[Cite as Union Sq. Realty, Inc. v. Golfers & Hackers, Inc., 2011-Ohio-1882.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



UNION SQUARE REALTY, INC.                                   JUDGES:
                                                            Hon. Julie A. Edwards, P. J.
        Appellee/Cross-Appellant                            Hon. W. Scott Gwin, J.
                                                            Hon. John W. Wise, J.
-vs-

GOLFERS & HACKERS, INC.

        Appellant/Cross-Appellee                            Case No. 2010 CA 00005

-vs-

MARILYN SCHOPP

        Appellee-Cross-Appellant                            OPINION




CHARACTER OF PROCEEDING:                                Civil Appeal from the Court of Common
                                                        Pleas, Case No. 2008 CV 02514


JUDGMENT:                                               Affirmed



DATE OF JUDGMENT ENTRY:                                 April 18, 2011


APPEARANCES:

For Appellees/Cross Appellants                          For Appellant/Cross-Appellee

KARL H. SCHNEIDER                                       DAVID B. SPAULDING
MARK R. METERKO                                         157 Wilbur Drive, NE
MAGUIRE AND SCHNEIDER                                   North Canton, Ohio 44720
250 Civil Center Drive, Suite 500
Columbus, Ohio 43215
Stark County, Case No. 2010 CA 00005                                                 2

Wise, J.

       {¶1}   Defendant-Appellant Golfers & Hackers, Inc. appeals the December 29,

2009, decision of the Stark County Court of Common Pleas awarding Defendant-

Appellee Union Square Realty, Inc. $17,500 on their Complaint and awarding Golfers &

Hackers $12,000 on its Third-Part Complaint against Marilyn Schopp.

                       STATEMENT OF THE CASE AND FACTS

       {¶2}    Union Square Realty, Inc., doing business as Re-Max Home Center,

("Union Square") is a real estate brokerage owned by Marilyn Schopp ("Schopp"). (T.

at 31). Golfers & Hackers, Inc. ("Golfers & Hackers") is a corporation owned by four

shareholders, including Lane Witte, Eric Kerzan and Chris Kerzan. (T. at 133).

       {¶3}   Union Square filed a complaint seeking unpaid commissions from Golfers

& Hackers. Golfers & Hackers, in turn, filed a counterclaim against Union Square, and

a third-party complaint against Marilyn Schopp, the owner of Re/Max, setting forth

claims for tortious interference with a contract and breach of fiduciary duty, among

others, arising out of the filing of a broker's lien by Union Square.

       {¶4}   The case proceeded to a bench trial on November 3rd and 4th of 2009.

       {¶5}    At trial, the following relevant facts were presented:

       {¶6}   On September 23, 2004, Appellant/Cross-Appellee, Golfers & Hackers,

Inc., entered into an exclusive Listing Agreement with Union Square Realty for the sale

of 30 acres of real estate located at Schubert Avenue in Alliance, Ohio. The Listing

Agreement, which contained an expiration date of March 23, 2005, contained a listing

price of $750,000.00. Pursuant to the Listing Agreement, Union Square was to receive

a commission of 5.5% of the sale price of the Property.
Stark County, Case No. 2010 CA 00005                                                  3


      {¶7}   During the term of the Listing Agreement period, there were no purchase

offers made on the Property. (Tr. p. 251).

      {¶8}   On April 1, 2005, Appellee Re/Max obtained an offer from a prospective

buyer, Newton Square, in the amount of $600,000.00. Thereafter, Appellee Marilyn

Schopp contacted Golfers & Hackers and informed Lane Witte, one of Appellant's

shareholders, that she had a party interested in the real estate. The identity of the

interested party was not disclosed during the initial telephone conversation between

Appellee Schopp and Mr. Witte. (T. at 210). According to Appellant, during this

telephone conversation, discussion was had regarding the expiration of the listing

agreement and Appellee Schopp was advised that the new sale terms would be "net

$675,000 to the seller." Mr. Witte's testimony regarding this telephone conversation

was as follows:

      {¶9}   “Q.    Was there mention during that initial telephone call as to what the

sales terms were from that point forward?

      {¶10} “A.     Yes.

      {¶11} “Q.     What did you tell Ms. Schopp regarding the sales terms from that

point forward?

      {¶12} “A.     Net $675,000.

      {¶13} “Q.     By net 675 what did you mean?

      {¶14} “A.     Net in our pocket.

      {¶15} “Q.     Her real estate commission was to be above that?

      {¶16} “A.     Yes.

      {¶17} “Q.     Did she say she understood that?
Stark County, Case No. 2010 CA 00005                                                     4


          {¶18} “A.    Yes.” (T. at 252).

          {¶19} Following this telephone conversation, Mr. Witte sent a letter to Appellee

Schopp dated April 12, 2005, which stated that Appellee's listing had expired and that

the shareholders of Golfers & Hackers were attempting to market the property

themselves. This correspondence also stated that the terms of sale were "net $675,000"

to the Seller. (T. at 41-42, 252).

          {¶20} On April 15, 2005, a meeting was held at the Re/Max office in Alliance,

Ohio, during which two of the shareholders of Golfers & Hackers were introduced to the

prospective buyer, Newton Square. Mr. Witte, who was present at the meeting provided

the following account of what took place:

          {¶21} “Q. At some later point did you have a meeting in Marilyn Schopp's

office?

          {¶22} “A. Yes.

          {¶23} “Q. You were introduced to somebody from Newton Square at that

meeting?

          {¶24} “A. Yes, we were.

          {¶25} “Q. Do you remember what was said at the meeting concerning Ms.

Schopp's listing and the purchase price?

          {¶26} “A.    Purchase price was net 675.

          {¶27} “Q.    Was that voiced to Marilyn Schopp at the meeting?

          {¶28} “A.    Yes.”

          {¶29} “Q.    Was it also voiced to her that her contract listing contract had

expired?
Stark County, Case No. 2010 CA 00005                                                    5


       {¶30} “A.      Correct.” (T. at 253-254).

       {¶31} It is unclear from the record whether Appellee Schopp had any further

involvement in the subject real estate transaction after the April 15, 2005, meeting. Ms.

Schopp and Joe Bennett, a real estate broker previously working for Re/Max, testified

that she was present at two meetings involving Newton Square. Mr. Witte, however,

testified that after the initial meeting on April 15, 2005, Appellant dealt directly with

Newton Square and Appellee Schopp was not involved in any subsequent proceedings

involving the sale.

       {¶32} As a result of the negotiations at the April 15th meeting, Golfers &

Hackers made a counter-offer to Newton Square to sell for $675,000.

       {¶33} A second meeting occurred in early May, 2005. This meeting was also

at Union Square's office with Schopp present. (T. at 43, 148). As a result of this

meeting, Newton Square made an additional counter-offer to purchase the property for

$675,000, but on different payment terms from those requested by Golfers & Hackers.

       {¶34} Subsequently, Golfers & Hackers and Newton Square continued to

negotiate over the sale of the Property, and eventually entered into a purchase contract

on June 15, 2005 for $650,000. (T. at 185-86). Appellee Schopp admits that she was

not involved in this stage of the negotiations.

       {¶35} Upon discovering the June 15th purchase contract, Union Square filed a

broker's lien on August 15, 2005, pursuant to R.C.1311.88, in the amount of $33,000,

in an attempt to protect its right to a commission arising from the sale. (T. at 49-59).

The broker's lien affidavit contained inaccurate information, including the incorrect

contract price and date. (T. at 108). Further, the initial offer of $600,000 was attached
Stark County, Case No. 2010 CA 00005                                                      6


to the lien affidavit, rather than the June 15th purchase agreement, and the listing

agreement reflected an expiration date of July 23, 2005.

       {¶36} In the meantime, Newton Square decided to back out of the June 15th

contract because of a marketing study it conducted on the Property. (T. at 188).

       {¶37} As a result of Newton Square's breach of contract, Golfers & Hackers

filed a lawsuit against Newton Square seeking specific performance of the June 15th

contract. (T. at 221-23).

       {¶38} Golfers & Hackers claims that the filing of the broker’s lien by Appellee

affected its ability to negotiate a settlement of the lawsuit against Newton Square. (T. at

221-23).

       {¶39} The lawsuit between Newton Square and Golfers & Hackers eventually

settled with Newton Square agreeing to purchase the Property for $630,000. (T. at

226). This settlement agreement was also breached by Newton Square. (T. at 226).

       {¶40} In July, 2006, Newton Square and Golfers & Hackers eventually agreed

upon a purchase price for the Property of $591,000. (T. at 137-138, 225). Under this

purchase contract, the closing was to occur on July 26, 2006, however, the parties

agreed to extend the closing date until August 16, 2006, in order to wait for Union

Square's lien to expire. (T. at 233). The transaction closed on August 25, 2006. Union

Square received no commission for this sale. (T. at 57).

       {¶41} On December 28, 2009, the trial court issued a final Judgment Entry. In

the Judgment Entry, the trial court entered judgment in favor of Union Square in the

amount of $17,500, finding that Union Square was entitled to unpaid commissions

under the doctrine of procuring cause. The trial court also found in favor of Golfers &
Stark County, Case No. 2010 CA 00005                                                         7


Hackers in the total amount of $12,000, on its counterclaim against Union Square and

its third-party complaint against Schopp, as to its claims for filing a materially

inaccurate broker's lien, tortious interference with a contract, tortious interference with

a business relationship and breach of fiduciary duty.

       {¶42} This Court, by Opinion filed November 15, 2010, found that it was unable

to reconcile the numbers as contained in the trial court’s final calculation of damages on

both Appellee’s Complaint and Appellant’s Counter-claim and remanded the matter

back to the trial court for the “sole purpose of setting forth how it arrived at the damage

awards set forth in its final paragraph and the calculations it used in arriving at same.”

       {¶43} By Judgment Entry filed December 16, 2010, the trial court filed a

clarifying Judgment Entry, wherein it stated:

       {¶44} “1)    The Court finds that the Plaintiffs effort does entitle it to some

amount of compensation. Defendant's principal, Lane Witte, admitted at the trial that

the Plaintiffs services benefited Defendant and that Defendant had planned at one

point to compensate Plaintiff in some amount at the closing of the sale of the property.

Therefore, the Court needs to conclude what that amount would be. The Court has

recognized the Plaintiffs efforts and has awarded it approximately 47% of the

previously contracted commission with the Plaintiff, which would have been

$35,750.00. Therefore, the Court awards the Plaintiff the sum of $17,000.00.

       {¶45} “On the other hand, Plaintiff, through their agent Schopp, breached a

fiduciary duty when Ms. Schopp filed a false lien. The Court factored in that Golfers

and Hackers provided evidence that they were incurring interest on its mortgage in

excess of $4,000.00 per month because it was unable to sell the property. Based on
Stark County, Case No. 2010 CA 00005                                                      8


that representation, the Court has awarded Defendant damages in the amount of three

months of interest on the property, totaling $12,000.00.

       {¶46} “As a result, the Court finds for the Plaintiff on its complaint in the amount

of $17,000.00. The Court finds for Defendant on its counterclaim in the amount of

$12,000.00.”

       {¶47} The parties requested and were granted time to file supplemental briefs.

       {¶48} This matter is now before the Court, with Appellant Golfers & Hackers

and Appellees Union Square Realty, Inc. and Marilyn Schopp each appealing,

assigning the following errors for review:

                              ASSIGNMENTS OF ERROR

                                         APPEAL

       {¶49} “I. THE TRIAL COURT ERRED IN AWARDING A REAL ESTATE

COMMISSION TO THE APPELLEE BASED ON THE EQUITABLE DOCTRINE OF

PROCURING       CAUSE,      WHEN     THE     APPELLEE      ENGAGED       IN   DECEITFUL

CONDUCT, BREACHED ITS DUTY OF GOOD FAITH AND LOYALTY TO THE

APPELLANT       AND     TOOK      ACTION      TO     HINDER      THE     REAL     ESTATE

TGRANS-ACTION [SIC] DIRECTLY RESULTING IN DAMAGES TO THE APPELLANT.

       {¶50} “II. THE TRIAL COURT ERRED IN AWARDING A REAL ESTATE

COMMISSION TO THE APPELLEE UNDER THE THEORY OF PROCURING CAUSE

WHEN THE APPELLANT EXPRESSLY MADE PAYMENT OF A COMMISSION

DEPENDENT ON THE BROKER OBTAINING A MINIMUM SELLING PRICE AND THE

BROKER FAILED TO PRODUCE A BUYER AT THE MINIMUM SELLING PRICE.
Stark County, Case No. 2010 CA 00005                                   9


     {¶51} “III. IN AWARDING THE APPELLEE A REAL ESTATE COMMISSION,

THE TRIAL COURT FAILED TO CONSIDER ALL OF THE ELEMENTS OF THE

DOCTRINE OF PROCURING CAUSE AND THEREBY IMPROPERLY APPLIED THE

PROCURING CAUSE DOCTRINE TO THE FACTS OF THIS CASE.

     {¶52} “IV. THE TRIAL COURT IMPROPERLY CALCULATED THE DAMAGES

TO WHICH APPELLANT WAS ENTITLED PURSUANT TO ITS COUNTERCLAIM AND

THIRD-PARTY COMPLAINT.”

                               CROSS-APPEAL

     {¶53} “I. THE TRIAL COURT ERRED IN ENTERING JUDGMENT AGAINST

UNION SQUARE AND SCHOPP AS TO THE COUNTERCLAIM AND THIRD-PARTY

COMPLAINT BASED ON THE FILING OF THE BROKER'S LIEN.

     {¶54} “II. THE TRIAL COURT ERRED IN CONCLUDING THAT UNION

SQUARE AND SCHOPP TORTIOUSLY INTERFERED WITH A CONTRACT

BETWEEN GOLFERS & HACKERS AND NEWTON SQUARE WHERE THERE WAS

NO EVIDENCE TO SUPPORT THE CONCLUSION THAT UNION SQUARE AND

SCHOPP INTENTIONALLY PROCURED THE CONTRACT'S BREACH.

     {¶55} “III. THE TRIAL COURT ERRED IN CONCLUDING THAT UNION

SQUARE    AND   SCHOPP     TORTIOUSLY   INTERFERED   WITH   A   BUSINESS

RELATIONSHIP BETWEEN GOLFERS & HACKERS AND NEWTON SQUARE

WHERE THERE WAS NO EVIDENCE TO SUPPORT THE CONCLUSION THAT

UNION SQUARE AND SCHOPP INTENTIONALLY CAUSED THE TERMINATION OF

THE BUSINESS RELATIONSHIP.
Stark County, Case No. 2010 CA 00005                                                   10


      {¶56} “IV. THE TRIAL COURT ERRED IN CONCLUDING THAT UNION

SQUARE AND SCHOPP BREACHED A FIDUCIARY DUTY TO GOLFERS &

HACKERS BECAUSE AT THE TIME UNION SQUARE FILED THE BROKER'S LIEN,

UNION SQUARE AND SCHOPP DID NOT HAVE A FIDUCIARY RELATIONSHIP

WITH GOLFERS & HACKERS.

      {¶57} “V. THE TRIAL COURT ERRED BY FAILING TO AWARD COMMISSION

TO UNION SQUARE IN THE AMOUNT PROVIDED FOR BY THE LISTING

AGREEMENT.”

                                            I., II., III.

      {¶58} We shall address Appellant’s first, second and third assignments of error

together as each address Appellant’s assertion that the trial court erred in applying the

doctrine of procuring cause in the case sub judice. We disagree.

      {¶59} The procuring cause doctrine is an equitable tool which permits a broker

to recover a commission for the sale of property in the absence of a contract. See

Peirce v. J.C. Meyer Co., Inc., Richland App. Nos. 2005-CA-125, 2005-CA-114, 2006-

Ohio-4237. Under the equitable doctrine of “procuring cause” a real estate broker can

recover after the contract expires if he can prove a series of events, without a break in

continuity, which directly produce a purchaser ready, willing, and able to purchase the

real estate on the owner's terms. Id.

      {¶60} Invoking this doctrine, Union Square maintains its entitlement to a

commission as the procuring cause of the sale despite the expiration of the listing

contract. In order for this doctrine to apply, certain conditions must be met. The

following often-quoted definition for “procuring cause” elucidates these conditions:
Stark County, Case No. 2010 CA 00005                                                     11


       {¶61} “The term, ‘procuring cause’, as used in describing a broker's activity,

refers to a cause directly originating a series of events which[,] without break in their

continuity[,] directly result in the accomplishment of the prime objective of the

employment of the broker, namely, the producing of a purchaser ready, willing and able

to buy real estate on the owner's terms.” Bauman v. Worley (1957), 166 Ohio St. 471,

paragraph two of the syllabus. A broker is not entitled to recover a commission for the

sale of real estate merely because he incurred expenses or spent time in an attempt to

sell the property. Id.

       {¶62} The gist of Appellant's argument is that the trial court’s decision to award

Appellee a real estate commission was against the manifest weight of the evidence. An

appellate court will not reverse a trial court's judgment so long as it is supported by any

competent, credible evidence going to all of the essential elements of the case. C.E.

Morris Co. Foley Construction (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. “A reviewing

court does not decide whether it would have come to the same conclusion as the trial

court. Rather, we are required to uphold the judgment so long as the record, as a whole,

contains some evidence from which the trier of fact could have reached its ultimate

conclusions.” Hooten Equipment Co. v. Trimat, Inc., 4th Dist. No. 03CA16, 2004-Ohio-

1128, ¶ 7. We are to defer to the findings of the trier of fact because in a bench trial 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 testimony.

Seasons Coal Company, Inc. v. City of Cleveland (1984), 10 Ohio St.3d 77, 461 N.E.2d

1273. We may not substitute our judgment for that of the trier of fact. Pons v. Ohio State
Stark County, Case No. 2010 CA 00005                                                  12

Medical Board (1993), 66 Ohio St.3d 619, 614 N.E.2d 748. 621, 66 Ohio St.3d 619, 614

N.E.2d 748.

      {¶63} In the case sub judice, the trial court made a factual determination that

Union Square was entitled to compensation for its efforts in the amount of $17,000.00,

which represented approximately 47% percent of the commission set forth in the listing

agreement. ($650,000 x 5.5% = $35,750; $35,750 x 47% = $16,802.50, which the trial

court rounded up to $17,000.00). The trial court based this determination in part on its

findings that Golfers & Hackers was aware that Union Square was continuing to work on

their behalf despite the expiration of the contract and that Schopp arranged at least two

meetings between Newton Square and Golfers & Hackers. The trial court also based its

decision on the statements by Golfers & Hackers principal, Lane Witte, who admitted

that Appellees’ services benefitted them and that they had in fact planned on

compensating them in some amount at the real estate closing.

      {¶64} After reviewing the record, we find upon the whole record presented that

the judgment of the trial court is supported by competent and credible evidence upon

which the trial court could have based its conclusions.

      {¶65} Appellant’s first, second and third assignments of error are overruled.

                                               IV.

      {¶66} In its fourth assignment of error, Appellant argues that the trial court

improperly calculated damages. We disagree.

      {¶67} Appellant argues that the trial court erred in only awarding interest

incurred on the mortgage and not awarding the attorney fees incurred in pursuing the

slander of title action against Ms. Schopp and the reduction in the purchase price.
Stark County, Case No. 2010 CA 00005                                                        13


       {¶68} Upon review, we find that the trial court, in addition to finding that the filing

of the lien affidavit caused Appellant’s to incur additional interest on the mortgage, also

found that Newton Square breached the June 15, 2005, purchase contract. This breach

also contributed to the damages incurred by Appellant. Appellant filed an action for

specific performance of the June 15, 2005, purchase agreement, but ultimately settled

the action by negotiating a new purchase agreement on July 21, 2006, in the amount of

$591,000.

       {¶69} The decision whether to grant attorney fees is committed to the sound

discretion of the trial court, and will not be reversed on appeal absent an abuse of

discretion. Demo v. Demo (1995), 101 Ohio App.3d 383, 388-389, 655 N.E.2d 791.

       {¶70} As to the failure of the trial court to award attorney fees incurred in

pursuing the slander of title action, the trial court herein could have found that because

Appellant dismissed their slander of title action, it was not entitled to attorney fees.1

       {¶71} Based upon the above, we cannot find that the trial court erred in not

including attorney fees or the reduction in the purchase price in its damage award as it

could have found that the filing of the broker’s lien was not the only proximate cause of

these damages.

       {¶72} Appellant’s fourth assignment of error is overruled.

                                         CROSS-APPEAL

                                          I., II., III. and IV.

       {¶73} In Cross-Appellant’s first four assignments of error, they argue that the

trial court erred in finding that the filing of the broker’s lien in this case tortiously

1
 R.C. 1311.88(c) provides that the prevailing party can recover attorney fees arising out
of litigation over a broker’s lien.
Stark County, Case No. 2010 CA 00005                                                   14


interfered with a business relationship and breached a fiduciary duty with Cross-

Appellees. We disagree.

       {¶74} “A real estate broker, acting within the scope of his agency, owes the

fiduciary duties of disclosure, good faith, and loyalty to the seller. When the broker

breaches his fiduciary duties, commits fraud, acts in bad faith, or otherwise breaches

the seller's trust, he is precluded from recovering a commission.” Fuller & Associates,

Inc. v. Adams Title Agency, Inc., Stark App. No. 2003 CA 00253, 2003-Ohio-5923.

       {¶75} A claim of tortious interference with contract arises when one party to a

contract is induced to breach the contract by the malicious acts of a third person who is

not a party to the contract. Battista v. Lebanon Trotting Assn. (6th Cir., 1976), 538 F.2d

111, 116.

       {¶76} In Fred Siegel Co., L.P.A. v. Arter & Hadden (1999), 85 Ohio St.3d 171,

707 N.E.2d 853, the Ohio Supreme Court outlined the elements of tortious interference

with a contract. The elements are (1) the existence of contract, (2) the wrongdoer's

knowledge of the contract, (3) the wrongdoer's intentional procurement of the breach,

(4) lack of justification, and (5) resulting damages. Siegel, paragraph one of the

syllabus. The Supreme Court noted that the establishment of the fourth element of the

tort, namely lack of justification, requires proof that the defendant's interference with

another's contract was improper.

       {¶77} In this case, the trial court found that Cross-Appellant Union Square,

through its agent, Marilyn Schopp, breached a fiduciary duty and interfered with the

real estate contract between Cross-Appellees and Newton Square when she filed a

false broker’s lien.
Stark County, Case No. 2010 CA 00005                                                     15


       {¶78} In its Dec, 28, 2009, Judgment Entry, the trial court found:

       {¶79} “…Schopp’s actions engaged in deceitful conduct and breached her duty

of good faith and loyalty to Golfers & Hackers, thereby forfeiting a portion of the right

she may have had to a commission. [citation omitted]. Schopp’s actions of causing a

materially inaccurate and false affidavit to be filed against the real estate was a tortuous

[sic] interference with the contractual relationship between Golfers & Hackers and

Newton Square. More importantly, Golfers & Hackers’ representative Lane Witte even

contacted Schopp’s attorney and advised them that the affidavit was false, yet Schopp

still failed to release the lien.

       {¶80} “Golfers & Hackers has proven that Union Square and/or Schopp took

action to hinder the formation of the contract or to hinder a contract formation, without

priviledge [sic], and that the improper action terminated a business relationship for

Golfers & Hackers, resulting in damages. [citation omitted].

       {¶81} “Union Square, through their agent, Schopp, also breached an existing

fiduciary duty, which resulted in injury to Golfers & Hackers. Golfers & Hackers testified

that the false lien affidavit that was filed against it was used to its disadvantage as

leverage to negotiate a reduced price. As a result, Golfers & Hackers was incurring

interest on its mortgage in excess of $4,000 per month because it was unable to sell the

property. Furthermore, it was forced to accept a lesser offer from Newton Square for

the purchase of the real estate of $591,000.”

       {¶82} The trial court herein found that on August 15, 2005, Marilyn Schopp filed

a Lien Affidavit which contained false information. The trial court further found that this

Lien Affidavit prevented Cross-Appellee from selling the property without paying Schopp
Stark County, Case No. 2010 CA 00005                                                     16


a $33,000 commission and that such was used as leverage in subsequent negotiations

with Newton Square.

      {¶83} Based upon Ms. Schopp’s actions as set forth above, we find that the

record contains ample evidence to support Cross-Appellee’s claim for tortious

interference with a business relationship and breach of a fiduciary duty.

      {¶84} Cross-Appellants’ first, second, third and fourth assignments of error are

overruled.

                                               V.

      {¶85} In its fifth assignment of error, Cross-Appellants argue that the trial court

erred in not awarding the commission provided in the listing agreement. We disagree.

      {¶86} In the case sub judice, the trial court found that the doctrine of procuring

cause was applicable in this case, therein finding that Cross-Appellant was entitled to

some compensation for its efforts in arranging the real estate sale. The trial court,

based on the testimony and evidence before it, determined the value of those efforts

equaled $17,000.00.

      {¶87} While appellate review includes the responsibility to consider the credibility

of witnesses and weight given to the evidence, “these issues are primarily matters for

the trier of fact to decide since the trier of fact is in the best position to judge the

credibility of the witnesses and the weight to be given the evidence.” State v. Walker,

Butler App. No. CA2006-04-085, 2007-Ohio-911, ¶ 26.

      {¶88} We find that in this case, the record supports the trial court’s findings.
Stark County, Case No. 2010 CA 00005                                            17


      {¶89} Cross-Appellants’ fifth assignment of error is overruled.

      {¶90} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.


By: Wise, J.

Edwards, P. J., and

Gwin, J., concur.

                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES

JWW/d 0329
Stark County, Case No. 2010 CA 00005                                         18


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




UNION SQUARE REALTY, INC.                 :
                                          :
       Appellee/Cross-Appellant           :
                                          :
-vs-                                      :
                                          :
GOLFERS & HACKERS, INC.                   :         JUDGMENT ENTRY
                                          :
       Appellant/Cross-Appellee           :
                                          :
-vs-                                      :
                                          :
MARILYN SCHOPP                            :
                                          :
       Appellee/Cross-Appellant           :         Case No. 2010 CA 00005




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed equally to Appellees and Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
