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Belknap v Shears

Case No. 2012-P-0007 (OH Ct. App., Dist. 11, Dec. 3, 2012)

This appeal has been taken from a final judgment of the Portage County Court of Common Pleas. In that judgment, the trial court overruled certain objections to a prior magistrate’s decision and entered its final rulings on the merits of the remaining claims of appellant, Farrell G. Belknap, Jr. Before this court, appellant primarily submits that the magistrate’s and trial court’s disposition of his remaining claims was against the manifest weight of the evidence.

In 1999, appellant purchased from his father certain real property located at 11328 Kyle Road, Garrettsville, Ohio. Since appellant already owned a residence on Kyle Road, he did not move into the home on his father’s former property. Instead, over the next two years, he remodeled a substantial portion of the home’s interior, painted its exterior, and installed new landscaping in the yard.

Beginning in 2001, appellant rented the remodeled residence to appellees, Roger D. Shears and Tammy Dowling. Over the next three years, appellees paid the monthly sum of $700 to appellant for use of the home and four sheds which were also on the property. Shears primarily employed the sheds to store equipment and paint that he used in his seasonal construction business.

In August 2004, appellees informed appellant that they were interested in purchasing the leased premises. Accordingly, the parties executed a land installment contract, under which appellees agreed to pay a total of $115,000 for the real property. Under the terms of the contract, appellees made an initial down payment of $10,000 to appellant, and then were required to make a monthly payment of $818.40 over the next five years. Furthermore, at the end of the five-year period, appellees would be liable for a “balloon” payment of approximately $100,000. In addition, the contract provided that appellees could not make changes to the property without obtaining written permission.
 

 

Judge(s): Thomas R. Wright
Jurisdiction: Ohio Court of Appeals, District 11
Related Categories: Damages , Property
 
Court of Appeals Judge(s)
Timothy Cannon
Mary Trapp
Thomas Wright

 
Appellant Lawyer(s) Appellant Law Firm(s)
Farrell Belknap, Jr. Pro Se

 
Appellee Lawyer(s) Appellee Law Firm(s)
Timothy Hart

 

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Click the maroon box above for a formatted PDF of the decision.
{¶41} pursuant to the foregoing discussion, none of appellant’s four {¶17} “[4.] the trial court committed prejudicial error in setting interest on 5 {¶36} as an alternative “damages” argument, appellant asserts that, instead of {¶8} the remaining aspects of the case were subsequently assigned to a court the subsequent lease agreement, was directly related to the five-year period in which he made one rent payment. his “value” opinion as part of his direct testimony, but in response to a distinct query consideration of this additional evidence would be conditioned upon the two attorneys’ {¶2} in 1999, appellant purchased from his father certain real property located made monthly payments under the land installment contract. period in which the payments were made. property had been greater than the monthly amount appellees paid under the land a response, the trial court granted appellant’s motion on that specific claim, and a the next two years, he remodeled a substantial portion of the home’s interior, painted its would be paid from november 2, 2010, the date that the sheriff’s sale of the real estate {¶22} while not artfully stated, the second portion of the foregoing quote readily any damage to the structure. discretion to reject the plaintiff’s submissions when there is no pinpoint testimony and their authenticity. contract, under which appellees agreed to pay a total of $115,000 for the real property. in which appellees resided in the home without paying rent after the land contract had lay a proper foundation for the admission of the documentary evidence. therefore, the a result, the court ordered that appellees were individually and jointly liable to appellant 2 {¶29} pursuant to r.c. 5313.10, the vendor is entitled to recover the difference indicates that none of the evidence presented by appellant, including his testimony as to he sought the difference between the fair rental value and those monthly installments. under the terms of the contract, appellees made an initial down payment of $10,000 to overruling plaintiff-appellant’s motion to supplement the record. without paying any rent. finally, he challenged the denial of his motion to supplement appellant has not shown any error in the magistrate’s analysis that would have judgment: affirmed. on the property. shears primarily employed the sheds to store equipment and paint that {¶6} after appellees had not paid any rent for three months, appellant brought to the period after the payments had ended. under such circumstances, the magistrate second claim, he alleged that appellees had failed to pay the fair rental value for the real (c) of the statute then states that prejudgment interest can be awarded on a money appellees). that the findings were against the manifest weight of the evidence. concerning his “fair payment under the land contract. according to appellant, since appellees were willing {¶5} over the five-year period, appellees did not miss any of the sixty monthly {¶7} once appellees had filed their answer to the complaint, appellant moved use.” disposed of appellant’s “fair rental value” claim, his second assignment lacks merit. repairing the disputed damage to the residence. in claiming that the magistrate and trial an offset or to as to the actual claim, so that’s the only thing that’s troubling me. 12 2006-p-0083, 2007-ohio-7135, at ¶34-35; rogers v. slavin, 6th dist. no. l-86-052, was greater than $818.40. appellant also cites shears’ trial testimony, in which he said from high school. at the conclusion of this process, during which two separate lease - vs - : purchasing the leased premises. accordingly, the parties executed a land installment {¶35} in considering similar questions regarding the sufficiency of the plaintiff’s eleventh appellate district lacks merit. finding as to the extent of the funds he would need to pay to repair the residence was farrell g. belknap, jr., pro se, 11286 kyle road, garrettsville, oh 44231 (plaintiff- amount paid by the vendee on the contract and the fair rental value of the property plus appellant, and then were required to make a monthly payment of $818.40 over the next the ensuing few weeks, shears and appellant tried to negotiate a new lease agreement {¶21} “if you guys can resolve it in between the time that i write an opinion, defendants-appellees. : of the new materials, appellant’s contractor, robert barrett, testified that his company first assignment is not well taken. 8 which bars further action on the contract unless the vendee has paid an amount less could have predicated his finding upon the depreciation in the value of the residence have found that his total damages had been between $39,000 to $49,000. case no. 2012-p-0007 court was not required to go forward on the matter. therefore, since the court properly work had already been done on the home, many of the “repair” jobs still needed further contract * * *.” given this statutory language, it is obvious that a “fair rental value” claim farrell g. belknap, jr., : o p i n i o n contract from september 2004 through august 2009. a review of the hearing transcript that additional work worth between $4,000 to $5,000 would be necessary in the future. was not supported by the evidence. as previously mentioned, in ruling upon this claim, shears testified on behalf of appellees. as part of that testimony, shears asserted that, it follows that the vendor must establish the fair rental value of the property during the {¶19} as noted above, the possibility of the submission of additional evidence ability to “resolve” the point. that is, each attorney would have to be willing to stipulate there’s testimony, but i didn’t have any receipts for any materials from either party as to roger d. shears, et al., : concur. rental value of the property. hence, the trial court did not err in rejecting his objection the alleged expenditures to necessary repairs to the home, the trial court in this appeal {¶15} “[2.] the trial court committed prejudicial error in denying plaintiff- magistrate then indicated that he would be willing to consider additional evidence from of award for damages to plaintiff-appellant. {¶12} after conducting an oral hearing on the objections, the trial court issued its be able to make the final balloon payment, which was due on september 1, 2009. over contract. in now contending that this finding was against the manifest weight of the been terminated. as to this point, this court would note that appellant’s complaint did {¶37} as to this point, this court would indicate that, in stating his opinion on the had established that appellees had unnecessarily damaged many items throughout the five years. furthermore, at the end of the five-year period, appellees would be liable for testifying on his own behalf, appellant presented the testimony of robert barrett, a local from the magistrate at the end of his testimony; in light of this, it is evident that he did for the sum of $15,000. as to the question of interest, the trial court further ordered that damages awarded to plaintiff-appellant.” of the property, and the magistrate was permitted to disregard the testimony as the monthly installments appellees had paid under the terms of the land contract. thus, presented at trial. objections to the magistrate’s decision. to the extent that the issue was never properly both of these rulings were incorrect, appellant submits that he is entitled to prejudgment contract. r.c. 5313.10 then sets forth what other remedies the vendor can pursue: he used in his seasonal construction business. 9 6 {¶32} under his third assignment, appellant contends that the court magistrate’s receipts could not be considered unless the opposing party was willing to stipulate as to i.e., the trial court correctly ordered that interest on the $15,000 judgment could only be because they merely corroborated his trial testimony and did not create any new issues that’s fine. if not, i’ll take it under advisement, and i’ll get you an opinion as soon as court magistrate found that he had failed to prove that the fair rental value of the 1986 ohio app. lexis 8242, at *4. in the absence of any specific evidence connecting evidence, appellant maintains that his testimony concerning the amount of rent thomas r. wright, j. for the premises, since appellees hoped to remain in the home until their son graduated children had imposed needless harm to the structure, appellant’s submissions were not to the home was never contradicted by appellees. of the factual findings made in relation to both of the remaining claims; i.e., he asserted work. in relation to the materials needed to perform the repairs, he testified that he had to pay $850 per month in rent, this established that the fair rental value of the property {¶39} under ohio law, the payment of interest on a civil judgment is governed by he sought to recover. hence, appellant has failed to demonstrate that the trial court’s months after the hearing, appellant moved to supplement the trial record with copies of evidence. than the fair rental value plus deterioration or destruction of the property occasioned by that he was presently paying $850 per month to rent the home which appellees moved {¶10} in his written decision, the magistrate first found that appellant had failed 0173. between the fair rental value of the property and “the amount paid by the vendee on the in support of his second assignment, appellant relies upon his testimony concerning the the magistrate found that appellees and their children had seriously damaged a number that the judgment of the portage county court of common pleas is affirmed. paid from the date of its own judgment. for this reason, appellant’s fourth assignment installment payments. however, in august 2009, they told appellant that they would not damages. therefore, it was recommended that judgment be entered in favor of {¶16} “[3.] the trial court committed prejudicial error in determining the amount court of common pleas. in that judgment, the trial court overruled certain objections to {¶38} appellant’s final assignment of error pertains to the payment of interest on {¶27} “the election of the vendor to terminate the land installment contract by an contractor whom appellant hired to make certain repairs to the residence. in response, and foreclosure when the vendee has failed to pay in accordance with the terms of the court abused their discretion, he asserts that the receipts should have been considered {¶23} the need for such a stipulation was obvious. since the hearing was over 5313.08, the vendor under such a contract has the right to bring an action in restitution side had presented any receipts to support their respective statements as to the amount a land installment contract is governed by r.c. chapter 5313. under r.c. 5313.07 and value of the property had decreased $75,000 during the five years in which appellees magistrate, who then conducted an evidentiary hearing on april 25, 2011. in addition to the cited funds to any specific materials or any specific work. moreover, appellant never response to a specific question asked by the magistrate, he stated his opinion that the no supporting documentary evidence. see effingham v. xp3 corp., 11th dist. no. based upon the foregoing testimony, it is appellant’s position that the magistrate should {¶9} at the close of the evidentiary hearing, the magistrate noted that neither review of the record shows that the “rent” issue was not raised until appellant filed his sale. 10 an amount for the deterioration or destruction of the property occasioned by vendee’s timothy p. cannon, p.j., manifest weight of the evidence. exterior, and installed new landscaping in the yard. claim in appellant’s complaint. as to the third claim, the magistrate found that appellant could justifiably find that, although the evidence had established that appellees and their pled and was not referenced during the evidentiary hearing, the magistrate and the trial appellees were willing to pay in september 2009 was sufficient to establish that the fair not intend to base his measure of damages upon the decrease in the fair market value abused their discretion in refusing to consider the receipts. for this reason, appellant’s 13 {¶13} in appealing the foregoing determination to this court, appellant has raised and no additional testimony would be heard, neither side would have an opportunity to plaintiff-appellant, : unpersuasive. because the magistrate’s method for calculating damages was proper, involved in causing the value of the property to fall. in this regard, appellant did not give property during the five-year period in which they made the installment payments; thus, determination as to the amount of damages under his “destruction of the property” claim rental value was greater than $818.40. civil appeal from the portage county court of common pleas, case no. 2010 cv shows that the magistrate was giving both sides the opportunity to submit documentary appellant emphasizes that the evidence he presented regarding the extent of the harm party liable under the judgment failed to make a good faith effort to settle the case. could justifiably find that appellant had failed to carry his burden of proof as to the fair appellees had made to the home without his written consent. as part of the latter claim, the documents. in fact, appellees’ counsel filed a notice of opposition to the motion to claims of appellant, farrell g. belknap, jr. before this court, appellant primarily submits portage county, ohio it was recommended that final judgment be entered in favor of appellees on the second percentage of the decrease was attributable solely to the destruction of the items by mary jane trapp, j., appellant). {¶24} in moving to supplement the record with copies of his receipts, appellant him damages for the period of time in which appellees had continued to live in the home was to be paid from december 20, 2011, the date of its judgment. in now claiming that the “destruction.” in now asserting that he was entitled to a substantially larger award, of items throughout the home, but only awarded appellant $15,000 to compensate for rental value of an allegedly comparable home. however, instead of citing that evidence evidence for damages, the courts of this state have concluded that a trial court has the interest on the sum would not begin to accrue until the date of its final judgment. timothy j. hart, 136 north water street, suite 209, kent, oh 44240 (for defendants- into after they vacated the disputed residence. that the magistrate’s and trial court’s disposition of his remaining claims was against the supplement the record with copies of various receipts that were generated while he was 7 roger d. shears and tammy dowling. over the next three years, appellees paid the 11 appellant sought foreclosure under the terms of the land installment contract. under his magistrate stated: {¶30} in the instant case, appellees made payments under the land installment kyle road, he did not move into the home on his father’s former property. instead, over possible.” evidence, i.e., copies of receipts, to support their respective arguments. however, any prejudgment interest under r.c. 1343.03(c). thus, since appellant did not comply with [cite as belknap v. shears, 2012-ohio-5582.] purchased the property for the sum of $33,334, and the sale was immediately confirmed while in possession of the home, he had made certain improvements which would offset against the manifest weight of the evidence. of appellant’s additional evidence did not exist, neither the magistrate nor the trial court to demonstrate that the monthly fair rental value of the property had been greater than appellant’s claim for fair rental value. {¶28} in attempting to satisfy the elements of a “fair rental value” claim, appellant value” claim. in holding that appellant was not entitled to any relief under that claim, the {¶40} in this case, the trial record readily shows that appellant never moved for the mandated procedure for such relief, r.c. 1343.03(b) was applicable in this instance; separate judgment overruling the objections and adopting the magistrate’s decision. as {¶20} “the court: okay. the only real problem i had with this case, and {¶31} as a separate issue under this assignment, appellant further asserts that is intended to compensate the vendor for any additional amount he could have earned a prior magistrate’s decision and entered its final rulings on the merits of the remaining rental value” claim, appellant also argued that the magistrate had erred in not awarding {¶14} “[1.] the trial court abused its discretion and committed prejudicial error in interest, covering the entire period from the date on which appellees failed to make the sufficient to show that the extent of the damages was as great as the amount of funds for partial summary judgment on his foreclosure claim. when appellees did not submit the record with copies of his receipts. was first raised by the court magistrate at the close of the evidentiary hearing. after he appellant for that amount, plus interest from the date of the confirmation of the sheriff’s monthly sum of $700 to appellant for use of the home and four sheds which were also amount of money involved, the remainder of their testimony as to damages was vague by the trial court. in the court of appeals of error is lacking in merit. judgment if, after a motion for such relief has been filed, the trial court finds that the during the period in which he was receiving payments under the contract. accordingly, appellees could not make changes to the property without obtaining written permission. supplement. accordingly, since it is evident that a proper foundation for the admission and generalized. in other words, the two witnesses never attempted to connect any of of funds they had spent in making repairs or improvements to the disputed home. the {¶33} during his trial testimony, appellant stated that, even though considerable the vendee’s use. in such case the vendor may recover the difference between the magistrate overruled it, thereby basing his ensuing decision solely upon the evidence new lease agreement he negotiated with appellees after they did not make the balloon under his final claim, appellant requested compensatory damages for alleged changes {¶25} appellant’s second assignment pertains to the merits of his “fair rental 3 {¶26} at the outset of our analysis, this court would note that the enforcement of amount of the depreciation, appellant did not present any evidence showing what {¶18} under his first assignment, appellant contests the denial of his motion to home, including windows, doors, and walls. however, the magistrate further found that to spend an additional $7,000 to $10,000 to complete the process. as to the installation for review. the underlying civil action against them and two other defendants. under his first claim, the magistrate and trial court erred in not awarding him damages for the period of time four assignments of error for review: {¶34} even though appellant and barrett gave direct statements concerning the either side if the two attorneys were able to “resolve” the matter. approximately three r.c. 1343.03. division (b) of the statute provides that, in regard to a money judgment {¶3} beginning in 2001, appellant rented the remodeled residence to appellees, “shall be computed from the date the judgment * * * is rendered * * *.” however, division appellant had only shown that he had expended the sum of $15,000 in repairing those over the period from 2004 through 2009. in support of this assertion, he notes that, in he also alleged that appellees had damaged the home beyond normal wear and tear. balloon payment and did not pay any new rent. was confirmed. in its final judgment, the trial court ordered that interest on the $15,000 had already performed between $8,000 to $9,000 worth of work on the residence, and tried to submit copies of any pertinent receipts in accordance with the governing rules of received payments under the contract. in other words, appellant’s evidence only related 4 the $15,000 judgment in his favor. in the magistrate’s decision, it was held that interest assignments of error have merit. accordingly, it is the judgment and order of this court had listened to the abbreviated closing arguments from the attorneys for both sides, the concerning the disposition of his second claim. never indicated that opposing counsel was willing to stipulate as to the authenticity of action under section 5313.07 or 5313.08 of the revised code is an exclusive remedy {¶4} in august 2004, appellees informed appellant that they were interested in not contain any specific allegations regarding the post-contract “rent” issue. in fact, our certain receipts. after appellees had submitted a notice of opposition to the motion, the presented testimony regarding ads he had seen in a local newspaper which set forth the rendered in a civil action which was based upon tortuous conduct or a contract, interest a “balloon” payment of approximately $100,000. in addition, the contract provided that at 11328 kyle road, garrettsville, ohio. since appellant already owned a residence on {¶1} this appeal has been taken from a final judgment of the portage county {¶11} in objecting to the magistrate’s decision, appellant contested the propriety as to the authenticity of the opposing party’s receipts before they would be accepted. basing his calculation of damages upon the payment of funds for repairs, the magistrate already spent between $20,000 to $25,000, and that he anticipated that he would need agreements were executed, appellees agreed to make a monthly rent payment of $850. but, even though they continued to reside in the home until may 2010, appellees only warranted its rejection by the trial court. for this reason, his entire third assignment appellees. that is, appellant failed to prove that other unrelated factors, were not sheriff’s sale was scheduled for october 2011. at that time, appellant essentially re-


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