Simon v. Aulino

• Decision Date: 23 December 2020
• Docket Number: No. 18CA1076,18CA1076
• Parties: Cathy Lynn SIMON, Plaintiff-Appellee/Cross-Appellant, v. Paula Lee AULINO, Defendant-Appellant/Cross-Appellee.
• Court: Ohio Court of Appeals

165 N.E.3d 706

Cathy Lynn SIMON, Plaintiff-Appellee/Cross-Appellant,

v.Paula Lee AULINO, Defendant-Appellant/Cross-Appellee.

No. 18CA1076

Court of Appeals of Ohio, Fourth District, Adams County.

RELEASED December 23, 2020

Patrick Kasson, Reminger Co., L.P.A., Columbus, Ohio for Defendant-Appellant/Cross-Appellee.

Brian S. Sullivan, Sarah B. Cameron, Dinsmore & Shohl, LLP, Cincinnati, Ohio and John B. Caldwell, Young & Caldwell, LLC, West Union, Ohio for Plaintiff-Appellee/Cross-Appellant.

DECISION AND JUDGMENT ENTRY

Hess, J.

{¶1} This case involves an intense dispute between two sisters, Cathy Simon and Paula Aulino, over the inheritance left by their father Wayne Chamblin. Cathy Simon learned that their father effectively disinherited her and sued her sister Paula Aulino, believing that Paula wrongfully caused their father to disinherit her. The jury agreed that Paula Aulino acted wrongfully and awarded damages to Cathy Simon. Paula Aulino appeals claiming she did nothing wrong and Cathy Simon cross-appeals claiming she is entitled to even greater monetary damages than the jury awarded.

{¶2} Defendant-Appellant/Cross-Appellee Paula Lee Aulino appeals the trial court's denial of her motions for a directed verdict and judgment notwithstanding the verdict following a jury trial in which Paula Aulino was found liable for tortiously interfering with the inheritance of her sister Cathy Simon, breaching her fiduciary duties to her sister and liability to her under promissory estoppel. Aulino also appeals the jury verdict contending it should be overturned because of opposing counsel's misconduct at trial.

{¶3} Paula Aulino's sister, Plaintiff-Appellee/Cross-Appellant Cathy Lynn Simon, cross-appeals the trial court's denial of her motion for a new trial and judgment notwithstanding the verdict on damages. Cathy Simon contends that the damage award of $330,693.00 was inadequate, too small and against the manifest weight of the evidence and she sought to increase damages, which the trial court denied.

{¶4} Paula Aulino raises three assignments of error for our review. The first two are related and we consider them together. First, she contends that the trial court erred in denying her motions for a directed verdict and judgment notwithstanding the verdict because there was no evidence to support the jury's verdict that she breached a fiduciary duty, that she unduly influenced their father so that he disinherited Simon, or of Simon's reliance on Aulino's promise to give half of her inheritance to Simon. Second, Aulino contends that the verdict was against the manifest weight of the evidence.

{¶5} We find that the evidence supports the jury's finding that Wayne Chamblin could be influenced by reason of advanced age, physical infirmities, and mental condition. A number of witnesses testified that Chamblin was an elderly person in his mid-to-late 70s, had suffered a prolonged period of depression after his wife's death, had closed his family furniture business for a period of time, had a number of very serious health issues, and was susceptible to financial exploitation and manipulation by others.

{¶6} Sufficient evidence exists to support the jury's verdict that Aulino exerted undue influence over Chamblin, which caused him to execute certain transfer on death directives to Aulino on the assets at issue. Evidence of Chamblin's age and mental state during the time periods of the transfers at issue, his love and value of family and forgiveness, his pride in and love for Simon, the conversations he had with others, the provisions of his will, the timing, frequency, and intensity of Aulino's conversations with Chamblin in late 2007 to early 2008, and the influence Aulino exerted over him in 2010 are all factors for the consideration of the jury. The jury could reasonably infer from the circumstances that Aulino used Simon's ex-husband, Ed West, West's lies, and Chamblin's emotional breakdown stemming from West's lies, to exercise undue influence over Chamblin and cause him to make the transfers to her at a time when she was admittedly "as mad as hell" at Simon. The jury could also reasonably infer that in 2010 Aulino exercised undue influence over Chamblin, a man she believed to be susceptible to financial exploitation, to transfer management of his retirement accounts to Aulino's father-in-law and to execute a transfer on death directive to Aulino as a means of diverting the funds away from Chamblin's direct control and securing them for herself. We overrule Aulino's first and second assignments of error.

{¶7} In her third assignment of error, Aulino contends the verdict should be overturned because of Simon's counsel's misconduct at trial. However, Aulino did not object to any of the questions or statements she now contends were improper and has forfeited all but plain error. This is not one of the extremely rare civil cases in which plain error challenging the legitimacy of the underlying judicial process itself occurred. We overrule Aulino's third assignment of error.

{¶8} Cathy Simon raises two assignments of error in her cross-appeal. She contends that the trial court erred in denying her motion for a new trial on damages and in denying her motion for judgment notwithstanding the verdict as to damages. However, Simon presented very little testimony to help the jury understand her evidence of damages. She also included a number of assets owned by Chamblin Furniture Co., which were not owned by Wayne Chamblin and would not have transferred to Aulino upon Chamblin's death. Based on our review of the record, the jury did not lose its way. The compensatory damage award is not against the manifest weight of the evidence, nor is it too small or inadequate. As to the punitive damage component of her claim, she did not object to the procedure the court employed to address the inconsistency between the punitive damages and attorney fee awards. Thus, she waived any errors in the manner in which the court addressed the inconsistency.

{¶9} We affirm the trial court's judgment.

I. PROCEDURAL BACKGROUND

{¶10} Paul "Wayne" Chamblin died in February 2016. He was survived by his two daughters, Paula Aulino and Cathy Simon. Wayne Chamblin's will devised his estate equally to his two daughters. However, he transferred significant assets by "transfer on death" directives to Aulino during the years prior to his death, resulting in significantly fewer assets to be devised under the will.

{¶11} In June 2016, Simon filed a complaint against Aulino asserting claims for tortious interference with expectancy of inheritance, a declaratory judgment that the transfer on death directives were invalid and ordering them returned to Chamblin's estate, promissory estoppel, constructive trust, breach of fiduciary duty and resulting conversion of trust assets. Simon alleged that prior to his death, her father Wayne Chamblin owned a furniture store, Chamblin Furniture Co., real estate, and bank accounts totaling over $1 million. She alleged that although his will devised all of the assets to Simon and Aulino equally, Aulino unduly influenced their father into leaving Aulino substantially all of his assets upon death. Simon alleged that when she divorced her husband, Ed West, and moved to Georgia in November 2007, Aulino began a "smear campaign" against her to their father and engaged Simon's ex-husband West to join Aulino in her efforts. As a result, Chamblin executed transfer on death directives for all of his assets in favor of Aulino. As a result of Aulino's interference with her expectancy of inheritance, Simon contends that she was entitled to half of Chamblin's assets.

{¶12} Simon asserted additional alternative legal claims, which if proven would also entitle her to an award of half the assets. She sought a declaratory judgment that Aulino procured the transfer-on-death directives by undue influence and fraud. She contended that Aulino's status as Chamblin's power-of-attorney placed her in a fiduciary capacity for which undue influence is presumed. Simon sought a declaration that all transfer on death directives were invalid, and the assets should be returned to Chamblin's estate. Simon alleged that shortly before Chamblin died, Aulino promised to give Simon half of the assets Aulino acquired upon their father's death and Simon relied on the promise by not seeking a way to revoke the transfer on death directives before their father died. Thus, Simon was entitled to half the estate assets under the theory of promissory estoppel. Simon asked the trial court to impose a constructive trust over half of the assets. Last Simon alleged that her father created a trust when he executed the transfer on death directives in favor of Aulino, with Aulino as the trustee. Simon alleged that Aulino breached her fiduciary duties under the trust by withholding Simon's half of the assets.

{¶13} Aulino filed a motion to dismiss for lack of subject matter jurisdiction and a motion for summary judgment; the trial court denied both motions. The case proceeded to a jury trial.

{¶14} The jury returned a verdict in favor of Cathy Simon and awarded compensatory damages of $330,693. The jury found that Paula Aulino intentionally interfered with Simon's expectancy of inheritance from their father and Simon suffered damages as a result. They also found Aulino liable to Simon for promissory estoppel and that Aulino breached her fiduciary duty to Simon as trustee under an oral trust. However, they found that Chamblin did not create a trust over Simon's share of assets. Although the jury did not award Simon punitive damages, they answered affirmatively when asked to award Simon attorney fees. The trial court entered judgment in favor of Simon in the amount of $330,693, plus costs and post-judgment interest, but denied her declaratory judgment request.

{¶15} Both Simon and Aulino filed post-trial motions. Aulino sought a judgment notwithstanding the verdict as to her liability. Simon sought a new...