Youngstown Daily Legal News

Judicial misconduct claims rejected in buyout case

ANNIE YAMSON
Special to the Legal News
Published: January 24, 2014

A three-judge appellate panel in the 6th District Court of Appeals recently affirmed the judgment of the Lucas County Court of Common Pleas when it ruled that a man was not entitled to a mistrial as a result of judicial misconduct.

Jack Thayer argued that the Lucas County court erred when it denied his motion for a new trial which was based on allegations of prejudicial maltreatment by two judges involved with his case.

According to case summary, Thayer’s lawsuit stemmed from the decline of AVCA Corporation, a Maumee-based engineering firm.

Thayer and Dean Diver were shareholders and officers of the now defunct AVCA.

In 1995, when the company was still viable, AVCA secured a $5.5 million line of credit with a predecessor-in-interest of KeyBank.

In 1999, Thayer stepped down from his position at AVCA in exchange for a multi-million dollar separation package which resulted in monthly payments to Thayer of approximately $62,000.

In 2001, the company’s revenue saw a precipitous decline and it lost major clients, putting it on the brink of failure.

As a result, AVCA and KeyBank executed forbearance agreements.

Accordingly, AVCA suspended all non-business payments, including the now-unsustainable monthly payments to Thayer.

Despite efforts to avoid further decline, AVCA failed and KeyBank was eventually awarded an almost $4 million dollar judgment against the firm.

A local receiver was then appointed to oversee and manage the liquidation of the failed company.

However, on Aug. 30, 2004, AVCA was sold for $600,000 to the Toledo-based architectural and engineering firm of S.S.O.E.

Thayer did not object to the sale at the time but, the underlying contention in his case was that Diver and KeyBank somehow “surreptitiously and unlawfully conspired in connection to the demise and sale of AVCA” to his detriment.

“In conjunction with this, the record similarly reflects that Thayer harbors malcontent regarding the fact that Diver secured unemployment with S.S.O.E. subsequent to its acquisition of the defunct AVCA,” wrote Judge Thomas Osowik for the court of appeals.

Thayer subsequently filed suit, alleging breach of good faith and fair dealing, lender liability based upon instrumentality and conspiracy against Diver and KeyBank.

KeyBank counterclaimed and obtained a favorable summary judgment.

Thayer’s claims against Diver proceeded to a 12-day jury trial in 2012.

Judge Gary Cook had served as the trial judge in the matter for a seven-year period from the time of the initial filing in 2005 to the trial in 2012.

At the time of the trial, however, Cook became unavailable and the case was reassigned to retired Judge Ronald Bowman.

At the close of the trial, Bowman denied oral motions for directed verdict on the part of both parties.

Thayer filed for a mistrial, claiming that he had been “prejudicially maltreated by the judge during the course of the trial.”

He also alleged that he was mistreated by Cook.

That motion was denied and, on appeal, Thayer argued that his motion should have been granted and that the trial court abused its discretion when it denied his request.

“Appellant’s litany of allegations against both trial judges are consistently shown to be quite extensive in volume yet consistently lacking in merit,” wrote Judge Osowik.

According to the record, following the close of his case, Thayer’s counsel conveyed to all involved that he intended to file an affidavit of prejudice against Bowman with the state’s Supreme Court.

Faced with an affidavit pending before the Supreme Court of Ohio that could potentially take several weeks to resolve, Bowman voluntarily recused himself so that the trial could continue without delay.

Cook, who was available and familiar with the case, resumed his role as trial judge.

“Interestingly, this development failed to appease appellant’s opposition to his case, which was concluded and awaiting jury deliberations and verdict, from proceeding any further,” wrote Judge Osowik.

Rather than choosing to move forward after the substitution of judges, Thayer again moved for a new trial alleging that Judge Cook also could not properly conclude the trial.

Cook deferred, giving the jury time to return its guilty verdict.

The court of appeals found there was no evidence reflecting prejudicial conduct on the part of either trial judge.

“We also note that appellant opted not to challenge the legitimacy of the adverse, unanimous jury verdict on the merits of the substantive jury determination, but rather focuses this appeal upon appellant’s own subjective characterizations of the conduct of the trial judges,” wrote Judge Osowik.

The court of appeals concluded that Bowman did not engage in judicial misconduct, either as a pattern nor as an isolated incident.

Instead, it found that he went to “considerable lengths” to ensure the fairness of the trial proceedings.

It also ruled that Cook was the best replacement for Bowman because he was intimately familiar with the case and its history.

“Wherefore, we find that substantial justice has been done in this matter,” Judge Osowik concluded. “Contrary to appellant’s broad claims against both trial judges, the record shows that the only potential imprudent conduct and statements reflected in the record in this matter were not attributable to either trial judge.”

The judgment of the Lucas County court was affirmed with judges Arlene Singer and James Jenson concurring.

The case is cited Thayer v. Diver, 2014-Ohio-58.

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