IN TAE SUPREME COURT OF OHIO

Troy Parks, Et Al.,On Appeal from theWashington CountyCourt of Appeals, FourthAppellateDistrict

Appellants,

V.

Dale Parks, Et Al.,

Appellees.

Court of Appeals No. 12CA37

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MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANTS Troy Parks Et. Al.,

David L, Engler (0030264)839 Southwestern RzmPoland, OH 44514(330) 729-9777davidenglergdavidengIer.com

ATTORNEY FOR API'EI,I,ANTS

John N.I. Halliday (0061913)607 Putnam StreetMariet#a, Ohio 45750(740) 373-1911 Phone(740) 373-1934 FaxJohnhallidayna,sbcizlobaI.net

1

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Jared T. Erb (0088665)

3693 Camforth Drive

Columbus, Ohio 43221

(740) 350-8212 Phone

j arederbra,vahoo.com

ATTORNEYS FOR APPELLEES

TABLE OF CONTENTS

Pa6eEXPLANATION OF WHY THIS CASE INVOLVES ASUBSTANTIAL CONSTITUTIONAL QUESTION AND ISA CASE OF PUBLIC OR GREAT GENERAL INTEREST 4

STATEMENT OF TH:E CASE AND FACTS

PROPOSITIONS OF LAW

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5

Proposition of Law No. 1: TO ESTABLISH A CLAIM OFUNJUST ENRICHMENT FRAUD NEED NOT BE PROVENWHEN IN ESTABI,ISHING THE REMEDY OF ACONTRUCTIVE TRUST THE PRINCIPLES OF EQUITYDEMAND SO AND THE EXISTENCE OF ACONDITIONAL GIFT IS A MATTER FOR THE JURY 5

Proposition of Law No. 2: A DIRECTED VERDICTSHOULD NOT BE GRANTED IF THERE ISSUBSTAANTIAL CREDIBLE EVIDENCE TO SC i:PPORTTHE PARTY AGAINST WI-IOM THE MOTION IS MADE. g

CONCLUSION

PROOF OF SERVICE

APPENDIX

Opinion of the Washington County Court of Appeals(August 14, 2(?13)

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11

Appendix Pne

1

Judgment Entry of the Washington County Court of Appeals(August 14, 2t}13) 13

EXPLANATI()N fJF WHY TI-l [S CASE ISA CASE OF PUBLIC OR GREAT GENERAL INTEREST

This cause presents a basic issue of whether an entire family that believes that the family

farm was mistakenly or wrongfully transferred by the widowed father to just two (2) out of six

(6) of the children has the right to have a jury hear all of the evidence and make a decision in

equity as to the true ownership of such a priceless asset. Fundarnental to our Nation and State of

laws is the notion that if a legitimate wrong is articulated the courts and eventually a jury can sort

out the truth. And nothing goes to the heart of our State quite like the family farm. It is of

particularly great interest since all who call upon the Courts believe the Courts will be consistent

in the application of law and not stray from law handed down by the Supreme Court. If a Court

can be permitted to simply not follow the case law as handed down by the Supreme Court as to

the standard for granting a directed verdict and interpreting a request for a constructive trust, then

a litigant's faith in our judicial system will be greatly shaken if precedent is not followed.

STATEMENT OF THE CASE AND FACTS

'I'he Plaintiffs/Appellants Troy Parks, Concetta Parks, Douglas Parks, Mary Ann Parks,

Dana Parks, Kay Parks, Rebecca Parks I tilverding and Matthew Flilverding are the spouses and

four (4) out of six (6) children of Ralph and Elizabeth Parks. The 250 acre farrn. located in

Washington County had been with the family since Wesley Parks returned from the Civil War.

4

War. The four children and their respective spouses brought an action in Washington County

Common Pleas Court asserting that their late father had intended to transfer the famity farm to all

of the children and to make sure that Dale and Gale Parks, the 53 year old unmaz-ried twin boys

(now 58) who lived on the farm, always had a place to live. It was a shock when one day the

twins Dale and Gale told their siblings that they were no longer welcome on the land they had all

grown up on and had worked at one time or another.

Dale and Gale Parks responded that the father granted them a deed to all the property and

denied that they passed a blank signature page to their siblings to sign. They were at a loss to

explain why the father had only transferred the property to them and excluded their brothers and

sisters.

A trail began August 27, 2012 before a jury. After Plaintiffs presented their case on the

second day of trial, the Court granted Defendants' Motion for Directed Verdict. The

Plaintiffs/Appellants had sought essentially to create a constructive trust thus placing the farrm

back with the entire family by bringing a number of alternate causes of action including one for

unjust enrichment.

The Plaintiffs appealed the case to the Fourth District Court of Appeals which affirmed

the decision to direct a verdict and the interpretation of when a case of unjust enrichynent is

made.

Proposition of. Law Number 1

TO ESTABLISH A CLAIM OF UNJUST ENRICHMENT FRAUD NEED NOT BE PROVEN

WHEN IN ESTABLISHING THE REMEDY OF A CONTRUCTIVE TRUST THE

I'RINCIPLES OF EQUITY DEMAND SO AND THE EXISTENCE OF A CONDITIONAL

GIFT IS A MATTER FO[Z THI:, JURY.

Proposition of Law Number 2

A DIRECTED VERDICT SHOULD NOT BE GRANTED IF TI-iERE IS SUBSTANTIAL

CREDIBLE EVIDENCE TO SUPPORT T'HE PARTY AGAINST Vt,'1--IOM THE MOTION IS

MADE.

Argument in Support of Proposition of Law Number 1

The Ohio Supreme Court has stated that unjust enrichment occurs when a person "has

and retains money and benefits which injustice and equity belong to another." Ilummel v.

flurnmel ( 1938), 133 Ohio St. 520, 528, 110.0. 221, 224, 14 N.E.2d 923, 927. A case for unjust

enrichment was made by the Plaintiffs/A.ppellants at the trial court level. The problem occurred

when the trial court directed a verdict and the appellate court affirmed that verdict in the

misplaced belief that in order to show unjust enrichment fraud needed to be proved.is made.

A constructive trust was sought by the Plaintiffs/Appellants as a remedy to their claim for

unjust enrichment. They wanted the family farm to be placed in all siblings' names with a life

estate for Dale and Gale, the Appellees. It was clearly argued that a trust was necessary because

of the conduct of the Appellees in concealing the nature of the transferring document and doing

so in complete contravention to the father's wishes.

"[A] trust by operation of law which arises contrary to intention and in invitum, againstone who, by fraud, actual or constructive, by duress or abuse of confidence, by commission ofwrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means,

6

or who in any way against equity and good conscience, either has obtained or holds the legalriglit to property which he ought not, in equity and good conscience, hold and enjoy."

Ferguson v. Owens (1984), 9 Ohio St.3d 223, 225, 9 Ohio B. 565, 459 N.E.2d 1293,

quoting 76 American Jurisprudence 2d (1975) 446, Trusts, Section 221. A constructive trust is an

equitable remedy used "'[w]hen property has been acquired in such circumstances that the

holder of the legal title may not in good conscience retaiit the beneficial interest.' " Id. at 225, 9

Ohio B. 565, 459 N.E.2d 1293, quoting I3eatty v. Guggenheim Exploration Co. (1919), 225 N.Y.

380, 386, 122 N.E. 378; Cosby v. Cosby, 96 Ohio St.3d 228, 2002 Ohio 4170, at P17, 773 N.E.2d

516. Continuing its discussion of constructive trusts, the Supreme Court stated:

A constructive trust is, in the main, an appropriate remedy against unjust

enrichment. This type of trust is usually invoked when property has been acquired by

fraud. However, a constructive trust may also be imposed where it is against principles of

equity that the property be retained by a certain person even though the property was

acquired without fraud."

Patterson v. Patterson, 3d Dist. No. 17-04-07, 2005 Ohio 2254, at P 38, quoting

Ferguson v. Owens (1984), 9 Ohio St.3d 223, 226, 9 Ohio B. 565, 459 N.E.2d 1293; see also

Lawrence v. Bailey (Jan. 25, 2000), 3d Dist. No. 9-99-37, 2000 Ohio App. LEXIS 154. Based on

this defmition, a constructive trust is an equitable remedy that arises by operation of law after

there has been a finding of fraud or unjust enrichment. See Columbus Homes, Ltd. v. S.A.R.

Consttr. Co., 10th. Dist. Nos. 06AP-759 and 06AP-760, 2007 Ohio 1702, citing Groza-Tlance v.

Vance, 162 Ohio App.3d 510, 2005 Ohio 3815, 834 N.E.2d 15.

The record is undisputed that the Donor/Father created a deed to transfer his interest

whether it was intended to be in whole or just a life estate to the Appellees in the Parks family

farm. It was also uncontroverted that the Appellants believed that the father intended that they

each retain an interest in the family farm and the twins retain a life estate. Thus the first prong of

unjust enrichment was met when the Appellees received from the Appellants a benefit. The

second element of unjust enrichment is also satisfied; that the Appellees knew they had received

the benefit. As to the third element, it has been held that "unjust enrichment is inapplicable to

gifts or any officious act." Miller, at P 43, citing Wendover Rd., 28 Ohio App.3d, 78 at syllabus.

However, other courts have been slightly more specific about the nature of the gift involved and

have held that "[tJhe issue of unjust enrichment does not arise with absolute gifts because

'[e]nrichmerit of the donee is the intended purpose of a gift."' Cooper v. Smitlz, 155 Ohio App.3d

218, 2003 Ohio 6083, 800 N.E.2d 372, quoting Lane U Saunders (Dec. 13, 1985), 4th Dist. No.

85CA5, 1985 Ohio App. LEXIS 10033. Generally, "once an inter vivos gift is complete, it is

generally absolute and irrevocable." Cooper, at P 31, citing Royrranitiv-Dubas v. Polowyk (Aug.

10, 2000), 8th Dist. No. 75980, 2000 Ohio App. LEXIS 3613. "However, a donor may impose

conditions on a gift so that if the conditions fail, the gift fails," Id., citing Wilkin v. YVilkin (1996),

116 Ohio App.3d 315, 318, 688 N.E.2d 27. The absolute or conditional nature of-the gift must be

resolved by examining the donor's intent, which is deternnined "'-froni. any express declaration by

the donor at the time of the making of the gift or from the circumstances."' Id., quoting 38 Am.

Jur. 2d (1999) 767-768, Gifts, Section 72. This point was missed by the Court of Appeals when

it stated the doctrine otxtlined above that absolute gifts cannot be the basis for unjust enrichment.

There were facts offered at trial that the father Ralph Parks had intended only a life estate and the

Appellees passed around just a signature page for some of the siblings to sign.

8

The Court of Appeals failed to follow the rule of law, committed plain error by both

asserting that without proof of fraud there could be no unjust enrichment and also by believing

that an absolute gift precluded the ability of a jury to weigh the evidence. The Court below

stopped short in its analysis of Cooper v. S'inith, 155 Ohio App.3d 218, 2003 Ohio 6083, 800

N.E.2d 372 which allows for the possibility of a conditional gift. The existence of a conditional

gift could certainly have been ascertained by a jury when viewing all the evidence presented and

permissible inferences.

Argument in Support of Proposition of Law Number 2

'The law in Ohio regarding directed verdicts is well fonnulated. In addition to Civ. R.

50(A), it is well established that the court must neither consider the weight of the evidence nor

the credibility of the witnesses in disposing of a directed verdict motion. Durham v.. Warner

Elevator Mfg. Co. (1956), 166 Ohio St. 31. Thus, "if there is substantial competent evidence to

support the party against whom the motion is made, upon which evidence reasonable minds

might reach different conclusions, the motion must be denied. Kellerman v.. J. S. During Co.

(1964), 176 Ohio St. 320 * * *." Hawkins v.. Ivy (1977), 50 Ohio St. 2d 114, 115..

Here there was testimony offered by the Plaintiffs/Appellants that the father had intended

all children to retain their fractional interest in the family farm. The father was concerned that

the twin boys, Dale and Gale not be put out and always have a place to live. The father had

initially spoken to his eldest son Troy about placing the land in his name in order to effectuate

his desires. Even the Appellees could not explain their good fortune of receiving the property

free and clear of the others. But it was uncontroverted that the twins did go to the siblings with

either a blank signature page for the deed or the entire deed according to Appellants. But when

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applying the facts to what needed to be proved to make out a case of unjust enrichment it would

have been hard to argue that the evidence was not present to allow the jury to deliberate. But for

the mistaken belief that fraud had to be proven in order to claim unjust enrichment this case

would have gone to the jury.

The Court below did not apply the standard in granting a motion of directed verdict since

it had failed to apply the clear law from the Supreme Court that fraud is not the only avenue to

proving unjust enrichment and that a gift can be conditional when viewing all the facts.

CONCLUSION

For the reasons discussed above, this case involves a case of important public or general

interest. The appellants request that this court accept jurisdiction in this case so that the iinportant

issues presented will be reviewed on the merits and allowed to proceed to the jury as to the

questi®n as to Nvhether a constructive trust was formed.

lt.espectfWly submitted,

David L. Engler (0030264)839 Southwestern RunPoland, OH 44514Phone: (330) 729-9777davidengler@davidengler.comAttorney for Plaintiffs/Appellants

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served, by regular U.S. mail., upon Mr.

John M. Halliday 607 Putnam Street Marietta, Ohio 45750 and Mr. Jared T. Erb 3693 Carnforth

Drive Columbus, Ohio 43221, Attorneys for Defendants/Appellees, this 30tb day of September

2013.

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IN THE COURT OF APPEALS OF OHIC'̂FOURTH APPELLATE DISTRICT

WASHINGTqN COUNTY

TRO^.' PARKS, E T AL.,

Plaintiffs-Appellants,

vs.

DALE L. PARKS, ET AL.,

Case No. 12CA37

DECISIfJN ANDJUDGMENT ENTRY

Defendants-Appellees.

APPEARANCES:

Williatn L. Burton, Marietta, Ohio, for Plaintiffs-Appellants.

John M. Halliday, Marietta, Ohio, and Jared T. Erb, Colu.mbus, Ohio, for Defendants-Appellees.

Hoover, J.

1} The plaintiffs-appellants, Troy Parks, Concetta Parks, Douglas Parks, Mary Ann

Parks, Dana Parks, Mary Kay Parks, Rebecca Hilverding, and Matthew Hilverding, fzled this

case alleging breach oaf contract, breach of fidtzciary duty, unjust enrichment, and fraud against

the defendants-appellees, Dale Parks and Gale Parks. The claims arose from the transfer, by

general warranty deed, of the parties' family farm from the appellants and appellees a.s,joint

owners, to appellees as sole owners. On appeal, appellants contest the decision of the

Washington County Common Pleas Court, which directed a verdict in favor of appellees on

appellants' claims offrau.d and unjust enrichment.i As to their unjust enrichment claim,

appellants assert that they never received a full copy of the deed; that they signed blank signature

i The trial court also directed verdict in favor of appellees on appellants' claims for breach ofcontract and breach of fiduciary duty. Appellants, however, have not assigned error as to thetrial cottrt's directed verdict of these claims.

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Washington App, No. 12CA37

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pages with the belief that they were granting the appellees the right to live on the farm (not with

2

the intent to transfer their interest in the farm); an:d that they were never paid for their interest i.n

the property. For their fraud claim, appellants argue that the appellees retained the deed and only

distributed the signature pages among the family members for execution and notarization.

Because we conclude that insufficient evidence was adduced for the jury to consider appellants'

claims of fraud and unjust enrichment, we afffim the directed verdict of the trial court.

{I 2} Appellants also contend o-n appeal that the trial court "abused its discretion in that

the manifest weight of the evidence was in favor of the plaintiffs." Howeve.r, the determination

of whether or not to grant a motion for directed verdict is a question of law and does not permit

courts to weigh the evidence or make factual determ.inations. See Parrish v. Jones, 4th. Dist. No.

11 CA3238, 2012-Ohio-1145, 111 ("A motion for directed verdict presents a question of law,

rather than factual issues."). Accordingly, appellants' argument that the manifest weight of the

evidence was in their favor is without merit.

{I"3 } The record reveals the following facts and procedural history. Ralph Parks

(deceased), has six children: (1) Troy Parks, (2) Douglas Parks, (3) Dana Parks, (4) Rebecca

Hilverding, (5) Dale Parks, and (6) Gale Parks.2 From approximately 1992 until 2007, all six

children and Ralph Parks owned a 1/7th interest in the family farm, located at 36600 State Route

260, Graysville, Ohio 45734. While Troy, Douglas, Dana, and Rebecca no longer participated in.

2 The first four listed children and their spouses constitute the plaintiffs-appellants. Dale Parksand Gale Parks, both uzimarried, are the defendants-appellees.

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WashingtonApp. No. 12CA37 3

the farming business3; the appeilees resided with their father at the farm and made their living

farming the property.

{14} In. 2006, Ralph. Parks, who had been experiencing health problems, contacted his

lawyer James Peters, of Woodsf eld, Ohio. Ralph Parks requested that the farm be transferred to

the appellees, as sole owners. Attorney Peters informed Ralph Parks, via letter, that in order to

carry out his wishes the other Parks children and their spouses would have to sign a deed

transferring the property to the appellees as sole owners. In 2007, a general warranty deed was

prepared and signed by Ralph Parks and the appellees. Attorney Peters then mailed the deed to

Troy and Concetta Parks (husband and wife) with instructions to sign the deed. Troy and

Concetta Parks signed the deed and had their signatures notarized, but instead of retur.aing the

deed to Attorney Peters as instrcacted, the deed was mailed to Ralph Parks, at the farm.

{, 5} Thereafter, all the remaining appellants voluntarily signed the deed and each

signature was attested before a notary. However, the appellants, with the exception of Troy and

Concetta Parks, now assert that they only received the signature pages. ¢ They further contend

that they signed the signature pages without reading the entire deed because they believed, based

upon conversations with Ralph Parks, that they were merely granting appellees the right to live

on the farm for the remainaer of the appellees' lives. Appellees, on the other hand, contend that

the deed was returned via rnail to the farm by Troy and Concetta Parks in a manila envelope.

Appellees further contend that they did not open the envelope to view its contents prior to

distributing the envelope to the remaining appellants for signature; and thus, they do not know

3 On occasion Troy, Douglas, Dana, Rebecca, and their respective spouses would help with thefarming duties; however, farming was not the primary vocation of any of the appellants.$ Mary Kay Parks did not testify at trial, but her husband testified that she may have received theentire deed.

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Washington App. No. 12CA37

whether the appellants received the full deed or just the signature pages. In any event, the deed.

4

was eventually signed by all the parties including Ralph Parks. The deed was property notarized

and was returned to Attorney Peters' office. The deed was recorded in the office of the Monroe

County Recorder on October 17, 2007. After Ralph Parks died in 2008, a dispute over the

ownership of the Iarm developed among the parties.

f 16} The appellants brought suit against appellees to recover their ownership intexest in

the property alleging fraud, breach of contract, breach of fiduciary duty, and unjust enrichment.

A jury trial was held in the Washington County Common Pleas eourt. After the appellants

closed their case, appellees moved for a directed verdict. The tria.l court granted the appellees'

motion for a directed verdict as to all counts of the complaint.

{¶ 71 Appellants filed a timely appeal raising three assignments of error for review.

First Assignm.ent of Error:

THE TRIAL COURT ERRED IN GRANTING DEFENDANTS A DIRECTEDVERDICT ON PI.,AINTIFFS' UNJU sT ENRICHMENT CLAIM.

Second Assign.ment of Error:

THE TIZIAL COURT ERRED IN GRANTING DEFENDANTS A DIRECTEDVERDICT ON PLAINTIFFS' FRAUD CLAIM.

Third Assignment of Error:

THE TRIAL COURT ABUSED ITS DISCRETION IN THAT THE MANIFESTWEIGHT OF THE EVIDENCE WAS IN FAVOR OF THE PLAINTIFFS.

{18} Upon a motion for a directed verdict, the trial court is required to construe the

evidence most strongly in favor of the nonmoving party and to determine whether "upon any

determinative issue [that) reasonable minds could come to but one conclusion upon the evidence

submitted and that conclusion is adverse to such party." Civ.R. 50(A)(4). The trial court must

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Wash.ington App. No. 12CA37

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give the nonmoving party the benefit of all reasonable inferences that may be drawn from the

evidence. Keeton v. 7'elexnetZia. Co. o, fSouthern Ohio, 98 Ohio App.3d 405, 408, 648 N.E.2d 856

(4th Dist.1994), citing Broz v. Wznland, 68 Ohio St.3d 521, 526, 629 N.E.2d 395 (1994). Vdhenn

determining whether to grant a motion for directed verdict, the trial court m-ust submit an

essential issue to the jury if there exists sufficient credible evidence to permit reasonable miazds

to reach different conclusions on that issue. O'Day v. Webb, 29 Ohio St.2d 215, 280 N.E.2d 896

(1972), paragraph four of the syllabus. See also Strother v. Hutchinson, 67 Ohio St.2d 282, 284-

285, 423 N.E.2d 467 (1981), quating Haw,kins v.Ivy, 50 (3hio St.2d 114,115, 363 N.E.2d 367

(1977).

{¶ 9} A motion for directed verdict does not present a question of fact or raise factual

issues, although the trial court is required to review and consider the evidence. Ruta v.

Breckenridge-Remy Co., 69 Ohio St.2d 66, 430 N.E.2d 935 (1982), paragraph one of the

syllabus. Instead, a motion for directed verdict tests the legal sufficiericy of the evidence rather

than its weight or the eredibility of the witnesses. Id. at 68-69. A motion for directed verdict

therefore presents a question of law; and we conduct a de novo review of the trial court's

judgment. Howell v. Dayton Power & Light Co., 102 Ohio App.3d 6, 13, 656 N.E.2d 957 (4th

Dist. 1995); Keeton at 409.

{1101 For ease of aiialysis, we will first address appellants' second assignment of error.

In their second assigzun.ent of error, the appellants contend that the trial court erred when it

directed a verdict in favor of appellees on the fraud claim.

{¶ 11 } In order to prevail on a claim of fraud, a claimant is required to prove the

following elements:

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Washington App. No. 12CA37

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(a) a representation, or where there is a duty to disclose, concealment of a fact, (b)

which is material to the transaction at hand, (c) made falsely, with knowledge of

its falsity, or with such utter disregard and recklessness as to whether it is true or

false that knowledge may be inferred, (d) with the intent of misleading another

into relying upon it, (e) justifiable reliance upon the representation or

concealment, and (f) a resulting injury proximately caused by the reliance.

Swanson v. Boy Scouts ofAm., 4th Dist. No. 07CA663, 200$-Ohio- 1692, 117, fii.

2, quoting Gaines v. Preterm-Cleveland, Inc., 33 Ohio St.3d 54, 55, 514 N.E.2d

709(1987).

"A deed will not be set aside on the basis of .fratidulent zn.isrepresentation unless the plaintiff

proves such conduct by clear and convincing evidence." Village o. f S'eaman v. Altus Metals, Inc.,

4th Dist. No. 99CA683, 2000 WL 331596, *4 (Mar. 24, 2000).

{112 } In the case sub judice, it is undisputed that the appellees made no false

representations to the appellants. Rather, appellants' belief that they were merely granting the

appellees a right to live on the farm for the remainder of their lives was based on their

conversations with Ralph Parks; not on conversations with the appellees. Consequently, there is

no evidence that the appellants relied upon any statements made by the appellees.

{¶ 13) For instance, Dana Parks testified that after signing the instrument, he had a

conversation with Ralph Parks in which he left believing that he still owned his interest in the

property. Matthew Hilverding testified that he did not discuss what he was signing with either

Gale Parks or Dale Parks. Matthew 1-Iilverding believed, based upon his conversations with

R.alph Parks, that he was signing an instrument that would transfer the property frorra. Ralph Parks

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WashingtonApp. No. 12CA37 7

and the six children, to just the sixchildren. Similarly, Douglas Parks testified that the fa2nily

agreed to deed the property from Ralph Parks and the six children, to just the six children with

the understanding that the appellees would have the right to live in the farmhouse. He further

testified that he had no discussions with the appellees regarding the future of the farm; that his

only discussions were with Ralph Parks. Mary Ann Parks testified that her understanding of

what was to happen with the farm were based on conversations between her husband and Ralph

Parks. Mary Ann Parks fiirther testified that she had no contact with either Dale Parks or Gale

Parks regarding the ownership of the property. Rebecca Hilverding testified that prior to signt.u.g

the instrument, she had no discussions with the appellees. Rather, she believed that the papers

were intended to grant the appellees the right to live in the farmhouse, and that such belief was

based upon group conversations with the family. Troy Parks testified that he had discussions

with Ralph Parks, in which Ralph. Parks expressed an interest in transferring the property from

all six children to just Troy Parks solely. However, because Troy Parks opposed the idea of

owning the property outright, he was the one that first suggested to Ralph Parks that the farm be

. placed solely in the appellees' names.

{I I41 Appellants' fraud claim also relies upon the theory that the appellees withheld

from them the entire deed, and only distributed to them the signature pages. First, it is

undisputed that Troy and Concetta Parks received the entire deed directly from Attorney Peters.

Dana Parks also testified that his wife, Mary Kay Parks, was presented the entire deed. Even if it

is true that the remainder of the appellants only received the.. signature pages, such fact does not

support the appellants' fraud claim. As previously discussed, no evidence was presented

suggesting that the appellees rnisrepresernted the legal effect of the document, or that the

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Washington App. No. I2CA.37 8

appellees purposefully withheld the contents of the deed.5 Moreover, if appellants had questions

of what`they were signing they could have refused to sign it; or alternatively, they could have

asked to see the entire document before they signed it. "Ordinarily, person.s of full age in

possession o:Etheir faculties who sign an instrument and remain acquiescent to its operative facts

for sometime cannot escape its consequences by alleging that they did not read it or that they

relied upon the representations of another as to its contents or signifxcance." (Quotations

omitted.) Henkle v. Henkle, 75 Ohio App.3d 732, 737, 600 N.E.2d 791 (12th IJist.1991).

}I 15) Upon independent review, we find that the trial court did not err in granting a

directed verdict in appellees' favor on appellants' fraud claim. Even construing the evidence

most strongly in favor of the appellants, insufficient evidence exists to permit reasonable minds

to reach different conclusions on the claim of fraud. Accordingly, appellants' second assigrament

of error is overruled.

{¶ 16} For their first assxgnment of error, the appellants allege that the trial court erred in

directing a verdict in favor of appellees on the appellants' claim of unjust enrichment.

g117} As an initial matter, appellees' contend that the appellants failed to object to the

trial court's directed verdict on the unjust enrichment claim, and thus failed to preserve the issue

for appeal. Following the appellees' argument in support of their motion for directed verdict on

the unjust enrichment claim, the trial court offered the appellants an opportututy to respond. At

that time, the appellants responded simply: "No response, Your Honor." The trial court then

directed verdict in favor of the appellees on appellants' claim of unjust enrichment.

5 The testimony adduced at trial was that the appellees simply forwarded the manila envelopereceived from Troy and Concetta Parks, and that they were completely unaware of the contentsof the envelope.

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Washington App. No. 12CA37

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{T 18} A failure to object to the imposition of a directed verdict results in forfeiture of

all but plain error review. Mynes v.Brvolrs, 4th Dist. No. 08CA3211, 2009-Ohio-5017, 152.

Nonetheless, for the purposes of this opinion, we witl assume, without deciding, that the

appellants properly preserved the issue for appeal because we find no error, let alone plain error,

in the trial court's directed verdict on the unjust enrichment claim.

{¶ l9) Unjust enrichment occurs "`when. a party retains money or benefits which in

justice and equity belong to another.' " HAD Ents. v. Galloway, 192 Ohio App.3d 133, 2011-

Ohio-57, 948 N.E.2d 473, 18(4th Dist.), quoting Cooper v. Smith, 155 Ohio App.3d 218, 2003-

Ohio-6083, 800 N.E.2d 372,130 (4th Dist.), in turn citing Liberty Mut. Ins. Co. v. .lndus.

Comm., 40 Ohio St.3d 109, 111, 532 N.E.2d 124 (1988). Tn order to prevail on an unjust

enrichment theory, the plaintiff must establish three elements: "`(1) a benefit conferred by a

plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the

benefit by the defendant under circumstances where it would be unjust to do so without

payment.'." Galloway at Ij 8, quoting,.Hanableton v. R.G. Barry Corp., 12 Ohio St.3d 179, 183,

465 N.E.2d 1298 (1984).

f 1201 Appellants argue that they are entitled to an order of recession of the deed, an

order imposing a constructive trust over the farrn, or an order of damages sufficient to

compensate them for the fair market value of the property, because they allege the appellees

gained their interests in the property through fraud and wrongdoing. First, we note that the

appellees did not commit any actionable fraud against the appellants; and thus appellants cannot

use the alleged fraud as the basis for its unjust enrictyment claim. Further, we conclude that the

appellees have not unjustly retained the appellants' interests in the farm. Each appellant signed

the deed transferring his or her interest in the property voluntarily, and with no expectation of

JM _____t-^^a

9

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}

Washington App. No. I 2CA37

payment. "The issue of unjust enrichment does not arise with absolute gifts because

`[e1nriclment of the donee is the intended purpose of a gift.' " Cooper v. Smith, 155 Ohio

App.3d 218, 2003-Ohio-6083, 800 N.]E.2d 372, ¶ 28 (4th. Dist.), quoting Lane v. Saunders, 4th

Dist. No. 85CA5, 1985 WL 17472, *2 (Dec. 13, 1985).

10

{121 } Accordingly, the trial court did not err in granting a direct verdict in favor of the

appellees on the appellants' claim of unjust enrichnent. The appellants' first assignment of error

is overruled.

{¶ 22} For their third and final assignm.ent of error, appellants contend that the manifest

weight of the evidence was in their favor; and therefore, a directed verdict was inappropriate.

Because determination of a motion for directed verdict is a question of law, in which courts are

not permitted to weigh the evidence or make factual determinations, appellants' third assignment

of error lacks merit.

23} "`A motion for a directed verdict does not present factual issues, but a

question of law, even though in deciding such a motion, it is necessary to review and consider

the evidence.' " Ohio Power Co. v. Ogle, 4th Dist. Nos. 09CA1 &(?9AP1, 2009-qhio-5953, ¶

18, quoting Wright v Suzuki Motor Corp., 4th Dist. Nos. 03CA2, 03CA3, 03CA4, 2405-CQb.zo-

3 494,196, in turn quoting C?'.Day, 29 Ohio St.2d at paragraph three of the syllabus, 280 N.E.2d

896. Put another way, a motion for directed verdict tests the legal sufficiency o, f the evidence

rather than its weight or the credibility of the witnesses. Ruta, 69 Ohio St.2d at 68-69, 430

N.E.2d 935. It follows, that "when a trial court rules on a motion for a directed verdict, it must

consider neither the weight of the evidence nor witness credibility ." Ogle at'j( 19. Similarly,

^m "13

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Washington App. No. 12CA3'7_-^ 11

"[i]n an appeal based upon a motion for a directed verdict, we consider neither the weight of the

evidence nor witness credibility." Id. at 1 27.

{124} Here, the trial court determined that the appellants failed to provide sufficient

evidence in support of their claims. The trial court's decision was not based on the weight of the

evidence, but rather whether there existed legally sufficient evidence to per.znit reasonable minds

to reach different conclusions on appellants' claims. Appellants simply miscomprehend the duty

of a court when confronted with a motion for a directed verdict. "Weighifng evidence connotes

fmding facts from the evidence submitted; no such role is undertaken by the court in considering

a motion for directed verdict." Ruta at 69. Moreover, just because "resolution of a question of

law involves a consideration of the evidence does not mean that the question of law is converted

into a question of fact or that a factual issue is raised." Id. at 68. Accordingly, appellants'

argument that "the manifest weight of the evidence was in favor of the plaintiffs," is wholly

without merit and is irrelevant to the determination of a.motion for directed verdict. Appeilants'

third assignment of error is overruled.

(1251 Having rejected all of appellants' arguments, we find that the trial court did not

err in granting appellees a directed verdict on appellants' clai.rns of fraud and unjust enrichment.

We affirm the judgment of the trial court.

JM 4-^^y

.IIJDGMENT AFFIRMED.

Ic ^ ^ jo y

Washington App. No. 12CA37

JUDGMENT ENTRY

12

It is ordered that the JUDGMENT IS AFFIRMED. Appellants shall pay the costs hereintaxed. 'I`he Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the WashingtonCounty Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of theR.ules of Ap ellate Procedure.

McFarland, P.J. and Harsha, J.: Concur in Judgment and Opinion.

For the Co

By: AUG 14 2013Marie oover, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and thetime period for further appeal commences from the date of filing with the clerk.

JM _i±!_--r09

IN THE COURT OF APPEALS4TH APPELLATE DISTRICT

205 PUTNA:M- STREETMARIETTA, OH 45750

TROY PARKS et aI vs. DALE L PARKS et al

TO : File Copy

CASE NO. 12CA37

PURSUANT TO APPELLATE RULE 22-B, YOU AREHEREBY NOTIFIED THAT A DECISION ANDJUDGMENT ENTRY, COPY HERETO ATTACHED,HAS BEEN FILED IN SAID COURT OF APPEALS INTHE ABOVE STYLED ACTION ON 8/14/13

ORIGINt1.L NOTICE TO:

AT T'Y JO1-1N M HALLIDAYATTY JARED T ERBATTY WILLIAM L BURTON

NOTICE OF FILING

RULE 22-8

PA.PERS ATTACHED:

DECISION AND 7[JDC"rMENTENTRY DATED: 8/14/13

BRENDA L WOLFECLERK OF COURTS

DEP Y

DATED 8/16/1 ^

ff-'V

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