Owens v. Ford Motor Co.

[Cite as Owens v. Ford Motor Co., 2019-Ohio-3136.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
KENNETH J. OWENS C.A. No. 18CA011422
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
FORD MOTOR COMPANY OHIO COURT OF COMMON PLEAS
TRUCK PLANT DIVISION, et al. COUNTY OF LORAIN, OHIO
CASE No. 17CV193290
Appellee
DECISION AND JOURNAL ENTRY
Dated: August 5, 2019
CALLAHAN, Presiding Judge.
{¶1} Appellant, Kenneth Owens, appeals an order of the Lorain County Court of
Common Pleas. This Court affirms.
I.
{¶2} Mr. Owens alleged that he was injured during his employment with Ford Motor
Company (“Ford”). When a portion of his claim was disallowed, Mr. Owens appealed the
decision to the Lorain County Court of Common Pleas and filed a complaint asserting his right to
participate in the workers’ compensation system. In anticipation of trial, Mr. Owens filed the
video deposition of his expert witness, Dr. Joseph Totaro. On September 19, 2018, Ford filed an
objection log related to Dr. Totaro’s deposition, maintaining, in part, that “Dr. Totaro is a
Chiropractor, [c]annot opine to reasonable medical certainty – Not an MD.” (Emphasis in
original.) Although the record reflects several motions in limine filed by Mr. Owens, it appears
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that Ford did not file any such written motion with respect to Dr. Totaro’s deposition in advance
of trial.
{¶3} The case proceeded to a bench trial on September 20, 2018. On the same date,
the trial court journalized an order that granted Ford’s motion for a directed verdict and entered
judgment in favor of Ford, concluding that Mr. Owens was not entitled to participate in the
workers’ compensation system for four conditions enumerated in the order. Mr. Owens filed this
appeal.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION FOR
DIRECTED VERDICT FOLLOWING AN ABUSE OF DISCRETION IN
FAILING TO ADMIT A PORTION OF THE TRIAL TESTIMONY AND
CAUSAL OPINION AS TO THE DISALLOWED CONDITIONS OF
APPELLANT’S EXPERT WITNESS.
{¶4} Mr. Owens’ sole assignment of error argues that the trial court erred in granting a
directed verdict in favor of Ford. Specifically, Mr. Owens maintains that the trial court abused
its discretion by excluding evidence from Dr. Totaro’s deposition and that the absence of that
evidence led the trial court to, in turn, improperly grant a directed verdict.
{¶5} This Court cannot review the merits of Mr. Owens’ assignment of error, however,
because the trial transcript is not part of the record on appeal. When Mr. Owens filed his notice
of appeal, he also indicated on his docketing statement that the record would include
[T]he original papers and exhibits filed in the trial court, a certified copy of the
docket and journal entries, and a full or partial transcript of proceedings prepared
for this appeal by a court reporter appointed by the trial court, who I served with a
praecipe that I also filed with this court.
Mr. Owens filed a praecipe, but the praecipe did not include the signature of the court reporter.
See Loc.R. 5(A)(1)(a)(i) of the Ninth Dist. Court of Appeals. On November 28, 2018, the clerk
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of this Court served notice on counsel pursuant to App.R. 11(B) that the record had been filed.
That notice explained that “[t]he record consists of a transcript of docket and journal entries
together with all original papers from Common Pleas (General Div[ision] Court, Case No.
17CV193290).” Mr. Owens did not move to strike the notice of filing of the record, nor did he
move to supplement the record with a transcript of proceedings. Consequently, the record on
appeal consists solely of the transcript of the docket and journal entries and the original papers
filed in the trial court.
{¶6} “It is the duty of the appellant to arrange for the timely transmission of the record,
including any transcripts of proceedings, * * * and to ensure that the appellate court file actually
contains all parts of the record that are necessary to the appeal.” Loc.R. 5(A) of the Ninth Dist.
Court of Appeals. See also Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197, 199 (1980).
“When portions of the transcript necessary for resolution of assigned errors are omitted from the
record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the
court has no choice but to presume the validity of the lower court’s proceedings, and affirm.”
Knapp at 199.
{¶7} Because the transcript of proceedings is not part of the record, this Court does not
have a record of the trial court’s decision to exclude portions of Dr. Totaro’s deposition
testimony, the evidence presented by parties, or the proceedings related to Ford’s motion for a
directed verdict. The transcript is, therefore, necessary for resolution of Mr. Owens’ assigned
error. Without the transcript, this Court has no choice but to presume regularity in the trial
court’s proceedings and affirm the judgment.
{¶8} Mr. Owens’ assignment of error is overruled.
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III.
{¶9} Mr. Owens’ assignment of error is overruled. The judgment of the trial court is
affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
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APPEARANCES:
JENNIFER L. LAWTHER, DANIEL A. KIRSCHNER, and COREY J. KUZMA, Attorneys at
Law, for Appellant.
SUSAN A. BERES, Assistant Attorney General, for Appellee.
KIRK R. HENRICKSON and SHANA A. SAMSON, Attorneys at Law, for Appellee.
TIMOTHY J. KRANTZ, Attorney at Law, for Appellee.