Frazier v. Swierkos

915 N.E.2d 724, 183 Ohio App. 3d 77
CourtOhio Court of Appeals
DecidedJune 30, 2009
DocketNo. 08 BE 8
StatusPublished
Cited by4 cases

This text of 915 N.E.2d 724 (Frazier v. Swierkos) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frazier v. Swierkos, 915 N.E.2d 724, 183 Ohio App. 3d 77 (Ohio Ct. App. 2009).

Opinion

Waite, Judge.

{¶ 1} Appellant, Robert Frazier, was awarded a monetary judgment in Belmont County Court of Common Pleas in a personal-injury case but filed a motion seeking a new trial because he believed that the jury award was inadequate. The basis for the motion was that the jury could not have found liability for his medical bills without also including an additional amount for pain and suffering. The trial court overruled the motion, and the matter is now on appeal. There is a presumption that the trial court acted correctly unless the record proves otherwise, and the record as submitted does not overcome that presumption. The jury awarded a general verdict in excess of appellant’s medical bills, and we must presume that the excess was to compensate appellant for pain and suffering. The judgment of the trial court is affirmed.

{¶ 2} On the night of July 18, 2008, appellant was driving a Ford Aerostar van on Interstate 470 in Belmont County when he was hit head on by a car driven by appellee Scott Swierkos. The other occupants of appellant’s vehicle were Tamara Bruce and Loretta Becker. Appellee was intoxicated at the time of the accident. Appellant had also been drinking earlier in the evening. Appellant was taken to a nearby hospital with injuries to his head, neck, and back. He was treated over the next few months by a chiropractic doctor, William Grubbs, D.C.

{¶ 3} On July 15, 2005, appellant filed a personal-injury lawsuit against both appellee and Glenn Swierkos, the owner of the Pontiac Sunfire that Scott had been driving.

{¶ 4} The case went to jury trial from October 24, 2007, through November 2, 2007. Only a partial transcript has been prepared for this appeal. The tran[79]*79script includes some of the testimony of Dr. Grubbs. The transcript also includes the testimony of appellant.

{¶ 5} The jury found that appellee recklessly caused appellant’s injuries. The jury also found that appellant was not entitled to punitive damages. The jury, in a general verdict, awarded appellant $5,000. The court entered the verdict on November 2, 2007. Appellant filed a motion for a new trial on November 16, 2007. A hearing on the motion was held on March 10, 2008. The court overruled the motion on March 27, 2008. Appellant filed this timely appeal on April 24, 2008.

{¶ 6} Appellant’s sole assignment of error states:

{¶ 7} “The Trial Court erred in denying Appellant’s Motion for a new trial as the jury’s verdict was inconsistent and against the manifest weight of the evidence presented.”

{¶ 8} In this appeal, appellant is challenging whether the trial court erred in failing to grant a Civ.R. 59(A) motion for new trial. The purpose of Civ.R. 59(A) is to empower the trial court to prevent a miscarriage of justice. Malone v. Courtyard by Marriott L.P. (1996), 74 Ohio St.3d 440, 448, 659 N.E.2d 1242. “Civ.R. 59 allows, rather than mandates, a trial court to grant a new trial * * Sims v. Dibler, 7th Dist. No. 05 JE 53, 172 Ohio App.3d 486, 2007-Ohio-3035, 875 N.E.2d 965, ¶ 31, citing Eagle Am. Ins. Co. v. Frencho (1996), 111 Ohio App.3d 213, 218, 675 N.E.2d 1312.

{¶ 9} Civ. R. 59(A) states:

{¶ 10} “A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:

{¶ 11} “(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;

{¶ 12} “(2) Misconduct of the jury or prevailing party;

{¶ 13} “(3) Accident or surprise which ordinary prudence could not have guarded against;

{¶ 14} “(4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice;

{¶ 15} “(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;

{¶ 16} “(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;

[80]*80{¶ 17} “(7) The judgment is contrary to law;

{¶ 18} “(8) Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at trial;

{¶ 19} “(9) Error of law occurring at the trial and brought to the attention of the trial court by the party making the application;

{¶ 20} “In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown.” (Emphasis added.)

{¶ 21} A court of appeals must affirm the discretionary decision of a trial court to deny a new trial unless there is an abuse of discretion. Jones v. Booker (1996), 114 Ohio App.3d 67, 682 N.E.2d 1023. An abuse of discretion implies a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. Furthermore, when a trial court’s decision on a motion for a new trial involves a question of fact, a reviewing court must view the evidence in a light favorable to the trial court’s decision. Osler v. Lorain (1986), 28 Ohio St.3d 345, 351, 28 OBR 410, 504 N.E.2d 19, citing Jenkins v. Krieger (1981), 67 Ohio St.2d 314, 320, 21 O.O.3d 198, 423 N.E.2d 856.

{¶ 22} Appellant argues that a new trial should have been granted because the jury award was insufficient and inconsistent. Appellant is correct that a new trial may be granted due to an award of inadequate damages. Civ.R. 59(A)(4). A new trial may also be granted if the jury award is against the manifest weight of the evidence. Civ.R. 59(A)(6). “[I]n order to set aside a damage award as inadequate and against the manifest weight of the evidence, a reviewing court must determine that the verdict is so gross as to shock the sense of justice and fairness, cannot be reconciled with the undisputed evidence in the case, or is the result of an apparent failure by the jury to include all the items of damage making up the plaintiffs claim.” (Emphasis omitted.) Bailey v. Allberry (1993), 88 Ohio App.3d 432, 435, 624 N.E.2d 279.

{¶ 23} Appellant submitted medical bills of $3,424.51. The jury award was $5,000. Thus, appellant appears to be arguing that the difference, which is approximately $1,575, is inadequate as a matter of law to compensate him for his noneconomic damages.

{¶ 24} Appellant relies on five cases, including one from this court, that involved jury awards of damages equal to the submitted medical bills but that did not include any additional amounts for pain and suffering, mental distress, or other intangible and noneconomic injuries. In

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jawary v. Underwood
2020 Ohio 1272 (Ohio Court of Appeals, 2020)
AM & JV, L.L.C. v. MyFlori, L.L.C.
2018 Ohio 600 (Ohio Court of Appeals, 2018)
AM & JV, LLC v. MyFlori, LLC
107 N.E.3d 125 (Court of Appeals of Ohio, Tenth District, Franklin County, 2018)
Downie v. Montgomery
2013 Ohio 5552 (Ohio Court of Appeals, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
915 N.E.2d 724, 183 Ohio App. 3d 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frazier-v-swierkos-ohioctapp-2009.