Haller v. Goodyear Tire & Rubber Co.6/26/2002
505.02(B)(3). The nunc pro tunc entry, therefore, was a final order within the meaning of R.C. 2505.02(B)(3).
Now, we turn to consider whether the nunc pro tunc entry was appealable, pursuant to R.C. 2505.03. See Harkai, 136 Ohio App.3d at 218. R.C. 2505.03(A) provides that " very final order, judgment, or decree of a court * may be reviewed on appeal" by whichever court has jurisdiction over such appeal. Pursuant to R.C. 2505.03(C), however, an appeal from a final order or judgment is governed by the Rules of Appellate Procedure and, "to the extent not in conflict with those rules, [R.C. Chapter 2505]." See, also, Dunn, 61 Ohio St.3d at 108. "Thus, an order may be final, thereby creating a right of appeal, but, nevertheless, cannot be reviewed unless the appeal is perfected pursuant to the Appellate Rules of Procedure " and in accordance with R.C. Chapter 2505 (to the extent that the provisions contained therein do not conflict with the Rules of Appellate Procedure). Harkai, 136 Ohio App.3d at 219. There is nothing in R.C. Chapter 2505, the Appellate Rules of Procedure, or case law interpreting R.C. Chapter 2505 and the Appellate Rules, which would have rendered the nunc pro tunc order in Haller II not immediately "appealable." Goodyear, of course, would have had to file a timely notice of appeal for appellate jurisdiction to attach. See App.R. 3 and 4.
Based on the foregoing, we conclude that the nunc pro tunc entry in the present case was a final appealable order pursuant to R.C. Chapter 2505, and, therefore, an appellate court would have had jurisdiction to entertain a properly perfected appeal from such order. See, generally, McGeary v. Brocker, 94 Ohio St.3d 440, 2002-Ohio-1244 (reversing the judgment of the appellate court "pursuant to R.C. 2505.02(B)(3) because the vacating of a summary judgment is a final appealable order "); State v. Matthews (1998), 81 Ohio St.3d 375, 376-78 (holding that, pursuant to R.C. 2505.02 and 2505.03(A), a trial court's order granting the defendant a new trial in a criminal case is a final appealable order from which the state may appeal only by leave of the appellate court). Goodyear, however, elected not to appeal. By failing to appeal the nunc pro tunc order entered in Haller II, Goodyear waived any claims of error regarding that decision, and res judicata attached. See Ameigh v. Baycliffs Corp. (1998), 81 Ohio St.3d 247, 256; Davilla v. Harman, 7th Dist. No. 00 C.A. 64, 2001-Ohio-3266; Wickens, Herzer & Panza v. Nash (Feb. 2, 1994), 9th Dist. No. 93CA005569. Accordingly, Goodyear's first ASSIGNMENT OF ERROR Is overruled.
B.
Second Assignment of Error
"THE TRIAL COURT ERRED IN INSTRUCTING THE JURY TO RETURN A VERDICT FOR THE PLAINTIFF."
In its second assignment of error, Goodyear avers that the trial court committed reversible error by giving improper jury instructions. We disagree.
A trial court must charge a jury with instructions that are a correct and complete statement of the law. Marshall v. Gibson (1985), 19 Ohio St.3d 10, 12. "A charge to the jury should be a plain, distinct and unambiguous statement of the law as applicable to the case made before the jury by the proof adduced." Id., citing Parmlee v. Adolph (1875), 28 Ohio St. 10, paragraph two of the syllabus. In reviewing jury instructions on appeal, this court has previously stated that
"an appellate court reviews the instructions as a whole. If, taken in their entirety, the instructions fairly and correctly state the law applicable to the evidence presented at trial, reversible error will not be found merely on the possibility that the jury may have been mislead. Moreover, misstatements and ambiguity in a
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