Because I would affirm the unanimous eight-person jury verdict rendered in favor of Miriam Tallal on her breach of contract claim, I respectfully dissent.
I disagree with the majority's decision to address Bank One's first assignment of error because the brief is completely void of an argument in support.
In the interest of justice, I have attempted to sort through the body of Bank One's brief in order to extract arguments in support of each assignment of error. However, I feel that it is almost impossible to formulate Bank One's analysis of the alleged error as set forth in the first assignment without actually constructing the arguments for Bank One. This Court has previously admonished that "[t]his Court is charged with the duty of resolving assignments of error, not writing them." Statev. Vandal (Jan. 26, 2000), Medina App. No. 2983-M, unreported. Further, this Court has previously rejected errors not supported by argument. SeeChrin v. Thudium (Sept. 1, 1999), Summit App. No. 19041, unreported (disregarding appellants three alleged errors because the brief did not contain separate argumentation as to why the allegations constitute error); State v. Zupanic (April 1, 1998), Medina App. No. 2704-M, unreported (disregarding appellant's assigned error because he did not support the errors with arguments). Simply listing the assignments of error in the brief is not sufficient; the rule requires that they be "separately argued." Meerhoff v. Huntington Mortgage Co. (1995),103 Ohio App.3d 164.
Even assuming that one could extract from Bank One's brief that Bank One has argued the trial court erred in admitting parole evidence to explain the security agreement, as the majority believes, I would overrule the error as no objection was raised at trial to the admission of such evidence. See Reserve Dev. Co., Inc. v. Broad-Breck Dev. (Oct. 26, 1994), Summit App. No. 16627, unreported. *Page 515
It is possible, however, to locate sections of arguments in support of the second and third assignments of error. Consequently, I would disregard the first assignment of error and sections I and III, along with the subsections thereto, contained in the law and argument section of Bank One's brief. In the interest of justice, however, I would generously apply sections II and IV to the second assignment of error, and sections V and VI to assignment of error three.
My disposition of assignments two and three follow:
II. Bank One's second assignment of error charges that:
THE TRIAL COURT ERRED IN THE INSTRUCTIONS IT GAVE TO THE JURY ON THE BREACH OF CONTRACT AND FURTHER ERRED IN SENDING THE ISSUE OF BREACH OF CONTRACT TO THE JURY WHERE THE FACTS RELEVANT TO THE ISSUE WERE NOT IN DISPUTE.
Section IV asserts that "[t]he trial court erred in charging the jury to determine whether there was a breach of contract by the bank." The whole of Bank One's argument under section IV is:
It is well settled that the trial court will not instruct the jury where there is no evidence to support an issue. Riley v. Cincinnati (1976), 46 Ohio St.2d 287. * * * Where, as here, the facts are undisputed, the question of whether there has been performance or breach is a question for the Court. See 18 Ohio Jurisprudence 3d (1980), 113-114, Contracts § 208; Luntz v. Stern (1939), 135 O.S. 225 and Wengerd v. Martin No. 97CA0046, 9th Dist.Ct.App., May 6, 1998[.]
Section IV makes no reference to the record, nor does section II. In section II, Bank One spewed law concerning the interpretation of contracts.
Upon study, one can glean the assignment to be: The trial court erred in instructing the jury on the issue of breach of contract because the written contract entered into between Tallal and Bank One does not confer any duty upon Bank One, and therefore no duty was established. I disagree.
Bank One correctly points out that a trial court may not instruct the jury if there is no evidence to support an issue. Murphy v. CarrolltonMfg. Co. (1991), 61 Ohio St.3d 585, 591, citing Riley v. Cincinnati (1976), 46 Ohio St.2d 287.
First, Bank One failed to object at trial to the jury instructions and thus waived all but plain error. The Ohio Supreme Court has held:
In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, *Page 516 thereby challenging the legitimacy of the underlying judicial process itself.
(Citations omitted.) Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, syllabus.
Second, I am not clear why Bank One has asserted that the facts were undisputed. Tallal always maintained that in order to ascertain Bank One's duty to her, one must look beyond the four corners of the written contract. Thus, she presented evidence at trial concerning the parties' understandings of Bank One's duties. Conversely, Bank One now insists that the contract was unambiguous and therefore the parol evidence rule precluded the introduction of oral testimony to vary the terms.
Bank One did not object to the use of parol evidence prior to or during the trial. In fact, both parties presented witnesses to explain the agreement. This Court has explained that:
[M]ore than a mere waiver is at issue when an appellant invites the alleged error by calling its own witnesses, or cross-examining witnesses, to testify as to the intent of the parties with respect to the terms of a contract. An appellant cannot complain when an appellee enters similar but contradictory evidence of intent. "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.'"
(Citations omitted.) Reserve Dev. Co., Inc. v. Broad-Breck Dev. (Oct. 26, 1994), Summit App. No. 16627, unreported.
Because Bank One has waived its right to contest the admission of parol evidence, I would find that there was evidence to support a finding of a duty and a breach of duty.2 The trial court properly instructed the jury on the issue of breach of contract.
Because I would find no plain error, I would overrule the second assignment of error.
The third assigned error reads:
THE JURY'S VERDICT FOR PLAINTIFF TALLAL ON A CLAIM OF A BREACH OF CONTRACT IS AGAINST THE MANIFEST WEIGHT OF THE UNDISPUTED EVIDENCE BOTH AS TO LIABILITY AND AMOUNT.
Section V asserts that "[t]he jury could not have followed the court's instructions in reaching a verdict of liability." Notably, Section VI states, as the third assignment of error, that the verdict is against the manifest weight of the evidence. *Page 517
It appears then, that Bank One contends that both the finding of a breach and the amount of the award are against the weight of the evidence. Again, however, the arguments presented in support are of little aid, and do not reference the record.
When evaluating whether a judgment is against the manifest weight of the evidence in a civil context, the standard of review is the same as that in the criminal context. Frederick v. Born (Aug. 21, 1996), Lorain App. No. 95CA006286, unreported. In determining whether a criminal conviction is against the manifest weight of the evidence:
The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.
State v. Thompkins (1997), 78 Ohio St.3d 380, 387, quoting State v.Martin (1983), 20 Ohio App.3d 172, 175; see, also State v. Otten (1986),33 Ohio App.3d 339, 340. Accordingly, before an appellate court will reverse a judgment as against the manifest weight of the evidence in acivil context, the court must determine whether the trier of fact, in resolving evidentiary conflicts and making credibility determinations, clearly lost its way and created a manifest miscarriage of justice.
In support of its claim that the verdict is against the manifest weight of the evidence, Bank One asserts that Tallal had breached the agreement and therefore the jury should not have found breach on behalf of Bank One. This argument is completely unpersuasive.
A review of the record shows that the jury did not lose its way thereby creating such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.
A reviewing court will not set aside a jury's damage award "unless it is so excessive that it appears to have been the result of passion or prejudice, or is manifestly against the weight of the evidence." Greynoldsv. Kurman (1993), 91 Ohio App.3d 389, citing Cardinal Fed. S. L. Assn.v. Michaels Bldg. Co. (May 8, 1991), Summit App. No. 14521, unreported. In determining whether a verdict is excessive, this Court must look to whether competent, credible evidence was presented at trial to support it. Id. Bank One argues that the award is not supported by credible evidence because Tallal "never lost all of [the money in] her account." (Emphasis added.) *Page 518 I would reject this claim and find that the verdict was not the result of passion or prejudice, and that competent, credible evidence supported the jury's award of one million dollars to Tallal.
I would overrule Bank One's third assignment of error.
APPELLEE'S CROSS-ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY FAILING TO AWARD PREJUDGMENT INTEREST TO APPELLEE/CROSS-APPELLANT UPON HER VERDICT AGAINST APPELLANT/CROSS-APPELLEE FOR BREACH OF CONTRACT.
In her sole cross-assignment of error, Tallal argues that the trial court erred in denying her motion for prejudgment interest pursuant to R.C. 1343.03. I find no merit in this cross-assignment of error.
R.C. 1343.03 provides:
(A) In cases other than those provided for in sections 1343.01 and 1343.02 of the Revised Code, when money becomes due and payable upon any bond, bill, note, or other instrument of writing, upon any book account, upon any settlement between parties, upon all verbal contracts entered into, and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of tortious conduct or a contract or other transaction, the creditor is entitled to interest at the rate of ten per cent per annum, and no more, unless a written contract provides a different rate of interest in relation to the money that becomes due and payable, in which case the creditor is entitled to interest at the rate provided in that contract.
In deciding whether to award prejudgment interest a court must determine "whether the aggrieved party has been fully compensated."Gosden v. Gerstenslager (Nov. 5, 1997), Summit App. Nos. 18383 and 18385, citing Royal Elec. Constr. Corp. v. Ohio State Univ. (1995),73 Ohio St.3d 110.
The trial court found that Tallal had been fully compensated by the jury's award. I find nothing in the record to cause me to disturb this holding. Accordingly, I would affirm the denial of prejudgment interest.
III. In summary, I would disregard the first assignment of error, and overrule the second and third assignments of error as well as Tallal's cross-assignment of error. Accordingly, I would affirm the judgment of the court of common pleas.
2 I am not opining that a bank is automatically a guarantor of money held pursuant to a security agreement. My decision would be based solely on the parol evidence admitted at trial without objection. *Page 519