Worrall v. Irwin

• Decision Date: 01 July 1994
• Docket Number: No. C-1-93-017.,C-1-93-017.
• Citation: 890 F. Supp. 696
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Robert P. WORRALL, Guardian for and on behalf of Helen Worrall, Plaintiff, v. James E. IRWIN, Defendant, Counter-Claimant, Third-Party Plaintiff, v. Robert P. WORRALL, Counter-defendant, and First National Bank of Ohio, et al., Third-Party Defendants.

890 F. Supp. 696

Robert P. WORRALL, Guardian for and on behalf of Helen Worrall, Plaintiff, v. James E. IRWIN, Defendant, Counter-Claimant, Third-Party Plaintiff, v. Robert P. WORRALL, Counter-defendant, and First National Bank of Ohio, et al., Third-Party Defendants.

No. C-1-93-017.^*

United States District Court, S.D. Ohio, Western Division.

July 1, 1994.

Robert D. Anderson, Moyes & Anderson, Leesburg, VA, for Robert P. Worrall.

James H. Coogan, Drew, Ward & Graf Co. LPA, Cincinnati, OH, for James E. Irwin.

Russell S. Sayre, Taft, Stettinius & Hollister, Cincinnati, OH, for Robert E. Rich, Daniel J. Hoffheimer, Jennifer B. Olano, Gregory C. Luke.

James H. Coogan, Drew, Ward & Graf Co LPA, Cincinnati, OH, for James E. Irwin.

Beth Ann Myers, Frost & Jacobs, Cincinnati, OH, for First Nat. Bank of Ohio, Dennis G. Walsh.

Frank Joseph Schiavone, III, F. Joseph Schiavone Co., Hamilton, OH, for H. Vincent Walsh.

Felix John Gora, Rendigs Fry Kiely & Dennis, Fern T. Schmitz, Cincinnati, OH, Robert D. Anderson, Moyes & Anderson, Leesburg, VA, Michael Edward Maundrell, Schroeder Maundrell Barbiere & Powers, Cincinnati, OH, for Dennis L. Wittman.

Brenda V. Thompson, Graydon, Head & Ritchey, Barbara Bison Jacobson, Bison Jacobson Law Office, Cincinnati, OH, for Gregory Scott Beane.

John Allan Smalley, Young & Alexander Co., LPA, Dayton, OH, Patricia Jane Koprucki, Stewart Jaffy & Associates, Columbus, OH, for Barbara K. Eshbaugh.

Barbara K. Eshbaugh, Oxford, OH, pro se.

Stephen Sloan Eberly, Vorys, Sater, Seymour & Pease, Timothy Alan Tepe, Dinsmore & Shohl, Cincinnati, OH, for IDS Financial Services Inc.

ORDER

HERMAN J. WEBER, District Judge.

Plaintiff Robert Worrall as Guardian for and on behalf of Helen Worrall (Guardian), a resident of either the State of Ohio or the Commonwealth of Virginia, originally filed the instant action in the General Division of the Butler County, Ohio Court of Common Pleas seeking judicial relief against defendant James Irwin, a resident of Wayne County, Indiana, due to Irwin's alleged conversion of Ms. Worrall's assets by acts of fraud, coercion, duress, and undue influence. Guardian seeks compensatory damages and expenses in excess of $50,000.00 allegedly suffered by Ms. Worrall's estate in defending against Irwin's "frivolous petitions."

On January 7, 1993, Irwin petitioned to remove the action from the General Division of the Common Pleas Court on the basis of this Court's diversity jurisdiction, subsequently filed an Answer, a counterclaim against Guardian and Robert P. Worrall as an individual, and seven third-party claims against various individuals and entities as well as Worrall as an individual. Irwin raises numerous claims under 42 U.S.C. § 1983 and Ohio common law. Infra, § II.

On April 2, 1993, the Court denied third-party defendant Gregory Scott Beane's motion to remand and granted the removal petition finding jurisdiction pursuant to 28 U.S.C. § 1332(a).

This matter is before the Court upon plaintiff's second motion for summary judgment, Irwin's memorandum in opposition, third-party defendants' motions for summary judgment, Irwin's memoranda in opposition, and third-party defendants' replies.

On June 6, 1994, this Court ordered the parties to show cause why plaintiff's complaint should not be dismissed. The Court has provided the parties with ample opportunity to respond.¹ On June 27, 1994, the Court heard oral arguments on all pending motions.

I.

This controversy is essentially a dispute over whether the inter vivos gifts to Irwin by Helen Worrall were void, voidable, or valid, and the damages Guardian and Irwin have suffered as a result of the controversy.

Guardian, Helen Worrall's brother and guardian of her person within the Commonwealth of Virginia, alleges that Ms. Worrall suffers from Alzheimer's disease and has consequently been unable to operate her financial affairs since at least as early as February 1990. Guardian claims that Irwin defrauded Ms. Worrall out of her assets.

Ms. Worrall met Irwin in 1989 or 1990 when she visited an automobile dealership where Irwin worked as a salesman. Ms. Worrall was approximately seventy-six years old at that time; she was unmarried and retired from a teaching position at Miami University in Oxford, Ohio.

Guardian alleges that through fraud, coercion, and undue influence, Irwin caused Ms. Worrall to make certain gifts to Irwin, including all of her stocks and bonds, and caused her to execute a will naming Irwin as executor leaving Irwin all of her assets. Ms. Worrall executed the will on June 14, 1991.

Irwin claims that Ms. Worrall does not suffer from any mental or emotional deficiencies and that she executed the will and gave her stocks and bonds to him because they are friends and because she did not want her brother or any nursing home to get any of her assets.

On August 14, 1991, Ms. Worrall signed an agency agreement placing control of her assets in trust with First National Bank of Southwestern Ohio. A genuine dispute exists over the facts surrounding Ms. Worrall's decision to sign the agency agreement. Certainly Mr. Worrall and the bank thought she was competent at the time they entered into the agreement. Irwin alleges that Ms. Worrall telephoned him from her home in Oxford, Ohio and complained that Worrall "had rifled all of her possessions and had taken a copy of her Last Will and Testament." She asked Irwin to come to her home because Mr. Worrall and an attorney from First National Bank of Southwestern Ohio (First National Bank) were on their way to her home to obtain her signatures on some documents. Irwin alleges that during the meeting at Ms. Worrall's home, Dennis Walsh, a First National Bank attorney, attempted to intimidate Ms. Worrall into signing the agency agreement, but Ms. Worrall refused to sign.

The next day, according to Irwin, Ms. Worrall signed the agency agreement thinking that she was signing a health insurance form. Irwin alleges that Guardian misrepresented the agency agreement as an insurance form while covering the major portion of the document with his hand to prevent Ms. Worrall from realizing it was in fact the agency agreement. Mr. Worrall denies these allegations.

Approximately one week later, on September 6, 1991, Ms. Worrall signed a revocation of her agency agreement and provided Irwin with power of attorney over her financial affairs. Two days earlier Ms. Worrall had sent written instructions to IDS Financial Services, Inc. to transfer her securities to Irwin.

On September 17, 1991, Mr. Worrall and First National Bank applied for a guardianship of Ms. Worrall in the Butler County Court of Common Pleas, Probate Division (Probate Court). Irwin alleges that on September 27, 1991, the Probate Court granted First National Bank and Wittman's motion to have Wittman appointed as process server. Wittman represented Guardian and First National Bank. On September 27, 1991, the Probate Court issued a temporary restraining order which prevented financial institutions and Irwin "from making any disbursements, transfers, withdrawals, or otherwise permitting the transaction of business as to Ms. Worrall's accounts or assets ... until further order of the Court."

Irwin alleges that on October 3, 1991, Wittman filed with the Probate Court an affidavit containing misrepresentations including the statement that he had received information concerning the existence of a check issued to James Irwin in the amount of $71,896.38 representing the redemption of certain securities belonging to Ms. Worrall. Irwin asserts that as a result of Wittman's misrepresentations, the Probate Court enlarged the TRO, without hearing or prior notice to Irwin, and enjoined Irwin from negotiating the $71,896.38 check. Irwin did not appeal either Order.

Irwin claims that on October 3, 1991, Ms. Worrall asked him "to get her a `good attorney'." Irwin contacted attorney H. Vincent Walsh who informed Irwin that he had no connections with First National Bank despite the fact that his brother Dennis G. Walsh was an attorney and trust officer of that bank. Irwin maintains that he accompanied Ms. Worrall to H. Vincent Walsh's office the next morning for a scheduled appointment where they encountered attorney Wittman. Wittman served papers upon them "including an order to Irwin to pay to the Court the sum of $71,896.38, along with a restraining order. This was the first notice to or service on Irwin of any sort in this action. H. Vincent Walsh immediately advised Irwin to turn the $71,896.38 check and another check ... over to the Butler County Probate Court through attorney Wittman or Irwin would `go to jail.'" Irwin voluntarily deposited the two checks with the Clerk of the Probate Court acquiescing to the Court's jurisdiction.

On October 4, 1991, Ms. Worrall, with the permission of the Court, paid attorney H. Vincent Walsh a retainer of $3,000.00 and allegedly informed him of her desire to make Irwin her guardian. Irwin claims that Ms. Worrall also told Walsh that she wanted to change banks. Walsh allegedly advised her not to change banks.

On October 9, 1991, the Probate Court issued a preliminary injunction which, in effect, continued the injunctive relief resulting from the TRO and which contained more specific injunctive relief. Irwin claims that he never received notice of the hearings on the temporary restraining order or the preliminary injunction. Irwin did not appeal the preliminary injunction.

By October 10, 1991, Ms. Worrall had become dissatisfied with H. Vincent Walsh's supposed inaction regarding a competency hearing scheduled in the Probate Court for October 15, 1991. She allegedly informed Irwin of her concern that H. Vincent Walsh was "`really on the other side' of the case." According to Irwin, he accompanied Ms. Worrall to meet with four attorneys with the law firm of Taft, Stettinius & Hollister in Cincinnati. Irwin asserts that these attorneys separately interviewed Ms. Worrall...