[Cite as Merlin v. Ankle & Foot Care Ctrs. of Ohio, 2017-Ohio-4388.]



                           STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

KIMBERLY MERLIN                                        )
                                                       )
        PLAINTIFF-APPELLANT                            )
                                                       )               CASE NO. 16 MA 0051
VS.                                                    )
                                                       )                    OPINION
ANKLE & FOOT CARE CENTERS OF                           )
OHIO, et al.                                           )
                                                       )
        DEFENDANTS-APPELLEES                           )

CHARACTER OF PROCEEDINGS:                              Civil Appeal from the Court of Common
                                                       Pleas of Mahoning County, Ohio
                                                       Case No. 2014 CV 1149

JUDGMENT:                                              Affirmed.

APPEARANCES:
For Plaintiff-Appellant                                Attorney Gregg Rossi
                                                       26 Market Street, 8th Floor
                                                       P.O. Box 6045
                                                       Youngstown, Ohio 44501

For Defendants-Appellees                               Attorney Robert Yallech
                                                       Attorney Thomas Prislipsky
                                                       11 Federal Plaza Central, Suite 1200
                                                       Youngstown, Ohio 44503

JUDGES:

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


                                                       Dated: June 16, 2017
[Cite as Merlin v. Ankle & Foot Care Ctrs. of Ohio, 2017-Ohio-4388.]
DeGENARO, J.

        {¶1}    Plaintiff-Appellant, Kimberly Merlin, appeals the trial court's judgment
entry adopting the magistrate's decision denying her motion for mistrial. As the trial
court did not err in adopting the magistrate's decision and denying the motion for a
mistrial, the judgment of the trial court is affirmed.
        {¶2}    On May 8, 2014, Merlin filed a medical malpractice complaint against
Appellees, Ankle & Foot Care Centers of Ohio and Dr. John E. Barrett. Appellees
filed an answer denying all claims and asserting various defenses. Attempts at
mediation were unsuccessful. Pursuant to Civ.R. 53 all parties consented to a
magistrate overseeing the jury trial and all issues in this matter. Trial was continued
multiple times and ultimately held on February 8, 2016.
        {¶3}    On February 2, 2016, Appellees supplemented discovery through an
email to Merlin's attorney. Counsel for Merlin conceded that he did not go through the
attached documents page by page. Merlin originally was provided 51 pages; the
emailed supplement served by Appellees' counsel a mere six days before trial had
227 pages. Merlin did not seek a motion for a continuance to evaluate this eleventh
hour discovery either pre-trial or before she presented her case in chief.
        {¶4}    On the first day of trial, Merlin introduced testimony in support of her
case in chief. During cross-examination of Appellees' expert, Merlin used documents
from the recent supplemental discovery. On the beginning of day two, Merlin made a
motion for mistrial on the basis of the newly disclosed evidence that was contained in
the February 2, 2016 email. The magistrate denied this motion and trial continued
resulting in a jury verdict in favor of Appellees. The magistrate recommended the
trial court enter judgment upon the verdict.
        {¶5}    Merlin filed objections to the magistrate's decision. In the motion,
Merlin's attorney acknowledged that he received the emailed documents days prior to
trial and that they constituted unfair surprise. Appellees responded that, "Plaintiff
simply cannot claim sufficient surprise and prejudice to warrant a mistrial when she
was provided with this evidence before trial began, raised no objections, and only
now take issue once a verdict has been rendered against her."            The trial court
                                                                                  -2-


rejected Merlin's objections, adopted the decision of the magistrate and denied the
motion for a mistrial.
       {¶6}   Merlin's sole assignment of error asserts:

       The magistrate abused his discretion in denying Appellant's motion for
       mistrial, and the trial court erred in adopting the magistrate's decision
       as it relates to same.

       {¶7}   The decision to grant or deny a motion for a mistrial is within the sound
discretion of the trial court and will not be reversed absent an abuse of that
discretion. Smolkovich v. Burlock, 7th Dist. No. 94 CA 102, 1998 WL 574666 (Sept.
1, 1998). 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. Smith v. Smith, 7th Dist. No. 14 CA 0901, 2016-Ohio-
3223, ¶ 13.
       {¶8}   Civ.R. 59 authorizes a new trial if a party can demonstrate "[a]ccident or
surprise which ordinary prudence could not have guarded against[.]" Civ.R. 59(A)(3).
To warrant a new trial the complaining party must show unfair surprise. Wright v.
Suzuki Motor Corp., 4th Dist. No. 03CA2, 03CA3, 03CA4, 2005-Ohio-3494, ¶ 121. "A
court may grant a motion for a mistrial when a party is confronted by surprising new
facts or conditions which were unknown despite reasonable trial preparation." Id.
(Internal citations omitted) Civ.R. 59 permits, rather than mandates, a trial court to
grant a new trial. Griffith v. Griffith, 7th Dist. No. 07 JE 40, 2009-Ohio-1024, ¶ 16.
       {¶9}   Merlin's lawyer asserts that a mistrial should have been granted
because he received hundreds of pages of documents in an email containing a
discovery supplement on the eve of trial.        Appellees assert that Merlin had the
records six days prior to trial and failed to review them; as such, this neglect does not
constitute surprise as contemplated by Civ.R. 59.
       {¶10} Counsel for Merlin acknowledged receiving the email on February 2,
2016, containing the supplemental discovery, and that he did not review it. Further,
                                                                               -3-


counsel admitted that he used some of the documents during the first day of trial.
While the number of documents increased from 51 to 227, counsel conceded several
of the documents were billing records and items he had previously seen. Additionally,
counsel did not seek a continuance.
       {¶11} It was not until the second day of trial that counsel made his motion for
mistrial. When asked by the trial court why he did not bring the emailed supplement
to the court's attention on day one of trial, counsel admitted that he should have.
"[M]istaken assumption cannot be called 'surprise' at all, because it constitutes
evidence that he was on notice of the issue. Appellee's lack of preparation cannot be
called 'surprise.' " Griffith, ¶36
       {¶12} More pertinent, Merlin did not request a continuance in light of the
eleventh hour discovery supplement. Although the decision to grant a continuance is
within the sound discretion of the trial court, Merlin could have moved for a
continuance to review the supplemental discovery prior to the start of trial. Instead,
Merlin proceeded with her case in chief and used documents from the supplemental
discovery during cross-examination. Under the invited-error doctrine, a party will not
be permitted to take advantage of an error which he himself invited or induced the
trial court to make.” State ex rel. Bitter v. Missig, 72 Ohio St.3d 249, 254, 1995-Ohio-
147, 648 N.E.2d 1355. This constitutes invited error.
       {¶13} Accordingly, as the trial court did not err by adopting the magistrate's
recommendation that Merlin's motion for a mistrial be denied, Merlin's assignment of
error is meritless, and the judgement of the trial court is affirmed.

Waite, J., concurs.

Robb, P. J., concurs.
