COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73335 CHARLES J. NOHEJL, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION CATHERINE L. BEAM : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 17, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-316001 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: THOMAS J. ESCOVAR (#0011532) DAVID PAUL BRADLEY (#0041966) Steuer, Escovar and Berk, Co. 55 Public Square, 1828 Cleveland, Ohio 44113 For Defendant-Appellee: ROGER H. WILLIAMS (#0016430) MATTHEW J. GRIMM (#0065060) Williams & Sennett Co.,L.P.A. 2241 Pinnacle Parkway Twinsburg, Ohio 44087-2367 SPELLACY, J.: Plaintiffs-appellants Charles Nohejl and Renita Nohejl -2- ( appellants ) appeal from the jury verdict awarding appellants zero damages. Appellants also appeal from the trial court's orders denying their motion for a directed verdict and their motion for judgment notwithstanding the verdict or for a new trial. Appellants assign the following errors for our review: I. THE TRIAL COURT COMMITTED ERROR IN FAILING TO GRANT THE PLAINTIFFS' MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF PLAINTIFFS' EVIDENCE BECAUSE THE DEFENDANT WAS NEGLIGENT PER SE FOR VIOLATION OF OHIO REVISED CODE SECTIONS 4511.34 AND 4511.202. II. THE JURY DECIDED THE CASE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE CONTRARY TO LAW. THE AMOUNT OF DAMAGES WERE [SIC] INADEQUATE AND APPEAR TO HAVE BEEN GIVEN UNDER THE INFLUENCE OF PASSION OR PREJUDICE. III. THE TRIAL COURT COMMITTED ERROR IN FAILING TO GRANT THE PLAINTIFFS A NEW TRIAL OR A JUDGMENT NOTWITHSTANDING THE JURY'S VERDICT. THE PLAINTIFFS WERE ENTITLED TO A J.N.O.V. BECAUSE REASONABLE MINDS COULD ONLY COME TO THE CONCLUSION THAT THE PLAINTIFFS WERE ENTITLED TO DAMAGES AS A MATTER OF LAW. Finding appellants' third assignment of appeal to have merit, the judgment of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion. I. On December 20, 1994, Charles Nohejl was operating his automobile southbound on Ridge Road in Brooklyn, Ohio. Mr. Nohejl's wife, Renita Nohejl, was a front seat passenger in his automobile. Defendant-appellee Catherine Beam was also operating her automobile southbound on Ridge Road in the same lane. Due to -3- the traffic ahead, Mr. Nohejl had to bring his vehicle to a complete stop. Mrs. Beam was unable to stop her vehicle, which then collided with the rear of Mr. Nohejl's vehicle. Prior to the subject accident, Mr. Nohejl had suffered from chronic neck and back problems. In fact, Mr. Nohejl had undergone twenty-one surgeries to his neck and back between 1975 and the date of the subject accident. On December 6, 1994, two weeks prior to the accident, Mr. Nohejl had surgery to place a stimulator in his lower back. On February 24, 1995, over two months after the accident, x-rays of Mr. Nohejl's lower back indicated that the stimulator had moved. On March 7, 1995, Mr. Nohejl underwent another surgery to reposition the stimulator. On September 30, 1996, appellants filed the instant lawsuit against Mrs. Beam seeking damages for injuries Mr. Nohejl allegedly suffered in the subject accident. In the complaint, Mrs. Nohejl also asserts a claim for loss of consortium. On September 8, 1997, the jury trial of the case sub judice commenced. During the trial, appellants offered expert medical testimony from Mr. Nohejl's treating physician, William Bohl, M.D. Dr. Bohl testified that, in his opinion, the subject accident was the proximate cause of the migration of the stimulator and the necessity for subsequent medical treatment, including the repositioning surgery on March 7, 1995. Upon resting after the presentation of their case, appellants moved for a directed verdict. The trial court overruled -4- appellants' motion for a directed verdict. Appellee then presented her case, which did not include expert testimony. Following appellee's case, the trial judge approved and entered into certain stipulations of fact proposed by appellants. The stipulations provided to the jury included Stipulation 19, which stated that [a]s a direct and proximate result of the negligence of the defendant, the plaintiff was injured. The case was submitted to the jury for deliberation. On September 10, 1997, the jury returned a verdict for appellants. However, the jury awarded zero damages. On September 11, 1997, the trial court journalized the jury's verdict. On September 22, 1997, appellants moved for judgment notwithstanding the verdict or, in the alternative, for a new trial; this motion was not ruled upon by the trial court.1 Appellants filed a timely notice of appeal on October 10, 1997. II. In their third assignment of error, appellants assert, in part, that the trial court erred in denying their motion for a new trial because the jury's determination of damages was not sustained by the weight of the evidence. Civ.R. 59(A)(6) states: A new trial may be granted to all or any of the parties and on all or part of the issues 1 We note that a motion not ruled on is presumed denied. See Vignal v. Cleveland Clinic Foundation (Sept. 26, 1996), Cuyahoga App. No. 69603, unreported, citing Mancino v. Lakewood (1987), 36 Ohio App.3d 219. -5- upon any of the following grounds: (6) The judgment is not sustained by the weight of the evidence * * *. The granting of a motion for a new trial rests within the sound discretion of the trial court and will not be disturbed upon appeal unless there has been an abuse of that discretion. Pena v. Northeast Ohio Emergency Affiliates, Inc. (1995), 108 Ohio App.3d 96, 103. An abuse of discretion connotes more than an error of law or judgment; it implies an attitude on the part of the trial court which was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Generally, the trial court's decision on a motion for a new trial will be affirmed upon appeal unless it was clearly wrong and without legal basis. Dawson v. MetroHealth Ctr. (1995), 104 Ohio App.3d 654, 656. However, we note that a new trial should be granted under Civ.R. 59(A)(6) where it appears that the jury awarded inadequate damages because it failed to consider uncontroverted evidence of damages. See Dillon v. Bundy (1991), 72 Ohio App.3d 767, 773. In the case sub judice, the jury was presented with uncontroverted evidence that Mr. Nohejl was injured in the subject accident. In particular, the jury was presented with the stipulation that Mr. Nohejl was injured as a result of appellee's negligence. Based upon this stipulation, appellants were entitled to at least nominal damages. Notwithstanding, the jury assessed zero damages to appellants and the trial court denied appellants' motion for a new trial. -6- Based upon the foregoing, we find that the trial court abused its discretion in not granting appellants' motion for a new trial. Accordingly, appellants' third assignment of error is sustained and this cause is remanded for a new trial. III. In light of our disposition of appellants' third assignment of error, appellants' other assignments of error are moot. As such, we decline to address appellants' first and second assignments of error pursuant to App.R. 12(A)(1)(c). The judgment of the trial court is reversed and this cause is remanded for further proceedings consistent with this opinion. -7- This cause is reversed and remanded for further proceedings consistent with this journal entry and opinion. It is, therefore, considered that said appellants recover of said appellee their 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. Exceptions. TIMOTHY E. McMONAGLE, P.J. and JOHN T. PATTON, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .