[Cite as Haynal v. Nordonia Hills City School Dist. Bd. of Edn., 2011-Ohio-3191.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

TINA HAYNAL                                                 C.A. No.         25242

        Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
NORDONIA HILLS CITY SCHOOL                                  COURT OF COMMON PLEAS
DISTRICT, BOARD OF EDUCATION,                               COUNTY OF SUMMIT, OHIO
et al.                                                      CASE No.   CV 2007-08-5576

        Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: June 29, 2011



        BELFANCE, Presiding Judge.

        {¶1}     Appellant, Tina Haynal, appeals from the judgment of the Summit County Court

of Common Pleas. For reasons that follow, this Court reverses.

                                                      I.

        {¶2}     Ms. Haynal worked as a school bus driver for the Nordonia Hills City School

District Board of Education. In 1998, the school district terminated her and she brought suit for

retaliatory discharge in violation of R.C. 4112.02. Ms. Haynal alleged that the school district

had terminated her for refusing to park her bus where it would have blocked a handicap sidewalk

cutout. A jury rendered a verdict in Ms. Haynal’s favor and the school district appealed. This

Court reversed and remanded for a new trial, but the parties settled while the matter was pending

on remand. The journalized stipulation of dismissal in that case indicates that the terms of the

settlement required the school district to pay Ms. Haynal an undisclosed sum.
                                                 2


        {¶3}    Ms. Haynal also followed grievance procedures with her union and was reinstated

to her position in 2000, while the 1998 case was still pending.

        {¶4}    The school district terminated Ms. Haynal again in 2005. Ms. Haynal then

commenced the case now before this Court, again alleging retaliatory discharge in violation of

R.C. 4112.02. Ms. Haynal essentially alleged that the school district terminated her in 2005 in

retaliation for the prior litigation. She argued that certain individuals within the school district

resented the prior litigation and the settlement she obtained. Further, she asserted that those

individuals purposefully set out to construct a documented disciplinary record that could serve as

a basis for termination, not because she was an unfit bus driver, but because they intended to

retaliate against her for the 1998 litigation.

        {¶5}    The matter was tried to a jury, which found in favor of the school district. Ms.

Haynal appeals from that judgment, presenting one assignment of error for our review.

                                                 II.

        “THE TRIAL COURT REVERSIBLY ERRED COMMITTING BOTH
        PREJUDICIAL AND PLAIN ERROR WHEN IT REFUSED TO PERMIT THE
        PLAINTIFF-APPELLANT TO PROVE AN ESSENTIAL ELEMENT OF HER
        OHIO R.C. 4112.02(I) RETALIATION CASE, TO WIT[,] THE FULL EXTENT
        TO WHICH SHE HAD ENGAGED IN PROTECTED ACTIVITY WHEN SHE
        WAS TERMINATED, THEN SUED AND ULTIMATELY PREVAILED
        AGAINST APPELLEE IN PRIOR CIVIL RIGHTS LITIGATION INCLUDING
        THE CIRCUMSTANCES SURROUNDING THAT EVENT WHICH WERE
        THE BASIS FOR THE APPELLEE-DEFENDANT’S MOTIVATION FOR
        TERMINATING HER EMPLOYMENT A SECOND TIME AFTER SHE WAS
        REINSTATED TO HER EMPLOYMENT OVER APPELLEE’S OBJECTION.”

        {¶6}    Ms. Haynal asserts that the trial court committed reversible error when it excluded

all evidence of the outcome of the 1998 litigation. We agree.

        {¶7}    Prior to trial, the school district moved, in limine, to exclude evidence of the

outcome of the 1998 litigation. The trial court granted the motion, except that it permitted the
                                                  3


parties to say that the 1998 litigation was “‘concluded[,]’” “‘resolved[,]’” or that it was “‘no

longer pending[.]’” The court explicitly stated that the parties were not allowed to mention the

previous jury verdict or that the parties had eventually settled the case. The court also did not

permit Ms. Haynal to introduce the jury verdict and the dismissal entry as exhibits at trial.

                                       Preservation of Issue

        {¶8}    Before we are able to reach the merits of Ms. Haynal’s assignment of error,

however, we must determine whether this issue has been preserved for review on appeal.

        {¶9}    In its pretrial motion, the school district asserted that the evidence of the outcome

of the prior litigation was inadmissible under Evid.R. 403(A), 404(B), and 408. The court

granted the motion in a pretrial order.       The court’s ruling on the motion in limine was

preliminary because such a determination is based on the context in which the evidence is

introduced at trial; the court’s ruling could change if, when the evidence is actually introduced, it

is more probative or less prejudicial than the court had anticipated. See Gable v. Village of

Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, ¶35. Consequently, the ruling on the motion

in limine was not final. Id. Ms. Haynal was therefore required to preserve the issue by raising it

again at trial. See id.

        {¶10} Proffer is the appropriate method of preserving an objection to the exclusion of

evidence. See Evid.R. 103(A)(2). When the court preliminarily excludes evidence, the party

“who has been temporarily restricted from introducing evidence by virtue of a motion in limine

[must] seek the introduction of the evidence by proffer or otherwise in order to enable the court

to make a final determination as to its admissibility and to preserve any objection[.]” State v.

Grubb, 28 Ohio St.3d 199, paragraph two of the syllabus. See Evid.R. 103(A)(2). Ms. Haynal

now requests that this Court review the exclusion of both exhibits and testimony. At trial, Ms.
                                                 4


Haynal proffered the exhibits, but not the testimony. We conclude that Ms. Haynal has properly

preserved her objection to the exclusion of the exhibits and we will examine whether that ruling

constituted reversible error.

                                      Exclusion of Exhibits

       {¶11} Evid.R. 403(A) states that relevant evidence “is not admissible if its probative

value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or

of misleading the jury.” Thus, evidence is not admissible under Evid.R. 403(A) only if it

presents a danger of unfair prejudice that substantially outweighs its probative value.

       {¶12} It appears that the trial court applied an incorrect evidentiary standard to the

evidence at issue in this appeal. In its order granting the motion in limine and its later ruling at

the time of the proffer, the court did not reference Evid.R. 403(A). The court stated during the

proffer that the “probative value by the document was outweighed by the potential prejudicial

impact.” This, however, is not the relevant standard and the court did not indicate that it had

confined its analysis to only prejudice that was unfair or that it found that such prejudice

substantially outweighed the probative value, as the rule requires. Evid.R. 403(A).

       {¶13} Generally, a trial court is afforded broad discretion in ruling on the admissibility

of evidence.    Schmidt v. B.E.S. of Ohio, Inc., 9th Dist. No. 23193, 2007-Ohio-1822, ¶6.

However, the exercise of the court’s discretion must be premised upon the trial court’s

application of the correct evidentiary standard. Admissibility under Evid.R. 403(A) turns on the

balance of the evidence’s probative value as compared to the danger of unfair prejudice that it

presents. Generally, the “probative value [of evidence] must be minimal and the prejudice great

before the evidence may be excluded[ under Evid.R. 403.]” State v. Morales (1987), 32 Ohio

St.3d 252, 258; see, also, Koss v. Kroger Co., 10th Dist. No. 07-AP-450, 2008-Ohio-2696, ¶36
                                                    5


(applying this guideline in a civil context); Doe v. Clyde-Green Springs Exempted Village

Schools (1997), 6th Dist. No. S-96-019, *3 (same).

       {¶14} In this case, the excluded exhibits were probative evidence of the school district’s

motive for retaliation. Ms. Haynal’s case is based on her assertion that the prior litigation so

angered certain decision makers within the school district that they put substantial time and effort

into ensuring her eventual termination. She intended to show that she was terminated because

she had instituted and pursued protracted litigation against the school district, won a jury verdict,

and later obtained a settlement that required the school district to pay her an award. The trial

court did discuss the extent to which the prior jury verdict and the settlement, demonstrated in

the excluded exhibits, was probative of the school district’s motive. In light of the trial court’s

analysis, on appeal, this Court is unable to determine whether the court properly evaluated the

probative value of the evidence, as the rule requires. See, e.g., Buckley v. Mukasey (C.A.4 2008),

538 F.3d 306, 318-319 (considering whether court understood purpose for which evidence of

prior litigation was admitted and therefore properly weighed it in applying Fed.R.Evid. 403).

       {¶15} Evid.R. 403(A) also requires the court to balance the probative value of evidence

against the danger of unfair prejudice that it presents. The trial court, however, did not indicate

that it was considering only prejudice that would be unfair, rather it considered only the

“potential prejudicial impact[]” of the evidence.

       “Exclusion on the basis of unfair prejudice involves more than a balance of mere
       prejudice. If unfair prejudice simply meant prejudice, anything adverse to a
       litigant’s case would be excludable under Rule 403. Emphasis must be placed on
       the word ‘unfair.’ Unfair prejudice is that quality of evidence [that] might result
       in an improper basis for a jury decision.” (Internal quotations and citation
       omitted.) Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 2001-Ohio-
       248.
                                                   6


        {¶16} “Usually, although not always, unfairly prejudicial evidence appeals to the jury’s

emotions rather than intellect.” (Internal quotations and citation omitted.) Id. While evidence

that is probative of the school district’s motive is certainly prejudicial to the school district, it is

not unfairly so unless the evidence tends to lead to an improper basis for a jury decision. The

trial court did not indicate what, if any, improper influence the excluded exhibits might have on

the jury, or whether a limiting instruction could adequately mitigate any unfair prejudice.

        {¶17} Additionally, Evid.R. 403(A) does not exclude relevant evidence merely because

it presents a danger of unfair prejudice, or even because that danger merely outweighs the

probative value. Rather, the extent to which the danger of unfair prejudice outweighs the

probative value must be substantial. Evid.R. 403(A). The trial court, while it found that the

prejudicial impact of the evidence outweighed its probative value, never concluded that the

danger of unfair prejudice substantially outweighed the probative value. See id. We conclude

that the court did not properly apply the rule.

                                              Prejudice

        {¶18} Though the trial court misapplied Evid.R. 403(A) and improperly excluded the

exhibits, this Court must also consider whether Ms. Haynal was prejudiced by the court’s ruling.

Evid.R. 103(A) states that “[e]rror may not be predicated upon a ruling [that excludes] evidence

unless a substantial right of the party is affected[.]” To find that reversal is not warranted, an

appellate court must conclude that “if those errors had not occurred, the jury or other trier of the

facts would probably have made the same decision.” (Internal quotations and citation omitted.)

Cappara v. Schibley (1999), 85 Ohio St.3d 403, 408.

        {¶19} In this case, the court prohibited the plaintiff from presenting evidence that was

central to proving an essential element of her claim. Ms. Haynal was unable to present what
                                                7


would arguably have been her most compelling evidence on the only disputed element of her

claim. We cannot conclude that, if presented with the excluded evidence, the jury would have

made the same decision. See Buckley, 538 F.3d at 320 (holding that exclusion of evidence of

prior litigation “affected [the plaintiff’s] substantial rights by rendering her unable to cogently

demonstrate * * * retaliatory animus.”)

       {¶20} The school district has argued that the exhibits were also inadmissible under

Evid.R. 404(B) and 408, suggesting that any error by the trial court was consequently harmless.

The school district has not developed a harmless error analysis in favor of this contention and we

will not construct one. See App.R. 16(A)(7). The trial court did not, moreover, indicate that it

would have excluded the evidence based on Evid.R. 404(B) and 408. This Court will not

consider challenges to the admissibility of evidence for the first time on appeal. See Gable at

¶42; Evid.R. 104(A).

       {¶21} We conclude that Ms. Haynal was materially prejudiced when the court excluded

the exhibits.

                                      Excluded Testimony

       {¶22} This Court may review an alleged error that has not been properly preserved

under a plain error standard. This would be the standard applicable to the testimony that Ms.

Haynal did not proffer at trial. See Evid.R. 103(D). However, because we reverse based on our

analysis of issues that were preserved, we need not consider whether the court committed plain

error in excluding testimony about the 1998 litigation.
                                                 8


                                                III.

       {¶23} Because the court erred in excluding the exhibits and such error was not harmless,

we sustain Ms. Haynal’s assignment of error and reverse the judgment of the Summit County

Court of Common Pleas.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT


MOORE, J.
CONCURS
                                                    9


CARR, J.
CONCURS IN PART, AND DISSENTS IN PART, SAYING:

        {¶24} Although I agree with the majority’s conclusion that the trial court applied an

incorrect evidentiary standard below, I would conclude the analysis there and remand the matter

to the trial court to apply the correct standard.



APPEARANCES:

MICHAEL TERRENCE CONWAY, Attorney at Law, for Appellant.

JOHN T. MCLANDRICH, TODD M. RASKIN, and FRANK H. SCIALDONE, Attorneys at
Law, for Appellees.
