[Cite as Wagner v. Strip,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

SCOTT A. WAGNER : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellant / : Hon. Sheila G. Farmer, J. Cross-Appellee : Hon. John W. Wise, J.

-vs- : : Case No. 11-CA-82 A.C.STRIP, ESQ., ET AL. : : : Defendant-Appellee / : Cross-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 07 CV 00981

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: October 19, 2012

APPEARANCES:

For Appellant: For Appellee:

SCOTT A. WAGNER #455-592 RICK E. MARSH Oakwood Correctional Facility EDWARD G. HUBBARD 3200 North West Street Two Miranova Place, Suite 500 Lima, OH 45801 Columbus, OH 43215 Delaney, P.J.

{¶1} Plaintiff-Appellant/Cross-Appellee Scott A. Wagner appeals the July 27,

2011 judgment entry of the Licking County Court of Common Pleas. Defendant-

Appellee/Cross-Appellant A.C. Strip, Esq. appeals the trial court May 13, 2008 denial

in part of his motion for summary judgment on Wagner’s complaint.

FACTS AND PROCEDURAL HISTORY

{¶2} On September 4, 2004, the Licking County Court of Common Pleas

sentenced Wagner to 89 years in prison following his conviction by a jury for 88 counts

involving sexual abuse of 11 boys.

{¶3} Following his conviction, some of Wagner’s victims filed a civil lawsuit

against Wagner in the Licking County Court of Common Pleas captioned Nathanial P.

Stockdale, et al. v. Scott Wagner, et al., Licking C.P. No. 03CV820-TMM. The trial

court appointed attorney A.C. Strip as a receiver for the purpose of preserving

Wagner’s limited assets in order to satisfy the terms of any potential judgment. (Sept.

25, 2003, Judgment Entry.) Strip had previous experience acting as a court-appointed

receiver. The plaintiffs in the action dismissed Wagner from the case on October 21,

2005 and the case was ultimately dismissed on January 23, 2006. On July 10, 2006,

the trial court terminated the receivership. Wagner attempted to appeal from the July

10, 2006 judgment entry, but this Court dismissed the appeal as untimely.

{¶4} On July 2, 2007, Wagner filed a complaint against Strip and Aaron C.

Firstenberger, Esq. alleging negligence, breach of fiduciary duty, breach of contract,

negligent/intentional infliction of emotional distress, and legal malpractice as a result of Strip’s actions as receiver. The complaint contained a jury demand. The trial court

dismissed Firstenberger from the action.

{¶5} Strip filed a motion for summary judgment on March 10, 2008. On May

13, 2008, the trial court granted in part and denied in part the motion for summary

judgment. The trial court granted summary judgment in favor of Strip as to Wagner’s

claims for breach of contract, negligent/intentional infliction of emotional distress, and

legal malpractice. The trial court found there were genuine issues of material fact as

to Wagner’s claims for negligence and breach of fiduciary duty. The matters of which

Wagner claimed Strip was negligent and/or breached his fiduciary duty included the

sale of Wagner’s 1997 Mazda truck, the filing and payment of Wagner’s income and

property taxes, and the management of Wagner’s rental property located at Allston

Avenue.

{¶6} The case progressed through a contentious discovery process. Wagner

requested that he be allowed to appear in person for trial. The trial court denied the

motion and the case proceeded to trial before the court through trial briefs and reply

memorandum.

{¶7} On July 27, 2011, the trial court granted judgment in favor of Strip on the

remaining issues of negligence and breach of fiduciary duty.

{¶8} It is from this judgment Wagner and Strip now appeal.

APPELLANT WAGNER’S ASSIGNMENTS OF ERROR

{¶9} Wagner raises six Assignments of Error:

{¶10} “I. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION

TO THE PREJUDICE OF APPELLANT IN ITS SEPTEMBER 2, 2008 JUDGMENT ENTRY DENYING APPELLANT’S MOTION TO COMPEL AMERICAN WAVE AUTO,

LLC’S PRODUCTION OF DOCUMENTS, THEREBY DEPRIVING APPELLANT OF

HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY

THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND

COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION. (SEPTEMBER 2,

2008 JUDGMENT ENTRY.)

{¶11} “II. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION

TO THE PREJUDICE OF APPELLANT IN ITS MAY 27, 2010 JUDGMENT ENTRY

DENYING APPELLANT’S MOTIONS LEAVE TO CONDUCT WITNESS

DEPOSITIONS VIA TELEPHONE, THEREBY DEPRIVING APPELLANT OF HIS

RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND

COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION. (MAY 27, 2010

JUDGMENT ENTRY.)

{¶12} “III. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION

TOT HE [SIC] PREJUDICE OF APPELLANTS IN ITS (1) AUGUST 20, 2010

JUDGMENT ENTRY DENYING APPELLANT’S FEBRUARY 10, 2010 MOTION TO

COMPEL DISCOVERY AND (2) SEPTEMBER 14, 2010 JUDGMENT ENTRY

DENYING APPELLANT’S AUGUST 12, 2010 MOTION TO COMPEL DISCOVERY,

THEREBY DEPRIVING OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF

LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION. (AUGUST 20, 2010 JUDGMENT ENTRY; SEPTEMBER 14, 2010

JUDGMENT ENTRY.)

{¶13} “IV. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION

TO THE PREJUDICE OF APPELLANT IN DENYING APPELLANT’S REQUEST TO

BE PRESENT AT TRIAL, THUS, DEPRIVING APPELLANT OF HIS RIGHT TO A

FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND

COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION. (SEPTEMBER 14,

2010 JUDGMENT ENTRY.)

{¶14} “V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR TO THE

PREJUDICE OF APPELLANT IN ALL COUNTS BY TRYING THIS MATTER BEFORE

THE BENCH WHEN A JURY TRAIL [SIC] WAS DEMANDED AND NOT WAIVED

PURSUANT TO OHIO CIVIL RULES OF PROCEDURES 39(A), THEREBY

VIOLATING APPELLANT’S RIGHT TO TRIAL BY JURY AS GUARANTEED BY THE

SEVENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND

COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION. (NOVEMBER 2,

2010 JUDGMENT ENTRY.)

{¶15} “VI. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT (1) FOUND THAT APPELLANT FAILED TO MEET HIS BURDEN OF

PROOF BY A PREPONDERANCE OF EVIDENCE, AND (2) GRANTING JUDGMENT

IN FAVOR OF APPELLEE-DEFENDANT A.C. STRIP, ESQ., AS SUCH

CONCLUSIONS ARE CONTRARY TO LAW AND ARE NOT SUPPORTED BY

EVIDENCE. (JULY 27, 2011 JUDGMENT ENTRY.)” CROSS-APPELLANT STRIP’S ASSIGNMENT OF ERROR

{¶16} “THE TRIAL COURT ERRED IN NOT GRANTING SUMMARY

JUDGMENT TO A.C. STRIP AS TO ALL CLAIMS IN ITS MAY 13, 2008 JUDGMENT

ENTRY.”

WAGNER’S APPEAL

I. – III.

{¶17} Wagner argues in his first, second, and third Assignments of Error the

trial court abused its discretion in denying his pretrial discovery-related motions. We

disagree.

{¶18} We analyze the three Assignments of Error together because they

involve the same standard of review. In the regulation of discovery, the trial court has

discretionary power and its decisions will not be overturned absent an abuse of that

discretion. Mauzy v. Kelly Servs., Inc.,

,

(1996); State ex rel. Daggett v. Gessaman,

,

(1973). An appellate court reviews a claimed error relating to a discovery matter under

an abuse-of-discretion standard. Lightbody v. Rust,

,

(8th Dist. 2000); Trangle v. Rojas,

, 2002–Ohio–6510

(8th Dist.). Under this standard, reversal is warranted only where the trial court's

attitude was arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶19} The Ohio Rules of Civil Procedure allow for liberal discovery. Pursuant to

Civ.R. 26(B)(1), the scope of discovery includes “ * * * any matter, not privileged, which

is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other

party * * *.” Trial courts are given broad discretion in the management of discovery.

State ex rel. Daggett v.

Motion to Compel as to American Wave, LLC

{¶20} Wagner filed a motion to compel against non-party American Wave Auto,

LLC to produce certain documents requested by Wagner through a subpoena. The

trial court denied the motion on September 2, 2008.

{¶21} As receiver, Strip sold Wagner’s 1997 Mazda truck to American Wave

Auto, LLC for $800.00. As part of his complaint for negligence and breach of fiduciary

duty, Wagner argued Strip should have sold the Mazda truck for more than $800.00.

In the subpoena, Wagner requested any documents American Wave Auto, LLC had in

its possession relating to the Mazda truck.

{¶22} In his brief, Wagner argues the documents from American Wave Auto,

LLC were important to his case. Civ.R. 26 limits the scope of discovery that to which

is relevant to the subject matter of the action. Wagner has failed to argue how the

documents possessed by American Wave Auto, LLC were relevant to the subject

matter of the alleged breach of the receiver’s duty to preserve Wagner’s assets. Upon

our review, we find no abuse of discretion in the trial court’s decision to deny the

motion to compel. Nor can we say the absence of these documents prevented

Wagner from developing his case against Strip.

{¶23} Wagner’s first Assignment of Error is overruled. Wagner’s Motion to Conduct Witness Depositions by Telephone

{¶24} On April 29, 2010, Wagner requested a general court order to allow him

to take any witness deposition either telephonically, stenographically, or by videotape

pursuant to Civ.R. 30(A). The trial court denied the motion on May 27, 2010.

{¶25} We find no abuse of discretion in the trial court’s decision to deny the

motion. Wagner did not specify in his motion any specific witness that Wagner

required to depose, but rather requested a general court order for any deposition

Wagner may conduct. The trial court’s decision on the motion did not deprive Wagner

of his ability to conduct discovery in preparation for trial because the trial court

permitted Wagner to conduct a deposition by telephone as to a specific witness. Upon

Wagner’s request, the trial court permitted Wagner to conduct a deposition of Strip by

telephone. (Jan. 19, 2010, Judgment Entry.)

{¶26} Wagner’s second Assignment of Error is overruled.

Motions to Compel Discovery

{¶27} Wagner argues the trial court abused its discretion in denying Wagner’s

two motions to compel documents requested from Strip and to continue an interrupted

telephone deposition of Strip. Both motions were fully argued before the trial court

through responses and replies. We have reviewed the arguments and we can find no

abuse of discretion in the trial court’s denial of the February 12, 2010 and August 12,

2010 motions to compel.

{¶28} Wagner’s third Assignment of Error is overruled. IV.

{¶29} In his fourth Assignment of Error, Wagner argues the trial court erred in

not allowing Wagner to be present for trial by denying his Petition for Writ of Habeas

Corpus Ad Testificandum. We disagree.

{¶30} “An individual does not have an absolute right to be present in a civil case

to which he is a party.” In the Matter of Joseph P., 6th Dist. No. L–02–1385, 2003–

Ohio–2217, ¶ 52, citing In re Sprague,

,

(12th

Dist. 1996). More specifically, prisoners have no constitutional right to be personally

present at any stage of the judicial proceedings. Mancino v. Lakewood,

,

(8th Dist. 1987).

{¶31} The decision of whether or not to permit an incarcerated individual to

attend a civil proceeding is a matter within the discretion of the trial court. Waites v.

Waites, 11th Dist. No. 93–L120,

(Mar. 25, 1994), citing

An abuse of discretion is “’more than an error of law or judgment; it implies that

the court's attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v.

Blakemore,

,

(1983).

{¶32} Whether an inmate should be brought to court to personally argue his

case in a civil matter depends upon the particular and unique facts and circumstances

of each case. Mills v. Mills, 10th Dist. No. 10AP-495,

, ¶ 12 citing

Tolliver v. Liberty Mut. Group, 10th Dist. No. 04AP–226, 2004–Ohio–6355, ¶ 8. In

Mancino, the Eighth District set forth the following criteria to be weighed in making this

determination: * * * (1) whether the prisoner's request to be present at trial reflects

something more than a desire to be temporarily freed from prison; (2)

whether he is capable of conducting an intelligent and responsive

argument; (3) the cost and convenience of transporting the prisoner from

his place of incarceration to the courthouse; (4) any potential danger or

security risk the prisoner's presence might pose; (5) the substantiality of

the matter at issue; (6) the need for an early resolution of the matter; (7)

the possibility and wisdom of delaying the trial until the prisoner is

released; (8) the probability of success on the merits; and (9) the

prisoner's interest in presenting his testimony in person rather than by

deposition.

at paragraph two of the syllabus.

{¶33} The Eighth District later determined a trial court need not assess the

Mancino factors on the record where the record is sufficient to show the basis of the

analysis. Mills, supra, at ¶ 13 citing E.B. v. T.J., 8th Dist. No. 86399, 2006–Ohio–441,

¶ 19, citing In re Estate of Dezso (Jan. 18, 2001), 8th Dist. No. 77903.

{¶34} The trial court ordered that this matter would be heard at a bench trial if

Wagner could obtain an attorney; if he could not, the trial court would resolve the

matter through trial briefs. (Sept, 14, 2010, Judgment Entry; Nov. 2, 2010, Judgment

Entry.) Wagner did not secure an attorney and therefore the trial court considered the

parties’ trial briefs in making its decision on the merits. In this case, we find the record

is sufficient to show the basis for the trial court’s decision that this matter could be resolved without Wagner’s presence at trial. Its decision to proceed without Wagner’s

presence was not an abuse of discretion.

{¶35} Wagner’s fourth Assignment of Error is overruled.

V.

{¶36} Wagner next argues his right to a jury trial was violated when the matter

proceeded to a bench trial, rather than a jury trial as requested in his complaint.

{¶37} Civ.R. 39(A) states:

When trial by jury has been demanded as provided in Rule 38, the

action shall be designated upon the docket as a jury action. 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.

{¶38} On September 14, 2010 and November 2, 2010, the trial court ruled that

the matter would proceed to trial on the briefs. Wagner filed no objection to the trial

court’s procedure and submitted trial briefs. Because Wagner failed to object to the

trial court’s procedure, we review the matter under the plain error doctrine.

{¶39} “In appeals of civil cases, the plain error doctrine is not favored and may

be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging the

legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson,

,

(1997), at paragraph one of the syllabus.

{¶40} In Goldfuss, the Court explained that the doctrine shall only be applied in

extremely unusual circumstances where the error complained of, if left uncorrected,

would have a material adverse effect on the character of and public confidence in

judicial proceedings.

. The Court concluded that the public's confidence is

rarely upset merely by forcing civil litigants to live with the errors they themselves or the

attorney chosen by them committed at trial.

at 121–122.

{¶41} In this case, we find there was no plain error for the trial court to act as

fact finder and hear the matter on the briefs. Wagner’s fifth Assignment of Error is

overruled.

VI.

{¶42} Wagner’s final Assignment of Error argues the trial court’s decision to

grant judgment in favor of Strip was against the manifest weight of the evidence. We

disagree.

{¶43} In Eastley v. Volkman,

, 21012-Ohio-2179,

, the Ohio Supreme Court recently clarified the standard of review

appellate courts should apply when assessing the manifest weight of the evidence in a

civil case. SST Bearing Corp v. Twin City Fan Companies, Ltd., 1st Dist. No. C-

110611,

. The Ohio Supreme Court held the standard of review

for manifest weight of the evidence for criminal cases stated in State v. Thompkins,

,

(1997), is also applicable in civil cases. Eastley, at ¶

17-19. A reviewing court is to examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses, and determine “whether in

resolving conflicts in the evidence, the finder of fact clearly lost its way and created

such a manifest miscarriage of justice that the judgment must be reversed and a new

trial ordered.” Eastley, at ¶ 20 quoting Twearson v. Simon,

,

(9th Dist. 2001); See also Sheet Metal Workers Local Union No. 33 v.

Sutton, 5th Dist No. 2011CA00262,

citing State v. Martin,

,

(1st Dist. 1983).

{¶44} “In a civil case, in which the burden of persuasion is only by a

preponderance of the evidence, rather than beyond a reasonable doubt, evidence

must still exist on each element (sufficiency) and the evidence on each element must

satisfy the burden of persuasion (weight).” Eastley, at ¶ 19.

{¶45} In the case of Nathanial P. Stockdale, et al. v. Scott Wagner, et al.,

Licking C.P. No. 03CV820-TMM, the trial court appointed Strip as a receiver pursuant

to R.C. 2735.10 to preserve Wagner’s assets in order to satisfy any potential judgment

against Wagner. The receivership was terminated on July 10, 2006. Following an

unsuccessful appeal of the termination of the receivership, Wagner filed a complaint

against Strip arguing in pertinent part Strip was negligent and committed a breach of

his fiduciary duty as receiver.

{¶46} At trial, Wagner raised seven issues that he alleged demonstrated Strip’s

negligence and breach of his fiduciary duty: (1) the sale of Wagner’s 1997 Mazda

truck for $800.00; (2) Strip’s failure to file Wagner’s personal income tax returns; (3) late payments on the property taxes for Wagner’s rental property at Allston Avenue;

(4) failure to repair the roof on the Allston Avenue property; (5) lax property

management of the Allston Avenue property; (6) failure to obtain insurance on the

Allston Avenue property; and (7) failure to pay mortgage payments on the Allston

Avenue property. The trial court analyzed each issue with the facts in evidence and

found that Wagner failed to meet his burden to establish that Strip had a duty as a

receiver as to those issues or that Wagner suffered damages.

{¶47} A receiver “has a personal duty to faithfully discharge his or her duties

and to obey the orders of the court. The receiver acts in a fiduciary capacity and must

use ordinary care in administering the assets of the corporation. If the receiver

exceeds the authority granted by the court or fails to use ordinary care, the general

rule is that he or she may be sued in a personal capacity.” INF Ent., Inc. v. Donnellon,

,

(1st.Dist. 1999). “[I]n order to establish a

cause of action for negligence, the plaintiff must show (1) the existence of a duty, (2) a

breach of duty, and (3) an injury proximately resulting therefrom.” Armstrong v. Best

Buy Co., Inc.,

, 2003–Ohio–2573,

, citing

Menifee v. Ohio Welding Prods., Inc.,

,

(1984).

{¶48} We have reviewed the trial briefs and submitted evidence. We find the

decision of the trial court to grant judgment in favor of Strip and to dismiss Wagner’s

complaint was supported by the manifest weight of the evidence. The evidence shows

Strip used ordinary care in discharging his duty as receiver to administer Wagner’s

assets.

{¶49} Wagner’s sixth Assignment of Error is overruled. STRIP’S CROSS-APPEAL

{¶50} In Strip’s cross-appeal, he argues in his sole Assignment of Error that

the trial court erred when it denied its motion for summary judgment on Wagner’s

claims of negligence and breach of fiduciary duty.

{¶51} Based on our affirmation of the trial court’s judgment in favor of Strip, we

find Strip’s cross-appeal to be moot.

CONCLUSION

{¶52} The six Assignments of Error of Plaintiff-Appellant/Cross-Appellee Scott

A. Wagner are overruled.

{¶53} The sole Assignment of Error of Defendant-Appellee/Cross-Appellant

A.C. Strip is moot.

{¶54} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Farmer, J. and

Wise, J. concur.

HON. PATRICIA A. DELANEY

HON. SHEILA G. FARMER

HON. JOHN W. WISE

PAD:kgb IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

: SCOTT A. WAGNER : : Plaintiff - Appellant / : JUDGMENT ENTRY Cross - Appellee : : -vs- : : Case No. 11-CA-82 A.C. STRIP, ESQ., et al. : : Defendant - Appellee / : Cross - Appellant :

For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.

HON. PATRICIA A. DELANEY

HON. SHEILA G. FARMER

HON. JOHN W. WISE