the present case held an extensive voir dire hearing on appellee's motions in limine at the appropri- ate time during trial -- directly prior to Dr. Kramerich's testi- mony. During this voir dire examination, counsel for both parties were able to determine the admissibility of Dr. Kramerich's testi- mony. Moreover, it was during this voir dire examination that Dr. Kramerich admitted to being aware of the licensing requirement, yet not fulfilling the same. This statutory prerequisite was determined by the trial court to preclude the advancement of any properly admissible evidence by any non-licensed investigator, such as Dr. Kramerich, with regard to the cause and origin of any fire. As previously stated in this court's disposition of appellant's first assignment of error, this ruling by the trial court was proper. Therefore, appellant's contention that the trial court erred pursuant to Loc.R. 11 is without merit. The very nature of a motion in limine allows it to be filed outside of the time for filing regular motions pursuant to Loc.R. 11 and Civ.R. 6(D). See, State v. Hall (1989), 57 Ohio App.3d 144. Accordingly, appellant's second and fourth assignments of error are overruled. C. - 12 - In his third assignment of error, appellant contends that the trial court erred in allowing parts of Dr. Kramerich's report to be used to cross-examine other witnesses while excluding Dr. Kramerich's testimony as to cause and origin. As stated in this court's disposition of appellant's second and fourth assignments of error, the trial court's ruling on appellee's motion in limine was not reached until after the voir dire examination of Dr. Kramerich. This voir dire examination did not take place until after the presentation of the other wit- nesses. At the time that these witnesses were presented, neither party knew what the trial court's ultimate ruling would be with regard to Dr. Kramerich. Moreover, the trial court's ruling on appellee's motions in limine did not preclude Dr. Kramerich from testifying. Supra. Rather, it only precluded him from giving his opinion as to the cause and origin of the fire. Therefore, the trial court's deci- sion to allow the report and photographs of Dr. Kramerich to be used to cross-examine the other witnesses did not amount to preju- dicial error. Accordingly, appellant's third assignment of error is over- ruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant 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 Cuyahoga County Court of Common Pleas 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. ANN DYKE, J. CONCUR JUDGE JOHN V. CORRIGAN* *SITTING BY ASSIGNMENT: John V. Corrigan, retired Judge of the Eighth Appellate District. 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, .