[Cite as Monea v. Lanci, 2011-Ohio-6377.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


PAUL M. MONEA, et al.                        :     JUDGES:
                                             :
                                             :     Hon. W. Scott Gwin, P.J.
          Plaintiffs-Appellants/Cross-       :     Hon. Julie A. Edwards, J.
          Appellees                          :     Hon. Patricia A. Delaney, J.
                                             :
-vs-                                         :
                                             :     Case No. 2011CA00050
KENNETH A. LANCI, et al.                     :
                                             :
                                             :
          Defendants-Appellees/Cross-        :
          Appellants                         :     OPINION



CHARACTER OF PROCEEDING:                         Appeal from the Stark County Court of
                                                 Common Pleas, Case No. 2008CV02100


JUDGMENT:                                        AFFIRMED



DATE OF JUDGMENT ENTRY:                          November 30, 2011



APPEARANCES:

For Plaintiffs-Appellants/Cross-                   For Defendants-Appellees/Cross-
Appellees:                                         Appellants:

JACK MORRISON, JR.                                 CHRISTIAN M. BATES
THOMAS R. HOULIHAN                                 SCOTT R. POE
150 S. Main St., Suite 110                         JOSEPH G. CORSARO
Key Building                                       28039 Clemens Road
Akron, OH 44308-1322                               Westlake, OH 44145
[Cite as Monea v. Lanci, 2011-Ohio-6377.]


Delaney, J.

        {¶ 1} Plaintiffs/Appellants/Cross-Appellees Paul M. Monea, Brooke Monea,

Blake Monea, and Nancy McCann as Trustee for the Monea Family Trust I – 1999 and

Defendants/Appellees/Cross-Appellants Kenneth A. Lanci and Linda J. Lanci appeal the

February 9, 2011 jury verdict and related decisions of the Stark County Court of

Common Pleas.

                           STATEMENT OF THE FACTS AND CASE

        {¶ 2} This case centers on the ownership and occupation of a luxury home

located in Massillon, Ohio known as the “Lake House.” The original owner built the

home for $6,500,000 and placed the home on the market in approximately 1999.

Plaintiff/Appellant/Cross-Appellee Paul Monea offered the owner $2,900,000 to

purchase the home.           The owner declined Paul Monea’s offer and accepted the

$2,200,000 purchase offer of Defendants/Appellees/Cross-Appellants Kenneth and

Linda Lanci.

        {¶ 3} Paul Monea instead purchased the Mike Tyson home in Southington,

Ohio. As part of the purchase, Paul Monea also bought the contents of the Tyson home

through the Monea Family Trust I - 1999. However, Paul Monea was still interested in

the Lake House. Through Paul Monea’s continued interest in the Lake House, Ken

Lanci and Paul Monea became friends and engaged in business opportunities together.

        {¶ 4} In October 1999, the Lancis determined it was impractical to live in

Massillon and they decided to move back to their home in the Cleveland area. Both

parties agree that Paul Monea and the Lancis entered into an agreement where Paul

Monea would take possession of the Lake House and he and his family would reside in
Stark County, Case No. 2011CA00050                                                                       3


the home. The parties, however, have differing recollections as to the terms of the

agreement.

        {¶ 5} Paul Monea claimed the parties entered into an oral agreement, later

memorialized into a written purchase agreement drawn up by the Lancis’ attorney,

where the Lancis agreed to sell the Lake House to Paul Monea for $2,800,000.1 Per

the terms of the agreement, Paul Monea stated he agreed to pay the Lancis a

$1,000,000 down payment and would make monthly payments in the amount of

$25,000 to the Lancis until the balance was paid. Paul Monea did not have a copy of

the written purchase agreement.

        {¶ 6} Conversely, the Lancis stated they entered into a written, five-year lease

agreement with Paul Monea where Paul Monea would pay rent of $25,000 per month.

The term of the lease was to end in April or May 2005. The Lancis claimed Paul Monea

paid them $1,000,000 to purchase the furniture in the Lake House. Paul Monea denied

it was his signature on the lease agreement produced by the Lancis.

        {¶ 7} Paul Monea resided in the Lake House with his minor children, Brooke

and Blake Monea. Paul Monea’s adult child, Paul Monea, Jr. resided at the Lake House

for at least a year while he was going through a divorce.                        During the Moneas’

occupation of the Lake House, Paul Monea paid for substantial improvements to the

property, such as a $50,000 tree house, a $40,000 electronically controlled gate for the

driveway entrance, and an additional master bedroom and bathroom suite.                                He

purchased furniture for the property and brought his belongings from the Mike Tyson


1
  As will be discussed further, Paul Monea claimed in his response to the Lancis’ Motion for Summary
Judgment the parties had an oral agreement to purchase the property. At trial however, Paul Monea
testified the parties entered into a written purchase agreement, but he no longer had a copy of the written
agreement.
Stark County, Case No. 2011CA00050                                                      4


home to furnish the Lake House. Some of the property purchased by Paul Monea

beyond general furnishings included two Peter Max paintings, Bobby Trendy furniture

for Brooke Monea’s bedroom, a grand piano for the foyer, a vintage Harley Davison for

the foyer, and fitness equipment for the fitness room on the lower level of the home.

      {¶ 8} John Tuggle, a general contractor and Paul Monea’s friend, assisted Paul

Monea with the improvements and maintenance of the Lake House property. In 1999,

John Tuggle became the Trustee of the Monea Family Trust I – 1999. Paul Monea

hired Nancy McCann to home school and provide additional care for his children.

      {¶ 9} On September 25, 2003, Paul Monea was incarcerated to a two-year term

in federal prison for tax evasion. At the time of his incarceration, Brooke Monea was 19

years old and Blake Monea was 15 or 16 years old.            Brooke and Blake Monea

continued to reside in the Lake House while their father was in prison. Paul Monea left

his children under the supervision of Nancy McCann, John Tuggle, and the children’s

mother. Those individuals, however, did not reside in the Lake House with the children.

      {¶ 10} The Lancis became concerned about the care of the Lake House because

the Monea children were living in the home without full-time supervision. While Paul

Monea was in prison, he stopped paying $25,000 per month for the Lake House. At the

time of his failure to pay, $1,900,000 had been paid to the Lancis, or two-thirds of the

$2,800,000 alleged purchase price.

      {¶ 11} In May 2005, the Lancis filed a Complaint for Forcible Entry and Detainer

in the Massillon Municipal Court. See Kenneth A. Lanci, et al. v. Brooke Monea, et al.,

Massillon Municipal Court Case No. 2005-CVG-1384. Paul Monea was represented by

counsel in the action and filed an Answer and Counterclaim. In that case, the Lancis
Stark County, Case No. 2011CA00050                                                     5


represented the transaction was an oral month-to-month lease. The municipal court

granted a writ of restitution on May 23, 2005. The Massillon Municipal Court transferred

the remaining claims of the case to the Stark County Court of Common Pleas (Case No.

2005CV01731).     The case before the Stark County Court of Common Pleas was

dismissed on October 25, 2005.

      {¶ 12} Subsequently, Tuggle informed Brooke and Blake Monea they had 24

hours to get out of the Lake House.      The children were unable to get all of their

belongings out of the home within that time. The children returned the next day to

retrieve more of their property. The Lancis did not perform a set out of the Moneas’

property left in the Lake House, but paid Tuggle to remove the Moneas’ property and

put it into storage. Paul Monea, Jr. came to the Lake House with three moving trucks

and removed property from the Lake House. Paul Monea stated at that time, he was

estranged from his son and he should not have been permitted to remove property from

the home. Ken Lanci stated he never barred the Monea children from returning to the

Lake House to collect any property left in the home. The children stated they were

never permitted to return to the home to retrieve their belongings. Ken Lanci testified

the children never asked the Lancis for the return of their property, except in one

instance where Blake Monea went into the home with Ken Lanci and Tuggle to retrieve

a diamond ring he had hidden in the wall of his room. The ring could not be located.

      {¶ 13} When the Lancis obtained possession of the Lake House, they found it

needed repairs and cleaning. Ken Lanci contracted with Tuggle to oversee the repairs

and cleaning of the Lake House.
Stark County, Case No. 2011CA00050                                                   6


      {¶ 14} Paul Monea was released from prison in September 2005. He offered to

purchase the Lake House from the Lancis for $2,600,000 but was unable to complete

the purchase.

      {¶ 15} On October 25, 2006, Paul Monea filed a complaint against the Lancis in

Paul M. Monea v. Kenneth A. Lanci, et al., Stark County Common Pleas Case No

2006CV04109. On December 12, 2006, Paul Monea was indicted by a federal grand

jury for conspiracy to commit money laundering and money laundering.            He was

convicted and sentenced to federal prison for a term of 150 months. In his case before

the Stark County Court of Common Pleas, the trial court dismissed the action because

neither Paul Monea nor his counsel appeared for the final pretrial scheduled for

February 13, 2007. In Paul M. Monea v. Kenneth A. Lanci, et al., Stark App. No.

2007CA00071, 2007-Ohio-6791 (“Monea I”), this Court reversed the decision of the trial

court to dismiss the case without giving Paul Monea an opportunity to defend against

the dismissal. We remanded the matter to the trial court for further proceedings.

      {¶ 16} On March 22, 2007, the Lancis sold the Lake House and some of its

contents to Defendants-Appellees, Richard and Sheryl Roush for $2,650,000. Paul

Monea contacted the Roushes in writing to demand the return of his property.

      {¶ 17} Paul Monea dismissed Case No. 2006CV04109 on January 7, 2008.

      {¶ 18} On April 30, 2008, Paul M. Monea, Brooke Monea, Blake Monea, and

Nancy McCann as Trustee for the Monea Family Trust I – 1999 refiled their complaint

for Breach of Contract, Bailment, Unjust Enrichment, and Conversion in the Stark

County Court of Common Pleas under Case No. 2009CV02100. The complaint named
Stark County, Case No. 2011CA00050                                                      7


Kenneth A. Lanci, Linda J. Lanci, Richard R. Roush, and Sheryl L. Roush as

Defendants. The Lancis counterclaimed claiming unpaid rents.

         {¶ 19} The Lancis filed a Motion for Summary Judgment on January 22, 2009.

After briefing by the parties, the trial court granted the Lancis’ motion for summary

judgment on March 23, 2009. The Moneas appealed the decision to this Court.

         {¶ 20} By decision issued December 7, 2009 in Paul M. Monea, et al. v. Kenneth

A. Lanci, et al., Stark App. No. 2009CA00083, 2009-Ohio-6446 (“Monea II”), we

reversed the decision of the trial court to grant summary judgment in favor of the Lancis.

In their summary judgment motion, the Lancis argued the parties entered into a lease

agreement for the Lake House. In opposition, the Moneas stated there were genuine

issues of material fact forbearing summary judgment in favor of the Lancis. First, the

Moneas argued there was an issue of material fact as to whether there was an oral land

contract for the sale of the property or an oral or written rental agreement. Second, the

Moneas stated there were genuine issues of material facts as to their claims for

bailment, conversion, and unjust enrichment. We agreed and remanded the matter for

trial.

         {¶ 21} The case went to trial before a jury on January 31, 2011. The Moneas put

forward their argument that the parties created an oral land contract. After reviewing

the pleadings, the facts in evidence and Paul Monea’s conflicting testimony there was a

written purchase agreement, not an oral purchase agreement, the trial court allowed the

Moneas to argue to the jury there was a real estate contract to purchase the Lake

House. The trial court granted the Lancis’ motion for directed verdict on the claims of
Stark County, Case No. 2011CA00050                                                        8


bailment and conversion by Brooke Monea and Nancy McCann, Trustee of the Monea

Family Trust I – 1999.

       {¶ 22} The verdict forms were sent to the jury without separate interrogatories.

The jury returned a verdict in favor of the Lancis finding the parties entered into a rental

agreement for the property and awarded the Lancis $405,000.00 for breach of the

lease. The jury awarded Paul Monea $750,000.00 in damages for his claim of bailment

and $50,000.00 for his claim of conversion against Ken and Linda Lanci, jointly and

severally. The jury did not award damages and the trial court did not enter judgment

against the Roushes.

       {¶ 23} The trial court entered judgment on February 9, 2011 based upon the

jury’s verdict by netting the verdicts. Accordingly, the trial court awarded judgment in

favor of Paul Monea against Ken and Linda Lanci, jointly and severally, in the net

amount of $395,000.00.

       {¶ 24} Both parties moved for sanctions based on their respective false

responses to Requests for Admissions and Interrogatories. Around this time, Ken Lanci

obtained an $18,600,000 cognovit judgment against Paul Monea in the Cuyahoga

County Court of Common Pleas, Case No. CV-11-747079. On February 3, 2011, the

Lancis transferred the judgment lien to the Stark County Court of Common Pleas, Case

No. 2011JG00830.

       {¶ 25} The Lancis filed a motion for judgment notwithstanding the verdict on

February 23, 2011.       The Lancis also moved the trial court to offset the Cuyahoga

County judgment against the Stark County judgment.
Stark County, Case No. 2011CA00050                                                     9


      {¶ 26} On March 2, 2011, the trial court denied both motions for sanctions,

finding that both parties were equally fallacious in their responses to the discovery

requests. The trial court further granted the motion to offset the $18,600,000 judgment

lien against the $395,000 net judgment in the present case, resulting in a net judgment

owed by Paul Monea to the Lancis in the amount of $18,205,000.

      {¶ 27} The Moneas filed a notice of appeal on March 10, 2011. On April 5, 2011,

Ken Lanci assigned a portion of the Cuyahoga County judgment to Linda Lanci. This

Court remanded the case to the trial court to rule on the pending motion for judgment

notwithstanding the verdict.   On April 8, 2011, the trial court denied the motion for

judgment notwithstanding the verdict.     We ordered that the Moneas’ appeal was

considered filed after the trial court’s April 8, 2011 decision. The Lancis filed a cross

appeal on April 7, 2011.

                               ASSIGNMENTS OF ERROR

      {¶ 28} The Moneas raise five Assignments of Error:

      {¶ 29} “I. THE COURT OF COMMON PLEAS ERRED BY VIOLATING THE

LAW OF THE CASE DOCTRINE AND RULING THAT OHIO LAW DOES NOT PERMIT

AN ORAL LAND CONTRACT.

      {¶ 30} “II. THE COURT OF COMMON PLEAS ERRED BY GRANTING

DIRECTED VERDICT AGAINST THE CLAIMS OF BROOKE MONEA AND THE

MONEA FAMILY TRUST, I – 1999.

      {¶ 31} “III. THE COURT OF COMMON PLEAS ERRED BY REFUSING TO

GRANT APPELLANTS’ MOTION FOR SANCTIONS CONCERNING THE FALSE

ANSWERS TO REQUESTS FOR ADMISSION.
Stark County, Case No. 2011CA00050                                                    10


      {¶ 32} “IV. THE COURT OF COMMON PLEAS ERRED BY OFFSETTING A

NON-MUTUAL JUDGMENT.

      {¶ 33} “V. THE COURT OF COMMON PLEAS ERRED BY REFUSING TO

ALLOW APPELLANTS TO CALL A REBUTTAL WITNESS AT TRIAL.”

      {¶ 34} The Lancis raise four Assignments of Error in their Cross Appeal:

      {¶ 35} “I. THERE IS NO COMPETENT, CREDIBLE EVIDENCE TO SUPPORT A

JUDGMENT AGAINST LANCI, AND THEREFORE THE TRIAL COURT ERRED IN

DENYING LANCI’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

IN THE ALTERNATIVE, THE JURY’S VERDICT AGAINST LANCI ON MONEA’S

BAILMENT AND CONVERSION CLAIMS IS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

      {¶ 36} “II. THE TRIAL COURT ERRED IN NOT DISMISSING THE CLAIMS

AGAINST MRS. LANCI UPON THE MOTION FOR JUDGMENT NOTWITHSTANDING

THE VERDICT.      IN THE ALTERNATIVE, THE JURY’S VERDICT AGAINST MRS.

LANCI IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

      {¶ 37} “III. THE TRIAL COURT ERRED BY UPHOLDING THE AWARD OF

DAMAGES TO MONEA ON BOTH BAILMENT AND CONVERSION THEORIES.

      {¶ 38} “IV. THE TRIAL COURT ERRED IN DENYING LANCI’S MOTION FOR

SANCTIONS.”

                           Moneas’ Assignment of Error I.

      {¶ 39} The Moneas’ first Assignment of Error regards their original claim that the

parties entered into an oral land contract and the Lancis were in breach of the oral land

contract. The Moneas state the trial court ignored the law of the case by not allowing
Stark County, Case No. 2011CA00050                                                     11


them to present evidence at trial and jury instructions regarding an oral land contract.

Based on the record, we find no error.

       {¶ 40} In the Moneas’ complaint, the Moneas alleged breach of contract against

the Lancis in regards to the Lake House. The Moneas stated the Lancis agreed to sell

the Lake House to Paul Monea and when he no longer made the required monthly

payments, the Lancis evicted the Moneas from the Lake House, rather than foreclosing

on the property as required by R.C. 5313.07. R.C. 5313.07 governs land installment

contracts and provides:

       {¶ 41} “If the vendee of a land installment contract has paid in accordance with

the terms of the contract for a period of five years or more from the date of the first

payment or has paid toward the purchase price a total sum equal to or in excess of

twenty per cent thereof, the vendor may recover possession of his property only by use

of a proceeding for foreclosure and judicial sale of the foreclosed property as provided

in section 2323.07 of the Revised Code.”

       {¶ 42} R.C. 5313.01 states:

       {¶ 43} “ ‘Land installment contract’ means an executory agreement which by its

terms is not required to be fully performed by one or more of the parties to the

agreement within one year of the date of the agreement and under which the vendor

agrees to convey title in real property located in this state to the vendee and the vendee

agrees to pay the purchase price in installment payments, while the vendor retains title

to the property as security for the vendee’s obligations. Option contracts for the

purchase of real property are not land installment contracts.”
Stark County, Case No. 2011CA00050                                                    12


       {¶ 44} It was the Moneas legal theory that Paul Monea should have been

afforded the protections of R.C. 5313.07, such that the equity he invested in the Lake

House would be preserved through the foreclosure process.          As such, it was the

Moneas’ theory of damages that Paul Monea’s lost equity in the Lake House could be

calculated by taking the amount the Roushes paid to the Lancis for the Lake House and

subtracting the amount Paul Monea still owed to the Lancis under the contract.

       {¶ 45} On January 23, 2009, the Lancis filed their motion for summary judgment

stating there was no genuine issue of material fact that the parties entered into a lease

agreement for possession of the Lake House and Paul Monea was in breach of the

lease agreement. Paul Monea opposed the motion for summary judgment, arguing

there was a genuine issue of material fact as to the type of agreement the parties

entered into.   Paul Monea submitted through affidavit he entered into an oral land

contract agreement with the Lancis obligating the Lancis to foreclose on the property,

rather than executing an eviction.

       {¶ 46} The trial court conceded a genuine issue of material fact existed as to

whether there was a written lease agreement between the parties; therefore, the trial

court analyzed the motion for summary judgment in a light most favorable to the non-

moving party, the Moneas, and examined whether there was a breach of an oral land

contract. As Paul Monea argued the parties entered into an oral land contract, it was

necessary for the trial court to determine the impact of the Statute of Frauds on the

validity of an oral land contract.     The trial court utilized the doctrine of partial

performance to determine whether the alleged verbal agreement for this real estate

transaction removed the parties’ contract from the Statute of Frauds. The trial court
Stark County, Case No. 2011CA00050                                                         13


found there was no genuine issue of material fact that Paul Monea had not partially

performed the contract based on Paul Monea’s description of some of the check

payments made to the Lancis as “rent” or “lease”, therefore the oral land contract failed

to satisfy the Statute of Frauds and was unenforceable.

       {¶ 47} The Moneas appealed the decision to this Court.         Upon our de novo

review, we found in Monea II the Civ.R. 56 evidence showed genuine issues of material

fact on multiple issues preventing the granting of summary judgment in favor of the

Lancis. The issue presented to this Court on appeal, and specific to the Moneas’ first

Assignment of Error in the present case, was whether there was either an oral land

contract for the sale of the property or an oral or written rental agreement. We stated:

       {¶ 48} “We reverse the trial court’s judgment on [the issue of whether there was

either an oral land contract for the sale of the property or an oral or written rental

agreement] because we conclude (1) there is a genuine issue of material fact as to

whether the $1,000,000 paid by appellant to Lanci in 1999 was a down payment for the

purchase of the premises; and (2) there is a genuine issue of material fact as to whether

Landis was [sic] obligated to foreclose upon appellant’s interest in the property pursuant

to R.C. Chapter 5313 in order to remove appellant from the subject premises.” Monea

II, supra, at ¶18.

       {¶ 49} As is well settled in Ohio law, the Statute of Frauds requires that a real

estate contract be in writing. R.C. 1335.05 sets forth the “Statute of Frauds” and states:

       {¶ 50} “No action shall be brought whereby to charge the defendant * * * upon a

contract for sale of lands, tenements, or hereditaments, or interest in or concerning

them, or upon an agreement that is not to be performed within one year from the
Stark County, Case No. 2011CA00050                                                      14


making thereof; unless the agreement upon which such action is brought, or some

memorandum or note thereof, is in writing and signed by the party to be charged

therewith or some other person thereunto by him or her lawfully authorized.”

       {¶ 51} In finding there was a genuine issue of material fact as to whether an oral

land contract existed in Monea II, we referred to the doctrine of partial performance to

demonstrate an exception to the requirements of the Statute of Frauds. The doctrine of

partial performance states:

       {¶ 52} “Ohio courts generally consider the following factors to be relevant in

determining the applicability of the part performance doctrine: (1) evidence of a change

in possession; (2) payment of all or part of the consideration for the land; and, (3)

improvements, alterations or repairs upon the land by the possessor. Id. at ¶ 29.

Neither mere possession of the real property, nor payment of consideration is by itself

sufficient to avoid the applicability of the statute of frauds. Tier v. Singrey (1951), 154

Ohio St. 521, 526, 97 N.E.2d 20; Snyder v. Warde (1949), 151 Ohio St.3d 426, 434

(1949); Crabill v. Marsh (1882), 38 Ohio St. 331, 338.” Monea II, supra, at ¶21.

       {¶ 53} We analyzed the Civ.R. 56 evidence before the Court and found genuine

issues of material fact existed as to whether the actions by Paul Monea in this case met

the requirements of the doctrine of partial performance.

       {¶ 54} Our ultimate holding in the case was therefore two-fold: (1) whether there

existed an oral land contract, written lease agreement, or oral lease agreement, and (2)

if there existed an oral land contract, was there partial performance to make an

exception within the Statute of Frauds rendering the oral land contract enforceable. The

case was remanded to the trial court to resolve those issues of fact.
Stark County, Case No. 2011CA00050                                                   15


       {¶ 55} Paul Monea’s discovery deposition in preparation for trial was taken

January 6, 2011. In his deposition, he testified that he entered into a written purchase

agreement with the Lancis for the Lake House. (Paul Monea Depo., p. 8). Paul Monea

alleged he no longer possessed the document because it was taken from the Lake

House. (Paul Monea Depo., p. 9). When questioned about the discrepancy between

his affidavit in support of his summary judgment motion where he stated there was an

oral agreement to sell the property and his deposition testimony stating there was a

written agreement, Paul Monea stated he did not know why he did not advise the court

of the written agreement. (Paul Monea Depo., p. 11).

       {¶ 56} Because Paul Monea was incarcerated during the trial, his trial testimony

was taken on January 27, 2011. He again testified he entered into a written agreement

with the Lancis for the purchase of the Lake House. (Paul Monea Trial Depo., p. 13).

Paul Monea stated the Lancis composed the written agreement. (Paul Monea Trial

Depo., p. 14).

       {¶ 57} The trial in this matter commenced on January 31, 2011. Before trial, the

trial court addressed its concerns with Moneas’ counsel about Paul Monea’s conflicting

testimony as to whether the agreement was oral or written. The judge told Moneas’

counsel that Paul Monea’s testimony that the purchase agreement was written was

“diametrically opposite what everybody has premised this case on and diametrically

opposite to what you stood in front of the Fifth District Court of Appeals and argued in

both your brief and in your oral argument.” (Vol. I, p. 19-22).

       {¶ 58} The Moneas’ counsel then addressed its proposed jury instructions on an

oral land contract. (Vol. I, p. 22). The trial court stated to counsel that an oral land
Stark County, Case No. 2011CA00050                                                     16


installment contract was not permitted by law and it was not going to permit any

testimony on an oral land installment contract. (Vol. I, p. 23-24). However, the trial

court did allow the Moneas to proceed under a theory of “oral contract for the purchase

of real estate, despite Paul Monea’s inconsistent testimony.

       {¶ 59} In Hopkins v. Dyer, 104 Ohio St.3d 461, 820 N.E.2d 329, 2004-Ohio-6769,

the Ohio Supreme Court discussed the law of the case doctrine and stated as follows:

       {¶ 60} “The law of the case is a longstanding doctrine in Ohio jurisprudence.

‘[T]he doctrine provides that the decision of a reviewing court in a case remains the law

of that case on the legal questions involved for all subsequent proceedings in the case

at both the trial and reviewing levels.’ Nolan v. Nolan, 11 Ohio St.3d at 3, 11 OBR 1,

462 N.E.2d 410. The doctrine is necessary to ensure consistency of results in a case,

to avoid endless litigation by settling the issues, and to preserve the structure of

superior and inferior courts as designed by the Ohio Constitution. State ex rel. Potain v.

Mathews (1979), 59 Ohio St.2d 29, 32, 13 O.O.3d 17, 391 N.E.2d 343.” Hopkins, ¶ 15.

       {¶ 61} The evidence presented in this case demonstrates the trial court did not

fail to follow the law established in Monea II.   Monea II was based on Paul Monea’s

affidavit testimony stating he entered into an oral land contract with the Lancis. We

found on this evidence there was a genuine issue of material fact whether there was an

oral land contract and if so, there was a further question whether there was partial

performance to remove the oral land contract from the requirements of the Statute of

Frauds.

       {¶ 62} The record shows the trial court permitted the Moneas to present evidence

the parties entered into an oral or written agreement to purchase real estate. Further,
Stark County, Case No. 2011CA00050                                                     17


the Lancis and Roushes moved the trial court to dismiss the breach of contract claim at

the conclusion of trial. The trial court denied the motion, stating that evidence was

presented that there may have been an oral or written contract for the purchase of real

estate and the law permits an oral contract for the purchase of real estate if there had

been partial performance. (Vol. II, p. 147).

       {¶ 63} The Moneas also argue they were not permitted to pursue their land

installment contract theory of damages that the Moneas were entitled to lost equity in

the Lake House by calculating the amount that the Roushes paid to the Lancis for the

Lake House, subtracting the amount that Monea still owed to the Lancis under the

contract. The trial court instructed the jury on the Moneas’ claim for “Breach of Contract

for Sale of Real Estate.” The instructions stated as to damages: “If you find by the great

weight of the evidence that Lanci breached the contract, Monea is entitled to recover

the amount of damages necessary to place him in the same position as if the contract

had not been made. These damages include expenditures made in preparation for

performance or in performance of the contract.”

       {¶ 64} We find the Moneas suffered no prejudice from the trial court’s

determination that the Moneas could not proceed under the legal theory of an oral land

installment contract. The trial court’s decision to permit the Moneas to proceed under

the theory of an oral or written agreement to purchase real estate is supported by the

record and not in contravention of our decision in Monea II.

       {¶ 65} The Moneas’ first Assignment of Error is overruled.
Stark County, Case No. 2011CA00050                                                        18


                            Moneas’ Assignment of Error II.

       {¶ 66} The Moneas argue in their second Assignment of Error that the trial court

erred in granting a directed verdict to dismiss the claims of conversion and bailment

brought by Brooke Monea and the Trustee of the Monea Family Trust, I -1999. We

disagree.

       {¶ 67} In the complaint, Paul, Brooke, and Blake Monea and Nancy McCann as

Trustee of the Monea Family Trust, I – 1999, alleged causes of action for bailment and

conversion. The Lancis and Roushes moved for directed verdict at the close of the

Moneas’ case on those claims, but the trial court denied the motion at that time. (Vol. I,

p. 275). The parties renewed their motion for directed verdict at the conclusion of the

evidence. (Vol. II, p. 142). The parties agreed that Blake Monea did not testify and

should be dismissed from the case. (Vol. II, p. 143). The trial court granted the motion

for directed verdict as to Brooke Monea and the Trustee. (Vol. II, p. 144). The trial

court stated that Brooke Monea testified that she had a bedroom set but did not indicate

that she purchased it.     (Vol. II, p. 145).    The testimony showed that Paul Monea

purchased the bedroom furniture for his daughter. Id. The trial court further found no

evidence was presented that Brooke Monea ever requested that her belongings be

returned to her or provided a value of the alleged converted items. Id. As to the

Trustee, the trial court granted the motion for directed verdict because it found there

was no substantial probative evidence to support the Trustee’s claims that the trust

owned property in the home. (Vol. II, p. 144).

       {¶ 68} A trial court can grant a motion for a directed verdict only after finding that

reasonable minds could reach but one conclusion on any determinative issue and that
Stark County, Case No. 2011CA00050                                                      19


conclusion is adverse to the party opposing the motion.             Civ.R. 50(A)(4).   This

“reasonable minds” test calls upon a court to determine only whether there exists any

evidence of substantial probative value in support of the claims of the non-moving party.

Akers v. Saulsbury, 5th Dist. No.2008–CAE–12–0070, 2010–Ohio–4965, ¶10. Under a

motion for directed verdict pursuant to Civ.R. 50, the trial court is not the trier of fact

and does not weigh the evidence. Whitestone Co. v. Stittsworth, Franklin App. No.

06AP-371, 2007-Ohio-233, at ¶11. The trial court must construe the evidence most

strongly in favor of the party against whom the motion is made and neither weigh the

evidence nor determine the credibility of the witnesses in ruling upon a motion. Id. Our

review of the trial court's disposition of the motion is de novo because a motion for

directed verdict tests the legal sufficiency of the evidence to go to the jury. Id.

        {¶ 69} Our review of the sufficiency of the evidence as to the claims for

conversion and bailment shows no error by the trial court to grant the motion for

directed verdict as to Brooke Monea and the Trustee of the Monea Family Trust, I -

1999.

        {¶ 70} The tort of conversion is defined as “the wrongful exercise of dominion

over property to the exclusion of the rights of the owner, or withholding it from his

possession under a claim inconsistent with his rights.” Heflin v. Ossman, Fairfield App.

No. 05CA17, 2005-Ohio-6876, ¶20, quoting Joyce v. General Motors Corp. (1990), 49

Ohio St.3d 93, 96, 551 N.E.2d 172. In order to prove the conversion of property, the

owner must demonstrate (1) he or she demanded the return of the property from the

possessor after the possessor exerted dominion or control over the property and (2) that

the possessor refused to deliver the property to its rightful owner. Taber v. Charlie’s
Stark County, Case No. 2011CA00050                                                        20

Towing Service, Inc. (1994) 97 Ohio App.3d 423, 427, 646 N.E.2d 1132, citations

omitted. “The measure of damages in a conversion action is the value of the converted

property at the time it was converted.” Congress Lake Club v. Witte, Stark App. No.

2007CA00191, 2008-Ohio-6799, ¶ 66.

       {¶ 71} A review of the evidence shows Brooke Monea and the Trustee for the

Monea Family Trust, I – 1999 failed to establish the elements necessary for the

intentional tort of conversion. Brooke Monea failed to establish (1) she was the owner

of the property in that her father purchased it; (2) she demanded the return of the

property; and (3) the value of the property at the time it was allegedly converted. The

same factors are applicable to the property allegedly owned by the Monea Family Trust,

I -1999.

       {¶ 72} The Moneas stated in their complaint a gratuitous bailment occurred when

the Lancis and Roushes took possession of the Moneas’ property after the eviction. A

bailment involves the transfer of a possessory interest only and not an ownership

interest in property; possession alone is transferred, and ownership remains in the

bailor. 8 Ohio Jurisprudence 3d (2011), Bailments §2. A bailment can be created by

contract and can be for the benefit of the bailor, bailee, or for the mutual benefit of both.

A gratuitous bailment is one in which the transfer of possession or use of the bailed

property is without compensation. 8 Ohio Jurisprudence 3d (2011), Bailments §7.

       {¶ 73} Again, the same issue preventing judgment for Brook Monea and Trustee

for the Monea Family Trust, I – 1999 on the conversion claim (lack of ownership) is

present on their claims for bailment. Reviewing the evidence in a light most favorable to
Stark County, Case No. 2011CA00050                                                      21


the non-moving parties, we find that the evidence does not support the claims they were

owners of the alleged property, not Paul Monea.

       {¶ 74} The Moneas’ second Assignment of Error is overruled.

                     Lancis’ Cross-Assignment of Error I., II., III.

       {¶ 75} We address the Lancis’ first, second, and third Cross-Assignments of

Error next because they also refer to the jury’s decision on the Lancis’ liability for

conversion and bailment.

       {¶ 76} Paul Monea brought a conversion and bailment claim against Ken and

Linda Lanci. The jury found in favor of Paul Monea on his claims for bailment and

conversion, awarding Paul Monea $50,000 on his claim for conversion and $750,000 for

his claim of bailment. The Lancis filed a Motion for Judgment Notwithstanding the

Verdict on February 23, 2011.      In their motion, the Lancis argued the motion was

warranted because the evidence in the record could only lead to one conclusion, being

that: (a) no bailment existed under Ohio law because the property was abandoned; (b)

the Lancis were not grossly negligent in regard to the personal property at issue; (c) the

evidence in the record does not support the award of damages to Paul Monea; and (d)

there was no evidence in the record that would allow the jury to find Linda Lanci liable to

Paul Monea. On April 8, 2011, the trial court denied the motion.

       {¶ 77} In the Lancis’ first, second, and third Cross-Assignments of Error, they

argue the trial court erred in denying the motion for judgment notwithstanding the

verdict, or in the alternative, the judgment was against the manifest weight of the

evidence. The Lancis raise the same errors as listed in the paragraph above.
Stark County, Case No. 2011CA00050                                                      22


       {¶ 78} When ruling on a motion for judgment notwithstanding the verdict, a trial

court applies the same test as in reviewing a motion for a directed verdict. Ronske v.

Heil Co., Stark App. No. 2006-CA-00168, 2007-Ohio-5417.            See also, Pariseau v.

Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 127, 522 N.E.2d 511. “A motion for

judgment notwithstanding the verdict is used to determine only one issue i.e., whether

the evidence is totally insufficient to support the verdict.” Krauss v. Streamo, Stark App.

No.2001 CA00341, 2002–Ohio–4715, paragraph 14. See, also, McLeod v. Mt. Sinai

Medical Center (2006), 166 Ohio App.3d 647, 853 N.E.2d 1235, reversed on other

grounds, 116 Ohio St.3d 139, 876 N.E.2d 1201. Neither the weight of the evidence nor

the credibility of the witnesses is a proper consideration for the court. Posin v. A.B.C.

Motor Court Hotel, Inc. (1976), 45 Ohio St.2d 271, 275, 344 N.E.2d 334. See, also,

Civ.R. 50(B); and Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, 504 N.E.2d 19. In

other words, if there is evidence to support the nonmoving party's side so that

reasonable minds could reach different conclusions, the court may not usurp the jury's

function and the motion must be denied. Osler, supra. Our review of the trial court's

disposition is de novo.

       {¶ 79} Paul Monea argued to the jury a gratuitous bailment was created between

Paul Monea and the Lancis when the Lancis evicted the Moneas and took possession

of the Lake House and the property in the Lake House belonging to Paul Monea. A

bailment involves the transfer of a possessory interest only and not an ownership

interest in property; possession alone is transferred, and ownership remains in the

bailor. 8 Ohio Jurisprudence 3d (2011), Bailments §2. The bailor in this case is Paul

Monea; the bailees are the Lancis. A bailment can be created by contract and can be
Stark County, Case No. 2011CA00050                                                    23


for the benefit of the bailor, bailee, or for the mutual benefit of both.   A gratuitous

bailment is one in which the transfer of possession or use of the bailed property is

without compensation. 8 Ohio Jurisprudence 3d (2011), Bailments §7. A gratuitous

bailee is a bailee “who will receive nothing from the owner of the property and will have

no right to recover from such owner anything for what he does in caring for such

property * * *.” United States Fire Ins. Co. v. Paramount Fur Service, Inc. (1959), 168

Ohio St. 431, 437, 156 N.E.2d 121, 126.

       {¶ 80} The Lancis state that the evidence at trial was insufficient to show a

gratuitous bailment was created because the evidence presented was that Paul Monea

abandoned the property. The trial court instructed the jury if Paul Monea abandoned

the property, the claims by Paul Monea for bailment must fail. The jury was further

instructed on “abandonment” as follows:

       {¶ 81} “Abandonment means a voluntary relinquishment of the possession of a

thing by the owner with the intention of terminating his ownership, but without vesting

title to the property in any other person.

       {¶ 82} “The jury is instructed that abandonment of personal property, being an

unconditional, intentional, and voluntary relinquishment, is always determined by

looking to all the circumstances of the case and by considering the acts and

declarations of the one who resists the claim of forfeiture.         There can be no

abandonment without an intention to yield possession, neither non-use of the property,

or right in question, nor the lapse of any particular time since dominion over it was

exercised is conclusive of the claim of abandonment, but such fact may be considered

by the jury along with all other facts in the case in deciding the question of
Stark County, Case No. 2011CA00050                                                    24


abandonment and intention of the person resisting the claim, you may consider all facts

in evidence to determine if the property was abandoned.”

      {¶ 83} Our review of the record finds there was sufficient evidence for the jury to

determine Paul Monea did not abandon his personal property and a gratuitous bailment

was created.

      {¶ 84} The jury found the parties entered into a lease agreement for the Lake

House.    As part of the lease agreement, the Lancis stated Paul Monea paid them

$1,000,000 to purchase the contents of the home.

      {¶ 85} The Lancis prevailed on the forcible entry and detainer action to regain

possession of the Lake House.       Ken Lanci admitted he did not pursue a writ of

execution pursuant to R.C. 1923.14 to remove the Moneas’ personal property from the

Lake House. (Vol. II, p. 101). In Ringler v. Sias (1980), 68 Ohio App.2d 230, 428

N.E.2d 869, paragraph one of syllabus, the Tenth District Court of Appeals held,

“[w]here a deputy sheriff, who is enforcing a writ of execution pursuant to R.C. 1923.14,

removes a tenant's personal property from the rental building and places the personal

property outside, on open land owned by the landlord, the landlord does not become a

gratuitous bailee of the tenant's personal property, unless the landlord takes some act

that is consistent with an intent to possess the former tenant's property.” (Emphasis

added).

      {¶ 86} The parties gave conflicting testimony on whether the Moneas were able

to remove their property from the home. The Lancis testified the Moneas were given

unfettered access to the home to remove the property. Brooke Monea testified she was
Stark County, Case No. 2011CA00050                                                      25


given 24 hours to get out of the home with her belongings. The Lancis sold the Lake

House and some of its contents to the Roushes. (Vol. I, p. 124).

       {¶ 87} This evidence taken as a whole is sufficient to support the jury’s verdict as

to gratuitous bailment, rather than abandonment.

       {¶ 88} The Lancis next argue that assuming a gratuitous bailment was created,

the evidence did not support the verdict that the Lancis actions in regards to the

Moneas’ property were grossly negligent. A gratuitous bailee owes no duty of ordinary

care to protect the bailed property. The law will hold a gratuitous bailee liable only for

losses arising from gross negligence. Id. The Ohio Supreme Court has defined gross

negligence as follows: “An early Ohio Supreme Court case defined ‘gross negligence’

as the ‘failure to exercise any or very slight care.’ Johnson v. State (1902), 66 Ohio St.

59, 67, 63 N.E. 607, 609. See, also, Cleveland, C., C. & I. Ry. Co. v. Elliott (1876), 28

Ohio St. 340, 356–357; Payne v. Vance (1921), 103 Ohio St. 59, 133 N.E. 85. Prosser

states that gross negligence ‘has been described as a failure to exercise even that care

which a careless person would use.’ Prosser & Keeton, Law of Torts (5 Ed.1984) 212,

Section 34.” Thompson Elec. v. Bank One, Akron, N.A. (1988), 37 Ohio St.3d 259,

265,525 N.E.2d 761.

       {¶ 89} The record in this case is not insufficient to support the verdict of gross

negligence. The Lancis hired Tuggle to remove the Moneas’ property from the home

and put it in storage. Brooke Monea gained access to the storage unit. She testified,

“[e]verything was thrown in there piled to the ceiling in a completely unorganized

manner and whatever was in there was ruined, it was broken and unusable.” (Vol. I, p.
Stark County, Case No. 2011CA00050                                                   26


250). Brooke Monea had left multiple items of clothing in the home but there was only a

small box of her clothing in the storage unit. (Id. at p. 251).

       {¶ 90} The Lancis argue in their third Assignment of Error the damages verdict

for both bailment and conversion is neither supported by law, nor is the amount of the

damages supported by the evidence. We disagree.

       {¶ 91} The Lancis first state you cannot be awarded damages for both bailment

and conversion. Paul Monea’s complaint alleged claims for relief on the theories of

bailment and conversion.      At trial, the evidence established the Lancis evicted the

Moneas and did not immediately return the Moneas’ property in the Lake House to the

Moneas. When the Moneas retrieved their property in the storage unit obtained by the

Lancis, the Moneas observed it was damaged. This is a case of bailment. Parrish v.

Machlan (1997), 131 Ohio App.3d 291, 722 N.E.2d 529 citing David v. Lose (1966), 7

Ohio St.2d 97, 218 N.E.2d 442, paragraph one of the syllabus. The negligence of a

bailee in caring for bailed property is not a conversion. United States Fire Ins. Co. v.

Paramount Fur Serv., Inc. (1959), 168 Ohio St. 431, 156 N.E.2d 121, paragraph two of

the syllabus. The jury also found for Paul Monea on his claim for conversion alleging

the Lancis failed to release Paul Monea’s personal property after Paul Monea

demanded its return. The Lancis did not move for judgment notwithstanding the verdict

on the jury’s determination the Lancis were liable for conversion, nor have they

appealed that issue. Thus, since both theories were pleaded and proved, the jury’s

verdict was entirely appropriate and not duplicative. See Parrish, supra.

       {¶ 92} The Lancis next argue the damages award was not supported by the

evidence. A judgment supported by some competent, credible evidence will not be
Stark County, Case No. 2011CA00050                                                    27

reversed as against the manifest weight of the evidence. C.E. Morris Co. v. Foley

Construction Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. A reviewing court does

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

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

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

conclusions. Hooten Equipment Co. v. Trimat, Inc., Gallia App. No. 03CA16, 2004-

Ohio-1128, ¶ 7. We are to defer to the findings of the trier of fact because the trier of

fact is best able to view the witnesses and observe their demeanor, gestures, and voice

inflections, and use these observations in weighing the credibility of the testimony.

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

1273. We may not substitute our judgment for that of the trier of fact. Pons v. Ohio

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

       {¶ 93} Paul Monea testified as to the value of the property he alleged was

converted or subject to a bailment by the Lancis. Paul Monea submitted an inventory

list of the property he claimed was kept by the Lancis. The inventory list included Paul

Monea’s valuation of the items and it was approximately $1,000,000. (Paul Monea

Depo., p. 87). On cross-examination, he admitted that he did not have appraisals done

on his property.   (Paul Monea Trial Depo., p. 86).     The jury valued Paul Monea’s

damages for bailment to be $750,000 and the damages for conversion to be $50,000.

Neither party submitted interrogatories to the jury.

       {¶ 94} Based on the evidence presented, we cannot say there was no

competent, credible evidence to determine the valuation of the damages on the claims
Stark County, Case No. 2011CA00050                                                     28


for conversion and bailment. The parties did not provide jury interrogatories to test the

jury’s verdict.

       {¶ 95} We finally address the Lancis’ argument there is no evidence in the record

that Linda Lanci is liable to Paul Monea for bailment or conversion. The trial court also

addressed this question at trial and did not dismiss Linda Lanci from the proceedings.

(Vol. I, p. 279).

       {¶ 96} It is undisputed Linda Lanci was owner of the Lake House with her

husband, Ken Lanci. Linda Lanci was named as plaintiff in the eviction proceedings

against the Moneas. Linda Lanci testified she deferred to her husband as to financial

issues. (Vol. I, p. 156).

       {¶ 97} As part owner of the Lake House and a participant in the eviction

proceedings that led to the bailment and conversion claims, we find no error to deny the

motion to dismiss Linda Lanci from the proceedings.

       {¶ 98} The Lancis’ first, second, and third Cross-Assignments of Error are

overruled.

      Moneas’ Assignment of Error III. / Lancis’ Cross-Assignment of Error IV.

       {¶ 99} We address the Moneas’ third Assignment of Error and the Lancis’ fourth

Cross-Assignment of Error together because they address the same issue. Both parties

moved for sanctions pursuant to R.C. 2323.51, Civ.R. 37(C), and Civ.R. 11 based on

false answers to Requests for Admission. On March 2, 2011, the trial court denied the

motions of each party, finding that “both parties, at a minimum, violated both the spirit

and the letter of the Civil Rules of Civil Procedure. Both parties are guilty of discovery
Stark County, Case No. 2011CA00050                                                      29


abuses. The Court finds, therefore, that any motion for discovery sanctions is herein

denied.”

        {¶ 100}      A trial court's decision to impose sanctions will not be reversed

absent an abuse of discretion. State ex rel. Fant v. Sykes (1987), 29 Ohio St.3d 65;

Kemp, Schaeffer & Rowe Co., L .P.A. v. Wrecker (1990), 70 Ohio App.3d 493; Newman

v. Al Castrucci Ford Sales, Inc. (1988), 54 Ohio App.3d 166. An abuse of discretion

connotes more than an error of law or judgment; it implies the court's attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217. We must look to the totality of the circumstances to determine whether the

trial court acted unreasonably, arbitrarily or unconscionably.

        {¶ 101}      A review of the record in this case shows the trial court did not

abuse its discretion in denying sanctions for both parties. At trial, both parties admitted

they falsely responded to the Requests for Admission. The trial court was within its

discretion to deny sanctions for either party under the circumstances of the present

case.

        {¶ 102}      The Moneas’ third Assignment of Error is overruled. The Lancis’

fourth Cross-Assignment of Error is overruled.

                           Moneas’ Assignment of Error IV.

        {¶ 103}      After the verdict was rendered in the present case, Ken Lanci

obtained an $18,600,000 cognovit judgment against Paul Monea in the Cuyahoga

County Court of Common Pleas, Case No. CV-11-747079. On February 3, 2011, Ken

Lanci transferred the judgment lien to the Stark County Court of Common Pleas, Case

No. 2011JG00830. The Lancis moved to offset the Cuyahoga County judgment against
Stark County, Case No. 2011CA00050                                                     30


the judgment in the present case. On March 2, 2011, the trial court granted the motion

to offset the $18,600,000 judgment lien against the $395,000 net judgment in the

present case, resulting in a net judgment owed by Paul Monea to the Lancis in the

amount of $18,205,000. The Moneas argue in their fourth Assignment of Error the

offset was in error.

       {¶ 104}         A set-off, whether legal or equitable, must relate to cross demands

in the same right and where there is mutuality of obligation. The debts must be to and

from the same persons and in the same capacity.             Nichols v. Metropolitan Life

Insurance Company (1941), 137 Ohio St. 542, 31 N.E.2d 224, quoting Andrews v. State

ex rel. Blair, Superintendent of Banks, 124 Ohio St. 348, 178 N.E. 581. A question of

whether one judgment may be set off against another is addressed to the trial court's

discretion, exercised in accord with sound principles of the equity and jurisprudence.

Montalto v. Yeckley (1944), 143 Ohio St. 181, 54 N.E.2d 421.

       {¶ 105}         The Moneas argue the offset was in error because there is no

mutuality of obligation. The judgment obtained by Paul Monea in this case was against

Ken and Linda Lanci, jointly and severally.       The Cuyahoga County judgment was

obtained by Ken Lanci, individually, against Paul Monea.

       {¶ 106}         On April 5, 2011, Ken Lanci assigned a portion of the Cuyahoga

County judgment to Linda Lanci. The Moneas argue this Court cannot consider the

assignment of the Cuyahoga County judgment to the issue of mutuality of obligation

because the assignment was not before the trial court when it made its decision on

March 2, 2011 to offset the judgment.
Stark County, Case No. 2011CA00050                                                    31


        {¶ 107}     The trial court did not rule on the motion for judgment

notwithstanding the verdict until April 8, 2011 and by our order, the appeal was

perfected on April 8, 2011. We consider the entire record before us, including the April

5, 2011 assignment of the Cuyahoga County judgment. We find the Moneas’ argument

is rendered moot by the assignment and the offset of the judgment to be proper under

these circumstances.

        {¶ 108}     The Moneas’ fourth Assignment of Error is overruled.

                           Moneas’ Assignment of Error V.

        {¶ 109}     In their final Assignment of Error, the Moneas argue the trial court

abused its discretion in denying the Moneas the opportunity to call a rebuttal witness at

trial. The Moneas contend the trial court should have permitted the Moneas to call a

handwriting expert to rebut the testimony of Ken Lanci who stated he witnessed Paul

Monea sign the lease to the Lake House.         The expert witness was not identified

pursuant to the trial court’s discovery order nor did the expert issue an expert report.

(Vol. I, p. 17).

        {¶ 110}     The admission or exclusion of evidence lies within the sound

discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 375, 510

N.E.2d 343, paragraph two of syllabus. An abuse of discretion is more than an error of

law or judgment; it implies an unreasonable, arbitrary, or unconscionable attitude on the

part of the trial court. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d

1140; Steiner v. Custer (1940), 137 Ohio St. 448, 31 N.E.2d 855. A trial court does not

abuse its discretion by excluding expert witness testimony when a party has failed to

disclose a witness in violation of discovery. City of Dover v. R.J. Corman RR. Co.
Stark County, Case No. 2011CA00050                                                        32

Cleveland Line, 181 Ohio App.3d 31, 2009-Ohio-562, 907 N.E.2d 1198, at ¶ 38 citing

Vinci v. Ceraolo (1992), 79 Ohio App.3d 640, 607 N.E.2d 1079.

       {¶ 111}       The Moneas consulted the handwriting expert early in the litigation

(Moneas’ Brief, p. 22), but did not have the expert prepare a report because they did not

believe that Ken Lanci would testify that he witnessed Paul Monea sign the lease. (Vol.

I, p. 16). The trial court recollected there was an affidavit from Paul Monea, Jr. stating it

was his father’s signature on the lease. (Vol. I, p. 15).

       {¶ 112}       We find no abuse of discretion in the trial court’s decision to

exclude the rebuttal testimony of the Moneas’ handwriting expert for failure to comply

with the trial court’s discovery orders. The Moneas obtained the expert early in the

litigation process, the Moneas were aware there were allegations a written lease

existed, and there was affidavit evidence from Paul Monea, Jr. stating he recognized

Paul Monea’s signature on the lease.

       {¶ 113}       The Moneas’ fifth Assignment of Error is overruled.
Stark County, Case No. 2011CA00050                                           33


       {¶ 114}        In summary, the Assignments of Error of the Moneas and the

Lancis are overruled. The judgment of the Stark County Court of Common Pleas is

affirmed.

By: Delaney, J.

Gwin, P.J. and

Edwards, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. W. SCOTT GWIN



                                      HON. JULIE A. EDWARDS
[Cite as Monea v. Lanci, 2011-Ohio-6377.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT

PAUL M. MONEA, et al.                         :
                                              :
                                              :
           Plaintiffs-Appellants/Cross-       :
           Appellees                          :
                                              :
-vs-                                          :   JUDGMENT ENTRY
                                              :
KENNETH A. LANCI, et al.                      :
                                              :
                                              :   Case No. 2011CA00050
           Defendants-Appellees/Cross-        :
           Appellants                         :




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

judgment of the Stark County Court of Common Pleas is affirmed. Costs split and

assessed equally between the parties.




                                            HON. PATRICIA A. DELANEY



                                            HON. W. SCOTT GWIN



                                            HON. JULIE A. EDWARDS
