Simon v. Aulino

[Cite as Simon v. Aulino, 2020-Ohio-6962.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
Cathy Lynn Simon, : Case No. 18CA1076
Plaintiff-Appellee/ :
Cross-Appellant,
:
v. DECISION AND
: JUDGMENT ENTRY
Paula Lee Aulino,
:
Defendant-Appellant/
Cross-Appellee. : RELEASED 12/23/2020
APPEARANCES:
Patrick Kasson, Reminger Co., L.P.A., Columbus, Ohio for Defendant-Appellant/Cross-
Appellee.
Brian S. Sullivan, Sarah B. Cameron, Dinsmore & Shohl, LLP, Cincinnati, Ohio and
John B. Caldwell, Young & Caldwell, LLC, West Union, Ohio for Plaintiff-
Appellee/Cross-Appellant.
Hess, J.
{¶1} This case involves an intense dispute between two sisters, Cathy Simon
and Paula Aulino, over the inheritance left by their father Wayne Chamblin. Cathy Simon
learned that their father effectively disinherited her and sued her sister Paula Aulino,
believing that Paula wrongfully caused their father to disinherit her. The jury agreed that
Paula Aulino acted wrongfully and awarded damages to Cathy Simon. Paula Aulino
appeals claiming she did nothing wrong and Cathy Simon cross-appeals claiming she is
entitled to even greater monetary damages than the jury awarded.
{¶2} Defendant-Appellant/Cross-Appellee Paula Lee Aulino appeals the trial
court’s denial of her motions for a directed verdict and judgment notwithstanding the
Adams App. No. 18CA1076 2
verdict following a jury trial in which Paula Aulino was found liable for tortiously interfering
with the inheritance of her sister Cathy Simon, breaching her fiduciary duties to her sister
and liability to her under promissory estoppel. Aulino also appeals the jury verdict
contending it should be overturned because of opposing counsel’s misconduct at trial.
{¶3} Paula Aulino’s sister, Plaintiff-Appellee/Cross-Appellant Cathy Lynn Simon,
cross-appeals the trial court’s denial of her motion for a new trial and judgment
notwithstanding the verdict on damages. Cathy Simon contends that the damage award
of $330,693.00 was inadequate, too small and against the manifest weight of the
evidence and she sought to increase damages, which the trial court denied.
{¶4} Paula Aulino raises three assignments of error for our review. The first two
are related and we consider them together. First, she contends that the trial court erred
in denying her motions for a directed verdict and judgment notwithstanding the verdict
because there was no evidence to support the jury’s verdict that she breached a fiduciary
duty, that she unduly influenced their father so that he disinherited Simon, or of Simon’s
reliance on Aulino’s promise to give half of her inheritance to Simon. Second, Aulino
contends that the verdict was against the manifest weight of the evidence.
{¶5} We find that the evidence supports the jury’s finding that Wayne Chamblin
could be influenced by reason of advanced age, physical infirmities, and mental condition.
A number of witnesses testified that Chamblin was an elderly person in his mid-to-late
70s, had suffered a prolonged period of depression after his wife’s death, had closed his
family furniture business for a period of time, had a number of very serious health issues,
and was susceptible to financial exploitation and manipulation by others.
Adams App. No. 18CA1076 3
{¶6} Sufficient evidence exists to support the jury’s verdict that Aulino exerted
undue influence over Chamblin, which caused him to execute certain transfer on death
directives to Aulino on the assets at issue. Evidence of Chamblin’s age and mental state
during the time periods of the transfers at issue, his love and value of family and
forgiveness, his pride in and love for Simon, the conversations he had with others, the
provisions of his will, the timing, frequency, and intensity of Aulino’s conversations with
Chamblin in late 2007 to early 2008, and the influence Aulino exerted over him in 2010
are all factors for the consideration of the jury. The jury could reasonably infer from the
circumstances that Aulino used Simon’s ex-husband, Ed West, West’s lies, and
Chamblin’s emotional breakdown stemming from West’s lies, to exercise undue influence
over Chamblin and cause him to make the transfers to her at a time when she was
admittedly “as mad as hell” at Simon. The jury could also reasonably infer that in 2010
Aulino exercised undue influence over Chamblin, a man she believed to be susceptible
to financial exploitation, to transfer management of his retirement accounts to Aulino’s
father-in-law and to execute a transfer on death directive to Aulino as a means of diverting
the funds away from Chamblin’s direct control and securing them for herself. We overrule
Aulino’s first and second assignments of error.
{¶7} In her third assignment of error, Aulino contends the verdict should be
overturned because of Simon’s counsel’s misconduct at trial. However, Aulino did not
object to any of the questions or statements she now contends were improper and has
forfeited all but plain error. This is not one of the extremely rare civil cases in which plain
error challenging the legitimacy of the underlying judicial process itself occurred. We
overrule Aulino’s third assignment of error.
Adams App. No. 18CA1076 4
{¶8} Cathy Simon raises two assignments of error in her cross-appeal. She
contends that the trial court erred in denying her motion for a new trial on damages and
in denying her motion for judgment notwithstanding the verdict as to damages. However,
Simon presented very little testimony to help the jury understand her evidence of
damages. She also included a number of assets owned by Chamblin Furniture Co., which
were not owned by Wayne Chamblin and would not have transferred to Aulino upon
Chamblin’s death. Based on our review of the record, the jury did not lose its way. The
compensatory damage award is not against the manifest weight of the evidence, nor is it
too small or inadequate. As to the punitive damage component of her claim, she did not
object to the procedure the court employed to address the inconsistency between the
punitive damages and attorney fee awards. Thus, she waived any errors in the manner
in which the court addressed the inconsistency.
{¶9} We affirm the trial court’s judgment.
I. PROCEDURAL BACKGROUND
{¶10} Paul “Wayne” Chamblin died in February 2016. He was survived by his two
daughters, Paula Aulino and Cathy Simon. Wayne Chamblin’s will devised his estate
equally to his two daughters. However, he transferred significant assets by “transfer on
death” directives to Aulino during the years prior to his death, resulting in significantly
fewer assets to be devised under the will.
{¶11} In June 2016, Simon filed a complaint against Aulino asserting claims for
tortious interference with expectancy of inheritance, a declaratory judgment that the
transfer on death directives were invalid and ordering them returned to Chamblin’s estate,
promissory estoppel, constructive trust, breach of fiduciary duty and resulting conversion
Adams App. No. 18CA1076 5
of trust assets. Simon alleged that prior to his death, her father Wayne Chamblin owned
a furniture store, Chamblin Furniture Co., real estate, and bank accounts totaling over $1
million. She alleged that although his will devised all of the assets to Simon and Aulino
equally, Aulino unduly influenced their father into leaving Aulino substantially all of his
assets upon death. Simon alleged that when she divorced her husband, Ed West, and
moved to Georgia in November 2007, Aulino began a “smear campaign” against her to
their father and engaged Simon’s ex-husband West to join Aulino in her efforts. As a
result, Chamblin executed transfer on death directives for all of his assets in favor of
Aulino. As a result of Aulino’s interference with her expectancy of inheritance, Simon
contends that she was entitled to half of Chamblin’s assets.
{¶12} Simon asserted additional alternative legal claims, which if proven would
also entitle her to an award of half the assets. She sought a declaratory judgment that
Aulino procured the transfer-on-death directives by undue influence and fraud. She
contended that Aulino’s status as Chamblin’s power-of-attorney placed her in a fiduciary
capacity for which undue influence is presumed. Simon sought a declaration that all
transfer on death directives were invalid, and the assets should be returned to Chamblin’s
estate. Simon alleged that shortly before Chamblin died, Aulino promised to give Simon
half of the assets Aulino acquired upon their father’s death and Simon relied on the
promise by not seeking a way to revoke the transfer on death directives before their father
died. Thus, Simon was entitled to half the estate assets under the theory of promissory
estoppel. Simon asked the trial court to impose a constructive trust over half of the assets.
Last Simon alleged that her father created a trust when he executed the transfer on death
Adams App. No. 18CA1076 6
directives in favor of Aulino, with Aulino as the trustee. Simon alleged that Aulino
breached her fiduciary duties under the trust by withholding Simon’s half of the assets.
{¶13} Aulino filed a motion to dismiss for lack of subject matter jurisdiction and a
motion for summary judgment; the trial court denied both motions. The case proceeded
to a jury trial.
{¶14} The jury returned a verdict in favor of Cathy Simon and awarded
compensatory damages of $330,693. The jury found that Paula Aulino intentionally
interfered with Simon’s expectancy of inheritance from their father and Simon suffered
damages as a result. They also found Aulino liable to Simon for promissory estoppel and
that Aulino breached her fiduciary duty to Simon as trustee under an oral trust. However,
they found that Chamblin did not create a trust over Simon’s share of assets. Although
the jury did not award Simon punitive damages, they answered affirmatively when asked
to award Simon attorney fees. The trial court entered judgment in favor of Simon in the
amount of $330,693, plus costs and post-judgment interest, but denied her declaratory
judgment request.
{¶15} Both Simon and Aulino filed post-trial motions. Aulino sought a judgment
notwithstanding the verdict as to her liability. Simon sought a new trial on damages, or
alternatively an additur or a judgment notwithstanding the verdict. The trial court denied
both motions.
{¶16} Paula Aulino appealed and Cathy Simon cross-appealed.
II. ASSIGNMENTS OF ERROR
{¶17} Paula Aulino assigns three errors for review:
Adams App. No. 18CA1076 7
I. THE TRIAL COURT ERRORED [SIC] TO THE PREJUDICE OF MS. AULINO
BY NOT GRANTING MS. AULINO’S MOTIONS FOR DIRECTED VERDICT AND
MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.
II. THE TRIAL COURT ERRORED [SIC] TO THE PREJUDICE OF MS. AULINO
BY NOT GRANTING HER A JUDGMENT NOTWITHSTANDING THE VERDICT
BECAUSE THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
III. THE VERDICT SHOULD BE OVERTURNED DUE TO MS. SIMON’S
COUNSEL’S MISCONDUCT AT TRIAL.
{¶18} Cathy Simon assigns two errors for review:
I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLEE/CROSS-
APPELLANT’S MOTION FOR A NEW TRIAL ON DAMAGES.
II. THE TRIAL COURT ERRED IN DENYING PLAINTIFF-APPELLEE/CROSS-
APPELLANT’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
AS TO DAMAGES.
III. LEGAL ANALYSIS OF AULINO’S APPEAL
A. Standard of Review
{¶19} In her first two assignments of error Aulino asserts that the trial court erred
in denying her motion for directed verdict and her motion for judgment notwithstanding
the verdict. Both a motion for a directed verdict and a motion for judgment notwithstanding
the verdict test the sufficiency of the evidence and therefore present a question of law
which we review de novo. Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 25. In deciding a motion for directed verdict under Civ.R. 50(A) or a motion
for a judgment notwithstanding the verdict under Civ.R. 50(B) the court must construe the
evidence in favor of the nonmoving party. Only if the court finds that upon any
determinative issue reasonable minds could come to but one conclusion and the moving
party is entitled to judgment as a matter of law, the court must grant the motion. Vance v.
Consol. Rail Corp., 73 Ohio St. 3d 222, 231, 652 N.E.2d 776 (1995); Bungard v. Jeffers,
Adams App. No. 18CA1076 8
2014-Ohio-334, 8 N.E.3d 336, ¶ 11 (4th Dist.). In doing so, a trial court may not weigh the
evidence or judge witness credibility. Id. at ¶ 11; Martin v. Jones, 2015-Ohio-3168, 41
N.E.3d 123, ¶ 35 (4th Dist.). If there is a rational basis for the jury’s verdict, a court must
not intercede. Krannitz v. Harris, 4th Dist. Pike No. 00CA649, 2001-Ohio-2683, *3.
{¶20} Because the standard for directed verdict is the same as for judgment
notwithstanding the verdict, our finding as to the assignment of error on one of the motions
supports the same finding on the other motion. See Redman v. Watch Tower Bible and
Tract Soc. Of Pennsylvania, 6th Dist. Wood No. 91WD071, 1992 WL 193533, *7 (Aug.
14, 1992).
B. Intentional Interference with Expectancy of Inheritance
{¶21} In her first two assignments of error, Aulino argues that the trial court erred
as a matter of law when it denied her motions for a directed verdict and for a judgment
notwithstanding the verdict on Simon’s claim for intentional interference with expectancy
of inheritance.
{¶22} The essential elements of a claim for intentional interference with an
expectancy of inheritance are: (1) an existence of an expectancy of inheritance in the
plaintiff; (2) an intentional interference by the defendant; (3) conduct by the defendant
involving the interference which is tortious in nature, such as fraud, duress or undue
influence; (4) reasonable certainty that the expectancy of inheritance would have been
realized but for the interference by the defendant; and (5) damages. Firestone v.
Galbreath, 67 Ohio St. 3d 87, 88, 616 N.E.2d 202, 203 (1993). “Undue influence occurs
when the wishes and judgment of the transferor are substituted by the wishes and
Adams App. No. 18CA1076 9
judgment of another.” Grimes v. Grimes, 4th Dist. Washington No. 08CA35, 2009-Ohio-
3126, ¶ 36.
1. Susceptibility
{¶23} Aulino challenges the second and third element of the claim and argues that
there was no evidence that her father was susceptible to undue influence or that she
exercised undue influence over him to interfere with Simon’s inheritance. She argues that
because there was testimony that Chamblin was strong-willed and not suffering from
mental health problems or declining cognitive abilities, he was not susceptible to undue
influence at the time of the transfers in late 2007 and early 2008 and in 2010. Simon
contends that the record contains substantial competent evidence that Chamblin was in
a weakened physical, mental, and emotional condition that made him susceptible to
undue influence. Chamblin was born in October 1932, was 83 years old at the time of his
death, and in his mid-to-late 70s during the relevant time period.
{¶24} Wayne Chamblin’s brother Milton Chamblin testified that Wayne Chamblin
and his wife Joyce had been married and operated the Chamblin Furniture Co. together
for over 40 years before Joyce Chamblin died in 2003. Milton testified that Wayne was
devastated by the death of his wife and he eventually closed the Chamblin Furniture Co.
because business had slowed and Wayne lacked the desire to operate the store after
Joyce died even though the store “was where his life was.” Milton testified that the store
closing, which occurred in December 2005, left Wayne with nothing to do in his life. Milton
testified that Wayne decided to reopen the furniture store in May 2008 because Wayne
was tired of having nothing to do and had explained to Milton that he had formed a
corporation with his daughters and the three of them were partners. Wayne explained to
Adams App. No. 18CA1076 10
Milton that this would allow the company to pass directly to his two daughters and avoid
probate. Milton testified that Wayne was not a vengeful person and would not take action
to get back at a person.
{¶25} Kathy Meade testified that she knew Wayne Chamblin since she was a child
and, as an adult, had worked at the furniture store after Wayne’s wife died. Meade testified
that the loss of his wife was a devastating event for Chamblin and he was a “lost” man;
for more than a year after her death, Chamblin went to the graveyard to visit his wife’s
grave and sat for an hour each day. Meade testified that the furniture store was Wayne’s
“ministry” and “was more than a job.” Meade testified that Chamblin “went through a really
deep depression” and “wasn’t fixing his hair like he did every day. His clothes were not
perfect.”
{¶26} Meade testified that Chamblin appeared to come out of his depression when
he started spending time with Dr. Susan Blanton,1 a woman he started a relationship with
in late 2008. Meade testified that Chamblin told her that he was “smitten” with Dr. Blanton.
Chamblin asked Meade not to tell anyone because he had not had a chance to tell Simon
and Aulino about the relationship. Meade testified that later Chamblin was “all tore up
again and very upset.” Meade said Chamblin told her that he had ended his relationship
with Dr. Blanton because his daughters did not like him being in the relationship, believed
that Dr. Blanton was using him for his money, and believed that he was spending too
much money on her. Meade testified that Chamblin told him that instead of spending time
with Dr. Blanton, Paula Aulino had asked Chamblin to visit her on the weekends. Meade
1 In the record, Dr. Susan Blanton is also referred to as Dr. Susan Reed or Dr. Susan Duncan.
Adams App. No. 18CA1076 11
testified that Chamblin ended his relationship with Dr. Blanton even though it appeared
to Meade to be something that Chamblin did not want to do.
{¶27} Cathy Simon also testified that Paula Aulino told her she thought Dr. Blanton
was taking advantage of Chamblin during 2010. Simon testified that Aulino called Simon
and asked her to come up from Georgia so the two of them could talk to Chamblin, “like
an intervention.” Simon testified that she and Aulino went to dinner with Chamblin and
Dr. Blanton. Simon could see that Chamblin was happy and she told Chamblin that she
wasn’t unhappy about the relationship, but she only wanted to make sure he was not
taken advantage of and that if he wanted to be in a relationship with Dr. Blanton, he
should.
{¶28} Meade testified that she was cleaning the furniture store one day and found
a photograph of Cathy Simon with an unknown man on a bookshelf in Wayne Chamblin’s
office. Meade asked Chamblin about it and he told her that Simon was living with the
man in Georgia. Chamblin told Meade that he had not spoken to Simon about it and
Simon did not know he had the photograph, but that he had heard from a “good authority”
that Simon was living with the man. Meade testified that she had never seen Chamblin
so angry. Chamblin told Meade that he was going to cut Simon out of his will. Meade
said she asked Chamblin if he planned to do this without even talking to Simon and he
replied “Oh, I know things” and “I have it on good authority.” Chamblin told Meade that
he had also been in contact with Ed West, Simon’s ex-husband, and that Chamblin had
had dinner with Aulino and West. Meade testified that rather than being a photograph of
a live-in boyfriend, she believed the photograph showed Simon displaying a room she
had designed with furniture she had sold to the man in the photograph.
Adams App. No. 18CA1076 12
{¶29} Meade testified that the intensity of anger Chamblin experienced over the
photograph “just floored” her as she had never seen him so angry. Meade testified that
she spoke to Chamblin several times about his will and that “it tore me up because I can’t
imagine. Wayne is the most loving man I’ve ever met. He really is. Loving father. What
would ever – who could possibly make him think something was true that would turn him
against his own flesh and blood.”
{¶30} Meade testified that her own brother had drug addiction issues and she had
not spoken to him in several years. When Meade learned her brother was hospitalized,
Chamblin told her to go to the hospital because “we don’t turn our backs on family.
Everybody gets a second chance.” When Meade’s brother turned his life around,
Chamblin gave Meade $500 and some furniture to help him out. Meade testified that
Chamblin’s reaction to Simon was such a departure of character that she told Chamblin
that Simon had confided in Meade that Simon’s marriage to Ed West was like a brother-
sister relationship and she had been very lonely for years. Meade said Chamblin’s
reaction to this information was that he was “really shocked.”
{¶31} Meade said that several years later she had a follow up discussion with
Chamblin about Simon and the will and Chamblin told her that Simon had her life on the
right track, and he was thrilled and proud of her. As for his will, Chamblin told Meade that
it would go back to the original will and that he had not altered the will. Meade testified
that Chamblin believed strongly in forgiveness and that he had restored his relationship
with Simon completely and Simon had moved back into the family home with Chamblin
and was helping with the furniture store. Meade testified that Chamblin talked about going
into business together with Simon and Aulino.
Adams App. No. 18CA1076 13
{¶32} Richard Throckmorton testified that he knew Chamblin for the past 20 years
and he considered Chamblin his best friend. Throckmorton testified that Chamblin was
not a vengeful person and did not hold grudges. Throckmorton testified that it took
Chamblin “quite a few years” to get over the death of his wife and when Chamblin became
involved with Dr. Blanton it was the first time Chamblin had been happy since his wife
died. Throckmorton testified that Chamblin paid him to install a new roof on Dr. Blanton’s
medical office building and for a new roof, floor coverings, paint and the installation of 20
new windows at Dr. Blanton’s home. Throckmorton asked Chamblin about it and
“probably got more involved than I probably should have. And then I just backed off
because Wayne seemed happy. So I just let – backed off of that.”
{¶33} Simon testified about her father’s health issues, his kidney, prostate and
skin cancers, and his heart issues. Simon testified that Chamblin had one kidney removed
and was very fearful of losing his other kidney because Chamblin’s brother had been on
dialysis. Simon testified that concerns for his kidney made Chamblin “fanatical” about his
diet. Simon testified that Chamblin was devastated by the death of his wife, closed the
furniture store, was lonely and depressed, and had a hard time dealing with the loss for
many years.
{¶34} Bryan Swords worked at Chamblin’s furniture store from 2009 until it closed
after Chamblin died. He testified that Chamblin went into kidney failure in 2012 and Simon
moved from Georgia back to Ohio and moved in with Chamblin to take care of him and
help him run the furniture business. Simon opened a fashion boutique inside the furniture
store that brought more customers into the store. Swords testified that after Chamblin’s
kidney failure in 2012, Chamblin was always tired and was on a vegan diet for health
Adams App. No. 18CA1076 14
reasons. Swords would come into Chamblin’s office to find him asleep in a chair or asleep
with his head down on his desk. Swords would walk away, leaving Chamblin to rest.
{¶35} Dr. Parrott, Chamblin’s family physician also testified about the severity of
Chamblin’s medical conditions and Chamblin’s medical records were admitted as an
exhibit.
{¶36} Both Simon and Aulino testified about another period in which Chamblin
had been financially exploited. They testified that they had been unaware that a neighbor,
Steve Osmond, was receiving money from Chamblin and these transfers began in 2013
when Chamblin was 81 years old and continued until a month before Chamblin died. The
amount of the transfers ranged from $450 to $6000 and totaled over $28,000 by the time
of Chamblin’s death. Simon testified that Chamblin told her he had loaned Osmond a
small sum of money but it was not until Chamblin was near death that both she and Aulino
discovered the frequency and size of the monetary transfers. (Tr. 937) Aulino testified she
did not know about the transfers until Chamblin was hospitalized in 2016. Aulino testified
that she was concerned that Osmond was taking advantage of her father, she contacted
the family attorney, and texted a message to Simon, “Sounds like he [Osmond] took
advantage of an elderly person.”
{¶37} Aulino testified that in 2010 she believed Chamblin was being financially
exploited by Dr. Blanton. Aulino convinced Chamblin to sever his relationship with Dr.
Blanton. Aulino testified that 2010 was also the year Chamblin changed investment
accounts to be transfer on death to Aulino and changed the management of the
investments to Aulino’s father-in-law at Wells Fargo. Telephone records show that Aulino
Adams App. No. 18CA1076 15
spoke to Chamblin the same day he called Wells Fargo but she denies having any
knowledge of the transfer on death designation.
{¶38} We find sufficient evidence in the record for the jury to find by clear and
convincing evidence that Wayne Chamblin could be influenced by reason of advanced
age, physical infirmities, and mental condition. Chamblin was an elderly man in his mid-
to-late 70s. A number of witnesses testified that Chamblin had suffered a prolonged
period of depression that started when his wife died in 2003 and continued up through
late 2008, he had closed his family furniture business for a period of time beginning in
late 2005 through mid-2008, which resulted in a loss of social contact and life purpose,
had a number of very serious health issues, and would yield to the will or desires of others
on financial matters.
{¶39} There was evidence that Throckmorton, Aulino, and Simon were all
concerned he was being financially exploited by Dr. Blanton during that relationship which
began in late 2008. Even though many witnesses, including Aulino and Simon, described
Chamblin as “strong-willed” and his family physician, Dr. Parrott, did not believe Chamblin
suffered from mental health issues or cognitive decline, evidence of dementia or mental
illness is not required to show a person is susceptible to undue influence. A number of
witnesses testified that Chamblin was profoundly depressed and isolated during 2007
and 2008. Aulino and Simon believed their father was susceptible as an elderly person to
financial exploitation by Dr. Blanton in 2010 and Osmond beginning in 2013. There was
sufficient evidence for a reasonable person to conclude clearly and convincingly that
Chamblin could be improperly influenced during the time periods the transfers occurred.
Adams App. No. 18CA1076 16
2. Evidence of Undue Influence or Fraud
{¶40} Aulino contends there was no evidence that she exerted undue influence
over Chamblin. Simon contends that while there may not be direct evidence, there was
more than sufficient indirect evidence for the jury to reach this conclusion.
{¶41} Exercise of undue influence “need not be shown by direct proof, but maybe
inferred from the circumstances.” Calloway v. Roy, 10th Dist. Franklin No. 77AP-301,
1977 WL 200400 (Sept. 8, 1977). Where there is evidence sufficient to raise a question
of undue influence, a jury verdict finding that undue influence occurred will not be
disturbed by a reviewing court. Id. We recognize the “inherent difficulty a plaintiff faces
in proving the allegations of undue influence.” Rich v. Quinn, 13 Ohio App. 3d 102, 104,
468 N.E.2d 365 (12th Dist. 1983). “[I]ssues related to undue influence are generally
determined upon circumstantial evidence and inferences drawn from a full presentation
of facts which may be inconclusive when viewed separately * * * .” Bd. of Edn. Of
Pickaway Tp. Rural School Dist. v. Phillips,103 Ohio St. 622, 626, 134 N.E. 646, 648
(1921) (finding the trial court erred in removing the issue of undue influence from the jury’s
consideration). “[T]he evidence concerning the mental and physical condition of the
testator, his habits of life, his conversations * * * with other persons more or less
interested, the provisions of the will itself, all of these matters present a situation for the
consideration of the jury.” Id. “Different minds might reasonably differ as to the inference
to be drawn from the competent evidence, and it was the duty of the jury to draw these
inferences after considering all the circumstances in the case in light of the evidence * *
*.” Id. at 627. Additionally, “the existence of a family or a confidential or quasi-confidential
relationship” between the parties to the transaction is “an important factor in determining
Adams App. No. 18CA1076 17
the presence of undue influence.” Grimes v. Grimes, 4th Dist. Washington No. 08CA35,
2009-Ohio-3126, ¶ 40.
{¶42} In 2003 Wayne Chamblin prepared a will in which he distributed all of his
property to Simon and Aulino equally, he executed a power of attorney naming both
Simon and Aulino, and he executed a health care power of attorney naming both Simon
and Aulino as alternate agents. The parties point to two periods that Chamblin changed
his estate plans. First in December 2007 to February 2008 and then again in November
2010.
{¶43} During the first time period, after spending Christmas Day with Ed West
(Cathy Simon’s ex-husband) and Paula Aulino, on December 26, 2007, Chamblin and
Aulino went together to the bank and changed the signatures on the Chamblin Furniture
corporate bank account to remove Simon from the account. The next day, December 27,
2007, Chamblin changed the beneficiary on his life insurance policy to make Aulino his
sole beneficiary. Then Chamblin contacted his attorney, John Lawler, in January 2008 to
(1) change the deed to his home to a transfer on death deed to Aulino, which was
recorded February 1, 2008; (2) change Chamblin’s shares in Chamblin Furniture to make
them transfer on death to Aulino; and (3) create new power of attorney, healthcare power
of attorney and living will giving those powers to Aulino.
{¶44} John Lawler, Wayne Chamblin’s attorney, testified that Chamblin met with
him in mid-January 2008 to discuss these changes. Lawler testified that Chamblin told
him his motivation for the change was Simon’s divorce from Ed West and that Chamblin
was also interested in avoiding probate. Lawler testified that Chamblin told him that
Adams App. No. 18CA1076 18
Aulino would manage it and “do the right thing.” Lawler testified that he sent a copy of all
of the documents, including the transfer on death deed, to Aulino in February 2008.
{¶45} Yet Aulino denied she had conversations with Chamblin about disinheriting
Simon and testified that she did not look closely at the documents Lawler sent to her so
she was unaware that the deed to his home had been changed to transfer to her upon
death. Aulino testified that she talked with Chamblin at some point in 2008 after he had
made changes to the accounts, and Chamblin told her that he would like her to “provide
shelter” to Simon. Aulino claims she thought his statement odd, but did not ask Chamblin
about it. Aulino denied having any knowledge of the December 2007 and February 2008
transfers, other than the bank account signature change she co-signed. She testified that
Chamblin’s “provide shelter” comment gave her “the impression that there was something
that I may be getting more when he passed away.” Aulino also denied having any
knowledge of Chamblin’s will or the wishes expressed in it.
{¶46} In November 2007 Simon and West divorced and Simon moved to Georgia
to live with another man. Testimony and telephone records show that prior to November
2007, West and Aulino did not communicate directly with each other. However, beginning
on November 8, 2007 and for the remaining months of November, December, and
January, Aulino and West had almost daily telephone conversations, some days multiple
conversations. Aulino placed calls to West almost daily during November 2007 talking to
him 33 times for a total of 538 minutes. The same pattern continued in December 2007
and January 2008. Aulino testified that she was also talking frequently to her father
Chamblin about Simon and West.
Adams App. No. 18CA1076 19
{¶47} Although Aulino had very frequent conversations with West and Chamblin
during this time period, she denied having any knowledge that, according to West,
Chamblin travelled from Ohio to Indiana to West’s home to discuss Simon. Aulino testified
that West had told her that Simon was a drug addict and told her “a lot of disparaging
things about my sister.” Aulino testified that she encouraged her father to reach out to
West to find out what was going on, but she claims she did not know that West would say
the same disparaging remarks to him. Aulino testified that she sided with West and did
not talk to Simon during that time period because Aulino “was mad as hell at my sister.”
But, in May 2008, after the birth of Aulino’s daughter, Aulino decided to reach out to
Simon. Aulino and Simon had a good, loving relationship from mid-2008 up until their
father’s last days in February 2016.
{¶48} Ed West testified that he told Chamblin that Simon was having an affair with
a man in Georgia and had moved there to live with him. West also testified that he told
Chamblin about a series of lies Simon had told, such as having cancer, and that Simon
had surgeries for the sole purpose to obtain painkillers because she was a drug addict.
West also lied to Chamblin about conversations Simon had with her mother -- Chamblin’s
deceased wife, all of which West later admitted were all lies about Simon. West testified
that after he spent approximately three hours talking to Chamblin in this untruthful
manner, Chamblin had a tearful breakdown and later called West to inform him he was
going to contact his attorney and the bank, to disinherit Simon and remove her from
accounts.
{¶49} West testified that he encouraged Chamblin to reach out to Aulino about his
decision to disinherit Simon. West testified that Chamblin responded that he planned to
Adams App. No. 18CA1076 20
talk to Aulino. West testified that although he had filed for divorce from Simon, it was
West who attended the 2007 Chamblin family Thanksgiving and Christmas celebrations
with Chamblin and Aulino – not Simon. Although West, Chamblin, and Aulino were all
together for Thanksgiving and Christmas 2007, and although West and Aulino talked
daily, many days multiple times November 2007 through January 2008, both West and
Aulino denied discussing with each other Chamblin’s decision to disinherit Simon or
influencing him in anyway.
{¶50} After February 2008, when Simon had been removed from accounts and
assets, telephone calls between West and Aulino abruptly stopped. West left a note for
Simon during that same time period that stated, “You’ll never know how much I screwed
you over in the divorce.” West testified that he was just making it up and he wanted Simon
to think that he had done something bad to Simon that Simon would not be able to figure
out. West denied that “you’ll never know how much I screwed you over” referred to West’s
role in Simon’s disinheritance.
{¶51} Cathy Simon testified that at some point after West told the series of lies
about her to Chamblin, the record is not clear of the timing, Chamblin contacted Simon
and told her that West had said a number of bad things about her that Chamblin wanted
clarified. Simon testified that after she talked to Chamblin, she thought her father no
longer believed West. Simon testified that she would have no reason to think that her
father would have done anything, but she did not know whether her father took any action
based on West’s lies.
{¶52} The second time period in which Chamblin used a transfer on death
directive in favor of Aulino was November 2010. These transfers occurred at a time when
Adams App. No. 18CA1076 21
Paula Aulino was very concerned that Chamblin was susceptible to financial manipulation
by Dr. Blanton. Aulino testified that Chamblin had told her that he was smitten with Dr.
Blanton and if he were younger, Dr. Blanton would be Aulino’s stepmother. Aulino
testified she had become so concerned with the amount of money her father was
spending on Dr. Blanton that she had a talk with Chamblin and told him Dr. Blanton was
taking advantage of him.2 Although Chamblin denied it, he did as Aulino instructed him
and ended the relationship with Dr. Blanton. This was also the year Chamblin changed
investment accounts to transfer on death to Aulino and transferred management of the
investments to Aulino’s father-in-law at Wells Fargo in Akron, Ohio. Telephone records
show that Aulino spoke to Chamblin the same day he called Wells Fargo but she denies
having any involvement in the decision to transfer the account management to her father-
in-law and she denies knowledge that Chamblin implemented a transfer on death
designation to her. The following year in 2011, Aulino received a gift of $200,000 from
Chamblin, which she described as a “grand gesture” to remodel her home.
{¶53} Although the December 2007 - February 2008 and November 2010
transfers effectively left nothing to Simon and everything to Aulino, a number of witnesses
testified that this was never Chamblin’s intentions. Chamblin’s will was not altered and it
divided the estate equally between Simon and Aulino. Milton Chamblin and Bryan Swords
testified that Chamblin told them both daughters would inherit the furniture store. Simon
testified that in the days before he died, she asked Chamblin if he loved her and he
replied, “yes” and she asked him if it was his intention that when he dies that he leave
2 Dr. Blanton testified that she had a friendship with Chamblin, she saw him as a father figure not a romantic
interest, and that she repaid Chamblin for the work Chamblin paid Throckmorton to perform at her home
and medical office.
Adams App. No. 18CA1076 22
everything to Aulino and replied “no.” Chamblin’s medical records from January and
February 2016 show that Chamblin told medical professionals that both Simon and Aulino
were his health care agents and power of attorneys – as if the changes he made in
February 2008 had not occurred or had been reversed.
{¶54} Simon testified that she always had a loving relationship with Chamblin. She
introduced copies of birthday cards that Chamblin sent to her starting in 2010 when she
was living in Georgia and went up through 2014. Each card had Chamblin’s handwritten
message expressing love and pride for Simon. Simon testified that when she ended her
relationship with the man in Georgia, she had to obtain a restraining order against him
because he was violent and had threatened to kill her. Simon testified that after her
relationship in Georgia ended, she moved back to Ohio in 2013 and lived with her father
for over a year, making dinner for him, working at the furniture store, and attending church
every Sunday with him. During that time and up until his death, Simon and Chamblin had
a mutually loving, caring father-daughter relationship. Simon introduced text messages
between herself and Chamblin that were sent between March 2013 and January 2016
that showed regular, positive, loving communications.
{¶55} Simon testified that she eventually moved out and married her current
husband in June 2015. Simon testified that Chamblin and her husband got along and had
a mutual admiration for each other as entrepreneurs.
{¶56} Although there was some testimony that it was Simon’s divorce and
extramarital affair that influenced Chamblin’s decision to transfer his assets to Aulino,
there was undisputed evidence that both Simon and Aulino were divorced, both had
multiple marriages, and both had engaged in extramarital affairs. Aulino testified that
Adams App. No. 18CA1076 23
Chamblin had full knowledge of these facts as to both daughters. Thus, the jury could
reasonably determine that Chamblin would not use divorces and extramarital affairs as
the basis to treat one daughter differently in his estate planning.
{¶57} Aulino testified that after Simon sued her, Aulino contacted Simon’s violent
and dangerous ex-boyfriend in Georgia and told him that Simon was living in Youngstown,
Ohio. Aulino testified that after she informed the ex-boyfriend of Simon’s whereabouts,
he contacted Simon.
{¶58} Sufficient evidence exists to support the jury’s verdict that Aulino exerted
undue influence over Chamblin, which caused him to execute the transfers on death to
her on the assets at issue. Issues of undue influence, by their nature, are generally proven
through indirect circumstantial evidence and inference drawn from a wide scope of facts.
Here the evidence of Chamblin’s age and mental state during both time periods, his love
and value of family and forgiveness, his pride in and love for Simon, the conversations he
had with others, the provisions of his will, the timing, frequency and intensity of West and
Aulino’s conversations with Chamblin in late 2007 to early 2008, which included
inflammatory lies about Simon, the influence Aulino exerted over him in 2010 to cause
him to terminate his beloved friendship with Dr. Blanton and transfer his investment
accounts, and her ability to procure a sizable $200,000 gift from Chamblin in 2011, are
all factors for the jury’s consideration. It is the duty of the jury to draw reasonable
inferences after considering all the circumstances. The jury is free to disbelieve much of
Aulino’s and her witnesses’ testimony and reasonably infer from the circumstances that
Aulino used West, West’s lies, and Chamblin’s emotional breakdown as a result of West’s
lies, to exercise undue influence over Chamblin and cause him to make the transfers to
Adams App. No. 18CA1076 24
her at a time when she was “as mad as hell” at Simon and no longer speaking to her. The
jury can believe witnesses who testified that Chamblin was not a spiteful, vengeful father,
who secretly harbored an intense grudge, but a loving, proud and forgiving father, and
that the transfers were the result of the undue influence of a mad-as-hell sister.
{¶59} The jury is also free to disbelieve Aulino when she claimed a complete lack
of knowledge over matters related to her father’s estate plans and the 2010 transfer on
death directive. The jury heard testimony that Aulino was very concerned about her
father’s new romantic involvement with Dr. Blanton – wanted to call an intervention – and
how the relationship was negatively affecting his finances. Chamblin’s generous spending
on Dr. Blanton would decrease Aulino’s inheritance. And if Chamblin were to marry Dr.
Blanton and make her Aulino’s stepmother as he had previously suggested, it could have
serious ramifications on Aulino’s inheritance. The timing of Aulino’s influence over
Chamblin to end the relationship with Dr. Blanton (an action that other witnesses testified
Chamblin did not want to do) matched with the transfer of the management of several of
Chamblin’s retirement accounts to Aulino’s father-in-law and the transfer on death
directive to Aulino. The jury could infer that Aulino exercised undue influence over
Chamblin, a man she firmly believed was susceptible to financial exploitation, to execute
transfer on death directives to her as a means of diverting the funds away from Dr.
Blanton’s realm of influence and securing them exclusively for herself. The jury was free
to disbelieve her when she denied having discussions about the transfer on death
directives where the phone records showed she spoke to Chamblin the same day he
made them.
Adams App. No. 18CA1076 25
{¶60} Taken as a whole, the circumstantial evidence supports a rational inference
that the conveyances to Aulino were the result of her undue influence upon Chamblin.
The evidence, when construed most strongly in favor of Simon, is legally sufficient to
sustain the verdict.
C. Promissory Estoppel
{¶61} Also as part of her first two assignments of error, Aulino argues that there
was no evidence to support the jury’s finding that Aulino is liable to Simon for promissory
estoppel because there is no evidence that Simon relied on Aulino’s promise to give half
of the assets she acquired at Chamblin’s death to Simon.
{¶62} Promissory estoppel is a quasicontractual or equitable doctrine. See
Worthington v. Speedway SuperAmerica L.L.C., 4th Dist. Scioto No. 04CA2938, 2004-
Ohio-5077. The elements of promissory estoppel require “[a] promise which the promisor
should reasonably expect to induce action or forbearance on the part of the promisee or
a third person and which does induce such action or forbearance is binding if injustice
can be avoided only by enforcement of the promise.” McCroskey v. State, 8 Ohio St. 3d
29, 30, 456 N.E.2d 1204 (1983), citing Restatement of the Law, Contracts 2d (1973),
Section 90. In order to prevail on a claim of promissory estoppel, plaintiff must show a
clear and unambiguous promise and reliance by the party to whom the promise is made.
The reliance must be reasonable and foreseeable, and the party relying on the promise
must have been injured by the reliance. See Doe v. Adkins, 110 Ohio App. 3d 427, 437,
674 N.E.2d 731 (4th Dist. 1996), citing Healey v. Republic Powdered Metals, Inc., 85 Ohio
App.3d 281, 284, 619 N.E.2d 1035 (9th Dist. 1992). A promise is defined as “a
manifestation of intention to act or refrain from acting in a specified way, so made as to
Adams App. No. 18CA1076 26
justify a promisee in understanding that a commitment has been made.” Stull v.
Combustion Engineering, Inc., 72 Ohio App. 3d 553, 557, 595 N.E.2d 504 (3d Dist. 1991),
citing Restatement of the Law, Contracts 2d (1981) 8, Section 2(1). Furthermore, the party
who asserts the promissory-estoppel claim bears the burden to prove by clear and
convincing evidence all the elements of the claim. In re Estate of Popov, 4th Dist.
Lawrence No. 02CA26, 2003-Ohio-4556, ¶ 30. Whether a defendant made “a clear and
unambiguous promise” is a question of fact. See, e.g., McCroskey, supra; see also Miller
v. Lindsay–Green, Inc., 10th Dist. Franklin. No. 04AP–848, 2005-Ohio-6366; Dailey v.
Craigmyle & Son Farms, L.L.C., 177 Ohio App. 3d 439, 2008-Ohio-4034, 894 N.E.2d
1301, ¶ 14 (4th Dist.).
{¶63} Here, Aulino indisputably made an oral promise to give Simon half of the
assets she acquired when Chamblin died. Aulino testified that she told Simon on February
18 and again on February 20, 2016 that she would give her sister half of the assets. Aulino
testified she expected Simon to rely on her word, “I meant it when I said it.”
{¶64} Simon contends that she relied on the promise by Aulino, because if Aulino
had not made the promises, she would have continued to seek legal solutions from John
Lawler, her father’s attorney. When asked whether she believed prior to her father’s death
that Aulino was not going to give her half or honor the promise, Simon testified “I didn’t
know. I had to trust that she would.” Simon testified that she first learned of an issue with
Chamblin’s estate on February 14, 2016, she learned of certain transfer on death
directives on February 16, and then on February 18 learned of her removal from Chamblin
Furniture Co. bank accounts. Simon testified that she contacted Lawler to inquire. Simon
said she asked Aulino about the unexpected changes to Chamblin’s estate and Aulino
Adams App. No. 18CA1076 27
hugged Simon, they sat on the couch together and talked, and Aulino told her that it was
to protect Simon and to keep it out of probate. Simon testified that she held Aulino in high
regard and thought Aulino loved her; they had a vacation planned for February 2016 that
they would have taken together had their father not become ill. Simon trusted Aulino to
honor her promise.
{¶65} Lawler testified that both Aulino and Simon called him during the last weeks
of Chamblin’s life. Aulino initially called him February 9, 10, 15, and 16, 2016 in reference
to Chamblin being in the James Hospital and the house deed. Lawler testified that he
received two calls from Simon, one February 16 concerning the house deed and one
February 17 concerning the corporate shares. Lawler testified that he told both women,
“This is not the time to talk about this. Your father’s in the hospital dying.” Aulino also
testified that Lawler told her repeatedly to focus on her father, not the estate, because
they could work on estate matters after Chamblin dies. Lawler had no evidence in his file
of any additional phone calls from Simon after February 17, but he received another
phone call from Aulino on February 19 in which Aulino was asking about reversing the
transfer on death designations. Chamblin died on February 21, 2016.
{¶66} Simon argues that the evidence shows she contacted Lawler to understand
what happened with her father’s estate and to learn how it could be corrected. However,
after Aulino promised to give half of the assets she acquired from Chamblin’s death to
her, Simon relied on that promise, forbearing further action, and made no other calls to
Lawler. She contends she stopped seeking answers from Lawler because she relied on
her sister’s promise and ultimately believed Aulino would do the right thing.
Adams App. No. 18CA1076 28
{¶67} Aulino contends that a text message Simon sent shows she did not rely on
Aulino’s promise. Simon texted, “You answered as I thought you would but was holding
out hope that you would do the right thing. You never had any intentions of making this
matter right.” However, a full review of the text and Simon’s testimony, makes clear that
the text refers to Simon’s request that Aulino use her power of attorney while Chamblin
was alive to change the transfer on death directives so that (1) both sisters are on them
or (2) they are revoked. Simon said the text did not refer to Aulino’s promise to split the
assets after Chamblin’s death.
{¶68} The record shows that Simon was seeking answers to two different
questions: (1) why her father took the actions he did concerning the assets, and (2) how
to change the transfers before Chamblin died so that Chamblin’s estate would pass
equally to both Simon and Aulino upon his death as provided for in the will. Aulino argues
that Simon did not rely on her promise because Simon testified that she would not have
done anything different had Aulino not made the promise. Aulino relies on a hypothetical
question asked of Simon on cross-examination:
Q. * * * At the hospital Paula says, I’ll give you half, told the jury that. If Paula
said, I’m not going to give you half, would you have done anything different
before your dad passed away?
A. Gosh, that’s a good question. I would have continued to ask for answers. So,
no, I guess I wouldn’t have done anything different. I didn’t understand what was
happening. I was blind-sided.
{¶69} Simon’s response to this hypothetical is confusing and subject to several
interpretations. She states she would have continued to ask for answers, but then states
she would not have done anything different. The jury could infer from this response that
Simon would have continued to search for answers as to why her father took the steps
Adams App. No. 18CA1076 29
he did, particularly because she immediately states she “didn’t understand what was
happening” and was “blind-sided.” Aulino’s promise to split the assets would not stop
Simon from searching for answers as to why Chamblin’s estate plans changed in such
an unexpected and drastic manner. Rather Aulino’s promise was made and relied upon
by Simon so that she stopped communicating with Lawler to find legal methods to reverse
the transfers prior to Chamblin’s death. There is evidence in the record that after Aulino
reassured Simon that she would split the assets with Simon, Simon decided to focus on
her father and stopped communicating with Lawler about the estate.
{¶70} We find the jury’s determination that Aulino was liable to Simon under
promissory estoppel was supported by sufficient evidence. The evidence, when
construed most strongly in favor of Simon, is legally sufficient to sustain the verdict.
D. Breach of Oral Trust
{¶71} As part of her first two assignments of error, Aulino contends that the jury
willfully ignored the jury instructions because it found that Aulino “as trustee breached her
fiduciary duty under an oral trust to Ms. Simon” but also found that Chamblin did not
create a trust over Simon’s share of the assets. Aulino argues that there was no evidence
that an oral trust was created and no evidence that she breached her duty as trustee.
{¶72} Aulino did not object to the jury’s interrogatory responses as inconsistent at
trial. Generally, a party must bring alleged inconsistencies in jury interrogatories to the
trial court's attention before the jury is discharged. See Bicudo v. Lexford Properties, Inc.,
157 Ohio App. 3d 509, 2004–Ohio–3202, 812 N.E.2d 315 (7th Dist.); Avondet v.
Blankstein, 118 Ohio App. 3d 357, 368, 692 N.E.2d 1063 (8th Dist.1997). Otherwise, the
party waives the issue for appellate review. Bicudo, supra; Chesney v. Jowers, 8th Dist.
Adams App. No. 18CA1076 30
Cuyahoga No. 82270, 2003–Ohio–6614 (stating that by failing to object to the alleged
inconsistency before the jury was discharged and instead raising the argument in a JNOV
motion resulted in a waiver). The policy reasons behind the rule are “(1) to promote the
efficiency of trials by permitting the reconciliation of inconsistencies without the need for
a new presentation of evidence to a different trier of fact, and (2) to prevent jury shopping
by litigants who might wait to object to an inconsistency until after the original jury is
discharged.” Greynolds v. Kurman, 91 Ohio App. 3d 389, 395, 632 N.E.2d 946 (9th Dist.
1993); Wright v. Suzuki Motor Corp., 4th Dist. Meigs No. 03CA2, 2005-Ohio-3494, ¶ 131.
“An appellate court need not consider an error which a party complaining of the trial
court's judgment could have called, but did not call, to the trial court's attention at a time
when such error could have been avoided or corrected by the trial court.” State v.
Williams, 51 Ohio St. 2d 112, 364 N.E.2d 1364, (1977) paragraph one of the syllabus.
{¶73} Additionally, we find sufficient evidence exists to support the jury’s general
verdict under either of Simon’s two other alternative legal claims, interference with
inheritance expectancy and promissory estoppel, either of which entitled Simon to an
award of half of Chamblin’s assets. Aulino’s other argument in support of these two
assignments of error– that there was no oral trust over half of the estate and that she did
not breach her duty as trustee—are moot given our prior determinations. Hamilton v. Ball,
2014-Ohio-1118, 7 N.E.3d 1241, fn. 4 (4th Dist.) (given prior discussion, alternative
arguments supporting an assignment of error were moot).
{¶74} Even if we were to find that this issue was not waived, we can reconcile the
jury’s interrogatory responses with the instructions given them. The jury was instructed
on both constructive trusts and oral trusts. The instructions for oral trust stated, “The
Adams App. No. 18CA1076 31
creation of a trust[.] [T]o create an oral trust, testator must have, one, intended to create
the trust; two, stated the identity of a trustee; three, stated the definite property or assets
to be included in the trust; and, four, stated the persons to receive the assets included in
the trust. Because the jury found Aulino liable to Simon for promissory estoppel (i.e. that
Aulino’s orally promised to give half of her inheritance to Simon), which was Interrogatory
No. 2, the jury could have found that Aulino created an oral trust when she promised to
convey half of the assets to Simon. The jury could have found that Aulino breached her
fiduciary duty under this oral trust when she failed to convey half of the inheritance to
Simon, which was the question posed in Interrogatory No. 3.The interrogatory about a
breach of an oral trust was inserted into the interrogatories before any interrogatory
concerning Chamblin’s creation of a trust. In other words, the order in which these
interrogatories were presented to the jury could have influenced their understanding of
how to interpret and apply the instructions on oral trusts and allows us to reconcile the
responses.
{¶75} We find sufficient evidence to support the jury’s finding of liability under
either a claim of intentional interference with expectancy of inheritance or a claim of
promissory estoppel and overrule Aulino’s first and second assignments of error. The
evidence, when construed most strongly in favor of Simon, is legally sufficient to sustain
the verdict. The jury verdict is supported by some competent, credible evidence going to
each essential element of the case and thus is not against the manifest weight of the
evidence.
Adams App. No. 18CA1076 32
E. Trial Counsel Misconduct
{¶76} For her third assignment of error, Aulino contends that the jury verdict
should be overturned due to Simon’s counsel’s misconduct. Aulino argues that Simon’s
counsel misstated the evidence in his closing argument, mischaracterized Aulino as an
uncaring, wealthy woman, and asked questions from witnesses about the furniture store’s
closing “with the desired effect to play to a Jury in a town which has lost many jobs.”
{¶77} First, we note that Aulino did not object to any of Simon’s counsel’s
statements or the questions she contends engaged the jury’s passion and prejudice and
she did not ask the trial court for a new trial under Civ.R. 59(A)(2), governing attorney
misconduct. Additionally, the trial court instructed the jury that trial counsels’ closing
arguments were not evidence, which raises the presumption that the jury followed the
instructions. Berry at ¶ 34.
{¶78} Because Aulino failed to object to the questions and the closing argument,
as she concedes on appeal, she has forfeited all but plain error. See State v. Neal, 2016–
Ohio–64, 57 N.E.2d 272, ¶ 36 (4th Dist.) (failure to object to testimony and closing
argument at trial forfeited all but plain error on appeal). In addition, “[a]n appellate court
‘must proceed with the utmost caution’ in applying the doctrine of plain error in a civil
case.” Risner v. Ohio Dept. of Natural Resources, Ohio Div. of Wildlife, 144 Ohio St. 3d
278, 2015–Ohio–3731, 42 N.E.2d 718, ¶ 27, quoting Goldfuss v. Davidson, 79 Ohio St. 3d
116, 121, 679 N.E.2d 1099 (1997). “Plain error should be strictly limited ‘to the extremely
rare case involving exceptional circumstances when the error, left unobjected to at the
trial court, rises to the level of challenging the legitimacy of the underlying judicial process
Adams App. No. 18CA1076 33
itself.’ ” (Emphasis sic.) Risner at ¶ 27, quoting Goldfuss, at 122; Berry v. Paint Valley
Supply, LLC, et al., 4th Dist. Highland No. 16CA19, 2017-Ohio-4254, ¶ 29-30.
{¶79} Here none of the questions Aulino references or the statements in closing
argument call into question the basic integrity of the judicial system. For example, Aulino
argues that Simon’s counsel’s statement in closing argument that Chamblin’s health
conditions “affected him every day” (emphasis sic) was not supported by any evidence
and misled the jury into an erroneous finding that Chamblin was susceptible to undue
influence. Yet Chamblin’s family doctor, Dr. Parrott, testified that Chamblin had renal
cancer (kidney cancer), had one of his kidneys removed, and had to be monitored very
closely by his oncologist with routine CAT scans. Dr. Parrott also testified that Chamblin
had a history of prostate cancer, had his prostate removed, had Non-Hodgkin’s lymphoma
(cancer of the lymph node glands), had thyroid cancer, had to be continually monitored
for cancer reoccurrence, suffered from neuropathy (stinging, burning, or numbness of the
extremities), had chronic kidney disease, high blood pressure, and was a diabetic who
had to watch his diet very carefully. Dr. Parrott testified that Chamblin’s creatine levels
were elevated in early 2008, which was a concern that his kidney disease might be
worsening. In closing argument, Simon’s counsel stated that Chamblin “dealt with
significant medical challenges” and summarized, “Dr. Parrott came in today and told us
whether it was the removal of his kidney he knew about, the hypothyroidism he knew that
he had, the non-Hodgkin’s lymphoma that he dealt with, it was something that affected
him every day.” We find nothing improper about counsel’s statement that the significant
medical challenges Chamblin experienced affected him daily.
Adams App. No. 18CA1076 34
{¶80} Nonetheless, Aulino contends that the trial court was required to intervene
sua sponte to admonish counsel and to take curative action to nullify the effects of
counsel’s questions and comments. We have reviewed the entire trial transcript and can
find no conduct that would require the trial court’s sua sponte intervention. To the contrary,
the record supports the trial court’s commendation of both parties’ attorneys during the
multi-day trial at several times toward the end of the proceedings:
I will say I would be remiss if I did not say to Ms. Simon and Ms. Aulino,
you have been so well represented * * *. This has been spectacular how
you have been represented. They as well.
But I just wanted you both to hear * * * I don’t send out flowery messages
unless I believe them. And I’ve been impressed, counselors.
I was able to say personally to both Ms. Simon and Ms. Aulino * * * I want
to thank you for the courtesy that each of you have extended to the Court
and the Court staff. And, again, I renew my belief, my firm belief, without
hesitation and reservation, that both – Ms. Simon, both you and Ms.
Aulino were exceptionally well represented in this Court. Thank you.
{¶81} Under these circumstances we find that this is not one of the extremely rare
civil cases in which plain error challenging the legitimacy of the underlying judicial process
itself occurred. We overrule Aulino’s third assignment of error.
IV. LEGAL ANALYSIS OF SIMON’S CROSS APPEAL
{¶82} The jury awarded Simon $330,693 in compensatory damages, zero punitive
damages, and stated it would award attorney fees. Simon filed a post-trial motion for a
new trial on damages only, or alternatively, an additur, or alternatively a motion for
judgment notwithstanding the verdict on damages. The trial court denied the motion in a
well-reasoned decision. Simon cross-appealed.
{¶83} She raises two assignments of error for review. First, she contends the trial
court erred in denying her motion for a new trial on damages under Civ.R. 59(A)(4)
Adams App. No. 18CA1076 35
(inadequate), (5) (too small), (6) (against the manifest weight of the evidence), and (9)
(trial court made an error of law during trial that affected the damages calculation).
Second, she contends the trial court erred in denying her motion for judgment
notwithstanding the verdict on damages under Civ.R. 50(B).
A. Simon’s Motion for a New Trial on Damages under Civ.R. 59(A)
1. Standard of Review
{¶84} The relevant provisions of Civ.R. 59(A) provide:
A new trial may be granted to all or any of the parties and on all or part of
the issues upon any of the following grounds: (1) Irregularity 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; * * * (4) Excessive or
inadequate damages, appearing to have been given under the influence of
passion or prejudice; (5) Error in the amount of recovery, whether too large
or too small, when the action is upon a contract or for the injury or detention
of property; (6) The judgment is not sustained by the weight of the evidence;
however, only one new trial may be granted on the weight of the evidence
in the same case; * * * (9) Error of law occurring at the trial and brought to
the attention of the trial court by the party making the application.
{¶85} The standard of review for a motion for a new trial under Civ.R. 59(A)
depends upon the basis for the motion. Where a trial court is authorized to grant a new
trial for a reason which requires the exercise of sound discretion, the order granting a new
trial may be reversed only upon a showing of abuse of discretion by the trial court. Where
a new trial is granted or denied by a trial court for reasons which involve no exercise of
discretion, but only a decision on a question of law, we apply a de novo standard of review
and reverse if the decision was erroneous as a matter of law. Rohde v. Farmer, 23 Ohio
St.2d 82, 83, 262 N.E.2d 685, 686 (1970), paragraphs one and two of the syllabus. Orders
denying or granting motions for new trial under Civ.R. 59(A)(1), (4), (5) and (6) are
reviewed under abuse of discretion standard. Lewis v. Nease, 4th Dist. Scioto No.
Adams App. No. 18CA1076 36
05CA3025, 2006-Ohio-4362, ¶ 73 (reviewing Civ.R. 59(A)(1), (3) and (6) motions for
“abuse of discretion,” which connotes more than an error of law or judgment; it implies
that the court's attitude is unreasonable, arbitrary or unconscionable); Torres v. Concrete
Designs Inc., 8th Dist. Cuyahoga No. 105833, 2019-Ohio-1342, ¶ 14 (motions for new
trial under Civ.R. 59(A)(4) are reviewed for “abuse of discretion”); KB Resources, LLC v.
Patriot Energy Partners, LLC, 2018-Ohio-2771, 116 N.E.3d 728, ¶ 113 (7th Dist.) (the
standard of appellate review of an order on a Civ.R. 59(A)(6) motion is abuse of
discretion); Prince v. Jordan, 9th Dist. Lorain No. CIV.A. 04CA008423, 2004-Ohio-7184,
¶ 20 (order denying or granting motion for new trial under Civ.R. 59(A)(4) and (5) reviewed
for abuse of discretion).
{¶86} Civ.R. 59(A)(9) provides that the trial court may grant a new trial based upon
“[e]rror of law occurring at the trial and brought to the attention of the trial court.” Appellate
review of a Civ.R. 59(A)(9) motion is de novo, rather than under an abuse-of-discretion
standard. Wright v. Suzuki Motor Corp., 4th Dist. Meigs No. 03CA2, 2005-Ohio-3494, ¶
128. However, here Simon contends the trial court erred in excluding evidence. The
admission or exclusion of relevant evidence is a matter entrusted to the sound discretion
of a trial court and its decision will not be reversed absent an abuse of that discretion. We
note that an abuse of discretion is more than an error of law or judgment; it implies that
the court's attitude is unreasonable, arbitrary or unconscionable. Tolliver v. Braglin, 4th
Dist. Athens No. 03CA18, 2004-Ohio-731, ¶ 11.
2. Grounds for New Trial under Civ.R. 59(A)(4), (5), and (6)
{¶87} Simon contends that the following exhibits admitted at trial identified the
assets Aulino received at Chamblin’s death and thus, unequivocally established her
Adams App. No. 18CA1076 37
damages: (1) Wells Fargo Account No. ****-0905 with “FCC as custodian” valued at
$49,525.61 as of Jan 31, 2016; (2) Wells Fargo Account No. ****-8691 with a “TOD
registration” and a mutual fund line item valued at $143,777.46 as of Jan 31, 2016; (3)
Jackson National Life Insurance check to Aulino in the sum of $416,270.64; (4) real estate
purchase contract for Chamblin’s residence with an agreed purchase price of $145,000;
(5) Chamblin Furniture Co. First State Bank Account with a balance of $150,061.09 on
Feb. 29, 2016; Chamblin Furniture Co. corporate balance sheet dated March 31, 2016;
Chamblin Furniture Co. Fifth Third Bank Account with a beginning balance of $245,011.56
as of Feb. 1, 2016.
{¶88} First, as the trial court explained in its decision, there was very little
testimony concerning Simon’s damages. The parties stipulated to the admissibility of the
exhibits, but did not stipulate that these constituted Simon’s compensatory damages.
Although Simon’s counsel argued for a damage award of $778,563 in his closing, closing
arguments are not evidence. Very little evidentiary guidance was given to the jury. The
trial court accurately described the record in its decision denying Simon’s motion:
Both counsel stipulated to these exhibits being admitted into evidence.
There was no stipulation on how the exhibits would be interpreted, whether
they were corporate or personal assets, or anything else – other than words
printed on pieces of paper themselves. There was little, if any testimony
offered at trial to assist the Jury in assessing these exhibits. The Jury was
left to determine, as with all evidence, each exhibit’s relevance and value
during their deliberations.
{¶89} Second, Simon’s argument is flawed because she includes corporate
assets, which are not Chamblin’s personal assets. Chamblin Furniture Co. is a
corporation with shareholders. All of the corporate assets are owned by Chamblin
Furniture Co., not Wayne Chamblin. Therefore, Aulino received none of those assets at
Adams App. No. 18CA1076 38
Chamblin’s death. Instead, Aulino received some shares in Chamblin Furniture Co., but
it is unclear how many shares Aulino received. According to Lawler’s testimony, Chamblin
“did change shares of the corporation to make them transfer on death to [Aulino] as well.”
However, it is unknown how many shares Aulino received by the transfer on death
directive. As the trial court aptly noted, “Testimony was remarkably unclear as to the
number of shares and ownership of the stock in the company.” The corporate minute
book contained an entry that stated that upon Chamblin’s wife’s death in 2003, her shares
were divided equally between Simon and Aulino. Based on this, the jury could have
determined that Aulino and Simon already each owned 25% shares in the corporation
and Aulino received an additional 50% of the shares at Chamblin’s death.
{¶90} Even if the jury could make an accurate determination about the number of
shares passing to Aulino through the transfer on death directive, the jury would not be
able to determine the value of those shares. No testimony was given concerning the value
of the corporate shares in Chamblin Furniture Co., which was not a publicly traded
corporation, but a family-owned, privately held corporation. Additionally, Chamblin
Furniture was out of business. It is possible the jury assigned a zero value to the shares
when calculating damages. The corporate bank accounts balances and the corporate
balance sheet in no way translate into a share valuation. As Aulino argues in her response
brief, valuation of stock is a complicated matter generally outside the knowledge of the
jury. Tolkes & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St. 3d 621, 605 N.E.2d 936
(1992), paragraph one of the syllabus (“It is a general rule of evidence that before one
may testify as to his opinion on the value of property, one must qualify as an expert.”);
see also Armstrong v. Marathon Oil Co., 32 Ohio St. 3d 397, 411, 513 N.E.2d 776, 789
Adams App. No. 18CA1076 39
(1987) (To determine “the value of closely held stock in privately or closely held
corporations, which stock has little, or no, over-the-counter trading activity * * * the trial
court and the appraisers would have no analysis of market activity to apply. Under such
circumstances, they may well apply the so-called hypothetical market valuations * * *.”);
see also Raymond v. Raymond, 10th Dist. Franklin No. 11AP-363, 2011-Ohio-6173, *6
(“A non-expert owner, although he may have knowledge of the unique characteristics of
his property, ‘is not an expert who can assimilate various asking prices of other similar
property and render an unbiased, so-called ‘expert’ opinion as to the value of his property
based upon these other figures.’ ”).
{¶91} This leaves only the two Wells Fargo accounts, the real estate contract, and
the life insurance proceeds for the jury to consider. We note that of the two Wells Fargo
accounts, only the account ending in “8691” contains the notation “TOD restriction.” The
Wells Fargo account ending “0905” indicates “FCC as Custodian” instead of “TOD
restriction.” Additionally, the Wells Fargo transfer on death directive is for the Wells Fargo
account ending “8691” – there is no similar transfer on death directive in the record for
Wells Fargo account ending “0905.” There was no testimony to explain this difference.
The jury could have determined that only the Wells Fargo account ending “8691” had a
transfer on death directive and therefore, it was the only account that went solely to Aulino
at Chamblin’s death. The jury could have determined that the other Wells Fargo account
ending 0905 went to Simon and Aulino equally and excluded it from their damage
calculations. To add to the confusion, the total value of the Wells Fargo account with the
TOD restriction as of Jan. 31, 2016 was $442,733.12, but Simon contends that only the
Adams App. No. 18CA1076 40
mutual fund line item of the account is relevant to her damages, which was $143,777.46.3
Half of that is $71,888.73.
{¶92} The real estate contract for the sale of Chamblin’s home has a purchase
price of $145,000 but it also contains a provision that states that Aulino agrees to pay the
real estate agent a 5% commission. There was no testimony or real estate closing
documents to show that this sale occurred, nor was there evidence of how much may
have been deducted from the purchase price to pay any lienholders, real estate taxes, or
other closing costs. Without evidence of these other costs, the jury could have reasonably
reduced the purchase price by 5%, which leaves a net purchase price of $137,750. Half
of that is $68,875. The life insurance proceeds Aulino received totaled $416,270.64, half
is $208,135.32. The total sum of half of the mutual fund, the home, and the life insurance
proceeds is $348,899.05; the jury awarded $330,693 – a 5.5% variance.
{¶93} Based on our review of the record, the jury did not lose its way. The
compensatory damage award is not against the manifest weight of the evidence, nor is it
too small or inadequate. The trial court did not abuse its discretion in denying Simon’s
motion for a new trial under Civ.R. 59(A)(4),(5), or (6).
3. Ground for New Trial under Civ.R. 59(A)(9)
{¶94} Next Simon contends that the trial court erred in excluding a real estate
appraisal of Chamblin Furniture Co.’s corporate real estate holdings. She argues that
Chamblin Furniture’s real estate transferred to Aulino at Chamblin’s death and half the
3 Simon’s attorney argued in closing, “Exhibit X is the mutual fund, $143,777.46” and both of Simon’s briefs
identify the mutual fund account value as $143,777.46. There was no testimony as to why the entire
$442,733.12 is not included. It is also unclear why Simon chose the Jan. 31, 2016 date to determine value.
We note that the trial court used the February 29, 2016 date and the entire $444,734.67 when working its
way through the numbers. See Judgment Entry on Post Trial Motions, p. 4.
Adams App. No. 18CA1076 41
value of it should have been included in the jury’s compensatory damage calculation.
There is nothing in the record to support this contention. For the reasons previously
discussed, Chamblin Furniture Co.’s assets are not relevant to Simon’s damage
calculation. Additionally, without the appraiser present to testify, the appraisal report is
inadmissible hearsay. See Marquez v. Jackson, 2018-Ohio-346, 105 N.E.3d 517, ¶ 25
(9th Dist.) (plaintiff was prevented from having fair trial by admission into evidence of
defendant’s expert witness report where expert did not testify at trial and thus report was
inadmissible hearsay); see also Ullmann v. Duffus, 10th Dist. Franklin No. 05AP-299,
2005-Ohio-6060, ¶ 23.
{¶95} The trial court did not abuse its discretion when it excluded the real estate
appraisal of Chamblin Furniture Co.’s real estate assets and denied Simon’s motion for a
new trial under Civ.R. 59(A)(9).
4. Ground for New Trial under Civ.R. 59(A)(1)
{¶96} Simon contends she is entitled to a new trial on punitive damages because
the jury verdict demonstrates confusion in either the jury instructions or the
interrogatories. Interrogatory No. 6 asks, “In addition to actual damages, should punitive
damages be awarded to Ms. Simon?” The jury circled “No.” Though the jury awarded no
punitive damages, it responded “yes” when asked if it would award attorney fees. She
contends that the instructions and interrogatories were clear that the jury could only find
Aulino liable for attorney fees if it found her liable for punitive damages.
{¶97} The record shows that the trial court and counsel recognized the
inconsistency at the time the jury verdict was rendered and decided to send the jury back
into the jury room to confirm its response to Interrogatory No. 6 – that it did not want to
Adams App. No. 18CA1076 42
award punitive damages. If the jury confirmed that it did not want to award punitive
damages then the trial court stated that it would as a legal ruling clear up the
inconsistency:
[T]here’s a potential inconsistency and I need you to - - I want to send back
interrogatory number 6 with you to ensure that it is your determination and, if so,
that’s fine. That will clear up any inconsistencies. Okay? So I’ll return you back to
the jury room and let you ensure through discussion that it is correct and that will
clear up any - - any if it’s not correct, you can advise us of that as well.
{¶98} Neither counsel objected to this procedure. Simon’s attorney confirmed his
understanding of the process and acquiesced. However, after the jury did not return
within 30 minutes, counsel and the court became concerned the jury was redeliberating
punitive damages. The trial court called the jury back and gave them additional
instructions and again, neither counsel objected to this procedure:
[T]here’s some concern that the directive that I requested was only to confirm
whether that was, in fact, your decision on interrogatory number 6. There’s some
concern that it was, that maybe you were led to believe that I wanted you to go
back and reconsider that decision. I was just asking is that – was that, in fact, your
decision, and if it was, that’s fine. If you – if it was not your decision, then we need
to hear from - - in that respect. Does that make sense to you?
{¶99} The jury returned and confirmed that they did not want to award punitive
damages. No objections were made by either counsel and the jury was excused. Based
on having confirmed with the jury that it did not award punitive damages, the trial court
disregarded the jury’s interrogatory response concerning the award of attorney fees and
enter a judgment in Simon’s favor for $330,693, plus costs and post-judgment interest.
{¶100} Because Simon did not object to the inconsistencies or to the trial court’s
procedure for resolving the inconsistencies while the jury was impaneled, it is waived.
The Supreme Court of Ohio has recognized that an objection to inconsistent answers
to jury interrogatories is waived unless the party raises it before the jury is
Adams App. No. 18CA1076 43
discharged. O'Connell v. Chesapeake & Ohio R. Co., 58 Ohio St. 3d 226, 229, 569 N.E.2d
889 (1991). This rule recognizes that a court can only exercise the full range of available
remedies while the jury is still impaneled. Shoemaker v. Crawford, 78 Ohio App. 3d 53,
61, 603 N.E.2d 1114 (10th Dist. 1991). This rule ‘promotes trial efficiency by
permitting reconciliation of inconsistencies without the need for a new presentation of the
evidence to a different jury and it prevents jury shopping by litigants who wait to voice
their objections to inconsistencies until after the original jury is discharged. O’Connell at
229; Lewis v. Nease, 4th Dist. Scioto No. 05CA3025, 2006-Ohio-4362, ¶ 35.
{¶101} The trial court did not abuse its discretion when it denied Simon’s motion
for a new trial under Civ.R. 59(A)(9). Because we find that the trial court did not abuse its
discretion in denying Simon’s motion for a new trial under any of the grounds she raised
under Civ.R. 59(A), we overrule Simon’s first assignment of error.
B. Simon’s Motion for Judgment Notwithstanding the Verdict under Civ.R. 50(B)
{¶102} Simon contends she is entitled to a new trial on damages because
“Reasonable minds can come to but one conclusion on damages – Ms. Simon is entitled
to $778,653.00.” We reject this argument for the reasons set forth in our analysis of her
first assignment of error.
{¶103} Simon also contends she is entitled to a new trial on damages because
Aulino acted with ill will, a spirit of revenge, and malice when she contacted Simon’s
violent ex-boyfriend in Georgia after Simon filed her complaint. Simon contends that
Aulino offered no evidence to dispute that she reached out in this manner to secure a
dismissal of her case. However, Aulino’s contact with Simon’s ex-boyfriend, however
indicative of her character, occurred after the lawsuit was filed. Under Ohio law, the
Adams App. No. 18CA1076 44
general rule is that punitive damages may only be recovered in actions involving
intentional torts and arise from the causes of action set forth in the complaint. Digital &
Analog Design Corp. v. N. Supply Co., 44 Ohio St. 3d 36, 47, 540 N.E.2d 1358 (1989)
(court found that tortious activity for which a punitive damages award may be sustained
occurred in only three of the four counts and that the tortious activity arose from a single
animus, thus the defendant could only be punished by only a single punitive damages
award); Dodson v. Maines, 6th Dist. Sandusky No. S-11-012, 2012-Ohio-2548, ¶ 37.
{¶104} We overrule Simon’s second assignment of error.
V. CONCLUSION
{¶105} The trial court did not err when it denied Aulino’s motion for a directed
verdict and for a judgment notwithstanding the verdict. Construing the evidence most
strongly in favor of Simon, we find sufficient evidence to support the jury’s verdict in favor
of Simon. The trial court did not abuse its discretion when it denied Simon’s motion for a
new trial and for a judgment notwithstanding the verdict as to damages. The jury’s award
of damages is not against the manifest weight of the evidence, nor too small or
inadequate. We affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Adams App. No. 18CA1076 45
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams
County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.