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Pollard v. Hunt11/10/2005
the trial court had erred by granting summary judgment to OBLIC. Ohio Bar Liab. Ins. Co. v. Hunt, 152 Ohio App.3d 224, 2003-Ohio-1381, 787 N.E.2d 82. We therefore reversed the grant of summary judgment and remanded for further proceedings.
{ } Upon remand, the parties agreed to bifurcate the bad faith and punitive damages claims from the notice claim. On December 13, 2004, a jury trial began on the issue of whether Hunt had given oral notice of the Pollards' potential malpractice claim to OBLIC during the policy period, i.e., between June 7, 1994, and June 7, 1996. Two witnesses testified -- Richard Hunt and Frederick Hunker, OBLIC's Vice President of Claims. During the presentation of testimony, the trial court repeatedly emphasized to the parties that the trial was concerned only with the issue of oral notice and not with the issues of Hunt's alleged malpractice, the settlement of the Pollards' malpractice claim against Hunt, collusion, or fraud. The jury found that the Pollards had not proven, by a preponderance of the evidence, that Hunt had telephoned OBLIC between June 7, 1994, and June 7, 1996. On March 10, 2005, the court entered judgment in favor of OBLIC, pursuant to the verdict.
{ } The Pollards raise one assignment of error on appeal.
{ } "THE TRIAL COURT ERRED BY ALLOWING OBLIC'S COUNSEL TO ARGUE TO THE JURY DURING CLOSING ARGUMENT THAT THE POLLARDS, THEIR COUNSEL AND THEIR KEY WITNESS MANUFACTURED THIS CASE."
{ } In their sole assignment of error, the Pollards claim that OBLIC's counsel had presented improper closing argument. Specifically, the Pollards assert that OBLIC's counsel improperly argued that Hunt had a financial interest in the outcome of this action (Pollard v. Ohio Bar Liab. Ins. Co.); that the Pollards, their counsel, and Hunt had conspired to deceive the jury through perjured testimony; and that Hunt had perjured himself in order to support the Pollards' claim against OBLIC. The Pollards claim that the trial court's failure to intervene and to correct the prejudicial effect of this misconduct constitutes reversible error.
{ } In response, OBLIC argues that the jury verdict should be upheld, because the Pollards failed to object to OBLIC's closing argument, OBLIC's closing argument did not rise to the level of plain error, and the jury was properly instructed that closing arguments are not evidence. OBLIC asserts that its closing argument was permissible because it was based on reasonable inferences from the evidence.
{ } Generally, trial counsel is entitled to considerable latitude in the presentation of closing argument. Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d 1313, paragraph two of the syllabus. The Supreme Court of Ohio has recognized, however, that abusive remarks and tactics can undermine the fairness of the trial, and that the trial judge has a duty "to see that counsel do not create an atmosphere which is surcharged with passion or prejudice and in which the fair and impartial administration of justice cannot be accomplished." Pesek v. University Neurologists Assn., Inc., 87 Ohio St.3d 495, 2000-Ohio-483, 721 N.E.2d 1011; see Fehrenbach v. O'Malley, Hamilton App. No. C-40128, 2005-Ohio-5554. "When argument spills into disparagement not based on any evidence, it is improper." Clark v. Doe (1997), 119 Ohio App.3d 296, 307, 695 N.E.2d 276.
{ } Ordinarily, in order to support a reversal of a judgment based on improper closing argument to the jury, it is necessary that counsel interject a proper and timely objection to the claimed improper remarks so that the court may take proper action thereon. Snyder v. Stanford (1968), 15 Ohio St.2d 31, 238 N.E.2d 563, paragraph one of the syllabu
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