COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69069 DAVID J. WILLIAMS : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL WALLER, ET AL. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 26, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-257301 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: WILLIAM T. DOYLE (#0016119) 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 JEFFREY P. POSNER (#0022075) ZELLMER & GRUBER 1400 Leader Building Cleveland, Ohio 44114 For Defendant-Appellant: C. RANDOLPH KELLER (#0039690) 1677 East 40th Street Union Steel Screw Bldg. Cleveland, Ohio 44103 - 2 - SPELLACY, C.J.: Defendants-appellants Michael Waller, Cleveland Telecommunications Corporation, and CTC Technologies, Incorporated appeal the jury's verdict in favor of plaintiff-appellee David Williams. The jury awarded Williams damages for breach of contract claims, conversion, and defamation. Appellants assign the following errors for review: I. DEFENDANTS-APPELLANTS WERE DENIED THEIR CONSTI- TUTIONAL RIGHT TO TRIAL BY JURY WHEN THE TRIAL COURT, AS A MATTER OF LAW, LACKED THE AUTHOR- ITY TO SERVE AS THE TRIER OF FACT IN THE DETERMINATION OF PUNITIVE DAMAGES. II. DEFENDANTS-APPELLANTS ARE ENTITLED TO A NEW TRIAL BECAUSE OF THE INCONSISTENCIES IN THE FINDINGS OF THE JURY. III. THE JURY VERDICT AND RESULTING JUDGMENTS OF THE TRIAL COURT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. IV. THE JURY VERDICT AND RESULTING JUDGMENTS ARE CONTRARY TO LAW. V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT GAVE ERRONEOUS JURY INSTRUCTIONS. VI. THE CONDUCT OF THE TRIAL COURT WAS HIGHLY PREJUDICIAL RESULTING IN THE DEFENDANTS- APPELLANTS BEING DENIED A FAIR TRIAL. VII. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED DEFENDANTS-APPELLANTS' MOTIONS FOR DIRECTED VERDICT. VIII. THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT DEFENDANTS-APPELLANTS' MOTION FOR NEW TRIAL. Finding the appeal to lack merit, the judgment of the trial court is affirmed. - 3 - I. On August 27, 1993, David J. Williams filed a complaint against Michael Waller, Cleveland Telecommunications Corporation, CTC Technologies, Inc. and M & R Mechanical Contractors, Inc. The complaint was for two counts of breach of contract, for reimbursement of out-of-pocket expenses, unjust enrichment, two counts of conversion, and defamation. M & R Mechanical Contractors later was dismissed with prejudice by Williams. The remaining defendants counterclaimed for two breach of contract claims. The dispute arose from a soured business relationship between Williams and Waller. In 1990, Williams approached Waller about entering into a business relationship in order to pursue government contracts with an 8(a) firm. The 8(a) program is a derivative of the 8(a) section of the Small Business Act which directs that a percentage of government contracts be awarded to minority or woman- owned companies. A company must undergo a certification process which prequalifies the company as a minority business. Only companies which are certified may participate in these set-aside contracts. Waller was the president and sole stockholder of an 8(a) company, Cleveland Telecommunications Corporation. Williams expressed an interest in part ownership with Waller in the business entity. On the advice of Waller's attorney, Williams and Waller formed a new company, CTC Technologies, Inc. in October of 1990. Both received two hundred fifty shares of stock. It was agreed - 4 - that any 8(a) contracts procured by Williams would be administered by Cleveland Telecommunications as it had the requisite certifi- cation. Williams was to receive a salary of $60,000 annually if two conditions were met. Williams had to be elected as vice- president of CTC Technologies and CTC Technologies had to accept a contract which would produce a net income of at least a ten per cent profit after paying Williams his salary. Williams agreed to pledge his assets to contribute to the operating capital of CTC Technologies or to the establishment of a line of credit for the company. Both men were to share equally the profits and liabilities of CTC Technologies. Williams was to receive half of the profits of any contracts which he brought to Cleveland Telecommunications. Cleveland Telecommunications agreed to advance any start-up costs to CTC Technologies. Those start-up costs were to be reimbursed to Cleveland Telecommunications by CTC Technologies plus fifteen per cent interest. At the time of the incorporation, Williams was employed as a project manager with ColeJon. Williams was terminated from this position after ColeJon learned of Williams' business relationship with Waller. Williams began performing marketing full-time for CTC Technologies and Cleveland Telecommunications. From the time of his termination from ColeJon in February until June of 1991, Williams carried his own salary and expenses. Williams considered this to be his investment in the corporation. Starting in June of - 5 - 1991, Williams received $250 a week from Waller. Those payments continued until October of 1992. Williams never did pledge his assets as per the Agreement with Waller. Williams contributed $2,500 toward CTC Technologies' working capital. CTC Technologies and Cleveland Tele- communications began to successfully bid for government contracts for facilities management and maintenance. Any 8(a) contracts flowed through Cleveland Telecommunications. In 1992, Cleveland Telecommunications formed a joint venture with M & R Mechanical Contractors, Inc. and successfully bid on a five-year contract to manage the EPA Cincinnati facility. It was agreed that the joint venture would pay Williams a salary of $60,000 for one year with four optional years. Williams was to be the corporate sponsor of the project. The relationship between Williams and Waller began to swiftly deteriorate. Waller began to represent to various individuals, businesses, banks, and government entities that he was either the sole owner of CTC Technologies or that it was a wholly owned subsidiary of Cleveland Telecommunications. Waller claimed a $90,000 loss for CTC Technologies for 1991. This was represented as being the entire loss for 1991 for the company. Williams denied he was notified that Waller was taking the loss. Problems developed with some of the contracts. For one, Williams used an incorrect workers' compensation calculation and the company had to pay the additional expenses. The government - 6 - found the performance of other contracts to be deficient. Some of the contracts were not renewed or options were not picked up by the government. Williams and Waller blamed each other for the problems. On December 18, 1992, Waller and Kyle Schultz, an employee of Cleveland Telecommunications, entered Williams' office while Williams was out of town. Waller directed Schultz to assist Waller in removing property from the office. The two took proposals belonging to both Cleveland Telecommunications and CTC Technologies, a computer, and other equipment and materials. Waller retrieved the proprietary information because he feared Williams would use the information for his own benefit. After discovering Williams' locked briefcase, Schultz used a screwdriver to break the locks. Schultz stated he did so at Waller's direction and that Waller assisted in opening the briefcase. Waller denied taking anything from the briefcase. Williams averred personal papers, the initial written agreement between the two parties, the articles of incorporation for CTC Technologies, his stock certificate for CTC Technologies, and the joint venture agreement all were missing and were never returned. Williams and Schultz later filed a police report regarding the incident. Schultz was fired when Waller learned of the police report. In March or April of 1993, Waller asked Williams to sign an addendum to the board of directors in which Williams would give up - 7 - his ownership rights in CTC Technologies. Williams refused as the agreement would have made him an employee. Waller terminated Williams' employment with the joint venture in June of 1993. Waller demanded Williams return a Cadillac leased by CTC Technologies which Williams was driving. When Williams refused, Waller contacted the Solon Police Department and reported the car as stolen. In order to prove ownership, Waller sent various papers to the police. One of those papers was a stock certificate which was altered to appear that Waller owned all five hundred shares of CTC Technologies' stock. After discussing the matter with Williams, the Solon police decided not to pursue the matter. Waller then arranged for the Cadillac to be repossessed. Williams averred he had numerous items of personal property in the car. Williams wrote a letter to Waller demanding the return of his property. Waller denied having any of Williams' personal property. On July 9, 1993, Waller's attorney sent a letter to Williams demanding the return of any proprietary information belonging to CTC Technologies and Cleveland Telecommunications. The letter stated that Williams' employment relationship with the two com- panies had been terminated. If Williams failed to comply, injunc- tive proceedings would be instituted against Williams and any other individual or entity attempting to utilize or exploit the informa- tion. The letter also stated a lawsuit for money damages would be - 8 - pursued to recover any economic benefits derived from the use of the information. Copies of the letters were sent to other individuals by the attorney. All were 8(a) contractors. Waller sent additional copies to other 8(a) contractors. There was testimony the companies decided not to use Williams' services because of the letter. On October 19, 1993, Waller sent a letter to all of the approximately forty members of the 8(a) Contractors Association. Waller was a past chairman of the association and had recommended Williams to succeed him as chairman. The letter stated that Williams and another individual were illegally attempting to secure bank funds of the association. Waller wrote Williams was unemployed with no visible means of support, was unable to own a car, had personal IRS tax liens, and was personally financially depleted. Williams admitted he had tax liens but denied the rest. Waller admitted he did nothing to verify the statements. After a lengthy trial, the jury awarded Williams $596,646.27 in compensatory damages. The defendants did not receive damages on their counterclaims. The jury found the defendants breached a contract that Williams and Waller would share profits from the contracts. The jury also found Williams was hired by the Cleveland Telecommunications/M & R joint venture for an annual salary of $60,000 and that the agreement was breached. Williams was not awarded any out-of-pocket expenses or found to have conferred an - 9 - economic benefit on the defendants. Although the jury found Waller did not wrongfully covert the Cadillac, it did find Waller wrongfully converted Williams' personal items which were in the automobile. The jury also found Williams was defamed by Waller for the two letters. The jury awarded punitive damages. After a hearing, the trial court determined the amount of punitive damages to be $250,000. Attorney's fees of $42,349.72 also were awarded to Williams. II. In appellants' first assignment of error, they contend the trial court denied their constitutional right to a trial by jury when it determined the amount of the punitive damages. The record before this court contains only the trial court's journal entry on the punitive damages. There is no transcript of the hearing or any other documents or filings related to the issue of the determination of the amount of punitive damages before this court. It is the appellants' burden to provide an adequate record to this court demonstrating the claimed error. Baker v. Cuyahoga Cty. Court of Common Pleas (1989), 61 Ohio App.3d 59, 62. The appellants must show error by reference to matters in the record. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm. - 10 - Id. See also Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313. Because appellants have failed to ensure the record before this court was adequate to support their claim of error, the validity of the trial court's proceedings will be presumed. Appellants' first assignment of error is overruled. III. Before reviewing appellants' remaining assignments of error, an issue as to the reviewability of these errors must be addressed. The trial court found the journal entry stating the results of the jury trial prior to the determination of the amount of punitive damages to be a final order. Williams argues the trial court's Civ.R. 54(B) certification on the issues of compensatory damages and liability made that journal entry final and appealable. As appellants failed to appeal from the order, appellants now can appeal only the issue of punitive damages as an appeal on liability and compensatory damages is untimely. The trial court found the order to be final after Williams filed a motion requesting the trial court do so. The trial court found there was no just cause for delay in entering final judgment on liability and compensatory damages. The amount of punitive damages had not yet been determined. Williams relies on Anderson v. Scherer (1994), 97 Ohio App.3d 753, in which the Franklin County Court of Appeals held a defendant should have directly appealed from a partial judgment in order to - 11 - contest the Civ.R. 54(B) certification and that the appeal was untimely. Anderson relied on Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St.2d 184, in which the court held: A trial court is authorized to grant summary judgment upon the whole case, as to fewer than all of the claims or parties in multi- party or multi-claim actions, only upon an express determination that there is no just reason for delay until judgment is granted as to all the claims and parties. In that event, the judgment is reviewable upon the determination of no reason for delay, as well as for error in the granting of judg- ment; otherwise, the judgment is not final and not reviewable. Id., syllabus. Pursuant to Whitaker-Merrell, a party may appeal the Civ.R. 54(B) determination that there is no just reason for delay as well as the judgment itself. However, Anderson and Williams' argument would have the effect of making nonfinal orders final unless an appeal is taken on the issue of the certification. Such an appeal may be taken but it is not mandatory in order to protect the issues determined in the partial judgment. An order of a court is final and appealable only if the requirements of both Civ.R. 54(B) and R.C. 2505.02 are met. Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, syllabus. The effect of Civ.R. 54(B) is purely procedural. It does not affect either the substantive right to appeal or the merits of the claims. Alexander v. Buckeye Pipe Line Co. (1977), 49 Ohio St.2d 158. The phrase "no just reason for delay" cannot transform a nonfinal order into a final appealable order but only transform a final order into a final appealable order. Wisintainer - 12 - v. Elcen Power Strut Co. (1993), 67 Ohio St.3d 352. An appellate court only has jurisdiction to review a final appealable order. In re Adoption of Greer (1994), 70 Ohio St.3d 293. What a Civ.R. 54(B) certification will do is put the parties on notice that an order may be final for purposes of appeal. Pokorny v. Tilby Development Co. (1977), 52 Ohio St.2d 183. See also Noble v. Colwell (1989), 44 Ohio St.3d 92. If an appeal is not taken from the partial judgment entry, a party risks a determination by a reviewing court that the order was final and an appeal on that order is untimely. The party can appeal the Civ.R. 54(B) certification itself and may be wise to do so. However, if the order was not final or appealable, the failure to appeal from the partial judgment entry will not foreclose later review. In the instant case, the issue of the amount of punitive damages remained to be resolved. Williams' claim was for both compensatory and punitive damages. The punitive damages claim was not separate in itself but was a part of the overall claim for damages. See Horner v. Toledo Hosp. (1993), 94 Ohio App.3d 282. An order which does not determine all of the damage allegations for a single cause of action does not conclude that claim. Norvell v. Cuyahoga County Hospital (1983), 11 Ohio App.3d 70. The jury awarded Williams both compensatory and punitive damages for his conversion and defamation claims. The amount of punitive damages was not determined. When the amount of damages is left unresolved until a future time, there is no final judgment from which to take - 13 - an appeal. Fireman's Fund Ins. Co. v. BPS Co. (1982), 4 Ohio App.3d 3. Because the order determining liability and compensatory damages was not final, appellants' failure to appeal either the certification or the issues does not now prevent review. The appeal is timely. IV. In their second assignment of error, appellants assert the trial court abused its discretion by failing to require the jury to deliberate further or grant a new trial based upon the jury's general verdict and its answers to the interrogatories. Appellants argue the general verdict and the interrogatory answers were inconsistent and irreconcilable. Appellants maintain it was inconsistent for the jury to have found Williams breached his agreement to share equally in the profits and losses of CTC Technologies and was negligent in drafting and preparing documents and then to fail to award appellants any damages on their counterclaims. Civ.R. 49(B) provides that if the general verdict and interrogatory answers are inconsistent, the trial court may enter judgment pursuant to Civ.R. 58 in accordance with the interrogatory answers, return the jury for further consideration of its answers and verdict, or order a new trial. The choice of which option to pursue lies within the sound discretion of the trial court. Tasin v. SIFCO Industries, Inc. (1990), 50 Ohio St.3d 102, paragraph one of the syllabus. - 14 - In the instant case, the trial court reviewed the general verdict and found it to be consistent with the answers to the interrogatories. Appellants entered no objection. A party must object to any inconsistency between interrogatory answers and the general verdict before the jury is discharged or any alleged error is deemed waived. Haehlein v. Henry (1987), 41 Ohio App.3d 233. See also Greynolds v. Kurman (1993), 91 Ohio App.3d 389. Appellants failed to object before the jury was discharged and waived any assertion of error. Appellants' second assignment of error is overruled. V. Appellants' third and fourth assignments of error will be addressed together. Appellants argue the verdict was against the manifest weight of the evidence and contrary to law. In reviewing whether a verdict is against the manifest weight of the evidence, an appellate court is limited to determining whether the verdict is supported by some competent credible evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. In order to reverse a jury's verdict, an appellate court must be fully satisfied that the verdict is unsupported by and contrary to the evidence contained in the record. Even if a reviewing court might reach a different conclusion, it may not reverse a judgment unless it manifestly appears from the record that the jury misapprehended the facts and reached a conclusion that was unreasonable, improbable, or illogical to such a degree - 15 - that it is possible to say the evidence affords no reasonable foundation for the verdict. Jaworowski v. Med. Radiation Consultants (1991), 71 Ohio App.3d 320, 330. Appellants first argue that liability for the breach of contract claim should have been found to be with the joint venture of Cleveland Telecommunications Corporation and M & R Mechanical Contractors or with both of those parties and not with Waller. The evidence presented at trial was that M & R Mechanical Contractors no longer had any part of the contract providing services to the EPA in Cincinnati. That contract was being administered solely by Cleveland Telecommunications Corporation which is wholly owned by Waller. A joint venture is a special combination of natural or artificial persons who, without creating a partnership, combine their money, property or time, or all of them, in the conduct of some particular line of trade or some particular business deal for profit. Bennett v. Sinclair Refining Co. (1944), 144 Ohio St. 139, paragraph three of the syllabus. A joint venture relates to a single enterprise. Silver Oil Co. v. Limbach (1989), 44 Ohio St.3d 120. In Al Johnson Const. Co. v. Kosydar (1975), 42 Ohio St.2d 29, the court rejected the appellants' argument that the Tax Commissioner had no power to assess tax against individual parties to a joint venture. The court held that the assessments of the individual joint venturers was proper. The court noted that at the time the assessment was made, the joint ventures had ceased to exist since the purpose of the joint ventures had ended. - 16 - In the instant case, the joint venture ended when Cleveland Telecommunications Corporation began to solely administer the contract. M & R Mechanical Contractors was no longer a part of the joint venture. It was not against the evidence for the jury to have found appellants liable for the obligations of the joint venture as the joint venture had concluded at the time of trial. Only appellants were involved in administering the EPA Cincinnati contract at the time of trial. The jury found the joint venture breached the employment agreement with Williams which would have paid a $60,000 annual salary. Appellants argue four of the five years were option years and there is no guarantee the options would have been renewed. The jury found the agreement to have been breached and could have concluded Williams would have been employed for the length of the five-year EPA Cincinnati contract. As that EPA Cincinnati contract was renewed for each of the option years, appellants were responsible for Williams' salary for each of those years. It was not inconsistent for the jury to have found appellants were not unjustly enriched by Williams' services once he was compensated by payment of the salary. Appellants next assert it was against the weight of the evidence for the jury to have found in their favor on Williams' claim of conversion with regard to the Cadillac yet award damages for the personal property Williams claimed was in the Cadillac. Conversion is defined as any exercise of dominion or control - 17 - wrongfully exerted over the personal property of another in denial of or under a claim inconsistent with his rights. Okocha v. Fehrenbacher (1995), 101 Ohio App.3d 309, 318. There was evidence both Waller and Williams had a property right to the Cadillac as it was leased by CTC Technologies, a corporation jointly owned by both. However, appellants would have no right to any personal property of Williams that was in the car at the time of the repossession. The retention of that personal property by Waller would be inconsistent with Williams' rights to possess the property. Further, Williams did testify as to the worth of each item he alleged was left in the Cadillac. Appellants argue the verdict on the defamation claims were not supported by the evidence. Appellants argue that two letters in question were not defamatory and that Williams asserted no claims against Waller's attorney for writing one of the letters and publishing it. A defamation claim requires the plaintiff to establish that the statement made to a third person was actionable. Smith v. Amerifloral 1992, Inc. (1994), 96 Ohio App.3d 179, 184. The false publication must cause injury to the plaintiff's reputation, expose him to public hatred, contempt, ridicule, shame or disgrace, or affect him adversely in his trade or business. Ashcroft v. Mt. Sinai Medical Ctr. (1990), 68 Ohio App.3d 359, 365. The recipient must have understood the defamatory meaning of the published statement. Smith, supra. It is a question of law whether a - 18 - statement is capable of carrying a defamatory meaning. Stout v. Coville (1994), 96 Ohio App.3d 70, 74. The statement must have been published or communicated to a third person and have caused actual harm to the plaintiff personally or in his trade or business. Stow v. Coville (1994), 96 Ohio App.3d 70. Waller sent copies of the letter written by his attorney to other members of the 8(a) Contractors Association. The letter stated Williams was terminated from his employment with Cleveland Telecommunications Corporation and CTC Technologies even though Williams never was employed by either. The letter further stated Williams had proprietary information owned by the companies. Williams and anyone else using the information would be sued. There was no evidence Williams had any proprietary information. Individuals who received the letter testified they did not hire Williams as a consultant because of the letter. The letter by itself is defamatory as it harmed Williams in his trade or business and contained false information. Williams was not required also to bring suit against Waller's attorney in order to maintain a claim against Waller. In Ohio, one who repeats a libelous statement is liable for the republication of the libelous statement. Sawyer v. Devore (Nov. 3, 1994), Cuyahoga App. No. 65306, unreported. The republication is actionable in and of itself. The second letter sent by Waller to approximately forty members of the 8(a) Association contained numerous false statements regarding Williams' employment and financial status, and clearly - 19 - was intended to harm Williams in his business. The defamation claims were amply supported by the evidence. Appellants next argue the jury's interrogatories and general verdict were contradictory and inconsistent. They assert the judgments appear to lump together the liability for each defendant. The time to argue a jury's verdict is inconsistent is before the jury is dismissed. Appellants have waived any assertion of error that the verdict is contradictory. The jury's verdict was not against the weight of the evidence or contrary to law. Appellants' third and fourth assignments of error lack merit. VI. In their fifth assignment of error, appellants assert the trial court incorrectly instructed the jury. Appellants entered no objection to the trial court's charge. Civ.R. 51(A) states in pertinent part: On appeal, a party may not assign as error the giving or the failure to give any instruc- tions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds for the objection. The rationale behind Civ.R. 51(A) is to allow trial courts the opportunity to correct any problem with the instructions at the same trial. Presley v. Norwood (1973), 36 Ohio St.2d 29, 33. There is a plain error exception to the rule. Plain error need not be objected to or affirmatively waived but must be obvious and prejudicial to such an extent that it has "a material adverse - 20 - effect on the character and public confidence in the judicial proceedings." Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209. The plain error doctrine is utilized in civil matters only under exceptional circumstances to prevent a manifest miscarriage of justice. Cleveland Elec. Illum. Co. v. Astorhurst Land Co. (1985), 18 Ohio St.3d 268, 275. A review of the trial court's charge to the jury reveals no misstatement which necessitates the imposition of the plain error doctrine. The trial was not a miscarriage of justice which would affect public confidence in the judicial proceedings. As appellants failed to object, any error in the trial court's jury instructions has been waived. Appellants' fifth assignment of error is overruled. VII. In their sixth assignment of error, appellants argue the conduct of the trial court was highly prejudicial and denied them a fair trial. Appellants contend the trial court remarked during opening argument that appellants' counsel was repeating himself and arguing too much. The trial court also made several comments during appellant Waller's testimony. In State v. Boyd (July 1, 1993), Cuyahoga App. No. 62853, unreported, this court stated: An independent, impartial and honorable judiciary is indispensable to justice in our society. See Code of Judicial Conduct, Canon 1. A judge is presumed to be fair and impartial. In re Disqualification of Kilpatrick (1989), 47 Ohio St.3d 605; City of - 21 - Cleveland v. Uveges (May 16, 1991), Cuyahoga App. Nos. 58498, 58499, unreported. A judge should be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom he deals in his official capacity, and should require similar conduct of lawyers and his staff, court officials and others subject to his direction and control. Code of Judicial Conduct, Canon 3(A)(3). Accordingly, a trial court should refrain from intemperate commentary or gestures which might affect public confidence in the trial process. City of Cleveland v. Crawford (Sep. 28, 1989), Cuyahoga App. Nos. 55899, 55900, unreported. Id. pp. 5-6. A review of the record does not indicate that prejudicial, reversible error occurred. Although it would have been better for the trial court to have refrained from making comments, Waller was a particularly difficult witness under cross-examination. One of the trial court's remarks occurred after Waller would not agree that he stood next to Schultz while Schultz opened Williams' briefcase but was adjacent to Schultz. The trial court then stated, "Oh, come on." (Tr. 414). Considering the tenor of Waller's testimony, the trial court's comment was understandable if perhaps better left unsaid. However, the entire record does not indicate the trial judge exhibited bias or ill-will toward appellants. See Winchester Cooley, III v. Leaseway Transportation Company, U.S.A. (May 20, 1993), Cuyahoga App. Nos. 62198, 62732, unreported. Appellants were not prejudiced by the trial court's conduct and received a fair trial. The trial court's error was harmless. Appellants' sixth assignment of error is overruled. - 22 - VIII. In their seventh assignment of error, appellants contend the trial court abused its discretion by overruling their motion for directed verdict. Appellants then refer to the arguments advanced under their third assignment of error to support this separate assignment of error. Civ.R. 50(A)(4) provides: When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. When ruling on a motion for a directed verdict, the trial court's function in a jury trial is not to weigh the evidence but to "determine whether there is any evidence of substantial proba- tive value in support of the nonmoving party's claim." Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App.3d 94, 96. The determination to be made is not whether one set of facts is more persuasive than another but whether only one result could be reached under the theories of law presented in the complaint. Id. The Civ.R. 50(A) test looks to the sufficiency of the evidence on each element of a claim to take the case to the jury. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66. The general rule is that a directed verdict is appropriate only where the party opposing the motion fails to adduce any evidence on the essential - 23 - elements of his claim or defense. O'Day v. Webb (1972), 29 Ohio St.2d 215. Therefore, a motion for a directed verdict presents a question of law as opposed to a question of fact. Id. Arguments which look to the weight of the evidence are inappropriate for purposes of ruling on such a motion. Strother v. Hutchinson (1981), 67 Ohio St.2d 282. Williams supported his causes of action with sufficient evidence. The trial court was required to construe the evidence most strongly in favor of Williams when ruling on appellants' motion. There was evidence presented on the breach of contract, conversion, and defamation claims. The trial court did not err by overruling appellants' motion for directed verdict. Appellants' seventh assignment of error lacks merit. IX. In their eighth assignment of error, appellants argue the trial court erred by not granting their motion for new trial. Appellants then direct this court to the arguments presented in their motion for new trial and present no argument in their brief, supposedly for purposes of economy. This is nothing more than an attempt to circumvent the forty page limit imposed by this court for a merit brief. Appellants' arguments are to be presented within the body of its merit brief and not in an appendix. See App.R. 16. Appellants' arguments with regard to this assignment of error are not properly before this court and will be disregarded. - 24 - See State v. Bonnell (Oct. 5, 1989), Cuyahoga App. No. 55927, unreported, p. 12. Appellants' eighth assignment of error is overruled. Judgment affirmed. - 25 - 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. DAVID T. MATIA, J. CONCURS; SARA J. HARPER, J. CONCURS IN JUDGMENT ONLY. LEO M. SPELLACY CHIEF JUSTICE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .