[Cite as Shimrak v. Goodsir, 2016-Ohio-1467.]


                Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                     Nos. 103270 and 103395



                                   PETER E. SHIMRAK, ET AL.

                                                      PLAINTIFFS-APPELLEES

                                                vs.

 SUSAN GOODSIR, AS SUCCESSOR TRUSTEE TO THE WILLIAM MEYER TRUST

                                                      DEFENDANT-APPELLANT




                                       JUDGMENT:
                           AFFIRMED IN PART; REVERSED IN PART
                                     AND REMANDED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-12-794008

        BEFORE: Keough, P.J., E.A. Gallagher, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: April 7, 2016
ATTORNEY FOR APPELLANT

Mark I. Wachter
Wachter, Kurant, L.L.C.
30195 Chagrin Boulevard
Suite 300, Pepper Pike Place
Cleveland, Ohio 44124


ATTORNEYS FOR APPELLEES

Amanda A. Barreto
Steven M. Ott
Lindsey A. Wrubel
Ott & Associates Co., L.P.A.
1300 East Ninth Street
Suite 1520
Cleveland, Ohio 44114




KATHLEEN ANN KEOUGH, P.J.:
       {¶1}    Defendant-appellant, Susan Goodsir (“Goodsir”), successor trustee to the William

Meyer Trust, appeals from the trial court’s judgment that determined damages for breach of a

real estate transaction. We affirm in part, reverse in part, and remand.

                                         I. Background

       {¶2}    On May 24, 2006, plaintiffs-appellees Peter and Patricia Shimrak (the

“Shimraks”) entered into an agreement to purchase residential property from Goodsir for

$340,000, the full asking price for the home. On August 18, 2006, after they were unable to

obtain financing, the Shimraks notified Goodsir that they would be withdrawing from the

transaction. Goodsir then relisted the house for sale, eventually selling the house in May 2007

for $272,000 — $68,000 less than what the Shimraks had agreed to pay.

       {¶3}    The Shimraks initiated this action in the Rocky River Municipal Court, seeking

return of the $2,000 they paid as earnest money for the purchase. Goodsir then counterclaimed

for breach of contract relating to the Shimraks’ failure to perform as outlined in the purchase

agreement. She also sought a declaratory judgment of her rights under the purchase agreement.

With Goodsir’s counterclaim exceeding the monetary jurisdiction of the municipal court, the case

was transferred to the court of common pleas. The court of common pleas then released the

earnest money to the Shimraks without objection from Goodsir.

       {¶4}    After a hearing on the declaratory judgment action, the trial court found in favor

of the Shimraks. On appeal, this court reversed the trial court’s judgment, finding that the

Shimraks had breached their performance obligations under the terms of the agreement relating

to obtaining financing, and could not unilaterally withdraw from the purchase agreement.

Shimrak v. Goodsir, 8th Dist. Cuyahoga No. 100612, 2014-Ohio-3716, ¶ 15. Accordingly, this
court remanded the matter to the trial court to enter judgment for Goodsir and determine

damages.

       {¶5}    On remand, the parties submitted briefs regarding the issue of damages, and the

trial court heard argument from counsel. After argument, the court ordered the parties to

provide, by affidavit, responses to the following questions:

       1.      At the time the Shimraks made their offer, what was the amount of the
               “other offer on the house” that Goodsir had received?

       2.      What steps did the Goodsirs undertake to contact the individuals who
               made “the other offer on the house,” and when were those steps taken?

       3.      Why was the other offer not available?

       {¶6} In response, Goodsir submitted an affidavit from Hilarie Hilonis, her real estate

agent during the transaction.      Hilonis averred that the other offer on the house was

approximately $319,000, and that when she learned that the Shimraks would not follow through

with the purchase agreement, she immediately contacted the couple who had submitted the other

offer. That couple had moved on to another transaction, however, and was no longer interested

in Goodsir’s property.

       {¶7} The Shimraks responded that the other offer was $305,000, as indicated by an email

dated August 4, 2006, from Hilonis to Goodsir that was admitted at trial.

       {¶8} The trial court subsequently issued the following judgment entry:

       The Court finds that the measure of damages is $35,000 plus interest from August
       16, 2006. The Court finds that the fair market value at the time of the breach was
       what a willing buyer would have paid a willing seller. While there seems to be a
       dispute as what the offer was at the time the Shimraks made their offer and at the
       time of the breach, Shimraks’ counsel stated that it was $305,000. The difference
       between $340,000 and $305,000 is $35,000. Thereforth [sic], the Court award
       damages at $35,000.
         {¶9} When Goodsir’s counsel subsequently attempted to file a judgment lien with the

clerk of courts, the clerk rejected counsel’s attempt and wrote on the judgment entry, “Need a

clear JE if you are reversing creditor/debtor.”1 (Emphasis sic.) Goodsir then filed a Civ.R.

60(A) motion, asking the court to clarify the ambiguity as to which party was the judgment

creditor and which the judgment debtor. The trial court denied the motion, and this appeal

followed.

                                                II. Analysis

         {¶10} In her first assignment of error, Goodsir contends that the trial court’s award of

$35,000 in damages was against the manifest weight of the evidence. A judgment supported by

competent, credible evidence will not be reversed by a reviewing court as against the manifest

weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 367 N.E.2d

578, syllabus.

         {¶11} The proper measure of damages for a buyer’s breach of contract for the sale of real

property is the difference between the original contract price and the fair market value of the

property at the time of the breach. Snider-Cannata Interests, LLC v. Ruper, 8th Dist. Cuyahoga

No. 93401, 2010-Ohio-1927, ¶ 45, citing Roesch v. Bray, 46 Ohio App.3d 49, 50, 545 N.E.2d

1301 (6th Dist.1988). Fair market value is generally defined as the price that would be agreed

upon between a willing seller and a willing buyer in a voluntary sale on the open market. Loft v.

Sibcy-Cline Realtors, 1st Dist. Hamilton No. C-880446, 1989 Ohio App. LEXIS 4593 (Dec. 13,

1989).




1
 Because this action was originally filed by the Shimraks in the Rocky River Municipal Court, they appear as the
plaintiffs in the case and Goodsir appears as a defendant.
       {¶12} Defense counsel conceded at oral argument that the Shimraks’ breach occurred on

June 26, 2006, 30 days after Goodsir accepted the Shimraks’ offer, and when the purchase

agreement required the Shimraks to exercise their options under the contract related to obtaining

financing. The trial court apparently considered the offer of $305,000 that was presented to

Goodsir in May 2006, a month before the Shimraks’ breach, as evidence of the fair market value

of the property at the time of the breach.

       {¶13} Goodsir contends that this offer was not evidence of the fair market value of the

property at the time of the Shimraks’ breach because her retrospective appraisal of the property,

conducted in April 2013, determined that the fair market value of the property on August 16,

2006 was $275,000. The appraisal is admittedly some evidence of the fair market value of the

property.   But the $305,000 offer is also evidence of the fair market value because it

demonstrates what a willing purchaser would have paid for the property at a point in time close

to the Shimraks’ breach. As trier of fact, the trial court was free to decide which evidence it

found more credible.

       {¶14} We are not persuaded by Goodsir’s argument that the $305,000 number is invalid

because it came only from statements of the Shimraks’ counsel; as noted, an email from

Goodsir’s agent to Goodsir that was introduced at trial stated that the other offer was $305,000.

       {¶15} We are also not persuaded by Goodsir’s argument that the $305,000 figure is not

valid because the offer was made before instead of after the Shimraks’ breach. The offer was

presented in May 2006, only a month before the Shimraks’ breach. Although the cases that

determine the fair market value of property based upon a subsequent sale after a breach discuss

after-breach offers to determine the fair market value of property, we find no hard and fast rule in
the case law that a court may consider only after-breach offers to determine the fair market value

of property.

       {¶16} Accordingly, because there was some competent, credible evidence in the record to

support the trial court’s decision, we cannot find that the trial court’s decision was against the

manifest weight of the evidence. The first assignment of error is overruled.

       {¶17} In her second assignment of error, Goodsir contends that the trial court erred in

denying her Civ.R. 60(A) motion requesting that court clarify the ambiguity in its judgment entry

as to which party was the judgment creditor and which the judgment debtor.

       {¶18} Civ.R. 60(A) permits a trial court to correct clerical mistakes that are apparent on

the record. The term “clerical mistake” refers to a mistake or omission that is apparent on the

record but does not involve a substantive legal decision or judgment. State ex rel. Litty v.

Leskovyansky, 77 Ohio St.3d 97, 100, 671 N.E.2d 236 (1996).

       {¶19} Civ.R. 60(A) relief was appropriate for the trial court’s failure to specifically

render judgment in favor of Goodsir in its judgment entry. See Bobb Forest Prods. v. Morbark

Indus., 151 Ohio App.3d 63, 2002-Ohio-5370, 783 N.E.2d 560, ¶ 18 (7th Dist.). The court’s

failure to clearly designate the judgment creditor and judgment debtor was a mistake that could

be remedied pursuant to Civ.R. 60(A). In light of the clerk of court’s rejection of Goodsir’s

attempt to file a judgment lien using the journal entry, and the clerk’s notation on the journal

entry that “Need a clear JE if you are reversing creditor/debtor,” the trial court abused its

discretion in denying Goodsir’s Civ.R. 60(A) motion to correct the ambiguity. The second

assignment of error is sustained.

       {¶20} Judgment affirmed in part, reversed in part, and remanded, with instructions for the

trial court to clarify its judgment entry to reflect judgment for Goodsir in the amount of $35,000,
plus interest from June 24, 2006. Such judgment is to clearly designate Goodsir as the judgment

creditor and the Shimraks as the judgment debtors.

       It is ordered that the parties share equally costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR
