Thornton v. Conrad , 194 Ohio App. 3d 34 ( 2011 )

[Cite as Thornton v. Conrad, 194 Ohio App.3d 34, 2011-Ohio-3590.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95982
THORNTON,
APPELLEE,
vs.
CONRAD, ADMR., ET AL.,
APPELLANTS.
JUDGMENT:
REVERSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-449323
BEFORE: Keough, J., Jones, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: July 21, 2011
Gregg A. Austin, for appellee.
Michael DeWine, Attorney General, and Mary Ann Rini, Assistant Attorney
General, for
appellant James Conrad, Administrator, Ohio Bureau of Workers’ Compensation.
Willacy, Lopresti & Marcovy, Timothy A. Marcovy, and Michael S. Lewis, for
appellant Sysco Food Service.
KATHLEEN ANN KEOUGH, Judge.
{¶ 1} Defendant-appellant, Sysco Food Services of Cleveland, Inc. (“Sysco”),
appeals from the trial court’s judgment granting the motion for a new trial of appellee,
Eugene Thornton. For the reasons that follow, we reverse the trial court’s judgment.
I
{¶ 2} Thornton was employed by Sysco. On January 1, 2001, Thornton, walking
with a noticeable limp, approached his supervisor and asked under what conditions a drug
test would be required if he sought medical attention. Thornton’s supervisor reminded
him of Sysco’s policy that a drug-and-alcohol test was mandatory if an at-work injury was
being reported, but no such testing was required if the need for medical attention was not
work related.
{¶ 3} Thornton then reported to the nurse’s station. He told the nurse that he had
injured his foot earlier that day, before he came to work, when he dropped a dresser on
his foot while helping a friend move furniture. After the nurse examined Thornton’s
foot, he was taken to the emergency room at Marymount Hospital, where he repeated the
history of injuring his foot at home. Seven days later, Thornton changed his story and
reported for the first time that he had injured his foot at work.
{¶ 4} In accord with Sysco’s policy, because Thornton had repeatedly stated that
his injury occurred away from work, he was not tested for alcohol or drug intoxication.
At trial, however, Thornton admitted that he had used alcohol and marijuana at a New
Year’s Eve party the night before the accident. He also admitted that he habitually used
marijuana in the several years prior to his injury.
{¶ 5} Thornton’s injury required partial amputation of his left big toe and
amputation of his left second toe. He filed an application with the Industrial
Commission of Ohio for workers’ compensation benefits. His claim was denied
throughout the administrative process, and he appealed the final administrative denial to
the common pleas court.
{¶ 6} Due to the originally assigned judge’s heavy trial schedule, the case was
transferred to a visiting judge, who conducted a three-day trial. The judge instructed the
jury on the law, including that “an injury does not arise out of employment when the
injury occurred while the employee was so intoxicated that he could not perform his job
or services” and that they were to determine, among other things, “whether the proximate
cause of [Thornton’s] injuries was his voluntary [sic] being under the influence of drugs.”
The jury returned a verdict in favor of Sysco, and the trial court rendered judgment on
the jury’s verdict.
{¶ 7} Thornton then filed a motion for judgment notwithstanding the verdict or,
alternatively, a new trial. The visiting judge granted Thornton’s motion for a new trial,
but the judgment entry did not provide any reasons for doing so.
{¶ 8} On appeal, this court held that under Civ.R. 59, the trial court erred in
granting Thornton’s motion for a new trial without specifying the grounds for its ruling.1
Thornton v. Conrad, Cuyahoga App. No. 83538, 2004-Ohio-3472, ¶ 49. This court
noted that without the trial court’s reason for granting the motion, an appellate court is
precluded from reviewing the propriety of the trial court’s decision to grant a new trial.
Id. at ¶ 48. Accordingly, this court reversed the judgment granting a new trial and
remanded the matter to the trial court to state its grounds for granting the motion for new
trial. Id. at ¶ 49.
{¶ 9} The visiting judge who had presided over trial had died in the interim, so
the case was returned to the judge originally assigned to the case. Inexplicably, the case
then languished on the trial court’s docket for nearly five years. Finally, on March 5,
2009, Thornton filed a motion “requesting an order setting forth the grounds for relief
granted.” In his brief in support, Thornton argued that the court should grant either a
judgment notwithstanding the verdict or a new trial because there was insufficient
evidence produced at trial to support the jury’s conclusion (1) that he was intoxicated or
under the influence at the time of his injury and (2) that such intoxication or being under
the influence was the proximate cause of his injury. Thornton’s brief contained a section
entitled “Details from the Underlying Trial–A Refresher,” in which Thornton described
Civ.R. 59 states, “When a new trial is granted, the court shall specify in writing the grounds
1
upon which such new trial is granted.”
the evidence produced at trial because, he explained, “As this court did not preside over
the jury trial itself, it would be prudent to provide certain details of the underlying trial to
facilitate an order.”
{¶ 10} Sysco filed a brief opposing Thornton’s motion. Subsequently, the
originally assigned judge entered an order granting Thornton’s motion for a new trial
because “the jury verdict is not supported by the weight of the evidence as to the issue of
proximate cause.”2
{¶ 11} The trial court subsequently entered another order in which it clarified that
“for the record on appeal, * * * this Court did not have a copy of the trial transcript
available for review when reviewing and granting the plaintiff’s motion for a new trial.”
II
{¶ 12} In its first assignment of error, Sysco argues that the originally assigned
judge (in effect, the successor judge), who had not presided over the trial, erred in
granting the motion for a new trial because he did not review the trial transcript before
rendering his ruling.
{¶ 13} When a party files a motion for new trial on the ground that the judgment is
not sustained by the sufficiency or weight of the evidence, the trial court has a duty to
review the evidence presented at trial and weigh the sufficiency of the evidence and the
The judge did not rule on Thornton’s motion for judgment notwithstanding the verdict.
2
Motions not ruled upon are deemed implicitly denied. State ex rel. The V Cos. v. Marshall (1998),
81 Ohio St.3d 467, 468, 692 N.E.2d 198; Hager v. Norfolk v. W. Ry. Co., Cuyahoga App. No. 87553,
2006-Ohio-6580, ¶ 54, fn. 33.
credibility of the witnesses. Rohde v. Farmer (1970), 23 Ohio St.2d 82, 92, 262 N.E.2d
685. Similarly, when a party files a motion for judgment notwithstanding the verdict, the
trial court must consider the legal sufficiency of the evidence. Helfrich v. Mellon,
Licking App. No. 06-CA-69, 2007-Ohio-3358, ¶ 86, citing McLeod v. Mt. Sinai Med.
Ctr., 166 Ohio App.3d 647, 2006-Ohio-2206, 852 N.E.2d 1235.
{¶ 14} It is well established that a successor judge may rule on a motion for a new
trial when a different judge presided at trial. Fairview Park v. Ricotta (Sept. 21, 1995),
Cuyahoga App. No. 66850, citing Elsnau v. Weigel (1983), 5 Ohio St.3d 77, 448 N.E.2d
1377. Nevertheless, the successor judge must have the proper evidence before him to
decide the motion. Potocnik v. Sifco Industries, Inc. (1995), 103 Ohio App.3d 560, 660
N.E.2d 510.
{¶ 15} In Potocnik, decided by this court, a visiting judge had presided at trial.
The case was then returned to the judge originally assigned to the case, who subsequently
granted the defendant’s motion for a new trial. This court held that the motion for a new
trial should have been denied. Id. at 567. It reasoned that because the original judge
had ruled on the motion for a new trial without reviewing the trial transcript, he did not
have the proper evidence before him to determine the issue raised by the motion for a new
trial. Id. This court ruled further that because the movant had failed to sustain his
burden of presenting the evidence necessary to support his motion for a new trial, i.e., the
trial transcript, the motion should have been denied. Id. Accordingly, this court
reversed and vacated the order granting the new trial. Id.
{¶ 16} Thornton argues that Potocnik is distinguishable from this case, however,
because in deciding the motion for new trial, the judge “had available to him several sets
of briefs” that quoted trial testimony, as well as this court’s prior decision. In short, he
contends that despite the lack of the trial transcript, the judge “was supplied with the
information needed to answer the question before him.”
{¶ 17} But as the Sixth District Court of Appeals stated in Reynolds v. Hazelberg
(Aug. 6, 1999), Erie App. No. E-98-082, a case in which a successor judge, without
reviewing the trial transcript, granted a motion for new trial some three years after trial
had occurred:
{¶ 18} “The briefs pertaining to appellees’ motion for new trial contained
arguments, but not evidence. Arguments of counsel are not evidence. Those arguments
may have been sufficient to allow the court to decide the motion immediately after the
trial while the court still had an independent recollection of the evidence, but those
arguments cannot substitute for a review of the evidence three years later by a judge who
had not presided over the matter.” (Citation omitted.)
{¶ 19} Noting that it agreed with the reasoning of Potocnik, the court in Reynolds
held that the motion for a new trial should have been denied.
{¶ 20} Likewise, in this case, we find that the trial court should have denied
Thornton’s motion for a new trial. A movant for a new trial has the duty to present the
evidence necessary to support the motion. Potocnik, 103 App.3d 560, 567, 660 N.E.2d
510, citing Whiston v. Bio-Lab, Inc. (1993), 85 Ohio App.3d 300, 308, 619 N.E.2d 1047;
see also Reynolds, 1999 WL 587627. When a motion for new trial is decided more than
five years after trial by a successor judge who did not preside at trial, the only evidence to
support the motion is that found in the trial transcript; the briefs and arguments of counsel
cannot suffice. Because Thornton did not supply the trial transcript to the judge, there
was no evidence to support his motion, and it should have been denied.
{¶ 21} Accordingly, the first assignment of error is sustained; the trial court’s
judgment granting the motion for a new trial is reversed.
{¶ 22} In light of our resolution of the first assignment of error, the second, third,
and fourth assignments of error are rendered moot, and we need not consider them.
App.R. 12(A)(1)(c).
Judgment reversed.
KATHLEEN ANN KEOUGH, Judge
JONES, P.J., and ROCCO, J., concur.