[Cite as Southworth v. N. Trust Securities, Inc., 2013-Ohio-2917.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 99250




                              JOHN D. SOUTHWORTH
                                                            PLAINTIFF-APPELLANT

                                                      vs.


        NORTHERN TRUST SECURITIES, INC., ET AL.

                                                            DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                     Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-688175

        BEFORE:            Boyle, P.J., Celebrezze, J., and Jones, J.

        RELEASED AND JOURNALIZED:                             July 3, 2013
ATTORNEYS FOR APPELLANT

Daniel M. Connell
Shannon J. Polk
Haber Polk Kabat, L.L.P.
737 Bolivar Road
Suite 4400
Cleveland, Ohio 44115


ATTORNEYS FOR APPELLEES

Patrick O. Peters
Jeremy Gilman
Peter N. Kirsanow
Benesch, Friedlander, Coplan, Aronoff, L.L.P.
200 Public Square
Suite 2300
Cleveland, Ohio 44114
MARY J. BOYLE, P.J.:

      {¶1} Plaintiff-appellant, John Southworth, appeals from a judgment denying his

motion for a new trial after a jury found in favor of defendants-appellees, Northern Trust

Securities, Inc. (“Northern Trust”), Michael Cogan, and Scott Dille (collectively

“defendants”), on his age discrimination claim. He raises four assignments of error for

our review:

      1. The trial court erred in admitting evidence relating to defendants’
      after-acquired evidence defense. Having done so, the trial court further
      erred by failing to provide a curative instruction to the jury to guide it
      regarding the proper consideration of such evidence.

      2. The trial court erred by entering judgment in favor of defendants Mike
      Cogan and Scott Dille despite the jury’s failure to return a verdict in their
      favor.

      3. The trial court erred by limiting plaintiff’s cross-examination of
      defendant Mike Cogan during defendant’s case-in-chief.

      4. The trial court erred by denying plaintiff’s motion for a new trial based
      upon the foregoing irregularities and errors of law during the trial.

      {¶2} After review, we find no error on the part of the trial court and affirm.

                      Procedural History and Factual Background

      {¶3} In late 2008, after the global economic downturn, Northern Trust

announced that it would reduce its workforce beginning in early 2009.         As part of

Northern Trust’s reduction in force (“RIF”), it eliminated 450 employees worldwide —

188 employees in the United States and three in the Cleveland office.      Southworth, a

portfolio manager, was one of the three employees eliminated in Northern Trust’s
Cleveland office.   He was 63 years old at the time.

       {¶4} Mike Cogan, president and chief executive officer of Northern Trust’s

Cleveland office, notified Southworth on February 25, 2009, that he had been selected to

be eliminated as part of the RIF. Cogan, who was Southworth’s direct supervisor,

informed Southworth that his last day of employment would be April 25, 2009. Cogan

further told Southworth that during the “60-day notification period,” Northern Trust

expected Southworth to continue working to “transition and/or complete assignments.”

       {¶5} Southworth, however, filed an age discrimination complaint against

Northern Trust and Cogan in mid-March 2009.               Southworth later amended his

complaint to add Scott Dille, Cogan’s supervisor and senior vice president of Northern

Trust’s midwest region.      After Southworth filed his complaint, he was no longer

permitted to work at Northern Trust. But Northern Trust continued to pay Southworth

his full salary and benefits until April 25, 2009.

       {¶6} The case was tried to a jury in April 2012.     The jury returned a verdict for

defendants. Southworth moved for a new trial, which the trial court denied. It is from

this judgment that Southworth appeals.



                                              I.

       {¶7} In his first assignment of error, Southworth argues that the trial court erred

when it permitted defendants to cross-examine him regarding Ex. MMMMMM, and

when it allowed Ex. MMMMMM to be admitted into evidence through his
cross-examination.       Southworth claims that Ex. MMMMMM was “after-acquired

evidence,” which he asserts was not applicable in this case.

       {¶8} Ex. MMMMMM was a list that Southworth created of his Northern Trust

clients after he was notified that his position was being eliminated. The list contained

the client’s name, the number of accounts the client had with Northern Trust, the client’s

total account value at Northern Trust, Southworth’s estimated probability that the client

would follow him to another company, and comments that Southworth had made

regarding each client.

       {¶9} After Southworth was told that his position was being eliminated, he

immediately began to look for other employment.            He found employment “fairly

quickly” at Glenmede Trust Company. He stated,

       I went to work at [Glenmede] somewhere around May 11th, I think.
       Whatever would be close to a Monday. My last day at Northern Trust
       Company was April 25th. And so I considered myself to be an employee
       and loyal to Northern Trust through the 25th of April. Although I was
       meanwhile seeking employment, I viewed myself as an employee through
       the last day.

       {¶10} On cross-examination, Southworth admitted that he gave a copy of his

client list, Ex. MMMMMM, to Frank Harding, managing director at Glenmede.

Southworth testified that he had lunch with Harding in mid-March of 2009, but said that

he did not give the list to Harding until after April 25, 2009. Southworth acknowledged

that in Harding’s deposition, taken by defendants just before trial, Harding stated that he

believed Southworth had given him the client list “either just before — I think just

before [Southworth] retired” from Northern Trust.
       {¶11} Southworth agreed that in the financial industry, there are “strict

confidentiality requirements.”      He further agreed that by violating a client’s

confidentiality, it was “not just a minor offense,” but “it [was] a cardinal offense.”   He

also agreed that Northern Trust could face “potential liability” if the client discovered

that his or her personal information was disclosed in some way, either intentionally or

inadvertently.

       {¶12} Southworth moved to strike defendants’ cross-examination of him

regarding defendants’ “after-acquired evidence defense,” claiming that it was not

relevant because he did not give the client list to Harding until after he was terminated.

Southworth argued that any evidence of his conduct that postdates his selection in the

RIF should have been stricken.

       {¶13} In McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S.Ct.

879, 130 L.Ed.2d 852 (1995), the United States Supreme Court established the

“after-acquired evidence” defense, which allows a defendant employer to show that an

employee would have been terminated anyway had the employer known of wrongful

conduct by the employee plaintiff. Id. at 362.     If the defense applies, it generally bars

the employee from obtaining front pay and reinstatement, and limits back pay. See

Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1168 (6th Cir.1996). The Sixth

Circuit Court of Appeals has also held that an employer is not entitled to a “McKennon

instruction limiting damages” where the employee’s alleged misconduct arose as a direct

result of the discriminatory act. Jones v. Nissan N. Am., Inc., 438 Fed.Appx. 388, 407
(6th Cir.2011).

       {¶14} In denying Southworth’s motion to strike, the trial court stated:

              Respectfully, I disagree.        I think that cross-examination is
       cross-examination. And I’m going to note that during the course of your
       examination of Mr. Southworth that you certainly were able to elicit that he
       was for all intents and purposes a good employee, and I think that we were
       in that area quite a bit as it related to his book of business and the client
       relationships that he had, and I think I actually noted in my notes that you
       indicated or that he indicated several times that he was good at his job and
       did a good job. So I think it’s pretty fair game to cross him on things that
       might not have been good, and that all of that encompasses part of what
       this RIF was about from the Court’s perspective[.]

       {¶15} Evid.R. 611(B) sets forth the “scope of cross-examination.” It provides

that “[c]ross-examination shall be permitted on all relevant matters and matters affecting

credibility.”

       {¶16} “Relevance, in the context of cross-examination, includes not only all facts

in issue but also a witness’s credibility.” Fields v. Dailey, 68 Ohio App.3d 33, 42, 587

N.E.2d 400 (10th Dist.1990), citing Evid.R. 611(B); McCormick, Evidence, Section 29,

at 63 (3d Ed.1984).

       {¶17} The scope of cross-examination lies within the sound discretion of the trial

court. Renfro v. Black, 52 Ohio St.3d 27, 33, 556 N.E.2d 150 (1990). The standard of

review on such evidentiary rulings is whether the trial court abused its discretion. Id.

An abuse of discretion is shown when a decision is unreasonable, that is, when there is

no sound reasoning process that would support the decision.      AAA Ents. v. River Place

Community, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

       {¶18} Southworth spends much of his brief arguing that the trial court erred when
it permitted defendants to question him about the client list because he asserts that he

only shared his client list with Glenmede as a result of the alleged adverse employment

action taken against him — thus, after Northern Trust discriminated against him. He

argues that under Jones, the trial court should have stricken all evidence related to the

client list because it was “after-acquired evidence.”

       {¶19} But Southworth’s entire argument regarding after-acquired evidence is

misplaced. In Jones, the Sixth Circuit found that the district court erred when it gave

the “McKennon instruction limiting damages” to the jury. Jones, 438 Fed.Appx. at 407.

 Jones does not stand for the proposition that Nissan could not question the

plaintiff-employee about his alleged misconduct.        Indeed, the plaintiff-employee

testified as to his alleged misconduct (that he sought new employment while on medical

leave without Nissan’s approval, which was against Nissan’s employment policies) and

explained his reason for doing so to the jury (he needed to support his family and he

knew Nissan would say no if he asked them). The Jones court reversed for a new trial

on damages without the McKennon instruction. Id.

       {¶20} Here, the trial court permitted defendants to question Southworth about the

client list to counter his testimony on direct-examination that he was loyal to Northern

Trust until April 25, 2009. If Southworth gave the client list to Harding prior to that

date, sharing Northern Trust’s confidential client information, then the jury could have

considered that information to decide that he was not loyal to Northern Trust until April

25, 2009 — as he testified he was. Southworth opened the door to this testimony. This
 matter directly reflected on his credibility. Thus, it was entirely appropriate for the trial

 court to permit defendants to cross-examine Southworth on the client list and admit the

 client list into evidence.

            {¶21} Southworth further argues that the trial court erred when it denied his

 request for a curative instruction to the jury “to guide it regarding the proper

 consideration” of the “after-acquired evidence.”          We disagree.

            {¶22} During defendants’ cross-examination of Southworth, they filed a motion

 requesting the court to instruct the jury on “the after-acquired evidence doctrine.”

 When discussing proposed jury instructions at the end of trial, the trial court addressed

 defendants’ motion. The trial court indicated that it would not instruct the jury on the

 after-acquired evidence doctrine as requested by defendants.                Southworth then asked

 the court to give the jury a curative instruction, explaining to the jury that evidence

 related to the “after-acquired evidence, meaning his alleged violation of Northern Trust’s

 policy, [could not] be considered for purposes of liability and really should not be

 considered for purposes at all[.]”       The trial court responded:

                   I think there was evidence, as I indicated previously, that that list
            may have been disclosed while Mr. Southworth was working for Northern
            Trust or may not.[1] And I think that the jury would be able to use their
            collective memories to determine whose credibility they believed in this
            particular case, and therefore I am not going to give any additional
            instructions as it relates to that after-acquired evidence.


          Contrary to his deposition testimony, Harding testified (after Southworth) that he thought that
        1


Southworth had given him the client list sometime in April 2009, but Harding stated that he believed
it was after Northern Trust fired Southworth. When asked if Southworth could have given Harding
the list in mid-March, Harding replied that Southworth “might have.”
       {¶23} Southworth maintains that the jury should have been given a “curative

instruction” because it “would have informed the jury that evidence regarding [his] use

of Ex. MMMMMM could not even be considered until after [it] had reached a finding

on liability.”    (Emphasis sic.)     Southworth’s argument is unpersuasive.       The trial

court properly instructed the jury on determining defendants’ liability or lack thereof.

The jury could and should consider all matters of credibility for all witnesses before it

determined liability.    This is an essential part of the adversary process.     Thus, if the

trial court had given the jury the curative instruction as requested by Southworth, it

would have erred in doing so. As the trial court properly indicated, the jury was

capable of determining the credibility of the witnesses and the weight to be given to a

witness’s testimony.

       {¶24} Southworth’s first assignment of error is overruled.

                                             II.

       {¶25} In his second assignment of error, Southworth argues that the trial court

erred when it entered judgment in favor of Cogan and Dille, despite the fact that the jury

failed to return a verdict in their favor.

       Jury Instructions

       {¶26} The trial court instructed the jury that Southworth brought the action

against “the corporate defendants and Michael Cogan and Scott Dille in their individual

capacity as supervisors or managers under Ohio law.”     It further explained:

                 Under Ohio law, the term employer includes supervisors and
managers acting in the interest of the employer.

       Since individual liability under Ohio law extends only to an
individual’s own actions, liability is limited to individuals who played a
role in making an employment decision. Consequently, in order to
establish that Mr. Cogan and/or Mr. Dille are personally liable, Mr.
Southworth has to show that not only that they were vested with the power
to make decisions affecting him, but also that Mr. Cogan and/or Mr. Dille
used that authority with a discriminatory motive.

       Thus, it is not enough that defendants Cogan and Dille are officers
or managers of the defendant corporations. Rather, you must find the
defendants Cogan and/or Dille played a role in the decision to terminate
the plaintiff and was or were motivated by his age.

{¶27} The trial court then explained the verdict forms to the jury. It stated:

        I’m going to go through these verdict forms with you, and I’m going
to just give you an explanation here. These, ladies and gentlemen, are
entitled jury interrogatory number 1. The word interrogatory is a fancy
lawyer word for the word question basically. Okay.

       So this is a question that you have to answer: Do you find by the
greater weight of the evidence that Northern Trust, FSB or Northern Trust
Corporation, Northern Trust Company, Northern Trust Bank are a single
employer as defined in Court’s instructions, and then you would check
either yes or no and then the foreperson signs the first spot, and each of
you would continue to sign through.

       Now, then there [are] instructions that go to the bottom of this, all
right. And they say if the answer of the foregoing is yes then you
complete the verdict forms for single employer, okay? Now, you’ll see at
the top of the verdict forms it says this would be a verdict for the plaintiff,
single employer. Okay. So it will actually tell you which one you need
to look at, and then it will say: We the jury in this case being duly
impaneled and sworn, upon the concurrence of the undersigned jurors
being not less than three fourths of the whole number thereof, do find for
the plaintiff, and then that would explain the type of damage, economic
compensatory damages and non-economic compensatory damages, and
then there is an amount. Then you would check off: The above
compensatory damages are awarded against the following defendants, and
you would check each box, okay. Then you would sign off.
                  Now if you find in favor of the defendants in the single employer
           document, you would therefore fill out the other verdict form, okay, so you
           are not going to fill out each one of these. It’s going to be sort of an
           either or proposition, but it will say this is the single employer, you can see
           it: We the Jury in this case being duly impaneled and sworn, upon the
           concurrence of the undersigned jurors, being not less than three fourths of
           the whole number thereof do find for the defendants. And that would
           include Northern Trust, Northern Trust Corporation, Company, Bank, and
           against John Southworth for the plaintiff’s claim of age discrimination.
           And then you would sign off with the foreperson, signing the front spot
           there.

           Verdict and Verdict Forms

           {¶28} When the jury returned after deliberations, the court stated, “I understand

you have reached a verdict, is that correct?       Mr. Foreman, if you would hand the forms

to the plaintiff, please.”      The bailiff said, “Make sure they’re upside down, please.

Thank you.”        The court then stated, “Okay. Ladies and gentlemen, the answer to jury

interrogatory number one is that, yes, Northern Trust is a single corporation, but this is a

verdict in this case for defendants.           Okay.    Ladies and gentlemen, is that your

verdict?”      At that point, the transcript states, “Jurors: (Indicating.)”     The trial court

then polled each juror individually, asking them “is this your verdict?” Each juror

replied, “yes.”2 After the polling, the trial court told the jurors that it wanted to speak

with them for a few minutes.         After the jury exited the courtroom, the judge asked the

attorneys, “Do you want to look over the verdict forms?”                 Southworth’s attorney

responded, “sure.”


       The verdict form for defendants is only signed by seven jurors (even though all eight
       2


answered “yes”), but this is still a verdict encompassing three-fourths of the jury.
       {¶29} Review of the interrogatories shows that the jurors answered interrogatory

number 1, “yes,” finding that the various entities of Northern Trust were a single

employer.      The jurors then filled out a verdict form for “single employer” titled,

“Verdict for defendant Northern Trust, FSB, Northern Trust Corporation, Northern Trust

Company, Northern Trust Bank, N.A., and Northern Trust Securities, Inc.”         The verdict

form states,

       We, the jury in this case, being duly impaneled and sworn, upon the
       concurrence of the undersigned jurors, being not less than three-fourths of
       the whole number thereof, do find for Defendant NORTHERN TRUST,
       FSB, NORTHERN TRUST CORPORATION, NORTHERN TRUST
       COMPANY, AND NORTHERN TRUST BANK, N.A., and against
       plaintiff John D. Southworth on plaintiff’s claim for age discrimination.

       {¶30} The jurors left the remaining forms blank, including the forms titled:

“Verdict for defendant Michael Cogan”; “Verdict for defendant Scott Dille”; and

“Verdict for the plaintiff.”   The verdict form for the plaintiff states, “We the jury in this

case, being duly impaneled and sworn, upon the concurrence of the undersigned jurors,

being not less than three-fourths of the whole number thereof, do find for Plaintiff John

D. Southworth and award the following damages[.]”            The form then lists “Type of

Damages” as “Economic Compensatory Damages (back pay, front pay, lost benefits,

etc.)” and “Non-Economic Compensatory Damages (pain and suffering, reputational

damages, etc.),” and has blank lines next to each one.     Below that, the form states, “The

above Compensatory Damages are awarded against the following Defendants (check

each defendant liable for age discrimination)[,]” and then lists Northern Trust, Michael

Cogan, and Scott Dille separately, with blank lines next to each one.
       Failure to Object

       {¶31} Initially, we note that Southworth did not object to the verdict form at trial.

 He argues that he could not have timely raised an objection because the trial court

discharged the jury before he had an opportunity to look at the verdict forms.       He cites

to Gugliotta v. Morano, 161 Ohio App.3d 152, 2005-Ohio-2570, 829 N.E.2d 757 (9th

Dist.), in support of his argument that once the jury left the courtroom, went back to the

jury room, and spoke with the trial court “presumably regarding matters related to the

case,” the jury could not have further deliberated.   While we agree that Gugliotta stands

for the “well- established” proposition that “once a jury has returned its verdict and been

discharged, it cannot be reconvened to alter or amend its verdict,” that is the extent of its

relevance to the facts in this case.

       Gugliotta v. Morano

       {¶32} In Gugliotta, the jury had deliberated several days without a verdict.      The

trial court sent the following question into the jury room: “Is there a possibility that after

an additional period of time, today or tomorrow, you may reach a verdict on any count?”

 Id. at ¶ 14.   The jury foreperson answered “no.” Id.      The trial court then brought the

jury back into the courtroom and asked each juror the same question, which they

answered the same way. After polling the jury, the trial court discharged the jury after

it determined that the jury could not reach a verdict in one or two more days of

deliberation.

       {¶33} The judge then went to the jury room to speak with the jurors without
counsel or the court reporter present.      After speaking to the jurors, the trial court

explained on the record that the jurors informed her that they could reach a verdict if

they could deliberate “beyond the time period” that she had given them (i.e., beyond one

or two more days).     Id. at ¶ 17.   The trial court then polled each juror on the record,

asking them if they could reach a verdict “today, tomorrow, or beyond tomorrow,” with

each juror responding “yes.”     Id. at ¶ 19.   The trial court then instructed the jury to

continue its deliberations.

       {¶34} The plaintiff objected to permitting the jury to continue deliberations,

arguing that it was an error to permit the jury to continue deliberations after it had been

discharged and that the jury was tainted by the trial court’s off-the-record contact with

them. Id. The trial court called each juror individually into the courtroom and asked

what the juror recalled about the judge’s contact with them and whether “anything the

judge said in the jury room outside the presence of counsel or the court reporter had

prejudiced that particular jurors’ ability to deliberate or form an opinion of the case.”

Id.   One juror reported that the trial judge had asked what the jurors “thought of the

case” and that the judge “said the jury was dismissed and then the jurors began asking

questions and the judge answered the jurors’ questions.”      Id. at ¶ 21.   A second juror

began crying on the witness stand and indicated that the emotional state of the jury

changed after the judge told them they were dismissed. Id.

       {¶35} The trial judge ultimately determined, however, that her ex parte

communications with the jury had not prejudiced the jury, and the jury was permitted to
continue its deliberations. Id. at ¶ 22.    The jury ultimately reached a verdict in favor

of the defendant and the plaintiff appealed. Relying on “well established [law] in Ohio

that once a jury has returned its verdict and has been discharged, it cannot be reconvened

to alter or amend its verdict,” the Ninth District determined that the trial judge abused

her discretion in permitting the jury to continue deliberations because the “jury in the

instant matter was discharged in open court and without reaching a verdict.” Id. at ¶ 27.

       Analysis

       {¶36} The facts in this case are distinguishable from those in Gugliotta.       Here,

the jury had reached a verdict in the case.      In open court, the trial court stated, “I

understand you have reached a verdict[,]” and then told the foreman to “hand the verdict

forms to the plaintiff.” Further, it appears from the transcript that the foreman did, in

fact, hand the verdict forms to the plaintiff before the trial court read the verdict in open

court because the bailiff states, “make sure they’re upside down, please.      Thank you.”

The trial court then determined that the jury found that Northern Trust was a single

corporation and stated, “this is a verdict in this case for defendants.”     The trial court

polled each juror, asking “is this your verdict.”       All eight jurors responded “yes.”

Once the trial court had polled each juror, it stated, “Very good.   Thank you, ladies and

gentlemen.    I would like to speak with you, if I could, just for a few minutes.”      The

jury then left the courtroom.   The trial court asked counsel, “do you want to look over

the verdict forms?”   Southworth’s counsel responded “sure.”

       {¶37} Thus, although Southworth contends that he did not have an opportunity to
object until after the jury was discharged, that is not the case.   The jurors had completed

their deliberations before the trial court spoke with them. It was therefore incumbent

upon Southworth to raise the issue with the trial court before the jury had been

discharged.

       {¶38} Southworth has therefore forfeited all but plain error.     The Ohio Supreme

Court has held that

      In appeals of civil cases, the plain error doctrine is not favored and may be
      applied only in the extremely rare case involving exceptional
      circumstances where error, to which no objection was made at the trial
      court, seriously affects the basic fairness, integrity, or public reputation of
      the judicial process, thereby challenging the legitimacy of the underlying
      judicial process itself.
Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997).

       {¶39} After review, we find no plain error.     The trial court read the jury’s verdict

in open court, and stated “this is a verdict in this case for defendants.”    The trial court

then polled each juror, asking “is this your verdict.” All eight jurors responded “yes.”

Although the jurors did not complete the verdict forms indicating that Mike Cogan and

Scott Dille were personally liable, the jury also did not complete the verdict form for

plaintiff. The verdict form for plaintiff included blank lines for the jury to fill in the

amount of economic and noneconomic compensatory damages that the plaintiff would

receive if the jury had, in fact, entered a verdict for plaintiff. The verdict form for

plaintiff also had blank lines for the jury to check next to each defendant it found liable.

By not completing this form, it is clear that the jury intended to find all defendants not

liable, including Cogan and Dille.
         {¶40} Accordingly, we conclude that this is not the “extremely rare case” that

“seriously affects the basic fairness, integrity, or public reputation of the judicial

process.”     Accordingly, there is no plain error on the part of the trial court for entering a

verdict for all defendants.

         {¶41} Southworth’s second assignment of error is overruled.

                                               III.

         {¶42} In his third assignment of error, Southworth argues that the trial court erred

when it limited his cross-examination of Michael Cogan. We set forth the law and

standard of review regarding cross-examination in Southworth’s first assignment of

error.

         {¶43} In this case, as part of Southworth’s case-in-chief, he cross-examined

several witnesses, including Cogan, before they testified on direct-examination for

defendants.      After Southworth completed his case-in-chief, defendants questioned

Cogan (days after he had testified for Southworth) as part of their case-in-chief. When

Cogan was done testifying on direct-examination, Southworth recross-examined Cogan.

During this recross-examination, after questioning Cogan for approximately 20 minutes,

Southworth’s counsel asked Cogan, “I’m going to ask you, sir, is it your testimony that

you didn’t have any preconceived notions at all about who you would select as part of

the process before you did the analysis contained in [the RIF job elimination

worksheet].”      At that point, defendants objected.         The trial court sustained the

objection, stating at sidebar:
               That is the identical question you asked, you literally asked it at
       least 20 times during the course of your cross-examination. By my
       calculations this man has been on the stand for seven plus hours. We’re
       getting to the point now where you have crossed him — you crossed him
       that first day, you crossed him almost seven hours. He’s been on the
       stand, for the record, for a few hours, so ten plus hours. I mean, this is
       enough. We have to stop. Okay. So I’m giving you ten more minutes
       to cross this man, because if you aren’t into new testimony, the same thing
       that you asked before, you’re just spinning our wheels.

       {¶44} The court went on to state, upon further argument by Southworth, that

Southworth asked that same question “multiple times,” emphasizing “I mean, multiple

times is an understatement.”

       {¶45} We find no error on the part of the trial court in limiting Southworth’s

recross-examination of Cogan. Evid.R. 611(A) specifically gives trial courts discretion

“over the mode and order of interrogating witnesses and presenting evidence,” including

avoiding needless consumption of time. Evid.R. 611(A)(2). Southworth had already

crossed Cogan extensively during his case-in-chief.         During Southworth’s inital

cross-examination of Cogan, the trial court did not limit Southworth’s questioning in any

way.   And as the trial court explained during recross-examination, and we have

independently verified, Southworth asked Cogan that same question repeatedly during

his initial cross-examination.

       {¶46} Thus, the trial court did not abuse its discretion when it limited

Southworth’s recross-examination to new areas that were raised on direct-examination.

       {¶47} Southworth’s third assignment of error is overruled.

                                          IV.
       {¶48} In his fourth assignment of error, Southworth maintains that the trial court

erred when it denied his motion for a new trial.

       {¶49} “Whether to grant or deny a motion for a new trial rests with the sound

discretion of the trial court, and its judgment will not be disturbed absent an abuse of

discretion.” Drehmer v. Fylak, 163 Ohio App.3d 248, 2005-Ohio-4732, 837 N.E.2d

802, ¶ 8 (2d Dist.), citing Yungwirth v. McAvoy, 32 Ohio St.2d 285, 291 N.E.2d 739

(1972).

       {¶50} Southworth maintains that the trial court erred when it denied his motion

for new trial for three reasons: (1) because the trial court erred when it permitted

defendants to introduce Ex. MMMMMM (the list of Southworth’s Northern Trust

clients), (2) because the jury failed to complete the verdict forms for Cogan and Dille,

and (3) because the trial court limited his recross-examination of Cogan.      These are the

same issues he raised in his first three assignments of error.   Because we found no error

on the part of the trial court in any of these areas, we also find no error on the part of the

trial court in denying Southworth’s motion for a new trial.

       {¶51} Southworth’s fourth assignment of error is overruled.

       {¶52} Judgment affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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.




MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS;
LARRY A. JONES, SR., J., CONCURS IN JUDGMENT ONLY
