COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73832 KATHERINE BAUGHMAN, ET AL. : : : Plaintiffs-appellants : : : -vs- : JOURNAL ENTRY : AND : OPINION KOLLEEN KREBS : : Defendant-appellee : : : DATE OF ANNOUNCEMENT : DECEMBER 10, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CV-324,187 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: Lawrence W. Corman, Esq. 55 Public Square 2240 Illuminating Bldg. Cleveland, Ohio 44114 For defendant-appellee: William T. Neubert, Esq. 401 Euclid Avenue Suite 616 Cleveland, Ohio 44114 MICHAEL J. CORRIGAN, J.: Deborah and Katherine Baughman, plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, -2- General Division, Case No. CV-324187, in which the jury awarded medical expenses only to each plaintiff-appellant and $144.00 in lost wages to Katherine Baughman. The trial court denied plaintiffs-appellants' motion for judgment notwithstanding the verdict and/or new trial. Plaintiffs-appellants assign four errors for this court's review. Plaintiffs-appellants' appeal is not well taken. On May 12, 1996, Deborah Baughman was driving in her 1996 Honda Accord with her mother Katherine Baughman as a front seat passenger. The vehicle was traveling in a northbound direction on East 185th Street when it reached the intersection of 185th and Lakeshore Boulevard. Plaintiffs-appellants' vehicle stopped at the traffic signal and proceeded forward intending to turn right on red. Plaintiffs-appellants stopped a second time to check oncoming traffic on Lakeshore Boulevard when their vehicle was struck from behind by a 1984 Ford Escort owned and operated by Kolleen Krebs, defendant-appellee. Apparently, defendant-appellee had also been intending to make a right hand turn on red and had failed to notice plaintiffs-appellants' stationary vehicle. Deborah Baughman maintained that, although her foot was on the brake at the time of the collision, her car was pushed approximately one car length forward by the force of the impact. Katherine Baughman maintained that the force of the collision threw her forward in her seat then backward causing the seat back to break and resulting in a serious back injury. Katherine Baughman was allegedly unable to move after the collision and was taken to -3- the hospital via ambulance. Deborah Baughman also complained of neck and shoulder pain allegedly caused by the accident. Plaintiffs-appellants' vehicle had a cracked taillight cover and a small crack in the bumper as a result of the accident. Defendant-appellee's vehicle sustained only minor damage to the front licence plate and the plate holder. Defendant-appellee was not injured in the accident. On January 18, 1997, plaintiffs-appellants filed the instant personal injury action to recover for injuries allegedly sustained in the May 12, 1996 accident. The case came on for a jury trial on November 10, 1997. At trial, Katherine Baughman testified that her back was permanently injured in the accident requiring physical therapy, medication and treatment into September of 1997. Katherine Baughman acknowledged that she had suffered a previous back injury thirty years before in an industrial accident. However, she denied that her previous injury was the cause of her current problems. Deborah Baughman maintained that she suffered neck pain, headaches and upper and lower back discomfort as a result of the accident. Prior to the accident, Deborah Baughman alleged that she did not have any of the physical problems identified at trial. She did admit on cross-examination that she had been treated for a neck problem by her family doctor in March and July of 1995. Defendant-appellee characterized the collision as a tap and/or a bump during her trial testimony. She estimated that she was traveling between two and five miles an hour at the time of the -4- accident. The Euclid police officer who investigated the accident noted that defendant-appellee's vehicle suffered only minor damage to the license plate holder as well as the plate itself and that plaintiff-appellants' vehicle had a cracked taillight cover and a cracked bumper. Photographs of each vehicle after the accident were introduced into evidence. At the conclusion of a two-day trial, the jury returned a verdict in favor of plaintiffs-appellants for medical expenses and claimed lost wages only. The jury awarded Deborah Baughman $3,021.00 and Katherine Baughman $2,205.65 in medical expenses and $144.00 in lost wages. No award for pain and suffering was made. The verdict was journalized on November 17, 1997. On November 26, 1997, plaintiffs-appellants filed a motion for judgment notwithstanding the verdict and/or for new trial. On November 24, 1997 plaintiffs-appellants also filed a motion to tax case expenses as costs. On December 15, 1997, the trial court denied plaintiffs- appellants' motions. On January 9, 1998, plaintiffs-appellants filed a timely notice of appeal from the judgment of the trial court. Plaintiffs-appellants' first assignment of error states: I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFFS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND/OR NEW TRIAL ON THE ISSUE OF DAMAGES. Plaintiffs-appellants' second assignment of error states: II. THE TRIAL COURT'S INAPPROPRIATE CONDUCT REQUIRED A NEW TRIAL OR JUDGMENT -5- NOTWITHSTANDING THE VERDICT ON THE ISSUE OF DAMAGES. Having a common basis in both law and fact, this court shall consider plaintiffs-appellants' first and second assignments of error simultaneously. Plaintiffs-appellants argue, through their first and second assignments of error, that the trial court erred in overruling their motion for judgment notwithstanding the verdict and/or for new trial on the issue of damages. Specifically, plaintiffs- appellants maintain that the jury's damages award was insufficient and not supported by the weight of the evidence in that it did not consider a reasonable amount for pain and suffering in spite of the fact that evidence was presented to demonstrate that such pain and suffering did occur as a result of the accident. Plaintiffs- appellants maintain further that the jury was influenced by the allegedly improper conduct and comments of the trial judge regarding the relevant merits of plaintiffs-appellants' case as well as the allegedly hostile and sarcastic attitude of the trial court toward plaintiffs-appellants' trial counsel. The standard for granting a motion for judgment notwithstanding the verdict or in the alternative for a new trial pursuant to Civ.R. 50(B) is the same as that for granting a motion for directed verdict pursuant to Civ.R. 50(A). Wagner v. Roche Laboratories (1996), 77 Ohio St.3d 116, 121, 671 N.E.2d 252, 256, citing Gladen v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 318-319, 662 N.E.2d 287, 294 and Posin v. A.B.C. -6- Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 430, 344 N.E.2d 334, 338. Civ.R. 50(A)(4) states: When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. Recently, in Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 693 N.E.2d 271, the Ohio Supreme Court reexamined the standard for deciding a motion for judgment notwithstanding the verdict and/or new trial. The court stated: In Wagner, we quoted Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284-285, 21 O.O.3d 177, 178-179, 423 N.E.2d 467, 469, in setting forth the standard for deciding a motion for a directed verdict or for a judgment notwithstanding the verdict: The law in Ohio regarding directed verdicts is well formulated. In addition to Civ.R 50(A), it is well established that the court must neither consider the weight of the evidence nor the credibility of the witnesses in disposing of a directed verdict motion. *** Thus, `if there is substantial competent evidence to support the party against whom the motion is made, upon which reasonable minds might reach different conclusions, the motion must be denied. Kellerman v. J.S. Durig Co. (1964), 176 Ohio St. 320 [27 O.O.2d 241, 199 N.E.2d 562] ***.' Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115 [4 O.O.3d 243, 244, 363 N.E.2d 367, 368]. In Wagner, we stated that `[t]he reasonable minds test of Civ.R. 50(A)(4) calls upon the court only to determine whether there exists any evidence of substantial probative value in support of [the claims of the party against whom the motion is directed]. *** A motion for a directed verdict raises a question of law because it examines the materiality of the evidence, as opposed to the conclusions to be drawn from the evidence.' Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 68-69, 23 O.O.3d 115, 116-117, 430 N.E.2d 935, -7- 938. Wagner, 77 Ohio St.3d at 119-120, 671 N.E.2d at 255-256. The granting or denial of a motion for judgment notwithstanding the verdict or in the alternative new trial is committed to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Rohde v. Farmer (1970), 23 Ohio St.2d 82, 87, 52 O.O.2d 376, 378-379, 262 N.E.2d 685, 689. The term abuse of discretion connotes more than an error in law or judgment; it implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. Atkinson v. International Technegroup, Inc. (1995), 106 Ohio App.3d 349, 358, 666 N.E.2d 257, 266. It is well established that where an appellant challenges a trial court's judgment in a civil action as being against the manifest weight of the evidence, the function of the appellate court is limited to an examination of the record to determine if there is any competent, credible evidence to support the underlying judgment. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 461 N.E.2d 1273; Chandler and Assoc., Inc. v. America's Healthcare Alliance, Inc. (Oct. 30, 1997), Cuyahoga App. Nos. 71325, 71832, unreported. If competent, credible evidence is present, a reviewing court will not reverse the trial court's judgment. Fijalkovich v. W. Bishop Co., Inc. (Sept 18, 1997), Cuyahoga App. No. 71725, unreported. In the present case, a review of the record from the trial court demonstrates that the trial court did not err in overruling -8- plaintiffs-appellants' motion for judgment notwithstanding the verdict and/or new trial. Evidence was presented through the testimony of defendant-appellee and the Euclid police officer who investigated the accident regarding the severity of the collision. Additional evidence was presented to demonstrate that the alleged injuries suffered by plaintiffs-appellants were not solely caused by the underlying accident but the result of pre-existing conditions that were merely aggravated in the accident. After construing the evidence most strongly in favor of defendant-appellee (the non-moving party), it is apparent that reasonable minds could differ as to the severity of the impact as well as the severity of plaintiffs-appellants' injuries and whether those injuries were in fact caused by the underlying accident. While it is true that plaintiffs-appellants' testimony regarding the accident itself and the nature of their injuries was diametrically opposed to that of defendant-appellee, the jury in this case was at liberty to weigh all the evidence presented and decide which evidence it determined to be credible. It does not follow that in a matter wherein a jury awards damages for medicals and lost wages that automatically an award for pain and suffering must follow. Evidence relative to pain and suffering in damage evaluations is within the province of the fact-finder. The mere fact that the jury in this matter choose to believe defendant- appellee's version of events is not, in itself, grounds for granting a judgment notwithstanding the verdict and/or new trial as -9- plaintiffs-appellants contend. Santoli v. Marbuery (May 14, 1998), Cuyahoga App. No. 72110, unreported. Similarly, plaintiffs-appellants' contention that the trial court exhibited a hostile attitude toward their trial counsel as well as the relevant merits of plaintiffs-appellants' case is not supported by the record. Plaintiffs-appellants identify a number of alleged instances of judicial misconduct by the trial court. Specifically, it is alleged that the trial court commented sarcastically during plaintiffs-appellants' voir dire, opening statement and final argument; used a biased tone of voice, gestures and mannerisms throughout the trial; and belittled plaintiffs- appellants' injuries through a disparaging reference to his own trapezius during the proceedings.1 A review of the record, however, fails to demonstrate any bias on the part of the trial court as he appeared to treat both parties' attorneys in an even handed manner. Clearly, any facial expressions, mannerisms, and tonal inflections by the trial court would not be reflected in the trial transcript. Given the fact that reversible error must affirmatively appear on the record, see City of Cleveland v. Uveges (May 16, 1991), Cuyahoga App. Nos. 58498, 58499, unreported; Bennett v. City of Cleveland (June 5, 1986), Cuyahoga App. No. 50479, unreported, this court cannot now say that the trial court acted in an improper or prejudicial manner in presiding over the trial below. As for the trial court's 1One of Deborah Baughman's injuries was a purported problem with her trapezius muscle in her shoulder. -10- trapezius reference, a review of the trial transcript reveals that plaintiffs-appellants' counsel made the exact same reference toward defendant-appellee's counsel approximately three pages earlier in the transcript. Under the circumstances, plaintiffs-appellants' counsel can hardly claim that he was unduly prejudiced by such a similar comment by the trial court. For the foregoing reasons, it is apparent that the trial court did not err in denying plaintiffs-appellants' motion for judgment notwithstanding the verdict and/or for new trial. Plaintiffs-appellants' first and second assignments of error are not well taken. Plaintiffs-appellants' third assignment of error states: III. THE TRIAL COURT COMMITTED NUMEROUS ERRORS OF LAW IN EITHER ADMITTING OR REJECTING EVIDENCE IN BOTH DOCUMENTARY AND TESTAMENTARY FORM. Plaintiffs-appellants argue, through their third assignment of error, that the trial court erred in many of its evidentiary rulings in this matter. Specifically, plaintiffs-appellants identify five such alleged errors: (1) The court erred in failing to permit plaintiff to introduce evidence that defendant paid for the damage to plaintiff's bumper; (2) The court erred in admitting photographs of plaintiff's vehicle taken by defendant's insurance representative; (3) The court erred in refusing to permit plaintiff to comment on defendant's failure to call its defense doctor to testify; (4) The court allowed defendant to cross-examine plaintiff's from plaintiff's doctor's medical reports; and (5) Defendant's counsel violated DR 7-106(C)(4) in closing argument and the court erred in overruling plaintiff's objection. -11- It is well established that the addition, admission or exclusion of evidence is a matter committed to the sound discretion of the trial court. O'Brein v. Angley (1980), 63 Ohio St.2d 159, 163, 407 N.E.2d 490. Consequently, for the admission or exclusion of certain evidence to be overturned on appeal, there must be a showing that the trial court acted in an unreasonable, arbitrary or unconscionable manner. State v. Davis (1988), 49 Ohio App.3d 109; State v. Adams (1982), 60 Ohio St.2d 151. Relevant evidence means any evidence having a tendency to make the existence of any fact that is of consequence to the determinationof the action more probable or less probable than it would be without the evidence. Evid.R. 401. Additionally, pursuant to Evid.R. 403(A), evidence, although relevant, is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury. Again the admission or exclusion of evidence is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. State v. Combs (1991), 62 Ohio St.3d 278; Weidner v. Blazic (1994), 98 Ohio App.3d 321, 648 N.E.2d 565. An appellate court will not reverse a jury's verdict due to the erroneous admission or exclusion of evidence unless the decision constituted prejudicial error. Evid.R. 103(A); State v. Gilmore (1986), 28 Ohio St.3d 190; Birath v. Birath (1988), 53 Ohio App.3d 31. In the case sub judice, a review of the record fails to demonstrate that any of the trial court's evidentiary rulings -12- constituted prejudicial error. Plaintiffs-appellants allege that the trial court erred by excluding a $906.00 estimate for the repair of their automobile bumper as well as the repair estimate for the front passenger seat which was allegedly damaged in the accident. It was undisputed at trial that defendant-appellee paid for the damage to plaintiffs-appellants rear bumper. Accordingly, plaintiffs-appellants were not prejudiced nor did the trial court err in refusing to admit into evidence the estimate for said repair. See Evid.R. 409 and Evid.R. 411. This is particularly true in light of the fact that defendant-appellee admitted liability for the collision and plaintiffs-appellants and the Euclid police officer testified as to the nature of the underlying damage. Jarvis v. Gahm (July 11, 1994), Jackson App. No. 93CA725, unreported. As for the damage to the front passenger seat of plaintiffs-appellants' automobile, the record does not sufficiently demonstrate that said damage occurred as a result of the underlying accident. Accordingly, the trial court did not err in excluding evidence of the cost of that repair. Plaintiffs-appellants maintain further that the trial court improperly admitted defendant-appellee's photographs of the two automobiles involved in the accident since the insurance representative who had taken the photographs did not testify at trial. Pursuant to Evid.R. 403(B), the admission of photographic evidence is left to the broad discretion of the trial court. Yeager v. Riverside Methodist Hosp. (1985), 24 Ohio App.3d 54, 56, 493 N.E.2d 559. Photographs are not objectionable as evidence if -13- they are properly identified, are relevant and competent, and accurately represent the scene they portray. Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 679, 685 N.E.2d 308. The photographs at issue were identified by defendant-appellee as well as the Euclid police officer that investigated the case and each witness testified that they accurately represented each automobile as it looked after the collision. Clearly, the trial court did not err in admitting the disputed photographs into evidence. Asbrock v. Brown (Aug. 18, 1997), Warren App. No. CA97-01-002, unreported. Plaintiffs-appellants argue that the trial court also erred in refusing to allow trial counsel to comment upon the defendant- appellee's failure to call her defense doctor to testify at trial and by allowing defendant-appellee to cross-examine plaintiffs- appellants using their own medical report. A review of the trial transcript fails to demonstrate that the trial court abused its discretion through either evidentiary ruling. Contrary to plaintiffs-appellants' assertion, the trial court permitted their trial counsel to comment upon the existence of a defense medical report. (T. 281). In addition, the trial court did not commit prejudicial error by allowing defendant-appellee to question plaintiffs-appellants concerning their doctor's opinion of Katherine Baughman's medical condition both before and after the accident. This is particularly true in light of the fact that the doctor's opinion had already been admitted into evidence through his videotaped deposition testimony. Accordingly, the trial court -14- did not abuse its discretion through its evidentiary rulings in these matters. Weidner, supra; Coombs, supra. Lastly, plaintiffs-appellants maintain that the trial court erred in overruling their objection during defendant-appellee's closing argument to defense counsel's characterization of plaintiffs-appellants' case as unjust. It is plaintiffs-appellants' position that such characterization violated DR 7-106(C)(4) of the Code of Professional Responsibility. A review of the disputed comments fails to demonstrate the prejudicial effect necessary for reversal on such grounds. See Stelma v. Juguilon (1992), 73 Ohio App.3d 377, 386, citing Hitson v. City of Cleveland (Dec. 13, 1990), Cuyahoga App. No. 57741, unreported. For the foregoing reasons, plaintiffs-appellants' third assignment of error is not well taken. Plaintiffs-appellants' fourth and final assignment of error states: IV. THE TRIAL COURT ERRED IN FAILING TO AWARD APPELLANT'S CASE EXPENSES AS COSTS UNDER CIV.R. 54(D) AND C.P.SUP.R. 13(D). Plaintiffs-appellants argue, through their fourth and final assignment of error, that the trial court erred in overruling their motion to tax expenses as costs. Specifically, plaintiffs- appellants maintain that, as prevailing party, they were entitled to tax certain expenses as costs pursuant to Civ.R. 54 and C.P.Sup.R. 13(D). Plaintiffs-appellants sought the following: (1) Costs of transcript of defendant-appellee's doctor's deposition; (2) Costs of transcript of defendant-appellee's deposition; -15- (3) Costs of transcript and videographer's charge for Deborah Baughman's treating doctor; (4) Costs of transcript and videographers charge for Katherine Baughman's treating doctor; and (5) Videographer's expenses for playing plaintiffs- appellants' doctor's video's at trial. In Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 597 N.E.2d 153, the Ohio Supreme Court determined that the language of Civ.R. 54(D) grants the trial court discretion to order the prevailing party to bear all or part of his or her own costs but does not empower the court to award costs to a non-prevailing party. Costs are generally defined as the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action and which the statute authorizes to be taxed and included in the judgment. Williamson v. Ameritech Corp. (1998), 81 Ohio App.3d 342, 691 N.E.2d 288. R.C. 2317.27 does not provide a statutory basis for taxing the services of a court reporter as costs under Civ.R. 54(B) nor are expert witness fees to be awarded as costs. See Williamson, supra; Williams v. Colasurd (1995), 71 Ohio St.3d 642, 644, 646 N.E.2d 830. In the case sub judice, a review of the expenses sought by plaintiffs-appellants demonstrates that, since there is no statutory authority for the taxing of such expenses as costs, the trial court did not err by overruling plaintiffs-appellants' motion. See Carr v. Lunney (1995), 104 Ohio App.3d 139, 142; Bauer v. Georgeff (Sept. 1, 1998), Franklin App. No. 97APE03-313, unreported. Plaintiffs-appellants' fourth and final assignment of error is not well taken. -16- Judgment of the trial court is affirmed. -17- It is ordered that appellee recover of appellant its 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 Cuyahoga County 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. TERRENCE O'DONNELL, P.J. AND JAMES D. SWEENEY, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .