COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68693 CARRIE A. CANTERBURY : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : DENNIS R. WING : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 9, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 264249. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Michael V. Kelley, Esq. Robert R. Lucarelli, Esq. Michael P. Maloney, Esq. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A. Ninth Floor, Halle Building Cleveland, OH 44115 For Defendant-Appellee: Gerald L. Jeppe, Esq. Meyers, Hentemann, Schneider & Rea 2100 Superior Building Cleveland, OH 44114 -2- DAVID T. MATIA, J.: Carrie Canterbury, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas awarding judgment in her favor in the amount of $10,000. Plaintiff- appellant assigns one error for this court's review. Plaintiff-appellant's appeal is not well taken. I. THE FACTS On January 23, 1992, Carrie Canterbury, plaintiff-appellant, and Dennis Wing, defendant-appellee, were involved in a rear-end automobile collision in which defendant-appellee's automobile struck and damaged the automobile being operated by plaintiff- appellant. On January 18, 1994, plaintiff-appellant filed a complaint in the Cuyahoga County Court of Common Pleas alleging personal injury as a direct and proximate result of defendant-appellee's negligent operation of his automobile. Discovery was exchanged between the parties. Prior to trial, defendant-appellee stipulated negligence on his part. A jury trial on the remaining issues of injuries and damages began on February 27, 1995. The presentation of evidence by both parties concluded on the morning of March 1, 1995. That afternoon, the jury returned a verdict in favor of plaintiff-appellant in the amount of $10,000. When counsel for both parties returned to court for the verdict on Wednesday afternoon, they learned for the first time that a jury question had been addressed by the trial court, off the record and -3- out of the presence of the attorneys. The question, which was written on a small piece of paper, asked: "Can the settlement be stipulated for medical and/or pain and suffering[?]" On the same piece of paper the trial court wrote the following response: "You must return one verdict." On March 10, 1995, plaintiff-appellant filed a motion to supplement the record to reflect the jury question and the manner in which the trial court answered the jury question. The trial court granted plaintiff-appellant's motion to supplement the record on March 22, 1995. On March 17, 1995, plaintiff-appellant filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR Carrie Canterbury's, plaintiff-appellant's, sole assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY ANSWERING A JURY QUESTION OFF THE RECORD AND WITHOUT NOTICE TO OR IN THE PRESENCE OF TRIAL COUNSEL CONCERNING A MATERIAL ISSUE. A. THE ISSUE RAISED: WHETHER THE TRIAL COURT'S ACTIONS PREJUDICED PLAINTIFF-APPELLANT. Plaintiff-appellant argues, through her sole assignment of error, that the trial court erred in answering the question posed by the jury off the record and out of the presence of counsel. Specifically, plaintiff-appellant maintains that the action of the trial court may have prejudiced plaintiff-appellant's case since plaintiff-appellant's counsel was not provided with the opportunity to be heard or to object before the trial court -4- responded to the jury's question. Plaintiff-appellant maintains further that the trial court's response may have influenced the jury into arriving at a lower amount of damages than it might otherwise have assessed. Plaintiff-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW. In Bostic v. Connor (1988), 37 Ohio St.3d 144, the Ohio Supreme Court stated: As a general rule, any communication between judge and jury that takes place outside the presence of the defendant or parties to a case is error which may warrant the ordering of a new trial. See State v. Adams (1974), 39 Ohio St.2d 53 ***. Id. at 149. Such communications between judge and jury should be made in the presence of the defendant or parties so that they may have an opportunity to be heard or to object before the judge's reply is made to the jury. Fillippan v. Albion Vein Slate Co. (1919), 250 U.S. 76. However, even when the trial court communicates with the jury out of the presence of the parties, the question remains as to whether the alleged error prejudiced an appellant's right to a fair trial. State v. O'Brien (Sept. 28, 1993), Franklin App. No. 93-AP-353, unreported. To prevail on a claim of prejudice due to an ex parte communication between judge and jury, the complaining party must first produce some evidence that a private contact, without full knowledge of the parties, occurred between the judge and jurors which involved -5- substantive matters. State v. Jenkins (1984), 15 Ohio St.3d 164. C. PLAINTIFF-APPELLANT WAS NOT PREJUDICED. In the case sub judice, a review of the record from the trial court fails to support plaintiff-appellant's assertion that the jury was somehow influenced by the trial court's response to their question or that the trial court's response prejudiced plaintiff-appellant's case. An examination of the jury question as well as the trial court's response demonstrates that the jury merely made a procedural inquiry as to whether the total amount of damage should be divided into two categories, medical expenses and pain and suffering. The jury's question did not, as plaintiff-appellant maintains, involve a substantive matter connected with the case. In addition, the trial court's response to the written jury question was clearly proper in light of the previously given jury instructions and the fact that no interrogatories were supplied to the jury by either party or the trial court. Contrary to plaintiff-appellant's assertion, the trial court's response to the jury's question was not prejudicial to plaintiff-appellant's case and reversal under these circumstances is not appropriate. Bostic, supra, at 149. Accordingly, plaintiff-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -6- It is ordered that appellee recover of appellant 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. PATTON, C.J. and BLACKMON, J., CONCUR. DAVID T. MATIA 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 .