COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68204 ANN P. SAPIR : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION ALBERT KITNER : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 7, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Lyndhurst Municipal Court : Case No. 94-CVE-441 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: GEORGE R. SAPIR 7140 Northfield Road Walton Hills, Ohio 44146 For defendant-appellee: JEFFREY W. VAN WAGNER JAY W. PEARLMAN Ulmer & Berne 1300 East 9th Street, #900 Cleveland, Ohio 44114 - 3 - TERRENCE O'DONNELL, J.: Appellant, Ann P. Sapir, appeals from a jury verdict of the Lyndhurst Municipal Court denying her $9,999.99 claim for personal injuries and property damage arising out of a motor vehicle collision on S.O.M. Center Road in Mayfield Heights, Ohio. Because we find the appeal is not well taken, we affirm. At pretrial, the court established a discovery cut-off date of July 1, 1994, and scheduled trial for October 7, 1994. However, the trial court later granted appellee Albert Kitner's motion to extend discovery, and also permitted the investigating police officer to testify at trial over appellant's objection. The jury returned a verdict for appellee after a five-minute deliberation. Appellant raises three assignments of error, none of which merit reversal of the judgment. I and II. THE TRIAL COURT ERRED IN SUSTAINING DEFENDANT- APPELLEE'S MOTION TO EXTEND THE DISCOVERY CUT-OFF DATE IN THAT TIME FOR THE COMPLETION OF DISCOVERY HAD LONG SINCE PASSED, THE DEFENDANT-APPELLEE SHOWED NO EXCUSABLE NEGLECT TO ALLOW FOR EXTENSION OF THE CUT-OFF DATE AS REQUIRED BY OHIO CIVIL RULE 6(B)(2), AND THE TRIAL COURT APPLIED THE INCORRECT STANDARD OF GOOD CAUSE SHOWN TO SUSTAIN THE MOTION. THE TRIAL COURT ERRED IN ALLOWING THE DEFENDANT - APPELLEE TO REVISE HIS WITNESS LIST THE DAY OF TRIAL AND IN SO DOING TO ALLOW INTO TRIAL THE - 4 - SURPRISE PREJUDICIAL TESTIMONY OF A PREVIOUSLY UNDISCLOSED WITNESS. Because these assignments both concern the exercise of judicial discretion they will be addressed jointly. Appellant essentially argues that the trial court erred or abused its discretion in extending the discovery deadline and in allowing a witness not listed on appellee's witness list to testify at trial. Appellee urges no abuse of discretion on the part of the court. The issue, then, for resolution is whether or not the trial court erred or abused its discretion in making these rulings. Civ. R. 6(B) states in relevant part: *** the court for good cause shown may at any time in its discretion *** (2) upon motion made after expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; ***. A motion for the extension of a discovery period brought pursuant to Civ.R. 6(B) is addressed to the sound discretion of the trial court and will not be disturbed upon appeal absent a showing of abuse of discretion. See Marion Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 271, citing Miller v. Lint (1980), 62 Ohio St.2d 209, 214; Evans v. Chapman (1986), 28 Ohio St.3d 132, 135. 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." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. - 5 - Here, appellant argues the court granted the discovery extension, "for good cause shown and in the interests of justice", rather than finding, "excusable neglect" as denominated in Civ. R. 6(B), and therefore urges reversal. The record reflects the trial court ruled "for good cause" in conformity with the rule, and "in the interests of justice" which we interpret in this instance to be substantially equivalent to a finding of excusable neglect. Hence, we find no merit to appellant's claim on this issue. We further consider the trial court's decision to allow the investigating police officer to testify at trial even though not listed on appellee's witness list. Appellant contends police officer Ciccero, who investigated the accident and spoke with appellant after the accident, appeared as a surprise witness and the court erred in allowing this testimony. Appellee urges that the trial court acted properly. Our review of the record demonstrates that the trial judge permitted appellant's counsel to interview the officer prior to testimony, which diminishes any surprise now claimed on appeal. Neither has appellant demonstrated any prejudice as a result of this testimony because the officer's identity was known prior to testimony at trial, nor has appellant suggested denial of the opportunity to call a rebuttal witness. Civ. R. 26(B)(1) permits parties to obtain discovery of any matter relevant to the subject matter involved in the action - 6 - including the identity and locations of persons having knowledge of any discoverable matter, but the control of witnesses and trial is left to the discretion of the trial court. Here, the court properly exercised its discretion and we find no merit to this assigned error. Accordingly, it is overruled. III. THE TRIAL COURT ERRED IN DENYING PLAINTIFF- APPELLANT'S MOTION FOR A NEW TRIAL IN THAT, DESPITE THE COURT'S INSTRUCTION TO THE JURY TO WEIGH THE EVIDENCE AND DISCUSS IT BETWEEN THEM BEFORE REACHING A VERDICT, THE JURY RETURNED A VERDICT AFTER BEING RETIRED FOR LESS THAN FIVE MINUTES. In the third assignment of error, appellant argues the trial court abused its discretion in denying the motion for new trial because the short duration of deliberation evidences jury misconduct. The decision to grant a new trial is left to the sound discretion of the trial court and will be not reversed absent a showing of an abuse of that discretion. Rohde v. Farmer (1979), 23 Ohio St.2d 82. In the instant case, appellant alleges that the jurors committed misconduct by deliberating for less than five minutes. The record, however, does not reflect an objection being made by appellant. A reviewing court may not reverse a judgment for error that could have been, but was not, called to the attention of the trial court at a time when it could correct such error. - 7 - See Cole v. Central Ohio Transit Authority (1984), 20 Ohio App.3d 312. Therefore, appellant has waived his right to pursue this issue on appeal. Furthermore, error will not be presumed but must appear affirmatively in the record. Gibson v. Johnson (1942), 69 Ohio App. 16. In this case a jury poll was taken which revealed that each juror found in favor of appellee. Appellant has failed to document or support the allegation of juror misconduct with any part of the record nor does the transcript reflect any such misconduct. We conclude, therefore, that the trial court did not abuse its discretion in denying appellants motion for a new trial which was founded on grounds of jury misconduct. Appellant's third assignment of error is without merit. Judgment affirmed. - 8 - 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 Lyndhurst Municipal 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. PATTON, C.J., and BLACKMON, 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 journaliza- .