# Phillips v. City of Garfield Heights

> Ohio Court of Appeals · November 12, 1992 · 85 Ohio App. 3d 413

URL: https://www.frixlaw.com/law-library/cases/3712542

## Case

- **Full name:** PHILLIPS Et Al., Appellants, v. CITY OF GARFIELD HEIGHTS; CITY OF CLEVELAND Et Al., Appellees
- **Court:** Ohio Court of Appeals
- **Decided:** November 12, 1992
- **Citations:** 85 Ohio App. 3d 413; 620 N.E.2d 86; 1992 Ohio App. LEXIS 5701
- **Precedential status:** Published
- **Opinion:** Dissent by Nahra
- **Judges:** Corrigan, Sweeney, Nahra
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3712542

## Opinion text

Nahra, Presiding Judge,
dissenting in part.
I respectfully dissent from that part of the judgment which reverses the verdict in favor of Boyas Excavating and Peter Boyas, and remands the case for a new trial. The majority claims that the court erred by failing to submit general verdict forms to the jury pursuant to Civ.R. 49. However, the majority also states, and the record reflects, that the parties stipulated that only interrogatories would be submitted to the jury, and that the court would enter judgment according to the interrogatories. Appellants objected to the court’s refusal to submit some of their interrogatories to the jury. They did not object to the lack of general verdict forms. In fact, appellants specifically assented to the judge’s statement that they had agreed to submit interrogatories but not general verdict forms to the jury, and that the court would enter judgment based on the jury’s answers to interrogatories.
Appellants did not object to the lack of a general verdict until their second posttrial motion. At that time, counsel for appellants admitted that he had agreed to the procedure of having the judge enter judgment according to the interrogatories without a general verdict. He claimed that his agreement was conditional, based on his assumption that all of his interrogatories would be submitted to the jury. However, that condition appears nowhere in the record.
Formal defects in a jury’s verdict, as distinguished from defects in substance, do not affect the rights of the parties or the merits of the case.
Barnes v. Prince
(1974), 41 Ohio App.2d 244, 245 , 70 O.O.2d 454, 454 , 325 N.E.2d 252, 253 . A verdict is defective in form only where the jury’s intent is clear and obvious to the court.
Id.
at 247 , 70 O.O.2d at 455 , 325 N.E.2d at 254 . In
Barnes ,
the jury returned a verdict form which read “for the plaintiff in the sum of $ None.” The judge asked the jury whether it found both parties at fault, and the answer was yes. After polling the jury, which confirmed the verdict, the court entered judgment for the defendant. This court affirmed the trial court’s judgment on appeal, because it was clear from the verdict that the plaintiff had not prevailed. The jury’s intent was clear despite the defect on the verdict form. See, also,
Schaller v. Chapman
(App.1943), 44 Ohio Law Abs. 631 , 66 N.E.2d 266 (a jury’s
*423
verdict finding for the plaintiff on its cross-petition but also stating that “ ‘[w]e find them each one equally guilty and each to assume their own damage’ ” clearly was a finding against both parties, and a formal defect only).
In this case, unlike
Schellhouse v. Norfolk & Western Ry. Co.
(1991), 61 Ohio St.3d 520 , 575 N.E.2d 453 , there was no inconsistency in the jury’s answers to the interrogatories, and their intent to find for defendants was clear. Furthermore, the parties clearly stipulated on the record to the use of special interrogatories without general verdict forms. Since appellants agreed to this procedure on the record without conditions, they waived error.
First Fed. S. & L. Assn. of Akron v. Cheton & Rabe
(1989), 57 Ohio App.3d 137 , 567 N.E.2d 298 , paragraph four of the syllabus (errors not raised when they can be avoided or corrected are considered waived on appeal). Accordingly, I dissent from Part III of the majority’s decision.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3712542. Public record. Not legal advice.