[Cite as Brown v. Taylor, 2016-Ohio-5180.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




RONNIE BROWN,                                      :

        Plaintiff-Appellant,                       :     CASE NO. CA2015-11-199

                                                   :          OPINION
    - vs -                                                     8/1/2016
                                                   :

DAVID TAYLOR, et al.,                              :

        Defendants-Appellees.                      :



          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CV2014-02-0346



O'Connor Acciani & Levy L.P.A., Kory A. Veletean, 1014 Vine Street, Suite 2200, Cincinnati,
Ohio 45202, for plaintiff-appellant

Davidson Law Offices Co., L.P.A., David T. Davidson, 1800 One Dayton Centre, 1 South
Main Street, Dayton, Ohio 45402, for defendant-appellee



        RINGLAND, J.

        {¶ 1} Plaintiff-appellant, Ronnie Brown, appeals the decision of the Butler County

Court of Common Pleas denying his motion for judgment notwithstanding the verdict

("JNOV") or motion for a new trial following a jury verdict granted in favor of defendant-

appellee, David Taylor. For the reasons outlined below, we affirm.

        {¶ 2} Brown and Taylor were involved in a motor vehicle collision on the evening of

February 6, 2012. At the time of the accident, it is undisputed that Taylor was backing his
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vehicle into his driveway. However, the parties dispute whether Taylor was completely in his

driveway or in the roadway. Brown filed this action against Taylor, which proceeded to a jury

trial.

         {¶ 3} Brown testified that he was driving his vehicle in the roadway when he suddenly

collided with Taylor's vehicle in the street. Brown stated that he had just driven over a dip in

the roadway and "just as soon as I came across the crest of the mountain, the hill there on

the road, his truck - - I saw that stripe on the truck and then the face in the glass. That's all I

saw." Brown stated that, although he was traveling within the speed limit, he was unable to

stop the vehicle in time, therefore colliding with Taylor's vehicle.

         {¶ 4} Taylor disputed Brown's account of the accident. According to Taylor, when he

reached his driveway he proceeded to check in all directions to confirm there were no

headlights or visible oncoming traffic. After confirming that there were no visible headlights

approaching from any direction, Taylor testified that he proceeded to back his vehicle into his

driveway.

         {¶ 5} Once he had backed his vehicle into his driveway, Taylor stated that he

continued to check his mirrors to ensure that he avoided the grass in his yard. Taylor

explained that his automobile was struck after he was safely in his driveway, and no longer in

the roadway. Taylor further identified photographs showing skid marks on his driveway,

possibly indicating that Brown's vehicle had veered across the white line of the roadway and

into Taylor's driveway.

         {¶ 6} Following the presentation of evidence, the jury returned with a general verdict

finding in favor of Taylor.     However, the trial court found a discrepancy between the

interrogatories and the general verdict form. As a result, the trial court informed the jury of

the discrepancy and asked the jury to continue deliberations. Upon subsequent deliberation,

the jury again returned a general verdict in favor of Taylor. The trial court found the general

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verdict and interrogatories were consistent and entered a verdict. Brown filed a motion for

JNOV or in the alternative, a motion for a new trial, which the trial court denied. Brown now

appeals the decision of the trial court, raising a single assignment of error for review.

       {¶ 7} THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION

FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE

MOTION FOR A NEW TRIAL BASED UPON INTERROGATORIES INCONSISTENT WITH

THE VERDICT AND A JUDGMENT NOT SUSTAINED BY THE WEIGHT OF THE

EVIDENCE.

       {¶ 8} In his sole assignment of error, Brown alleges the trial court erred by denying

his motion for a JNOV or a new trial pursuant to Civ.R. 50 and Civ.R. 59. In so doing, Brown

argues that the jury's verdict should be set aside "because (1) the jury's interrogatory

responses were inconsistent with the general verdict form following a reconciliation

instruction thus tainting the verdict, and (2) based on the trial evidence, reasonable minds

could only conclude that the appellee was negligent, his actions equate to negligence per se,

and his negligence proximately caused injury to the appellant." We find no merit to Brown's

argument.

       {¶ 9} A motion for a JNOV under Civ.R.50(B) tests the legal sufficiency of the

evidence. Watershed Mgt. v. Neff, 4th Dist. Pickaway No. 13CA20, 2014-Ohio-3631, ¶ 55,

citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, at ¶ 25. Thus, the evidence

must be construed most strongly in favor of the party against whom the motion is made.

Phipps v. Internatl. Paper Co., 12th Dist. Clinton No. CA2013-02-003, 2013-Ohio-3994, ¶ 11;

Choate v. Tranet, Inc., 12th Dist. Warren No. CA2005-09-105, 2006-Ohio-4565, ¶ 48. In

doing so, a trial court may not weigh the evidence or judge witness credibility. Ginn v.

Stonecreek Dental Care, 12th Dist. Fayette Nos. CA2015-01-001 and CA2015-01-002, 2015-

Ohio-4452, ¶ 17, citing Osler v. Lorain, 28 Ohio St.3d 345 (1986), syllabus.

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       {¶ 10} A trial court must deny a motion for JNOV if substantial evidence exists upon

which reasonable minds could come to different conclusions on the essential elements of the

claim. Citibank, N.A. v. Ebbing, 12th Dist. Butler No. CA2012-12-252, 2013-Ohio-4761, ¶ 53;

Pepin v. Hansing, 4th Dist. Scioto No. 13CA3552, 2013-Ohio-4182, ¶ 11. Appellate courts

then review a trial court's decision de novo. Briggs v. Franklin Pre-Release Ctr., 12th Dist.

Madison No. CA2013-10-035, 2014-Ohio-2477, ¶ 8.

       {¶ 11} On the other hand, Civ.R.59(A) provides that a new trial may be granted to any

party on any issue in a case on any of the nine enumerated grounds listed therein, or for

"good cause shown." The decision to grant or deny a new trial as an alternative to a JNOV

rests within the sound discretion of the trial court. As a result, we will not reverse a trial

court's decision absent an abuse of discretion. Choate at ¶ 52.

                                       Consistent Verdict

       {¶ 12} Initially, Brown alleges that the jury returned an inconsistent verdict and the

trial court's reconciliation instruction "tainted" the verdict.

       {¶ 13} Civ.R. 49(B) states that when one or more answers to jury interrogatories are

inconsistent with the general verdict, the trial court may: (1) enter judgment in accordance

with the interrogatory answers, (2) return the jury for further consideration of the

interrogatories and the general verdict, or (3) order a new trial. In the event of inconsistent

answers to interrogatories, the court has a duty to harmonize them if possible. Pierce v.

Durrani, 1st Dist. Hamilton No. C-140276, 2015-Ohio-2835, ¶ 23.              However, in the

alternative, the Ohio Supreme Court has held that "the clear, best choice [is] to send the jury

back for further deliberations." Shaffer v. Maier, 68 Ohio St.3d 416, 421 (1994).

       {¶ 14} When instructing the jury regarding the need to reconcile the interrogatories

and verdict, the trial court must be careful not to suggest or imply that the jury came to the

wrong conclusion. Segedy v. Cardiothoracic & Vascular Surgery of Akron, Inc., 9th Dist.

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Summit No. 24219, 2009-Ohio-2460, ¶ 36. "'A jury charge must be considered as a whole

and a reviewing court must determine whether the jury charge probably misled the jury in a

matter materially affecting the complaining party's substantial rights.'" Lynch v. Greenwald,

9th Dist. Summit No. 26083, 2012-Ohio-2479, ¶ 14, quoting Perez v. Falls Financial, Inc., 87

Ohio St.3d 371, 376 (2000).

        {¶ 15} In the present case, after the jury returned from deliberations and delivered its

verdict, the trial court was alerted to a possible discrepancy between the signatures ascribed

to jury interrogatory five and the general verdict form finding in favor of the defendant, Taylor.

        {¶ 16} As it relates to the discrepancy, interrogatories one and two asked whether

Taylor was negligent and whether that negligence was the proximate cause of Brown's

injuries. The jury answered both those questions in the affirmative, with the same six jurors

signing both documents. Interrogatories three and four asked whether Brown was also

negligent, i.e., comparatively negligent, and whether his negligence was the proximate cause

of his own injuries. To those interrogatories, the jury was unanimous in finding that Brown

was comparatively negligent and his negligence was the proximate cause of his injuries. In

apportioning fault in interrogatory five, the same six jurors who signed interrogatories one

through four assigned Brown with 75 percent of the fault. The general verdict form in favor of

Taylor was signed by seven jurors, but did not include the signature of one of the jurors who

signed interrogatory five apportioning fault.

        {¶ 17} The trial court, noticing that the general verdict form did not include one juror

who signed interrogatory five, asked the jury to continue deliberating, as the trial court could

not confirm the jury's verdict.1 In so doing, the trial court noted the discrepancy in the forms


1. Although not entirely clear from the record, the trial court may have been concerned about potential
application of the "same juror rule." The same juror rule is a requirement established by case law that applies in
cases where comparative negligence must be determined. Jurors who seek to apportion negligence in
comparative negligence cases must be the same jurors who found negligence and proximate cause. See
O'Connell v. Chesapeake & Ohio RR., Co., 58 Ohio St.3d 226 (1991), syllabus. In other words, if a juror did not
find that a defendant was negligent, that juror could not cogently find that, for instance, the defendant was 70
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and instructed the jury that there needs to be agreement in order to render a verdict and

stated:

                I don't know if that's your decision or not. If it is then that other
                person needs to sign it, otherwise you don't have a verdict. And
                I'm not telling you what to do, you need to decide that for
                yourself.

Following additional deliberations, the jury returned, once again, with a general verdict form in

favor of Taylor signed by six jurors. However, this time, those same six jurors agreed that

Taylor was not negligent and therefore answered interrogatory one in the negative.2

        {¶ 18} After review, we conclude that the jury's verdict was consistent and find no

error in the underlying proceedings. The record reflects that the jury first returned a defense

verdict in favor of Taylor. Although six jurors appropriately apportioned 75 percent of fault to

Brown, only five of those jurors signed the general verdict form in favor of Taylor. Noting the

discrepancy, the trial court decided not to accept the verdict at that time, but instead

instructed the jury to return for deliberations to reconcile the interrogatories and general

verdict form. The reconciliation instructions did not improperly suggest that the jurors had

made the wrong decision.            The trial court merely noted that one juror had signed

interrogatory five, but did not sign the general verdict form and therefore "I don't know if that's

your decision or not."

        {¶ 19} Although the jury reached a different conclusion after further deliberations, that

does not mean that the jury was confused or misled. Simply, when given another opportunity

to discuss the facts of the case, the jury came to a different conclusion, this time finding that

Taylor was not negligent at all in the operation of his vehicle.

        {¶ 20} Moreover, as was later acknowledged, the trial court was not required to



percent negligent. Dillon v. OhioHealth Corp., 10th Dist. Franklin Nos. 13AP-467 and 14AP-259, 2015-Ohio-
1389, ¶ 21.

2. As previously noted, interrogatory one asked "[w]as defendant, David Taylor, negligent?"
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instruct the jury to return for deliberations, but could have entered judgment in accordance

with the interrogatory answers from the initial verdict.

              [A]ll I want to say is, based upon what happened at - - the first
              time, I think * * * that the appropriate thing to have done was to
              actually have directed the juror * * * to sign [the general verdict
              form], because she had signed everything else, there's no
              reason why she didn't sign the general verdict for [d]efendant
              other than she didn't.

Instead, the trial court chose to ensure that the jury's verdict was true and properly

represented on the forms, which was an appropriate decision for the trial court to make. See

Shaffer, 68 Ohio St.3d at 421 ("[t]he clear, best choice [is] to send the jury back for further

deliberations"). Accordingly, we disagree with Brown's argument that the jury's verdict was

inconsistent or otherwise tainted by the trial court's request to continue deliberations.

Brown's first argument therefore lacks merit.

                                  Weight of the Evidence

       {¶ 21} Brown next alleges that the jury's verdict was not supported by the evidence.

In order to establish a negligence claim, the plaintiff must demonstrate a duty owed by the

defendant to the plaintiff, a breach of that duty, and that the plaintiff's injury proximately

resulted from the defendant's breach of duty. Orren v. BWF Corp., 12th Dist. Warren No.

CA2013-11-112, 2015-Ohio-62, ¶ 16.

       {¶ 22} Brown argues that Taylor was negligent in the operation of his vehicle and also

alleges a violation of R.C. 4511.38, which provides that a vehicle operator "[b]efore backing *

* * shall give ample warning" and "exercise vigilance not to injure person or property on the

street." Brown contends that, even when construing the evidence in favor of Taylor,

reasonable jurors could only conclude that Taylor was negligent and that his actions equated

to negligence per se.

       {¶ 23} Based on our review, we disagree with Brown's arguments. The jury heard

testimony and considered evidence regarding the factual issues in the case. The jury was
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presented with evidence that Taylor was off the roadway and in his driveway when Brown

struck Taylor's vehicle. The jury, as trier of fact, was in the best position to assess credibility

and resolve questions of fact. In sum, we find there was substantial competent evidence to

support the jury's verdict and the verdict was otherwise not against the weight of the

evidence. Brown's second argument is also without merit.

       {¶ 24} Accordingly, we find the trial court did not err by denying Brown's motion for

JNOV or motion for a new trial. Therefore, Brown's sole assignment of error is overruled.

       {¶ 25} Judgment affirmed.


       S. POWELL, P.J., and HENDRICKSON, J., concur.




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