         [Cite as McCarthy v. Sterling Chems., Inc., 2012-Ohio-5211.]


                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO


PATRICK B. McCARTHY,                              :          APPEAL NOS. C-110805
                                                                          C-110856
MARK COLLIN FUGATE,                               :          TRIAL NO. A-0509144

 and                                              :                O P I N I O N.

PATRICIA SUSAN McCARTHY,                          :

       Plaintiffs-Appellees,                      :

 vs.                                              :

STERLING CHEMICALS, INC.,                         :

 and                                              :

RESCAR, INC.,                                     :

    Defendants-Appellants,                        :

 and                                              :

ACF INDUSTRIES, LLC,                              :

 and                                              :

TEXANA TANK CAR &                                 :
MANUFACTURING, LTD.,
                                                  :
       Defendants-Appellees,
                                                  :
 and
                                                  :
BASF CORPORATION et al.,
                                                  :
       Defendants,
                                                  :
 vs.
                                                  :
KINDER MORGAN LIQUIDS
TERMINALS, LLC,                         :

     Third-Party Defendant.             :


Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: November 9, 2012


Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley, D. Arthur
Rabourn, Joseph T. Deters, Louise M. Roselle, W.B. Markovits, Paul M. De Marco,
and Christopher D. Stock, for Plaintiffs-Appellees,

Vorys, Sater, Seymour and Pease LLP, Robert E. Tait, and C. William O’Neill, and
Mills Shirley LLP, Jack C. Brock, and Fred D. Raschke, for Defendant-Appellant
Sterling Chemicals, Inc.,

Katz, Teller, Brant & Hild and Robert A. Pitcairn, Jr., and Mannion & Gray Co.,
L.P.A., Thomas P. Mannion, Judd R. Uhl, and Katherine L. Kennedy, for Defendant-
Appellant Rescar, Inc.,

Sutter O’Connell Co., Matthew C. O’Connell and Denise A. Dickerson, for Defendant-
Appellee ACF Industries, LLC,

Reminger Co., LPA, and Joseph W. Borchelt, and Bates Carey Nicolaides, LLP, Scott
L. Carey, Joseph P. Pozen, and Kathleen L. Hartley, for Defendant-Appellee Texana
Tank Car & Manufacturing, Ltd.




Please note: This case has been removed from the accelerated calendar.
W OLFF , Presiding Judge.

        {¶1}     Plaintiff-appellee Patrick McCarthy, an employee of third-party

defendant Kinder Morgan Liquids Terminals, LLC (“Kinder Morgan”), was injured

on July 5, 2005, while transferring a liquid from a pressurized railroad tank car

owned by defendant-appellant Sterling Chemicals, Inc. (“Sterling”), to a Kinder

Morgan storage tank. McCarthy was standing on the top of the railcar when the

manway assembly separated from the car. McCarthy was struck by the manway

assembly and fell 15 feet to the ground. McCarthy and his two minor children filed

suit   against   various   defendants,   including   railcar-owner    Sterling,   railcar-

manufacturer defendant-appellee ACF Industries, LLC (“ACF”), defendant-appellant

Rescar, Inc. (“Rescar”), which had been hired by Sterling to maintain its fleet of

railroad cars, and defendant-appellee Texana Tank Car & Manufacturing, Ltd.

(“Texana”), which had formerly maintained the railcar. Various defendants filed

third-party complaints against McCarthy’s employer, Kinder Morgan.

        {¶2}     The trial court granted summary judgment in favor of Kinder

Morgan, determining that there was no genuine issue of material fact as to whether

Kinder Morgan had committed an intentional tort against McCarthy, and therefore,

that Kinder Morgan was not liable for damages. On appeal, this court affirmed the

summary judgment in favor of Kinder Morgan.

        {¶3}     The case proceeded to a jury trial. After plaintiffs’ case-in-chief, the

trial court granted directed verdicts for ACF and Texana, ruling that a May 2000

“change out” of the railcar’s original 35-psi pressure-relief valve for a 75-psi valve

constituted a substantial and material alteration of the railcar that relieved ACF and

Texana of any liability.
       {¶4}    The jury unanimously found in favor of Sterling and Rescar. Plaintiffs

moved for judgment notwithstanding the verdict or, in the alternative, for a new

trial. The trial court granted plaintiffs’ motion for a new trial. The court stated that

it had granted the motion for a new trial because the court believed that, in

instructing the jury, it had not adequately explained that duties arising under

“regulations and statutes” did not “trump” the duties arising under “common law,”

and that the jury had not been “fully informed” by the court’s instructions regarding

the relationship between the duty of ordinary care owed to McCarthy by Sterling and

Rescar and the duties that arose from statutes and regulations governing the

industry. Sterling and Rescar appealed the trial court’s granting of the motion for a

new trial.

       {¶5}    This court reversed the judgment of the trial court granting a new

trial, holding that the jury had been properly instructed, and that there was no

evidence of jury confusion.     The order of remand instructed the trial court to

reinstate the defense verdict. Plaintiffs did not appeal this court’s decision to the

Ohio Supreme Court.

       {¶6}    On remand, a different trial judge reinstated the defense verdict.

Plaintiffs filed a “cautionary appeal,” and Rescar filed a cross-appeal from the trial

court’s entry reinstating the defense verdict. Plaintiffs also filed with the trial court

another motion for a new trial. Pursuant to App.R. 4(B)(2), we remanded the case to

the trial court to rule on the new-trial motion. The appeals were subsequently

dismissed.

       {¶7}    On remand, defendants argued that the court had no jurisdiction to

entertain plaintiffs’ second new-trial motion. The trial court rejected that argument
because (1) this court had remanded the case under App.R. 4(B)(2) “explicitly” for

the trial court to rule on the second new-trial motion, and (2) the grounds asserted in

the second new-trial motion had not been addressed by this court in the prior appeal.

The trial court granted plaintiffs’ second new-trial motion, citing Civ.R. 59(A)(1)

(irregularity of the proceedings had prevented a fair trial) and Civ.R. 59(A)(9) (an

error of law had occurred at trial and had been brought to the trial court’s attention).

The court at trial had held that ACF, the manufacturer of the railcar, could not be

held liable for damages because the valve switch-out constituted a material alteration

of the railcar. In granting plaintiffs’ second new-trial motion, the court determined

that the original trial judge had not adequately explained its ruling to the jury, and

that, therefore, the jury “could have” been confused about why ACF was no longer in

the case. The trial court further determined that the possible jury confusion was

compounded by the defendants’ closing arguments referring to ACF being “at fault”

for a defective weld. The court found that the original trial judge’s failure to give an

adequate curative instruction might have “constitute[d] a failure to fairly and

accurately inform the jury.” Plaintiffs had raised the “ACF argument” in the original

motion for a new trial, but the original trial judge had not addressed that ground in

its entry granting the new trial.

       {¶8}     Sterling and Rescar have appealed the trial court’s judgment granting

plaintiffs’ second new-trial motion. Sterling’s first assignment of error and Rescar’s

first and second assignments of error allege that the trial court erred in granting the

motion. Sterling and Rescar argue that plaintiffs waived “the ACF argument” by

failing to raise it by cross-assignment of error in the appeal from the first judgment
granting a new trial, and that, therefore, the trial court had no authority to entertain,

much less grant, plaintiffs’ second new-trial motion on that ground.

       {¶9}     App.R. 3(C)(2) provides that a cross-appeal is not required where an

appellee seeks to defend a trial court’s judgment “on a ground other than that relied

on by the trial court,” but does not seek to “change the judgment or order.” Plaintiffs

did not waive the “ACF argument” by failing to file a cross-appeal in the appeal from

the first judgment granting a new trial, because plaintiffs were not seeking to change

the trial court’s judgment, only to preserve it.

       {¶10}    “App.R. 3(C)(2) allows an appellee to support the trial court’s

judgment on grounds the trial court rejected.” The Cincinnati Gas & Electric Co. v.

Joseph Chevrolet, 153 Ohio App.3d 95, 2003-Ohio-1367, 791 N.E.2d 1016, ¶ 12 (1st

Dist.). R.C. 2505.22 provides that when a final order or judgment is appealed, the

appellee may file assignments of error to prevent reversal of the trial court’s

judgment. Plaintiffs did not file an R.C. 2505.22 assignment of error based on the

“ACF argument” to prevent reversal in the first appeal. In fact, plaintiffs did not file

any R.C. 2505.22 assignments of error in the first appeal.

       {¶11}    In Nickell v. Gonzalez, 34 Ohio App.3d 364, 519 N.E.2d 414 (1st

Dist.1986), this court held that where plaintiffs had lost at trial and had filed a

motion for judgment notwithstanding the verdict and/or a new trial on several

grounds, and the trial court had granted the motion on only one ground, not

reaching the other grounds, after the final order was entered, the grounds not

reached by the trial court were merged into the final order and were reviewable on

appeal. Plaintiffs’ failure to raise the issues on direct appeal thus precluded plaintiffs
from asserting them in a second new-trial motion filed after the Ohio Supreme Court

had affirmed a judgment for the defendant.

       {¶12}   Donna Nickell and her husband had filed a lawsuit against Dr. Luis

Gonzalez for injuries she alleged had been caused by a surgical procedure performed

by Gonzalez. The case was tried to a jury solely on the issue of informed consent.

After a jury verdict in favor of Gonzalez, the Nickells filed a motion for judgment

notwithstanding the verdict and/or a new trial, raising three grounds for relief. The

trial court granted the motion on the ground that it should have directed a verdict for

the Nickells on the issue of informed consent, and the court ordered a new trial on

the issue of damages. The second trial also resulted in a verdict in favor of Gonzalez,

with the jury holding that the Nickells had suffered no damages. The Nickells filed a

second motion for judgment notwithstanding the verdict and/or a new trial, based

on alleged errors in the second trial. The trial court denied the motion, and the

parties appealed. On appeal, this court held that the trial court had abused its

discretion in granting the first motion and ordering a new trial, and we reinstated the

first jury verdict in favor of Gonzalez. This court’s decision was affirmed by the Ohio

Supreme Court.

       {¶13}   The Nickells then filed a third motion in the trial court for judgment

notwithstanding the verdict and/or a new trial.        The motion included the two

grounds raised by the Nickells, but not ruled on by the trial court, in the first motion,

and the motion asserted a new ground not previously raised. Gonzalez filed a motion

to strike and for Civ.R. 11 sanctions. The trial court denied the Nickells’ motion and

Gonzalez’s request for sanctions, and granted Gonzalez’s motion to strike. All parties

appealed.
       {¶14}   On appeal, the Nickells argued that they were entitled to raise the two

grounds asserted in the first motion, but not ruled upon by the trial court. The

Nickells argued that because the two grounds had not been specifically ruled on by

the trial court, they had had no opportunity for appellate review of those claims. We

disagreed, holding that when the trial court had failed to specifically rule on those

grounds, they had been effectively denied and had been “fully reviewable on appeal.”

Nickell, 34 Ohio App.3d at 367, 519 N.E.2d 414. We further held that the trial court

had been without jurisdiction to entertain the motion because the grounds had been

waived earlier when not asserted in the first appeal. We noted that the Rules of Civil

Procedure “are to be construed and applied to eliminate delay and all impediments

to the expeditious administration of justice.” Id. We pointed out that a rule allowing

the Nickells to raise those grounds “would create a circularity of actions, undermine

the necessary finality of judgments, and create needless extra costs for litigants.” Id.

       {¶15}   In the case sub judice, the first trial judge granted plaintiffs’ motion

for a new trial on the ground that the court’s insufficient statement of the law

regarding the “duties” owed by defendants to McCarthy, along with its inadequate

instructions about those “duties,” had confused the jury. Plaintiffs had raised the

“ACF argument” in their first new-trial motion, but the first trial judge had not

specifically addressed that issue. When the first trial judge failed to rule on that

ground, it was effectively denied and fully reviewable on appeal. See id. at 367.

Sterling and Rescar appealed that judgment. On appeal, plaintiffs did not raise any

assignments of error pursuant to R.C. 2505.22 to prevent reversal of the trial court’s

judgment. If plaintiffs wanted to allege that the trial court should have granted their

motion for a new trial on the basis of the “ACF argument,” they should have done so
by asserting that ground in an R.C. 2505.22 assignment of error in the first appeal.

See Cope v. Miami Valley Hosp., 195 Ohio App.3d 513, 2011-Ohio-4869, 960 N.E.2d

1034, ¶ 35 (2d Dist.). Plaintiffs had the option to raise the “ACF argument” in an

R.C. 2505.22 assignment of error, but plaintiffs did not file any R.C. 2505.22

assignments of error for this court to consider in the first appeal. Plaintiffs may not

now rely on the “ACF argument” because it could have been raised and fully pursued

in the first appeal. See Brothers v. Morrone-O’Keefe Dev. Co., LLC, 10th Dist. No.

06AP-713, 2007-Ohio-1942, ¶ 37. By failing to raise the “ACF argument” by an R.C.

2505.22 assignment of error in the first appeal, plaintiffs have waived it. See Nickell,

34 Ohio App.3d at 367, 519 N.E.2d 414.

       {¶16}     The grounds raised in the first new-trial motion were reviewable in

the first appeal. Any grounds not asserted in the first motion were not timely raised.

See id. The second trial judge was without authority to entertain plaintiffs’ second

new-trial motion because the arguments raised therein had been waived. See id.

Sterling’s first assignment of error and Rescar’s first and second assignments of error

are sustained.

       {¶17}     Rescar’s and Sterling’s remaining assignments of error raise errors

that allegedly occurred during trial, which are not now ripe for review. Therefore, we

do not address them.

       {¶18}     The judgment of the trial court is reversed, and this cause is

remanded with instructions to reinstate the jury verdict in favor of Sterling and

Rescar and to enter judgment accordingly.

                                             Judgment reversed and cause remanded.

G ORMAN , J., concurs.
B ROGAN , J., dissents.
J UDGE W ILLIAM H. W OLFF , J R ., retired, of the Second Appellate District, J UDGE
J AMES A. B ROGAN , retired, of the Second Appellate District, and J UDGE R OBERT
H. G ORMAN , retired, of the First Appellate District, sitting by assignment.

B ROGAN , J., dissenting.


       {¶19}      I must respectfully dissent from the majority opinion. In our prior

opinion reversing the trial court’s grant of a new trial we specifically stated that our

scope of review was confined to what the trial court had “specified” in writing as the

cause for which the new trial was allowed, citing the Ohio Supreme Court’s opinion

in O’Day v. Webb, 29 Ohio St.2d 215, 280 N.E.2d 896 (1972). The trial court had

specified inadequate jury instructions as the basis for the new trial decision, and we

found the court had erred.

       {¶20}      App.R. 3(C)(2) “allows” an appellee to support the trial court’s

judgment on grounds the trial court rejected. The Cincinnati Gas & Electric Co. v.

Joseph Chevrolet, 153 Ohio App.3d 95, 2003-Ohio-1367, 791 N.E.2d 1016 (1st Dist.).

R.C. 2505.22 provides the appellee “may” file assignments of error to prevent

reversal of the trial court’s judgment. Neither the rule nor the statute require that an

appellee file cross-assignments to preserve a judgment. Judge Gorman in the prior

opinion and the trial judge both concluded that the evidence produced at trial

demonstrated someone was negligent in causing Patrick McCarthy’s severe injuries.

Judge Nadine Allen was well within her discretion in granting the plaintiffs a new

trial. She found that the plaintiffs had been denied a fair trial when the trial judge

refused to inform the jury that he had dismissed ACF as a defendant because he

concluded that ACF was legally blameless, and in permitting defendant’s counsel to

improperly argue that ACF was primarily at fault for Patrick McCarthy’s injuries. I

would affirm the trial court’s grant of a new trial in this matter.
Please note:


               The court has recorded its own entry this date.
