COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69794 RONALD S. ANSELMO, : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION JENNIFER DAVIS, et al., : PER CURIAM : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MAY 16, 1996 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga Common Pleas Court Case No. CV-270824 JUDGMENT: APPEAL DISMISSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee Jennifer Davis: ROBERT J. VECCHIO J. PETER PARRISH TIMOTHY T. REID 720 Leader Building Reid, Berry & Stanard Cleveland, Ohio 44114 1300 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For Defendant-Appellee Andrew L. Misiak: CYNTHIA L. C. GREEN 113 St. Clair Building Suite 525 Cleveland, Ohio 44114 - 2 - PER CURIAM: This matter came to be heard upon the accelerated calendar of the court pursuant to App. R. 11.1 and Local R. 25 and the briefs of counsel. Ronald S. Anselmo appeals from the October 4, 1995 entry of the court declaring a mistrial in a personal injury action, after the jury had concluded its deliberations, but before the court caused the verdict to be read in open court or permitted inquiry to be made of the jurors. On May 20, 1994, Anselmo filed suit against Jennifer Davis and Andrew L. Misiak seeking to recover for injuries he sustained as a result of an automobile accident as he exited I-90 east at East 185th Street on December 23, 1993. Following trial, the jury completed its deliberations, signed general jury verdict forms in favor of the plaintiff and answered written interrogatories in conformity with the court's charge. After physically receiving the documents from the jury but before causing the verdict to be read in court, the judge recessed, conducted an in-camera conference with all counsel in chambers and told the jurors to return to the jury room. Under the mistaken belief they had been discharged, they left the building, reported to the jury bailiff, received warrants for their jury fees and went home. Because Davis' counsel requested a jury poll in accordance with Civ. R. 48, the judge's bailiff later telephoned the jurors at home and advised them to - 3 - report to court the following morning. However, when only six of the eight jurors returned, the court declared a mistrial because a poll of the entire jury could not physically be conducted. Anselmo now appeals the order declaring a mistrial, raising the following three errors for our review: I. THE TRIAL COURT ABUSED ITS DISCRETION IN DECLARING A MISTRIAL AFTER THE JURY HAD RETURNED A VERDICT. II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO ENTER JUDGEMENT (sic) ON THE GENERAL VERDICTS AND INTERROGATORIES AS REQUIRED BY CIVIL RULES 49 AND 58. III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO HAVE THE JURY VERDICT READ AND THE JURY POLLED AS REQUIRED BY CIVIL RULE 48. Initially, we shall consider Anselmo's third assignment of error where the complaint is that the trial court erred by not reading the jury verdict in open court and by not polling the jury as required by Civ. R. 48. Davis suggests the court found itself unable to read the verdict or make an inquiry of the jury or conduct a poll and therefore did not commit reversible error. Hence, the issue presented for our review is whether the trial court erred by not complying with Civ. R. 48 when it did - 4 - not read the jury verdict in open court, make an inquiry of the jury or conduct a poll. We begin our review by examining the actions of the trial court in this case. Civ. R. 48 provides that a jury, upon a concurrence of three-fourths or more shall render its verdict in writing and signed by each of the jurors who concur in the verdict. It further provides: All jurors shall then return to court where the judge shall cause the verdict to be read and inquiry made to determine if the verdict is that of three-fourths or more of the jurors. Upon the request of either party, the jury shall be polled by asking each juror if the verdict is that of the juror; ***. ***. Anselmo, of course, argues that the trial court should have complied with the specific directives in the rule. After a review of the record in this case, however, and given the unusual nature of these unique circumstances, it became physically impossible for the trial judge to comply with Civ. R. 48, since the members of the jury left the courtroom, had been paid for their jury service by the jury commissioner, and did not all return to court when the bailiff contacted them by telephone. We note that Anselmo's argument does not address this physical inability of the court to comply with the rule. Here, the record reflects that some of the jurors who signed the verdict forms were not present when court reconvened the next day to conduct a jury poll, despite the court's reasonable efforts to secure their presence. Therefore, the court found it impossible to conduct - 5 - the inquiry contemplated by Civ. R. 48. Hence, we find no error in the court's actions due to the physical impossibility to comply with the rule. Additionally, in his first and second assignments of error Anselmo maintains that the trial court abused its discretion when it declared a mistrial believing that the court should have entered judgment on the general verdicts forms and answers to interrogatories returned by the jury. Davis urges that the trial court did not abuse its discretion in declaring a mistrial in this instance because no verdict could be journalized until a poll had been completed, and the court was unable to accomplish a jury poll. The issue then for our review is whether the trial court abused its discretion in declaring a mistrial or whether the court should have entered judgment on the jury's general verdict forms and answers to interrogatories. Specifically, Anselmo asserts that the court failed to comply with Civ. R. 49(B) and 58(A). Therefore we begin our analysis of these assignments of error with a consideration of Civ. R. 49(B) concerning entry of judgment and which provides in relevant part: *** When the general verdict and the answers are consistent, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. ***. - 6 - Civ. R. 58(A) concerns the entry of judgment upon a general verdict and states in pertinent part: ***, upon a general verdict of a jury, upon a decision announced, *** the court shall promptly cause the judgement (sic) to be prepared and, the court having signed it, the clerk shall thereupon enter it upon the journal. ***. Anselmo therefore contends that since the court should have complied with Civ. R. 49(B) and 58(A), it abused its discretion in declaring a mistrial. We note here that the decision to either deny or grant a request for a mistrial rests within the sound discretion of the trial court. Quellos v. Quellos (1994), 96 Ohio App.3d 31, 41, citing Ohio Edison Co. v. Dessecker (1003), 89 Ohio App.3d 164, 169 and Cummings v. B.F. Goodrich Co. (1993) 86 Ohio App.3d 176, 188. Further, the vesting of this authority with the trial court is based "upon the fact that the trial judge is in the best position to determine whether the circumstances of the case require the declaration of a mistrial or whether other corrective actions are sufficient." Quellos v. Quellos, supra, at 41 citing State v. Glover (1988), 35 Ohio St.3d 18, 19. "An appellate court will not reverse a trial court's decision to grant a mistrial absent an abuse of discretion." Cleveland v. Walters (1994), 98 Ohio App.3d 165, 168. The term "abuse of discretion" connotes more than an error of law or judgment, it implies that the court's - 7 - attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. After a careful consideration of the record, we conclude that the trial court did not abuse its discretion in declaring a mistrial because the court did not have the ability to poll the jury and obtain an oral confirmation of the decision in open court and therefore could not accept the decision as a verdict upon which it could enter judgment. Hence, the court had no alternative other than to declare a mistrial. We also note that the declaration of a mistrial prior to the entry of a verdict, does not constitute a final order upon which an appeal may be based. See Newark Shopping Center v. Morris Silken & Co. (1964), 5 Ohio App.2d 241. R.C. 2505.02 defines a final order and provides in relevant part: An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, *** is a final order that may be reviewed, affirmed, modified, or reversed with or without retrial. ***. Here, the declaration of a mistrial by the court did not affect a substantial right, determine the action or prevent judgment in this case. We conclude that the trial court did not err by failing to read the verdict, inquire of the jury or poll the jury nor abuse its discretion in declaring a mistrial in this instance based on the unique circumstances of this case and we have determined that - 8 - since the declaration of a mistrial in this instance did not affect a substantial right or prevent judgment, it is not a final appealable order. Accordingly, this appeal is dismissed and the matter is remanded to the trial court for further proceedings. - 9 - 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. DAVID T. MATIA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE JOSEPH J. NAHRA, JUDGE 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, .