[Cite as Simballa v. Simballa, 2019-Ohio-4633.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                COLUMBIANA COUNTY

                         MARY CATHERINE SIMBALLA ET AL.,

                                        Plaintiffs-Appellants,

                                                  v.

                              KENNETH A. SIMBALLA ET AL.,

                                      Defendants-Appellees.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 18 CO 0004


                                   Civil Appeal from the
                     Court of Common Pleas of Columbiana County, Ohio
                                  Case No. 2016-CV-571

                                         BEFORE:
                 David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.


                                              JUDGMENT:
                                                Affirmed.


 Atty. Sean Scullin, Scullin & Cunning LLC, 940 Windham Court, Suite 4, Boardman,
 Ohio 44512, for Plaintiffs-Appellants and

 Atty. Timothy Barry, Fitch, Kendall, Cecil, Robinson, & Barry, 600 East State Street,
 P.O. Box 590, Salem, Ohio 44460, for Defendants-Appellees.
                                                                                           –2–


                                      Dated: November 7, 2019


 D’APOLITO, J.

        {¶1}      Appellants, Mary Catherine Simballa and Kevin Simballa (sister and
brother), appeal from two judgments of the Columbiana County Court of Common Pleas:
(1) a February 14, 2018 judgment ordering a partition and determining that a 43-acre
parcel is owned by the three Simballa siblings (Mary, Kevin, and their brother Appellee
Kenneth Simballa) in equal survivorship shares; and (2) a November 19, 2018 judgment
finding that neither Mary’s and Kevin’s nor Kenneth’s election to purchase is entitled to
preference and ordering that the property be sold at a public sale. On appeal, Mary and
Kevin assert the trial court erred in finding that Kenneth has an interest in the proceeds
from the sale of the 43-acre parcel and in finding that Kenneth’s election to purchase
230.84 acres was made in good faith. Finding no reversible error, we affirm.

                              FACTS AND PROCEDURAL HISTORY

        {¶2}      Mary, Kevin, and Kenneth are the children and heirs of Richard Simballa,
deceased.1 Prior to his death, Richard executed a transfer on death designation affidavit
in 2005 giving his 230.84 acre farm to his three children in equal shares as tenants in
common. Also prior to his death, Richard designated Mary as a joint holder of his
Huntington Bank checking account in 2010 (“farm account”).
        {¶3}      After Richard’s death, his three children utilized funds from the farm account
to pay for various farm expenses and carry its operations forward. Mary, Kevin, and
Kenneth sought to enlarge the farm and purchased an adjoining 43-acre parcel at auction
in 2014. The acreage was comprised of two separate parcels. Mary was the successful
bidder on one parcel in which all of the siblings had consented to purchasing prior to the
start of the auction. While at the auction, Kenneth was the successful bidder on the
second parcel after he determined that the extra acreage included some good, tillable
land. The record reveals that Kevin’s permission was needed to buy that second parcel
so Mary called him to get his consent. Mary paid the entire purchase price for the 43-


1 Richard   passed away in 2014. His wife predeceased him ten years earlier.


Case No. 18 CO 0004
                                                                                       –3–


acre parcel with two separate checks drawn on the farm account. The deed names Mary,
Kevin, and Kenneth as joint tenants with rights of survivorship.               (Exhibit 6).
Disagreements later arose among the siblings relating to the management and operation
of the farm.
       {¶4}    On October 28, 2016, Mary and Kevin filed a complaint to partition
approximately 104 acres against Kenneth and his wife, Appellee Michelle Simballa. On
January 31, 2017, Kenneth and Michelle filed an answer and counterclaim to partition
approximately 168 acres, which included the 43-acre parcel. On March 3, 2017, Mary
and Kevin filed a reply as well as a counterclaim for contribution. Later that month,
Kenneth and Michelle filed an answer.
       {¶5}    On July 20, 2017, Mary filed a motion for summary judgment as to her
ownership interest in the 43-acre parcel. On August 29, 2017, Kenneth and Michelle filed
a response in opposition in which Kenneth claimed that he was an intended beneficiary
of their deceased father’s joint checking account, i.e., farm account. Mary filed a reply
the following month objecting to the use of hearsay statements. On September 26, 2017,
the trial court denied Mary’s motion for summary judgment.
       {¶6}    On October 4, 2017, Kenneth and Michelle filed a motion for partial
summary judgment. Mary and Kevin filed a reply two weeks later.
       {¶7}    A partition hearing was held on November 9, 2017.
       {¶8}    Mary testified that only she and their deceased father owned the farm
account. (11/9/2017 Partition Hearing T.p. 57). Mary claimed for the first time that her
brothers had no ownership interest in the 43-acre parcel, despite the fact that the deed
contained all three siblings’ names. (T.p. 71). Mary also claimed that the plan in her mind
was for her brothers to earn their ownership interest in the 43 acres by farming it for her,
i.e., through “sweat equity.” (Id.) Kevin indicated that he does not have an interest in the
43-acre parcel because he did not pay for it. (T.p. 81).
       {¶9}    According to Kenneth, before their father’s passing, Richard told him
repeatedly that the assets he owned would be shared equally among his siblings. (T.p.
14). Appellants’ counsel raised a hearsay objection, which was overruled by the trial
court. (Id.) After their father’s passing, Kenneth said that Mary asked him and Kevin what
they wanted to do with the money in the farm account. (T.p. 17). Kenneth and Kevin told



Case No. 18 CO 0004
                                                                                                         –4–


Mary to leave the account in her name since she would be signing for all the farm bills.
(Id.) As stated, the 43-acre parcel was comprised of two separate parcels. Kenneth said
that Kevin’s permission was needed to buy that second parcel so Mary called him to get
his consent. (T.p. 24-25). After closing, the property was transferred to all three siblings
in joint and survivorship and Kenneth believed all three of them equally owned one-third.
(T.p. 27-28).
          {¶10} In a February 14, 2018 judgment, the trial court found that Mary, Kevin, and
Kenneth each own a separate, undivided one-third interest in the estate.2 The court found
no genuine issues of material fact as to the legal right to partition under Civ.R. 56. The
court held that partition is proper pursuant to R.C. 5307.04 and ordered partition of the
estate in favor of Mary, Kevin, and Kenneth.
          {¶11} In another February 14, 2018 judgment, the trial court stated the following:

          [T]he funds in the joint account became subject to Mary’s absolute claim at
          her father’s death. But Mary’s handling of the account reveals her opinion
          that at least some of the funds in the account were intended to operate the
          original farm and to enhance and expand it if the opportunity arose.

          The Court finds it significant that Mary made no claim to total ownership of
          the 43 acres, until such time as there arose conflict between Mary and her
          brother Kenneth regarding farm operations. Her belated claim of complete
          ownership of the funds that purchased the 43 acres belies her prior actions
          with respect to the purchase of that acreage. Her unannounced plan by
          which her brothers would acquire ownership interests through “sweat
          equity” does nothing to support her claim of total ownership and effectively
          undermines it.

          The Court determines that the 43-acre parcel is owned by the three
          Simballa siblings in equal survivorship shares.                If nothing else, Mary’s
          actions in authorizing the issuance to a deed to the three siblings in equal



2   The court also found that Kenneth’s wife Michelle has an inchoate right of dower in her husband’s interest.


Case No. 18 CO 0004
                                                                                        –5–


       shares constituted a gift to each of her brothers of funds from the checking
       account.

(2/14/2018 Judgment Entry p. 3-4).

       {¶12} The 230.84 acre farm was appraised at $720,000. On June 6, 2018, Mary
and Kevin elected to purchase Kenneth’s one-third interest via certified checks. On July
3, 2018, Kenneth elected to purchase Mary’s and Kevin’s two-thirds interest via financing.
       {¶13} A partition hearing was held on November 1, 2018.
       {¶14} Kenneth testified he did not have the cash available in his own account to
make the election. (11/1/2018 Partition Hearing T.p. 15). However, Kenneth indicated
that he arranged financing through Rusty Kiko from Kiko Auctions prior to making the
election. (T.p. 15-18). Rusty Kiko testified that he had the funds available and had agreed
to make a loan to Kenneth through a financial firm owned by his auction company. (T.p.
26).
       {¶15} On November 19, 2018, the trial court found that neither election is entitled
to preference and ordered that the property be sold at a public sale. Specifically, the court
stated the following:

       Ohio Revised Code 5307.10 does not give the Court any authority to
       declare one election superior over another competing election providing
       that the statutory requirements for each has been met. It does appear that
       the financial arrangements supporting Kenneth’s election would make the
       transaction slightly more complicated. Nevertheless, the election complies
       with the statute and the Court finds no bad faith on the part of Kenneth.

(11/19/2018 Judgment Entry p. 3).

       {¶16} Mary and Kevin filed the instant appeal and raise two assignments of error.

                            ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT
       APPELLEE, KENNETH A. SIMBALLA, HAS AN INTEREST IN THE
       PROCEEDS FROM THE SALE OF THE 43 ACRES.


Case No. 18 CO 0004
                                                                                         –6–


       {¶17} Mary and Kevin contend the trial court erred in denying her motion for
summary judgment and improperly ruled that Kenneth has an interest in the 43-acre
parcel following the November 9, 2017 partition hearing.

       “Any error by a trial court in denying a motion for summary judgment is
       rendered moot or harmless if a subsequent trial on the same issues raised
       in the motion demonstrates that there were genuine issues of material fact
       supporting a judgment in favor of the party against whom the motion was
       made.” Continental Ins. Co. v. Whittington, 71 Ohio St.3d 150, 642 N.E.2d
       615 (1994), syllabus. After a trial, only legal issues from the summary
       judgment stage (that are not cured by new facts at trial) survive for appellate
       review. Premier Therapy, LLC v. Childs, 7th Dist. Columbiana No. 14 CO
       0048, 2016-Ohio-7934, 75 N.E.3d 692, fn. 2 * * *.

Shrock v. Mullet, 7th Dist. Jefferson No. 18 JE 0018, 2019-Ohio-2707, ¶ 41.

       {¶18} As stated, Mary filed a motion for summary judgment as to her ownership
interest in the 43-acre parcel that she purchased at auction using funds from the farm
account. The trial court denied Mary’s motion for summary judgment. A partition hearing
was held six weeks later. Following trial, the court determined that the 43-acre parcel is
owned by Mary, Kevin, and Kenneth in equal survivorship shares, held that partition is
proper, and ordered partition of the estate in favor of the three siblings.
       {¶19} The right to partition has long been held to be essentially equitable in
nature. McCarthy v. Lippitt, 150 Ohio App.3d 367, 2002-Ohio-6435, ¶ 22 (7th Dist.). We
apply an abuse of discretion standard of review to claims for equitable relief. Id., citing
Sandusky Properties v. Aveni, 15 Ohio St.3d 273, 274-275, 473 N.E.2d 798 (1984). “An
abuse of discretion connotes more than an error of law or judgment; rather, it implies that
the court has acted either unreasonably, unconscionably, or arbitrarily.” McCarthy at ¶
22, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “‘A
decision is unreasonable if there is no sound reasoning process that would support that
decision.’” McCarthy at ¶ 22, quoting AAAA Enterprises, Inc. v. River Place Community
Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).



Case No. 18 CO 0004
                                                                                          –7–


         {¶20} Mary and Kevin cite to R.C. 5307.041, which states: “If partition is granted
among survivorship tenants, the court shall determine the share to which each is entitled
as if the tenants were tenants in common.” Although tenants in common may rebut the
presumption of equal ownership, Mary and Kevin did not meet their burden. See, e.g.,
Thrasher v. Watts, 2d Dist. Clark No. 2012 CA 50, 2013-Ohio-2581, ¶ 12.
         {¶21} Prior to their father’s death, Richard designated Mary as joint holder of the
farm account. Thus, the funds in the joint account became subject to Mary’s absolute
claim at their father’s death. See Wright v. Bloom, 69 Ohio St.3d 596, 635 N.E.2d 31,
paragraph two of the syllabus (1994) (The opening of a joint and survivorship account in
the absence of fraud, duress, undue influence or lack of capacity on the part of the
decedent is conclusive evidence of the decedent’s intention to transfer to the surviving
party a survivorship interest in the remaining account balance at his or her death.)
However, Mary’s handling of the farm account reveals that at least some of the funds
were intended to operate the original farm and to enhance and expand it if the opportunity
arose.
         {¶22} After their father’s death, Mary, Kevin, and Kenneth utilized funds from the
farm account to pay for various farm expenses and carry its operations forward. The
siblings operated the farm by agreement. They sought to enlarge the farm and purchased
the adjoining 43-acre parcel. The funds used to purchase the property were from the
farm account.
         {¶23} At the November 9, 2017 partition hearing, Kenneth testified regarding his
father’s wishes concerning the family farm, the prior use of the farm account to support
the farm without requiring any reimbursement, and the siblings’ agreed plan to purchase
the additional acreage. Mary and Kevin claim that Kenneth’s testimony regarding their
father’s wishes was based on hearsay and objected at trial. The trial court overruled the
objections.     Even assuming arguendo that some of Kenneth’s testimony was
inadmissible, any error in its admission was harmless as the record reveals that Kenneth’s
testimony was corroborated by Mary’s actions. See, generally, Brown v. Ralston, 7th
Dist. Belmont No. 14 BE 0051, 2016-Ohio-4916, ¶ 49.
         {¶24} Mary used the farm account for farm purposes. Mary’s and Kenneth’s
relationship later led to conflict. It was not until trial that Mary claimed for the first time



Case No. 18 CO 0004
                                                                                         –8–


that her brothers had no ownership interest in the 43-acre parcel and that the plan in her
mind was for her brothers to earn their ownership interest by farming it for her through
“sweat equity.” However, at the time of purchase, Mary did not tell her brothers that only
she would retain ownership of the parcel. In fact, Mary put all three siblings’ names on
the deed after purchasing the property at auction. Thus, Mary’s actions and the execution
of the deed manifests that the payment of the farm expenses and the deed were intended
to be a gift. See Black’s Law Dictionary (11th ed.2019) (“gift” is defined as “[t]he voluntary
transfer of property to another without compensation”); Hippley v. Hippley, 7th Dist.
Columbiana No. 01 CO 14, 2002-Ohio-3015, ¶ 20 (the statements and the execution of
the deed manifest an intent for the deed to be a gift); Ambler v. Boone, 7th Dist.
Columbiana No. 24 Ohio C.D. 512, 516, 19 Ohio C.C. (N.S.) 281 (1914) (a completed gift
is absolute and irrevocable); Cooper v. Smith, 155 Ohio App.3d 218, 2003-Ohio-6083, ¶
25 (4th Dist.) (a donor is not permitted to recover or revoke a gift simply because his or
her reasons for giving it have “‘soured.’”)
       {¶25} Based on the foregoing, the trial court did not abuse its discretion in finding
that Kenneth has a one-third interest in the 43-acre parcel and ordering a partition.
       {¶26} Appellants’ first assignment of error is without merit.

                            ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT
       APPELLEE, KENNETH A. SIMBALLA’S ELECTION TO PURCHASE
       THE 230 ACRES WAS MADE IN GOOD FAITH.

       {¶27} Mary and Kevin assert that because Kenneth had to finance his election to
purchase the property with a loan and failed to submit any written evidence that the
necessary funds were secured, his election was therefore made in bad faith.
       {¶28} “Bad faith” is defined as “Dishonesty of belief, purpose, or motive.” Black’s
Law Dictionary (11th ed.2019).
       {¶29} “Bad faith cannot be assumed upon an election to take by a party in interest
who is without means of his own with which to make good the obligations assumed under
an election to take, where it appears that he is able to make arrangements for meeting



Case No. 18 CO 0004
                                                                                     –9–


the obligations through the aid of others.” Burch v. Brooks, 24 Ohio C.D. 605, headnote
two, 1909 WL 658 (Ohio Cir.Ct.1909), aff’d, 82 Ohio St. 441, 92 N.E. 1110 (1910);
Broadsword v. McClellan, 17 Ohio Law Abs. 389, 1934 WL 1738, *3 (7th Dist.1934).
      {¶30} As stated, the 230.84 acre farm was appraised at $720,000. Mary and
Kevin elected to purchase Kenneth’s one-third interest via certified checks. Kenneth
elected to purchase Mary and Kevin’s two-thirds interest via financing. At the November
1, 2018 partition hearing, Kenneth testified he did not have the cash available in his own
account to make the election. (11/1/2018 Partition Hearing T.p. 15). However, Kenneth
indicated that he arranged financing through Rusty Kiko from Kiko Auctions prior to
making the election. (T.p. 15-18). Rusty Kiko testified that he had the funds available
and had agreed to make a loan to Kenneth through a financial firm owned by his auction
company. (T.p. 26).
      {¶31} Based on the facts presented, this court fails to find any bad faith. Kenneth
had arranged the loan to finance his election and corroborated his testimony with the
testimony of his lender. In fact, when questioned by the trial court, Mary and Kevin’s
counsel conceded that Kenneth’s election to purchase was not made in bad faith.
Specifically, the following exchange took place:

      THE COURT: Okay, but let me ask you this. Let’s just say for the sake of
      argument here that the method of your client’s election is superior. They
      have the money. Okay? We’ve seen the checks. All right. So their’s is
      superior. But does that mean that the Defendant’s method is inferior to
      theirs, maybe it is, but does that mean it’s made in bad faith? (Emphasis
      added.)

      [APPELLANTS’ COUNSEL]: No, no.

(11/1/2018 Partition Hearing T.p. 47).

      {¶32} Appellants’ second assignment of error is without merit.




Case No. 18 CO 0004
                                                                               – 10 –


                                  CONCLUSION

      {¶33} For the foregoing reasons, Appellants’ assignments of error are not well-
taken. The judgments of the Columbiana County Court of Common Pleas are affirmed.




Donofrio, J., concurs.

Robb, J., concurs.




Case No. 18 CO 0004
[Cite as Simballa v. Simballa, 2019-Ohio-4633.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be taxed
 against the Appellant.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
