[Cite as Bell v. Turner, 2013-Ohio-1323.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     HIGHLAND COUNTY

RODNEY BELL, et al.,                    :    Case Nos. 12CA14
                                        :              12CA15
      Plaintiffs-Appellants,            :
                                        :    DECISION AND
      v.                                :    JUDGMENT ENTRY
                                        :
WILLIAM A. TURNER, et al.,              :
                                        :
      Defendants-Appellees,             :
                                        :
      and                               :
                                        :
HARRIET FOUT, dba Fout Realty,          :    RELEASED 03/25/13
                                        :
      Third-Party Defendant-Appellant.  :
______________________________________________________________________
                                APPEARANCES:

Jon C. Hapner, Hapner & Hapner, Hillsboro, Ohio, for Plaintiff-Appellant Rodney Bell.

Conrad A. Curren, Esq., Greenfield, Ohio, for Third-Party Defendant-Appellant Harriet
Fout, dba Fout Realty.

John S. Porter, Rose & Dobyns Co., L.P.A., Blanchester, Ohio, for Defendant-Appellee
Stella Turner.
______________________________________________________________________
Harsha, J.

        {¶1}     Rodney Bell and Shirley Bell (the “Bells”) initiated this lawsuit in January

1996, and this is the fifth appeal since 2005. The Bells appeal from the trial court’s July

24, 2012 judgment entry rescinding the land contract between them and William and

Stella Turner (the “Turners”) and rejecting the Bells’ claims against Peter Quance, the

attorney who closed the transaction.1



1
  The record indicates that of the Bells, only Rodney Bell appealed. Also, William Turner is deceased and
Stella Turner was substituted as a defendant as the administrator of his estate. Nonetheless, we refer to
these parties as the Bells and the Turners for expediency. In addition, defendants below Leesburg
Highland App. No. 12CA3490                                                                      2


       {¶2}    The Bells argue that the court erred when it fashioned the rescission order

because it instructed them to pay the real estate taxes, interest, and penalties that

accrued on the properties from the date the Bells and Turners entered into the land

contract. The Bells contend that the Turners should pay the entire tax liability for

numerous reasons we find unpersuasive. Nonetheless, we conclude the trial court

abused its discretion because its decision to order the Bells to bear sole responsibility

for the tax liability is unreasonable. The land contract was rescinded due to a mutual

mistake. There is no evidence that the Bells or Turners profited from the land in any

way during these proceedings. And it is clear that the inaction of both the Bells and

Turners contributed to the tax liability, which escalated as this case has dragged on

year after year. Therefore, we modify the court’s order as detailed below to make the

Bells and Turners each responsible for one-half of the real estate taxes, interest, and

penalties that accrued from July 9, 1995, until July 24, 2012. Any tax liability that

accrued before June 9, 1995, and after July 24, 2012, is the Bells’ responsibility.

       {¶3}    Finally, the Bells claim the court erred when it ruled in Quance’s favor on

their claim that he was an escrow agent and wrongfully refused to give them escrowed

funds to pay the balance due on the land contract. However, the record contains

evidence from which the court could conclude that under the terms of the escrow

agreement, the Bells were not to be paid until the Turners received certain zoning

permits. Because that condition was not satisfied, Quance could not give the Bells the

escrowed funds. To the extent the Bells suggest Quance improperly returned the funds

to the lender involved in the transaction, they fail to explain how they were harmed by


Federal Savings & Loan Association and Peter Quance have not filed an appearance or otherwise
participated in this appeal.
Highland App. No. 12CA3490                                                                          3


this transfer, especially in light of the fact that the land contract has been rescinded.

          {¶4}    Harriet Fout, dba Fout Realty, also appeals the court’s judgment, which

ordered her to disgorge her sales commission from the transaction plus statutory

interest.2 Fout complains that the judgment is not a final order because the court failed

to state whether it characterized her commission as “closing costs.” We fail to see the

necessity of this for purposes of finality in this case.

          {¶5}    Next, Fout claims the doctrine of res judicata precludes the court from

ordering her to return the commission. We agree. The court previously issued a final

order in Fout’s favor, and no one appealed that ruling. Therefore, it was error for the

court to alter its prior decision. Accordingly, based on res judicata we modify the July

2012 judgment to state that Fout cannot be ordered to return her commission with

interest. The court instructed the clerk of court to give the Turners $1,964.08 out of the

money the court ordered Fout to pay. Because our modification makes that impossible,

we also modify the court’s decision to state that the Turners are not entitled to the

$1,964.08. Our decision renders moot Fout’s additional claims.

                                                 I. Facts

          {¶6}    This litigation is the product of a failed real estate transaction in which the

Bells sold six parcels to the Turners. Because this case has been before us on multiple

occasions, we have recounted the facts in previous opinions. Bell v. Turner, 4th Dist.

No. 05CA10, 2006-Ohio-704, ¶ 2-14 (“Bell I”); Bell v. Turner, 172 Ohio App.3d 238,

2007-Ohio-3054, 874 N.E.2d 820, ¶ 3-13 (4th Dist.) (“Bell II”); Bell v. Turner, 191 Ohio

App.3d 49, 2010-Ohio-4506, 944 N.E.2d 1179, ¶ 2-5 (4th Dist.) (“Bell III”); Bell v.

Turner, 4th Dist. Nos. 10CA18 & 10CA19, 2012-Ohio-669, ¶ 2-5 (“Bell IV”).
2
    These appeals were consolidated for purposes of decision.
Highland App. No. 12CA3490                                                                   4

       {¶7}   We dismissed Bell I for lack of a final order because the court had not

resolved a request for reimbursement of fees and expenses. After the court entered

judgment on that claim, we addressed the merits of the court’s final judgment in Bell II

and affirmed it in part and reversed it in part. We remanded for further proceedings on

the claims against Quance and for consideration of whether rescission of the real estate

contract was “even a proper remedy in this case and, if so, what steps are required to

put the parties back in their precontract position.” Bell II at ¶ 31, 34. Post-remand, the

trial court issued entries the Bells and Fout appealed in Bell III and Bell IV. We

dismissed those appeals for lack of a final order.

       {¶8}   Following Bell IV, the trial court issued an entry on July 24, 2012, finding

rescission was an appropriate remedy and that: (1) the Turners (and their children) had

to execute deeds to transfer the parcels back to the Bells; (2) the Bells were responsible

for payment of “all real estate taxes, interest, and penalties” that accrued against the six

parcels “since March 12, 1996, the date of the original contract entered into by Plaintiffs

and Defendant Turner”; (3) Fout had to disgorge the $6,500.00 real estate commission

she received from the sale and pay it plus statutory interest from March 12, 1996, to the

clerk of court; (4) the Turners were awarded a refund of all closing costs they paid on

June 9, 1995, plus statutory interest from March 12, 1996, forward; (5) upon receipt of

Fout’s payment, the clerk shall issue a check to Stella Turner “in an amount of $1964.08

equal to the amount awarded” for closing costs and interest; (6) the remainder of Fout’s

payment shall be paid to the Highland County Treasurer and applied towards the unpaid

real estate taxes on the six parcels on a pro rata basis; and (7) the Turners and their

children were responsible for clearing all trash, debris, and junk from the property and
Highland App. No. 12CA3490                                                                                  5


trimming and removing vegetative overgrowth. The court also found in Quance’s favor

on the Bells’ claims against him. Once again, an appealed followed.

                                       II. Assignments of Error

        {¶9}    The Bells assign three errors for our review:

        I.      The [t]rial [c]ourt erred in its decree of rescission wherein the
                Defendant/Appellee incurred the real estate taxes and imposed the
                delinquent taxes on the Appellant. Record Pages 19, 70, 83.

        II.     The [t]rial [c]ourt erred in placing the burden of restoration upon the
                Plaintiff/Appellants since it was the Defendant/Appellee Turners
                seeking rescission. Record Pages 19, 42, 70 to 72.

        III.    The [t]rial [c]ourt erred in finding for the Defendant Quance on the
                matter of the escrow.

        {¶10} Fout also assigns three errors for our review3:

        I.      The [t]rial [c]ourt erred in dismissing Peter Quance as a defendant
                from the case as Mr. Quance’s actions were an integral component
                in the case.

        II.     The [t]rial [c]ourt erred to the detriment of the Defendant/Appellant
                Harriet Fout as it did not have jurisdiction to address the matter of
                Appellant Fout’s commission as the doctrine of res judicata bars all
                claims that have been previously litigated and any order relating to
                the Appellant Harriet Fout was beyond the mandate of the
                Appellate Court’s remand.

        III.    The trial court erred to the detriment of Defendant/Appellant Fout
                when it ordered Defendant/Appellant Fout to disgorge the
                commission paid to her, together with statutory interest, as such
                order was in violation of the Appellate Court’s remand, which
                required the trial court to determine what steps are required to put
                the parties back in their pre-contract position.

                a. The trial court’s latest order is still not an appealable order
                   because there is no finding that the closing costs consisted only
                   of the real estate commission or that the real estate commission
                   was any part of the closing costs.
                b. The trial court erred to the detriment of the Defendant Harriet

3
 Fout actually designates these as “ISSUES” in her appellate brief and fails to specifically identify any
assignments of error, but we will treat her “ISSUES” as assignments of error.
Highland App. No. 12CA3490                                                                               6


                    Fout in ordering interest paid on the real estate commission as
                    this would result in unjust enrichment of other parties.

                              III. Finality of the July 24, 2012 Order

        {¶11} Initially, we address Fout’s claim in her third assignment of error that the

court’s July 24, 2012 order is not final. Appellate courts “have such jurisdiction as may

be provided by law to review and affirm, modify, or reverse judgments or final orders of

the courts of record inferior to the court of appeals within the district[.]” Ohio

Constitution, Article IV, Section 3(B)(2). If a court’s order is not final and appealable, we

have no jurisdiction to review the matter and must dismiss the appeal. Eddie v.

Saunders, 4th Dist. No. 07CA7, 2008-Ohio-4755, ¶ 11.

        {¶12} Fout argues that the order is not final because “there is no finding that the

closing costs consisted only of the real estate commission or that the real estate

commission was any part of the closing costs.” Fout does not expand on this argument,

so it is unclear why the court had to make a finding about whether the commission

constituted part of the closing costs to create a final order. The court ordered $1,964.08

refunded to the Turners for closing costs they paid and interest.4 Thus, the amount the

Turners are to receive under the entry is clear regardless of whether the money they

paid for “closing costs” was ever used to pay any portion of the commission. Therefore,

we reject Fout’s argument with regard to the finality of the court’s July 2012 judgment.

                                       IV. Fout’s Commission

        {¶13} Because it is dispositive of the rest of her appeal, we next address Fout’s

second assignment of error. Fout claims the court erred when it ordered her to return

the commission plus interest. She contends the court previously issued a final

4
  Although none of the parties raise the issue, the court’s $1,964.08 figure appears to mistakenly exclude
the statutory interest the court also ordered paid to the Turners.
Highland App. No. 12CA3490                                                                    7


judgment in her favor which no one appealed, and the doctrine of res judicata bars the

court from altering that judgment. She also complains that the court went beyond the

scope of our remand instructions in Bell II when it issued the order against her.

       {¶14} “The applicability of res judicata is a question of law that is subject to de

novo review.” Althof v. State, 4th Dist. No. 04CA16, 2006-Ohio-502, ¶ 13. “ ‘If a final

appealable order is not timely appealed, all matters that could have been reviewed had

an appeal been taken become res judicata and are not reviewable in a related or

subsequent proceeding or appeal.’ ” Parker v. Jamison, 4th Dist. No. 02CA2857, 2003-

Ohio-7295, ¶ 10, quoting Jeffers v. Jeffers, 10th Dist. No. 00AP-442, 2001 WL 118530,

*3 (Feb. 13, 2001).

       {¶15} In a third-party complaint, the Turners sought a judgment against Fout for

the return of her $6,500 commission plus interest. In a June 23, 2005 entry, the court

stated: “The settlement agent * * * disbursed * * * $6,500.00 on behalf of plaintiffs to

their real estate agent, which disbursement was inconsistent with the ‘oral escrow

agreement.’ This Court will not disturb that disbursement.” Thus, the court ruled in

Fout’s favor on the third-party complaint. Although this was an interlocutory order, see

Bell I, it merged into the court’s final judgment we considered in Bell II.

       {¶16} The Turners claim we reversed the ruling on the commission in Bell II

when we remanded the action “for consideration of whether rescission is even a proper

remedy in this case and, if so, what steps are required to put the parties back in their

precontract position.” Bell II, 172 Ohio App.3d 238, 2007-Ohio-3054, 874 N.E.2d 820,

at ¶ 31. They interpret the word “parties” as a reference to all parties to the litigation.

They misread our decision.
Highland App. No. 12CA3490                                                                     8


       {¶17} The only parties with claims against Fout were the Turners, who did not

file an appeal in Bell II. Even if the Bells had appellate standing to challenge the court’s

ruling on the Turners’ third-party complaint, they did not challenge that ruling in Bell II.

The Bells did complain that the court erred when it rescinded the real estate contract

because they were not restored to the status quo. Id. at ¶ 2. We agreed because it

appeared the court had not taken into consideration outstanding real estate taxes or a

pending foreclosure when it fashioned the remedy of rescission. Id. at ¶ 30. Our

decision had nothing to do with the court’s ruling in Fout’s favor on the Turners’ claims;

Bell never asked us to find Fout liable for return of the commission.

       {¶18} Although our remand order could have been more clearly worded, when

read in context it was an instruction for the court to consider what was required to

restore the parties to the land contract – the Bells and Turners – to the status quo. The

court lacked jurisdiction to reconsider Fout’s liability after Bell II because we did not

remand for that purpose. See State v. Triplett, 4th Dist. No. 11CA24, 2012-Ohio-4529,

¶ 11. And because no one timely appealed the court’s final judgment in Fout’s favor,

res judicata bars the order instructing Fout to disgorge her commission plus interest.

       {¶19} The Bells and Turners suggest the court could not logically rescind the

land contract and let Fout keep her commission. However, they fail to explain why Fout,

as a non-party to that contract, would have any duty to restore them to the status quo.

She was the Bells’ agent and presumably had a separate contract with them for

payment of the commission. The record contains no evidence about the terms of this

contract. It is possible the Bells agreed to pay Fout regardless of whether the land

contract is rescinded. In addition, we disregard the Bells’ claim that Fout was overpaid
Highland App. No. 12CA3490                                                                  9


and the commission should have been $5,000.00 because they did not sue Fout on this

or any other basis.

      {¶20} In the interest of judicial economy, rather than remand this matter to the

trial court for further proceedings we now modify the court’s July 24, 2012 judgment to

state that the court previously ruled in Fout’s favor, and she cannot be ordered to return

her commission with interest. See App.R. 12(B) (authorizing appellate courts to modify

judgments they are reviewing rather than simply remanding them). See also Ohio

Constitution, Article IV, Section 3(B)(2). Under App.R. 12(B) we have the authority to

render the judgment the trial court should have entered. Superior Metal Prods. Inc. v.

Admr., OBES, 41 Ohio St.2d 143, 145, 324 N.E.2d 179 (1975). Because of this

modification, the Turners cannot be reimbursed $1,964.08 with Fout’s money as the trial

court ordered. Accordingly, we also modify the court’s order to state that the Turners

are not entitled to this amount. We affirm the portions of the court’s judgment as

modified. Our decision renders moot Fout’s first assignment of error and the remainder

of her third assignment of error. See App.R. 12(A)(1)(c).

                                      V. Rescission

      {¶21} In their first and second assignments of error, the Bells challenge the

propriety of the court’s rescission order. They complain the court erred for various

reasons when it ordered them to pay the real estate taxes, interest, and penalties on the

six parcels. Because the assigned errors involve similar issues and the arguments in

them overlap to some extent, we address them together.

      {¶22} “In Ohio, ‘the doctrine of mutual mistake [is] a ground for the rescission of

a contract under certain circumstances.’ ” Bell III, 191 Ohio App.3d 49, 2010-Ohio-
Highland App. No. 12CA3490                                                                  10

4506, 944 N.E.2d 1179, at ¶ 12, quoting Reilley v. Richards, 69 Ohio St.3d 352, 352,

632 N.E.2d 507 (1994). “ ‘[R]escission is not merely a termination of the contract; it is

an annulment of the contract. The primary purpose of “rescission” is to restore the

parties to their original positions as if the contract had never been formed. Returning

the parties to status quo is an integral part of rescission, and in doing so it is generally

necessary to award the party seeking rescission at least his out-of-pocket expenses.’ ”

Bell III at ¶ 13, quoting Mid-America Acceptance Co. v. Lightle, 63 Ohio App.3d 590,

599, 579 N.E.2d 721 (10th Dist.1989).

       {¶23} The Bells contend that the Turners had the burden to restore the status

quo because the Turners requested rescission. The Bells argue that by ordering them

to pay the tax liability, the court improperly imposed the burden on them. However,

when rescission is ordered, restoration of the status quo is not a burden imposed on

one party to the transaction. Instead, “[t]he trial court has discretion in fashioning a

decree that will return the parties to the position they occupied before they entered into

the contract.” Bell III at ¶ 14. We review the court’s decree for an abuse of discretion.

See id. The phrase “abuse of discretion” connotes an attitude on the part of the court

that is unreasonable, unconscionable, or arbitrary. State v. Adams, 62 Ohio St.2d 151,

157, 404 N.E.2d 144 (1980). When applying the abuse of discretion standard, a

reviewing court is not free to merely substitute its judgment for that of the trial court. In

re Jane Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991).

       {¶24} Here, the trial court made no findings in the July 2012 decision about why

it ordered the Bells to pay the entire tax liability as part of the rescission order. None of

the parties requested findings of fact and conclusions of law. And “[i]n the absence of
Highland App. No. 12CA3490                                                                   11


findings of fact and conclusions of law, we generally must presume that the trial court

applied the law correctly and must affirm if some evidence in the record supports its

judgment.” McCarty v. Hayner, 4th Dist. No. 08CA8, 2009-Ohio-4540, ¶ 21, fn. 1.

       {¶25} The Bells complain that the Turners never tendered the deeds to them

until May 2005 “at the very earliest.” (Bells’ Appellants’ Br. 16). In Miller v. Bieghler,

123 Ohio St. 227, 174 N.E. 774 (1931), syllabus, the Supreme Court of Ohio stated:

       It is a general rule of equity in cancellation and rescission, subject to few
       exceptions, that a party seeking to rescind a contract or other instrument,
       on the ground of mistake or for any other reason, must first place the other
       in statu[s] quo by returning all money, property, or other benefits received
       by him under the contract which is sought to be rescinded, or by making a
       tender thereof to the other party; and a petition in equity for rescission and
       cancellation of a deed which does not offer to tender a reconveyance of
       the title or to return any property consideration which plaintiff has received
       thereby, or otherwise place defendants in statu[s] quo, or aver facts which
       sufficiently excuse plaintiff from such duty, is subject to demurrer.

Thus, if a party seeks rescission but does not return the benefits received under the

contract or make an offer in his complaint to tender those benefits, his complaint is

“subject to demurrer.” Although Civ.R. 7(C) abolished the demurrer in civil cases, “the

Civ.R. 12(B)(6) defense, ‘failure to state a claim upon which relief can be granted,’ * * *

supersedes the common-law demurrer as a vehicle for challenging a pleading which is

defective on its face.” Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 59, 320

N.E.2d 668 (1974).

       {¶26} However, the Bells did not assign as error the court’s failure to dismiss the

Turners’ counterclaim for failure to state a claim upon which relief can be granted

because of a lack of tender. Instead, they focus on the tax liability. The Bells want us

to order the Turners to pay the entire amount as part of the rescission order and

evidently believe that tender is a factor to consider in resolving who should pay. But
Highland App. No. 12CA3490                                                                 12


because tender relates to dismissal, which the Bells do not seek, their argument is

misplaced and we reject it.

       {¶27} The Bells also contend that the Turners should be responsible for the tax

liability because they did not seek rescission within a reasonable time. The Bells

complain that the Turners “waited 4 months before raising the issue.” (Bells’ Appellants’

Br. 12). However, the Bells do not explain what event the Turners waited four months

after and why that amount of time is unreasonable. We reject this argument.

       {¶28} The Bells argue the Turners should pay the tax liability because Mrs.

Turner received the tax notices in her name, filed them away, and later destroyed them

rather than forwarding them to the Bells or returning them to the county treasurer. Mrs.

Turner gave the following testimony at the 2009 trial:

       Q:     And have you been getting those real estate tax bills on those six
              lots for the last 14 years?
       A:     I don’t know if I get them all, but I got them.

       Q:     And what did you do with the bills?
       A:     I think I filed them.

                                            ***

       Q:     And what did you do with the file?
       A:     I filed it away and then I made three years ago everything
              (inaudible).

       Q:     So you destroyed them? Now did you ever send any to Mr. Bell or
              Mrs. Bell?
       A:     Yes, I did, (inaudible)

       {¶29} Given the inaudible portions of the transcript and fact that in the last part

of the above quoted exchange counsel asked two questions before letting Mrs. Turner

answer, it is unclear whether she is agreeing that she destroyed the notices, that she

sent them to the Bells, or both. In any event, the fact that tax bills were addressed to
Highland App. No. 12CA3490                                                                     13


Mrs. Turner is not dispositive of who is liable for the taxes upon rescission of the land

contract. And we fail to see what Mrs. Turner could accomplish by returning the notices

to the treasurer or forwarding them to the Bells, who have continuously denied liability

for paying those taxes. Therefore, we reject the Bells’ argument.

       {¶30} The Bells also complain that the court’s ruling retroactively imposes

personal liability on them for payment of the tax liability in the event that as a result of

the pending tax foreclosure proceedings, the lots are sold for less than the amount of

delinquent taxes, penalties, and interest. However, they fail to cite any authority that

suggests that court’s ruling is improper for this reason. We reject this argument.

       {¶31} Finally, the Bells contend that the Turners should pay the entire tax liability

because the Turners were the record owners of the land throughout these proceedings.

Therefore, the Turners had all the perks of possession while the taxes accumulated.

However, there is no evidence that the Turners profited from the land in any way.

       {¶32} Nonetheless, we can discern no reasonable basis for the trial court’s

decision to order the Bells to pay the entire tax liability without any contribution by the

Turners. Even though the Turners did not profit from the land during these proceedings,

it is clear the Bells did not either. It appears the only “use” the property has served is as

a location for dumping trash and junk, which the Turners were ordered to remove along

with vegetative overgrowth. The land contract failed because of a mutual mistake of

fact about the Turners’ ability to obtain zoning permits. Likewise, the tax problem in this

case has escalated due to the Bells’ and Turners’ mutual failure to vigorously prosecute

their respective claims during the past 17 plus years. The Bells filed their complaint in

January 1996, the Turners filed their counterclaim in March 1996, but the first trial did
Highland App. No. 12CA3490                                                                   14


not occur until December 2004. From April 2000 until April 2004, it appears nothing

happened on the case based on the complete lack of filings during that period. The

Bells and Turners have paid none of the taxes during these proceedings. The tax bill

grows each year, partly from interest and penalties on the unpaid taxes. Armed with

this knowledge, the Bells and Turners made no effort to mitigate damages by paying the

taxes until the court decided the ultimate issue of whether the Bells, the Turners, or both

were legally responsible for them.

       {¶33} Given the Bells’ and Turners’ mutual mistake that led to the rescission, the

fact that they did not profit from the land, and their mutual failure to mitigate the growing

tax problem, we find the trial court abused its discretion when it ordered the Bells to pay

the entire tax liability. The only reasonable solution to the tax problem is for the Bells

and Turners to share responsibility for the taxes, interest, and penalties.

       {¶34} In its July 24, 2012 entry, the court ordered the Bells to pay the tax liability

that accrued “since March 12, 1996, the date of the original contract entered into by

Plaintiffs and Defendant Turner.” The original contract was actually entered into in May

1995. However, the contract stated that the taxes would be prorated to the closing

date, i.e., the Bells were responsible for the taxes to the closing date. As we noted in

Bell II, 172 Ohio App.3d 238, 2007-Ohio-3054, 874 N.E.2d 820, at ¶ 4, the closing

occurred on June 9, 1995. Even though the trial court rescinded the land contract, it

would not be logical to order the Turners to pay any tax liability that accrued before the

closing as that was never contemplated by the Bells or Turners.

       {¶35} Accordingly, we modify the court’s July 24, 2012 entry to state that the

Bells are responsible for the payment of one-half of all the real estate taxes, interest,
Highland App. No. 12CA3490                                                               15


and penalties which have accrued against the subject six parcels of real estate since

June 9, 1995 (the date of closing) until July 24, 2012. The Turners are responsible for

the payment of the other half of those real estate taxes, interest, and penalties. Any

taxes, interest, and penalties that accrued prior to June 9, 1995, and after July 24, 2012,

are the responsibility of the Bells. We affirm these modified portions of the court’s

judgment.

                         VI. The Bells’ Claims Against Quance

       {¶36} In their third assignment of error, the Bells contend the court erred “in

finding for the defendant Quance on the matter of the escrow.” The Bells argue that

Quance acted as an escrow agent and was supposed to hold $49,901.00 (the balance

the Turners owed the Bells under the land contract) and disburse it to the Bells once the

deeds and mortgages were recorded. The Bells complain that these documents were

recorded, but Quance gave the money back to the lender involved in the transaction

instead of them.

       {¶37} The trial court did not explain why it ruled for Quance in the July 24, 2012

judgment entry, and none of the parties requested findings of fact and conclusions of

law. Again, “[i]n the absence of findings of fact and conclusions of law, we generally

must presume that the trial court applied the law correctly and must affirm if some

evidence in the record supports its judgment.” McCarty, 4th Dist. No. 08CA8, 2009-

Ohio-4540, at ¶ 21, fn. 1. From the evidence, specifically Mrs. Turner’s testimony, the

trial court could have concluded that under the escrow agreement the Bells were not

entitled to the escrowed funds until the Turners obtained zoning permits to place two

trailers on each lot. This condition was never met, so Quance never had authority to
Highland App. No. 12CA3490                                                               16


give the Bells the escrowed funds. And to the extent the Bells suggest that Quance

wrongfully returned the money to the lender, they failed to explain or offer any evidence

as to how they were harmed by this transfer, especially in light of the fact that the land

contract has been rescinded. Accordingly, we overrule the Bells’ third assignment of

error and affirm the court’s judgment as to Quance.

                                                       JUDGMENT AFFIRMED IN PART,
                                                             MODIFIED IN PART, AND
                                                            AFFIRMED AS MODIFIED.
                                             .
Highland App. No. 12CA3490                                                             17


                                  JUDGMENT ENTRY

     It is ordered that the JUDGMENT IS AFFIRMED IN PART, MODIFIED IN PART,
AND AFFIRMED AS MODIFIED and that Appellants and Appellees shall split the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Highland
County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J. & Hoover, J.: Concur in Judgment and Opinion.

                                         For the Court



                                         BY: ____________________________
                                             William H. Harsha, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
