COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72150 CATHERINE L. CARLIN : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION DAWN A. ANTHONY : : DEFENDANT-APPELLEE : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 12, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-225186. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Kenneth B. Burns, Esq. Gallup, Burns & Mills Attorneys at Law 1810 The Superior Building 815 Superior Avenue, East Cleveland, Ohio 44114-2701 For Defendant-appellee: J. Michael Creagan, Esq. 2100 Superior Building 815 Superior Avenue, East Cleveland, Ohio 44114-2701 -2- JAMES D. SWEENEY, J.: Plaintiff-appellant Catherine L. Carlin ( Carlin ) appeals from the February 3, 1997 denial of her post-judgment motion for new trial. For the reasons adduced below, we affirm. A review of the record on appeal indicates Carlin filed suit against defendant-appellee Dawn A. Anthony ( Anthony ) for soft tissue personal injuries sustained in a January 22, 1990 automobile accident between vehicles driven by the parties. In addition to the claim for soft-tissue injury from the accident, Carlin also claimed aggravation of pre-existing arthritic and osteoporosis conditions. The matter has had two jury trials to date. The first jury trial was conducted in May of 1993, at which time the jury found in favor of Carlin and awarded her Five Thousand Dollars ($5,000), plus costs, in damages. Subsequent to this first trial, Carlin moved for a new trial. The trial court granted the motion for new trial based on Civ.R. 59(A)(6), the judgment not being sustained by the weight of the evidence. This ruling was affirmed by this appellate court. See Carlin v. Anthony (September 22, 1994), Cuyahoga App. No. 65961, unreported. The second jury trial was conducted in December of 1996, at which time the jury unanimously found in favor of Carlin, but awarded her only One Thousand Dollars ($1,000), plus costs, in damages. See Journal Vol. 2030, page 435, journalized December 17, 1986. Thereafter, on December 31, 1996, Carlin filed a motion for new trial apparently pursuant to Civ.R. 59(A)(4), arguing that -3- inadequate damages were awarded as a result of the influence of passion or prejudice. Anthony filed her brief in opposition to this motion for new trial on January 21, 1997. The trial court, without opinion, denied this motion for new trial on February 3, 1997. This appeal presents the following lone assignment of error: THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR A NEW TRIAL. Under this assignment, appellant offers three subarguments, which will be addressed seriatim. However, before proceeding, the court notes, relevant to a Civ.R. 59(A)(4) ruling, that: Appellate courts will not disturb a trial court's ruling on a motion for new trial absent an erroneous ruling on a matter of law or an abuse of discretion. Cf. Price v. McCoy Sales & Service (1965), 2 Ohio St.2d 131; Jenkins v. Krieger (1981), 67 Ohio St.2d 314, 320; Rohde v. Farmer (1970), 23 Ohio St.2d 82, paragraph one of the syllabus. Ordinarily, the trial court should not grant a new trial because the damages are inadequate unless the verdict resulted from passion or prejudice. Troyer v. Horvath (July 2, 1981), Cuyahoga App. No. 42917, unreported. The verdict's size does not usually suffice to show passion or prejudice. Larrissey v. Norwalk Truck Lines (1951), 155 Ohio St. 207, 222; Pearson v. Cleveland Acceptance Corp. (1969), 17 Ohio App.2d 239, 245. Halupka v. McFaul (April 25, 1985), Cuyahoga App. No. 48996, unreported, 1985 WL 7997, at 4. It is also noted that whether a jury verdict is so inadequate as to demonstrate that it was the result of passion or prejudice is an exercise of the trial court's discretion, Powell v. Schiffauer (February 2, 1989), Cuyahoga App. No. 54930, unreported, 1989 Ohio -4- App. LEXIS 345, and that an abuse of discretion entails more than an error of law or judgment, but implies that the court's attitude is arbitrary, unreasonable or unconscionable. Krejci v. Halak (1986), 34 Ohio App.3d 1, 3. A THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF'S MOTION FOR A NEW TRIAL BY FAILING TO BE PRESENT IN THE COURTROOM DURING THE VIEWING BY THE JURY OF THE TWO EXPERT MEDICAL VIDEO DEPOSITIONS. This first subargument is totally without merit. The present version of Sup.R. 13(B)(5) provides, in pertinent part, that [I]n jury trials, counsel for the parties and the trial judge are not required to be present in the courtroom when the videotape testimony is played to the jury. 1 (Italicization added.) A review of the trial transcript does not indicate that the trial judge, during the second trial, was absent from the courtroom during the playing of the videotaped testimony of the two doctors. See R. 233 and 237. Even if the trial judge had absented himself from the courtroom during the playing of these two videotapes to the jury, there was no error by this conduct. See Sup.R. 13(B)(5). Further, even if the trial judge was absent from the courtroom while the videotapes were being viewed by the jury, there is no demonstrable prejudice from this alleged conduct on the face of the record because the trial court had the written transcripts of the 1At the time of the second trial herein, the prior version of this rule was identified as C.P.Sup.R. 12(B)(5). The language of both versions is identical for purposes of this review. -5- videotaped testimony available when he ruled on the motion for new trial. See Seley v. G.D.Searle & Co. (1981), 67 Ohio St.2d 192. B THE TRIAL COURT ERRED BY ITS REFUSAL TO FIND THE DAMAGES AWARDED PLAINTIFF SO INADEQUATE AS TO BE DEEMED A PRODUCT OF PASSION AND PREJUDICE. As a basis for this subargument, appellant asserts that the $1,000 award is grossly inadequate when viewed against the evidence of special damages in the amount of $4,681.49 admitted at trial, and must have resulted from passion or prejudice. Further, appellant makes the assertion that this amount of special damages, $4,681.49, was stipulated to by the defense during the trial. The record reflects that whereas the defense did not object to the admissibilityof the medical bills in the amount of $4,681.49, the defense did not stipulate, as appellant seems to claim, that the special damages were proximately caused by the accident in issue. This distinction is crucial to a review of this assignment. In reviewing this subargument, it is noted that the size of a verdict, per se, does not suffice for proof of passion or prejudice. Powell, supra at 7. The record does not evidence any passion or prejudice by the jury. Simply put, the jury assessed the credibility and weight2 of the evidence and did not believe that the claimed damages, if they did exist as claimed by appellant, were proximately caused by the accident in question or 2The court notes that a new trial based on weight of the evidence may only be granted once. Civ.R. 59(A)(6). Appellant has already exhausted this basis for a new trial. See the motion for new trial ruling which resulted in a second trial herein. -6- were not as severe, debilitating, aggravating or permanent as claimed by appellant. C THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR A NEW TRIAL TO PREVENT A MISCARRIAGE OF JUSTICE. This subargument is governed by a review of whether the trial court abused its discretion in denying the motion for new trial. Appellant cites to general propositions of law in support of this subargument and, without stating such, appears to argue that the size of the verdict was a manifest miscarriage of justice based on passion or prejudice of the jury or misconduct in the trial proceedings. The record is devoid of any demonstration of these allegations. Accordingly, the trial court did not abuse its discretion in denying the motion for new trial since the verdict was not the result of a miscarriage of justice. Assignment overruled. Judgment affirmed. -7- 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. Exceptions. LEO M. SPELLACY, P.J., and KENNETH A. ROCCO, J., CONCUR. ______________________________ JAMES D. SWEENEY JUDGE 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 .