[Cite as First Fed. Bank of Ohio v. Angelini, 2010-Ohio-2300.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY



FIRST FEDERAL BANK OF OHIO,                                      CASE NO. 3-09-03

   PLAINTIFF-APPELLEE,

  v.

JOHN ANGELINI, JR., ET AL.,

   DEFENDANTS-APPELLEES,

 and                                                               OPINION

TRUSTEE IN BANKRUPTCY FOR
THE ESTATE OF JEFFREY J.
ANGELINI,

   DEFENDANT-APPELLANT.



                Appeal from Crawford County Common Pleas Court
                           Trial Court No. 03-CV-0098

                                      Judgment Affirmed

                              Date of Decision: May 24, 2010



APPEARANCES:

        Timothy A. Shimko for Appellant

        Stephen E. Chappelear for Appellee First Federal Bank of Ohio
Case No. 3-09-03




SHAW, J.

      {¶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 under 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 any

check drawn on that account. As a result of this action, United Bank dishonored


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several checks written by Joyce payable to First Federal totaling $842,579.19.

First Federal’s Vice President of Loans, Rod Vose, called John to notify him that

United Bank dishonored the checks. Upon receiving Vose’s phone call, John left

his dealership and walked the block up the street to First Federal’s place of

business. There he met with Vose, First Federal’s President, Thomas Moore, and

First Federal’s Legal Counsel, Richard Hottenroth to discuss the situation.

       {¶4} John, Vose, Moore and Hottenroth attempted to negotiate a method

for John and Joyce to repay the debt incurred 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

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additional properties which were collectively owned by John, Joyce and Jeffrey

each having a one-third interest.1           On January 12, 2001, Vose, Moore and

Hottenroth met with John at his dealership. However, the following testimony

regarding the conversations that took place at this meeting depicts two divergent

scenarios.

        {¶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


1
 These properties are known as 201 Erie Avenue, Huron, Ohio and 9680 State Route 314, Lexington,
Ohio, and referred to as such through the trial.


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properties partially titled in Jeffrey’s name. By signing these documents, Jeffrey

became the cosigner and guarantor on John and Joyce’s Bad Check Loan.

However, Jeffrey’s obligation as guarantor was limited to value of the property

that he mortgaged.    In addition, the documents made arrangements for First

Federal to receive the refinancing proceeds from the Sanibel Island property once

that transaction was complete.

      {¶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

Joyce concerning which property was going to be released from the Bad Check

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Loan first or how the Sanibel Island proceeds were to be applied. Moreover, none

of the documents mentioned threats of prosecution, a schedule of property releases

or a specific application of the Sanibel Island funds. After the hour-long meeting,

John, Joyce and Jeffrey signed the documents.

      {¶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. Specifically, 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

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partially titled in Jeffrey’s name—thereby releasing Jeffrey as a guarantor. John

and Joyce both testified that First Federal verbally agreed to release Jeffrey’s

properties upon receiving the first payment of $300,000 and to give them a

“schedule of release” documenting the order in which the properties were to be

released upon payment. John and Joyce testified that they would not have signed

the documents absent this agreement.

      {¶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

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extending the maturity date of the Bad Check Loan. Over the next several months,

John, Joyce and Jeffrey signed four additional renewal notes. The final renewal

note set November 14, 2001 as the date of payment. However, as of this date,

John, Joyce and Jeffrey still owed a substantial amount on the loan obligation.

First Federal did not offer an additional renewal and the Bad Check Loan was in

default.

       {¶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 court’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

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his parents’ Bad Check Loan on which a balance of $340,735,46 remained

outstanding. Jeffrey asserted three affirmative defenses: (1) Jeffrey claimed that

First Federal received payment for his part of the loan obligation but that it

wrongfully applied the payment to his parents’ other loan obligations; (2) Jeffrey

claimed that First Federal obtained his participation in the Bad Check Loan

transaction by fraudulently misrepresenting to him that it would apply any

payment on his parents’ loan to his part of the obligation first, when instead it

planned to apply any payment to his parents’ other obligations; (3) Jeffrey claimed

that he participated in the Bad Check Loan transaction under duress because First

Federal threatened to seek his father’s prosecution for check kiting.

        {¶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




2
  Galion Building and Loan (“Galion”) was an original party to this action and was a creditor of John and
Joyce Angelini. Galion held mortgages on John and Joyce’s property which were subordinate to First
Federal’s claim. Galion also asserted a claim of fraud against First Federal. As the basis for this claim,
Galion maintained that First Federal’s alleged fraud against John, Joyce and Jeffrey on the Bad Check Loan
caused it to suffer economic damages. However, at the conclusion of the counterclaim evidence presented
at trial, the trial court granted First Federal’s motion for a directed verdict and dismissed Galion’s case
finding that it failed to present any evidence to support its fraud claim against First Federal.


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       {¶17} The jury trial commenced on January 26, 2009 and lasted eight days

with each side presenting several hours of testimony from witnesses and

submitting hundreds of pages of written exhibits. After the defense rested its case,

the trial court provided the jury, both orally and in writing, with its instructions on

the law. After closing arguments by counsel, the trial court provided the jury with

written interrogatories and verdict forms.

       {¶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.      However, 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 question

followed with each part corresponding to an essential element of the counterclaim.

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       {¶20} In part 5(A), the jury wrote down the false statements they believed

First Federal made to Jeffrey to induce his consent to sign the loan documents,

stating “application of funds from Sanabel Island [sic], schedule of release, release

of property (Jeff’s)”. However, interrogatory 5(B) asked if Jeffrey proved that he

relied on those false statements when he agreed to cosign and guaranty the loan.

The jury answered “No” finding that Jeffrey did not rely on the false statements by

agreeing to sign the loan documents. Finally interrogatory 5(C) asked if Jeffrey

proved his reliance on the false statements was “reasonable in all the

circumstances.” The jury answered “Yes” despite finding in the previous question

that Jeffrey did not rely on those statements.

       {¶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 Civ. R. 49(B) which are available to the court when the answers to




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the interrogatories are inconsistent with the general verdict.3 Counsel for both

parties agreed with the judge’s decision to send the interrogatory and verdict forms

back to the jury for further deliberation.

         {¶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.


3
  Civ. R. 49(B) provides, in pertinent part, “[w]hen one or more of the answers is inconsistent with the
general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers,
notwithstanding the general verdict, or the court may return the jury for further consideration of its answers
and verdict or may order a new trial.”


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      On Jeffrey Angelini’s counterclaim against First Federal for
      fraud, we find [mark a “X” in the applicable blank space]:

      __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 greater weight of the
      evidence that First Federal promised him it would release its
      mortgages on the properties at 201 Erie Avenue in Huron, Ohio;

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      and at 9680 State Route 314 in Lexington, Ohio before it
      released the other mortgages it received in that transaction?
      [insert “Yes” or “No”] __Yes__.

            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 statements 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 reasonable 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”___

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                 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 jury 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


4
  At the time of this suit, $340,735.46 remained outstanding on the Bad Check Loan. First Federal applied
$300,000 from the Sanibel Island Proceeds to the Floor Plan Loan. Essentially, the jury found that had
First Federal applied the $300,000 to the Bad Check Loan, Jeffrey still owed the remaining $40,735.46 as
the cosigner and guarantor.



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       {¶27} Second, the judge believed that the revised answer to interrogatory

5(B) [stating Jeffrey relied on First Federal’s fraudulent statements by agreeing to

cosign and guaranty John and Joyce’s Bad Check Loan] was inconsistent with: 1)

interrogatory answer 1 [stating Jeffrey had some remaining obligation as a

cosigner and guarantor of parents’ Bad Check Loan]; and 2) paragraph 1 of the

verdict [First Federal should recover some money from Jeffrey Angelini as

cosigner and guarantor of that loan].

       {¶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 apparent 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

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interrogatory answers quoted above are the final verdict and interrogatory answers

now under appeal.

       {¶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 Civ. R. 49(B).




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       {¶33} Jeffrey timely filed his appeal to this Court asserting the following

assignments of error.

                           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 discretion 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.




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           Inconsistencies with the Interrogatory Answers and Verdicts

       {¶36} When one or more of the interrogatory answers is inconsistent with

the general verdict, Civ. R. 49(B) provides for three options available to the court.

The court may (1) enter judgment in accordance with the answers, (2) return the

jury for further consideration of its answers, or (3) order a new trial. The decision

to exercise any one of these options is within the sound discretion of the trial court

and will not be disturbed absent an abuse of discretion.            Tasin v. SIFCO

Industries, Inc. (1990), 50 Ohio St.3d 102, paragraph one of the syllabus,

553N.E.2d 257. An abuse of discretion connotes more than an error of law or

judgment and implies that the trial court’s attitude in reaching its decision was

arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219, 450 N.E.2d 1140. Additionally, we note that a trial court’s

decision in exercising these three options should reflect the degree of confidence

that the court has in the jury’s ability to resolve the inconsistency “without

compromising the fairness of the process or the integrity of the result.” See

Phillips v. Dayton Power and Light Co. (1996), 111 Ohio App.3d 433, 448, 676

N.E.2d 565.

       {¶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

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Case No. 3-09-03



on the loan by fraud and that Jeffrey signed the note under duress. These findings

are in conflict with one another. First Federal cannot recover anything from

Jeffrey if it fraudulently obtained his approval to cosign on the Bad Check Loan or

if it obtained his approval under duress. Moreover, the interrogatory answers and

the verdict are inconsistent with the instructions that the trial court gave the jury.

          {¶38} The instructions entitled “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 the 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.




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Notably, the court read this section to the jury after they returned from

deliberations for the second time and prior to sending them to further deliberate

for the third time. The court also instructed the jury to reread and consider this

section as they deliberated.

       {¶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 and verdict forms to the jury to deliberate again

would not assist the jury to resolve the inconsistencies. Under Civ. R. 49(B) two

options remained available to the trial court.        It could enter judgment in

accordance with the answers, notwithstanding the verdict, or order a new trial.

Because the answers to the interrogatories and the verdict rested on the same

fundamental inconsistency the trial court could not enter judgment on the jury’s

answers. Therefore, the only remaining choice for the trial court was to order a

new trial.   Accordingly, we cannot conclude that the trial court abused its

discretion in ordering a new trial pursuant to Civ. R. 49(B).

                          Misconduct of Jeffrey’s Counsel

       {¶41} In its final judgment entry granting the mistrial, the trial 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

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and/or as to the examination of certain witnesses. In most instances, counsel not

only defiantly disregarded specific rulings by the trial court by proceeding to make

the prohibited arguments to the jury and/or to conduct the prohibited inquiry with

a witness, but then proceeded to argue with the trial judge in front of the jury

whenever the judge would remind counsel of the prior rulings of the court.

         {¶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 trial was fully warranted under Civ. R.

49(B) apart from any issue of attorney misconduct.                           Accordingly, we find it


5
  During the trial proceedings and even in the briefs submitted to this Court, Attorney Shimko repeatedly
accuses Judge Markus of being biased and partial to First Federal’s case, up to and including accusing
Judge Markus of being an advocate for First Federal by contriving the grounds for which a mistrial could
be granted. Despite Judge Markus’ denial of any bias, repeated requests to Attorney Shimko to refrain
from making such accusations and eventual threat of criminal contempt, Attorney Shimko continued to
launch attacks on the judge’s objectivity and impartiality.
6
  See Prof. Cond. Rule 8.2(a) which states, in pertinent part: “A lawyer shall not make a statement that the
lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judicial officer, or candidate for election or appointment to judicial office.” See also Jud.
Cond. Rule 2.15(B) which states, in relevant part: “A judge having knowledge that a lawyer has committed
a violation of the Ohio Rules of Professional Conduct that raises a question regarding the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.”


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unnecessary to discuss whether the conduct of Attorney Shimko independently

satisfied the standards for granting a new trial pursuant to Civ. R. 59(A)(2), except

to say that we find no abuse of discretion on the part of the trial court in referring

to the misconduct of counsel as an additional basis for granting the mistrial.

       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 Civ. R. 49(B). Accordingly, both of Jeffrey’s assignments

of error are overruled.

       {¶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




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