RICHARD G. BEAR v. MARCIA TROYER, ET AL.
Case No. 15 CA 17, 15 CA 24
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 8, 2016
[Cite as Bear v. Troyer, 2016-Ohio-3363.]
Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Common Pleas Court, Case No. 13 CV 497. JUDGMENT: 15 CA 000017 - Affirmed in part, and Vacated in part; 15 CA 000024 - Affirmed.
For Plaintiff-Appellee
STEPHEN E. CHAPPELEAR ASHLEY L. OLIKER Frost Brown Todd LLC 10 West Broad Street, Suite 2300 Columbus, Ohio 43215
For Defendants-Appellants
RALPH F. DUBLIKAR ANDREA K. ZIARKO Baker, Dublikar, Beck, Wiley & Mathews 400 South Main Street North Canton, Ohio 44720
{¶1} In Guernsey App. No. 15 CA 000017, defendants-appellants Barbara Douthitt, et al. (“the Cousins“) appeal the May 13, 2015 Findings of Fact/Conclusions of Law/Judgment Entry entered by the Guernsey County Court of Common Pleas, which granted judgment in favor of plaintiff-appellee Richard G. Bear (“Bear“), following a bench trial. The Cousins also appeal the trial court‘s September 2, 2015 Findings of Fact/Conclusions of Law/Judgment Entry, which granted attorney fees in favor of Bear. In Guernsey App. No. 15 CA 000024, Bear appeals the September 2, 2015 Findings of Fact/Conclusions of Law/Judgment Entry relative to the amount of attorney fees the trial court awarded him.
STATEMENT OF THE CASE AND FACTS
{¶2} On October 28, 2013, Bear filed a complaint, seeking declaratory judgment and asserting claims for adverse possession and acquiescence. Bear also sought the imposition of a constructive trust аs well as punitive damages and attorney fees. The Cousins filed a timely answer, raising the statute of frauds as an affirmative defense. The parties conducted discovery. Bear filed a motion for partial summary judgment, which the trial court denied via Entry filed June 24, 2014.
{¶3} The matter proceeded to bench trial on April 27, 2015, and April 30, 2015.
{¶4} On or about January 8, 1901, and September 22, 1917, Richey S. Bear, the parties’ grandfather, acquired ownership of an 86 acre tract of land located in Monroe Township, Guernsey County, Ohio (“the Farm“). Upon Richey S. Bear‘s death, his interest in the Farm passed in equal shares to his four sons: Richie Francis Bear, Bear‘s father; Byron W. Bear; Floyd Ed Bear; and Iradell W. Bear, the Cousins’ father. When
{¶5} On October 26, 1990, Bear met with Charlene Bear at her home to discuss his purchasing her one-fourth interest in the Farm. Bear‘s first wife, Barbara, who is now deceased, wrote a check paid to the order of Charlene Bear in the amount of $8,600.00, from her and Bear‘s joint checking account. Bear presented the check, which included the property‘s real estate tax parcel number in the subject line, to Charlene Bear. Cynthia Bear Bixler, one of Charlene Bear‘s five daughters, was present during the meeting. She confirmed Charlene Bear‘s receipt of the check, and added Charlene Bear had made a lеmon pie which they ate. The $8,600.00 amount was based upon an appraisal conducted at that time. A copy of the appraisal which is dated October 5, 1997, was admitted into evidence.
{¶6} Bear provided the trial court with a photocopy of the front of the check. In addition, Bear provided the trial court with a carbon copy of the check and the checking account register which shows the check number (294), the date written (10/26), the transaction description (Charlene Bear – farm land), the amount of the check ($8600) as well as the deduction from the account balance. The register also shows dates and amounts of subsequently written checks and the running balance of the account.
{¶7} On March 17, 1993, Charlene Bear met with Attorney Thomas E. Miller to discuss estate planning options. In a letter dated the same day, Attorney Miller summarized the alternatives which had been discussed regarding Charlene Bear‘s
{¶8} Charlene Bear passed away on March 15, 2003. Charlene‘s daughters, Cynthia Bear Bixler and Appellant Barbara Douthitt, were co-executors of her estate. They contacted Attorney Douglas Frautschy to assist with some of the estate matters. When asked about Charlene Bear‘s assets, Bear Bixler and Appellant Douthitt indicated the only real property Charlene Bear owned was a life estate in her residence in Tuscarawas County. Neither daughter mentioned Charlene Bear having a share in the Farm. Cynthia Bear Bixler had a power of attorney for Charlene Bear. Appellant Barbara Douthitt was unaware of this arrangement. Of her daughters, Charlene Bear relied most upon Cynthia Bear Bixler for assistance with her business affairs.
{¶9} The Cousins presented evidence Myron Bear, the son of Floyd Bear, previously offered Iradell Bear $10,000, for his share of the Farm. Iradell Bear declined the offer. The evidence revealed the Cousins had not visited the Farm sinсe the early 1980s except for Appellant Douthitt who was at the Farm in 2000, when she and her husband had taken a motorcycle ride in the area. In addition, the evidence established Charlene Bear seldom visited the Farm.
{¶10} In 2013, Bear met with Attorney David B. Bennett to address the title defect in the interest in the Farm he purchased from Charlene Bear. Attorney Bennett determined Iradell Bear‘s interest in the Farm was never conveyed to his widow, Charlene Bear, following his death. Further, a deed evidencing the conveyance of Charlene Bear‘s interest in the Farm to Bear was never prepared or recorded. In order to correct these omissions, Attorney Bennett reopened Iradell Bear‘s estate and conveyed his interest in
{¶11} Two of Charlene Bear‘s children, Cynthia Bear Bixler and Deanna Bear, signed the quitclaim deed. The other three daughters, the Cousins herein, refused and instead chose to contact Attorney Brett Hillyer and the law firm of Connolly, Hillyer, Lindsay & Ong, Inc. (“CHLO“). Bear subsequently retained Attorney Stephen Chappelear and the law firm of Frost, Brown Todd, who specialize in real estate litigation. Attorney Chappelear sent correspondencе dated September 16, 2013, to Attorney Hillyer. Therein, Attorney Chappelear set forth the evidence establishing Bear‘s ownership of the property, and advised Attorney Hillyer the Cousins had two weeks in which to sign the quitclaim deed or he would commence litigation.
{¶12} After ignoring the two week deadline, Attorney Hillyer sent correspondence dated October 13, 2013, to Attorneys Bennett and Chappelear, which reads, in relevant part:
“I have recently met with my clients regarding the letter you sent asking for their signatures on a Quit Claim Deed. As of now, my clients do not believe that their ancestors would have sold the ground.
Apparently, you had a conversation with my uncle, Attorney Brad Hillyer about signing a Quit Claim Deed. Either you or Attorney Bennett stated that this [sic] not about mineral rights. If it is not about mineral rights, my clients will be happy to sign over their 1/4 interest in the real estate.
If this is about mineral rights, my clients will not be signing any documents at this time unless you can furnish a writing that shows that the real estate was transferred.
Please contact me if you have any further information.”
{¶13} This correspondence prompted Bear to filе his Complaint on October 28, 2013.
{¶14} After hearing two days of testimony, the trial court issued Findings of Fact/Conclusions of Law/Judgment Entry on May 13, 2015, granting Bear‘s request for declaratory judgment. The trial court determined Bear owned all of Charlene Bear‘s interest in the Farm and the Cousins did not own any interest in the subject property. The trial court filed a nunc pro tunc entry on August 10, 2015, clarifying the trial court‘s original decision.
{¶15} The Cousins filed a timely Notice of Appeal on June 12, 2015. On the same day, Bear filed a motion for attorney fees pursuаnt to
{¶16} Upon remand, the trial court conducted an evidentiary hearing on August 28, 2015, to decide the reasonableness and necessity of the attorney fees requested by Bear. At the hearing, Bear argued the $135,081, in attorney fees, and $2,884.32, in expenses he incurred, were necessary and reasonable due to the improper and frivolous conduct of Attorney Hillyer, CHLO, and the Cousins. Via Findings of Fact/Conclusions of Law/Judgment Entry filed September 2, 2015, the trial court granted Bear attorney fees
{¶17} It is from the May 13, 2015 Findings of Fact/Conclusions of Law/Judgment Entry and the September 2, 2015 Findings of Fact/Conclusions of Law/Judgment Entry the Cousins appeal in Guernsey App. No. 15 CA 000017, raising the following assignments оf error:
{¶18} “I. THE TRIAL COURT ERRED IN GRANTING JUDGMENT IN FAVOR OF APPELLEE ON COUNT I, DECLARATORY JUDGMENT, IN DETERMINING SUFFICIENT EVIDENCE OF PART PERFORMANCE TO ENFORCE AN ALLEGED ORAL CONTRACT FOR THE SALE OF LAND CONTRARY TO
{¶19} “II. THE TRIAL COURT ERRED BY ISSUING A CONSTRUCTIVE TRUST AS THE ALLEGED ORAL AGREEMENT SHOULD HAVE BEEN DEEMED UNENFORCEABLE UNDER
{¶20} “III. THE TRIAL COURT ERRED IN ADMITTING AN OFFER OF COMPROMISE OR SETTLEMENT INTO EVIDENCE.
{¶21} “IV. THE TRIAL COURT ERRED BY AWARDING ATTORNEY FEES PURSUANT TO
{¶22} “V. THE TRIAL COURT ERRED BY AWARDING ATTORNEY FEES PURSUANT TO
{¶24} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO SANCTION THE LAW FIRM OF CONNOLLY, HILLYER, LINDSAY, & ONG UNDER
{¶25} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO AWARD ALL OF THE ATTORNEY FEES INCURRED BY APPELLANT AGAINST BRETT H. HILLYER AND HIS FIRM, CONNOLLY, HILLYER, LINDSAY, & ONG.
{¶26} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO AWARD ALL OF THE ATTORNEY FEES INCURRED BY APPELLANT AGAINST THE DEFENDANTS-APPELLEES MARCIA TROYER, BARBARA DOUTHITT, AND GLORIA BEAR.
{¶27} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO AWARD ALL OF THE ATTORNEY FEES INCURRED BY APPELLANT FOLLOWING APPELLANT‘S FILING OF HIS MOTION FOR PARTIAL SUMMARY JUDGMENT.
{¶28} “IV. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO AWARD ANY EXPENSES TO APPELLANT IN DEFENDING AGAINST IMPROPER AND FRIVOLOUS CONDUCT.”
I
{¶29} In their first assignment of error, the Cousins contend the trial court erred in granting declaratory judgment in favor of Bear upon a finding of the agreement between Bear and Charlene Bear was enforceable based upon the doctrine of partial performance.
{¶30} As an appellate court, we are not the trier of fact; instead, our role is to determine whether there is relevant, competent, and credible evidence upon which the factfinder could base his or her judgment. Tennant v. Martin-Auer, 188 Ohio App.3d 768, 936 N.E.2d 1013, 2010-Ohio-3489, ¶ 16, citing Cross Truck v. Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911. A reviewing court, in addressing a civil manifest weight challenge, must determine whether the finder of fact, in resolving conflicts in the evidence, clearly lost his or her way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. See Hunter v. Green, Coshocton App.No. 12-CA-2, 2012-Ohio-5801, 2012 WL 6094172, ¶ 25.
{¶31} In Ohio, agreements for the sale of real estate come within the statute оf frauds and must be in writing and signed by the party to be charged. See Shimko v. Marks (5th Dist. 1993), 91 Ohio App.3d 458, 461, 632 N.E.2d 990.
No action shall be brought whereby to charge the defendant * * * upon a contract for sale of lands, tenements, or hereditaments, or interest in or concerning them, or upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing
and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized.
{¶32} “However, part performance of an oral contract for the sale of real estate can be sufficient to remove the contract from the operation of the statute.” Delfino v. Paul Davies Chevrolet, Inc. (1965), 2 Ohio St.2d 282, 287, 209 N.E.2d 194.
{¶33} In order to establish part performance, a party must show: 1) evidence of a change in who possesses the land; 2) payment of all or part of the consideration for the land; and 3) improvements, alterations, or repairs on the land. Monea v. Lanci, 5th Dist. Stark No.2011CA00050, 2011-Ohio-6377, ¶ 52, citing Tier v. Singrey (1951), 154 Ohio St. 521, 526, 97 N.E.2d 20. The party asserting part pеrformance must have undertaken acts that “changed his position to his detriment and make it impossible or impractical to place the parties in status quo.” Delfino, supra. Generally, in cases involving real estate contracts, courts require acts such as possession, payment of consideration, and improvements on the land in order to find part performance of the contract. Geiger v. Geiger (Nov. 16, 1993), Montgomery App. No. 13841.
{¶34} In its May 13, 2015 Findings of Fact/Conclusions of Law/Judgment Entry, the trial court found Bear “established by the evidence presented suffiсient part performance to remove the contract from the statute of frauds.” Id. at 5. We agree. The evidence established Bear maintained continuous possession of the property before and after purchasing the land from Charlene Bear. Bear paid $8,600.00, to Charlene Bear in consideration for the property on October 26, 1990. Bear paid the real estate taxes on the property for over 25 years. He made improvements and/or alterations on the land. Specifically, Bear cleared trees and brush, installed a gate to keep out trespassers, and
{¶35} Based upon the foregoing, we overrule the Cousins’ first assignment of error.
II
{¶36} In their second assignment of error, the Cousins maintаin the trial court erred in issuing a constructive trust. Specifically, the Cousins submit the agreement between Bear and Charlene Bear should not have been removed from the statute of frauds.
{¶37} Having found in Assignment of Error I the trial court did not err in determining there was part performance sufficient to remove the agreement between Bear and Charlene Bear from the operation of the statute of frauds, we find it unnecessary to analyze the Cousins’ second assignment of error based upon the two-issue rule.
{¶38} Thе Cousins’ second assignment of error is overruled as moot.
III
{¶39} In their third assignment of error, the Cousins argue the trial court erred in admitting an offer of compromise or settlement into evidence.
{¶40} During the trial, Bear presented Plaintiff‘s Trial Exhibit 10, a correspondence from Attorney Hillyer to Attorneys Bennett and Chappelear, dated October 11, 2013. In this correspondence, which is set forth in our Statement of the Case and Facts, supra, Attorney Hillyer advised Attorneys Bennett and Chappelear the Cousins would be “happy to sign over their 1/4 interest in the real estate” if the matter was not about mineral rights.
{¶41} While we view the correspondence more in the nature of an offer or compromise or settlement than an admission against interest we find any error in its admission to have been harmless given the other evidence supporting the trial court‘s decision.
{¶42} The Cousins’ third assignment of error is overruled.
IV
{¶43} In their fourth assignment of error, the Cousins assert the trial court erred in awarding attorney fees pursuant to
{¶44}
{¶45} “The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney or party has read the dоcument; that to the best of the attorney‘s or party‘s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the document had not been served. For a willful violation of this rule, an attorney or pro se party, upon motion of a party or upon the court‘s own motion, may be subjected to aрpropriate action, including an award to the opposing party of
{¶46} In ruling on a motion for sanctions made pursuant to
{¶47} In its September 2, 2015 Findings of Fact/Conclusions of Law/Judgment Entry, the trial court found Attorney Brett Hillyer never spoke with anyone other than the Cousins and Attorney Douglas Frautschy, who was Charlene Bear‘s estate attorney in 2003, and who was not privy to any information regarding the status of the property in 1990. The trial court also found Attorney Hillyer never attempted to talk to Cynthia Bear Bixler, and never investigated the history concerning the payment of taxes on the proрerty. The trial court further found Attorney Hillyer “testified that he based pleadings on what [the Cousins] told him for the statements made in opposition to Plaintiff‘s Motion for Partial Summary Judgment.” September 2, 2015 Findings of Fact/Conclusions of Law/Judgment Entry at p. 5. Based upon those findings, the trial court determined “Attorney Hillyer did not have a factual basis for the allegations made in [the Cousins‘] opposition to Plaintiff‘s Motion for Partial Summary Judgment.” Id.
{¶48} We find the reasons set forth by the trial court do not provide sufficient grounds demonstrating a willful violation of thе rule sufficient to justify the imposition of
{¶49} The Cousins’ fourth assignment of error is sustained as to the award of attorney fees against Attorney Brett Hillyer.
V
{¶50} In their fifth assignment of error, the Cousins submit the trial court erred in awarding attorney fees against them pursuant to
{¶51}
{¶52}
{¶53} “(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
{¶55} A motion for sanctions brought under
{¶56} The question of what constitutes frivolous conduct may be either a factual determination, or a legal determination. Pingue v. Pingue, 5th Dist. Delaware No. 06-CAE-10-0077, 2007-Ohio-4818, ¶ 20 citing Wiltberger v. Davis, 110 Ohio App.3d 46, 673 N.E.2d 628 (1996). A determination the conduct is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law requires a legal analysis. Lable & Co. v. Flowers, 104 Ohio App.3d 227, 233, 661 N.E.2d 782 (9th Dist.1995). With respect to purely legal issues, we follow a de novo standard of review and need not defer to the judgment of the trial court. Wiltberger, supra, at 51-52, 673 N.E.2d 628. However, we do find some degree of deference appropriate in reviewing a trial court‘s factual determinations and will not disturb such factual determinations where the record contains competent, credible evidence to support such findings. Id.
{¶57} If the reviewing court finds the trial court‘s finding of frivolous conduct is substantiated, the decision to award attorney fees as a sanction for that conduct rests within the trial court‘s sound discretion. Burchett v. Larkin, 2011-Ohio-684, ¶ 22. A trial
{¶58} In its September 2, 2015 Findings of Fact/Conclusions of Law/Judgment Entry, the trial court noted the Cousins set forth three statements in their response to Bear‘s motion for partial summary judgment:
- [The Cousins], as well as the decedent‘s former attorney, all knew intimately of Charlene M. Bеar‘s affairs. All of these parties are ready, willing and able to testify at trial that the decedent did not want to sell the property, nor did she ever seek to sell the property;
- [The Cousins] deny that they never paid property tax on the property. The property taxes were paid from time to time by a sister. [Bear] used the property as his own most of the time so [the Cousins] did not believe that much property tax would be owed on their behalf;
- [The Cousins] deny that they never created any improvеments or performed any maintenance on the property during the time at issue. Id. at 2.
{¶59} The trial court found, “All of the statements were unsupported by the evidence at trial.” Id. After detailing the testimony presented at trial which contradicted the Cousins’ statements, the trial court concluded the Cousins’ conduct consisted of allegations or other factual contentions that had no evidentiary support or, if specifically identified, were not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery, or, if specifically identified, were not reasonably
{¶60} We have reviewed the entire record in this matter and the decision of the trial court. We do not find the trial court abused its discretion in awarding attorney fees against the Cousins based upon their frivolous conduct as outlined by the trial court.
{¶61} The Cousins’ fifth assignment of error is overruled.
Guernsey App. No. 15 CA 000024
I, II
{¶62} In his first assignment of error, Bear contends the trial court abusеd its discretion in failing to sanction the law firm of Connolly, Hillyer, Lindsay & Ong pursuant to
{¶63} Based upon our disposition of the Cousins’ fourth assignment of error in Guernsey App. No. 15 CA 000017, we overrule Bear‘s first and second assignments of error.
III, IV
{¶64} In his third assignment of error, Bear maintains the trial court abused its discretion in failing to award all of the attorney fees he incurred against the Cousins. In his fourth assignment of error, Bear argues the trial court abused its discretion in failing to award all of the attorney‘s fees incurred he incurred following his filing of his motion for partial summary judgment.
{¶66} After granting Bear‘s motion for attorney fees pursuant to
{¶67} We find the trial court did not abuse its discretion in failing to award all of the attorney fees Bear incurred or all of the attorney‘s fees Bear incurred following his filing of his motion for partial summary judgment. An award of attorney fees made
{¶68} Bear‘s third and fourth assignments of error are overruled.
V
{¶69} In his final assignment of error, Bear claims the trial court abused its discretion in failing to award any expenses he incurred in defending against the Cousins’ frivolous and improper conduct.
{¶70} Again, this assignment of error is reviewed under an abuse of discretion standard.
{¶71}
{¶72} We find the trial court did not abuse its discretion in failing to award the expenses Bear incurred in defending the action. The fact
{¶74} The judgment of the Guernsey County Court of Common Pleas in Guernsey App. No. 15 CA 000017 is affirmed in part, and vacated in part.
{¶75} The judgment of the Guernsey County Court of Common Pleas in Guernsey App. No. 15 CA 000024 is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur