Morgan v. Mikhail, 2004 Ohio 5792 (OH 11/2/2004)
| Decision Date | 02 November 2004 |
| Docket Number | Case No. 04AP-195.,Case No. 04AP-196. |
| Citation | 2004 Ohio 5792 |
| Parties | Gregory B. Morgan, Plaintiff-Appellant, v. Essam Mikhail et al., Defendants-Appellees. |
| Court | Ohio Supreme Court |
APPEALS from the Franklin County Court of Common Pleas, C.P.C. No. 00CVH12-10908.
Gregory B. Morgan, for appellant.
Douglas J. Hart, for appellees.
DECISION
{¶1} Plaintiff-appellant, Gregory B. Morgan, filed a complaint against appellee, Essam Mikhail ("Essam"), and J.B. Oxford & Company, an investment company, on December 11, 2000, alleging fraud, breach of fiduciary duty, negligence, conversion, intentional infliction of emotional distress and violations of securities laws, and sought compensatory and punitive damages, injunctive relief and prejudgment interest. The complaint was based on appellant's allegations that he had given money to Essam to make investments on his behalf and that Essam used the money as if it belonged to him personally.
{¶2} A temporary restraining order ("TRO") was issued to freeze the securities and cash allegedly being held in Essam's name with J.B. Oxford, to provide an accounting of all transactions in that account and to transfer all cash to the clerk of courts. Essam was ordered not to leave the jurisdiction. Appellant filed a motion to show cause why Essam should not be held in contempt of court for failing or refusing to abide by the TRO since he had not delivered accounting documents and funds to the court. On December 22, 2000, the trial court issued a preliminary injunction requiring Essam to produce all records of account and other documents required to demonstrate each and every transaction utilizing appellant's money, and to prevent Essam from liquidating the assets. J.B. Oxford deposited $6,545.86 with the court, which was returned to appellant pursuant to the injunction. After it complied with the TRO, appellant dismissed J.B. Oxford & Company, pursuant to Civ.R. 41(A)(1), on January 16, 2001. On January 19, 2001, the trial court entered a permanent injunction requiring Essam to appear and deliver a summary accounting of all transactions undertaken with appellant's money. On January 25, 2001, the trial court found Essam in contempt of court for his failure to produce the records and documents described in the TRO and awarded appellant $3,350 plus ten percent interest in attorney fees. Appellant filed a motion for default judgment on January 11, 2001, which was withdrawn on June 6, 2001. Appellant filed an amended complaint on July 20, 2001, adding Essam's father, appellee, Azmi Mikhail ("Azmi"), as an additional defendant.
{¶3} On May 25, 2001, Essam was indicted on one count of being an unlicensed investment advisor, one count of engaging in fraud as an investment advisor, one count of mishandling funds as an investment advisor, one count of theft, one count of forgery and one count of intimidation of a victim or witness. As a result of the criminal case, this case was stayed on August 27, 2001, and the stay was lifted on May 13, 2002.
{¶4} Essam pled guilty to being an unlicensed investment advisor in violation of R.C. 1707.44, and mishandling funds as an investment advisor in violation of R.C. 1707.44, and a nolle prosequi was entered as to the remaining counts. Essam was sentenced to four years on the charge of being an unlicensed investment advisor and 12 months on the charge of mishandling funds, both sentences to run concurrently. The court further ordered restitution to appellant in the amount of $29,123, plus $662.50 appellant had incurred for counseling. This court affirmed the convictions. See State v. Mikhail (Dec. 12, 2002), Franklin App. No. 02AP-545, 2002-Ohio-6842.
{¶5} On December 31, 2002, appellant sought leave to amend his complaints against Essam and Azmi to add a claim for concealment of assets or placing assets beyond an official's reach, to request additional damages and to add Essam's mother, Insaf Mikhail, as a defendant. On February 11, 2003, the trial judge recused himself and the case was reassigned. On March 12, 2003, appellant requested a jury trial, which was denied as untimely on January 28, 2004.
{¶6} On April 24, 2003, the trial court denied appellant's motion to amend his complaint to add an additional defendant, but did permit appellant to amend his complaint to request additional damages and attorney fees. On January 28, 2004, the trial court sua sponte dismissed appellant's claims finding that Essam's convictions were dispositive of appellant's claims and granted judgment to appellant for $29,123, and $4,650 for attorney fees. Appellant filed a timely notice of appeal from the sua sponte dismissal. The trial court also granted Azmi's motion to dismiss for failure to state a claim for which relief may be granted, and appellant filed a notice of appeal from that judgment and the two appeals were consolidated. Appellant raises the following assignments of error:
First Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff by dismissing this case sua sponte without a motion by the defendants, thereby wrongfully denying plaintiff his constitutional right to a fair trial before an impartial jury and his right to put on his evidence to support his claims.
Second Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff by denying plaintiff's request for a jury trial while at the same time preventing plaintiff, through its rulings on plaintiff's pleadings, from introducing new triers of fact and since plaintiff submitted his request for [a] jury more than two months before the scheduled trial date in this case which would not have prejudiced the defendants.
Third Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff when judge Sheward engaged in negotiations with defense counsel during discussions before trial and then, in determining how it would rule on this matter, changed his ruling of fraud he had already announced in open court to conform with the desires of the defendants rather than ruling on evidence and law.
Fourth Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff when judge sheward determined that plaintiff is entitled to recoup the expense of litigating this case under fraud and then failed to allow plaintiff to establish fraud and recoup the expenses.
Fifth Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff when judge Sheward determined that plaintiff's claim for attorney fees in addition to those awarded in the first contempt order was to be a subject matter of this lawsuit, heard plaintiff's explanation of his fees, and then awarded plaintiff only a portion of these fees under the investment advisors statutes at the defendant's request instead of fraud which he had already announced in open court.
Sixth Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff when judge Sheward stated that plaintiff cannot recoup punitive damages on his fraud claim since defendant Essam Mikhail is already being punished criminally when the law clearly states if a plaintiff in a fraud action shows that the fraud was gross or malicious or that there was a very corrupt condition of affairs, the jury may award exemplary or punitive damages even though the defendant may have been punished criminally for the same wrong.
Seventh Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff by finding that defendant Essam Mikhail's investment advisor criminal convictions are dispositive of plaintiff's civil claims under these statutes where the court made its ruling without a trial to explore this issue, did not examine the evidence, and made the ruling without having any previous law on which to base its decision since defendant Essam Mikhail is the first person convicted under these statutes.
Eighth Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff when it found that defendant Essam Mikhail's four-year jail sentence, coupled with full restitution of plaintiff's economic damages, serves fully any policy underlying a decision to award punitive damages when the defendant's jail sentence was reduced to four years from five years to facilitate early release.
Ninth Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff when it dismissed as moot counts two, three, four, and five of plaintiff's complaint by finding that plaintiff's claims for economic damages under these counts are rendered moot by the court's decision to grant judgment under count seven of the complaint, first where the court made its ruling to conform with the defendant's wishes, and second denied plaintiff his right to put on evidence towards his other claims.
Tenth Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff when, without allowing plaintiff to put on his evidence and expert witnesses' testimonies, the court dismissed plaintiff's claim for intentional infliction of emotional distress by finding that there exists no set of facts or circumstances in this case, upon which plaintiff could maintain an action for intentional infliction of emotional distress where the court ruled on this matter without understanding the basis for the claim and where defendant Essam Mikhail's behavior, plaintiff's evidence, and judge pheiffer's [sic] opinion suggests the ruling should be vacated.
Eleventh Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff when judge Sheward placed an ex parte telephone call to plaintiff a few days before trial and discouraged plaintiff from taking this case to trial.
Twelfth Assignment Of Error:
The trial court erred to the substantial prejudice of the plaintiff when judge Bessey based his ruling in part on...
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