COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69998 DOMINIC A. DIPASQUA, JR., : ACCELERATED DOCKET : : JOURNAL ENTRY Plaintiff-Appellant : : AND v. : : OPINION KELLY KNAP, : : PER CURIAM : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: JUNE 13, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 280410 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: Joel Nash NASH & NASH 113 St. Clair Avenue Suite 375 Cleveland, Ohio 44114 For defendant-appellee: James M. Johnson KELLER & CURTIN CO., L.P.A. 330 Hanna Building 1422 Euclid Avenue Cleveland, Ohio 44115-1901 -2- PER CURIAM: In this personal injury action resulting from a motor vehicle collision, plaintiff-appellant Dominic A. DiPasqua, Jr. appeals from a jury verdict in his favor against defendant-appellee Kelly 1 Knap. The jury's verdict was in the amount of only $1,000.00. In his first assignment of error, appellant contends a portion of defense counsel's closing argument constituted prejudicial error. He asserts counsel's statements concerning appellant's medical expert were neither supported by the evidence nor within the bounds of acceptable trial advocacy. Defense counsel was commenting on appellant's testimony when he proceeded to state in pertinent part as follows: He told you about severe complaints that he had, and the very severe complaints that he had after he saw Dr. Kaufman. Yet the next doctor he picks he picked simply because they (sic) were convenient to his place of work. * * * The only doctor that comes in here to testify is the doctor that his lawyer sent him to. * * * And he told you on the stand that he had all these severe complaints and ongoing problems that he supposedly has, yet he still didn't go for any further treatment. Now we come to Dr. Kaufman. Mr. Nash mentioned that our firm has used him in the past, and we have used him in the past. and I will tell you the reason that we have used him in the past is because I know he will say whatever I want him to say. That's why Mr. Nash sent his 1 Appellee's name is spelled "Knap" in the complaint and in the notice of appeal; however, it is spelled "Knapp" in the praecipe and in appellee's brief to this court. -3- client to Dr. Kaufman as well, because he knows Dr. Kaufman will say what he wants him to say. MR. NASH: Objection, your Honor. MR. JOHNSON: He said that Dr. Kaufman has no bias in this case. Well, Dr. Kaufman has a bill of over $4,200 that he wants paid out of this case. I think that's a bit of bias in this case. He also has $1,000 in deposition costs and $150 in reports that he wants paid. That's $5,200 that he is asking to be paid here. I think that's a pretty good bias in this case. Let's talk about what Dr. Kaufman found when he actually examined Mr. Dipasqua. And Dr. Kaufman told you about all the tests that he ran. * * * (Emphasis added.) It must first be noted that a review of this portion of the transcript reveals appellant opened the door to these comments. Apparently in an effort to bolster the doctor's credibility, appellant in his closing argument was the first to inform the jury the defense had used Dr. Kaufman "in the past." By making such a comment, appellant in effect solicited a response from opposing counsel. See, e.g., Hal Artz Lincoln Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, paragraph 1 of the syllabus; Center Ridge Ganley, Inc. v. Stinn (1987), 31 Ohio St.3d 310 at 313. Secondly, a review of Dr. Kaufman's deposition testimony during cross-examination reveals there is some basis in the evidence for the substance of defense counsel's statements. Mahan v. Bethesda Hosp., Inc. (1992), 84 Ohio App.3d 520; cf., Jackson v. Booth Mem. Hosp. (1988), 41 Ohio App.3d 176. Thirdly, the Ohio Supreme Court has permitted counsel "great latitude" in the presentation of closing argument to the jury. -4- Pang v. Minch (1990), 53 Ohio St.3d 186. In order to constitute reversible error, counsel's conduct must be "grossly improper" to the point of being "reprehensible, gross and abusive" or "egregious." Dawson v. MetroHealth Ctr. (1995), 104 Ohio App.3d 654 (discretionary appeal not allowed, (1995), 74 Ohio St.3d 1422); Bell v. Mt. Sinai Med. Ctr. (1994), 95 Ohio App.3d 590; Jackson v. Booth Mem. Hosp., supra. In light of these standards, defense counsel's comments cannot be said to constitute misconduct. Instead, counsel made remarks which were within the bounds of permissible advocacy. Jones v. Olcese (1991), 75 Ohio App.3d 34; cf., Stephens Jewelry, Inc. v. Admiral Ins. Co. (1989), 63 Ohio App.3d 213. For the foregoing reasons, appellant's first assignment of error is overruled. Appellant's second assignment of error is specifically directed toward the manifest weight of the evidence. However, appellant has submitted only a partial record on appeal pursuant to App.R. 9(B). The record in this case consists of only the following: 1) the pleadings; 2) the judgment entries; 3) exhibits admitted into evidence by the trial court; 4) the deposition testimony of appellant's medical expert; and 5) a portion of defense counsel's closing argument. A full trial transcript was not included. Hence, appellant's second assignment of error must be overruled for the following reasons succinctly stated by the court in Volodkovich v. Volodkovich (1989), 48 Ohio App.3d 313 at 314: -5- A presumption of validity attends the trial court's action. In the absence of an adequate record, which is the appellant's responsibility, see App.R. 9 . . . , we are unable to evaluate the merits of the assignments of error and must affirm the trial court's decision. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 15 O.O.3d 218, 220, 400 N.E.2d 384, 385; Meinhard Commercial Corp. v. Spoke & Wheel, Inc. (1977), 52 Ohio App.2d 198, 201-202, 6 O.O.3d 180, 182, 368 N.E.2d 1275, 1277. Appellant's assignments of error concern facts, testimony, and evidentiary matters which must be demonstrated from the record. The record before us is insufficient to demonstrate the claimed errors. (Emphasis added.) The record submitted by appellant is insufficient to demonstrate the jury's verdict was not based upon the totality of the evidence adduced at trial, including appellant's testimony under cross-examination; consequently, the jury's verdict must be affirmed. See, e.g., Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77; Volodkovich v. Volodkovich, supra; Baum v. Augenstein (1983), 10 Ohio App.3d 106. Accordingly, appellant's second assignment of error is also overruled. Affirmed. -6- It is ordered that appellee recover of appellant her 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. PATRICIA A. BLACKMON, PRESIDING JUDGE ANN DYKE, 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 announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .