Barnett v. Combs , 2011 Ohio 5947 ( 2011 )


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  • [Cite as Barnett v. Combs, 
    2011-Ohio-5947
    .]
    IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
    MARIA BARNETT                                            :
    Plaintiff-Appellee                               :      C.A. CASE NO. 24134
    v.                                                       :      T.C. NO.   08CV7517
    SCOTT COMBS, et al.                                      :       (Civil appeal from
    Common Pleas Court)
    Defendant-Appellant                              :
    :
    ..........
    OPINION
    th
    Rendered on the           18        day of   November   , 2011.
    ..........
    MARTY A. BEYER, Atty. Reg. No. 0060078, 1900 Kettering Tower, 40 N. Main
    Street, Dayton, Ohio 45423
    Attorney for Plaintiff-Appellee
    GARY W. GOTTSCHLICH, Atty. Reg. No. 0003760 and MARTINA M. DILLON,
    Atty. Reg. No 0066942, 201 E. Sixth Street, Dayton, Ohio 45402
    Attorneys for Defendant-Appellant
    ..........
    FROELICH, J.
    {¶ 1} Scott Combs appeals from a judgment of the Montgomery County
    Court of Common Pleas, which found that Combs had purchased the property
    located at 2440 Merrill Road for $150,000, that he had paid approximately $70,000,
    2
    and that he owed approximately $80,000 to Maria Barnett. Combs claims that
    there was no evidence that $50,000 of the $80,000 was owed to Barnett.               He
    asserts that, if owed to anyone, the $50,000 was owed to Howard Miles.
    {¶ 2} This litigation arose out of a series of transactions to purchase the
    Merrill Road property. After a bench trial, the trial court found the following facts:
    {¶ 3} “1. This journey, fueled by family dynamics, the desire to avoid the
    grasp of the Internal Revenue Service (IRS), the Great Recession, and a bit of
    greed, began when Clifford Browning, Maria Barnett’s ex-husband and Kent
    Browning’s father, purchased the real estate located at 2440 Merrill Road, Dayton,
    Ohio 45414 for Howard and Leah Miles.           Mr. and Mrs. Miles, pursuant to the
    parties’ unconventional arrangement, paid Clifford Browning $75,000.00 of the
    home’s $125,000.00 purchase [price] with the remaining $50,000.00 owing but with
    no arrangement concerning when or how this amount would be paid.                    The
    agreement between Clifford Browning and Mr. and Mrs. Miles was not reduced to
    writing, and the deed to the real estate remained in Clifford Browning’s name.
    Years passed, some ten or so, without any reduction in the $50,000.00 balance so
    that when Scott Combs purchased the real estate Mr. and Mrs. Miles still owed
    Clifford Browning the $50,000.00 balance;
    {¶ 4} “2. Mr. and Mrs. Miles, in 2007, contemplated a move to a home in
    Hillsboro, Ohio, but in order to do so, they needed to sell the Merrill Road property
    to generate the $100,000.00 needed to purchase the Hillsboro home. This is what
    prompted the involvement of Kent Browning, Maria Barnett, and Scott Combs;
    {¶ 5} “3. Scott Combs is a plumber who has operated a small plumbing
    3
    business for a number of years. Mr. Combs, over the years, has failed to pay
    income taxes on income generated by the plumbing business with the resulting,
    and inevitable, IRS involvement. Mr. Combs, in the period leading up to his
    purchase of the Merrill Road property, was doing quite well based upon a contract
    with Ryan Homes for the installation of plumbing into newly constructed homes;
    {¶ 6} “4. Kent Browning lives at 2500 Merrill Road which is located next to
    2440 Merrill Road. Scott Combs and Kent Browning were boyhood friends who,
    for many years, lost contact with each other.     Kent Browning and Mr. Combs
    reconnected in late 2006 or early 2007. Kent Browning was aware of Mr. and Mrs.
    Miles’ desire to sale 2440 Merrill Road, and, suspecting Mr. Combs might have an
    interest in the property, he introduced Mr. Combs to Howard Miles.               This
    introduction lead [sic] to Mr. Combs and Mr. Miles reaching, in early June 2007, an
    agreement concerning the sale of 2440 Merrill Road. The terms of the agreement,
    never reduced to any writing (at least as to Mr. Combs and Mr. Miles), included a
    purchase price of $150,000.00 with a $100,000.00 down payment. There was no
    specific agreement concerning how or exactly when the remaining $50,000.00
    would be paid, with this amount being, of course, the amount Mr. Miles owned
    Clifford Browning. Further, there was no agreement concerning any interest rate on
    the $50,000.00 balance;
    {¶ 7} “5.   Scott Combs, using income generated from his business and
    other sources, quickly paid Mr. Miles $70,000.00 of the agreed upon $100,000.00
    down payment. The remaining $30,000.00 is the factor that brought Maria Barnett
    into the mix;
    4
    {¶ 8} “6. Scott Combs, because of his IRS difficulties, could not secure a
    loan for the $30,000.00 gap.          Kent Browning, therefore, and somewhat
    inexplicably, persuaded his mother, Maria Barnett, to obtain a $30,000.00 loan to fill
    the gap;
    {¶ 9} “7. Ms. Barnett, on July 13, 2007, obtained a $30,000.00 loan from
    National City Bank (National City). The loan’s term was for fifteen years at 7.498%
    interest creating for Ms. Barnett a $279.92 monthly payment. (Exhibit 3) The loan
    proceeds were paid to Howard Miles completing the $100,000.00 Mr. and Mrs.
    Miles needed. No specific agreement was reached concerning the terms of the
    repayment of the $30,000.00. Mr. Combs, however, indicated he would repay the
    $30,000.00 as quickly as possible, with the anticipation being that the repayment
    would only take a few months. Further, Mr. Combs agreed that until he paid off the
    loan he would be responsible for Mrs. Barnett’s loan payment, including interest.
    Mr. Combs, additionally, agreed to pay and hold Ms. Barnett harmless for any
    expenses associated with the home including property taxes, insurance, and trash
    pick-up;
    {¶ 10} “8.   Clifford Browning executed a quit claim deed transferring his
    interest in 2440 Merrill Road to Maria Barnett. The deed was recorded on July 16,
    2007. The deed, it is noted, reflects a purchase price of $125,000.00. Ms. Barnet
    did not pay Clifford Browning any amount and no explanation was presented
    concerning why the deed reflects a purchase price;
    {¶ 11} “9. The above events lead [sic] to Maria Barnett and Scott Combs,
    on August 1, 2007, signing a document created by Kent Browning indicating that
    5
    Scott Combs purchased 2440 Merrill Road from Maria Barnett, that the purchase
    price was $150,000.00, that Scott Combs paid $70,000.00 and that when the
    $80,000.00 balance is paid the ‘house at 2440 Merrill Road, Dayton, Ohio 45414
    will be PAID IN FULL.’ (Exhibit 1);
    {¶ 12} “10. At this point, August 1, 2007, all was well with the transaction,
    but two events occurred which triggered the pending litigation. The first event was
    the destruction of the housing market (here as elsewhere) which eliminated Mr.
    Combs’ work for Ryan Homes and, thus, his ability to generate significant funds in a
    relatively short period. The second event arose from the family dynamic between
    Clifford and Kent Browning.           Clifford and Kent are estranged with this
    estrangement flowing, as it often does, from a financial dispute over an antiques
    business resulting in Clifford Browning, at least from Kent’s perspective, owing Kent
    Browning $50,000.00. Clifford Browning, to eliminate the asserted debt, verbally
    informed Howard Miles that when Scott Combs paid the $50,000.00 balance, this
    amount was to be paid to Kent Browning. Kent Browning, when he became aware
    of the verbal assignment, became significantly more interested regarding Scott
    Combs’ payments, or lack thereof;
    {¶ 13} “11. Scott Combs, because of his precipitous income decline, was
    not able to pay Maria Barnett the $30,000.00 in the anticipated time frame. Mr.
    Combs, however, did make payments reflecting the monthly amount due on the
    National City loan through August 2008. (Exhibit 12)        Ms. Barnett, after this,
    refused further payments;
    {¶ 14} “12. Ms. Barnett, in April 2009, decided to pay off the National City
    6
    Bank loan by cashing in a certificate of deposit.   The loan payoff amount was
    $28,464.87 (Exhibit 9);
    {¶ 15} “13.   Maria Barnett paid $1959.44 on the National City loan from
    September 2008 through March 2009;
    {¶ 16} “14. Ms. Barnett, through March 11, 2010, paid expenses associated
    with 2440 Merrill Road (property taxes, insurance, trash pick-up) in the amount of
    $7,926.76. (Exhibit 13) This amount is subject to a $220.87 property tax credit
    (Exhibit P);
    {¶ 17} “15. Kent Browning, when he became aware that he was to receive
    $50,000.00, decided he was entitled to interest on the unpaid balance.       Kent
    Browning talked to Scott Combs concerning this issue and it was agreed that Scott
    Combs, beginning in January 2008, would pay six percent (6%) simple interest on
    the unpaid balance with payments in the amount of $750.00 payable quarterly. Mr.
    Combs made one quarterly $750.00 payment;
    {¶ 18} “16. The interest issue also precipitated Kent Browning’s cause of
    action for conversion stemming from Scott Comb’s destruction of items of personal
    property belonging to Kent Browning. ***;
    {¶ 19} “17. Howard and Leah Miles and Clifford Browning have disclaimed
    any interest in 2440 Merrill Road. ***.”
    {¶ 20} Ultimately, Maria Barnett brought suit against Scott Combs seeking
    damages for breach of an unrecorded land contract and foreclosure.         Combs
    counterclaimed, originally seeking reformation of the land contract on the ground
    that $50,000 of the $80,000 owed on the property was payable to Howard Miles.
    7
    He later amended his counterclaim to assert civil aiding and abetting to commit
    fraud. Several other parties were brought into the litigation, however they are not
    parties to this appeal and the claims by and against them are not relevant to this
    appeal.
    {¶ 21} Combs’s sole assignment of error is directed to the following portion
    of the trial court’s conclusions of law:
    {¶ 22} “The $80,000, which is now slightly reduced, is *** owed to Maria
    Barnett. There is, since neither the original agreement between Scott Combs and
    Howard and Leah Miles nor the August 1, 2007 writing contemplated interest, no
    retroactive interest owed. The remaining balance due, reflecting the April 2009
    $28,464.87 payoff of the National City loan, further reflecting a $750.00 credit for
    the interest payment Scott Combs paid Kent Browning, and finally reflecting the
    Court’s conclusion that the remaining $50,000.00 is also owed to Maria Barnett, is
    $77,714.87.”
    {¶ 23} Combs claims that the trial court’s conclusion that he owes the
    $50,000 is against the manifest weight of the evidence.
    {¶ 24} The weight to be given the evidence and the credibility of the
    witnesses are primarily matters for the trier of fact to determine.              In re
    Guardianship of Smith, Clark App. No. 09 CA 69, 
    2010-Ohio-4528
    , ¶19, citing State
    v. DeHass (1967), 
    10 Ohio St.2d 230
    . The court of appeals has an obligation to
    presume that the findings of the trier of fact are correct.   State v. Wilson, 
    113 Ohio St.3d 382
    , 
    2007-Ohio-2202
    , ¶24. “This presumption arises because the trial judge
    [or finder-of-fact] had an opportunity ‘to view the witnesses and observe their
    8
    demeanor, gestures and voice inflections, and use these observations in weighing
    the credibility of the proffered testimony.’ *** ‘A reviewing court should not reverse a
    decision simply because it holds a different opinion concerning the credibility of the
    witnesses and evidence submitted before the trial court. A finding of an error in
    law is a legitimate ground for reversal, but a difference of opinion on credibility of
    witnesses and evidence is not.’” (Internal citations omitted.) 
    Id.
    {¶ 25} A trial court’s judgment will be reversed only if its factual findings are
    against the manifest weight of the evidence. KeyBank Natl. Assn. v. Mazer Corp.,
    Montgomery App. No. 23483, 
    2010-Ohio-1508
    , ¶36.                 In the civil context, a
    judgment will not be reversed by a reviewing court as being against the manifest
    weight of the evidence if there is some competent, credible evidence going to all
    the essential elements of the case. C.E. Morris Co. v. Foley Constr. Co. (1978),
    
    54 Ohio St.2d 279
    , syllabus; State v. Wilson, 
    113 Ohio St.3d 382
    , 
    2007-Ohio-2202
    ,
    ¶24.
    {¶ 26} To support his argument, Combs relies upon the CD transcript of the
    bench trial.      According to the files on the CD, the bench trial began at
    approximately 9:40 a.m. and concluded shortly after 4:00 p.m. On August 4, 2010,
    after the CD of the bench trial was filed, Combs moved for an extension of time to
    file the “transcript of proceedings.” We granted that motion and allowed him until
    September 1, 2010 to file the transcript. No written transcript of the bench trial was
    filed.
    {¶ 27} In June 2011, Barnett moved to dismiss this appeal on the grounds
    that Combs had failed to file both a written transcript and his appellate brief.
    9
    Barnett noted that Combs had received an extension until September 1, 2010 to file
    the transcript, but “Combs has done nothing since then.” Combs responded, in
    part, that he had filed the CD of the bench trial and, citing App.R. 9(A), asserted
    that the CD constituted the transcript.
    {¶ 28} In reviewing an assigned error on appeal, pursuant to App. R.
    12(A)(1)(b), we are confined to the record that was before the trial court as defined
    in App. R. 9(A). See Lamar v. Marbury (1982), 
    69 Ohio St.2d 274
    , 277. App. R.
    9(A) provides that the record on appeal consists of “[t]he original papers and
    exhibits thereto filed in the trial court, the transcript of proceedings, if any, including
    exhibits, and a certified copy of the docket and journal entries prepared by the clerk
    of the trial court.” At the time the record was filed in this case, App.R. 9(A) further
    provided that “[w]hen the transcript of proceedings is in the videotape medium,
    counsel shall type or print those portions of such transcript necessary for the court
    to determine the questions presented, certify their accuracy, and append such copy
    of the portions of the transcripts to their briefs.” (Emphasis added).
    {¶ 29} Under App.R. 9(B), the appellant has the duty to provide a transcript
    for appellate review. Former App.R. 9(B) stated, in part, that “*** the appellant, in
    writing, shall order from the reporter a complete transcript or a transcript of the
    parts of the proceedings not already on file as the appellant considers necessary
    for inclusion in the record ***.” Absent a written transcript, we cannot speculate
    what the testimony was at trial, and we are constrained to presume the regularity of
    the proceedings below unless the limited record for our review affirmatively
    demonstrates     error.     Banks     v.   Regan,    Montgomery      App.    No.   21929,
    10
    
    2008-Ohio-188
    , ¶2; State v. Like, Montgomery App. No. 21991, 
    2008-Ohio-1873
    ,
    ¶33. In this instance, we can only review the exhibits presented by the parties
    during the bench trial.
    {¶ 30} From the limited record before us, we find nothing that affirmatively
    demonstrates error.       Plaintiff’s Exhibit 2 is a copy of the quit-claim deed from
    Clifford Browning to Barnett, which conveyed the property to Barnett on July 16,
    2007. Plaintiff’s Exhibit 1, the document signed by Barnett and Combs on August
    1, 2007, indicates that Barnett was selling the 2440 Merrill Road property to Combs
    for $150,000, with a balance of $80,000.        The document further indicates that
    “[w]hen the remaining $80,000.00 is paid, the house *** will be PAID IN FULL.” On
    its face, this document supports the trial court’s conclusion that Combs owed the
    remaining $80,000 to Barnett.          The parties apparently presented testimony
    regarding Exhibit 1, but we are unable to review that testimony.          On appeal,
    Combs discusses other agreements between the Mileses and Clifford Browning
    and between Combs and the Mileses, but apparently none of these agreements
    was memorialized in writing. Plaintiff’s Exhibit 4 consists of copies of receipts for
    payments to the Mileses from Combs; however, these receipts do not establish that
    Combs was purchasing the Merrill Road property from the Mileses, rather than
    Barnett.   None of Barnett’s additional exhibits or Combs’s exhibits affirmatively
    established error by the trial court. Given the limited record and the absence of a
    written trial transcript, we cannot conclude the trial court’s judgment was against the
    manifest weight of the evidence.
    {¶ 31} The judgment of the trial court will be affirmed.
    11
    ..........
    FAIN, J. and DONOVAN, J., concur.
    Copies mailed to:
    Marty A. Beyer
    Gary W. Gottschlich
    Martina M. Dillon
    Hon. Michael L. Tucker
    

Document Info

Docket Number: 24134

Citation Numbers: 2011 Ohio 5947

Judges: Froelich

Filed Date: 11/18/2011

Precedential Status: Precedential

Modified Date: 10/30/2014