COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72913 SAM J. LOMBARDO, et al : : Plaintiff-appellees : : JOURNAL ENTRY vs. : and : OPINION CARL J. LOMBARDO : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 25, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 305,267 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellees JOHN E. BRZYTWA Sam J. Lombardo, et al: Attorney at Law 900 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-1411 For plaintiff-appellee HOWARD L. CALHOUN Estate of Jean Lombardo: Attorney at law 707 Society Building Akron, Ohio 44308 JOHN A. MARKSZ Attorney at Law 11200 Edgewater Drive Cleveland, Ohio 44102 (Continued) APPEARANCES: (Cont.) For plaintiff-appellee DANIEL F. PETTICORD Estate of Jean Lombardo: Attorney at Law 900 Skylight Office Tower 1660 West Second Street Cleveland, Ohio 44113-1411 For defendant-appellant: JOHN D. SAYRE Attorney at Law 1400 Republic Building 25 W. Prospect Avenue Cleveland, Ohio 44115 KENNETH A. ROCCO, J.: Appellant appeals the trial court's decision upholding the validity of a Voting Trust Agreement. The record indicates the trial court did not err as a matter of law when it determined the voting trust was valid. Furthermore, the trial court's decision -3- that there was no undue influence by appellee was not against the manifest weight of the evidence. Therefore, we affirm the decision of the trial court. The trial court heard testimony on the sole issue of the validity of a voting trust over the course of several days. The following relevant facts were adduced from the record. I. FACTS A. L & M Properties, Inc. L & M Properties, Inc. (hereinafter "L & M" or the company ) was formed in 1946 by Sam C. Lombardo, his brother Joseph Lombardo, and their brother-in-law, John Maisano. Each, along with his re- spective wife, owned fifty shares of L & M stock. Sam C. Lombardo died in 1959, leaving half of his shares to his wife Jean (hereinafter "Mrs. Lombardo") and equally dividing the other half between his two sons, appellant Carl J. (hereinafter "appellant") and appellee Sam L. (hereinafter "appellee"). Thus, Mrs. Lombardo owned 127.13 shares, and appellant and appellee each owned 67.5 shares. After his father's death, appellant was pri- marily responsible for management of the company. Beginning in the 1970's, L & M developed and constructed buildings in the area of Rockside Road in Independence, Ohio. The buildings were speculatives ; that is, the buildings were not built for any particular tenant. In the spring of 1988, the com- pany commenced construction of the Genesis Building. L & M encountered numerous difficulties with the Genesis project, -4- including material delays and labor problems, which increased its construction costs beyond what had been anticipated. In addition, L & M was unable to fully lease the office spaces in the building. Eventually, L & M required substantial additional money for the project and received loans totaling $4.5 million from Citicorp Real Estate, Inc. (hereinafter "Citicorp") in 1991. In return, in addition to collateral from earlier loans, Citicorp acquired a first mortgage on approximately seventy-two acres of property owned by L & M north of Rockside Road and a first mortgage on approxi- mately seventy acres south of Rockside Road. Citicorp also re- quired that appellant, appellee and Mrs. Lombardo each sign personal guarantees. B. The Creation of the Voting Trust In mid-1991, appellee sought counsel from Richard Katcher of the law firm of Baker & Hostetler. Mr. Katcher had previously represented Sam C. Lombardo, appellee's father, and was familiar with the family. Appellee had become concerned about appellant's management of the company and wished to protect his interests in L & M. Appellee asserted that appellant had begun to make some questionable business decisions and was concerned about the costs involved with the Genesis project. Additionally, in spite of L & M's financial difficulties in 1991, appellant donated over $42,000 of company funds to his congregation, the Holy Ghost Revival Assembly. -5- Appellee testified that his mother had also become increas- ingly concerned with the way appellant was handling the business; she was particularly concerned about the Citicorp personal guarantee that appellant had directed her to sign. Appellee testified that his mother, wanting to protect his interests in L & M, had expressed to him her desire to change her current Will, which essentially left everything to appellant. Appellee therefore suggested that his mother also see Mr. Katcher. Thereafter, on October 16, 1991, appellee and Mrs. Lombardo met with Mr. Katcher to discuss changes that Mrs. Lombardo desired to have made in her Will. Mr. Katcher testified that Mrs. Lombardo expressed to him that she was concerned about the personal guarantees involved with L & M and about appellant's control of the company. Mr. Katcher explained to Mrs. Lombardo that she might be able to achieve her goals with a durable power of attorney; however, he also thereafter discussed the matter with some of his corporate partners. Mr. Katcher had his colleague, Jane Haylor, prepare the revised Will. On November 4, 1991, Mrs. Lombardo signed the Will prepared by Ms. Haylor and also signed a document titled General Durable Power of Attorney and Nomination of Guardian, which gave appellee durable power of attorney over her property. Mr. Katcher was out of town at the time Mrs. Lombardo signed the Will; Ms. Haylor was present and notarized both documents. Ms. Haylor testified that she explained the documents and their contents to Mrs. Lombardo before requesting that she sign -6- them. Ms. Haylor also vidoetaped Mrs. Lombardo's signing of the Will. Mrs. Lombardo again contacted Mr. Katcher in early 1992 and informed him that she wanted to execute a document that would leave all of her L & M stock to appellee. Thereafter, attorneys who specialized in corporation law at Baker & Hostetler considered several possibilities for her. They eventually determined a voting trust would satisfy Mrs. Lombardo's request and drafted a Voting Trust Agreement (hereinafter the Voting Trust Agreement or the Agreement ). On May 12, 1992, Mrs. Lombardo signed the Agreement and also signed a codicil to her Will that provided that appellee would receive all of the stock owned by Mrs. Lombardo at the time of her death. At the time of the signing, Mr. Katcher reviewed the Agreement and the codicil with Mrs. Lombardo. The Voting Trust Agreement named appellee as the trustee and gave him, inter alia, the right to vote Mrs. Lombardo's 127.13 shares. The Agreement also provided that Mrs. Lombardo, as grantor, shall deposit with the Trustee, simultaneously with her execution of this Agreement, share certificate number 112, which represents Mrs. Lombardo's 127.13 shares. Mrs. Lombardo did not deliver her share certificate to appel- lee at the time she signed the Agreement; however, sometime before April 5, 1993, appellee obtained the share certificate. In April 1993, appellee, through his attorney, wrote a letter to Herbert Levine, an attorney with the law firm of Ulmer & Berne, who had -7- previously represented L & M and maintained their corporate records. Appellee requested that Mrs. Lombardo's shares be transferred on L & M's record books in accordance with L & M's Code of Regu- lations. Mr. Levine declined to comply with the request. On April 20, 1993, appellee prepared a new corporate record book and effected the transfer of the shares, without appellant's acquies- cence. C. Appellant's Relationship with His Mother Appellant testified that he had always been very close with his mother. In 1982, appellant experienced a religious conversion and founded the Holy Ghost Revival Assembly; his mother soon also converted from the Roman Catholic Church to this congregation. She thereafter joined appellant and his family for weekly services. However, in 1991, appellant's relationship with his mother began to decline. As an example, appellant testified that in 1991, Mrs. Lombardo expressed her desire to return to the Roman Catholic Church and to attend services with appellee. Appellant told his mother not to go, that she was not strong enough and that appellee would drag [her] back in to the Catholic Church. Thereafter, Mrs. Lombardo stopped attending services with appellant. Also in 1991, appellant testified that he arrived at his mother's home one day to find her watching television. He believed that television was the absolute devil and had previously felt that his mother was in agreement. He recounted that he therefore grabbed her television, took it outside and broke it. -8- Then, in April 1993, appellant wrote a letter to his mother, who was visiting in California with her sisters. He told his mother that by leaving Cleveland without his authority, she ha[d] once again exposed [their] family to severe financial harm, not to mention the even more significant, and tragic deterioration of all sense of family love, unity and cohesiveness. He also warned her of tragic results that would occur due to her returning to that Idolatrous Whore --- the Roman Catholic Church. Appellant also testified that he believed his brother was purposely keeping him and their mother apart and was causing many family and business problems. In December 1991, when appellant needed his mother to sign the personal guarantee for Citicorp, he believed appellee was hiding their mother in California. Appellee testified that their mother was visiting her sisters and that appellant knew where to find her. Appellant believed that his brother acted in a self-serving manner regarding their mother. He claimed appellee sold their family home in Grand Cayman for much less than it was worth and kept the proceeds for himself. However, although appellant claimed there were many incidences in which appellee behaved improperly, he was unable to specifically testify from first-hand knowledge regarding any such improprieties. D. Appellant's Control of L & M and the Family Appellant was primarily in control of L & M and, thus, of the Lombardo family. For example, all of the income of L & M went into -9- a common pot. Each family member's expenses were paid from this fund by L & M. In 1990, appellant dissolved his mother's trust that had been established to protect her assets. Two checks, one in the amount of $430,000 and one in the sum of $300,000, were then drawn on the trust. The checks were deposited into the family's common pot and were then transferred to L & M. There was also evidence in the record that in 1991, checks totaling over $257,000 were written to appellant personally from L & M; appellant was unable to state the purpose of these payments. E. Mrs. Lombardo's Competence In November 1993, Mrs. Lombardo was diagnosed with Alzheimer's Disease by James M. Voci, M.D. Dr. Voci testified that her con- dition in November 1993 was mild to moderate. He opined that at the time he examined her, her judgment was good. Since Alzheimer's Disease is a progressive disease, he also testified that it was extremely unlikely that she would have been worse off prior to [November 1993]. Dr. Voci also believed that, at that time, Mrs. Lombardo was competent to handle her financial affairs. Mrs. Lombardo's condition worsened over the following years. In April 1996, Mrs. Lombardo was adjudicated an incompetent by the Summit County Probate Court. F. The Current Action In January 1996, the directors of L & M met and, with appellee voting Mrs. Lombardo's shares, elected appellee as President and Treasurer, Kathleen Decker Lombardo as Vice-President and Secre- -10- tary, and appellant as Chairman of the Board. L & M's Regulations provided that the President, Vice-President and Secretary comprise the executive committee and that the executive committee had charge of the management of the business and affairs of the company in the interim between meetings of directors. In March 1996, appellee filed this action in the court below seeking a temporary restraining order, preliminary and permanent injunctions, an accounting, and declaratory relief against appel- lant on the grounds that appellant had no authority to act for L & M after the January 1996 meeting.1 A flurry of motions ensued, and restraining orders were granted on both sides of the contro- versy. On July 10, 1996, appellee filed an amended complaint asserting the existence of the Voting Trust Agreement and seeking a declaratory judgment regarding its validity. On August 19, 1996, the trial court issued an order acknowledging that the parties agreed not to consummate any sales of L & M property until the trial court considered appellant's motion for a preliminary injunc- tion and appellee's motion for a declaratory judgment regarding the voting trust. On July 15, 1996, a guardian was appointed for the Estate of Mrs. Lombardo. The guardian, at the time of his appointment, ter- minated the previous General Durable Power of Attorney and Nomination of Guardian. Appellant subsequently moved to join the guardian as a necessary party; that motion was granted. On Sep- 1 A foreclosure action had previously been filed by Citicorp Real Estate Inc. against L & M properties. The two actions were eventually consolidated. -11- tember 5, appellee filed a second amended complaint adding the Guardian as a defendant. Appellant answered appellee's second amended complaint and stated, as affirmative defenses, that if Mrs. Lombardo had signed the agreement, it was signed either at a time when she was legally incompetent or as a result of undue influence and duress exer- cised over her by [appellee]. Appellant's answer included a jury demand as required by Civ.R. 38. The trial court began to hear testimony on the sole issue of the validity of the voting trust on October 15, 1996. The hearings concluded on November 6, 1996. On December 19, 1996, the trial court issued findings of fact and conclusions of law, which upheld the validity of the voting trust. On May 5, 1997, the trial court entered a consent judgment entry ordering foreclosure of L & M's property. The remaining claims were heard in June 1997, and the trial court issued its final order on June 25, 1997. Appellant timely appealed the trial court's December 19, 1996 decision, which was made final by the court's June 25, 1997 order. II. ASSIGNMENTS OF ERROR Appellant's first and second assignments of error contend the trial court incorrectly found that the voting trust was valid and will be considered together. They allege: I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DECLARING THAT THE VOTING TRUST WAS VALID AND THAT SAM LOMBARDO COULD VOTE JEAN LOMBARDO'S 127.13 SHARES IN L & M PROPERTIES COMPANY. -12- II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN CONCLUDING THAT THE VOTING TRUST WAS VALID, WHEN IT HAD NO PURPOSE. The trial court issued findings of fact and conclusions of law that thoroughly addressed the relevant issues. The trial court found that on May 12, 1992, Mrs. Lombardo was the owner of 127.13 shares of common stock in L & M Properties, Inc. Furthermore, she was in the very early stages of Alzheimer's disease." The court acknowledged that there is no evidence that she suffered any impairment of her ability to decide in whom she desired to place trust or what powers she wished to give that person. The trial court also found that, prior to January 1991, Mrs. Lombardo had placed all trust in [appellant] with regard to L & M, and that appellant exercised dominance over the personal finances not only of his family but also of [appellee] and [appel- lee's] family. The court further found that beginning in 1991, Mrs. Lombardo began to change her relationship with [appellant]. The court found that Mrs. Lombardo signed a will drafted by Baker & Hostetler increasing the share of her estate that [appel- lee] would receive upon her death. She also gave [appellee] a durable power of attorney over her property. Mrs. Lombardo signed the Voting Trust Agreement and codicil on May 12, 1992. The court acknowledged that Mrs. Lombardo did not review the voting trust prior to May 12, 1992 but noted that the document was shown to her and explained to her by Mr. Katcher prior to signing. -13- The court further found that Mrs. Lombardo signed the voting trust as the result of her deteriorated relationship with appellant and the business decline of L & M Properties Company and that the act did not result from any undue influence or duress by appellee. The trial court also found that, although Mrs. Lombardo's shares were admittedly not immediately delivered to appellee at the time of the signing of the Agreement, prior to April 1993, appellee obtained the certificate and attempted to have the transfer recorded in L & M's books. When Mr. Levine declined to make the transfer, appellee, as corporate secretary, effected that transfer in his capacity as corporate secretary of L & M but without the concurrence of corporate president Carl J. Lombardo. The trial court thus concluded that the evidence demonstrated that Mrs. Lombardo was competent at the time she signed the Voting Trust Agreement and that she signed the document without any duress or undue influence by appellee. The court also found that the delivery of the share certificate prior to April 1993 to appellee perfected the agreement. Thus, the trust was valid. R.C. 1701.49 provides the statutory guidance for voting trusts. R.C. 1701.49 states in pertinent part: (A) By written agreement certificates for shares of a corporation may be deposited within or without this state by any holder or holders thereof with one or more persons as trustees, or with any depositary designated by or pursuant to such agreement to act for such trustees, for the purpose and with the effect of granting to such trustees or a majority of them, or to such persons as may be designated by or pursuant to such agreement, all the voting, consenting, or other rights in respect of the shares represented by such certifi- -14- cates, or such of these rights as may be specified in the agreement, or for such other lawful purposes as may be specified in the agreement, for such period and upon such terms as may be stated therein. * * * (B) No such agreement which grants the voting of consenting rights in respect of shares shall be irrevocable for a period of more than ten years, unless the voting or consenting rights granted thereby are coupled with an interest in the shares to which such rights relate, except that, if the agreement so provides, such irrevocable grant may be ex- tended for additional periods of not more than ten years each, upon the affirmative vote or assent of the beneficial owners of not less than a majority of the shares deposited under the agreement. * * * (C) The trustees under the agreement may issue, or cause to be issued by their deposi- tary or agent, voting trust certificates registered in the name of the owners thereof. So far as consistent with the agreement and the voting trust certificates issued thereun- der, the provisions of sections 1308.01 to 1308.44, and of sections 1701.01 to 1701.99 of the Revised Code, with respect to the transfer of certificates shall apply to transfers of such voting trust certificates. Voting trust certificates must be in certificated form, and interests in a voting trust shall not be eligible for treatment as uncertificated securities. * * * (F) The certificate for shares so deposited may be surrendered to and canceled by the issuing corporation, and if this is done new certificates therefor shall be issued by the corporation in the names of the trustees or of such persons as are designated by or pursuant to the agreement as specified in writing signed by the trustees and delivered to the issuing corporation. The new certificates -15- shall be delivered to the trustees, or to any depositary, as the trustees may direct. The new certificates shall be issued pursuant to the agreement and in the entry of ownership in the proper books of the corporation that fact shall also be noted. * * * (H) The rights conferred by this section are in addition to rights at common law, and no limitation established by this section shall limit rights at common law. It is appellant's contention that the trust is invalid because the shares of stock at issue were never properly transferred. Appellant contends that the trial court erred when it found that Mrs. Lombardo delivered her stock certificate to appellee. R.C. 1308.24 provides that [a]n indorsement of a certificated security, whether special or in blank, does not constitute a transfer until delivery of the certificated security on which it appears, or, if the indorsement is on a separate document, until delivery of both the document and the certificated security. Additionally, pursuant to R.C. 1308.28(A)(1), transfer of a security to a purchaser occurs [a]t the time he or a person designated by him acquires possession of a certificated security; ***. Since Mrs. Lombardo's stock certificate was a certificated security, delivery to the transferee and possession by the transferee was required. Although the evidence demonstrates that appellee obtained his mother's certificate from the office himself and not from his mother personally, there is no requirement that the transferor of the stock personally transfer the physical certificate to the -16- transferee in order to effectuate a valid delivery. There is suf- ficient evidence in the record to indicate that it was Mrs. Lombardo's desire that appellee should have control of her shares and that she wished to remove control from appellant. The trial court did not err as a matter of law when it concluded that the Agreement was perfected by physical delivery when appellee obtained the certificate sometime between May 12, 1992 and April 5, 1993. Appellant also maintains that appellee, as a purported trustee, was a fiduciary for Mrs. Lombardo's shares. Thus, he must comply with R.C. 1701.46(B), which provides that [f]iduciaries and minors may vote and execute consents in respect of shares which stand of record in their respective names. Additionally, appel- lant maintains appellee was required to comply with L & M's Code of Regulations. The Regulations provide, in pertinent part: Transfers of shares shall be made only on the books of the company by the holder thereof, in person or by his duly authorized attorney, and must be accompanied by the surrender of the certificates, properly assigned, evidencing the shares so transferred. Certificates so surrendered shall be canceled and attached to the stubs corresponding thereto in the share certificate book. Appellant argues that the only way to reconcile both R.C. 1701.46 and R.C. 1701.49 and to give effect to the company's Regulations is to require that the shares voted be recorded in the fiduciary's name. Therefore, since appellee was acting as a fidu- ciary for Mrs. Lombardo, he lacked authority to vote Mrs. Lombardo's shares absent a certificate issued in his own name. -17- There is no requirement in the voting trust statute itself to support appellant's contention. R.C. 1701.49(C) provides merely that the trustees under a voting trust agreement may issue, or cause to be issued by their depositary or agent, voting trust certificates registered in the name of the owners thereof and that the provisions of sections 1308.01 to 1308.44 and of 1701.01 to 1701.99 of the Revised Code, with respect to the transfer of certificates for shares shall apply to transfers of such voting trust certificates. (Emphasis added.) Additionally, R.C. 1701.49(F) similarly provides that certificates for shares so deposited may be surrendered to and canceled by the issuing corporation, ***. (Emphasis added.) The statutory language is merely permissive, not mandatory. The Voting Trust Agreement itself provides that the Trustee may cause the Shares to be transferred to him or his nominee on the books of the Company, ***. (Emphasis added.) There is no requirement that such certificates be issued, deposited, or transferred on the company's books in order to create a valid voting trust. Moreover, even accepting appellant's argument that appellee could not vote shares that were not issued in his name on the company's books, the record reveals that at the time of the 1996 meeting, a new certificate in appellee's name had been issued. Appellee had attempted to properly record the certificate in L & M's corporate record book with Herbert Levine. Mr. Levine de- clined to perform the transfer. Thereafter, appellee created a -18- certificate on April 20, 1993 in his capacity as secretary to effectuate the transfer. Appellant argues that appellee, by issuing the certificate from a new corporate record book, defeated the purpose of both R.C. 1701.46(B) and L & M's Regulations; he contends that appellee was therefore able to maintain the secrecy of the voting trust. However, the record indicates that prior to the May 1993 sharehold- ers' meeting, appellee informed appellant that their mother ha[d] given [appellee] her 127.13 shares to vote. Thus, appellant knew about the voting trust almost three years before appellee used the authority conveyed by the Agreement. The trial court did not err as a matter of law. Finally, appellant contends that the voting trust was invalid because it failed to state a purpose; however, there is no explicit provision in the statute that requires that a purpose be stated in order to create a valid voting trust. R.C. 1701.49 states: (A) By written agreement certificates for shares of a corporation may be deposited within or without this state by any holder or holders thereof with one or more persons as trustees, or with any depositary designated by or pursuant to such agreement to act for such trustees, for the purpose and with the effect of granting to such trustees or a majority of them, or to such persons as may be designated by or pursuant to such agreement, all the voting, consenting, or other rights in respect of the shares represented by such certifi- cates, or such of these rights as may be specified in the agreement, or for such other lawful purposes as may be specified in the agreement, for such period and upon such terms as may be stated therein. -19- Thus, according to the statute, a voting trust may be created for the purpose of granting all of the voting rights of the shares represented by the certificate to the trustee or it may be created to grant to the trustee other rights that may be specified in the agreement. In the matter sub judice, the voting trust gave all of the voting rights to appellee as contemplated by the statute. More- over, if another purpose is intended, the statute merely permits, but does not require, that it be specified in the agreement. Our review of the record indicates that the trial court did not err as a matter of law when it determined that the voting trust was valid. Appellant's first and second assignments of error are not well taken. Appellant's third assignment of error alleges: THE TRIAL COURT'S CONCLUSION THAT SAM LOMBARDO DID NOT UNDULY INFLUENCE JEAN LOMBARDO OR CAUSE HER DURESS IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE AND IS ERRONEOUS AS A MATTER OF LAW. It is well settled that [j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Con- struction Co. (1978), 54 Ohio St.2d 279, at the syllabus; see, also, Kuempel Serv., Inc. v. Zofko (1996), 109 Ohio App.3d 591, 598. Moreover, an appellate court should not substitute its judg- ment for that of a trial court when there exists competent and credible evidence supporting the findings of fact and conclusions -20- of law rendered by the trial judge. Seasons Coal Co., Inc. v. City of Cleveland (1984), 10 Ohio St.3d 77. The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credi- bility of the proffered testimony. Id.at 80. Appellant maintains the trial court improperly focused on Mrs. Lombardo's competence and overlooked the fact that appellee unduly influenced Mrs. Lombardo to sign the voting trust. The requirements for a claim of undue influence were estab- lished by West v. Henry (1962), 173 Ohio St. 498. These require- ments are: (1) that the testator was susceptible to influence; (2) that another had the opportunity to exert the influence; (3) that the improper influence was in fact exerted or attempted; and (4) events or results show the effect of such influence. Id.; see, also, Ross v. Barker (1995), 101 Ohio App.3d 611, 618. The trial court concluded that Mrs. Lombardo's decision to confer full voting power to appellee resulted from her desire based on her deteriorated relationship with [appellant] and the business decline of L & M Properties Company, not to allow [appel- lant] to make such decisions any longer. It was also consistent with her long-standing practice of allowing other family members to make judgments about the business of L & M Properties Company and the voting of her stock. There is substantial evidence in the record to support the trial court's conclusion that Mrs. Lombardo did not sign the -21- agreement as the result of undue influence. Mr. Katcher testified that at his October 1991 meeting with Mrs. Lombardo, he felt that he had a normal conversation with Mrs. Lombardo and saw nothing unusual about her conduct or appearance or comments to [him]. Likewise, Ms. Haylor testified that, at the signing of the Will in November 1991, Mrs. Lombardo knew what she was doing and why she was present; there was nothing that indicated she was disoriented. Although Mrs. Lombardo cried for approximately one minute when Ms. Haylor offered to postpone the signing, Mrs. Lombardo remarked that she was fine but that it was a painful time. Ms. Haylor testified that when Mrs. Lombardo signed the Voting Trust Agreement in May 1992, she appeared to be very calm and that nothing about her indicated she did not have good judgment. Mr. Katcher testified that he believed Mrs. Lombardo knew what she was signing. There is a notable lack of evidence in the record to indicate appellee unduly influenced Mrs. Lombardo. Appellant speculated repeatedly regarding what he believed appellee may have done; however, he admittedly had not witnessed any such actions. Moreover, while appellant's daughter testified that her grandmother went from spending most of her time with appellant to spending most of her time with appellee, she did not testify that appellee had done anything to bring about this change. Furthermore, there was also testimony from appellee, appellant and appellant's children that indicated Mrs. Lombardo would sign any document presented to her by her sons and that she did not pay attention to their contents. The evidence indicated Mrs. Lombardo -22- put her trust in appellee and wanted him to have control over L & M rather than to allow appellant to maintain control. There was no evidence to indicate that Mrs. Lombardo signed the Voting Trust Agreement due to undue influence. Moreover, the record does not support appellant's contention that the trial court erred as a matter of law by focusing on the issue of Mrs. Lombardo's competence rather than on her susceptibil- ity to influence when determining whether or not Mrs. Lombardo was the victim of undue influence. The lower court's findings of fact addressed her declining relationship with appellant and the fact that she was satisfied to give total and permanent discretion to [appellee] in deciding how [her] shares should be voted. The court further concluded that her decision to transfer voting power to appellee was consistent with her long-standing practice of allowing other family members to make judgments about the business of L & M Properties Company and the voting of her stock. The record indicates the trial court correctly addressed Mrs. Lombardo's susceptibilityto influence and did not center solely on Mrs. Lombardo's competence. The trial court's conclusion was neither against the weight of the evidence nor erroneous as a matter of law.2 2 Although appellant's assignment of error also alleges duress, he does not argue it in his brief. A claim of duress requires that one side involuntarily accepted the terms of another, that circumstances permitted no other alternative, and that the opposite party's coercive acts caused those circumstances. Blodgett v. Blodgett (1990), 49 Ohio St.3d 243, 246. There was also no evi-dence that Mrs. Lombardo signed the Agreement as the result of duress. -23- Finally, in his fourth assignment of error, appellant argues: THE TRIAL COURT ERRED TO THE PREJUDICE OF CARL J. LOMBARDO BY DENYING HIS TIMELY FILED DEMAND FOR A JURY TRIAL. Appellant's final assignment of error contends the trial court erred when it denied his request for a jury trial. Civ.R. 39 provides in pertinent part as follows: (A) By jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless *** (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist. *** The subject of the hearing in the lower court that gave rise to the instant appeal was a declaratory judgment; the parties were seeking a determination regarding the validity of the Voting Trust Agreement. Declaratory judgments are governed by R.C. Chapter 2721. R.C. 2721.10 provides: When a proceeding under Sections 2721.01 to 2721.15, inclusive, of the Revised Code in- volves a determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the Court in which the proceeding is pending. Appellant argues that the declaratory judgment action before the lower court raised issues of fact and, therefore, requires trial by a jury as in other civil actions. The determination of issues of fact is governed by R.C. 2311.04, which provides: Issues of law must be tried by the court, unless referred as provided in the Rules of -24- Civil Procedure. Issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial is waived or unless all parties consent to a reference under the Rules of Civil Procedure. All other issues of fact shall be tried by the court subject to its power to order any issue to be tried by a jury or referred. The issue before the trial court was not one for the recovery of money only, or specific real or personal property. In equity actions, there is no right to a trial by jury. Ohio Bd. of Diete- tics v. Brown (1993), 83 Ohio App.3d 242, 247, citing Converse v. Hawkins (1877), 31 Ohio St. 209; Pyromatics, Inc. v. Petruziello (1983), 7 Ohio App.3d 131; Huntington Natl. Bank v. Heritage In- vestment Group (1983), 12 Ohio App.3d 113. Our review of the record reveals that the sole issue decided by the lower court was the validity of the voting trust. The trial judge correctly denied appellant's request for a jury. Appellant's final assignment of error is not well taken. Judgment affirmed. It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas 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. JOHN T. PATTON, P.J. and MICHAEL J. CORRIGAN, J. CONCUR -25- JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .