Johnson v. U.S. Title Agency, Inc.

2020 Ohio 4056

• Court: Ohio Court of Appeals
• Decided: August 13, 2020
• Docket: 108547
• Status: Published

Opinion

[Cite as Johnson v. U.S. Title Agency, Inc., 2020-Ohio-4056.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

RICHARD G. JOHNSON, ESQ. :

Plaintiff-Appellant, : No. 108547 v. :

U.S. TITLE AGENCY, INC., ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 13, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-11-760834

Appearances:

Kehoe & Associates, L.L.C., Robert D. Kehoe, and Lauren N. Orrico, for appellant.

Meyers, Roman, Friedberg & Lewis, and Ronald P. Friedberg, for appellee U.S. Title Agency, Inc.

Sikora Law, L.L.C., and Alexander E. Goetsch, for appellee Chicago Title Insurance Company.

MARY J. BOYLE, P.J.:

Plaintiff-appellant, Richard G. Johnson (“Johnson”) appeals from

(1) the trial court’s order bifurcating his bad-faith claim, (2) the trial court’s judgment reflecting the jury verdict against Johnson, (3) the trial court’s order

granting a directed verdict on Johnson’s negligence claim, and (4) the trial court’s

judgment denying his motion for a new trial. He raises six assignments of error for

our review:

1. The trial court erred by failing to follow the mandate of the Eighth District Court of Appeals, in violation of the law of the case doctrine.

2. The trial court erred in granting a directed verdict in favor of U.S. Title on Johnson’s negligence claim.

3. The trial court erred in bifurcating the entirety of Johnson’s bad faith claim.

4. The trial court erred in denying Johnson’s Motion for New Trial in the face of cumulative errors.

5. The trial court erred by striking substantial portions of the video testimony of Ed Horejs.

6. The trial court prejudiced Johnson by showing clear bias in favor of Appellees.

Finding no merit to his assignments of error, we affirm the trial

court’s judgments.

I. Factual Background and Procedural History

A. Procedural History Before Trial

Johnson originally filed his action against defendant-appellee, U.S.

Title Agency, Inc. (“U.S. Title”), in July 2011. But in March 2012, Johnson filed an

amended complaint, and joined defendant-appellee, Chicago Title Insurance

Company (“Chicago Title”). We will refer to defendants collectively as “appellees.”

Johnson asserted six counts in his complaint: (1) breach of contract against U.S. Title, (2) breach of contract against Chicago Title, (3) specific performance and

injunctive relief against both U.S. Title and Chicago Title, (4) negligence against U.S.

Title, (5) breach of fiduciary duty against U.S. Title, and (6) breach of the duty of

good faith and fair dealing against both title companies.

All three parties moved for summary judgment. The trial court

granted appellees’ motions for counts I, II, III, and VI and denied Johnson’s motion,

finding that Johnson was not a party to or beneficiary of KeyBank’s closing

instructions. Johnson appealed, but this court dismissed the appeal because Counts

IV and V of the amended complaint had not been resolved. Johnson v. U.S. Title

Agency, Inc., 8th Dist. Cuyahoga No. 100535 (Nov. 15, 2013). On remand, the trial

court then dismissed Counts IV and V, without prejudice, pursuant to Civ.R. 41(A).

Johnson appealed again, but this court dismissed the appeal because the Civ.R.

41(A) dismissal was insufficient to create a final appealable order. Johnson v. U.S.

Title Agency, Inc., 8th Dist. Cuyahoga No. 101156 (June 13, 2014).

U.S. Title and Johnson filed “renewed” motions for summary

judgment. (Chicago Title did not need to file a renewed motion because Counts IV

and V were against only U.S. Title.) In September 2015, the trial court granted

summary judgment for appellees on all counts, including IV and V. Johnson filed

his third appeal, arguing that the trial court erred in granting summary judgment to

appellees. Johnson v. U.S. Title Agency, Inc., 2017-Ohio-2852, 91 N.E.3d 76, ¶ 1

(8th Dist.). This court found that there were genuine issues of material fact on all

counts and, in May 2017, the majority reversed and remanded “for future proceedings consistent with the law and this decision,” with Judge Keough

dissenting. Id. at ¶ 82.

In November 2017, appellees moved to bifurcate Johnson’s claim for

bad faith. Johnson did not oppose this motion, and the trial court granted it. In

May 2018, Johnson moved in limine for the trial court to preclude arguments

inconsistent with Johnson, 2017-Ohio-2852, 91 N.E.3d 76. The trial court granted

the motion after the commencement of trial.

B. Jury Trial

A nine-day jury trial commenced in July 2018. For his case in chief,

Johnson’s counsel called (1) Johnson; (2) Mark Wachter, Johnson’s real estate

attorney; (3) Mike Gerome, a closing agent for U.S. Title, as if on cross-examination;

and (4) Ed Horejs, a representative for Chicago Title, via video deposition as if on

cross-examination.

In 2008, Johnson purchased a home in Bentleyville, Ohio. In the late

spring or early summer of 2009, he hired a contractor, Jack Fyffe, to renovate his

home. That fall, Johnson terminated Fyffe for not paying the subcontractors. Fyffe

had completed much of the work on the third floor of the home, but the renovation

was not complete.

In early 2010, Johnson hired Berns Custom Homes (“Berns”) as the

general contractor to continue the renovation while Johnson lived at the property.

Johnson retained real estate attorney, Wachter, to negotiate the construction loan

agreement with KeyBank and the contract with Berns. Johnson entered a construction loan agreement with KeyBank in the amount of $815,581.00 to satisfy

the existing mortgage on his property (approximately $334,000.00) and to finance

the remaining renovations ($477,723.00). Johnson testified that he thought the

$477,723.00 would proceed through escrow, but pursuant to a construction

holdback provision, KeyBank held the $477,723.00 until Johnson made draw

requests as construction progressed.

On Wachter’s recommendation, Johnson and KeyBank selected

U.S. Title as the closing, escrow, and title agent for the loan closing. U.S. Title was

an insurance agent for Chicago Title. Johnson testified that he verbally instructed

Wachter to tell U.S. Title to make sure Johnson “got the same protections that

KeyBank did” for the closing. Wachter testified that he verbally told Gerome, a

closing agent for U.S. Title, that Johnson “should get every bit of coverage that’s

being provided to the bank in favor of him.” Wachter testified that he was “not aware

of any” written instructions from Johnson to U.S. Title. Gerome testified that he did

not remember whether he talked to Wachter about title insurance.

KeyBank provided written closing instructions to U.S. Title for the

loan closing. The closing instructions provided that “[t]he title insurance

commitment and final policy must not contain any exception or exclusion from

coverage based on the existence or possibility of mechanic’s liens.” The document

stated that “[a]ll standard exceptions (such as matters of survey, rights or parties in

possession, mechanics liens and standard exceptions not evidenced by a specific

instrument recorded against the property) must be deleted.” The closing instructions further provided that “[a]ll documents are to be executed exactly as

typed.” The document also contained a closing agent certification, stating: “These

instructions set forth our requirements for closing the above captioned loan. * * * As

used herein, ‘closing’ shall mean the execution by the Borrower(s) and Mortgagor(s)

of all required loan documents as specified herein.” Wachter testified that Johnson

was both the borrower and mortgagor, and Wachter agreed that “KeyBank actually

made it clear that in order to close the transaction, U.S. Title only needed Mr.

Johnson to execute the closing documents[.]”

Johnson reviewed the closing instructions and “agreed” with them.

Johnson did not send U.S. Title his own set of written closing instructions but

testified that he verbally told a U.S. Title closing agent that KeyBank’s closing

instructions were his instructions as well.

The closing took place on May 27, 2010. Documents executed at the

closing included the mortgage and the construction loan agreement with a rider.

Johnson explained that the rider would go into effect when the renovation was

completed. He stated that pursuant to the rider, “the construction mortgage turns

into a permanent mortgage, so you do one closing rather than having to do two

closings.” U.S. Title recorded the mortgage on June 2, 2010.

The loan agreement outlined requirements for each disbursement of

the $477,723.00 to Johnson, which included updated title searches and lien

releases. The loan agreement also included a contractor’s consent clause, which

provided that the contractor “hereby subordinates its lien on the Property, now existing or hereafter arising, to the lien of the Security Documents.” The consent

clause contained a signature block for Justin Berns, Authorized Signatory, with the

May 27, 2010 closing date. However, Justin Berns did not sign the consent clause.

Wachter testified that he never had a conversation with Gerome or anyone at U.S.

Title about having Berns sign the consent clause. Nor did Wachter follow up to

confirm that Berns had signed the consent clause. Wachter explained that a lien

subordination was not “part of the negotiation with Berns” and that he never

contacted Berns to ask if he would be willing to sign a lien subordination.

U.S. Title offered Johnson closing protection coverage via a closing

protection letter as required by R.C. 3953.32. The letter provided that the coverage

indemnified Johnson for any loss of settlement funds resulting from certain

conditions, including the closing agent’s “[f]ailure to * * * comply with any

applicable written closing instructions, when agreed to by [U.S. Title].” Horejs, a

representative from Chicago Title, explained that settlement funds are “accounted

for in the closing of that particular transaction, funds coming in, funds going out.

* * * [S]ettlement is another term for escrow or closing[; they] all mean[] the same

thing.” Horejs agreed to the statement that “if there is no loss of closing funds,

escrow funds, settlement fund[s],” Chicago Title has no liability under the closing

protection coverage.

U.S. Title provided Johnson with a copy of the owner’s policy of title

insurance that Chicago Title issued for the loan and mortgage, which Wachter had

verbally requested. The policy required that Johnson notify Chicago Title of a claim by submitting a written statement to a P.O. Box address in Jacksonville, Florida.

The owner’s policy insured Johnson against loss or damage from certain covered

risks arising before the June 2, 2010 policy date, including “[a]ny defect in or lien or

encumbrance on the Title[.]” Johnson’s owner’s policy also contained exclusions:

The following matters are expressly excluded from the coverage of this policy, and the Company will pay not loss or damage, costs or attorneys’ fees, or expenses that arise by reason of:

*** 3. Defects, liens, encumbrances, adverse claims, or other matters:

(a) created, suffered, assumed, or agreed to by the Insured Claimant; ***

(d) attaching or created subsequent to Date of Policy[.]

The owner’s policy also included a standard mechanic’s lien exception:

This policy does not insure against loss or damage (and the Company will not pay costs attorneys’ fees or expenses) which arise by reason of * * * [a]ny lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the public records.

Wachter testified that he did not tell Gerome that any specific

provision should be removed from the owner’s policy. Horejs testified that the

closing instructions would “never” instruct the issuing agent to delete a mechanic’s

lien exception from the owner’s policy. He explained that

In a situation where there is a current owner of the property, in other words, they are not a new purchaser coming into a new property, they are the existing owner who has owned and controlled the property and anything done on it, there would be no reason or purpose to delete the mechanic’s lien exception because the — any work done on the property by the owner would not be a covered matter. It is excluded from coverage as a matter created and assumed by that insured.

Horejs testified that the standard exception for mechanic’s liens in

Johnson’s owner’s policy “wouldn’t make any difference” with respect to liens

related to work that began after the policy date “because it would be a subsequent

matter, a post-policy matter outside the title policy.” Horejs explained that a title

insurance company in Ohio cannot offer insurance for post-policy events: “It just

simply is not part of the coverage that has been approved by the Department of

Insurance and it’s not — there isn’t any forum in the industry that would do that.”

Horejs further testified that the exclusion set forth in section 3(a) of

the owner’s policy would exclude coverage related to mechanic’s liens that were

created by the insured not paying a contractor, regardless of the reason for

nonpayment:

If an owner has work performed on the property, in other words, they hire a builder, they hire a contractor to do some work on the property, they are creating a situation themselves which, should they not pay that contractor for any reason, regardless of merit, and it results in a lien on the property, the lien is the result of the owner’s own action. * * * There are other legal avenues that an owner can pursue if there is that kind of dispute [over the quality of the contractor’s work], but from the limited standpoint of a title insurance policy, a policy cannot insure an owner from their own acts. It’s one of the — it’s one of the fundamental distinctions of title insurance from other forms of insurance.

U.S. Title also provided KeyBank with a copy of the lender’s policy of

title insurance issued by Chicago Title for the loan and mortgage.1 The lender’s

1 KeyBank never brought a claim against appellees pursuant to KeyBank’s lender’s policy. policy stated that KeyBank was insured “as of Date of Policy,” but it did not contain

the standard mechanic’s lien exception.

On June 14, 2010, Berns began construction at Johnson’s property.

Pursuant to his loan agreement with KeyBank, Johnson requested disbursements to

pay the contractors on August 2, 2010 ($86,264.98) and August 27, 2010

($65,454.03). KeyBank approved these requests and disbursed the funds to

Johnson.

On October 15, 2010, Johnson terminated Berns after disputes over

construction performance. Berns claimed that Johnson owed payment for work

performed, and Johnson disagreed. On October 29, 2010, Berns recorded a

mechanic’s lien on Johnson’s property for $241,521.95.2 Berns also pursued

mandatory arbitration against Johnson for breach of contract. The arbitrator found

that Johnson breached the contract with Berns by failing to pay for certain work

performed and by preventing Berns and the subcontractors from further

performing. The arbitrator awarded Berns $166,550.00, which Berns converted to

a judgment lien. See Berns Custom Homes, Inc. v. Johnson, Cuyahoga C.P. No. CV-

12-791858, aff’d, Berns Custom Homes, Inc. v. Johnson, 8th Dist. Cuyahoga Nos.

100837 and 101014, 2014-Ohio-3918. Johnson never paid anything to satisfy the

judgment. Berns’s lien remained on Johnson’s property until it expired in 2016.

Johnson incurred over $468,000.00 in legal fees from his arbitration with Berns.

2Four subcontractors also filed mechanic’s liens totaling $55,669 in the fall of 2010. These liens were later released. On December 3, 2010, Johnson hired Korner Construction, with

KeyBank’s approval, to resume the renovations. On December 22, 2010, KeyBank

disbursed $61,000.00 in response to Johnson’s third draw request. Johnson

submitted two additional disbursement requests in December, which triggered title

searches. On December 29, 2010, U.S. Title notified KeyBank of Berns’s lien on the

property, and KeyBank denied Johnson’s outstanding draw requests.

Between December 31, 2010, and January 17, 2011, Johnson and

Wachter corresponded with U.S. Title to request removal of Berns’s lien pursuant to

Johnson’s closing protection coverage and owner’s policy, asserting that Johnson

was a third-party beneficiary of KeyBank’s lender’s policy. U.S. Title did not

respond. Johnson and KeyBank also asked U.S. Title to “insure through” Berns’s

lien, to continue to insure KeyBank for future advances to Johnson as if Berns’s lien

did not exist. U.S. Title declined to do so.

Johnson did not correspond directly with Chicago Title. He admitted

that he never sent notice to them to the P.O. Box address in Jacksonville, Florida, as

required by his owner’s policy. Horejs testified that Chicago Title never received a

claim under the closing protection from either KeyBank or Johnson. Horejs further

agreed that U.S. Title was not “authorized to accept on behalf of Chicago Title a

notice of claim made by an insured.”

Although Berns’s lien was not removed from Johnson’s property

(until it expired in 2016), KeyBank ultimately continued to disburse the remaining

funds. Johnson was asked on cross-examination, “So, a contractor’s consent provision was never signed by Berns? Never any insurance over the mechanic’s lien,

but KeyBank issued another draw payment to you in January of 2011 in the amount

of $115,280.40, didn’t they?” Johnson replied that he did not remember getting a

payment in January 2011. But he later admitted that in his amended complaint, he

stated, “In January 2011, KeyBank honored the previously dishonored draw request

made in December 2010.”

KeyBank also disbursed $100,000.00 in July 2011. By August 2011,

KeyBank had disbursed all loan funds except for $35,000.00, which it held until

construction was completed pursuant to a holdback agreement with Johnson. By

2013, Korner Construction had completed the renovations, KeyBank had disbursed

the full amount of the loan, and the loan converted to permanent financing.

Despite the disbursements from KeyBank, Johnson testified that he

funded the rest of the renovation himself and sought reimbursement from KeyBank.

Johnson further testified that he continued to pay rent for his downtown Cleveland

office because the completion of his home office was delayed by two years.

At the close of Johnson’s case in chief, appellees jointly moved for a

directed verdict on all of Johnson’s claims. The trial court took the arguments

“under advisement” and had appellees present their cases. Appellees called Gerome

and their expert witness, Michael Waiwood.

Gerome explained that it would have been “impossible” for U.S. Title

to have removed the mechanic’s lien exclusion from Johnson’s owner’s policy. He

stated, “You can’t do that.” He further explained that mechanic’s lien exceptions are “never deleted from the owner’s policy” because “we do not insure things that people

cause on their own.” He testified that neither Johnson nor Wachter asked him

specifically to delete the mechanic’s lien exception from the owner’s policy. Gerome

also testified that U.S. Title is not authorized to accept claims on behalf of Chicago

Title. He stated that he “probably [did] not” forward the emails he received from

Johnson “purporting to make claims” to Chicago Title.

Waiwood testified that he has been an attorney in the title insurance

industry for almost 50 years. Throughout his career, he had been a branch manager

at a title search company, vice president and regional underwriting counsel for a

large multi-state title agency, president and CEO for one of the multi-state agency’s

subsidiary underwriting companies, and president and underwriting counsel for a

national title company. He was also involved in regulatory work, writing statutes in

Ohio.

Waiwood opined that “the mechanic’s liens are not a covered matter

under the owner’s policy.” He explained:

[A]nything that occurs in an owner’s policy subsequent to the date of policy is simply not covered. In addition to that, there [are] exclusions in the policy form itself. An exclusion to the title insurance policy by statute, by law in Ohio, is these are matters that are not covered by title policies. And one of the exclusions in the policy clearly states that it doesn’t cover any matters after the date of the policy.

Waiwood explained that if the mechanic’s lien exception had been

deleted from Johnson’s owner’s policy, Berns’s lien would still not be covered under

the policy. He stated that “the policy does not cover any liens that become effective or filed after the date of policy.” When asked whether the mechanic’s lien exception

would make a difference as to whether Berns’s lien would be covered, he answered

“absolutely not. They’re not covered. It’s that simple. We are not a casualty insurer.

We could only insure up to the date of policy by law.”

Waiwood further testified that the exclusion set forth in section 3(a)

of Johnson’s owner’s policy would also preclude coverage of damages related to

Berns’s lien. He explained that the exclusion in section 3(a) addresses:

a matter that is created, suffered, or assumed by the insurer. In other words, the responsibility is caused by the insured themselves. And our position on that would be if I was being asked to underwrite this, I would say that these mechanic’s liens are by virtue of the fact that Mr. Johnson simply did not pay his contractors.

In relation to the closing protection coverage, Waiwood testified that

such coverage limits liability to a loss of settlement funds: settlement funds are “the

only thing that [closing protection] cover[s]. And if there is no loss of settlement

funds, then the issue of mechanic’s liens is irrelevant.” Waiwood stated that the

closing protection coverage did not cover damages arising from Berns’s lien because

they are not settlement funds. Moreover, he explained the coverage included an

exclusion that provides:

[T]he company will not be liable for any loss [of closing funds] arising out of mechanic’s and materialman’s liens in connection with your purchase or lease, or consideration, or construction loan transaction. Except to the extent that that protection against such liens is afforded by a title insurance commitment or policy. * * * This form is not intended to be a substitute for a title insurance policy.

He further explained that the closing protection coverage would not apply to

damages from Berns’s lien because the coverage “basically excludes liability for any matters that were created or caused by, or suffered, or assumed by the named party

in the closing protection letter.”

After appellees rested, Johnson called a rebuttal expert witness,

Robert Greggo. Greggo testified that he had been general counsel at a title agency

for over 25 years, where his responsibilities included writing title insurance,

reviewing the results of title examinations, handling underwriting decisions, and

supervising the escrow process.

Greggo disagreed with Waiwood’s opinions that the owner’s policy

and closing protection coverage would not cover damages from Berns’s lien. He

testified that “it’s very common” for mechanic’s lien exceptions to be deleted from

an owner’s policy and opined that Johnson’s owner’s policy should have had the

exception removed. He also explained that a title insurance policy can insure

mechanic’s liens filed after the closing date “if the work on the project was performed

prior to the effective date of the policy, the closing date.” Greggo testified that the

renovation began in “2009 or earlier in 2010” with a prior contractor, and the lien

Berns filed on Johnson’s property dates back to the date the prior contractor first

started to work on the renovations on Johnson’s house. “In my opinion, it was one

continuous project.” Greggo admitted that he did not know that Johnson had

executed an affidavit that stated he had fully paid the previous contractor in

September 2009.

Greggo also disagreed with Waiwood’s opinion on closing protection

coverage because he said that the coverage “protected [Johnson] against failure to follow closing instructions,” and U.S. Title failed to follow the closing instructions

because it issued Johnson an owner’s policy that included the mechanic’s lien

exception. Greggo testified that the closing instructions applied to Johnson’s

owner’s policy based on Johnson’s and Wachter’s oral instructions to U.S. Title. But

he admitted that liability under the closing protection coverage would have to be

based on failure to follow any “written” closing instructions. Greggo also testified

that he didn’t “believe there were any” losses of settlement funds.

After Greggo testified, appellees renewed their motion for directed

verdict. The trial court again took their arguments “under advisement” and charged

the jury. The trial court went through each of Johnson’s claims with the jury and

instructed them on the relevant law. The parties then presented their closing

arguments.

Sometime thereafter, off the record, the trial court granted U.S. Title’s

motion for directed verdict on Johnson’s negligence claim. The trial court read the

verdict forms and interrogatories to the jury and without explanation instructed the

jury to “rip up” the verdict form for Count 4, negligence. The trial court released the

jury for deliberations and submitted the written charge, jury interrogatories, and

jury verdict forms to them.

After deliberating, the jury found in favor of appellees on Johnson’s

breach-of-contract and specific-performance claims against both U.S. Title and

Chicago Title, and Johnson’s breach of fiduciary duty claim against U.S. Title. In

response to Jury Interrogatory No. 2, “Do you find by the greater weight of the evidence that any defect, lien, or encumbrance existed on the plaintiff’s title to the

property as of June 2, 2010 other than the KeyBank [m]ortgage,” the jury responded

“NO.” In response to Jury Interrogatory No. 13, “Do you find by the greater weight

of the evidence that U.S. Title failed to follow written closing instructions[,]” the jury

responded “NO.” The trial court subsequently dismissed Johnson’s claim for bad

faith as a matter of law. Johnson moved for a new trial based on cumulative errors,

which the trial court denied without explanation.

Johnson now appeals the trial court’s actions during trial as well as

the trial court’s bifurcation of his bad-faith claim, grant of the directed verdict on his

negligence claim, and denial of his motion for a new trial.

II. Law and Analysis

A. Law of the Case

In his first assignment of error, Johnson argues that the trial court

erred by failing to comply with the “law of the case” created by this court in Johnson,

2017-Ohio-2852, 91 N.E.3d 76. He maintains that our decision “set out a clear

mandate to be followed, which the trial court disregarded.” Specifically, he claims

that this court created law of the case with respect to the following issues:

1. Johnson is entitled to insurance coverage for losses arising out of mechanic’s liens because U.S. Title did not comply with the closing instructions;

2. Berns’s signature on the consent clause should have been obtained and would have protected the priority of KeyBank’s mortgage;

3. An escrow agent owes a fiduciary duty to both parties; 4. An insurance agent has a duty to exercise ordinary care and is negligent when it fails to procure requested insurance; and

5. Johnson is a third-party beneficiary of the closing instructions.

We review de novo whether the law-of-the-case doctrine applies.

Frazier v. Rodgers Builders, 8th Dist. Cuyahoga No. 91987, 2010-Ohio-3058, ¶ 60.

Under the law-of-the-case doctrine, “the decision of a reviewing court

in a case remains the law of that case on the legal questions involved for all

subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v.

Nolan, 11 Ohio St.3d 1, 3-4, 462 N.E.2d 410 (1984). The goals of the doctrine are “to

ensure consistency of results in a case, to avoid endless litigation by settling the

issues, and to preserve the structure of the superior and inferior courts as designed

by the Ohio Constitution.” Estate of Mikulski v. Centerior Energy Corp., 2019-

Ohio-983, 133 N.E.3d 899, ¶ 35 (8th Dist.), citing Hawley v. Ritley, 35 Ohio St.3d

157, 160, 519 N.E.2d 390 (1988). The doctrine “‘compel[s] trial courts to follow the

mandates of reviewing courts[,]’ and trial courts are ‘without authority to extend or

vary the mandate given.’” Id., quoting Hawley at 160. Where a trial court following

remand ‘“is confronted with substantially the same facts and issues as were involved

in the prior appeal, the court is bound to adhere to the appellate court’s

determination.’” Id., quoting Hawley at 160. The law-of-the-case doctrine applies

only to legal issues “that have been decided with finality.” Williams v. Matthews,

8th Dist. Cuyahoga No. 103501, 2016-Ohio-3461, ¶ 7. However, the law of the case “is considered to be a rule of practice rather than a binding rule of substantive law

and will not be applied so as to achieve unjust results.” Nolan at 3.

Appellees argue that this court’s decision in Johnson, 2017-Ohio-

2852, 91 N.E.3d 76, did not create law of the case because this court applied the

summary-judgment standard, construed the evidence most strongly in favor of

Johnson, and determined that genuine issues of material fact existed on all counts.

However, even appellate decisions that reverse a grant of summary judgment and

remand for the resolution of factual issues can create law of the case if they also make

a legal determination. See Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 659

N.E.2d 781 (1996) (legal finding in opinion reversing grant of summary judgment

created law of the case); Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820

N.E.2d 329 (same). Therefore, if we resolved a question of law in Johnson, 2017-

Ohio-2852, 91 N.E.3d 76, we created law of the case on that question.

We reject Johnson’s argument that we created law of the case for four

out of his five propositions. First, to support his assertion that we mandated that

Johnson should have been covered for losses stemming from Berns’s lien because

his owner’s policy should not have included a mechanic’s lien exclusion and U.S.

Title failed to comply with the closing instructions, Johnson cites to footnote 11 and

paragraphs 73 and 74 of Johnson, 2017-Ohio-2852, 91 N.E.3d 76. In these

paragraphs, however, this court found that there were genuine issues of material

fact regarding these issues. We did not make a legal determination or create law of

the case. Indeed, we concluded that Johnson’s entitlement to a mechanic’s lien exclusion and appellees’ liability under the owner’s policy and closing protection

coverage were questions of fact to be determined on remand. Id. at ¶ 74.

Second, to support his claim that we created law of the case that

Berns’s signature on the consent clause should have been obtained and would have

protected the priority of KeyBank’s mortgage, Johnson cites to paragraphs 64 and

74 of Johnson, 2017-Ohio-2852, 91 N.E.3d 76. Again, in these paragraphs, we did

not make legal determinations or create law of the case. Paragraph 64 merely

describes the closing instructions and states that by including the consent clause, it

“indicates a clear expectation that it should have been signed.” But this statement

is not a legal determination that the consent clause should have been signed. In

conjunction with paragraph 74, we simply concluded that there was a question of

fact as to whether U.S. Title failed to comply with the closing instructions, which

stated that “[a]ll documents are to be executed[.]”

Finally, to support his argument that we created law of the case that

(1) an escrow agent owes a fiduciary duty to both parties, and (2) an insurance agent

has a duty to exercise ordinary care, and is negligent when it fails to procure

requested insurance, Johnson cites to paragraphs 45, 77, 80, and 81 of Johnson,

2017-Ohio-2852, 91 N.E.3d 76. The first three paragraphs are mostly block quotes

from other cases setting forth black-letter law on an escrow agent’s duty, an

insurance agent’s duty, and a fiduciary duty. And we concluded in paragraph 81 that

“[t]he issues of bad faith, negligence, and ordinary care will be addressed upon remand, based on our findings herein.” Therefore, we did not make legal

determinations on these issues or create law of the case in these paragraphs.

Johnson’s final argument is that we created law of the case that he

was a third-party beneficiary to the closing instructions. Based upon this court’s

determination that he was a third-party beneficiary, he argues that “any evidence

that [he] was not a party to the [c]losing [i]nstructions, or that he could not recover

for a breach of those instructions, is contrary to [our] [d]ecision.” He sets forth

multiple examples of where he claims the trial court allowed improper evidence that

he was not a party to the closing instructions and asserts that he was prejudiced by

such error.

This court did conclude that Johnson had standing to pursue a breach

of contract claim because he was a third-party beneficiary to the closing instructions.

See Johnson at ¶ 66. But even assuming arguendo that the trial court erred in

allowing appellees to present evidence that he was not a party to the closing

instructions, any error would be harmless because the jury found that U.S. Title did

not breach the closing instructions. In response to Jury Interrogatory No. 13, “Do

you find by the greater weight of the evidence that U.S. Title failed to follow written

closing instructions[,]” the jury responded “NO.” This finding is significant because

the closing instructions did not contain any instruction whatsoever requiring U.S.

Title to issue an owner’s policy — let alone with standard provisions omitted — or

to obtain the signature of anyone other than Johnson on any of the closing

documents. Further, any coverage afforded by the closing protection coverage is expressly limited to the loss of closing funds that resulted from the closing agent’s

failure to follow the written closing instructions. The jury found that U.S. Title

followed the closing instructions. Therefore, even if the trial court allowed evidence

and argument inconsistent with Johnson being a third-party beneficiary to the

closing instructions, the outcome of the trial would have been the same.

Accordingly, we overrule Johnson’s first assignment of error.

B. Directed Verdict on Johnson’s Negligence Claim

In his second assignment of error, Johnson argues that the trial court

erred in granting a directed verdict in favor of U.S. Title on Johnson’s negligence

claim. Specifically, Johnson claims that U.S. Title was negligent by not issuing a title

insurance policy with the standard mechanic’s lien exceptions removed and not

obtaining Berns’s signature on the Consent Clause.3

We review the trial court’s decision to grant a directed verdict de

novo. Taylor-Stephens v. Rite Aid of Ohio, 8th Dist. Cuyahoga No. 106324, 2018-

Ohio-4714, ¶ 53. Civ.R. 50 provides:

When a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

3 Johnson states that the trial court suggested in chambers that Johnson could not bring claims both for negligence and breach of fiduciary duty because they have two different standards of care. Because we review the grant of the directed verdict de novo, we do not consider the trial court’s reasoning, and we never consider a trial court’s comments that are not in the record. The Ohio Supreme Court has made clear that “the court must neither

consider the weight of the evidence nor the credibility of the witnesses in disposing

of a directed verdict motion.” Strother v. Hutchinson, 67 Ohio St.2d 282, 284, 423

N.E.2d 467 (1981). “[I]f there is substantial competent evidence to support the party

against whom the motion is made, upon which evidence reasonable minds might

reach different conclusions, the motion must be denied.” Ruta v. Breckenridge-

Remy Co., 69 Ohio St. 2d 66, 68-69, 430 N.E.2d 935 (1982). But “when the party

opposing the motion has failed to produce any evidence on one or more of the

essential elements of a claim, a directed verdict is appropriate.” Sivinski v. Kelley,

8th Dist. Cuyahoga No. 94296, 2011-Ohio-2145, ¶ 20. “The essential elements of

any negligence action are a duty of care, a breach of that duty, and an injury directly

and proximately resulting therefrom.” Meyer v. Rapacz, 8th Dist. Cuyahoga No.

95571, 2011-Ohio-2537, ¶ 17.

Generally, the duty element in a negligence action is a question of law

for the court to determine. Wallace v. Ohio DOC, 96 Ohio St.3d 266, 2002-Ohio-

4210, 773 N.E.2d 1018, ¶ 22, citing Mussivand v. David, 45 Ohio St.3d 314, 544

N.E.2d 265 (1989). It is well settled that an insurance agency owes its customers a

duty to exercise good faith and reasonable diligence in procuring its customer’s

insurance coverage. Slovak v. Adams, 141 Ohio App.3d 838, 845, 753 N.E.2d 910

(6th Dist.2001), citing Damon’s Missouri, Inc. v. Davis, 63 Ohio St.3d 605, 590

N.E.2d 254 (1992). We said as much in Johnson, 2017-Ohio-2852, 91 N.E.3d 76, ¶

80. Nonetheless, to survive a directed verdict, Johnson still had to present evidence of (1) breach of that duty, (2) that the breach proximately caused any harm that he

experienced as a result of the breach, and (3) injury resulting from the breach. After

review, we find that he did not.

Johnson argues that U.S. Title breached its duty in procuring

insurance for him because it failed to ensure that the mechanic’s lien exception was

removed and obtain Berns’s signature on the consent clause in the loan agreement.

In support of his argument that U.S. Title breached these duties, Johnson contends

that he and his attorney instructed U.S. Title to issue him a policy with the same

protections as KeyBank. He maintains that the closing instructions therefore

applied to him, including the provision that U.S. Title must obtain a title insurance

policy that does “not contain any exception or exclusion from coverage based on the

existence or possibility of mechanic’s liens.”

Johnson presented evidence that his attorney instructed U.S. Title’s

closing agent that Johnson “should get every bit of coverage that’s being provided to

the bank in favor of him.” But the record also reflects that neither the closing

instructions nor any party instructed U.S. Title to obtain Berns’s signature on the

consent clause. Therefore, Johnson presented evidence, when viewed in a light most

favorable to him, that U.S. Title breached its duty to procure a policy with no

mechanic’s lien exceptions, but not that U.S. Title breached its duty when it did not

obtain Berns’s signature on the consent clause.

To survive directed verdict regarding U.S. Title’s alleged breach for

failing to procure the proper insurance, however, Johnson still had to present evidence that the alleged breach in failing to procure an insurance policy with no

mechanic’s lien exclusion was the proximate cause of any harm that he incurred.

After review, we find that Johnson’s evidence of causation, even when viewed in a

light most favorable to him, was problematic because even if his owner’s policy did

not have the mechanic’s lien exclusion, the policy would still not have covered

damages arising from Berns’s lien.

In addition to the mechanic’s lien exclusion, Johnson’s owner’s policy

contained an exclusion that stated:

The following matters are expressly excluded from the coverage of this policy, and the Company will pay not loss or damage, costs or attorneys [sic] fees, or expenses that arise by reason of * * * [d]efects, liens, encumbrances, adverse claims, or other matters * * * attaching or created subsequent to Date of Policy[.]

Johnson claims that his alleged damages arise from Berns’s

mechanic’s lien. Johnson’s owner’s policy was dated June 2, 2010. In Jury

Interrogatory No. 2, the jury specifically found that no lien or encumbrance existed

on the property as of June 2, 2010. Berns recorded his lien on Johnson’s property

on October 29, 2010, which was long after the date of his owner’s policy. Thus, even

if U.S. Title had removed the standard mechanic’s lien exclusion, Johnson would not

have been covered under the owner’s policy for any losses resulting from Berns’s

lien. Therefore, U.S. Title’s alleged breach of duty to procure an insurance policy for

Johnson with no mechanic’s lien exception did not cause Johnson any damages that

arose from Berns’s lien. Further, the closing protection coverage provided protection to

Johnson if U.S. Title failed to follow the applicable written closing instructions.

Even Johnson’s expert, Greggo, agreed that a claim under the closing protection

coverage must be based on the failure to follow written closing instructions. The

evidence at trial established that the written closing instructions did not require U.S.

Title to issue an owner’s policy at all or require U.S. Title to obtain Berns’s signature

on the consent clause. Further, the jury found that U.S. Title followed the written

closing instructions. Thus, any alleged breach on the part of U.S. Title in procuring

improper closing protection coverage could not have caused damages to Johnson

for losses resulting from Berns’s lien. Therefore, the trial court did not err when it

granted U.S. Title directed verdict on Johnson’s negligence claim.

Johnson further contends that the trial court’s order granting U.S.

Title directed verdict on his negligence claim was highly prejudicial and reflected the

trial court’s bias against him because the trial court did not grant the motion until

after it instructed the jury on negligence. Johnson maintains that the timing implied

to the jury that Johnson could not prove his negligence claim, which then

undermined Johnson’s claims for breach of fiduciary duty and breach of contract.

Because Johnson’s counsel had just told the jury in closing argument that there was

sufficient evidence to prove a negligence claim, Johnson also contends that the trial

court’s subsequent grant of the directed verdict undercut the credibility of Johnson’s

counsel. We disagree. While the timing of the trial court’s order granting the

directed verdict was unusual, closing arguments are not evidence. Torres v. Concrete Designs, Inc., 2019-Ohio-1342, 134 N.E.3d 903, ¶ 18 (8th Dist.). The trial

court here instructed the jury that “[t]he evidence does not include the pleadings or

any statement of counsel made during the trial[.] * * * [T]he opening statements and

closing arguments of counsel are designed to assist you and are not evidence.” We

must presume that the jury followed the trial court’s proper instructions. Id.

Moreover, the jury heard extensive closing arguments, and negligence was a

relatively small part. Likewise, there were numerous jury instructions, and

negligence was also a small part of them. Therefore, after review, we find that

Johnson was not prejudiced by the timing of the trial court’s ruling on U.S. Title’s

motion for directed verdict, nor do we find that it reflects any bias against him.

Accordingly, we overrule Johnson’s second assignment of error.

C. Bifurcation of Bad-Faith Claim

In his third assignment of error, Johnson argues that the trial court

erred by bifurcating the entirety of his bad-faith claim instead of just the punitive-

damages evidence.

In his amended complaint, Johnson alleged that appellees breached

their duty of good faith and fair dealing by failing to acknowledge receipt of and

paying Johnson’s title insurance claim. However, Johnson did not oppose U.S.

Title’s motion, filed over seven months before trial, to “bifurcate [Johnson’s] bad

faith and punitive damages claims at trial” pursuant to both R.C. 2315.21(B) and

Civ.R. 42, and he did not timely object to the trial court’s decision to grant the motion.4 We therefore review this assignment of error for plain error. Goldfuss v.

Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997). Plain errors are those

that prejudice the appellant and that “are clearly apparent on the face of the record.”

Wells Fargo Bank, N.A. v. Lundeen, 8th Dist. Cuyahoga No. 107184, 2020-Ohio-28,

¶ 12. Courts reviewing plain error in civil cases “must proceed with the utmost

caution.” Risner v. Ohio Dept. of Natural Resources, 144 Ohio St.3d 278, 2015-

Ohio-3731, 42 N.E.3d 718, ¶ 27.

We find no error here, plain or otherwise. R.C. 2315.21(B) requires

trial courts to bifurcate compensatory and punitive damages in tort actions “upon

the motion of either party,” and Civ.R. 42(B) gives trial courts discretion to order a

separate trial on any claim or issue when bifurcation would “promote convenience,

avoid prejudice, or when it would be economically prudent or efficient to do so.”

Flynn v. Fairview Village Retirement Community, Ltd., 8th Dist. Cuyahoga No.

95695, 2013-Ohio-569, ¶ 4, fn. 1; Havel v. Villa St. Joseph, 131 Ohio St.3d 235, 2012-

Ohio-552, 963 N.E.2d 1270, ¶ 26. When they conflict, R.C. 2315.21(B) trumps Civ.R.

42(B). Havel at ¶ 36.

Here, the statute and the civil rule do not conflict, and the trial court

had discretion to bifurcate the entirety of Johnson’s claim for bad faith. The trial

court granted U.S. Title’s motion to bifurcate, which specifically sought to “bifurcate

Plaintiff’s claim for bad faith under Count VI of the Amended Complaint and for

4 Although during trial Johnson’s counsel stated “for the record, in the plaintiff’s view, [] the independent tort of bad faith should be in our case in chief,” this statement came over seven months after the trial court granted the unopposed motion to bifurcate. punitive damages.” The bifurcation of bad-faith evidence promoted convenience

and efficiency and avoided prejudice because the jury could not find bad faith

without first finding liability on Johnson’s other tort and contract claims. The trial

court complied with R.C. 2315.21(B) by bifurcating the issue of punitive damages to

a second phase of trial, and the trial court exercised its discretion pursuant to

Civ.R. 42(B) to also bifurcate the liability portion of Johnson’s bad-faith claim.

Accordingly, we overrule Johnson’s third assignment of error.

D. The Trial Court’s Management of the Proceedings

In Johnson’s fourth, fifth, and sixth assignments of error, he

challenges the trial court’s management of the trial proceedings. In his fourth

assignment of error, Johnson argues that the trial court erred in denying his motion

for a new trial because the trial court imposed inappropriate time restrictions,

improperly excluded evidence, and submitted jury interrogatories that did not

address a determinative issue and likely confused the jury. In his fifth assignment

of error, Johnson argues that the trial court erred by excluding portions of Ed

Horejs’s video testimony. In his sixth and final assignment of error, he argues that

the trial court was biased against him and in favor of appellees.

Trial courts have broad discretion to “control the flow of trial.” Ridley

v. Fed. Express, 8th Dist. Cuyahoga No. 82904, 2004-Ohio-2543, ¶ 45. We review

the imposition of time limits, the exclusion of evidence, the submission of jury

interrogatories, and the control of witness examinations for abuse of discretion. See

State v. Kay, 12 Ohio App.2d 38, 49-50, 230 N.E.2d 652 (8th Dist.1967) (time limits for counsel’s arguments are within the “sound discretion” of the trial court); Fisher

v. Fisher, 8th Dist. Cuyahoga No. 95821, 2011-Ohio-5251, ¶ 5 (“The trial court’s

discretion to admit or exclude evidence is broad”); Marketing Assocs., 8th Dist.

Cuyahoga No. 92292, 2010-Ohio-59, at ¶ 49 (Civ.R. 49 gives trial courts discretion

to review and approve jury interrogatories); Weiner v. Kwiat, 2d Dist. Montgomery

No. 19289, 2003-Ohio-3409, ¶ 16 (trial courts have discretion to control redirect-

examination); State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001),

quoting State v. Acre, 6 Ohio St.3d 140, 451 N.E.2d 802 (1983) (“‘The limitation of

* * * cross-examination lies within the sound discretion of the trial court, viewed in

relation to the particular facts of the case. Such exercise of discretion will not be

disturbed absent a clear showing of an abuse of discretion.’”).

As previously discussed, an abuse of discretion occurs when the trial

court’s attitude is unreasonable, arbitrary, or unconscionable. Marketing Assocs. at

¶ 47. “Appellate courts should defer to trial judges, who witnessed the trial firsthand

and relied upon more than a cold record to justify a decision.” Harris v. Mt. Sinai

Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio-5587, 876 N.E.2d 1201, ¶ 36.

1. Motion for a New Trial

In his fourth assignment of error, Johnson contends that the

cumulation of errors deprived him of a fair trial. Under the cumulative-error

doctrine, a judgment can be reversed when the cumulation of errors prevents a fair

trial even if each individual error alone does not justify reversal. Daniels v.

Northcoast Anesthesia Providers, Inc., 8th Dist. Cuyahoga No. 105125, 2018-Ohio- 3562, ¶ 66. Under Civ.R. 59(A), a court may grant a new trial based on “[i]rregularity

in the proceedings of the court, jury, magistrate, or prevailing party, or any order of

the court or magistrate, or abuse of discretion, by which an aggrieved party was

prevented from having a fair trial”; “misconduct of the jury or prevailing party”; a

judgment “not sustained by the weight of the evidence”; a judgment “contrary to

law”; “[e]rror of law occurring at the trial and brought to the attention of the trial

court by the party making the application”; and the trial court’s “sound discretion

* * * for good cause shown.” Id. “Civ.R. 59(A) is meant to preserve ‘the integrity of

the judicial system when the presence of serious irregularities in a proceeding could

have a material adverse effect on the character of and public confidence in judicial

proceedings.’” Taylor-Stephens, 8th Dist. Cuyahoga No. 106324, 2018-Ohio-4714,

at ¶ 24, quoting Wright v. Suzuki Motor Corp., 4th Dist. Meigs Nos. 03CA2, 03CA3,

and 03CA4, 2005-Ohio-3494, ¶ 114. Motions for a new trial “are not to be granted

lightly.” State v. Jerido, 8th Dist. Cuyahoga No. 72327, 1998 Ohio App. LEXIS 730,

5 (Feb. 26, 1998).

Johnson contends that the trial court prejudiced him by limiting his

opening statement to twenty minutes, prohibiting his PowerPoint presentation,

“and giving him ten minutes to adjust” after precluding his PowerPoint before giving

a revised opening statement. Johnson further argues that the trial court arbitrarily

limited his counsel’s time to (1) examine him on redirect, (2) cross-examine Chicago

Title’s expert, Waiwood, and (3) examine his rebuttal expert, Greggo. Johnson argues that the time restriction on his opening statement

was arbitrary and prevented him from presenting key information “in a way that the

jury could easily process and remember[.]” Johnson cites to Yerrick v. E. Ohio Gas

Co., 119 Ohio App. 220, 223, 198 N.E.2d 472 (9th Dist.1964), for the principle that

“[c]ounsel is allowed a wide latitude in the presentation of his oral argument, even

though he is at all such times under the supervision and control of the trial judge.”

This case is in the context of closing arguments as opposed to opening statements,

but we do not disagree with this statement of law and emphasize the “supervision

and control of the trial judge.” “The purpose of an opening statement is to inform

the jury of the nature of the case and to outline the facts involved.” Thompson

Aluminum Casting Co. v. Am. Mfrs. Mut. Ins. Co., 8th Dist. Cuyahoga No. 64977,

1994 Ohio App. LEXIS 1395, 16 (Mar. 31, 1994). The trial court, however, “has broad

discretion to regulate the opening statement.” Riddle v. Butt, 2d Dist. Clark No.

2993, 1994 Ohio App. LEXIS 481, 7 (Feb. 2, 1994) (trial court did not abuse its

discretion in restricting time for and precluding use of photographs in opening

statement).

After review, we find that the trial court did not abuse its discretion

in limiting opening statements and precluding Johnson’s PowerPoint presentation.

The trial court imposed similar time limits on all parties, not just Johnson. Chicago

Title argues that Johnson’s PowerPoint referred to evidence that the trial court

excluded and that Johnson did not fully comply with the trial court’s instructions to

remove certain items from the presentation. Johnson disputes this allegation. Exclusion for this reason would have been warranted. See Ford v. Gooden, 9th Dist.

Summit No. 23779, 2007-Ohio-7043 (trial court did not err in precluding

PowerPoint from opening statement where presentation included photographs that

had been excluded from evidence). Regardless, the trial court’s reasoning for

preventing Johnson from using the PowerPoint is not in the record on appeal, and

we see no indication that the trial court abused its broad discretion in regulating

opening statements.

In support of his argument that the trial court improperly limited his

examinations of witnesses, Johnson points to three cases. First, in Farmers Natl.

Bank of Springfield v. Frazier, 13 Ohio App. 245 (2d Dist.1920), the Second District

held that the trial court abused its discretion by limiting the cross-examination of

the plaintiff himself (one of only two witnesses in his case in chief) to six minutes.

Second, in Readnower v. Readnower, 162 Ohio App. 3d 347, 349, 2005-Ohio-3661,

833 N.E.2d 752 (2d Dist.), the Second District held that the trial court abused its

discretion by condensing a 2.5-hour hearing into 40 minutes because the court was

“annoyed with the attorneys” for spending the hearing time negotiating. Id. Third,

in In re T.H., 192 Ohio App.3d 201, 2011-Ohio-248, 948 N.E.2d 524 (2d Dist.), the

Second District held that the trial court erred by limiting a party’s time to present

his case in chief and prohibiting three witnesses from testifying because the trial

court “clearly wanted to conclude the custody trial” that had been rescheduled many

times due to the court’s conflicts. These cases are distinguishable from the present case, and we find

that the trial court did not abuse its discretion in limiting Johnson’s examinations.

The trial court gave Johnson’s counsel plenty of warning that he was running out of

time to conduct his redirect-examination of Johnson. The trial court asked

Johnson’s counsel to “move along” and “move on” numerous times and reminded

him of the time. The trial court also gave the parties notice of the time restraints for

Waiwood and Greggo: cross-examination of each was limited to 20 minutes, and

Johnson’s direct examination of Greggo was limited to 40 minutes. Unlike Frazier

where the trial court limited the testimony of the primary witness, Waiwood and

Greggo’s testimony was relatively limited in scope, and Johnson himself spent a lot

of time on the stand. Moreover, a review of the record does not demonstrate that

the trial court limited witness examination because it was annoyed with the parties.

Rather, the record shows that the trial court was concerned about the jury’s

attention span after sitting through many days of trial and extensive witness

testimony. Finally, there is no evidence to suggest that the trial court was attempting

to conclude the trial due to the court’s own schedule.

We also do not find that the time limits unduly prejudiced Johnson.

Johnson argues that, given more time on his redirect-examination of Johnson, he

could have introduced an email that referred to a letter that Johnson’s counsel sent

to Chicago Title in April 2012. He contends that this email would have shown that

he timely notified Chicago Title of his claims. However, since the April 2012 letter

was sent to Chicago Title a month after Johnson filed his amended complaint and joined Chicago Title as a defendant in the case, it would not have been persuasive to

show notice.

Johnson also argues that given more time to cross-examine Waiwood

and examine Greggo, he would have rebutted Waiwood’s testimony that (1) Berns’s

lien was filed after Johnson’s owner’s policy and closing protection coverage were

issued, (2) the mechanic’s lien exception barred coverage under the owner’s policy,

and (3) the closing protection coverage covered only a loss of settlement funds.

However, to rebut Waiwood’s testimony that Berns’s lien was filed after Johnson’s

owner’s policy and closing protection coverage were issued, Johnson had obtained

testimony from Greggo that Berns’s lien should “relate back” to the start of Fyffe’s

construction because Berns’s work was really a continuation of Fyffe’s. Johnson

likewise solicited testimony from Greggo that his owner’s policy should not have

included the mechanic’s lien exception and that a failure to comply with closing

instructions would have impacted coverage under the closing protection coverage.

Therefore, if Johnson had more time to cross-examine Waiwood and examine

Greggo, it would have been duplicative testimony.

Next, Johnson argues that the trial court abused its discretion in

excluding evidence of (1) damages from his arbitration with Berns, (2) Johnson’s

prehearing brief from the arbitration, and (3) communications that U.S. Title had

with its professional liability insurer. Johnson contends that his arbitration

prehearing brief references the lien Berns filed on Johnson’s property, and that the

brief would therefore have shown that the arbitration was directly related to the lien. He argues that appellees should be liable for his arbitration expenses because had

they complied with the closing instructions and their duty to defend, he would not

have incurred the arbitration expenses. Johnson further argues that the evidence

referencing U.S. Title’s professional liability insurer would have demonstrated that

Johnson had given Chicago Title notice of his claims.

We find that any error the trial court may have made in excluding

evidence of the expenses Johnson incurred through arbitration with Berns and the

arbitration prehearing brief would not justify a new trial. The jury found for

appellees on all counts and did not find that Johnson was entitled to any damages.

Moreover, we find that the trial court did not abuse its discretion in

excluding evidence of communications between U.S. Title and its professional

liability insurer because such evidence is irrelevant. “Evidence which is not relevant

is not admissible.” Evid.R. 402. Evidence is relevant if it has “any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Evid.R. 401.

We fail to see how communications between U.S. Title and its professional liability

insurer would show that Johnson notified Chicago Title of his claims.

Lastly, Johnson asserts that the trial court erred by submitting the

following “highly prejudicial and inaccurate interrogatories” to the jury:

Interrogatory Nos. 10: “Do you find by the greater weight of the evidence that Johnson gave written notice or statement of a claim under the Owner’s policy of Title Insurance to Chicago Title Insurance Company, Attn. Claims Department, P.O. Box 45023, Jacksonville, Florida 32232-5023? * * * at least six of the eight jurors must agree on the answer.”

Interrogatory Nos. 19: “Do you find by the greater weight of the evidence that Johnson gave written notice or statement of a claim under the Closing Protection Letter to Chicago Title Insurance Company, Attn. Claims Department, P.O. Box 45023, Jacksonville, Florida 32232-5023? * * * at least six of the eight jurors must agree on the answer.”

Johnson argues that these interrogatories suggested that an element of Johnson’s

claims for breach of contract included that he needed to send notice of his claims

to the particular P.O. Box, which likely confused the jury.

“Proper jury interrogatories must address determinative issues and

must be based upon trial evidence.” Ramage v. Cent. Ohio Emergency Serv., Inc.,

64 Ohio St.3d 97, 107, 592 N.E.2d 828 (1992). Civ.R. 49(B) provides,

The court shall submit written interrogatories to the jury, * * * upon request of any party prior to the commencement of argument. * * * The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the interrogatories shall be submitted to the jury in the form that the court approves. The interrogatories may be directed to one or more determinative issues[,] whether issues of fact or mixed issues of fact and law.

Interrogatories 10 and 19 addressed whether Chicago Title received

notice of Johnson’s claims, which was determinative of Chicago Title’s defense to

Johnson’s claim for breach of contract against it. Interrogatories 10 and 19 were

also based on trial evidence:

[Counsel for Chicago Title]: Did you ever send notice to Chicago Title at a post office box in Jacksonville, Florida?

[Johnson]: No. We therefore find that the trial court did not abuse its discretion in

submitting Interrogatories 10 and 19 to the jury.

We do not find any individual error to warrant a new trial, nor do we

find the cumulation of errors to justify reversing the jury verdict. The trial court

exercised its broad discretion to keep the trial moving and to avoid losing the jury’s

attention. While we understand Johnson’s frustration with the trial court’s

management of the proceedings, we do not find that he was prevented from having

a fair trial. Accordingly, we do not find grounds for a new trial pursuant to Civ.R.

59(A) and therefore overrule Johnson’s fourth assignment of error.

2. Horejs’s Video Testimony

In his fifth assignment of error, Johnson argues that the trial court

erred by excluding portions of Ed Horejs’s video testimony. Ed Horejs is the vice

president and regional counsel for Fidelity National Title Group, which consists of

three title insurance companies, including Chicago Title. Horejs was unavailable for

trial, and the trial court permitted Johnson to play portions of his video testimony.

Johnson cross-examined Horejs for his case in chief. After U.S. Title examined

Horejs, Johnson conducted recross-examination. Johnson contends that he was

prejudiced when the trial court improperly and arbitrarily struck “substantial

portions” of Horejs’s video testimony.

First, Johnson avers that the trial court improperly excluded his

recross-examination of Horejs and that his recross-examination would have

rebutted Horejs’s testimony that “[1] the [c]losing [i]nstructions were only KeyBank’s instructions, [2] there was no coverage for post-policy liens, and [3] a

pending disbursement clause should have been used, among other things.” The

scope of Johnson’s recross-examination exceeded that of U.S. Title’s examination of

Horejs, and we do not find that the trial court abused its discretion in excluding it.

Nor did the exclusion of the recross-examination unduly prejudice Johnson. After

reviewing the transcript of Johnson’s recross-examination, we do not identify

testimony that would rebut that the closing instructions were KeyBank’s

instructions. Johnson’s “rebuttal” of Horejs’s testimony that there was no coverage

for post-policy liens is merely confirmation that title insurance covered liens that

existed before closing but do not manifest until after closing, to which Greggo also

testified. Further, we find that Johnson’s dialog with Horejs regarding pending

disbursement clauses likely would have confused the jury. The dialog consisted of

Johnson’s attorney characterizing pending disbursement clauses and when they

should be used, and Horejs disagreeing with the characterizations. It would not

have rebutted Horejs’s testimony.

Second, Johnson argues that the trial court allowed some of Horejs’s

answers while striking his subsequent impeachment. We do not find that the trial

court erred in excluding what Johnson characterizes as impeachment. Horejs

testified that the contractor subordination clause would protect only KeyBank’s first

priority to the extent that the clause could have been enforced. Johnson then

attempted to impeach Horejs with his prior testimony that the contractor’s

subordination would have protected KeyBank’s mortgage. These two statements are consistent with each other, and Johnson could not use the latter statement for

impeachment.

Third, the trial court excluded testimony about the agency agreement

between appellees, and Johnson argues that Horejs testified that the agreement

required U.S. Title to process claims and give notice to Chicago Title. We find that

any error the trial court made in excluding this testimony is harmless because the

agreement itself was admitted, and Gerome testified about it.

Fourth, the trial court excluded testimony that (1) Horejs attended a

mediation between Berns and Johnson, (2) knew that KeyBank and Johnson

requested that Chicago Title insure through the lien, and (3) was included in

correspondence that Johnson argues would have established that Chicago Title had

notice of Johnson’s claims. We do not find that the trial court abused its discretion

in excluding this testimony because it does nothing to show that Johnson gave notice

to Chicago Title in the manner that the closing protection letter required. Moreover,

Horejs is included on only one of the letters, which was sent to him after Johnson

filed this lawsuit.

Fifth, the trial court excluded testimony that Horejs agreed with an

article that an underwriter should meet with the borrower before closing to “break

down confusing issues.” Johnson contends that such testimony would have

supported his argument that U.S. Title failed to carry out its duties. The article

described best practices, not duties or actions that U.S. Title was required to follow. We therefore find that the trial court did not abuse its discretion in excluding this

testimony.

Lastly, Johnson claims that the video was “choppy” and prevented the

jury from observing Horejs’s evasive responses. Because the video would have been

disjointed regardless of what the trial court excluded, we do not find that the trial

court abused its discretion.

Accordingly, we overrule Johnson’s fifth assignment of error.

3. Bias

In his sixth and final assignment of error, Johnson argues that the

trial court demonstrated bias against him and in favor of appellees. Johnson

contends that the trial court “repeatedly undermined Johnson’s position in front of

the jury” by telling his counsel to “wrap it up” or “move on”; by interrupting and

attempting to rephrase his counsel’s questions; by interrupting the testimony of his

witnesses and disagreeing with them; and by contradicting and chastising him, his

counsel, and his witnesses “in a pervasive and prejudicial manner[.]”

Johnson did not object to the judge’s actions on which he now relies

to demonstrate bias. We therefore must apply the plain error doctrine. Goldfuss,

79 Ohio St.3d at 121, 679 N.E.2d 1099.

The Ohio Supreme Court has defined judicial bias as,

a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts. State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 48, quoting

State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956).

We have previously determined:

If the trial judge forms an opinion based on facts introduced or events occurring during the course of the current or prior proceedings, this does not rise to the level of judicial bias, “unless [the opinions] display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Dean, ¶ 49, quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Accordingly, “judicial remarks [made] during the course of trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id., quoting Liteky at 555. In contrast, such remarks, “may [support a bias challenge] if they reveal an opinion that derives from an extrajudicial source; and they will [support a bias challenge] if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” (Emphasis sic.) Id., quoting Liteky at 555.

State v. Hough, 2013-Ohio-1543, 990 N.E.2d 653, ¶ 11 (8th Dist.) (holding that

judge’s online post about race and the death penalty the same day as the defendant’s

sentencing was not judicial bias); see also State v. McCauley, 8th Dist. Cuyahoga

No. 103681, 2016-Ohio-5411, ¶ 8 (citing Hough and finding trial judge’s comment

that the criminal defendant “dodged a bullet” did not rise to the level of judicial bias).

There is a presumption that “a judge is unbiased and unprejudiced in

matters over which he or she presides, and the appearance of bias or prejudice must

be compelling in order to overcome this presumption.” State v. Reese, 8th Dist.

Cuyahoga No. 107714, 2019-Ohio-4670, ¶ 24. The Chief Justice of the Ohio

Supreme Court, or his or her designee, has the “exclusive jurisdiction to determine

a claim that a common pleas judge is biased or prejudiced.” Jones v. Billingham, 105 Ohio App.3d 8, 11, 663 N.E.2d 657 (2d Dist.1995), citing Section 5(C), Article

IV, Ohio Constitution. While appellate courts have no such authority, we can review

biased comments for due-process violations. Reese at ¶ 24.

The record does not reflect that the trial court acted with bias against

Johnson. The trial court instructed all counsel to “move on,” rephrased questions,

and interrupted testimony of all counsel and witnesses, not just Johnson’s. The trial

court’s interruption of both sides does not demonstrate bias against Johnson. See

State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 82 (finding

no bias in part because the trial judge interrupted both sides a similar number of

times and asked many witnesses questions).

Moreover, the Ohio Rules of Evidence permit trial judges to question

witnesses. Evid.R. 614(B) (“The court may interrogate witnesses, in an impartial

manner, whether called by itself or by a party.”). The testimony on which Johnson

relies to show bias demonstrates that the trial court was attempting to keep the trial

moving, ensure that attorneys laid a proper foundation for witnesses’ testimony, and

clarify confusing factual issues. Even though the trial court’s management of the

proceedings curtailed parts of Johnson’s arguments and examinations, we do not

find that the trial court “display[ed] a deep-seated favoritism or antagonism that

would make fair judgment impossible.” Hough, 2013-Ohio-1543, 990 N.E.2d 653,

at ¶ 11.

Accordingly, we overrule Johnson’s sixth assignment of error.

Judgments affirmed. It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

___________________________ MARY J. BOYLE, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and RAYMOND C. HEADEN, J., CONCUR