COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70890 LESLIE MICHAELS, ET AL. : : : PLAINTIFFS-APPELLEES : JOURNAL ENTRY : v. : AND : CHRISTELL ADEN : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-250931. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: Robert D. Wilson, Esq. 3690 Orange Place, Suite 515 Cleveland, OH 44122-4428 For Defendant-Appellant: Marillyn Fagan Damelio, Esq. Lakeside Place, Suite 410 323 Lakeside Avenue, West Cleveland, OH 44113 -2- JAMES D. SWEENEY, C.J. Defendant-appellant Christell Aden appeals the trial court's ruling which granted the motion for a new trial filed by plaintiffs-appellees Leslie Michaels and her son Steven Michaels. These litigants were before this court in Michaels v. Aden (Dec. 7, 1995), Cuyahoga App. No. 68561, unreported, where this court reversed and remanded for the trial court to state with greater specificity the grounds for the new trial. For a complete understanding of the posture of this appeal, the facts as determined by this court in the prior appeal follow. On January 15, 1992, an automobile driven by Christell Aden, defendant-appellant, collided with the automobile of Leslie Michaels, plaintiff-appellee. Plaintiff-appellee's son, Steven Michaels, was also in the vehicle which was stationary at the time of the accident. On April 23, 1993, Leslie and Steven Michaels, plaintiffs-appellees, filed a complaint with jury demand against Christell Aden, defendant- appellant, for damages sustained from the accident. Our Redeemer Baptist Church was also named in the complaint on the theory of negligent entrustment but was later voluntarily dismissed by the parties. Christell Aden, defendant-appellant, admitted negligence in letting her automobile make contact with appellees' automobile. Thus, the only issue left for trial was the extent of damages, if any, that were proximately caused by defendant- appellant's negligence. A trial commenced October 18, 1994. After presentation of plaintiffs-appellees' case, defendant-appellant motioned for a directed verdict based upon plaintiffs-appellees' failure to establish by a preponderance of evidence any damages proximately caused by appellant's negligence. The trial court denied defendant-appellant's motion. Subsequently, in an effort to properly dispose of the issue of -3- negligence, the court granted plaintiffs- appellees' motion for directed verdict based solely upon defendant-appellant's stipulated negligence. On October 20, 1994, the jury returned a verdict for the defendant with nothing placed on the line allowing for an award for either Leslie or Steven Michaels. The court questioned the jury whether they had found for plaintiff but found no damages and the foreman replied they had not. The foreman responded they found there were no damages proximately caused by the appellant's negligence. Plaintiffs-appellees' counsel then motioned for judgment notwithstanding the verdict to fill in "zero damages" on the part of plaintiff. The judge responded that it was unimportant at the moment and proceeded to assess costs to the defendant. The final judgment entry reads "jury returns a verdict for the [plaintiffs] for no dollars." On November 3, 1994, Leslie Michaels, et al., plaintiffs-appellees, timely filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. The motion was based upon: 1) the alleged misconduct of the prevailing party, 2) the verdict was inadequate and given under the influence of passion or prejudice, 3) the judgment was not sustained by the weight of the evidence and 4) the judgment was contrary to law. On November 15, 1994, Christell Aden, defendant-appellant, filed a motion under Civ.R. 60(A) to correct what she claimed was a clerical mistake on the October 24, 1994 judgment entry. Defendant-appellant argues according to the unanimous verdict of the jurors, the verdict was for defendant- appellant as the jury found no damages proximately resulting from the stipulated negligence. On the 18th of November, plaintiffs-appellees filed a motion for reimbursement for the playing and recording of videotape depositions at the trial. A hearing was subsequently scheduled for said post-judgment motions on January 13, 1995. On January 18, 1995 the -4- trial court denied defendant-appellant's motion and granted plaintiffs-appellees' motion for reimbursement and motion for a new trial. Defendant-appellant timely filed this appeal. In the first assignment of error, the appellant asserted that the trial court should have granted her motion under Civ.R. 60(A) to correct its clerical error designating the appellee as the prevailing party. The court determined that although the appellant was indeed the prevailing party, the trial court did not err in denying the appellant's motion because the court made a reasoned decision, not a clerical error. Michaels, supra. In the second assignment of error, the appellant sought reversal of the trial court's determination that the appellees were entitled to a new trial pursuant to Civ.R. 59. This court reversed and remanded the trial court's order finding that the trial court had failed to specifically state the grounds on which the motion was granted. The third assignment of error held that the assessment of costs was moot based upon the findings rendered in the second assignment of error. Michaels, supra. Upon remand, the trial court issued an opinion which recited the following facts: Plaintiffs Leslie Michaels and her three year old son, Steven Michaels, suffered bodily injuries on January 15, 1992 when Defendant Christell Aden's automobile hit the automobile Leslie Michaels was operating in a rear-end collision. The Plaintiff's car was stationary at the time of the impact. ... Defendant Christell Aden admitted her negligence in failing to keep an assured clear distance and the fact that Leslie Michaels was not comparably at fault for the collision. ... -5- Leslie Michaels testified that she was in good health just prior to the collision. This statement and that Steven was in good health just prior to the collision were corroborated by her mother, Charlotte Michaels. Leslie Michaels further testified that Steven was screaming at the top of his lungs and crying very hard just after the accident. Defendant admitted that her car was damaged and that the police had observed damages to Leslie Michaels' vehicle which were classified as moderate on the police report. Leslie Michaels testified that she felt injuries to her neck, back and left shoulder the next day and that Steven was complaining of headaches and neck pain the night of the collision. Leslie Michaels' mother, Charlotte, corroborated her testimony and stated that Steven threw up during the evening of the accident. Leslie Michaels testified that she called for a doctor's appointment for both her and Steven the day following the collision. A copy of Dr. Newman's bill in the amount of $40.00 and chart for the treatment of Steven were admitted into evidence. Dr. Newman's bill states that Steven was treated for a "Neck Injury" and the chart states he was "Complaining following night of pain high cervical low occipital area..." The injuries sustained by Leslie Michaels were documented by four doctors, Jeffrey S. Morris, M.D., Norton A. Winer, M.D., Ralph Siegenthaler, D.C., and even the Defendant's examining physician, Gary I. Katz, M.D.. All of the physicians testified that Plaintiff Leslie Michaels was injured as a result of said accident. The fact that Leslie Michaels received some injuries from the automobile collision on January 15, 1992 is uncontroverted by all of the medical testimony. Bills for Leslie Michaels that were admitted into evidence as exhibits amount of $10,487.14. Lastly, Defendant's counsel stated in her close that Leslie Michaels is "on welfare" and that she "lives off lawsuits," when in fact this is the first lawsuit that has been filed on her behalf for bodily injuries. Plaintiff's counsel timely objected to Defendant's counsel's statement pertaining to the remark that she "lives off lawsuits." A new trial is -6- granted on the following grounds: 1. The misconduct of the prevailing party; 2. The verdict of the jury on which the judgment was rendered was inadequate and was given under the influence of passion or prejudice; 3. That the judgment is not sustained by the weight of the evidence. A timely appeal followed from this order. The appellant sets forth one assignment of error: THE TRIAL COURT ERRED IN GRANTING THE PLAINTIFFS/APPELLEES' MOTION FOR NEW TRIAL BASED UPON CIVIL RULE 59(A)(2);(A)(4);(A)(6) AND (A)(7). The appellant argues that since the jury was within its prerogative to determine that appellees' injuries were not proximately caused by the appellant and to return a verdict for zero damages, the trial court acted unreasonably and arbitrarily in granting the new trial. It is well recognized that the granting of a motion for a new trial rests in the sound discretion of the trial court. Michaels, supra, citing to Verbon v. Pennese (1982), 7 Ohio App.3d 182, see also Rohde v. Farmer (1970), 23 Ohio St.2d 82. The generally accepted rule is that the reviewing court should view the evidence favorably to the trial court's action rather than to the jury's verdict. The predicate for that ruling springs, in part, from the principle that the discretion of the trial judge in granting a new trial may be supported by his having determined from the -7- surrounding circumstances and atmosphere of the trial that the jury's verdict resulted in manifest injustice. Bebout v. Conley (June 27, 1994), Stark App. No. CA-9512, unreported, citing to Jenkins v. Krieger (1981), 67 Ohio St.2d 314; Bland v. Graves (1993), 85 Ohio App.3d 644. See also Krejci v. Halak (1986), 34 Ohio App.3d 1; Sanders v. Mt. Sinai Hospital (1985), 21 Ohio App.3d 249. An appellate court will not reverse a trial court's ruling on a motion for new trial absent an abuse of discretion. Medvec v. Cook (April 28, 1994), Cuyahoga App. No. 65183, unreported, citing Rohde, supra. Abuse of discretion connotes more than an error of law or judgment; it implies an unreasonable, arbitrary, or unconscionable attitude on the part of the court. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. On remand, the trial court first held that a new trial was warranted due to the misconduct of the prevailing party. Although the trial court did not make a statement delineating with any specificity the conduct constituting misconduct, the trial court's facts refer to a statement made during the appellant's closing argument. The appellant's counsel made reference to the frequency of the accidents involving the appellee by stating "And I suggest to you that the other accidents and the whole pattern here shows that Leslie Michaels lives off lawsuits." (T. 216.) Contrary to the findings of the trial court in its opinion, a review of the record indicates that no objection was raised to this statement. Trial counsel is generally accorded considerable latitude in -8- closing arguments. Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, 688. Only where circumstances are of such a reprehensible and heinous nature as to constitute prejudice, will the judgment be reversed. Id. Failure to object waives one's right to reversal of the judgment absent "gross and persistent abuse of privilege by counsel". Kubiszak citing to Eastin v. Eastin-Rossi (Dec. 1, 1988), Cuyahoga App. No. 54660, unreported; Norwood v. Forest Converting Co. (1984), 16 Ohio App.3d 411. In the case sub judice, as in Dawson v. Metrohealth Center (1995), 104 Ohio App.3d 654, this court concludes that the "challenged statement did not provide sufficient grounds for a new trial." While the statement by appellant's counsel was objectionable to the appellee, it did not amount to the type of grossly improper conduct necessary to grant a new trial based upon misconduct occurring during closing argument. When viewed as a whole, appellant's closing argument did not amount to the type of egregious conduct which would deny the appellee a fair trial. Since the court likewise failed to delineate the premise of its belief that the verdict of the jury on which the judgment was rendered was inadequate and was given under the influence of passion or prejudice, this court must assume both 1) the court believed the verdict to be inadequate and, 2) since the only "misconduct" cited in its opinion was the misconduct cited above, that the trial court believed the comment made during closing argument sufficient to influence the jury to passion and prejudice and thus warrant a new trial. -9- This court has held that an inadequate verdict does not warrant a new trial unless the party demonstrates that the verdict resulted from passion or prejudice. Gedetsis v. Anthony Allega Cement (Dec. 3, 1992), Cuyahoga App. No. 61211, unreported. Although the trial court may have believed that a zero damage award was inadequate, the appellant must also show that the jury was influenced by passion and prejudice. As determined supra, the comment made by appellant's counsel during closing argument was not sufficient to warrant a new trial on the basis of misconduct. Likewise, this one statement alone is not sufficient for a finding of passion and prejudice such that a new trial would be warranted. Lastly, the trial court found that the jury verdict was not sustained by the weight of the evidence. The trial court noted that the appellant stipulated to negligence, and thus the fact that the appellant's vehicle struck the rear end of the vehicle occupied by the appellee and her son is undisputed. Evidence was presented by medical experts both that this collision resulted in injuries to the appellee and her son and that the treatment received by the victims was medically necessary. The fact that Steven Michaels was injured in the accident and incurred a minor medical expense was unchallenged by the appellant both at trial and on appeal. As to Leslie Michaels, even the appellant's medical expert, when pressed, could not absolutely preclude the finding that the appellees were injured as a result of the accident caused by the appellant; rather, Dr. Katz stated "I don't know." (Katz depo T. 79.) Although the jury reached a different conclusion, when viewing -10- this evidence, as this court must, favorably to the trial court's action rather than to the jury's verdict, the trial court did not abuse its discretion in finding that the verdict was against the manifest weight of the evidence and granting a new trial. The appellant's assignment of error is overruled. Judgment affirmed. -11- It is ordered that appellees recover of appellant their 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. Exceptions. TIMOTHY E. McMONAGLE, J., and JOHN T. PATTON, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry 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(E) 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 .