[Cite as Goddard v. Goddard, 192 Ohio App.3d 718, 2011-Ohio-680.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
GODDARD, :
:
Appellee, : Case No. 10CA3343
:
v. :
:
GODDARD; : Released: February 7, 2011
:
GODDARD, :
: DECISION AND JUDGMENT
Appellant. : ENTRY
_____________________________________________________________
APPEARANCES:
Southeastern Ohio Legal Services and Tammy L. Greenwald, for appellee.
The Blume Law Firm, L.L.C., and T. Kevin Blume, for appellant.
_____________________________________________________________
Per Curiam.
{¶ 1} Defendant-appellant, Mike Goddard, appeals the trial court’s
decision that declared plaintiff-appellee, Alma Goddard, the legal owner of a
piece of real estate. Appellant raises two arguments that he contends
warrant a reversal of the trial court’s decision. First, he asserts that the trial
court deprived him of his right to a jury trial. Appellant did not file a timely
answer in the action. Therefore, under Civ.R. 39(A), he waived his right to a
Scioto App. No. 10CA3343 2
jury trial. Moreover, appellant never objected to the lack of a jury trial and
readily proceeded with a bench trial, presented evidence, and cross-
examined witnesses. Under these circumstances, we conclude that appellant
waived his right to a jury trial. Appellant next argues that the trial court’s
decision is against the weight of the evidence or contrary to law.
Specifically, he contends that no evidence supports the trial court’s decision
that his brother, Carl Goddard, delivered a deed conveying the disputed
property to appellee. The record contains some competent and credible
evidence that Carl delivered the deed to appellee. Moreover, we may uphold
the trial court’s judgment on the alternate basis that the evidence fully
supports the imposition of a constructive trust over the property in appellee’s
favor. Consequently, we overrule appellant’s two assignments of error and
affirm the trial court’s judgment.
I
FACTS
{¶ 2} Appellee is the elderly mother of appellant and Carl. Before
July 1, 2002, appellee and Carl jointly owned property located on Grace
Street, in New Boston, Ohio. On July 1, 2002, appellee conveyed her
interest in the property to Carl. In return, Carl agreed to care for his mother
Scioto App. No. 10CA3343 3
for the remainder of her life and to allow her to continue to reside in the
home.
{¶ 3} In February 2007, Carl informed appellee that he had to move
from the home because he is a sexually oriented offender and the Grace
Street property sits less than 1,000 feet from a school. He advised appellee
that he wished to convey the property to appellee, solely in her name.
Appellee thus hired an attorney to prepare a quitclaim deed conveying the
property from Carl to appellee. Carl executed the quitclaim deed and
appellee gave him money to record it. Carl told appellee that he had
recorded it. However, she later learned that Carl had never recorded the
deed.
{¶ 4} In March 2007, appellee fell gravely ill and was hospitalized.
While hospitalized, she requested another son, John, to retrieve some of her
personal items from the Grace Street property. Carl refused to allow John
into the home.
{¶ 5} In April 2007, appellee learned that Carl had listed the property
for sale. Appellee later learned that Carl had transferred the home to
appellant. On May 4, 2007, appellant filed a deed that purported to transfer
the Grace Street property from Carl to appellant. Appellant moved into the
home and has not permitted appellee access to the home.
Scioto App. No. 10CA3343 4
{¶ 6} On May 16, 2007, appellee filed an amended complaint against
Carl, Carl’s wife, and appellant. She requested the court to declare that she
either has a life estate in the property or that because the May 4, 2007 deed
is invalid, she is the sole legal owner. She also asserted that Carl and his
wife breached the agreement to care for her for the rest of her life and to
allow her to live in the home. Appellee alleged that that the deed conveying
her interest to Carl is therefore invalid due to a failure of consideration.
{¶ 7} Carl filed a pro se answer and a pro se motion to dismiss.
{¶ 8} On September 12, 2008, appellee filed a motion for default
judgment against Carl’s wife, which the court subsequently granted.
{¶ 9} On September 23, 2008, appellant entered an appearance in the
action by filing a pro se “motion to dismiss default judgment” entered
against him. However, the record does not contain any evidence that the
court entered a default judgment against him.
{¶ 10} After a bench trial, the court declared appellee the sole legal
owner of the Grace Street property. The court found that (1) Carl executed a
valid deed transferring the Grace Street property to appellee but did not
record it, (2) on April 10, 2007, appellee filed an affidavit of facts relating to
title, putting any subsequent purchasers on notice that there was an issue
regarding title, (3) appellant had actual and constructive notice of the
Scioto App. No. 10CA3343 5
unrecorded deed from Carl to appellee, (4) appellant did not pay Carl for the
property, and (5) the May 4, 2007 deed is null and void. This appeal
followed.
II
ASSIGNMENTS OF ERROR
{¶ 11} Appellant raises the following assignments of error:
First Assignment of Error:
The Trial Court erred in holding a Trial to the Court and
not conducting a Jury Trial.
Second Assignment of Error:
The Judgment of the Trial Court is contrary to Law in
that there was no evidence to establish that the deed from Carl
Willard Goddard to Alma Goddard was ever delivered to the
Grantee.
III
JURY TRIAL
{¶ 12} In his first assignment of error, appellant argues that the trial
court violated his right to a jury trial. We disagree with appellant.
{¶ 13} Civ.R. 38(B) states: “Any party may demand a trial by jury on
any issue triable of right by a jury by serving upon the other parties a
demand therefor at any time after the commencement of the action and not
later than fourteen days after the service of the last pleading directed to such
Scioto App. No. 10CA3343 6
issue. Such demand shall be in writing and may be indorsed upon a pleading
of the party.”
{¶ 14} Once a party properly demands a jury, the demand may not be
withdrawn “without the consent of the parties.” Civ.R. 38(D). “Ohio case
law is clear that once any party makes a proper jury demand, the demand
applies to the entire action and all parties, regardless of which party made
the demand, and can be waived only as provided by Civ.R. 39(A).”
Jovanovski v. Kotefski, Lorain App. Nos. 07CA009203 and 07CA009223,
2008-Ohio-4773, at ¶14; see also West v. Scott (Dec. 6, 2001), Mahoning
App. No. 01CA24, 2001 WL 1568880 (stating that “any one party can
demand a jury, but all parties to the lawsuit must consent to the withdrawal
of the demand” and that the rules do “not specify that consent is only needed
from the parties who demanded a jury trial”).
{¶ 15} Further, once a party properly demands a jury, Civ.R. 39(A)
sets forth “the only ways to waive [a jury].” Soler v. Evans, St. Clair &
Kelsey (2002), 94 Ohio St.3d 432, 438, 763 N.E.2d 1169. Civ.R. 39(A) sets
forth the three situations in which the Civ.R. 38 right to a jury will not apply.
First, the right will not apply when “the parties or their attorneys of record,
by written stipulation filed with the court or by an oral stipulation made in
open court and entered in the record, consent to trial by the court sitting
Scioto App. No. 10CA3343 7
without a jury.” Civ.R. 39(A). Second, the right will not apply when “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.” Id. Third, the right will not
apply when “a party or his attorney of record either [fails] to answer or
appear for trial.” Id.
{¶ 16} In Huffer v. Cicero (1995), 107 Ohio App.3d 65, 72, 667
N.E.2d 1031, we applied Civ.R. 39(A) and concluded that a litigant’s failure
to file a timely answer constitutes a waiver of a jury trial. In Huffer, the
plaintiff had properly demanded a jury, but the defendant had not. Instead,
the defendant filed an untimely answer in which he demanded a jury. The
plaintiff subsequently requested to withdraw his jury demand and to proceed
to a bench trial. The defendant objected, but the court nonetheless permitted
the plaintiff to withdraw his jury demand.
{¶ 17} On appeal, we rejected the defendant’s assertion that the trial
court erred by failing to hold a jury trial. We explained:
We agree that generally when one party has requested a
trial by jury, a trial by jury must be granted unless both parties
consent to try the action before the court. See Civ.R. 38(D);
Civ.R. 39(A) and Commentary. However, Civ.R. 39(A) also
states in part that: “The failure of a party or his attorney of
record either to answer or appear for trial constitutes a waiver
of trial by jury by such party and authorizes submission of all
issues to the court.”
Scioto App. No. 10CA3343 8
In this case, [the defendant] failed to file a timely answer
to the complaint. Further, when [the defendant] finally did
submit an answer over six months later, [the defendant] failed
to first obtain leave of court and make a showing of “excusable
neglect” as mandated by Civ.R. 6(B). See Civ.R. 6(B)(2);
Miller v. Lint (1980), 62 Ohio St.2d 209, 16 O.O.3d 244, 404
N.E.2d 752; McDonald v. Berry (1992), 84 Ohio App.3d 6, 616
N.E.2d 248. Because [the defendant] never filed a valid answer
in this case, the trial court correctly found that [the defendant]
waived his right to a jury trial under Civ.R. 39(A). As a result,
we overrule [the defendant]’s first cross-assignment of error.
Id. at 72.
{¶ 18} The same analysis applies in the case at bar. Appellee
demanded a jury trial. Appellant never filed a proper answer. Even if we
construed his pro se “motion to dismiss” as an answer, it was untimely.
Thus, because appellant did not file a timely answer in the action, he waived
his right to a jury trial under Civ.R. 39(A).1
{¶ 19} Additionally, appellant never once objected to the trial court
proceeding without a jury. Several courts have held that a party may not
1
While we might question whether appellant would be entitled to a jury trial in this action (i.e., is the
action legal or equitable; is it for the recovery of specific real estate?), because we have concluded that
appellant waived any right he may have, we do not find it necessary to determine whether he would be
entitled to a jury trial in this action. We do note, however, that the authors of Ohio Civil Practice suggest
that the legal-equitable distinction does not apply, but rather, the question is simply whether the action is,
for example, one for the recovery of specific real estate. 2 Klein & Darling, Civil Practice (2d Ed.2004),
Section 38:13; see R.C. 2311.04 (“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”). Despite the authors’ suggestion, it appears that
the majority of Ohio appellate courts continue to apply the legal-equitable distinction. See Parkview Fed.
Sav. Bank v. Grimm, Cuyahoga App. No. 93899, 2010-Ohio-5005; Takis, L.L.C. v. C.D. Morelock
Properties, Inc., 180 Ohio App.3d 243, 2008-Ohio-6676, 905 N.E.2d 204; Tipp City v. Watson, Miami
App. No. 02CA43, 2003-Ohio-4836; Rutledge v. Wallace, Carroll App. No. 02AP-770, 2002-Ohio-5372;
McCarley v. O.O. McIntyre Park Dist. (Feb. 11, 2000), Gallia App. No. 99CA07, 2000 WL 203997;
Ashmore v. Eversole (Nov. 29, 1996), Montgomery App. No. 15672, 1996 WL 685568; First Natl. Bank of
Southwestern Ohio v. Miami Univ. (1997), 121 Ohio App.3d 170, 180, 699 N.E.2d 523.
Scioto App. No. 10CA3343 9
stand idly by while the court conducts a bench trial and then complain on
appeal that the court should have held a jury trial. The leading Ohio case
adopting this rule appears to be Nenadal v. Landerwood Co. (May 12,
1994), Cuyahoga App. No. 65428, 1994 WL 189375. In reaching its
holding, the Nenadal court looked first to federal cases construing the
analogous federal rule and observed that the federal courts “have held that
the right to a jury may be waived by failing to object to a bench trial and
subsequently fully participating in the trial.” Id. at *4, citing Royal Am.
Managers, Inc. v. IRC Holding Corp. (C.A.2, 1989), 885 F.2d 1011, 1018;
Root v. Consol. Freightways (C.A.6, 1987), 835 F.2d 879; United States v.
1966 Beechcraft Aircraft Model King Air (C.A.4, 1985), 777 F.2d 947, 950-
951. Nenadal further recognized that the federal courts hold that the parties
may waive the right to a jury trial through their conduct. Id., citing 9 C.
Wright & A. Miller, Federal Practice and Procedure (1971), Section 2321.
{¶ 20} The Nenadal court’s reasoning further rested upon the well-
settled principle that “a party waives his right to raise for the first time on
appeal that error which was not raised at the trial below.” Id. The court
explained that it “would be ‘patently unfair’ and, ‘in effect, [an] “ambush [of
the] trial judge” on appeal’ if appellant were allowed ‘to lodge an early
demand for a jury,’ participate in a bench trial without objection, and then
Scioto App. No. 10CA3343 10
assign as error the failure to honor the jury demand.” Id., quoting Royal,
885 F.2d at 1018.
{¶ 21} The Eleventh District Court of Appeals applied this same rule
in Abbe Family Found. & Trust v. Portage Cty. Sheriff, Portage App. No.
2005-P-0060, 2006-Ohio-2497. In that case, the court held: “A party may
waive his or her right to a jury trial, even after filing a jury demand, by
participating in a trial before the court without objecting to the lack of a
jury.” Id. at ¶47, citing Foremost Ins. Co. v. Gimbel Agency, Inc. (Aug. 29,
1997), Portage App. No. 96-P-0203, 1997 WL 585941; Nenadal, 1994 WL
189375; and Cavanaugh Bldg. Corp. v. Liberty Elec. Co. (Apr. 28, 1999),
Summit App. No. 19146, 1999 WL 247219. The Abbe court noted that the
litigants could have objected, but failed to do so. The court thus concluded
that the litigants were “estopped from alleging this error on appeal as it
could have been addressed by the trial court at an earlier stage.” Id. at ¶48;
see also Toma v. Toma, Cuyahoga App. No. 82118, 2003-Ohio-4344. But
see Carl Sectional Home, Inc. v. Key Corp. (1981), 1 Ohio App.3d 101, 439
N.E.2d 915 (holding that a properly demanded jury trial cannot be waived
by silence).
{¶ 22} Similarly, in the case at bar, appellant participated, without
objection, in a bench trial and never once complained about the lack of a
Scioto App. No. 10CA3343 11
jury. He could have objected at any time but did not. Therefore, he is
estopped from arguing on appeal that the trial court should have held a jury
trial.
{¶ 23} Accordingly, based upon the foregoing reasons, we overrule
appellant’s first assignment of error.
IV
{¶ 24} In his second assignment of error, appellant argues that the trial
court’s judgment is against the manifest weight of the evidence or contrary
to law because appellee did not present any evidence to establish an essential
element of her claim. Specifically, appellant asserts that appellee failed to
present any evidence that Carl delivered the 2007 deed to her. Appellant
contends that in the absence of that evidence, the trial court could not have
concluded that appellee is the legal owner of the Grace Street property.
A
FAILURE TO REQUEST FINDINGS OF FACT AND CONCLUSIONS
OF LAW
{¶ 25} Appellant did not request the trial court to issue Civ.R. 52
findings of fact and conclusions of law. Moreover, the trial court did not
outline the exact reasons underlying its decision. However, in the absence
Scioto App. No. 10CA3343 12
of a proper Civ.R. 522 request for findings of fact and conclusions of law, it
had no independent duty to do so. The failure to request findings of fact and
conclusions of law ordinarily results in a waiver of the right to challenge the
trial court’s lack of an explicit finding concerning an issue. See Pawlus v.
Bartrug (1996), 109 Ohio App.3d 796, 801, 673 N.E.2d 188; Wangugi v.
Wangugi (Apr. 12, 2000), Ross App. No. 2531, 2000 WL 377971; Ruby v.
Ruby (Aug. 11, 1999), Coshocton App. No. 99CA4, 1999 WL 668556.
When a party fails to request findings of fact and conclusions of law, we
ordinarily presume the regularity of the trial court proceedings. See, e.g.,
Bunten v. Bunten (1998), 126 Ohio App.3d 443, 447, 710 N.E.2d 757; see
also Cherry v. Cherry (1981), 66 Ohio St.2d 348, 356, 421 N.E.2d 1293;
Security Natl. Bank & Trust Co. v. Springfield City School Dist. Bd. of Edn.
(Sept. 17, 1999), Clark App. No. 98-CA-104, 1999 WL 812372; Donese v.
Donese (Apr. 10, 1998), Green App. No. 97-CA-70, 1998 WL 165012. This
means that we generally must presume that the trial court applied the law
correctly and must affirm if some evidence in the record supports its
judgment. See, e.g., Bugg v. Fancher, Highland App. No. 06CA12, 2007-
Ohio-2019, at ¶10, citing Allstate Fin. Corp. v. Westfield Serv. Mgt. Co.
(1989), 62 Ohio App.3d 657, 577 N.E.2d 383; see also Yocum v. Means,
2
Civ.R. 52 states: “When questions of fact are tried by the court without a jury, judgment may be general
for the prevailing party unless one of the parties in writing requests otherwise * * * in which case, the court
shall state in writing the conclusions of fact found separately from the conclusions of law.”
Scioto App. No. 10CA3343 13
Darke App. No. 1576, 2002-Ohio-3803, at ¶ 7 (“The lack of findings
obviously circumscribes our review”). As the court explained in Pettet v.
Pettet (1988), 55 Ohio App.3d 128, 130, 562 N.E.2d 929:
[W]hen separate facts are not requested by counsel
and/or supplied by the court the challenger is not entitled to be
elevated to a position superior to that he would have enjoyed
had he made his request. Thus, if from an examination of the
record as a whole in the trial court there is some evidence from
which the court could have reached the ultimate conclusions of
fact which are consistent with [its] judgment the appellate court
is bound to affirm on the weight and sufficiency of the
evidence. The message is clear: If a party wishes to challenge
the * * * judgment as being against the manifest weight of the
evidence he had best secure separate findings of fact and
conclusions of law. Otherwise his already “uphill” burden of
demonstrating error becomes an almost insurmountable
“mountain.”
See also Bugg; McCarty v. Hayner, Jackson App. No. 08CA8, 2009-Ohio-
4540, at fn. 1. Consequently, in the case at bar, we will presume the
regularity of the trial court proceedings, in the absence of evidence to the
contrary.
B
STANDARD OF REVIEW
{¶ 26} We will not reverse a trial court’s judgment in a civil action
unless it is against the manifest weight of the evidence. A trial court’s
judgment is not against the manifest weight of the evidence so long as some
competent and credible evidence supports it. See, e.g., C.E. Morris Co. v.
Scioto App. No. 10CA3343 14
Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d
578, syllabus. In determining whether a trial court’s judgment is against the
manifest weight of the evidence, a reviewing court must not reweigh the
evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 79-80,
461 N.E.2d 1273. Under this highly deferential standard of review, we do
not decide whether we would have come to the same conclusion as the trial
court. Amsbary v. Brumfield, 177 Ohio App.3d 121, 2008-Ohio-3183, 894
N.E.2d 71, at ¶11. Instead, we must uphold the judgment so long as the
record contains “some evidence from which the trier of fact could have
reached its ultimate factual conclusions.” Id., citing Bugg v. Fancher, 2007-
Ohio-2019, at ¶9. Moreover, we presume that the trial court’s findings are
correct because the trial court “is best able to view the witnesses and observe
their demeanor, gestures, and voice inflections, and use those observations in
weighing the credibility of the proffered testimony.” See, e.g., Seasons Coal
Co. at 80; Jones v. Jones, Athens App. 07CA25, 2008-Ohio-2476, at ¶18.
This means that the trier of fact is free to believe all, part, or none of the
testimony of any witness who appears before it. Rogers v. Hill (1998), 124
Ohio App.3d 468, 470, 706 N.E.2d 438; Stewart v. B.F. Goodrich Co.
(1993), 89 Ohio App.3d 35, 42, 623 N.E.2d 591. Furthermore, an appellate
court should not substitute its judgment for that of the trial court when the
Scioto App. No. 10CA3343 15
record contains competent, credible evidence going to all the essential
elements of the case. Seasons Coal.
C
DELIVERY OF DEED
{¶ 27} In the case at bar, the trial court determined that Carl “executed
a valid deed transferring” the Grace Street property but that he failed to
record it. Appellant claims that the trial court erred by finding that the deed
validly transferred the property because the record contains no evidence that
Carl delivered the deed to appellee. While appellant may be correct that
there is no direct evidence that Carl physically delivered the deed to
appellee, the record contains some competent and credible evidence that
Carl “delivered” the deed.
{¶ 28} A deed must be delivered to be operative as a transfer of
ownership of land. Kniebbe v. Wade (1954), 161 Ohio St. 294, 297, 118
N.E.2d 833. “Delivery imports transfer of possession or the right to
possession of the instrument with the intent to pass title as a present transfer.
It is essential to delivery that there not only be a voluntary delivery, but there
must also be an acceptance thereof on the part of the grantee, with the
mutual intention of the parties to pass title to the property described in the
deed.” (Emphasis deleted.) Id. at 297. If the grantee possesses the deed,
Scioto App. No. 10CA3343 16
then a presumption of delivery exists. See id. However, manual delivery is
not essential. See Dukes v. Spangler (1878), 35 Ohio St. 119; Lessee of
Shirley v. Ayres (1846), 14 Ohio 307, 45 Am.Dec. 546, paragraph one of the
syllabus (“It is not essential to the validity of a deed, that it be actually
delivered to, or ever pass into the hands of the, grantee”). Instead, “ ‘the fact
of delivery may be found from the acts of the parties preceding, attending,
and subsequent to the signing, sealing, and acknowledgment of the
instrument.’ ” In re Kusar’s Estate (1965), 5 Ohio Misc. 23, 33, 211 N.E.2d
535, quoting Dukes at paragraph one of the syllabus.
{¶ 29} Recording a deed perfects delivery. See Candlewood Lake
Assn. v. Scott (Dec. 27, 2001), Franklin App. No. 01AP-631, 2001 WL
1654288, citing Romaniw-Dubas v. Polowyk (Aug. 10, 2000), Cuyahoga
App. No. 75980, 2000 WL 1144784. However, “a deed does not have to be
recorded to pass title. Whether or not recorded, a deed in Ohio passes title
upon its proper execution and delivery, so far as the grantor is able to convey
it.” Wayne Bldg. & Loan of Wooster v. Yarborough (1967), 11 Ohio St.2d
195, 212, 228 N.E.2d 841. Furthermore, “[a]ctual manual delivery of a deed
is not always required to effectuate the grantor’s intention to deliver; the
filing and recording thereof being prima facie evidence of delivery, in the
absence of any showing of fraud.” Behymer v. Six, Morgan CA02-006,
Scioto App. No. 10CA3343 17
2002-Ohio-6403, at ¶13, citing Frank v. Barnes (1931), 40 Ohio App. 328,
337, 178 N.E. 419, citing Lessee of Mitchell v. Ryan, 3 Ohio St. 377.
{¶ 30} In the case at bar, the trial court could have determined that
appellee’s testimony sufficiently demonstrated that Carl delivered the deed
to her. Appellee testified that Carl executed the deed and showed it to her.
She stated that she gave him money to record the deed and that he informed
her that he had recorded it. Based upon this testimony, and in the absence of
contrary evidence, the trial court could have found that Carl had a present
intention to transfer the property and thus, that he delivered the deed. The
record does not contain any direct evidence of Carl’s intent. Rather, the
record contains only appellee’s testimony as to what Carl told her upon
execution of the deed. Simply because Carl did not record the deed does not
mean that he did not deliver the deed. Moreover, a valid delivery does not
require the grantor to physically deliver the deed to the grantee. Here, Carl
led appellee to believe that he had effected a valid transfer of the property.
Because Carl did not testify at trial, his precise intention at the moment he
executed the deed is unknown, but appellee’s testimony sufficiently
demonstrates that he possessed a present intention to transfer the property to
her.
D
Scioto App. No. 10CA3343 18
CONSTRUCTIVE TRUST
{¶ 31} Here, even if the foregoing facts do not sufficiently show that
Carl delivered the deed to appellee, we may uphold the trial court’s
judgment on an alternate basis. See, e.g., State ex rel. Galloway v. Cook,
126 Ohio St.3d 332, 2010-Ohio-3780, 933 N.E.2d 807, at ¶4, quoting State
ex rel. Swain v. Bartleson, 123 Ohio St.3d 125, 2009-Ohio-4690, 914
N.E.2d 403, ¶1 (“ ‘We will not reverse a correct judgment simply because
some or all of a lower court’s reasons are erroneous’ ”); State ex rel.
McGrath v. Ohio Adult Parole Auth., 100 Ohio St.3d 72, 2003-Ohio-5062,
796 N.E.2d 526, at ¶8 (“Reviewing courts are not authorized to reverse a
correct judgment on the basis that some or all of the lower court’s reasons
are erroneous”). The evidence demonstrates that even if appellant validly
held legal title, appellee is entitled to a constructive trust over the property
and an order directing appellant to convey the property to her.
{¶ 32} A constructive trust is a remedial device used to prevent fraud
and unjust enrichment. See Estate of Cowling v. Estate of Cowling, 109
Ohio St.3d 276, 2006-Ohio-2418, 847 N.E.2d 405, at ¶19, citing Ferguson v.
Owens (1984), 9 Ohio St.3d 223, 9 OBR 565, 459 N.E.2d 1293, and Aetna
Life Ins. Co. v. Hussey (1992), 63 Ohio St.3d 640, 642, 590 N.E.2d 724.
The Ferguson court further described it as follows:
Scioto App. No. 10CA3343 19
“A constructive trust is the formula through which the
conscience of equity finds expression. When property has been
acquired in such circumstances that the holder of the legal title
may not in good conscience retain the beneficial interest, equity
converts him into a trustee. * * * A court of equity in decreeing
a constructive trust is bound by no unyielding formula.”
Ferguson at 225-226, quoting Beatty v. Guggenheim Exploration Co.
(1919), 225 N.Y. 380, 386, 389, 122 N.E. 378; see also Cosby v. Cosby, 96
Ohio St.3d 228, 2002-Ohio-4170, 773 N.E.2d 516. “ ‘[A] constructive trust
may also be imposed where it is against the principles of equity that the
property be retained by a certain person even though the property was
acquired without fraud.’ ” Estate of Cowling at ¶ 19, quoting Ferguson at
226, citing 53 Ohio Jurisprudence 2d (1962) 578-579, Trusts, Section 88; V
Scott on Trusts (3d Ed.1967) 3412, Section 462. “ ‘By imposing a
constructive trust, a court orders a person who owns legal title to property to
hold or use the property for the benefit of another or to convey the property
to another to avoid unjust enrichment.’ ” Bishop v. Bishop, 188 Ohio
App.3d 98, 934 N.E.2d 420, 2010-Ohio-2958, at ¶17, quoting Groza-Vance
v. Vance, 162 Ohio App.3d 510, 2005-Ohio-3815, 834 N.E.2d 15, at ¶15.
“Ordinarily a constructive trust arises without regard to the intention of the
person who transferred the property.” Bilovocki v. Marimberga (1979) 62
Ohio App.2d 169, 172, 405 N.E.2d 337, citing V Scott, Section 404.2.
However, “[t]he duty to convey the property may arise because it was
Scioto App. No. 10CA3343 20
acquired through fraud, duress, undue influence or mistake, or through a
breach of a fiduciary duty, or through the wrongful disposition of another's
property. The basis of the constructive trust is the unjust enrichment which
would result if the person having the property were permitted to retain it.”
Bilovocki v. Marimberga 171-172, citing V Scott, Section 404.2. “ ‘In
applying the theories of constructive trusts, courts also apply the well known
equitable maxim, “equity regards [as] done that which ought to be done.” ’ ”
Estate of Cowling v. Estate of Cowling, 109 Ohio St.3d 276, 2006-Ohio-
2418, 847 N.E.2d 405, at ¶19, quoting Ferguson, 9 Ohio St.3d at 226, 9
OBR 565, 459 N.E.2d 1293, quoting V Scott at 3412, Section 462.
{¶ 33} In the case at bar, appellee testified that Carl signed the deed
and that he showed her a copy of the signed deed. She further testified that
she gave Carl money to record the deed and that he told her he had recorded
it. Carl’s failure to actually record the deed might show that (1) his original
intention was fraudulent, (2) after he transferred the property to appellee, he
changed his mind, or (3) he forgot to record the deed. In any event, his
actions led appellee to believe that he intended to transfer the property to her
and that he had properly recorded the deed. However, his subsequent
transfer of the property to appellant lends support to the theory that Carl
intended to defraud appellee. Carl obviously knew that appellee believed
Scioto App. No. 10CA3343 21
that she held title to the property when he attempted to transfer the property
to appellant. And the trial court found that appellant had actual and
constructive notice that Carl had an unrecorded deed that conveyed the
property to appellee. Carl’s and appellant’s actions suggest that they
attempted to defraud appellee of property that rightfully belongs to her. It
would be against the principles of equity if appellant were to retain the
property, even if his actions were not fraudulent. Equity dictates that
appellee be declared the rightful owner of the Grace Street property.
Consequently, even if the facts do not establish “delivery,” we can uphold
the trial court’s judgment on the alternate basis that the trial court could have
determined to impose a constructive trust and enter an order directing
appellant to convey the property to appellee. The trial court undoubtedly
reached the correct result, and we will not reverse its judgment, even
assuming its reasoning was erroneous.
{¶ 34} Accordingly, based upon the foregoing reasons, we overrule
appellant’s second assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
MCFARLAND, J., concurs.
HARSHA, P.J., and KLINE, J., concur separately.
__________________
Scioto App. No. 10CA3343 22
HARSHA, Presiding Judge, concurring:
{¶ 35} I concur in judgment and opinion regarding the first assignment
of error and in Judge Kline’s disposition of the second assignment of error.
__________________
KLINE, Judge, concurring:
{¶ 36} I concur in judgment and opinion but write separately to
explain my reasoning for overruling appellant’s second assignment of error.
I would overrule this second assignment of error based only on the
competent, credible evidence establishing the constructive delivery of the
deed.
{¶ 37} The narrow question is whether the following facts can
demonstrate constructive delivery of a deed. The mother transferred the
property to the son in exchange for her lifetime care. The son moved in with
his mother but eventually could not carry out his end of the bargain. So, he
decided to transfer the property back to the mother. The mother had her
lawyer draw up a quitclaim deed. The lawyer did so and brought the deed to
the house for signature. But the son was not present. The lawyer left, and
the son later came to the lawyer’s office and signed the deed. The son then
brought the deed home and showed the executed deed to the mother. The
mother said, “Why [don’t you] let [my attorney] go ahead and record it for
Scioto App. No. 10CA3343 23
me.” The son replied, “Well, I’ll take it down and do it.” The mother then
gave the son $15. The record is not clear on whether this payment was a fee
to be paid to the son or to pay for the filing of the deed with the county
recorder’s office.
{¶ 38} In either event, the trial court could have easily concluded that
constructive delivery had taken place. According to the mother’s testimony
(which the court as the trier of fact was entitled to credit), the son in fact
agreed to become her agent for the filing of the deed with the recorder’s
office. Even though the deed did not change hands and enter into the
mother’s possession, nonetheless, delivery was perfected. He no longer
possessed the deed on his own behalf, but recognized the mother’s right to
the deed by taking the money and agreeing to file it.
{¶ 39} In my view, these competent, credible facts, under the cases
cited in the majority opinion, are sufficient to demonstrate constructive
delivery of the deed.
{¶ 40} Thus, on this basis, I concur in judgment and opinion.
__________________
Goddard v. Goddard
Court: Ohio Court of Appeals
Date filed: 2011-02-07
Citations: 2011 Ohio 680, 192 Ohio App. 3d 718, 2011 WL 542227
Copy CitationsCombined Opinion