Johnson v. U.S. Title Agency, Inc. , 2020 Ohio 4056 ( 2020 )

[Cite as Johnson v. U.S. Title Agency, Inc., 2020-Ohio-4056.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
RICHARD G. JOHNSON, ESQ. :
Plaintiff-Appellant, :
No. 108547
v. :
U.S. TITLE AGENCY, INC., ET AL., :
Defendants-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 13, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-11-760834
Appearances:
Kehoe & Associates, L.L.C., Robert D. Kehoe, and Lauren
N. Orrico, for appellant.
Meyers, Roman, Friedberg & Lewis, and Ronald P.
Friedberg, for appellee U.S. Title Agency, Inc.
Sikora Law, L.L.C., and Alexander E. Goetsch, for appellee
Chicago Title Insurance Company.
MARY J. BOYLE, P.J.:
Plaintiff-appellant, Richard G. Johnson (“Johnson”) appeals from
(1) the trial court’s order bifurcating his bad-faith claim, (2) the trial court’s
judgment reflecting the jury verdict against Johnson, (3) the trial court’s order
granting a directed verdict on Johnson’s negligence claim, and (4) the trial court’s
judgment denying his motion for a new trial. He raises six assignments of error for
our review:
1. The trial court erred by failing to follow the mandate of the Eighth
District Court of Appeals, in violation of the law of the case doctrine.
2. The trial court erred in granting a directed verdict in favor of U.S.
Title on Johnson’s negligence claim.
3. The trial court erred in bifurcating the entirety of Johnson’s bad
faith claim.
4. The trial court erred in denying Johnson’s Motion for New Trial in
the face of cumulative errors.
5. The trial court erred by striking substantial portions of the video
testimony of Ed Horejs.
6. The trial court prejudiced Johnson by showing clear bias in favor of
Appellees.
Finding no merit to his assignments of error, we affirm the trial
court’s judgments.
I. Factual Background and Procedural History
A. Procedural History Before Trial
Johnson originally filed his action against defendant-appellee, U.S.
Title Agency, Inc. (“U.S. Title”), in July 2011. But in March 2012, Johnson filed an
amended complaint, and joined defendant-appellee, Chicago Title Insurance
Company (“Chicago Title”). We will refer to defendants collectively as “appellees.”
Johnson asserted six counts in his complaint: (1) breach of contract against U.S.
Title, (2) breach of contract against Chicago Title, (3) specific performance and
injunctive relief against both U.S. Title and Chicago Title, (4) negligence against U.S.
Title, (5) breach of fiduciary duty against U.S. Title, and (6) breach of the duty of
good faith and fair dealing against both title companies.
All three parties moved for summary judgment. The trial court
granted appellees’ motions for counts I, II, III, and VI and denied Johnson’s motion,
finding that Johnson was not a party to or beneficiary of KeyBank’s closing
instructions. Johnson appealed, but this court dismissed the appeal because Counts
IV and V of the amended complaint had not been resolved. Johnson v. U.S. Title
Agency, Inc., 8th Dist. Cuyahoga No. 100535 (Nov. 15, 2013). On remand, the trial
court then dismissed Counts IV and V, without prejudice, pursuant to Civ.R. 41(A).
Johnson appealed again, but this court dismissed the appeal because the Civ.R.
41(A) dismissal was insufficient to create a final appealable order. Johnson v. U.S.
Title Agency, Inc., 8th Dist. Cuyahoga No. 101156 (June 13, 2014).
U.S. Title and Johnson filed “renewed” motions for summary
judgment. (Chicago Title did not need to file a renewed motion because Counts IV
and V were against only U.S. Title.) In September 2015, the trial court granted
summary judgment for appellees on all counts, including IV and V. Johnson filed
his third appeal, arguing that the trial court erred in granting summary judgment to
appellees. Johnson v. U.S. Title Agency, Inc., 2017-Ohio-2852, 91 N.E.3d 76, ¶ 1
(8th Dist.). This court found that there were genuine issues of material fact on all
counts and, in May 2017, the majority reversed and remanded “for future
proceedings consistent with the law and this decision,” with Judge Keough
dissenting. Id. at ¶ 82.
In November 2017, appellees moved to bifurcate Johnson’s claim for
bad faith. Johnson did not oppose this motion, and the trial court granted it. In
May 2018, Johnson moved in limine for the trial court to preclude arguments
inconsistent with Johnson, 2017-Ohio-2852, 91 N.E.3d 76. The trial court granted
the motion after the commencement of trial.
B. Jury Trial
A nine-day jury trial commenced in July 2018. For his case in chief,
Johnson’s counsel called (1) Johnson; (2) Mark Wachter, Johnson’s real estate
attorney; (3) Mike Gerome, a closing agent for U.S. Title, as if on cross-examination;
and (4) Ed Horejs, a representative for Chicago Title, via video deposition as if on
cross-examination.
In 2008, Johnson purchased a home in Bentleyville, Ohio. In the late
spring or early summer of 2009, he hired a contractor, Jack Fyffe, to renovate his
home. That fall, Johnson terminated Fyffe for not paying the subcontractors. Fyffe
had completed much of the work on the third floor of the home, but the renovation
was not complete.
In early 2010, Johnson hired Berns Custom Homes (“Berns”) as the
general contractor to continue the renovation while Johnson lived at the property.
Johnson retained real estate attorney, Wachter, to negotiate the construction loan
agreement with KeyBank and the contract with Berns. Johnson entered a
construction loan agreement with KeyBank in the amount of $815,581.00 to satisfy
the existing mortgage on his property (approximately $334,000.00) and to finance
the remaining renovations ($477,723.00). Johnson testified that he thought the
$477,723.00 would proceed through escrow, but pursuant to a construction
holdback provision, KeyBank held the $477,723.00 until Johnson made draw
requests as construction progressed.
On Wachter’s recommendation, Johnson and KeyBank selected
U.S. Title as the closing, escrow, and title agent for the loan closing. U.S. Title was
an insurance agent for Chicago Title. Johnson testified that he verbally instructed
Wachter to tell U.S. Title to make sure Johnson “got the same protections that
KeyBank did” for the closing. Wachter testified that he verbally told Gerome, a
closing agent for U.S. Title, that Johnson “should get every bit of coverage that’s
being provided to the bank in favor of him.” Wachter testified that he was “not aware
of any” written instructions from Johnson to U.S. Title. Gerome testified that he did
not remember whether he talked to Wachter about title insurance.
KeyBank provided written closing instructions to U.S. Title for the
loan closing. The closing instructions provided that “[t]he title insurance
commitment and final policy must not contain any exception or exclusion from
coverage based on the existence or possibility of mechanic’s liens.” The document
stated that “[a]ll standard exceptions (such as matters of survey, rights or parties in
possession, mechanics liens and standard exceptions not evidenced by a specific
instrument recorded against the property) must be deleted.” The closing
instructions further provided that “[a]ll documents are to be executed exactly as
typed.” The document also contained a closing agent certification, stating: “These
instructions set forth our requirements for closing the above captioned loan. * * * As
used herein, ‘closing’ shall mean the execution by the Borrower(s) and Mortgagor(s)
of all required loan documents as specified herein.” Wachter testified that Johnson
was both the borrower and mortgagor, and Wachter agreed that “KeyBank actually
made it clear that in order to close the transaction, U.S. Title only needed Mr.
Johnson to execute the closing documents[.]”
Johnson reviewed the closing instructions and “agreed” with them.
Johnson did not send U.S. Title his own set of written closing instructions but
testified that he verbally told a U.S. Title closing agent that KeyBank’s closing
instructions were his instructions as well.
The closing took place on May 27, 2010. Documents executed at the
closing included the mortgage and the construction loan agreement with a rider.
Johnson explained that the rider would go into effect when the renovation was
completed. He stated that pursuant to the rider, “the construction mortgage turns
into a permanent mortgage, so you do one closing rather than having to do two
closings.” U.S. Title recorded the mortgage on June 2, 2010.
The loan agreement outlined requirements for each disbursement of
the $477,723.00 to Johnson, which included updated title searches and lien
releases. The loan agreement also included a contractor’s consent clause, which
provided that the contractor “hereby subordinates its lien on the Property, now
existing or hereafter arising, to the lien of the Security Documents.” The consent
clause contained a signature block for Justin Berns, Authorized Signatory, with the
May 27, 2010 closing date. However, Justin Berns did not sign the consent clause.
Wachter testified that he never had a conversation with Gerome or anyone at U.S.
Title about having Berns sign the consent clause. Nor did Wachter follow up to
confirm that Berns had signed the consent clause. Wachter explained that a lien
subordination was not “part of the negotiation with Berns” and that he never
contacted Berns to ask if he would be willing to sign a lien subordination.
U.S. Title offered Johnson closing protection coverage via a closing
protection letter as required by R.C. 3953.32. The letter provided that the coverage
indemnified Johnson for any loss of settlement funds resulting from certain
conditions, including the closing agent’s “[f]ailure to * * * comply with any
applicable written closing instructions, when agreed to by [U.S. Title].” Horejs, a
representative from Chicago Title, explained that settlement funds are “accounted
for in the closing of that particular transaction, funds coming in, funds going out.
* * * [S]ettlement is another term for escrow or closing[; they] all mean[] the same
thing.” Horejs agreed to the statement that “if there is no loss of closing funds,
escrow funds, settlement fund[s],” Chicago Title has no liability under the closing
protection coverage.
U.S. Title provided Johnson with a copy of the owner’s policy of title
insurance that Chicago Title issued for the loan and mortgage, which Wachter had
verbally requested. The policy required that Johnson notify Chicago Title of a claim
by submitting a written statement to a P.O. Box address in Jacksonville, Florida.
The owner’s policy insured Johnson against loss or damage from certain covered
risks arising before the June 2, 2010 policy date, including “[a]ny defect in or lien or
encumbrance on the Title[.]” Johnson’s owner’s policy also contained exclusions:
The following matters are expressly excluded from the coverage of this
policy, and the Company will pay not loss or damage, costs or attorneys’
fees, or expenses that arise by reason of:
***
3. Defects, liens, encumbrances, adverse claims, or other matters:
(a) created, suffered, assumed, or agreed to by the Insured
Claimant;
***
(d) attaching or created subsequent to Date of Policy[.]
The owner’s policy also included a standard mechanic’s lien exception:
This policy does not insure against loss or damage (and the Company
will not pay costs attorneys’ fees or expenses) which arise by reason of
* * * [a]ny lien, or right to a lien, for services, labor or material
heretofore or hereafter furnished, imposed by law and not shown by
the public records.
Wachter testified that he did not tell Gerome that any specific
provision should be removed from the owner’s policy. Horejs testified that the
closing instructions would “never” instruct the issuing agent to delete a mechanic’s
lien exception from the owner’s policy. He explained that
In a situation where there is a current owner of the property, in other
words, they are not a new purchaser coming into a new property, they
are the existing owner who has owned and controlled the property and
anything done on it, there would be no reason or purpose to delete the
mechanic’s lien exception because the — any work done on the property
by the owner would not be a covered matter. It is excluded from
coverage as a matter created and assumed by that insured.
Horejs testified that the standard exception for mechanic’s liens in
Johnson’s owner’s policy “wouldn’t make any difference” with respect to liens
related to work that began after the policy date “because it would be a subsequent
matter, a post-policy matter outside the title policy.” Horejs explained that a title
insurance company in Ohio cannot offer insurance for post-policy events: “It just
simply is not part of the coverage that has been approved by the Department of
Insurance and it’s not — there isn’t any forum in the industry that would do that.”
Horejs further testified that the exclusion set forth in section 3(a) of
the owner’s policy would exclude coverage related to mechanic’s liens that were
created by the insured not paying a contractor, regardless of the reason for
nonpayment:
If an owner has work performed on the property, in other words, they
hire a builder, they hire a contractor to do some work on the property,
they are creating a situation themselves which, should they not pay that
contractor for any reason, regardless of merit, and it results in a lien on
the property, the lien is the result of the owner’s own action. * * * There
are other legal avenues that an owner can pursue if there is that kind of
dispute [over the quality of the contractor’s work], but from the limited
standpoint of a title insurance policy, a policy cannot insure an owner
from their own acts. It’s one of the — it’s one of the fundamental
distinctions of title insurance from other forms of insurance.
U.S. Title also provided KeyBank with a copy of the lender’s policy of
title insurance issued by Chicago Title for the loan and mortgage.1 The lender’s
1 KeyBank never brought a claim against appellees pursuant to KeyBank’s lender’s
policy.
policy stated that KeyBank was insured “as of Date of Policy,” but it did not contain
the standard mechanic’s lien exception.
On June 14, 2010, Berns began construction at Johnson’s property.
Pursuant to his loan agreement with KeyBank, Johnson requested disbursements to
pay the contractors on August 2, 2010 ($86,264.98) and August 27, 2010
($65,454.03). KeyBank approved these requests and disbursed the funds to
Johnson.
On October 15, 2010, Johnson terminated Berns after disputes over
construction performance. Berns claimed that Johnson owed payment for work
performed, and Johnson disagreed. On October 29, 2010, Berns recorded a
mechanic’s lien on Johnson’s property for $241,521.95.2 Berns also pursued
mandatory arbitration against Johnson for breach of contract. The arbitrator found
that Johnson breached the contract with Berns by failing to pay for certain work
performed and by preventing Berns and the subcontractors from further
performing. The arbitrator awarded Berns $166,550.00, which Berns converted to
a judgment lien. See Berns Custom Homes, Inc. v. Johnson, Cuyahoga C.P. No. CV-
12-791858, aff’d, Berns Custom Homes, Inc. v. Johnson, 8th Dist. Cuyahoga Nos.
100837 and 101014, 2014-Ohio-3918. Johnson never paid anything to satisfy the
judgment. Berns’s lien remained on Johnson’s property until it expired in 2016.
Johnson incurred over $468,000.00 in legal fees from his arbitration with Berns.
2Four subcontractors also filed mechanic’s liens totaling $55,669 in the fall of
2010. These liens were later released.
On December 3, 2010, Johnson hired Korner Construction, with
KeyBank’s approval, to resume the renovations. On December 22, 2010, KeyBank
disbursed $61,000.00 in response to Johnson’s third draw request. Johnson
submitted two additional disbursement requests in December, which triggered title
searches. On December 29, 2010, U.S. Title notified KeyBank of Berns’s lien on the
property, and KeyBank denied Johnson’s outstanding draw requests.
Between December 31, 2010, and January 17, 2011, Johnson and
Wachter corresponded with U.S. Title to request removal of Berns’s lien pursuant to
Johnson’s closing protection coverage and owner’s policy, asserting that Johnson
was a third-party beneficiary of KeyBank’s lender’s policy. U.S. Title did not
respond. Johnson and KeyBank also asked U.S. Title to “insure through” Berns’s
lien, to continue to insure KeyBank for future advances to Johnson as if Berns’s lien
did not exist. U.S. Title declined to do so.
Johnson did not correspond directly with Chicago Title. He admitted
that he never sent notice to them to the P.O. Box address in Jacksonville, Florida, as
required by his owner’s policy. Horejs testified that Chicago Title never received a
claim under the closing protection from either KeyBank or Johnson. Horejs further
agreed that U.S. Title was not “authorized to accept on behalf of Chicago Title a
notice of claim made by an insured.”
Although Berns’s lien was not removed from Johnson’s property
(until it expired in 2016), KeyBank ultimately continued to disburse the remaining
funds. Johnson was asked on cross-examination, “So, a contractor’s consent
provision was never signed by Berns? Never any insurance over the mechanic’s lien,
but KeyBank issued another draw payment to you in January of 2011 in the amount
of $115,280.40, didn’t they?” Johnson replied that he did not remember getting a
payment in January 2011. But he later admitted that in his amended complaint, he
stated, “In January 2011, KeyBank honored the previously dishonored draw request
made in December 2010.”
KeyBank also disbursed $100,000.00 in July 2011. By August 2011,
KeyBank had disbursed all loan funds except for $35,000.00, which it held until
construction was completed pursuant to a holdback agreement with Johnson. By
2013, Korner Construction had completed the renovations, KeyBank had disbursed
the full amount of the loan, and the loan converted to permanent financing.
Despite the disbursements from KeyBank, Johnson testified that he
funded the rest of the renovation himself and sought reimbursement from KeyBank.
Johnson further testified that he continued to pay rent for his downtown Cleveland
office because the completion of his home office was delayed by two years.
At the close of Johnson’s case in chief, appellees jointly moved for a
directed verdict on all of Johnson’s claims. The trial court took the arguments
“under advisement” and had appellees present their cases. Appellees called Gerome
and their expert witness, Michael Waiwood.
Gerome explained that it would have been “impossible” for U.S. Title
to have removed the mechanic’s lien exclusion from Johnson’s owner’s policy. He
stated, “You can’t do that.” He further explained that mechanic’s lien exceptions are
“never deleted from the owner’s policy” because “we do not insure things that people
cause on their own.” He testified that neither Johnson nor Wachter asked him
specifically to delete the mechanic’s lien exception from the owner’s policy. Gerome
also testified that U.S. Title is not authorized to accept claims on behalf of Chicago
Title. He stated that he “probably [did] not” forward the emails he received from
Johnson “purporting to make claims” to Chicago Title.
Waiwood testified that he has been an attorney in the title insurance
industry for almost 50 years. Throughout his career, he had been a branch manager
at a title search company, vice president and regional underwriting counsel for a
large multi-state title agency, president and CEO for one of the multi-state agency’s
subsidiary underwriting companies, and president and underwriting counsel for a
national title company. He was also involved in regulatory work, writing statutes in
Ohio.
Waiwood opined that “the mechanic’s liens are not a covered matter
under the owner’s policy.” He explained:
[A]nything that occurs in an owner’s policy subsequent to the date of
policy is simply not covered. In addition to that, there [are] exclusions
in the policy form itself. An exclusion to the title insurance policy by
statute, by law in Ohio, is these are matters that are not covered by title
policies. And one of the exclusions in the policy clearly states that it
doesn’t cover any matters after the date of the policy.
Waiwood explained that if the mechanic’s lien exception had been
deleted from Johnson’s owner’s policy, Berns’s lien would still not be covered under
the policy. He stated that “the policy does not cover any liens that become effective
or filed after the date of policy.” When asked whether the mechanic’s lien exception
would make a difference as to whether Berns’s lien would be covered, he answered
“absolutely not. They’re not covered. It’s that simple. We are not a casualty insurer.
We could only insure up to the date of policy by law.”
Waiwood further testified that the exclusion set forth in section 3(a)
of Johnson’s owner’s policy would also preclude coverage of damages related to
Berns’s lien. He explained that the exclusion in section 3(a) addresses:
a matter that is created, suffered, or assumed by the insurer. In other
words, the responsibility is caused by the insured themselves. And our
position on that would be if I was being asked to underwrite this, I
would say that these mechanic’s liens are by virtue of the fact that
Mr. Johnson simply did not pay his contractors.
In relation to the closing protection coverage, Waiwood testified that
such coverage limits liability to a loss of settlement funds: settlement funds are “the
only thing that [closing protection] cover[s]. And if there is no loss of settlement
funds, then the issue of mechanic’s liens is irrelevant.” Waiwood stated that the
closing protection coverage did not cover damages arising from Berns’s lien because
they are not settlement funds. Moreover, he explained the coverage included an
exclusion that provides:
[T]he company will not be liable for any loss [of closing funds] arising
out of mechanic’s and materialman’s liens in connection with your
purchase or lease, or consideration, or construction loan transaction.
Except to the extent that that protection against such liens is afforded
by a title insurance commitment or policy. * * * This form is not
intended to be a substitute for a title insurance policy.
He further explained that the closing protection coverage would not apply to
damages from Berns’s lien because the coverage “basically excludes liability for any
matters that were created or caused by, or suffered, or assumed by the named party
in the closing protection letter.”
After appellees rested, Johnson called a rebuttal expert witness,
Robert Greggo. Greggo testified that he had been general counsel at a title agency
for over 25 years, where his responsibilities included writing title insurance,
reviewing the results of title examinations, handling underwriting decisions, and
supervising the escrow process.
Greggo disagreed with Waiwood’s opinions that the owner’s policy
and closing protection coverage would not cover damages from Berns’s lien. He
testified that “it’s very common” for mechanic’s lien exceptions to be deleted from
an owner’s policy and opined that Johnson’s owner’s policy should have had the
exception removed. He also explained that a title insurance policy can insure
mechanic’s liens filed after the closing date “if the work on the project was performed
prior to the effective date of the policy, the closing date.” Greggo testified that the
renovation began in “2009 or earlier in 2010” with a prior contractor, and the lien
Berns filed on Johnson’s property dates back to the date the prior contractor first
started to work on the renovations on Johnson’s house. “In my opinion, it was one
continuous project.” Greggo admitted that he did not know that Johnson had
executed an affidavit that stated he had fully paid the previous contractor in
September 2009.
Greggo also disagreed with Waiwood’s opinion on closing protection
coverage because he said that the coverage “protected [Johnson] against failure to
follow closing instructions,” and U.S. Title failed to follow the closing instructions
because it issued Johnson an owner’s policy that included the mechanic’s lien
exception. Greggo testified that the closing instructions applied to Johnson’s
owner’s policy based on Johnson’s and Wachter’s oral instructions to U.S. Title. But
he admitted that liability under the closing protection coverage would have to be
based on failure to follow any “written” closing instructions. Greggo also testified
that he didn’t “believe there were any” losses of settlement funds.
After Greggo testified, appellees renewed their motion for directed
verdict. The trial court again took their arguments “under advisement” and charged
the jury. The trial court went through each of Johnson’s claims with the jury and
instructed them on the relevant law. The parties then presented their closing
arguments.
Sometime thereafter, off the record, the trial court granted U.S. Title’s
motion for directed verdict on Johnson’s negligence claim. The trial court read the
verdict forms and interrogatories to the jury and without explanation instructed the
jury to “rip up” the verdict form for Count 4, negligence. The trial court released the
jury for deliberations and submitted the written charge, jury interrogatories, and
jury verdict forms to them.
After deliberating, the jury found in favor of appellees on Johnson’s
breach-of-contract and specific-performance claims against both U.S. Title and
Chicago Title, and Johnson’s breach of fiduciary duty claim against U.S. Title. In
response to Jury Interrogatory No. 2, “Do you find by the greater weight of the
evidence that any defect, lien, or encumbrance existed on the plaintiff’s title to the
property as of June 2, 2010 other than the KeyBank [m]ortgage,” the jury responded
“NO.” In response to Jury Interrogatory No. 13, “Do you find by the greater weight
of the evidence that U.S. Title failed to follow written closing instructions[,]” the jury
responded “NO.” The trial court subsequently dismissed Johnson’s claim for bad
faith as a matter of law. Johnson moved for a new trial based on cumulative errors,
which the trial court denied without explanation.
Johnson now appeals the trial court’s actions during trial as well as
the trial court’s bifurcation of his bad-faith claim, grant of the directed verdict on his
negligence claim, and denial of his motion for a new trial.
II. Law and Analysis
A. Law of the Case
In his first assignment of error, Johnson argues that the trial court
erred by failing to comply with the “law of the case” created by this court in Johnson,
2017-Ohio-2852, 91 N.E.3d 76. He maintains that our decision “set out a clear
mandate to be followed, which the trial court disregarded.” Specifically, he claims
that this court created law of the case with respect to the following issues:
1. Johnson is entitled to insurance coverage for losses arising out of
mechanic’s liens because U.S. Title did not comply with the closing
instructions;
2. Berns’s signature on the consent clause should have been obtained
and would have protected the priority of KeyBank’s mortgage;
3. An escrow agent owes a fiduciary duty to both parties;
4. An insurance agent has a duty to exercise ordinary care and is
negligent when it fails to procure requested insurance; and
5. Johnson is a third-party beneficiary of the closing instructions.
We review de novo whether the law-of-the-case doctrine applies.
Frazier v. Rodgers Builders, 8th Dist. Cuyahoga No. 91987, 2010-Ohio-3058, ¶ 60.
Under the law-of-the-case doctrine, “the decision of a reviewing court
in a case remains the law of that case on the legal questions involved for all
subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v.
Nolan, 11 Ohio St. 3d 1, 3-4, 462 N.E.2d 410 (1984). The goals of the doctrine are “to
ensure consistency of results in a case, to avoid endless litigation by settling the
issues, and to preserve the structure of the superior and inferior courts as designed
by the Ohio Constitution.” Estate of Mikulski v. Centerior Energy Corp., 2019-
Ohio-983, 133 N.E.3d 899, ¶ 35 (8th Dist.), citing Hawley v. Ritley, 35 Ohio St. 3d
157, 160, 519 N.E.2d 390 (1988). The doctrine “‘compel[s] trial courts to follow the
mandates of reviewing courts[,]’ and trial courts are ‘without authority to extend or
vary the mandate given.’” Id., quoting Hawley at 160. Where a trial court following
remand ‘“is confronted with substantially the same facts and issues as were involved
in the prior appeal, the court is bound to adhere to the appellate court’s
determination.’” Id., quoting Hawley at 160. The law-of-the-case doctrine applies
only to legal issues “that have been decided with finality.” Williams v. Matthews,
8th Dist. Cuyahoga No. 103501, 2016-Ohio-3461, ¶ 7. However, the law of the case
“is considered to be a rule of practice rather than a binding rule of substantive law
and will not be applied so as to achieve unjust results.” Nolan at 3.
Appellees argue that this court’s decision in Johnson, 2017-Ohio-
2852, 91 N.E.3d 76, did not create law of the case because this court applied the
summary-judgment standard, construed the evidence most strongly in favor of
Johnson, and determined that genuine issues of material fact existed on all counts.
However, even appellate decisions that reverse a grant of summary judgment and
remand for the resolution of factual issues can create law of the case if they also make
a legal determination. See Hubbard ex rel. Creed v. Sauline, 74 Ohio St. 3d 402, 659
N.E.2d 781 (1996) (legal finding in opinion reversing grant of summary judgment
created law of the case); Hopkins v. Dyer, 104 Ohio St. 3d 461, 2004-Ohio-6769, 820
N.E.2d 329 (same). Therefore, if we resolved a question of law in Johnson, 2017-
Ohio-2852, 91 N.E.3d 76, we created law of the case on that question.
We reject Johnson’s argument that we created law of the case for four
out of his five propositions. First, to support his assertion that we mandated that
Johnson should have been covered for losses stemming from Berns’s lien because
his owner’s policy should not have included a mechanic’s lien exclusion and U.S.
Title failed to comply with the closing instructions, Johnson cites to footnote 11 and
paragraphs 73 and 74 of Johnson, 2017-Ohio-2852, 91 N.E.3d 76. In these
paragraphs, however, this court found that there were genuine issues of material
fact regarding these issues. We did not make a legal determination or create law of
the case. Indeed, we concluded that Johnson’s entitlement to a mechanic’s lien
exclusion and appellees’ liability under the owner’s policy and closing protection
coverage were questions of fact to be determined on remand. Id. at ¶ 74.
Second, to support his claim that we created law of the case that
Berns’s signature on the consent clause should have been obtained and would have
protected the priority of KeyBank’s mortgage, Johnson cites to paragraphs 64 and
74 of Johnson, 2017-Ohio-2852, 91 N.E.3d 76. Again, in these paragraphs, we did
not make legal determinations or create law of the case. Paragraph 64 merely
describes the closing instructions and states that by including the consent clause, it
“indicates a clear expectation that it should have been signed.” But this statement
is not a legal determination that the consent clause should have been signed. In
conjunction with paragraph 74, we simply concluded that there was a question of
fact as to whether U.S. Title failed to comply with the closing instructions, which
stated that “[a]ll documents are to be executed[.]”
Finally, to support his argument that we created law of the case that
(1) an escrow agent owes a fiduciary duty to both parties, and (2) an insurance agent
has a duty to exercise ordinary care, and is negligent when it fails to procure
requested insurance, Johnson cites to paragraphs 45, 77, 80, and 81 of Johnson,
2017-Ohio-2852, 91 N.E.3d 76. The first three paragraphs are mostly block quotes
from other cases setting forth black-letter law on an escrow agent’s duty, an
insurance agent’s duty, and a fiduciary duty. And we concluded in paragraph 81 that
“[t]he issues of bad faith, negligence, and ordinary care will be addressed upon
remand, based on our findings herein.” Therefore, we did not make legal
determinations on these issues or create law of the case in these paragraphs.
Johnson’s final argument is that we created law of the case that he
was a third-party beneficiary to the closing instructions. Based upon this court’s
determination that he was a third-party beneficiary, he argues that “any evidence
that [he] was not a party to the [c]losing [i]nstructions, or that he could not recover
for a breach of those instructions, is contrary to [our] [d]ecision.” He sets forth
multiple examples of where he claims the trial court allowed improper evidence that
he was not a party to the closing instructions and asserts that he was prejudiced by
such error.
This court did conclude that Johnson had standing to pursue a breach
of contract claim because he was a third-party beneficiary to the closing instructions.
See Johnson at ¶ 66. But even assuming arguendo that the trial court erred in
allowing appellees to present evidence that he was not a party to the closing
instructions, any error would be harmless because the jury found that U.S. Title did
not breach the closing instructions. In response to Jury Interrogatory No. 13, “Do
you find by the greater weight of the evidence that U.S. Title failed to follow written
closing instructions[,]” the jury responded “NO.” This finding is significant because
the closing instructions did not contain any instruction whatsoever requiring U.S.
Title to issue an owner’s policy — let alone with standard provisions omitted — or
to obtain the signature of anyone other than Johnson on any of the closing
documents. Further, any coverage afforded by the closing protection coverage is
expressly limited to the loss of closing funds that resulted from the closing agent’s
failure to follow the written closing instructions. The jury found that U.S. Title
followed the closing instructions. Therefore, even if the trial court allowed evidence
and argument inconsistent with Johnson being a third-party beneficiary to the
closing instructions, the outcome of the trial would have been the same.
Accordingly, we overrule Johnson’s first assignment of error.
B. Directed Verdict on Johnson’s Negligence Claim
In his second assignment of error, Johnson argues that the trial court
erred in granting a directed verdict in favor of U.S. Title on Johnson’s negligence
claim. Specifically, Johnson claims that U.S. Title was negligent by not issuing a title
insurance policy with the standard mechanic’s lien exceptions removed and not
obtaining Berns’s signature on the Consent Clause.3
We review the trial court’s decision to grant a directed verdict de
novo. Taylor-Stephens v. Rite Aid of Ohio, 8th Dist. Cuyahoga No. 106324, 2018-
Ohio-4714, ¶ 53. Civ.R. 50 provides:
When a motion for directed verdict has been properly made, and the
trial court, after construing the evidence most strongly in favor of the
party against whom the motion is directed, finds that upon any
determinative issue reasonable minds could come to but one
conclusion upon the evidence submitted and that conclusion is adverse
to such party, the court shall sustain the motion and direct a verdict for
the moving party as to that issue.
3
Johnson states that the trial court suggested in chambers that Johnson could not
bring claims both for negligence and breach of fiduciary duty because they have two
different standards of care. Because we review the grant of the directed verdict de novo,
we do not consider the trial court’s reasoning, and we never consider a trial court’s
comments that are not in the record.
The Ohio Supreme Court has made clear that “the court must neither
consider the weight of the evidence nor the credibility of the witnesses in disposing
of a directed verdict motion.” Strother v. Hutchinson, 67 Ohio St. 2d 282, 284, 423
N.E.2d 467 (1981). “[I]f there is substantial competent evidence to support the party
against whom the motion is made, upon which evidence reasonable minds might
reach different conclusions, the motion must be denied.” Ruta v. Breckenridge-
Remy Co., 69 Ohio St. 2d 66, 68-69, 430 N.E.2d 935 (1982). But “when the party
opposing the motion has failed to produce any evidence on one or more of the
essential elements of a claim, a directed verdict is appropriate.” Sivinski v. Kelley,
8th Dist. Cuyahoga No. 94296, 2011-Ohio-2145, ¶ 20. “The essential elements of
any negligence action are a duty of care, a breach of that duty, and an injury directly
and proximately resulting therefrom.” Meyer v. Rapacz, 8th Dist. Cuyahoga No.
95571, 2011-Ohio-2537, ¶ 17.
Generally, the duty element in a negligence action is a question of law
for the court to determine. Wallace v. Ohio DOC, 96 Ohio St. 3d 266, 2002-Ohio-
4210, 773 N.E.2d 1018, ¶ 22, citing Mussivand v. David, 45 Ohio St. 3d 314, 544
N.E.2d 265 (1989). It is well settled that an insurance agency owes its customers a
duty to exercise good faith and reasonable diligence in procuring its customer’s
insurance coverage. Slovak v. Adams, 141 Ohio App. 3d 838, 845, 753 N.E.2d 910
(6th Dist.2001), citing Damon’s Missouri, Inc. v. Davis, 63 Ohio St. 3d 605, 590
N.E.2d 254 (1992). We said as much in Johnson, 2017-Ohio-2852, 91 N.E.3d 76, ¶
80. Nonetheless, to survive a directed verdict, Johnson still had to present evidence
of (1) breach of that duty, (2) that the breach proximately caused any harm that he
experienced as a result of the breach, and (3) injury resulting from the breach. After
review, we find that he did not.
Johnson argues that U.S. Title breached its duty in procuring
insurance for him because it failed to ensure that the mechanic’s lien exception was
removed and obtain Berns’s signature on the consent clause in the loan agreement.
In support of his argument that U.S. Title breached these duties, Johnson contends
that he and his attorney instructed U.S. Title to issue him a policy with the same
protections as KeyBank. He maintains that the closing instructions therefore
applied to him, including the provision that U.S. Title must obtain a title insurance
policy that does “not contain any exception or exclusion from coverage based on the
existence or possibility of mechanic’s liens.”
Johnson presented evidence that his attorney instructed U.S. Title’s
closing agent that Johnson “should get every bit of coverage that’s being provided to
the bank in favor of him.” But the record also reflects that neither the closing
instructions nor any party instructed U.S. Title to obtain Berns’s signature on the
consent clause. Therefore, Johnson presented evidence, when viewed in a light most
favorable to him, that U.S. Title breached its duty to procure a policy with no
mechanic’s lien exceptions, but not that U.S. Title breached its duty when it did not
obtain Berns’s signature on the consent clause.
To survive directed verdict regarding U.S. Title’s alleged breach for
failing to procure the proper insurance, however, Johnson still had to present
evidence that the alleged breach in failing to procure an insurance policy with no
mechanic’s lien exclusion was the proximate cause of any harm that he incurred.
After review, we find that Johnson’s evidence of causation, even when viewed in a
light most favorable to him, was problematic because even if his owner’s policy did
not have the mechanic’s lien exclusion, the policy would still not have covered
damages arising from Berns’s lien.
In addition to the mechanic’s lien exclusion, Johnson’s owner’s policy
contained an exclusion that stated:
The following matters are expressly excluded from the coverage of this
policy, and the Company will pay not loss or damage, costs or attorneys
[sic] fees, or expenses that arise by reason of * * * [d]efects, liens,
encumbrances, adverse claims, or other matters * * * attaching or
created subsequent to Date of Policy[.]
Johnson claims that his alleged damages arise from Berns’s
mechanic’s lien. Johnson’s owner’s policy was dated June 2, 2010. In Jury
Interrogatory No. 2, the jury specifically found that no lien or encumbrance existed
on the property as of June 2, 2010. Berns recorded his lien on Johnson’s property
on October 29, 2010, which was long after the date of his owner’s policy. Thus, even
if U.S. Title had removed the standard mechanic’s lien exclusion, Johnson would not
have been covered under the owner’s policy for any losses resulting from Berns’s
lien. Therefore, U.S. Title’s alleged breach of duty to procure an insurance policy for
Johnson with no mechanic’s lien exception did not cause Johnson any damages that
arose from Berns’s lien.
Further, the closing protection coverage provided protection to
Johnson if U.S. Title failed to follow the applicable written closing instructions.
Even Johnson’s expert, Greggo, agreed that a claim under the closing protection
coverage must be based on the failure to follow written closing instructions. The
evidence at trial established that the written closing instructions did not require U.S.
Title to issue an owner’s policy at all or require U.S. Title to obtain Berns’s signature
on the consent clause. Further, the jury found that U.S. Title followed the written
closing instructions. Thus, any alleged breach on the part of U.S. Title in procuring
improper closing protection coverage could not have caused damages to Johnson
for losses resulting from Berns’s lien. Therefore, the trial court did not err when it
granted U.S. Title directed verdict on Johnson’s negligence claim.
Johnson further contends that the trial court’s order granting U.S.
Title directed verdict on his negligence claim was highly prejudicial and reflected the
trial court’s bias against him because the trial court did not grant the motion until
after it instructed the jury on negligence. Johnson maintains that the timing implied
to the jury that Johnson could not prove his negligence claim, which then
undermined Johnson’s claims for breach of fiduciary duty and breach of contract.
Because Johnson’s counsel had just told the jury in closing argument that there was
sufficient evidence to prove a negligence claim, Johnson also contends that the trial
court’s subsequent grant of the directed verdict undercut the credibility of Johnson’s
counsel. We disagree. While the timing of the trial court’s order granting the
directed verdict was unusual, closing arguments are not evidence. Torres v.
Concrete Designs, Inc., 2019-Ohio-1342, 134 N.E.3d 903, ¶ 18 (8th Dist.). The trial
court here instructed the jury that “[t]he evidence does not include the pleadings or
any statement of counsel made during the trial[.] * * * [T]he opening statements and
closing arguments of counsel are designed to assist you and are not evidence.” We
must presume that the jury followed the trial court’s proper instructions. Id.
Moreover, the jury heard extensive closing arguments, and negligence was a
relatively small part. Likewise, there were numerous jury instructions, and
negligence was also a small part of them. Therefore, after review, we find that
Johnson was not prejudiced by the timing of the trial court’s ruling on U.S. Title’s
motion for directed verdict, nor do we find that it reflects any bias against him.
Accordingly, we overrule Johnson’s second assignment of error.
C. Bifurcation of Bad-Faith Claim
In his third assignment of error, Johnson argues that the trial court
erred by bifurcating the entirety of his bad-faith claim instead of just the punitive-
damages evidence.
In his amended complaint, Johnson alleged that appellees breached
their duty of good faith and fair dealing by failing to acknowledge receipt of and
paying Johnson’s title insurance claim. However, Johnson did not oppose U.S.
Title’s motion, filed over seven months before trial, to “bifurcate [Johnson’s] bad
faith and punitive damages claims at trial” pursuant to both R.C. 2315.21(B) and
Civ.R. 42, and he did not timely object to the trial court’s decision to grant the
motion.4 We therefore review this assignment of error for plain error. Goldfuss v.
Davidson, 79 Ohio St. 3d 116, 121, 679 N.E.2d 1099 (1997). Plain errors are those
that prejudice the appellant and that “are clearly apparent on the face of the record.”
Wells Fargo Bank, N.A. v. Lundeen, 8th Dist. Cuyahoga No. 107184, 2020-Ohio-28,
¶ 12. Courts reviewing plain error in civil cases “must proceed with the utmost
caution.” Risner v. Ohio Dept. of Natural Resources, 144 Ohio St. 3d 278, 2015-
Ohio-3731, 42 N.E.3d 718, ¶ 27.
We find no error here, plain or otherwise. R.C. 2315.21(B) requires
trial courts to bifurcate compensatory and punitive damages in tort actions “upon
the motion of either party,” and Civ.R. 42(B) gives trial courts discretion to order a
separate trial on any claim or issue when bifurcation would “promote convenience,
avoid prejudice, or when it would be economically prudent or efficient to do so.”
Flynn v. Fairview Village Retirement Community, Ltd., 8th Dist. Cuyahoga No.
95695, 2013-Ohio-569, ¶ 4, fn. 1; Havel v. Villa St. Joseph, 131 Ohio St. 3d 235, 2012-
Ohio-552, 963 N.E.2d 1270, ¶ 26. When they conflict, R.C. 2315.21(B) trumps Civ.R.
42(B). Havel at ¶ 36.
Here, the statute and the civil rule do not conflict, and the trial court
had discretion to bifurcate the entirety of Johnson’s claim for bad faith. The trial
court granted U.S. Title’s motion to bifurcate, which specifically sought to “bifurcate
Plaintiff’s claim for bad faith under Count VI of the Amended Complaint and for
4 Although during trial Johnson’s counsel stated “for the record, in the plaintiff’s
view, [] the independent tort of bad faith should be in our case in chief,” this statement
came over seven months after the trial court granted the unopposed motion to bifurcate.
punitive damages.” The bifurcation of bad-faith evidence promoted convenience
and efficiency and avoided prejudice because the jury could not find bad faith
without first finding liability on Johnson’s other tort and contract claims. The trial
court complied with R.C. 2315.21(B) by bifurcating the issue of punitive damages to
a second phase of trial, and the trial court exercised its discretion pursuant to
Civ.R. 42(B) to also bifurcate the liability portion of Johnson’s bad-faith claim.
Accordingly, we overrule Johnson’s third assignment of error.
D. The Trial Court’s Management of the Proceedings
In Johnson’s fourth, fifth, and sixth assignments of error, he
challenges the trial court’s management of the trial proceedings. In his fourth
assignment of error, Johnson argues that the trial court erred in denying his motion
for a new trial because the trial court imposed inappropriate time restrictions,
improperly excluded evidence, and submitted jury interrogatories that did not
address a determinative issue and likely confused the jury. In his fifth assignment
of error, Johnson argues that the trial court erred by excluding portions of Ed
Horejs’s video testimony. In his sixth and final assignment of error, he argues that
the trial court was biased against him and in favor of appellees.
Trial courts have broad discretion to “control the flow of trial.” Ridley
v. Fed. Express, 8th Dist. Cuyahoga No. 82904, 2004-Ohio-2543, ¶ 45. We review
the imposition of time limits, the exclusion of evidence, the submission of jury
interrogatories, and the control of witness examinations for abuse of discretion. See
State v. Kay, 12 Ohio App. 2d 38, 49-50, 230 N.E.2d 652 (8th Dist.1967) (time limits
for counsel’s arguments are within the “sound discretion” of the trial court); Fisher
v. Fisher, 8th Dist. Cuyahoga No. 95821, 2011-Ohio-5251, ¶ 5 (“The trial court’s
discretion to admit or exclude evidence is broad”); Marketing Assocs., 8th Dist.
Cuyahoga No. 92292, 2010-Ohio-59, at ¶ 49 (Civ.R. 49 gives trial courts discretion
to review and approve jury interrogatories); Weiner v. Kwiat, 2d Dist. Montgomery
No. 19289, 2003-Ohio-3409, ¶ 16 (trial courts have discretion to control redirect-
examination); State v. Treesh, 90 Ohio St. 3d 460, 480, 739 N.E.2d 749 (2001),
quoting State v. Acre, 6 Ohio St. 3d 140, 451 N.E.2d 802 (1983) (“‘The limitation of
* * * cross-examination lies within the sound discretion of the trial court, viewed in
relation to the particular facts of the case. Such exercise of discretion will not be
disturbed absent a clear showing of an abuse of discretion.’”).
As previously discussed, an abuse of discretion occurs when the trial
court’s attitude is unreasonable, arbitrary, or unconscionable. Marketing Assocs. at
¶ 47. “Appellate courts should defer to trial judges, who witnessed the trial firsthand
and relied upon more than a cold record to justify a decision.” Harris v. Mt. Sinai
Med. Ctr., 116 Ohio St. 3d 139, 2007-Ohio-5587, 876 N.E.2d 1201, ¶ 36.
1. Motion for a New Trial
In his fourth assignment of error, Johnson contends that the
cumulation of errors deprived him of a fair trial. Under the cumulative-error
doctrine, a judgment can be reversed when the cumulation of errors prevents a fair
trial even if each individual error alone does not justify reversal. Daniels v.
Northcoast Anesthesia Providers, Inc., 8th Dist. Cuyahoga No. 105125, 2018-Ohio-
3562, ¶ 66. Under Civ.R. 59(A), a court may grant a new trial based on “[i]rregularity
in the proceedings of the court, jury, magistrate, or prevailing party, or any order of
the court or magistrate, or abuse of discretion, by which an aggrieved party was
prevented from having a fair trial”; “misconduct of the jury or prevailing party”; a
judgment “not sustained by the weight of the evidence”; a judgment “contrary to
law”; “[e]rror of law occurring at the trial and brought to the attention of the trial
court by the party making the application”; and the trial court’s “sound discretion
* * * for good cause shown.” Id. “Civ.R. 59(A) is meant to preserve ‘the integrity of
the judicial system when the presence of serious irregularities in a proceeding could
have a material adverse effect on the character of and public confidence in judicial
proceedings.’” Taylor-Stephens, 8th Dist. Cuyahoga No. 106324, 2018-Ohio-4714,
at ¶ 24, quoting Wright v. Suzuki Motor Corp., 4th Dist. Meigs Nos. 03CA2, 03CA3,
and 03CA4, 2005-Ohio-3494, ¶ 114. Motions for a new trial “are not to be granted
lightly.” State v. Jerido, 8th Dist. Cuyahoga No. 72327, 1998 Ohio App. LEXIS 730,
5 (Feb. 26, 1998).
Johnson contends that the trial court prejudiced him by limiting his
opening statement to twenty minutes, prohibiting his PowerPoint presentation,
“and giving him ten minutes to adjust” after precluding his PowerPoint before giving
a revised opening statement. Johnson further argues that the trial court arbitrarily
limited his counsel’s time to (1) examine him on redirect, (2) cross-examine Chicago
Title’s expert, Waiwood, and (3) examine his rebuttal expert, Greggo.
Johnson argues that the time restriction on his opening statement
was arbitrary and prevented him from presenting key information “in a way that the
jury could easily process and remember[.]” Johnson cites to Yerrick v. E. Ohio Gas
Co., 119 Ohio App. 220, 223, 198 N.E.2d 472 (9th Dist.1964), for the principle that
“[c]ounsel is allowed a wide latitude in the presentation of his oral argument, even
though he is at all such times under the supervision and control of the trial judge.”
This case is in the context of closing arguments as opposed to opening statements,
but we do not disagree with this statement of law and emphasize the “supervision
and control of the trial judge.” “The purpose of an opening statement is to inform
the jury of the nature of the case and to outline the facts involved.” Thompson
Aluminum Casting Co. v. Am. Mfrs. Mut. Ins. Co., 8th Dist. Cuyahoga No. 64977,
1994 Ohio App. LEXIS 1395, 16 (Mar. 31, 1994). The trial court, however, “has broad
discretion to regulate the opening statement.” Riddle v. Butt, 2d Dist. Clark No.
2993, 1994 Ohio App. LEXIS 481, 7 (Feb. 2, 1994) (trial court did not abuse its
discretion in restricting time for and precluding use of photographs in opening
statement).
After review, we find that the trial court did not abuse its discretion
in limiting opening statements and precluding Johnson’s PowerPoint presentation.
The trial court imposed similar time limits on all parties, not just Johnson. Chicago
Title argues that Johnson’s PowerPoint referred to evidence that the trial court
excluded and that Johnson did not fully comply with the trial court’s instructions to
remove certain items from the presentation. Johnson disputes this allegation.
Exclusion for this reason would have been warranted. See Ford v. Gooden, 9th Dist.
Summit No. 23779, 2007-Ohio-7043 (trial court did not err in precluding
PowerPoint from opening statement where presentation included photographs that
had been excluded from evidence). Regardless, the trial court’s reasoning for
preventing Johnson from using the PowerPoint is not in the record on appeal, and
we see no indication that the trial court abused its broad discretion in regulating
opening statements.
In support of his argument that the trial court improperly limited his
examinations of witnesses, Johnson points to three cases. First, in Farmers Natl.
Bank of Springfield v. Frazier, 13 Ohio App. 245 (2d Dist.1920), the Second District
held that the trial court abused its discretion by limiting the cross-examination of
the plaintiff himself (one of only two witnesses in his case in chief) to six minutes.
Second, in Readnower v. Readnower, 162 Ohio App. 3d 347, 349, 2005-Ohio-3661,
833 N.E.2d 752 (2d Dist.), the Second District held that the trial court abused its
discretion by condensing a 2.5-hour hearing into 40 minutes because the court was
“annoyed with the attorneys” for spending the hearing time negotiating. Id. Third,
in In re T.H., 192 Ohio App. 3d 201, 2011-Ohio-248, 948 N.E.2d 524 (2d Dist.), the
Second District held that the trial court erred by limiting a party’s time to present
his case in chief and prohibiting three witnesses from testifying because the trial
court “clearly wanted to conclude the custody trial” that had been rescheduled many
times due to the court’s conflicts.
These cases are distinguishable from the present case, and we find
that the trial court did not abuse its discretion in limiting Johnson’s examinations.
The trial court gave Johnson’s counsel plenty of warning that he was running out of
time to conduct his redirect-examination of Johnson. The trial court asked
Johnson’s counsel to “move along” and “move on” numerous times and reminded
him of the time. The trial court also gave the parties notice of the time restraints for
Waiwood and Greggo: cross-examination of each was limited to 20 minutes, and
Johnson’s direct examination of Greggo was limited to 40 minutes. Unlike Frazier
where the trial court limited the testimony of the primary witness, Waiwood and
Greggo’s testimony was relatively limited in scope, and Johnson himself spent a lot
of time on the stand. Moreover, a review of the record does not demonstrate that
the trial court limited witness examination because it was annoyed with the parties.
Rather, the record shows that the trial court was concerned about the jury’s
attention span after sitting through many days of trial and extensive witness
testimony. Finally, there is no evidence to suggest that the trial court was attempting
to conclude the trial due to the court’s own schedule.
We also do not find that the time limits unduly prejudiced Johnson.
Johnson argues that, given more time on his redirect-examination of Johnson, he
could have introduced an email that referred to a letter that Johnson’s counsel sent
to Chicago Title in April 2012. He contends that this email would have shown that
he timely notified Chicago Title of his claims. However, since the April 2012 letter
was sent to Chicago Title a month after Johnson filed his amended complaint and
joined Chicago Title as a defendant in the case, it would not have been persuasive to
show notice.
Johnson also argues that given more time to cross-examine Waiwood
and examine Greggo, he would have rebutted Waiwood’s testimony that (1) Berns’s
lien was filed after Johnson’s owner’s policy and closing protection coverage were
issued, (2) the mechanic’s lien exception barred coverage under the owner’s policy,
and (3) the closing protection coverage covered only a loss of settlement funds.
However, to rebut Waiwood’s testimony that Berns’s lien was filed after Johnson’s
owner’s policy and closing protection coverage were issued, Johnson had obtained
testimony from Greggo that Berns’s lien should “relate back” to the start of Fyffe’s
construction because Berns’s work was really a continuation of Fyffe’s. Johnson
likewise solicited testimony from Greggo that his owner’s policy should not have
included the mechanic’s lien exception and that a failure to comply with closing
instructions would have impacted coverage under the closing protection coverage.
Therefore, if Johnson had more time to cross-examine Waiwood and examine
Greggo, it would have been duplicative testimony.
Next, Johnson argues that the trial court abused its discretion in
excluding evidence of (1) damages from his arbitration with Berns, (2) Johnson’s
prehearing brief from the arbitration, and (3) communications that U.S. Title had
with its professional liability insurer. Johnson contends that his arbitration
prehearing brief references the lien Berns filed on Johnson’s property, and that the
brief would therefore have shown that the arbitration was directly related to the lien.
He argues that appellees should be liable for his arbitration expenses because had
they complied with the closing instructions and their duty to defend, he would not
have incurred the arbitration expenses. Johnson further argues that the evidence
referencing U.S. Title’s professional liability insurer would have demonstrated that
Johnson had given Chicago Title notice of his claims.
We find that any error the trial court may have made in excluding
evidence of the expenses Johnson incurred through arbitration with Berns and the
arbitration prehearing brief would not justify a new trial. The jury found for
appellees on all counts and did not find that Johnson was entitled to any damages.
Moreover, we find that the trial court did not abuse its discretion in
excluding evidence of communications between U.S. Title and its professional
liability insurer because such evidence is irrelevant. “Evidence which is not relevant
is not admissible.” Evid.R. 402. Evidence is relevant if it has “any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Evid.R. 401.
We fail to see how communications between U.S. Title and its professional liability
insurer would show that Johnson notified Chicago Title of his claims.
Lastly, Johnson asserts that the trial court erred by submitting the
following “highly prejudicial and inaccurate interrogatories” to the jury:
Interrogatory Nos. 10: “Do you find by the greater weight of the
evidence that Johnson gave written notice or statement of a claim
under the Owner’s policy of Title Insurance to Chicago Title Insurance
Company, Attn. Claims Department, P.O. Box 45023, Jacksonville,
Florida 32232-5023? * * * at least six of the eight jurors must agree on
the answer.”
Interrogatory Nos. 19: “Do you find by the greater weight of the
evidence that Johnson gave written notice or statement of a claim
under the Closing Protection Letter to Chicago Title Insurance
Company, Attn. Claims Department, P.O. Box 45023, Jacksonville,
Florida 32232-5023? * * * at least six of the eight jurors must agree on
the answer.”
Johnson argues that these interrogatories suggested that an element of Johnson’s
claims for breach of contract included that he needed to send notice of his claims
to the particular P.O. Box, which likely confused the jury.
“Proper jury interrogatories must address determinative issues and
must be based upon trial evidence.” Ramage v. Cent. Ohio Emergency Serv., Inc.,
64 Ohio St. 3d 97, 107, 592 N.E.2d 828 (1992). Civ.R. 49(B) provides,
The court shall submit written interrogatories to the jury, * * * upon
request of any party prior to the commencement of argument. * * * The
court shall inform counsel of its proposed action upon the requests
prior to their arguments to the jury, but the interrogatories shall be
submitted to the jury in the form that the court approves. The
interrogatories may be directed to one or more determinative issues[,]
whether issues of fact or mixed issues of fact and law.
Interrogatories 10 and 19 addressed whether Chicago Title received
notice of Johnson’s claims, which was determinative of Chicago Title’s defense to
Johnson’s claim for breach of contract against it. Interrogatories 10 and 19 were
also based on trial evidence:
[Counsel for Chicago Title]: Did you ever send notice to Chicago
Title at a post office box in
Jacksonville, Florida?
[Johnson]: No.
We therefore find that the trial court did not abuse its discretion in
submitting Interrogatories 10 and 19 to the jury.
We do not find any individual error to warrant a new trial, nor do we
find the cumulation of errors to justify reversing the jury verdict. The trial court
exercised its broad discretion to keep the trial moving and to avoid losing the jury’s
attention. While we understand Johnson’s frustration with the trial court’s
management of the proceedings, we do not find that he was prevented from having
a fair trial. Accordingly, we do not find grounds for a new trial pursuant to Civ.R.
59(A) and therefore overrule Johnson’s fourth assignment of error.
2. Horejs’s Video Testimony
In his fifth assignment of error, Johnson argues that the trial court
erred by excluding portions of Ed Horejs’s video testimony. Ed Horejs is the vice
president and regional counsel for Fidelity National Title Group, which consists of
three title insurance companies, including Chicago Title. Horejs was unavailable for
trial, and the trial court permitted Johnson to play portions of his video testimony.
Johnson cross-examined Horejs for his case in chief. After U.S. Title examined
Horejs, Johnson conducted recross-examination. Johnson contends that he was
prejudiced when the trial court improperly and arbitrarily struck “substantial
portions” of Horejs’s video testimony.
First, Johnson avers that the trial court improperly excluded his
recross-examination of Horejs and that his recross-examination would have
rebutted Horejs’s testimony that “[1] the [c]losing [i]nstructions were only
KeyBank’s instructions, [2] there was no coverage for post-policy liens, and [3] a
pending disbursement clause should have been used, among other things.” The
scope of Johnson’s recross-examination exceeded that of U.S. Title’s examination of
Horejs, and we do not find that the trial court abused its discretion in excluding it.
Nor did the exclusion of the recross-examination unduly prejudice Johnson. After
reviewing the transcript of Johnson’s recross-examination, we do not identify
testimony that would rebut that the closing instructions were KeyBank’s
instructions. Johnson’s “rebuttal” of Horejs’s testimony that there was no coverage
for post-policy liens is merely confirmation that title insurance covered liens that
existed before closing but do not manifest until after closing, to which Greggo also
testified. Further, we find that Johnson’s dialog with Horejs regarding pending
disbursement clauses likely would have confused the jury. The dialog consisted of
Johnson’s attorney characterizing pending disbursement clauses and when they
should be used, and Horejs disagreeing with the characterizations. It would not
have rebutted Horejs’s testimony.
Second, Johnson argues that the trial court allowed some of Horejs’s
answers while striking his subsequent impeachment. We do not find that the trial
court erred in excluding what Johnson characterizes as impeachment. Horejs
testified that the contractor subordination clause would protect only KeyBank’s first
priority to the extent that the clause could have been enforced. Johnson then
attempted to impeach Horejs with his prior testimony that the contractor’s
subordination would have protected KeyBank’s mortgage. These two statements are
consistent with each other, and Johnson could not use the latter statement for
impeachment.
Third, the trial court excluded testimony about the agency agreement
between appellees, and Johnson argues that Horejs testified that the agreement
required U.S. Title to process claims and give notice to Chicago Title. We find that
any error the trial court made in excluding this testimony is harmless because the
agreement itself was admitted, and Gerome testified about it.
Fourth, the trial court excluded testimony that (1) Horejs attended a
mediation between Berns and Johnson, (2) knew that KeyBank and Johnson
requested that Chicago Title insure through the lien, and (3) was included in
correspondence that Johnson argues would have established that Chicago Title had
notice of Johnson’s claims. We do not find that the trial court abused its discretion
in excluding this testimony because it does nothing to show that Johnson gave notice
to Chicago Title in the manner that the closing protection letter required. Moreover,
Horejs is included on only one of the letters, which was sent to him after Johnson
filed this lawsuit.
Fifth, the trial court excluded testimony that Horejs agreed with an
article that an underwriter should meet with the borrower before closing to “break
down confusing issues.” Johnson contends that such testimony would have
supported his argument that U.S. Title failed to carry out its duties. The article
described best practices, not duties or actions that U.S. Title was required to follow.
We therefore find that the trial court did not abuse its discretion in excluding this
testimony.
Lastly, Johnson claims that the video was “choppy” and prevented the
jury from observing Horejs’s evasive responses. Because the video would have been
disjointed regardless of what the trial court excluded, we do not find that the trial
court abused its discretion.
Accordingly, we overrule Johnson’s fifth assignment of error.
3. Bias
In his sixth and final assignment of error, Johnson argues that the
trial court demonstrated bias against him and in favor of appellees. Johnson
contends that the trial court “repeatedly undermined Johnson’s position in front of
the jury” by telling his counsel to “wrap it up” or “move on”; by interrupting and
attempting to rephrase his counsel’s questions; by interrupting the testimony of his
witnesses and disagreeing with them; and by contradicting and chastising him, his
counsel, and his witnesses “in a pervasive and prejudicial manner[.]”
Johnson did not object to the judge’s actions on which he now relies
to demonstrate bias. We therefore must apply the plain error doctrine. Goldfuss,
79 Ohio St. 3d at 121, 679 N.E.2d 1099.
The Ohio Supreme Court has defined judicial bias as,
a hostile feeling or spirit of ill will or undue friendship or favoritism
toward one of the litigants or his attorney, with the formation of a fixed
anticipatory judgment on the part of the judge, as contradistinguished
from an open state of mind which will be governed by the law and the
facts.
State v. Dean, 127 Ohio St. 3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 48, quoting
State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956).
We have previously determined:
If the trial judge forms an opinion based on facts introduced or events
occurring during the course of the current or prior proceedings, this
does not rise to the level of judicial bias, “unless [the opinions] display
a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Dean, ¶ 49, quoting Liteky v. United States, 510 U.S. 540,
555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). Accordingly, “judicial
remarks [made] during the course of trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.” Id., quoting
Liteky at 555. In contrast, such remarks, “may [support a bias
challenge] if they reveal an opinion that derives from an extrajudicial
source; and they will [support a bias challenge] if they reveal such a
high degree of favoritism or antagonism as to make fair judgment
impossible.” (Emphasis sic.) Id., quoting Liteky at 555.
State v. Hough, 2013-Ohio-1543, 990 N.E.2d 653, ¶ 11 (8th Dist.) (holding that
judge’s online post about race and the death penalty the same day as the defendant’s
sentencing was not judicial bias); see also State v. McCauley, 8th Dist. Cuyahoga
No. 103681, 2016-Ohio-5411, ¶ 8 (citing Hough and finding trial judge’s comment
that the criminal defendant “dodged a bullet” did not rise to the level of judicial bias).
There is a presumption that “a judge is unbiased and unprejudiced in
matters over which he or she presides, and the appearance of bias or prejudice must
be compelling in order to overcome this presumption.” State v. Reese, 8th Dist.
Cuyahoga No. 107714, 2019-Ohio-4670, ¶ 24. The Chief Justice of the Ohio
Supreme Court, or his or her designee, has the “exclusive jurisdiction to determine
a claim that a common pleas judge is biased or prejudiced.” Jones v. Billingham,
105 Ohio App. 3d 8, 11, 663 N.E.2d 657 (2d Dist.1995), citing Section 5(C), Article
IV, Ohio Constitution. While appellate courts have no such authority, we can review
biased comments for due-process violations. Reese at ¶ 24.
The record does not reflect that the trial court acted with bias against
Johnson. The trial court instructed all counsel to “move on,” rephrased questions,
and interrupted testimony of all counsel and witnesses, not just Johnson’s. The trial
court’s interruption of both sides does not demonstrate bias against Johnson. See
State v. Cepec, 149 Ohio St. 3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 82 (finding
no bias in part because the trial judge interrupted both sides a similar number of
times and asked many witnesses questions).
Moreover, the Ohio Rules of Evidence permit trial judges to question
witnesses. Evid.R. 614(B) (“The court may interrogate witnesses, in an impartial
manner, whether called by itself or by a party.”). The testimony on which Johnson
relies to show bias demonstrates that the trial court was attempting to keep the trial
moving, ensure that attorneys laid a proper foundation for witnesses’ testimony, and
clarify confusing factual issues. Even though the trial court’s management of the
proceedings curtailed parts of Johnson’s arguments and examinations, we do not
find that the trial court “display[ed] a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Hough, 2013-Ohio-1543, 990 N.E.2d 653,
at ¶ 11.
Accordingly, we overrule Johnson’s sixth assignment of error.
Judgments affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___________________________
MARY J. BOYLE, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
RAYMOND C. HEADEN, J., CONCUR