COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70944 WILLIAM W. BRIDGE, III : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CHARLES J. YANESH : : Defendant-appellee : : : DATE OF ANNOUNCEMENT : APRIL 10, 1997 OF DECISION : : CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. CV-281317 : JUDGMENT : AFFIRMED : DATE OF JOURNALIZATION : APPEARANCES: : For plaintiff-appellant: For defendant-appellee: WILLIAM L. SUMMERS, ESQ. PATRICK F. ROCHE, ESQ. Suite 300 Davis & Young 28001 Chagrin Boulevard 1700 Midland Building Cleveland, OH 44122 101 Prospect Avenue, W. Cleveland, OH 44115-1027 DANIEL J. JAMIESON, ESQ. Suite 1200 GARY S. ANDRACHIK, ESQ. 75 Public Square 2200 Illuminating Bldg. Cleveland, OH 44113 55 Public Square Cleveland, OH 44113 - 2 - PATTON, J. Plaintiff-appellant, William Bridge, III appeals the order of the trial court granting a motion for a new trial in favor of defendant-appellee, Charles Yanesh. Plaintiff-appellant and defendant-appellee were competitors in the building restoration business. On November 18, 1993 plaintiff- appellant and defendant-appellee arrived at a house that recently burned down in order to offer reconstruction services to the homeowner. While at the scene, defendant-appellee claimed to have been threatened by plaintiff-appellant. These alleged threats were perceived by defendant-appellee to be genuine because of a newspaper article he read in which an Alcohol, Tobacco, and Firearms (ATF) agent stated that plaintiff-appellant admitted to burning down a house and bombing a construction company. As a result of the threats, defendant-appellee filed an aggravated menacing complaint against plaintiff-appellant. At the time, plaintiff-appellant was on federal parole for receiving or possessing a firearm which is not registered and failure to pay the tax on the firearm. Because of the filing of the complaint by defendant-appellee, plaintiff-appellant's parole was revoked and he spent sixty-seven (67) days in jail while the case was pending. On March 2, 1994 plaintiff-appellant was found not to be a parole violator and was released from jail. On September 27, 1994 plaintiff-appellant faced the criminal charges filed by defendant- appellee and was found not guilty of the charges. - 3 - Two months later on December 13, 1994 plaintiff-appellant filed a complaint against defendant-appellee alleging tortious interference with business, malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress. At a pre-trial motion in limine hearing, plaintiff-appellant sought to have the testimony of the ATF agent excluded. The court granted the motion. A trial was had and at the conclusion of plaintiff- appellant's case the trial court granted defendant-appellee's motion for a directed verdict regarding all the allegations except the claim for malicious prosecution. Subsequently, the jury returned a verdict in favor of plaintiff-appellant for $25,000. Defendant-appellee then filed a motion for a new trial which the trial court granted. It is from this order which plaintiff- appellant now appeals. Plaintiff-appellant's first assignment of error states as follows: THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING APPELLEE'S MOTION FOR A NEW TRIAL. Plaintiff-appellant argues the trial court erred by not specifying which ground it relied upon when granting the new trial and thus the original judgment should be reinstated. Civ.R. 59(A) specifies the grounds for granting a new trial and provides in pertinent part as follows: - 4 - When a new trial is granted, the court shall specify in writing the grounds upon which such new trial is granted. (Emphasis added). The Ohio Supreme Court has stated that a trial court commits reversible error when it fails to articulate the reasons for granting a motion for a new trial. It must do so in order to allow a reviewing court to determine whether the trial court abused its discretion. Antal v. Olde Worlde Products, Inc. (1984), 9 Ohio St.3d 144. Simply stating that the verdict is "not sustained by the weight of the evidence," or is "against the weight of the evidence" is insufficient to comply with Civ.R. 59(A). Id. at 147. The trial court's journal entry granting 's motion for a new trial provides, in pertinent part, as follows: "The Court, in reviewing the testimony of the plaintiff-appellant where he denied making admissions to a Patricia Galupo, an agent for the Bureau of Alcohol, Tobacco and Firearms concerning the placing of a pipe bomb, feels it should have permitted the testimony of Patricia Galupo. Said testimony could have provided considerable weight in establishing probable cause on behalf of the defendant and also could have had a major impact on the plaintiff- appellant's credibility. "The Court therefore concludes it was error to exclude testimony of Patricia Galupo." It is clear from the trial court's journal entry that the motion for a new trial was granted because the ATF agent's testimony was excluded. The trial court indicated such testimony was improperly excluded and could have provided considerable weight in establishing probable cause, the key issue in the case. Because - 5 - the trial court stated its reason for granting the motion for a new trial, plaintiff-appellant's first assignment of error is over- ruled. Plaintiff-appellant's second assignment of error states as follows: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING THE ADMISSIBILITY OF AGENT GALUPO'S TESTIMONY. Plaintiff-appellant claims the trial court abused its discre- tion in granting the motion for a new trial. Plaintiff-appellant alleges the trial court's decision to exclude the ATF agent's testimony was not arbitrary, unreasonable, or unconscionable, because it was based on a federal court's granting of a motion in limine regarding the same testimony. Plaintiff-appellant appeals from the granting of the Civ.R. 59(A) motion for a new trial. The trial court granted the motion because "it feels it should have permitted the testimony of Patricia Galupo," the ATF agent. The trial court decided "[s]aid testimony could have provided considerable weight in establishing probable cause on behalf of the defendant and also could have had a major impact on the plaintiff-appellant's credibility." The granting of a motion for new trial under Civ.R. 59 is directed to the sound discretion of the trial court. See Brooks v. Wilson (1994), 98 Ohio App.3d 310, 304. The trial court's ruling on such a motion will not be reversed absent a showing of an abuse of discretion. Weidner v. Blazic (1994), 98 Ohio App.3d 321, 334. - 6 - An abuse of discretion is more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Masters v. Masters (1994), 69 Ohio St.3d 83, 85. In this assignment of error, plaintiff-appellant maintains the trial court properly excluded the ATF agent's testimony at the motion in limine hearing. Plaintiff-appellant subsequently argues the trial court abused its discretion by granting the new trial motion based on its error at the motion in limine hearing when it excluded the agent's testimony. However, what plaintiff-appellant ignores is that the trial court granted the motion for new trial based on issues arising at trial and not based on evidence excluded at the motion in limine hearing. This means during the trial the trial court determined defendant was prejudiced by the exclusion of the ATF agent's testimony. Therefore, the issue before us now is not whether the trial court properly excluded the ATF agent's testimony at the motion in limine hearing but whether the trial court properly granted the motion for new trial based on issues arising at trial. In order to determine whether the trial court abused its discretion we must review the trial transcript to decide if the exclusion of the ATF agent's testimony prejudiced defendant- appellee on the issues of probable cause and plaintiff-appellant's credibility. We are unable to do this because plaintiff-appellant failed to file the trial transcript with this court. According to App.R. 9(B), plaintiff-appellant has the duty: - 7 - "to ensure that the record, or whatever portions thereof are necessary for the deter- mination of the appeal, are filed with the court in which he seeks review. * * * It follows that where a transcript of any pro- ceeding is necessary for the disposition of any question on appeal, the appellant bears the burden of taking the steps required to have the transcript prepared for inclusion in the record." Since we lack a transcript of the trial proceedings we are unable to decide whether the trial court abused its discretion in granting the motion for a new trial. Bates & Stringer, Inc. v. Stallworth (1978), 56 Ohio App.2d 223, 230; Mount Tabor Baptist Church Hous. Corp. v. Banks (March 26, 1987), Cuyahoga App. No. 51839, unreported. In addition, the lack of a transcript under App.R. 9 generally precludes an appellate court from reviewing alleged errors occurring at trial because the appellant cannot demonstrate the alleged error in the record. Under these circumstance, the appellate court must ordinarily presume regularity and affirm the trial court's decision. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. Based on the foregoing analysis, plaintiff- appellant's second assignment of error is overruled. Plaintiff-appellant's third assignment of error concerns matters occurring at trial which would require the transcript. Thus, we overrule plaintiff-appellant's third assignment of error based on the analysis in the second assignment of error. Judgment affirmed. - 8 - - 9 - 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 Court of Common Pleas 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. JAMES D. SWEENEY, C.J. CONCURS. TIMOTHY E. McMONAGLE, J., CONCURS IN JUDGMENT ONLY. JUDGE JOHN T. PATTON 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 .