FIRST FEDERAL BANK OF OHIO, PLAINTIFF-APPELLEE, v. JOHN ANGELINI, JR., ET AL., DEFENDANTS-APPELLEES, аnd TRUSTEE IN BANKRUPTCY FOR THE ESTATE OF JEFFREY J. ANGELINI, DEFENDANT-APPELLANT.
CASE NO. 3-09-03
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
May 24, 2010
2010-Ohio-2300
Appeal from Crawford County Common Pleas Court, Trial Court No. 03-CV-0098, Judgment Affirmed
Timothy A. Shimko for Appellant
Stephen E. Chappelear for Appellee First Federal Bank of Ohio
{¶1} Defendant-Appellant the Trustee in Bankruptcy for the Estate of Jeffrey J. Angelini (“Jeffrey“) appeals the February 18, 2009 Judgment Entry of the Court of Common Pleas of Crawford County, Ohio, granting Plaintiff-Appellee First Federal Bank of Ohio‘s (“First Federal“) motion for mistrial on all claims by and between First Federal and Jeffrey.
{¶2} This case arises from a dispute concerning a commercial transaction which took place on January 12, 2001. John and Joyce Angelini, Jeffrey‘s parents, owned a car dealership in Galion, Ohio. John and Joyce started the car dealership as a sole proprietorship in 1978 undеr the name Angelini Pontiac and Olds. In 1999, they changed the business’ name to Angelini Transportation for reasons unrelated to this case. After graduating high school in 1984, Jeffrey worked full-time at his parents’ dealership where he continued to be employed at the commencement of this lawsuit in 2003.
{¶3} Over the course of the years, John and Joyce formed commercial relationships with various local banks to finance the automobile inventory sold at their dealership. First Federal was one of these banks. On January 8, 2001, United Bank, another local bank where John and Joyce held an account, notified First Federal that it had frozen John and Joyce‘s funds and would not honor аny check drawn on that account. As a result of this action, United Bank dishonored
{¶4} John, Vose, Moore and Hottenroth attempted to negotiate a method for John and Joyce to repay the debt incurrеd from the dishonored checks. From the discussions, it became evident that John and Joyce did not have the financial ability to repay the money immediately. In addition, John and Joyce had several hundred-thousand dollars of existing loans with First Federal including a $300,000 floor plan loan which financed some of the inventory at Angelini Transportation. Vose informed John that this loan was now frozen as a result of the dishonored checks. John asked First Federal to release the titles from that loan so that he could obtain a floor plan loan at another lender in order to stay in business. First Federal agreed to release the titles but only in exchange for additional collateral.
{¶5} First Federal, realizing it essentially had an unsecured loan, sought mortgages on several properties owned by John and Joyce to secure the debt created by the dishonored checks. The negotiations focused on three specific properties: a house owned by John and Joyce located on Sanibel Island, Florida which was in the process of refinancing at the time of the meeting, and two
{¶6} Vose, Moore and Hottenroth testified that together they went to Angelini Transportation, on the morning of January 12, 2001, to conduct a “closing” of the loan covering the amount of the dishonored checks (referred to as the “Bad Check Loan“). The total amount of this loan was $849,802.78; $842,579.19 being the amount of the dishonored checks, plus an additional $7,223.59 in interest, fees and expenses incurred in preparing the loan documents. The loan documents set the maturity date for February 15, 2001 and gave First Federal the option to renew the note. In addition, these documents obtained new collateral on the $300,000 floor plan loan. Hottenroth prepared several sets of documents reflecting, among other things, the parties’ agreement to execute mortgages on certain properties to secure the debt that John and Joyce owed to First Federal.
{¶7} The primary reason for Jeffrey‘s participation in the transaction was to sign the appropriate documents giving First Federal a mortgage on the two
{¶8} Upon their arrival to Angelini Transportation, John directed Vose, Moore and Hottenroth into his office to discuss the transaction. The majority of the meeting took place between John and the three representatives of First Federal. Joyce‘s presence at the meeting was intermittent, however, she participated in some of the discussion concerning the distribution of the proceeds from the Sanibel Island refinancing and the pledging of the properties held in Jeffrey‘s name. Although she initially expressed that she believed the entire transaction was unnecessary, she eventually signed the documents. Jeffrey‘s presence at the meeting was extremely limited. He entered the office only to sign the documents that needed his signature. Vose, Moore and Hottenroth, each testified that none of them conversed with Jeffrey during this meeting.
{¶9} According to further testimony from the representatives of First Federal, no threats of criminal prosecution were made against John during this meeting. In addition, First Federal did not make any agreements with John and Jоyce concerning which property was going to be released from the Bad Check
{¶10} For the Angelinis’ version of this meeting, Jeffrey testified that on the morning of January 12, 2001, Vose, Moore and Hottenroth arrived at the dealership unannounced and met with John in his office. The meeting lasted over an hour. John, Joyce and Jeffrey testified that Hottenroth dominated the majority of the conversation. However, Joyce admitted that she was not present during the entire meeting because she was answering the telephone and attending to the front desk. Jeffrey testified that he was also not present for most of the meeting and only entered John‘s office to sign the documents. However, Jeffrey testified that because his office was situated next to John‘s, he could overhear most of the conversation.
{¶11} John and Joyce testified that they discussed in detail the application of the proceeds from the Sanibel Island refinance with Vose, Moore and Hottenroth. Specificаlly, Joyce stated that she was extremely concerned about Jeffrey‘s involvement in the transaction as a cosigner and guarantor. Therefore, she wanted a guarantee from First Federal that upon receiving the first payment of $300,000, whether from the Sanibel Island refinance or another source, First Federal would apply the funds to the Bad Check Loan and release the properties
{¶12} In addition, John and Joyce testified that on more than one occasion during this meeting Hottenroth threatened John with criminal prosecution for check kiting and stated that if the documents were not executed that day, “we will proceed” and John would go to prison. Jeffrey testified that John called him into the office to sign the documents. When Jeffrey entered the office, John summarized Hottenroth‘s threat—if Jeffrey did not sign, John would go to prison. Jeffrey also testified that after John made this statement to Jeffrey, John asked, “does that sum it up?” and in response Vose, Moore and Hottenroth nodded their heads in agreement. John, Joyce and Jeffrey testified that although none of them read the contents, they thought they had no other choice but to sign the documents.
{¶13} The proceeds of the Sanibel Island refinancing totaling $405,470.21 were wired to First Federal in mid-February 2001. First Federal applied $300,000 of the proceeds to the undersecured Floor Plan Loan. The remaining funds were applied to the Bad Check Loan, however Jeffrey remained the guarantor on the loan. On February 20, 2001, John, Joyce and Jeffrey signed a renewal note
{¶14} In April of 2003 First Federal filed a complaint in foreclosure on the Bad Check Loan. The complaint named John, Joyce and Jeffrey Angelini, among others, as the defendants. In 2004, First Federal obtained a final judgment against John and Joyce and an order of foreclosure on certain properties belonging to John and Joyce. John and Joyce declined to file an appeal from that decision. However, Jeffrey appealed that decision which granted summary judgment in favor of First Federal. On appeal, this Court reversed and remanded the matter to the trial court on May 9, 2005. The proceedings were then stayed during the pendency of Jeffrey‘s bankruptcy. On January 9, 2007, the trial court again granted summary judgment in favor of First Federal. Jeffrey again appealed the decision. This Court found that genuine issues of material fact remained as to specific claims asserted and partially reversed the trial cоurt‘s grant of summary judgment.
{¶15} On this remand, the remaining claims between the parties proceeded to trial. First Federal sought recovery from Jeffrey as a cosigner and guarantor for
{¶16} Jeffrey also asserted one counterclaim for damages stating that First Federal fraudulently induced him to cosign and guaranty his parents’ Bad Check Loan; that First Federal falsely represented to him that it would first apply any payment to the Bad Check Loan when it knew that representation was false; that Jeffrey relied on this representation by First Federal; and that his reliance caused him to suffer damages.2
{¶18} On February 6, 2009, the jury returned its verdict with the interrogatory answers. The same six jurors signed both forms. The verdict found in favor of First Federal awarding it $40,735.46 which represented the remaining obligation the jury believed Jeffrey owed as cosigner and guarantor on the Bad Check Loan. Howevеr, the verdict also found in favor of Jeffrey on his counterclaim of fraud and awarded him $641,000 in damages. These verdicts alone would appear to be inconsistent.
{¶19} Upon initial review of the interrogatory answers and the verdict, the judge immediately noticed that the answers to interrogatory 5 were both internally inconsistent and inconsistent with the verdict. Interrogatory 5 asked the jury whether Jeffrey sufficiently proved his counterclaim for fraud. In response to the general question, the jury answered “Yes” finding that First Federal obtained Jeffrey‘s consent to cosign and guaranty the Bad Check Loan by fraudulently making false statements. However, three subparts to the general questiоn followed with each part corresponding to an essential element of the counterclaim.
{¶21} The inconsistencies arising from the answers given to interrogatory 5 were apparent on the face of the documents. The jury verdict found in favor of Jeffrey on his counterclaim for fraud. However, as to the specific interrogatories going to an essential element of the claim for fraud, the jury found that Jeffrey did not rely on a false statement when he cosigned on the Bad Check Loan. In addition, the jury‘s answer to interrogatory 5(B) was inconsistent with the award of damages to Jeffrey on his counterclaim.
{¶22} The judge met with counsel in his chambers and explained the options under
{¶23} Shortly thereafter, the jury returned with the verdict and interrogatory forms. There was no change to the verdict form. However, the jury changed the answer to interrogatory 5(B) from “No” to “Yes” finding that Jeffrey relied on the false statements by agreeing to cosign and guaranty the loan. The same six jurors initialed the change.
{¶24} As a result of the forgoing deliberation and the change to interrogatory 5(B), the verdict and interrogatory answers now stated as follows:
A. The Verdict Form
1. On First Federal‘s claim against Jeffrey Angelini as cosigner and guarantor of his parents’ “bad check” loan, we find [mark an “X” in the applicable blank space]:
__X__ In favor of plaintiff First Federal and against defendant Jeffrey Angelini and we further find that First Federal should recover [insert an amount] $__40,735.46__ but no more than the foreclosure value of his interest in the properties at 201 Erie Avenue in Huron, Ohio; and 9680 State Route 314 in Lexington, Ohio.
_____ In favor of defendant Jeffrey Angelini and against plaintiff First Federal.
__X__ In favor of counterclaim plaintiff Jeffrey Angelini and against counterclaim defendant First Federal, and we further find that Jeffrey Angelini should recover [insert an amount] $__641,000__.
_____ In favor of counterclaim defendant First Federal and against counterclaim plaintiff Jeffrey Angelini.
B. The Interrogatory Answers
1. Did First Federal prove by the greater weight of the evidence that Jeffrey Angelini has some remaining obligation as cosigner and guarantor of his parents “bad check” loan? [insert “Yes” or “No“] __Yes__.
2. Did Jeffrey Angelini prove by the greater weight of the evidence that First Federal promised John and Joyce Angelini that First Federal would apply all proceeds from the sale or financing of their Florida property to their “bad check” loan? [insert “Yes” or “No“] __Yes__.
A. If your answer to this interrogatory is “yes,” did Jeffrey prove by the greater weight of the evidence that both John and Joyce Angelini would not have signed the transaction documents if First Federal did not make that promise? [insert “Yes” or “No“] __No__.
3. Did Jeffrey Angelini prove by the greater weight of the evidence that First Federal promised him it would discharge his obligation to guaranty his parents’ “bad check” loan and release its mortgages on the properties at 201 Erie Avenue in Huron, Ohio; and at 9680 State Route 314 in Lexington, Ohio, when it received $300,000 in payment on the “bad check” loan. [insert “Yes” or “No“] __No__.
4. Did Jeffrey Angelini prove by the greаter weight of the evidence that First Federal promised him it would release its mortgages on the properties at 201 Erie Avenue in Huron, Ohio;
A. If your answer to this interrogatory is “yes,” did Jeffrey Angelini prove by the greater weight of the evidence that he would not have signed the transaction documents if First Federal did not make that promise? __No__.
5. Did Jeffrey Angelini prove by the greater weight of the evidence that First Federal obtained his agreement to cosign and guaranty his parents’ “bad check” loan by fraudulently making any false statement or stаtements with the purpose of causing him to rely on any such statement? [insert “Yes” or “No“] __Yes__.
A. If the answer to this interrogatory is “yes,” what was the false statement or statements? _application of funds from Sanabel [sic] Island, schedule of release, release of property (Jeff‘s)__.
B. If the answer to this interrogatory is “yes,” did Jeffrey Angelini prove by the greater weight of the evidence that he relied on the false statement by agreeing to cosign and guaranty his parents’ “bad check” loan? [insert “Yes” or “No“] __Yes__.
C. If the answer to this interrogatory is “yes,” did Jeffrey Angelini prove by the greater weight of the evidence that his reliance on the false statement was reasonаble in all the circumstances? [insert “Yes” or “No“] __Yes__.
6. Did Jeffrey Angelini prove by the greater weight of the evidence that he agreed to cosign and guaranty his parents’ “bad check” loan under duress? [insert “Yes” or “No“] __Yes__.
A. If the answer to the interrogatory is “yes,” what threat did First Federal make that caused him to agree under duress?_threat of criminal charges “you don‘t sign, we will proceed“___
B. If the answer to this interrogatory is “yes,” did Jeffrey Angelini prove by the greater weight of the evidence that this threat prevented him from exercising free will and judgment? [insert “Yes” or “No“] __Yes__.
7. Did Jeffrey Angelini prove by the greater weight of the evidence that fraud by First Federal caused him any economic damage beyond his obligations under the agreements we signed? [insert “Yes” or “No“] __Yes__.
A. If the answer to this interrogatory is “yes,” what was the nature of that damage? ___loss of equity__.
{¶25} The judge reviewed the verdict and the interrogatory answers again. This time the judge identified what he believed were three additional inconsistencies.
{¶26} First, the judge determined that interrogatory answer 2(A) [John and Joyce would not have signed the transaction documents without the promise to apply all their Florida property proceeds to the Bad Check Loan] was inconsistent with: 1) interrogatory answer 5(A) [which lists “application of funds from Sanabel [sic] Island” as a fraudulent statement made by First Federal]; and 2) paragraph 1 of the verdict [which reduced the amount of First Federal‘s claim by the precise amount of the Florida property proceeds that First Federal did not apply to the Bad Check Loan].4
{¶28} Third, the judge believed that interrogatory answer 6(B) [First Federal‘s threat of criminal prosecution prevented Jeffrey from exercising free will and judgment] was inconsistent with: 1) paragraph 1 of the verdict [First Federal should recover some money from Jeffrey Angelini as cosigner and guarantor of his parents’ Bad Check Loan]; 2) revised answer to interrogatory 5(B) [Jeffrey Angelini relied on the false statement by agreeing to cosign and guaranty his parents’ Bad Check Loan]; and 3) paragraph 2 of the verdict [Jeffrey Angelini should recover damages that he sustained by his reliance on First Federal‘s fraudulent statements].
{¶29} As a result of these apрarent inconsistencies, the court again asked the jury to further deliberate and the judge also reread the applicable portion of the written jury instructions entitled “Damages” of which each juror had a copy. The jury retired for the third time and after a short deliberation returned with the interrogatories and verdict forms unchanged. As a result, the verdict and the
{¶30} The court met with counsel in chambers to discuss the situation. Both counsel and the court agreed that there was no reason to request the jury to deliberate for a fourth time. First Federal then moved for a mistrial on two grounds: (a) the interrogatory answers are inconsistent with the verdict; and (b) misconduct of Jeffrey‘s counsel in closing argument denied first federal a fair trial.
{¶31} The court deferred ruling on First Federal‘s motion for mistrial and advised counsel that it would receive the verdict but would not enter a judgment until the matter could be considered further. The judge returned to the courtroom to dismiss the jury and recessed the proceedings.
{¶32} On February 18, 2009, the trial court concluded that it would be inappropriate to enter judgment on the case given the inconsistencies between the answers to the interrogatories and verdict as well as the internal inconsistency in the verdict. As a result, the trial court granted First Federal‘s motion for mistrial on this ground. In addition, the trial court cited as additional ground for mistrial the misconduct of Jeffrey‘s counsel and stated that this misconduct deprived the parties of a fair trial. After thoroughly stating its rationale for granting First Federal‘s motion for mistrial in its Judgment Entry, the trial court ordered a new trial pursuant to
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING A NEW TRIAL FOLLOWING THE JURY‘S RETURN OF ITS VERDICT.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT ENTERING JUDGMENT ON BEHALF OF THE TRUSTEE ON TRUSTEE‘S COUNTERCLAIMS AND ON FIRST FEDERAL‘S COMPLAINT.
{¶34} Because the assignments of error both relate to the issue of whether the trial court properly granted a new trial, we elect to discuss them together.
The First and Second Assignments of Error
{¶35} In both his assignments of error, Jeffrey argues that the trial court abused its discretiоn in not entering judgment on the parties’ claims and granting a new trial. The court stated two reasons as its basis for declining to enter judgment and granting a new trial. First, the interrogatories answers were inconsistent with the verdict and the verdict itself was inconsistent. Second, the misconduct of Jeffrey‘s counsel denied the parties a fair trial. We will separately address each of the trial court‘s reasons in turn.
{¶36} When one or more of the interrogatory answers is inconsistent with the general verdict,
{¶37} As outlined in detail above, the trial court found both the verdict and the interrogatory answers to be tainted by the same fundamental inconsistency. The jury found Jeffrey liable as cosigner and guarantor on his parents’ Bad Check Loan. However, the jury also found that First Federal obtained Jeffrey‘s signature
{¶38} The instructions entitlеd “Fraud as an Affirmative Defense” and “Duress as an Affirmative Defense” both stated “if you find that Jeffrey Angelini proved his defense by the greater weight of the evidence, you should find that he had no obligation for this transaction.” Despite the clarity of this instruction, in response to interrogatory 1, the jury found that Jeffrey had some remaining obligation as cosigner and guarantor even though it found that First Federal obtained Jeffrey‘s participation in the transaction via both fraud and duress. Thus, despite finding that Jeffrey adequately proved his affirmative defenses; the jury awarded First Federal an amount that it believed Jeffrey owed as cosigner on the Bad Check Loan.
{¶39} Moreover, the section of thе jury instructions entitled “Damages” stated:
If you find that Jeffrey Angelini proved by the greater weight of the evidence that either his second or his third affirmative defense of fraud and duress, then your verdict should be for Jeffrey Angelini and against First Federal‘s claim against him for any payment on the 2001 promissory note.
{¶40} After receiving these instructions, the jury returned for the last time with the verdict and the interrogatory forms unchanged. The trial court concluded that returning the interrogatory аnd verdict forms to the jury to deliberate again would not assist the jury to resolve the inconsistencies. Under
Misconduct of Jeffrey‘s Counsel
{¶41} In its final judgment entry granting the mistrial, the triаl court also noted numerous instances of misconduct on the part of Jeffrey‘s counsel, Attorney Shimko, which took place before and during the trial. The misconduct during the trial consisted primarily of Attorney Shimko flagrantly disregarding specific rulings by the trial court prohibiting the mention of certain matters to the jury
{¶42} Moreover, upon our review of the record on this issue, we have also noted numerous instances of potential misconduct by Attorney Shimko which occurred outside the presence of the jury and as such may not have been directly relevant to the mistrial. The majority of these instances involve Attorney Shimko‘s direct and repeated attacks on the trial judge‘s personal integrity by accusing the judge of bias and of failing to act with impartiality.5
{¶43} However, it is our conclusion that the conduct of Attorney Shimko is more appropriately addressed in other forums.6 In this case, we have found that the decision of the trial court to order a new triаl was fully warranted under
In sum, it is our conclusion that the jury‘s obvious inability to reconcile the inconsistencies between the interrogatories and the verdict created a sufficient basis for the trial court to decline entering judgment and declare a mistrial. As such, we find no abuse of discretion or error in the trial court‘s conclusion to order a new trial pursuant to
{¶44} Based on the foregoing, the Judgment of the Court of Common Pleas of Crawford County is affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur
/jnc