Brown v. Lehman, Unpublished Decision (11-3-2000)
Brown v. Lehman, Unpublished Decision (11-3-2000)
Opinion of the Court
OPINION
Appellant Jeanne Brown appeals the decision of the Guernsey County Court of Common Pleas, which granted Appellee E. Eugene "Gene" and Karen Lehman's motion for new trial. The relevant facts leading to this appeal are as follows. The Lehmans, hereinafter "appellees", were the owners of a large home and real estate located at 633 Upland Road, Cambridge, Ohio. In January 1992, appellant offered to buy the property from appellee with the intent of operating a "bed and breakfast" business. However, the deal did not go forward due to financing roadblocks. Eventually, appellees agreed to lease the property to appellant for a term of five years, with an option to extend the lease for additional terms. Under the terms of lease, appellant was afforded the opportunity to recoup certain portions of the cost of her permanent improvements to the property. Upon execution of lease, appellant took possession of the property and named it the "Clare Inn." She operated the business for several years and made various improvements thereon. In November 1995, William and Karen Taylor visited the inn and expressed in interest in purchasing the premises, apparently believing that appellant was the owner. Appellant ultimately made the Taylors aware of the ownership of appellees, who decided to pursue the sale of the property to the Taylors. However, appellees desired that appellant contract separately with the Taylors to account for compensation for appellant's improvements to the property and her leasehold interest. In January 1996, appellant and the Taylors entered into an agreement whereby appellant assigned her interest in the lease to the Taylors, who agreed in turn to pay appellant fifty thousand dollars (in three unequal installments) for her interest in the lease, all improvements made to the property, and the furnishings on the premises. The agreement was made contingent upon appellant obtaining the written consent of appellees to the assignment of lease. The Taylors soon took possession of the premises, even though appellees argued they never gave consent to the above agreement. The closing of the agreement, scheduled for March 15, 1996, did not go forward when the Taylors failed to appear. Appellee decided that appellant was in default of the original lease based on her vacating of the premises, and the Taylors refused to make further payments to appellant or return any furnishings. Appellant took the position that appellees and the Taylors conspired to divest her of her interests in the inn property, and filed suit to obtain credit for improvements, a return of furnishings, and/or possession of the premises. The matter proceeded to jury trial on July 26 through July 30, 1999, with Judge David A. Ellwood presiding. The jury returned identical verdicts against appellees and the Taylors for $102,895 in compensatory damages and $75,000 in punitive damages, plus attorney fees. On August 6, 1999, appellees filed a motion for judgment notwithstanding the verdict or new trial. On September 22, 1999 Judge Ellwood filed an entry voluntarily recusing himself from further proceedings. He stated therein that his "impartiality might reasonably be questioned concerning the disputed evidentiary facts, based upon his aliunde information from the Jurors and conduct of the counsel in this case." Judgment Entry, September 22, 1999. Judge Ellwood then requested the Chief Justice of the Supreme Court of Ohio to assign another judge. On October 18, 1999, the Chief Justice appointed Judge Knapp to preside over the rest of the case. Following a hearing on February 25, 2000, Judge Knapp sustained the motion for new trial. Appellant filed her notice of appeal on March 21, 2000, and herein raises the following five Assignments of Error:I. THE ENTRY OF JUDGE KNAPP SUSTAINING THE MOTION FOR NEW TRIAL CONSTITUTES REVERSIBLE ERROR AS IT FAILS TO ARTICULATE THE FACTUAL BASIS FOR THE DETERMINATION.
II. BY SUSTAINING THE MOTION FOR NEW TRIAL, JUDGE KNAPP COMMITTED REVERSIBLE ERROR SINCE HE DID NOT PERSONALLY OBSERVE THE TRIAL AND DID NOT HAVE ACCESS TO FINDINGS OF FACT TO SUPPORT THE JUDGMENT OF JUDGE ELLWOOD.
III. JUDGE KNAPP, THE SUCCESSOR JUDGE, COMMITTED REVERSIBLE ERROR IN FINDING THAT THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF LIABILITY.
IV. JUDGE KNAPP COMMITTED REVERSIBLE ERROR IN SUSTAINING THE MOTION FOR NEW TRIAL ON THE BASIS OF EXCESSIVE DAMAGES.
V. THE ACTIONS OF JUDGE ELLWOOD SURROUNDING HIS VOLUNTARY RECUSAL WERE PREJUDICIAL AND TAINTED THE SUBSEQUENT APPOINTMENT OF JUDGE KNAPP, AND IN TURN, THE SUSTAINING OF THE MOTION FOR NEW TRIAL.
Defendant's Motion For New Trial SUSTAINED on the basis excessive damages were given under influence of passion or prejudice, and the judgment is NOT SUSTAINED by the weight of the evidence (see record).
Civil Rule 59(A), by its text, does not define in detail the extend to which a trial court must articulate out its basis for granting a new trial. It merely directs that "[w]hen a new trial is granted, the court shall specify in writing the grounds upon which such new trial is granted." However, in Antal v. Olde Worlde Products, Inc. (1984),
By using the disjunctive mode, the above rule does not contemplate that a post-trial successor judge appointment requires both a jury verdict and the prior rendering of findings of fact and conclusions of law. A plain reading would instead apply the requirement of findings of fact and conclusions of law to non-jury trials. Such a view systematically comports with Civ.R. 52 , which applies only to questions of fact tried by the court without a jury. See, e.g., Bradley v. Tellom Leasing, Inc., (Aug. 26, 1996), Stark App. No. 1995CA00321, unreported. Even if the Civil Rules mandated such findings by Judge Ellwood, appellant waived any error by failing to request same in the trial court. See Kager v. Kager (May 22, 2000), Stark App. No. 1999CA00252, unreported. The authorities cited by appellant, Welsh vs. Brown Graves Lumber Company (1978),
Id. at paragraph four of the syllabus.
The record in the case sub judice reveals no objection or similar response to Judge Ellwood's September 22, 1999, decision to recuse himself until after Judge Knapp's order granting a new trial on February 25, 2000. We find no reasonable justification for such a period of delay by appellant. As noted by the court in Berger, a party should not be permitted to " * * * await the decision with knowledge of the procedural irregularity before choosing to object to the defect if the decision is unfavorable." Id. at 130. From all appearances, this is precisely what transpired in the case sub judice. We therefore hold that appellant has waived appellate review of the recusal of Judge Ellwood. Turning to the issue of the appointment of Judge Knapp, the sole substantiation of appellant's claim that Judge Ellwood and Judge Knapp improperly "discussed" the case is the letter to Chief Justice Moyer of September 22, 1999, wherein Judge Ellwood requested a replacement and named two possible candidates. We agree with appellee's assessment of this correspondence as "an extremely thin reed" by which to make accusations of impropriety. Appellee's Brief at 25. Moreover, our ability to review the appointment per se is minimal, if not nonexistent: With respect to the assignment of an out-of-county judge to a court of common pleas, Civ.R. 63 merely implements the grant of power found in Section
Adkins v. Adkins (1988),
We therefore find no error in the recusal and appointment procedures utilized below. Appellant's Fifth Assignment of Error is overruled. For the reasons stated in the foregoing opinion, the decision of the Court of Common Pleas, Guernsey County, Ohio, is hereby affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
______________________ Wise, J.
Farmer, P.J., and Reader, V. J., concur.
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