Ohio Dist. Council, Inc. of the Assemblies of God v. Speelman

[Cite as Ohio Dist. Council Inc. of the Assemblies of God v. Speelman, 2018-Ohio-4388.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

OHIO DISTRICT COUNCIL, INC. OF :
THE ASSEMBLIES OF GOD, et al.,
: CASE NOS. CA2018-02-025
Plaintiffs-Appellants/ CA2018-02-031
Cross-Appellees, :
OPINION
- vs - : 10/29/2018

PATRICIA M. SPEELMAN, et al., :

Defendants-Appellees/ :
Cross-Appellants.
:

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2011-12-4362

Taft Stettinius & Hollister LLP, Donald C. Brey, Celia M. Schnupp, 65 East State Street,
Suite 1000, Columbus, OH 43215, for plaintiffs-appellants/cross-appellees, Ohio District
Council, Inc. of the Assemblies of God and Christian Assembly of God

Law Office of Bill W. Cummins, Bill W. Cummins, 5815 Winged Foot Drive, West Chester,
Ohio 45069, for defendants-appellees/cross-appellants, S. Mathew Morgan, Dennis
Speelman, Fellowship of Praise Church of God, Inc., and defendant-appellee, Patricia
Speelman

Eric B. Hershberger, 862 Bluffview Drive, Columbus, Ohio 43235, for defendants-
appellees/cross-appellants, S. Mathew Morgan, Dennis Speelman, Fellowship of Praise
Church of God, Inc., and defendant-appellee, Patricia Speelman

S. POWELL, P.J.

{¶ 1} Plaintiffs-appellants, Ohio District Council, Inc. of the Assemblies of God and

Christian Assembly of God, appeal from the decision of the Butler County Court of Common
 Butler CA2018-02-025
CA2018-02-031

Pleas that rendered judgment in their favor and against defendants-appellees, Dennis and

Patricia Speelman, Samuel Morgan, and Fellowship of Praise Church of God, Inc. The

defendants cross-appeal. For the reasons described below this court reverses the lower

court's decision with respect to damages and remands for further proceedings.

{¶ 2} Christian Assembly of God ("Christian Assembly") was a church located in

Middletown, Ohio and was established in 1968. In 1972, Christian Assembly applied for

and was granted affiliation with Assemblies of God ("AOG"), a national, hierarchical church

organization. Ohio District Council, Inc. of the Assemblies of God ("ODC") is a subordinate

organization of AOG. ODC is comprised of Assemblies of God churches in Ohio.

{¶ 3} Christian Assembly was once a thriving church; it underwent a physical

expansion in the early 1980s because of a growing congregation. However, by 2005, the

church was in serious decline. Its pastor resigned and most of the congregation left. The

remaining church members sought a new pastor and eventually called defendant Dennis

Speelman ("Speelman") to pastor and to improve the church's health.

{¶ 4} Speelman and his wife, defendant Patricia Speelman, acted as co-pastors at

the church from 2006 through 2011. However, membership at Christian Assembly

continued to decline. In 2010, Speelman and Patricia met with defendant Samuel Morgan,

the pastor of defendant Fellowship of Praise Church of God, Inc. ("FOP"). Morgan had

demonstrated success in church development; he had overseen FOP grow from 12

members to over 900.

{¶ 5} The Speelmans and Morgan discussed Christian Assembly disaffiliating with

AOG and merging with FOP. Eventually, nine voting members of Christian Assembly's

board, which included both Speelmans, voted unanimously to disaffiliate and merge with

FOP. The board further voted to move day-to-day operations of Christian Assembly to FOP

and transfer Christian Assembly's real and personal property to FOP.

-2-
 Butler CA2018-02-025
CA2018-02-031

{¶ 6} Speelman and Morgan then entered into a "merger agreement" on behalf of

their respective churches. Christian Assembly and FOP filed a certificate of merger with

the Ohio Secretary of State. The parties recorded a deed conveying Christian Assembly's

real property, i.e., the church premises, to FOP.

{¶ 7} Speelman and Christian Assembly's board notified ODC of the disaffiliation.

ODC disputed Christian Assembly's disaffiliation and passed a resolution finding that

Speelman and the remaining voting members of Christian Assembly had breached ODC's

constitution by disaffiliating and transferring Christian Assembly's property without its

approval. Essentially, ODC claimed that the actions taken by Speelman and Christian

Assembly's board were void and the transfer of Christian Assembly's real and personal

property to FOP was unlawful.

{¶ 8} ODC served an eviction notice at Christian Assembly's church premises and

then, in 2011, filed this action asking the lower court to declare that the defendants' actions

with respect to the disaffiliation, merger, and transfer of property were void. ODC also

asserted claims for conversion, fraud, and conspiracy. Finally, ODC pled a claim for forcible

entry and detainer and for a writ of restitution of the church premises.

{¶ 9} In 2014, the matter proceeded to a bench trial. ODC introduced the relevant

constitutions and by-laws of the AOG, ODC, and Christian Assembly. ODC argued that

these documents established that the defendants' actions in the merger and transfer of

property exceeded the defendants' authority and that Christian Assembly's property

became ODC's because of a contingency set forth in ODC's constitution.1 Morgan,

Speelman, and several representatives of ODC testified. Morgan testified that FOP had

1. ODC's constitution provided that if Christian Assembly's membership fell below a certain threshold it would
lose its sovereign status and Christian Assembly's property would then become ODC's. Christian Assembly
reported less than 20 members in 2005 and 2006, triggering the contingency.
-3-
 Butler CA2018-02-025
CA2018-02-031

been using the church premises since the disaffiliation and the congregation had grown to

approximately 150 worshipers.

{¶ 10} In 2015, the lower court issued a decision granting judgment in favor of the

defendants. The court found that Christian Assembly had the ability to merge with FOP and

alienate its property based on its own corporate powers. The court declined to resolve

ODC's claim that its constitution and by-laws made it sovereign over Christian Assembly.

The court reasoned that this issue was a matter of religious concern not subject to review

by a secular court. Accordingly, the court granted judgment in favor of Christian Assembly

on ODC's claims.

{¶ 11} ODC appealed. This court sustained the appeal, finding that the issues raised

in ODC's complaint did not require the lower court to resolve ecclesiastical matters. Ohio

Dist. Council, Inc. of the Assemblies of God v. Speelman, 12th Dist. Butler No. CA2015-02-

031, 2016-Ohio-751, ¶ 31. We reversed and remanded with instructions that the lower

court construe the effect of the relevant AOG and ODC constitutions and by-laws. Id. at ¶

40.

{¶ 12} The lower court then issued a second decision finding that Christian Assembly

was bound by ODC's constitution and that control of Christian Assembly and title to its

property were held by ODC. Accordingly, the court found that the defendants' actions

merging Christian Assembly with FOP were void, including the transfer of property.

{¶ 13} The court further found in favor of ODC on its claims of conversion against

defendants Speelman, Morgan, and FOP, but not against Patricia Speelman.2 With respect

to damages for conversion, the court found that ODC failed to prove damages with

reasonable certainty and awarded nominal damages of $100. The court dismissed ODC's

2. ODC did not appeal the dismissal of claims against Patricia Speelman.
-4-
 Butler CA2018-02-025
CA2018-02-031

claims of fraud and conspiracy, finding that ODC failed to prove all the necessary elements

of those claims. Finally, the court granted ODC's request for a writ of restitution for the

church premises.

{¶ 14} ODC appeals, raising four assignments of error. The defendants raise one

assignment of error in their cross-appeal, which this court addresses first.

{¶ 15} Cross-assignment of Error No. 1:

{¶ 16} THE TRIAL COURT ERRED BY FINDING ANY DEFENDANT CONVERTED

THE PROPERTY.

{¶ 17} The defendants argue that the lower court erred in finding Speelman and

Morgan liable for conversion because neither personally received any property in the

merger of the two churches, i.e., only FOP received Christian Assembly's property. The

defendants further argue that conversion was legally impossible because real property

cannot be the subject of a conversion action.

{¶ 18} This assignment of error presents both a legal argument and a challenge to

the evidence in support of the court's finding of liability. This court reviews legal issues de

novo. Arbors E. RE, L.L.C. v. Franklin Cty. Bd. of Revision, 153 Ohio St.3d 41, 2018-Ohio-

1611, ¶ 13. Challenges to the evidence supporting a finding of liability in a civil case are

subject to a manifest weight of the evidence analysis, which concerns the inclination of the

greater amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. A manifest

weight analysis requires this court to 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

justice that the judgment must be reversed. Id. at ¶ 20.

{¶ 19} Conversion is "the wrongful exercise of dominion over property to the

-5-
 Butler CA2018-02-025
CA2018-02-031

exclusion of the rights of the owner, or withholding it from his possession under a claim

inconsistent with his rights." McIntosh v. Alum Cliff Industries, 12th Dist. Butler No. CA2001-

03-049, 2001 Ohio App. LEXIS 5473, *2 (Dec. 10, 2001), quoting Joyce v. Gen. Motors

Corp., 49 Ohio St.3d 93, 96 (1990). The essential elements of conversion are: "(1) plaintiff's

ownership or interest in the property; (2) plaintiff's actual or constructive possession or

immediate right to possession of the property; (3) defendant's wrongful interference with

plaintiff's property rights; and (4) damages." Preston Trucking Co., Inc., Frontier Div. v.

Lindamood, 12th Dist. Warren No. CA86-12-076, 1987 Ohio App. LEXIS 9223, *4 (Oct. 19,

1987).

{¶ 20} The lower court could conclude that Speelman and Morgan were liable for

conversion despite FOP being the only legal recipient of property in the merger. A

conversion claim does not require a plaintiff to prove that a defendant was enriched.

Instead, the plaintiff must show that the defendant wrongfully interfered with the plaintiff's

property rights. In this regard, the record is undisputed that Morgan and Speelman directed

the merger of and transfer of property between Christian Assembly and FOP, did so without

ODC's consent, and continued to take acts in furtherance of the merger despite knowledge

of ODC's disapproval. Thus, some competent and credible evidence supports the court's

finding of liability against Morgan and Speelman for conversion.

{¶ 21} Next, the defendants argue that they could not be found liable for conversion

with respect to the transfer of Christian Assembly's church premises because real property

cannot be the subject of a conversion claim. The implication of the defendants' argument

is that ODC should have pled a cause of action in trespass as opposed to conversion. The

defendants did not raise this argument in the proceedings below.

{¶ 22} An action for conversion lies only with respect to personal property; real estate

is not subject to conversion. 18 Ohio Jurisprudence 3d, Conversion, Section 4, at 345

-6-
 Butler CA2018-02-025
CA2018-02-031

(2001), citing 18 Am. Jur. 2d, Conversion, Section 19; accord Beavers v. PNC Bank, N.A.,

8th Dist. Cuyahoga No. 99773, 2013-Ohio-5318, ¶ 30. ODC did not expressly plead an

action in trespass. But this court finds no error.

{¶ 23} Civ.R. 8 requires notice pleading. A plaintiff must concisely set forth sufficient

operative facts in a claim to give fair notice of the nature of the action. Civ.R. 8(A), (E).

Here, ODC served an eviction notice and then filed a complaint that alleged claims of

conspiracy, fraud, and conversion, which accused the defendants of "fraudulently and

knowingly converting property and assets," including transferring the church premises to

FOP. The complaint further alleged a claim for forcible entry and detainer and requested a

writ of restitution of the premises. This court finds that the complaint stated sufficient

operative facts such that the defendants were notified that ODC was asserting a claim in

the nature of civil trespass to the church premises. Moreover, the fact that the defendants

waited seven years to raise this issue belies any potential prejudice. This court overrules

the defendants' cross-assignment of error.

{¶ 24} This court addresses ODC's first two assignments of error collectively.

{¶ 25} Assignment of Error No. 1:

{¶ 26} THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT

THE AMOUNT OF DAMAGES MUST BE PROVEN WITH CERTAINTY.

{¶ 27} Assignment of Error No. 2:

{¶ 28} THE TRIAL COURT ABUSED ITS DISCRETION BY HOLDING THAT

THERE WAS NO EVIDENCE OF DAMAGES FOR THE DEPRIVATION OF THE

PROPERTY.

{¶ 29} In its first and second assignments of error, ODC argues that the court

improperly subjected it to a heightened standard of proof for damages, i.e., the court

required it to prove damages to a "mathematical certainty" although it was only required to

-7-
 Butler CA2018-02-025
CA2018-02-031

prove damages to a reasonable certainty. ODC further argues that the court abused its

discretion by not considering the evidence introduced at trial regarding ODC's loss of use

of the church premises.

{¶ 30} This court reviews the lower court's award of damages for an abuse of

discretion. Henry v. Richardson, 193 Ohio App.3d 375, 2011-Ohio-2098, ¶ 8 (12th Dist.).

However, the issue of whether the lower court applied the correct measure of and burden

of proof for damages is a legal matter that this court reviews de novo.

{¶ 31} The measure of damages in a case alleging injury to real property "is the

reasonable cost of restoration plus reasonable value of loss of use unless the cost of

restoration exceeds the difference in market value before and after the damage, in which

case such difference becomes the measure." Adams v. Riley, 12th Dist. Butler No. CA84-

08-086, 1985 Ohio App. LEXIS 8828, *9 (Oct. 15, 1985). However, this is not an "arbitrary

or exact formula to be applied in every case without regard to whether its application would

compensate the injured party fully for losses which are the proximate result of the

wrongdoer's conduct." Id., citing Adcock v. Rollins Protective Servs. Co., 1 Ohio App.3d

160 (1st Dist.2001); and Thatcher v. Lane Constr. Co., 21 Ohio App.2d 41 (1970). "It is a

fundamental principle of the law of damages that an injured party should recover an amount

sufficient to compensate him fully for losses which are the result of a wrongdoer's conduct."

Thatcher at 44, quoting 69 A. L. R. 2d 1335, 1340.

{¶ 32} ODC submitted evidence concerning the value of the church premises but did

not submit any evidence concerning restoration costs. Accordingly, the cost of restoration

is not a damage available to ODC.

{¶ 33} With respect to loss of use, ODC's assistant superintendent, Jim Palmer,

testified that it would cost ODC approximately $7,700 per month to rent church premises

comparable to those at Christian Assembly. He based this claim on his knowledge of the

-8-
 Butler CA2018-02-025
CA2018-02-031

rental costs at other AOG church properties in Washington Courthouse and Fremont, Ohio.

{¶ 34} Morgan made an admission in his testimony related to loss of use evidence.

Morgan testified that he had, on FOP's behalf, researched renting a church in Butler County.

Morgan found that it would cost $1,500 per month, "on the low end," to rent a church in

West Chester, Ohio. There was also testimony and documentary evidence presented at

trial as to the fair market value of the church premises as well as the costs paid by FOP for

maintenance of the premises during the holdover period.

{¶ 35} In its decision on loss of use damages, the lower court announced that it would

afford Palmer's testimony no weight. The court explained that the two churches Palmer

used for comparison were "well outside" the Middletown real estate market and that Palmer

did not testify that the buildings were comparable. The court did not discuss Morgan's

testimony or other relevant evidence presented at trial. Based on these findings, the court

found that ODC failed to prove damages with reasonable certainty and awarded $100 in

nominal damages.

{¶ 36} "The uncertainty which prevents a recovery of damages is generally

uncertainty as to the fact of the damages, not the amount." Bemmes v. Pub. Emps.

Retirement Sys., 102 Ohio App.3d 782, 789 (12th Dist.1995), citing 22 Am. Jur. 2d,

Damages, Section 25 (1988, Supp.1995). "Where it is certain that damages have resulted,

mere uncertainty as to the amount will not preclude the right of recovery." Id. As to the

amount of damages, only a reasonable certainty is required, which has been defined as

"that degree of certainty of which the nature of the case admits." Id. citing 22 Am. Jur.2d,

Damages, Section 23 (1988, Supp.1995). Damages are not uncertain merely because they

cannot be calculated with absolute exactness; it is sufficient if the evidence affords a

reasonable basis for computing damages, even if the result is only an approximation. TJX

Cos., Inc. v. Hall, 183 Ohio App.3d 236, 2009-Ohio-3372, ¶ 32 (8th Dist.). "Reasonable

-9-
 Butler CA2018-02-025
CA2018-02-031

certainty" in tort cases requires less proof than in a breach of contract case. See Textron

Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 144 (9th Dist.1996).

{¶ 37} This court has held that a trial court abuses its discretion when it awards

nominal damages when credible evidence of damages is presented at trial. West v.

Shattuck, 12th Dist. Clinton No. CA86-02-003, 1986 Ohio App. LEXIS 9272 (Dec. 1, 1986).

The appellant, a mobile home owner, hired the appellee, a mover, to transport her mobile

home. Id. at *1. During transport, the mover seriously damaged the home. Id. at *1-2. At

trial, the owner testified as to her belief that the home was worth $6,500 to $7,000 and was

rendered valueless by the damage. Id. at *3. The owner also called her insurance agent

as an expert witness, who provided a similar estimate as to the home's worth before and

after the damage. Id. at *3-4. The mover presented no evidence of the value of the home.

Id. at *2.

{¶ 38} The lower court held that the owner had not put forth credible evidence as to

the market value of the mobile home before the damage occurred because she did not have

the qualifications to testify as to the value of mobile homes. Id. at *4. The lower court also

discredited the insurance agent's testimony because the agent had not physical inspected

the home prior to the damage. Id. *4.

{¶ 39} This court reversed, noting that the owner was qualified to offer an opinion as

to the value of her own home under Ohio law and that the court erred in ignoring the

evidence presented by the insurance agent. Id. at *4-5. This court noted that "'[o]nce a

right to damages has been established, such right will not be denied because the damages

are incapable of being calculated with mathematical certainty.'" Id. at *5, quoting Pennant

Moldings, Inc. v. C & J Trucking Co., 11 Ohio App.3d 248, 252 (12th Dist.1983).

{¶ 40} Similarly, the lower court's decision to award nominal damages for ODC's loss

of use of an approximate 18,000 square foot church facility for seven years is unreasonable

- 10 -
 Butler CA2018-02-025
CA2018-02-031

given that the record contains some credible and probative evidence of loss of use by which

the court could arrive at a damage award that would be within its discretion and approximate

damages to a reasonable certainty. Palmer testified at length concerning his background

with ODC and was qualified to offer an opinion as to rents based on his involvement with

other AOG churches. Palmer's testimony as to comparable rents had a sufficient basis to

permit an informed opinion; he explained that the two AOG churches were renting space in

similar rural, farming areas, and that he had based his price on the average rent per square

foot. Morgan testified to "quite a bit" of knowledge of the church rental market in nearby

West Chester and many other counties. Thus, the court had a baseline and range of rental

values from which it could begin to determine a damage award. ODC also introduced the

testimony and written opinion of its appraiser, who offered an opinion as to the value of the

property, which was $325,000. The appraisal sets forth significant detail concerning the

condition of the church, which the lower court could take into consideration in fashioning an

appropriate award. The defendants submitted detailed records concerning the ongoing

maintenance costs of the property.

{¶ 41} While not mathematically precise, an award of damages derived from this

evidence would approximate ODC's damages more precisely than a nominal award of

$100. Therefore, this court finds that there was sufficient evidence in the record by which

the lower court could exercise its discretion and award ODC with damages that are

reasonable given the seven-year loss of use of the church premises. Accordingly, this court

reverses and remands with instructions that the court review the record, consider the

evidence submitted by the parties, exercise its discretion, and enter an appropriate award

of damages in favor of ODC. This court sustains ODC's first and second assignments of

error.

{¶ 42} Assignment of Error No. 3:

- 11 -
 Butler CA2018-02-025
CA2018-02-031

{¶ 43} THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO AWARD

PUNITIVE DAMAGES AND ATTORNEY'S FEES FOR DEFENDANTS' CONVERSION.

{¶ 44} ODC next argues that the court abused its discretion in declining to award

punitive damages. R.C. 2315.21(C) permits an award of punitive damages in a tort case

where the actions or omissions of a defendant demonstrate "malice" and the plaintiff proves

actual damages because of those actions or omissions. The plaintiff must prove, by clear

and convincing evidence, his right to recover punitive damages. R.C. 2315.21(D)(4). Clear

and convincing evidence is that degree of proof which establishes in the mind of the trier of

fact a firm conviction as to the allegations sought to be proved. Cross v. Ledford, 161 Ohio

St. 469, 477 (1954).

{¶ 45} The Ohio Supreme Court has held that "[a]ctual malice, necessary for an

award of punitive damages, is (1) that state of mind under which a person's conduct is

characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the

rights and safety of other persons that has a great probability of causing substantial harm."

Preston v. Murty, 32 Ohio St.3d 334 (1987), syllabus. The reason behind awarding punitive

damages in Ohio "has been recognize * * * as that of punishing the offending party and

setting him up as an example to others that they might be deterred from similar conduct * *

*." Detling v. Chockley, 70 Ohio St.2d 134, 136 (1982), overruled on other grounds in Cabe

v. Lunich, 70 Ohio St.3d 598 (1994). Since punitive damages are assessed for punishment

and not compensation, a positive element of conscious wrongdoing is always required.

Preston at 335.

{¶ 46} The court found that the defendants' actions with respect to the conversion

claims were not the result of actual malice. After a thorough review of the record, we find

that conclusion supported by competent and credible evidence. Speelman testified that he

did not read ODC's constitution or by-laws and believed that Christian Assembly was

- 12 -
 Butler CA2018-02-025
CA2018-02-031

"voluntarily" affiliated with AOG and ODC. When he was called to pastor, Christian

Assembly's board did not inform him that he had any obligations to AOG. When asked why

he continued to take steps effectuating the merger despite being aware of ODC's protest,

Speelman explained, "we weren't doing anything wrong."

{¶ 47} Morgan also testified that he acted under the assumption that the merger was

permitted because of prior dealings with AOG churches. He understood that AOG churches

were only loosely affiliated with the national or regional organizations and that they were all

"sovereign" churches. Morgan explained that he had no interest in reviewing the by-laws

or constitutions of either AOG or ODC because he presumed that Christian Assembly was

sovereign. Morgan did review the chain of title on Christian Assembly's real property. From

this he observed that AOG had no legal interest in the property, which confirmed to him that

the church was sovereign. The evidence, if believed, would indicate that both Speelman

and Morgan did not act with hatred or malice.

{¶ 48} ODC next argues that a punitive damage award was proper because the

evidence demonstrated that the defendants acted purposefully and knowingly pursuant to

R.C. 2315.21(D)(6) and 2901.22(A) and (B).

{¶ 49} Generally, punitive damages in Ohio are capped. R.C. 2315(D)(2). However,

R.C. 2315.21(D)(6) sets forth the following exception:

Division (D)(2) of this section does not apply to a tort action
where the alleged injury, death, or loss to person or property
resulted from the defendant acting with one or more of the
culpable mental states of purposely and knowingly as described
in section 2901.22 of the Revised Code and when the defendant
has been convicted of or pleaded guilty to a criminal offense that
is a felony, that had as an element of the offense one or more
of the culpable mental states of purposely and knowingly as
described in that section, and that is the basis of the tort action.

{¶ 50} Thus, R.C. 2315.21(D)(6) sets forth a specific exception to the statutory cap

on punitive damages where a defendant's tortious acts resulted in a felony conviction where

- 13 -
 Butler CA2018-02-025
CA2018-02-031

the culpable mental states of knowingly or purposefully were demonstrated.

{¶ 51} R.C. 2315.21(D)(6) has no application to this case. The court did not award

punitive damages so there were no damages to cap. Moreover, there was no evidence of

any criminal charges being brought against any of the defendants that were the basis of

this tort action. This court overrules ODC's third assignment of error.

{¶ 52} Assignment of Error No. 4:

{¶ 53} THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO FIND

JUDGMENT IN FAVOR OF THE DEFENDANTS ON THE FRAUD AND CIVIL

CONSPIRACY CLAIMS.

{¶ 54} ODC argues that the lower court lost its way in finding that ODC failed to

establish its fraud and conspiracy claims. ODC argues that the greater weight of the

evidence established those claims and this court should direct a judgment in its favor.

Again, our standard of review requires us to weigh the evidence and all reasonable

inferences, considers 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 justice that the judgment must be reversed. Eastley, 2012-Ohio-2179 at ¶

20. After a thorough review of the record, we find that some competent and credible

evidence exists to support the lower court's findings in the defendants' favor.

{¶ 55} The fraud claim required ODC to demonstrate that Speelman knowingly made

a false representation of material fact with the intent to mislead and induce ODC's reliance

on that fact, that ODC justifiably relied on that fact, and damages. See Roberts v. McCoy,

12th Dist. Butler No. CA2016-04-071, 2017-Ohio-1329, ¶ 15. ODC claimed that Speelman

defrauded it by falsely representing that he would agree to obey all rules of ODC, including

promising to tithe 80 percent of his income to the organization and to become a credentialed

AOG minister. ODC alleged that it allowed Speelman to continue as pastor of Christian

- 14 -
 Butler CA2018-02-025
CA2018-02-031

Assembly based on these promises.

{¶ 56} The lower court found that Speelman's representations were not made with

the intent to induce detrimental reliance. The court noted that Speelman did not tithe as

promised because he could not afford to tithe. The record supports this finding. Speelman

and his wife earned $200 a week as pastors of Christian Assembly and for some period the

couple was residing at the church. The court further found that Speelman did not

misrepresent that he would obtain AOG credentials. ODC officials informed Speelman that

he could not obtain credentials because of a divorce. There was some evidence that

Speelman later could have been credentialed despite the divorce, but the evidence

supported the court's conclusion that Speelman was unaware of this development.

{¶ 57} A civil conspiracy is a "malicious combination of two or more persons to injure

another person or property, in a way not competent for one alone, resulting in actual

damages." Mohme v. Deaton, 12th Dist. Warren No. CA2005-12-133, 2006-Ohio-7042, ¶

36, quoting Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419 (1995). The

element of "malicious combination to injure" does not require a showing of an express

agreement between defendants, but only a common understanding or design, even if tacit,

to commit an unlawful act. See Pumphrey v. Quillen, 102 Ohio App. 173, 177-178 (1955),

citing Prosser on Torts (Hornbook Series), Section 109, at 1094.

{¶ 58} The court found that Speelman and Morgan did not have a malicious common

understanding to commit conversion or wrongfully interfere with ODC's property rights

because both operated under the assumption that Christian Assembly was sovereign. As

discussed in the preceding assignment of error, this finding is supported by competent and

credible evidence in the record. The evidence presented at trial indicated that Speelman

and Morgan's belief would have been mostly accurate but for Christian Assembly having

decreased in membership and losing its sovereignty. Accordingly, this court finds that the

- 15 -
 Butler CA2018-02-025
CA2018-02-031

lower court did not lose its way in finding in favor of the defendants on ODC's fraud and

conspiracy claims and therefore this court overrules ODC's fourth assignment of error.

{¶ 59} Judgment affirmed in part, reversed in part, and remanded.

RINGLAND and HENDRICKSON, JJ., concur.

- 16 -