Eastley v. Volkman

[Cite as Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179.]

EASTLEY, ADMR., APPELLEE, v. VOLKMAN; HUFFMAN, APPELLANT.

[Cite as Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179.]

When the evidence to be considered is in the court’s record, a party need not have

moved for directed verdict or filed a motion for a new trial or a motion for

judgment notwithstanding the verdict to obtain appellate review of the

weight of the evidence—In civil cases, as in criminal cases, the sufficiency

of the evidence is quantitatively and qualitatively different from the weight

of the evidence.

(No. 2011-0606—Submitted December 7, 2011—Decided May 22, 2012.)

APPEAL from the Court of Appeals for Scioto County,

Nos. 09CA3308 and 09CA3309, 2010-Ohio-4771.

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SYLLABUS OF THE COURT

1. When the evidence to be considered is in the court’s record, a party need not

have moved for directed verdict or filed a motion for a new trial or a

motion for judgment notwithstanding the verdict to obtain appellate

review of the weight of the evidence.

2. In civil cases, as in criminal cases, the sufficiency of the evidence is

quantitatively and qualitatively different from the weight of the evidence.

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LANZINGER, J.

{¶ 1} Article IV, Section 3(B)(3) of the Ohio Constitution provides that

“[n]o judgment resulting from a trial by jury shall be reversed on the weight of

the evidence except by the concurrence of all three judges hearing the cause.” In

this case, two judges on the court of appeals panel voted to reverse the judgment

on the weight of the evidence but one judge concluded that appellant had waived

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appellate review of the weight of the evidence by failing to renew her motion for

directed verdict or to file a motion for a new trial or for judgment notwithstanding

the verdict. Because we hold that appellant was not required to file those motions

to obtain appellate review of the weight of the evidence, we reverse the judgment

and remand the case to the court of appeals for further proceedings.

I. Background

{¶ 2} Paula Eastley, appellee, filed a wrongful-death action as

administrator of the estate of Steven Hieneman, her son, against Paul Volkman,

M.D., and Tri-State Healthcare, L.L.C., a pain-management clinic in Portsmouth,

Ohio, where Dr. Volkman practiced. The complaint alleged that Volkman had

committed medical malpractice and that Tri-State Healthcare was vicariously

liable for the doctor’s conduct. The complaint was amended later to add

appellant, Denise Huffman, doing business as Tri-State Health Care, as a

defendant. The amended complaint asserted a claim of negligence against

Huffman, as well as claims for vicarious liability and conspiracy.

{¶ 3} A jury trial was conducted on February 4, 2008. Eastley presented

evidence that 33-year-old Hieneman received treatment at the clinic and died

April 20, 2005, due to the acute combined effects of oxycodone, Xanax

(alprazolam), and Valium (diazepam) that Dr. Volkman had prescribed the

previous day. Eastley’s evidence against Huffman related to allegations of the

negligent operation of the clinic in causing Hieneman’s death. At the conclusion

of Eastley’s evidence, Huffman moved for a directed verdict “on the grounds that

there is no evidence in the record from which the jury could conclude that Denise

Huffman was negligent.” After the motion was denied, Huffman presented

defense evidence but did not renew her directed-verdict motion either after she

rested or at the close of all evidence. Because Eastley did not present evidence to

support a theory of vicarious liability, the trial court instructed the jury on

negligence rather than agency by estoppel with respect to Huffman.

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{¶ 4} The jury found that Volkman’s medical malpractice and

Huffman’s negligence had proximately caused Hieneman’s death, and the trial

court entered judgment in Eastley’s favor in the amount of $500,000 against

Huffman and Volkman, jointly and severally. Huffman appealed, arguing in part

that because Volkman had admitted that he was an independent contractor, she

could not be held vicariously liable. Huffman also pointed out that Eastley’s

counsel had repeatedly stated that Eastley was not pursuing a vicarious-liability

claim. Huffman further asserted that, once Volkman’s conduct was removed

from the analysis, there was no basis to hold her liable because there was no

evidence that she violated a duty of care owed to Hieneman.

{¶ 5} The Fourth District Court of Appeals affirmed the verdict against

Huffman. Eastley v. Volkman, 4th Dist. Nos. 09CA3308 and 09CA3309, 2010-

Ohio-4771, 2010 WL 3835666. Although two of the three judges on the court of

appeals panel agreed with Huffman that based on an ordinary negligence theory,

the jury’s verdict was against the manifest weight of the evidence, one judge

dissented in part and concluded that because Huffman had not renewed her

motion for a directed verdict or filed a motion for new trial or for judgment

notwithstanding the verdict, she had forfeited all but plain error. Thus, the

dissenting judge1 prevented a reversal based on the weight of the evidence,

because pursuant to the Ohio Constitution, Article IV, Section 3(B)(3), a reversal

on the manifest weight of the evidence requires concurrence of all three judges.

{¶ 6} We accepted this discretionary appeal to clarify when and upon

what standard a court of appeals must review the weight of the evidence in a case.

We hold that when the evidence to be considered is in the court’s record, a party

need not have moved for directed verdict or filed a motion for a new trial or a

motion for judgment notwithstanding the verdict to obtain appellate review of the

1. We refer to the “dissenting judge,” although the judge dissented only in part and concurred in

the judgment upholding the verdict.

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weight of the evidence. We also hold that in civil cases, as in criminal cases, the

sufficiency of the evidence is quantitatively and qualitatively different from the

weight of the evidence.

II. Legal Analysis

A. Courts of Appeals May Review Cases on the Weight of the Evidence

{¶ 7} At the outset, there should be no question that a court of appeals

has the authority to reverse a judgment as being against the weight of the

evidence. Indeed, the Ohio Constitution sets forth certain restrictions on an

appellate court that exercises this power. “No judgment resulting from a trial by

jury shall be reversed on the weight of the evidence except by the concurrence of

all three judges hearing the cause.” Ohio Constitution, Article IV, Section

3(B)(3). Or stated conversely, a court of appeals panel must act unanimously to

reverse a jury verdict on the weight of the evidence. This section of the

constitution does not distinguish between criminal and civil jury trials and thus

applies to both. We have held that unanimous panels are needed to reverse

judgments based on civil jury verdicts on grounds that they are against the

manifest weight of the evidence. Bryan-Wollman v. Domonko, 115 Ohio St.3d

291, 2007-Ohio-4918, 874 N.E.2d 1198. When a trial judge, rather than a jury,

has acted as the factfinder in a civil case, however, App.R. 12(C) provides that

two of the three appellate judges may reverse the judgment based on the manifest

weight of the evidence, but that a judgment may be reversed only once for this

reason.2

2. App.R. 12(C) provides:

In any civil action or proceeding which was tried to the trial court without

the intervention of a jury, and when upon appeal a majority of the judges

hearing the appeal find that the judgment or final order rendered by the trial

court is against the manifest weight of the evidence and do not find any other

prejudicial error of the trial court in any of the particulars assigned and argued in

the appellant's brief, and do not find that the appellee is entitled to judgment or

final order as a matter of law, the court of appeals shall reverse the judgment or

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B. Legal Sufficiency of the Evidence and Manifest Weight

of the Evidence Are Distinct Concepts

{¶ 8} The dissenting judge, based on the idea that manifest weight of the

evidence and legal sufficiency “merge” in civil trials, determined that because

Huffman failed to renew her Civ.R. 50(A) motion for directed verdict at the close

of evidence or move for a new trial pursuant to Civ.R. 59(A)(6) or move for

judgment notwithstanding the verdict (“JNOV”) pursuant to Civ.R. 50(B), she

waived the issue of manifest weight of the evidence for purpose of appeal.

{¶ 9} In civil cases, the concepts of sufficiency of the evidence and

weight of the evidence continue to be sources of confusion, particularly as to what

standard of review should apply when a verdict is challenged as being against the

manifest weight of the evidence. But there is no reason why the fundamental

logical differences between evidential sufficiency and weight cease to exist in

civil cases.

{¶ 10} We have carefully distinguished the terms “sufficiency” and

“weight” in criminal cases, declaring that “manifest weight” and “legal

sufficiency” are “both quantitatively and qualitatively different.” State v.

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the

syllabus.

1. Legal Sufficiency of Evidence

{¶ 11} In Thompkins, we described “sufficiency” as

“a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the

final order of the trial court and either weigh the evidence in the record and

render the judgment or final order that the trial court should have rendered on

that evidence or remand the case to the trial court for further proceedings;

provided further that a judgment shall be reversed only once on the manifest

weight of the evidence.

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evidence is legally sufficient to support the jury verdict as a matter

of law.” * * * In essence, sufficiency is a test of adequacy.

Whether the evidence is legally sufficient to sustain a verdict is a

question of law.

Id. at 386, quoting Black’s Law Dictionary 1433 (6th Ed.1990).

2. Manifest Weight of Evidence

{¶ 12} Nevertheless, even if a trial court judgment is sustained by

sufficient evidence, an appellate court may nevertheless conclude that the

judgment is against the manifest weight of the evidence:

Weight of the evidence concerns “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side

of the issue rather than the other. It indicates clearly to the jury

that the party having the burden of proof will be entitled to their

verdict, if, on weighing the evidence in their minds, they shall find

the greater amount of credible evidence sustains the issue which is

to be established before them. Weight is not a question of

mathematics, but depends on its effect in inducing belief.”

(Emphasis sic.) Id. at 387, quoting Black’s at 1594.

{¶ 13} Thompkins, a criminal case, was the first case from this court that

thoroughly considered the qualitative and quantitative distinctions between the

legal sufficiency and the manifest weight of evidence. We explained how the

manifest-weight standard of review operated in a criminal case (i.e., the appellate

court sitting as a “13th juror”), but we did not confine the analysis on the

distinctions between the evidentiary standards to criminal cases alone.

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3. Misinterpretation of C.E. Morris

{¶ 14} Although the holding in Thompkins was not limited to criminal

cases, some appellate courts seemed hesitant to distinguish between sufficiency

and manifest weight of the evidence in civil cases and instead began to blur those

concepts. See, e.g., Reed v. Key-Chrysler Plymouth, 125 Ohio App.3d 437, 440-

441, 708 N.E.2d 1021 (2d Dist.1998); Siegal v. Magic Carpet & Upholstery, 8th

Dist. No. 74645, 1999 WL 608808, *4 (Aug. 12, 1999); Lakeshore Properties v.

Sharonville, 1st Dist. No. C-000321, 2001 WL 127650, *4 (Feb. 16, 2001).

These appellate courts relied on C.E. Morris Co. v. Foley Constr. Co., 54 Ohio

St.2d 279, 376 N.E.2d 578 (1978), a short opinion predating Thompkins that

contained no analysis. The C.E. Morris court stated, “Judgments supported by

some competent, credible evidence going to all the essential elements of the case

will not be reversed by a reviewing court as being against the manifest weight of

the evidence.” Id. at 280. But at least one court of appeals has questioned the use

of separate standards for reviewing manifest weight of the evidence in civil and

criminal cases. See Gevedon v. Ivey, 172 Ohio App.3d 567, 2007-Ohio-2970, 876

N.E.2d 604 (2d Dist.).

{¶ 15} Although we have repeated the C.E. Morris standard and applied it

to the review of civil cases, we have not fully analyzed it in light of Thompkins.

The phrase “some competent, credible evidence” in C.E. Morris presupposes

evidentiary weighing by an appellate court to determine whether the evidence is

competent and credible. But unfortunately, in some cases after C.E. Morris, we

used the term “merge” in relation to the concepts of manifest weight and

sufficiency, which created some confusion in the courts of appeals. One such

case was State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264.

{¶ 16} In Wilson, we were not concerned with the distinction between

legal sufficiency and manifest weight of the evidence but rather with the review

of a trial court’s findings relating to sexual-offender classifications and whether

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the proceedings themselves were civil or criminal.3 When speaking in Wilson of a

civil manifest-weight standard, we did not analyze the distinctions between

sufficiency and weight of the evidence. We merely noted that “the standard in

C.E. Morris tends to merge the concepts of weight and sufficiency.” Wilson at

¶ 26. We later made clear that “the merger [between sufficiency and weight of

the evidence] is not complete because of the separate constitutional significance

accorded ‘weight of the evidence’ by Section 3(B)(3), Article IV of the Ohio

Constitution.” Bryan-Wollman, 115 Ohio St.3d 291, 2007-Ohio-4918, 874

N.E.2d 1198, ¶ 3.

4. The Thompkins Standard of Review for Manifest Weight

of the Evidence Applies in Civil Cases

{¶ 17} There are several reasons why the standard set forth in Thompkins

also applies in civil cases. First, neither the constitution nor statutes nor rules of

procedure treat civil cases differently from criminal cases with regard to appellate

review on the issues of sufficiency and manifest weight. See Ohio Constitution,

Article IV, Section 3(B)(3); App.R. 12(C); and R.C. 2321.01, 2321.18, and

2945.831. The concepts remain qualitatively and quantitatively different from

each other no matter the type of case.

{¶ 18} Second, if C.E. Morris required an appellate court to determine

only whether there is sufficient evidence to support a civil jury verdict, then there

would never be any review of manifest weight of the evidence in these cases.

There is a distinction between review for weight of the evidence in the courts of

appeals and review by the Supreme Court of matters of law. R.C. 2503.43 states,

“In a civil case or proceeding, except when its jurisdiction is original and except

as provided by section 2309.59 of the Revised Code, the supreme court need not

3. Our holding in Wilson does not apply to sexual offenders who commit offenses on or after

January 1, 2008, the effective date of 2007 Am.Sub.S.B. No. 10, which made many changes to

R.C. Chapter 2950. See State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108

(sexual-offender-registration statutes enacted in 2008 are punitive, rather than remedial, in nature).

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determine as to the weight of the evidence.” But a court of appeals has the power

to decide that a jury verdict is against the weight of the evidence, provided that it

acts unanimously. We will not review a determination by a court of appeals that a

verdict or finding is against the weight of the evidence. Bown & Sons v.

Honabarger, 171 Ohio St. 247, 168 N.E.2d 880 (1960), paragraph three of the

syllabus; State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955); see also

R.C. 2953.02 (“The supreme court in criminal cases shall not be required to

determine as to the weight of the evidence, except * * * in cases in which a

sentence of death is imposed for an offense committed on or after January 1,

1995, and in which the question of the weight of the evidence to support the

judgment has been raised on appeal * * *”).

{¶ 19} Third, because “manifest weight of the evidence” refers to a

greater amount of credible evidence and relates to persuasion, it does not matter

that the burden of proof differs in criminal and civil cases. In a civil case, in

which the burden of persuasion is only by a preponderance of the evidence, rather

than beyond a reasonable doubt, evidence must still exist on each element

(sufficiency) and the evidence on each element must satisfy the burden of

persuasion (weight).

{¶ 20} Several courts of appeals do apply the Thompkins standard for

manifest weight of the evidence in civil as well as criminal cases. For example,

the Ninth District stated how a review on manifest weight is to be conducted:

“ ‘The [reviewing] court * * * weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the

[finder of fact] clearly lost its way and created such a manifest

miscarriage of justice that the [judgment] must be reversed and a

new trial ordered.’ ”

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(Alterations made in Tewarson.) Tewarson v. Simon, 141 Ohio App.3d 103, 115,

750 N.E.2d 176 (9th Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1st Dist.1983).

{¶ 21} In weighing the evidence, the court of appeals must always be

mindful of the presumption in favor of the finder of fact.

“[I]n determining whether the judgment below is manifestly

against the weight of the evidence, every reasonable intendment

and every reasonable presumption must be made in favor of the

judgment and the finding of facts. * * *

“If the evidence is susceptible of more than one

construction, the reviewing court is bound to give it that

interpretation which is consistent with the verdict and judgment,

most favorable to sustaining the verdict and judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273

(1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at

191-192 (1978).

{¶ 22} When a court of appeals determines that a jury verdict is against

the weight of the evidence, it should remand the case for a new trial. See Hanna

v. Wagner, 39 Ohio St.2d 64, 66, 313 N.E.2d 842 (1974). A court of appeals

panel has the power to so act, provided it acts unanimously and reverses only

once on manifest weight of the evidence. These restrictions protect the jury

verdict and safeguard against arbitrary remand.

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{¶ 23} We therefore make clear today that in civil cases, as in criminal

cases, the sufficiency of the evidence is quantitatively and qualitatively different

from the weight of the evidence.

C. Motions Are Not Required to Challenge Manifest

Weight of the Evidence on Appeal

{¶ 24} The dissenting judge concluded that because Huffman had not

moved for a directed verdict at the close of all evidence or filed motions for

JNOV or a new trial after the jury’s verdict, she had waived her appeal on the

manifest weight of the evidence. These motions are governed by distinct

standards.

{¶ 25} Civ.R. 50(A) motions for directed verdict do not present factual

issues but instead present questions of law. Goodyear Tire & Rubber Co. v.

Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835,

¶ 4. The same is true for a Civ.R. 50(B) JNOV motion. Posin v. A.B.C. Motor

Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976) (“The test to be

applied by a trial court in ruling on a motion for judgment notwithstanding the

verdict is the same test to be applied on a motion for a directed verdict”). Faced

with the question of sufficiency through a directed-verdict motion, the court must

determine whether any evidence exists on every element of each claim or defense

for which the party has the burden to go forward. Even if it is necessary to review

and consider the evidence, a reversal of a judgment from a jury trial on grounds

that the trial court should have granted a directed verdict is not a reversal on

manifest weight of the evidence. Ruta v. Breckenridge-Remy Co., 69 Ohio St.2d

66, 430 N.E.2d 935 (1982), paragraph one of the syllabus.

{¶ 26} A motion for new trial pursuant to Civ.R. 59(A)(6), however,

contends that “[t]he judgment is not sustained by the weight of the evidence.”

The motion must be filed within 14 days of entry of judgment, and the rule

specifies that a trial judge may grant “only one new trial * * * on the weight of the

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evidence in the same case.” Id.; see also R.C. 2321.18 (“The same trial court

shall not grant more than one new trial on the weight of the evidence against the

same party in the same case, nor shall the same court grant more than one

judgment of reversal on the weight of the evidence against the same party in the

same case”).

{¶ 27} In explaining what a trial court considers when ruling on a motion

for a directed verdict or motion for a new trial, we observed:

There is a basic difference between the duty of a trial court

to submit a case to the jury where “reasonable minds” could differ

and the right of a trial court to grant a new trial on the basis of its

conclusion that the verdict is not “sustained by sufficient

evidence.” The former does not involve any weighing of evidence

by the court; nor is the court concerned therein with the question of

credibility of witnesses. However, in ruling on a motion for new

trial upon the basis of a claim that the judgment “is not sustained

by sufficient evidence,” the court must weigh the evidence and

pass upon the credibility of the witnesses, not in the substantially

unlimited sense that such weight and credibility are passed on

originally by the jury but in the more restricted sense of whether it

appears to the trial court that manifest injustice has been done and

that the verdict is against the manifest weight of the evidence.

Rohde v. Farmer, 23 Ohio St.2d 82, 262 N.E.2d 685 (1970), paragraph three of

the syllabus.

{¶ 28} Because motions for directed verdict and for JNOV present

questions based on the sufficiency of the evidence, submitting one or both of

these motions is clearly not a prerequisite for appellate review on the manifest

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weight of the evidence. Nor is a motion for a new trial a prerequisite for appellate

review of the weight of the evidence. As R.C. 2321.014 explains,

[a] motion for a new trial is not necessary as a prerequisite to

obtain appellate review of the sufficiency or weight of the evidence

submitted to the trial court where such evidence to be considered

appears as a part of the record filed in the appellate court.

{¶ 29} Nothing in the rules or statutes requires a party to have made a

particular motion before seeking appellate review of a jury verdict on the weight

of the evidence. Nor do the cases cited in the dissenting appellate judge’s opinion

support his assertion that Huffman waived appellate review of the weight of the

evidence by failing to raise certain motions in the trial court. See Eastley, 2010-

Ohio-4771, ¶ 60 (Kline, J., dissenting).

{¶ 30} We now hold that when the evidence to be considered is in the

court’s record, a party need not have moved for directed verdict or filed a motion

for a new trial or for JNOV to obtain appellate review of the weight of the

evidence.

III. Conclusion

{¶ 31} Reversal on the manifest weight of the evidence and remand for a

new trial are not to be taken lightly. Nevertheless, we express no thought on

whether the court of appeals should reverse the judgment and grant a new trial in

this case. It may be that the dissenting judge believes that the weight of the

evidence supports the jury’s verdict, and in that event, the verdict will be affirmed

4. A corresponding statute appears in the criminal code: “A motion for a new trial is not a

necessary prerequisite to obtain appellate review of the sufficiency or weight of the evidence in

the trial of a criminal case.” R.C. 2945.831.

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again. We simply remand for consideration of the issue based upon the

appropriate standard.

Judgment reversed

and cause remanded.

O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, CUPP, and

MCGEE BROWN, JJ., concur.

PFEIFER, J., dissents and would dismiss the appeal as having been

improvidently accepted.

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Spetnagel & McMahon and Thomas M. Spetnagel; and Bender Law

Offices and Stanley C. Bender, for appellee.

Gallagher, Gams, Pryor, Tallan & Littrell, L.L.P., M. Jason Founds, and

Mark H. Gams; and Mann & Preston, L.L.P., and James L. Mann, for appellant.

Gallagher Sharp and Timothy J. Fitzgerald, urging reversal for amicus

curiae, Ohio Association of Civil Trial Attorneys.

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