[Cite as Brown v. Senor Gringo's, Inc., 2010-Ohio-985.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY
STEVE BROWN, ET AL.,
PLAINTIFFS-APPELLEES, CASE NO. 4-09-18
v.
SENOR GRINGO’S, INC., OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court Trial Court No. 06 CV 37772
Judgment Affirmed
Date of Decision: March 15, 2010
APPEARANCES:
Edward T. Mohler for Appellant
David P. Rupp, Jr. and Tennille Becker Newton for Appellee, German Mutual Insurance Company Case No. 4-09-18
PRESTON, P.J.
{¶1} Defendant-appellant, Senor Gringo’s, Inc. (hereinafter “Senor
Gringo’s”), appeals the Defiance County Court of Common Pleas’ grant of
summary judgment in favor of defendant-appellee, German Mutual Insurance
Company (hereinafter “German Mutual”). For the reasons that follow, we affirm.
{¶2} Around December 20, 2005, Senor Gringo’s had a fire that damaged
Underwater World Fish & Pets, Inc. (hereinafter “Underwater World”), a
neighboring business and co-tenant in the Northtowne Mall in Defiance, Ohio
owned and operated by Steve and Kimberly Brown (hereinafter “the Browns”).
(Mar. 24, 2006 Complaint, Doc. No. 1). Thereafter, the Browns presented an
insurance claim for the damages to their insurance company, German Mutual, but
the parties were unable to settle the insurance claim. (Id.).
{¶3} On March 24, 2006, Underwater World and the Browns (collectively
“plaintiffs”) filed a complaint against German Mutual alleging a breach of the
insurance contract and bad faith. (Id.). The plaintiffs also alleged a breach of
contract claim against JJ Gumberg Company, d.b.a. Northtowne Mall (hereinafter
“Northtowne”), based upon their lease agreement. (Id.).
{¶4} On May 19, 2006, plaintiffs filed an amended complaint naming
Senor Gringo’s as a defendant and alleging negligence against Senor Gringo’s for
causing the fire, which damaged them. (Doc. No. 9). On June 2, 2006, German
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Mutual filed an answer and cross-claim against Senor Gringo’s alleging that it was
entitled to indemnification, subrogation, and/or contributions from co-defendant
Senor Gringo’s for any liability it incurred. (Doc. No. 12). On June 23, 2006,
Northtowne filed a cross-claim against German Mutual for contribution and/or
indemnity. (Doc. No. 15).
{¶5} On January 12, 2007, Senor Gringo’s filed a cross-claim against co-
defendant Northtowne seeking contribution and/or indemnification. (Doc. No. 31).
{¶6} On March 30, 2007, Northtowne filed a motion for summary
judgment based upon the lease agreements with the plaintiffs and Senor Gringo’s.
(Doc. No. 33). On April 14, 2007, the trial court referred the case for mediation,
but that effort ultimately proved unsuccessful. (Doc. Nos. 35, 47). On May 24,
2007, the trial court granted Northtowne’s motion for summary judgment as to the
plaintiffs’ claims and Senor Gringo’s cross-claim. (Doc. No. 36).
{¶7} On June 22, 2007, plaintiffs filed a motion for partial summary
judgment against German Mutual on its breach of contract and bad faith claims.
(Doc. Nos. 37-38). On August 15, 2007, German Mutual filed a motion to
bifurcate the trial on the issues of breach of contract (damages) plaintiffs suffered
and the plaintiffs’ bad faith claim. (Doc. No. 48).
{¶8} On January 10, 2008, the trial court denied plaintiffs’ motion for
partial summary judgment. (Doc. No. 65). That same day, the trial court also
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granted German Mutual’s motion to bifurcate the trial, noting that the “currently
established trial date will be used for a determination of the actual losses to
Plaintiffs and a subsequent trial date will be established for determination of
Plaintiffs’ bad faith claims against German Mutual Insurance Company.” (Doc.
No. 66).
{¶9} On January 17, 2008, plaintiffs filed a motion to sever German
Mutual’s cross-claims against Senor Gringo’s from their claims against German
Mutual. (Doc. No. 67).
{¶10} On February 19, 2008, the matter proceeded to a hearing to
determine the amount of damages suffered by plaintiffs, which was proximately
caused by the December 20, 2005 fire. At the conclusion of the hearing, the jury
returned a general verdict for plaintiffs in the amount of $105,263.50. (Doc. No.
83). On March 4, 2008, the trial court entered judgment as follows:
1) Plaintiffs Steve Brown, Kimberly Brown and Underwater World Fish & Pets, Inc. are granted judgment in the amount of $105,263.50 against Defendant German Mutual Insurance Company in contract; and against Defendant Senor Gringo’s, Inc. in tort, plus interest from the date of this judgment and court costs; 2) Plaintiffs Steve Brown, Kimberly Brown, and Underwater World Fish & Pets, Inc. [sic] claim for bad faith against Defendant German Mutual Insurance Company shall proceed as already scheduled for a jury trial on April 2 and 3, 2008.
(Doc. No. 85).
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{¶11} On March 18, 2008, Senor Gringo’s filed a motion for judgment
notwithstanding the verdict or, in the alternative, a new trial, which German
Mutual joined. (Doc. Nos. 87, 89). On April 2, 2008, Senor Gringo’s and German
Mutual filed notices of appeal from the trial court’s March 4, 2008 judgment
entry, but this Court dismissed for lack of a final appealable order since the insurer
bad faith claim remained. (Doc. Nos. 92, 95); (App. Case Nos. 4-08-11; 4-08-12).
{¶12} On May 8, 2008, the trial court overruled Senor Gringo’s and
German Mutual’s motion for judgment notwithstanding the verdict and/or a new
trial. (Doc. Nos. 100, 106).
{¶13} On August 26, 2008, the trial court adopted an agreed judgment
entry and satisfaction of judgment, which provided:
1. The Judgment recovered by the Plaintiffs on March 4, 2008 against Defendant German Mutual Insurance Co. has been fully paid and satisfied and the court costs on said action shall be paid in full by Defendant German Mutual Co. 2. Plaintiffs hereby assign and transfer to Defendant German Mutual Insurance Co. the Judgment recovered by them against Defendant Senor Gringo’s Inc. on March 4, 2008. 3. Plaintiffs’ bad faith claim against Defendant German Mutual Insurance Co. has been fully and completely settled and all claims by Plaintiffs against Defendant German Mutual Insurance Co. are hereby dismissed with prejudice to future action by Plaintiffs against Defendant German Mutual Insurance Co., court costs to Defendant German Mutual Insurance Co. 4. The cross-claim of Defendant German Mutual Insurance Co. against Defendant Senor Gringo’s Inc. remains outstanding and unresolved.
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(Doc. No. 111). This entry was signed by the trial court judge, the attorneys for
the plaintiffs and defendant, and Steven Brown, Kimberly Brown, and Underwater
World (by Kimberly Brown, President). (Id.).
{¶14} On September 22, 2008, Senor Gringo’s filed a notice of appeal
from the trial court’s March 4, 2008 and the August 26, 2008 judgment entries and
satisfaction of judgment. (Doc. No. 112). This Court, however, dismissed the
appeal for lack of jurisdiction since the August 26, 2008 judgment entry indicated
a pending cross-claim against Senor Gringo’s. (App. No. 4-08-32).
{¶15} On October 8, 2008, the trial court held a pre-trial conference
regarding German Mutual’s remaining cross-claim against Senor Gringo’s. (Doc.
No. 116). The trial court thereafter granted the parties time to amend the
pleadings and set a schedule for the filing of motions for summary judgment. (Id.).
{¶16} On October 24, 2008, German Mutual filed its amended cross-claim
against Senor Gringo’s alleging, in its first cross claim, that it was entitled to
indemnification, subrogation and/or contribution from co-defendant Senor
Gringo’s. (Doc. No. 117). In its second cross-claim, German Mutual alleged it
was assigned the judgment rendered against co-defendant Senor Gringo’s, citing
paragraph two (2) of the August 26, 2008 judgment entry. (Id., citing Doc. No.
111).
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{¶17} On December 8, 2009, German Mutual and Senor Gringo’s filed
cross-motions for summary judgment. (Doc. Nos. 119, 120). On June 18, 2009,
the trial court overruled Senor Gringo’s motion for summary judgment and
awarded summary judgment in favor of German Mutual. (Doc. No. 126).
{¶18} On July 20, 2009, Senor Gringo’s filed a notice of appeal from the
trial court’s grant of summary judgment in favor of German Mutual, which is the
present appeal before this Court. Senor Gringo’s appeals raising five assignments
of error for our review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED BY DENYING APPELLANT SENOR GRINGO’S, INC.’S MOTION FOR SUMMARY JUDGMENT AGAINST APPELLEE GERMAN MUTUAL INSURANCE CO., FILED ON DECEMBER 8, 2008. THE TRIAL COURT DID SO WITH ITS JUDGMENT ENTRY FILED ON JUNE 18, 2009, AND ATTACHED TO THE NOTICE OF APPEAL FILED ON JULY 20, 2009.
{¶19} In its first assignment of error, Senor Gringo’s argues that the trial
court erred in granting summary judgment in German Mutual’s favor because
German Mutual did not have a valid assignment of the Browns’ and Underwater
World’s judgment against Senor Gringo’s. Senor Gringo’s also argues that
German Mutual failed to prosecute its cross-claim at the February 19-20, 2008
jury trial, and therefore, waived further action on its cross-claim.
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{¶20} We review a decision to grant summary judgment de novo. Doe v.
Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243. Summary judgment is
proper where there is no genuine issue of material fact, the moving party is
entitled to judgment as a matter of law, and reasonable minds can reach but one
conclusion when viewing the evidence in favor of the non-moving party, and the
conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels
v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 219, 631
N.E.2d 150.
{¶21} “Waiver is a voluntary relinquishment of a known right and is
generally applicable to all personal rights and privileges, whether contractual,
statutory, or constitutional.” Glidden Co. v. Lumbermens Mut. Cas. Co., 112 Ohio
St.3d 470, 2006-Ohio-6553, 861 N.E.2d 109, ¶49.
{¶22} Senor Gringo’s arguments lack merit. The February 19, 2008 jury
trial was specifically held for the purpose of determining the amount of actual
damages proximately caused to the Browns and Underwater World as a result of
the fire at Senor Gringo’s. (Jan. 10, 2008 JE, Doc. No. 66); (June 18, 2009 JE,
Doc. No. 126). The trial court noted the relevant procedural history of the case in
its judgment entry granting summary judgment. (June 18, 2009 JE, Doc. No. 126).
Notably, the trial court stated that the purpose of jury trial was to “allow a trier of
fact to determine those damages suffered by the Plaintiffs as a proximate result of
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the fire loss/smoke damage claim. This issue, and only this issue, was submitted
for consideration of the jury.” (Id., emphasis added). In fact, the trial court
specifically instructed the jury that:
In this case, it has been determined that the Defendants, German Mutual Insurance Company and Senor Gringo’s, Inc. are responsible for the consequences of the incident which is the subject of this lawsuit. Your duty now is solely to determine the amount of damages to the Plaintiffs, Steve Brown, Kimberly Brown and Underwater World Fish and Pets, Inc., proximately caused by the incident.
(Feb. 19, 2008 Tr. at 335). The record also indicates that the parties had notice of
the trial court’s intention to submit only this issue to the jury. (Id. at 9-18, 290-
234, 352); (Jan. 10, 2008 JE, Doc. No. 66).
{¶23} After the trial court received notice of satisfaction of the March 4,
2008 judgment against German Mutual for its breach of the insurance policy, the
trial court held a pre-trial conference regarding German Mutual’s remaining
counter-claim against Senor Gringo’s. (Doc. No. 116). The trial court thereafter
granted the parties time to amend the pleadings and set a schedule for the filing of
motions for summary judgment. (Id.). Under these circumstances, we cannot find
that German Mutual waived its cross-claim by failing to prosecute it at the
February 19, 2008 jury trial when the sole issue at the jury trial was a
determination of the amount of actual damages suffered by the plaintiffs.
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{¶24} We must also reject Senor Gringo’s argument that the trial court
erred in awarding German Mutual summary judgment because the plaintiffs’
assignment was invalid. Senor Gringo never presented this argument to the trial
court and has, therefore, waived this argument on appeal. (Doc. Nos. 118, 120).
See, e.g., Lhamon v. Prater, 3d Dist. No. 1-09-34, 2009-Ohio-5904, ¶17, citing
Janosek v. Janosek, 8th Dist. Nos. 91882, 91914, 2009-Ohio-3882, ¶44. Aside
from that, the trial court awarded summary judgment to German Mutual based
upon the assignment and its right to subrogation. (June 18, 2009 JE, Doc. No.
126). The insurance contract provided, in pertinent part: “Subrogation -- “If ‘we’
pay for a loss under the Property Coverages, ‘we’ may require that ‘you’ assign to
‘us’ any right of recovery against others, up to the amount ‘we’ have paid.”
(German Mutual Ins. Policy, Additional Conditions, Section 8, at pg. 36; Doc. No.
1, attached.). Since the insurance contract provided German Mutual with a right
of subrogation, the trial court’s award of summary judgment in favor of German
Mutual on this basis was not in error.
{¶25} For all these reasons, Gringo’s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. II
SHOULD ASSIGNMENT OF ERROR NUMBER 1 BE FOUND NOT WELL TAKEN BY THIS COURT, THE TRIAL COURT ERRED BY ALLOWING THE JURY TO CONSIDER TWO ITEMS OF DAMAGES AMOUNTING TO $27,436.20, THAT APPELLEE GERMAN MUTUAL INSURANCE COMPANY’S
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PREDECESSORS PLAINTIFFS STEVE AND KIMBERLY BROWN WERE NOT THE REAL PARTIES IN INTEREST. THE COURT’S ERRORS IN RULING ON APPELLANT’S OBJECTIONS ON THIS ISSUE ARE AT PAGES 157-158, AND PAGES 191 AND 192 OF VOLUME I AND II OF THE TRIAL TRANSCRIPT. CONSEQUENTLY, SENOR GRINGO’S, INC. WAS DENIED A FAIR TRIAL.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED BY ALLOWING THE JURY TO CONSIDER APPELLEE GERMAN MUTUAL INSURANCE COMPANY’S PREDECESSORS PLAINTIFFS STEVE BROWN AND KIMBERLY BROWN’S EXHIBIT 24. THIS APPELLANT OBJECTED TO THE ADMISSION OF THAT EXHIBIT, A LISTING OF PLAINTIFFS’ CLAIMED DAMAGES BECAUSE IT LISTED REPLACEMENT COST, RATHER THAN FAIR MARKET VALUE. APPELLANT SENOR GRINGO’S, INC.’S OBJECTION TO THAT EXHIBIT, AND THE TRIAL COURT’S RULING IS ON PAGES 187-188 OF VOLUME I OF THE TRIAL TRANSCRIPT. AGAIN, CONSEQUENTLY, APPELLANT SENOR GRINGO’S, INC. WAS DENIED A FAIR JURY TRIAL.
{¶26} In its second assignment of error, Senor Gringo’s argues that the trial
court erred when it allowed the jury to consider evidence of wages that were owed
to plaintiffs’ store manager, Matt, and evidence of rent owed for storage of the
plaintiffs’ goods. Specifically, Senor Gringo’s argues that since the plaintiffs had
not paid these obligations, they were not the real parties in interest, and the trial
court should not have allowed the evidence. Senor Gringo’s further argues that
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the trial court committed plain error by overruling the motion for a directed
verdict.
{¶27} In its third assignment of error, Senor Gringo’s argues that the trial
court erred by allowing the jury to consider plaintiffs’ exhibit twenty-four (24),
which was a list of the claimed damages plaintiffs suffered. Specifically, Senor
Gringo’s argues that the exhibit listed the replacement costs of the property rather
than fair market value, which is the appropriate measure of damages.
{¶28} “A trial court may grant a motion for a directed verdict if, after
construing the evidence most strongly in favor of the party opposing the motion,
the trial court finds that reasonable minds ‘could come to but one conclusion upon
the evidence submitted and that conclusion is adverse to such party.”’ Hickle v.
Haynes-Albion Corp., 3d Dist. No. 13-06-24, 2007-Ohio-4236, ¶25, quoting Burns
v. Prudential Securities, Inc., 167 Ohio App.3d 809, 2006-Ohio-3550, 857 N.E.2d
621, ¶18, citing Crawford v. Halkovics (1982), 1 Ohio St.3d 184, 185-86, 438
N.E.2d 890; Civ.R. 50(A)(4). When the opposing party has failed to adduce any
evidence on the essential elements of the claim, a directed verdict is appropriate.
Cooper v. Grace Baptist Church (1992), 81 Ohio App.3d 728, 734, 612 N.E.2d
357. The issue to be determined involves a test of the legal sufficiency of the
evidence to allow the case to proceed to the jury and constitutes a question of law.
Burns, 167 Ohio App.3d at 823, citing Hargrove v. Tanner (1990), 66 Ohio
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App.3d 693, 695, 586 N.E.2d 141. As such, this Court reviews a trial court’s
ruling on a motion for directed verdict de novo. Burns, 167 Ohio App.3d at 823,
citing McConnell v. Hunt Sports Ents. (1999), 132 Ohio App.3d 657, 686-87, 725
N.E.2d 1193.
{¶29} “A ‘plain error’ is obvious and prejudicial although neither objected
to nor affirmatively waived which, if permitted, would have a material adverse
affect on the character and public confidence in judicial proceedings.” Schade v.
Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209, 436 N.E.2d 1001. The plain
error doctrine is not favored in civil cases and may be applied only in “the
extremely rare case involving exceptional circumstances where error, to which no
objection was made at the trial court, seriously affects the basic fairness, integrity,
or public reputation of the judicial process, thereby challenging the legitimacy of
the underlying judicial process itself.” Goldfuss v. Davidson (1997), 79 Ohio St.3d
116, 679 N.E.2d 1099, at syllabus.
{¶30} Decisions regarding the admissibility of evidence are within the
sound discretion of the trial court and will not be reversed absent an abuse of
discretion. Hickle, 2007-Ohio-4236, at ¶31, citations omitted. An abuse of
discretion “connotes more than an error of law or judgment; it implies that the
court’s attitude is unreasonable, arbitrary, or unconscionable.” Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. “However, ‘even
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where a trial court abuses its discretion in the admission of evidence,’ a reviewing
court will not reverse unless the error affected a substantial right of the party at
issue.” Hickle, 2007-Ohio-4236, at ¶31, citing State v. Lundgren (1995), 73 Ohio
St.3d 474, 486; Evid.R. 103(A); Civ.R. 61.
{¶31} The testimony at issue in Senor Gringo’s second assignment of error
is the following:
Q: Now this long list of damages you talked about [Plaintiffs’ Ex. 24], * * * I need to ask you about a couple things. You owe an employee named Matt. I’m sorry I didn’t catch his last name. Who’s that? A: Gruenhagen [sic]. Q: Over $3,000. I take it since you owe him that money, you have not paid him that money, correct? A: Correct. Q: So isn’t he the real party in interest or the real party that should be seeking that money from the Defendants or somebody else than you? MR. GOLDBERG: Objection. Calls for a legal conclusion. MR. MOHLER: But you haven’t paid it. THE COURT: Sustained. The jury will disregard. Q: How about the $24,000 that you’ve said you spent $1,000 a day? Have you paid that $24,000 to that storage facility? A: No. Q: So that’s not your loss, is it? MR. GOLDBER: Objection. Calls for a legal conclusion. THE COURT: Overruled. A: Yeah, it’s owed.
(Feb. 19, 2008 Tr. at 157-58). At the close of the plaintiffs’ case, Senor Gringo’s
moved for a partial directed verdict on the basis that the plaintiffs were not the real
parties in interest with respect to the monies owed to the store manager, Matt, and
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the storage facility. (Id. at 191-92). Overruling the motion, the trial court noted
that: “[t]he jury [could] find that that is an indebtedness incurred by these parties
as a result of the claimed loss. The jury could find that that debt is a consequence
suffered by these parties. As far as the credibility of those claims, that’s for the
jury to determine.” (Id. at 192).
{¶32} “A ‘real party in interest’ is ‘one who has a real interest in the
subject matter of the litigation, and not merely an interest in the action itself, i.e.,
one who is directly benefited or injured by the outcome of the case.”’ First Union
Natl. Bank v. Hufford, 146 Ohio App.3d 673, 2001-Ohio-2271, 767 N.E.2d 1206,
¶13, quoting Shealy v. Campbell (1985), 20 Ohio St.3d 23, 24, 485 N.E.2d 701.
“To determine whether the requirement that the action be brought by the real party
in interest is sufficed, courts must look to the substantive law creating the right
being sued upon to see if the action has been instituted by the party possessing the
substantive right to relief.” Campbell, 20 Ohio St.3d at 25. If a party is not a real
party in interest, then the party lacks standing to invoke the jurisdiction of the
court and is not entitled to judgment as a matter of law. Hufford, 2001-Ohio-2271,
at ¶13, citation omitted. Whether established facts confer standing to assert a
claim is a matter of law reviewed de novo. Cuyahoga Cty. Bd. of Commrs. v.
State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶23.
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{¶33} Applying the foregoing rules sub judice, we find no abuse of
discretion in the trial court’s ruling on plaintiffs’ objection. Whether a party is a
real party in interest is a question of law and, as such, is an impermissible question
for a lay witness. Woods v. Capital Univ., 10th Dist. No. 09AP-166, 2009-Ohio-
5672, ¶71; Associated Estates Realty Corp. v. Samsa, 8th Dist. No. 84297, 2004-
Ohio-6635, ¶20, citing Byrley v. Nationwide Life Ins. Co. (1994), 94 Ohio App.3d
1, 640 N.E.2d 187; Deck v. Wellston City Schs. (Mar. 10, 1997), 4th Dist. No. 96
CA 788. Therefore, the trial court’s ruling on plaintiffs’ objection was correct.
{¶34} Furthermore, the trial court did not commit plain error by overruling
Senor Gringo’s motion for a partial directed verdict. Plaintiffs’ action stemmed
from damages it sustained from Senor Gringo’s tortious conduct; to wit: smoke
damage it sustained from a fire at Senor Gringo’s. As such, plaintiffs had more
than a mere interest in the action itself; but instead, plaintiffs would be directly
affected by the outcome of the case. Hufford, 2001-Ohio-2271, at ¶13, quoting
Campbell, 20 Ohio St.3d at 24. Furthermore, plaintiffs had a substantive right to
all those damages which were proximately caused by Senor Gringo’s tortious
conduct. Campbell, 20 Ohio St.3d at 24. Steve Brown testified that the storage
unit in which he stored products and store fixtures following the fire cost
$24,000.00 from March 1, 2006 to the day of the trial, which was
$1,000.00/month. (Feb. 19, 2009 Tr. at 133-34). Brown further testified that he
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signed a contract to pay John Sindel for the storage, and he intended on paying
Sindel once the litigation was over. (Id. at 181). Brown also testified that he owed
their store manager, Matt, $3,500.00 for wages earned immediately following the
fire that were paid to retain their employees per German Mutual’s instruction. (Id.
at 177-78, 180). Accordingly, the trier of fact could have reasonably determined
that these liabilities were proximately caused damages from the fire at Senor
Gringo’s. Under these circumstances, we cannot conclude that the trial court’s
ruling “seriously affect[ed] the basic fairness, integrity, or public reputation of the
judicial process, thereby challenging the legitimacy of the underlying judicial
process itself.” Davidson, 79 Ohio St.3d 116, at syllabus. Therefore, we cannot
find that the trial court committed plain error by allowing the jury to consider the
aforementioned liabilities for purposes of its damages calculation.
{¶35} Senor Gringo’s second assignment of error lacks merit.
{¶36} Senor Gringo’s next argues that the trial court erred by admitting
plaintiff’s exhibit twenty-four (24) as it reflected the replacement value of the
property damaged, not fair market value as allowed under Ohio law. The rules
respecting the measure of damages for injury to personal property and the relevant
evidence thereto have been aptly stated as follows:
In Ohio the general rule is that the measure of damages for injury to personal property is the difference in market value of the property immediately before and immediately after the
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injury. Where the property is totally destroyed, the measure of damages is the reasonable market value of the property immediately before its destruction. However, “[w]hen market value cannot be feasibly obtained, a more elastic standard is resorted to, sometimes called the standard of value to the owner.” Bishop v. East Ohio Gas Co. (1944), 143 Ohio St. 541, 546, 28 O.O. 470, 472, 56 N.E.2d 164, 166. This value is determined via consideration of a number of factors including value to the owner, original cost, replacement cost, salvage value, if any, and fair market value at the time of loss. See Employers’ Fire Ins. Co. v. United Parcel Service (1950), 89 Ohio App. 447, 450, 45 O.O. 475, 477, 99 N.E.2d 794, 796-797. In determining this value, a court may consider the owner’s opinion “* * * which will be some evidence of the actual value, though not conclusive.” Shimola v. Nationwide Ins. Co. (1986), 25 Ohio St.3d 84, 86-87, 25 OBR 136, 138, 495 N.W.2d 391, 393, citing Bishop, supra, 143 Ohio St. at 546, 28 O.O. at 472, 56 N.E.2d at 166.
Cooper v. Feeney (1986), 34 Ohio App.3d 282, 283-84, 518 N.E.2d 46.
{¶37} Brown testified that he determined the values of the damaged
property listed in plaintiffs’ exhibit twenty-four (24) “by receipts of the actual
purchase price or a[n] estimated replacement cost or by looking on the internet and
finding a comparable item.” (Feb. 19, 2008 Tr. at 125). Plaintiff’s exhibit twenty-
four (24) also stated plaintiffs’ damages in terms of “replacement cost.”
(Plaintiffs’ Ex. 24). Although replacement costs are not the proper measure of
damages for personal property loss under Ohio law, the trial court admitted
plaintiffs’ exhibit twenty-four (24) finding that: “while [replacement costs] is not
the measure of damages, that does not necessarily mean it is inadmissible as
evidence so that may have relevance to the determination of fair market value,
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which is the proper measure of damages * * *.” (Id. at 188); Cooper, 34 Ohio
App.3d at 283. The trial court also specifically instructed the jury that:
* * *you will determine an amount of money that will reasonably compensate Plaintiffs for the loss * * * or damage to personal property. The measure of damage which you will apply is the difference in the fair market value of their property immediately before and immediately after the incident. The measure of damages is not replacement of personal property with new or better property but must be based upon the fair market value of the property immediately before the incident. Evidence of cost of replacement with new property may be considered by you together with all the evidence to the extent that you find it relevant to the fair market value of the property immediately before and after the incident.
(Id. at 341-42). Additionally, we note that the plaintiffs sought $126,603.27 in
personal property damages, plus damages of $20,000/year for twenty to twenty-
five (20-25) years for the lost profits, but the jury only awarded $105,263.50 in
damages, which tends to indicate that the jury did not award replacement costs of
the damaged property. (Id. at 299-300); (Doc. No. 83). Furthermore, we note that
plaintiffs’ exhibit twenty-four (24) also provided the age of many of the damaged
personal property items. (Plaintiffs’ Ex. 24). This evidence, then, would have
aided the jury in determining the fair market values of the personal property.
Since the trial court admitted the exhibit for purposes of determining fair market
value as permitted by law, we cannot conclude that the trial court abused its
discretion by admitting the exhibit for this purpose.
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{¶38} For all the aforementioned reasons, Senor Gringo’s second and third
assignments of error are overruled.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED BY DENYING APPELLANT SENOR GRINGO’S, INC.’S MOTION FOR JNOV; OR IN THE ALTERNATIVE, FOR A NEW TRIAL FILED ON MARCH 18, 2008. THE TRIAL COURT DID SO WITH ITS JUDGMENT ENTRY FILED ON MAY 8, 2008.
{¶39} In its fourth assignment of error, Senor Gringo’s argues that the trial
court erred by denying its motion for judgment notwithstanding the verdict
(JNOV) or motion for new trial. In support of this argument, Senor Gringo’s
again argues that the trial court should have reduced the damages by $27,036.20,
those monies owed to the plaintiffs’ employee Matt for wages and John Sindel for
two years of storage. Senor Gringo’s also argues that the trial court should not
have allowed the jury to consider evidence that the plaintiffs’ lost $6,427.80 in
boarding due to storing the store goods in their pole barn for 60 days. Senor
Gringo’s further points out that plaintiffs’ claimed loss of $2,832 for a credit card
machine should not have been presented before the jury since plaintiffs did not
own the machine. Finally, Senor Gringo’s argues that the trial court committed
plain error by directing a verdict on the issue of proximate cause in its jury
instructions.
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{¶40} “The standard of review for a ruling on a motion for judgment
notwithstanding the verdict is the same one applicable to a motion for directed
verdict.” Burns, 167 Ohio App.3d at 823, citing Posin v. A.B.C. Motor Court
Hotel (1976), 45 Ohio St.2d 271, 275, 344 N.E.2d 334.
{¶41} Civ.R. 59(A) provides several grounds for which a trial court may
grant a new trial, including the following grounds applicable to this appeal:
(1) Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial; *** (4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice;
(5) Error in the amount of recovery, whether too large or too small, when the action is upon a contract or for the injury or detention of property;
(6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case;
(7) The judgment is contrary to law; * * *
(9) Error of law occurring at the trial and brought to the attention of the trial court by the party making the application.
A trial court’s decision of whether to grant a motion for a new trial premised upon
Civ.R. 59(A)(1), (4), (5), or (6) is reviewed for an abuse of discretion. Harris v.
Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio-5587, 876 N.E.2d 1201,
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¶¶35-36; Lewis v. Nease, 4th Dist. No. 05CA3025, 2006-Ohio-4362, ¶73;
McDonald v. McDonald (Aug. 27, 1998), 4th Dist. No. 96CA912, at *5-6; Ward v.
Geiger, 3d Dist. No. 14-05-14, 2006-Ohio-6853, ¶56; Wendell v. Hightower (Dec.
24, 2001), 3d Dist. No. 15-01-08, at *2.
{¶42} A trial court’s ruling on a motion for a new trial premised upon
Civ.R. 59(A)(7) and (9), however, present questions of law reviewed de novo.
Lewis, 2006-Ohio-4362, at ¶76; O'Day v. Webb (1972), 29 Ohio St.2d 215, 280
N.E.2d 896; Ferguson v. Dyer (2002), 149 Ohio App.3d 380, 383, 777 N.E.2d
850, 852, citing Rohde v. Farmer (1970), 23 Ohio St.2d 82, 262 N.E.2d 685,
paragraph two of the syllabus. A trial court, however, may only grant a new trial
pursuant to Civ.R. 59(A)(9) if the challenged action was both legally erroneous
and prejudicial. Sinea v. Denman Tire Corp. (1996), 135 Ohio App.3d 44, 65, 732
N.E.2d 1033; Sanders v. Mt. Sinai Hosp. (1985), 21 Ohio App.3d 249, 252, 487
N.E.2d 588.
{¶43} We have already rejected Senor Gringo’s arguments respecting the
trial court’s admission of evidence related to the storage costs and wages owed to
the plaintiffs’ store manager. Since the jury could reasonably conclude that these
damages were proximately caused by Senor Gringo’s tortious conduct, we find no
error with the trial court’s ruling on Senor Gringo’s motion for JNOV or a new
trial upon these grounds. With respect to the $6,427.80 in damages, Brown
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testified that this money was spent on food and bedding costs for the animals and
fish he stored at his storage building for sixty (60) days. (Feb. 19, 2008 Tr. at 117-
18). Brown testified that the $2,832.00 in damages represented the cost of a
“credit card machine with keypad,” which amount he “based on a forty-eight
month lease of the equipment at $59 a month.” (Id. at 130). Senor Gringo’s never
raised an objection at trial as to these damages; rather, it raised these concerns for
the first time in its motion. (Feb. 19, 2008 Tr. at 117-20, 130); (Doc. No. 106).
Furthermore, Senor Gringo’s had an opportunity to present evidence
demonstrating that plaintiffs’ were not damaged to the extent they alleged at trial,
but did not question Brown about these damages. (Feb. 19, 2008 Tr. at 137-72).
Based upon the evidence presented, the jury could have reasonably concluded that
the plaintiffs’ suffered damages in these amounts; and therefore, we cannot
conclude that the trial court erred by denying plaintiffs’ motion on these grounds.
{¶44} Senor Gringo’s also argues that the trial court committed plain error
by directing a verdict in favor of the plaintiffs on the issue of proximate cause in
its jury instructions; and therefore, the trial court erred when it denied its motion
for JNOV or a new trial. We disagree.
{¶45} “A trial court has discretion in determining the precise language to
include in its instructions to the jury.” Ward v. Geiger, 3d Dist. No. 14-05-14,
2006-Ohio-6853, ¶36, citing Cabe v. Lunich (1994), 70 Ohio St.3d 598, 602, 640
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N.E.2d 159. However, it is the trial court’s duty to include in its instructions a
correct, clear, and complete statement of the law. Ward, 2006-Ohio-6835, at ¶36,
citations omitted. “Ambiguity in jury instructions does not constitute reversible
error unless the jury was probably misled ‘in a matter materially affecting the
complaining party’s substantial rights.”’ Id., citing Becker v. Lake Cty. Mem.
Hosp. W. (1990), 53 Ohio St.3d 202, 208, 560 N.E.2d 165.
{¶46} The plain error doctrine is not favored in civil cases and may be
applied only in “the extremely rare case involving exceptional circumstances
where error, to which no objection was made at the trial court, seriously affects the
basic fairness, integrity, or public reputation of the judicial process, thereby
challenging the legitimacy of the underlying judicial process itself.” Davidson, 79
Ohio St.3d 116, at syllabus.
{¶47} When it instructed the jury, the trial court stated, in pertinent part:
* * * it has been determined that the Defendants, German Mutual Insurance Company and Senor Gringo’s, Inc., are responsible for the consequences of the incident which is the subject of this lawsuit. Your duty now solely is to determine the amount of damages to the Plaintiffs * * * proximately caused by the incident. *** You have previously been instructed that it has been determined that Defendant’s are responsible for the subject incident. The Defendants are responsible for those damages which were proximately caused by the incident. ***
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As mentioned, the responsibility of Defendants is no longer in dispute in this cause. The issues to be decided by you, the jury, are what sums of money will fairly and reasonably compensate the Plaintiffs for the damages, if any, proximately caused by this incident.
(Feb. 19, 2008 Tr. at 335, 340-41) (emphasis added). Senor Gringo’s objected to
this jury instruction on the basis that the jury should “* * * first determine that
there was a proximate cause of the damage in the interrogatories and then if they
did not, a verdict for Defendant, Senor Gringo’s. If they did, a verdict for the
Plaintiffs.” (Id. at 352). The trial court overruled the objection, noting that:
* * * the jury has been told that they are to return a verdict for those damages proximately caused and they were correctly instructed on the law of proximate cause so it’s effectively in there and I, obviously, had advised counsel prior to instructing the jury that it was my intention to do so in this fashion.
{¶48} After reading the jury instructions in their entirety, we are not
persuaded that the trial court committed plain error. The trial court properly
instructed the jury on proximate causation and allowed for the fact that the jury
might conclude that the measure of damages proximately caused was zero dollars.
Furthermore, after reading the entire record herein, we conclude that the jury
instructions accurately represent Senor Gringo’s position that it was responsible
only for those damages that were proximately caused by the fire. Under these
circumstances, we are not persuaded that the trial court committed plain error.
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{¶49} Furthermore, we are hesitant to find error, especially plain error,
with the trial court’s ruling on Senor Gringo’s motion since Senor Gringo’s has
provided no transcript of the motion hearing in the record. Senor Gringo’s filed a
motion for JNOV or, alternatively, a new trial on March 18, 2008. (Doc. No. 87).
On April 15, 2008, the trial court held a hearing on the motion wherein it ruled on
the motion and instructed Attorney Edward T. Moehler to submit a proposed
judgment entry. (Doc. No. 100). On May 8, 2008, the trial court filed its entry
overruling the motion for JNOV or, alternatively, a new trial. (Doc. No. 106). The
appellant is responsible for obtaining and timely delivering to the trial court clerk
a complete transcript of the proceedings. App.R. 9(B) and Loc.R. 5(A). While the
judgment entry reflects the trial court’s ultimate ruling on the motions, it does not
reflect the trial court’s reason(s) for denying the motion. (Doc. No. 106). Without
knowing the trial court’s reason(s) for denying the motions, we are unable to
determine if the trial court erred. McNeil v. Kingsley, 178 Ohio App.3d 674, 2008-
Ohio-5536, 899 N.E.2d 1054, ¶39. Without a transcript, we must presume
regularity of the proceedings and that the trial court acted properly by denying
Senor Gringo’s motions. Id., citing Lawless v. Kinsey (Sept. 8, 1997), 3d Dist. No.
6-97-11, at *2, citing Chaney v. East (1994), 97 Ohio App.3d 431, 435, 646
N.E.2d 1138; Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313, 314, 549
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N.E.2d 1237, citing Meinhard Commercial Corp. v. Spoke and Wheel, Inc. (1977),
52 Ohio App.2d 198, 201-02, 368 N.E.2d 1275.
{¶50} For all these reasons, Senor Gringo’s fourth assignment of error is
overruled.
ASSIGNMENT OF ERROR NO. V
THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶51} In its fifth and final assignment of error, Senor Gringo’s argues that
the jury’s verdict was against the manifest weight of the evidence. Specifically,
Senor Gringo’s argues that the plaintiffs produced no evidence that he owned his
inventory at the time of the jury trial or that he had an agreement to pay $24,000
for storage fees. Further, Senor Gringo’s argues that the jury was allowed to hear
evidence about the plaintiffs’ continued payment of salaries, payroll, and boarding
of animals and fish at their home even though these decisions were not financially
proper. Finally, Senor Gringo’s argues that the jury was also inappropriately
permitted to hear evidence about the plaintiffs’ net income through March 30,
2006, a full month after they were ordered to vacate the mall premises.
{¶52} ‘“[J]udgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing
court as being against the manifest weight of the evidence.”’ Knipp v. Sadler, 3d
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Dist. No. 6-09-04, 2009-Ohio-4444, ¶7, quoting In C.E. Morris Co. v. Foley
Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, at syllabus. See, also,
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶24.
{¶53} Senor Gringo’s arguments lack merit. To begin with, Senor
Gringo’s argument respecting the evidence of plaintiffs’ net income goes to the
admissibility of the evidence, not whether the jury’s verdict was against the
manifest weight of the evidence. As such, we decline to address this argument.
App.R. 16(A); App.R. 12(A)(2). Next, although Sharon Filas, a C.P.A., testified
that plaintiffs’ balance sheet “shows that they were in a really difficult financial
situation,” she did not testify that plaintiffs’ continued payment of salary, payroll,
and boarding costs were financially unsound decisions as Senor Gringo’s argues.
(Feb. 19, 2008 Tr. at 215). Senor Gringo’s has not provided this Court with any
transcript citation for this bald assertion, and, as such, we decline to address it
further. App.R. 16(A)(7), (D); App.R. 12(A)(2); Loc.R. 7(C), (F). Finally, we
must reject Senor Gringo’s argument that the plaintiffs failed to produce evidence
that they were obligated to pay $24,000 for storage as the record belies that
assertion as well. (Feb. 19, 2008 Tr. at 157-59). Overall, Senor Gringo’s
arguments lack substantive merit and, furthermore, lack any citation to the record
or meaningful citation to legal authority in support thereof. As such, we need not
address them. App.R. 16(A)(7); App.R. 12(A)(2); Loc. R. 7(C), (F). Additionally,
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upon our independent review of the transcript we cannot conclude that the jury’s
verdict is against the manifest weight of the evidence.
{¶54} For all these reasons, Senor Gringo’s fifth assignment of error is
{¶55} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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