LEWIS F. GRIMES, EXECUTOR OF THE ESTATE OF JOHN H. GRIMES, SR., Plаintiff-Appellee, vs. JOHN H. GRIMES, JR., Defendant-Appellant.
Case No. 10CA23
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
DATE JOURNALIZED: 8-2-2012
2012-Ohio-3562
ABELE, P.J.
DECISION AND JUDGMENT ENTRY
COUNSEL FOR APPELLANT: Sky Pettey, Lavelle and Associates, 449 East State Street, Athens, Ohio 45701
COUNSEL FOR APPELLEE: James S. Huggins, and Daniel P. Corcoran, Theisen Brock, L.P.A., 424 Second Street, Marietta, Ohio 45750
CIVIL APPEAL FROM COMMON PLEAS COURT
ABELE, P.J.
{¶ 1} This is an appeal from a Washington County Common Pleas Court, Probate Division, judgment in favor of Lewis F. Grimes, Executor of the Estate of John H. Grimes, Sr., plaintiff below and appellee herein, on claims he brought against his brother, John H. Grimes, Jr., defendant below and appellant herein.
{¶ 2} Appellant assigns the following errors for review:1
“THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION WHEN IT ALLOWED APPELLEES [sic] TO AMEND THE COMPLAINT TO ADD CLAIMS FOR FORGERY, FRAUD, AND TO INCLUDE TWO ADDITIONAL DEEDS AFTER THE TRIAL WAS OVER AND AFTER REPEATEDLY REFUSING TO ALLOW THE PLAINTIFF TO SO AMEND THE COMPLAINT PRIOR TO AND DURING THE TRIAL, GIVEN THAT THERE WAS NO EXPRESS OR IMPLIED CONSENT TO TRY THOSE ISSUES.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT‘S JUDGMENT ON THE UNDUE INFLUENCE CLAIM WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS DISCRETION, AND/OR MADE A DECISION THAT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN IT FOUND THAT A CONFIDENTIAL RELATIONSHIP EXISTED BETWEEN JOHN GRIMES, JR. AND JOHN GRIMES, SR. AND THAT AS A RESULT THE BURDEN OF PROOF SHIFTED TO JOHN GRIMES JR.”
FOURTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT‘S DECISION THAT THE DEEDS WERE VOID FOR LACK OF DELIVERY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS AN ABUSE OF DISCRETION.”
{¶ 3} John H. Grimes, Sr. (the decedent) died testate on December 17, 2002. Prior to the decedent‘s death, appellant facilitated the transfer of several real estate parcels from the decedent (appellant‘s father) to himself. The decedent‘s Last Will and Testament named his sons, the parties herein, as legatees of his estate, but designated appellee as recipient of several
{¶ 4} Appellee commenced the instant action on June 26, 2006 and requested that various real estate transfers to his brother be set aside. Appellant did not answer, but, rather, challenged the trial court‘s jurisdiction to hear the case. The trial court ruled on November 9, 2006 that the Common Pleas Court acquired jurisdiction by virtue of an action filed in the court and, thus, dismissed the complaint. We, however, reversed that ruling. Seе Grimes v. Grimes, 173 Ohio App.3d 537, 879 N.E.2d 247, 2007-Ohio-5653 (Grimes I).
{¶ 5} On remand, appellant answered and denied the allegations, and later requested summary judgment. The trial court granted the motion on August 26, 2008 and dismissed the complaint. We, however, reversed that judgment. See Grimes v. Grimes, Washington App. No. No. 08CA35, 2009-Ohio-3126 (Grimes II).
{¶ 6} Several months after the remand, appellee filed a motion to amend the original complaint and sought the set-aside of yet another inter vivos transfer of property interest and to add additional counts, or theories of recovery. On August 19, 2009, the trial cоurt denied that motion on grounds that appellee should have proposed the amendments much earlier. The case proceeded to a bench trial over two days in December 2009.
{¶ 7} At trial, Richard Yoss, the decedent‘s attorney, testified that he drafted the decedent‘s will. That document provided for appellee to be the legatee of a number of the decedent‘s properties. As to why a majority of those properties were to be left to the appellee instead of his brother, Yoss related that father and son were close and the decedent “thought very
{¶ 8} Karen Amos, one of the decedent‘s end-of-life caretakers, also related how the decedent had told her that his wife had left most of her property to appellant rather than the appellee, and he made the disposition to try and even things out.2
{¶ 9} The evidence adduced also revealed that on October 13, 2002, approximately two months prior to the decedent‘s death, the decedent purportedly executed a number of deeds to transfer to appellant properties that his will had directed to be left to appellee. On the date of the decedent‘s death, those deeds were filеd for record.
{¶ 10} Appellee and his cousin, Gary Riggs, both testified that the signature on several of the deeds did not match the decedent‘s signature. Further, several of the decedent‘s neighbors testified that shortly before his death, they mentioned to him that they wanted to purchase some of his land, but the decedent told them to talk to appellee because he was the future owner.
{¶ 11} Appellant was highly uncooperative when called on cross examination. Appellant failed to bring the originals of the deeds that he was subpoenaed to bring, and either refused to answer, or could not remember, many of the questions put to him.
{¶ 12} During his own case, however, appellant denied that he exerted undue influence on his father. He testified that his father asked him to prepare the deeds, rather than have
{¶ 13} Although the transcript is not entirely clear on this point, it appears that appellee renewed his motion to amend the complaint at the outset of trial and the court denied it onсe again. It is also clear that at the conclusion of trial, appellee moved to amend the pleadings to conform to the evidence adduced at trial. The trial court denied that motion as well.
{¶ 14} The trial court filed a detailed and lengthy judgment on July 21, 2010. The court found in favor of the appellee and ordered that the subject deeds be set aside.3 Procedurally, the trial court changed its position on its prior denial of appellee‘s mоtions to amend the pleadings. The court reasoned that two additional property transfers, above and beyond those originally specified in the original complaint, were the subject of evidence introduced at trial. More important, the trial court ordered the pleadings amended to reflect the additional theories of forgery and fraud with respect to the inter vivos property transfers.
{¶ 15} Substantively, the trial court found, by clear and convincing evidence, that six of the subject deeds did not bear the decedent‘s actual signature and must be set-aside. Furthermore, the court reasoned that even if appellant‘s signature was not forged, the property transfers should nevertheless be set-aside due to (1) fraud in factum (given the relationship
I
{¶ 16} Appellant asserts in his first assignment of error that the trial court erred by permitting the amendment of pleadings to conform to the evidence. We disagree.5
{¶ 18} Appellant‘s argument relies, in part, on the trial court‘s рrior decisions to overrule appellee‘s various motions to amend the pleadings. We, however, do not find any particular significance in those decisions because, as appellee correctly notes in his brief, those rulings were interlocutory and could be modified any time prior to the entry of a final order. See Dickess v. Stephens, Lawrence App. No. 08CA38, 2010-Ohio-32, at ¶ 5, fn. 4; Redmond v. Big Sandy Furniture, Inc., Lawrence App. No. 09CA13, 2009-Ohio-6824, at ¶ 45. Here, the trial court may have decided, upon further reflection after the trial‘s conclusion, that sufficient evidence wаs indeed presented to warrant such an amendment. This is within the trial court‘s discretion and
{¶ 19} Moreover,
{¶ 20} To establish an abuse of discretion concerning a
{¶ 21} In the case sub judice, most of the appellant‘s argument is that neither fraud nor forgery was tried with the “implied consent” of either party for purposes of
“Q. And you‘ve looked at all these deeds, right?
A. Yes.
Q. And you‘re pretty familiar with your dad‘s handwriting?
A. Yes. Do you think his signature is on those deeds”
A. July 13th is his signature, and you‘ll never convince me that the rest of them are.
Q. You don‘t think that‘s your dad‘s signature on any of those deeds?
A. Only on July 13th.”
Thus, if appellee is asked whether his father‘s signature actually appears on the deeds that he purportedly executed, the issue of forgery has been raised. No objection was raised with respect to that testimony that the subject was beyond the scope of the pleadings. Indeed, on cross-examination appellee was questioned again by his brother‘s counsel:
“Q * * * [I]s it your contention now still, that the deeds that are the exhibits that are a part of this lawsuit, that the signatures on there are forged?
A. They‘re not my dad‘s.
Q. They‘re not your dad‘s signature?
A. Only the July 13th, is the only one still say is dad‘s signature.”
Again, the issue was raised on direct examination, and cross examination. Forgery was also raised when Gary Riggs was asked on direct examination whether he recognized his uncle‘s signature on the deeds. Again, no objection was lodged with respect to his testimony on grounds that it was beyond the scope of the pleadings. In view of the foregoing, we conclude that the forgery issue was indeed tried with the consent of the parties.
{¶ 22} Insofar as prejudice is concerned, appellant contends that he was prejudiced because his brother did not bring to trial the handwriting expert that he “improperly used estate funds to hire[.]” We, however, fail to see how this prejudices appellant‘s case as appellant could
{¶ 23} In addition, other witnesses testified that they had also contacted the decedent shortly before his death to inquire about рurchasing some land, but the decedent instructed them to talk to the appellee because he would eventually own the land. Although this evidence does not directly involve the issue of forged signatures, it does suggest that the decedent did not transfer the property to appellant in the first place and, thus, the signatures on the various deeds were forged. Once again, no objection was made concerning this testimony. Also, appellant did not request a continuance to produce witnesses on this point, including an expert witness, concerning the origin of the signatures on the deeds.
{¶ 24} For all of these reasons, we do not believe that appellant established he was prejudiced by allowing amendment of the pleadings to conform to the evidence. Accordingly, we do not believe that the trial court abused its discretion and we hereby overrule appellant‘s first assignment of error.
II
{¶ 25} We jointly consider apрellant‘s three remaining assignments of error. After concluding that the decedent‘s signature was forged on six deeds, the trial court considered
{¶ 26} Appellant argues in his second, third and fourth assignments of error that the trial court‘s findings on these alternative theories of recovery are against the manifest weight of the evidence. However, because these theories of rеcovery are alternative theories of recovery, we need not address them if sufficient evidence exists to support the trial court‘s forgery finding.
{¶ 27} Our analysis begins with the basic proposition that the trial court‘s factual finding will be upheld if supported by some competent and credible evidence. Shemo v. Mayfield Hts. (2000), 88 Ohio St.3d 7, 10, 722 N.E.2d 1018; C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, at the syllabus. This standard of review is highly deferential and even “some” evidence is sufficient to support a court‘s judgment and to prevent a reversal. See Barkley; Jones v. Smith Transport, Hocking App. No. 11CA11, 2012-Ohio-692, at ¶ 14; Powell v. Vanlandingham, Washington App. No. 10CA24, 2011-Ohio-3208, at ¶ 26.
{¶ 28} In the сase sub judice, the trial was to the court, not to a jury. Therefore, the trial court judge served as the trier of fact. Weight and credibility of the evidence are issues that the trier of fact must determine. State v. Frazier, 115 Ohio St.3d 139, 873 N.E.2d 1263, 2007-Ohio-5048, at ¶ 106, State v. Dye (1998), 82 Ohio St.3d 323, 329, 695 N.E.2d 763. The trier of fact is in the best position to weigh witness credibility because it may view the witnesses,
{¶ 29} In the case at bar, the trial court expressly opined that it found “Johnny‘s [appellant‘s] credibility is lacking for a variety of reasons.”7 Appellant was the only witness called in his case-in-chief; it does not bode well when the trier of fact finds your sole witness not credible.
{¶ 30} As mentioned above, appellee and his cousin, Gary Riggs, both testified that the signatures on the subject deeds did not belong to the decedent.8 Richard Yoss, the decedent‘s attorney, stated that he рrepared appellant‘s will in 2000 and encouraged him to simply make an inter vivos transfer of the property that appellee would eventually receive through testamentary bequest. On December 2, 2002, nearly two months after deeds were executed to purportedly convey those same properties to appellant, Mr. Yoss‘s office received a phone call to prepare the deeds that would transfer the propertiеs to the appellee. Appellee testified that he made the
{¶ 31} Although it is clear from the brothers’ testimony that their relationship is strained, abundant testimony indicated that the decedent was clоser to appellee than appellant, thus making it less likely that the decedent would have transferred the disputed properties to appellant. Once again, Richard Yoss testified that appellant and the decedent were not “in agreement” on things. Dennis Burga, a neighbor of the decedent, testified that appellee and the decedent were “like best friends,” whereas his relationship with appellant was “[n]ot good, it wasn‘t that great.” Stanley Vоllmar, another neighbor, related that appellee was closer to his father than his brother. Donna Slonaker, one of decedent‘s caretakers during the last few months of his life, testified that despite being in the decedent‘s home, she met appellant one time and that was the day he took his father to notarize the deeds.9
{¶ 32} Several witnesses also testified that on the day that the decedent purportedly executed the deeds, the decedent did not mention the transaction, although he did relate how appellant took him for a ride that day to see friends and to buy apples. The decedent, however, did not mention that he signed any deeds or met with the notary.
{¶ 33} As for the deeds themselves, the trial court aptly noted that only the decedent and
A. “I‘m asking him I guess as the notary is that his signature, and he was to the best of my recollection nodding his head in the affirmative. I don‘t know that he ever said – verbally said anything or verbally said yes, but obviously gave me assurance that this was his signature.
* * *
A. I left. It was a, you know, in-and-out deal as I assumed it would be. And I thought I was doing a favor for a friend of grandad and tax client and I‘m mistaken.” (Emphasis added.)
{¶ 34} Dennis Burga and Stanley Vollmar, both neighbors of the decedent, testified that shortly before his death they each mentioned that they were interested in buying his land, land that was later included in the deeds in question. The decedent, however, referred them to the appellee who he said would inherit that land. Once again, this does not appear to be the action of a man who, several months earlier, conveyed the subject properties to another son.
{¶ 35} In light of this evidence, we believe that the manifest weight of the evidence supports the trial court‘s conclusion that the subject deeds were indeed forged. Consequently, we may affirm the trial court‘s decision and judgment irrespective of the other theories for recovery that appellee advanced.
{¶ 36} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s assignment of error and affirm the trial court‘s judgment. Furthermore, appellant‘s second, third and fourth assignments of error have been rendered moot and will be disregarded. See
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant 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 Washington County Common Pleas Court, Probate Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to
Kline, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY: _________________________
Peter B. Abele
Presiding Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
Arguments that a trial court erred as a “matter of law” typically involve decisions on legal issues that require a de novo standard of review. See e.g. Wells Fargo Bank v. Schwarz, Cuyahoga App. No. 96641, 2012-Ohio-917 at ¶ 12; League of United Latin Am. Citizens v. Kasich, Franklin App. No. 10AP-639, 2012-Ohio-947, at ¶ 26. If applying a de novo standard of review, an appellate court affords no deference whatsoever to the trial court and will use its own judgment to determine whether the trial court erred. When an appellate court reviews for an “abuse of discretion,” the court must afford much more latitude to a trial court. An abuse of discretion requires more than a mere mistake of law. See Stammco, L.L.C. v. United Tel. Co. of Ohio, 125 Ohio St.3d 91, 926 N.E.2d 292, 2010-Ohio-1042, at ¶ 32; also see State v. Dah (Dec. 30, 1994), Vinton App. No. 94CA493. Thus, much more deference is accorded to a trial court decision under the abuse of discretion than under thе de novo standard of review. In considering whether a trier of fact‘s findings are supported by the manifest weight of the evidence, a somewhat different standard is applied. This standard is also highly deferential and an appellate court will uphold a trier of fact‘s decision if it is supported by even some competent and credible evidence. See Barkley v. Barkley (1997), 119 Ohio App.3d 155, 159, 694 N.E.2d 989; Mann v. Mann, Athens App. No. 09CA38, 2011-Ohio-1646, at ¶ 13. Thus, these concepts are not interchangeable and different issues will involve the use of different standards of review.