[Cite as Hirshell v. Fertgus, 2012-Ohio-1705.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
RUSSELL HIRSHELL, et al. JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiffs-Appellants Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 2011 CA 00199 ALLEN B. FERTGUS
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2010 CV 03618
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 16, 2012
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
ERIKA KLIE KOLENICH ROBERT B. DAANE KLIE LAW OFFICES DAY KETTERER LTD Route 4 Box 529 200 Market Avenue North Buckhannon, WV Suite 300 Millennium Centre Canton, Ohio 44702 Stark County, Case No. 2011 CA 00199 2
Wise, J.
{¶1} Appellant Russell Hirshell appeals from the August 4, 2011, decision
entered in the Stark County Common Pleas Court following a jury trial for personal
injuries and the trial court’s subsequent denial of his motion for directed verdict.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 1, 2010, Russell Hirshell, Barbara Hoffman, and Sean
Hoffman filed a civil Complaint against Allen Fertgus for personal injuries and property
damage arising from the motor vehicle accident.
{¶3} The Complaint alleged that on October 2, 2008, Russell Hirshell sustained
personal injuries and that the vehicle owned by Barbara Hoffman sustained property
damage when Allen Fertgus failed to stop and rear-ended Hoffman’s vehicle.
{¶4} Allen Fertgus filed his Answer, which included various defenses, including
comparative negligence and sudden emergency.
{¶5} Both parties filed motions in limine concerning various issues upon which
the trial court heard oral arguments in open court.
{¶6} The matter proceeded to trial on Tuesday, July 26, 2011.
{¶7} A verdict was returned on Friday, July 29, 2011 in the amount of
$4,246.88 in favor of Russell Hirshell, together with a finding that he was 25%
comparatively negligent, which reduced the verdict to $3,185.16.
{¶8} The jury also returned a verdict in favor of Barbara Hoffman for her
property damage in the amount of $4,000.00, and $210.00 in storage fees.
{¶9} The jury verdict was reduced to a final judgment entry, which was filed on
August 4, 2011. Stark County, Case No. 2011 CA 00199 3
{¶10} Subsequently, Appellant Hirshell filed post-trial motions for a new trial, or,
in the alternative, a motion for judgment notwithstanding the verdict.
{¶11} By Judgment Entry filed September 2, 2011, the trial court denied the
motion for a new trial, and/or judgment notwithstanding the verdict. The trial court found
that there existed substantial, competent and credible evidence to support the jury's
verdict in the case, and that the Appellant Hirshell had a substantial history of pre-
existing conditions, which could have been the cause of his pain and suffering.
{¶12} Appellant Russell Hirshell now appeals, assigning the following errors for
review:
ASSIGNMENTS OF ERROR
{¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
PLAINTIFF’S MOTION IN LIMINE AND ADMITTING TESTIMONY AND EVIDENCE
REGARDING UNRELATED MEDICAL CONDITIONS.
{¶14} “II. THE TRIAL COURT ERRED IN DENYING THE PLAINTIFFS’ [SIC]
MOTION FOR DIRECTED VERDICT.
{¶15} “III. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION
FOR JUDGMENT NOTHWITHSTANDING THE VERDICT AND MOTION FOR NEW
TRIAL.”
I.
{¶16} In Appellant’s first Assignment of Error, Appellant argues that the trial
court should have granted his motion in limine and further erred in admitting testimony
and evidence regarding unrelated medical conditions. Stark County, Case No. 2011 CA 00199 4
{¶17} “[A] decision on a motion in limine is a pretrial, preliminary, anticipatory
ruling on the admissibility of evidence. A ruling on a motion in limine is interlocutory,
usually dealing with the potential admissibility of evidence at trial. It therefore cannot
serve as the basis for an assignment of error on appeal.” State v. Grubb (1986), 28
Ohio St.3d 199, 201-202, 503 N.E.2d 142.
{¶18} A ruling on a motion in limine reflects the court's “anticipatory treatment of
the evidentiary issue. In virtually all circumstances finality does not attach when the
motion is granted. Therefore, should circumstances subsequently develop at trial, the
trial court is certainly at liberty ‘to consider the admissibility of the disputed evidence in
its actual context.’ ” Grubb, 28 Ohio St.3d at 201-202, 503 N.E.2d 142, quoting State v.
White (1982), 6 Ohio App.3d 1, 4, 451 N.E.2d 533.
{¶19} For those reasons, a motion in limine does not preserve for purposes of
appeal any error in the disposition of the motion in limine. “ ‘An appellate court need not
review the propriety of such an order unless the claimed error is preserved by a timely
objection when the issue is actually reached during the trial.’ ” Grubb, 28 Ohio St.3d at
203, 503 N.E.2d 142, quoting State v. Leslie (1984), 14 Ohio App.3d 343, 344, 471
N.E.2d 503.
{¶20} The failure to object at trial to the allegedly inadmissible evidence
constitutes a waiver of the challenge. State v. Wilson (1982), 8 Ohio App.3d 216, 456
N.E.2d 1287.
{¶21} In the case sub judice, we note that Appellant has failed to ensure that
the record on appeal contains a transcript of the trial regarding this motion in limine. Stark County, Case No. 2011 CA 00199 5
{¶22} “The duty to provide a transcript for appellant review falls upon the
appellant. This is necessarily so because an appellant bears the burden of showing
reference to matters in the record. * * * When portions of the transcript necessary for
resolution of assigned errors are omitted from the record, the reviewing court has
nothing to pass upon and thus, * * * has no choice but to presume the validity of the
lower court's proceedings * * *. Knapp v. Laboratories (1980), 61 Ohio St.2d 197, 199,
400 N.E.2d 384. Where a transcript of proceedings in the trial court is necessary to
exemplify the facts which determined the issues presented there, its absence requires a
reviewing court to either dismiss the appeal or affirm the judgment of the court from
which the appeal is taken. State v. Render (1975), 43 Ohio St.2d 17, 330 N.E.2d 690,
paragraph two of the syllabus.
{¶23} Without a transcript, this Court has no evidence that Appellant objected to
the admission of testimony and/or evidence regarding unrelated medical conditions at
the appropriate time during the trial. Appellant has waived any error caused by the
admission of such testimony or evidence.
{¶24} Appellant’s first Assignment of Error is overruled.
II., III.
{¶25} Appellant, in his second and third Assignments of Error, argues that the
trial court erred in not granting his motion for a directed verdict, motion for judgment
notwithstanding the verdict and motion for new trial. We disagree.
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[Cite as Hirshell v. Fertgus, 2012-Ohio-1705.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
RUSSELL HIRSHELL, et al. JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiffs-Appellants Hon. John W. Wise, J. Hon. Julie A. Edwards, J. -vs- Case No. 2011 CA 00199 ALLEN B. FERTGUS
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2010 CV 03618
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 16, 2012
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
ERIKA KLIE KOLENICH ROBERT B. DAANE KLIE LAW OFFICES DAY KETTERER LTD Route 4 Box 529 200 Market Avenue North Buckhannon, WV Suite 300 Millennium Centre Canton, Ohio 44702 Stark County, Case No. 2011 CA 00199 2
Wise, J.
{¶1} Appellant Russell Hirshell appeals from the August 4, 2011, decision
entered in the Stark County Common Pleas Court following a jury trial for personal
injuries and the trial court’s subsequent denial of his motion for directed verdict.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 1, 2010, Russell Hirshell, Barbara Hoffman, and Sean
Hoffman filed a civil Complaint against Allen Fertgus for personal injuries and property
damage arising from the motor vehicle accident.
{¶3} The Complaint alleged that on October 2, 2008, Russell Hirshell sustained
personal injuries and that the vehicle owned by Barbara Hoffman sustained property
damage when Allen Fertgus failed to stop and rear-ended Hoffman’s vehicle.
{¶4} Allen Fertgus filed his Answer, which included various defenses, including
comparative negligence and sudden emergency.
{¶5} Both parties filed motions in limine concerning various issues upon which
the trial court heard oral arguments in open court.
{¶6} The matter proceeded to trial on Tuesday, July 26, 2011.
{¶7} A verdict was returned on Friday, July 29, 2011 in the amount of
$4,246.88 in favor of Russell Hirshell, together with a finding that he was 25%
comparatively negligent, which reduced the verdict to $3,185.16.
{¶8} The jury also returned a verdict in favor of Barbara Hoffman for her
property damage in the amount of $4,000.00, and $210.00 in storage fees.
{¶9} The jury verdict was reduced to a final judgment entry, which was filed on
August 4, 2011. Stark County, Case No. 2011 CA 00199 3
{¶10} Subsequently, Appellant Hirshell filed post-trial motions for a new trial, or,
in the alternative, a motion for judgment notwithstanding the verdict.
{¶11} By Judgment Entry filed September 2, 2011, the trial court denied the
motion for a new trial, and/or judgment notwithstanding the verdict. The trial court found
that there existed substantial, competent and credible evidence to support the jury's
verdict in the case, and that the Appellant Hirshell had a substantial history of pre-
existing conditions, which could have been the cause of his pain and suffering.
{¶12} Appellant Russell Hirshell now appeals, assigning the following errors for
review:
ASSIGNMENTS OF ERROR
{¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
PLAINTIFF’S MOTION IN LIMINE AND ADMITTING TESTIMONY AND EVIDENCE
REGARDING UNRELATED MEDICAL CONDITIONS.
{¶14} “II. THE TRIAL COURT ERRED IN DENYING THE PLAINTIFFS’ [SIC]
MOTION FOR DIRECTED VERDICT.
{¶15} “III. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION
FOR JUDGMENT NOTHWITHSTANDING THE VERDICT AND MOTION FOR NEW
TRIAL.”
I.
{¶16} In Appellant’s first Assignment of Error, Appellant argues that the trial
court should have granted his motion in limine and further erred in admitting testimony
and evidence regarding unrelated medical conditions. Stark County, Case No. 2011 CA 00199 4
{¶17} “[A] decision on a motion in limine is a pretrial, preliminary, anticipatory
ruling on the admissibility of evidence. A ruling on a motion in limine is interlocutory,
usually dealing with the potential admissibility of evidence at trial. It therefore cannot
serve as the basis for an assignment of error on appeal.” State v. Grubb (1986), 28
Ohio St.3d 199, 201-202, 503 N.E.2d 142.
{¶18} A ruling on a motion in limine reflects the court's “anticipatory treatment of
the evidentiary issue. In virtually all circumstances finality does not attach when the
motion is granted. Therefore, should circumstances subsequently develop at trial, the
trial court is certainly at liberty ‘to consider the admissibility of the disputed evidence in
its actual context.’ ” Grubb, 28 Ohio St.3d at 201-202, 503 N.E.2d 142, quoting State v.
White (1982), 6 Ohio App.3d 1, 4, 451 N.E.2d 533.
{¶19} For those reasons, a motion in limine does not preserve for purposes of
appeal any error in the disposition of the motion in limine. “ ‘An appellate court need not
review the propriety of such an order unless the claimed error is preserved by a timely
objection when the issue is actually reached during the trial.’ ” Grubb, 28 Ohio St.3d at
203, 503 N.E.2d 142, quoting State v. Leslie (1984), 14 Ohio App.3d 343, 344, 471
N.E.2d 503.
{¶20} The failure to object at trial to the allegedly inadmissible evidence
constitutes a waiver of the challenge. State v. Wilson (1982), 8 Ohio App.3d 216, 456
N.E.2d 1287.
{¶21} In the case sub judice, we note that Appellant has failed to ensure that
the record on appeal contains a transcript of the trial regarding this motion in limine. Stark County, Case No. 2011 CA 00199 5
{¶22} “The duty to provide a transcript for appellant review falls upon the
appellant. This is necessarily so because an appellant bears the burden of showing
reference to matters in the record. * * * When portions of the transcript necessary for
resolution of assigned errors are omitted from the record, the reviewing court has
nothing to pass upon and thus, * * * has no choice but to presume the validity of the
lower court's proceedings * * *. Knapp v. Laboratories (1980), 61 Ohio St.2d 197, 199,
400 N.E.2d 384. Where a transcript of proceedings in the trial court is necessary to
exemplify the facts which determined the issues presented there, its absence requires a
reviewing court to either dismiss the appeal or affirm the judgment of the court from
which the appeal is taken. State v. Render (1975), 43 Ohio St.2d 17, 330 N.E.2d 690,
paragraph two of the syllabus.
{¶23} Without a transcript, this Court has no evidence that Appellant objected to
the admission of testimony and/or evidence regarding unrelated medical conditions at
the appropriate time during the trial. Appellant has waived any error caused by the
admission of such testimony or evidence.
{¶24} Appellant’s first Assignment of Error is overruled.
II., III.
{¶25} Appellant, in his second and third Assignments of Error, argues that the
trial court erred in not granting his motion for a directed verdict, motion for judgment
notwithstanding the verdict and motion for new trial. We disagree.
{¶26} 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 a directed verdict pursuant to Civ.R. 50(A). Texler v. D.O. Stark County, Case No. 2011 CA 00199 6
Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679, 693 N.E.2d 271,
1998-Ohio-602. Thus, JNOV is proper if, upon viewing the evidence in a light most
favorable to the nonmoving party and presuming any doubt to favor the nonmoving
party, reasonable minds could come to but one conclusion, that being in favor of the
moving party. Wagoner v. Obert, 180 Ohio App.3d 387, 401–402, 905 N.E.2d 694,
2008-Ohio-7041, citing Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio
St.3d 512, 769 N.E.2d 835, 2002–Ohio–2842. “Neither the weight of the evidence nor
the credibility of the witnesses is for the [trial] court's determination in ruling upon [a
JNOV].” Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, 504 N.E.2d 19, quoting Posin v.
A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 344 N.E.2d
334. When a trial court rules on a JNOV motion, all of the evidence introduced at trial is
available for the trial court's consideration. Beaston v. Slingwine, Seneca App.No. 13-
03-04, 2004-Ohio-924, citing Osler, supra, at 347, 504 N.E.2d 19.
{¶27} The decision to grant or deny a Civ.R. 50(B) motion for JNOV is reviewed
de novo by an appellate court. Wagoner, supra, at 401, 905 N.E.2d 694, citing Osler,
supra, at 347, 504 N.E.2d 19.
{¶28} Without a transcript of the proceedings, it is impossible for this Court to
find that the trial court's decision is not supported by the record, and this Court is left
with no choice but to presume the validity of the lower's court's proceedings and affirm.
{¶29} Appellant’s second and third Assignments of Error are overruled.
Appellee’s Cross-Assignment of Error
{¶30} Pursuant to App.R. 3(C)(2), which states that a person who intends to
defend a judgment or order appealed by an appellant on a ground other than that relied Stark County, Case No. 2011 CA 00199 7
on by the trial court but who does not seek to change the judgment or order is not
required to file a notice of cross-appeal. Appellee, in his brief, has also included what
has been captioned as “Appellee’s Cross-Assignment of Error”:
{¶31} “I. IN THE EVENT THAT THIS COURT ORDERS A NEW TRIAL,
APPELLANT BARBARA HOFFMAN SHOULD BE BARRED FROM INTRODUCING
LONG-TERM STORAGE BILLS AFTER HER VEHICLE HAD BEEN DECLARED A
TOTAL LOSS.”
{¶32} The subject and application of cross-assignments of error and cross-
appeals are addressed in App.R. 3(C) and the attendant staff note. Cross-assignments
of error are asserted for the purpose of preserving the relief granted in the trial court's
judgment generally for reasons not advanced by the trial court, to further guard against
reversal, and/or to obtain rulings on interlocutory orders, in the event the case is not
affirmed. Cross-appeals are asserted for the purpose of obtaining different relief than
that granted by the trial court. App.R. 3(C). Rzeszotarski v. Sanborn (June 7, 1996),
11th Dist. No. 95-G-1906
{¶33} Here, Appellee’s cross-assignment is really in the nature of an assignment
in a cross-appeal rather than a cross-assignment because it essentially asserts an error
at trial. Since no separate notice of appeal was filed with respect to such assignment,
we find it is not properly before us.
{¶34} Under App.R. 12(A)(2), when assignments of error are not submitted in
proper form, the appellate court is under no obligation to review them. Further, because
we have not ordered a new trial in this matter, this issue is moot because any Stark County, Case No. 2011 CA 00199 8
determination that this Court would make would have no legal effect on the actual
controversy.
{¶35} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is affirmed.
By: Wise, J.
Delaney, P. J., and
Edwards, J., concur.
___________________________________
JUDGES JWW/d 0328 Stark County, Case No. 2011 CA 00199 9
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
RUSSELL HIRSHELL, et al. : : Plaintiffs-Appellants : : -vs- : JUDGMENT ENTRY : ALLEN B. FERTGUS : : Defendant-Appellee : Case No. 2011 CA 00199
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.
Costs assessed to Appellant.
JUDGES