COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70024 DIANNE BUNGO : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS NOWACKI : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 29, 1996 CHARACTER OF PROCEEDINGS: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-292614 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ARTHUR E. DOMBECK (#0031329) LEVEY & GRUHIN SUITE 750, 1468 WEST NINTH ST. CLEVELAND, OH 44113-1200 For Defendant-Appellee JAMES M. JOHNSON (#0012815) KELLER AND CURTIN CO., L.P.A. 330 HANNA BUILDING 1422 EUCLID AVENUE CLEVELAND, OH 44115-1901 - 2 - SPELLACY, C.J.: Plaintiff-appellant Dianne Bungo ("appellant") appeals from the judgment of the trial court awarding her $6,000 for injuries she received in an automobile accident. Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED IN ALLOWING DEFENDANT'S MEDICAL EXPERT TO TESTIFY REGARDING A DIAGNOSIS ALLEGEDLY MADE BY ANOTHER PHYSICIAN (SUPPOSED- LY, A DR. LANN) SOME THREE YEARS PRIOR TO THE SUBJECT AUTOMOBILE ACCIDENT INVOLVING THE SAME BODY PART INJURED IN THE SUBJECT AUTOMOBILE ACCIDENT. II. THE TRIAL COURT ERRED IN FAILING TO GIVE THE REQUESTED JURY CHARGE REGARDING BURDEN OF PROOF. III. THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JURY RELATIVE TO THE ISSUE OF OFFSET WHICH INVOLVED A PARTIAL SETTLEMENT. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On April 24, 1992, appellant was driving her automobile northbound on West 130th Street in Cleveland. Appellant stopped her vehicle in order to make a left-hand turn onto Gilmore Avenue. Appellant testified she noticed another automobile on Gilmore Avenue with its left turn signal indicator flashing. Appellant waived at the vehicle in an attempt to notify the driver that left turns from Gilmore Avenue onto West 130th Street are illegal. The car pulled out and made the left turn, causing another vehicle driven by Curtis Williams to veer to avoid Nowacki's automobile. - 3 - Williams' car collided with that of the appellant, causing injury to appellant. Appellant filed suit against both Williams and Nowacki. Appellant and Williams settled her claim for $9,000 and he was dismissed from the action. Appellant voluntarily dismissed her case against Nowacki pursuant to Civ.R. 41(A). The action was refiled and proceeded to trial. The jury found Nowacki to be negligent and awarded appellant $6,000. The trial court set off the $9,000 settlement against the award. Nowacki was ordered to pay nothing. II. In her first assignment of error, appellant contends the trial court erred in permitting Nowacki's medical expert to testify in regard to a medical record by another physician which was not admitted into evidence. Appellant argues the medical record was hearsay and the medical expert's testimony should have been excluded as the expert did not base his opinion on facts or data perceived by the expert. A case directly on point is Jones v. Bartley (November 10, 1993), Summit Cty. App. No. 92-07-2536, unreported. The appellant was injured in an automobile accident and awarded $7,000 by a jury. She appealed arguing the award was too low. Appellant asserted testimony by a treating physician regarding the contents of medical reports prepared by other physicians should have been excluded as hearsay. She provided the appellate court with a partial - 4 - transcript of the deposition of the medical expert. The court held it could not conclude if there was a causal connection between the admission of the testimony and the amount of the award without a complete transcript. The trial court's proceedings were presumed to be valid and the judgment was affirmed. In the instant case, appellant has provided this court with a partial transcript of her testimony, the jury instructions, and depositions of medical experts. Although there is reference in the transcript regarding the testimony in dispute, there is nothing indicating the other depositions were admitted into evidence at trial. The admission or exclusion of evidence by the trial court will not be reversed unless there has been a clear and prejudicial abuse of discretion. O'Brien v. Angley (1980), 63 Ohio St.2d 159. "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." Evid.R. 103(A). As in Bartley, supra, it is impossible to determine without a complete transcript whether the testimony affected a substantial right of appellant to her prejudice. It was appellant's responsibility to provide this court with a transcript which is adequate to determine the errors assigned for review. App.R. 9(B); See Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. Therefore, the validity of the proceedings below will be presumed. Appellant's first assignment of error is overruled. - 5 - III. Appellant's second and third assignments of error will be addressed together as both relate to the jury charge. Appellant argues the trial court erred in failing to give instructions she requested regarding Nowacki's burden of proof for an affirmative defense and regarding the settlement by Williams. This court has held the failure of an appellant to provide a full transcript of the evidence presented at trial and of the complete jury instructions renders a reviewing court unable to rule upon appellant's claim of error in the trial court's jury instructions. Clevecon v. Northeast Ohio Reg. Sewer Dist. (1993), 90 Ohio App.3d 215. See also Baker v. Cuyahoga Cty. Court of Common Pleas (1989), 61 Ohio App.3d 59. Because this court lacks a complete transcript of the proceedings below, it cannot be determined if the trial court properly instructed the jury based upon the evidence admitted during trial. Appellant failed to provide an adequate record to permit this court to review her claims. Appellant's second and third assignments of error lack merit. Judgment 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. DAVID T. MATIA, J. and JOHN T. PATTON, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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 it will become the judgment and order of the court and time period for review will begin to run. .