[Cite as J.P. v. T.H. , 2020-Ohio-320.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

J. P. Appellee

v. T. H. Appellant C.A. No. 19CA011469

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 15CV185623

DECISION AND JOURNAL ENTRY Dated: February 3, 2020

CALLAHAN, Judge. {¶1} Appellant, T.H., appeals a judg ment that found him liable for a ssault, battery, defamation, and invasion of privacy. This Court affirms in par t and reverses in part.

I. {¶2} T.H. and J.P. used to be neighbor s, but their relationship was strained, at best. T.H., who believed that J.P. ma de frequent video recordings of his neighbors, found J.P.’s

behavior unusual. J. P. believed that T.H .’s movements around t he neighborhood on foot, by bicycle, and by car were driven by a desire to harass him. On June 22, 2014, a confrontation between the two neighbors occurred. On that date, it is undisp uted that J.P. noticed T.H. riding his bicycle in their cul de sac, a path that took him past J.P. ’s residence; that J.P. began recording

video of T.H. and announced in a loud voice that he was not int imidated by T.H.’s actions; and that J.P. ultimately pulled a gun and pointed it at T.H. What happened in between these events is less clear, and the implications t hat flow from those events fo rm the basis for this case.2

{¶3} Immediately after the date in question, J.P. petitioned for a c ivil protection order restraining T.H. J.P. v. T.H. , 9th Dist. Lorain No. 14CA010715, 2016-Ohio-243, ¶ 5 (“ J.P. I ”). A magistrate issued a temporary ex parte order, but after a ful l hearing, the trial court denied the petition on July 11, 2014. Id . at ¶ 5-6. Concluding that J.P. had failed to prove his case by a preponderance of the evidence, the trial court observed that wi th respect to the alleged assault, “the only independent witness tes tified that [J.P.], not [T.H., ] initiated the assault.” This Court ultimately affirmed the tr ial court’s decision. Id . at ¶ 37. In the meantime, J.P. also filed a complaint against T.H. for ass ault and battery, defamation, and invasion of privacy through intrusion upon his seclusion. In the context of that litigation , J.P. moved for an ex parte temporary restraining order arguing, again, that T.H. and his d aughter M.H. were “continuing to stalk, menace, and/or harass” him. T he trial court denied the motion without a hearing. {¶4} T.H. moved for summary judgment on each of J.P.’s claims, argui ng that the trial court’s decision in the CPO case fully resolved all issues rela ted to the June 22, 2014, incident and, consequently, that J.P.’s claims were res judicata. The t rial court granted summary judgment to T.H., and J.P. appeal ed. This Court reversed the t rial court’s decision granting summary judgment on the basis of res judicata, concluding that “[J.P.’s] failure to assert his tort claims contemporaneously with his petition for a civil stalking protection order did not preclude [him] from subsequently bringing a civil action against [T.H.]. ” J.P. v. T.H. , 9th Dist. Lorain No. 15CA010897, 2017-Ohio-233, ¶ 28 (“ J.P. II ”). This Court also noted that J.P.’s civil claims against T.H. alleged facts that were not directly at issue in t he earlier CPO case. Id . at ¶ 29. {¶5} After this Court’s remand, J.P.’s claims against T.H. were trie d to a jury. T.H.

moved for a directed verdict on the claims for invasion of priv acy and defamation after J.P. presented his case-in-chief. The trial court denied the motion , which T.H. renewed at the close3

of all of the evidence. T.H. al so moved for a directed verdict on the assault and battery claims at that time. The trial court denied the motions again, and the j ury returned verdicts in favor of J.P. and awarded him $13,326.99 in damages. {¶6} T.H. appealed, raising fiv e assignments of error.

II.

ASSIGNMENT OF ERROR NO. 1

THE LOWER COURT COMMITTED ERRORS OF LAW WHEN IT FAILED TO ISSUE DIRECTED VERDICTS AS TO [J.P.]’S CAUSE[] OF ACTION FOR DEFAMATION IN LIGHT OF THE LOWER COURT’S DECISION IN CASE NO. 14CV183837 AND THIS HONORABLE COURT’S SUBSEQUENT DECISION UPHOLDING SAME IN CASE NO. 14CA010715. {¶7} In his first assignment of error, T.H. argues that the trial co urt erred by denying

his motion for a directed verdict on J.P.’s defamation claim. Specifically, T.H. argues that J.P.

failed to demonstrate that T.H. made false statements and faile d to present any evidence that T.H. acted with actual malice. With respect to the truth or fa lsity of T.H.’s statements, this Court

agrees. {¶8} A motion for directed verdict test s the legal sufficiency of th e evidence supporting

a claim. Ruta v. Breckenridge-Remy Co. , 69 Ohio St.2d 66, 68 (1982). Consequently, under Civ.R. 50(A)(4), a motion for dir ected verdict can only be gran ted when, having construed the evidence most strongly in favor of the nonmoving party, the tri al court concludes that reasonable minds could only reach a conclusion upon the evidence submitted that is adverse to the nonmoving party. Conversely, if there is substantial and compe tent evidence supporting the position of the nonmoving party and reasonable minds might reac h different conclusions, a trial court must deny the motion. Hawkins v. Ivy , 50 Ohio St.2d 114, 115 (1977). “The ‘reasonable minds’ test mandated by Civ.R. 50(A)(4) requires the court to d iscern only whether there exists4

any evidence of substantive probative value that favors the pos ition of the nonmoving party.” Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co. , 95 Ohio St.3d 512, 2002-Ohio-2842, ¶ 3. Nonetheless, this determinati on does not involve either weighin g the evidence or evaluating the credibility of witnesses. Wagner v. Roche Laboratories , 77 Ohio St.3d 116, 119 (1996), quoting

Ruta at 68-69. This Court must review a trial court’s determinatio n of a motion for a directed

verdict de novo. Goodyear at 514. {¶9} Defamation consists of the publication of a false statement mad e with “some degree of fault” that reflects injuriously upon the subject’s r eputation, exposes the subject to “public hatred, contempt, ridicule, shame or disgrace,” or adve rsely affects the subject in his or her business, trade, or profession. Jackson v. Columbus , 117 Ohio St.3d 328, 2008-Ohio-1041, ¶ 9, quoting A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council , 73 Ohio St.3d 1, 7 (1995). Stated differently, the elements of a defamation claim are “(1) a false and defamatory statement, (2) about plaintiff, (3) published wi thout privilege to a third party, (4) with fault of at least negligence on the part of the defendant, and (5) that was either defamatory per se or caused special harm to the plaintiff.” Gosden v. Louis , 116 Ohio App.3d 195, 206 (9th Dist.1996). {¶10} Defamation per se consists of a false statement that is defamat ory on its face, without the need for interpretation or innuendo. Northeast Ohio Elite Gymnastics Training Ctr.,

Inc. v. Osborne , 183 Ohio App.3d 104, 2009-Ohio-2612, ¶ 7 (9th Dist.). Spoken words that falsely accuse the subject of a crime that exposes the accused to infamous punishment are defamation per se. Radcliff v. Steen Elec., Inc. , 162 Ohio App.3d 596, 2007-Ohio-5117, ¶ 14 (1st Dist.), citing Williams v. Gannett Satellite Information Network, Inc ., 1st Dist. Hamilton No. C-040635, 2005-Ohio-4141, ¶ 8. Imprisonment is a form of “infa mous punishment.” See State5

v. Uskert , 85 Ohio St.3d 593, 599 (1999), quoting Hudson v. U.S. , 522 U.S. 93, 104 (1997). When a statement constitutes defamation per se, the existence o f actual malice and damages is presumed. Webber v. Ohio Dept. of Pub. Safety , 10th Dist. Franklin No. 17AP-323, 2017-Ohio9199, ¶ 36. {¶11} J.P. alleged that T.H. was lia ble for defamation per se because he made statements to third parties that accused J.P. of striking him and pulling a gun on him during the June 22, 2014, incident. Because J.P. alle ged defamation per se, his al legations focused on the extent to which T.H.’s statements related to the firearm. During the tri al, T.H. testified regarding the events on June 22, 2014, as follows: It was in the afternoon. I was coming back from the pool. I h ad a towel around my neck, baseball cap on, glasses. I was on my bike. And [J.P .] was * * * standing in the driveway, yelling, with his camera. This was s omething that often occurred. And, foolishly, I stopped my bike. And I got off the bike, and I started walking towards, from the street to the sidewalk. And I just said, “Wh at’s the problem?” You know, “What’s going on?” And that’s when he launched at me, and he hit me about five or six times across the top of the hat, the bill of the hat. He didn’t use fists. He just - - kind of like slapping event. But it startled m e totally, and I fell back wi th my bike, kind of fell down on my bike. Popped a calf muscle. And, as I got up, and to just collect myself - - and I wasn’t h urt, and I certainly didn’t - - there were no blows on my end. None. Zero. And, as I got up, that’s when he produced the gun, pointed it a t me, then he quickly put it away. And this all happened within seconds. T.H. acknowledged that he had to ld some people “the same story” that was the substance of his testimony and that, “[m]aybe, many months later, possibly[]” he told some people that J.P. had committed a crime against him. He explained that those stateme nts would have been after he spoke with his attorney, who explained that “[a]ssault with a d eadly weapon is a felony offense[.]” J.P. did not dispute that he pulled a gun on T.H. during the incident, but maintained6

that he was legally privileged to do so because he was acting i n self-defense. In other words, J.P. did not dispute that it was factually true that he pulled a gun on T.H., but he argued that he did not commit a crime in doing so. {¶12} Even viewing T.H.’s testimony in the light most favorable to J. P., reasonable minds could only conclude that T.H. did not, with a level of cu lpability of at least negligence, make a false statement that accused J.P. of a crime that subjec ted him to infamous punishment. Although T.H. and J.P.’s testimony regarding the initial moment s of the confrontation on June 22, 2014, differed, there is no dispute that J.P. did, in fact, draw a firearm and direct it toward T.H. J.P.’s arguments relate not to the truth or falsity of th at statement, but to the legal privilege that may have attached in his favor. A reasonable trier of fac t, however, could not conclude that T.H. was negligent in his repr esentations to third parties base d on J.P.’s subsequent assertion of a legal privilege. See generally Cleveland Metro. Bar Assn. v. Berk , 132 Ohio St.3d 82, 2012- Ohio-2167, ¶ 12, quoting Black’s Law Dictionary 1133 (9th Ed.2009) (recognizing that “negligence is defined as ‘[t]he failure to exercise the standa rd of care that a reasonably prudent person would have exercised i n a similar situation.’”). {¶13} In this respect, the earlier decision of the trial court in the CPO case, which was subsequently affirmed by this Court in J.P. I , was also relevant to the trial court’s legal

determination. As this Court concluded in J.P. II , these decisions did not have preclusive effect for purposes of res judicata. Nonetheless, they bear on whethe r T.H., with fault attaining at least the level of negligence, made a false statement that amounted t o defamation per se because any such statements would have occurred well after the full hearing on J.P.’s petition for a CPO and the subsequent dismi ssal of that petition.7

{¶14} The trial court erred by denying T.H.’s motion for a direct ed verdict on J.P.’s claim for defamation pe r se. His first assignment of error is sustained.

ASSIGNMENT OF ERROR NO. 2

THE LOWER COURT ABUSED ITS DISCRETION AND COMMITTED CLEAR ERRORS OF LAW WHEN IT FAILED TO ISSUE A DIRECTED VERDICT AS TO [J.P.]’S CLAIM[] OF INVASION OF PRIVACY WHEN [J.P.] BOTH ADMITTED THAT [T.H.]’S SOLE INGRESS AND EGRESS REQUIRED HIM TO GO PAST [J.P.]’S RESIDENCE A SHORT DISTANCE AWAY; AND [J.P.] ALSO ADMITTED THAT [T.H.] HAD A CONSTITUTIONAL RIGHT OF FREE MOVEMENT; AND THE EVIDENCE OF STALKING CONSISTED SOLELY OF [J.P.] SERIALLY VIDEOTAPING GOING ABOUT NORMAL AND USUAL AFFAIRS WITHOUT A CLEAR LEGAL RIGHT TO DO SO. A DIRECTED VERDICT FOR [T.H.] SHOULD HAVE BEEN GRANTED. {¶15} T.H.’s second assignment of error argues that the trial court e rred by denying his

motion for a directed verdict on J .P.’s claim for invasion of p rivacy. This Court disagrees. {¶16} As noted above, a motion for a di rected verdict tests the legal sufficiency of the evidence supporting a claim. Ruta , 69 Ohio St.2d at 68. Neither the credibility of witnesses no r the weight to be given the evidence are matters for considerati on under Civ.R. 50(A). Wagner , 77 Ohio St.3d at 119, quoting Ruta at 68-69. The tort of invasion of privacy includes a claim fo r “‘the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.’” Welling v. Weinfeld , 113 Ohio St.3d 464, 2007-Ohio-2451, ¶ 15, quoting Housh v. Peth , 165 Ohio St. 35 (1956), paragraph two of the sy llabus. The tort “is akin to tr espass in that it involves intrusion or prying into the plaintiff’s priv ate affairs[]” including, for e xample, “wiretapping [and] watching or photographing a person through windows of his residence[.]” Killilea v. Sears, Roebuck &

Co. , 27 Ohio App.3d 163, 166 (10th Dist.1985). A plaintiff must d emonstrate that he or she had8

a reasonable expectation of privacy in the area in which the al leged intrusion occurred. Olson v. Holland Computers , 9th Dist. Lorain No. 06CA008941, 2007-Ohio-4727, ¶ 18. {¶17} T.H. argues that the trial court erred by denying his motion fo r a directed verdict

because the evidence demonstrated that it was J.P.—not T.H.—who engaged in actions that would constitute an invasion of privacy, such as routinely vide o recording his neighbors’ activities. He has also argued that the actions to which J.P. points as evidence of an intrusion upon his seclusion actually reflected T.H.’s normal, necessary movements in and around his own home. In other words, T.H. argue s that the evidence at trial w eighed against the conclusion that he was liable for an invasion of J.P.’s privacy by intruding up on his seclusion. Because a motion

for a directed verdict tests the sufficiency of the evidence supporting a claim, however, this Court does not consider the weight of the evidence or evaluate the cr edibility of witnesses and must, instead, view the evidence in the light most favorable to J.P. See Ruta at 68; Goodyear Tire &

Rubber Co. , 95 Ohio St.3d 512, 2002-Ohio-2842, at ¶ 3; Wagner at 119. T.H. has not argued

that the evidence at trial was insufficient to demonstrate the elements of J.P.’s invasion of privacy claim, nor has he articul ated what those elements are i n the first instance. {¶18} In that respect, this Court notes that a sustained pattern of b ehavior that can be considered “a systematic campaign of harassment” may constitute an actionable invasion of privacy. See Housh at 41; Killilea at 166. See also Weaver v. Pillar , 5th Dist. Tuscarawas No. 2012-CA-32, 2013-Ohio-1052, ¶ 29-31 (recognizing, as in Housh , that aggressive collection techniques by a debt collector may rise to the level of an inva sion of privacy); Irvine v. Akron

Beacon Journal , 147 Ohio App.3d 428, 2002-Ohio-2204, ¶ 28-34 (recognizing tha t a claim for invasion of privacy may be stated against a telemarketer based upon repeated telephone calls).

Because T.H. has neither articulated the elements of a claim fo r invasion of privacy premised9

upon intrusion upon seclusion nor argued that the evidence was insufficient to establish those elements in this case, this Court takes no position on the lega l question of whether an action for invasion of privacy can be sust ained based on a pattern of beha vior such as the one identified by J.P. Nonetheless, this Court notes that other courts have limi ted application of this principle to circumstances involving debt co llection and telemarketing activ ity, and one court has observed that Ohio does not recognize a claim for “civil harassment.” Misseldine v. Corporate Investigative Servs., Inc. , 8th Dist. Cuyahoga No. 81771, 2003-Ohio-2740, ¶ 41. {¶19} T.H.’s second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

THE LOWER COURT ABUSED ITS DISCRETION AND COMMITTED CLEAR PREJUDICIAL ERROR WHEN THE LOWER COURT REFUSED TO ALLOW [T.H.] TO CALL THE AVON LAKE, OHIO PROSECUTOR RUELBACH TO TESTIFY AS TO THE DISMISSAL OF THE UNDERLYING ASSAULT CHARGE AFTER HIS INDEPENDENT AND FIRST VIEW OF THE FILED CASE GIVEN THAT THE LOWER COURT THEN REPEATEDLY GAVE FREE REIN TO [J.P.] TO ARGUE AND ELICIT TESTIMONY THAT IT WAS TRUE THAT [T.H.] ASSAULTED HIM BECAUSE “THE POLICE” ARRESTED HIM. {¶20} In his third assignment of error, T.H. argues that the trial co urt abused its discretion by excluding the testimony of the prosecutor who dis missed the charges filed against T.H. after the incident of June 22, 2014. {¶21} As a general rule, this Court re views the admission or exclusio n of relevant

evidence for an abuse of discretion. M.S. by Slyman v. Toth , 9th Dist. Medina No. 16CA0038- M, 2017-Ohio-7791, ¶ 43, citing State v. Sage , 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. Because trial courts enjoy broad discretion in the a dmission and exclusion of evidence, this Court will only conclude that there is reversible error wh en there has been a clear abuse of discretion that resulted in material prejudice. See State v. Thompson , 141 Ohio St.3d 254, 2014-10

Ohio-4751, ¶ 111, citing State v. Long , 53 Ohio St.2d 91, 98 (1978) and Sage at paragraph two of the syllabus. {¶22} T.H.’s brief does not explain under what Rules of Evidence, if any, the trial court erred, nor does it direct this C ourt to any other authority tha t would provide a framework for our analysis of this assignment of error. See generally App.R. 16(A)(7); Loc.R. 7(B)(7) of the Ninth District Court of Appeals. Because his brief focuses on the pr ejudice that he alleges to have suffered as a result of the trial court’s ruling, this Court ta kes no position on whether the trial court’s decision to exclude the prosecutor’s testimony was subs tantively erroneous, and our

discussion is limited to whether T.H. was prejudiced by that de cision. {¶23} During trial, one of the officers who responded to the June 22, 2014, incident testified that he spoke to J.P. and a neighbor at the scene. T he officer related the substance of J.P.’s statements and noted that T.H. was arrested, but J.P. wa s not charged. The officer also testified that the charges again st T.H. were dismissed and that T.H. did not seek charges against J.P. arising from the incident. During a sidebar, T.H. summari zed his purpose for calling the prosecutor to testify: I expect him to testify to what the procedures are for charging , who makes the charge; that would be the officer, not him. What he does after the charge is made. And what he reviewed in making hi s determination to dismiss the case. * * * Your Honor, I’m not going to ask him what his reasons were for dismissing. I’m going to ask him what he did, wha t he reviewed, before he dismi ssed the case. Further clarifying his purposes in calling the prosecutor, T.H. emphasized the testimony would be limited to “procedures.” {¶24} The jury heard testimony that T.H. was charged, but that the ch arges were dismissed and, consequently, that neither T.H. nor J.P. was pro secuted for their actions on June11

22, 2014. Given that the proffered substance of the prosecutor ’s testimony would have been limited to a description of procedural matters and not his reas ons for dismissing the charges related to the June 22, 2014, inci dent, this Court cannot concl ude that T.H. was materially prejudiced by its exclusion. His t hird assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 4

THE LOWER COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO CURTAIL [J.P.]’S CLOSING ARGUMENT WHEREIN HE ARGUED THAT “THE POLICE DECISION” TO CHARGE [T.H.] WITH ASSAULT DEMONSTRATED WHO WAS TELLING THE TRUTH AS THE LOWER COURT HAD BEEN INFORMED BY [T.H.]’S PROFFER OF THE PROSECUTOR’S TESTIMONY THAT ONE OFFICER WHO INTERVIEWED [J.P.] SOLELY DECIDED TO ISSUE THE CHARGE BASED UPON THAT INTERVIEW. {¶25} T.H.’s fourth assignment of error argues that he was prejudiced by improper statements made by J.P. dur ing his closing argument. {¶26} T.H. did not object to J.P.’s statements, so he has forfeited a ll but plain error in connection with this assignment of error. See Rising v. Litchfield Bd. of Twp. Trustees , 9th Dist. Medina No. 16CA0010-M, 2016- Ohio-6971, ¶ 16, citing Katie L. v. Dennis M. , 9th Dist. Medina No. 15CA0010-M, 2016-Ohio-338, ¶ 5. “In civil cases, like this one, the application of the plain

error doctrine is reserved for the rarest of circumstances.” Katie L. at ¶ 5, citing Goldfuss v.

Davidson , 79 Ohio St.3d 116 (1997), syllabus. A s the Ohio Supreme Cour t has explained: In appeals of civil cases, the plain error doctrine is not favo red and may be applied only in the extremely r are case involving exceptional c ircumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judi cial process, thereby challenging the legitimacy of the underlying judicial process i tself. Goldfuss at syllabus. The application of the plain error doctrine in c ivil cases is “strictly limited to those occasions when the error impugn[s] the character and p ublic image of the judicial process.” State v. Morgan , 153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 40.12

{¶27} T.H. has acknowledged that his arguments are limited to plain e rror, but he has done so with reference to the standard of review applicable to criminal cases. See generally Long , 53 Ohio St.2d 91 at paragraph three of the syllabus. The civil and criminal sta ndards for recognizing plain error on appeal, however, differ substantiall y. See Morgan at ¶ 35-41, 48-49. Although T.H. has argued that he was prejudiced by J.P.’s alleg edly improper comments during closing argument, he has not argued that those comments “impugn ed the character and public image of the judicial process.” Id . at ¶ 40. Nonetheless, we recognize that error is the startin g point for this Court’s analysis of plain error in civil cases a s well as criminal cases. See State v.

Hill , 92 Ohio St.3d 191, 200 (2001). See also Morgan at ¶ 36, 41. Because T.H. has not identified error on the part of the trial court, it follows tha t he cannot demonstr ate plain error. {¶28} Counsel enjoys significant latitude during closing argument, an d the question of whether argument goes beyond the bounds of what is permissible is one entrusted to the

discretion of the trial court. Pesek v. Univ. Neurologists Assn., Inc. , 87 Ohio St.3d 495, 501 (2000). See also Pang v. Minch , 53 Ohio St.3d 186 (1990), paragraphs two and three of the syllabus. A trial court “is not r equired to intervene sua spon te to admonish counsel and take curative action” regarding improper statements during closing a rgument in a civil case unless counsel “grossly and persiste ntly abuses his privilege.” Snyder v. Stanford , 15 Ohio St.2d 31 (1968), paragraph one of the syllabus, superseded by rule on ot her grounds as noted in King v. Branch Motors Express Co. , 70 Ohio App.2d 190, 197 (2d Dist.1980). {¶29} In support of this argument, T.H. points to the following state ment made by J.P. during closing argument: And, remember, those officers, the y didn’t just take statements . They observed for themselves what they saw at the scene, and they formed an o pinion of the truth-telling or lack of truth-telling of the people who gave s tatements. They13

didn’t just regurgitate what I told them. They observed my dem eanor, the scene, their witnesses’ demeanor, a nd, still, those seasoned officers arrested [T.H.]. J.P.’s statement—which is the sole incident to which T.H. direc ts this Court’s attention—is a fair comment on the testimony of the police officer who responded to J.P.’s 911 call after the June 22, 2014, incident. The officer testified about his observatio ns at the scene, including apparent injuries to J.P., and the convers ation that he had with J.P. A lthough he testified that T.H. was arrested, he also acknowledged dur ing his cross-examination tha t he did not witness the altercation and that the charges against T.H. were later dismis sed. {¶30} The inferences drawn by J.P. in this statement were not unwarra nted given the testimony in evidence, nor were his statements beyond the bound s of acceptable professional conduct during closing argument. See , e.g. , Pesek at 501-502 (noting that counsel “made various assertions and drew many inferences that were simply not warran ted by the evidence[]” and attacked opposing counsel and expert witness in a manner that w as “inexcusable, unprincipled, and clearly outside the scope of final argument.”). Even were we to conclude that J.P.’s statement was an improper comment on the evidence, a single sta tement during closing argument in isolation does not constitute the gross and persistent abusi ve conduct identified in Snyder and

Pesek

. See Riechers v. Biats , 9th Dist. Summit No. 25248, 2010-Ohio-6448, ¶ 13-14. {¶31} The trial court did not err by permitting J.P.’s statements dur ing closing argument. Because “error * * * [is] the starting point for a plain-error inquiry[,]” T.H.’s fourth assignment

of error is overruled. See Hill , 92 Ohio St.3d at 200.

ASSIGNMENT OF ERROR NO. 5

THE LOWER COURT ERRED IN DENYING A NEW TRIAL.14

{¶32} T.H.’s fifth assignment of erro r argues that the trial court e rred by denying his

motion for a new trial based on the trial court’s decision to e xclude the prosecutor’s testimony and on J.P.’s comments during closing argument. {¶33} Civ.R. 59(A) provides that a new trial may be granted based upo n: (1) Irregularity in the proceedings of the court, jury, magistr ate, or prevailing party, or any order of the court or magistrate, or abuse of dis cretion, by which an aggrieved party was prevente d from having a fair trial; (2) Misconduct of the jury or prevailing party; [and] * * * (9) Error of law occurring at the trial and brought to the atte ntion of the trial court by the party making the application. A decision granting or denying a motion for a new trial under C iv.R. 59(A)(1), (2), or (9) is

reviewed for an abuse of discretion. See McMichael v. Akron Gen. Med. Ctr. , 9th Dist. Summit No. 28333, 2017-Ohio-7594, ¶ 41 (Civ.R. 59(A)(1)); Sheffield v. Estate of Bentley , 12th Dist. Fayette No. CA2014-12-020, 2015-Ohio-3834, ¶ 10 (Civ.R. 59(A)(2)); Javorsky v. Natl. RR. Passenger Corp. , 9th Dist. Wayne No. 06CA0075, 2008-Ohio-342, ¶ 8 (Civ.R. 59(A )(9)). {¶34} This Court has considered the s ubstance of the arguments underl ying T.H.’s

motion for a new trial in our ana lysis of his third and fourth assignments of error. Having concluded that the trial court did not err in either respect, i t follows that the trial court did not abuse its discretion by denying his motion for a new trial on t hose substantive grounds. {¶35} T.H.’s fifth assignment of error is overruled.

III. {¶36} T.H.’s first assignment of error is sustained. His second, thi rd, fourth, and fifth assignments of error are overru led. The judgment of the Lorain County Court of Common Pleas15

is affirmed in part and reversed i n part, and this matter is re manded to the trial court for proceedings consistent with this opinion. Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed equall y to both parties.

LYNNE S. CALL AHAN FOR THE COURT TEODOSIO, P. J. HENSAL, J. CONCUR.

APPEARANCES: GERALD WALTON and JOHN J. SCHNEIDER, Attorneys at Law, for Appe llant. J. P., pro se, Appellee.