[Cite as Ludwig v. Lydick, 2011-Ohio-5164.]




                             STATE OF OHIO, MONROE COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


PHILIP LUDWIG, et al.,                        )
                                              )      CASE NO. 10 MO 9
        PLAINTIFFS-APPELLEES,                 )
                                              )
        VS.                                   )      OPINION
                                              )
DANIEL LYDICK, II, et al.,                    )
                                              )
        DEFENDANTS-APPELLANTS.                )



CHARACTER OF PROCEEDINGS:                         Civil Appeal from Common Pleas Court,
                                                  Case No. 2009-165.


JUDGMENT:                                         Affirmed.


APPEARANCES:
For Plaintiffs-Appellees:                         Attorney James Peters
                                                  107 West Court Street
                                                  Woodsfield, Ohio 43793


For Defendants-Appellants:                        Attorney Ric Daniel
                                                  1660 NW Professional Plaza, Suite A
                                                  Columbus, Ohio 43220


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                  Dated: September 26, 2011
VUKOVICH, J.

       ¶{1}   Defendants-appellants Daniel and Aubrey Lydick (the Lydicks) appeal
the decision of the Monroe County Common Pleas Court granting judgment in favor of
plaintiffs-appellees Philip and Glenn Ludwig (the Ludwigs) in a contractual dispute.
       ¶{2}   The Lydicks contend that the trial court’s decision finding that there was
an oral amendment to the parties’ written agreement was against the manifest weight
of the evidence.    The Ludwigs disagree, stating that there is competent credible
evidence to support the trial court’s holding that the contract was amended orally to
split the land according to the survey.
       ¶{3}   A review of the record indicates that the trial court’s decision was well
reasoned, just and supported by some competent credible evidence. Thus, as it was
not against the manifest weight of the evidence, the judgment of the trial court is
hereby affirmed.
                         STATEMENT OF FACTS AND CASE
       ¶{4}   The Lydicks and the Ludwigs entered into a written agreement for
purchase and financing a 300 acre tract of real property in Monroe County (tract of
land referred to as the McQueen property). The McQueen property seller would only
sell to the Lydicks, thus, the Lydicks entered into a sales agreement with the seller to
purchase the property for $195,000. The written agreement between the Lydicks and
the Ludwigs provided that the Ludwigs would provide the $35,000 down payment to
Woodsfield Savings Bank. At closing the Ludwigs actually paid $39,699.50. (Tr. 36).
The written agreement between the parties provided that the 300 acre tract of land
would be split evenly with each party receiving 150 acres.
       ¶{5}   Other than stating that each party would receive 150 acres, the written
agreement did not describe how the property would be split. Thus, sometime after the
agreement was made and after the property was purchased, the parties had the land
surveyed for purposes of dividing it. The surveyor split the land 173.883 acres for the
Ludwigs and 125.18 acres for the Lydicks. The Lydicks received the land that was
abutting their already owned property, which included the barn and wells.
       ¶{6}   For approximately two years the Ludwigs paid their portion of the
mortgage to the Lydicks and the Lydicks remitted that amount plus their portion to the
Woodsfield Savings Bank. However, after that point, the Lydicks began to refuse
acceptance of the Ludwigs portion of the mortgage payment.
       ¶{7}    The Ludwigs then sought to invoke paragraph four of the written
agreement. That paragraph indicates that if the Ludwigs would make an additional
$59,500 payment to Woodsfield Savings Bank, the Lydicks would within 60 days give
them a warranty deed to their portion of the property. Thus, the Ludwigs were seeking
a deed pursuant to the survey for their purported 173.883 acres.           The Lydicks
purportedly indicated that they would not produce a deed if the Ludwigs paid that
amount.
       ¶{8}    The Ludwigs then filed a complaint against the Lydicks seeking a
declaration of parties’ rights concerning the written agreement and the alleged “oral
modification of the agreement” which split the land pursuant to the survey.         The
Ludwigs also sought money damages based upon other claims brought against the
Lydicks, which are not at issue in this appeal.
       ¶{9}    In response, the Lydicks filed an answer and counterclaim and later filed
a third party complaint solely against Glenn Ludwig. The Ludwigs filed an answer to
the counterclaim. In response to the third party complaint, Glenn Ludwig filed an
answer and a motion to dismiss. Thereafter, the Ludwigs filed a motion for partial
summary judgment on the counterclaim and the third party complaint, which was
granted in its entirety.
       ¶{10} The matter then proceeded to trial solely on the Ludwigs’ complaint.
Testimony was taken from all parties. Following trial, the trial court found that when
the survey was being done the parties agreed to the manner in which the surveyor
split the McQueen property. Thus, the parties were bound by the survey and the
Ludwigs were entitled to specific performance. However, the trial court found that in
order to receive a deed for their 173.883 acres they were required to pay the $59,500
called for in the written contract plus $3,519.22 for the additional acreage. As the
court explained:
       ¶{11} “The Court finds that Ludwigs’ surveyed portion of the McQueen property
of approximately 174 acres, at $650.00 per acres, amounts to $113,100.00. Therefore,
the Court hereby Orders Ludwigs to deposit the sum of $63,019.22 (payable to
Woodsfield Savings Bank) with the Clerk of Courts within thirty (30) days. This figure
represents $113,100.00 for their surveyed portion of the McQueen property, less the
amount previously paid at closing of $39,699.50, less the amount of payments already
made ($399.28 x 26 months) of $10,381.28, leaving a balance of $59,500.00 called for
in the contract¸ and $3,519.22 for the approximate remaining acreage.” 09/23/10 J.E.
       ¶{12} The Lydicks appeal the trial court’s decision that there was an oral
amendment to the contract between the parties.
                              ASSIGNMENT OF ERROR
       ¶{13} “THE     LOWER      COURT      COMMITTED        ERROR      IN   AWARDING
APPELLEES 174 ACRES CONTRARY TO THE TERMS OF THE AGREEMENT.”
       ¶{14} This case deals with an alleged oral amendment to a contract. In Ohio, it
is well settled that a party asserting the oral modification of, or addition to, a written
contract must establish that charge by clear and convincing evidence.          Russell v.
Daniels-Head & Associates, Inc. (June 30, 1987), 4th Dist. No. 1600, citing Ashley v.
Henahan (1897), 56 Ohio St. 559, paragraph five of the syllabus and Olinger v.
McGuffey (1896), 55 Ohio St. 661. The Supreme Court of Ohio has defined “clear and
convincing evidence” as “‘that measure or degree of proof which is more than a mere
“preponderance of the evidence,” but not to the extent of such certainty as is required
“beyond a reasonable doubt” in criminal cases, and which will produce in the mind of
the trier of facts a firm belief or conviction as to the facts sought to be established.’
Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus.” Cleveland
Bar Assn. v. Cleary (2001), 93 Ohio St.3d 191, 198.
       ¶{15} The Lydicks position is that the evidence did not clearly and convincingly
establish that there was an oral modification to the written contract. This argument is
an assertion that the trial court’s decision was against the manifest weight of the
evidence.
       ¶{16} Appellate review of a manifest weight of the evidence argument in a civil
case is much more deferential to the trial court than in a criminal case. State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶26. The civil manifest weight of the
evidence standard provides that judgments supported by some competent, credible
evidence going to all the essential elements of the case will not be reversed by a
reviewing court as being against the manifest weight of the evidence. Id. at ¶24, citing
C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus.
       ¶{17} The reviewing court is obliged to presume that the findings of the trier of
fact are correct. Id., citing Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d
77, 80-81. This presumption arises in part because the fact-finder occupies the best
position to observe the witnesses' demeanor, gestures, and voice inflections and to
utilize these observations in weighing credibility. Id., citing Seasons Coal, supra at 80.
       ¶{18} This civil manifest weight standard of review applies to civil judgments
requiring clear and convincing evidence. State v. Baird, 7th Dist. No. 07CO25, 2008-
Ohio-3328, ¶31.
       ¶{19} The written contract at issue in this case does not contain a prohibition
against oral modification. Thus, according to Ohio law oral modification is permitted.
Kelley v. Ferraro, 188 Ohio App. 3d 734, 744, 2010-Ohio-2771, ¶39 citing Freeman-
McCown v. Cuyahoga Metro. Hous. Auth. (Oct. 26, 2000), 8th Dist. Nos. 77182 and
77380; Rosepark Properties, Ltd. v. Buess, 167 Ohio App.3d 366, 2006-Ohio-3109,
¶38; Chiaverini, Inc. v. Jacobs, 6th Dist. No. L-06-1360, 2007-Ohio-2394, ¶24; Fultz &
Thatcher v. Burrows Group Corp., 12th Dist. No. CA2005-11-126, 2006-Ohio-7041, at
¶17. That said, a contract cannot be unilaterally modified; the parties must mutually
consent to the modification. Fraher Transit, Inc. v. Aldi, Inc., 9th Dist. No. 24133,
2009-Ohio-336, ¶12; Nagle Heating & Air Conditioning Co. v. Heskett (1990), 66 Ohio
App.3d 547, 550.
       ¶{20} In the case at hand, the written contract indicated that the parties would
split the 300 acres equally with each party receiving 150 acres was admitted at trial.
However, as aforementioned, that contract does not provide how the property would
be split, i.e. it did not state that the property would be split north/south, east/west,
diagonally, or by any other configuration.
       ¶{21} Glenn Ludwig testified that originally the parties orally agreed to split the
property north and south down the middle. (Trial Tr. 19). He explained that Daniel
Lydick did not want it split that way because the Lydicks would not be receiving all of
the property that abutted the property they already owned. (Trial Tr. 19-20). Daniel
Lydick wanted the property that was close to his property and he wanted the barn and
the gas and oil wells. (Trial Tr. 19). Glenn Ludwig claimed that he and Daniel Lydick
met with Mr. Hunnell, the surveyor, and agreed to split the property in a manner done
by the survey which was 173.883 acres to the Ludwigs and 125.18 acres to the
Lydicks. (Trial Tr. 20).
       ¶{22} Daniel Lydick initially testified that he did not agree to split the land
according to the survey. (Tr. 9). However, upon further questioning, he agreed that
during his deposition testimony he stated that he orally agreed “to an extent” that the
survey showed how the property would be divided. (Trial Tr. 10-11). His testimony
concerning the survey and the splitting of the land is as follows:
       ¶{23} “Q. [Direct Examination]: All right. Now, you heard some testimony
earlier that you changed the terms or tenor of this agreement and went from a hundred
and fifty to a hundred and seventy that the plaintiff [the Ludwigs] was supposed to
receive.
       ¶{24} “Do you remember that?
       ¶{25} “A. Yes. They – the survey was going to split the property this way
[Indicating].
       ¶{26} “Q. Length wise?
       ¶{27} “A. Length. That served me and my family no purpose that way.
       ¶{28} “I mean, before we even talked about it, I talked with Glenn [Ludwig]
several times about how the property was going to be split equally.
       ¶{29} “And I’ll never forget, they said during the conversation with Hunnell, that
by putting the line where he wanted to put it, may be the difference of six or seven
acres. It made a difference of almost twenty-five acres.
       ¶{30} “And I asked him you know, what makes him feel that he needs a
hundred seventy-four acres of the property that I did a deal on, and he pointed to the
map and he said because you own this up here [Indicating].
       ¶{31} “* * *
       ¶{32} “Q. All right. So was there ever an understanding between you and
plaintiffs [the Ludwigs] that you would in fact convey to them a hundred and seventy
some acres as opposed to a hundred and fifty?
         ¶{33} “A.      We didn’t know what the amount of acreage was going to be,
because the survey wasn’t back or wasn’t compete.
         ¶{34} “We didn’t know.
         ¶{35} “* * *
         ¶{36} “Q. [Cross-examination]: Let’s get back to this split of the property. You
kind of indicated in response to some of Mr. Daniel’s questions that you agreed to a
split but you didn’t really know how many acres it was going to be one way or the
other.
         ¶{37} “Is that correct?
         ¶{38} “A. That’s correct.
         ¶{39} “Q. And so you did agree to a split with Hunnell and Mr. Ludwig, is that
right?
         ¶{40} “A. To an extent, yes.
         ¶{41} “Q. And –
         ¶{42} “A. Not seeing what it is or not knowing, I guess you could say that.
         ¶{43} “Q. And the first time you voiced your dissatisfaction with that split was
when the final survey came back and you discovered that the variance in acreage was
more than you thought it was going to be?
         ¶{44} “A. Not necessarily my – when my red flag went up was when I asked
him why we’re splitting it this way, and he told me because I own this property up here
[Indicating].
         ¶{45} “Meaning that I own eighty-three acres besides this, it was like that I was
going to have more ground than them or something down there and they was trying to
acquire more ground in that way.
         ¶{46} “When I asked him why, that was the only answer that he could give, is
because I own this here [Indicating].” (Trial Tr. 103-104, 111-112).
         ¶{47} Likewise, portions of his deposition testimony were discussed at trial. In
his deposition he agreed that the survey showed that the property would be divided
177 acres to the Ludwigs and 125 acres to him. (Tr. 10; Depo. Tr. 11-12, 13-14). He
stated he agreed that the property would be divided that way to a certain extent. (Tr.
10-11, Dep. Tr. 11-12, 13-14).
      ¶{48} Considering all of the testimony, the trial court had a reasonable basis to
believe Glenn Ludwig’s testimony over Daniel Lydick’s testimony. The trial court is in
the best position to determine which witness was more believable, especially
considering Daniel Lydick’s position that he agreed to the split according to the survey,
but only to a “certain extent.”    Considering all of the evidence, Glenn Ludwig’s
testimony provided some competent credible evidence that the contract was orally
modified and that there was an agreement to split the property pursuant to the survey.
Therefore, considering our deferential standard of review, the trial court’s well
reasoned opinion, and all of the evidence, we cannot find that the trial court’s decision
was against the manifest weight of the evidence.          This assignment of error is
meritless.
      ¶{49} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Donofrio, J., concurs.
Waite, P.J., concurs.
