CitiMortgage, Inc. v. Nyamusevya

[Cite as CitiMortgage, Inc. v. Nyamusevya, 2020-Ohio-5024.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
CitiMortgage, Inc. :
Plaintiff-Appellee, :
No. 18AP-949
v. : (C.P.C. No. 10CV-13480)
Leonard Nyamusevya, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on October 22, 2020
On brief: Leonard Nyamusevya, pro se.
On brief: Graydon Head & Ritchey LLP, and Kara A.
Czanik, for appellee.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Leonard Nyamusevya, appeals from a judgment and
decree of foreclosure of the Franklin County Court of Common Pleas entered November 15,
2018 for plaintiff-appellee, CitiMortgage, Inc. ("CitiMortgage"). The judgment granted
CitiMortgage's oral motion for a directed verdict after CitiMortgage had presented
unrebutted evidence as to the amount Nyamusevya owed on a promissory note. Because
we find the trial court did not err in granting the motion for a directed verdict, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This matter originally arose in 2010, when CitiMortgage filed a complaint in
foreclosure against Nyamusevya and other parties, who are not parties to this appeal, for
nonpayment of a first mortgage on real property located at 2064 Worcester Court,
Columbus, Franklin County, Ohio ("mortgage"), security for a promissory note ("note").
This Court previously considered CitiMortgage's foreclosure action in CitiMortgage, Inc. v.
No. 18AP-949 2
Nyamusevya, 10th Dist. No. 14AP-464, 2016-Ohio-5588. In that appeal, Nyamusevya
argued the trial court had erred when it (1) granted CitiMortgage summary judgment on its
foreclosure claims, (2) denied several motions Nyamusevya had filed, and (3) denied
Nyamusevya's motion to strike an affidavit CitiMortgage had filed. In a decision rendered
August 30, 2016, this Court affirmed the judgment of the trial court granting summary
judgment in favor of CitiMortgage but reversed in part, finding that there existed "an issue
of fact as to the amount owed on the loan at the time of default." Id. at ¶ 32. This Court
remanded "the matter for further proceedings to determine the amount owed." Id. at ¶ 32,
38.
{¶ 3} On September 12, 2016, Nyamusevya sought reconsideration of this Court's
August 30, 2016 decision. By memorandum decision rendered November 1, 2016, this
Court denied his application for reconsideration. On May 17, 2017, the Supreme Court of
Ohio declined to accept Nyamusevya's appeal. CitiMortgage, Inc. v. Nyamusevya, 149
Ohio St. 3d 1407, 2017-Ohio-2822.
{¶ 4} On remand to the trial court, Nyamusevya, pro se,1 filed numerous motions
in limine with respect to various matters, including the preservation of issues and
evidentiary objections for appellate review. On February 15, 2018, the trial court denied a
motion in limine Nyamusevya had filed on February 6, 2018. On February 26, 2018,
Nyamusevya filed a motion for reconsideration. Before the trial court ruled on his
February 26, 2018 motion for reconsideration, Nyamusevya filed a notice of appeal with
this Court challenging the trial court's February 15, 2018 denial of his February 6, 2018
motion in limine. On March 19, 2018, this Court dismissed that appeal because the trial
court's February 15, 2018 decision and entry was not a final appealable order.
{¶ 5} Among the motions Nyamusevya filed in March 2018 were a motion for
settlement of the action, a motion to dismiss CitiMortgage's entire foreclosure action
(motion to dismiss), and another motion to preserve issues and evidentiary objections for
appellate review and an action for quiet title. In April 2018, he filed a motion for judgment
on the pleadings.
1 On July 25, 2017, Nyamusevya's then-trial counsel filed a motion to withdraw, stating "[c]ounsel would state
that fundamental disagreements in the attorney-client relationship exist following the decision of the Tenth
District and further representation of the Defendant may violate Rules 1.16(b)(4), 1.16(b)(5) and 1.16(b)(6) of
the Ohio Rules of Professional Conduct." (July 25, 2017 Mot. to Withdraw at 1.)
No. 18AP-949 3
{¶ 6} On April 5, 2018, the trial court issued a decision and entry that decided three
motions Nyamusevya had filed. The trial court denied his February 26, 2018 motion for
reconsideration because the trial court's February 15, 2018 decision and entry was not a
final appealable order. It also denied his motion for settlement because the trial court could
not force the parties to settle and would not order mediation because not all parties agreed
and requested mediation. The trial court did grant his motion to remove the assigned
magistrate. The trial court also scheduled the matter for trial on November 5, 2018.
{¶ 7} On April 11, 2018, Nyamusevya filed an affidavit with the Supreme Court of
Ohio seeking the disqualification of the assigned trial court judge alleging bias. On April 23,
2018, the Supreme Court denied Nyamusevya's request.
{¶ 8} On April 23, 2018, Nyamusevya filed with the trial court a motion to modify
the August 30, 2016 Court of Appeals' decision to hold plaintiff's lack of jurisdiction
standing to sue defendant, et al. (The record does not reflect a ruling was made on this
motion.)
{¶ 9} On October 31, 2018, CitiMortgage filed a motion in limine to preclude
Nyamusevya from introducing, or referring to, at trial his own affidavit as evidence that he
had made a $26,000 payment to CitiMortgage's predecessor-in-interest in 2002.
CitiMortgage argued the affidavit was inadmissible hearsay, was inadmissible for the
purpose of impeachment, and indicated a lack of trustworthiness and a likelihood to
mislead the jury.
{¶ 10} The issue for which the case had been remanded came on for trial
November 5, 2018. As a preliminary matter, the administrative judge of the trial court
reassigned the case to a visiting judge. The transcript of the trial is contained in the record.
The visiting judge attempted to address CitiMortgage's October 13, 2018 motion in limine.
Nyamusevya advised the visiting judge that he had not received the motion but would
review it and respond to it at a later time. The visiting judge advised that he was going
forward to address the motion before starting the trial that day and asked Nyamusevya if
he had anyone helping him during the trial. Nyamusevya informed the visiting judge that
the visiting judge did not have the judicial power to rule on the motion in limine or to
conduct the trial. Eventually, after some discussion between the visiting judge and
Nyamusevya, Nyamusevya stated he was leaving, even though the trial court clearly stated
No. 18AP-949 4
the trial would be proceeding that day. After Nyamusevya vacated the courtroom, the trial
court noted for the record that it was unnecessary to rule on CitiMortgage's October 31,
2018 motion in limine at that time.
{¶ 11} The trial court began voir dire by informing the prospective jurors about the
issue to be decided and explaining Nyamusevya's absence. The trial court stated in
pertinent part:
And what we have here today is the defendant, the person who
was to pay the mortgage, defendant asked for a jury trial on the
issue of how much money he owes on the balance of the note.
Now, the defendant was here this morning, but he has decided
not to participate in the trial, and it's his right to do that. So he
left, and he is not going to be participating in the case. So you're
only going to hear the bank's side of the case.
And don't worry why he's not here. He is just not here, and that
was his decision, and it's a decision that he has the opportunity
to make. But he asked for a jury trial, so that's why we brought
you up here to make the decisions with respect to the issues
that have been presented.
The case is going to last just today. We'll finish it up today.
But I want you to understand that even though you only have
one side participating, you're to judge the facts of the case.
You're to decide what, if any, amount of money that the
defendant owes on the balance of his note, and you'll make that
decision based upon a three-fourths [vote] of the jurors.
(Nov. 5, 2018 Tr. at 18-19.)
{¶ 12} After a jury was duly impaneled, CitiMortgage presented its case-in-chief.
CitiMortgage called only one witness, Kyle Ramey, a CitiMortgage VP Recovery Senior
Analyst. Ramey testified that CitiMortgage had held the promissory note secured by
Nyamusevya's mortgage since 2007 and, thus, held it when the mortgage went into default
on May 1, 2010 (or June 1, 2010). Ramey testified the amount due on the note as of
November 5, 2018 was the principal balance of $98,452.56, plus interest at the rate of 6.25
per annum since June 2010, insurance and taxes. Ramey also testified as to CitiMortgage's
three exhibits, which were admitted without objection. After CitiMortgage rested its case,
it made an oral motion for a directed verdict, arguing that it had fulfilled the instructions
No. 18AP-949 5
contained in this Court's August 30, 2016 decision to determine how much Nyamusevya
owed CitiMortgage. The trial court granted CitiMortgage's motion for a directed verdict.
{¶ 13} Nyamusevya filed two post-trial motions to quash. On November 8, 2018, he
moved to quash CitiMortgage's proposed jury verdict form. On November 13, 2018, he
moved to quash CitiMortgage's October 31, 2018 motion in limine to preclude Nyamusevya
from introducing or referring to his own affidavit at trial.
{¶ 14} On November 15, 2018, the trial court issued a three-page decision entering
judgment for CitiMortgage and a decree in foreclosure. That decision noted that
Nyamusevya had informed the trial court of his belief that it did not have jurisdiction to
hear a jury trial, had vacated the courtroom prior to voir dire, and had not returned.
{¶ 15} The trial court's November 15, 2018 judgment also overruled Nyamusevya's
post-trial motion to quash CitiMortgage's November 2, 2018 jury verdict form. (Not
reflected in the record, but it appears that, because Nyamusevya did not participate in the
trial, the trial court had not ruled on CitiMortgage's October 31, 2018 motion in limine,
making Nyamusevya's November 13, 2018 post-trial motion to quash moot.)
{¶ 16} Also on November 15, 2018, Nyamusevya filed a motion to stay the trial
court's judgment that had been entered earlier that day. On November 29, 2018,
CitiMortgage filed a memorandum opposing the motion to stay. (Record does not indicate
that the trial court ruled on the motion to stay.)
{¶ 17} On December 12, 2018, before the trial court ruled on his motion to stay,
Nyamusevya filed a notice of appeal from the trial court's November 15, 2018 judgment and
decree in foreclosure.
II. ASSIGNMENTS OF ERROR
{¶ 18} Nyamusevya presents for our review seven assignments of error:
[1.] The Trial Court erred and abused its discretion by issuing
an unconstitutional November 15, 2018 Decision. On February
15, 2018, it reviewed; redacted; disregarded; affected; and
modified the August 30, 2016 Decision from this Court of
Appeals, without its discretion and judicial authority, by
violating the Law of the Case Doctrine and both the Ohio and
the U.S. Constitutions; consequently, its November 15, 2018
Decision is invalid; a nullity; void; unlawful; unconstitutional;
meritless; and unenforceable.
No. 18AP-949 6
[2.] The Trial Court exceeded the scope of its authority upon
remand. The Trial Court erred and abused its discretion, when
its February 15, 2018 and November 15, 2018 Decisions failed
to ensure consistency of results in this Case at bar, for
termination of and to avoid endless litigation by settling the
issues, and to preserve the structure of Superior and Inferior
Courts as designated by the Ohio Constitution; and caused a
manifest injustice and miscarriage of justice affecting harmless
Defendant-Appellant.
[3.] The Trial Court erred by proceeding limited to the issue of
"damages." Plaintiff-Appellee never presented this unspecified
"damages" issue and arguments in the First Appeal; and Both
Count I and Count II in the Foreclosure Complaint never
claimed or alleged any claims; allegations; or count for
"damages;" and the Court of Appeals never ordered the issue of
unspecified "damages," consequently, the Law of the Case
Doctrine and the Doctrine of res judicata preclude Plaintiff-
Appellee from raising "damages" issue now.
[4.] The Trial Court erred and abused its discretion by violating
the Doctrine of res judicata. The Trial Court's November 15,
2018 Decision in the amount of the re-litigated and barred
$98,452.56 limited to the issue of "damages" is void; invalid; a
nullity; unlawful; and unenforceable, for being in violation of
res judicata.
[5.] The Trial Court erred and abused its discretion on remand
by failing to start where the error occurred in the First Appeal,
as required by the Law of the Case Doctrine and Ohio law. The
issue of unspecified "damages" was not part of the First Appeal
and was never raised by the parties in the First Appeal;
consequently, the Trial Court lacked its discretion to sua sponte
start at the issue of "damages."
[6.] The Trial Court erred by concealing to the jury Defendant-
Appellant's contention for not staying before the Trial Court;
and by misleading the jury that "principal injury amount" is
synonymous to "damages" and abused its discretion on remand
by concealing to the jury that this Court of Appeals previously
reversed on the merit the Trial Court's Decision; and had
determined that the Trial Court lacked its justiciable
controversy between the parties; and had denied the
Consolidated Note Report and the claimed principal injury
amount of $98,452.56; consequently, the November 15, 2018
Decision would have been different.
No. 18AP-949 7
[7.] The Trial Court erred and abused its discretion because its
November 15, 2018 Decision is substantially against the
preponderance of the manifest weight of the evidences in favor
of Defendant-Appellant; and for failing to order that the Note
be surrendered to the Clerk of Court; and for failing to grant a
Quiet Title to Plaintiff-Appellant. None of Plaintiff-Appellee's
[sic] Exhibit at Trial disclosed the concealed 23-mont [sic]
period of accounting repayment records and history from
August 01, 2002 to April 15, 2004, Id. at ¶ 30.
III. LAW AND DISCUSSION
A. Standard of Review
{¶ 19} A directed verdict is provided for in Civ.R. 50(A), which states:
Motion for directed verdict.
(1) When made.
A motion for a directed verdict may be made on the opening
statement of the opponent, at the close of the opponent's
evidence or at the close of all the evidence.
(2) When not granted.
A party who moves for a directed verdict at the close of the
evidence offered by an opponent may offer evidence in the
event that the motion is not granted, without having reserved
the right so to do and to the same extent as if the motion had
not been made. A motion for a directed verdict which is not
granted is not a waiver of trial by jury even though all parties to
the action have moved for directed verdicts.
(3) Grounds.
A motion for a directed verdict shall state the specific grounds
therefor.
(4) When granted on the evidence.
When a motion for a 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.
No. 18AP-949 8
(5) Jury assent unnecessary.
The order of the court granting a motion for a directed verdict
is effective without any assent of the jury.
{¶ 20} Under Civ.R. 50(A)(4), a trial court must grant a motion for directed verdict
if, after construing the evidence most strongly in favor of the nonmoving party, it concludes
that "reasonable minds could come to but one conclusion upon the evidence submitted and
that conclusion is adverse to [the nonmoving] party." Groob v. KeyBank, 108 Ohio St. 3d
348, 2006-Ohio-1189, ¶ 14; Goodyear Tire & Rubber Co. v. Aetna Cas. & Surety Co., 95
Ohio St. 3d 512, 2002-Ohio-2842, ¶ 4. A motion for directed verdict tests whether the
evidence is sufficient to warrant a jury's consideration, so in deciding whether to grant a
directed verdict, a trial court considers neither the weight of the evidence nor the credibility
of witnesses. Estate of Cowling v. Estate of Cowling, 109 Ohio St. 3d 276, 2006-Ohio-2418,
¶ 31. Because a directed verdict tests only the sufficiency of the evidence, it presents a
question of law that appellate courts review de novo. Groob at ¶ 14; Goodyear Tire &
Rubber Co. at ¶ 4.
B. Assignments of Error
{¶ 21} Nyamusevya's seven assignments of error assert the trial court erred in
conducting the November 5, 2018 trial and, thereafter, entering the November 15, 2018
judgment for CitiMortgage and decree in foreclosure. In the interest of judicial economy,
we address the assignments of error together.
{¶ 22} This Court's August 30, 2016 decision had affirmed the trial court's decision
granting summary judgment in favor of CitiMortgage. That matter is not up for review
again. Rather, this Court remanded this matter to the trial court for the sole purpose of
determining the amount of money Nyamusevya owed CitiMortgage on the promissory note.
Despite that ruling, Nyamusevya persisted in arguing through his motion practice on
remand the wrongful nature of CitiMortgage's foreclosure action and raising the doctrines
of res judicata, claims preclusion, law of the case, and manifest weight of the evidence. In
short, he sought to relitigate the entire foreclosure action.
{¶ 23} Nyamusevya had the opportunity to present evidence on the issue of how
much money he owed CitiMortgage at the trial conducted November 5, 2018. He
abandoned that opportunity when he left the courtroom before voir dire and failed to
No. 18AP-949 9
return, even though the trial court had apprised him that the trial was proceeding that day.
Nyamusevya cannot argue on appeal issues he could have raised at the November 5, 2018
trial had he chosen to participate in that trial.
{¶ 24} CitiMortgage presented its case-in-chief in Nyamusevya's absence. At the
close of all the evidence—in this instance, only the evidence presented by CitiMortgage—
CitiMortgage moved for a directed verdict. CitiMortgage read into the record of the trial
the instructions contained in this Court's August 30, 2016 judgment and stated the specific
grounds on which it requested a directed verdict, stating:
At this point [CitiMortgage] would move for a directed verdict.
The only evidence that was heard today was that from
[CitiMortgage]. There has been no dispute. There is only one
set of documents for the jury – I'm sorry, that were admitted
into evidence and they all say the same thing.
***
But I'm looking at the decision from the Court of Appeals from
September 6th, 2016,2 and the decision – what the Court of
Appeals found says, "Viewing the evidence in a light most
favorable to Appellant –" that was Mr. Nyamusevya "—we find
that Appellant's affidavit creates an issue an issue of fact as to
the amount owed on the loan at the time of default.
"Accordingly, Appellant's first assignment of error shall be
sustained in part as to the amount Appellant owes on the loan
and the case shall be remanded to the trial court for further
proceedings to determine the amount owed."
And then the opinion concludes with that [sic] the Court of
Appeals remands the matter for further proceedings to
determine the amount Appellant owes on the loan. That's the
only issue for today.
As I have said a moment ago, that issue is uncontested at this
point. The only evidence that the Court heard today was that
the Appellant owes on the loan $98,452.56, plus interest at
6.25 percent per anum [sic] from June 1 of 2010, plus advances
made by the mortgage company to protect the property, all of
which can be calculated as necessary upon the foreclosure sale
of the property.
2The record reflects that this Court's August 30, 2016 judgment was filed in the trial court on September 6,
2016.
No. 18AP-949 10
With that, I would ask the Court to make the ruling, and I thank
you, Judge.
(Nov. 5, 2018 Tr. at 59-60.)
{¶ 25} The trial court's November 15, 2018 judgment, after noting Nyamusevya's
decision not to participate in the trial and his pre-voir dire departure, states in pertinent
part:
Nevertheless, the Court enpaneled [sic] a jury and proceeded
with voir dire in the absence of [Nyamusevya], finding the first
eight jurors satisfactory and having no peremptory challenges
by [CitiMortgage]. Following the presentation of
[CitiMortgage's] evidence, consisting of the testimony of Mr.
Ramey and [CitiMortgage's] exhibits, which were admitted
without objection, the Court entertained [CitiMortgage's] oral
motion for directed verdict, and now makes the following
findings of fact and conclusions of law:
The Court finds that [CitiMortgage] adduced sufficient
evidence of the amount due on the mortgage loan of
[Nyamusevya], and that [CitiMortgage's] evidence was
unrebutted. Therefore, the Court finds that there is due from
[Nyamusevya] to [CitiMortgage] the sum of $98,452.56, plus
interest thereon at the rate of 6.25% per annum from June 1,
2010, plus advances made by [CitiMortgage] for taxes,
insurance, and otherwise to protect the property, and the costs
of this action, the full amount of which may be ascertained, as
necessary, after judicial sale of the property. CitiMortgage, Inc.
v. Roznowski, 139 Ohio St. 3d, 2014-Ohio-1984.
(Nov. 15, 2018 Jgmt. Decree in Foreclosure at 1-2.)
{¶ 26} The trial court acted appropriately when it explained Nyamusevya's absence
to the jury, offering a neutral explanation so as to avoid influencing the jurors for or against
Nyamusevya.
{¶ 27} Having independently reviewed the record and the parties' briefs,
Nyamusevya's assignments of error are not well-taken. None of the issues he raises on this
appeal are relevant to the only issue that was before the trial court, that being the amount
of money he owed CitiMortgage. We find that the trial court properly applied the law to
conclude that CitiMortgage had stated its motion for a directed verdict with specificity, had
provided sufficient evidence of the amount Nyamusevya owed CitiMortgage, and
Nyamusevya had not rebutted that evidence. We conclude, therefore, that the trial court
No. 18AP-949 11
did not err in granting CitiMortgage's motion for a directed verdict or in awarding the
amount CitiMortgage sought. We also find the trial court did not err in denying
Nyamusevya's November 8, 2018 motion to quash.
{¶ 28} Consequently, Nyamusevya's seven assignments of error are overruled.
IV. CONCLUSION
{¶ 29} Based on the foregoing, we overrule Nyamusevya's seven assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER, P.J., and KLATT, J., concur.