Ford v. Sekic

[Cite as Ford v. Sekic, 2013-Ohio-1895.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98835
CHRIS FORD
PLAINTIFF-APPELLANT
vs.
ASIM SEKIC, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART, REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-740324
BEFORE: S. Gallagher, J., Boyle, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: May 9, 2013
ATTORNEYS FOR APPELLANT
Marcus S. Sidoti
Nicholas R. Sidoti
Jordan & Sidoti, L.L.P.
50 Public Square, Suite 1900
Cleveland, OH 44113
ATTORNEY FOR APPELLEES
Ralph T. DeFranco
55 Public Square
Suite 1600
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Plaintiff-appellant Chris Ford appeals the judgment of the Cuyahoga County
Court of Common Pleas that failed to award him damages for pain and suffering. For the
reasons stated herein, we reverse the judgment on pain and suffering damages and remand
the matter for a new trial on said damages.
{¶2} This action arose out of an incident that occurred on November 19, 2009.
On that date, defendant-appellee Andreas Sekic (“Sekic”) encountered Ford, who was in
his car, at a Drug Mart parking lot and again at a convenience store. Sekic, who is
married to Ford’s sister, had a strained relationship with Ford. Sekic called his father,
Asim Sekic, to help with the situation. Sekic’s father and sister went to the convenience
store to meet Sekic, and the three went to Ford’s residence.
{¶3} After arriving at Ford’s residence, Sekic and his father engaged in a verbal
altercation with Ford, Ford’s father, and Ford’s uncle. Sekic saw Ford’s father reach for
an object near a couch. As the other parties were coming toward him, Sekic fell
backwards, grabbed a flower pot, and threw it in their general direction. He claimed that
he was not aiming at Ford when he threw the flower pot. He testified that he did not
intend to harm any of the individuals. Nonetheless, he agreed that the flower pot hit Ford
and that Ford sustained injuries.
{¶4} Ford was struck in the head by the flower pot and lost consciousness. He
was transported by ambulance to a hospital where he was treated for multiple lacerations
to his head, face, and ear. Ford received initial and subsequent treatments, including
reconstructive surgeries on his left ear, excision of a lesion, and treatment for cellulitis.
{¶5} Ford testified to having pieces of ceramic embedded in his ear, being in
severe pain, having tremendous headaches, and suffering temporary hearing loss. He
spent five days in the hospital. He underwent reconstructive surgeries to his ear and
received suturing to his forehead, with a resulting scar. He also was provided therapy for
memory-loss issues. He later suffered an infection that required additional care.
{¶6} As a result of the incident, Sekic was convicted of two counts of felonious
assault and sentenced to two years in prison. State v. Sekic, Cuyahoga C.P. No.
CR-531300, conviction aff’d, 8th Dist. No. 95633, 2011-Ohio-3978. Asim Sekic was
convicted of one count of felonious assault. State v. Sekic, Cuyahoga C.P. No.
CR-531300, conviction aff’d, 8th Dist. No. 95679, 2011-Ohio-4809.
{¶7} On November 1, 2010, Ford filed this civil action against both Sekic and
Asim Sekic. His complaint included an assault count and a negligence count, under
which Ford claimed that as a result of the defendants’ actions, Ford suffered physical pain
and mental and emotional anguish and he expected to experience similar pain and
suffering in the future. He also included a count for punitive damages. In his prayer for
relief, he demanded damages in excess of $25,000 on each of Counts 1 and 2, and on all
counts he demanded “interest; attorneys’ fees, punitive, compensatory, actual and special
damages in addition to his costs herein.”
{¶8} During the proceedings, Ford dismissed Asim Sekic from the action. The
case proceeded to a bench trial against Sekic on July 2, 2012. Ford sought damages for
medical bills in the amount of $32,215.25, and for pain and suffering in the amount of
$154,000.
{¶9} On July 23, 2012, the trial court issued its judgment, including findings of
fact and conclusions of law. The trial court found that Sekic was negligent and that his
actions were a direct and proximate cause of Ford’s injuries. The court further found
that Ford sustained medical bills in the amount of $32,215.25 and awarded judgment
against Sekic in said amount plus statutory interest. The court awarded no damages for
pain and suffering and did not address said damages in its decision.
{¶10} On August 7, 2012, Ford filed a motion for reconsideration regarding
noneconomic damages. On August, 20, 2012, he filed a notice of appeal. While it
appears the trial court attempted to rule on the motion for reconsideration and revise the
award to include damages for pain and suffering, the entry was not journalized prior to
the filing of the notice of appeal. As a result, the entry is void. “An appeal is perfected
upon the filing of a written notice of appeal. R.C. 2505.04. Once a case has been
appealed, the trial court loses jurisdiction except to take action in aid of the appeal.” In
re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9.
{¶11} On appeal, Ford claims the trial court’s failure to award damages for pain
and suffering was against the manifest weight of the evidence. No appellee’s brief was
filed.
{¶12} In determining whether the damage award is inadequate and against the
manifest weight of the evidence, we must determine
“that the verdict is so grossly disproportionate as to shock the sense of
justice and fairness, cannot be reconciled with the undisputed evidence in
the case, or is the result of an apparent failure by the [trier of fact] to
include all the items of damage making up the plaintiff’s claim.”
Iames v. Murphy, 106 Ohio App.3d 627, 631, 666 N.E.2d 1147 (1st Dist.1995), quoting
Bailey v. Allberry, 88 Ohio App.3d 432, 435, 624 N.E.2d 279 (2d Dist.1993).
{¶13} Courts have consistently found that “when a plaintiff receives damages for
medical expenses but does not receive an award of damages for past pain and suffering,
and where there is evidence supporting such damages, such judgment is against the
manifest weight of the evidence.” Juarez v. Osterman, 10th Dist. No. 98AP-1221, 1999
Ohio App. LEXIS 6536 (Aug. 12, 1999). See also Cooper v. Moran, 11th Dist. No.
2010-L-141, 2011-Ohio-6847, ¶ 21-23; Boldt v. Kramer, 1st Dist. No. C-980235, 1999
Ohio App. LEXIS 2140 (May 14, 1999). Thus, under circumstances where a substantial
injury is sustained and there is unrefuted evidence of pain and suffering, courts have
found that an award for medical expenses without any valuation for pain and suffering is
against the manifest weight of the evidence. See Cooper at ¶ 21-22; Garaux v. Ott, 5th
Dist. No. 2009 CA 00183, 2010-Ohio-2044, ¶ 26; Hardy v. Osborn, 54 Ohio App.3d 98,
560 N.E.2d 783 (8th Dist.1988). In Hardy, a plaintiff sustained multiple injuries,
including a severe facial laceration, which required plastic surgery that left a visible facial
scar, and also had major dental damage. The jury’s total damage award was found to be
against the manifest weight of the evidence because it was without any valuation for
undisputed pain and suffering. Id. at 100.
{¶14} We recognize that this court has previously indicated that where a defendant
is awarded damages for medical expenses, an award for pain and suffering does not
necessarily follow and remains within the purview of the trier of fact. Penzol-Kronstain
v. Vaudrin, 8th Dist. No. 94280, 2010-Ohio-4895, ¶ 12; Pesic v. Pezo, 8th Dist. No.
90855, 2008-Ohio-5738, ¶ 37-38. This is typically the case when an injury is minor, pain
and suffering is de minimis, or there is contradictory evidence regarding pain and
suffering being attributable to an accident. While we agree that an award for pain and
suffering is not automatic, the denial of such damages may be overturned when the record
demonstrates the judgment is against the manifest weight of the evidence. Indeed,
“[w]here * * * the manifest weight of the evidence demonstrates significant pain and
suffering and no damages are awarded, a new trial on that issue alone is necessary to
make the injured party whole.” Couture v. Toledo Clinic, Inc., 6th Dist. No. L-07-1277,
2008-Ohio-5632, ¶ 31.
{¶15} In this case, Ford testified to the severe lacerations he sustained from being
hit by the flower pot, which necessitated having pieces of ceramic removed from his
wounds; having his ear reconstructed; and receiving sutures to his forehead, which
resulted in permanent scarring. He spent five days in the hospital, and his injuries
required multiple surgeries. He testified to being in severe pain, having temporary
hearing loss, and having memory loss. He also suffered from an infection that required
additional care. The trial court awarded him his full medical costs of $32,215.25.
Despite the uncontroverted evidence that Ford had some pain and suffering, the trial court
failed to include any valuation for these damages in its award. It appears from the record
that Ford’s noneconomic damages were overlooked by the trial court.
{¶16} While we recognize the trial court attempted to grant reconsideration and
modify the original award, this effort was not journalized prior to appeal. Therefore, we
must find the trial court’s failure to award damages for pain and suffering was contrary to
the manifest weight of the evidence. Appellant’s sole assignment of error is sustained.
{¶17} Accordingly, we reverse the trial court’s judgment only as to its failure to
award damages for pain and suffering. We remand the matter to the trial court for a new
trial on said damages.
{¶18} Judgment affirmed in part, reversed in part, and case remanded for a new
trial.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR