Case Information
*1
[Cite as
Fultz v. Fultz
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
BARBARA FULTZ, EXECUTOR OF
THE ESTATE OF DARWIN FULTZ, :
Plaintiff-Appellee, : Case No. 13CA9 vs. :
RANDALL E. FULTZ, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. : _________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Sherrille D. Akin and Julia R. Baxter, Two Miranova Place,
Suite 700, Columbus, Ohio 43215 COUNSEL FOR APPELLEE: Robert J. Judkins, 303 West Jefferson Street, P.O. Box 33,
Greenfield, Ohio 45123
_________________________________________________________________ CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 7-25-14
ABELE, P.J. This is an appeal from a Pickaway County Common Pleas Court judgment that set
aside a deed and awarded Barbara Fultz, executor of the Estate of Darwin Fultz, plaintiff below and appellee herein, $9,400 in compensatory damages and $16,479.29 in attorney fees. Randall E. Fultz, defendant below and appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN REFUSING TO GRANT APPELLANT’S TIMELY FILED MOTION TO CONTINUE FOR THE PURPOSE OF OBTAINING NEW LEGAL COUNSEL WHERE THE MOTION WAS FILED PROMPTLY UPON THE WITHDRAWAL OF APPELLANT’S COUNSEL, APPELLANT WAS PREJUDICED BY THE DENIAL, AND THE CONTINUANCE WOULD NOT HAVE INCONVENIENCED OR PREJUDICED ANY PARTY, COUNSEL OR THE COURT.” SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN FAILING TO IMPANEL A JURY BECAUSE APPELLANT’S JURY INSTRUCTIONS DID NOT COMPLY WITH THE CIVIL RULES WHERE APPELLANT HAD PROPERLY REQUESTED A JURY, WAS PROCEEDING PRO SE DUE TO THE DENIAL OF HIS MOTION TO CONTINUE AND HAD NO NOTICE OF THE CONSEQUENCES OF HIS NON-CONFORMING JURY INSTRUCTIONS, AND WHERE THE OPPOSING PARTY HAD FILED PROPERTY [SIC] JURY INSTRUCTIONS.” THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED AND RULED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN FINDING THAT APPELLANT COMMITTED FRAUD BECAUSE THERE WERE INSUFFICIENT FINDINGS OF FACT TO SUPPORT SUCH A CONCLUSION.”
FOURTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT ORDERED APPELLANT TO PAY ATTORNEY FEES BECAUSE NO PUNITIVE DAMAGES WERE AWARDED IN THIS CASE.” In March 2011, Darwin Fultz was nearing death and living at a nursing home. According to his wife, Darwin was paralyzed and completely dependent upon others to care for him. Around March 21, 2011, appellant presented a quit claim deed that he claimed
Darwin had signed to a notary. The notary notarized the deed, although she had not seen Darwin sign it.
[Cite as
Fultz v. Fultz
,
{¶ 4} On March 25, 2011, appellant filed the quit claim deed in the Pickaway County recorder’s Office. Four days later, Darwin died.
{¶ 5} On August 2, 2011, appellee filed a complaint against appellant and (1) requested the trial court to set aside the deed, and (2) asserted a claim for fraud. Appellee sought compensatory and punitive damages and attorney fees.
{¶ 6} On January 2, 2013, appellant’s counsel filed a notice of withdrawal of counsel. In it, appellant’s counsel stated:
“Counsel have advised [appellant] of his options regarding settlement and trial in this matter. Opposing counsel made discovery requests which needed to be answered by December 8, 2012. Counsel contacted [appellant] December 1, 2012 and asked him to come in to counsel’s office by December 5, 2012 to make such responses. [Appellant] did not come in to the office and Counsel have not heard from [appellant] since the December 1, 2012 telephone call. Counsel have advised [appellant] in writing that they are withdrawing and that [appellant] will have to find other representation herein.”
{¶ 7} Appellant’s counsel also attached a letter dated December 31, 2012 that they sent to appellant. That letter specifically advised appellant that he would need “to proceed without counsel or find other counsel to represent you.”
{¶ 8} On January 23, 2013, the trial court scheduled the trial for March 18, 2013. On February 7, 2013, appellant filed a motion to continue the trial to allow additional time to obtain counsel. Appellant stated that he “need[ed] additional time to secure the services of an attorney to represent me in this case.” Appellant’s motion, however, did not indicate what efforts he had made to secure new counsel since prior counsel’s withdrawal. On February 8, 2013, the trial court denied appellant’s motion to continue the trial.
{¶ 11} On March 11, 2013, appellant filed a document that bore the caption “Jury Instructions.” Appellant’s document further contained a “Notice of Self-Representation.” Appellant’s purported “Jury Instructions” did not, however, contain any actual jury instructions. Instead, the document presented a “factual background,” “claims and defenses,” “defendants [sic] counterclaim,” “counterclaim measures,” and “verification.”
{¶ 12} Before the trial began, the trial court noted that it did not summon a jury because appellant’s purported jury instructions stated “notice of self representation.” The court indicated that it would try the matter and asked appellant if he understood. Appellant responded:
“Yes, your honor. And that’s—this morning I had mentioned that I wanted to waive that right for a jury trial and to have just a judge trial, seeing that I lost my counsel and did not get any representation in such short notice. I did try to seek out representation, but I would have needed a further continuance in order for anyone to be interested in the case. So, therefore, I’m held to the Court to just show up, and I am here today with whatever representation I do have.” {¶ 13} At the trial, multiple witnesses, including Darwin’s caretakers, stated that Darwin could not have been able to sign his name to the quit claim deed. They explained that Darwin lacked the ability to hold a pen and could not even hold eating utensils or a television remote control. Appellant testified that he brought the deed to Darwin around March 20 or 21,
2011, and that Darwin signed the deed. He admitted that he took the deed to a notary who notarized the deed without witnessing Darwin sign it. On April 4, 2013, the trial court entered a decision and found that Darwin “never
acknowledged his signature before any notary public or other official * * * for the deed [appellant] caused to be filed with the Pickaway County Recorder on March 21, 2011.” The court found that the deed is not valid and that the real estate must pass through Darwin’s estate. The court determined that appellee established that Darwin “lacked the capacity to execute the document on March 21, 2011 and that [appellant] either executed or attempted to execute undue influence.” The court further determined that appellant’s conduct was fraudulent in that he knowingly caused “an invalid deed to be recorded to obtain sole ownership of the land for himself.”
{¶ 16} In the trial court’s April 11, 2013 judgment, the court stated that “[b]oth parties on the record waived their right to Trial by jury and consented to Trial by Court.” The court also entered the following findings: (1) the deed recorded on March 25, 2011 is not valid; (2) appellant “either executed or attempted to execute undue influence upon Darwin Fultz”; (3) appellant’s conduct “was fraudulent by knowingly causing an invalid deed to be recorded in an attempt to obtain sole ownership of land for himself.” The court declared the deed void, set it aside and awarded appellee $9,400 in compensatory damages and $16,479.29 in attorney fees. This appeal followed.
I In his first assignment of error, appellant asserts that the trial court's denial of his
motion to continue constitutes an abuse of discretion. Appellant argues that the court failed to
consider the six factors outlined in State v. Unger ,
arbitrary as to violate due process. The answer must be found in the circumstances present in
every case, particularly in the reasons presented to the trial judge at the time the request is
denied.’” Unger,
court failed to use the Unger analysis when it evaluated his motion to continue. Even though the trial court’s decision to deny appellant’s motion does not outline its analysis of the Unger factors, we have recognized that nothing requires trial courts to specifically articulate an analysis of each Unger factor. Dickens, supra, at ¶13. Thus, to the extent appellant contends that the trial court erred by failing to outline the Unger factors, we reject the contention.
{¶ 21} Appellant further asserts that had the trial court properly considered the Unger factors, it would have found that they weighed in favor of granting a continuance. Appellant observes that he did not specify the length of delay requested, but argues that the trial court could have granted a “reasonable continuance” and his failure to specify the amount of time requested “is not fatal to his request.” Appellant also asserts that he requested a continuance for a legitimate reason—to obtain new counsel—and not for a dilatory purpose. Appellant argues that the case had been continued only one other time in order to allow the parties to mediate the matter. Appellant further contends that the record does not contain any evidence to
suggest that a continuance would have inconvenienced anyone. He points out that he filed his motion to continue shortly after the court set the trial date, and before appellee subpoenaed any witnesses. Appellant asserts that because an adverse outcome would deprive him of property ownership, the court should have determined that the potential adverse outcome to appellant trumped any minor inconvenience resulting from a continuance. Appellant also argues that he cannot be deemed to have contributed to the
circumstance leading to his request for a continuance simply because he failed to cooperate with his counsel, which then led counsel to withdraw. Appellant then argues that the trial court’s denial of his motion to continue “demonstrably prejudice[d]” him. Appellant asserts:
“He was unprepared and failed to provide key evidence to opposing counsel prior
to the hearing, which resulting in the trial court denying him the ability to present
evidence at trial. He failed to object to a considerable amount of hearsay
evidence, and was unable to respond to opposing counsel’s regular objections to
his questioning or testimony. Appellant was sometimes confused by the process;
he did not respond to objections, even when prompted to do so by the trial judge.”
Appellant bases much of his argument upon Swanson v. Swanson, 8 th Dist.
Cuyahoga No. 90472,
judgment that designated the father the residential parent of the parties’ child. Twenty days before trial, the mother’s counsel filed a motion to withdraw, asserting that the mother had fired him. Twelve days before trial, the court permitted the mother’s counsel to withdraw. Six days before trial, the mother filed a motion to continue because she was unable to obtain substitute counsel. The mother stated in her motion to continue that “she had made numerous attempts to hire counsel but her phone calls were not returned.” Id. at ¶6. The trial court denied her motion “and forced the mother to proceed pro se.” Id. The mother appealed and asserted that the trial court abused its discretion by denying her motion to continue. The appellate court agreed with the mother that the trial court abused its discretion
and found that “numerous factors weighed in favor of granting a short continuance to allow the mother to obtain new counsel.” Id. at ¶15. The court first observed that the case had been pending for approximately eight months, the court had set the trial only three months before the mother requested her continuance, and the mother had not requested a prior continuance. The court concluded that “any urgency in adjudicating the [case] stemmed more from the trial court’s scheduling methods.” Id. The court noted that “the mother requested the continuance solely to obtain new counsel” and not “to delay the proceedings.” Id. at ¶16. Additionally, the court determined that a short continuance would not have inconvenienced the parties, except for rescheduling. The court further emphasized “the nature of the proceedings and the ramifications of an adverse outcome, i.e., losing designation as the residential and custodial parent.” Id. at ¶17. Consequently, the court found that permitting the mother to have counsel represent her at a hearing concerning parental rights “trump[ed] any minor inconvenience associated with a short delay.” Id.
The Swanson court further recognized that “the mother’s conduct of firing her attorney contributed to the need for the continuance,” but stated that “this alone does not warrant the denial of her motion.” Id. at ¶18. The court thus determined that “the Unger factors weighed strongly toward granting the mother’s motion for a continuance.” Id. at ¶19. The court also considered other factors. The court observed that allowing the mother to have counsel represent her better served the child’s best interest “by ensuring the integrity of the proceedings.” Id. at ¶20. The court additionally found that the mother suffered prejudice as a result of proceeding pro se. The court further noted that the mother filed her motion “within days from the court’s order allowing her previous attorney to withdraw.” Id. at ¶24.
While Swanson bears some similarities to the case at bar, we believe that other
factors in the case sub judice distinguish it and lead us to conclude that the trial court's denial of
appellant's motion to continue does not constitute an abuse of discretion. First, unlike Swanson where the mother had approximately twenty days to locate substitute counsel, in the case at bar
appellant knew on January 2, 2013, the date his attorneys filed their notice of withdrawal, that he
would need to find substitute counsel. Thus, appellant had two and one-half months between
counsel’s withdrawal and the trial date to obtain new counsel. When appellant filed his
February 7, 2013 motion to continue—over one month after counsel’s notice of withdrawal—he
also offered no explanation as to what efforts he had made up to that point to secure new counsel.
Appellant offered no explanation why he was unable to secure new counsel between January 2,
2013 and February 7, 2013, when he filed his motion to continue. Appellant also does not
explain why he was unable to secure new counsel between February 8, 2013 and March 18,
2013–the trial date. The trial court could rationally determine that appellant’s failure to seek
substitute counsel in a timely manner is a primary reason appellant sought a continuance and that
he could have obtained substitute counsel between the time the court denied his motion to
continue—February 8, 2013—and the trial date—March 18, 2013. Other Ohio courts have
concluded that a trial court does not abuse its discretion by denying a motion to continue when a
party fails to seek new counsel in a timely manner. Graham v. Audio Clinic, 3 rd Dist. Hancock
No. 5-04-35,
counsel’s withdrawal and the trial date to locate substitute counsel. He offers no evidence that
he sought substitute counsel in the interim or made any effort to do so. Before the trial began,
appellant claimed that he was unable to find counsel who would take the case unless the court
granted a continuance. Appellant did not, however, reveal when he had attempted to obtain
substitute counsel. To the extent appellant implies that he was unable to find counsel who could
have prepared for trial within the five weeks between the court’s denial of his motion to continue
and the trial date, appellant fails to recognize that he could have sought new counsel as early as
January 2, 2013, and did not need to wait file a motion to continue before seeking new counsel.
If appellant had retained new counsel in early January, then counsel would have had two and
one-half months to prepare. This length of time has even been deemed sufficient preparation in
capital cases. State v. Bryan,
when the mother sought a continuance. Here, appellee filed her complaint in August 2011.
Thus, when appellant filed his motion to continue, the case had been pending for over seventeen
months—twice as long as Swanson. The trial court could have reasonably and rationally
determined that the public’s, and indeed the appellee’s, right to the efficient and prompt dispatch
of justice outweighed any potential prejudice to appellant, especially when appellant had over
one month after the court denied his motion to continue to obtain substitute counsel.
*13
[Cite as
Fultz v. Fultz
,
{¶ 30} Moreover, in Swanson the court determined that the mother sought a continuance for the legitimate reason of obtaining new counsel, not for a dilatory purpose. In the case at bar, the trial court could have rationally determined, based upon all of the circumstances present, that appellant acted in a dilatory manner by failing to timely respond to counsel’s requests, which led to counsel’s withdrawal, and by failing to seek substitute counsel in a timely manner. Swanson appeared to involve a simple act of a mother firing her attorney and then being in need of substitute counsel. The mother asserted that she had contacted potential substitute counsel, but her calls were not returned. By contrast, in the case sub judice appellant did not fire his attorneys. Instead, appellant’s counsel withdrew due to appellant's lack of cooperation. And we reiterate: appellant had plenty of notice that he needed to obtain substitute counsel even before the trial court set the trial date. He offers no rational reason why he was unable to do so either before or after the court set the trial date. Although in the case at bar, any inconvenience to the parties, the court, and any
witnesses may have arguably been minimal, the other factors discussed herein weigh against a continuance. Likewise, even though appellant did not specify the length of the continuance required to secure new counsel, we do not find that this factor weighs heavily against him. We observe, however, that appellant did not explain how much additional time he needed to secure new counsel or why the time he already had was inadequate. In the case sub judice, appellant’s conduct contributed to the circumstances that
necessitated his motion for a continuance. While the Swanson court did not believe that the mother’s termination of her counsel weighed against granting the mother a continuance, in the case at bar we believe that appellant’s uncooperative attitude with his counsel and his failure to timely seek substitute counsel were major contributing factors to his request for a continuance. Appellant did more than terminate his counsel. In fact, counsel withdrew due to appellant’s lack of cooperation. Additionally, appellant offered no evidence that he timely sought substitute counsel once he learned of counsel’s withdrawal. Thus, these facts distinguish the case sub judice from Swanson. Consequently, based upon a consideration of all competing concerns, we do not believe that the trial court acted unreasonably, arbitrarily, or unconscionably by denying appellant’s motion to continue.
{¶ 33} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s first assignment of error.
II
{¶ 34} In his second assignment of error, appellant argues that the trial court deprived him of his right to a jury trial. Appellant contends that the court wrongly refused to summon a jury simply because appellant failed to file proper jury instructions. Appellee, however, contends that appellant simply waived his right to a jury trial. Appellant counters that even though the transcript reveals that he verbally agreed
to a bench trial, his agreement was not voluntary. Appellant claims that he did not voluntarily waive his right to a jury when that was his "only" option. Appellant claims that the trial court left him without any options by failing to summon a jury and by failing to continue the trial to allow appellant to obtain substitute counsel. Appellant, in essence, asserts that the trial court forced him to proceed pro se and without a jury.
“The right of trial by jury shall be inviolate.” Ohio Constitution, Article I,
Section 5; Civ.R. 38(A). However, “the right to a jury trial may be waived. ‘“‘Section 5 of
Article I of the Ohio Constitution does not prevent a court from giving effect to a waiver of a jury
trial by a party who has a right to a jury trial.’”’” State ex rel. Russo v. McDonnell, 110 Ohio
St.3d 144,
{¶ 37}
“Civ.R. 38(D) states that once a party has demanded a jury trial, the demand
cannot be withdrawn without the consent of the parties.” Soler v. Evans, St. Clair & Kelsey, 94
Ohio St.3d 432, 438,
The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist. The failure of a party or his attorney of record either to answer or appear for trial constitutes a waiver of trial by jury by such party and authorizes submission of all issues to the court. In Soler, the court determined that the dismissal of a complaint containing a
general jury demand does not waive the right to a jury trial on “issues raised in a compulsory counterclaim.” Id. at paragraph two of the syllabus. The court observed that Civ.R. 39(A) does not specify the dismissal of a complaint as a means of waiving a jury demand. In the sub judice, the trial court did not summon a jury due to appellant’s
non-conforming jury instructions. The trial court apparently determined that appellant’s non-conforming jury instructions waived his jury demand. However, the Soler court stated that Civ.R. 39(A) outlines the ways to waive a jury once properly demanded. Just as the dismissal of a complaint containing a jury demand is not one of the methods specified as one of the methods to waive a jury trial, filing non-conforming jury instructions is also not one of those methods. The rule does not authorize a trial court to construe non-conforming jury instructions as a waiver of a party’s properly filed jury demand. Furthermore, appellee has not cited any authority that appears to approve of the trial court’s conduct. Thus, we believe that the trial court erred by construing appellant's non-conforming jury instructions as a waiver of jury. However, after our review of the record, we believe that the trial court’s error was
cured when appellant orally waived his right to a jury trial in accordance with Civ.R. 39(A).
Appellant stated in open court that he “wanted to waive [his] right for a jury trial and to have just
a judge trial,” because he did not have counsel and would need a continuance in order to find
new counsel. Appellant stated: “I’m held to the Court to just show up, and I am here today
with whatever representation I do have.” While appellant may not have been entirely pleased
with the circumstances, he nevertheless orally stated that he waived his right to a jury trial and
fully participated in the bench trial. Appellant did not clearly object to the proceeding in the
absence of a jury. Instead, he stated that he “wanted to waive [his] right for a jury trial.”
Additionally, appellant did not object once the trial court decided to proceed
without a jury. The Ohio Supreme Court has stated that “‘[a] party may waive his right to a jury
trial by acts, as well as by words.’” State ex rel. Russo v. McDonnell, supra, ¶53, quoting
Bonewitz v. Bonewitz,
never once complained about the lack of a jury. In fact, he stated that he waived his right to a jury trial. Appellant could have objected, but did not. Therefore, he is estopped from arguing on appeal that the trial court should have held a jury trial. Goddard at ¶22.
Appellant argues that under our holding in State v. Tackett, 4 th Dist. Jackson No.
04CA12,
during the trial court proceedings required the trial court to be lenient. Appellant correctly notes
that this court has “a policy of affording considerable leniency to pro se litigants.” Cooke v.
Bowen, 4 th Dist. Scioto No. 12CA3497,
Id., quoting Justice v. Lutheran Social Servs., Franklin App. No. 92AP-1153 (Apr. 8, 1993). Consequently, although the trial court erred by determining that appellant’s non-conforming jury instructions constituted a waiver of his jury demand, the court’s error was cured when appellant waived his right to a jury trial in accordance with Civ.R. 39(A).
{¶ 45} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s second assignment of error.
III
{¶ 46} In his third assignment of error, appellant argues that the trial court’s finding that appellant committed fraud is against the manifest weight of the evidence. Appellant contends that the facts do not support a finding that he recorded an invalid deed with knowledge of its falsity, or with the intent of misleading another. Appellant further asserts that the trial court failed to set forth the factual findings to support its conclusion that appellant committed fraud.
{¶ 47} Appellee counters that appellant’s failure to request Civ.R. 52 findings of fact and conclusions of law forfeits the right to argue that the trial court erred by failing to set forth specific factual findings regarding its fraud finding. Appellant agrees that “[n]ormally,” his failure to request Civ.R. 52 factual
findings and conclusions of law means that “this Court should automatically affirm the trial court’s finding of fraud.” He contends, however, that this rule does not apply because he acted “pro se and did not know the civil rules of procedure.” Civ.R. 52 provides:
When questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing requests otherwise * * * in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.
The purpose of Civ.R. 52 findings of fact and conclusions of law is “‘to aid the appellate court in
reviewing the record and determining the validity of the basis of the trial court’s judgment.’” In
re Adoption of Gibson,
appellate review is limited. Pettet v. Pettet,
“[W]hen separate facts are not requested by counsel and/or supplied by the court the challenger is not entitled to be elevated to a position superior to that he would have enjoyed had he made his request. Thus, if from an examination of the record as a whole in the trial court there is some evidence from which the court could have reached the ultimate conclusions of fact which are consistent with [its] judgment the appellate court is bound to affirm on the weight and sufficiency of the evidence.
The message is clear: If a party wishes to challenge the * * * judgment as
being against the manifest weight of the evidence he had best secure separate
findings of fact and conclusions of law. Otherwise his already ‘uphill’ burden of
demonstrating error becomes an almost insurmountable ‘mountain.’”
Accord Bugg; McCarty v. Hayner, 4 th Dist. Jackson No. 08CA8,
Ohio App.3d 270,
“‘[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment must be made in favor of the judgment and the finding of facts. * * *
If the evidence is susceptible of more than one construction, the reviewing court is
bound to give it that interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and judgment.’”
Id., quoting Seasons Coal Co., Inc. v. Cleveland,
“It is the trier of fact’s role to determine what evidence is the most credible and convincing. The fact finder is charged with the duty of choosing between two competing versions of events, both of which are plausible and have some factual support. Our role is simply to insure the decision is based upon reason and fact. We do not second guess a decision that has some basis in these two factors, even if we might see matters differently.” In the case at bar, some evidence shows that the trial court based its fraud finding
upon reason and fact.
“Fraud has various elements: (1) a representation (or concealment of a fact
when there is a duty to disclose) (2) that is material to the transaction at hand, (3)
made falsely, with knowledge of its falsity or with such utter disregard and
recklessness as to whether it is true or false that knowledge may be inferred, and
(4) with intent to mislead another into relying upon it, (5) justifiable reliance, and
(6) resulting injury proximately caused by the reliance. Burr v. Stark Cty. Bd. of
Commrs. (1986),
intended to lead the recorder’s office to believe that the deed was valid and that he owned the property. This evidence could have allowed the trial court to conclude that appellant intended to mislead the recorder’s office into accepting the deed as valid, thus giving him sole ownership of the property. Consequently, the record does in fact contain some evidence to support the two fraud elements that appellant challenges. We must presume the regularity of the trial court’s proceedings and affirm its judgment.
{¶ 58} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s third assignment of error.
IV
{¶ 59}
In his fourth assignment of error, appellant contends that the trial court improperly
ordered appellant to pay attorney fees. Appellant asserts that the court could not award attorney
fees unless it awarded punitive damages, or found that appellant acted with malicious intent.
Initially, we again observe that appellant did not file a Civ.R. 52 request for
factual findings and legal conclusions. Thus, our review is limited. We will presume the
regularity of the trial court’s decision and affirm if some evidence supports its attorney fee
award.
Ordinarily, a party who prevails in a civil action may not recover attorney fees.
Wilborn v. Bank One Corp.,
Nottingdale Homeowners’ Assn., Inc. v. Darby,
{¶ 62} In the case at bar, appellant asserts that none of the exceptions apply. We believe that the trial court rationally could have determined that appellee demonstrated that appellant acted in bad faith.
{¶ 63}
“Bad faith” embraces more than bad judgment or negligence. State v. Powell,
faith, in the absence of a Civ.R. 52 request for factual findings and legal conclusions, it was not required to do so. Instead, we may uphold its judgment to award attorney fees as long as some evidence supports a finding that appellant acted in bad faith. Here, some evidence certainly shows that appellant acted in bad faith in his
attempt to gain ownership of the property. Appellant presented a deed to a notary that contained a signature that purported to be Darwin’s. Some evidence shows, however, that Darwin could not have signed the deed. Thus, some evidence shows that appellant’s claim that Darwin signed the deed is patently false. Appellant’s motivation in attempting to record a deed with a forged signature would be to obtain title to the property by deception. His purpose was dishonest. It was more than bad judgment or negligence. Instead, some evidence shows that appellant was consciously aware of his wrongdoing. Thus, the foregoing facts constitute some evidence to support the trial court’s attorney fee award. We therefore disagree with appellant that the trial court erred by awarding appellee attorney fees. Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s
fourth assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
[Cite as
Fultz v. Fultz
,
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Pickaway County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, J.: Concurs in Judgment & Opinion
McFarland, J.: Dissents
For the Court BY: Peter B. Abele Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
[1] Although Unger was a criminal case, Ohio appellate courts routinely
apply the analysis to trial court continuance decisions in civil
cases. E.g., Frodyma v. Frodyma, 2 nd Dist. Greene No. 2013-CA-40,