[Cite as Wittenbrook v. Electronics Recycling Servs., 2018-Ohio-208.]
                            STATE OF OHIO, BELMONT COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT
KRISTEN WITTENBROOK                                     )
                                                        )
        PLAINTIFF-APPELLEE                              )
                                                        )               CASE NO. 16 BE 0023
VS.                                                     )
                                                        )                    OPINION
ELECTRONICS RECYCLING                                   )
SERVICES, INC., et al.                                  )
                                                        )
        DEFENDANTS-APPELLANT                            )

CHARACTER OF PROCEEDINGS:                               Civil Appeal from the Court of Common
                                                        Pleas, of Belmont County, Ohio
                                                        Case No. 13 CV 166

JUDGMENT:                                               Affirmed.

APPEARANCES:
For Plaintiff-Appellee                                  Attorney Patrick Cassidy
                                                        The First State Capital
                                                        1413 Eoff Street
                                                        Wheeling, West Virginia 26003

For Defendant-Appellant, JJS                            Attorney Paul Flowers
Developments, Ltd.                                      Attorney Timothy Cogan
                                                        Terminal Tower, Suite 1910
                                                        50 Public Square
                                                        Canfield, Ohio 44113

For Defendants, Electronics Recycling                   Attorney Bradley Shafer
Services, Inc. and Dan Brown                            1233 Main Street, Suite 1000
                                                        Wheeling, West Virginia 26003


JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
                         -2-


Dated: January 8, 2018
[Cite as Wittenbrook v. Electronics Recycling Servs., 2018-Ohio-208.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, JJS Developments, Ltd., appeals the judgment of
the trial court entering a jury verdict against it and in favor of Plaintiff-Appellee,
Kristen Wittenbrook, on her sexual harassment/hostile work environment and
retaliatory discharge claims. JJS argues the trial court's jury interrogatories as to joint
employer liability were erroneous and that the trial court erred by overruling JJS's
motions for directed verdict on the issue of whether it was liable as a joint employer.
Finally, JJS asserts that the trial court committed plain error by failing to sua sponte
address allegedly improper comments made by Wittenbrook's counsel during closing
arguments. For the following reasons, JJS's assignments of error are meritless and
the judgment of the trial court is affirmed.
                                  Facts and Procedural History
        {¶2}     Wittenbrook began working in marketing at Defendant Electronic
Recycling Services Inc. (ERS Ohio) in May 2012. Several months later, Wittenbrook
claimed that a coworker sexually harassed her and intimidated her. She reported the
incident; however, she claimed that management—specifically, senior vice president
of operations at ERS Ohio, Defendant Daniel Brown—failed to investigate and deal
with the allegations, instead mocking her by displaying sexual harassment posters
and portraying her as a drama queen to other employees. Brown then disciplined
Wittenbrook for including a non-employee consultant on an email referencing the
harassment, and ultimately terminated her from her position at the company.
        {¶3}     This appeal does not center on the facts of the underlying sexual
harassment and retaliatory discharge allegations, but rather on ERS Ohio's corporate
relationship to Defendant-Appellant JJS.
        {¶4}     ERS Ohio was an Ohio corporation doing business in Bellaire, Ohio.
Specifically, it was a recycling facility that would accept recyclable materials, store
them and then resell them. Wittenbrook initially worked in a marketing position, then
as an assistant to the general manager, and finally as part of the R2 compliance
group. ERS Ohio was pursuing its R2 certification, which demonstrates a level of
environmentally-responsible recycling; it ensures that the facility is disposing of
                                                                             -2-


materials properly. An R2 certification can make the recycling company more
marketable to companies who do business with it.
      {¶5}   The owners of ERS Ohio were Sam Kazemeini, a company called
Molam, and Brown. Kazemeini was president of ERS Ohio even though he worked
out of Toronto exclusively. Brown was senior vice president for operations, Jim
Johnston was the general manager or head of operations, and Zak Bobek, served as
acting general manager for ERS Ohio when Johnston was working in the Chicago
facility and Brown was out of town.
      {¶6}   JJS was located in Scarborough, Ontario, Canada, which is a suburb of
Toronto. Kazemeini had an ownership interest in JJS and was also its president. JJS
had a number of other facilities like ERS Ohio that were either operating, or in
development, in the United States, such as Chicago and Indianapolis, and
throughout the world, such as Mexico, China and the Bahamas.
      {¶7}   Wittenbrook entered into a non-competition, non-solicitation and
confidentiality agreement prior to commencing her employment at ERS Ohio. The
non-compete agreement, dated May 10, 2012, states that it is entered into between
"Electronics Recycling Services Ltd., with a head office at 2450 Lawrence Avenue
East, Unit #3-15, Scarborough, Ontario, M1P 2R7 ('The Employer')" and "Kristin Lee
Wittenbrook ('The Employee')" The non-compete agreement provides that it "will be
construed in accordance with and governed by the laws of the Province of Ontario
and the federal laws of Canada applicable therein." While at least one defense
witness attempted to distance Electronics Recycling Services Ltd. from JJS, it is
undisputed that JJS did business under a number of names, including "ERS
International." A defense witness referred to "ERS International," under which JJS
operated, "as our main office."
      {¶8}   According to Dilan Patel, who was the chief financial officer of JJS, ERS
Ohio received nearly all of its funding for start-up and operational costs from JJS.
Paula Pronesti, who was the global financial controller for JJS, prepared profit and
loss statements for ERS Ohio. She explained that "being part of the global team, we
                                                                                -3-


were able to access all of the other locations." She said she assisted Patel with
managing the budgets for various locations.
       {¶9}     Brown testified he was in contact with JJS daily on a variety of matters,
"[e]verything from current market prices for metals, to what the procedures were, to
employee issues from a perspective of payroll amounts and things like that." Brown
was also in contact with JJS regarding compliance issues. Patel testified that when
ERS Ohio had major contract opportunities, JJS would first review them.
       {¶10} Alfea Principe, global director of compliance for JJS, testified she was
in charge of managing ERS Ohio, among other JJS locations, from a compliance
perspective. Principe took on additional managerial functions with respect to ERS
Ohio. For example, JJS and ERS employees all used the same email domain name:
ers-international.com, and Brown asked Principe to make email address and
password changes for three ERS Ohio employees. Further, when Brown barred
Wittenbrook from returning to her building to work, Principe ordered that Brown
permit her back inside. Wittenbrook testified that, thereafter, she was placed under
Principe's direct supervision. That testimony is supported by an email where
Wittenbrook identifies Principe as her supervisor and in her reply Principe fails to
dispute this.
       {¶11} Wittenbrook      testified   that   Principe   also   discussed   promotion
opportunities with her; specifically, that Wittenbrook could move on to manage the R2
certification process for other JJS facilities in the United States and abroad since she
had been part of the first team to lead a JJS facility through a successful R2
certification process.
       {¶12} With regard to JJS's involvement in dealing with the sexual harassment
allegations, JJS was apprised of Wittenbrook's complaint according to Dilan Patel,
the CFO of JJS. Patel worked in the Toronto location of JJS, which he called the
global operations center. In addition, Brown was concerned that the sexual
harassment allegations would bring negative scrutiny by JJS upon ERS Ohio.
Principe testified that the decision to fire Wittenbrook was made by Brown and
                                                                                 -4-


Kazemeini, who, as mentioned, had an ownership interest in both ERS Ohio and JJS.
       {¶13} Additional evidence of the interrelatedness of the two companies can
be seen by JJS's response to a fire that destroyed part of the ERS Ohio facility. The
check for the insurance proceeds paid for the damages from the fire was made out to
JJS. When the facility later resumed some business operations after the fire, JJS
sent someone to manage that undertaking and report back to JJS. Ultimately, JJS
closed many of its facilities outside of Canada, including ERS Ohio.
       {¶14} In May 2013, Wittenbrook filed the instant suit against ERS Ohio and
Daniel Brown. She later added JJS as a defendant in July 2015. The amended
complaint alleged that JJS and ERS Ohio were Wittenbrook's joint employers and
raised sexual harassment, retaliatory discharge and tortious interference with
employment claims.
       {¶15} JJS filed a summary judgment motion arguing there was no evidence
that its own employees and agents had engaged in any of the harassment or abuse
that Wittenbrook had claimed to suffer at ERS Ohio. Wittenbrook countered that JJS
and ERS Ohio were so integrated that JJS should be liable under a joint employer
theory. In its reply brief, JJS objected to Wittenbrook's allegation that it was a joint
employer, claiming it was not properly pled in the amended complaint. Alternatively,
JJS sought a continuance to allow for discovery and retention of expert witnesses on
that issue. JJS's motion for summary judgment was denied immediately before trial.
       {¶16} The matter proceeded to a jury trial on April 12, 2016. At the close of
Wittenbrook's case, JJS moved for a directed verdict of no liability on the grounds of
insufficient evidence that it was a joint employer with ERS Ohio. Wittenbrook
countered she had made out a prima facie case and the trial court overruled JJS's
motion. At the close of the Defendants' case, the motion was renewed and overruled.
       {¶17} JJS objected to the jury instructions on joint employer liability, along
with the form of the interrogatories, which were overruled by the trial court.
       {¶18} Only the claims of retaliatory discharge and hostile work environment
were submitted to the jury, which found in favor of Wittenbrook on both claims and
                                                                                   -5-


that ERS and JJS were joint employers of Wittenbrook. The jury awarded
Wittenbrook $700,000 in economic damages and $250,000 in general damages. It
also awarded her $1 in punitive damages against each of the three defendants.
       {¶19} Only JJS appealed. JJS does not challenge the verdicts on the
substantive claims of retaliatory discharge and a hostile work environment; instead, it
attacks the judgment primarily as to the joint employer theory of liability.
       {¶20} At the time the appeal was filed, several post-judgment motions were
pending in the trial court, and the appeal was stayed. On June 7, 2016, the trial court
issued an order resolving all outstanding issues.
                        Denial of Motion for Directed Verdict
       {¶21}   In its first of three assignments of error, JJS asserts:

       The trial judge erred, as a matter of law, by denying the motions for
       directed verdict as to JJS.

       {¶22} JJS first argues that the trial court erred by allowing the jury to consider
the issue of joint employer liability. JJS claims Wittenbrook failed to properly plead
this claim in her amended complaint, stating the claim for the first time in her
opposition brief to JJS's summary judgment motion. A claim for relief is stated if the
complaint contains a short, plain statement of the claim showing the party is entitled
to relief and a demand for judgment. Civ.R. 8(A). "A complaint alleges the elements
of the claim with sufficient particularity if it gives reasonable notice of the claim to
opposing parties." Bahen v. Diocese of Steubenville, 7th Dist. No. 11 JE 34, 2013-
Ohio-2168, ¶ 11. Wittenbrook's amended complaint states as follows:

               Defendant JJS Developments ("315"), is a foreign corporation
       with a principal place of business at 2450 Lawrence Avenue East Unit
       3-15, Scarborough, Ontario, MI P 2R7 and is the parent corporation of
       ERS and has at all times relevant herein been a "Joint-Employer" of
       Plaintiff, is in the business of collecting, recycling, and selling electronic
                                                                                 -6-


       devices and metals recovered from them. ERS [Ohio] and JJS are "the
       ERS Defendants."

(Emphasis added.)
       {¶23}    The Amended Complaint further states: "The conduct of the ERS
Defendants amounts to retaliation against Plaintiff for her complaints."
       {¶24} Thus, the amended complaint gives reasonable notice to JJS that
Wittenbrook alleges it is liable as a joint employer theory.
       {¶25} A trial court's decision granting a motion for directed verdict presents a
question of law, which an appellate court reviews de novo. Carter v. R & B Pizza Co.,
Inc., 7th Dist. No. 09JE34, 2010-Ohio-5937, ¶ 15.

               When a motion for a directed verdict has been properly made,
       and the trial court, after construing the evidence most strongly in favor
       of the party against whom the motion is directed, finds that upon any
       determinative issue reasonable minds could come to but one
       conclusion upon the evidence submitted and that conclusion is adverse
       to such party, the court shall sustain the motion and direct a verdict for
       the moving party as to that issue.

Civ.R. 50(A)(4).
       {¶26} A motion for directed verdict tests the sufficiency of the evidence at trial,
not the weight of such evidence or the credibility of witnesses. Sayavich v. Creatore,
7th Dist. No. 07-MA-217, 2009-Ohio-5270, ¶ 44. "[T]he court is confronted solely with
a question of law: Was there sufficient material evidence presented at trial on this
issue to create a factual question for the jury?" One Step Further Physical Therapy,
Inc. v. CTW Dev. Corp., 7th Dist. No. 11 MA 66, 2012-Ohio-6137, ¶ 35.
       {¶27} The concept of joint employer liability has not been discussed at length
in Ohio case law. As a general matter, it is a judicially-created doctrine that can be
used to impose liability on one business enterprise for the employment actions of a
                                                                                 -7-


related or subsidiary enterprise. As explained in greater detail in federal employment
law jurisprudence, there are several sub-species of this doctrine that allow for liability
on the part of the parent company. See Swallows v. Barnes & Noble Book Stores,
Inc., 128 F.3d 990, 993 (6th Cir.1997) (explaining the three different approaches
courts use to impose employer liability on a parent company or related entity.)
       {¶28} As the Eighth District has explained: "[T]wo entities may be considered
a single joint employer if, upon review of their intercorporate relationship, one
exercises a degree of control that exceeds the control normally exercised by a parent
corporation over its separate and distinct subsidiary corporation." Wilmot v. Forest
City Auto Parts, 8th Dist. No. 75945, 2000 WL 804616, *3, citing Armbruster v.
Quinn, 711 F.2d 1332, 1337-1338 (6th Cir.1983). "Relevant considerations include:
(1) interrelations of operation; (2) common management; (3) centralized control of
labor relations; and (4) common ownership and financial control." Id., citing
Armbruster. The jury was instructed as to this four-factor test.
       {¶29} JJS asserts there was insufficient evidence presented at trial to
demonstrate its liability under this theory and that the trial court therefore erred in
denying its motion for directed verdict. It bears repeating that for the purposes of this
analysis, the evidence presented at trial must be viewed in the light most favorable to
Wittenbrook. Thus, purported evidentiary conflicts are not before us.
       {¶30} Regarding the first factor, interrelations of operation, JJS cites Howard
v. Bobby D. Thompson, Inc., 2d Dist. No. 24357, 2011-Ohio-3503, for the proposition
that when determining the interrelation between the operations of two companies,
factors to be taken into account include common offices and equipment, record
keeping and bank accounts. Id. at ¶ 29. Alfea Principe of JJS stated that she
managed ERS Ohio from a compliance perspective and provided form documents to
ERS Ohio and other JJS facilities that could be used for the R2 certification process.
There is a global financial controller for JJS, who kept records relating to the finances
of both JJS and ERS Ohio and helped manage the budgets of the various JJS
locations. At times, Johnston, general manager for ERS Ohio, worked in the ERS
                                                                             -8-


Chicago facility. He continued to assume a management role at ERS Ohio while he
was in Chicago. Brown testified he was in contact with JJS daily on a variety of
matters, "[e]verything from current market prices for metals, to what the procedures
were, to employee issues from a perspective of payroll amounts and things like that."
Brown was also in contact with JJS regarding compliance issues. Patel testified that
when ERS Ohio was presented with major contract opportunities, JJS would first
review them.
      {¶31} After a fire destroyed part of the ERS Ohio facility and it later resumed
some business operations, JJS sent someone to manage that undertaking and report
back to JJS. When asked why an attempt was made to reopen it at all given its
financial problems, Patel the CFO of JJS, explained that "losing a location isn't very
good for our company's image."
      {¶32} Regarding the second factor, common management, Kazemeini was
the president of both companies. Although standing alone, this might not impose
liability on JJS as a joint employer, there was additional evidence that JJS managers
oversaw business operations at ERS Ohio. JJS had a global compliance manager
and a global financial controller who managed aspects of the ERS Ohio business.
      {¶33} Regarding the third factor, centralized control of labor relations,
although there was testimony that ERS Ohio was fairly autonomous regarding day-to-
day management of employees, Wittenbrook testified that Principe discussed a
potential raise and promotion with her. Wittenbrook further testified that Principe of
JJS assumed a supervisory role over her after conflicts arose between Wittenbrook
and Brown. Principe testified that the decision to fire Wittenbrook was made by
Brown and Kazemeini, who has an ownership interest in both companies and is
president of both. The non-compete agreement Wittenbrook entered into upon her
hire stated it was made between her and Electronic Recycling Services Ltd., with its
main office in Scarborough, Ontario, Canada; it further specified that Canadian law
would govern.
      {¶34} Regarding the fourth factor, common ownership and financial control,
                                                                               -9-


ERS Ohio was entirely dependent on JJS for funding. When a fire destroyed part of
the ERS Ohio facility, the insurance check was made to JJS. Kazemeini had
ownership interests in both companies as well, but worked in Canada. JJS's CFO
and global financial controller worked to manage ERS Ohio's budget.
       {¶35} Based on the totality of the circumstances, there was sufficient
evidence presented that JJS was acting as a single joint employer with ERS Ohio.
Accordingly, JJS's first assignment of error is meritless.
                                   Jury Interrogatories
       {¶36} JJS's second of three assignments of error asserts:

       The trial judge erred, as a matter of law, in its instructions relating to
       joint employer liability.

       {¶37} JJS specifically takes issue with the jury interrogatories used at trial,
contending they were erroneous in ways that prejudiced JJS and denied it a fair trial.
Civ.R. 49(B) governs jury interrogatories and provides, in pertinent part:

              The court shall submit written interrogatories to the jury, * * *
       upon request of any party prior to the commencement of argument. * * *
       The court shall inform counsel of its proposed action upon the requests
       prior to their arguments to the jury, but the interrogatories shall be
       submitted to the jury in the form that the court approves. The
       interrogatories may be directed to one or more determinative issues
       whether issues of fact or mixed issues of fact and law.

       {¶38} Thus, "[f]ollowing a timely request by a party, a mandatory duty arises
to submit written interrogatories to the jury, provided they are in the form the court
approves." Cincinnati Riverfront Coliseum, Inc. v. McNulty, Co., 28 Ohio St.3d 333,
336, 504 N.E.2d 415 (1986). The rule does not mandate that the trial court act as a
mere conduit and submit all proposed interrogatories to the jury under all
circumstances. Ramage v. Cent. Ohio Emergency Serv., Inc., 64 Ohio St.3d 97, 107,
                                                                                  - 10 -


592 N.E.2d 828 (1992). "[T]he trial court has limited discretion to reject
interrogatories if they do not refer to a determinative issue or if they are ambiguous,
confusing, incomplete, redundant or otherwise legally objectionable." Davis v.
Georgopoulos, 7th Dist. No. 08 MA 85, 2008-Ohio-6368, ¶ 11, citing Ramage at 107-
108.
       {¶39} "The standard under which we review a trial court's decision whether to
submit a proposed interrogatory is abuse of discretion." Freeman v. Norfolk &
Western Ry. Co., 69 Ohio St.3d 611, 614, 635 N.E.2d 310 (1994). An abuse of
discretion means the trial court's decision is unreasonable based upon the record;
that the appellate court may have reached a different result is not enough to warrant
reversal. Downie v. Montgomery, 7th Dist. No. 12 CO 43, 2013–Ohio–5552, ¶ 50.
       {¶40} JJS first argues that the jury interrogatories failed to separate out
questions of liability between each defendant, making it impossible for the jury to find
liability on behalf of any one defendant without finding liability on behalf of all.
Second, JJS asserts the jury interrogatories were not sufficiently detailed on the
issue of joint employer liability to truly determine whether the jury found that JJS and
ERS Ohio were joint employers of Wittenbrook.
       {¶41} To Interrogatory No. 1, the jury answered affirmatively: "We the jury find
in favor of the Plaintiff, and against Defendants, on her claim of retaliatory discharge."
Interrogatory No. 2, which the jury also answered in the affirmative, provides, "Do you
find that Kristin Wittenbrook has proven, by a preponderance of the evidence, that
both Defendant Electronic Recycling Services and the Defendant JJS Developments
were joint-employers of Kristin Wittenbrook."
       {¶42} At trial, JJS objected to the interrogatories, stating: "To the extent that
the defendants were not separated into ERS Ohio, Defendant JJS and Defendant
Dan Brown, I object." JJS also objected to the interrogatories and verdict form
regarding the joint employer liability theory. ("My objection to the jury instructions also
carry over to the jury interrogatories and the verdict form on the joint employer and
not separating out of the defendants."). The trial court overruled the objections.
                                                                                                 - 11 -


        {¶43} While the interrogatories could have been more specific as to the
liability of each defendant, they did not cause prejudice to JJS so as to warrant
reversal for new trial. Had the jury answered no on the joint employer interrogatory
this would have relieved JJS from liability even if the jury had found in favor of
Wittenbrook and against defendants on the other interrogatory form that addressed
the retaliatory discharge claim.1
        {¶44} "[T]he main purpose of jury interrogatories is to test the correctness of a
general verdict by asking the jury to disclose its opinion on the determinative issues
in a case based upon the trial evidence." Davis v. Georgopoulos, 7th Dist. No. 85–
2006, 2008-Ohio-6368, ¶ 10, citing Cincinnati Riverfront Coliseum, Inc. v. McNulty,
Inc., 28 Ohio St.3d 333, 336-337, 504 N.E.2d 415 (1986). The interrogatories in this
case do just that. They are not ambiguous, confusing, incomplete, redundant or
otherwise legally objectionable; thus the trial court did not abuse its discretion by
failing to reject them. Accordingly, JJS's second assignment of error is meritless.
                               Plain Error in Closing Arguments
        {¶45} In its third and final assignment of error, JJS asserts:

        Plaintiff counsel [sic] committed reversible misconduct in closing
        argument, and the trial court erred by failing to sua sponte act to
        address the misconduct and limit the prejudice.

        {¶46} JJS takes issue with statements made by Wittenbrook's counsel during
his closing, but made no objection to these statements during trial. Accordingly, this
argument is subject to plain error review. "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

1 Interrogatory 3, the hostile work environment/sexual harassment jury interrogatory was answered in
the affirmative, avoids these issues in that it simply states: "We the jury find on behalf of the Plaintiff,
Kristen Wittenbrook, on her claim of hostile work environment." However, it does not say "against the
Defendants" like the retaliation interrogatory does.
                                                                                - 12 -


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), at paragraph one
of the syllabus.
       {¶47} In Goldfuss, the Court explained that the doctrine shall only be applied
in extremely unusual circumstances where the error complained of, if left
uncorrected, would have a material adverse effect on the character of and public
confidence in judicial proceedings. Id. at 121. The Court concluded that the public's
confidence is rarely upset merely by forcing civil litigants to live with the errors they
themselves or the attorney chosen by them committed at trial. Id. at 121-122.
       {¶48} JJS argues that Wittenbrook's counsel improperly alleged during his
closing that JJS was playing a "corporate shell game," further comparing JJS's
actions to those of large coal companies he had dealt with in practice. It is helpful to
put these remarks into the context of the overall argument being made at that point of
the closing which was as follows:

              And that's probably one of the big issues in this case, because in
       a verdict form, you're going to have to find whether or not JJS was a
       joint employer of Kristen Wittenbrook, along with ERS Bellaire. And we
       think the evidence is overwhelmingly that it was or that she was or they
       were a joint employer [sic]. Sam [Kazemeini, of both JJS and ERS] was
       involved in the decision to terminate her.

              She signed the agreement [the non-compete] with the Canadian
       company, yet another name though, remember. When we go through
       the exhibits, the name they use there was Electronics Recycling
       Services International Limited from Ontario. That's the agreement she
       signed. We were told yesterday that, Well, that's different from JJS.
       That's just the name we do business for JJS.

              Ladies and Gentlemen of the Jury, the Court just told you in its
                                                                               - 13 -


      instruction, don't give up your common experience. They play a shell
      game, defendants in this case. Oh, ERS Bellaire, not making any
      money. JJS makes money, but we don't employ her, that's Bellaire. And
      you've heard it before, your common experience.

             We see it in representing employees all the time in the coal
      industry where the subsidiaries go bankrupt and get out of all their
      obligations to their employees and the parent company's doing just fine.
      But they set up a subsidiary separate company and says, Oh, sorry, we
      got to file bankruptcy and get out of our obligations. It's a corporate
      shell game is what JJS played with Kristin Wittenbrook, and the
      evidence is overwhelmingly [sic] on that.

      {¶49} The trial court's failure to sua sponte address these comments and
provide curative instructions to the jury do not amount to plain error. "Closing
arguments are not evidence, and it is generally presumed the jury followed the
court's instructions as to this topic." Cosgrove v. Omni Manor, 2016-Ohio-8481, 78
N.E.3d 223, ¶ 56 (7th Dist.) Further, "[c]ounsel generally has wide latitude in closing
arguments." West v. Curtis, 7th Dist. No. 08 BE 28, 2009-Ohio-3050, ¶ 89, citing
Pang v. Minch, 53 Ohio St.3d 186, 194, 559 N.E.2d 1313 (1990). There was
evidence presented that ERS Ohio was totally dependent upon JJS for funding, to
the point where, when a fire destroyed much of the ERS Ohio facility, the insurance
check was made out directly to JJS. ERS Ohio did business under the name ERS
International, but yet JJS's position was that it was not a party to the non-compete
entered into between "Electronic Recycling Services Limited," and Wittenbrook. The
shell game comments were merely intended to highlight these issues.
      {¶50} JJS cites a number of Florida cases in support of this assignment of
error, which this court is not bound to follow. The Ohio Supreme Court case JJS
cites, Pesek v. Univeristy Neurologists, 87 Ohio 3d 495, 721 N.E.2d 1011 (2000), is
factually distinguishable. In Pesek, the Court held that personal attacks on plaintiff's
                                                                                 - 14 -


counsel and her expert during closing were grounds for reversal, even under a plain
error review. Specifically, in his closing argument, defendant's counsel accused
plaintiff's counsel of "half-truths," "untruths," and "the threatening of witnesses, [and]
the suppression of evidence," and called patient's expert witness a "second-class
expert" who "bought his way into pediatric neurology." Id. at 501-503. The Court
noted that under those circumstances, " 'where gross and abusive conduct occurs,
the trial court is bound, sua sponte, to correct the prejudicial effect of counsel's
misconduct.' " (Emphasis deleted.) Id. at 501, quoting Snyder v. Stanford, 15 Ohio
St.2d 31, 37, 238 N.E.2d 563 (1968).
       {¶51} Here, in contrast, counsel's comments in closing about JJS playing a
corporate shell game, do not constitute gross and abusive conduct, nor do they
seriously affect the basic fairness, integrity, or public reputation of the judicial
process. Thus, they do not rise to the level of plain error. Accordingly, JJS's third
assignment of error is also meritless.
       {¶52} In sum, all of JJS's assignments of error are meritless and the judgment
of the trial court is affirmed.


Waite, J., concurs.

Robb, P. J., concurs.
