# Verbanic v. Verbanic

> Ohio Supreme Court · August 2, 1994 · 1994 Ohio 297

URL: https://www.frixlaw.com/law-library/cases/11148890

## Case

- **Court:** Ohio Supreme Court
- **Decided:** August 2, 1994
- **Citations:** 1994 Ohio 297
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Francis E. Sweeney, Sr., J.
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

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Verbanic, Appellee, v. Verbanic, Appellant.
[Cite as Verbanic v. Verbanic (1994), Ohio St.3d .]
Divorce and alimony -- Trial practice -- Conduct of counsel --
Trial judge's failure to control counsel in divorce
proceedings results in miscarriage of justice, when.
(No. 92-2563 -- Submitted March 22, 1994 -- Decided August
3, 1994.)
Appeal from the Court of Appeals for Trumbull County, No.
91-T-4521.
Appellant, Annette E. Verbanic, a homemaker, and appellee,
Charles R. Verbanic, a licensed dentist, were married on
November 6, 1982. No children were born of this marriage.
Appellee filed for divorce on June 20, 1989.
During the pendency of the divorce action, appellant
retained and discharged four attorneys before retaining
Lawrence V. Cregan in June 1990 for the divorce trial which
began in August 1990.
After judgment was entered and a division of property
made, appellant retained new counsel and filed a motion for a
new trial. This motion was grounded upon the conduct of her
trial counsel, Cregan, which appellant claimed deprived her of
a fair trial. The court disagreed, and denied her motion.
This judgment was affirmed by the court of appeals.
The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Donald W. Hill and Charles A. Ziegler, for appellee.
Stuart J. Banks and James A. Denney, for appellant.

Francis E. Sweeney, Sr., J. We are asked to review the
conduct of appellant's trial counsel, Cregan, and determine
whether the trial judge's failure to control him provides
grounds for reversal. After examining the record, we find that
the trial judge's failure to control Cregan in the divorce
proceedings resulted in a miscarriage of justice. Accordingly,
we reverse the judgment of the appellate court (83 Ohio App.3d
327, 614 N.E.2d 1103) and remand the cause to the trial court
for a new trial.
Appellant's trial spanned twelve days and produced twelve
volumes of transcript. The record is inundated with examples
of how a case should not be tried.
At the outset, the judge was put on notice that this would
not be a typical trial. Before witnesses were called, Cregan
was permitted to argue several frivolous motions. One such
motion was for the court to "put on the record if [the judge's]
unfortunate first stroke * * * incapacitated him plus some
medical proof that he has fully recovered and has the mental
and physical ability to hear this case." After the judge
informed Cregan that he felt fine and gave his doctor's name,
Cregan promised the judge that he would hear from the doctor.
Cregan never followed up on his promise.
More egregious, however, were Cregan's remarks to the
court that the judge was a sick man, that he did some checking
on the judge's medical records and the judge was not "going to
see Christmas," and that the judge was "going to die by fall."
In addition to calling the judge a sick man, Cregan also called
him an alcoholic, and, in fact, referred to him in this manner
several times during the trial.
Over the course of the trial, the judge allowed constant,
abusive, reprehensible behavior by Cregan toward the witnesses,
opposing counsel, the bailiff, and the court itself. For
instance, Cregan made several derogatory comments to appellee,
including statements alleging that he was a "queer" and
suggesting he had AIDS, and was held in contempt of court for
his improper questions. Additionally, Cregan was again held in
contempt for shoving another attorney during the trial.
The judge permitted repetitive, irrelevant comments and
questions from Cregan, many times over strenuous objection from
opposing counsel. In fact, opposing counsel pleaded several
times with the judge to maintain control of the situation,
calling the proceeding a fiasco and imploring the court to
impose sanctions. At another point, opposing counsel stated on
the record that Cregan's questioning of appellee was "abhorrent
* * * contrary to every standard of the judicial system" and he
"had never seen anything like it."
Approximately forty pages of the transcript contained
Cregan's closing argument. Few lines from these pages related
remotely to the issues in the case. The bulk of the argument
consisted of continuous, disjointed rambling on unrelated
subjects, such as the discussion of an unconnected case, the
Mafia, Clarence Darrow, Notre Dame, the IRS, the CIA, and
Charley Crab.
Despite all this, we find most disturbing Cregan's failure
to provide any meaningful evidence to refute appellee's
valuations of the marital assets, liabilities and his dental
practice.
Appellant's accountant, William Bletso, testified that
appellee undervalued his dental practice. However, Bletso did
not assign any value to the practice. Moreover, appellee's
expert testified that appellee had an estimated future tax
liability of $295,000. Bletso testified that this was an
inflated figure. Again, Bletso did not assign a value to this
liability. Additionally, Bletso neglected to stress to the
court that this tax liability would only be realized if all the
assets were liquidated.
Bletso was recalled to the stand as a rebuttal witness
regarding the fair market value of the marital home. However,
when he was finally questioned about this asset, Bletso did not
give an opinion as to its value and stated he had never viewed
the home.
When Cregan's request to testify as an appraiser was
rejected by the court, Cregan presented the testimony of John
McCloskey, who viewed the marital home three hours before he
testified. Obviously McCloskey could not make market
comparables on such short notice. Moreover, McCloskey's
testimony did nothing to controvert appellee's evidence
regarding the valuation of the personal effects in the home.
In fact, he was asked questions such as "Was it nice
furniture?"--to which he responded, "yes."
Moreover, it is evident that the judge was aware of
Cregan's failure to present any meaningful evidence for the
court's consideration. This is clearly shown in the judge's
written findings of fact which state that appellant failed to
meaningfully impeach the appellee's evidence or offer rebuttal
evidence as to various assets.
To recount each and every instance of misconduct and
incompetence would serve no useful purpose. From an objective
reading of the record, it is obvious that Cregan was unstable
and clearly was not representing his client properly. The
judge was duty bound to take control of the proceedings to
maintain proper standards of performance and representation.
See Canons 3(A)(1) and (B)(1) of the Code of Judicial Conduct.
Although the judge did admonish Cregan many times and order him
to continue with relevant evidence, this intervention was
wholly inadequate, as these admonishments had no effect on
Cregan's conduct.
Nor do we accept appellee's proposition that appellant
chose Cregan as her attorney and accordingly must be bound by
Cregan's actions. While this may be true in the vast majority
of cases, the unique facts in this case dictate a different
outcome.
In Jones v. Macedonia-Northfield Banking Co. (1937), 132
Ohio St. 341, 8 O.O. 108, 7 N.E.2d 544, this court granted a
new trial to the plaintiff because of defense counsel's
outrageous conduct. In doing so, this court stated:
"The judge who presides over a cause is not a mere umpire;
he may not sit by and allow the grossest injustice to be
perpetrated without interference. It is his duty in the
executive control of the trial to see that counsel do not
create an atmosphere which is surcharged with passion or
prejudice and in which the fair and impartial administration of
justice can not be accomplished." Id. at 351, 8 O.O. at
112-113, 7 N.E.2d at 549.
While the misconduct in Jones was occasioned by the
actions of the opposing party's counsel, we find such reasoning
equally applicable here. The judge owes a duty to both sides
to control the proceedings in a dignified and legal manner.
In 1992, we suspended Cregan from the practice of law for
one year for misconduct occurring during the time of trial of
this matter. Although it was alleged that Cregan suffered from
bipolar affective disorder (manic-depressive illness), the
disciplinary action was not handled as a mental illness
suspension. See Mahoning Cty. Bar Assn. v. Cregan (1992), 62
Ohio St.3d 444, 584 N.E.2d 656. After our ruling, the Board of
Commissioners on Grievances and Discipline of the Supreme Court
("board") ordered that Cregan submit to a psychiatric
evaluation.
Recently, in Mahoning Cty. Bar Assn. v. Cregan (1994),
Ohio St.3d , N.E.2d , Cregan was again before this
court for a disciplinary matter. We permanently disbarred him
for his conduct which, in part, formed the basis of this
trial. We found violations of DR 1-102(A)(6) (conduct which
adversely reflects on his fitness to practice law); 7-106(C)(6)
(conduct during the course of trial which was undignified,
discourteous and degrading to the tribunal); 6-101(A)(3)
(neglect of a legal matter entrusted); 6-101(A)(2) (handling a
legal matter without preparation adequate to the
circumstances); and 1-102(A)(5) (conduct prejudicial to the
administration of justice). Because Cregan failed to submit to
a psychiatric examination, the board was unable to conclude by
clear and convincing evidence that Cregan was "mentally ill"
within the definition of R.C. 5122.01(A). However, such a
finding is immaterial to our issue at hand. Again, we must
only determine whether appellant received a fair trial in view
of Cregan's conduct.
Upon review of the record, we do not find appellant
received a fair trial. We cannot believe that the judge was
not prejudiced by Cregan's antics. In fact, the judge accepted
appellee's valuations for the marital assets carte blanche, and
apparently failed to consider what little evidence was
presented by Cregan to rebut the valuations for the marital
liabilities.
As Justice Douglas remarked in his dissenting opinion in
Volodkevich v. Volodkevich (1988), 35 Ohio St.3d 152, 156, 518
N.E.2d 1208, 1212: "Our system of justice cannot survive
without retaining the faith of the public in the essential
fairness of the judicial process."
Due process requires fairness and a fair trial. This
chaotic, unruly proceeding conducted outside the Rules of
Evidence, the Code of Judicial Conduct and the Code of
Professional Responsibility fell far short of ensuring that
fairness and justice prevailed. A judge sitting as trier of
fact and law cannot sit idly by during the course of the trial,
knowing full well an attorney's actions were compromising the
interests of his client, and do nothing to prevent the same.
The conduct of Cregan certainly reached the level which
demanded the termination of the proceedings and a new trial.
Finding an error on the part of the trial judge, we reverse the
appellate court's decision and remand the cause to the trial
court for a new trial.
Judgment reversed
and cause remanded.
Moyer, C.J., A.W. Sweeney, Douglas, Resnick and Pfeifer,
JJ., concur.
Wright, J., dissents.

Wright, J., dissenting. I dissent not because I think
Lawrence Cregan's conduct during trial was acceptable -- it
clearly was not -- but because appellant had repeated
opportunities to dismiss Cregan during trial and declined to do
so, despite the efforts of the trial judge. At trial the judge
specifically asked appellant if she wanted new counsel, and,
for unexplained reasons, she elected to keep Cregan.
I agree with the analysis of the court of appeals on the
issue whether appellant is entitled to a new trial. On this
issue, the court said:
"[W]e are mindful of the distinction between the conduct
of appellant's trial counsel and the conduct of the trial
court. Unquestionably, the conduct of appellant's trial
counsel was, at times, outrageous. The trial judge, however,
conducted both himself and the trial in a proper manner. The
court endeavored to complete the trial in a fair and
expeditious manner, despite the antics of appellant's trial
counsel, and appellant has failed to demonstrate where, on the
record, the trial judge deviated from the standard of conduct
which is imposed upon this state's judiciary. See Code of
Judicial Conduct.
"Appellant, instead, cites two cases in support of her
request that the trial court's judgment be reversed.
"In Igo v. Coachman [sic Coachmen] Industries, Inc. (C.A.
6, 1991), 938 F.2d 650, the United States Court of Appeals
held, inter alia, that the conduct of plaintiff's trial counsel
was so egregious as to warrant reversal of a judgment entered
upon a jury's verdict. We refuse to apply Igo to the instant
case, which was tried to the court sitting without a jury. The
Igo court expressly relied upon the jury's presence when it
decided the case:
"'A trial court cannot sit quietly while counsel inflames
the passions of the jury with improper conduct, even if
opposing counsel does not object. The trial court should have
censured and stopped this conduct.' Id. at 654.
"If a jury were present in the instant case, the antics of
appellant's trial counsel might have warranted a new trial.
The absence of a jury, however, leads us to the conclusion that
the trial was not error-filled in the sense that the Igo trial
was.
"Appellant also cites State v. Brown (Mar. 26, 1990),
Mahoning App. No. 87 C.A. 145, unreported, 1990 WL 34744.
Appellant argues that, unlike Igo, Brown involved a bench trial
and the court of appeals reversed Brown's convictions for
assault and resisting arrest on the basis of the outrageous
conduct of Brown's trial counsel (who was appellant's trial
counsel herein). The important distinction between Brown and
the instant action is that a criminal defendant has a
constitutional right to the assistance of counsel.
Prosecutions in which defendants are denied the effective
assistance of counsel are unlawful. Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.
Hester (1976), 45 Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d
304. Such rule is not applicable to civil cases. If
appellant's trial counsel was guilty of malpractice which
harmed appellant, appellant's remedy is against her trial
counsel; her remedy is not a new trial against appellee."
(Emphasis added.) Verbanic v. Verbanic (1992), 83 Ohio App.3d
327, 329, 614 N.E.2d 1103, 1104-1105.
For the foregoing reasons, I would affirm the court of
appeals. Accordingly, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11148890. Public record. Not legal advice.