Fultz v. Fultz, Case No. 13CA9

• Decision Date: 25 July 2014
• Docket Number: Case No. 13CA9
• Citation: 2014 Ohio 3344
• Parties: BARBARA FULTZ, EXECUTOR OF THE ESTATE OF DARWIN FULTZ, Plaintiff-Appellee, v. RANDALL E. FULTZ, Defendant-Appellant.
• Court: Ohio Court of Appeals

2014 Ohio 3344

BARBARA FULTZ, EXECUTOR OF THE ESTATEOF DARWIN FULTZ, Plaintiff-Appellee, v. RANDALL E. FULTZ, Defendant-Appellant.

Case No. 13CA9

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

July 25, 2014

DECISION AND JUDGMENT ENTRY

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

ABELE, P.J.

{¶ 1} 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."

{¶ 2} 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.

{¶ 3} 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.

{¶ 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.

{¶ 9} 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.

{¶ 10} 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.

{¶ 14} 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.

{¶ 15} 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." Thecourt 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

{¶ 17} 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, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981).

{¶ 18} The decision regarding a motion to continue is left to the "broad, sound discretion" of the trial court. Unger, syllabus; Snyder v. Waldron, 4^th Dist. Athens No. 12CA9, 2013-Ohio-3416, ¶41; State v. Dickess, 4^th Dist. Scioto No. 09CA3272, 2009-Ohio-4541, ¶9.Consequently, absent an abuse of discretion, a reviewing court will not disturb a trial court's decision. "'The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, unconscionable, or arbitrary.'" Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). In order to find an abuse of discretion, "'the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias.'" Vaught v. Cleveland Clinic Found., 98 Ohio St.3d 485, 2003-Ohio-2181, 787 N.E.2d 631, ¶13, quoting Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996); accord Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 137 Ohio St.3d 469, 2013-Ohio-5000, 1 N.E.3d 335, ¶77; Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993) ("The appellate court is to determine only if the trial court has abused its discretion, i.e., being not merely an error of judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency."). Furthermore, when applying the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court. E.g., Savage v. Correlated Health Serv., Ltd., 64 Ohio St.3d 42, 55, 591 N.E.2d 1216 (1992); Freshwater at ¶77, quoting Graziano, 32 Ohio St.3d at 294, 513 N.E.2d 282 ("'Absent an abuse of discretion on the part of the trial court, the court of appeals may not engage in what amounts to a substitution of judgment of the trial court.'").

{¶ 19} "'There are no mechanical tests for deciding when a denial of a continuance is so 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...