CHRISTOPHER McKIM, et al. v. LYLE FINLEY, II
Case No. 13CA5
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
September 5, 2014
2014-Ohio-4012
DECISION AND JUDGMENT ENTRY
COUNSEL FOR APPELLANT: Lyle Finley II, 1119 Cisler Drive, Marietta, Ohio 45750 Pro Se1
COUNSEL FOR APPELLEES: Robert Ellis, Ellis & Ellis, L.P.A., 328 Fourth Street, Marietta, Ohio 45750
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 9-5-14
PER CURIAM.
{¶ 1} This is an appeal from a Washington County Common Pleas Court judgment in favor of Christopher McKim and Angela McKim, plaintiffs below and appellees herein, on their claim against Lyle Finley, II, defendant below and appellant herein. Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“PRESIDING JUDGE LANE ERRED BY PROCEEDING WITH A JUDGE’S CONFERENCE TRIAL OVER OBJECTIONS BY
SECOND ASSIGNMENT OF ERROR:
“PRESIDING JUDGE LANE ERRED BY DENYING A NEW JURY TRIAL.”
THIRD ASSIGNMENT OF ERROR:
“PRESIDING JUDGE LANE ERRED BY IGNORING AND FAILURE TO WEIGHT THE FRAUDULENT NATURE AND TESTIMONY OF THE PLAINTIFFS AND WITNESSES IN HIS RULING AND JUDGMENT.”
FOURTH ASSIGNMENT OF ERROR:
“PRESIDING JUDGE LANE ERRED IN TRANSFERRING ALL LAND AND MINERAL RIGHTS TO THE PLAINTIFFS WITHOUT REGARD TO THE LOSS OF THE ORIGINAL OWNER (DEFENDANT).”
FIFTH ASSIGNMENT OF ERROR:
“PRESIDING JUDGE LANE HAS ERRED BY DENYING STAY OF RULING.”
SIXTH ASSIGNMENT OF ERROR:
“PRESIDING JUDGE LANE HAS ERRED BY INCLUDING PREJUDICE IN HIS FINAL RULING.”
SEVENTH ASSIGNMENT OF ERROR:
“PRESIDING JUDGE LANE HAS ERRED BY ASSOCIATING THE LAND CONTRACT WITH THE OPTION BEING SIGNED THE SAME DAY AS REASON TO ENFORCE ONE FROM THE OTHER (AN EXTRA LEGAL TRICK) IN THIS CASE.”
EIGHTH ASSIGNMENT OF ERROR:
“PRESIDING JUDGE LANE HAS ERRED BY ORDERING THE DEFENDANT TO PAY ALL COURT COSTS BECAUSE THE DEFENDANT IS BEING PAID MONEY AS TO THE LAND CONTRACT.”
{¶ 3} Contemporaneously, the parties entered into another contract whereby appellees acquired the option to purchase an additional fifty-two acres for $85,000. The option contract made no reservation whatsoever, and specified that appellant would convey the subject premises “free and clear of all liens and encumbrances whatsoever except taxes and assessments . . . restrictions of record, easements of record and zoning ordinances.”
{¶ 4} Appellees filed the instant action and alleged, inter alia, that they had notified appellant of their desire to exercise the option, but that appellant refused to honor the contract. The appellees asked for, among other things, an order that appellant specifically perform under the contract and convey to them the fifty two acres.
{¶ 5} Appellant denied liability and stated that the appellees apparently expected the option contract to include a conveyance of mineral rights, something that appellant claimed that he did not agree to sell. Appellant also counterclaimed and alleged fraud, “unclean hands” and damages as a result of his inability to lease mineral rights that he had allegedly reserved “in the deal made with” appellees. Appellant asked that the contract either be reformed or declared null
{¶ 6} At the bench trial, it was uncontroverted that appellant entered into the option contract. The pertinent question is whether appellant reserved, or intended to reserve, the mineral rights from the land that he promised to convey if the appellees exercised the option. However, no mention of any reservation was included in the contract, and the only evidence on this issue was appellant’s own statements and the context of the questions that he asked other witnesses.
{¶ 7} Appellees both testified that when the contract was executed, no discussion occurred about the reservation of mineral rights. Appellant even called his own attorney, Anita Newhart, who prepared the option contract. Newhart testified that she had no recollection that appellant wanted to retain the mineral rights, nor did she make such any notation in her notes of her conversation(s) with appellant. George Litman, Attorney Newhart’s assistant, also testified and stated that he remembered no mention of any reservation of mineral rights. Nevertheless, in his closing argument appellant maintained that the transaction was fraudulent. Appellant further asserted that (1) he mistakenly allowed appellees to “weasel into [his] life and property,” (2) he felt he was “taken advantage of,” (3) if appellees won their case, he would “lose big time,” (4) he had no health insurance, and (5) he could “plead dementia [and] Alzheimer’s as much as anybody in this room.”
{¶ 8} At the conclusion of the trial the court found in favor of the appellees and ordered appellees to pay appellant the agreed sum and appellant to convey the land. The court also
I
{¶ 9} Before we turn to the merits of the assignments of error, we first address a few procedural issues. Appellant is representing himself on appeal pro se, just as he did in the trial court.4 This Court will afford pro se litigants some degree of leniency on appeal. See Ogle v. Kroger Co., 4th Dist. Hocking No. 13CA22, 2014-Ohio-1099, at ¶14; Scioto Cty. Bd. of Commrs. Revolving Loan Fund Bd. v. McDermott Industries, L.L.C., 4th Dist. Scioto No. 12CA3504, 2014-Ohio-240, at ¶14. Here, many irregularities and peculiarities appear in appellant‘s brief. For example, appellant (1) cites no legal authority to support any of his assignments of error, and (2) does not include separate arguments for each individual assignment of error. See
II
{¶ 10} Appellant’s first assignment of error asserts that the trial court deprived him of a jury trial. However, as the trial court correctly pointed out in the January 7, 2013 transcript, appellant did not demand a jury trial in either his answer and counterclaim or in his amended answer and counterclaim.
{¶ 11}
III
{¶ 13} Appellant asserts in his second assignment of error that the trial court erred by denying him a “new jury trial.” To begin, we note the obvious point that appellant cannot have a “new jury trial” when he had no “jury trial” in the first place. The case sub judice was conducted as a bench trial, not a jury trial. Another problem with the assignment of error is that we find no motion for new trial in the record, nor do we find any notation on the docket that appellant filed any such motion. However, an “Exhibit B” in appellant’s brief is a trial court decision to overrule appellant’s “Motion for a New Trial.” We thus assume that appellant actually filed the motion.
{¶ 14} The granting of a
{¶ 15} In denying appellant a new trial, the trial court noted that appellant’s motion was “one sentence” long and “provide[d] no detail” as to how fraud was perpetrated or how he was prejudiced. It also appears that appellant wanted to submit “telephone records,” but the court noted that appellant had these records prior to trial thereby negating any argument that the material is newly discovered evidence. See
IV
{¶ 16} We will jointly consider appellant’s third and fourth assignments of error because they appear to be closely related. Appellant contends that the trial court erred by (1) failing to properly “weight” the evidence, and (2) in “transferring all land and mineral rights to [appellees] without regard to the loss of the original owner.” In short, appellant contends that the trial court “seems to have little empathy for the minority in his courtroom[.]” We are not persuaded.
{¶ 17} To begin, it is well established that the Parol Evidence Rule does not allow the introduction of evidence to contradict the terms of a written contract. See Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St.3d 546, 2009-Ohio-3554, 913 N.E.2d 410, at ¶13; Galmish v. Cicchini, 90 Ohio St.3d 22, 27, 734 N.E.2d 782 (2000). Once again, the option contract in this case made no exception for mineral rights. Appellant’s contention that this exception was actually the parties’ intent would violate that rule.
{¶ 18} There are, of course, many exceptions to the Parol Evidence Rule. One is when the existence of fraud can be shown. See Shumaker v. Hamilton Chevrolet, Inc., 184 Ohio
{¶ 19} Even assuming, arguendo, that appellant could provide testimony to establish each and every element, to the extent that he claims the trial court erroneously disregarded it, we, as a court of review, will not reverse a trial court‘s finding if supported by sufficient competent and credible evidence. Hardert v. Neumann, 4th Dist. Adams No. 13CA977, 2014-Ohio-1770, at ¶18; See Salmons v. Jones, 4th Dist. Lawrence No. 13CA11, 2013–Ohio– 5417, at ¶11. Further, it is well-settled that evidence weight and witness credibility are issues that a trier of fact must determine. See State v. Frazier, 115 Ohio St.3d 139, 873 N.E.2d 1263, 2007–Ohio– 5048, at ¶ 106; State v. Dye, 82 Ohio St.3d 323, 329, 695 N.E.2d 763 (1998).
{¶ 20} In the case sub judice, the trial court, sitting as the trier of fact, could choose to
{¶ 21} Appellant testified that he has been offered lucrative royalty or lease agreements for the mineral rights. However, Appellee Angela McKim testified that she and her husband had no interest at all in the oil and gas reservoirs. In fact, McKim testified that she wanted to prohibit any “fracking” of the land and, instead, operate an organic farm. The resolution of this conflicting testimony is reserved for the trier of fact who apparently discounted appellant’s testimony and believed the appellees.
{¶ 22} More important, appellant’s own witnesses also appear to negate his contention of fraud. Appellant’s own counsel, who prepared the option contract, and her assistant both testified that they had no recollection of any discussion concerning the mineral rights. Once, again, the trial court apparently concluded that appellant’s testimony was not credible.
{¶ 23} Insofar as appellant’s contention that the trial court “seem[ed] to have little empathy for the minority in his courtroom[,]” this argument has no merit. A contract is a contract. The enforceability of a contract depends no more on a person’s “minority” status than it does on the color of one’s eyes. Also, judicial rulings must be based on the law rather than
{¶ 24} We acknowledge that at various points during questioning, appellant asked witnesses if they were aware of negative financial aspects the option contract would inflict on him. Again, this is irrelevant. A contract is either enforceable or it is not. Here, the trial court found no credible evidence to show that the contract is unenforceable and nothing in the law prohibits land contract vendors from entering contracts that benefit the objectives of land contract vendees more than themselves.
{¶ 25} Insofar as appellant’s claim that the trial court erred in its order that he transfer the real estate, this is the logical remedy in an action requesting specific performance.
{¶ 26} For all of these reasons, we find no merit to appellant’s third and fourth assignments of error and they are hereby overruled.
V
{¶ 27} Appellant’s fifth assignment of error concerns the trial court’s denial of his motion to stay the proceedings pending appeal. Appellant’s motion for stay is part of the record, but the trial court’s decision is not. Nevertheless, that decision is attached to appellant’s brief as “Exhibit C.”
{¶ 28} “When an appeal is taken the appellant may obtain a stay of execution of a judgment or any proceedings to enforce a judgment by giving an adequate supersedeas bond.”
{¶ 29} For all of these reasons, we hereby overrule appellant‘s fifth assignment of error.
VI
{¶ 30} Appellant’s sixth assignment of error asserts that the trial court judge erred by including “prejudice in his final ruling.” Absent a more specific explanation of this assignment of error, we assume that appellant refers to the trial court‘s dismissal of his counterclaim “with prejudice.”
{¶ 31} To dismiss a claim “with prejudice” simply means that a judgment is conclusive of the rights of parties and the claim cannot be asserted again. Black’s Law Dictionary, 1438 (5th Ed. 1979). More simply, in the context of this case the trial court ruled against appellant‘s claims and he cannot reassert them. There is no error in such ruling in that we have already concluded that competent and credible evidence supports the trial court’s judgment.
{¶ 32} We hasten to add that the phrase “dismissed with prejudice” does not mean that the trial court displayed any “bias” or “partiality” against appellant, as he suggests in his brief. Rather, this phrase is simply legal terminology regarding the final resolution of the case. Thus, appellant’s sixth assignment of error is without merit and is hereby overruled.
VII
{¶ 33} We readily admit that the gist of appellant’s seventh assignment of error eludes us. Fortunately, Ohio law does not require us to construct an argument. The argument appellant makes in his brief is that the trial court erred by its association of “the land [installment] contract with the option being signed the same day.” Appellant contends that this
{¶ 34} Allegations regarding the land installment contract are part of the original complaint. It is not improper to make a reference to that instrument when deciding the case. We also fail to see how this event is a “legal trick,” nor do we perceive how the trial court’s wording prejudiced appellant in any way.
{¶ 35} The option contract, by its terms, is enforceable and no impediments exist to such enforcement. The terms of that contract have been satisfied and, as the trial court correctly ruled, both parties must now honor their obligations. For all of these reasons, we hereby overrule appellant‘s seventh assignment of error.
VIII
{¶ 36} Appellant’s eighth assignment of error involves the trial court’s order that he pay court costs. Appellant appears to argue that the only reason the court ordered him to pay costs is because he is to receive monies from appellees pursuant to the option contract. This is not true.
{¶ 37}
{¶ 38} Appellant cites no rule or statute that allows him to recover costs in this instance. We hereby overrule appellant‘s eighth assignment of error for these reasons.
{¶ 39} Having reviewed all errors that appellant assigned and argued, we hereby affirm the trial court‘s judgment.
CHRISTOPHER McKIM, et al. v. LYLE FINLEY, II
Case No. 13CA5
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
September 5, 2014
2014-Ohio-4012
It is ordered that the judgment be affirmed and that appellees collect of appellant all 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 to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J., Harsha, J. & Hoover, J.: Concur in Judgment & Opinion
For the Court
BY: _________________________
Peter B. Abele
Presiding Judge
BY: _________________________
William H. Harsha, Judge
BY: _________________________
Marie Hoover, Judge
NOTICE TO COUNSEL
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.