COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72520 ELLA KIRKSEY MUHAMMAD, ET AL. : JOURNAL ENTRY : AND Plaintiffs-appellants: OPINION : -vs- : : MARC GLASSMAN, INC. : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 15, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CV-272943 JUDGMENT: Reversed. Judgment entered for Defendant-appellee. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: ARTHUR R. FRAZIER, ESQ. Sun America Building 1015 Euclid Avenue, 3rd Floor Cleveland, Ohio 44115 For Defendant-Appellee: JACK SCHULMAN, ESQ. LISA SCHULMAN, ESQ. SCHULMAN, SCHULMAN & MEROS 1700 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 DYKE, J.: Plaintiffs Ella and Walter Muhammad appeal from a judgment rendered for defendant Marc Glassman, Inc. in plaintiffs' negli- -2- gence action. Plaintiffs assert that they are entitled to a new trial, that the lower court's judgment is not supported by the weight of the evidence and that it was the result of passion or prejudice. Marc Glassman, Inc. (hereafter referred to as Marc's or defendant ) cross-appeals and complains that the judgment rendered by the trial court is inconsistent with the verdict reached by the jury. For the reasons set forth below, we find plaintiffs' appeal to lack merit and find defendant's cross-appeal to be well-taken. We therefore reverse the judgment rendered below and enter judgment for defendant. On June 24, 1994, plaintiffs filed this negligence action against Marc's alleging Ella Muhammad sustained personal injuries after she slipped on liquid detergent while shopping. Plaintiffs further alleged that Walter Muhammad suffered a loss of consortium as a result of defendant's negligence. Defendant denied liability and the matter proceeded to a jury trial on September 25, 1996. The sparse record which has been presented to us on appeal indicates that the jury found that plaintiffs sustained $500 in damages. The record further reveals, however, that the jury concluded that Mrs. Muhammad was 66% negligent and Marc's was 34% negligent. On April 25, 1997, the trial court journalized an order which stated as follows: This case having been tried to a jury on 9/25/96 and ending on 10/2/96, and a verdict for plaintiff in the amount of $500 (five hundred dollars) is final. Plaintiffs now appeal and assign two errors for our review. Defendant cross-appeals and assigns one error for our review. -3- I. PLAINTIFFS' APPEAL Plaintiffs' first assignment of error states: THE JURY VERDICT WAS NOT SUSTAINED BY THE MANIFEST WEIGHT OF THE EVIDENCE. THEREFORE APPELLANTS SHOULD BE GRANTED A NEW TRIAL. Within this assignment of error, plaintiffs assert that a store employee with knowledge of the circumstances surrounding Mrs. Muhammad's fall was not called to testify and can provide material evidence which would change the outcome of the trial if presented. As a general rule of appellate practice, reviewing courts do not consider questions which have not been presented in the court whose judgment is being challenged. State ex rel. Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78, 81. Further, a reviewing court need not consider any alleged error which the complaining party could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. Id. The Quarto Mining court explained: These rules are deeply embedded in a just regard to the fair administration of justice. They are designed to afford the opposing party a meaningful opportunity to respond to issues or errors that may affect or vitiate his or her cause. Thus, they do not permit a party to sit idly by until he or she loses on one ground only to avail himself or herself of another on appeal. In addition, they protect the role of the courts and the dignity of the proceedings before them by imposing upon counsel the duty to exercise diligence in his or her own cause and to aid the court rather than silently mislead it into the commission of error. Id. -4- In this instance, there is no indication in the record that plaintiffs notified the trial court of the newly discovered evidence which, they now maintain, justifies a new trial in this matter. Consequently, this issue is not well developed in the record. We therefore decline to consider this claim herein. The first assignment of error is overruled. Plaintiffs' second assignment of error states: THE JURY VERDICT WAS INADEQUATE AND RENDERED UNDER PASSION OR PREJUDICE. Plaintiffs next assert that the defense verdict is not supported by the weight of the evidence and is so inadequate as to constitute a miscarriage of justice. Appellate law is clear that a party must exemplify any claim of error in the record. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199; App.R. 9(B). When the appellant fails to satisfy this obligation, an appellate court must presume that the evidence supported the trial court's findings. Dragojevic-Wiczen v. Wiczen (1995), 101 Ohio App.3d 152, 155-156; Roberts v. Payton (1995) 105 Ohio App.3d 597, 600. Likewise, a claim that the verdict is the product of passion or prejudice will be rejected if not exemplified in the record. Alessio v. Hamilton Auto Body (1985), 21 Ohio App.3d 247, 248. In this instance, plaintiffs have provided pages 686 through 690 of the trial court's transcript. This excerpt outlines the court's response to a jury question regarding the precise form of the verdict. In light of this sparse record, error has not been -5- made manifest and we are compelled to reject plaintiffs' claims that the verdict is unsupported by the evidence and that the verdict was the product of passion or prejudice. Plaintiffs' second assignment of error is overruled. Plaintiffs' appeal is not well-taken. II. DEFENDANT'S CROSS-APPEAL Defendant's assignment of error raised within its cross-appeal states: A TRIAL COURT IS REQUIRED TO ENTER JUDGMENT IN ACCORDANCE WITH A VERDICT PROMPTLY FOLLOWING THE RENDITION OF THE VERDICT, AND IS NOT PERMITTED TO ENTER A JUDGMENT INCONSISTENT WITH THE VERDICT. For its cross-appeal, Marc's complains that the jury rendered a verdict in which it found that plaintiffs had sustained $500 in damages, but concluded that Mrs. Muhammad was 66% negligent and defendant was 34% negligent. Thus, defendant asserts, the trial court erred in subsequently journalizing an order which awarded plaintiffs $500. Civ.R. 49(A) mandates that a trial court enter judgment in accordance with a jury verdict. R.C. 2315.19 provides that where the percentage of negligence attributable to the plaintiff is greater than the total of the percentages of the negligence that is attributable to all parties from whom the plaintiff seeks recovery, the court shall enter judgment in favor of those parties. In this matter, Marc's has demonstrated that the jury determined that plaintiffs sustained damages of $500. Nonetheless, the record presented on appeal demonstrates that the jury further -6- found that Mrs. Muhammad was 66% negligent and defendant was 34% negligent, thereby barring plaintiffs' recovery. See R.C. 2315.19. Moreover, the record does not demonstrate that plaintiffs moved for judgment notwithstanding the verdict or that the trial court sua sponte considered such motion. Accordingly, it appears that the trial court made a clerical error in issuing judgment for plaintiffs in the amount of $500. The assignment of error raised in defendant's cross-appeal is well-taken. We therefore reverse and enter judgment for defendant. App.R. 12(A)(1)(a). Reversed and judgment entered for defendant. This cause is reversed and judgment is hereby entered for defendant-appellee. It is, therefore, considered that said appellee recover of said appellant its costs herein. It is ordered that a special mandate be sent to said 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. BLACKMON, A.J., AND KARPINSKI, J., CONCUR ANN DYKE JUDGE -7- 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 .