COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60045 KAREN WEISENSEEL : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION DAVID LEAVER, ET AL. : : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: MAY 28, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 175093 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: TERRY JENNRICH RUDOLPH J. GERACI Geraci & LaPerna Co., L.P.A. 2191 East 19th Street Cleveland, Ohio 44115 For Defendant-Appellees: EDWARD J. HEBEN, JR. 977 Statler Office Tower 1127 Euclid Avenue Cleveland, Ohio 44115 - 2 - KRUPANSKY, J.: Plaintiff-appellant Karen Weisenseel appeals from a trial court judgment denying recovery of damages for defendants- appellants David and Peggy Leaver's breach of an agreement to purchase plaintiff's former residence in North Olmsted, Ohio. Plaintiff filed a complaint with jury demand alleging defendants breached their agreement to purchase the residence for $78,500.00 by refusing to close the transaction. The parties entered into the transaction without the services of a real estate agent and executed a purchase agreement drafted by defendants April 3, 1989. Defendants tendered $1,000 in earnest money and an additional $29,500 in escrow and agreed to pay the remaining balance of $48,000 at the closing scheduled for May 27, 1990 pursuant to the agreement. According to defendants the property subsequently allegedly sustained water damage and defendants delivered a letter to the escrow agent the day before the scheduled closing cancelling the agreement. Plaintiff then listed the property with a real estate agent and ultimately sold the property to another buyer for $80,000 or $1,500 more than defendants agreed to pay approximately two months thereafter. Plaintiff filed a motion for summary judgment with a series of supplemental briefs, affidavits and supporting documents seeking various damages allegedly resulting from defendants' breach. Plaintiff sought to recover the following damages: (1) additional closing costs incurred in the second - 3 - transaction; (2) expenses to return to Cleveland from Sarasota, Florida, where she moved and rented an apartment after entering into the agreement with defendants; (3) costs relating to maintaining the North Olmsted residence, her Sarasota apartment and storage space until the final sale; (4) lost wages while she remained in Cleveland until reselling the North Olmsted residence; and (5) attorney fees. Defendants argued they did not breach the purchased agreement and that plaintiff failed to demonstrate any resulting damages. The trial court granted summary judgment in favor of plaintiff on the issue of liability and scheduled a hearing on damages in the following journal entry: Plaintiff's motion for summary judgment is granted. Motion filed 12/20/89. Damages hearing set for 3/1/90 at 3:30 p.m. The trial court evidently believed there was a genuine issue of fact relating to damages and, therefore, set the hearing permitted by Civ. R. 56(C) which reads in pertinent part as follows: A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. The record demonstrates the trial court conducted the damages hearing March 1, 1990 after the parties filed "trial briefs" although no transcript of these proceedings appears in the record. The trial court subsequently entered the following journal entry declining to award plaintiff any damages: - 4 - The house in question was subsequently sold for $1,500.00 more than the contract price set out in the case at bar. The additional money received precludes this court from granting damages as to the breach itself. The other damages claimed by plaintiff are denied because the duration and extent of such expenses are speculative and to grant them could lead to harsh results. There are no damages which can be allowed in this case. Final. Plaintiff timely appeals from this order raising two assignments of error. Defendants did not cross-appeal from the trial court's order granting summary judgment on the liability issue; therefore, the issue that defendant's breached the contract is uncontroverted. Plaintiff's two assignments of error challenge the trial court's failure to award damages as follows: I. THE FINAL ORDER OF THE TRIAL COURT DOCKETED ON JUNE 4, 1990 DENYING PLAINTIFF-APPELLANT ANY DAMAGES AT ALL FOR THE DEFENDANTS-APPELLEES['] BREACH OF THE CONTRACT WAS ERRONEOUS AS A MATTER OF LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. THE TRIAL COURT[']S FAILURE TO AWARD DAMAGES INCLUDING CONSEQUENTIAL DAMAGES UNDER EITHER A DETRIMENTAL RELIANCE THEORY OF LIABILITY OR UNDER A SIMPLY WRONGFUL RESCISSION-BREACH OF CONTRACT THEORY OF LIABILITY WAS ERRONEOUS AS A MATTER OF LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Plaintiff argues the trial court improperly refused to award any damages for the expenses described above resulting from defendants' breach of the purchase agreement. Defendants argue that plaintiff suffered no damages as a matter of law since - 5 - plaintiff resold the property to another purchaser for $1,500 more than the price in the parties' original purchase agreement two months after the breach. However, we are unable to address the parties respective arguments since plaintiff has failed to produce a transcript of the damages hearing or an App. R. 9(C) statement of the evidence presented at the hearing if no transcript was made. As a result, this Court must presume regularity and affirm the judgment of the trial court. Knapp v. Edwards Laboratories (1980), 61 Ohio St. 2d 197, 199; Volodkevich v. Volodkevich (1989), 48 Ohio App. 3d 313, 314. Accordingly, plaintiff's two assignments of error are overruled. Judgment affirmed. - 6 - It is ordered that appellee(s) recover of appellant(s) 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 Rules of Appellate Procedure. SPELLACY, P.J., and HARPER, J., CONCUR JUDGE 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .