[Cite as Purcell v. Schaefer, 2014-Ohio-4894.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             PREBLE COUNTY




JEFFREY T. PURCELL, et al.,                        :

        Plaintiffs-Appellants,                     :     CASE NO. CA2013-09-007

                                                   :           OPINION
    - vs -                                                      11/3/2014
                                                   :

MARK SCHAEFER, et al.,                             :

        Defendants-Appellees.                      :



             CIVIL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                                Case No. 10CV028546



Jane E. Schreyer, 100 West Main Street, Eaton, Ohio 45230, for plaintiffs-appellants, Jeffrey
T. and Stephanie Purcell

The Hobbs Law Office, H. Steven Hobbs 119 Commerce Street, P.O. Box 489, Lewisburg,
Ohio 45338, for defendants-appellees, Mark Schaefer and Northcreek Crossing, Inc.



        PIPER, J.

        {¶ 1} Plaintiffs-appellants, Jeffrey and Stephanie Purcell, appeal from a decision in

the Preble County Court of Common Pleas granting judgment in favor of defendants-

appellees, Mark Schaefer and his company Northcreek Crossing, Inc., following a jury trial.

For the reasons detailed below, we affirm.

        {¶ 2} This case arises from a real estate transaction for real property located at 103
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Megan Trail, Lewisburg, Ohio located in Preble County. In short, appellants purchased a

manufactured home from appellees that was too big for the lot and in violation of the

Lewisburg zoning ordinances. Appellants claim that their property is essentially valueless

based on the violations of the zoning ordinances. Following a lengthy dispute between the

parties, and attempts to correct the situation, appellants filed suit alleging multiple claims for

recovery, including fraud, breach of contract, and slander of title.

       {¶ 3} The matter proceeded to a jury trial. Following the presentation of appellants'

case-in-chief, the trial court granted a directed verdict to appellees on appellants' claim for

slander of title. Thereafter, once appellees presented their defense, the jury returned a

verdict in their favor finding no fraud or breach of contract. Appellants subsequently moved

for relief from judgment pursuant to Civ. R. 60(B), which the trial court denied.

       {¶ 4} Appellants now appeal, raising two assignments of error for review.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE JURY VERDICT IN FAVOR OF DEFENDANTS/APPELLEES WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 7} In their first assignment of error, appellants argue the jury's verdict was against

the manifest weight of the evidence. We disagree.

       {¶ 8} As an appellate court, our review of a trial court's decision is limited to whether

the judgment is against the manifest weight of the evidence. Jones v. Holmes, 12th Dist.

Butler No. CA2012-07-133, 2013-Ohio-448, ¶ 24. The Ohio Supreme Court has confirmed

that when reviewing the manifest weight of the evidence, an appellate court conducts the

same analysis in both criminal and civil cases. Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, ¶ 12. As such, we weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether in resolving conflicts in the

evidence, the finder of fact "clearly lost its way and created such a manifest miscarriage of
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justice that the [judgment] must be reversed and a new trial ordered." Id. at ¶ 20, quoting

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). A court of appeals panel must act

unanimously to reverse a jury verdict on the weight of the evidence. Eastley at ¶ 7.

       {¶ 9} If the evidence presented to the trial court is susceptible to more than one

interpretation, we are bound to give it the construction that is consistent with the trial court's

judgment and finding of facts. Jones at ¶ 24. A reviewing court should not reverse a

decision simply because it holds a different opinion concerning the credibility of the witnesses

and the evidence submitted before the trial court. Artisan & Truckers Cas. Co. v. JMK

Transp., L.L.C., 12th Dist. Clermont No. CA2013-01-004, 2013-Ohio-3577, ¶ 25. The

underlying rationale of this deferential standard rests with the understanding that "the trial

judge 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 proffered testimony."

Mike Castrucci Ford Sales, Inc. v. Hoover, 12th Dist. Clermont No. CA2007-02-022, 2008-

Ohio-1358, ¶ 19, quoting Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77, 80

(1984).

       {¶ 10} In order to establish a claim in fraud, the complaining party must show: (1) a

representation or, where there is a duty to disclose, concealment of a fact, (2) which is

material, (3) made falsely, with knowledge of its falsity or with reckless disregard for the truth,

(4) with the intent to mislead, (5) justifiable reliance on the representation or concealment,

and (6) injury proximately caused by such reliance. Mertens v. Dever, 12th Dist. Clermont

No. CA2005-07-060, 2006-Ohio-100, ¶ 14, citing Cohen v. Lamko, Inc., 10 Ohio St.3d 167,

169 (1984). On the other hand, to recover upon a breach-of-contract claim, a claimant must

prove the following elements: (1) the existence of a contract, (2) that the plaintiff fulfilled its

contractual obligations, (3) that the defendant failed to fulfill its contractual obligations, and

(4) that the plaintiff incurred damages as a result. Lamar Advantage GP Co. v. Patel, 12th
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Dist. Warren No. CA2011-10-105, 2012-Ohio-3319, ¶ 25.

       {¶ 11} In the present case, the parties do not dispute that the manufactured home

purchased by appellants does not presently meet the Lewisburg zoning specifications, as the

city of Lewisburg requires additional footage on at least one side of the house. However,

beyond that, the parties offer conflicting accounts of the transaction and the actions taken as

a result of the zoning violations. In short, appellants claim they were defrauded, while

appellees framed the dispute as a product of "buyer's remorse" and presented evidence that

they have repeatedly attempted to correct the zoning issue to no avail, in part because

appellants have refused to sign the necessary conveyance documents.

       {¶ 12} The following evidence was presented at trial. Appellants attended an open

house at Northcreek Crossing and toured a model home. While there, appellants discussed

purchasing options with Schaefer, including different design specifications that they wanted in

their house. As a result of the discussion, Schaefer walked appellants down the block and

showed them a vacant lot that he believed would be a suitable location for a home matching

their specifications.   On August 19, 2003, appellants made an offer to purchase the

undeveloped property and manufactured home according to the specifications agreed to by

the parties. The deal closed on July 13, 2004.

       {¶ 13} Appellant, Jeffrey Purcell, testified first on behalf of himself and his wife. Jeffrey

stated that he had no knowledge of the zoning issues until after he had already signed the

closing documents. According to Jeffrey, as soon as all of the documents were signed,

Schaefer approached him and admitted that the house was too big for the lot, but promised

to "make it right" by adding six additional feet to the property. Jeffrey testified that he did not

really understand the gravity of the situation, but understood the additional land to be a gift.

       {¶ 14} After closing the deal, Schaefer attempted to transfer the additional six feet to

appellants, but was unsuccessful. Thereafter, the record reflects a lengthy gap between the
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period that Schaefer attempted to convey the property and the subsequent re-opening of the

issue between the parties.

        {¶ 15} However, Jeffrey testified that on October of 2009, he became aware of

another defect in the property, as the setback requirements also failed to comply with the

Lewisburg zoning ordinances. As a result, Jeffrey stated that he wrote a letter to Schaefer to

express his desire to clear the defects in the property. On February 18, 2010, Schaefer

made a written promise to deed six additional feet of land at "no cost." Since that time,

Jeffrey stated that Schaefer has presented appellants with multiple plans to add footage to

the property. However, Jeffrey testified that he has not signed any of the documents, also

referred to as "mylars," which would add additional land to the side of their home because
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the documents failed to remedy the entire zoning problem.

        {¶ 16} Chad Hoke, the director of land use management for Preble County, also

testified at trial.2 Hoke testified that one of the attempted conveyances of the land would not

have been approved by his office because the acreage does not match the legal description

of the land. However, Hoke also acknowledged that such errors are not uncommon. Hoke

did not address the specific issues between the parties, as he testified that he was not aware

of the entire dispute.

        {¶ 17} In addition, Schaefer testified that he knew the house was too big for the lot and

admitted that he did not tell appellants of the zoning issue "face to face" on the day of

closing. However, Schaefer maintained that he informed appellants' agent, the surveyor, and

the title company of the zoning issue. Schaefer also testified that he attempted to transfer



1. At trial, the parties referred to the replating or conveyance documents as "mylars." Testimony at trial reflects
that the term "mylar" refers to the type of material--a type of plastic--that the conveyance plans are drawn on.
We choose to use the term "documents" or "conveyance documents" for ease of discussion.

2. The land use management office is responsible for reviewing replats, maps, and documents referred to as
"mylars" to make sure that the conveyance meets the conveyance standards for Preble County.
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two deeds to appellants, one deed containing the additional footage for the property, which

would join the lots together to remedy the defect, but the county denied his request to join the

lots. Further, Schaefer stated that he now believed all three of the proposed conveyance

documents would be accepted by the county and appellants needed to sign the documents in

order to have the land transferred. In other words, Schaefer believed that appellants were

putting "the cart before the horse" regarding the transfer of ownership of the land, as it was

their delay and failure to sign the documents that has delayed the transfer of the land.

However, Schaefer testified that he stands "ready, willing, and able" to provide appellants

with an additional ten feet of property and a variance at no cost.

       {¶ 18} In their defense, appellees called David Winemiller, a licensed engineer and

land surveyor who surveyed the property owned by Schaefer and Northcreek Crossing.

Winemiller testified that appellants' property needed additional land to be in conformity with

zoning regulations. Winemiller also stated that he had drawn up the previous conveyance

documents in an attempt to correct the defect. Although he acknowledged a minor error in

the third attempted conveyance, Winemiller referred to the error as "scrivener's error" and

testified that such a minor problem could easily be remedied. Furthermore, Winemiller

testified that the village of Lewisburg has signed off on the replat and, absent the minor

typographical error on the acreage, he did not see any reason why the conveyance

document should not be recorded.

       {¶ 19} In addition, Jeffrey Sewert, the village administrator for Lewisburg was called to

testify. Sewert testified that two of the conveyance documents were sufficient to correct the

zoning problem with Lewisburg. Sewert also testified that he believed appellants could

obtain a variance through Lewisburg and he had provided the variance paperwork to them.

Nevertheless, Sewert stated that, as of the date of trial, appellants have not applied for a

variance, which would solve the zoning problem.

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       {¶ 20} Based on our review of the evidence, we find the jury did not clearly lose its way

in rendering judgment in favor of appellees. This case came down to the credibility of the

witnesses and whether appellants were able to meet their burden of proof. See Fikri v. Best

Buy, Inc., 12th Dist. Warren No. CA2013-06-051, 2013-Ohio-4869, ¶ 19 ("[t]he burden of

proof is on the party bringing the action to prove the facts necessary for their case by a

preponderance of the evidence"). Because the jury was not asked to provide responses to

interrogatories, there is no specific information as to why the jury reached its conclusion.

Nevertheless, although the record reflects a sincere belief on the part of appellants that they

have been wronged, the jury, as trier of fact, disagreed. Specifically, the jury found that

appellees did not defraud appellants and appellees were not liable for breach of contract.

The jury may well have found that appellants failed to prove their reasonable damages or

failed to establish any actionable wrongdoing on the part of appellees, as there was ample

testimony regarding appellees attempts to correct the issue and appellants refusal to

cooperate in any efforts to remedy the problem. In sum, there is evidence to support that

finding and we will not speculate that the jury was biased or based their decision on the

"popularity" of the parties. Therefore, as the jury's finding in favor of appellees is supported

by the weight of the evidence, appellants' first assignment of error is overruled.

       {¶ 21} Assignment of Error No. 2:

       {¶ 22} THE TRIAL COURT ERRED IN OVERRULING PLAINTIFFS/APPELLANTS'

60(B) MOTION AFTER THE VERDICT.

       {¶ 23} In their second assignment of error, appellants argue the trial court erred in

denying their Civ.R. 60(B) motion for relief from judgment. Appellants allege that certain

testimony presented by their own witness, Chad Hoke, was untruthful and amounted to unfair

surprise during the course of the jury trial. As a result of further investigation conducted

following the trial, appellants allege that a familial and business relationship existed between
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Hoke and Schaefer. We find no merit to appellants' arguments.

       {¶ 24} Pursuant to Civ.R. 60(B), "the court may relieve a party or his legal

representative from a final judgment, order or proceedings" for the following reasons:

              (1) mistake, inadvertence, surprise or excusable neglect; (2)
              newly discovered evidence which by due diligence could not
              have been discovered in time to move for a new trial under Rule
              59(B); (3) fraud (whether heretofore denominated intrinsic or
              extrinsic), misrepresentation or other misconduct of an adverse
              party; (4) the judgment has been satisfied, released or
              discharged, or a prior judgment upon which it is based has been
              reversed or otherwise vacated, or it is no longer equitable that
              the judgment should have prospective application; or (5) any
              other reason justifying relief from the judgment.

       {¶ 25} In order to prevail on a Civ.R. 60(B) motion, the moving party must demonstrate

that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the

party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and

(3) the motion is made within a reasonable time. GTE Automatic Electric v. ARC Industries,

Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. The moving party must

establish all three requirements in order for the motion to be granted. Robinson v. Miller

Hamilton Venture, L.L.C., 12th Dist. Butler No. CA2010-09-226, 2011-Ohio-3017, ¶ 14.

"Relief from judgment may be granted based on newly discovered evidence, but similar to

Civ.R. 59, evidence that could have been discovered prior to trial by the exercise of due

diligence does not qualify as newly discovered evidence." Healey v. Goodyear Tire & Rubber

Co., 9th Dist. Summit No. 25888, 2012-Ohio-2170, ¶ 16.

       {¶ 26} The decision to grant or deny a Civ.R. 60(B) motion lies within the trial court's

discretion, and the decision will be reversed only for an abuse of discretion. Bowman v.

Leisz, 12th Dist. Warren No. CA2014-02-029, 2014-Ohio-4763, ¶ 17; Cox v. Zimmerman,

12th Dist. Clermont No. CA2011-03-022, 2012-Ohio-226, ¶ 14. An abuse of discretion

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

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unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

        {¶ 27} Here, appellants essentially argue that they are entitled to relief from judgment

based on "newly discovered evidence," relating to a tenuous familial or business relationship

between Chad Hoke, appellants' own witness, and Schaefer. According to appellants, they

were surprised by Hoke's testimony that the setback requirements are measured from the

foundation of the home, instead of the "overhang" of the home. Appellants maintain that this

testimony contradicted, and acted to impeach Jeffrey's own testimony that his house was out
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of compliance with setback requirements.

        {¶ 28} Appellants further allege that, after the trial, they conducted an internet search

and "discovered" a familial and business relationship between the Hoke family and the

Schaefer family, which they contend, influenced Hoke's testimony, therefore causing unfair

surprise and prejudice at trial.4 In support of this claim, appellants attached a printout from

the website "Ancestry.com," as well as other documents purportedly indicating that Hoke and

Schaefer are related by business and familial relationships.

        {¶ 29} Based on our review, we find no error in the trial court's decision denying

appellants' motion. Appellants' suggestion that their Civ.R. 60(B) motion should be granted,

essentially, because they did not know or properly predict the answer in advance of the

question asked is without merit. In fact, it was appellants who called Hoke to testify and had

the opportunity to question him prior to trial. Through the exercise of due diligence,

appellants could have discovered information relating to Hoke's alleged biases, relationships,



3. In his testimony, Jeffrey adamantly denied that setback measurements are taken from the foundation of the
home and repeatedly asserted that setback measurements are taken from the "overhang" of the home.

4. We note that appellants do not specifically delineate which subsection of Civ.R. 60(B) they hope to utilize as a
basis for their motion for relief from judgment, but instead make several suggestions, including "newly discovered
evidence," "surprise," and falsified testimony in order to claim prejudice at trial.
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or his understanding of setback requirements prior to the final judgment. There is simply

nothing in the record to suggest that appellants or their counsel were misled or prejudiced by

any testimony that they could not have discovered prior to trial.

       {¶ 30} Moreover, the allegation that Hoke "incorrectly testified" based on a family or

business relationship is entirely speculative and does not implicate any valid reason for

ordering relief from judgment pursuant to Civ.R. 60(B). Relationships and even friendships

are not automatically presumed to result in bias and biased testimony, which would also be

subject to exposure through questioning at trial. See Evid.R. 616(A) ("Bias, prejudice,

interest, or any motive to misrepresent may be shown to impeach the witness either by

examination of the witness or by extrinsic evidence.")

       {¶ 31} In sum, appellants have not set forth any valid reason for relief from judgment

pursuant to Civ.R. 60(B). The alleged "new evidence" proffered by appellants is information

that could have been discovered prior to trial. Furthermore, evidence of this alleged

relationship, purportedly creating an incentive for Hoke to perjure himself, is based on

speculation and conjecture. Accordingly, we find appellants' second assignment of error to

be without merit.

       {¶ 32} Judgment affirmed.


       RINGLAND, P.J., and HENDRICKSON, J., concur.




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