Vinci v. Ceraolo

• Decision Date: 27 April 1992
• Docket Number: 61000,61001,Nos. 60100,s. 60100
• Citation: 79 Ohio App.3d 640,607 N.E.2d 1079
• Parties: VINCI et al., Appellees, v. CERAOLO, Appellant. *
• Court: Ohio Court of Appeals

Page 640

79 Ohio App.3d 640

607 N.E.2d 1079

VINCI et al., Appellees, v. CERAOLO, Appellant. ^*

Nos. 60100, 61000, 61001.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided April 27, 1992.

Jon R. Burney, Rocky River, for appellees.

Robert G. Miller, Cleveland, for appellant.

JOHN F. CORRIGAN, Judge.

Appellant, Ross Ceraolo, appeals from the order of the trial court granting judgment in favor of appellees, Rida Vinci and 1540 Columbus Corp., and ordering appellant to pay punitive damages, attorney fees, and costs. For the reasons set forth below, we affirm.

I

Appellee Rida Vinci commenced this action for replevin of a 1987 Cadillac on May 23, 1989. This case was designated case No. 170039. On June 14, 1989, appellee 1540 Columbus Corp. filed a complaint against appellant seeking a money judgment, an accounting, a temporary restraining order, a temporary injunction, and a permanent injunction. This case was designated case No. 171308.

On June 20, 1989, appellant filed an answer and extensive counterclaim in case No. 170039, naming 1540 Columbus Corp. as a new-party plaintiff. Appellant's counterclaim alleged that he owned one half of the outstanding shares of 1540 Columbus Corp. and requested an injunction against Vinci, dissolution of the corporation and $100,000 as repayment for alleged loans made to both appellees. On July 7, 1989, appellant filed an answer and general denial in case No. 171308.

Pursuant to motion by appellant and Civ.R. 42, these cases were consolidated before the Honorable Burt W. Griffin.

On April 26, 1990, approximately one month prior to the scheduled trial, appellant moved to disqualify appellees' attorney, Jon R. Burney. The trial court denied that motion and the matter proceeded to bench trial on May 29, 1990.

At trial, appellees presented the testimony of a handwriting expert, Vickie Willard, who testified that Rida Vinci's signature had been forged on certain crucial documents that allegedly created appellant's ownership interest in 1540 Columbus Corp. Appellant presented the testimony of his own expert, Ann Jelson, who testified that these crucial signatures were not forged. Jelson based her testimony on the assumption that certain comparison writings were those of Vinci. This assumption was partially discredited by appellees on cross-examination.

Subsequently, appellant attempted to qualify Francois Aurelius McKanze as a handwriting expert. McKanze's testimony revealed that his only formal training in determining the genuineness of signatures was in the military in 1965. He further testified that he made only preliminary findings for the military, and documents he deemed suspicious were sent to experts to evaluate. McKanze further revealed that his only current certification is in graphoanalysis from the International Society of Question Document Examiners. Finally, McKanze was unable to identify any court proceeding in which he was allowed to testify as an expert. The trial court refused to allow McKanze to testify as an expert on behalf of appellant.

In addition to excluding McKanze's testimony, the trial court excluded that of Hal Pollock, Esq. Pollock represented appellees prior to the commencement of these lawsuits. Appellant called Pollack to the witness stand; however, appellees' objected, stating that Pollack was a surprise witness not disclosed pursuant to discovery requests. The trial court sustained appellees' objection on those grounds.

Because the trial court's findings of fraud and forgery were not assigned as error, the analysis of the facts set forth at trial has been limited to the substantive and procedural errors raised on appeal.

At the close of the case, the trial court granted judgment in favor of appellees on all counts of their complaints and on all counts of appellant's counterclaim. Specifically, the court ordered a replevin in case No. 170039. In case No. 171308, the court found that the documents that demonstrated appellant's ownership interest in 1540 Columbus Corp. were forgeries, there was no evidence indicating that appellees owed appellant any money, an injunction against appellant was proper to enjoin him from claiming an ownership interest in the corporation, and finally that Rida Vinci is the sole owner of the corporation's one hundred shares of stock. Further, the court found that the forgeries were deliberate and malicious, and granted appellees $7,500 in punitive damages. The court then asked both parties to submit briefs on the amount of compensatory damages to be awarded. Appellant filed a timely appeal of this judgment, which has been designated by this court as case No. 60100.

On November 8, 1990, the trial court held a hearing to determine the amount of compensatory damages to be awarded. Appellees presented documentation and expert testimony indicating that they had incurred $38,391.75 in legal fees and $4,221.49 in expenses in both cases. Appellant cross-examined appellees' expert, but put forth no evidence to refute appellees' claims.

Thereafter, the trial court granted appellees damages in the amount of $35,741.75, attorney fees, which amount did not include fees for the replevin action, and $3,921.49 expenses, which amount also did not include expenses in the replevin action. The judgment included interest at the statutory rate from June 6, 1990. Appellant filed a timely appeal of this judgment, which has been designated by this court as case No. 61000.

Case Nos. 60100 and 61000 are consolidated before this court for purposes of briefing, hearing and disposition.

II

For his first assignment of error in case No. 60100, appellant contends that:

"The lower court erred in not permitting the appellant's handwriting expert to testify at the trial of this matter."

Appellant called Francois Aurelius McKanze to the stand as an expert to identify whether certain signatures of Rida Vinci were authentic. The trial court, after a preliminary evaluation of McKanze's credentials, ruled that McKanze could not testify as an expert.

While Evid.R. 702 permits expert testimony, a threshold determination must first be made under Evid.R. 104(A) concerning the qualification of an individual to testify as an expert witness. Kitchens v. McKay (1987), 38 Ohio App.3d 165, 168-169, 528 N.E.2d 603, 605-607. On appeal, the trial court's ruling with respect to a witness's qualifications as an expert will not ordinarily be reversed unless there is a clear showing that the court abused its discretion. Id. at 169, 528 N.E.2d at 606; Fulton v. Aszman (1982), 4 Ohio App.3d 64, 4 OBR 114, 446 N.E.2d 803. The term "abuse of discretion," however, connotes more than an error of law or judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the trial court. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140; Steiner v. Custer (1940), 137 Ohio St. 448, 19 O.O. 148, 31 N.E.2d 855.

We find that sufficient facts were demonstrated on the record to prove that the ruling of the trial court in excluding the testimony of McKanze was not unreasonable, arbitrary or unconscionable. The record plainly demonstrates that while McKanze received some training in preliminary document analysis and graphoanalysis, he has little, if any, formal training in examining forged signatures. In fact, when questioned by the trial judge, McKanze admitted that graphoanalysis does not involve determining whether a person's signature is genuine or not. Further, his only professional certification does not indicate an expertise in this field. Finally, McKanze was unable to identify any legal proceeding in which he has been permitted to testify as an expert.

Based upon the foregoing, we find that appellant's first assignment of error is not well taken.

III

For his second assignment of error in case No. 60100, appellant contends that:

"The lower court erred in not permitting attorney Hal Pollock to testify on behalf of the appellant at the trial of this matter."

Appellant attempted to call Hal Pollock to the stand on direct examination. Pollock represented appellees as private counsel prior to the inception of this litigation. Pollock's name was not on a list of witnesses furnished by appellant pursuant to appellees' discovery request. The trial court refused to allow Pollock's testimony on the basis of the discovery violation.

The trial court has broad discretion in guiding discovery, and absent an abuse of that discretion, an appellate court should not overturn the court's rulings on discovery matters. See Doe v. Univ. of Cincinnati (1988), 42 Ohio App.3d 227, 538 N.E.2d 419 Civ.R. 26(E) provides that parties must supplement discovery with the names of expert witnesses when they become available. Civ.R. 26(E)(3) provides that a duty to supplement all responses may be imposed by order of the court or through requests for supplementation by the parties. More specifically, however, as to non-expert trial witnesses, Loc.R. 21.1(II) of the Court of Common Pleas of Cuyahoga County, General Division, provides that:

"All parties are required to submit a trial witness list, including the full name and address of all witnesses expected to testify at the trial on their behalf, no later than seven (7) days prior to the final pretrial date. Thereafter, upon a showing of good cause, the opposing party may take the discovery deposition of any witness contained on the opposing trial witness list who has not been previously deposed during the normal discovery period. This extension of discovery cutoff is specifically restricted to depositions not previously taken of individuals listed on the opponent's trial witness list."

Based upon the foregoing rules of court, we find that appellant was under a duty to disclose the name of Pollock as a potential witness, and his failure to do so was a discovery violation sanctionable by the exclusion of that witness's testimony. Therefore, we find that the trial court did...