[Cite as Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179.]




      EASTLEY, ADMR., APPELLEE, v. VOLKMAN; HUFFMAN, APPELLANT.
       [Cite as Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179.]
When the evidence to be considered is in the court’s record, a party need not have
        moved for directed verdict or filed a motion for a new trial or a motion for
        judgment notwithstanding the verdict to obtain appellate review of the
        weight of the evidence—In civil cases, as in criminal cases, the sufficiency
        of the evidence is quantitatively and qualitatively different from the weight
        of the evidence.
     (No. 2011-0606—Submitted December 7, 2011—Decided May 22, 2012.)
               APPEAL from the Court of Appeals for Scioto County,
                 Nos. 09CA3308 and 09CA3309, 2010-Ohio-4771.
                                 __________________
                               SYLLABUS OF THE COURT
1. When the evidence to be considered is in the court’s record, a party need not
        have moved for directed verdict or filed a motion for a new trial or a
        motion for judgment notwithstanding the verdict to obtain appellate
        review of the weight of the evidence.
2.   In civil cases, as in criminal cases, the sufficiency of the evidence is
        quantitatively and qualitatively different from the weight of the evidence.
                             __________________
        LANZINGER, J.
        {¶ 1} Article IV, Section 3(B)(3) of the Ohio Constitution provides that
“[n]o judgment resulting from a trial by jury shall be reversed on the weight of
the evidence except by the concurrence of all three judges hearing the cause.” In
this case, two judges on the court of appeals panel voted to reverse the judgment
on the weight of the evidence but one judge concluded that appellant had waived
                            SUPREME COURT OF OHIO




appellate review of the weight of the evidence by failing to renew her motion for
directed verdict or to file a motion for a new trial or for judgment notwithstanding
the verdict. Because we hold that appellant was not required to file those motions
to obtain appellate review of the weight of the evidence, we reverse the judgment
and remand the case to the court of appeals for further proceedings.
                                   I. Background
       {¶ 2} Paula Eastley, appellee, filed a wrongful-death action as
administrator of the estate of Steven Hieneman, her son, against Paul Volkman,
M.D., and Tri-State Healthcare, L.L.C., a pain-management clinic in Portsmouth,
Ohio, where Dr. Volkman practiced. The complaint alleged that Volkman had
committed medical malpractice and that Tri-State Healthcare was vicariously
liable for the doctor’s conduct.     The complaint was amended later to add
appellant, Denise Huffman, doing business as Tri-State Health Care, as a
defendant.   The amended complaint asserted a claim of negligence against
Huffman, as well as claims for vicarious liability and conspiracy.
       {¶ 3} A jury trial was conducted on February 4, 2008. Eastley presented
evidence that 33-year-old Hieneman received treatment at the clinic and died
April 20, 2005, due to the acute combined effects of oxycodone, Xanax
(alprazolam), and Valium (diazepam) that Dr. Volkman had prescribed the
previous day. Eastley’s evidence against Huffman related to allegations of the
negligent operation of the clinic in causing Hieneman’s death. At the conclusion
of Eastley’s evidence, Huffman moved for a directed verdict “on the grounds that
there is no evidence in the record from which the jury could conclude that Denise
Huffman was negligent.”      After the motion was denied, Huffman presented
defense evidence but did not renew her directed-verdict motion either after she
rested or at the close of all evidence. Because Eastley did not present evidence to
support a theory of vicarious liability, the trial court instructed the jury on
negligence rather than agency by estoppel with respect to Huffman.



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                                    January Term, 2012




        {¶ 4} The jury found that Volkman’s medical malpractice and
Huffman’s negligence had proximately caused Hieneman’s death, and the trial
court entered judgment in Eastley’s favor in the amount of $500,000 against
Huffman and Volkman, jointly and severally. Huffman appealed, arguing in part
that because Volkman had admitted that he was an independent contractor, she
could not be held vicariously liable. Huffman also pointed out that Eastley’s
counsel had repeatedly stated that Eastley was not pursuing a vicarious-liability
claim. Huffman further asserted that, once Volkman’s conduct was removed
from the analysis, there was no basis to hold her liable because there was no
evidence that she violated a duty of care owed to Hieneman.
        {¶ 5} The Fourth District Court of Appeals affirmed the verdict against
Huffman. Eastley v. Volkman, 4th Dist. Nos. 09CA3308 and 09CA3309, 2010-
Ohio-4771, 2010 WL 3835666. Although two of the three judges on the court of
appeals panel agreed with Huffman that based on an ordinary negligence theory,
the jury’s verdict was against the manifest weight of the evidence, one judge
dissented in part and concluded that because Huffman had not renewed her
motion for a directed verdict or filed a motion for new trial or for judgment
notwithstanding the verdict, she had forfeited all but plain error.                  Thus, the
dissenting judge1 prevented a reversal based on the weight of the evidence,
because pursuant to the Ohio Constitution, Article IV, Section 3(B)(3), a reversal
on the manifest weight of the evidence requires concurrence of all three judges.
        {¶ 6} We accepted this discretionary appeal to clarify when and upon
what standard a court of appeals must review the weight of the evidence in a case.
We hold that when the evidence to be considered is in the court’s record, a party
need not have moved for directed verdict or filed a motion for a new trial or a
motion for judgment notwithstanding the verdict to obtain appellate review of the

1. We refer to the “dissenting judge,” although the judge dissented only in part and concurred in
the judgment upholding the verdict.




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weight of the evidence. We also hold that in civil cases, as in criminal cases, the
sufficiency of the evidence is quantitatively and qualitatively different from the
weight of the evidence.
                                       II. Legal Analysis
      A. Courts of Appeals May Review Cases on the Weight of the Evidence
        {¶ 7} At the outset, there should be no question that a court of appeals
has the authority to reverse a judgment as being against the weight of the
evidence.    Indeed, the Ohio Constitution sets forth certain restrictions on an
appellate court that exercises this power. “No judgment resulting from a trial by
jury shall be reversed on the weight of the evidence except by the concurrence of
all three judges hearing the cause.”              Ohio Constitution, Article IV, Section
3(B)(3). Or stated conversely, a court of appeals panel must act unanimously to
reverse a jury verdict on the weight of the evidence.                       This section of the
constitution does not distinguish between criminal and civil jury trials and thus
applies to both. We have held that unanimous panels are needed to reverse
judgments based on civil jury verdicts on grounds that they are against the
manifest weight of the evidence. Bryan-Wollman v. Domonko, 115 Ohio St.3d
291, 2007-Ohio-4918, 874 N.E.2d 1198. When a trial judge, rather than a jury,
has acted as the factfinder in a civil case, however, App.R. 12(C) provides that
two of the three appellate judges may reverse the judgment based on the manifest
weight of the evidence, but that a judgment may be reversed only once for this
reason.2

2. App.R. 12(C) provides:

             In any civil action or proceeding which was tried to the trial court without
        the intervention of a jury, and when upon appeal a majority of the judges
        hearing the appeal find that the judgment or final order rendered by the trial
        court is against the manifest weight of the evidence and do not find any other
        prejudicial error of the trial court in any of the particulars assigned and argued in
        the appellant's brief, and do not find that the appellee is entitled to judgment or
        final order as a matter of law, the court of appeals shall reverse the judgment or




                                                 4
                                   January Term, 2012




               B. Legal Sufficiency of the Evidence and Manifest Weight
                         of the Evidence Are Distinct Concepts
        {¶ 8} The dissenting judge, based on the idea that manifest weight of the
evidence and legal sufficiency “merge” in civil trials, determined that because
Huffman failed to renew her Civ.R. 50(A) motion for directed verdict at the close
of evidence or move for a new trial pursuant to Civ.R. 59(A)(6) or move for
judgment notwithstanding the verdict (“JNOV”) pursuant to Civ.R. 50(B), she
waived the issue of manifest weight of the evidence for purpose of appeal.
        {¶ 9} In civil cases, the concepts of sufficiency of the evidence and
weight of the evidence continue to be sources of confusion, particularly as to what
standard of review should apply when a verdict is challenged as being against the
manifest weight of the evidence. But there is no reason why the fundamental
logical differences between evidential sufficiency and weight cease to exist in
civil cases.
        {¶ 10} We have carefully distinguished the terms “sufficiency” and
“weight” in criminal cases, declaring that “manifest weight” and “legal
sufficiency” are “both quantitatively and qualitatively different.”                  State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the
syllabus.
                            1. Legal Sufficiency of Evidence
        {¶ 11} In Thompkins, we described “sufficiency” as


        “a term of art meaning that legal standard which is applied to
        determine whether the case may go to the jury or whether the

        final order of the trial court and either weigh the evidence in the record and
        render the judgment or final order that the trial court should have rendered on
        that evidence or remand the case to the trial court for further proceedings;
        provided further that a judgment shall be reversed only once on the manifest
        weight of the evidence.




                                              5
                            SUPREME COURT OF OHIO




       evidence is legally sufficient to support the jury verdict as a matter
       of law.” * * * In essence, sufficiency is a test of adequacy.
       Whether the evidence is legally sufficient to sustain a verdict is a
       question of law.


Id. at 386, quoting Black’s Law Dictionary 1433 (6th Ed.1990).
                          2. Manifest Weight of Evidence
       {¶ 12} Nevertheless, even if a trial court judgment is sustained by
sufficient evidence, an appellate court may nevertheless conclude that the
judgment is against the manifest weight of the evidence:


       Weight of the evidence concerns “the inclination of the greater
       amount of credible evidence, offered in a trial, to support one side
       of the issue rather than the other. It indicates clearly to the jury
       that the party having the burden of proof will be entitled to their
       verdict, if, on weighing the evidence in their minds, they shall find
       the greater amount of credible evidence sustains the issue which is
       to be established before them.        Weight is not a question of
       mathematics, but depends on its effect in inducing belief.”


(Emphasis sic.) Id. at 387, quoting Black’s at 1594.
       {¶ 13} Thompkins, a criminal case, was the first case from this court that
thoroughly considered the qualitative and quantitative distinctions between the
legal sufficiency and the manifest weight of evidence. We explained how the
manifest-weight standard of review operated in a criminal case (i.e., the appellate
court sitting as a “13th juror”), but we did not confine the analysis on the
distinctions between the evidentiary standards to criminal cases alone.




                                         6
                               January Term, 2012




                     3. Misinterpretation of C.E. Morris
       {¶ 14} Although the holding in Thompkins was not limited to criminal
cases, some appellate courts seemed hesitant to distinguish between sufficiency
and manifest weight of the evidence in civil cases and instead began to blur those
concepts. See, e.g., Reed v. Key-Chrysler Plymouth, 125 Ohio App.3d 437, 440-
441, 708 N.E.2d 1021 (2d Dist.1998); Siegal v. Magic Carpet & Upholstery, 8th
Dist. No. 74645, 1999 WL 608808, *4 (Aug. 12, 1999); Lakeshore Properties v.
Sharonville, 1st Dist. No. C-000321, 2001 WL 127650, *4 (Feb. 16, 2001).
These appellate courts relied on C.E. Morris Co. v. Foley Constr. Co., 54 Ohio
St.2d 279, 376 N.E.2d 578 (1978), a short opinion predating Thompkins that
contained no analysis. The C.E. Morris court stated, “Judgments supported by
some competent, credible evidence going to all the essential elements of the case
will not be reversed by a reviewing court as being against the manifest weight of
the evidence.” Id. at 280. But at least one court of appeals has questioned the use
of separate standards for reviewing manifest weight of the evidence in civil and
criminal cases. See Gevedon v. Ivey, 172 Ohio App.3d 567, 2007-Ohio-2970, 876
N.E.2d 604 (2d Dist.).
       {¶ 15} Although we have repeated the C.E. Morris standard and applied it
to the review of civil cases, we have not fully analyzed it in light of Thompkins.
The phrase “some competent, credible evidence” in C.E. Morris presupposes
evidentiary weighing by an appellate court to determine whether the evidence is
competent and credible. But unfortunately, in some cases after C.E. Morris, we
used the term “merge” in relation to the concepts of manifest weight and
sufficiency, which created some confusion in the courts of appeals. One such
case was State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264.
       {¶ 16} In Wilson, we were not concerned with the distinction between
legal sufficiency and manifest weight of the evidence but rather with the review
of a trial court’s findings relating to sexual-offender classifications and whether



                                        7
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the proceedings themselves were civil or criminal.3 When speaking in Wilson of a
civil manifest-weight standard, we did not analyze the distinctions between
sufficiency and weight of the evidence. We merely noted that “the standard in
C.E. Morris tends to merge the concepts of weight and sufficiency.” Wilson at
¶ 26. We later made clear that “the merger [between sufficiency and weight of
the evidence] is not complete because of the separate constitutional significance
accorded ‘weight of the evidence’ by Section 3(B)(3), Article IV of the Ohio
Constitution.”       Bryan-Wollman, 115 Ohio St.3d 291, 2007-Ohio-4918, 874
N.E.2d 1198, ¶ 3.
           4. The Thompkins Standard of Review for Manifest Weight
                        of the Evidence Applies in Civil Cases
         {¶ 17} There are several reasons why the standard set forth in Thompkins
also applies in civil cases. First, neither the constitution nor statutes nor rules of
procedure treat civil cases differently from criminal cases with regard to appellate
review on the issues of sufficiency and manifest weight. See Ohio Constitution,
Article IV, Section 3(B)(3); App.R. 12(C); and R.C. 2321.01, 2321.18, and
2945.831. The concepts remain qualitatively and quantitatively different from
each other no matter the type of case.
         {¶ 18} Second, if C.E. Morris required an appellate court to determine
only whether there is sufficient evidence to support a civil jury verdict, then there
would never be any review of manifest weight of the evidence in these cases.
There is a distinction between review for weight of the evidence in the courts of
appeals and review by the Supreme Court of matters of law. R.C. 2503.43 states,
“In a civil case or proceeding, except when its jurisdiction is original and except
as provided by section 2309.59 of the Revised Code, the supreme court need not

3. Our holding in Wilson does not apply to sexual offenders who commit offenses on or after
January 1, 2008, the effective date of 2007 Am.Sub.S.B. No. 10, which made many changes to
R.C. Chapter 2950. See State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108
(sexual-offender-registration statutes enacted in 2008 are punitive, rather than remedial, in nature).




                                                  8
                                January Term, 2012




determine as to the weight of the evidence.” But a court of appeals has the power
to decide that a jury verdict is against the weight of the evidence, provided that it
acts unanimously. We will not review a determination by a court of appeals that a
verdict or finding is against the weight of the evidence.         Bown & Sons v.
Honabarger, 171 Ohio St. 247, 168 N.E.2d 880 (1960), paragraph three of the
syllabus; State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955); see also
R.C. 2953.02 (“The supreme court in criminal cases shall not be required to
determine as to the weight of the evidence, except * * * in cases in which a
sentence of death is imposed for an offense committed on or after January 1,
1995, and in which the question of the weight of the evidence to support the
judgment has been raised on appeal * * *”).
       {¶ 19} Third, because “manifest weight of the evidence” refers to a
greater amount of credible evidence and relates to persuasion, it does not matter
that the burden of proof differs in criminal and civil cases. In a civil case, in
which the burden of persuasion is only by a preponderance of the evidence, rather
than beyond a reasonable doubt, evidence must still exist on each element
(sufficiency) and the evidence on each element must satisfy the burden of
persuasion (weight).
       {¶ 20} Several courts of appeals do apply the Thompkins standard for
manifest weight of the evidence in civil as well as criminal cases. For example,
the Ninth District stated how a review on manifest weight is to be conducted:


       “ ‘The [reviewing] court * * * weighs the evidence and all
       reasonable inferences, considers the credibility of witnesses and
       determines whether in resolving conflicts in the evidence, the
       [finder of fact] clearly lost its way and created such a manifest
       miscarriage of justice that the [judgment] must be reversed and a
       new trial ordered.’ ”



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                             SUPREME COURT OF OHIO




(Alterations made in Tewarson.) Tewarson v. Simon, 141 Ohio App.3d 103, 115,
750 N.E.2d 176 (9th Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717
(1st Dist.1983).
       {¶ 21} In weighing the evidence, the court of appeals must always be
mindful of the presumption in favor of the finder of fact.


       “[I]n determining whether the judgment below is manifestly
       against the weight of the evidence, every reasonable intendment
       and every reasonable presumption must be made in favor of the
       judgment and the finding of facts. * * *
               “If the evidence is susceptible of more than one
       construction, the reviewing court is bound to give it that
       interpretation which is consistent with the verdict and judgment,
       most favorable to sustaining the verdict and judgment.”


Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
(1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at
191-192 (1978).
       {¶ 22} When a court of appeals determines that a jury verdict is against
the weight of the evidence, it should remand the case for a new trial. See Hanna
v. Wagner, 39 Ohio St.2d 64, 66, 313 N.E.2d 842 (1974). A court of appeals
panel has the power to so act, provided it acts unanimously and reverses only
once on manifest weight of the evidence. These restrictions protect the jury
verdict and safeguard against arbitrary remand.




                                         10
                                January Term, 2012




       {¶ 23} We therefore make clear today that in civil cases, as in criminal
cases, the sufficiency of the evidence is quantitatively and qualitatively different
from the weight of the evidence.
               C. Motions Are Not Required to Challenge Manifest
                         Weight of the Evidence on Appeal
       {¶ 24} The dissenting judge concluded that because Huffman had not
moved for a directed verdict at the close of all evidence or filed motions for
JNOV or a new trial after the jury’s verdict, she had waived her appeal on the
manifest weight of the evidence.        These motions are governed by distinct
standards.
       {¶ 25} Civ.R. 50(A) motions for directed verdict do not present factual
issues but instead present questions of law. Goodyear Tire & Rubber Co. v.
Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835,
¶ 4. The same is true for a Civ.R. 50(B) JNOV motion. Posin v. A.B.C. Motor
Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976) (“The test to be
applied by a trial court in ruling on a motion for judgment notwithstanding the
verdict is the same test to be applied on a motion for a directed verdict”). Faced
with the question of sufficiency through a directed-verdict motion, the court must
determine whether any evidence exists on every element of each claim or defense
for which the party has the burden to go forward. Even if it is necessary to review
and consider the evidence, a reversal of a judgment from a jury trial on grounds
that the trial court should have granted a directed verdict is not a reversal on
manifest weight of the evidence. Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d
66, 430 N.E.2d 935 (1982), paragraph one of the syllabus.
       {¶ 26} A motion for new trial pursuant to Civ.R. 59(A)(6), however,
contends that “[t]he judgment is not sustained by the weight of the evidence.”
The motion must be filed within 14 days of entry of judgment, and the rule
specifies that a trial judge may grant “only one new trial * * * on the weight of the



                                         11
                             SUPREME COURT OF OHIO




evidence in the same case.” Id.; see also R.C. 2321.18 (“The same trial court
shall not grant more than one new trial on the weight of the evidence against the
same party in the same case, nor shall the same court grant more than one
judgment of reversal on the weight of the evidence against the same party in the
same case”).
       {¶ 27} In explaining what a trial court considers when ruling on a motion
for a directed verdict or motion for a new trial, we observed:


                There is a basic difference between the duty of a trial court
       to submit a case to the jury where “reasonable minds” could differ
       and the right of a trial court to grant a new trial on the basis of its
       conclusion that the verdict is not “sustained by sufficient
       evidence.” The former does not involve any weighing of evidence
       by the court; nor is the court concerned therein with the question of
       credibility of witnesses. However, in ruling on a motion for new
       trial upon the basis of a claim that the judgment “is not sustained
       by sufficient evidence,” the court must weigh the evidence and
       pass upon the credibility of the witnesses, not in the substantially
       unlimited sense that such weight and credibility are passed on
       originally by the jury but in the more restricted sense of whether it
       appears to the trial court that manifest injustice has been done and
       that the verdict is against the manifest weight of the evidence.


Rohde v. Farmer, 23 Ohio St.2d 82, 262 N.E.2d 685 (1970), paragraph three of
the syllabus.
       {¶ 28} Because motions for directed verdict and for JNOV present
questions based on the sufficiency of the evidence, submitting one or both of
these motions is clearly not a prerequisite for appellate review on the manifest



                                         12
                                    January Term, 2012




weight of the evidence. Nor is a motion for a new trial a prerequisite for appellate
review of the weight of the evidence. As R.C. 2321.014 explains,


        [a] motion for a new trial is not necessary as a prerequisite to
        obtain appellate review of the sufficiency or weight of the evidence
        submitted to the trial court where such evidence to be considered
        appears as a part of the record filed in the appellate court.


        {¶ 29} Nothing in the rules or statutes requires a party to have made a
particular motion before seeking appellate review of a jury verdict on the weight
of the evidence. Nor do the cases cited in the dissenting appellate judge’s opinion
support his assertion that Huffman waived appellate review of the weight of the
evidence by failing to raise certain motions in the trial court. See Eastley, 2010-
Ohio-4771, ¶ 60 (Kline, J., dissenting).
        {¶ 30} We now hold that when the evidence to be considered is in the
court’s record, a party need not have moved for directed verdict or filed a motion
for a new trial or for JNOV to obtain appellate review of the weight of the
evidence.
                                       III. Conclusion
        {¶ 31} Reversal on the manifest weight of the evidence and remand for a
new trial are not to be taken lightly. Nevertheless, we express no thought on
whether the court of appeals should reverse the judgment and grant a new trial in
this case. It may be that the dissenting judge believes that the weight of the
evidence supports the jury’s verdict, and in that event, the verdict will be affirmed




4. A corresponding statute appears in the criminal code: “A motion for a new trial is not a
necessary prerequisite to obtain appellate review of the sufficiency or weight of the evidence in
the trial of a criminal case.” R.C. 2945.831.




                                               13
                            SUPREME COURT OF OHIO




again.    We simply remand for consideration of the issue based upon the
appropriate standard.
                                                              Judgment reversed
                                                            and cause remanded.
         O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, CUPP, and
MCGEE BROWN, JJ., concur.
         PFEIFER, J., dissents and would dismiss the appeal as having been
improvidently accepted.
                              __________________
         Spetnagel & McMahon and Thomas M. Spetnagel; and Bender Law
Offices and Stanley C. Bender, for appellee.
         Gallagher, Gams, Pryor, Tallan & Littrell, L.L.P., M. Jason Founds, and
Mark H. Gams; and Mann & Preston, L.L.P., and James L. Mann, for appellant.
         Gallagher Sharp and Timothy J. Fitzgerald, urging reversal for amicus
curiae, Ohio Association of Civil Trial Attorneys.
                           ______________________




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