Breach of fiduciary duty as power of attorney

Ohio Appellate Reports

Unpublished

BROWN v. WIEDNER, Unpublished Decision (12-26-2006)
2006-Ohio-6852 FRANK C. BROWN, JR., PLAINTIFF-APPELLANT, v.
LINDEL ELAINE WEIDNER, ET AL., DEFENDANTS-APPELLEES. No.
13-06-08. Court of Appeals of Ohio, Third District, Seneca
County. DATE OF JUDGMENT ENTRY: December 26, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] CHARACTER OF PROCEEDINGS: Civil Appeal from
Common Pleas Court.

JUDGMENT: Judgment affirmed.

FRANK C. BROWN, JR., In Propria Persona Inmate #A439-439,
OH, Appellant.

CHARLES R. HALL, JR., Attorney at Law, Reg. #0075925, OH,
For Appellee.

OPINION

CUPP, J.

{¶ 1} Plaintiff-Appellant, Frank Brown, Jr., pro se,
appeals the judgment of the Seneca County Court of Common
Pleas. For the reasons that follow, we affirm the trial
court’s judgment.

{¶ 2} In June of 2005, Brown, who is currently
incarcerated, filed a complaint against Defendant-Appellee,
Lindel Elaine Wiedner, Brown’s sister, and
Defendant-Appellee, Patrick Wiedner, Brown’s brother-in-law
(hereinafter collectively referred to as “Appellees”). In
his complaint, Brown alleges that he granted a power of
attorney to Elaine in January 2003 and asserts numerous
claims against Appellees including: breach of fiduciary
duty as power of attorney based on fraud, theft, theft by
deception, unauthorized use of property, misuse of credit
cards, defrauding creditors, hidden economic motives, and
conversion.

{¶ 3} On July 14, 2005, Brown filed numerous
motions, including a request for admissions and
interrogatories of Appellees and a motion for summary
judgment. On August 12, 2005, Brown filed a motion to
compel Appellees to answer his admissions and
interrogatories and a notice of matters admitted by
Appellees under Civ.R. 36(A).

{¶ 4} On August 25, 2005, a pre-trial hearing was
held, which Brown attended via telephone. After the
pre-trial conference, a trial was set for February 8, 9,
and 10, 2006.

{¶ 5} On September 19, 2005, Brown filed a motion
for summary judgment on matters admitted, which the trial
court subsequently denied. On September 29, 2005, Appellees
filed a motion to withdraw admissions. On October 13, 2005,
Brown filed a motion to deny Appellees’ motion to withdraw
admissions. On October 24, 2005, the trial court granted
Appellees’ motion to withdraw admissions and permitted
Appellees’ to file their responses instanter.

{¶ 6} On November 3, 2005, Brown filed a motion to
compel discovery, which the trial court subsequently
granted and ordered Appellees to comply “no later than
December 29, 2005.”

{¶ 7} On December 19, 2005, the trial court granted
Brown leave to appear at his jury trial either
telephonically or by video, at his own expense.

{¶ 8} On January 11, 2006, Brown filed a motion for
contempt arguing that Appellees’ failed to comply with the
trial court’s November 2005 order of discovery. That same
date, Brown filed a motion for a writ of habeas corpus ad
testificandum. The trial court denied both motions.

{¶ 9} On February 2, 2006, Brown filed fifty-three
exhibits with the trial court and, on February 6, 2006,
filed a motion to modify the trial court’s December 2005
entry to allow him to call the court or to have the court
call him. Also, Appellees acquired legal counsel and, on
February 6, 2006, filed a motion to dismiss and a motion
for continuance.

{¶ 10} On February 8, 2006, a jury trial was to be
held via telephone, and Appellees and numerous subpoenaed
witnesses were in attendance. Additionally, the trial court
stated on the record:

I made an attempt through the Seneca County Sheriff to
transport [Brown.] They do not transport for civil cases.
I then called the institution to see whether or not he
would, in fact, be available telephonically for a couple
of eight hour days and they indicated to me the answer
was, no. However, it’s now 10 of 9. The most recent court
notice indicated that he was to appear, and in this
particular case I would have allowed him to appear
telephonically, at 8:30. This Court waits 15 minutes for
anybody under local rule. He has failed to prosecute the
case. The case is dismissed at his cost.

(Tr. pp. 2-3). Accordingly, the trial court dismissed
Brown’s complaint, under local rules, for failure to
prosecute.

{¶ 11} It is from the trial court’s judgment that
Brown appeals and sets forth ten assignments of error for
our review.[fn1] For clarity of analysis, we will combine
Brown’s assignments of error and address assignments of
error out of order where appropriate.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED BY NOT HOLDING HEARINGS ON
PLAINTIFF’S MOTIONS.

{¶ 12} In his first assignment of error, Brown
asserts that the trial court erred when it failed to hold
hearings and rule on some of his pretrial motions.
Specifically, Brown asserts that the trial court erred in
failing to afford him a hearing on his July 2005 motion for
summary judgment. We disagree.

{¶ 13} It is well settled that the trial court is
not required to schedule an oral hearing in every motion
for summary judgment. See Civ.R. 56; Doe v. Beach House
Dev. Co. (2000), 136 Ohio App.3d 573, 582-83. Civ.R. 56
sets forth the requirements for a party seeking summary
judgment. Once the required record for summary judgment is
provided, the trial court is free to rule upon the motion
for summary judgment without conducting an oral hearing.
Brown v. Akron Beacon Journal Publishing Co. (1991), 81
Ohio App.3d 135. Where either party requests an oral
hearing on a motion for summary judgment, it is within the
sound discretion of the trial court whether to grant or deny
such a request. Potter v. Troy (1992), 78 Ohio App.3d 372;
Gates Mills Invest. Co. v. Pepper Pike (1979), 59 Ohio
App.2d 155.

{¶ l4} Here, Brown failed to request an oral hearing
on any of his pre-trial motions, including his motion for
summary judgment. Accordingly, we cannot find that the
trial court erred in failing to conduct an oral hearing on
Brown’s pre-trial motions, including his July 2005 motion
for summary judgment.

{¶ 15} Also, it is well settled that when a trial
court fails to rule upon a pretrial motion, it may be
presumed that the court overruled it. State ex rel. Cassels
v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217,
223, 1994-Ohio-92, citing Newman v. Al Castrucci Ford
Sales, Inc. (1988), 54 Ohio App.3d 166. In addition, Brown
has not expressed how he was prejudiced by the trial
court’s failure to rule on his remaining pretrial motions.

{¶ 16} Accordingly, Brown’s first assignment of
error is overruled.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED BY VIOLATING THE JUDICIAL CODE OF
CONDUCT.

{¶ 17} In his second assignment of error, Brown
argues that the judge violated various canons of judicial
conduct and violated the local court rules.

{¶ 18} The Board of Commissioners on Grievances and
Discipline of the Supreme Court has jurisdiction over the
alleged misconduct of judges. See Gov.Bar.R. V,
¶¶ 1, 2.

{¶ 19} Accordingly, Brown’s second assignment of
error is overruled.

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED BY NO FOLLOWING THE MANDATES AS
PROVIDED, AND DEVIATING FROM, BY OHIO CIVIL RULES OF
PROCEDURE, RULE 16.

{¶ 20} In his third assignment of error, Brown
maintains that the trial court erred when it filed a
pre-trial conference order which stated matters had been
covered which did not occur at the pretrial conference.
Brown further maintains that the trial court did not cover
the events that did in fact occur at the pretrial conference
such as the trial court being rude to him and the trial
court possibly engaging in ex-parte communications.

{¶ 21} Civ.R. 16 provides in part: “The court may,
and on the request of either party shall, make a written
order that recites the action taken at the conference. The
court shall enter the order and submit copies to the
parties. Unless modified, the order shall control the
subsequent course of the action.”

{¶ 22} In the case sub judice, the trial court made
a written pre-trial conference order which states: “1. JURY
TRIAL SET FOR: February 8, 9 & 19, 2006. All parties and
counsel to be present at 8:30 a.m. NOTE: All trial exhibits
are to be marked prior to trial with plaintiffs exhibits
being numbered consecutively and defendant’s exhibits being
lettered consecutively. 2. JURY INSTRUCTIONS TO BE FILED
(on diskette with the court) AND EXCHANGED BY: January 3,
2006.”

{¶ 23} The record contains a pre-trial conference
order. Brown contends that certain events occurred at the
pre-trial conference which were not listed in the pretrial
order and further asserts that events which did not occur
were listed in the pretrial order. However, Brown has not
pointed to any evidence in the record to show that the
pre-trial conference order was inaccurate.

{¶ 24} Accordingly, Brown’s third assignment of
error is overruled.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT ON MATTERS ADMITTED.

ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED WHEN IT PERMITTED DEFENDANT(S) TO
WITHDRAW ADMISSIONS DEEMED ADMITTED AND FAILED TO IMPOSE
SANCTIONS FOR FAILURE TO COMPLY WITH THE REQUESTS OF
DISCOVERY.

{¶ 25} In his fourth assignment of error, Brown
argues that the trial court erred in denying his motion for
summary judgment on matters admitted. Specifically, Brown
asserts that Appellees’ failure to timely answer his July
2005 request for admissions and interrogatories provided
admissions which would be the basis for granting summary
judgment in his favor. In his fifth assignment of error,
Brown essentially argues that the trial court erred when it
allowed Appellees to withdraw the matters deemed admitted
due to Appellees failure to timely answer his requests for
admissions. Due to the nature of these assignments of error,
we elect to address them together.

{¶ 26} “It is * * * settled law in Ohio that
unanswered requests for admission render the matter
requested conclusively established for the purpose of the
suit, Cleveland Trust Co. v. Willis (1985), 20 Ohio St.3d
66, 20 OBR 364, 485 N.E.2d 1052, and a motion for summary
judgment may be based on such admitted matter. Weva Oil
Corp. v. Belco Petroleum Corp. (1975), 68 F.R.D. 663; Luick
v. Graybar Elec. Co. (1973), 473 F.2d 1360; First Natl.
Bank Co. v. Ins. Co. (1979), 606 F.2d 760; St. Paul Fire &
Marine Ins. Co. v. Battle (1975), 44 Ohio App.2d 261, 73
O.O.2d 291, 337 N.E.2d 806. Failure to answer is not excused
because the matters requested to be admitted are central or
noncentral to the case or must be proven by the requesting
party at trial. See Youssef v. Jones (1991), 77 Ohio App.3d
500, 602 N.E.2d 1176.” Klesch v. Reid (1994), 95 Ohio
App.3d 664, 674; T & S Lumber Co. v. Alta Constr. Co., Inc.
(1984), 19 Ohio App.3d 241, 243-244. “[W]here a party files
a written request for admission[,] a failure of the
opposing party to timely answer the request constitutes a
conclusive admission pursuant to Civ.R. 36 and also
satisfies the written answer requirement of Civ.R. 56(C) in
the case of a summary judgment.” Id. at 675.

{¶ 27} However, Civ.R. 36(A)(1) provides that “the
matter is admitted unless, within a period designated in
the request, not less than twenty eight days after service
thereof or within such shorter or longer time as the court
may allow, the party to whom the request is directed serves
upon the party requesting the admission a written answer or
objection addresses to the matter signed by the party by
the party’s attorney.” (Emphasis added). Furthermore, any
matter admitted under Civ.R. 36 is “conclusively
established unless the court on motion permits withdrawal
or amendment of the admission. Subject to the provision of
Rule 16 governing modification of a pretrial order, the
court may permit withdrawal or amendment when the
presentation of the merits of the action will be subserved
thereby and the party who obtained the admission fails to
satisfy the court that withdrawal or amendment will
prejudice the party in maintaining his action or defense on
the merits. * * *.” Civ. R. 36(B).

{¶ 28} An appellate court reviews a trial court’s
grant of a motion to withdraw admissions under an abuse of
discretion standard. Snyder v. Ford Motor Co., 3d Dist. No.
1-05-41, 2005-Ohio-6415, at ¶ 14, citing Graham v.
Allen County Sheriffs Office, 3d Dist. No. 1-05-18,
2005-Ohio-6415. Abuse of discretion implies the trial court
was arbitrary, unreasonable, or unconscionable. Id.
(Citations omitted).

{¶ 29} Under Civ.R. 36(A) the party serving the
request for admissions must designate the date for the
response of not less than twenty-eight days from the
service of the request. Civ.R. 36(A); Richardson v.
Fairbanks Ltd. (Oct. 28, 1997), 10th Dist. No. 97APE03-384.
However, Brown’s request for admissions failed to designate
a date by which Appellees were to answer his request.

{¶ 30} When the requests for an admission do not
contain a date for the response, the response may be served
at anytime prior to the trial. See Richardson, supra.
Consequently, the trial court did not abuse its discretion
by granting Appellees’ motion to withdraw admissions.

{¶ 31} Accordingly, Brown’s fifth assignment of
error is overruled.

{¶ 32} Having found that the trial court did not
abuse its discretion by granting Appellee’s motion to
withdraw admissions, we cannot find that the trial court
erred in denying Brown’s motion for summary judgment on
matters admitted.

{¶ 33} Accordingly, Brown’s fourth assignment of
error is overruled.

ASSIGNMENT OF ERROR NO. VI

THE TRIAL COURT ERRED WHEN IT FAILED TO USE SPECIFIC
CRITERIA, ON THE RECORD, TO MAKE A DETERMINATION OF
WHETHER PRISONERS PRESENCE WAS NECESSARY UNDER THE
PARTICULAR CIRCUMSTANCES OF THE CASE.

ASSIGNMENT OF ERROR NO. VIII

THE TRIAL COURT ERRED WHEN IT PLACED STIPULATIONS,
CONSTRAINTS, AND REQUIREMENTS UPON THE PLAINTIFF, IN ORDER
TO EFFECTIVELY PROSECUTE THIS ACTION, WHICH HE COULD NOT
COMPLY WITH.

ASSIGNMENT OF ERROR NO. IX

THE TRIAL COURT ERRED WHEN IT MADE THE `DECISION’ TO
CONVEY THE PLAINTIFF AND FAILED TO ISSUE AN ORDER AND
WARRANT TO CONVEY.

{¶ 34} In his sixth assignment of error, Brown
claims that the trial court erred when it failed to use the
criteria for determining whether his presence was necessary
for the civil action. In his eight assignment of error,
Brown asserts that the trial court erred when it allowed
him to appear at trial either via telephone or video. In
his ninth assignment of error, Brown asserts that the trial
court erred when it failed to issue an Order and Warrant to
Convey to the Seneca County Sheriff’s Office to bring Brown
to the court proceedings. Due to the nature of these
assignments of error, we elect to address them together.

{¶ 35} A prison inmate has no constitutional right
to be conveyed to court for civil proceedings, and a judge
has discretion to determine whether to grant such a motion,
Mancino v. Lakewood (1987), 36 Ohio App.3d 219, 221, and we
will overturn the ruling only if there has been an abuse of
that discretion. Nakoff v. Fairview Gen. Hosp., 75 Ohio
St.3d 254, 256, 1996-Ohio-159.

{¶ 36} The Mancino court listed a number of factors
relevant to determining whether to grant a motion to
convey, including:

(1) whether the prisoner’s request to be present at trial
reflects something more than a desire to be temporarily
freed from prison; (2) whether he is capable of conducting
an intelligent and responsive argument; (3) the cost and
convenience of transporting the prisoner from his place
of incarceration to the courthouse; (4) any potential
danger or security risk the prisoner’s presence might
pose; (5) the substantiality of the matter at issue; (6)
the need for an early resolution of the matter; (7) the
possibility and wisdom of delaying the trial until the
prisoner is released; (8) the probability of success on
the merits; and (9) the prisoner’s interest in presenting
his testimony in person rather than by deposition.

Mancino, 36 Ohio App.3d at 221-22. The Eighth District has
subsequently held that the Mancino decision does not
require a court to assess these factors on the record when
the record sufficiently shows the basis of the analysis.
E.B. v. T.J., 8th Dist. No. 86399, 2006-Ohio-441, at
¶ 19, citing In re Estate of Dezso (January 18,
2001), 8th Dist. No. 77903.

{¶ 37} Here, in December 2005, Brown filed a motion
to convey and/or to allow video or telephonic appearance,
and the trial court denied Brown’s motion to convey and
granted Brown leave to appear either by telephone or by
video, at his own expense. Additionally, on the record, the
trial court noted that it attempted to have the Seneca
County Sheriff transport him to the trial, but the
Sheriff’s office refused. Upon our review of the record, we
cannot say that the trial court abused its discretion in
failing to have Brown conveyed to the trial. Further, Brown
moved to appear by telephone or video and any error based
upon his ability to appear is invited error.

{¶ 38} Accordingly, Brown’s sixth, eight, and ninth
assignments of error are overruled.

ASSIGNMENT OF ERROR NO. VII

THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE A FINDING OF
CONTEMPT AND/OR IMPOSE SANCTIONS ON DEFENDANT(S) FOR
FAILURE TO COMPLY REQUESTS FOR DISCOVERY BY PLAINTIFF AND
AS ORDERED BY THE TRIAL COURT.

{¶ 39} Brown argues, in his seventh assignment of
error, that the trial court erred by denying his motion for
contempt and not imposing sanctions against the appellees
for the appellees failure to comply with the trial court’s
discovery order.

{¶ 40} An appellate court reviews a trial court’s
denial of sanctions under an abuse of discretion standard.
Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254,
256, 662 N.E.2d 1. As previously noted, an abuse of
discretion implies the trial court was arbitrary,
unreasonable, or unconscionable. Ford Motor Co., supra.

{¶ 41} Brown filed his motion for contempt on
January 11, 2006, requesting the trial court find Appellees
in contempt for failing to comply with the trial court’s
November 2005 discovery order. The trial court denied
Brown’s motion for contempt. After reviewing the record, we
cannot find that the trial court abused its discretion in
denying Brown’s motion for contempt.

{¶ 42} Accordingly, Brown’s seventh assignment of
error is overruled.

ASSIGNMENT OF ERROR NO. X

THE TRIAL COURT ERRED WHEN IT DISMISSED PLAINTIFF’S
ACTION FOR `FAILURE TO PROSECUTE’ WITHOUT PRIOR NOTICE AS
REQUIRED BY CIVIL RULES OF PROCEDURE, RULE 41(B)(1) AND
LOCAL RULE 13.01 AND PRIOR TO COMPLETION OF DISCOVERY BY
THE PARTIES INVOLVED.

{¶ 43} Brown argues in his tenth assignment of error
that a civil action may not be dismissed by the trial court
without prior notice of dismissal and the trial court erred
when it dismissed Brown’s action for failure to prosecute
without prior notice.

{¶ 44} Seneca County Local Rule 13.03 provides, “The
unexcused failure of an attorney and/or party to appear for
a hearing at the scheduled time, may result, within the
discretion of the Court, in subjecting the offending person
to any appropriate sanctions, including dismissal of the
case or the assessment of fines.”

{¶ 45} In the case sub judice, Brown did not appear
telephonically for the trial at the scheduled time. The
aforementioned Seneca County Local Rule provides notice to
the parties that the unexcused failure to appear at the
scheduled time could result in a dismissal. Consequently, we
find that Brown received prior notice of the possibility of
dismissal and that the trial court did not abuse its
discretion in dismissing Brown’s action.

{¶ 46} According, Brown’s tenth assignment of error
is overruled.

{¶ 47} Having found no error prejudicial to the
appellant herein, in the particulars assigned and argued,
we affirm the judgment of the trial court.

Judgment affirmed.

SHAW, J., concurs.

ROGERS, J., concurs in judgment only.

r

[fn1] We note that Apellees failed to file an appellate
brief in this case. Pursuant to App.R. 18(C), this court
“may accept the appellant’s statement of the facts and
issues as correct and reverse the judgment if appellant’s
brief reasonably appears to sustain such action.”