[Cite as Crockett Homes, Inc. v. Hamilton, 2012-Ohio-2162.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                              JUDGES:
CROCKETT HOMES, INC., ET AL                          :        Hon. Patricia A. Delaney, P.J.
                                                     :        Hon. W. Scott Gwin, J.
                      Plaintiffs-Appellees           :        Hon. John W. Wise, J.
                                                     :
-vs-                                                 :
                                                     :        Case No. 2011-CA-00222
JENNIFER ROHRER HAMILTON, ET                         :
AL                                                   :
                                                     :        OPINION
                 Defendants-Appellants




CHARACTER OF PROCEEDING:                                 Civil appeal from the Stark County Court of
                                                         Common Pleas, Case No. 2010CV02794

JUDGMENT:                                                Affirmed in part; Reversed in part


DATE OF JUDGMENT ENTRY:                                  May 14, 2012

APPEARANCES:

For Plaintiff-Appellee                                   For Defendants-Appellants

GREGORY W. HAPP                                          RICHARD A. PAOLO
238 West Liberty Street                                  EDWARD P. AKIN
Medina, OH 44256                                         2200 U.S. Bank Tower
(Counsel withdrew)                                       425 Walnut Street
                                                         Cincinnati, OH 45202
ROBERT B. HOLMAN
Box 46390                                                CRAIG PELINI
24262 Broadway Avenue                                    2848 Carrington Street N.W.
Cleveland, OH 44146                                      North Canton, OH 44720
[Cite as Crockett Homes, Inc. v. Hamilton, 2012-Ohio-2162.]


Gwin, J.

        {1}    Defendants-appellants Jennifer Rohrer-Hamilton, Jed Rohrer, James

Richard Rohrer, Mohler Lumber Company, Inc., Rohrer Development Company, LLC,

and Jed A. Rohrer, Sr., as Executor of the Estate of Richard G. Rohrer, Deceased,

appeal a judgment of the Court of Common Pleas of Stark County, Ohio, entered in

favor of plaintiffs-appellees Crockett Homes, Inc. and Crockett Construction Company,

Inc. Appellants assign eight errors to the trial court:

        {2}    “I. THE TRIAL COURT ERRED IN CONCLUDING THAT ANY ACTIONS

OF DEFENDANTS CAUSED CROCKETT TO LOSE ITS ENTIRE REMAINING

PROJECTED PROFITS FROM THE PROJECT.

        {3}    “II. THE TRIAL COURT ERRED IN CALCULATING DAMAGES, EVEN IF

CROCKETT HAD FULLY PERFORMED AND DEFENDANTS WERE IN BREACH.

        {4}    “III. THE TRIAL COURT HAD NO RATIONAL BASIS FOR ITS $24,000

PER LOT MONEY DAMAGES AWARD TO CROCKETT.

        {5}    “IV. THERE WAS NO LEGAL BASIS FOR ASSIGNING ANY JOINT AND

SEVERAL LIABILITY FOR THE DEVELOPMENT AGREEMENT TO MOHLER.

        {6}    “V. ANY DUTY TO CONVEY A PARTICULAR LOT WAS BREACHED, IF

AT     ALL,     WITH      RESPECT          TO      CROCKETT   HOMES,   NOT   CROCKETT

CONSTRUCTION.

        {7}    “VI. THE TRIAL COURT ERRED IN ASSIGNING AND ADVERTISING

COSTS AS DAMAGES TO DEFENDANTS, IN DEROGATION OF THE WRITTEN

DEVELOPMENT AGREEMENT.
Stark County, Case No. 2011-CA-00222                                                  3


      {8}   “VII. ANY DUTY RICHARD ROHRER OWED CROCKETT ARISING

FROM THE DEVELOPMENT AGREEMENT EXPIRED UPON HIS DEATH.

      {9}   “VIII. THE TRIAL COURT ABUSED ITS DISCRETION BY PARING THE

JUDGMENT OWED BY CROCKETT HOMES BENEATH THE LEVEL DAVID HAYES

ADMITTED TO IN SWORN TESTIMONY.”

                                         THE FACTS

      {10} The matter was tried over four days to the bench. The court’s judgment

entry of August 25, 2011 sets out the court’s findings. The court found David Hayes is a

majority shareholder of Crockett Homes, Inc. and Crockett Construction Company, Inc.

(hereinafter “Crockett”). Crockett Homes builds residential houses. In 2004, Hayes

learned a large parcel of land was available in the Tuslaw area of Stark County. Hayes

obtained an option to buy the property. A local lumber company, not Mohler Lumber,

was interested in backing the development with Hayes, but Hayes was a regular

customer at Mohler Lumber. When Mohler Lumber representatives learned of the

project, they approached Hayes to discuss backing the development in return for

providing the lumber for the homes.

      {11} Dr. Richard Rohrer was the controlling owner of Mohler Lumber Company.

He was a physician who resided in Morrow County, Ohio, and was not a hands-on

owner. For the most part, the negotiations for the land development project involved

Mohler employees Loomis and Zepp.          The court found Hayes did have a few

discussions with Dr. Rohrer, but most often, discussed the matters with Loomis, or

sometimes, Zepp.
Stark County, Case No. 2011-CA-00222                                                      4


       {12} Eventually the parties struck an agreement where Crockett would sign the

option to buy over to Dr. Rohrer. In return, Dr. Rohrer and Crockett would cooperate on

developing the land in four phases. Dr. Rohrer was to contribute the capital. Crockett

was to act as general contractor supervising the development of the property into

residential lots and then to market the lots. The parties were to split the profits from the

venture 60% to Dr. Rohrer and 40% to Hayes. In addition to the profit-splitting clause,

the agreement provided for a premium on each lot sold, with the parties splitting the

premium depending upon whether Crockett or a third party sold the lot.

       {13} Dr. Rohrer’s attorney drafted a contract titled “Development Agreement”,

dated March 23, 2005. Dr. Rohrer and Hayes signed the agreement. The agreement

included an “Exhibit E” attached and incorporated by reference. The exhibit was a

spreadsheet computing the costs of developing the land and preparing the lots, and

explained how the profits would be distributed. Instead of cash, Crockett would receive

lots, transferred in installments as the lots were sold.

       {14} Both sides began to perform under the Development Agreement, and

complied with its terms. The first phase of the development was completed and sold

well; most of the lots in phase one were sold.             However, two events caused the

development to come to a halt approximately two years after the development was

commenced.

       {15} First, the real estate market, to use the trial court’s apt word, tanked. Sales

dropped on existing lots and new construction fell to virtually nothing.
Stark County, Case No. 2011-CA-00222                                                     5


      {16}   The second event was the deteriorating health of Dr. Rohrer. Dr. Rohrer

had participated in a minor way in the on-going development of the property, and

granted a broad power of attorney to Loomis and Zepp to make decisions.

      {17} As the doctor’s health worsened, his children Jennifer, Jed and James

began to act on his behalf. The court found no evidence was produced to demonstrate

Dr. Rohrer delegated any right to act to his children, but as a practical matter, they did

become involved in the development. The court found there was no proof that the

Rohrer children had any legal authority to assume their father’s affairs while he was still

alive. Dr. Rohrer died in May, 2010.

       {18} At first the parties had a good relationship, but eventually the Rohrer

children felt it was too expensive to complete the Development Agreement because it

had become a losing proposition. The development came to a standstill when the

Rohrer children decided they did not want to put any more of their father’s money into

the development to finish the next phase. At the time, Dr. Rohrer was still alive, but the

Rohrer children indicated they spoke on his behalf.

                                         THE DISPUTE

       {19} The Rohrer family contended that Hayes and Crockett went forward with

the completion of phase two by completing roads and other development items even

though the Rohrers told them not to proceed. The court found there were two face-to-

face meetings that occurred prior to the doctor’s death. Present were Loomis and

perhaps Zepp, both of whom had full power of attorney to act for Dr. Rohrer. Also

present were the three Rohrer children, Hayes, and Hayes’ daughter. Dr. Rohrer did

not attend. The court found both sides had different opinions as to the result of the two
Stark County, Case No. 2011-CA-00222                                                  6


meetings. The Rohrer children wanted no further cash outlay, but Hayes felt it was time

to finish phase two and he could obtain the final work without a large cash outlay.

Hayes proposed to find an excavator who would finish the excavation work and accept

payments over time as the lots sold. At the conclusion of the meetings, Hayes hired a

contractor to complete phase two.

       {20} The Rohrers claimed they did not agree to this and that they had refused to

move forward with the development. The contractor who completed phase two was not

paid and filed a lien on the property.

       {21} Jed Rohrer is the executor of the estate of Dr. Rohrer and in his capacity

as executor he refused to convey a lot in violation of the Development Agreement. The

court found while Crockett had fulfilled its obligations under the agreement, Dr. Rohrer

and his estate have not complied with the terms of the agreement.

       {22} Appellants argued that Crockett and Hayes also breached the development

agreement. The court found the evidence does not support the claim, and Crockett and

Hayes have complied with the Development Agreement. The court noted neither the

Rohrer children, nor more specifically, Dr. Rohrer, notified Hayes in writing he was not

to proceed with the completion of phase two. The court found under the specific terms

of the Development Agreement Hayes was not required to obtain the permission of the

Rohrer children to complete phase two, and Crockett had the right to finish phase two of

the development. Dr. Rohrer, when he was alive, and his estate after his death, could

not simply walk away.

       {23} Mohler Lumber filed a claim for varying amounts due from Crockett.

Mohler produced what the trial court characterizes as a “myriad” of work orders,
Stark County, Case No. 2011-CA-00222                                                          7


invoices, and billings, which were incoherent and scattered. The court found Mohler’s

bookkeeping system could be categorized as sloppy. The court awarded Mohler from

Crockett $52,150.84, with no service charges or interest to date allowed. The court

found Mohler had not proven by the greater weight of the evidence any other amounts

were due.

       {24} The court found the real estate constitutes an asset of Dr. Rohrer’s estate,

and Crockett has a valid claim against the estate. The court noted the estate inventory

is not accurate because it does not list the real estate as an asset. The court found the

real estate identifies a limited liability corporation, but nevertheless the title holder of the

real estate is Dr. Rohrer. The court found the Rohrer children are parties to the within

action only from the standpoint that they are heirs of the estate and potentially could

inherit the property.

                                            THE AWARD

       {25} Crockett sought specific performance of the development agreement, but

the trial court found specific performance is not a viable remedy under the

circumstances of the case, and awarded monetary damages. The court awarded to

Crockett from appellants’ damages in four categories:

       {26}   (1)$10,000 for losses resulting from the failure to issue a deed and close

on the sale of lot number 1710 resulting in a breach of the development agreement;

       {27}   (2) $11,590.95 as payment for 50% of advertising and maintenance;

       {28}   (3) $16,500.00 as the earned but unpaid premiums for lots sold under the

development agreement; and
Stark County, Case No. 2011-CA-00222                                                   8


       {29} (4) the current value ($24,000.00 per lot) of the remaining 15 lots for which

Crockett Construction, Inc. would have been entitled to had the Development

Agreement been completed, minus costs savings in the amount of $51,045.00, which

yields $380,955.00.

       {30} The court thus awarded Crockett a total of $347,045.00 plus interest at the

statutory rate and found the parties are jointly and severally liable.

                                    STANDARD OF REVIEW

       {31} Appellants argue our review of the within should be de novo, because pure

contract interpretation is a question of law. Nationwide Mutual Fire Insurance Company

v. Guman Brothers Farm, 73 Ohio St. 3d 107, 108, 652 N.E. 2d 684 (1995). Crockett

concedes that this is a correct statement of law, but argues appellants’ assignments of

error challenge the court’s factual findings. Crockett cites us to Kaufman v. Byers, 159

Ohio App. 3d 238, 2004-Ohio-6346, 823 N.E. 2d 520, ¶37 (11th District) for the

proposition this court may not reverse the trial court’s decision determining damages

absent an abuse of discretion. The Supreme Court has repeatedly defined the term

abuse of discretion as being unreasonable, arbitrary, or unconscionable. See, e.g.,

Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E. 2d 1140 (1983).

       {32} This court will examine the contract itself de novo, but will apply the abuse

of discretion standard to the trial court’s factual determinations. A judgment supported

by some competent and credible evidence will not be reversed on appeal as being

against the manifest weight of the evidence.           C.E. Morris v. Foley Construction

Company, 54 Ohio St. 2d 279, 376 N.E. 2d 578 (1978), syllabus. We must presume the

findings of fact are correct, which means evidence susceptible to more than one
Stark County, Case No. 2011-CA-00222                                                      9


interpretation must be construed in a manner consistent with the trial court’s judgment.

Gerijo, Inc. v. Fairfield, 70 Ohio St. 3d 223, 1994-Ohio-432, 638 N.E. 2d 533.

                                                I & II

       {33} In their first assignment of error, appellants argue the trial court erred in

finding their actions caused Crockett to lose its entire expected profits on the project. In

their second assignment of error, they argue the court erred in calculating damages

even if it was correct in finding Crockett had fully performed and appellants were in

breach.

       {34} Generally, a court’s determination of whether a party has materially

breached a contract is a question of fact. Kersh v. Montgomery Developmental Center,

35 Ohio App. 3d 61, 519 N.E. 2d 665 (10th Dist 1987). If the court finds only one party

has materially breached the contract, the non-breaching party is entitled to recover

restitution or damages for its expectation interest. Yurchake v. Jack Boiman

Construction Company, 3 Ohio App. 3d 15, 443 N.E. 2d 526 (1981).

       {35} Under the contract, Crockett undertook two separate duties, to develop the

property and then to market it. The court determined Crockett was entitled to recover its

expectation damages, that is, what it would have received had appellant’s breach not

prevented it from performing. Appellants do not contest the trial court’s finding their

refusal to sell lot number 1710 was a breach of the development agreement. Instead,

appellants argue their breach did not cause Crockett to lose profits because there were

in fact no profits to be had, given the state of the real estate market.

       {36} The exhibit to the parties’ Development Agreement outlined the parties’

intention at the time they entered into the contract. Essentially, it deducted the cost of
Stark County, Case No. 2011-CA-00222                                                       10


the lot and the expenses per lot from the price obtained from the sale of the lot, to

determine the anticipated average profit per lot. It projected an average lot with a

selling price of $34,030.00 would yield an average profit of $13,000.00. The sale of all

100 lots would result in total profits of $1,300,000.00, which the parties would split

approximately $830,000.00 to appellants and $570,000.00 to Hayes.

       {37}   The exhibit stated based upon the projected profits, the parties expected

when all 100 lots had sold Hayes would receive 15 lots, plus a small amount in cash.

He would receive 3 lots after the first set of 25 are sold, and 4 lots thereafter as the next

set of 25 lots are sold, until they were all sold.

       {38}   The contract contained a provision for a premium of $2,500 over and

above the selling price of the lots, to be divided 60%-40% between the parties if

Crockett sold the lot, or if a third party sold a lot, the parties would split $1,000 equally.

The calculations on Exhibit E did not include any premiums.

       {39}   The trial court utilized the exhibit in fashioning its damage award, but

discounted the lots from the projected optimistic selling price of $32,030.00 to a present

value of $24,000.00. The sole error the court made was in multiplying the cost per lot

by the total 15 lots the parties expected Hayes to receive, when in fact, 3 of the lots had

already been transferred. Hayes is actually due the cash value of 12 lots.

       {40} There was testimony presented that Crockett had completed 90% of the

development portion of its obligations under the contract and the court deducted

$51,045.00, 10% of Crockett’s expected profits, as savings Crockett realized by not

completing its development obligation. Because the costs of the marketing portion of its

contract had already been included in the computations in the exhibit, the trial court did
Stark County, Case No. 2011-CA-00222                                                      11


not deduct any savings Crockett might realize by being relieved of its marketing

obligations.

       {41} After the parties’ contractual relationship was severed, appellants retained

full fee title to all the property, subject only to the mechanic’s lien. While it is true the

entire risk of the market’s recovery now rests on appellants, it is also true that

appellants also will retain whatever profits are generated as the market recovers, as

well as the property development that has been done.

       {42} Appellants take issue with the court’s finding the Development Agreement

permitted Crockett to develop phase two. Appellants argue paragraph eight of the

contract “implicitly constrained” Crockett from building up on unsalable inventory at the

expense of Dr. Rohrer or appellants. Paragraph eight states “any profits remaining

after Rohrer has received a proportionate return of capital for the lots sold, and after

premiums, discounts and development costs and interest shall have been split 60%

Rohrer and 40% Crockett.”

       {43} We find paragraph eight of the Development Agreement anticipates how

the profits will be paid out. Nowhere does it specify that a given number of lots must be

sold from one phase before the parties proceed to phase two. There is nothing in the

contract requiring Crockett or Hayes to obtain anyone’s permission to proceed. The

only contingency in the contract is paragraph nine, which requires approval of the

proposed development by the Ohio Environmental Protection Agency and any other

necessary governmental agencies.

       {44} We agree with the court’s finding the Rohrer children failed to show they

had any authority to decide phase two should or should not go forward. Dr. Rohrer was
Stark County, Case No. 2011-CA-00222                                                          12


still alive at the time, and not only had he not given authority to the children, he had

given power of attorney to two other persons. We agree with the trial court appellants

attempted, in the court’s words, to simply walk away from the contract because they did

not believe it was profitable. The fact that the performance of a contract has become

more expensive does not relieve a party of the obligation to perform.

       {45} We find the trial court’s decision appellants breached the contract and

Crockett did not, is supported by the evidence. We further find the court properly

awarded Crockett expectation damages as if it had fully performed.

       {46} The first and second assignments of error are overruled in part and

sustained as to the number of lots Hayes should receive, 12 rather than 15.

                                                 III.

       {47} In their third assignment of error, appellants argue the trial court had no

rational basis for its $24,000.00 per lot monetary damages award. Appellants argue the

trial court over-valued the lots Crockett was entitled to take as its share of the profits.

       {48}   The evidence presented varied from approximately $15,000.00 to

$34,000.00. Appellants urge a more accurate valuation would have been approximately

$15,000.00 per lot. This would represent more than a 50% loss in value from the initial

$34,000.00. The trial court calculated the diminution to be closer to 25%. We find the

trial court’s determination to reduce the value of the lots to $24,000.00 each is

supported by some competent and credible evidence.               In addition, the trial court

declined to award any of the $1,500.00 additional premiums for any sales, even though

the premium was not calculated into the figures on Exhibit E to the parties’ contract. The
Stark County, Case No. 2011-CA-00222                                                     13


court’s award includes only the premiums previously earned but unpaid. We find no

error.

         {49} The third assignment of error is overruled.

                                                 IV.

         {50} In their fourth assignment of error, appellants argue the trial court erred in

assigning joint and several liability to Mohler as a partner with Rohrer Development

Company. Appellants argue at best Mohler was a third party beneficiary to the contract

between Crockett and Dr. Rohrer. They also assert by definition an LLC such as Rohrer

Development Company cannot be a partnership. While appellants are correct that the

LLC cannot contain partners within its organization, the LLC can be a partner with other

legal entities in a business.

         {51} In R.C. 1776.22 a partnership is defined as “an entity of two or more

persons to carry on as co-owners of a business for profit ...” The statute provides a

person who receives a share of profits of a business is presumed to be a partner in the

business unless the profits are received as consideration for certain debts or

compensation, none of which are present here.

         {52}   The record indicates Dr. Rohrer sold a 25% interest in Rohrer

Development Company to Mohler, which included a 25% share of profits generated by

the development company from the Development Agreement. However, the sharing of

profits is not alone conclusive of the existence of a partnership relationship in the

absence of other essential elements of partnership. Berger v. Dare, 99 Ohio App.3d

103, 106, 649 N.E.2d 1316 (1994) citations deleted. A court may find an implied
Stark County, Case No. 2011-CA-00222                                                   14

partnership from the totality of attendant facts and circumstances. Madden Investment

Co. v. Stephenson's Apparel, 162 Ohio App.3d 51, 2005–Ohio–3336 (2nd Dist.).

       {53} We find Mohler Lumber was engaged in the enterprise with Dr. Rohrer from

the very outset, initiating the negotiations that ended with the Development Agreement,

undertaking an obligation to supply lumber for the construction, and receiving a share of

the profits, and hence the trial court did not err in determining it should be jointly and

severally liable for breach.

       {54} The fourth assignment of error is overruled.

                                               V.

       {55} In their fifth assignment of error, appellants argue any duty to convey a

particular lot was breached with respect to Crockett Homes and not Crockett

Construction. The trial court treated two entities generally as a single party. Crockett

responds when appellants breached the contract, both Crockett Homes and Crockett

Construction were damaged in their ability to perform their obligations under the

contract and to receive lots and profits pursuant to Exhibit E and the Development

Agreement. We find no error in the court’s award herein.

       {56} The fifth assignment of error is overruled.

                                               VI.

       {57} In their sixth assignment of error, appellants argue the trial court erred in

assigning half the advertising costs to the appellants. The Development Agreement did

not make any provision for the payment of the advertising costs, but it did contain a

paragraph providing the agreement constituted the entire agreement between the
Stark County, Case No. 2011-CA-00222                                                  15


parties and no modification or alteration of the terms would be binding unless set out in

writing to the execution of the contract.

      {58} The contract provided that Crockett would advertise and promote the lots to

be developed and perform the services of a general contractor without additional

compensation other than the profit sharing as set out in the contract. Crockett agrees

that the contract does indeed require it advertise and promote the lots to be developed

but notes it does not state Crockett is to absorb the cost of the advertising and

promoting.

      {59} Loomis testified that as agent for Rohrer Development Company he agreed

it would share the costs 50% with Crockett, and Hayes also confirmed this was the

arrangement between the parties. Paragraph Three of the Development Contract

provides any extraordinary development costs in excess of those listed on Exhibit E

would be approved by the parties with the cost divided 50%-50%. Exhibit E does not

include any figure for advertising and promoting costs calculated into the profit-sharing

agreement. Accordingly, we find the trial court did not err in finding based upon the

parties’ agreement and the contract, appellants should share in the cost.

      {60} The sixth assignment of error is overruled.

                                              VII.

      {61} In their seventh assignment of error, appellants argue that the

Development Agreement was between Dr. Rohrer and Crockett, and when the doctor

died, any duty arising out of the Development Agreement terminated.

      {62}   In Smith v. Ohio State University Hospitals, 110 Ohio App.3d 412, 415,

674 N.E.2d 721 (10th Dist.1996), the court found the phrase “personal services
Stark County, Case No. 2011-CA-00222                                                       16


contract” is not defined by statute, and the case law interpreting the phrase is sparse.

The court cited Yellow Cab of Cleveland, Inc. v. Greater Cleveland Regional Transit

Authority, 72 Ohio App.3d 558, 595 N.E.2d 508 (8th Dist. 1991), which analyzed the

phrase in the context of bidding requirements for purposes of R.C. 306.43. In the Yellow

Cab case, the court held a personal services contract is a contract “in which the offeree

is vested with discretion in accomplishing the assigned tasks because his skills,

knowledge, experience and expertise are unique to the area and could not be

duplicated by others not similarly qualified.” Id. at 563, 595 N.E.2d at 511.

       {63}   The Smith court concluded: “[r]educed to its essence, a personal services

contract suggests a degree of control exercised by the purchaser over the services to

be performed by a chosen individual or individuals; a purchased services contract

indicates, as the name implies, a purchase of services without regard to the specific

individual to provide the service.” Id. at 416.

       {64} The contract does not contain any indication the parties anticipated the

contract would terminate upon the death of any of the parties, nor does it require

performance by Dr. Rohrer instead of his agent or delegate. Dr. Rohrer gave Loomis

and Zepp power of attorney to act on his behalf.

       {65}   Further, Dr. Rohrer’s estate assumed title of all the assets Dr. Rohrer

possessed at his death, including Rohrer Development Company, and title to all the real

estate. The estate cannot retain all the assets without also taking any of the obligations

associated with them. The court found the real estate identifies a limited liability

corporation, but nevertheless the title holder of the real estate was always Dr. Rohrer.
Stark County, Case No. 2011-CA-00222                                                   17


      {66} We find the trial court did not err in refusing to find the contract terminated

upon Dr. Rohrer’s death.

      {67} The seventh assignment of error is overruled.

                                             VIII.

      {68} In their eighth assignment of error, appellants argue the trial court erred in

finding Crockett Homes only owed $52,150.84 to Mohler. The trial court found Mohler

did not prove all the damages it claimed. We have reviewed the record, and we agree

Mohler did not prove all the damages it claimed.

      {69} The eighth assignment of error is overruled.

      {70} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed in part, but reversed as to the calculation of damages.

We find the trial court’s monetary award for the remaining lots due Crockett does not

take into account the three lots Crockett already received. Utilizing the trial court’s

evaluation of $24,000.00 each, we find the court’s award is $72,000.00 too high.

      {71} Pursuant to App. R. 12 (B) we hereby render the judgment or final order

the trial court should have rendered.      We find due from appellants to Crockett

$10,000.00 as losses resulting from the failure to issue a deed and close on the sale of

the single lot; payment for 50% of the advertising and maintenance valued at

$11,590.95; earned but unpaid premiums for lots sold under the development

agreement at $16,500.00 and $233,955.00 as compensation for the 12 lots to which

Crockett Construction would have been entitled had the development agreement been

completed, minus cost savings in the amount of $51,045.00.
Stark County, Case No. 2011-CA-00222                                                   18


      {72}     In total, we enter judgment in favor of Crockett Construction Company and

against the appellants, jointly and severally, in the amount of $275,045.00 plus statutory

interest. The court’s award of $52,150.84 in favor of Mohler and against Crockett is

affirmed.

By Gwin, J.,

Delaney, P.J., and

Wise, J., concur




                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. PATRICIA A. DELANEY


                                             _________________________________
WSG:clw 0413                                 HON. JOHN W. WISE
[Cite as Crockett Homes, Inc. v. Hamilton, 2012-Ohio-2162.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


CROCKETT HOMES, INC., ET AL                           :
                                                      :
                         Plaintiffs-Appellees         :
                                                      :
                                                      :
-vs-                                                  :       JUDGMENT ENTRY
                                                      :
JENNIFER ROHRER HAMILTON, ET AL                       :
                                                      :
                                                      :
                     Defendants-Appellants            :       CASE NO. 2011-CA-00222




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio, is affirmed in part and reversed in

part, and modified to reflect the judgment the trial court should have rendered in favor of

Crockett and appellants in the amount of $275,045.00 and in favor of Mohler and

against Crockett Homes in the amount of $52,150.84, both plus interest at the statutory

rate. Costs to be split between Crockett and the appellants.




                                                          _________________________________
                                                          HON. W. SCOTT GWIN


                                                          _________________________________
                                                          HON. PATRICIA A. DELANEY


                                                          _________________________________
                                                          HON. JOHN W. WISE
