COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68779 : NEPHRIS B. CHAMBLISS, ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION DYAN KENNEDY : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 29, 1996 CHARACTER OF PROCEEDING: Civil appeal from Garfield Heights Municipal Court Case No. 94 CVF 00351 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: DANIEL S. WHITE, ESQ. DOUGLAS H. GLENN, ESQ. MICHAEL A. SHORE CO., L.P.A. 4403 St. Clair Avenue 23200 Chagrin Boulevard Cleveland, Ohio 44103 Beachwood, Ohio 44122 - 2 - KARPINSKI, J.: This appeal arises from a dispute involving the sale of residential property. The buyers, plaintiffs-appellants Nephris and Desiree Chambliss, appeal from the trial court's judgment on a jury verdict for the seller, defendant-appellee Dyan Kennedy, and denial of their post-trial motion for judgment notwithstanding the verdict or for new trial. The Chamblisses filed their complaint against Kennedy on March 30, 1994, in the Garfield Heights Municipal Court. The complaint alleged Kennedy breached the purchase agreement and defrauded them in connection with the February 18, 1993, sale of the residence. The Chamblisses complained that the basement of the residence contained latent defects, which they discovered after purchase when the basement leaked. Kennedy denied the substantive allegations of the complaint, and the matter proceeded to a jury trial commencing January 23, 1995. The Chamblisses presented testimony from themselves, basement waterproofer James Hall, and real estate agent Bryan Hawkins. The evidence revealed that the Chamblisses purchased the residence "as is" after inspecting the property with their real estate agent on two occasions. The purchase agreement revealed that water problems existed in the basement until repairs were made in 1982. The Chamblisses did not obtain any inspection of the residence by an independent inspector. - 3 - Kennedy presented testimony from Garfield Heights housing inspectors Toni Jones and Walter Ballister, contractor Joseph Carey, and Kennedy. The defense testimony revealed that the basement had been repaired and that Kennedy did not conceal the condition of the basement. The trial court entered judgment on a unanimous general jury verdict in favor of Kennedy. The Chamblisses thereafter filed a post-trial motion for judgment notwithstanding the verdict or for new trial. In an order journalized February 24, 1995, the trial court denied the Chamblisses' post-trial motion. The trial court settled and approved an App.R. 9(C) statement of the proceedings during the course of the appeal because no verbatim transcript of the trial was made. The Chamblisses timely appeal and raise, but do not separately brief or argue, the following two related assignments of error: THE JURY'S VERDICT IN FAVOR OF THE DEFENDANT-APPELLEE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE TRIAL COURT'S DECISION TO DENY THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND/OR MOTION FOR NEW TRIAL FILED BY THE PLAINTIFFS-APPELLANTS CONSTITUTES REVERSIBLE ERROR. These two assignments of error lack merit. The Chamblisses contend that the jury verdict for Kennedy was against the manifest weight of the evidence and that the trial court improperly denied their post-trial motion for judgment notwithstanding the verdict or for new trial. The - 4 - Chamblisses generally argue the testimony of their waterproofing expert was uncontradicted and warranted judgment in their favor. Although not clearly articulated, these assignments of error raise two distinct issues concerning the sufficiency and the manifest weight of the evidence to support the jury verdict. The Chamblisses' motion for judgment notwithstanding the verdict involves the sufficiency of the evidence. It is well established that motions for judgment notwithstanding the verdict should be denied when the prevailing party presented substantial evidence to permit reasonable minds to find in its favor at trial. When making this determination, the court must view the evidence in the light most favorable to the non-moving party and may not consider the weight of the evidence or credibility of the witnesses. Osler v. Lorain (1986), 28 Ohio St.3d 345, 347. The record demonstrates, contrary to the Chamblisses' argument, that Kennedy presented evidence she adequately disclosed, and did not conceal, the condition of the basement. When viewed in the light most favorable to Kennedy, this testimony was sufficient to permit reasonable minds to conclude that she did not breach the contract or commit fraud. As a result, the trial court properly submitted these disputed issues to the jury and properly overruled the Chamblisses' post-trial motion for judgment notwithstanding the verdict. The Chamblisses' principal contention is that the jury verdict in favor of Kennedy is against the manifest weight of the evidence. This argument, unlike the determination on a motion - 5 - for judgment notwithstanding the verdict, involves weighing the evidence and evaluating the credibility of the witnesses. However, it is well established that judgments supported by some competent credible evidence will not be reversed on appeal as being against the manifest weight of the evidence. Myers v. Garson (1993), 66 Ohio St.3d 610, 614; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80; C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, 280-281. As noted above, the record demonstrates that the parties presented sharply conflicting testimony to support their respective theories of the case. Kennedy presented testimony from two municipal housing inspectors and a general contractor concerning the condition of the basement. Inspector Jones inspected the basement on two occasions and did not observe evidence of water damage or fresh paint. The Chamblisses presented testimony supporting their claims from basement waterproofing expert James Hall, who indicated that water problems in the basement were longstanding. The Chamblisses argue that their basement waterproofer had more expertise and did a more thorough inspection than the municipal housing inspectors and general contractor presented by Kennedy. Our review of the jury verdict is particularly difficult in this case because the record contains only an App.R. 9(C) statement of the evidence and there is no verbatim transcript of the trial. We note, moreover, that the jury and trial judge had a superior opportunity to observe the witnesses and their - 6 - demeanor when resolving the conflicts in the testimony. Under the circumstances, the record does not show that the jury lost its way or created a manifest miscarriage of justice when reaching its verdict, or that the trial court erred or abused its discretion by denying the Chamblisses' motion for new trial. Accordingly, the Chamblisses' two assignments of error are overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant her 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 Garfield Heights Municipal 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. PATTON, C.J., and NAHRA, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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 .