Nationwide Agribusiness Ins. Co. v. Heidler

2019 Ohio 4311

• Court: Ohio Court of Appeals
• Decided: October 21, 2019
• Docket: CA2018-06-003 CA2018-07-004 CA2018-09-012 CA2018-09-015
• Status: Published

Opinion

[Cite as Nationwide Agribusiness Ins. Co. v. Heidler, 2019-Ohio-4311.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLINTON COUNTY

NATIONWIDE AGRIBUSINESS : INSURANCE COMPANY, et al., CASE NOS. CA2018-06-003 : CA2018-07-004 Appellants/Cross-Appellees, CA2018-09-012 : CA2018-09-015

- vs - : OPINION 10/21/2019 : JONATHAN W. HEIDLER, et al., : Appellees/Cross-Appellants. :

CIVIL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS Case Nos. CVH 20140532 & CVH 16000190

Subashi, Wildermuth & Justice, Nicholas E. Subashi, Tabitha Justice, Jerome Rolfes, The Greene Town Center, 5 Chestnut Street, Suite 230, Dayton, Ohio 45440, for appellants/cross-appellees, Nationwide Agribusiness Insurance Company and Nationwide Mutual Fire Insurance Company

Lane Alton, Gregory D. Rankin, Thomas J. Keener, Eric S. Bravo, Two Miranova Place, Suite 220, Columbus, Ohio 43215, for appellees/cross-appellants Jonathan W. Heidler and Terri Jo Heidler

Dave Yost, Ohio Attorney General, Hilary R. Damaser, Jahan S. Karamali, Assistant Attorneys General, Executive Agencies Section, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215, for appellee, State Fire Marshal Clinton CA2018-06-003 CA2018-07-004 CA2018-09-012 & -015

Kemp, Schaeffer & Rowe Co., L.P.A., Michael N. Schaeffer, Richard G. Murray II, Scott N. Schaeffer, 88 W. Mound Street, Columbus, Ohio 43215, for appellee, Wilmington Savings Bank

Cincinnati Insurance Company, Daniel G. Taylor, Michael M. Neltner, 140 East Town Street, Suite 1015, Columbus, Ohio 43215, for plaintiff/intervenor, Cincinnati Insurance Company

S. POWELL, J.

{¶ 1} Appellants/cross-appellees, Nationwide Agribusiness Insurance Company

and Nationwide Mutual Fire Insurance Company ("Nationwide"), and appellees/cross-

appellants, Jonathan W. Heidler and Terri Jo Heidler (collectively, the "Heidlers"), appeal

from a judgment entered in the Clinton County Court of Common Pleas in this declaratory

judgment action arising out of Nationwide's denial of insurance coverage to the Heidlers for

damage caused by a fire to the Heidlers' property located in Washington Court House,

Ohio.1 For the reasons outlined below, we dismiss the appeal with respect to Nationwide's

first assignment of error for lack of a final appealable order and reverse and remand on

Nationwide's second assignment of error so that the trial court may provide its basis for the

amount of attorney fees awarded to the Heidlers. Nationwide's five "conditional" cross-

assignments of error are also dismissed as this court's decision renders those conditioned

cross-assignments of error moot. In all other respects, the trial court's judgment is affirmed.

The Insurance Policies

{¶ 2} The Heidlers own property located at 259 Plano Road in Washington Court

House, Ohio. There is no dispute that Nationwide had issued a farmowners insurance

1. Plaintiff/intervenor, The Cincinnati Insurance Company, was permitted to join this action as an intervening plaintiff and bring claims against Nationwide and appellee, Wilmington Savings Bank. The Cincinnati Insurance Company, however, is not a party to this appeal having resolved their dispute with Nationwide and Wilmington Savings Bank after this appeal was filed. -2- Clinton CA2018-06-003 CA2018-07-004 CA2018-09-012 & -015

policy to Mr. Heidler that insured the Plano Road property. There is also no dispute that

Nationwide had issued an automobile insurance policy to Mr. Heidler that insured his

vehicle. It is also undisputed that the Plano Road property was mortgaged to appellee,

Wilmington Savings Bank, and subject to two mortgages that totaled over $1,000,000. The

record indicates that the farmowners insurance policy includes $595,400 in coverage for

the Heidlers' home and $416,780 in personal property coverage. Both insurance policies

contained provisions that excluded coverage for losses that were caused purposely with

the intent to cause the loss.

The Fire on the Heidlers' Property

{¶ 3} During the early morning hours of May 6, 2014, a fire destroyed the Heidlers'

home located on their Plano Road property. The fire also destroyed Mr. Heidler's vehicle.

Pursuant to the two insurance policies discussed above, the Heidlers' submitted a claim to

Nationwide alleging losses resulting from the fire totaling over $1,000,000. Several months

later, on November 12, 2014, Nationwide filed a complaint seeking a declaratory judgment

finding the losses caused to the Heidlers' home and Mr. Heidler's vehicle were not "covered"

losses under either insurance policy. Nationwide also alleged a breach of contract claim.

The complaint named both the Heidlers and Wilmington Savings Bank as defendants.2 The

following is a summary of the facts alleged in Nationwide's complaint.

Facts Alleged in Nationwide's Complaint

{¶ 4} After receiving notice of the fire, Nationwide began a claim investigation to

determine its potential liability under the two insurance policies at issue. In the course of

2. Individual cases involving Mr. Heidler and Mrs. Heidler were consolidated by the trial court via an agreed entry on July 29, 2016. Therefore, although Nationwide's complaint filed on November 12, 2014 named only Mr. Heidler as a defendant, this court will nevertheless refer to the complaint as if it named to both Mr. and Mrs. Heidler for ease of discussion.

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this investigation, Nationwide learned that an individual named Ronald Howland had been

living in a tack room in a barn on the Heidlers' property. Howland was an alleged employee

of the Heidlers who had moved into the barn only a few weeks prior to the fire that destroyed

the Heidlers' home. Nationwide's complaint further alleged that Mr. Heidler had known

Howland for nearly 20 years and "knew that Howland had been in prison for theft-related

misconduct on more than one occasion."

{¶ 5} Nationwide alleged that Howland had told investigators that he woke up to the

sound of breaking glass and observed flames coming through the roof of the Heidlers'

home. Nationwide alleged that Howland, upon seeing the Heidlers' home on fire, made his

way to a neighboring home where Mr. Heidler's parents resided on the Plano Road property.

Once there, Mr. Heidler's parents called 9-1-1. The fire department was then dispatched to

the scene. The fire, however, had by that time completely engulfed the Heidlers' home

destroying both the home and all of its contents within. The fire also destroyed Mr. Heidler's

vehicle.

{¶ 6} The Heidler family was not at home at the time of the fire. Rather, as alleged

by Nationwide in its complaint, the Heidlers' were out of town on an "anniversary trip" in

Tennessee. Prior to leaving for this trip, Mr. Heidler had instructed Howland to refinish the

hardwood floors in the Heidlers' home. This required the use of multiple flammable liquids,

which Nationwide claimed "provided a viable explanation for why such chemicals were

present in the Heidler residence at the time of the fire." Howland, however, had completed

refinishing the hardwood floors several hours before the fire started. Howland had also shut

off and unplugged any heaters used to dry the newly refinished floor. Therefore, according

to Nationwide's complaint, Howland "has been unable to offer any explanation for how the

fire could have started."

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{¶ 7} Nationwide's claim investigation included the hiring of a certified fire

investigator, Thomas Bensen, to determine the cause and origin of the fire. Nationwide

alleged that it had also reviewed documents, including financial records, income tax returns,

bank records, and cell phone records, as well as interviewed several individuals with

potential knowledge of the fire as part of its claim investigation. This included Mr. Heidler.

Following the conclusion of its claim investigation, and upon receiving a report from Bensen

outlining his findings regarding the cause and origin of the fire, Nationwide concluded that

the fire had been intentionally set by Howland.

{¶ 8} As alleged by Nationwide in its complaint, this was because:

(1) There were two "points of origin" for the fire, one in the living room area where the floors were being refinished and one in the bedroom area where items related to the refinishing were being stored. According to Nationwide's complaint, this is known to be "suspicious" in the context of fire investigations "because it shows that there were two separate fires that occurred at approximately the same time, indicating that the fire was set deliberately;"

(2) There was a distinctive "pour pattern" on the floor where the fire originated. This, as Nationwide alleged, indicates that an "accelerant" was used to start the fire; and

(3) The accelerant or flammable liquid that was used to start the fire caused "unusual fire damage below the sub-floor of the property, which could not be explained by the refinishing process."

{¶ 9} Nationwide also alleged the following in regard to the Heidlers' potential

motive for setting fire to their home:

(1) The Heidlers' home and many of the rental properties Mr. Heidler owned were "substantially mortgaged;"

(2) Mr. Heidler's income from the rental properties "appears to have been equal to or less than his monthly expenses;"

(3) Financial and banking records indicate that the Heidlers

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"may have been living beyond their means, had little to no cash on hand, and/or were often overdrawn on their accounts;" and

(4) Mr. Heidler's admission that he was "behind on his payments to the mortgage company and that he was in a 'workout' arrangement with the bank."

{¶ 10} Nationwide further alleged the following in regard to several strange events

leading up to the fire:

(1) Mr. Heidler had recently "auctioned off his prized collection of 'uninsured' guns in advance of the fire;"

(2) Mr. Heidler had also held a large garage sale just before the fire that raised more than $3,000; and

(3) Mr. Heidler had discontinued services from the previously operational working fire and security alarm system on the property.

{¶ 11} This was in addition to the fact that Mr. Heidler had been involved in a number

of other fires and insurance claims prior to the fire at issue. Specifically, as Nationwide

alleged in its complaint:

[Mr. Heidler] has an extensive record or history of numerous fires and insurance claims over the last 15 years, including a "total loss" insurance claim in 2004. In the 2004 incident, the residential dwelling and the nearby barn structures on the same piece of property at 259 Plano Road were completely destroyed in a fire. A prior insurance company fully compensated [Mr. Heidler] for that loss.

Proceedings After Nationwide's Filed its Complaint

{¶ 12} On December 22, 2014, the Heidlers filed an answer and counterclaim

against Nationwide alleging a breach of contract and a breach of the duty to act in good

faith.3 The Heidlers also alleged that Nationwide had engaged in conduct that resulted in

3. Mrs. Heidler filed a complaint against Nationwide also alleging a breach of contract and a breach of the duty to act in good faith on May 2, 2016. However, as noted above in fn. 3, that case was later consolidated by the trial court with the case involving Mr. Heidler via an agreed entry on July 29, 2016. -6- Clinton CA2018-06-003 CA2018-07-004 CA2018-09-012 & -015

"spoliation of evidence." Approximately three weeks later, on January 16, 2015, Wilmington

Savings Bank also filed an answer and counterclaim against Nationwide. Similar to the

counterclaim brought by the Heidlers, Wilmington Savings Bank also alleged claims of a

breach of contract and breach of the duty to act in good faith against Nationwide.

Wilmington Savings Bank additionally sought a declaratory judgment from the trial court

finding it was entitled to compensation from Nationwide for the loss of its collateral, the

Heidlers' home.

{¶ 13} On February 27, 2015, the Ohio Department of Commerce, Division of State

Fire Marshal, received a subpoena from the Heidlers' trial counsel seeking any and all

documents and materials that related to the fire marshal's investigation into the fire. Two

weeks later, on March 11, 2015, the fire marshal moved to quash the subpoena alleging

the subpoena sought confidential documents and materials that were part of its ongoing

investigatory file that were not subject to disclosure to the Heidlers or to the public. The fire

marshal based its claim, in part, on the so-called "law-enforcement investigatory privilege"

that had first been promulgated by the Ohio Supreme Court in Henneman v. Toledo, 35

Ohio St.3d 241 (1988), and thereafter reaffirmed by the Ohio Supreme Court in J&C

Marketing, L.L.C. v. McGinty, 143 Ohio St.3d 315, 2015-Ohio-1310.

{¶ 14} On May 4, 2015, the trial court ordered the fire marshal to file a privilege log

that included a list of all documents and materials that it claimed were privileged and not

subject to disclosure to the Heidlers and their trial counsel. Shortly thereafter, on May 29,

2015, the fire marshal filed its privilege log with the trial court. The privilege log identified

photographs, video and audio recordings, a synopsis of witness interviews, witness

statements, anonymous information the fire marshal had received about the fire, copies of

information from other law enforcement agencies, and a draft investigation report that had

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yet to be completed. The fire marshal later delivered the documents and materials identified

in its privilege log to the trial court for an in camera review.4 After conducting the necessary

in camera review, the trial court issued a decision granting the fire marshal's motion to

quash.5

The Heidlers' Protective Order/Cease and Desist Order

{¶ 15} On December 18, 2015, the Heidlers moved the trial court for a protective

order and, or in the alternative, a cease and desist order against Nationwide and

Nationwide's trial counsel. The Heidlers' motion was in reaction to a mass mailing one of

Nationwide's trial counsel had sent to 17 potential fact witnesses on December 8, 2015.

The letter at issue contained Nationwide's trial counsel's law firm name followed by the

following message:

Please be advised that you have been listed as someone potentially having knowledge regarding the matter of Nationwide v. Jonathan Heidler, Clinton County Case NO. CVH20140532. If at any time you feel that you have been threatened or intimidated in any way regarding this matter, please contact your local police department. If you would like to discuss this matter further, you may contact me at your convenience.

{¶ 16} The Heidlers took exception to this letter claiming it violated Rules 4.1, 4.3,

and 8.4 of the Ohio Rules of Professional Conduct regarding the truthfulness of statements

to others, dealings with unrepresented persons, and general misconduct. The Heidlers also

4. We note that around this time Nationwide appealed one of the many decisions issued by the trial court granting a motion to compel filed by the Heidlers that required Nationwide and Nationwide's trial counsel to answer interrogatories and turn over certain materials to the Heidlers. This court's decision affirming in part and reversing in part the trial court's decision in that matter can be found in Nationwide Agribusiness Ins. Co. v. Heidler, 12th Dist. Clinton No. CA2015-07-013, 2016-Ohio-455.

5. The Heidlers appealed the trial court's decision granting the fire marshal's motion to quash. This court, however, dismissed the Heidlers' appeal for lack of a final appealable order. See Nationwide Agribusiness Ins. Co. v. Heidler, 12th Dist. Clinton No. CA2015-09-018 (Nov. 4, 2015) (Entry Granting Motion to Dismiss Appeal).

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alleged that the letter itself was Nationwide's trial counsel's attempt to "intimidate" or

"influence" any potential witnesses by making "false statements regarding potential harm

to be directed toward the witness based upon an unspecified connection with the lawsuit

referenced in the letter." The Heidlers further alleged that the letter "has the obvious and

natural consequence of scaring witnesses" by "discouraging any voluntary participation in

speaking with anyone concerning their potential knowledge of the facts of this case[.]" The

Heidlers additionally alleged that the letter "casts false dispersions upon the parties involved

in this litigation that they might engage in threatening or intimidating conduct toward these

witnesses."

{¶ 17} On March 21, 2016, the trial court issued a decision finding that, based on the

"spirit" of Rule 4.3 of the Ohio Rules of Professional Conduct, and in "fairness" to the

Heidlers, Nationwide's trial counsel should have identified whom she and her law firm were

representing within the body of the letter. The trial court also found that Nationwide's trial

counsel should have disclosed the fact that Nationwide's "monetary interests were directly

opposed to the monetary interests of all other parties."6

{¶ 18} To remedy these defects, the trial court ordered Nationwide's trial counsel to

"mail to all the recipients of the December 8, 2015 letter a second letter that reference[d]

the first letter" that (1) identified herself as Nationwide's trial counsel, (2) notify the recipient

that her law firm was representing Nationwide, and (3) "clearly state that the monetary

interests of [Nationwide] are directly opposed to the monetary interests of all the other

parties in this pending action," including both the Heidlers and Wilmington Savings Bank.

6. Rule 4.3 of the Ohio Rules of Professional conduct prohibit a lawyer from stating or implying that the lawyer is disinterested in "dealing on behalf of a client with a person who is not represented by counsel."

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The trial court also ordered Nationwide's trial counsel to send a copy of the letter "to all the

parties on the same date it is mailed to the potential witnesses." The trial court concluded

by noting that "[t]he issue of possible sanctions shall be addressed by the court at a later

date."

{¶ 19} On April 4, 2016, Nationwide's trial counsel filed a notice of compliance with

the trial court notifying it that she had complied with the trial court's directives as set forth

above.7 The second letter sent by Nationwide's trial counsel included the same basic

identifying information contained in the first. The letter then set forth the following message:

We represent the plaintiffs in the above referenced matter. This letter is a reminder that you have been listed as a potential witness. The lawsuit involves allegations by our clients, Nationwide Agribusiness Insurance Company and Nationwide Mutual Fire Insurance Company, that the defendant, Jonathan Heidler, may have been involved in causing his home to be burned in order to collect the insurance proceeds. Obviously, our client's economic interests are opposed to that of Mr. Heidler, as well as that of Wilmington Savings Bank and Cincinnati Insurance Company.

As this case gets closer to trial, you may be contacted by one or more of the parties with respect to information you may have regarding Mr. Heidler or the claims in the case. If you have any questions or concerns in the meantime, please do not hesitate to contact us. Thank you very much for your attention to this.

{¶ 20} On May 5, 2016, the Heidlers moved the trial court to find Nationwide's trial

counsel in contempt for violating the trial court's directives set forth above. The Heidlers

supported this motion by claiming Nationwide failed to simultaneously mail a copy of the

letter to all of the parties and did not specifically reference its earlier letter within the second.

The Heidlers also alleged that Nationwide's letter was evidence of Nationwide's

7. We note that although 17 letters were originally sent by Nationwide's trial counsel to potential fact witnesses only 11 of those letters were actually received by those 17 potential witnesses. - 10 - Clinton CA2018-06-003 CA2018-07-004 CA2018-09-012 & -015

impermissible attempt "to tamper with the witnesses and influence their view of [the] case"

by "specifically stating that [Mr. Heidler] may have been involved in causing his home to be

burned in order to collect the insurance proceeds."

{¶ 21} On June 1, 2016, the trial court issued a decision denying the Heidlers' motion

for contempt requesting it find Nationwide's trial counsel in contempt for "failing to send a

copy of the remedial letter at issue to counsel[.]" The trial court also denied the Heidlers'

motion for contempt alleging that Nationwide's trial counsel was in contempt for using

"defamatory statements in their remedial letter." The trial court, however, granted the

Heidlers' motion for contempt upon finding Nationwide's trial counsel failed "to reference its

December 8, 2015 letter in its remedial letter." Similar to its previous directive, the trial court

concluded by again noting that "[s]anctions shall be considered at a future date."

The Parties' Motions for Summary Judgment

{¶ 22} Beginning the week of October 20, 2016, the parties filed motions for

summary judgment on some or all of their claims and defenses. Several months later, the

trial court issued its decision finding a question of material fact remained as to the cause

and origin of the fire; Nationwide claiming the fire was set intentionally by Howland whereas

the Heidlers claimed the fire was merely an accident. According to the trial court, this

created a genuine issue of material fact on Nationwide's declaratory judgment claim that

needed to be resolved at trial. The trial court also determined that there was a genuine

issue of material fact that needed to be resolved on Nationwide's and the Heidlers'

competing breach of contract claims.8 Upon denying Nationwide's motion for summary

8. The trial court addressed several other claims and defenses raised by both Nationwide and the Heidlers within this decision none of which are relevant to this appeal.

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judgment, the trial court scheduled the matter for a jury trial to commence on May 8, 2018.

The Final Pretrial and Jury Trial

{¶ 23} On May 7, 2018, the day prior to the start of the jury trial, the trial court held a

final pretrial hearing to address the parties' outstanding pretrial motions and "non-jury

issues." This included several motions in limine, objections to the admissibility of certain

evidence, jury questionnaires, and proposed jury instructions from both Nationwide and the

Heidlers, among others. The trial court held this final pretrial hearing with the expectation

that there would be no other pretrial "non-jury issues" that needed to be addressed prior to

the start of trial, nor any need to stop either party from presenting their case "to rule on

objections because somebody said object[.]" This includes whether any of the expert

witnesses disclosed by either party – like Bensen, the certified fire investigator hired by

Nationwide to investigate the cause and origin of the fire on the Heidlers' property – would

be permitted to testify as an expert witness at trial. The final pretrial hearing lasted a full

day and resulted in a lengthy transcript spanning nearly 300 pages.

{¶ 24} On May 8, 2018, the jury trial began and a jury was empaneled. Shortly

thereafter, and just before Bensen took the stand as the first witnesses in Nationwide's

case-in-chief, the Heidlers moved the trial court to hold a Daubert hearing to address

whether Bensen was an expert who could testify as an expert witness at trial.9 The trial

court denied the Heidlers' motion as untimely given that all of the parties' pretrial motions

were to be addressed at the final pretrial hearing held the day before. Specifically, as the

trial court stated:

All right. The Court is of the view that it does have the gatekeeping responsibility as it relates to Daubert issues.

9. A Daubert hearing is generally considered a prospective examination of the admissibility of an expert's testimony to determine whether the basis for the testimony is scientifically valid and reliable. - 12 - Clinton CA2018-06-003 CA2018-07-004 CA2018-09-012 & -015

But the Court is of the opinion, as I indicated in chambers, that the gate is pretty well closed at this point in time. This case – this fire happened four years ago.

I do know Mr. Bensen's deposition was taken quite a few years ago. This issue has been out there, been able to be raised, * * * I wasn't advised until less than an hour ago [that this was an issue.]

And these documents were filed, and we have already selected a Jury, are ready to begin opening statements, and as a result, it sounds as if it's a definite dispute as to whether or not any of the Daubert applications should be imposed.

And at this late stage I'm not going to stop anything and take up that issue, so I'm going to deny the request to voir dire [Bensen].

The jury trial then proceeded as scheduled.

{¶ 25} The jury trial lasted eight days. During trial, the jury heard testimony from

over 20 witnesses. This included expert testimony from Bensen regarding the cause and

origin of the fire. Specifically, that the fire on the Heidlers' property was a "flash fire" that

had two points of origin with a distinctive burn pattern, thereby indicating the fire was

intentionally set through the use of an accelerant. When asked how certain he was that the

fire was set intentionally, Bensen testified that based on his training and experience as a

certified fire investigator that he was 100% certain that the fire that destroyed the Heidlers'

home and Mr. Heidler's vehicle was a "flash fire" that was set intentionally.

{¶ 26} This also included testimony from Amber Rae Hawk. Responding to the

Heidlers' claim that the fire was merely an accident, Hawk testified that Howland, the man

Nationwide believed had intentionally set fire to the Heidlers' home, told her that he was

upset that Mr. Heidler had not yet paid him the $10,000 he was owed for setting fire to the

property. Specifically, as Hawk testified regarding her conversation with Howland shortly

after the fire on the Heidlers' property occurred:

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[Howland] said he was upset because [Mr. Heidler] had not paid him, finished paying him to [burn down his house], and he was angry at [Mr. Heidler] for not paying him to do it, he said, because he had done all the work that he wanted him to do and then [Mr. Heidler] didn't pay him for it.

The Verdict and the Trial Court's Judgment

{¶ 27} Following deliberations, the jury returned a verdict finding Nationwide had

proved by a preponderance of the evidence that the Heidlers, either directly or indirectly,

had intentionally caused the fire to their property. Due to this finding, the jury returned a

verdict in favor of Nationwide and against the Heidlers that granted Nationwide a declaratory

judgment finding the losses caused to the Heidlers' property and Mr. Heidler's vehicle were

not "covered" loses under either of the two insurance policies it had issued to Mr. Heidler.

The trial court subsequently entered its judgment confirming the jury's verdict on May 24,

2018.

Proceedings Following the Trial Court's Judgment

{¶ 28} On June 20, 2018, Nationwide filed a notice of appeal from the trial court's

judgment. The following day, June 21, 2018, the Heidlers moved the trial court for judgment

notwithstanding the verdict under Civ.R. 50(B), or in the alternative, for a new trial under

Civ.R. 59(A). Shortly thereafter, on July 2, 2018, the Heidlers filed their own notice of

appeal. Because the Heidlers' had filed their motion for judgment notwithstanding the

verdict, or alternatively, for a new trial prior to filing their notice of appeal, this court

remanded the matter to the trial court to issue a decision on that motion. See Nationwide

Agribusiness Ins. Co. v. Heidler, 12th Dist. Clinton No. CA2018-06-003 (July 23, 2018)

(Entry Remanding Appeal). Approximately one month later, on August 20, 2018, the trial

court issued a decision denying the Heidlers' motion in its entirety. The matter was then

returned to this court and submitted for review on September 3, 2019.

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Appeal

{¶ 29} Both Nationwide and the Heidlers appeal from the trial court's judgment,

collectively raising eight assignments of error for review; two assignments of error raised by

Nationwide and six cross-assignments of error by the Heidlers. Nationwide has also raised

five "conditional" cross-assignments of error for review. For ease of discussion, we will

address Nationwide's two assignments of error first followed by the six cross-assignments

of error raised by the Heidlers. Following this discussion, we will then briefly address

Nationwide's five "conditional" cross-assignments of error.

Nationwide's Appeal

{¶ 30} Nationwide's Assignment of Error No. 1:

{¶ 31} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED

NATIONWIDE TO SEND CERTAIN COMMUNICATIONS TO THIRD PARTIES (MARCH

21, 2016), AND WHEN IT ISSUED SANCTIONS RELATED TO THOSE

COMMUNICATIONS.

{¶ 32} In its first assignment of error, Nationwide challenges the trial court's June 1,

2016 decision finding its trial counsel in contempt for disobeying the trial court's directives

regarding the "remedial letter." The trial court, however, has yet to impose any penalty or

sanction on Nationwide or Nationwide's trial counsel resulting from this contempt finding. A

trial court's decision finding a party in contempt is a final appealable order only after "the

court has imposed a penalty or sanction." Dudley v. Dudley, 12th Dist. Butler No. CA2012-

04-074, 2013-Ohio-859, ¶ 10, discretionary appeal not allowed, 136 Ohio St.3d 1451, 2013-

Ohio-3210. That is to say, "[b]efore a finding of contempt of court constitutes a final

appealable order, two elements must exist: (1) a finding of contempt, and (2) the imposition

of a penalty or sanction." Hetterick v. Hetterick, 12th Dist. Brown No. CA2012-02-002,

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2013-Ohio-15, ¶ 13, citing State ex rel. Doe v. Tracy, 51 Ohio App.3d 198 (12th Dist.1988);

MD Acquisition, LLC v. Myers, 10th Dist. Franklin No. 11AP-390, 2013-Ohio-3825, ¶ 24

("the general rule for contempt proceedings is that a judgment of contempt becomes a final

appealable order only when there is both a finding of contempt and the imposition of a

penalty"); Koeppen v. Swank, 12th Dist. Butler No. CA2008-09-234, 2009-Ohio-3675, ¶ 20,

quoting Chain Bike v. Spoke 'N Wheel, Inc., 64 Ohio App.2d 62, 64 (8th Dist.1979) ("[t]he

mere adjudication of contempt is not final until a sanction is imposed"). Therefore, because

the trial court has yet to impose any penalty or sanction on Nationwide or Nationwide's trial

counsel resulting from this finding of contempt, the appeal of the trial court's June 1, 2016

entry is dismissed for lack of a final appealable order.10

{¶ 33} Nationwide's Assignment of Error No. 2:

{¶ 34} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ISSUED

MONETARY SANCTIONS AGAINST NATIONWIDE RELATED TO DISCOVERY

RESPONSES.

{¶ 35} In its second assignment of error, Nationwide argues the trial court erred by

ordering it to pay a portion of attorney fees the Heidlers incurred to compensate their trial

counsel for work done to enforce one of the trial court's many discovery orders.11 The trial

10. Despite the language used in its first assignment of error, we note that Nationwide acknowledges that "to date" the trial court has not imposed any penalty or sanction on Nationwide or its trial counsel resulting from this contempt finding. The fact that a penalty or sanction may be imposed at a later date does not transform an otherwise non-final appealable order into an order that is final and appealable. Neither does the fact that the Heidlers represented to the trial court that Nationwide had been "sanctioned" in their subsequent pleadings.

11. Due to the contentious nature of these proceedings, the record contains numerous discovery motions, hearings on those motions, and discovery orders issued by the trial court on those motions. This assignment of error is based on the Heidlers' April 13, 2015 motion to compel discovery and the Heidlers' subsequent June 3, 2016 motion to enforce the trial court's corresponding discovery order. The trial court held a hearing on the matter on November 20, 2017 and thereafter issued a decision on February 8, 2018 awarding attorney fees to the Heidlers in the amount of $5,000 plus interest, an amount that was $6,936.92 less than what the Heidlers had requested. - 16 - Clinton CA2018-06-003 CA2018-07-004 CA2018-09-012 & -015

court, however, failed to provide a basis for the amount of attorney fees that it awarded.

This includes the trial court's decision to award only a portion of the attorney fees the

Heidlers' requested without providing an explanation as to the reduction of the fees. Under

these circumstances, we find it necessary to vacate the award of attorney fees and remand

this matter for the trial court to reconsider the award of attorney fees and the amount of

attorney fees, if any, that should be awarded. See generally Levy v. Seiber, 12th Dist.

Butler Nos. CA2015-02-019, CA2015-02-021, and CA2015-02-030, 2016-Ohio-68, ¶ 65-71

(vacating an award of attorney fees and remanding matter to the trial court to consider anew

an award of attorney fees based upon the record before it). Upon conducting such a review,

the trial court shall make the necessary findings to enable this court to conduct a meaningful

review should that decision again be appealed. Bittner v. Tri-County Toyota, Inc., 58 Ohio

St.3d 143, 146 (1991) ("the trial court must state the basis for the fee determination" to

enable an appellate court to conduct a meaningful review). Therefore, to the extent outlined

above, Nationwide's second assignment of error is sustained and the trial court's decision

is reversed and remanded for further proceedings.

The Heidlers' Cross-Appeal

{¶ 36} The Heidlers' Assignment of Error No. 1:

{¶ 37} THE TRIAL COURT ERRED IN GRANTING THE STATE FIRE MARSHAL'S

MOTION TO QUASH THE HEIDLERS' SUBPOENA FOR ITS FILE.

{¶ 38} In their first assignment of error, the Heidlers argue the trial court erred by

granting the fire marshal's motion to quash. We disagree.

{¶ 39} "A trial court's decision on a motion to quash a subpoena generally is reviewed

for an abuse of discretion." Donlon v. Lineback, 12th Dist. Warren Nos. CA2016-03-015

and CA2016-03-016, 2016-Ohio-7739, ¶ 44, citing Battelle Mem. Inst. v. Big Darby Creek

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Shooting Range, 192 Ohio App.3d 287, 2011-Ohio-793, ¶ 38 (12th Dist.). The motion to

quash at issue in this case, however, involves the application of the so-called "law-

enforcement investigatory privilege" that was recognized by the Ohio Supreme Court in

Henneman, 35 Ohio St.3d 241, and thereafter reaffirmed by the Ohio Supreme Court in

McGinty, 143 Ohio St.3d 315, 2015-Ohio-1310. A de novo standard of review therefore

applies. See Autumn Health Care of Zanesville, LLC v. Dewine, 10th Dist. Franklin No.

14AP-593, 2015-Ohio-2655, ¶ 12 ("[b]ecause the motion to quash required the trial court to

interpret and apply this privilege as defined in Henneman and subsequent court decisions,

it involved a question of law, and we review the trial court's decision under the de novo

standard of review"); see also Carter v. Gestalt Inst. of Cleveland, 8th Dist. Cuyahoga No.

99738, 2013-Ohio-5748, ¶ 18.

{¶ 40} "The common law recognizes a qualified privilege for law-enforcement

investigatory information, including confidential sources, surveillance information, and law-

enforcement techniques and procedures." McGinty, 2015-Ohio-1310 at ¶ 17. But the law-

enforcement investigatory privilege is not absolute. Id. at ¶ 2. There is instead a balancing

test that must be applied "for weighing the interests of law enforcement in keeping the

information confidential against the needs of a civil litigant who requests the information in

discovery." Id. This balancing test is applied in order to adhere to the "'fundamental

requirements of fairness'" so that "when the privileged information 'is relevant and helpful

to the defense of an accused, or is essential to a fair determination of a cause, the privilege

must give way.'" Id. at ¶ 18, quoting Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct.

623 (1957). The factors applied in this balancing test are as follows:

(1) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information;

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(2) The impact upon persons who have given information of having their identities disclosed;

(3) The degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure;

(4) Whether the information sought is factual data or evaluative summary;

(5) Whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question;

(6) Whether the police investigation has been completed;

(7) Whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation;

(8) Whether the plaintiff's suit is non-frivolous and brought in good faith;

(9) Whether the information sought is available through other discovery or from other sources; and

(10) The importance of the information sought to the plaintiff's case.

McGinty, 2015-Ohio-1310 at ¶ 19, quoting Frankenhauser v. Rizzo, 59 F.R.D. 339, 344

(E.D.Pa.1973).

{¶ 41} When applying this balancing test there is a "strong presumption" against

lifting the privilege. Id. at ¶ 18, citing In re New York City, 607 F.3d 923, 299 (2d Cir.2010).

The party seeking the investigatory law-enforcement investigatory material may obtain that

material "only upon showing a 'compelling need.'" Id. That is to say, "information related

to a law-enforcement investigation is protected from disclosure in civil litigation unless the

party seeking discovery demonstrates that it has a compelling need for the information and

that that need outweighs the public's interest in keeping the information confidential."

McGinty at ¶ 22. The balancing test is therefore used "to determine whether the privilege

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applies, weighing the legitimate public interest in the confidentiality of the information versus

the needs of a litigant to obtain evidence in support of a non-frivolous cause of action."

Autumn Health Care, 2015-Ohio-2655 at ¶ 14, citing Id. at ¶ 19. "[T]he most appropriate

method of conducting the balancing test is through an in camera review of the documents

allegedly subject to the privilege." Id., citing Henneman, 35 Ohio St.3d at 242.

{¶ 42} This court has reviewed the fire marshal's investigatory file that the trial court

found was protected by the law-enforcement investigatory privilege. Upon review, we find

no error in the trial court's decision to grant the fire marshal's motion to quash. We reached

this decision after fully complying with the applicable de novo standard of review, which

requires this court to independently review the record and come to our own conclusion

regarding the applicability of the law-enforcement investigatory privilege without affording

any deference to the trial court's decision. See Holt v. State, 10th Dist. Franklin No. 10AP-

214, 2010-Ohio-6529, ¶ 9 ("[d]e novo appellate review means that the court of appeals

independently reviews the record and affords no deference to the trial court's decision").

Due to the privileged nature of its contents, we find any further discussion as it relates to

the specific exhibits contained within the SFM's investigatory file would be improper and

otherwise thwart the public's interest in keeping that information confidential and protected

from disclosure. Therefore, finding no error in the trial court's decision granting the fire

marshal's motion to quash, the Heidlers' first assignment of error lacks merit and is

overruled.

{¶ 43} The Heidlers' Assignment of Error No. 2:

{¶ 44} THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF

NATIONWIDE'S FIRE CAUSE AND ORIGIN WITNESS THOMAS BENSEN.

{¶ 45} In their second assignment of error, the Heidlers argue the trial court erred by

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allowing Nationwide's expert witness, Thomas Bensen, to testify regarding the cause and

origin of the fire. We disagree.

{¶ 46} Trial courts have broad discretion in determining the admissibility of expert

testimony. Estate of Smith v. W. Brown Local Sch. Dist., 12th Dist. Brown No. CA2014-06-

012, 2015-Ohio-154, ¶ 33. Given its broad discretion on matters involving the admissibility

of expert testimony, "[a] trial court's decision on whether to admit or exclude expert

testimony will not be reversed absent an abuse of discretion." Herzner v. Fischer Attached

Homes, Ltd., 12th Dist. Clermont No. CA2007-08-090, 2008-Ohio-2261, ¶ 7, citing State v.

Jones, 90 Ohio St.3d 403, 414 (2000). An abuse of discretion implies that the court's

decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or

judgment. Madison Cty. Bd. of Commrs. v. Bell, 12th Dist. Madison No. CA2005-09-036,

2007-Ohio-1373, ¶ 30. "A decision is unreasonable where it is not supported by a sound

reasoning process." Colosseo USA, Inc. v. Univ. of Cincinnati, 1st Dist. Hamilton No. C-

180223, 2019-Ohio-2026, ¶ 16, citing Waldman v. Pitcher, 1st Dist. Hamilton Nos. C-

150462 and C-150501, 2016-Ohio-5909, ¶ 17.

{¶ 47} The Heidlers initially argue that the trial court erred by refusing to conduct a

Daubert hearing to determine the admissibility of Bensen's expert testimony at trial. The

Heidlers, however, moved the trial court to hold a Daubert hearing (1) after the trial court

held a final pretrial hearing to address any and all of the parties' pretrial motions then

pending and (2) after the jury had already been empaneled just prior to when Bensen was

called to testify as part of Nationwide's case-in-chief. Given the late nature of the filing, we

find no error in the trial court's decision denying the Heidlers' motion requesting the trial

court hold a Daubert hearing as untimely. See, e.g., Feliciano-Hill v. Principi, 439 F.3d 18,

24 (1st Cir.2006) (lower court was on "firm ground" by refusing to conduct a Daubert hearing

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where the motion requesting that hearing was untimely); Club Car, Inc. v. Club Car

(Quebec) Import, Inc., 362 F.3d 775, 780 (11th Cir.2004) ("[a] Daubert objection not raised

before trial may be rejected as untimely"). This is because Daubert contemplates a

"gatekeeping" function not a "gotcha" function. Alfred v. Caterpillar, Inc., 262 F.3d 1083,

1087 (10th Cir.2003). The Heidlers' claim otherwise lacks merit.

{¶ 48} Although forfeiting their ability to challenge the admissibility of Bensen's

expert testimony prior to trial via a Daubert hearing, the Heidlers nevertheless argue that

the trial court erred by allowing Bensen to testify as an expert witness since his expert

opinion regarding the cause and origin of the fire was not based on a "reliable" scientific

information. We find no merit to the Heidlers' claim.

{¶ 49} Pursuant to Evid.R. 702(C), a witness may testify as an expert witness if the

"witness' testimony is based on reliable scientific, technical, or other specialized

information." To the extent that the expert witness' testimony reports the result of a

procedure, test, or experiment, the expert's testimony is "reliable" only if the requirements

set forth in Evid.R. 702(C)(1) thru (3) are met. Those requirements are as follows:

(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably implements the theory;

(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.

{¶ 50} This requires the focus to be on "whether the principles and methods the

expert employed to reach his [or her] opinion are reliable, rather than whether the

conclusions are correct." State Farm Fire & Cas. Co. v. Holland, 12th Dist. Madison No.

CA2007-08-025, 2008-Ohio-4436, ¶ 21, citing Miller v. Bike Athletic Co., 80 Ohio St.3d 607,

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611 (1998).

{¶ 51} The Heidlers' argument is based on their reading and interpretation of the

National Fire Protection Association's Publication 921, Guide for Fire and Explosion

Investigations ("NFPA 921"). Relying on the NFPA 921, the Heidlers argue that the trial

court erred by allowing Bensen to testify that the fire on the Heidlers' property was

intentionally set through the use of an accelerant since Bensen's expert opinion was based

on burn pattern rather than on laboratory testing of fire debris taken from the property. This,

according to the Heidlers, renders Bensen's expert opinion regarding the cause and origin

of the fire inadmissible under Evid.R. 702(C) since it was based on unreliable scientific

information in conflict with the requirements set forth in the NFPA 921.

{¶ 52} But, contrary to the Heidlers' claim, it is now generally well-established that

the NFPA 921 does not require an expert witness "to perform physical experiments as a

prerequisite to offering his [or her] testimony in court" regarding the cause and origin of a

fire. AmGuard Ins. Co. v. Fire Sys. of Mich., E.D.Mich. No. 18-11952, 2019 U.S. Dist. LEXIS

127176, *12 (July 31, 2019); see, e.g., Shuck v. CNH Am., LLC, 498 F.3d 868, 875, fn. 3

(8th Cir.2007) (no "bright line rule that expert opinions in fire cases always must be

supported by testing to be admissible"); Erie Ins. Co. v. Sunbeam Prods., Inc., S.D. Ohio

No. 12-CV-00703, 2015 U.S. Dist. LEXIS 2437, *17 (Jan. 8, 2015) (although expert "did not

perform physical experiments to test his hypothesis, NFPA 921 specifically provides that

testing is done by the principle of deductive reasoning"); Travelers Indem. Co. v. Indus.

Paper & Packaging Corp., E.D.Tenn. No. 3:02-CV-491, 2006 U.S. Dist. LEXIS 43851, *14-

*15 (June 27, 2006) (permitting an expert witness to testify regarding the cause and origin

of a fire even though the witness had not performed any physical testing).

{¶ 53} It is also generally well established that the "failure to strictly adhere to NFPA

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921 does not render an investigation per se unreasonable." Pekarek v. Sunbeam Prods.,

Inc., 672 F. Supp. 2d 1161, 1175 (D.Kan.2008). This is because the "NFPA 921 does not

mandate strict compliance with its provisions, including adherence to the scientific

method."12 AmGuard at *10, citing Alford v. Allstate Ins. Co., E.D.Mich. No. 12-CV-14238,

2013 U.S. Dist. LEXIS 202586, *6 (July 8, 2013) ("NFPA 921 itself states, it is merely a

guide for investigators, and it includes only nonmandatory provisions"); See NFPA 921

Section 1.2 (the purpose of the NFPA 921 "is to establish guidelines and recommendations

for the safe and systematic investigation or analysis of fire and explosion incidents").

{¶ 54} Such a failure instead goes to the weight of the expert witness' testimony

regarding the cause and origin of the fire and not to the admissibility of that testimony. See,

e.g., Donegal Mut. Ins. V. White Consol. Indus., 166 Ohio App.3d 569, 2006-Ohio-1586, ¶

54 (2d Dist.) (that a fire investigator did not perform any physical testing prior to offering his

expert opinion on the cause and origin of a fire went to the weight of the testimony and not

to its admissibility); and People v. Jackson, Mich.App. No. 272776, 2008 Mich.App. LEXIS

958, *3-*4 (May 13, 2008) (expert witness' opinion that a fire was intentionally set with an

accelerant was reliable and therefore admissible even though "it was contrary to laboratory

results indicating the absence of an accelerant" as "[s]uch criticisms go to the weight rather

than the admissibility of the testimony").

{¶ 55} The NFPA 921 also does not prohibit a fire investigator from relying on burn

patterns to determine the cause and origin of a fire. The NFPA 921 instead "only cautions

12. The Heidlers argue that even though the NFPA 921 uses the term "should" rather than "shall" that this "does not render a confirming laboratory analysis merely discretionary." This is simply not true. The use of the term "shall" is considered mandatory, whereas the use of the term "should" is merely advisable. See Webb v. Edwards, 165 Ohio App.3d 158, 2005-Ohio-6379, ¶ 23 (4th Dist.) (discussing the meaning of the terms "shall," "should," and "may" when interpreting the standards set forth in the Ohio Manual of Uniform Traffic Control Devices). - 24 - Clinton CA2018-06-003 CA2018-07-004 CA2018-09-012 & -015

an investigator from considering burn patterns alone." Thompson v. State Farm Fire & Cas.

Co., 548 F. Supp. 2d 588, 592 (W.D.Tenn.2008). Despite the Heidlers' claims, the record

indicates Bensen did not rely solely on burn patterns to determine the cause and origin of

the fire on the Heidlers' property. Bensen instead examined the entire scene where the fire

occurred, took numerous photographs (including overhead drone footage), collected

evidence regarding potential causes of the fire (for example, a kerosene heater), preserved

samples from the scene of the fire, and spoke to witnesses regarding their observations of

the fire (including Mr. Heidler), all of which was then subject to a peer review. This is more

than enough evidence to find Bensen's expert opinion on the cause and origin of the fire

"reliable" and therefore admissible under Evid.R. 702(C). See, e.g., Gaskin v. Sharp Elecs.

Corp., N.D.Ind. No. 2:05-CV-303, 2007 U.S. Dist. LEXIS 65532, at *5 (Aug. 31, 2007)

(finding expert witness' opinion regarding the cause and origin of a fire reliable where the

expert witness conducted an onsite investigation, took photographs, and analyzed fire burn

patterns). Therefore, finding no merit to any of the arguments raised by the Heidlers herein,

the Heidlers' second assignment of error is overruled.

{¶ 56} The Heidlers' Assignment of Error No. 3:

{¶ 57} THE MISCONDUCT OF NATIONWIDE'S COUNSEL IN MAKING

IMPROPER EXPRESS STATEMENTS OF AN EARLIER HOUSE FIRE AND OTHER

INSURANCE CLAIMS INVOLVING MR. HEIDLER ENTITLES THE HEIDLERS TO A NEW

TRIAL.

{¶ 58} In their third assignment of error, the Heidlers argue they are entitled to a new

trial based on Nationwide's alleged misconduct at trial when it defied the trial court's order

by commenting on an earlier house fire on the Heidlers' property and other prior insurance

claims involving the Heidlers and their property. The Heidlers, however, did not raise this

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issue as part of their motion for a new trial. "It is well-established that a party cannot raise

new issues or legal theories for the first time on appeal." Cox v. Zimmerman, 12th Dist.

Clermont No. CA2011-03-022, 2012-Ohio-226, ¶ 17, citing Hamilton v. Digonno, 12th Dist.

Butler No. CA2005-03-075, 2005-Ohio-6552, ¶ 20; Am. Econ. Ins. Co. v. Pryor, 12th Dist.

Clermont No. CA95-03-019, 1995 Ohio App. LEXIS 3009, *6 (July 17, 1995) ("[i]t is well-

settled that matters not raised and argued at the trial court level may not be raised for the

first time on appeal"). Therefore, because this issue was not raised by the Heidlers in their

motion for a new trail, we need not consider this issue for the first time on appeal. See,

e.g., A N Bros. Corp. v. Total Quality Logistics, LLC, 12th Dist. Clermont No. CA2015-02-

021, 2016-Ohio-549, ¶ 43 (argument advanced by appellant requesting a judgment be

reversed and remanded for a new trial was waived where that argument was not raised as

part of appellant's motion for a new trial). The Heidlers' claim otherwise lacks merit.

{¶ 59} Regardless, even assuming the Heidlers had raised this issue as part of their

motion for a new trial, our review of the record indicates Nationwide's comments were

innocuous and had little, if any, impact on the jury's verdict. This is undoubtably the case

here when considering the Heidlers did not object to many of those comments, and when

they did object, the Heidlers' objections were sustained by the trial court. The trial court

then instructed the jury to disregard any "[s]tatements or answers ordered stricken" or "to

which the court sustained an objection[.]" The trial court also instructed the jury that they

must neither "guess why the court sustained the objection to any questions [or] what the

answer to each question might have been" nor "consider as evidence any suggestion

included in a question that was not answered." "A jury is presumed to have properly

followed instructions given by a trial court." Silver v. Jewish Home of Cincinnati, 190 Ohio

App.3d 549, 2010-Ohio-5314, ¶ 41 (12th Dist), citing Pang v. Minch, 53 Ohio St.3d 186,

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195 (1990). Therefore, finding no merit to any of the Heidlers' claims raised herein, the

Heidlers' third assignment of error is overruled.

{¶ 60} The Heidlers' Assignment of Error No. 4:

{¶ 61} THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF

NATIONWIDE'S "REBUTTAL" WITNESS AMBER RAE HAWK.

{¶ 62} In their fourth assignment of error, the Heidlers argue the trial court erred by

allowing Nationwide's witness, Amber Rae Hawk, to testify at trial since she was an

undisclosed witness that was not included on Nationwide's witness list. We disagree.

{¶ 63} As the record indicates, Hawk was called to testify by Nationwide for the sole

purpose of rebutting the testimony given by another witness, Ronald Howland, that Howland

had never told her that he was upset that Mr. Heidler had not yet paid him $10,000 for

setting the fire on the Heidlers' property. An appellate court reviews a trial court's decision

to allow the testimony of an undisclosed witness under an abuse of discretion standard.

Earley v. Earley, 12th Dist. Clinton No. CA2012-01-001, 2012-Ohio-4772, ¶ 37, citing

Kallergis v. Quality Mold, Inc., 9th Dist. Summit Nos. 23651 and 23736, 2007-Ohio-6047, ¶

14. We find no abuse of discretion here. The Heidlers knew of Hawk and what Hawk would

testify to at trial if she were called as a witness years prior to when the jury trial began.

Therefore, regardless of whether Hawk should be classified as a "rebuttal" witness or not,

the trial court did not abuse its discretion by allowing Hawk to testify at trial. Accordingly,

because we find no abuse of discretion in the trial court's decision, the Heidlers' fourth

assignment of error lacks merit and is overruled.

{¶ 64} The Heidlers' Assignment of Error No. 5:

{¶ 65} THE CUMULATIVE PREJUDICIAL EFFECT OF ALL ERRORS ADVANCED

BY THE HEIDLERS WARRANTS A REVERSAL OF THE TRIAL COURT'S JUDGMENT

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AND A NEW TRIAL.

{¶ 66} In their fifth assignment of error, the Heidlers argue the trial court's judgment

should be reversed under the "cumulative error" doctrine. Although this court has no issue

applying the cumulative error doctrine in criminal cases, this court has previously noted its

reluctance to apply the cumulative error doctrine in civil cases. See Allen v. Summe, 12th

Dist. Butler No. CA92-04-067, 1993 Ohio App. LEXIS 2553, *3 (May 17, 1993) ("[t]his court

is somewhat reluctant to apply the cumulative error doctrine in civil cases"). However, even

setting aside this court's reluctance to apply the cumulative error doctrine in civil cases, in

order for the cumulative error doctrine to apply "an appellate court must find that multiple

errors, none of which individually rose to the level of prejudicial error, actually occurred in

the trial court." State v. Cramer, 12th Dist. Butler No. CA2003-03-078, 2004-Ohio-1712, ¶

67, citing State v. DeMarco, 31 Ohio St.3d 191, 197 (1987). No such error, harmless or

otherwise, occurred here. Therefore, because this court has found no merit to any of the

Heidlers' assignments of error discussed above, the Heidlers cannot demonstrate

cumulative error. Accordingly, finding the cumulative error doctrine inapplicable to the case

at bar, the Heidlers' fifth assignment of error lacks merit and is overruled.

{¶ 67} The Heidlers' Assignment of Error No. 6:

{¶ 68} THE TRIAL COURT ERRED IN DENYING THE HEIDLERS' MOTION FOR

JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE, FOR

NEW TRIAL.

{¶ 69} In their sixth assignment of error, the Heidlers argue the trial court erred by

denying their motion for judgment notwithstanding the verdict or, alternatively, their motion

for a new trial. We disagree.

{¶ 70} A motion requesting a judgment notwithstanding the verdict is governed by

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Civ.R. 50(B). Coyne v. Stapleton, 12th Dist. Clermont No. CA2006-10-080, 2007-Ohio-

6170, ¶ 9. A motion for a judgment notwithstanding the verdict brought pursuant to that rule

tests the legal sufficiency of the evidence. Brown v. Taylor, 12th Dist. Butler No. CA2015-

11-199, 2016-Ohio-5180, ¶ 9. This is the same standard used to test a motion for a directed

verdict. McHenry v. Terry Materials, 12th Dist. Butler No. CA2002-03-053, 2003-Ohio-

1063, ¶ 19, citing Nickell v. Gonzalez, 17 Ohio St.3d 136, 137 (1985), citing Ayers v.

Woodard, 166 Ohio St. 138 (1957), paragraph one of the syllabus. A favorable ruling on a

motion requesting a judgment notwithstanding the verdict "is not easily obtained[.]" Osler

v. Lorain, 28 Ohio St.3d 345, 347 (1986). This is because the motion must be denied "where

any evidence of substantial probative value favors the nonmoving party, and reasonable

minds might reach different conclusions on that evidence." Faieta v. World Harvest Church,

10th Dist. Franklin No. 08AP-527, 2008-Ohio-6959, ¶ 7, citing Texler v. D.O. Summers

Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679 (1998); and Strother v. Hutchinson,

67 Ohio St.2d 282, 284-285 (1981).

{¶ 71} "We review a trial court's decision on a motion for directed verdict or judgment

notwithstanding the verdict de novo." Briggs v. Franklin Pre-Release Ctr., 12th Dist.

Madison No. CA2013-10-035, 2014-Ohio-2477, ¶ 8, citing Citibank, N.A. v. Ebbing, 12th

Dist. Butler No. CA2012-12-252, 2013-Ohio-4761, ¶ 52. As noted above, de novo review

means that this court uses the same standard the trial court should have used. Carter v.

Reese, 12th Dist. Butler No. CA2014-04-095, 2014-Ohio-5395, ¶ 11. "Neither the weight

of the evidence nor the credibility of the witnesses is for the court's determination in ruling

on a motion for judgment notwithstanding the verdict." Stewart v. Vivian, 12th Dist.

Clermont No. CA2015-05-039, 2016-Ohio-2892, ¶ 106. The evidence must nevertheless

be construed most strongly in favor of the nonmoving party. Cropper v. Jewell, 12th Dist.

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Clermont No. CA2008-09-088, 2009-Ohio-3683, ¶ 7; Phipps v. Internatl. Paper Co., 12th

Dist. Clinton No. CA2013-02-003, 2013-Ohio-3994, ¶ 11 ("[w]hen reviewing a motion

requesting a judgment notwithstanding the verdict the evidence must be construed most

strongly in favor of the party against whom the motion is made").

{¶ 72} A motion for a new trial is governed by Civ.R. 59(A). Pursuant to that rule, a

new trial may be granted upon several enumerated grounds. These grounds include

circumstances where there was an "irregularity in the proceedings of the court * * * or abuse

of discretion, by which an aggrieved party was prevented from having a fair trial." Civ.R.

59(A)(1). These grounds also include circumstances where the judgment is contrary to law

or where there was "[e]rror of law occurring at the trial and brought to the attention of the

trial court by the party making the application." Civ.R. 59(A)(7) and (9). A motion for a new

trial under Civ.R. 59(A)(1) is reviewed under an abuse of discretion standard. Koerper v.

Szabo, 10th Dist. Franklin No. 18AP-734, 2019-Ohio-3159, ¶ 7. A motion for a new trial

brought under either Civ.R. 59(A)(7) or (9) is reviewed de novo. Harrison v. Horizon

Women's Healthcare, LLC, 2d Dist. Montgomery No. 28154, 2019-Ohio-3528, ¶ 11.

{¶ 73} The Heidlers argue the trial court erred by denying their motion requesting a

judgment notwithstanding the verdict or, alternatively, their motion for a new trial due to the

trial court's improper admission of Bensen's and Hawk's trial testimony. However, as

discussed more fully above under the Heidlers' second and forth assignments of error, the

trial court did not err by admitting either Bensen's or Hawk's testimony. This holds true

regardless of whether the trial court may have applied the wrong standard of review when

ruling on the Heidlers' motion. This court applies either an abuse of discretion or de novo

standard of review when ruling on the specific arguments raised by the Heidlers in their

motion. Under either standard of review, abuse of discretion or de novo, the Heidlers' claims

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alleging the trial court erred by denying their motion fails. Therefore, because the trial court

did not err by admitting either Bensen's or Hawk's testimony, the Heidlers' argument

alleging they are entitled to a judgment notwithstanding the verdict on that basis lacks merit.

So too does the Heidlers' alternative argument alleging the trial court erred by denying their

motion for a new trial. Accordingly, finding no merit to any of the arguments raised by the

Heidlers herein, the Heidlers' sixth assignment of error is overruled.

Nationwide's Five "Conditional" Cross-Assignments of Error

{¶ 74} Nationwide advanced an additional five "conditional" cross-assignments of

error for review. Nationwide conditioned these five cross-assignments of error on whether

this court reversed or modified some part of the jury's verdict and trial court's judgment

rendered in its favor. Specifically, as Nationwide stated in its initial appellate brief, "this

Court need only consider [its five "conditional" cross-assignments of error] should [this

Court] reverse or modify some part of the jury’s verdict in Nationwide’s favor." Given our

holding in this case, Nationwide's five "conditional" cross-assignments of error are

dismissed as moot.

Conclusion

{¶ 75} Nationwide's appeal from the trial court's decision finding it's trial counsel in

contempt is dismissed for a lack of a final appealable order since the trial court has yet to

impose any penalty or sanction on Nationwide or Nationwide's trial counsel resulting from

that contempt finding. Nationwide's appeal from the trial court's decision ordering it to pay

the Heidlers' attorney fees for its failure to obey one of the many discovery orders issued

by the trial court is reversed and remanded so that the trial court may provide a basis for

awarding the amount of attorney fees that it did. In all other respects, the trial court's

judgment is affirmed.

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{¶ 76} Judgment dismissed in part, affirmed in part, reversed in part, and remanded

to the trial court for further proceedings.

HENDRICKSON, P.J., and M. POWELL, J., concur.

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