COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60343 MARIA MATRAY : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION SUFFOLK METALS & REFINING : CO., INC., ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 106787 JUDGMENT: Affirmed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: NICHOLAS M. DEVITO, ESQ. SANFORD I. ATKIN, ESQ. 1050 Leader Building 1000 Terminal Tower Cleveland, Ohio 44114 Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant's complaint alleged that the appellees had fraudulently induced her to invest in a business with them and that she lost approximately $260,000 in reliance on their misrepresentations. Appellant's second count in the complaint alleged that the appellees owed her an accounting due to their fraudulent acts. Appellant appeals from the trial court's grant of appellees' motion for a directed verdict on both counts. Appellant and her now deceased husband entered into a business arrangement with their neighbors, the appellees, in February of 1983. The appellees had had some experience in the buying and selling of precious metals from prior employment. The appellees approached the appellant and her husband with the proposal that the appellees would run the business buying used X- ray film and selling the removed silver if the appellant and her husband would provide the initial financing. Appellant and her husband had come to the United States in the 1950's from Hungary, after the Revolution. They began with little and became quite successful in real estate. Appellant's husband had even had prior business dealings with the appellees which had turned out to be profitable. At the time of appellees' business proposition which is the basis of this suit, appellant's husband was suffering from a heart condition which left him incapable of managing a business. At the time appellant and her husband had no source of income. Appellees told appellant that - 2 - they had experience in the precious metals business and that, with some financial backing, both families could make a comfortable living at this new venture. Appellant asserts that in February of 1983 she made the initial investment of $90,000 based upon these representations. In June of that same year, appellant testified that appellees came to her and stated that they required more investment to keep the company profitable. Appellant and her husband took out a second mortgage on their house and made investments into the business over the next year totaling $190,000. Testimony was presented that appellant did receive some payments from the company on this second "loan." Appellant and the appellees had each taken a weekly draw on the company of $700, before taxes. No evidence was presented as to how many weeks the draws were taken. When the appellees came to appellant again for more money, she could not advance any more and the business subsequently shut down within a year and a half of operation. Appellant recovered $30,000 after the sale of the company assets. Appellant asserts two assignments of error. I THE TRIAL COURT ERRED IN DIRECTING THE VERDICT WHEN A QUESTION OF FACT CLEARLY EXISTED ON THE ISSUE OF FRAUD. The trial court granted appellees' motion for a directed verdict under Civ. Rule 50(A)(4), which states: - 3 - When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as a matter of law. The court below did not abuse its discretion in granting appellees' motion for a directed verdict. Upon the presentation of all of appellant's evidence, she failed to present any proof as to the essential elements of fraud: (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. Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St. 3d 69, 73, quoting Cohen v. Lamko, Inc. (1984), 10 Ohio St. 3d 167, 169. Appellant complains that she relied on the appellees' representations that they had experience in the precious metals business and that all parties to the venture would be able to make a comfortable living. Appellant testified that she has had - 4 - to sell her home and has lost $260,000 due to her reliance on these representations. Appellant can not rely on appellees' opinion that the business will be profitable as a representation of a fact, as required under the first element of fraud. Nor did appellant offer any evidence that appellees actually had no experience in the precious metals field. Appellant did not have any evidence that the appellees intentionally made any false representations at all. Each of the elements of fraud must be proven for the trial court to deny a motion for a directed verdict against the appellant. Reasonable minds could have come but to one conclusion and that was adverse to the appellant. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED IN DIRECTING A VERDICT WHEN A CLEAR AND UNEQUIVOCAL ISSUE OF FACT EXISTED CONCERNING THE PLAINTIFF'S RIGHT TO AN ACCOUNTING IN THIS CASE. Appellant alleged in her complaint that due to the appellees' fraudulent conduct she was entitled to an accounting. The court correctly ruled against appellant's first allegation that there was any fraudulent conduct on the part of appellees. In addition, appellant testified that after the company folded, the appellees brought all the assets to her and her husband. The trial court found as a factual matter that appellant was in possession of the records which would form the basis of an accounting (trans p. 253). - 5 - The business venture does not fit the definition of a corporation as it is referred to in the complaint, either statutory or de facto. However, appellant would have been entitled to an accounting upon dissolution of the partnership under the statutory partnership rules. R.C. 1775.42. Nevertheless, appellees can hardly have been responsible for making an accounting when all the records were in appellant's possession and under her control. Appellant's second assignment of error is overruled. The trial court's grant of appellees' motion for a directed verdict is affirmed. - 6 - It is ordered that appellees recover of appellant its 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. FRANCIS E. SWEENEY, J., AND J.D. SWEENEY, J., CONCUR PRESIDING JUDGE ANN DYKE 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. .