[Cite as Canter v. Wolfe, 2016-Ohio-5300.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



LISA M. CANTER                                    JUDGES:
                                                  Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 15 CA 64
DONALD G. WOLFE

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Civil Appeal from the Court of Common
                                              Pleas, Case No. 13 CV 743


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        August 8, 2016



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

MICHAEL P. VASKO                              DALE M. MUSILLI
19 North High Street                          105 Sturges Avenue
Canal Winchester, Ohio 43110                  Mansfield, Ohio 44903
Fairfield County, Case No. 15 CA 64                                                        2

Wise, J.

         {¶1}   Defendant-Appellant Donald G. Wolfe appeals from the decision of the

Court of Common Pleas, Fairfield County, which granted a directed verdict in favor of

Plaintiff-Appellee Lisa M. Canter on a counterclaim filed by appellant seeking return of a

diamond ring he had given to appellee during their relationship. The relevant facts leading

to this appeal are as follows:

         {¶2}   Appellee and appellant became involved in a romantic relationship in 2006.

The two began cohabitating in approximately August 2007.

         {¶3}   In October 2008, appellant bought for appellee a 1.47 carat diamond ring,

retailed at approximately $13,000.00, from JB Robinson Jewelers in the Eastland Mall. It

appears undisputed the purchase was made in the engagement ring section of the jewelry

store.

         {¶4}   The parties ended their relationship in August 2013.

         {¶5}   On September 5, 2013, appellee filed a partition and/or quiet title action in

the Fairfield County Court of Common Pleas, regarding the house they had shared on

Lithopolis Road in Carroll, Ohio.

         {¶6}   On November 1, 2013, appellant filed an answer and a counterclaim

alleging (1) promissory estoppel as to an oral contract for the sale of the aforesaid real

estate and (2) conversion of the aforesaid ring claimed to be given to appellee in

contemplation of marriage.

         {¶7}   On October, 21, 2014, the Huntington National Bank (“HNB”), as

mortgagee, joined as a party and filed an answer and cross-claim in reformation, seeking

foreclosure. On July 2, 2015, HNB filed an amended answer, counterclaim, and cross-
Fairfield County, Case No. 15 CA 64                                                        3


claim. On August 20, 2015, the trial court granted summary judgment in favor of HNB on

its counterclaim (against appellee) and its cross-claim (against appellant).

       {¶8}   The parties presently agree that the aforesaid events left one remaining

matter for litigation, that being appellant’s aforesaid second counterclaim concerning the

ring, which proceeded to a bench trial on October 29, 2015.

       {¶9}   During the trial, at the conclusion of appellant’s case, appellee moved for a

directed verdict pursuant to Civ.R. 50(A). The trial court announced from the bench that

a directed verdict was granted in appellee’s favor, thus effectively ruling that appellee

could keep the ring in question. In a final judgment entry issued on November 13, 2015,

the trial court first concluded that the Statute of Frauds (R.C. 1335.05) was not applicable.

The court then determined that because appellee had worn both an engagement ring and

a wedding band during cohabitation, “their relationship was not of the traditional form,”

further noting that appellant gave her the rings years before the relationship ended.

Finally, the court found that “[a]fter so many years in this unconventional relationship no

reasonable person could have expected the rings to be returned when the relationship

ended.” Judgment Entry at 1.

       {¶10} On December 11, 2015, appellant filed a notice of appeal. He herein raises

the following five Assignments of Error:

       {¶11} “I.    THE TRIAL COURT COMMITTED ERROR BY SUSTAINING

PLAINTIFF APPELLEE'S MOTION FOR DIRECTED VERDICT PURSUANT TO OHIO

RULE OF CIVIL PROCEDURE 50(A) AT THE END OF THE DEFENDANT

APPELLANTS [SIC] CASE IN CHIEF.
Fairfield County, Case No. 15 CA 64                                 4


      {¶12} “II.    THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

SUSTAINED THE PLAINTIFF APPELLEES [SIC] MOTION FOR DIRECTED VERDICT

BECAUSE IT IS CONTRARY TO OHIO LAW ON CONDITIONAL GIFTS OF

ENGAGEMENT RINGS IN CONTEMPLATION OF MARRIAGE AND IT IS ALSO

TOTALLY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN THIS CASE.

      {¶13} “III.   THE FACT THAT THE DONOR DEFENDANT APPELLANT

PURCHASED AN ENGAGEMENT RING AND A WEDDING BAND WHICH HE GIFTED

TO THE PLAINTIFF APPELLEE DOES NOT NEGATE THE PLAINTIFF APPELLEE'S

OBLIGATION TO RETURN BOTH THE ENGAGEMENT RING AS WELL AS THE

WEDDING/ENHANCER RING AS BOTH WERE GIFTS IN CONTEMPLATION OF

MARRIAGE WHEN THE RELATIONSHIP IS TERMINATED AND NO MARRIAGE WAS

ENTERED INTO BY THE PARTIES.

      {¶14} “IV.    THERE WAS UNCONTROVERTED EVIDENCE BEFORE THE

COURT WHICH IS WHOLLY INCONSISTENT WITH THE COURTS [SIC] FINDINGS

THAT THE COURT WOULD IMPUTE THAT THE PARTIES HAD ENTERED INTO A

MUTUAL ACQUIESCENCE AND UNDERSTANDING THAT THE ENGAGEMENT RING

WAS NOT EXPECTED TO BE RETURNED AFTER THE TERMINATION OF THEIR

FIVE YEAR ENGAGEMENT.

      {¶15} “V. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

ERROR IN SUSTAINING THE PLAINTIFFS MOTION FOR DIRECTED VERDICT WHEN

THE EVIDENCE CONSTRUED MOST STRONGLY IN FAVOR OF DEFENDANT

APPELLANT AND WHERE REASONABLE MINDS COULD COME TO MORE THAN

ONE CONCLUSION AND ONE OF THE CONCLUSIONS WAS THE ENGAGEMENT
Fairfield County, Case No. 15 CA 64                                                            5


RING WAS GIVEN TO PLAINTIFF APPELLEE IN CONTEMPLATION OF MARRIAGE

AND SINCE SHE NEVER MARRIED DEFENDANT APPELLANT THE RINGS SHOULD

HAVE BEEN RETURNED TO THE DEFENDANT APPELLANT ABSENT ANY

EVIDENCE OF ANY AGREEMENT TO THE CONTRARY THAT THE ENGAGEMENT

RING AND THE WEDDING BAND/ENHANCER RING WERE NOT TO BE RETURNED

TO DEFENDANT-APPELLANT ESPECIALLY AFTER HIS SPECIFIC REQUEST TO

PLAINTIFF-APPELLEE TO RETURN THE RINGS TO HIM AND SINCE SHE DID NOT

HE WAS SEEKING BY A [SIC] ORDER OF THE COURT FOR THEIR RETURN OR

MONEY VALUE.”

                                           I., II., III., IV., V.

       {¶16} In his five Assignments of Error, appellant maintains on various grounds the

trial court erred in granting a directed verdict in favor of appellee at the close of appellant’s

presentation of evidence on his counterclaim regarding the disputed ring. We disagree.

       {¶17} Civ.R. 50(A) states in pertinent part as follows: “*** A motion for a directed

verdict may be made on the opening statement of the opponent, at the close of the

opponent's evidence or at the close of all the evidence. *** When a motion for a directed

verdict has been properly made, and the trial court, after construing the evidence most

strongly in favor of the party against whom the motion is directed, finds that upon any

determinative issue reasonable minds could come to but one conclusion upon the

evidence submitted and that conclusion is adverse to such party, the court shall sustain

the motion and direct a verdict for the moving party as to that issue. ***.”

       {¶18} However, we have recognized that in cases involving a bench trial, the rule

governing directed verdicts is not applicable. See, e.g., Williams v. Williams, 5th Dist.
Fairfield County, Case No. 15 CA 64                                                        6


Morrow No. 2010-CA-0006, 2011-Ohio-1200, ¶13 (additional citations omitted). Instead,

“[i]n a bench trial, a defendant seeking a favorable disposition after the close of the

plaintiff's case must move to dismiss under the rule governing involuntary dismissal in

non-jury actions.” Id. Thus, “[t]he involuntary dismissal of non-jury actions comes ***

within the scope of Civ.R. 41(B)(2), providing for a motion by the defendant for same upon

completion of the presentation of the plaintiff's evidence, at which time the court, as trier

of the facts, may weigh the plaintiff's evidence to determine whether the plaintiff has made

out his case by a preponderance of other evidence.” Harper v. LTV Steel Co., 5th Dist.

Stark No. CA-9149, 1993 WL 135473, (Apr. 19, 1993), quoting Jackson v. Gossard

(1989), 48 Ohio App.3d 309, 311-312 (additional citation omitted).1 In ruling under Civ.R.

41(B)(2), the trial court is not required to construe the evidence in favor of the non-moving

party, but rather may weigh the evidence and render judgment. See Levine v. Beckman

(1988), 48 Ohio App.3d 24, 27, 548 N.E.2d 267.

       {¶19} A trial court's ruling on a Civ.R. 41(B)(2) motion will be set aside on appeal

only if it is erroneous as a matter of law or against the manifest weight of the evidence.

Mohn v. Ashland Cty. Chief Med. Examiner, 5th Dist. Ashland No. 14-COA-031, 2015-

Ohio-1985, 34 N.E.3d 137, 145, ¶ 29, citing Ogan v. Ogan, 122 Ohio App.3d 580, 702

N.E.2d 472 (12th Dist.1997). A reviewing court, in addressing a civil manifest weight

challenge, must determine whether the finder of fact, in resolving conflicts in the evidence,

clearly lost his or her way and created such a manifest miscarriage of justice that the




1   The trial court judge was clearly cognizant of this procedural issue, stating orally he
would review the motion for directed verdict under the structure of Civ.R. 41(B)(2). See
Tr. at 90.
Fairfield County, Case No. 15 CA 64                                                        7

judgment must be reversed and a new trial ordered. See Hunter v. Green, Coshocton

App.No. 12–CA–2, 2012–Ohio–5801, 2012 WL 6094172, ¶ 25.

      {¶20} In Lyle v. Durham (1984), 16 Ohio App.3d 1, 473 N.E.2d 1216, the First

District Court of Appeals carefully reviewed the law with respect to ownership of

engagement rings given in contemplation of marriage. The Court first summarized that

“[t]he majority rule is that the engagement ring may be recovered by the donor if the

engagement is broken by mutual agreement or by the donee without justification, but if

the donor breaks off the engagement without justification, then he is not entitled to

recover.” Id., citing Annotation, Rights in Respect of Engagement and Courtship Presents

When Marriage Does Not Ensue (1972), 46 A.L.R.3d 578; 38 American Jurisprudence 2d

(1968) 886, Gifts, Section 84. However, the question of “justification” in ending an

engagement creates the dilemma of determining which party is at fault. Id., citing

Annotation, supra, 46 A.L.R.3d at 584. Thus, some states have taken the minority position

“that the donor may recover the engagement ring without a determination of who broke

off the engagement or who was at fault.” Id., citing Albanese v. Indelicato (1947), 25

N.J.Misc. 144, 51 A.2d 110. The First District Court ultimately agreed with the minority

position and concluded that in the absence of an agreement between the parties to the

contrary, the engagement ring must be returned to the donor upon termination of the

engagement regardless of fault. Id.

      {¶21} Our research reveals no specific citations in the Fifth District to the aforesaid

rule of Lyle. However, in Knotts v. Flynn, 5th Dist. Tuscarawas No. 97AP060036, 1998

WL 172623 (Jan. 22, 1998), we cited the Tenth District’s decision in Sigrist v. Lyons

(1995), 100 Ohio App.3d 252, 653 N.E.2d 744, for the proposition that “where a gift is
Fairfield County, Case No. 15 CA 64                                                        8


given with a mutual understanding that the parties would be married and the gift would

benefit the marriage, then if the parties do not marry, unjust enrichment requires the gift

be returned.” Id., citing Sigrist at 254, (citations deleted).2

        {¶22} In the case sub judice, appellant’s case-in-chief on his counterclaim

consisted of three witnesses: Appellee Lisa Canter called as if on cross-examination;

appellant’s sister, Dawn Coleman; and appellant himself. The record indicates appellee

agreed that she wore the ring on the ring finger of her left hand. Tr. at 24. She testified

that she almost always wore the ring, taking it off only at night. Tr. at 26-27. However,

she denied ever discussing the topic of marriage with appellee. Tr. at 25. Appellee

suggested that during their relationship, other expensive gifting was accomplished. For

example, appellee also bought appellant a ring at one point. Id.

        {¶23} Appellant’s sister, Dawn, told the court she had first met appellee about five

or six years earlier. At that meeting, appellant introduced appellee as “his fiancée.” Tr. at

31. Dawn also recalled introducing appellant and appellee about two years before the

trial, at a birthday party, as “her brother and his fiancée Lisa.” Appellee did not correct

her. Tr. at 31-32. Dawn observed that appellee wore the ring all the time, “usually” with

the wedding band. Tr. at 32, 41. She also testified that she was part of several discussions

where marriage was discussed, and at one point, appellant and appellee discussed

getting married in Ireland. Tr. at 34-35. (In contrast, appellee had denied any talk of

marriage, in Ireland or elsewhere. See Tr. at 20, 25.) According to Dawn, a prior owner

had coincidentally installed a door plate at the shared residence with his last name, Wolfe,




2   The primary dispute in Knotts concerned a joint purchase of a residence.
Fairfield County, Case No. 15 CA 64                                                          9


inscribed thereon. Dawn recalled appellee telling her that “[t]hey wouldn’t have to change

the nameplate on the door.” Tr. at 37.

       {¶24} Finally, appellant’s version of events was that he had asked appellee to get

married at the time they picked out the ring, to which appellee responded “it’s a heck of a

time to have a proposal in a jewelry store.” Tr. at 55. He opined that because both of them

had had prior marriages, “we was kind of a little gun shy.” Tr. at 66. Appellant claimed

that he had once purchased tickets for Ireland, about five years ago.              Tr. at 78.

Nonetheless, the overall trial evidence was consistent that no formal public

announcement was ever made of an engagement for marriage, nor did the parties set a

wedding date or make concrete plans for a ceremony or reception, despite their long

cohabitation.

       {¶25} Upon review of the record, despite the conflicting testimony, we find no error

as a matter of law in the trial court’s interpretation of the gift of the ring as being outside

the scope of an engagement, and we are not inclined to find the court's determinations

under Civ.R. 41(B)(2) following appellant’s case in chief were against the manifest weight

of the evidence. The trial court therefore did not err in granting a directed verdict and/or

41(B)(2) dismissal in favor of appellee on appellant’s counterclaim.
Fairfield County, Case No. 15 CA 64                                                  10


      {¶26} Appellant’s First, Second, Third, Fourth, and Fifth Assignments of Error are

overruled.

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

Fairfield County, Ohio, is hereby affirmed.



By: Wise, J.

Farmer, P. J., and

Baldwin, J., concur.



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