[Cite as Hirshell v. Fertgus, 2012-Ohio-1705.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



RUSSELL HIRSHELL, et al.                            JUDGES:
                                                    Hon. Patricia A. Delaney, P. J.
        Plaintiffs-Appellants                       Hon. John W. Wise, J.
                                                    Hon. Julie A. Edwards, J.
-vs-
                                                    Case No. 2011 CA 00199
ALLEN B. FERTGUS

        Defendant-Appellee                          OPINION




CHARACTER OF PROCEEDING:                         Civil Appeal from the Court of Common
                                                 Pleas, Case No. 2010 CV 03618


JUDGMENT:                                        Affirmed



DATE OF JUDGMENT ENTRY:                          April 16, 2012



APPEARANCES:

For Plaintiffs-Appellants                        For Defendant-Appellee

ERIKA KLIE KOLENICH                              ROBERT B. DAANE
KLIE LAW OFFICES                                 DAY KETTERER LTD
Route 4 Box 529                                  200 Market Avenue North
Buckhannon, WV                                   Suite 300 Millennium Centre
                                                 Canton, Ohio 44702
Stark County, Case No. 2011 CA 00199                                                   2

Wise, J.

       {¶1}   Appellant Russell Hirshell appeals from the August 4, 2011, decision

entered in the Stark County Common Pleas Court following a jury trial for personal

injuries and the trial court’s subsequent denial of his motion for directed verdict.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On October 1, 2010, Russell Hirshell, Barbara Hoffman, and Sean

Hoffman filed a civil Complaint against Allen Fertgus for personal injuries and property

damage arising from the motor vehicle accident.

       {¶3}   The Complaint alleged that on October 2, 2008, Russell Hirshell sustained

personal injuries and that the vehicle owned by Barbara Hoffman sustained property

damage when Allen Fertgus failed to stop and rear-ended Hoffman’s vehicle.

       {¶4}   Allen Fertgus filed his Answer, which included various defenses, including

comparative negligence and sudden emergency.

       {¶5}   Both parties filed motions in limine concerning various issues upon which

the trial court heard oral arguments in open court.

       {¶6}   The matter proceeded to trial on Tuesday, July 26, 2011.

       {¶7}   A verdict was returned on Friday, July 29, 2011 in the amount of

$4,246.88 in favor of Russell Hirshell, together with a finding that he was 25%

comparatively negligent, which reduced the verdict to $3,185.16.

       {¶8}   The jury also returned a verdict in favor of Barbara Hoffman for her

property damage in the amount of $4,000.00, and $210.00 in storage fees.

       {¶9}   The jury verdict was reduced to a final judgment entry, which was filed on

August 4, 2011.
Stark County, Case No. 2011 CA 00199                                                     3


       {¶10} Subsequently, Appellant Hirshell filed post-trial motions for a new trial, or,

in the alternative, a motion for judgment notwithstanding the verdict.

       {¶11} By Judgment Entry filed September 2, 2011, the trial court denied the

motion for a new trial, and/or judgment notwithstanding the verdict. The trial court found

that there existed substantial, competent and credible evidence to support the jury's

verdict in the case, and that the Appellant Hirshell had a substantial history of pre-

existing conditions, which could have been the cause of his pain and suffering.

       {¶12} Appellant Russell Hirshell now appeals, assigning the following errors for

review:

                                 ASSIGNMENTS OF ERROR

       {¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

PLAINTIFF’S MOTION IN LIMINE AND ADMITTING TESTIMONY AND EVIDENCE

REGARDING UNRELATED MEDICAL CONDITIONS.

       {¶14} “II. THE TRIAL COURT ERRED IN DENYING THE PLAINTIFFS’ [SIC]

MOTION FOR DIRECTED VERDICT.

       {¶15} “III. THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION

FOR JUDGMENT NOTHWITHSTANDING THE VERDICT AND MOTION FOR NEW

TRIAL.”

                                                I.

       {¶16} In Appellant’s first Assignment of Error, Appellant argues that the trial

court should have granted his motion in limine and further erred in admitting testimony

and evidence regarding unrelated medical conditions.
Stark County, Case No. 2011 CA 00199                                                        4


       {¶17} “[A] decision on a motion in limine is a pretrial, preliminary, anticipatory

ruling on the admissibility of evidence. A ruling on a motion in limine is interlocutory,

usually dealing with the potential admissibility of evidence at trial. It therefore cannot

serve as the basis for an assignment of error on appeal.” State v. Grubb (1986), 28

Ohio St.3d 199, 201-202, 503 N.E.2d 142.

       {¶18} A ruling on a motion in limine reflects the court's “anticipatory treatment of

the evidentiary issue. In virtually all circumstances finality does not attach when the

motion is granted. Therefore, should circumstances subsequently develop at trial, the

trial court is certainly at liberty ‘to consider the admissibility of the disputed evidence in

its actual context.’ ” Grubb, 28 Ohio St.3d at 201-202, 503 N.E.2d 142, quoting State v.

White (1982), 6 Ohio App.3d 1, 4, 451 N.E.2d 533.

       {¶19} For those reasons, a motion in limine does not preserve for purposes of

appeal any error in the disposition of the motion in limine. “ ‘An appellate court need not

review the propriety of such an order unless the claimed error is preserved by a timely

objection when the issue is actually reached during the trial.’ ” Grubb, 28 Ohio St.3d at

203, 503 N.E.2d 142, quoting State v. Leslie (1984), 14 Ohio App.3d 343, 344, 471

N.E.2d 503.

       {¶20} The failure to object at trial to the allegedly inadmissible evidence

constitutes a waiver of the challenge. State v. Wilson (1982), 8 Ohio App.3d 216, 456

N.E.2d 1287.

       {¶21} In the case sub judice, we note that Appellant has failed to ensure that

the record on appeal contains a transcript of the trial regarding this motion in limine.
Stark County, Case No. 2011 CA 00199                                                    5


      {¶22} “The duty to provide a transcript for appellant review falls upon the

appellant. This is necessarily so because an appellant bears the burden of showing

reference to matters in the record. * * * When portions of the transcript necessary for

resolution of assigned errors are omitted from the record, the reviewing court has

nothing to pass upon and thus, * * * has no choice but to presume the validity of the

lower court's proceedings * * *. Knapp v. Laboratories (1980), 61 Ohio St.2d 197, 199,

400 N.E.2d 384. Where a transcript of proceedings in the trial court is necessary to

exemplify the facts which determined the issues presented there, its absence requires a

reviewing court to either dismiss the appeal or affirm the judgment of the court from

which the appeal is taken. State v. Render (1975), 43 Ohio St.2d 17, 330 N.E.2d 690,

paragraph two of the syllabus.

      {¶23} Without a transcript, this Court has no evidence that Appellant objected to

the admission of testimony and/or evidence regarding unrelated medical conditions at

the appropriate time during the trial. Appellant has waived any error caused by the

admission of such testimony or evidence.

      {¶24} Appellant’s first Assignment of Error is overruled.

                                             II., III.

      {¶25} Appellant, in his second and third Assignments of Error, argues that the

trial court erred in not granting his motion for a directed verdict, motion for judgment

notwithstanding the verdict and motion for new trial. We disagree.

      {¶26} The standard for granting a motion for judgment notwithstanding the

verdict or in the alternative for a new trial pursuant to Civ.R. 50(B) is the same as that

for granting a motion for a directed verdict pursuant to Civ.R. 50(A). Texler v. D.O.
Stark County, Case No. 2011 CA 00199                                                        6

Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679, 693 N.E.2d 271,

1998-Ohio-602. Thus, JNOV is proper if, upon viewing the evidence in a light most

favorable to the nonmoving party and presuming any doubt to favor the nonmoving

party, reasonable minds could come to but one conclusion, that being in favor of the

moving party. Wagoner v. Obert, 180 Ohio App.3d 387, 401–402, 905 N.E.2d 694,

2008-Ohio-7041, citing Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio

St.3d 512, 769 N.E.2d 835, 2002–Ohio–2842. “Neither the weight of the evidence nor

the credibility of the witnesses is for the [trial] court's determination in ruling upon [a

JNOV].” Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, 504 N.E.2d 19, quoting Posin v.

A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 344 N.E.2d

334. When a trial court rules on a JNOV motion, all of the evidence introduced at trial is

available for the trial court's consideration. Beaston v. Slingwine, Seneca App.No. 13-

03-04, 2004-Ohio-924, citing Osler, supra, at 347, 504 N.E.2d 19.

      {¶27} The decision to grant or deny a Civ.R. 50(B) motion for JNOV is reviewed

de novo by an appellate court. Wagoner, supra, at 401, 905 N.E.2d 694, citing Osler,

supra, at 347, 504 N.E.2d 19.

       {¶28} Without a transcript of the proceedings, it is impossible for this Court to

find that the trial court's decision is not supported by the record, and this Court is left

with no choice but to presume the validity of the lower's court's proceedings and affirm.

       {¶29} Appellant’s second and third Assignments of Error are overruled.

                             Appellee’s Cross-Assignment of Error

      {¶30} Pursuant to App.R. 3(C)(2), which states that a person who intends to

defend a judgment or order appealed by an appellant on a ground other than that relied
Stark County, Case No. 2011 CA 00199                                                     7


on by the trial court but who does not seek to change the judgment or order is not

required to file a notice of cross-appeal. Appellee, in his brief, has also included what

has been captioned as “Appellee’s Cross-Assignment of Error”:

       {¶31} “I. IN THE EVENT THAT THIS COURT ORDERS A NEW TRIAL,

APPELLANT BARBARA HOFFMAN SHOULD BE BARRED FROM INTRODUCING

LONG-TERM STORAGE BILLS AFTER HER VEHICLE HAD BEEN DECLARED A

TOTAL LOSS.”

       {¶32} The subject and application of cross-assignments of error and cross-

appeals are addressed in App.R. 3(C) and the attendant staff note. Cross-assignments

of error are asserted for the purpose of preserving the relief granted in the trial court's

judgment generally for reasons not advanced by the trial court, to further guard against

reversal, and/or to obtain rulings on interlocutory orders, in the event the case is not

affirmed. Cross-appeals are asserted for the purpose of obtaining different relief than

that granted by the trial court. App.R. 3(C). Rzeszotarski v. Sanborn (June 7, 1996),

11th Dist. No. 95-G-1906

       {¶33} Here, Appellee’s cross-assignment is really in the nature of an assignment

in a cross-appeal rather than a cross-assignment because it essentially asserts an error

at trial. Since no separate notice of appeal was filed with respect to such assignment,

we find it is not properly before us.

       {¶34} Under App.R. 12(A)(2), when assignments of error are not submitted in

proper form, the appellate court is under no obligation to review them. Further, because

we have not ordered a new trial in this matter, this issue is moot because any
Stark County, Case No. 2011 CA 00199                                             8


determination that this Court would make would have no legal effect on the actual

controversy.

      {¶35} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.


By: Wise, J.

Delaney, P. J., and

Edwards, J., concur.



                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                           JUDGES
JWW/d 0328
Stark County, Case No. 2011 CA 00199                                         9


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




RUSSELL HIRSHELL, et al.                  :
                                          :
       Plaintiffs-Appellants              :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
ALLEN B. FERTGUS                          :
                                          :
       Defendant-Appellee                 :         Case No. 2011 CA 00199




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
