Nelson v. State Farm Fire & Cas. Co.

[Cite as Nelson v. State Farm Fire & Cas. Co., 2023-Ohio-1982.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Nicholette Nelson, :
Plaintiff-Appellant, :
No. 22AP-176
v. : (C.P.C. No. 18CV-8138)
[State Farm Fire & Casualty : (REGULAR CALENDAR)
Company] et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on June 15, 2023
On brief: Nicholette Nelson, pro se.
On brief: Gallagher, Gams, Tallan, Barnes & Littrell L.L.P.,
and Laura Plank Founds, for appellee State Farm Fire &
Casualty Company. Argued: Laura Plank Founds.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Nicholette Nelson, appeals a judgment of the Franklin
County Court of Common Pleas granting defendant-appellee State Farm Fire & Casualty
Company (“State Farm”) a directed verdict. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On September 27, 2018, Nelson filed suit against State Farm, Catherine
Palmer, and Jonathan Haas. In the complaint, Nelson alleged that on February 11, 2015, a
vehicle driven by Palmer negligently struck Nelson’s vehicle, allegedly causing Nelson
No. 22AP-176 2
personal injury and damaging her vehicle.1 Nelson sought recovery from defendants for
the medical expenses, property damage, and lost earnings she claimed she incurred as a
result of the collision.
{¶ 3} State Farm answered Nelson’s complaint and filed a cross-claim against
Palmer and Haas. In its cross-claim, State Farm stated that it “believe[d] that it has
uninsured/underinsured motorist coverage, property damage coverage, and medical
payments coverage. State Farm may have to pay on uninsured/underinsured motorist
coverage, property damage coverage, and/or medical payments coverage.”2 (Oct. 24, 2018
Cross-Claim at 4.) State Farm thus asserted subrogation claims against Palmer and Haas.
{¶ 4} On December 14, 2018, State Farm served interrogatories and document
requests on Nelson. When Nelson did not respond, State Farm sent two letters to Nelson—
in January and March 2019—seeking the outstanding discovery. Nelson did not reply to
either letter. Consequently, on April 24, 2019, State Farm moved for an order compelling
Nelson to respond to its discovery requests.
{¶ 5} In its motion, State Farm explained the instant case was a refiled case, and
Nelson had received the discovery requests at issue in the original case. Before her
responses were due in the original case, the trial court dismissed the case because Nelson
had ignored an order to show cause as to why the case should not be dismissed for want of
prosecution.
{¶ 6} On May 17, 2019, State Farm withdrew its motion to compel. According to
State Farm, Nelson hired an attorney who assured State Farm Nelson would respond to the
discovery requests within the next 30 days. State Farm ultimately received the outstanding
discovery in early August 2019.
{¶ 7} On August 15, 2019, the trial court granted a joint motion for continuance of
the trial date. On April 20, 2020, the trial court granted another joint motion for
continuance of the trial date.
1In her deposition, Nelson testified Palmer’s vehicle actually collided with the rear of a second vehicle, which
in turn collided with the rear of Nelson’s vehicle. Nelson named Haas as the driver of the second vehicle in her
opening statement at trial.
2 Presumably, State Farm meant to state that it believed Nelson had uninsured/underinsured motorist
coverage, property damage coverage, and medical payments coverage. Moreover, by alleging that it may have
to pay on the coverages it believed it provided to Nelson, State Farm implicitly acknowledged that Nelson
asserted a claim in her complaint for recovery under those coverages.
No. 22AP-176 3
{¶ 8} Then, on July 29, 2020, Nelson’s attorney moved to withdraw because he
“was advised by [Nelson] that [he] should no longer represent [her] in the underlying
litigation and should immediately file a motion to withdraw as counsel.” (July 29, 2020
Mot. to Withdraw at 2.) The trial court granted that motion the next day.
{¶ 9} Five months later, on January 5, 2021, the trial court issued an order to show
cause in which the trial court observed that Nelson had failed to retain new counsel or
contact the court or opposing counsel. The court ordered Nelson to show good cause why
the court should not dismiss her action for failure to prosecute.
{¶ 10} In her response to the show cause order, Nelson explained that her poor
health and complications caused by the COVID-19 pandemic prevented her from engaging
another attorney. Nelson claimed she attempted to settle her claim with State Farm, and
she expressed willingness to participate in mediation.
{¶ 11} The trial court referred the matter to a magistrate for mediation, but no
resolution resulted from the mediation. However, the parties were able to agree that State
Farm would depose Nelson on June 4, 2021.
{¶ 12} The day before Nelson’s deposition was scheduled to proceed, Nelson sent
State Farm’s attorney an e-mail that stated she had an unforeseen emergency and would
have to reschedule. Nelson advised State Farm’s attorney she was available for her
deposition on August 11, 2021. Approximately five minutes before the August deposition
was scheduled to begin, Nelson sent an e-mail requesting a continuance so she could hire
an attorney.
{¶ 13} On September 28, 2021, State Farm moved for a status conference. In the
motion, State Farm explained to the trial court the difficulty it encountered securing
Nelson’s deposition. State Farm also reminded the trial court that the case had been
pending for three years and no trial date was scheduled. The trial court granted the motion
and scheduled a status conference for October 19, 2021.
{¶ 14} At the status conference, the trial court set trial for February 14, 2022 and
warned the parties that “[g]iven the age of the case, * * * I’m not going to continue that
February 14 trial date outside of some extraordinary circumstance. This case needs to be
resolved.” (Oct. 19, 2021 Tr. at 7.) With the parties’ agreement, the trial court scheduled
November 23, 2021 as the date for Nelson’s deposition.
No. 22AP-176 4
{¶ 15} The trial court memorialized the trial and deposition dates in an October 19,
2021 entry. On November 23, 2021, Nelson’s deposition finally proceeded as scheduled.
{¶ 16} Prior to trial, State Farm filed three written motions in limine. First, State
Farm moved to preclude any evidence regarding Nelson’s alleged lost wages or impairment
of earnings capacity. In its document requests, State Farm asked that Nelson provide
“[v]erification for lost wages including W-2’s and income tax statements from 2005 to the
present and a lost wage verification statement from * * * Nelson’s employer.” (Deft.’s Req.
for Produc. of Docs. at 3.) Nelson provided no documents, but stated she would
supplement her response. After her deposition, Nelson represented to State Farm that she
had “reach[ed] out to [her] former employer to attempt to obtain related
documents/information if possible, considering it has been several years ago :2015…. I do
not have my employment records.” (Feb. 8, 2022 Mot. In Limine, Ex. K at 2.) State Farm
argued it would be unfair to allow Nelson to attempt to recover lost wages when she failed
to provide State Farm with the documents it requested.
{¶ 17} Second, State Farm moved to exclude evidence regarding damage to Nelson’s
vehicle. In its document requests, State Farm asked Nelson to provide “[a]ny other
documents in the possession of [Nelson] or her attorneys relating to the claims set forth in
the Complaint.” (Deft.’s Req. for Produc. of Docs. at 4.) Although she turned over no
documents in response to this request, Nelson agreed to supplement her response. After
Nelson’s deposition, State Farm’s attorney asked Nelson for a copy of the auto repair
estimate completed after the February 11, 2015 collision. Nelson replied “[t]he estimate for
property damage should be in the file of State Farm’s claim adjuster where the medical bills
and all requested info was sent prior to filing in court. It has been several years since the
estimate was done and I am unable to locate it. I reach[ed] out to a few places who stated
they had no record in the system with the age of the report being a key factor.” (Deft.’s Ex.
K at 2.)
{¶ 18} In its motion to exclude evidence regarding damage to Nelson’s vehicle, State
Farm represented that Nelson never provided it with the auto repair estimate. According
to State Farm, as a sanction for her failure to respond to its discovery request, the trial court
should preclude Nelson from producing evidence of her property damage at trial.
No. 22AP-176 5
{¶ 19} Finally, State Farm moved to exclude the evidence of medical opinions and
diagnoses of non-testifying medical professionals. State Farm argued the trial court should
not allow Nelson to admit documents that contain medical opinions or diagnoses without
meeting the Evid.R. 803(6) hearsay exception.
{¶ 20} A jury trial on Nelson’s action commenced on February 14, 2022. At the
beginning of the proceedings, Nelson informed the trial court she would be representing
herself. The trial court then turned to addressing the pre-trial motions State Farm had filed.
{¶ 21} The trial court denied in part and granted in part State Farm’s motion to
preclude evidence regarding Nelson’s lost wages and impairment of earnings. The court
determined Nelson could testify about the time she was absent from work, but the court
excluded from evidence all documentation that Nelson did not provide State Farm in
discovery.
{¶ 22} The trial court granted State Farm’s motion to exclude evidence regarding
Nelson’s property damage. The court found Nelson violated Civ.R. 26 by not producing the
documents requested, and sanctioned Nelson by prohibiting her from testifying regarding
the damage to her vehicle.
{¶ 23} The trial court then turned to the third motion in limine, which requested
limitation of the medical records the jury could consider. The trial court asked Nelson
whether she planned to call any of the medical professionals who treated her as trial
witnesses. Nelson told the court she had not subpoenaed any medical professionals, and
she intended to rely on her medical records to prove her personal injuries and damages.
The trial court ruled it was “not permitting any of the medical records to come in unless
there’s a medical provider who can testify to them, or, you know, a keeper of the records
from the hospital who can testify about them.” (Feb. 14, 2022 Tr. at 10.) Nelson responded
she was previously “unaware [she had] to have a medical professional here to testify with
the records.” (Feb. 14, 2022 Tr. at 10.) Nelson then stated she “definitely needed” to
introduce her medical records as evidence because they were “a big factor in determining
how much was owed for the medical bills.” (Feb. 14, 2022 Tr. at 10.) The trial court
reiterated that “a medical professional is going to have to set a foundation for why those
records * * * fall into an exclusion to the hearsay rule.” (Feb. 14, 2022 Tr. at 10.)
No. 22AP-176 6
{¶ 24} In her opening statement, Nelson told the jury she had “been damaged, on
many levels, forever from the accident that occurred on February 11th, 2015.” (Feb. 14,
2022 Tr. at 28.) Nelson, however, also alluded to her inability to provide the jury with
evidence to establish that damage. She informed the jury, “[t]here is evidence regarding
this accident that occurred on February 11th, 2015, that I will not be able to provide to you
because the --.” (Feb. 14, 2022 Tr. at 32.) At this point, State Farm’s attorney objected.
The trial court struck this part of Nelson’s opening statement, explaining to the jury, “[t]he
Rules of Evidence are designed for a reason. It is the Court’s job to make sure that the Rules
of Evidence are followed. And I will not permit any party to make reference to evidence
that the Court has stricken according to those Rules of Evidence.” (Feb. 14, 2022 Tr. at 32.)
{¶ 25} At the conclusion of Nelson’s opening statement, State Farm moved for a
directed verdict. In relevant part, State Farm argued that “[i]f the plaintiff cannot establish
injuries and damages, she can’t prevail on [her] case.” (Feb. 14, 2022 Tr. at 34-35.) Nelson
responded that she had “medical bills that [she] intended to present to prove the costs of
the bills * * *, as well as medical records to show the injuries that [she] sustained[.] * * *
However, as a result of the medical professional not being here to testify, that is why it is
not allowed into evidence.” (Feb. 14, 2022 Tr. at 35.)
{¶ 26} The trial court granted State Farm’s motion for directed verdict. In doing so,
the trial court stated:
[M]edical professionals will not be testifying about the
medical records and, therefore, those medical records will not
be introduced in this case.
***
The Court finds that due to these exclusions or unavailability
of that evidence that Ms. Nelson referred to in her opening
statement that the Court had stricken from the record * * *
there will not be evidence presented that Ms. Nelson suffered
damages regarding this alleged car accident from 2015.
Therefore, I believe the directed verdict is appropriate.
(Feb. 14, 2022 Tr. at 38.) The trial court entered a written judgment awarding State Farm
a directed verdict on February 17, 2022.
No. 22AP-176 7
II. Assignments of Error
{¶ 27} Nelson now appeals the February 17, 2022 judgment, but she does not assign
any errors in her appellate brief as required by App.R. 16(A)(3). Because courts of appeal
determine each appeal “on its merits on the assignments of error set forth in the briefs
under App.R. 16,” assignments of error constitute an integral, indispensable element of an
appeal. App.R. 12(A)(1)(b). In re J.P., 10th Dist. No. 18AP-834, 2019-Ohio-1619, ¶ 16; Pack
v. Hilock Auto Sales, 10th Dist. No. 12AP-48, 2012-Ohio-4076, ¶ 13; Curry v. Curry, 10th
Dist. No. 10AP-437, 2010-Ohio-6536, ¶ 10. Nevertheless, an appellant’s failure to assign
error does not invariably doom an appeal. In the absence of assignments of error, a court
of appeals may construe the issues presented as assignments of error. J.P. at ¶ 18;
Benchmark Bank v. Kimberly Office Park, L.L.C., 10th Dist. No. 15AP-770, 2016-Ohio-
8338, ¶ 12; Pack at ¶ 14; Curry at ¶ 11. We will do that in this case. Thus, Nelson assigns
the following errors for our review:
1. Was it error for the Trial Court to order a directed verdict in
favor of Appellee following Plaintiff’s opening statement?
when Appellant did not state in her opening statement she
would not be able to present her case?
2. Was it error for the Trial Court grant in part Appelle’s
motion in limine to exclude and preclude evidence and
testimony of Appellant’s Lost Wages or Impairment of
Earnings?
3. Was it error for the Trial Court to grant Appelle’s motion to
exclude Appellant reference to propperty damage claim by
applying Civil Rule 26 stating Appellant vioalated this rule by
nit providing documents related to the property damage
claim?
4. Was it error for the Trial Court to grant Apelle’s motion in
limine to exclude evidence of medical records upon its
findings under Evid. Rule 803(4) without a further
foundation by a medical provider or keeper of records?
5. Was it error for the Trial Court to grant Appelle’s oral
motion to exclude evidence of ongoing pain and discomfort
based upon its finding Appellant did not provide
documentation of injuries and treatment related to a 2018
hospital date?
No. 22AP-176 8
6. Was it error for the Trial Court to refuse to allow Appellant’s
offer of proof to provide for inspection to the Trial Court, and
Appelle a 2021 EMG report for Doctor Simon Appellant had
in her vehicle Appellant was willing to obtain because it was
not apart of evidence Appellat was to present at trial in which
the record falsely reflects as a 2018 hospital date which was
never requested from Appellant, was requested by Appelle
instead?
7. Was it error for the Trial Court to reserve ruling on Appelle’s
oral motion to preclude testimony of Soft Tissue Injury?
8. Was it error for the Trial court not to order a Summary
Judgemnet sua sponte when Appelle failed to respond to
plaintiff’s summons and complaint within twenty days as
required by civil Rule
9. Was it error for the Trail Court not to have a Rule 26
hearing/pretrial hearing before applying sanctions for failure
to disclose at trial?
10. Was it error to grant Appellee’s dierected verdict when
Appellee did not state facts to support its affirmative
defense’s, and did not prove all of the essential elements of
atleast one of its affirmative defenses in which no cross claim
against plainrtiff was asserted from which defendant could
seek relief?
11. Was it error for the Trial Court to order a directed verdict
before Plaintiff presented her case in chief?
12. Was it error for the Trial Court to allow Appellee’s attorney
to testify about the extent of Appellant’s medical injuries,
reducing them to soft tissue injuries only, without requiring a
proper evidentiary foundation?
13. Was it error for the Trial Court to allow Appellee to use the
depositoin as evidence in it’s motions in limine when it was
not filed with the court prior to trial, and not given to plaintiff
before discovery deadline timely when plaintiff requested it
during discovery by the deadline and judge was aware plaintiff
did not have a copy of the deposition and provided it to
plaintiff at the beginning of trial without imposing rule 26
sanction on Appelle, but impose rule 26 sanction’s on
Appellant?
No. 22AP-176 9
14. Was it error for the Trial Court in not instructing the jury
the court defined negligence as “a failure to use ordinary care”
and if the jury was to find the assured clear distance rule
applies and was violated, then the jury must find that the
driver, codefendant Catherine Palmer, was negligent?
15. Was it error for the Trial Court to Sustain Appelle’s
objection to not allow Appellant's statement that codefendant
Catherine Palmer was charged and pled guilty, per plea” to an
ACDA traffic violation during Appellant’s opening statement?
(Sic passim.)
III. Analysis
{¶ 28} Before we address the merits of Nelson’s assignments of error, we must
consider three additional procedural issues raised by irregularities in Nelson’s briefing.
First, State Farm has moved to strike allegations and arguments contained in Nelson’s
appellate brief that are based on documents Nelson filed with the trial court after it granted
the directed verdict. Nelson, indeed, includes in her brief facts from documents that were
not part of the trial court record on the date the court entered the judgment now on appeal.
{¶ 29} This court has repeatedly held that appellate review is limited to the record
as it existed at the time the trial court rendered its judgment. Roote v. Hibernia Apts., I,
L.L.C., 10th Dist. No. 19AP-680, 2020-Ohio-5401, ¶ 11; State Farm Fire & Cas. Co. v.
Capital Roofing, L.L.C., 10th Dist. No. 18AP-689, 2020-Ohio-642, ¶ 50; Hopkins v. Car Go
Self Storage, 10th Dist. No. 18AP-715, 2019-Ohio-1793, ¶ 11; Pratt v. Univ. of Cincinnati,
10th Dist. No. 17AP-729, 2018-Ohio-2162, ¶ 26. An appellate court cannot consider
evidence that a party added to the trial court record after that court’s judgment, and then
decide an appeal from the judgment based on the new evidence. Roote at ¶ 11; State Farm
Fire & Cas. Co. at ¶ 50; Hopkins at ¶ 11; Pratt at ¶ 26. We, therefore, will not consider any
documents Nelson filed with the trial court after that court entered judgment granting State
Farm a directed verdict on February 17, 2022. In light of the restraint we will exercise, we
find an order striking portions of appellant’s brief unnecessary, and we deny State Farm’s
motion to enter such an order.
{¶ 30} Next, we turn to State Farm’s motion to strike Nelson’s reply brief. Excluding
the cover page, table of contents, table of authorities, signature block, and certificate of
service, Nelson’s reply brief is 178 pages in length. Loc.R. 8(B) of the Tenth District Court
No. 22AP-176 10
of Appeals provides that “a reply brief shall not exceed 20 pages.” Moreover, Loc.R. 8(B)
unambiguously warns parties that “[i]n no circumstances shall a reply brief in excess of 20
pages be permitted.” Nelson’s reply brief grossly exceeds the mandatory page limitation.
We thus grant State Farm’s motion and strike the reply brief from the record.
{¶ 31} Finally, we must address the paucity of the argument section of Nelson’s
brief. Although Nelson raises 15 assignments of error, she only advances an argument in
support of one.
{¶ 32} “ ‘The burden of affirmatively demonstrating error on appeal rests with the
party asserting error.’ ” James v. My Cute Car, L.L.C., 10th Dist. No. 16AP-603, 2017-Ohio-
1291, ¶ 10, quoting Lundeen v. State Med. Bd. of Ohio, 10th Dist. No. 12AP-629, 2013-Ohio-
112, ¶ 16. To demonstrate error, an appellant’s brief must contain “[a]n argument
containing the contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions.” App.R. 16(A)(7). If an
appellant fails to argue an assignment of error separately in the brief, as required under
App.R. 16(A)(7), a court of appeals may disregard that assignment of error. App.R.
12(A)(2). Because Nelson does not argue her 2nd through 15th assignments of error at all,
we will disregard those assignments of error. See Corso Ventures, L.L.C. v. Paye, 10th Dist.
No. 21AP-510, 2023-Ohio-127, ¶ 25 (disregarding an assignment of error not separately
argued in an appellant’s brief); J. Griffin Ricker Assocs., L.L.C. v. Well, 10th Dist. No. 21AP-
29, 2022-Ohio-1470, ¶ 14 (disregarding 3 assignments of error not separately argued in an
appellant’s brief). Accordingly, we overrule the 2nd through 15th assignments of error.
{¶ 33} Having dealt with the preliminary procedural issues, we turn to Nelson’s first
assignment of error. By that assignment, she argues the trial court erred in granting State
Farm a directed verdict after her opening statement. We disagree.
{¶ 34} A party may move for a directed verdict after an opponent’s opening
statement. Civ.R. 50(A)(1); Parrish, Admr. v. Jones, 138 Ohio St.3d 23, 2013-Ohio-5224,
¶ 15. When a party makes such a motion, a trial court must “exercise great caution in
sustaining the motion,” and “liberally construe the opening statement in favor of the party
against whom the motion is made.” Id. at ¶ 25. A court will grant a motion for directed
verdict made after an opening statement when it is “ ‘clear that all the facts expected to be
No. 22AP-176 11
proved, and those that have been stated, do not constitute a cause of action or a defense.’ ”
Id. at ¶ 32, quoting Brinkmoeller v. Wilson, 41 Ohio St.2d 223 (1975), syllabus.
{¶ 35} If a party makes a statement during the opening statement that indicates the
party will be unable to sustain its claim or defense at trial, the court should grant a directed
verdict. Id. at ¶ 27, 32. This may occur, for example, when a plaintiff admits an affirmative
defense that bars a claim or states explicitly that the evidence will not prove a certain
element of a claim. Id. at ¶ 27. “[A] party cannot sabotage its own case during opening
statement and expect to prevail against a motion for directed verdict.” Id. at ¶ 34.
{¶ 36} If it is unclear from the opening statement whether the party against whom
the motion for directed verdict is made can proceed with its case, the trial court “must
determine whether that party has otherwise set forth a cause of action or defense.” Id. at
¶ 33. At this point, the trial court may choose to look beyond the opening statement. Id.
“If the court considers all information before it, such as the opening statement and the
pleadings, and finds that what the party has set forth constitutes a claim or defense, the
court should deny the motion.” (Emphasis added.) Id. at ¶ 34. Alternatively, if the trial
court determines from all the information before it that “all the facts expected to be proved,
and those that have been stated, do not constitute a cause of action or a defense,” the court
should grant the motion. Brinkmoeller at syllabus.
{¶ 37} Nelson stated in her opening statement that Palmer was an uninsured
motorist. Although Nelson failed to unambiguously articulate a cause of action against
State Farm in her complaint, State Farm does not contest that Nelson sought recovery
under the uninsured motorist coverage in her State Farm insurance policy. An insured
seeking to recover under uninsured motorist coverage must “prove all elements of the
insured’s claim that are necessary to recover from the owner or operator of the uninsured
or underinsured motor vehicle.” R.C. 3937.18(D); accord Davie v. Nationwide Mut. Ins.
Co., 8th Dist. No. 101285, 2015-Ohio-104, ¶ 11 (holding that to recover against an insurer
under uninsured motorist coverage, the plaintiff must prove the elements of negligence
against the driver of the allegedly negligent vehicle). To recover from Palmer—the operator
of the uninsured vehicle—for negligence, Nelson had to prove: (1) the existence of a duty,
(2) breach of that duty, (3) an injury proximately resulting from the breach, and
No. 22AP-176 12
(4) damages. See Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-
Ohio-229, ¶ 23 (setting forth the elements of a negligence claim).
{¶ 38} Here, Nelson introduced uncertainty regarding whether she would be able to
adduce evidence to prove she suffered injury and damages when she stated: “There is
evidence regarding this accident that occurred on February 11th, 2015, that I will not be
able to provide to you because the --.” (Feb. 14, 2022 Tr. at 32.) Thus, based on Nelson’s
opening statement, it was unclear whether she could proceed with her cause of action. The
trial court, therefore, could exercise its discretion to consider “all information before it”
beyond the opening statement in deciding the motion for directed verdict. Parrish at ¶ 34.
Therefore, here, the trial court could include in its consideration Nelson’s admissions
regarding what evidence she intended to rely on at trial, as well as the pre-trial rulings
excluding certain evidence.
{¶ 39} Outside of her opening statement, Nelson confirmed to the trial court she
intended to prove her personal injuries and damages through her medical records and bills.
The trial court, however, ruled those documents inadmissible because Nelson failed to
secure the necessary witnesses to authenticate the documents and satisfy the requirements
of a hearsay exception. Without the medical records and bills she intended to rely on,
Nelson could not prove personal injury or the amount of her medical expenses.
Furthermore, at the pre-trial hearing on the motions in limine immediately prior to trial,
regarding whether she was going to call to testify any of the doctors or nurses who treated
her, Nelson replied “at this time, no, I have not called for the witnesses.” (Feb. 14, 2022 Tr.
at 9.)
{¶ 40} With regard to the injury to her property, Nelson admitted she could not
locate the estimate of the amount of damage done to her vehicle in the February 11, 2015
collision. Nelson did not intend to call any automobile repair expert at trial to testify as to
her property damage. (See Feb. 14, 2022 Tr. at 23, Nelson admitted she only intended to
call the tortfeasor and herself, but the tortfeasor did not attend trial, so Nelson could not
call her as a witness.) Nelson could not testify as to the damage to her vehicle because the
trial court barred her from testifying on that matter as a discovery sanction. Nelson,
therefore, had no evidence to offer to prove injury or the amount of damages to her
property.
No. 22AP-176 13
{¶ 41} Finally, Nelson sought to recover the income she allegedly lost because of her
personal injuries. However, as Nelson could not prove she suffered personal injury, she
could not prove entitlement to lost income because of personal injury.
{¶ 42} In sum, under the unique circumstances of this case, Nelson conceded to the
trial court that she lacked the evidence necessary to prove her negligence claim in the pre-
trial proceedings and in responding to State Farm’s motion for directed verdict. The lack
of clarity in Nelson’s opening statement regarding whether she could proceed with her
negligence claim led the trial court to consider her concessions in determining the directed
verdict motion. The trial court did not err in finding that all the facts Nelson expected to
prove did not constitute a cause of action. Accordingly, on the facts of this case, we conclude
the trial court did not err in granting State Farm a directed verdict, and we overrule the first
assignment of error.
IV. Conclusion
{¶ 43} For the foregoing reasons, we overrule appellant’s 15 assignments of error,
and we affirm the judgment of the Franklin County Court of Common Pleas. We deny State
Farm’s motion to strike portions of Nelson’s brief, but we grant State Farm’s motion to
strike the reply brief.
Judgment affirmed;
motion to strike portions of appellant's brief denied;
motion to strike reply brief granted.
BEATTY BLUNT, P.J., and LELAND, J., concur.