[Cite as Terrago-Snyder v. Mauro,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

CARIE TERRAGO-SNYDER, et al. ) CASE NO. 08 MA 237 ) PLAINTIFFS-APPELLEES ) ) VS. ) OPINION ) CAROL MAURO ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2005 CV 580

JUDGMENT: Affirmed in Part. Reversed in Part. Modified.

APPEARANCES: For Plaintiff-Appellee: Atty. Patrick C. Fire 721 Boardman-Poland Road Boardman, Ohio 44512

For Defendant-Appellant: Atty. Adam E. Carr The Carr Law Office, LLC 5824 Akron-Cleveland Road, Suite A Hudson, Ohio 44236

Atty. Curtis J. Ambrosy Ambrosy & Fredericka 144 North Park Avenue, #200 Warren, Ohio 44481-1124

JUDGES: Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: November 12, 2010 [Cite as Terrago-Snyder v. Mauro,

.] WAITE, J.

{¶1} This negligence action arose as a result of an automobile accident that

occurred on April 7, 2003, when a vehicle driven by Appellant, Carol J. Mauro, struck

a vehicle being driven by Appellee, Carie Terrago-Snyder. Catherine Terrago

(Carie’s mother), and Appellees, Ronald and Dylan Snyder (Carie’s then seven year

old fraternal twins) were passengers in Carie’s car when the accident occurred.

{¶2} At trial, Appellant admitted negligence and the only issue before the jury

was damages. According to the verdict form, the jury awarded damages in the

following amounts: $18,429 to Carie for her medical bills and the medical bills of her

children and $7,500 to Carie for pain and suffering; $24,000 to Ronald for pain and

suffering, and $182,000 to Ronald for permanent injuries; $9,000 to Dylan for pain

and suffering, and $4,000 to Dylan for permanent injuries; and $8,618.22 to

Catherine for medical bills and $2,500 to Catherine for pain and suffering. At a post-

trial hearing, the trial court granted a motion for prejudgment and post-judgment

interest filed on behalf of Carie, Ronald and Dylan.

{¶3} Appellant appeals two judgment entries of the Mahoning County Court

of Common Pleas: the judgment entry memorializing the $182,000 award for

Ronald’s permanent injuries and the subsequent judgment entry awarding

prejudgment interest to Carie, Ronald, and Dylan.

{¶4} Appellant contends that there was insufficient evidence to support

Ronald’s award for permanent injuries. This argument provides the basis for the first

three of Appellant’s four assignments of error: the trial court erred when it permitted

the jury to award future damages to Ronald; the trial court erred in not granting a -2-

judgment notwithstanding the verdict on the $182,000 award; and the trial court erred

when it denied a motion for new trial on the future damage award for Ronald. In her

fourth assignment of error, Appellant claims that the trial court erred in awarding

prejudgment interest in this case to Carie, Ronald and Dylan.

{¶5} Appellees filed a motion to dismiss the appeal based on App.R. 12, as

well as a motion for attorney fees pursuant to App.R. 23, arguing that Appellant’s

failure to object at trial to the permanent injury verdict form for Ronald waived any

challenge to the damages award for Ronald on appeal. Appellees further contend

that the appeal of the prejudgment interest award constitutes frivolous conduct on the

part of Appellant.

{¶6} Appellant filed a motion to strike the motion to dismiss, arguing that the

motion to dismiss constituted a surreply. Appellant argues that the motion to dismiss

was filed without leave of this Court, the fourteen page brief violates page limits set

forth in App.R. 16(C), and the content of a surreply is limited to new matters raised in

the answer brief.

{¶7} For the following reasons, Appellees’ motion to dismiss is denied, and

the judgment entries of the trial court are affirmed, however the prejudgment interest

award is modified to reflect the following amounts pursuant to the current version of

R.C. 1343.03: $6,200.73 for Carie; $5,739.43 for Ronald; and $2,152.28 for Dylan.

ASSIGNMENT OF ERROR NO. 1

{¶8} “THE TRIAL COURT ERRED IN PERMITTING THE JURY TO AWARD

FUTURE DAMAGES TO APPELLEE RONALD SNYDER, IV.” -3-

{¶9} At trial, Carie sought and was awarded future damages on Ronald’s

behalf in the amount of $182,000 for permanent injuries based upon chronic

headaches, which began approximately one month after the accident, and that

Ronald continued to suffer as of the date of trial. Thomas Yankush, DC, a

chiropractor board certified in orthopedics, provided medical testimony on behalf of

Appellees at trial. Appellant asserts that Dr. Yankush was not qualified to express an

opinion as to the alleged permanency of Ronald’s chronic headaches. In her first

assignment of error, she contends that the trial court erred in instructing the jury on

permanent or future damages based upon the lack of qualified medical testimony that

Ronald suffered permanent injuries as a result of the accident.

{¶10} In order to determine the propriety of the future damages instruction, we

must determine whether Dr. Yankush was qualified to provide expert testimony

regarding Ronald’s injuries. “Expert testimony is needed on complex issues outside

the area of common knowledge, such as an injury’s cause and effect.” Polen v.

Gilmore (Sept. 25, 2001), 7th Dist. No. 99 520 CA, *2. “Except as to questions of

cause and effect which are so apparent as to be matters of common knowledge, the

issue of the causal connection between an injury and a specific subsequent physical

disability involves a scientific inquiry and must be established by the opinion of

medical witnesses competent to express such opinion.”

citing Darnell v. Eastman

(1970),

,

, syllabus.

{¶11} A trial court’s determination of the admissibility of expert testimony is

reviewed for abuse of discretion. Valentine v. Conrad,

, 2006-

Ohio-3561,

. An abuse of discretion suggests -4-

unreasonableness, arbitrariness, or unconscionability. Without those elements, it is

not the role of this Court to substitute its judgment for that of the trial court.

Blakemore v. Blakemore (1983),

,

.

{¶12} “ ‘Courts should favor the admissibility of expert testimony whenever it

is relevant and the criteria of Evid.R. 702 are met.’ ” Terry v. Caputo,

,

,

, quoting State v. Nemeth (1998),

,

. Evid.R. 702 provides that a witness may testify as

an expert if all of the following apply:

{¶13} “(A) The witness’ testimony either relates to matters beyond the

knowledge or experience possessed by lay persons or dispels a misconception

common among lay persons;

{¶14} “(B) The witness is qualified as an expert by specialized knowledge,

skill, experience, training, or education regarding the subject matter of the testimony;

{¶15} “(C) The witness' testimony is based on reliable scientific, technical, or

other specialized information. * * *”

{¶16} Additionally, Evid.R. 703 provides: “The facts or data in the particular

case upon which an expert bases an opinion or inference may be those perceived by

him or admitted in evidence at the hearing.”

{¶17} Dr. Yankush stated that he typically treats “musculoskeletal-type

problems, and that’s like low back, neck injuries, shoulders, knees, things of that

nature, elbows,” and “orthopedic-type problems.” (Trial Tr., p. 190.) According to Dr.

Yankush’s notes, Ronald presented to him on April 25, 2003 with complaints of neck

and back pain. Dr. Yankush diagnosed “cervical and an upper back or a dorsal -5-

sprain/strain type of an injury.” (Trial Tr., p. 198.) He explained that a sprain is an

injury to a ligament, which is the soft tissue structure that holds the bones together.

Sudden force stretches the bones apart and causes damage to the ligament. (Trial

Tr., pp. 198-199.) Dr. Yankush diagnosed a moderate strain with “significant muscle

spasms, swelling, [and] restriction in motion in the joints.” (Trial Tr., pp. 199-200.)

{¶18} The medical records of a pediatric neurologist, Thomas Kalavsky, MD,

who did not testify at trial, were admitted as a part of a joint exhibit offered by the

parties. Dr. Kalavsky’s medical report, dated November 11, 2003, reads, in pertinent

part:

{¶19} “HISTORY OF PRESENT ILLNESS:

{¶20} “This 8-year-old was referred because of headaches.

{¶21} “On April 7, 2003. In [sic] back seat of car which hit another car. He hit

his face on the seat in front of him. He was knocked out briefly. He didn’t talk for 3

days. He didn’t vomit. Fracture of facial bones. A CT of head – brain normal. When

he started to talk he had pain in his left mandible. In May he started getting

headaches. They occur almost every day. He has no aura. The pain starts in the

left orbital region. The onset is gradual. His ‘black eye’ comes back out again. The

intensity is 5/5. He can’t describe the quality. He vomits about 2 / month [sic]. He

has no dizziness, rash, or fever. He has no change in vision, hearing, sensation,

strength, or speech. They last hours. Light, exertion, noise makes them worse;

Sleep, eating peanut butter makes them better. The onset is usually after lunch, in

the sun, if playing hard, or playing videogames. The onset is not related to day of

week, location, particular meals, meals, position, ambient temperature, or chewing. -6-

Tylenol will help if given early, Motrin makes him vomit, excedrin quick tabs [sic]

helps if given early. He hasn’t had any recent blood work.

{¶22} “Last year he missed a couple weeks of school. He’s in the nurse’s

office for 1-2 hours. He’s in regular class 2nd grade. He excels in everything except

reading. He hasn’t lost any skills. He has a concentration problem. He hasn’t had

seizures.

{¶23} “* * *

{¶24} “IMPRESSION:

{¶25} “The daily headaches sound like muscle traction headaches, which

won’t respond well to medication but respond to relaxation techniques, like massage,

etc.

{¶26} “Its not clear if the headaches with vomiting are from the motrin [sic]. If

not some of the headaches may be migraine.

{¶27} “He probably has a dyslexia which might be worsening his muscle

traction headaches.” (9/18/08 JNOV Motion, Exh. A.)

{¶28} Dr. Yankush treated Ronald over the course of a three week period,

and there was no reference to Ronald’s headaches in his notes. However, according

to Dr. Kalavsky’s medical records, Ronald’s headaches began approximately one

month after the accident, which roughly coincides with the end of Ronald’s treatment

by Dr. Yankush. Consequently, it is not inconsistent with the testimony provided at

trial that the onset of Ronald’s headaches occurred after he concluded his treatment

with Dr. Yankush. -7-

{¶29} Dr. Yankush conceded that he was not qualified to treat Ronald’s facial

injuries. (Trial Tr., p. 197.) His notes indicate that he was treating Ronald for neck

and upper back pain with heat, “inferential,” mobilization, and exercises. He also

recommended that Carie purchase arch supports for Ronald. The notes document

Ronald’s continuous improvement, and the final entry reads:

{¶30} “S: Ronnie is doing pretty good. He doesn’t have any real complaints.

{¶31} “O: We have full and pain free neck and trunk ROM. He may still have

some sinus things going on and he’ll discuss that with his other treating physician.

{¶32} “P: At this time, I’m basically going to effectively see him in one month

for a recheck. I want him to stay with his home exercises.”

{¶33} Dr. Yankush diagnosed Ronald as suffering from muscle strain as a

result of the accident. He testified that muscle traction headaches are a common

result of the type of muscle strain suffered as a result of the accident:

{¶34} “Oftentimes following a moderate or severe sprain/strain injury like

[Ronald] sustained here to his neck where have you [sic] a sudden force driving your

head backwards and forwards, it can create a strain to the muscles. And sometimes

these will be nagging or the wax and the wane; they’ll come and they’ll go. What

they’ll do is go into a hypertensive state. And particularly at the base of the neck we

have what we call suboccipital nerves that come up through these muscles. And

sometimes when these muscles get into this spastic or this tension state, it will

compress the nerves and you’ll get these tension headaches. And that’s not

uncommon.

{¶35} “* * * -8-

{¶36} “They can typically come up through the back of the head to the

forehead to the facial region.” (Trial Tr., p. 202.)

{¶37} Dr. Yankush testified that he commonly treats muscle traction

headaches, and that the treatment includes ice, heat, muscle stimulation, and

manipulation. (Trial Tr., pp. 204-205.) Based on Ronald’s age at the time of the

injury, and the fact that Ronald continued to suffer headaches up to the date of the

trial, Dr. Yankush further testified that there was a “certain degree of permanency” to

Ronald’s injuries. (Trial Tr., p. 204.) Dr. Yankush’s testimony was uncontroverted,

as Appellant provided no expert medical testimony.

{¶38} Carie testified that Ronald frequently vomited as a result of the

headaches. (Trial Tr., pp. 284, 288, 307.) She testified that the headaches “started

to ease up” when Ronald was in the fourth grade. (Trial Tr., p. 287.) Ronald testified

that the headaches lessened in severity and frequency over time, and that, at the

time of trial, he suffered a headache about three times a month. (Trial Tr., p. 326.)

He stated that when he can sense the onset of a headache he can treat it before it

strikes. However, on the occasions when the onset is unavoidable, he will typically

vomit and he is usually forced to go to bed. (Trial Tr., p. 328.)

{¶39} The permanent injury jury instruction read in pertinent part:

{¶40} “[E]xcept for the plaintiff Catherine Terrago, each of the plaintiffs claim

their injuries are permanent and that they will experience pain and disability in the

future. Now, as to such claim, damages may be found by you which are reasonably

certain to exist in the future as the proximate result of this accident and as proven by

the evidence. -9-

{¶41} “If you find from the greater weight of the evidence that as a proximate

cause of the injuries sustained the plaintiffs have suffered a permanent disability

which is evidenced by way of the inability to perform the usual activities of life such

as the basic mechanical body movements of walking, climbing stairs, feeding oneself,

driving a car and so forth, or by way of the inability to perform the particular plaintiff’s

usual specific activities which had given pleasure to these individual plaintiffs, you

may consider and make a separate award for such damages.” (Trial Tr., pp. 457-

458.)

{¶42} The jury was given a verdict form that included lines captioned “Pain

and suffering to date” and “Permanent injuries” for Ronald.

{¶43} Appellant’s argument in the first assignment of error is twofold: first, Dr.

Yankush did not treat Ronald for his headaches; second, Dr. Yankush is not qualified

to offer expert testimony on Ronald’s headaches. With respect to Appellant’s first

argument, a non-treating physician’s expert testimony is not entitled to any less

weight than that of a treating physician. Coulter v. Stutzman, 10th Dist. No. 07AP-

1081,

. With respect to the second argument, a prospective

witness does not have to be the best witness on the topic to qualify as an expert.

Haney v. Barringer, 7th Dist. No. 06MA141,

, citing Ishler v.

Miller (1978),

,

.

{¶44} A potential expert must demonstrate knowledge greater than that

possessed by an average juror.

citing State Auto Mut. Ins. Co. v. Chrysler Corp.

(1973),

,

. Dr. Yankush testified on direct

examination that he sees and treats patients with muscle traction headaches in the -10-

course of his practice. His testimony established that the muscle strain in the neck

suffered by Ronald as a result of the accident is a common cause of muscle traction

headaches. Dr. Yankush’s testimony further established that Ronald’s headaches

would be an ongoing problem. Accordingly, the trial court did not abuse its discretion

in admitting his testimony. Appellant provided no expert testimony to refute Dr.

Yankush’s testimony, and Dr. Yankush did not contradict his own testimony on cross

examination.

{¶45} Turning to Appellant’s argument that the trial court erred when it

instructed the jury on future damages, it is important to note that her trial counsel did

not object to the future damages instruction or the verdict form. “Absent plain error, a

party waives any challenge to jury instructions in a civil case unless that party

‘objects before the jury retires to consider its verdict, stating specifically the matter

objected to and the grounds of the objection .’ ” Sayavich v. Creatore, 7th Dist. No.

07-MA 217,

, ¶101, citing Civ.R. 51(A).

{¶46} “In appeals of civil cases, the plain error doctrine is not favored 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 paragraph one of the

syllabus.

{¶47} In Goldfuss, the Court explained that the doctrine shall only be applied

in extremely unusual circumstances where the error complained of, if left -11-

uncorrected, would have a material adverse effect on the character of and public

confidence in judicial proceedings.

,

. The Court

concluded that the public’s confidence is rarely upset merely by forcing civil litigants

to live with the errors they themselves or the attorney chosen by them committed at

trial.

,

.

{¶48} Generally, requested jury instructions should be given if they are a

correct statement of the law as applied to the facts in a given case. Murphy v.

Carrollton Mfg. Co. (1991),

,

. “[A] court’s

instructions to the jury should be addressed to the actual issues in the case as

posited by the evidence and the pleadings.” State v. Guster (1981),

,

. Because Dr. Yankush provided uncontroverted evidence

that Ronald’s reoccurring headaches were a permanent condition, the trial court did

not commit plain error in instructing the jury on future damages. As a consequence,

Appellant’s first assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 2

{¶49} “THE TRIAL COURT ERRED IN FAILING TO ISSUE JUDGMENT

NOTWITHSTANDING THE VERDICT TO ELIMINATE THE $182,000 IN FUTURE

DAMAGES FROM THE AWARD TO APPELLEE RONALD SNYDER, IV.”

{¶50} In her second assignment of error, Appellant challenges the trial court’s

decision denying her motion for judgment notwithstanding the verdict, in which she

moved the trial court to eliminate the $182,000 future damages award. A trial court

must grant a motion for a judgment notwithstanding the verdict if, upon construing the

evidence most strongly in favor of the party against whom the motion is directed, -12-

finds that upon any determinative issue reasonable minds could come to but one

conclusion upon the evidence submitted and that conclusion is adverse to such

party. Nickell v. Gonzalez (1985),

,

.

{¶51} When engaging in this analysis, a court must neither weigh the

evidence nor evaluate the credibility of witnesses. Malone v. Courtyard by Marriott

L.P. (1996),

,

. “Rather, the court is

confronted solely with a question of law: Was there sufficient material evidence

presented at trial on this issue to create a factual question for the jury?”

We

review a trial court’s ruling on a motion for JNOV de novo. Goodyear Tire & Rubber

Co. v. Aetna Cas. & Sur. Co.,

,

,

.

{¶52} As stated in our analysis of the first assignment of error, Dr. Yankush’s

uncontroverted testimony established that Ronald suffered muscle strain in his neck

as a result of the accident, muscle strain is a common cause of muscle traction

headaches, and Ronald’s headaches would be an ongoing problem. Dr. Yankush’s

testimony was sufficient to create a factual question for the jury regarding the

permanency of Ronald’s injuries. Therefore, Appellant’s second assignment of error

is overruled.

ASSIGNMENT OF ERROR NO. 3

{¶53} “THE TRIAL COURT ERRED IN FAILING TO ORDER A NEW TRIAL

ON THE ISSUE OF FUTURE DAMAGES FOR APPELLEE RONALD SNYDER, IV.”

{¶54} In her third assignment of error, Appellant claims that the trial court

erred in denying her motion for a new trial. The purpose of Civ.R. 59(A), captioned: -13-

“New trials,” is to empower the trial court to prevent a miscarriage of justice. Malone

at 448. “Civ.R. 59 allows, rather than mandates, a trial court to grant a new trial * * *.”

Sims v. Dibler, 7th Dist. No. 05 JE 53,

,

,

, citing Eagle Am. Ins. Co. v. Frencho (1996),

,

.

{¶55} Civ. R. 59(A) reads, in pertinent part:

{¶56} “A new trial may be granted to all or any of the parties and on all or part

of the issues upon any of the following grounds:

{¶57} “* * *

{¶58} “(4) Excessive or inadequate damages, appearing to have been given

under the influence of passion or prejudice;

{¶59} “* * *

{¶60} “(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;

{¶61} “(7) The judgment is contrary to law;

{¶62} “* * *

{¶63} “(9) Error of law occurring at the trial and brought to the attention of the

trial court by the party making the application * * *”

{¶64} A court of appeals must affirm the decision of a trial court to deny a new

trial unless there is an abuse of discretion. Jones v. Booker (1996),

,

. An abuse of discretion implies a decision that is unreasonable,

arbitrary, or unconscionable.

. -14-

{¶65} When a trial court’s decision on a motion for a new trial involves a

question of fact, a reviewing court must view the evidence in a light favorable to the

trial court’s decision. Osler v. Lorain (1986),

,

,

citing Jenkins v. Krieger (1981),

,

. When a

trial court’s decision on a motion for new trial involves a question of law, no deference

is afforded. Wagner v. Roche Laboratories (1999),

,

.

{¶66} In her motion for new trial, Appellant argued that the jury verdict was

against the manifest weight of the evidence. Pursuant to a civil manifest weight of

the evidence standard of review, a reviewing court should defer to the judgment of

the trial court in factual determinations, and “[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.” Creative Concrete v. D & G Pools, 7th Dist No. 07

MA 163,

, quoting C.E. Morris v. Foley Construction Co. (1978)

,

,

St.3d 12, 19,

.

{¶67} As stated earlier, Dr. Yankush’s testimony constituted competent,

credible evidence that Ronald’s headaches constituted a permanent injury resulting

from the accident. Appellant adduced no evidence to the contrary. Consequently,

Appellant’s manifest weight of the evidence argument lacks merit.

{¶68} Appellant’s contention that the verdict was contrary to law and the result

of an error of law is also predicated on Dr. Yankush’s qualifications to provide expert

testimony. As we have previously concluded that the trial court did not abuse its -15-

discretion in admitting Dr. Yankush’s testimony in this case, these arguments must

also fail.

{¶69} Finally, Appellant argued that the future damages awarded to Ronald

were excessive based upon a lack of competent medical testimony, the admission of

photographs of Ronald after the accident, and statements made by Appellees’ trial

counsel during closing argument. Once again, as we have concluded that the trial

court did not abuse its discretion in admitting Dr. Yankush’s testimony, there is no

basis for Appellant’s assertion that the damage award was excessive due to a lack of

competent medical testimony.

{¶70} However, Appellant also contends that Ronald’s permanent injury

award was based on inappropriate statements made by Appellees’ trial counsel

during closing argument and photographs of Ronald’s injuries, rather than properly

admitted expert medical testimony as required by Ohio law. Appellant relies upon

statements made during closing arguments that Ronald had a sinus injury, that he

would need surgery on a deviated septum in the future, and that he would not be

able to fly an airplane (Ronald had testified that he wanted to be an airline

mechanic). She also relies upon photographs admitted into evidence to argue that

the jury’s permanent injury award was predicated upon statements unsupported by

the evidence, and photos “depicting a sorrowful seven-year-old boy with his face

severely swollen after the accident,” rather than the evidence adduced at trial.

(Appellant’s Brf., p. 14.)

{¶71} Appellant did not object to the introduction of the photos or the

statements made in closing arguments at trial. As such, Appellant must once again -16-

demonstrate that the admission of the photographs and statements during closing

argument constitute plain error. As stated earlier, the plain error doctrine is

disfavored and may be applied only in the extremely rare case involving exceptional

circumstances where the error “seriously affects the basic fairness, integrity, or public

reputation of the judicial process, thereby challenging the legitimacy of the underlying

judicial process.”

{¶72} Appellant filed supplemental authority and second supplemental

authority in support of her excessive damages argument. In State ex. rel. Cambridge

Health Care Inc. v. Industrial Commission of Ohio,

, 2010-Ohio-

651,

, the Ohio Supreme Court held that a physical therapist’s report

is insufficient, on its own, to support an award of loss-of-use workers’ compensation

benefits, and that such a report may be considered only in conjunction with a doctor’s

report to determine the severity of a disability. Id. at ¶7, 17. The evidence in the

case sub judice does not include a physical therapist’s report, therefore Cambridge

Health Care is inapposite. Appellant’s counsel conceded at oral argument that

chiropractors are not treated by the same standards as physical therapists in Ohio.

{¶73} In Maggio v. City of Cleveland (1949),

,

,

the Ohio Supreme Court held that remarks by plaintiff’s counsel in opening statement

regarding a personal-injury plaintiff’s children and her mentally ill husband, as well as

a description of the previous accident responsible for her husband’s illness were

improper. The Court relied on Ohio law that evidence of a plaintiff’s dependents is

incompetent for the reason that such evidence tends to enhance the damages award

beyond the legally recoverable sum. There was no evidence suggesting that Ronald -17-

had dependents that relied upon him for their case and support, so Maggio is also

inapposite.

{¶74} In Hayes v. Smith (1900),

,

, a dog owned

by Hayes attacked a horse pulling a buggy owned and occupied by Smith, which

caused the buggy to overturn and severely injure Smith. Smith argued that Hayes

was aware of the dog’s vicious nature and propensity for attacking horses attached to

wagons. The Hayes Court reversed the trial court’s denial of the motion for new trial

for several reasons, including the use of hypothethicals during cross-examination,

and accusations by Smith’s counsel before the jury that Hayes’ counsel was

attempting to suppress the truth. It appears that Appellant is relying upon Hayes for

the proposition that trial counsel’s attack on opposing counsel during argument was

grounds for a new trial. However, the closing argument in this case did not result in

the manifest prejudice found in Hayes.

{¶75} Simply stated, none of the cases cited by Appellant as supplemental

authority have convinced us that the admission of the photographs or the statements

of Appellant’s trial counsel during closing arguments constitute plain error under the

civil plain error standard. Accordingly, Appellant’s third assignment of error is

overruled.

ASSIGNMENT OF ERROR NO. 4

{¶76} “THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING

PREJUDGMENT INTEREST.”

{¶77} The ultimate decision to award prejudgment interest is reposed in the

trial judge and the standard of review on appeal is abuse of discretion. Ziegler v. -18-

Wendel Poultry Serv., Inc. (1993),

,

.

Prejudgment interest awards are governed by R.C. 1343.03(C). The current version

of the statute, amended June 4, 2004, reads, in its entirety:

{¶78} “(C)(1) If, upon motion of any party to a civil action that is based on

tortious conduct, that has not been settled by agreement of the parties, and in which

the court has rendered a judgment, decree, or order for the payment of money, the

court determines at a hearing held subsequent to the verdict or decision in the action

that the party required to pay the money failed to make a good faith effort to settle the

case and that the party to whom the money is to be paid did not fail to make a good

faith effort to settle the case, interest on the judgment, decree, or order shall be

computed as follows:

{¶79} “(a) In an action in which the party required to pay the money has

admitted liability in a pleading, from the date the cause of action accrued to the date

on which the order, judgment, or decree was rendered;

{¶80} “(b) In an action in which the party required to pay the money engaged

in the conduct resulting in liability with the deliberate purpose of causing harm to the

party to whom the money is to be paid, from the date the cause of action accrued to

the date on which the order, judgment, or decree was rendered;

{¶81} “(c) In all other actions, for the longer of the following periods:

{¶82} “(i) From the date on which the party to whom the money is to be paid

gave the first notice described in division (C)(1)(c)(i) of this section to the date on

which the judgment, order, or decree was rendered. The period described in division

(C)(1)(c)(i) of this section shall apply only if the party to whom the money is to be paid -19-

made a reasonable attempt to determine if the party required to pay had insurance

coverage for liability for the tortious conduct and gave to the party required to pay

and to any identified insurer, as nearly simultaneously as practicable, written notice in

person or by certified mail that the cause of action had accrued.

{¶83} “(ii) From the date on which the party to whom the money is to be paid

filed the pleading on which the judgment, decree, or order was based to the date on

which the judgment, decree, or order was rendered.

{¶84} “(2) No court shall award interest under division (C)(1) of this section on

future damages, as defined in section 2323.56 of the Revised Code, that are found

by the trier of fact.”

{¶85} The 2004 amendments to the statute served to limit prejudgment

interest awards. The amended statute prohibits prejudgment interest awards

predicated on future damages, which were permissible under the previous law. The

current version of the statute mandates that prejudgment interest awards date back

to the day that the cause of action accrued only where liability was admitted in a

pleading or the injury was the result of intentional conduct, while the old statute

mandated that prejudgment interest awards date back to the day that the cause of

action accrued without limitation.

{¶86} Appellant argues that the amended statute should apply in this case,

citing our decision in Scibelli v. Pannunzio, 7th Dist. No. 05 MA 150,

.

In Scibelli, the plaintiff filed his complaint prior to the effective date of the 2004

amendment to the prejudgment interest statute. Applying the test articulated in Van

Fossen v. Babcock & Wilson Co. (1988),

,

, we -20-

concluded that the General Assembly did not intend that the amendment to

subsection (C) of the statute should be applied retroactively to pending cases.

.

{¶87} The Scibelli Court specifically rejected the argument raised by

Appellees in the case sub judice, that the legislature intended a retroactive

application of the entire statute based upon uncodified law that specifically addressed

the retroactive application of subsection (A) of the statute. This Court held that the

uncodified law addressing the interest rate provision was “a contraindicator of

legislative intent to make other divisions retroactive.” Id. at ¶147.

{¶88} Here, the accident occurred prior to the statutory amendments, but the

complaint was filed after the effective date of the amended statute. The trial court

awarded prejudgment interest on the entire award dating back to the date of the

accident. In this case, Appellant did not admit liability in a pleading, nor is there any

evidence that she deliberately caused Appellees’ injuries. Based upon our decision

in Scibelli, the trial court erred when it applied the previous version of the statute in

fashioning the prejudgment interest award.

{¶89} According to the current statute, Appellees’ prejudgment interest award

is limited to the damages award for medical bills and pain and suffering. Further, as

there is no evidence that Appellees gave “first notice,” as that term is defined by the

statute, prejudgment interest runs from the date that the complaint was filed.

{¶90} Turning to the substantive issues, the Ohio Supreme Court has held

that there are four requirements to an award of prejudgment interest: (1) a timely

motion within 14 days after judgment; (2) a hearing on the motion; (3) a finding by the -21-

court that the party required to pay failed to make a good faith effort to settle; and (4)

a finding by the court that the party to whom the judgment is to be paid made a good

faith effort to settle. Moskovitz v. Mt. Sinai Med. Ctr. (1994),

,

.

{¶91} The trial court must exercise its discretion to determine whether a party

acted in good faith or failed to make a good faith effort to settle.

If the record

contains competent, credible evidence supporting the trial court's decision, there is

no abuse of discretion. Patterson v. Colla, 7th Dist. No. 03-MA-18,

. The burden of proof is on the party seeking prejudgment interest.

.

{¶92} Lack of good faith is not the same as bad faith.

The Ohio Supreme

Court has defined what constitutes lack of a good faith effort in the negative:

{¶93} “A party has not ‘failed to make a good faith effort to settle’ under R.C.

1343.03(C) if he has (1) fully cooperated in discovery proceedings, (2) rationally

evaluated his risks and potential liability, (3) not attempted to unnecessarily delay any

of the proceedings, and (4) made a good faith monetary settlement offer or

responded in good faith to an offer from the other party. If a party has a good faith,

objectively reasonable belief that he has no liability, he need not make a monetary

settlement offer.” Kalain v. Smith (1986),

,

, at the

syllabus.

{¶94} The Moskovitz Court added that the last sentence of the Kalain syllabus

should be strictly construed so as to carry out the purposes of R.C. 1343.03(C).

Moskovitz,

,

. The purposes of R.C. 1343.03(C) -22-

are “ ‘to promote settlement efforts, to prevent parties who have engaged in tortious

conduct from frivolously delaying the ultimate resolution of cases, and to encourage

good faith efforts to settle controversies outside a trial setting.’ ”

,

, quoting

.

{¶95} At the hearing on the motion for prejudgment interest, Appellees’ trial

counsel stated that a demand for $12,000 was made on behalf of Carie, a demand of

$25,000 for Dylan, and a demand of $45,000 for Ronald. (Hrg. Tr., p. 11.) An offer

of $8,000 was made to Carie, and an offer of $11,199 was made to Dylan, but no

offer was made to Ronald until the final pretrial conference. (Hrg. Tr., p. 11.)

{¶96} There was no movement from the original offers to Carie and Dylan at a

court-ordered mediation held in July of 2006, and no response was provided to a

letter that Appellees’ counsel sent to the adjuster in December of 2007. (Hrg. Tr., pp.

8-9.) The letter set forth a history of Appellees’ injuries and their respective medical

bills, as well as a reduced demand intended to evoke a settlement.

{¶97} According to Appellees’ counsel, he fulfilled his duty to document the

extent of Ronald’s injuries, and ongoing medical problems, because he assumed that

some offer would be made. He claims that he was never approached for additional

documentation regarding Ronald’s injuries. (Hrg. Tr., p. 10.)

{¶98} At the final pretrial conference, which was conducted four days before

the trial, the adjuster offered $1,152 for Ronald. (Hrg. Tr., p. 12.) According to

Appellees’ trial counsel, the adjuster stated that Ronald’s dental records had not

been made available to her. (Hrg. Tr., p. 12.) -23-

{¶99} According to Appellees’ trial counsel, Appellant’s trial counsel conceded

that, with $5,008 in medical bills, a larger settlement offer should have been made.

(Hrg. Tr., pp. 12-13.) On the day of trial, an offer of $11,592 was made to Ronald.

According to Appellees’ trial counsel, Appellant’s trial counsel conceded that, with

Ronald’s ongoing headaches, a larger settlement offer would have been expected.

(Hrg. Tr., p. 13.)

{¶100} Appellant’s trial counsel did not appear at the hearing on the motion

for prejudgment interest. The attorney who attended the hearing on behalf of

Appellant was an associate at her trial counsel’s law firm, and he explained that it

was the standard procedure of the firm to assign new counsel for post-trial motions

and appeals. (Hrg. Tr., p. 3.) Appellees’ trial counsel attempted to call the adjuster

as a witness at the hearing, but was told that she had a sick child who was

hospitalized and that she could not attend. (Hrg. Tr., pp. 11-12.)

{¶101} Appellant’s counsel sought to continue the hearing due to the

unavailability of the adjuster and Appellant’s trial counsel, and objected to the trial

court’s reliance on any statements allegedly made by them, which he argued

constituted hearsay. (Hrg. Tr., p. 40.)

{¶102} The claims file revealed that Appellant’s insurance company had

placed $25,000 in reserve for Ronald, $5,000 for Carie, and $5,000 for Dylan.

According to Appellees’ trial counsel, medical authorizations were provided to

Appellant’s trial counsel and the adjuster, as well as medical records for each of the

injured parties. (Hrg. Tr., p. 8.) Appellant’s counsel argued that the reserves were -24-

irrelevant, because Appellees’ counsel had failed to explain their relevance to the

claims, and, in fact, that they merely serve a bookkeeping function.

{¶103} Appellant’s counsel argued that Appellees never provided complete

information regarding their injuries. More specifically, he argued that there was no

evidence of the permanency of Ronald’s injuries prior to trial. (Hrg. Tr., p. 34.) He

further argued that Appellees’ trial counsel requested three continuances during the

course of the lawsuit.

{¶104} At the hearing on the motion for prejudgment interest, the trial court

concluded that the pretrial offer made by Appellant was “absolutely almost insulting.”

(Hrg. Tr., pp. 51-52.) The trial court recalled that, at numerous pretrial conferences,

there was no offer made to Ronald, despite photographs detailing his injuries. The

court expressed particular concern that the adjuster had not made an offer that would

cover the medical bills in this case. (Hrg. Tr., p. 51.) Ultimately, the trial court

characterized the settlement offer as an act of bad faith on the part of Appellant’s

insurer. (Hrg. Tr., p. 52.)

{¶105} Evidently, the trial court credited the rendition of the settlement

negotiations provided by Appellees’ trial counsel. The court did not accept

Appellant’s assertion that she was ambushed by Ronald’s claim for permanent

injuries at trial or that Appellant’s insurance company was not provided complete

medical records prior to trial. The trial court also rejected Appellant’s claim that

Appellees were responsible for pretrial delay due to their motions to continue the trial.

According to the docket, the trial was continued twice due to the unavailability of the

trial court. Appellees filed two motions to continue pretrials, but neither resulted in -25-

undue delay. Thus, competent, credible evidence exists supporting the trial court’s

decision, and there is no abuse of discretion.

{¶106} Therefore, Appellant’s fourth assignment of error is sustained in part,

and overruled in part. There is sufficient evidence to support the award of

prejudgment interest in this case, however, the amounts awarded are modified

pursuant to the current version of R.C. 1343.03 as follows:

{¶107} Carie: prejudgment interest in the amount of $6,200.73 for a total

award of $32,129.73;

{¶108} Ronald: prejudgment interest in the amount of $5,739.43 for a total

award of $211,739.43;

{¶109} Dylan: prejudgment interest in the amount of $2,152.28 for a total

award of $15,152.28.

Vukovich, P.J., concurs.

DeGenaro, J., concurs.