Chemical Bank of New York v. Neman

Decision Date03 July 1990
Docket NumberNo. 89-1111,89-1111
Citation556 N.E.2d 490
PartiesCHEMICAL BANK OF NEW YORK, Appellee, v. NEMAN, Appellant.
CourtOhio Supreme Court

Appellant, Patrick J. Neman, is an attorney. Among his clients was Francis E. Rottmayer, who was involved in real estate ventures. Rottmayer was either the sole or majority shareholder in Eastgate Realty Company, Inc., which owned the Eastgate Shopping Center in Akron.

Appellee, Chemical Bank of New York obtained a judgment against Rottmayer in a New York state court for $879,536.58 plus interest. The bank commenced proceedings to enforce this judgment against Rottmayer in the Court of Common Pleas of Medina County.

The bank conducted a debtor's examination of Rottmayer on August 11,1980. Neman appeared as Rottmayer's counsel. At the examination, Neman told Chemical Bank's counsel that he either had or would be able to get possession of the Eastgate Realty stock certificates, which he was holding as security for unpaid legal fees. According to Gregory Lichko, who represented the bank at the examination, Neman said that the bank should serve any writ of execution on him, and not on his client.

Pursuant to a praecipe filed by Chemical Bank, the court issued a writ of execution directing the Summit County Sheriff to levy on the Eastgate Realty stock certificates (and the stock of several other Rottmayer-owned corporations) in Neman's possession. On August 19, Deputy Sheriff Andrew Carrano went to Neman's office in Akron and served the writ on Neman. The attempt to attach the stock was unsuccessful. Deputy Carrano made the following notation on the execution jacket:

"X-8-19-80 Served Mr. Neman[. H]e did not have any of the Stock Certificates in his possession. Mr. Neman to get in touch with Mr. Lichko & work this out. 2:59 pm. A.W. Carrano."

Sometime between August 19 and September 16, Neman telephoned the bank's New York counsel and said that he did not have possession of the stock. Upon learning that Neman claimed not to have the stock, Lichko attempted to levy on the stock by serving a writ of execution on Rottmayer. The bank made further efforts directed toward Rottmayer, which continued until 1982.

In his answer to the complaint, Neman averred that he did not have possession of the stock on August 19, 1980. At trial, he stated that he had the stock at his home, where he kept important documents, and not at the office. This assertion was corroborated by a 1982 letter from Neman to Lichko, in which Neman said that he "has had possession of the Eastgate [Realty] stock since January 2, 1980, as security for accrued legal fees * * *."

In the meantime, Eastgate Realty apparently defaulted on two mortgages held on Eastgate Shopping Center. The mortgage holders filed foreclosure actions on September 26 and September 29, 1980. The property was initially placed in receivership. On June 29, 1982, the day before the sheriff's sale was to be held, Rottmayer and Eastgate Realty filed voluntary petitions in bankruptcy. Eastgate Shopping Center was finally sold in 1983, under supervision of the bankruptcy court. The amount realized was barely sufficient to pay the mortgage liens, back taxes, and transaction costs.

Chemical Bank filed the instant action against Neman seeking recovery of an amount equal to the value of the Eastgate Realty stock on August 19, 1980. The bank claimed, in effect, that it lost the opportunity to satisfy its judgment by levying on the Eastgate Realty stock because Neman fraudulently stated that he did not have it in his possession when Dep. uty Carrano served the writ of execution. The jury returned a general verdict in favor of the bank for $972,500 in compensatory damages and $50,000 in punitive damages. The jury also answered eleven special interrogatories. 1 The judgment was affirmed by a divided court of appeals.

This cause is before the court pursuant to the allowance of a motion to certify the record.

Weick, Gibson & Lowry, Michael J. Moran, Leslie S. Graske, Cuyahoga Falls, and Kenneth L. Gibson, Stow, for appellee.

Scanlon & Gearinger Co., L.P.A., Mark Hilkert, Terence E. Scanlon and C. Donald Morris, Akron, for appellant.

BROWN.

Appellant, Neman, attacks the verdict against him on two grounds, both relating to the quantity and quality of the evidence against him. Neman claims that the trial court erroneously failed to direct a verdict in his favor. We find that this issue was not properly raised on appeal. Neman also contends that the record contains insufficient evidence to support the verdict. We find that the record contains sufficient evidence to support the verdict, and affirm the judgment of the court below.

I

Appeal From the Denial of the Directed Verdict

At the close of Chemical Bank's case in chief, Neman moved for a directed verdict on several grounds. The court denied this motion. Neman did not renew the motion at the close of all evidence.

Following the verdict, Neman moved for judgment notwithstanding the verdict ("JNOV") and for a new trial, making some of the same arguments which he used in support of his directed verdict motion. This motion, too, was denied.

Neman's notice of appeal recited that he was appealing "from the final judgment entered in this action * * * and from the judgment overruling defendant's motions for new trial or for judgment notwithstanding the verdict * * *." In his brief to the court of appeals, Neman raised four assignments of error: the first three were related to the denial of the directed verdict motion, the fourth was directed to the weight of the evidence. The brief did not mention the JNOV motion, and Chemical Bank's brief in opposition did not raise the issue of waiver.

The appellate court held that Neman's first three assignments of error were waived because he failed to renew his motion for directed verdict at the close of all evidence. Neman filed an application for reconsideration in which he asked that his assignments of error be construed so that they would refer to the JNOV motion instead of the directed verdict motion. This application was denied.

In the recent case of Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St.3d 71, 529 N.E.2d 464, we reaffirmed the long-standing rule that a motion for directed verdict which is denied at the close of the plaintiff's evidence must be renewed at the close of all evidence in order to preserve the error for appeal. See Cincinnati Traction Co. v. Durack (1908), 78 Ohio St. 243, 85 N.E. 38; Zanesville v. Stotts (1913), 88 Ohio St. 557, 106 N.E. 1051; Youngstown & Suburban Ry. Co. v. Faulk (1926), 114 Ohio St. 572, 151 N.E. 747. Neman acknowledges that this rule governs the instant case, but asks that we "modify" it and hold that his JNOV motion was equivalent to a renewal of the motion for directed verdict.

The record reveals that, though Neman raised some of the same issues in both motions, they are not identical. While Neman asserted at all stages of the proceeding that there was no proof of reliance or damages, his other arguments changed at each turn. 2 Further, while the same standard is used to resolve both types of motion, see, e.g., Cardinal v. Family Foot Care Centers, Inc. (1987), 40 Ohio App.3d 181, 532 N.E.2d 162, a directed verdict motion made at the close of plaintiff's evidence is evaluated on the evidence in the plaintiff's case in chief, see Helmick, supra, 39 Ohio St.3d at 73, 529 N.E.2d at 466, while a JNOV motion is evaluated on all the evidence presented at trial. Thus, it is clear that an appeal from the ruling on a directed verdict motion and an appeal from the ruling on a JNOV motion are sufficiently different, both as a general proposition and on the specific facts before us, that one is not a substitute for the other.

Neman further contends that the court below should not have decided the case on the issue of waiver without allowing him an opportunity to argue the issue. Under App.R. 12(A), a court of appeals is not required to consider issues not argued in the briefs; however, App.R. 12(A) does not prohibit it from doing so in the exercise of its sound discretion. Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198, 202-203, 24 OBR 426, 429-430, 494 N.E.2d 1101, 1104-1105.

As noted, Helmick and its predecessors are controlling. Applying this authority to the case before us, it is clear that Neman waived any claim of error in the denial of the directed verdict by failing to renew his motion at the close of all evidence. Accordingly, we find that the court below did not abuse its discretion in declining to offer the parties an opportunity to argue the waiver issue.

II

Weight and Sufficiency of Evidence

In his final proposition of law, Neman argues that the jury verdict is against the manifest weight of the evidence. Two members of the panel in the court below agreed with this contention. Section 3(B)(3), Article IV of the Ohio Constitution provides that "[n]o judgment resulting from a trial by jury shall be reversed on the weight of the evidence except by concurrence of all three judges hearing the cause." Because the third member of the panel did not agree, the verdict against Neman was affirmed.

This court is not required to determine the weight of evidence in civil matters, R.C. 2503.43, and ordinarily will not do so. State, ex rel. Kobelt, v. Baker (1940), 137 Ohio St. 337, 18 O.O. 521, 29 N.E.2d 960. Accordingly, we will treat Neman's fifth proposition of law as an attack on the sufficiency of the evidence. Our standard of review is found in the syllabus of C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d 578: "Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence."

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