Mason v. Szerwinski et al

OCR transcription for search; preserved printed pages are authoritative

The court incorporates by reference in this paragraph and adopts as the findings and orders
of this court the document set forth below.

Russ Kendig
United States Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO

EASTERN DIVISION
In re: )
) CHAPTER
MICHAEL JOSEPH SZERWINSKI & )
DONNA MARIA SZERWINSKI ) CASE NO. 09-64294
)
Debtors. ) ADV. NO. 10-6009
)
) JUDGE RUSS KENDIG
JOSIAH L. MASON, )
)
Plaintiff, »)
)
Vv. )
)
MICHAEL JOSEPH SZERWINSKI, et )
al. ) MEMORANDUM OF OPINION
) (NOT FOR PUBLICATION)
Defendants. )

On May 16, 2011, defendant National City Bank (“National City”) filed a motion to
exclude testimony. This motion is now before the court.

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the
general order of reference entered in this district on July 16, 1984. This is a core proceeding

under 28 U.S.C. § 157(b)(2)(A) and (0).

This opinion is not intended for publication or citation. The availability of this opinion, in

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electronic or printed form, is not the result of a direct submission by the Court.

BACKGROUND

National City’s motion to exclude asks the court to exclude the testimony of two
witnesses, William Stepp and James K. Wagner. Only James K. Wagner’s testimony remains at
issue because the plaintiff no longer intends to call Mr. Stepp.

On May 20, 2011, the plaintiff filed his witness list. As required by the trial order, the
witness list sets forth a “brief summary of the area of testimony the witness will present... .”
The summary for James K. Wagner is as follows.

Attorney James K. Wagner, 3 North Main Street, Suite 808, Mansfield, Ohio
44902. He has been a practicing attorney in Mansfield, Richland County,
Ohio, since 1977, is an agent for Ohio Bar Title Company and First American
Title Company (companies have now merged), and has specialized in title
work throughout his practice. He will testify as to his opinion concerning the
relevant documents and whether they create a valid security interest in the
structure in question. (This is subject to a pending Objection by the Plaintiff.)

Also on May 20, 2011, the plaintiff submitted Mr. Wagner’s curriculum vitae. The curriculum
vitae confirms that Mr. Wagner is an attorney and a registered title agent.

LAW AND ANALYSIS

The admissibility of expert testimony is governed by Federal Rule of Evidence 702,
which states that

[i]f scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.

(emphasis added).

National City argues that the court does not need the assistance an attorney to understand
the law of secured transactions as applied to chattels, fixtures and personal property. The court
agrees. In this adversary, the court previously has issued an opinion on this very issue.
Furthermore, plaintiff's counsel does not need a witness to make legal arguments.

Accordingly, National City’s motion to exclude is granted.

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An order will issue with this opinion.
# # #
Service List:

Josiah L Mason

Mason, Mason & Kearns
153 W. Main Street

P O Box 345

Ashland, OH 44805-2219

Chrysanthe E Vassiles

Black McCuskey Souers and Arbaugh
220 Market Ave., South, Suite 1000
Canton, OH 44702

Amelia A Bower
Plunkett & Cooney
300 E Broad St

#590

Columbus, OH 43215

Erin M. Laurito
7550 Paragon Road
Dayton, OH 45459

Jonathan C Mizer
Kyler, Pringle, Lundholm & Durmann, LPA

PO Box 668
New Philadelphia, OH 44663

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