COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59380 : : FRED WHEATT, ET AL. : : Plaintiffs-Appellants : : -vs- : JOURNAL ENTRY : AND ROBERT HARRIS : OPINION : Defendant-Appellee : : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: Civil appeal from Cuyahoga County Common Pleas Court Case No. 171203 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: TYRONE E. REED SCOTT D. MAYBAUM 12025 Shaker Blvd. 33595 Bainbridge Road Suite 575 Suite 105 Cleveland, Ohio 44120 Solon, Ohio 44139 -2- KRUPANSKY, C.J.: Plaintiffs appeal from an order of the Cuyahoga County Common Pleas Court granting judgment for defendant on the com- plaint and judgment for plaintiff on defendant's counterclaim. The relevant facts follows: Plaintiff Fred Wheatt and defendant Robert Harris were friends and business partners. In 1977, they decided together to purchase a parcel of land consisting of four plus acres in Moreland Hills, Ohio. The parcel was capable of being subdivided. The purchase agreement was signed by only Fred Wheatt and defendant. The deed and mortgage, however, were in the name of Fred and Linda Wheatt. The following facts were established regarding the actual purchase of the property: (1) the price of the property was $27,000; (2) the Wheatts gave the owners a down payment of approximately $7,000 and financed the rest of the amount of the purchase price through a bank; (3) the bank secured a mortgage on the property for approximately $20,000 with the Wheatts as payees; (4) the period of the mortgage was for five years with a "balloon" payment due at the end of the period; and (5) the Wheatts and defendant thereafter made payments on the mortgage. In November 1982, the Wheatts quitclaimed one-half interest in the property to defendant. In April 1983, defendant quitclaimed this same portion of the property back to the Wheatts. In February 1984, the Wheatts again quitclaimed one- half interest in the property back to defendant. -3- During this period of time, Mr. Wheatt and defendant established a company called Castle Builders. Through this company the parties became the exclusive sales representatives in northeastern Ohio for a modular home manufacturer. As sales representatives Castle Builders could buy modular homes at cost. The Wheatts bought a modular home from the manufacturer in 1984. In order to purchase this home they took out a new mortgage on the house and land in the amount of $72,000. With this new loan the Wheatts then paid in full the original mortgage on the property as well as paying for the modular home. In this transaction the new lending institution was made aware defendant owned half the property. The Wheatt's home was thereafter installed on their one-half portion of the property. Defendant helped in the home's design and installation. In 1989, plaintiffs filed a complaint in the Cuyahoga County Common Pleas Court alleging defendant "by fraud and misrepresen- tation *** induced the Plaintiffs to sign a Quit Claim Deed to the premises." Plaintiffs sought to have defendant's deed to the portion of the property cancelled. Defendant filed an answer and a counterclaim, seeking to recover the value of services rendered to plaintiffs on two homes owned by plaintiffs, the one in Moreland Hills and one in Cleveland. Trial was to the court. After hearing the testimony and reviewing the evidence, the court granted judgment for the defendant on the complaint and judgment for plaintiffs on the counterclaim. It is from this judgment plaintiffs appeal, citing one assignment of error. -4- Plaintiffs' sole assignment of error follows: THE JUDGMENT OF THE TRIAL COURT IS IMPROPER AS A MATTER OF LAW BECAUSE IT IS BOTH INCOMPLETE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Plaintiffs argue that since the trial court did not address the issue of damages owed to the respective parties, the judgment is not clear and certain. Plaintiffs also contend none of the matters at issue in the trial were determined. These arguments are not persuasive. The court's order in the case sub judice clearly states the following: "Judgment for Defendant on the Complaint; Judgment for Plaintiff on the Counterclaim." In plain language, plaintiffs lost on their complaint and defendant lost on his counterclaim - neither party prevailed. The judgment could not be clearer. Plaintiffs' cause of action against defendant was that of fraud and misrepresentation. The relevant paragraphs of the complaint state as follows: 2. On or about December 12, 1986, and while Plaintiffs were so seized of this property Defendant by fraud and misrepresentation as hereinafter alleged, induced the Plaintiffs to sign a Quit Claim Deed to Deft. to the premises. 3. Defendant represented to Plaintiffs that he would not file the deed until he had executed a mortgage deed to plaintiffs in the amount of $13,503.90. 4. By reason of the foresaid and believing the representations to be true, plaintiffs relied upon the defendant and signed the Quit Claim Deed. 5. Defendant wrongfully filed the Quit Claim Deed. (Emphasis added.) -5- Thus, the five elements necessary to allege fraud as the basis for their action were asserted in plaintiffs' complaint, viz., (1) a false representation; (2) knowledge by the person making the representation that it is false; (3) the intent by the person making the representation to induce the other to rely on that representation; (4) rightful reliance by the other to his detriment; (5) an injury as a result of the reliance. (Citations omitted.) Korodi v. Minot (1987), 40 Ohio App. 3d 1; F. & J. Roofing Co. v. McGinley & Sons, Inc. (1987), 35 Ohio App. 3d 16. Furthermore, In an action for fraudulent misrepresentation, the complaining party must affirmatively show that there were made to him actual or implied representations of a matter of fact which related to the present or past and which were material to the transaction; that the representations were false; that the representations were made with knowledge of their falsity, or with such utter disregard and recklessness as to whether they were true or false that knowledge might be inferred; that such representations were made with the intent of misleading such other party into relying upon them; that such party was ignorant of the fact covered by the representations and relied upon them with a right to so rely; and that injury resulted as a consequence of such reliance. Block v. Block (1956), 165 Ohio St. 365. Eckfield v. Bury (Sep. 11, 1980), Cuyahoga App. No. 41564, unreported. Plaintiffs therefore had the burden of proving by a pre- ponderance of the evidence that (1) defendant told plaintiffs in 1986 he would execute and file a mortgage deed and sign a promissory note if they would deed the property to him in order -6- for him to obtain financing to build a home on it; (2) defendant knew he would not sign or file the promissory note or build a home on the property; but (3) defendant told plaintiffs these things with the intent of misleading them in order to have the property deeded to him; (4) plaintiffs were ignorant of defen- dant's true purpose but with a right to do so they relied upon his representations; and (5) plaintiffs were thereby injured. It is well settled that there is a presumption that the findings of the trier of fact are correct. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77. Moreover, "[j]udgments supported by some competent, credible evidence *** will not be reversed by a reviewing court as being against the manifest weight of the evidence." C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279. Nor should an appellate court substitute its judgment for the trial court when the trial court's judgment is corroborated by the evidence. Seasons Coal, supra. The trial court in the case sub judice clearly found for the defendant on the complaint. While neither party requested separate findings of fact and conclusions of law pursuant to Civ. R. 52, nothing in the record suggests the trial court did not consider all the issues. Good v. Good (Apr. 16, 1987), Cuyahoga App. No. 52957, unreported. It is within the prerogative of the trier of fact, in this case the trial court, to determine whether plaintiffs proved their case by a preponderance of the evidence based upon the sufficiency of the -7- evidence, the credibility of the witnesses and the weight of the evidence. Furthermore, a review of the evidence herein supports the trial court's finding since plaintiffs did not meet their burden to prove by a preponderance of the evidence their claims of fraud and misrepresentation. Plaintiffs introduced no evidence of a mortgage deed or promissory note given by defendant in 1986. The record shows instead plaintiffs executed the last quitclaim deed to defendant in 1984. There was no evidence of any subsequent recording. Nor did the testimony adduced at trial establish defendant knew of any mortgage deed or promissory note. Further, defendant started to build a home on the property, so there was no evidence of an intent to mislead plaintiffs. Moreover, plaintiffs failed to establish they rightfully relied on any misrepresentations. There were three conveyances of the property from plaintiffs to defendant and back again in the time span of less than two years. Mr. Wheatt and defendant had known each other for years, had been involved in business together, and had a close personal relationship. The parties obviously knew each other very well. On these facts, the trial court could properly find for the defendant on the complaint. It is axiomatic that if plaintiffs failed to prove defendant's fraud and misrepresentation with regard to the property by a preponderance of the evidence, there is no question of damages for the trial court to determine. Furthermore, in finding for the plaintiffs on defendant's counterclaim, the trial court clearly determined defendant did -8- not meet his burden of proof by a preponderance of the evidence that he was not compensated for work and services rendered to plaintiffs. This court finds nothing concerning the judgment of the trial court that is incomplete or uncertain. Nor is the judgment against the manifest weight of the evidence. Seasons Coal, supra. Accordingly, plaintiffs' sole assignment of error is overruled. Judgment affirmed. -9- It is ordered that appellee recover of appellants his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rule of Appellate Procedure. FRANCIS E. SWEENEY, J., and PATRICIA A. BLACKMON, J., CONCUR ________________________________ CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .