Thelma Bartley v. Steve Little

• Decision Date: 28 December 2000
• Docket Number: CT99-0016,00-LW-5946
• Citation: Thelma Bartley v. Steve Little, 00-LW-5946, CT99-0016 (Ohio App. Dec 28, 2000)
• Parties: THELMA BARTLEY, et al, Plaintiff-Appellee v. STEVE LITTLE, Defendant-Appellant Case
• Court: Ohio Court of Appeals

THELMA BARTLEY, et al, Plaintiff-Appellee v. STEVE LITTLE, Defendant-Appellant

No. CT99-0016

00-LW-5946 (5th)

Court of Appeals of Ohio, Fifth District Muskingum

December 28, 2000

Civil Appeal from Muskingum County Common Pleas Court CaseCC97-1042

Hon Sheila Farmer, P.J.Hon. John Wise, J.Hon. Julie Edwards, J.

For Plaintiff-Appellee: DAVID J. TARBERT SCOTT D. EICKELBERGER 50 North Fourth Street P. O. Box 1030 Zanesville, OH 43702

For Defendant-Appellant: THOMAS F. VIVYAN 2280 W. Henderson Road Suite 205 Columbus, OH 43220

OPINION

Edwards J.

Defendant-appellantSteve Little appeals from the March 9 1999, Judgment Entry of the Muskingum County Court of Common Pleas which entered judgment and an award of damages in favor of the plaintiff-appelleeThelma Bartley and the June 16, 1999, Judgment Entries denying defendant-appellant's Motions for New Trial, Judgment Notwithstanding the Verdict, and Relief from Judgment.

STATEMENT OF THE FACTS AND CASE

On December 17, 1997, plaintiff-appelleeThelma Bartley[hereinafter appellee] filed a Complaint in the Muskingum County Court of Common Pleas against defendant-appellantSteve Little[hereinafter appellant].The Complaint included claims for sexual assault, battery, rape, intentional infliction of emotional distress, and, in regards to appellee's two minor children, loss of consortium.Appellee alleged that the sexual assault occurred on December 21, 1996.Appellant filed an Answer denying the allegations of the Complaint and included a Counterclaim for defamation of character.The Counterclaim was dismissed with prejudice prior to trial.A jury trial commenced on February 23, 1999, and concluded on March 4, 1999.The following evidence was elicted at trial: While appellee was a resident of Louisville, Kentucky, she met and began a romantic relationship with Jeff Schlaegel[hereinafter Schlaegel], a resident of Dresden, Ohio.As the relationship progressed, the couple became engaged and appellee moved to Dresden, where she resided with Schlaegel.Appellant was a friend of Schlaegel.Appellant met appellee through Schlaegel in 1996.After their meeting and until the rape, appellant and his wife socialized with appellee and Schlaegel on several occasions.On December 20, 1996, appellant attempted to contact Schlaegel at the residence shared by Schlaegel and appellee because Schlaegel and appellant had previously arranged to go Christmas shopping.However, Schlaegel was not home at the time of appellant's telephone call.Appellant spoke with appellee and learned that appellee's niece was arriving by Greyhound Bus in downtown Zanesville, Ohio.Appellant offered to drive appellee to the bus station to pick up her niece.Appellee accepted appellant's assistance and appellant, appellee and appellee's two children went to the bus station to await the arrival of the niece.However, the bus was delayed.While waiting on the bus, appellant and appellee purchased a six pack of beer and consumed some of the beer in the car.After the niece arrived, appellant took appellee, her niece, and appellee's two children back to the appellee's residence.Upon arriving home, it was discovered that Schlaegel was not home yet.Appellee attempted to phone Schlaegel at his office, but was unsuccessful.At that point, appellant left appellee's home and went to a local tavern, Green's Tea Room, where appellant met with his brother-in-law, Jack Hendel.Appellant consumed more alcohol.Thereafter, appellant and Hendel were called to appellant's home to remedy a problem with appellant's furnace.After a 15 to 20 minute visit at appellant's home, appellant and Hendel drove to appellee's residence, allegedly to determine whether Schlaegel had returned home.Schlaegel was not home yet and appellee had not been able to reach Schlaegel by phone.Appellant suggested that Schlaegel had probably returned home while they were at the bus station and finding no one at home, went to Green's Tea Room to have a beer.Appellee agreed to go with appellant to see if Schlaegel was at Green's Tea Room.Appellant drove Hendel and appellee to Green's Tea Room and another local tavern looking for Schlaegel.Since Schlaegel was not at either of these locations, appellant took appellee home.Thereafter, appellant returned to Green's Tea Room where he consumed more alcohol.By this time, appellee had reached Schlaegel by telephone.Schlaegel informed appellee that he had worked late on paperwork and would spend the night at his office.At approximately 1:30 A.M., while appellee was asleep, appellant returned to appellee's residence.Appellant claimed that he returned to the residence solely to determine whether Schlaegel had returned home as he still planned to do Christmas shopping, despite the late hour.Upon arrival at appellee's house, appellant entered through the garage entrance where he noticed that Schlaegel's truck was not in the garage.Nevertheless, appellant continued into the residence, without knocking or making his presence known.Appellant entered appellee's bedroom where he found her naked and sleeping.At that time, appellant left the residence and returned to Green's Tea Room where he consumed additional alcohol.At approximately 2:30 A.M., appellant left Green's Tea Room and returned to appellee's residence, claiming that he was looking for Schlaegel.Again, Schlaegel was not home nor was his truck in the garage.Appellant entered the residence unknown, entered appellee's bedroom, climbed on top of appellee, held her down and raped her from behind.Appellee testified that she pleaded with appellant to stop and to release her, but he refused.Appellant, however, claimed that appellee gave every indication to appellant that she did not object to having sex with him.When appellant was finished, he became very agitated.Appellee testified that appellant asked her to kill him.Thereafter, appellant left the residence.Appellee immediately called 9-1-1 and informed the Muskingum County Sheriff's Department of the incident.Appellant was arrested within minutes.Sheriff's deputies entered appellee's residence and removed numerous articles of clothing and bed coverings.Appellee was taken to the emergency room at Good Samaritan Medical Center where Dr. Joseph Stine examined appellee.During the examination, it was determined that appellee, who was menstruating, had a tampon forced up against her cervix.In the days that followed, appellant and Schlaegel had discussions about the incident and appellant agreed with Schlaegel that appellant would pay the medical expenses incurred and make reimbursement for certain items taken by the police.Appellant did pay for the medical expenses and items taken.At trial, appellant argued that it was his understanding that this was a complete and total settlement in regards to the alleged rape.Appellee, however, argued that this was merely payment for out-of-pocket expenses that appellee incurred because of the rape.On March 4, 1999, the jury reached a verdict against appellant and awarded appellee $40,000.00 for assault, $40,000.00 for battery and $20,000.00 for intentional infliction of emotional distress.The trial court filed a corresponding Judgment Entry on March 9, 1999.On March 18, 1999, appellant filed a Motion for New Trial pursuant to Civ. R. 59(A)(9), a Motion for New Trial pursuant to Civ. R. 59(A)(1), a Motion for Judgment Notwithstanding the Verdict pursuant to Civ. R. 50(B) and a Motion for Relief from Judgment pursuant to Civil Rule 60(B)(3)and60(B)(5),and, in the alternative to the Motion for Relief, a Motion for Release of Plaintiff's Medical Records.On June 16, 1999, the trial court filed Judgment Entries overruling all of appellant's motions.It is from the March 9, 1999, and June 16, 1999, Judgment Entries that appellant brings this appeal, raising the following assignments of error:

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN PREVENTING DEFENSE COUNSEL FROM REVIEWING THE MEDICAL RECORDS OF PLAINTIFFTHELMA BARTLEY FROM LOUISVILLE CHARTER HOSPITAL, AND OVERRULING DEFENDANT'S MOTION FOR NEW TRIAL RE [SIC] SAME.

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE A PERSONAL JOURNAL SOLELY WRITTEN BY THELMA BARTLEY MONTHS AFTER THE INCIDENT IN QUESTION AND CONTAINING HEARSAY AND MANY SELF SERVING STATEMENTS AND OVERRULING DEFENDANT'S MOTION FOR NEW TRIAL RE [SIC] SAME.

THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL THE OPPORTUNITY TO PRESENT EVIDENCE OF PLAINTIFF[SIC] WITNESS DR. STEIN'S INCONSISTENT STATEMENTS RE [SIC] WHETHER OR NOT PLAINTIFF HAD SUFFERED FROM INVOLUNTARY SEX AND OVERRULING DEFENDANT'S MOTION FOR NEW TRIAL RE [SIC] SAME.

FOURTH ASSIGNMENT OF ERROR

THE JURY WAS PREJUDICED BY NEWSPAPER ARTICLE AND RADIO BROADCAST AD [SIC] AND THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR A MISTRIAL AND DEFENDANT'S POST-TRIAL MOTION FOR NEW TRIAL RE [SIC] SAME.

FIFTH ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN OVERRULING DEFENDANT/APPELLANT'S MOTIONS FOR RELIEF FROM JUDGMENT PURSUANT TO RULE60(B)[SIC] REQUESTING A HEARING SO THE ISSUE OF THE LOUISVILLE MEDICAL RECORDS COULD BE ADDRESSED AND OVERRULING DEFENDANT'S MOTION FOR NEW TRIAL RE [SIC] SAME.

SIXTH ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S POST-TRIAL MOTION PURSUANT TO CIVIL RULE50(B) ALLEGING THAT PLAINTIFF CAN NOT RECEIVE DAMAGES FOR BOTH ASSAULT AND BATTERY.

SEVENTH ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN NOT SUSTAINING DEFENDANT'S MOTION FOR DIRECTED VERDICT ON THE CAUSES OF ACTION RE [SIC] SERIOUS EMOTIONAL DISTRESS.

EIGHTH ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN NOT REDUCING THE JUDGMENT BY, [SIC] THE AMOUNT PREVIOUSLY PAID BY DEFENDANT TO PLAINTIFF.

NINTH ASSIGNMENT OF...