[Cite as Purcell v. Schaefer, 2014-Ohio-4894.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
JEFFREY T. PURCELL, et al., :
Plaintiffs-Appellants, : CASE NO. CA2013-09-007
: OPINION
- vs - 11/3/2014
:
MARK SCHAEFER, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 10CV028546
Jane E. Schreyer, 100 West Main Street, Eaton, Ohio 45230, for plaintiffs-appellants, Jeffrey
T. and Stephanie Purcell
The Hobbs Law Office, H. Steven Hobbs 119 Commerce Street, P.O. Box 489, Lewisburg,
Ohio 45338, for defendants-appellees, Mark Schaefer and Northcreek Crossing, Inc.
PIPER, J.
{¶ 1} Plaintiffs-appellants, Jeffrey and Stephanie Purcell, appeal from a decision in
the Preble County Court of Common Pleas granting judgment in favor of defendants-
appellees, Mark Schaefer and his company Northcreek Crossing, Inc., following a jury trial.
For the reasons detailed below, we affirm.
{¶ 2} This case arises from a real estate transaction for real property located at 103
Preble CA2013-09-007
Megan Trail, Lewisburg, Ohio located in Preble County. In short, appellants purchased a
manufactured home from appellees that was too big for the lot and in violation of the
Lewisburg zoning ordinances. Appellants claim that their property is essentially valueless
based on the violations of the zoning ordinances. Following a lengthy dispute between the
parties, and attempts to correct the situation, appellants filed suit alleging multiple claims for
recovery, including fraud, breach of contract, and slander of title.
{¶ 3} The matter proceeded to a jury trial. Following the presentation of appellants'
case-in-chief, the trial court granted a directed verdict to appellees on appellants' claim for
slander of title. Thereafter, once appellees presented their defense, the jury returned a
verdict in their favor finding no fraud or breach of contract. Appellants subsequently moved
for relief from judgment pursuant to Civ. R. 60(B), which the trial court denied.
{¶ 4} Appellants now appeal, raising two assignments of error for review.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE JURY VERDICT IN FAVOR OF DEFENDANTS/APPELLEES WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 7} In their first assignment of error, appellants argue the jury's verdict was against
the manifest weight of the evidence. We disagree.
{¶ 8} As an appellate court, our review of a trial court's decision is limited to whether
the judgment is against the manifest weight of the evidence. Jones v. Holmes, 12th Dist.
Butler No. CA2012-07-133, 2013-Ohio-448, ¶ 24. The Ohio Supreme Court has confirmed
that when reviewing the manifest weight of the evidence, an appellate court conducts the
same analysis in both criminal and civil cases. Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 12. As such, we weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether in resolving conflicts in the
evidence, the finder of fact "clearly lost its way and created such a manifest miscarriage of
-2-
Preble CA2013-09-007
justice that the [judgment] must be reversed and a new trial ordered." Id. at ¶ 20, quoting
State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). A court of appeals panel must act
unanimously to reverse a jury verdict on the weight of the evidence. Eastley at ¶ 7.
{¶ 9} If the evidence presented to the trial court is susceptible to more than one
interpretation, we are bound to give it the construction that is consistent with the trial court's
judgment and finding of facts. Jones at ¶ 24. A reviewing court should not reverse a
decision simply because it holds a different opinion concerning the credibility of the witnesses
and the evidence submitted before the trial court. Artisan & Truckers Cas. Co. v. JMK
Transp., L.L.C., 12th Dist. Clermont No. CA2013-01-004, 2013-Ohio-3577, ¶ 25. The
underlying rationale of this deferential standard rests with the understanding 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 credibility of the proffered testimony."
Mike Castrucci Ford Sales, Inc. v. Hoover, 12th Dist. Clermont No. CA2007-02-022, 2008-
Ohio-1358, ¶ 19, quoting Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77, 80
(1984).
{¶ 10} In order to establish a claim in fraud, the complaining party must show: (1) a
representation or, where there is a duty to disclose, concealment of a fact, (2) which is
material, (3) made falsely, with knowledge of its falsity or with reckless disregard for the truth,
(4) with the intent to mislead, (5) justifiable reliance on the representation or concealment,
and (6) injury proximately caused by such reliance. Mertens v. Dever, 12th Dist. Clermont
No. CA2005-07-060, 2006-Ohio-100, ¶ 14, citing Cohen v. Lamko, Inc., 10 Ohio St.3d 167,
169 (1984). On the other hand, to recover upon a breach-of-contract claim, a claimant must
prove the following elements: (1) the existence of a contract, (2) that the plaintiff fulfilled its
contractual obligations, (3) that the defendant failed to fulfill its contractual obligations, and
(4) that the plaintiff incurred damages as a result. Lamar Advantage GP Co. v. Patel, 12th
-3-
Preble CA2013-09-007
Dist. Warren No. CA2011-10-105, 2012-Ohio-3319, ¶ 25.
{¶ 11} In the present case, the parties do not dispute that the manufactured home
purchased by appellants does not presently meet the Lewisburg zoning specifications, as the
city of Lewisburg requires additional footage on at least one side of the house. However,
beyond that, the parties offer conflicting accounts of the transaction and the actions taken as
a result of the zoning violations. In short, appellants claim they were defrauded, while
appellees framed the dispute as a product of "buyer's remorse" and presented evidence that
they have repeatedly attempted to correct the zoning issue to no avail, in part because
appellants have refused to sign the necessary conveyance documents.
{¶ 12} The following evidence was presented at trial. Appellants attended an open
house at Northcreek Crossing and toured a model home. While there, appellants discussed
purchasing options with Schaefer, including different design specifications that they wanted in
their house. As a result of the discussion, Schaefer walked appellants down the block and
showed them a vacant lot that he believed would be a suitable location for a home matching
their specifications. On August 19, 2003, appellants made an offer to purchase the
undeveloped property and manufactured home according to the specifications agreed to by
the parties. The deal closed on July 13, 2004.
{¶ 13} Appellant, Jeffrey Purcell, testified first on behalf of himself and his wife. Jeffrey
stated that he had no knowledge of the zoning issues until after he had already signed the
closing documents. According to Jeffrey, as soon as all of the documents were signed,
Schaefer approached him and admitted that the house was too big for the lot, but promised
to "make it right" by adding six additional feet to the property. Jeffrey testified that he did not
really understand the gravity of the situation, but understood the additional land to be a gift.
{¶ 14} After closing the deal, Schaefer attempted to transfer the additional six feet to
appellants, but was unsuccessful. Thereafter, the record reflects a lengthy gap between the
-4-
Preble CA2013-09-007
period that Schaefer attempted to convey the property and the subsequent re-opening of the
issue between the parties.
{¶ 15} However, Jeffrey testified that on October of 2009, he became aware of
another defect in the property, as the setback requirements also failed to comply with the
Lewisburg zoning ordinances. As a result, Jeffrey stated that he wrote a letter to Schaefer to
express his desire to clear the defects in the property. On February 18, 2010, Schaefer
made a written promise to deed six additional feet of land at "no cost." Since that time,
Jeffrey stated that Schaefer has presented appellants with multiple plans to add footage to
the property. However, Jeffrey testified that he has not signed any of the documents, also
referred to as "mylars," which would add additional land to the side of their home because
1
the documents failed to remedy the entire zoning problem.
{¶ 16} Chad Hoke, the director of land use management for Preble County, also
testified at trial.2 Hoke testified that one of the attempted conveyances of the land would not
have been approved by his office because the acreage does not match the legal description
of the land. However, Hoke also acknowledged that such errors are not uncommon. Hoke
did not address the specific issues between the parties, as he testified that he was not aware
of the entire dispute.
{¶ 17} In addition, Schaefer testified that he knew the house was too big for the lot and
admitted that he did not tell appellants of the zoning issue "face to face" on the day of
closing. However, Schaefer maintained that he informed appellants' agent, the surveyor, and
the title company of the zoning issue. Schaefer also testified that he attempted to transfer
1. At trial, the parties referred to the replating or conveyance documents as "mylars." Testimony at trial reflects
that the term "mylar" refers to the type of material--a type of plastic--that the conveyance plans are drawn on.
We choose to use the term "documents" or "conveyance documents" for ease of discussion.
2. The land use management office is responsible for reviewing replats, maps, and documents referred to as
"mylars" to make sure that the conveyance meets the conveyance standards for Preble County.
-5-
Preble CA2013-09-007
two deeds to appellants, one deed containing the additional footage for the property, which
would join the lots together to remedy the defect, but the county denied his request to join the
lots. Further, Schaefer stated that he now believed all three of the proposed conveyance
documents would be accepted by the county and appellants needed to sign the documents in
order to have the land transferred. In other words, Schaefer believed that appellants were
putting "the cart before the horse" regarding the transfer of ownership of the land, as it was
their delay and failure to sign the documents that has delayed the transfer of the land.
However, Schaefer testified that he stands "ready, willing, and able" to provide appellants
with an additional ten feet of property and a variance at no cost.
{¶ 18} In their defense, appellees called David Winemiller, a licensed engineer and
land surveyor who surveyed the property owned by Schaefer and Northcreek Crossing.
Winemiller testified that appellants' property needed additional land to be in conformity with
zoning regulations. Winemiller also stated that he had drawn up the previous conveyance
documents in an attempt to correct the defect. Although he acknowledged a minor error in
the third attempted conveyance, Winemiller referred to the error as "scrivener's error" and
testified that such a minor problem could easily be remedied. Furthermore, Winemiller
testified that the village of Lewisburg has signed off on the replat and, absent the minor
typographical error on the acreage, he did not see any reason why the conveyance
document should not be recorded.
{¶ 19} In addition, Jeffrey Sewert, the village administrator for Lewisburg was called to
testify. Sewert testified that two of the conveyance documents were sufficient to correct the
zoning problem with Lewisburg. Sewert also testified that he believed appellants could
obtain a variance through Lewisburg and he had provided the variance paperwork to them.
Nevertheless, Sewert stated that, as of the date of trial, appellants have not applied for a
variance, which would solve the zoning problem.
-6-
Preble CA2013-09-007
{¶ 20} Based on our review of the evidence, we find the jury did not clearly lose its way
in rendering judgment in favor of appellees. This case came down to the credibility of the
witnesses and whether appellants were able to meet their burden of proof. See Fikri v. Best
Buy, Inc., 12th Dist. Warren No. CA2013-06-051, 2013-Ohio-4869, ¶ 19 ("[t]he burden of
proof is on the party bringing the action to prove the facts necessary for their case by a
preponderance of the evidence"). Because the jury was not asked to provide responses to
interrogatories, there is no specific information as to why the jury reached its conclusion.
Nevertheless, although the record reflects a sincere belief on the part of appellants that they
have been wronged, the jury, as trier of fact, disagreed. Specifically, the jury found that
appellees did not defraud appellants and appellees were not liable for breach of contract.
The jury may well have found that appellants failed to prove their reasonable damages or
failed to establish any actionable wrongdoing on the part of appellees, as there was ample
testimony regarding appellees attempts to correct the issue and appellants refusal to
cooperate in any efforts to remedy the problem. In sum, there is evidence to support that
finding and we will not speculate that the jury was biased or based their decision on the
"popularity" of the parties. Therefore, as the jury's finding in favor of appellees is supported
by the weight of the evidence, appellants' first assignment of error is overruled.
{¶ 21} Assignment of Error No. 2:
{¶ 22} THE TRIAL COURT ERRED IN OVERRULING PLAINTIFFS/APPELLANTS'
60(B) MOTION AFTER THE VERDICT.
{¶ 23} In their second assignment of error, appellants argue the trial court erred in
denying their Civ.R. 60(B) motion for relief from judgment. Appellants allege that certain
testimony presented by their own witness, Chad Hoke, was untruthful and amounted to unfair
surprise during the course of the jury trial. As a result of further investigation conducted
following the trial, appellants allege that a familial and business relationship existed between
-7-
Preble CA2013-09-007
Hoke and Schaefer. We find no merit to appellants' arguments.
{¶ 24} Pursuant to Civ.R. 60(B), "the court may relieve a party or his legal
representative from a final judgment, order or proceedings" for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect; (2)
newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule
59(B); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an adverse
party; (4) the judgment has been satisfied, released or
discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that
the judgment should have prospective application; or (5) any
other reason justifying relief from the judgment.
{¶ 25} In order to prevail on a Civ.R. 60(B) motion, the moving party must demonstrate
that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the
party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and
(3) the motion is made within a reasonable time. GTE Automatic Electric v. ARC Industries,
Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. The moving party must
establish all three requirements in order for the motion to be granted. Robinson v. Miller
Hamilton Venture, L.L.C., 12th Dist. Butler No. CA2010-09-226, 2011-Ohio-3017, ¶ 14.
"Relief from judgment may be granted based on newly discovered evidence, but similar to
Civ.R. 59, evidence that could have been discovered prior to trial by the exercise of due
diligence does not qualify as newly discovered evidence." Healey v. Goodyear Tire & Rubber
Co., 9th Dist. Summit No. 25888, 2012-Ohio-2170, ¶ 16.
{¶ 26} The decision to grant or deny a Civ.R. 60(B) motion lies within the trial court's
discretion, and the decision will be reversed only for an abuse of discretion. Bowman v.
Leisz, 12th Dist. Warren No. CA2014-02-029, 2014-Ohio-4763, ¶ 17; Cox v. Zimmerman,
12th Dist. Clermont No. CA2011-03-022, 2012-Ohio-226, ¶ 14. An abuse of discretion
connotes more than an error of law or judgment; it implies that the court's attitude is
-8-
Preble CA2013-09-007
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶ 27} Here, appellants essentially argue that they are entitled to relief from judgment
based on "newly discovered evidence," relating to a tenuous familial or business relationship
between Chad Hoke, appellants' own witness, and Schaefer. According to appellants, they
were surprised by Hoke's testimony that the setback requirements are measured from the
foundation of the home, instead of the "overhang" of the home. Appellants maintain that this
testimony contradicted, and acted to impeach Jeffrey's own testimony that his house was out
3
of compliance with setback requirements.
{¶ 28} Appellants further allege that, after the trial, they conducted an internet search
and "discovered" a familial and business relationship between the Hoke family and the
Schaefer family, which they contend, influenced Hoke's testimony, therefore causing unfair
surprise and prejudice at trial.4 In support of this claim, appellants attached a printout from
the website "Ancestry.com," as well as other documents purportedly indicating that Hoke and
Schaefer are related by business and familial relationships.
{¶ 29} Based on our review, we find no error in the trial court's decision denying
appellants' motion. Appellants' suggestion that their Civ.R. 60(B) motion should be granted,
essentially, because they did not know or properly predict the answer in advance of the
question asked is without merit. In fact, it was appellants who called Hoke to testify and had
the opportunity to question him prior to trial. Through the exercise of due diligence,
appellants could have discovered information relating to Hoke's alleged biases, relationships,
3. In his testimony, Jeffrey adamantly denied that setback measurements are taken from the foundation of the
home and repeatedly asserted that setback measurements are taken from the "overhang" of the home.
4. We note that appellants do not specifically delineate which subsection of Civ.R. 60(B) they hope to utilize as a
basis for their motion for relief from judgment, but instead make several suggestions, including "newly discovered
evidence," "surprise," and falsified testimony in order to claim prejudice at trial.
-9-
Preble CA2013-09-007
or his understanding of setback requirements prior to the final judgment. There is simply
nothing in the record to suggest that appellants or their counsel were misled or prejudiced by
any testimony that they could not have discovered prior to trial.
{¶ 30} Moreover, the allegation that Hoke "incorrectly testified" based on a family or
business relationship is entirely speculative and does not implicate any valid reason for
ordering relief from judgment pursuant to Civ.R. 60(B). Relationships and even friendships
are not automatically presumed to result in bias and biased testimony, which would also be
subject to exposure through questioning at trial. See Evid.R. 616(A) ("Bias, prejudice,
interest, or any motive to misrepresent may be shown to impeach the witness either by
examination of the witness or by extrinsic evidence.")
{¶ 31} In sum, appellants have not set forth any valid reason for relief from judgment
pursuant to Civ.R. 60(B). The alleged "new evidence" proffered by appellants is information
that could have been discovered prior to trial. Furthermore, evidence of this alleged
relationship, purportedly creating an incentive for Hoke to perjure himself, is based on
speculation and conjecture. Accordingly, we find appellants' second assignment of error to
be without merit.
{¶ 32} Judgment affirmed.
RINGLAND, P.J., and HENDRICKSON, J., concur.
- 10 -