[Cite as Brown v. Senor Gringo's, Inc.,

.]

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),

,

. 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),

,

.

{¶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.,

,

,

.

{¶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,

, citing

Janosek v. Janosek, 8th Dist. Nos. 91882, 91914,

, ¶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,

, quoting Burns

v. Prudential Securities, Inc.,

,

,

, citing Crawford v. Halkovics (1982),

,

; 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),

,

. 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,

, citing Hargrove v. Tanner (1990), 66 Ohio

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App.3d 693, 695,

. As such, this Court reviews a trial court’s

ruling on a motion for directed verdict de novo. Burns,

,

citing McConnell v. Hunt Sports Ents. (1999),

,

.

{¶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),

,

. 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),

,

, 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,

, 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),

,

. “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,

, citing State v. Lundgren (1995),

; 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,

,

,

, quoting Shealy v. Campbell (1985),

,

.

“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,

. 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,

,

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,

,

,

.

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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),

,

; 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,

, at ¶13, quoting

Campbell,

. Furthermore, plaintiffs had a substantive right to

all those damages which were proximately caused by Senor Gringo’s tortious

conduct. Campbell,

. 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,

, 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),

,

,

. 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),

,

,

. 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 OBR 136, 138,

, 393, citing

,

,

.

Cooper v. Feeney (1986),

,

.

{¶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,

. 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,

, citing Posin v. A.B.C. Motor Court

Hotel (1976),

,

.

{¶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.,

,

,

,

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¶¶35-36; Lewis v. Nease, 4th Dist. No. 05CA3025,

;

McDonald v. McDonald (Aug. 27, 1998), 4th Dist. No. 96CA912, at *5-6; Ward v.

Geiger, 3d Dist. No. 14-05-14,

; 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,

; O'Day v. Webb (1972),

,

; Ferguson v. Dyer (2002),

,

, citing Rohde v. Farmer (1970),

,

,

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),

,

; Sanders v. Mt. Sinai Hosp. (1985),

,

.

{¶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,

, citing Cabe v. Lunich (1994),

, 640

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. However, it is the trial court’s duty to include in its instructions a

correct, clear, and complete statement of the law. Ward,

,

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.”’

citing Becker v. Lake Cty. Mem.

Hosp. W. (1990),

,

.

{¶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,

, 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,

, 2008-

Ohio-5536,

. Without a transcript, we must presume

regularity of the proceedings and that the trial court acted properly by denying

Senor Gringo’s motions.

citing Lawless v. Kinsey (Sept. 8, 1997), 3d Dist. No.

6-97-11, at *2, citing Chaney v. East (1994),

,

; Volodkevich v. Volodkevich (1989),

, 549

- 26 - Case No. 4-09-

, citing Meinhard Commercial Corp. v. Spoke and Wheel, Inc. (1977),

,

.

{¶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

- 27 - Case No. 4-09-18

Dist. No. 6-09-04,

, quoting In C.E. Morris Co. v. Foley

Constr. Co. (1978),

,

, at syllabus. See, also,

State v. Wilson,

,

,

, ¶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

overruled.

{¶55} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr

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