Yoli v. Rowell
| Decision Date | 23 November 2022 |
| Docket Number | 2021 CA 00040 |
| Citation | 2022 Ohio 4193 |
| Parties | VICTOR J. YOLI Plaintiff-Appellee v. KENNETH ROWELL and WILLIAM WHITE, ET AL. Defendants-Appellants |
| Court | Ohio Court of Appeals |
For Plaintiff-Appellee JONATHAN T. TYACK HOLLY B. CLINE.
For Defendants-Appellants MICHAEL S. KOLMAN AMY E. KUHLMAN Newhouse, Prophater, Kolman, & Hogan, LLC.
{¶1} William White, Appellant, appeals the Fairfield County Court of Common Pleas judgment against Kenneth D. Rowell and William White Co-Executors of the Estate of Frederick R Held, The Frederick R Held Trust Dated February 25, 2015 and Kenneth D Rowell and William White Successor Co-Trustees of The Frederick R Held Trust Dated February 25, 2015. Appellee is Victor J. Yoli as Administrator of the Estate of Loretta F. Yoli, deceased.
{¶2} Frederick Held shot and killed Loretta Yoli in his home for reasons that will never be discovered as Held died shortly thereafter from unrelated causes. Appellee filed a wrongful-death action against Frederick Held and after his death Kenneth D. Rowell and William White Co-Executors of the Estate of Frederick R. Held as well as The Fred R. Held Trust Dated February 25, 2015, and Kenneth D. Rowell and William White, Co-Successor Trustees for The Fred R. Held Trust Dated February 25, 2015 were substituted as defendants. The parties stipulated to the negligence of Held as causing the death of Yoli and the matter was tried on the issue of damages only and the jury awarded $531,488.13. The parties named in the suit did not appeal. William White filed a notice of appeal and now claims that the verdict was excessive, against the manifest weight of the evidence and that the trial court abused its discretion by accepting the verdict.
{¶3} The facts leading to the death of Yoli are not contested by the parties. Yoli and Held had a long standing relationship and both were elderly. On the day of her death, Yoli and Held had decided that they would spend the day together at Held's home, directly across the road from William White's home. White took Yoli to the home and returned to his home for Held. He later brought Held to join Yoli. Held mentioned that his vehicle had been sitting in the cold for some time and he asked White to start the vehicle and let it run. White complied and then left to run an errand. While on the errand he called Held, but spoke to Yoli and reminded her that the vehicle was still running and someone should turn it off.
{¶4} White went to Held's home that afternoon to deliver some medication to Held. When he arrived he could not open the door as it was blocked by something that he could not see. He first thought it was luggage, but later discovered it was Yoli, laying on the floor in front of the door. He forced the door open and checked on Yoli, concerned that she had suffered a medical emergency. He found Held on the couch, speaking on the phone. White did not know it at the time, but Held had called to report a shooting on his porch. White took the phone from Held and dialed 911 and reported that he believed Yoli was still alive.
{¶5} The Lancaster police arrived and moved Yoli to her back, finding blood and a gunshot wound. They began attempts to resuscitate Yoli which where continued by the emergency medical personnel after they arrived, but they were unsuccessful. Yoli never recovered.
{¶6} An officer spoke to Held at the scene, but he was difficult to understand and could not clearly relate what had happened. The officer did find a single shot shot-gun near the couch where Held was found. Held also had a wound on his right hand between his thumb and index finger that was typical of a wound that occurs when someone carelessly operates the type of gun found near Held.
{¶7} The Appellee filed a complaint against Held for wrongful death as well as a survival action, a premises liability claim, and negligent entrustment. The parties report that Held was charged criminally. The civil case was stayed pending resolution of the criminal charges, but Held passed away before the criminal matter was resolved. The Estate of Held and The Frederick Held Trust were substituted for Frederick Held after he passed and the matter was set for trial.
{¶8} At trial, the parties entered into a stipulation regarding the liability of the defendants and read the stipulation into the record. The defendants accepted joint and several responsibility for the death that was caused by Fred Held and agreed that the Appellee had a survival claim, as well as a claim for loss of society and mental anguish. "The role of the jury at trial [was] limited to determining the appropriate amount of compensatory damages to be awarded to Plaintiff against Defendants with respect to the survival claim and the wrongful death claim." (Trial Transcript, p. 8, line 22 to p. 9, line 3).
{¶9} The trial was brief, consisting of the testimony of a detective who responded to the scene, several photographs and exhibits, including the official cause of death, and the testimony of four family members. The jury returned a verdict in favor of the Appellee in the amount of $531,488.13, with $300,000.00 being awarded for the loss of society of Loretta Yoli, $200,000.00 being awarded for the mental anguish incurred by Loretta Yoli's surviving children and next of kin, and $20,000.00 for Yoli's survival claim. The balance of $13,488.13 was awarded for funeral expenses.
{¶10} The defendants named in the caption of the case below did not appeal, but William White filed a notice of appeal. He did not offer the notice of appeal on behalf of the Estate of Frederick Held or the Trust, but filed it in his own name, pro se. He later retained counsel and submitted a single assignment of error:
{¶11}
{¶12} White's assignment of error includes references to manifest weight, sufficiency of the evidence, excessiveness of the verdict and abuse of discretion by the trial court. We have reviewed the brief closely and find no argument supporting the allegation that the trial court abused its discretion by accepting the verdict of the jury. For that reason we will not consider the part of the assignment of error that alleges an abuse of discretion. State v. Musgrave, 5th Dist. Knox No. 03-CA-33, 2004-Ohio-3304, ¶¶ 26-31.
{¶13} Appellee moved this court to dismiss White's appeal for lack of standing and, presumably because the motion was still pending, incorporated that argument within its brief. We have addressed the issue of standing in a separate order and will not repeat our analysis within this opinion.
{¶14} Further, Appellee contends that White has waived the error described in his brief because he failed to bring it to the attention of the trial court as a motion for a new trial or pursuant to R.C. 2315.19 () Appellee cites to authority that provides that a litigant may not address any error on appeal that was not first addressed in the trial court, but does not direct our attention to precedent that requires resorting to a request for a new trial or proceeding under R.C. 2315.19 as a condition to filing an appeal of a final appealable order.
{¶15} Revised Code 2321.01 undermines Appellee's argument as it expressly provides that 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." See Also Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 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.)
{¶16} Revised Code 2315.19 describes a statutory procedure by which a defendant may obtain judicial review of an award of non-economic damages that it contends are excessive. Torres v. Concrete Designs Inc., 8th Dist. No. 105833, 2019-Ohio-1342, 134 N.E.3d 903, ¶ 42 The language of the statute imposes no requirement that the defendant resort to that procedure and Appellee provides no authority making its use mandatory or giving it precedence over the Rules of Appellate Procedure (R.C. 2505.03 (C)).
{¶17} We reject Appellee's argument that White has waived his argument that the verdict is not supported by sufficient evidence or is against the manifest weight of the evidence.
{¶18} Appellee contends that this court is restricted to reviewing the decision of the trial court for plain error because White failed to take action under R.C. 2315.19 or Civ.R. 59. We have rejected Appellee's argument that White waived the alleged error, so we must also reject its argument regarding the standard of review. We will apply the standard of review that is typically applied in civil cases where appellant contends that the decision is not supported by sufficient evidence or is against the manifest weight of the evidence.
{¶19} Sufficiency of the evidence is a test of adequacy to determine if the evidence is legally sufficient to sustain a decision. This is a...
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