[Cite as Goddard v. Goddard, 192 Ohio App.3d 718, 2011-Ohio-680.]


                     IN THE COURT OF APPEALS OF OHIO
                        FOURTH APPELLATE DISTRICT
                              SCIOTO COUNTY

GODDARD,                                        :
                                                :
        Appellee,                               :       Case No. 10CA3343
                                                :
        v.                                      :
                                                :
GODDARD;                                        :       Released: February 7, 2011
                                                :
        GODDARD,                                :
                                                :       DECISION AND JUDGMENT
        Appellant.                              :       ENTRY


_____________________________________________________________
                       APPEARANCES:

Southeastern Ohio Legal Services and Tammy L. Greenwald, for appellee.

The Blume Law Firm, L.L.C., and T. Kevin Blume, for appellant.

_____________________________________________________________

        Per Curiam.

        {¶ 1} Defendant-appellant, Mike Goddard, appeals the trial court’s

decision that declared plaintiff-appellee, Alma Goddard, the legal owner of a

piece of real estate.         Appellant raises two arguments that he contends

warrant a reversal of the trial court’s decision. First, he asserts that the trial

court deprived him of his right to a jury trial. Appellant did not file a timely

answer in the action. Therefore, under Civ.R. 39(A), he waived his right to a
Scioto App. No. 10CA3343                                                      2


jury trial. Moreover, appellant never objected to the lack of a jury trial and

readily proceeded with a bench trial, presented evidence, and cross-

examined witnesses. Under these circumstances, we conclude that appellant

waived his right to a jury trial. Appellant next argues that the trial court’s

decision is against the weight of the evidence or contrary to law.

Specifically, he contends that no evidence supports the trial court’s decision

that his brother, Carl Goddard, delivered a deed conveying the disputed

property to appellee. The record contains some competent and credible

evidence that Carl delivered the deed to appellee. Moreover, we may uphold

the trial court’s judgment on the alternate basis that the evidence fully

supports the imposition of a constructive trust over the property in appellee’s

favor. Consequently, we overrule appellant’s two assignments of error and

affirm the trial court’s judgment.

                                       I

                                     FACTS

       {¶ 2} Appellee is the elderly mother of appellant and Carl. Before

July 1, 2002, appellee and Carl jointly owned property located on Grace

Street, in New Boston, Ohio. On July 1, 2002, appellee conveyed her

interest in the property to Carl. In return, Carl agreed to care for his mother
Scioto App. No. 10CA3343                                                      3


for the remainder of her life and to allow her to continue to reside in the

home.

        {¶ 3} In February 2007, Carl informed appellee that he had to move

from the home because he is a sexually oriented offender and the Grace

Street property sits less than 1,000 feet from a school. He advised appellee

that he wished to convey the property to appellee, solely in her name.

Appellee thus hired an attorney to prepare a quitclaim deed conveying the

property from Carl to appellee.       Carl executed the quitclaim deed and

appellee gave him money to record it.         Carl told appellee that he had

recorded it. However, she later learned that Carl had never recorded the

deed.

        {¶ 4} In March 2007, appellee fell gravely ill and was hospitalized.

While hospitalized, she requested another son, John, to retrieve some of her

personal items from the Grace Street property. Carl refused to allow John

into the home.

        {¶ 5} In April 2007, appellee learned that Carl had listed the property

for sale.    Appellee later learned that Carl had transferred the home to

appellant. On May 4, 2007, appellant filed a deed that purported to transfer

the Grace Street property from Carl to appellant. Appellant moved into the

home and has not permitted appellee access to the home.
Scioto App. No. 10CA3343                                                        4


       {¶ 6} On May 16, 2007, appellee filed an amended complaint against

Carl, Carl’s wife, and appellant. She requested the court to declare that she

either has a life estate in the property or that because the May 4, 2007 deed

is invalid, she is the sole legal owner. She also asserted that Carl and his

wife breached the agreement to care for her for the rest of her life and to

allow her to live in the home. Appellee alleged that that the deed conveying

her interest to Carl is therefore invalid due to a failure of consideration.

       {¶ 7} Carl filed a pro se answer and a pro se motion to dismiss.

       {¶ 8} On September 12, 2008, appellee filed a motion for default

judgment against Carl’s wife, which the court subsequently granted.

       {¶ 9} On September 23, 2008, appellant entered an appearance in the

action by filing a pro se “motion to dismiss default judgment” entered

against him. However, the record does not contain any evidence that the

court entered a default judgment against him.

       {¶ 10} After a bench trial, the court declared appellee the sole legal

owner of the Grace Street property. The court found that (1) Carl executed a

valid deed transferring the Grace Street property to appellee but did not

record it, (2) on April 10, 2007, appellee filed an affidavit of facts relating to

title, putting any subsequent purchasers on notice that there was an issue

regarding title, (3) appellant had actual and constructive notice of the
Scioto App. No. 10CA3343                                                       5


unrecorded deed from Carl to appellee, (4) appellant did not pay Carl for the

property, and (5) the May 4, 2007 deed is null and void. This appeal

followed.

                                       II

                           ASSIGNMENTS OF ERROR

       {¶ 11} Appellant raises the following assignments of error:



               First Assignment of Error:

             The Trial Court erred in holding a Trial to the Court and
       not conducting a Jury Trial.

               Second Assignment of Error:

              The Judgment of the Trial Court is contrary to Law in
       that there was no evidence to establish that the deed from Carl
       Willard Goddard to Alma Goddard was ever delivered to the
       Grantee.

                                       III

                                 JURY TRIAL

       {¶ 12} In his first assignment of error, appellant argues that the trial

court violated his right to a jury trial. We disagree with appellant.

       {¶ 13} Civ.R. 38(B) states: “Any party may demand a trial by jury on

any issue triable of right by a jury by serving upon the other parties a

demand therefor at any time after the commencement of the action and not

later than fourteen days after the service of the last pleading directed to such
Scioto App. No. 10CA3343                                                        6


issue. Such demand shall be in writing and may be indorsed upon a pleading

of the party.”

       {¶ 14} Once a party properly demands a jury, the demand may not be

withdrawn “without the consent of the parties.” Civ.R. 38(D). “Ohio case

law is clear that once any party makes a proper jury demand, the demand

applies to the entire action and all parties, regardless of which party made

the demand, and can be waived only as provided by Civ.R. 39(A).”

Jovanovski v. Kotefski, Lorain App. Nos. 07CA009203 and 07CA009223,

2008-Ohio-4773, at ¶14; see also West v. Scott (Dec. 6, 2001), Mahoning

App. No. 01CA24, 2001 WL 1568880 (stating that “any one party can

demand a jury, but all parties to the lawsuit must consent to the withdrawal

of the demand” and that the rules do “not specify that consent is only needed

from the parties who demanded a jury trial”).

       {¶ 15} Further, once a party properly demands a jury, Civ.R. 39(A)

sets forth “the only ways to waive [a jury].” Soler v. Evans, St. Clair &

Kelsey (2002), 94 Ohio St.3d 432, 438, 763 N.E.2d 1169. Civ.R. 39(A) sets

forth the three situations in which the Civ.R. 38 right to a jury will not apply.

First, the right will not apply when “the parties or their attorneys of record,

by written stipulation filed with the court or by an oral stipulation made in

open court and entered in the record, consent to trial by the court sitting
Scioto App. No. 10CA3343                                                        7


without a jury.” Civ.R. 39(A). Second, the right will not apply when “the

court upon motion or of its own initiative finds that a right of trial by jury of

some or all of those issues does not exist.” Id. Third, the right will not

apply when “a party or his attorney of record either [fails] to answer or

appear for trial.” Id.

       {¶ 16} In Huffer v. Cicero (1995), 107 Ohio App.3d 65, 72, 667

N.E.2d 1031, we applied Civ.R. 39(A) and concluded that a litigant’s failure

to file a timely answer constitutes a waiver of a jury trial. In Huffer, the

plaintiff had properly demanded a jury, but the defendant had not. Instead,

the defendant filed an untimely answer in which he demanded a jury. The

plaintiff subsequently requested to withdraw his jury demand and to proceed

to a bench trial. The defendant objected, but the court nonetheless permitted

the plaintiff to withdraw his jury demand.

       {¶ 17} On appeal, we rejected the defendant’s assertion that the trial

court erred by failing to hold a jury trial. We explained:

              We agree that generally when one party has requested a
       trial by jury, a trial by jury must be granted unless both parties
       consent to try the action before the court. See Civ.R. 38(D);
       Civ.R. 39(A) and Commentary. However, Civ.R. 39(A) also
       states in part that: “The failure of a party or his attorney of
       record either to answer or appear for trial constitutes a waiver
       of trial by jury by such party and authorizes submission of all
       issues to the court.”
Scioto App. No. 10CA3343                                                                                       8


                 In this case, [the defendant] failed to file a timely answer
         to the complaint. Further, when [the defendant] finally did
         submit an answer over six months later, [the defendant] failed
         to first obtain leave of court and make a showing of “excusable
         neglect” as mandated by Civ.R. 6(B). See Civ.R. 6(B)(2);
         Miller v. Lint (1980), 62 Ohio St.2d 209, 16 O.O.3d 244, 404
         N.E.2d 752; McDonald v. Berry (1992), 84 Ohio App.3d 6, 616
         N.E.2d 248. Because [the defendant] never filed a valid answer
         in this case, the trial court correctly found that [the defendant]
         waived his right to a jury trial under Civ.R. 39(A). As a result,
         we overrule [the defendant]’s first cross-assignment of error.

Id. at 72.

         {¶ 18} The same analysis applies in the case at bar.                                      Appellee

demanded a jury trial. Appellant never filed a proper answer. Even if we

construed his pro se “motion to dismiss” as an answer, it was untimely.

Thus, because appellant did not file a timely answer in the action, he waived

his right to a jury trial under Civ.R. 39(A).1

         {¶ 19} Additionally, appellant never once objected to the trial court

proceeding without a jury. Several courts have held that a party may not

1
  While we might question whether appellant would be entitled to a jury trial in this action (i.e., is the
action legal or equitable; is it for the recovery of specific real estate?), because we have concluded that
appellant waived any right he may have, we do not find it necessary to determine whether he would be
entitled to a jury trial in this action. We do note, however, that the authors of Ohio Civil Practice suggest
that the legal-equitable distinction does not apply, but rather, the question is simply whether the action is,
for example, one for the recovery of specific real estate. 2 Klein & Darling, Civil Practice (2d Ed.2004),
Section 38:13; see R.C. 2311.04 (“Issues of fact arising in actions for the recovery of money only, or
specific real or personal property, shall be tried by a jury, unless a jury trial is waived or unless all parties
consent to a reference under the Rules of Civil Procedure”). Despite the authors’ suggestion, it appears that
the majority of Ohio appellate courts continue to apply the legal-equitable distinction. See Parkview Fed.
Sav. Bank v. Grimm, Cuyahoga App. No. 93899, 2010-Ohio-5005; Takis, L.L.C. v. C.D. Morelock
Properties, Inc., 180 Ohio App.3d 243, 2008-Ohio-6676, 905 N.E.2d 204; Tipp City v. Watson, Miami
App. No. 02CA43, 2003-Ohio-4836; Rutledge v. Wallace, Carroll App. No. 02AP-770, 2002-Ohio-5372;
McCarley v. O.O. McIntyre Park Dist. (Feb. 11, 2000), Gallia App. No. 99CA07, 2000 WL 203997;
Ashmore v. Eversole (Nov. 29, 1996), Montgomery App. No. 15672, 1996 WL 685568; First Natl. Bank of
Southwestern Ohio v. Miami Univ. (1997), 121 Ohio App.3d 170, 180, 699 N.E.2d 523.
Scioto App. No. 10CA3343                                                      9


stand idly by while the court conducts a bench trial and then complain on

appeal that the court should have held a jury trial. The leading Ohio case

adopting this rule appears to be Nenadal v. Landerwood Co. (May 12,

1994), Cuyahoga App. No. 65428, 1994 WL 189375.               In reaching its

holding, the Nenadal court looked first to federal cases construing the

analogous federal rule and observed that the federal courts “have held that

the right to a jury may be waived by failing to object to a bench trial and

subsequently fully participating in the trial.” Id. at *4, citing Royal Am.

Managers, Inc. v. IRC Holding Corp. (C.A.2, 1989), 885 F.2d 1011, 1018;

Root v. Consol. Freightways (C.A.6, 1987), 835 F.2d 879; United States v.

1966 Beechcraft Aircraft Model King Air (C.A.4, 1985), 777 F.2d 947, 950-

951. Nenadal further recognized that the federal courts hold that the parties

may waive the right to a jury trial through their conduct. Id., citing 9 C.

Wright & A. Miller, Federal Practice and Procedure (1971), Section 2321.

       {¶ 20} The Nenadal court’s reasoning further rested upon the well-

settled principle that “a party waives his right to raise for the first time on

appeal that error which was not raised at the trial below.” Id. The court

explained that it “would be ‘patently unfair’ and, ‘in effect, [an] “ambush [of

the] trial judge” on appeal’ if appellant were allowed ‘to lodge an early

demand for a jury,’ participate in a bench trial without objection, and then
Scioto App. No. 10CA3343                                                    10


assign as error the failure to honor the jury demand.” Id., quoting Royal,

885 F.2d at 1018.

       {¶ 21} The Eleventh District Court of Appeals applied this same rule

in Abbe Family Found. & Trust v. Portage Cty. Sheriff, Portage App. No.

2005-P-0060, 2006-Ohio-2497. In that case, the court held: “A party may

waive his or her right to a jury trial, even after filing a jury demand, by

participating in a trial before the court without objecting to the lack of a

jury.” Id. at ¶47, citing Foremost Ins. Co. v. Gimbel Agency, Inc. (Aug. 29,

1997), Portage App. No. 96-P-0203, 1997 WL 585941; Nenadal, 1994 WL

189375; and Cavanaugh Bldg. Corp. v. Liberty Elec. Co. (Apr. 28, 1999),

Summit App. No. 19146, 1999 WL 247219. The Abbe court noted that the

litigants could have objected, but failed to do so. The court thus concluded

that the litigants were “estopped from alleging this error on appeal as it

could have been addressed by the trial court at an earlier stage.” Id. at ¶48;

see also Toma v. Toma, Cuyahoga App. No. 82118, 2003-Ohio-4344. But

see Carl Sectional Home, Inc. v. Key Corp. (1981), 1 Ohio App.3d 101, 439

N.E.2d 915 (holding that a properly demanded jury trial cannot be waived

by silence).

       {¶ 22} Similarly, in the case at bar, appellant participated, without

objection, in a bench trial and never once complained about the lack of a
Scioto App. No. 10CA3343                                                        11


jury. He could have objected at any time but did not. Therefore, he is

estopped from arguing on appeal that the trial court should have held a jury

trial.

         {¶ 23} Accordingly, based upon the foregoing reasons, we overrule

appellant’s first assignment of error.

                                         IV

         {¶ 24} In his second assignment of error, appellant argues that the trial

court’s judgment is against the manifest weight of the evidence or contrary

to law because appellee did not present any evidence to establish an essential

element of her claim. Specifically, appellant asserts that appellee failed to

present any evidence that Carl delivered the 2007 deed to her. Appellant

contends that in the absence of that evidence, the trial court could not have

concluded that appellee is the legal owner of the Grace Street property.

                                         A

  FAILURE TO REQUEST FINDINGS OF FACT AND CONCLUSIONS
                         OF LAW

         {¶ 25} Appellant did not request the trial court to issue Civ.R. 52

findings of fact and conclusions of law. Moreover, the trial court did not

outline the exact reasons underlying its decision. However, in the absence
Scioto App. No. 10CA3343                                                                                    12


of a proper Civ.R. 522 request for findings of fact and conclusions of law, it

had no independent duty to do so. The failure to request findings of fact and

conclusions of law ordinarily results in a waiver of the right to challenge the

trial court’s lack of an explicit finding concerning an issue. See Pawlus v.

Bartrug (1996), 109 Ohio App.3d 796, 801, 673 N.E.2d 188; Wangugi v.

Wangugi (Apr. 12, 2000), Ross App. No. 2531, 2000 WL 377971; Ruby v.

Ruby (Aug. 11, 1999), Coshocton App. No. 99CA4, 1999 WL 668556.

When a party fails to request findings of fact and conclusions of law, we

ordinarily presume the regularity of the trial court proceedings. See, e.g.,

Bunten v. Bunten (1998), 126 Ohio App.3d 443, 447, 710 N.E.2d 757; see

also Cherry v. Cherry (1981), 66 Ohio St.2d 348, 356, 421 N.E.2d 1293;

Security Natl. Bank & Trust Co. v. Springfield City School Dist. Bd. of Edn.

(Sept. 17, 1999), Clark App. No. 98-CA-104, 1999 WL 812372; Donese v.

Donese (Apr. 10, 1998), Green App. No. 97-CA-70, 1998 WL 165012. This

means that we generally must presume that the trial court applied the law

correctly and must affirm if some evidence in the record supports its

judgment. See, e.g., Bugg v. Fancher, Highland App. No. 06CA12, 2007-

Ohio-2019, at ¶10, citing Allstate Fin. Corp. v. Westfield Serv. Mgt. Co.

(1989), 62 Ohio App.3d 657, 577 N.E.2d 383; see also Yocum v. Means,
2
  Civ.R. 52 states: “When questions of fact are tried by the court without a jury, judgment may be general
for the prevailing party unless one of the parties in writing requests otherwise * * * in which case, the court
shall state in writing the conclusions of fact found separately from the conclusions of law.”
Scioto App. No. 10CA3343                                                   13


Darke App. No. 1576, 2002-Ohio-3803, at ¶ 7 (“The lack of findings

obviously circumscribes our review”). As the court explained in Pettet v.

Pettet (1988), 55 Ohio App.3d 128, 130, 562 N.E.2d 929:

             [W]hen separate facts are not requested by counsel
       and/or supplied by the court the challenger is not entitled to be
       elevated to a position superior to that he would have enjoyed
       had he made his request. Thus, if from an examination of the
       record as a whole in the trial court there is some evidence from
       which the court could have reached the ultimate conclusions of
       fact which are consistent with [its] judgment the appellate court
       is bound to affirm on the weight and sufficiency of the
       evidence. The message is clear: If a party wishes to challenge
       the * * * judgment as being against the manifest weight of the
       evidence he had best secure separate findings of fact and
       conclusions of law. Otherwise his already “uphill” burden of
       demonstrating error becomes an almost insurmountable
       “mountain.”

See also Bugg; McCarty v. Hayner, Jackson App. No. 08CA8, 2009-Ohio-

4540, at fn. 1. Consequently, in the case at bar, we will presume the

regularity of the trial court proceedings, in the absence of evidence to the

contrary.

                                      B

                           STANDARD OF REVIEW

       {¶ 26} We will not reverse a trial court’s judgment in a civil action

unless it is against the manifest weight of the evidence. A trial court’s

judgment is not against the manifest weight of the evidence so long as some

competent and credible evidence supports it. See, e.g., C.E. Morris Co. v.
Scioto App. No. 10CA3343                                                     14


Foley Constr. Co. (1978), 54 Ohio St.2d 279, 8 O.O.3d 261, 376 N.E.2d

578, syllabus. In determining whether a trial court’s judgment is against the

manifest weight of the evidence, a reviewing court must not reweigh the

evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 79-80,

461 N.E.2d 1273. Under this highly deferential standard of review, we do

not decide whether we would have come to the same conclusion as the trial

court. Amsbary v. Brumfield, 177 Ohio App.3d 121, 2008-Ohio-3183, 894

N.E.2d 71, at ¶11. Instead, we must uphold the judgment so long as the

record contains “some evidence from which the trier of fact could have

reached its ultimate factual conclusions.” Id., citing Bugg v. Fancher, 2007-

Ohio-2019, at ¶9. Moreover, we presume that the trial court’s findings are

correct because the trial court “is best able to view the witnesses and observe

their demeanor, gestures, and voice inflections, and use those observations in

weighing the credibility of the proffered testimony.” See, e.g., Seasons Coal

Co. at 80; Jones v. Jones, Athens App. 07CA25, 2008-Ohio-2476, at ¶18.

This means that the trier of fact is free to believe all, part, or none of the

testimony of any witness who appears before it. Rogers v. Hill (1998), 124

Ohio App.3d 468, 470, 706 N.E.2d 438; Stewart v. B.F. Goodrich Co.

(1993), 89 Ohio App.3d 35, 42, 623 N.E.2d 591. Furthermore, an appellate

court should not substitute its judgment for that of the trial court when the
Scioto App. No. 10CA3343                                                        15


record contains competent, credible evidence going to all the essential

elements of the case. Seasons Coal.

                                        C

                             DELIVERY OF DEED

       {¶ 27} In the case at bar, the trial court determined that Carl “executed

a valid deed transferring” the Grace Street property but that he failed to

record it. Appellant claims that the trial court erred by finding that the deed

validly transferred the property because the record contains no evidence that

Carl delivered the deed to appellee. While appellant may be correct that

there is no direct evidence that Carl physically delivered the deed to

appellee, the record contains some competent and credible evidence that

Carl “delivered” the deed.

       {¶ 28} A deed must be delivered to be operative as a transfer of

ownership of land. Kniebbe v. Wade (1954), 161 Ohio St. 294, 297, 118

N.E.2d 833.        “Delivery imports transfer of possession or the right to

possession of the instrument with the intent to pass title as a present transfer.

It is essential to delivery that there not only be a voluntary delivery, but there

must also be an acceptance thereof on the part of the grantee, with the

mutual intention of the parties to pass title to the property described in the

deed.” (Emphasis deleted.) Id. at 297. If the grantee possesses the deed,
Scioto App. No. 10CA3343                                                       16


then a presumption of delivery exists. See id. However, manual delivery is

not essential. See Dukes v. Spangler (1878), 35 Ohio St. 119; Lessee of

Shirley v. Ayres (1846), 14 Ohio 307, 45 Am.Dec. 546, paragraph one of the

syllabus (“It is not essential to the validity of a deed, that it be actually

delivered to, or ever pass into the hands of the, grantee”). Instead, “ ‘the fact

of delivery may be found from the acts of the parties preceding, attending,

and subsequent to the signing, sealing, and acknowledgment of the

instrument.’ ” In re Kusar’s Estate (1965), 5 Ohio Misc. 23, 33, 211 N.E.2d

535, quoting Dukes at paragraph one of the syllabus.

       {¶ 29} Recording a deed perfects delivery.       See Candlewood Lake

Assn. v. Scott (Dec. 27, 2001), Franklin App. No. 01AP-631, 2001 WL

1654288, citing Romaniw-Dubas v. Polowyk (Aug. 10, 2000), Cuyahoga

App. No. 75980, 2000 WL 1144784. However, “a deed does not have to be

recorded to pass title. Whether or not recorded, a deed in Ohio passes title

upon its proper execution and delivery, so far as the grantor is able to convey

it.” Wayne Bldg. & Loan of Wooster v. Yarborough (1967), 11 Ohio St.2d

195, 212, 228 N.E.2d 841. Furthermore, “[a]ctual manual delivery of a deed

is not always required to effectuate the grantor’s intention to deliver; the

filing and recording thereof being prima facie evidence of delivery, in the

absence of any showing of fraud.” Behymer v. Six, Morgan CA02-006,
Scioto App. No. 10CA3343                                                    17


2002-Ohio-6403, at ¶13, citing Frank v. Barnes (1931), 40 Ohio App. 328,

337, 178 N.E. 419, citing Lessee of Mitchell v. Ryan, 3 Ohio St. 377.

       {¶ 30} In the case at bar, the trial court could have determined that

appellee’s testimony sufficiently demonstrated that Carl delivered the deed

to her. Appellee testified that Carl executed the deed and showed it to her.

She stated that she gave him money to record the deed and that he informed

her that he had recorded it. Based upon this testimony, and in the absence of

contrary evidence, the trial court could have found that Carl had a present

intention to transfer the property and thus, that he delivered the deed. The

record does not contain any direct evidence of Carl’s intent.     Rather, the

record contains only appellee’s testimony as to what Carl told her upon

execution of the deed. Simply because Carl did not record the deed does not

mean that he did not deliver the deed. Moreover, a valid delivery does not

require the grantor to physically deliver the deed to the grantee. Here, Carl

led appellee to believe that he had effected a valid transfer of the property.

Because Carl did not testify at trial, his precise intention at the moment he

executed the deed is unknown, but appellee’s testimony sufficiently

demonstrates that he possessed a present intention to transfer the property to

her.

                                      D
Scioto App. No. 10CA3343                                                      18


                           CONSTRUCTIVE TRUST

       {¶ 31} Here, even if the foregoing facts do not sufficiently show that

Carl delivered the deed to appellee, we may uphold the trial court’s

judgment on an alternate basis. See, e.g., State ex rel. Galloway v. Cook,

126 Ohio St.3d 332, 2010-Ohio-3780, 933 N.E.2d 807, at ¶4, quoting State

ex rel. Swain v. Bartleson, 123 Ohio St.3d 125, 2009-Ohio-4690, 914

N.E.2d 403, ¶1 (“ ‘We will not reverse a correct judgment simply because

some or all of a lower court’s reasons are erroneous’ ”); State ex rel.

McGrath v. Ohio Adult Parole Auth., 100 Ohio St.3d 72, 2003-Ohio-5062,

796 N.E.2d 526, at ¶8 (“Reviewing courts are not authorized to reverse a

correct judgment on the basis that some or all of the lower court’s reasons

are erroneous”). The evidence demonstrates that even if appellant validly

held legal title, appellee is entitled to a constructive trust over the property

and an order directing appellant to convey the property to her.

       {¶ 32} A constructive trust is a remedial device used to prevent fraud

and unjust enrichment. See Estate of Cowling v. Estate of Cowling, 109

Ohio St.3d 276, 2006-Ohio-2418, 847 N.E.2d 405, at ¶19, citing Ferguson v.

Owens (1984), 9 Ohio St.3d 223, 9 OBR 565, 459 N.E.2d 1293, and Aetna

Life Ins. Co. v. Hussey (1992), 63 Ohio St.3d 640, 642, 590 N.E.2d 724.

The Ferguson court further described it as follows:
Scioto App. No. 10CA3343                                                     19


             “A constructive trust is the formula through which the
       conscience of equity finds expression. When property has been
       acquired in such circumstances that the holder of the legal title
       may not in good conscience retain the beneficial interest, equity
       converts him into a trustee. * * * A court of equity in decreeing
       a constructive trust is bound by no unyielding formula.”

Ferguson at 225-226, quoting Beatty v. Guggenheim Exploration Co.

(1919), 225 N.Y. 380, 386, 389, 122 N.E. 378; see also Cosby v. Cosby, 96

Ohio St.3d 228, 2002-Ohio-4170, 773 N.E.2d 516. “ ‘[A] constructive trust

may also be imposed where it is against the principles of equity that the

property be retained by a certain person even though the property was

acquired without fraud.’ ” Estate of Cowling at ¶ 19, quoting Ferguson at

226, citing 53 Ohio Jurisprudence 2d (1962) 578-579, Trusts, Section 88; V

Scott on Trusts (3d Ed.1967) 3412, Section 462.           “ ‘By imposing a

constructive trust, a court orders a person who owns legal title to property to

hold or use the property for the benefit of another or to convey the property

to another to avoid unjust enrichment.’ ”       Bishop v. Bishop, 188 Ohio

App.3d 98, 934 N.E.2d 420, 2010-Ohio-2958, at ¶17, quoting Groza-Vance

v. Vance, 162 Ohio App.3d 510, 2005-Ohio-3815, 834 N.E.2d 15, at ¶15.

“Ordinarily a constructive trust arises without regard to the intention of the

person who transferred the property.” Bilovocki v. Marimberga (1979) 62

Ohio App.2d 169, 172, 405 N.E.2d 337, citing V Scott, Section 404.2.

However, “[t]he duty to convey the property may arise because it was
Scioto App. No. 10CA3343                                                      20


acquired through fraud, duress, undue influence or mistake, or through a

breach of a fiduciary duty, or through the wrongful disposition of another's

property. The basis of the constructive trust is the unjust enrichment which

would result if the person having the property were permitted to retain it.”

Bilovocki v. Marimberga 171-172, citing V Scott, Section 404.2. “ ‘In

applying the theories of constructive trusts, courts also apply the well known

equitable maxim, “equity regards [as] done that which ought to be done.” ’ ”

Estate of Cowling v. Estate of Cowling, 109 Ohio St.3d 276, 2006-Ohio-

2418, 847 N.E.2d 405, at ¶19, quoting Ferguson, 9 Ohio St.3d at 226, 9

OBR 565, 459 N.E.2d 1293, quoting V Scott at 3412, Section 462.

       {¶ 33} In the case at bar, appellee testified that Carl signed the deed

and that he showed her a copy of the signed deed. She further testified that

she gave Carl money to record the deed and that he told her he had recorded

it. Carl’s failure to actually record the deed might show that (1) his original

intention was fraudulent, (2) after he transferred the property to appellee, he

changed his mind, or (3) he forgot to record the deed. In any event, his

actions led appellee to believe that he intended to transfer the property to her

and that he had properly recorded the deed.         However, his subsequent

transfer of the property to appellant lends support to the theory that Carl

intended to defraud appellee. Carl obviously knew that appellee believed
Scioto App. No. 10CA3343                                                       21


that she held title to the property when he attempted to transfer the property

to appellant.      And the trial court found that appellant had actual and

constructive notice that Carl had an unrecorded deed that conveyed the

property to appellee.      Carl’s and appellant’s actions suggest that they

attempted to defraud appellee of property that rightfully belongs to her. It

would be against the principles of equity if appellant were to retain the

property, even if his actions were not fraudulent.         Equity dictates that

appellee be declared the rightful owner of the Grace Street property.

Consequently, even if the facts do not establish “delivery,” we can uphold

the trial court’s judgment on the alternate basis that the trial court could have

determined to impose a constructive trust and enter an order directing

appellant to convey the property to appellee. The trial court undoubtedly

reached the correct result, and we will not reverse its judgment, even

assuming its reasoning was erroneous.

       {¶ 34} Accordingly, based upon the foregoing reasons, we overrule

appellant’s second assignment of error and affirm the trial court’s judgment.

                                                            Judgment affirmed.

       MCFARLAND, J., concurs.

       HARSHA, P.J., and KLINE, J., concur separately.

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Scioto App. No. 10CA3343                                                       22


        HARSHA, Presiding Judge, concurring:

        {¶ 35} I concur in judgment and opinion regarding the first assignment

of error and in Judge Kline’s disposition of the second assignment of error.

                            __________________

        KLINE, Judge, concurring:

        {¶ 36} I concur in judgment and opinion but write separately to

explain my reasoning for overruling appellant’s second assignment of error.

I would overrule this second assignment of error based only on the

competent, credible evidence establishing the constructive delivery of the

deed.

        {¶ 37} The narrow question is whether the following facts can

demonstrate constructive delivery of a deed. The mother transferred the

property to the son in exchange for her lifetime care. The son moved in with

his mother but eventually could not carry out his end of the bargain. So, he

decided to transfer the property back to the mother. The mother had her

lawyer draw up a quitclaim deed. The lawyer did so and brought the deed to

the house for signature. But the son was not present. The lawyer left, and

the son later came to the lawyer’s office and signed the deed. The son then

brought the deed home and showed the executed deed to the mother. The

mother said, “Why [don’t you] let [my attorney] go ahead and record it for
Scioto App. No. 10CA3343                                                     23


me.” The son replied, “Well, I’ll take it down and do it.” The mother then

gave the son $15. The record is not clear on whether this payment was a fee

to be paid to the son or to pay for the filing of the deed with the county

recorder’s office.

       {¶ 38} In either event, the trial court could have easily concluded that

constructive delivery had taken place. According to the mother’s testimony

(which the court as the trier of fact was entitled to credit), the son in fact

agreed to become her agent for the filing of the deed with the recorder’s

office. Even though the deed did not change hands and enter into the

mother’s possession, nonetheless, delivery was perfected. He no longer

possessed the deed on his own behalf, but recognized the mother’s right to

the deed by taking the money and agreeing to file it.

       {¶ 39} In my view, these competent, credible facts, under the cases

cited in the majority opinion, are sufficient to demonstrate constructive

delivery of the deed.

       {¶ 40} Thus, on this basis, I concur in judgment and opinion.

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