[Cite as Hoening v. Frick, 2011-Ohio-6804.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    DARKE COUNTY

MARY LOU HOENING                                 :
                                                 :     Appellate Case No. 2010-CA-22
        Plaintiff-Appellant                      :
                                                 :     Trial Court Case No. 08-CV-64840
v.                                               :
                                                 :
DANIEL FRICK                                     :     (Civil Appeal from
                                                 :     (Common Pleas Court)
        Defendant-Appellee               :
                                                 :
                                              ...........

                                              OPINION

                           Rendered on the 30th day of December, 2011.

                                              ...........

MARY LOU HOENING, Post Office Box 375, Gettysburg, Ohio 45328
    Plaintiff-Appellant, pro se

PAUL H. SHANEYFELT, Atty. Reg. #0065629, Dungan & LeFevre Co., L.P.A., 210 West
Main street, Troy, Ohio 45373
       Attorney for Defendant-Appellee

                                                      .............

        FAIN, J.

        {¶ 1} Plaintiff-appellant Mary Hoening appeals from a judgment of the Darke County

Court of Common Pleas dismissing her claims for fraud and conversion against

defendant-appellee Daniel Frick. Hoening contends that the trial court erred in finding that

Hoening agreed to give Frick possession of real estate as of August 1, 2008. She also
                                                                                            2


contends that the trial court abused its discretion by continuing the trial date.       Finally,

Hoening claims that the trial court made numerous errors during the course of trial and that the

judgment is against the manifest weight of the evidence.

       {¶ 2} We conclude that the trial court did not abuse its discretion when it continued

the trial date – Hoening had requested the continuance. We further conclude that the claimed

trial errors are without merit.    Finally, we conclude that the trial court’s findings and

judgment are supported by competent, credible evidence.

       {¶ 3} Accordingly, the judgment of the trial court is Affirmed.

                                               I

       {¶ 4} Mary Hoening and her husband, Carl, were the owners of a residence, barns

and acreage located at 8216 Ryan Run in Darke County. The Hoenings did not live on the

property, but used it as a “catch-all for all [their] junk and many precious things [they] could

not part with.” The record shows that Hoenings’ sons used the property to store their “junk

cars and lumber,” and that parts of the property were run down.

       {¶ 5} In January 2008, the Darke County Health Department sent an inspector to the

property due to complaints from neighbors.         The inspector noted that there was “junk”

scattered all over the property and that one of the barns was falling down. She noted that the

amount of things scattered across the property was “overwhelming.” The Health Department

immediately sent a letter to the Hoenings giving them thirty days to clean the property. In

March the inspector returned to the property and found no change. Then in April, the

inspector was notified by Mary Hoening that she had a potential buyer for the property. The

record shows that the Hoenings could not afford to effect the clean-up of the property, so they
                                                                                                3


decided that they had to sell.

       {¶ 6} Thereafter, on April 17, 2008, Hoening and Daniel Frick executed a contract

for the purchase of the property.    The contract, which was signed by both Hoening and Frick,

stated that “if closing can be by May 15, 08,” Hoening agreed to sell the house to Frick for the

sum of $47,000. The contract further stated that “[p]ossession of the property [is] to be given

on July 15, 08.” The contract also stated that Hoening “may leave leftover refuse for disposal

by Mr. Frick.”

       {¶ 7} Frick was unable to obtain financing, and was unable to close on May 15.

Hoening executed a handwritten note dated May 14 stating that she had received $5,000 from

Frick as a down payment on the house. The note stated, “[b]alance due at closing in 30

days.” The note was signed by Hoening.

       {¶ 8} The closing took place on June 13, 2008. Thereafter, a dispute arose regarding

possession. Hoening contended that the original contract gave Frick possession two months

after closing. Frick contended that the date for possession remained unchanged from the

original contract date of July 15.

       {¶ 9} Hoening had many boxes of personal items, clothes, and other items located in

the house after the closing date. She claimed that she intended to clear the house prior to the

date Frick was to take possession. To that end, she claimed that she was on the property

almost daily trying to sort the items into things to keep, things to sell, and things to dispose of.

 She held a professional auction on the property on June 13, 2008. However, many of her

items did not sell and she continued to sort through them.

       {¶ 10} Frick was not given possession of the home on the stated contract date of July
                                                                                            4


15, and the dispute over possession of the home continued. Hoening then sent a handwritten

letter, dated July 23, to Frick stating in pertinent part that she would “have the house cleaned

out for [Frick] for August 1st.”

       {¶ 11} Hoening claims that on August 1, 2008, Frick “went to the home of the

[Hoenings] requesting a key to the property on the basis that he wanted to walk through the

property to begin assessing what work he would need to do.” Hoening gave Frick a key, but

claims she told him to return it. She claims that once he gained access to the residence he

changed the locks thereon. She further claims that Frick disposed of or destroyed personal

property contained in the residence by disposing of it in a dumpster she had rented and placed

on the property.

       {¶ 12} On August 12, 2008, Mary Hoening filed a complaint against Daniel Frick.

The case was assigned case number 08-CV-64840. Hoening set forth claims sounding in

conversion and fraud against Frick, whom she contended had destroyed, or disposed of, her

personal property that had been left in the residence and on the property. Hoening also filed a

motion for a temporary restraining order restraining Frick from disposing of her property. A

temporary restraining order requiring that Frick not damage or dispose of Hoening’s personal

property was entered on August 15. Hoening had the dumpster and its contents moved to the

home she was living in at the time. Thereafter, Frick filed an answer and a counterclaim in

which he alleged that Hoening had sold him a defective house.

       {¶ 13} In May, Hoening’s counsel withdrew, and Hoening, acting pro se, moved to

continue the trial date, which had been set for June 11, 2009. The trial court denied the

motion.    Hoening dismissed her complaint pursuant to Civ.R. 41(A), and the matter
                                                                                          5


proceeded to trial on Frick’s counterclaim. The trial court entered judgment in favor of Frick

and Hoening appealed.

       {¶ 14} On appeal, we held that the trial court had abused its discretion by denying

Hoening’s motion to continue. Hoening v. Frick, 187 Ohio App.3d 139, 2010-Ohio-1788, ¶

17. The judgment was reversed and the cause was remanded for further proceedings. Id.

       {¶ 15} On June 8, 2010, Hoening re-filed her complaint under new case number

10-CV-437.     The complaint was exactly the same as the previous complaint with the

exception that Hoening’s husband, Carl, was added as a plaintiff.

       {¶ 16} The trial court filed an entry in the 2008 case setting Frick’s counterclaim for

trial on July 19, 2010. On July 7, 2010, Hoening filed a motion for a continuance in both

cases. She also asked that the cases be consolidated. The trial court denied both requests.

Later, on July 12, 2010, a notice of appearance of counsel was filed on behalf of Hoening

along with another request for a continuance of the trial date.

       {¶ 17} On July 16, the parties attended a pretrial hearing, with counsel, during which

the trial court granted a continuance and set the trial of both cases for November 12, 2010.

Although the trial court refused to consolidate the cases, it entered an order that the cases

would be tried at the same time. Following the trial, the court entered judgment, dated

November 24, in favor of Frick in the amount of $11,677.66.           The trial court further

dismissed all of the Hoenings’ claims due to a “failure of proof.”

       {¶ 18} From the judgment against them, the Hoenings appealed.        Mr. Hoening has

died since the filing of the notice of appeal. Mrs. Hoening, by motion filed herein November

28, 2011, has asked this court to consider “new vital evidence.”        Specifically, she has
                                                                                           6


submitted a picture of the residence, which she claims refutes the testimony of Frick’s expert.

On appeal, we are limited to the record made up in the trial court. Accordingly, the motion

asking us to consider new evidence is denied.

                                                II

       {¶ 19} Hoening’s’ First Assignment of Error states as follows:

       {¶ 20} “THE TRIAL COURT ERRED IN RELYING ON ANY PROVISION OF A

NON-ENFORCEABLE CONTRACT, CONTRACT NOT HAVING BEEN PERFORMED

IN A TIMELY MANNER.             COURT RELIED PREJUDICIALLY IN MANY AREAS,

GIVING UNDUE CREDIBILITY TO MR. DANIEL FRICK WHILE DISPARAGING MRS.

HOENING’S TESTIMONY.                FOR INSTANCE: THE INTERPRETATION OF THE

BREACHED CONTRACT WITH ONLY THE TESTIMONY OF MR. FRICK AND MRS.

HOENING AS TO ORAL AGREEMENT TO EXTEND TIME TO MR. FRICK TO

ARRANGE THE CLOSING OF R.E. CONTRACT.”

       {¶ 21} From our review of the brief and the record, it appears that Hoening complains

in this assignment of error that the trial court erred in finding that Frick was entitled to

possession of the property as of August 1, 2008. She contends that the date for possession

was set as two months after closing, which was August 12.

       {¶ 22} The validity of the original contract was not disputed in the trial court; the

dispute was whether the date for possession changed when the closing date was changed by

written agreement. According to Hoening’s testimony, the closing date was understood by

both her and Frick as being set to occur two months following closing. According to Frick,

the closing date was not changed.
                                                                                                                7


        {¶ 23} The trial court found that the original contract expressly stated that possession

was to be given to Frick on July 15, “[h]owever, by Mr. Frick’s agreement after the closing,

possession was delayed until August 1, 2008, and such date is binding on both parties.”

        {¶ 24} We agree that based upon the testimony and the letter from Hoening to Frick,

the possession date was, at the latest, set for August 1, 2008.1 As of that date, Frick was free

to enter the property and dispose of any “leftover refuse” as provided for in the original

contract.       While Hoening contends that many items left on the property were valuable

personal items, there was contradictory testimony by the Health Department inspector and

Frick, upon which the trial court could validly rely, which indicated that the items on the

property were junk to be disposed of after the date for possession.

        {¶ 25} We conclude that the trial court’s judgment concerning the date for Frick to

take possession of the property is supported by competent, credible evidence. Thus, we will

not disturb that judgement as being against the weight of the evidence. See C.E. Morris Co.

v.. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus.

        {¶ 26} The First Assignment of Error is overruled.

                                                        III

        {¶ 27} Hoening asserts the following for her Second Assignment of Error:

        {¶ 28} “THE COURT ABUSED IT’S [SIC] DISCRETION WHEN ON JULY 19,

2010 IT REFUSED TO HEAR THE CASE BEFORE IT. A CASE WHICH HAD BEEN

REMANDED FOR RETRIAL. THIS WAS CASE #Q8-CV-64840 COUNTER-CLAIM OF

            1
             It appears to us, however, that the date for possession was set forth in the original contract and that the
 date was not amended by subsequent writing. Further, it does not appear to us that Frick agreed to extend the date
 for possession; it appears that he was simply prevented from gaining entrance due to the actions of the Hoenings.
 Thus, we would have concluded that Frick was entitled to possession on July 15, 2008.
                                                                                             8


MR. FRICK APPELLATE CASE 2009-CA-08. THE TRIAL COURT’S CANCELLING OF

THE HEARING WHEN ALL PERTINENT PARTIES WERE PRESENT AND WAITING

WAS A GROSS MISCARRIAGE OF JUSTICE.”

        {¶ 29} In this argument, it appears that Hoening takes issue with the fact that the trial

court failed to hold a trial on July 19, 2010. She argues that she was present for trial on that

date and had witnesses “waiting in the hallway.”

        {¶ 30} There is nothing in the record to establish that any party was present on July 19

or that witnesses were waiting for trial. The parties had, on July 16, been in court and agreed

to continue the trial date.

        {¶ 31} Further, Mrs. Hoening, acting pro se, had filed a motion seeking a continuance

of the July 19 trial date. Although her request was denied, her counsel filed a second motion

seeking a continuance a few days later. Thus, Hoening had a motion for a continuance

pending at the time the trial court granted the continuance. This was not a case, as Hoening

contends, of the trial court sua sponte continuing the trial date.

        {¶ 32} “The doctrine of invited error estops an appellant, in either a civil or criminal

case, from attacking a judgment for errors the appellant induced the court to commit. Under

that principle, a party cannot complain of any action taken or ruling made by the court in

accordance with the party's own suggestion or request.” Royse v. Dayton, Montgomery App.

No. 24172, 2011–Ohio–3509, ¶ 11, citing State v. Woodruff (1983), 10 Ohio App.3d 326.

Thus, we decline to find error when the action of the trial court was requested by the

Hoenings.

        {¶ 33} Additionally, if Mrs. Hoening later changed her mind about seeking a
                                                                                              9


continuance, she failed to communicate her change of mind to the trial court or to counsel. A

review of the transcript of the pretrial hearing demonstrates that both Mrs. Hoening and her

counsel were permitted to comment during the hearing, and neither objected to the

continuance. Indeed, when asked whether she had any questions regarding the decision to

continue the trial date, Mrs. Hoening replied, “I heard you, and I’m willing to go along with

whatever my attorney would like to do, sir. I thank you, and I apologize for the delays and

happenings. I was just trying to protect myself.”

       {¶ 34} Finally, we cannot find any prejudice from the trial court’s granting of the

motion. Mrs. Hoening had just retained counsel, who needed time to prepare the case for

trial. There is no indication in this record that, as claimed in the appellate brief, the Hoenings

had witnesses present either on the July 16, 2010 pretrial hearing date or on July 19, 2010.

And other than her conclusory claim that the decision resulted in prejudice, Mrs. Hoening

fails to demonstrate any prejudice stemming from the continuance.

       {¶ 35} We conclude that the trial court did not abuse its discretion, or commit error, in

continuing the trial date. We further conclude that even if the decision to continue was error,

no prejudice resulted. Accordingly, the Second Assignment of Error is overruled.

                                               IV

       {¶ 36} Hoening’s Third and Fourth Assignments of Error state:

       {¶ 37} “MOST IMPORTANT AND DAMAGING ERROR OF ALL REGARDING

THIS APPEAL. THE JUDGE IGNORED OR BYPASSED THE CASE OF HOENING VS.

FRICK, THE ORIGINAL CASE, CASE #08-64840 WHICH WAS NOT AMENDED; IT

WAS REFILLED [SIC] WITH NEW NUMBER 10-CV-00437 WITH THE ONLY CHANGE
                                                                                            10


BEING THE ADDITION OF MR. HOENING’S NAME, A HALF-OWNER OF ALL

MATTERS CONCERNED.               THE COURT HAD INSISTED ON COMBINING THE

CASES, HOENING VS. FRICK AND FRICK VS. HOENING, A COUNTERCLAIM

WHICH WAS REMANDED.               THE DIRECTION AND ABRUPT FINALIZATION OF

THESE MATTERS BY THE COURT APPEAR TO BE VERY PREJUDICIAL TO THE

HOENING CASE. THE JUDGMENT IN THIS MATTER IS ERRONEOUS, COSTLY

AND A TRAVESTY OF JUSTICE, CAUSING UNDENIABLE HARM TO MRS.

HOENING, PHYSICALLY, EMOTIONALLY AND FINANCIALLY.

       {¶ 38} “THE JUDGE RULED AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE HERETOFORE PRESENTED. ALTHOUGH THE COURT WAS STEERED

TO BYPASS MRS. HOENING’S WITNESSES, THE JUDGE HAD HEARD IT ALL IN

THE PRIOR SESSIONS. HE JUST CHOSE TO RULE AGAINST IT. I SEE ALL THIS

NOT ONLY AS A TRAVESTY ON JUSTICE, BUT INDEED AN OBSTRUCTION ON

JUSTICE.”

       {¶ 39} These assignments of error appear to be directed to the claim that the trial court

made numerous errors and that the judgment is against the manifest weight of the evidence.

       {¶ 40} First, Hoening complains that the trial court “bypassed” her evidence and

witnesses when it “craftily” suggested during trial that they “use the transcript of the remanded

case as testimony today.” She further contends that her counsel “set her up” to fail by

agreeing thereto.

       {¶ 41} A review of the record reveals that when Frick began to present his evidence,

the trial court and counsel agreed to use Frick’s testimony from the prior trial for his case in
                                                                                             11


chief. Both parties had the transcript of the prior trial, and counsel agreed that using that

testimony was acceptable. No other portion of the transcript was used. As will be discussed

below, Hoening’s witnesses and evidence were not “bypassed” by reason of this action.

Hoening’s counsel was permitted full cross-examination of Frick. And counsel, in fact,

engaged in a complete and effective cross-examination.

       {¶ 42} We find no nefarious purpose behind the decision to use Frick’s prior

testimony for his case in chief. It was simply a method of making efficient use of time. We

see no way that Hoening was prejudiced by this procedure.

       {¶ 43} Next, Hoening claims that the trial court “shut out” her witnesses. First, she

contends that her husband was limited to one question despite the fact that he would have

corroborated her testimony.     We find no support in the record for this assertion.         The

transcript demonstrates that counsel for the Hoenings stated, when he called Mr. Hoening to

the witness stand, that he had “really one question” to ask of him. However, counsel then

proceeded to ask six questions, all of which were directed at eliciting testimony that did in fact

corroborate Mrs. Hoening’s testimony. There is no indication in the record that the trial

court limited the testimony of Mr. Hoening.

       {¶ 44} Hoening next complains that, by continuing the trial date, the trial court

interfered with testimony that a neighbor would have provided. Hoening contends that the

neighbor had “worked in the disputed property with Mrs. Hoening before and after the sale on

July 19, 2008.” She claims that the neighbor was unavailable to testify because she was

residing in Florida for the winter. Again, we note that the continuance was granted at

Hoening’s request. Thus, this argument is without merit.
                                                                                           12


          {¶ 45} Hoening also complains that her daughters and Mr. Hoening’s brother were

prevented from testifying. She contends that one daughter would have testified that she

“considered” purchasing the property.       The other daughter would have testified that the

daughter’s husband observed Frick at the property prior to the date set for possession. Mr.

Hoening’s brother would have testified that “he accompanied Mrs. Hoening to Martino’s

Auction House where, together, they purchased a lot of small items belong [sic] to [Mr.

Hoening] brought in by Daniel Frick, for $300.00 (=/-) a little. Collectibles and personal

memorabilia.”

          {¶ 46} There is nothing in the record to support Hoening’s claim that these witnesses

were prevented from testifying. Furthermore, we fail to see how the fact that a daughter

considered purchasing the property, but ultimately declined to do so, is relevant to the issues

herein.     It appears that the testimony of the other daughter, concerning her husband’s

observations, would have constituted impermissible hearsay, and thus, would not have been

allowed at trial had it been presented. The testimony of Mr. Hoening’s brother also appears

to be based upon hearsay; there is no indication that he actually had first-hand knowledge as to

whether Frick sold the auction house the “collectibles and personal memorabilia.”

          {¶ 47} Hoening next contends that the trial court erred by failing to permit closing

arguments following trial.      However, we note that both parties were permitted to file

post-trial briefs setting forth their closing arguments. We have reviewed the brief filed by

Hoening’s counsel and conclude that it made a clear and concise argument. Therefore, we

find no error and no prejudice.

          {¶ 48} In support of her claim that the judgment is against the manifest weight of the
                                                                                              13


evidence, Hoening claims that “a lot of Frick’s testimony was lies,” and that his expert

carpenter and house inspector also lied.

       {¶ 49} “[T]he weight to be given the evidence and the credibility of the witnesses are

primarily matters for the trier of facts 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

demeanor, gestures and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.’ ” Id. 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., 54 Ohio St.2d 279 at syllabus; State v.

Wilson, at ¶ 24.

       {¶ 50} While Hoening claims that Frick lied to the trial court, we note that she fails to

make anything other than a general assertion in this regard. We have reviewed the entire

record. We cannot say that the trial court erred in giving credence to Frick’s testimony over

that of Hoening, especially given that Hoening’s testimony, at times, contradicted other

portions of her testimony. We further conclude that there was competent, credible evidence

that Frick did not dispose of any of Hoening’s personal property until after he took his rightful
                                                                                        14


possession of the real estate. We conclude that the contract for sale was valid and binding

and that it expressly provided that Frick should, and could, dispose of any items left on the

property after he took possession. Furthermore, there is credible evidence that Hoening

placed a dumpster on the property, that Frick placed all of her personal items into the

dumpster and that Hoening then took possession of the dumpster and its contents.

       {¶ 51} We conclude that the trial court’s judgment is supported by competent, credible

evidence. Accordingly, the Third and Fourth Assignments of Error are overruled.

                                             V

       {¶ 52} All of Hoening’s assignments of error having been overruled, the judgment of

the trial court is Affirmed.

                                                 .............

GRADY, P.J., and DONOVAN, J., concur.

Copies mailed to:

Mary Lou Hoening
Paul H. Shaneyfelt
Hon. Jonathan P. Hein
