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Tucker v. Wal-Mart Stores12/9/1999
transcript and does not contain jury instructions,plaintiffs-appellants' closing argument, the sidebar discussions between the trial court and trial counsel, the admission of the trial exhibits or any of the trial court's evidentiary rulings made on the record during the lower court proceedings. It is well established that error will not be presumed, but must appear affirmatively on the record. Moreover, it is the appellant's burden to demonstrate that error has in fact occurred otherwise, a presumption of validity and regularity attaches to the proceedings below. Dillingham v. Woodlawn (1993), 86 Ohio App.3d 54, 57, 619 N.E.2d 1152, 1155; City of Cleveland v. Rhoades (Oct. 10, 1996), Cuyahoga App. No. 70021, unreported. When a situation exists where portions of the trial court transcript necessary for resolution of the assigned errors are omitted from the appellate record, the reviewing court has nothing to pass upon and, therefore, as to those assigned errors, the court has no alternative but to presume the validity of the lower court proceedings and affirm the judgment of the trial court. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384, 385; Ostrander v. Parker-Fallis Insulation Co. (1972), 29 Ohio St.2d 72, 74, 278 N.E.2d 363, 365.
Based upon the limited appellate record presented, this court is left with no alternative but to apply the presumption of regularity to the trial court proceedings and affirm the judgment of the trial court. See Benoke v. Monsanto Co. (June 15, 1989), Cuyahoga App. No. 54854, unreported. Without, at the very least, a transcript that reflects the trial court's evidentiary rulings, jury instructions and the parties submission of trial exhibits, this court cannot now say that error occurred during defendant- appellee's closing argument when the trial court permitted defense counsel's reference to the results of Mrs. Tucker's bone scan. See Wells v. Spirit Fabricating, Ltd. (1996), 113 Ohio App.3d 282, 286, 680 N.E.2d 1046, 1050.
In addition, a review of the underlying jury verdict in this matter demonstrates that, in all likelihood, any alleged error by the trial court would not have been prejudicial to plaintiffs- appellants. The limited record on appeal clearly demonstrates that a defense verdict was returned by the jury. The disputed remark in closing argument by defense counsel related directly to Mrs. Tucker's injuries. It is apparent from the jury's verdict that the panel chose to believe Wal-Mart's version of events at trial, rather than Mrs. Tucker's testimony. Therefore, finding Mrs. Tucker at fault, any subsequent medical evidence becomes secondary to the ultimate jury determination and any reference to such evidence would not constitute reversible error. See Stonerock v. Miller Bros. Paving, Inc. (1991), 72 Ohio App.3d 123, 594 N.E.2d 94.
For the foregoing reasons, plaintiffs-appellants' sole assignment of error is not well taken.
Judgment of the trial court is affirmed.
It is ordered that appellee recover of appellants its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MICHAEL J. CORRIGAN JUDGE
O'DONNELL, P.J., and PATTON, J., CONCUR.
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