[Cite as Bienyk v. Ogbonna, 2015-Ohio-4625.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                    LUCAS COUNTY


Joann B. Bienyk, Trustee                           Court of Appeals No. L-15-1051

        Appellant                                  Trial Court No. CVG-14-03468

v.

Ulo N. Ogbonna                                     DECISION AND JUDGMENT

        Appellee                                   Decided: November 6, 2015

                                               *****

        Margaret M. Weisenburger, for appellant.

        Thomas S. Douglas, for appellee.

                                               *****


        JENSEN, J.

        {¶ 1} Plaintiff-appellant, Joann B. Bienyk, Trustee, appeals the January 30, 2015

judgment of the Toledo Municipal Court in favor of defendant-appellee, Ulo N.

Ogbonna. For the reasons that follow, we find her first assignment of error not well-
taken, and her second assignment of error well-taken, in part, and not well-taken, in part.

We conclude that judgment in favor of Ogbonna should have been offset by an additional

$8,250, thus we enter judgment in her favor in the amount of $45,144.87.

                                   I. BACKGROUND

                       A. The Contracts, Delays in Vacating the
                          Property, and Delinquent Tax Bills

       {¶ 2} Bienyk was the owner of 714 and 724 S. Byrne Avenue in Toledo, Ohio.

There are two structures located at 714 S. Byrne, referred to as “South 714” and “North

714.” North 714 is a pole barn. At 724 S. Byrne, there are also two structures, referred

to as “Rear/South 724” and “Front/North 724.” Rear/South 724 is a two-story building

with a residence on the top floor and offices on the first floor. Front/North 724 is a

workshop area.

       {¶ 3} Bienyk entered into a purchase agreement on January 29, 2012, whereby she

agreed to sell the properties to Ogbonna. Ogbonna, a business owner, intended to use

Front/North 724 as a shop area, Rear/South 724 as a residence, North 714/pole barn as a

warehouse, and South 714 as storage. The total purchase price as set forth in the

agreement was $450,000. Ogbonna was to make a down payment of $60,000. The

agreement provided that $20,000 of that amount would be paid to Bienyk on April 1,

2012, so that she could secure a new residence. The remaining $40,000 was to be paid at

closing, which was scheduled for May 1, 2012. The agreement provided that Ogbonna

would take possession on June 1, 2012, and she would begin making monthly payments




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of $3,141.81 beginning July 1, 2012. Bienyk was to pay real estate taxes owed up to the

time of closing. These terms were to be reflected in a land contract.

       {¶ 4} Bienyk was not prepared to leave the premises by the originally agreed-upon

date, so on May 25, 2012, the parties entered into a purchase agreement change

addendum postponing the possession dates and extending the closing date to August 1,

2012. The August 1, 2012 closing date was postponed again, however, when it was

discovered that Bienyk owed delinquent property taxes. Bienyk entered into a delinquent

payment plan with the county auditor’s office on August 30, 2012. Bienyk and Ogbonna

closed on the properties on August 31, 2012. They executed a land installment contract

on that date.

       {¶ 5} Under the terms of the August 31, 2012 contract, Ogbonna was to take

possession of the property in pieces. Section 2 of the contract provided:

                Buyer shall have possession of the rear building of 724 S. Byrne

       Road, at closing, the Front Building of 724 S. Byrne Road, on October 1,

       2012, if said front building is not available, vacant, all debris, belongings

       removed, and in a broom swept clean condition, on October 1, 2012, Seller

       to pay rent of $1500.00 per month; Rear Buildings of 714 S. Byrne Road,

       December 1, 2012, and if said rear building of 714 S. Byrne Road is not

       available, vacant, all debris, belongings removed, and in a broom swept

       clean condition, by December 1, 2012, then Seller to pay rent of $1,000.00

       per month; and until the condition or conditions of this contract are broken.



3.
        {¶ 6} Bienyk did not relinquish possession in accordance with the terms of the

contract. Although Ogbonna obtained possession of South 714 at closing, she did not

obtain possession of 724 and the pole barn as scheduled. She ultimately received the

keys to North 724 in March of 2013, after paying $7,000 to Bienyk, however, Bienyk

prohibited Ogbonna’s contractor from accessing the property, and in April of 2013,

Ogbonna entered the building to find Bienyk’s son’s boat there.

        {¶ 7} The parties engaged in discussions and mediation, and a first amendment to

the land contract was negotiated and executed by Ogbonna in August of 2013. Bienyk

refused to sign the agreement. Contention between the parties continued, but they

ultimately executed a first amendment to the land installment contract on October 21,

2013.

        {¶ 8} Under the terms of the amendment, the parties released any claims they may

have had against each other under the original land contract. Bienyk acknowledged

receipt of the following payments from Ogbonna: (1) $60,000 toward the $450,000

purchase price, leaving an outstanding principal balance of $390,000; (2) $10,284.80—

$1,800 for shelving units; $850 for the water bill; $331.99 for telephone repair; $1,350

for late charges; and $4,027.06 to be applied toward principal; and (3) $1,855.29 for

principal and current real estate taxes, and an additional $1,855.29 for October of 2013.

The amendment obligated Ogbonna to begin monthly payments of $3,141.81 on October

1, 2013, but provided that while Bienyk continued to occupy the pole barn, payments

were reduced to $2,181.81 per month. Bienyk was to have “up to and including” October



4.
31, 2013, to vacate the residence, and “up to and including” December 31, 2013, to

vacate the pole barn. With respect to taxes and utilities, the amendment obligated Bienyk

to pay delinquent taxes totaling $27,448.97. It obligated Ogbonna to pay amounts due

for the first and second halves of 2012, but she was to receive credit for $9,357.19. For

September 2013 through December 2013, and for January 2014 through June 2014,

Ogbonna was required to pay taxes of $1,213.48 per month. Bienyk was obligated to pay

utilities for the pole barn for August of 2013, continuing until she vacated the pole barn,

but no later than December 31, 2013.

       {¶ 9} Bienyk vacated the residence on October 31, 2013. She never completely

vacated the pole barn. In December of 2013, a pipe broke in Rear/South 724, causing

damage to the premises.

                   B. Bienyk Files Suit and Ogbonna Counterclaims

       {¶ 10} On March 14, 2014, Bienyk filed the present action against Ogbonna. She

claimed (1) that Ogbonna defaulted under the terms of the land installment contract and

its first amendment by failing to make payments due on January 1, 2014, of $2,141.81,

plus late charges, and (2) that under the terms of the land contract, Ogbonna owed the

principal sum of $390,000, with interest of 7.5 % from December 1, 2012, together with

taxes and insurance, and for damage to the property, to be determined by the court.

Bienyk demanded process and restitution of the premises, cancellation of the land

installment contract, and judgment in her favor for the amount of taxes due, damages to

the property, and interest and costs.



5.
       {¶ 11} Ogbonna filed an answer and counterclaim on March 28, 2014. She

claimed that Bienyk breached the contract and its amendment by not vacating the

premises, continuing to reside in and retain possession of certain portions of the property,

and impeding and preventing Ogbonna’s quiet use and enjoyment of the property. She

claimed to have sustained losses including lost revenue, loss of goodwill to her business,

diminution in the value of her business, lost profits, and other related costs and expenses.

She also asserted claims of breach of the duty of good faith and unjust enrichment. She

sought specific performance of the contract and its first amendment, compensatory and

punitive damages, including attorney fees, exceeding $25,000, and preliminary and

permanent injunctive relief.

       {¶ 12} The parties tried the case to the court on October 6, 2014. At trial, the

parties submitted evidence pertinent to the contracts and the various amendments that

were executed, the payments that were made, the vacation of the properties at issue, and

the status of the property taxes. Bienyk’s counsel told the court that the issue before it at

trial was with respect to unpaid taxes and some payments that Ogbonna failed to make.

Ogbonna’s counsel told the court that it was her position that she overpaid and was owed

money from those overpayments. Counsel also informed the court that she was

requesting damages for lost business, improvements made to the property, and

reimbursement for business insurance.

       {¶ 13} As to damage to the property caused by the broken pipe, counsel told the

court that they disagreed about the cost of repairs to the plumbing and ceiling tiles, and



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that there was a water bill at issue. It was agreed that once the damages were quantified,

the parties would share in the payment of those damages, but that evidence relative to the

repair costs would be submitted to the court when available.

       {¶ 14} After the parties presented evidence at trial, the court instructed them to

submit closing arguments via post-trial briefs. Bienyk argued in her brief that Ogbonna

owed her $28,761.80—$8,567.24 for installment payments, and $20,194.56 for taxes.

The taxes included amounts owed as of December 31, 2013 ($8,939.01); taxes due for

January, February, March, and April of 2014, figured at a rate of $7,642.34 per half

($5,094.92); penalties and interest of $725.90 owed due to failure to make payments on

the delinquency payment plan, as well as add-backs charged per the treasurer

($5,434.73). She also claimed that she was entitled to recover for the damages caused by

the broken water pipes, however, she indicated that the amount of such damages were not

yet available and would be submitted when available.

       {¶ 15} Ogbonna argued in her post-trial brief that she overpaid under the land

contract by $46,854.82. She claimed that this overpayment increases to $58,049.87 when

payments are based on actual possession, and to $79,853.64 when based on storage

which, she claimed, is all she ever had. She also argued that Bienyk owed her

$83,395.28 for lost gross profits for 2013 based on her failure to vacate the premises.

Thus, Ogbonna claimed, Bienyk actually owed Ogbonna either $163,248.92,

$141,445.15, or $130,250.10, depending on whether damages were calculated based on

storage, actual possession, or at the very least, the terms of the contract. As for the



7.
amounts Bienyk claimed were due to her, Ogbonna argued that she had already

accounted for these amounts in the damages she was requesting from Bienyk. She also

challenged Bienyk’s claims for penalties and add-backs owed the treasurer, arguing that

no testimony was offered as to how these add-backs were calculated. She also posited

that some of the penalties, interest, and add-backs may have been imposed on account of

Bienyk’s prior delinquency.

       {¶ 16} In their respective replies to each other’s post-trial briefs, the parties argued

about whether the amounts owed by Bienyk for failing to vacate the premises were

“penalties” or whether they were “rent” payments. Ogbonna denied that the parties ever

contemplated that Bienyk would be a tenant of Ogbonna’s and that the amounts owed

were penalties for breach of the contract. Bienyk characterized those provisions as

establishing a rental arrangement and argued that there was no breach of the agreement

because Ogbonna never served Bienyk with a 30-day notice to vacate.

       {¶ 17} The trial court issued its decision in a written judgment journalized on

January 30, 2015. It articulated two basic questions to be determined: (1) did plaintiff’s

failure to vacate the premises as agreed by the parties violate the land contract? and (2)

did defendant violate the land contract by not making timely payments. The court

answered both questions in the affirmative.

       {¶ 18} First, the court found that the relationship resulting from Bienyk’s failure to

vacate was not one of a landlord-tenant relationship. It held that Ogbonna was never




8.
given full possession of the property and was, therefore, entitled to return of her $60,000

down payment. It also held that Bienyk owed a penalty of $1,500 per month to Ogbonna

for failing to vacate the residence by October 31, 2013.

       {¶ 19} The trial court found that Ogbonna also breached the agreement by failing

to make all required payments of principal and taxes. It calculated the payments made by

Ogbonna and ultimately concluded that those payments were deficient by $6,605.13.

       {¶ 20} Due to the parties’ breaches, the court declared the land installment

contract terminated and unenforceable. It awarded judgment to Ogbonna in the amount

of her down payment of $60,000, less her deficient payments of $6,605.13, for a total of

$53,394.87. It denied all other requests for damages.

       {¶ 21} Bienyk appealed the trial court judgment and Ogbonna cross-appealed.

Ogbonna ultimately dismissed her cross-appeal, however, leaving us to consider only

Bienyk’s assignments of error:

              FIRST ASSIGNMENT OF ERROR

              The Lower Court erred in finding that Bienyk did not vacate the

       units pursuant to the Amended Contract.

              SECOND ASSIGNMENT OF ERROR

              The Lower Court erred by failing to allow the parties to present the

       additional damages as stipulated by the parties in the opening statement and

       further in the calculation of the payments due from the [sic] Ogbonna.




9.
                               II. LAW AND ANALYSIS

                              A. First Assignment of Error

       {¶ 22} In her first assignment of error, Bienyk claims that the trial court’s

judgment is against the manifest weight of the evidence because it incorrectly concluded

that she failed to vacate the residence by October 31, 2013. She claims, therefore, that

the trial court incorrectly determined that she breached the contract. Ogbonna does not

dispute that the trial court mistakenly concluded that Bienyk failed to vacate the

residence by October 31, 2013. She argues, however, that because Bienyk never vacated

the pole barn, as required by the agreement, Bienyk did, in fact, breach the possession

term of the agreement and the trial court’s error was harmless.

       {¶ 23} In considering a manifest weight challenge, a reviewing court weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its

way and created a manifest miscarriage of justice warranting reversal and a new trial.

(Citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517, ¶ 20. “In weighing the evidence, the court of appeals must always be

mindful of the presumption in favor of the finder of fact,” and where the evidence is

susceptible of more than one construction, the appeals court must interpret it in a manner

which is “consistent with the verdict and judgment, most favorable to sustaining the

verdict and judgment.” Id at ¶ 21.




10.
       {¶ 24} The parties both agree that the trial court erred in concluding that Bienyk

failed to vacate the residence by October 31, 2013. However, despite the error, we must

consider Ogbonna’s argument that the judgment was nevertheless correct given Bienyk’s

failure to vacate the pole barn. As we recognized in Reynolds v. Budzik, 134 Ohio

App.3d 844, 846, 732 N.E.2d 485 (6th Dist.1999), fn 3:

              It has long been the law in Ohio that “where the judgment is correct,

       a reviewing court is not authorized to reverse such judgment merely

       because erroneous reasons were assigned as the basis thereof.” Thus, when

       a trial court has stated an erroneous basis for its judgment, an appellate

       court must affirm the judgment if it is legally correct on other grounds, that

       is, it achieves the right result for the wrong reason, because such an error is

       not prejudicial. (Internal citations omitted.)

       {¶ 25} Here, the amendment to the land contract provided not only that Bienyk

would vacate the residence by October 31, 2013, but also that she would vacate the pole

barn by December 31, 2013. The evidence at trial established that Bienyk, in fact, never

completely vacated the pole barn. Thus, while we agree with Bienyk that the trial court

erred in finding a breach of the contract based on her failure to vacate the residence, we

agree with Ogbonna that such error was harmless given that the pole barn was never

vacated as agreed.

       {¶ 26} As such, we find Bienyk’s first assignment of error not well-taken.




11.
                              B. Second Assignment of Error

       {¶ 27} In her second assignment of error, Bienyk claims that the trial court erred

in (1) refusing to consider evidence of the damages from the broken water pipe, and (2)

in its calculation of damages. Ogbonna responds that almost four months passed between

the time of trial and the date of the trial court’s decision, yet there still existed no

evidence to present to the trial court as to damages from the water pipe. She claims that

the evidence did not exist because Bienyk refused to do part of the inspections necessary

to determine damages.

       {¶ 28} The parties did stipulate at trial that they would submit evidence of

damages once they were able to quantify those damages. However, it was not reasonable

for the parties to allow this issue to linger indefinitely. As Ogbonna points out, almost

four months passed between trial and the date of the court’s decision, and there is no

evidence in the record to suggest that submission of damages was imminent. We find no

error in the trial court’s refusal to postpone judgment any longer.

       {¶ 29} As to the calculation of damages, it appears that the trial court determined

damages by starting with the amount of the installment payments as set forth in the

amendment ($3,141.81); subtracting out $2,500 for Bienyk’s “rental” of the residence

and pole barn, thus bringing the monthly amount owed by Ogbonna to $641.81;

multiplying this number by 7.5 (as payment for September 2013 through April 15, 2014),

for a total of $4,813.58; plus taxes figured at a rate of $1,213.48 for 7.5 months, for a

total of $9,101.10. The installment payments and taxes together total $13,914.68.



12.
       {¶ 30} The court then subtracted out payments of $4,027.06, $1,855.29,

$1,855.29, $3,355.29, and $2,141.28, resulting in a deficiency of $680.27 owed by

Ogbonna. The court also added in taxes owed for 2012—$5,924.86—bringing the total

deficiency owed by Ogbonna to $6,605.13. However, the trial court awarded $60,000 to

Ogbonna—the return of her down payment. Subtracting the deficiency owed by

Ogbonna from this $60,000 netted a total amount owed to Ogbonna of $53,394.87.

       {¶ 31} Neither party is satisfied that the trial court’s calculations were correct, but

Ogbonna has declined to challenge those calculations on appeal. Bienyk, on the other

hand, claims that for January 1, 2014, through March 31, 2014, installment payments

should have been $2,141,81 per month (and half that for April 2014), thus the amount

due for that period was actually $7,496.33. The calculations by the court for January 1

through April 15, 2014, would have totaled $2,246.34 because they were calculated

assuming that Ogbonna’s payments were offset by $2,500 per month. The parties both

agree that the trial court erred in determining that Bienyk failed to vacate the residence by

October 31, 2013, thus it was error to offset Ogbonna’s payments for the amounts

attributable to the “rental” of the residence.

       {¶ 32} As for taxes, Bienyk claims that Ogbonna owes taxes for January through

April of 2014, at $1,273.73 per month, for a total of $5,094.92 for 2014. The court

calculated the rate at $1,213.48 per month (a $60.25 difference) for 3.5 months instead of

four months. The amendment to the land installment contract provides that taxes were




13.
$1,213.48 per month beginning in September 2013. Bienyk has failed to adequately

explain why the amount of $1,273.73 per month should have been used to calculate taxes.

       {¶ 33} Bienyk also claims to be owed for 2013 taxes in the amount of $8,939.01.

Although the trial court addressed taxes owed beginning in September of 2013, it did not

address Bienyk’s claim that she was owed for taxes for January 1 through August 31,

2013. This is likely because the amendment to the land installment contract does not

appear to make any provision for the payment of taxes for this period. Thus, it was not

error for the trial court to fail to address it.

       {¶ 34} In sum, we find Bienyk’s first assignment of error not well-taken, but we

find her second assignment of error well-taken, in part, and not well-taken, in part. We

agree with Ogbonna that Bienyk breached their agreement by failing to vacate the pole

barn by December 31, 2013, thus the trial court committed harmless error when it found

that Bienyk breached the agreement because she failed to vacate the residence by October

31, 2013. We do find error, however, in the trial court’s calculation of the amount owed

to Ogbonna because the trial court subtracted $2,500 per month from the installment

payments for November 1, 2013, through April 15, 2014, when it should have subtracted

only $1,000 per month. The trial court should have offset the return of Ogbonna’s down

payment by an additional $1,500 per month ($8,250).

                                      III. CONCLUSION

       {¶ 35} As to Bienyk’s appeal of the January 30, 2015 judgment of the Toledo

Municipal Court, we find her first assignment of error not well-taken, and her second



14.
assignment of error well-taken, in part, and not well-taken, in part. Given our conclusion

that judgment in favor of Ogbonna should have been offset by an additional $8,250, we

hereby enter judgment in her favor in the amount of $45,144.87. The costs of this appeal

are assessed to Ogbonna pursuant to App.R. 24.

                                                               Judgment affirmed, in part,
                                                               and reversed, in part.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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