COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71211 CATHERINE D. WOOD, ET AL.: JOURNAL ENTRY : AND Plaintiffs-appellants: OPINION : -vs- : : JOSEPH MORRISH, ET AL. : : Defendants-appellees: DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 9, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CV-290749 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: PATRICK DICHERO, ESQ. MURRAY D. BILFIELD, ESQ. 6000 Lombardo Center, Suite 120 BILFIELD & SANDEL Seven Hills, Ohio 44131 1301 East Ninth Street Suite 1000 Cleveland, Ohio 44114 DYKE, J.: Plaintiffs Catherine Wood and Patricia C. Woodrick appeal from the judgment of the trial court entered in favor of defendants 2 Joseph and Eleanor Morrish in plaintiffs' action for recission of a real estate conveyance and other relief. For the reasons set forth below, we reverse and remand for further proceedings. On June 9, 1995, Plaintiff Catherine Wood filed this action against Joseph and Eleanor Morrish, her brother and sister-in-law, alleging that they fraudulently caused her to convey to them a life estate in property located at 6109 Dora Boulevard in Independence, Ohio. Plaintiff alleged that defendants breached an agreement to care for her in exchange for the right to live at the subject premises, converted personal property located at the premises, and committed waste on the premises. Plaintiff additionally alleged that she gave defendants $10,000, to be held jointly with plaintiff. According to plaintiff, this sum was to be used to pay the taxes upon the property, and that defendants converted this sum to their private use. Plaintiff prayed for recission of the conveyance and damages. Defendants denied liability and averred that plaintiff unconditionally gave them the property at issue. Plaintiff Patricia Woodrick, daughter of Catherine Wood, obtained a quit claim deed to the remainder of the property upon the expiration of the life estate deeded to defendants and was subsequently added as a party plaintiff. Joseph Morrish died shortly after the action was filed and the matter proceeded to a jury trial on August 2, 1996. Catherine Wood testified that the subject property had been the home of her late son, Sheridan, and that she acquired it upon 3 Sheridan's death. As Sheridan's last illness progressed, he offered the home to his nurse, John DeCorte, who had become a friend to Wood, on condition that DeCorte provide assistance to Wood. DeCorte declined Sheridan's offer since he and his wife had purchased a home only one month earlier. Following Sheridan's death in August 1994, she offered the home to the Morrishes, with the understanding that they would care for her and her property. Wood subsequently contacted attorney Greg Happ who drafted a life estate for the Morrishes. The Morrishes retained this document. Thereafter, they arrived unexpectedly at Wood's home with attorney Gerald Broski who had prepared a quit claim deed. Wood signed the document. She stated, however, that she was on various medications. She also stated that her granddaughter, Patricia A. Woodrick, is listed as a witness but did not observe Wood execute the deed. Wood also stated that she gave the Morrishes $10,600 to be used by the Morrishes for property taxes for Sheridan's home but they placed this money into their private bank account. The Morrishes moved into the home in October 1994. They took Wood shopping and to medical appointments and Mrs. Morrish cleaned her house. They did not provide for her personal care, however, and did not look after her yard. Mrs. Wood also testified that in December, after the transfer of the property, she was extremely depressed and called Eleanor Morrish, but Mrs. Morrish said that she had her own family to attend to. Wood also related an instance when Mr. Morrish refused her request for assistance. In addition, 4 Wood established that defendants failed to pay the taxes and water bill for the property, leaving these items for Wood to pay. The relationship deteriorated in April, 1995. Wood learned that the Morrishes placed Sheridan's electric stove in the garage and she asked them for it. Mr. Morrish refused to give it to Wood and told her to leave the premises and never come back. Mrs. Wood struck him across the face then commenced this lawsuit within the week. Wood acknowledged on cross-examination that she asked attorney Broski to prepare a will and living will for her following the execution of the life estate to the Morrishes and she paid him for these documents. Katherine Baumann, Catherine Wood's granddaughter, testified that Wood discussed her intended arrangement with the Morrishes after Sheridan's death. Baumann recommended that Wood speak with attorney Greg Happ. Upon learning that the transfer was completed, Baumann called Joseph Morrish to question what had occurred and he hung up on her. Baumann then obtained a written agreement to memorialize the duty of the Morrishes to care for Wood. The Morrishes refused to sign this document but assured her that they would provide such care. Baumann also testified that defendants had not properly cared for Wood or her home since they moved into Sheridan's home. Patricia A. Woodrick, plaintiff Patricia C. Woodrick's daughter and Wood's granddaughter, testified that in October, 1994, she had a discussion with Wood during which Wood explained various 5 intentions for her last will and testament and also contemplated having the Morrishes occupy the Dora Boulevard home and care for her. Thereafter, on October 10, 1995, there were lights on at Wood's home at a relatively late hour and Patricia called Wood to check on her. Wood asked Patricia to come to her home. At this time, the Morrishes were present with attorney Gerald Broski and they asked Patricia to witness a deed transferring the subject property to the Morrishes. Karen Calo, listed on the deed as a witness, was not present. Patricia expressed concerns and Broski assured her that the Morrishes would receive only a life estate and Eleanor Morrish assured her that she would care for Wood. Following execution of the quit claim deed, the Woodricks became upset with the manner in which the transaction was undertaken. Patricia telephoned the Morrishes and they again assured her that they would take care of Wood. John DeCorte testified that in December 1993, he was hired as Sheridan's nurse during his last illness. At this time, he met plaintiff and observed her to be in need of assistance and dependent upon Sheridan. After Sheridan's death, DeCorte checked on Wood daily, ran errands for her, and, for a short time, provided care for her as her health deteriorated. DeCorte further testified that Sheridan's house was offered to him, upon Sheridan's death, if he would agree to continue to care for Wood. He declined the offer and later learned from Joseph Morrish, that the Morrishes had agreed to provide care to Wood in exchange for the right to reside in Sheridan's home. 6 Wood's neighbor, Catherine Orahoske likewise testified that she heard the parties discuss that the Morrishes could live in Sheridan's house in exchange for caring for Wood. Attorney Gregory Happ testified that he was present at Mrs. Wood' home shortly after Sheridan's death. Mr. Morrish was also present at this meeting and the group discussed that Mr. and Mrs. Morrish would have Sheridan's house and care for Wood. Happ then suggested drafting a life estate to the Morrishes in order to reflect these intentions. The group had an additional meeting and Morrishes received drafts of various documents but Happ stated that the conditions for Wood's care should also be drafted into the document. Happ also testified that at the time the Morrishes obtained the draft documents Mrs. Wood did not fully understand what she was doing. He acknowledged on cross-examination, however, that 90-95% of his income is derived in connection with his representation of Wood's grandson, William Baumann, or companies which Baumann owns. Plaintiff Patricia C. Woodrick, Wood's daughter, testified that her relationship with her mother was strained in the past regarding estate planning matters and Sheridan's plan to tear down a barn which was partially situated on Woodrick's property. The matter concerning the barn eventually resulted in litigation. Woodrick maintained that at all times she acted in the best interests of her family, however, and she continued to watch over her mother even while the two were not on speaking terms. She further testified that she visited the Morrishes after they moved 7 into Sheridan's home and they indicated that they were going to take care of Wood. William Baumann, Wood's grandson, testified that he was present at a meeting between Wood and the Morrishes, during which the parties agreed that Wood would transfer to the Morrishes a life estate in Sheridan's home in exchange for their assistance providing for some of her needs. In a follow-up meeting, Baumann arranged for attorney Greg Happ to be present and it was further agreed that Happ would draft the necessary documents. Baumann additionally stated that, based upon the discussions which occurred in his presence, he understood that Mrs. Morrish was to provide meals and companionship for Wood and Mr. Morrish would look after Wood's property. Proceeding to defendants' case, Eleanor Morrish testified that prior to moving into the subject property in late 1994, she and her husband lived on Kimmel Road in Cleveland. They were involved in many activities and organizations in the community. In addition, they had extensively remodeled their home. The Dora Avenue home was roughly one-third the size and needed structural repairs. The couple was therefore reluctant to move. At the time the couple decided to move into the subject property, her husband was not in good physical health and could not perform household repairs. Also at this time, Mrs. Morrish occasionally cleaned house for Wood, took her to various errands, cared for her physical and grooming needs but she claimed that Wood did not request or appear to need any other assistance. 8 Mrs. Morrish further testified that prior to acquiring the subject property, Sheridan asked that they look out for his mother [;] [n]ot take care of her, but look out for her[.] (Tr. 468.) The Morrishes refused Sheridan's offer of the house, but Wood continued to offer it to them after Sheridan died. According to Mrs. Morrish, this offer was not extended in order to have them provide care to her but so that Wood would have family nearby. (Tr. 468). Eleanor Morrish further denied ever participating in any meeting concerning an agreement to provide care to Wood which involved attorney Gregory Happ and denied ever discussing such arrangement in the presence of Catherine Orahoske. According to Mrs. Morrish, Wood arranged for attorney Broski to come to her house and notified the Morrishes of the meeting. During this meeting, Broski explained that Wood wanted to give them a life estate in the property and he discussed the meaning of the transfer. Wood was mentally alert. Approximately one week later, there was a second meeting during which a deed was executed. Wood signed the deed in the presence of her granddaughter. Regarding the ten thousand dollars at issue, Mrs. Morrish testified that Wood explained that she was giving them a monetary gift from an insurance policy and that it was her wish and Sheridan's wish that they receive this money. Wood and the Morrishes went to the bank and Wood withdrew the funds, in the form of a check, gave the check to the teller, and explained that she wanted it to be put into an account in the Morrishes' name. 9 After moving into the house, the Morrishes continued to clean for Wood, handle her bills and run errands for her. Mrs. Morrish conceded that the relationship deteriorated after Mr. Morrish refused to give Wood a stove which was in the garage. Thereafter, Mrs. Morrish asked if Wood needed to be taken to a previously scheduled medical appointment and Wood stated that she would not need their services any longer and also stated that she would not speak to Mr. Morrish again. Mrs. Morrish acknowledged that Wood paid the property taxes on the home. Mrs. Morrish also admitted that after they moved in, her husband sent Wood a letter regarding gutter repair and this request references an agreement. Karen Calo testified that Wood repeatedly stated that she wanted to give her parents a life estate in order to have family nearby and there was no agreement that they would have to do anything in return. Attorney Gerald Broski testified that Karen Calo contacted him to consult with Wood. He then met with Wood at her home, with Calo and Mr. and Mrs. Morrish, in September, 1994. At this time, Wood showed Broski a deed giving the Morrishes a life estate in the property, which had been prepared by attorney Greg Happ. According to Broski, Wood understood the proceedings and expressed her intentions. There was no discussion regarding any agreement for the Morrishes to provide services or care to Wood in exchange for the life estate. Broski further testified that he prepared a quit claim deed 10 with a life estate for Wood. He returned to Wood's home in October 1994. Joseph and Eleanor Morrish were present. Patricia Woodrick arrived a short while later, then witnessed the deed after her grandmother signed it in her presence. Wood also explained her intentions for her last will and testament and Broski subsequently prepared this document. Wood executed her will in November 1994 and wrote a check to Broski at this time. Finally Migdalia Morrish and Joseph Morrish, the Morrishes' daughter-in-law and son testified that Mrs. Wood wanted defendants nearby simply to keep her company. The Morrishes had to be talked into accepting the life estate because they liked their Cleveland home and did not wish to move. These witnesses also stated that Mr. Morrish was not in good health at the time the couple agreed to accept Sheridan's home and was no longer performing household chores. They also stated that Wood told them that she gave them proceeds from an insurance policy and was pleased when they accepted this gift. The jury subsequently returned a verdict for defendants. Plaintiffs appeal herein, assigning three errors for our review. Plaintiffs' first assignment of error states: THE TRIAL COURT ERRED BY SUSTAINING APPELLEES' OBJECTION TO THE ADMISSION OF A STATEMENT MADE BY JOSEPH MORRISH, A DECEASED PARTY, WHERE THE STATEMENT CONTAINED RELATIVE, PROBATIVE EVIDENCE THAT WOULD CONTRADICT DEFENDANTS' DEFENSE AT TRIAL. Within this assignment of error, plaintiffs assert that the trial court erred in refusing to admit into evidence the letter 11 which Joseph Morrish sent to Wood regarding repairs on the subject property. Plaintiffs maintain that the letter is an admission by a party opponent and was therefore admissible pursuant to Evid. R. 804(A)(4). Defendants maintain that the letter was not properly introduced and that it does not clearly contain a statement against Joseph Morrish's interest. Defendants additionally argued at trial that introduction of the letter violated the parole evidence rule. As an initial matter, we note that the parol evidence rule will not bar a grantor's testimony concerning an alleged oral support agreement entered into by the grantees in exchange for the deed in the grantor's action to set aside the conveyance. See Trout v. Parker (1991), 72 Ohio App.3d 720, 725. The court stated: Ohio law has long provided that the parol evidence rule does not exclude oral testimony with respect to proof of consideration on a written instrument. Monnett v. Monnett (1888), 46 Ohio St. 30, 37, 17 N.E. 659, 663; Blosser v. Enderlin (1925), 113 Ohio St. 121, 133, 148 N.E. 393, 396. Furthermore, parol evidence has long been admissible to show the true consideration on a deed. Conklin v. Hancock (1903), 67 Ohio St. 455, 66 N.E. 518, at paragraph two of the syllabus; Ayres v. Cook (1942), 140 Ohio St. 281, 284, 23 O.O. 491, 493, 43 N.E.2d 287, 289-290. It, therefore, follows that parol evidence should be admissible to show that a consideration was intended as a evidence should be admissible to show that a consideration was intended as a quid pro quo for conveyance of the real property below. Of course, `consideration' for the conveyance need not, necessarily, be money or anything which is reducible to money value. See State, ex rel. Roettinger v. Cincinnati (1933), 31 Ohio N.P. (N.S.) 230, 236. Thus, as was the court in Dietz, supra, we are of the opinion that a promise to support and care for a grantor, in exchange for which real estate is transferred to such promisor, is a sufficient `consideration' under those principles of law previously set forth. Id., at 725. In addition, the parole evidence rule does not preclude the proffer of evidence of a contemporaneous oral 12 agreement which induced a party to enter into a written contract. Sparhawk v. Gorham (1957), 101 Ohio App. 362, 364. As to introduction of the letter at issue, we note that this issue is determined by application of Evid.R. 801(D)(2), not Evid.R. 804(B)(3), since the letter was prepared by a party opponent. That is, the declaration against interest exception to the hearsay rule under Evid. R. 804(B)(3) applies to statements of persons other that parties to the action. State v. Gatewood (1984), 15 Ohio App.3d 14, 16. The out of court statement of a party opponent in the action is an admission which is governed by Evid. R. 801(D)(2). Id. Evid. R. 801(D)(2) provides: (D) Statements which are not hearsay. A statement is not hearsay if: (2) Admission by a party-opponent. The statement is offered against a party and is (a) his own statement, in either his individual or a representative capacity, or (b) a statement of which he has manifested his adoption or belief in its truth. Thus, with regard to procedure, we note that the letter was properly introduced as it was offered against Mrs. Morrish, consistent with the mandate of Evid.R. 801(D)(2). She in turn manifested a belief in its truth and testified that her husband sent Wood a letter regarding the repair of gutters and also acknowledged her husband's signature on the letter. (Tr. 537) With regard to the substance of the letter, we note that it is undated and provides in relevant part as follows: This letter is to inform you that the front raingutters [sic] on the property located at 6109 Dora Blvd. have fallen off the house, and as per our agreement, I am notifying you so that you may take proper steps to repair or replace them. 13 Several other things in the house are in need of repair, but at this time constitute no emergency. However if you would have your agent contact us, we would be happy to assist in identifying them, so they can also be repaired. Thus, while the letter pertains to repairs at the subject premises, it is essential to consider that the estate at issue is a life estate. In this connection, we note that it is the life tenant, and not the remainderman, who must preserve the property during the life estate by undertaking repairs made necessary by normal wear and tear. See Reams v. Henley (1950), 88 Ohio App. 409, 410-414. Thus, the letter may clearly be interpreted as setting forth a position contrary to that advocated by defendants at trial. It was therefore material and relevant to the ultimate issue presented herein as it would tend to undermine the claim by the defense that Wood simply gave the Morrishes a life estate and that there were no additional agreements or consideration for the transfer. We therefore are compelled to conclude that the trial court committed reversible error in denying introduction of this document into evidence. Evid.R. 402. The first assignment of error is well-taken. Plaintiffs' second assignment of error states: THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE A COMPLAINT FILED BY APPELLANT, PATRICIA WOODRICK, AGAINST APPELLANT, CATHERINE WOOD, WHERE THE EVIDENCE WAS IRRELEVANT AND ITS PROBATIVE USE WAS OUTWEIGHED BY ITS PREJUDICE. Within this assignment of error, plaintiffs maintain that the trial court erred in allowing introduction of evidence concerning 14 Patricia C. Woodrick's previous lawsuit against her mother and Sheridan. The scope of cross-examination is set forth in Evid. R. 611(B) which provides in relevant part as follows: Cross-examination shall be permitted on all relevant matters and matters affecting credibility. The trial court is vested with discretion to determine matters which may be explored upon cross-examination. Fulwiler v. Schneider (1995), 104 Ohio App.3d 398, 409. We find no abuse of discretion herein. Preliminarily, the record does not reflect that plaintiffs objected to this testimony (Tr. 307), and indeed, Woodrick was questioned extensively by her own attorney in order to explain her prior estrangement from her mother. (Tr. 403-405). In addition, this was a proper subject for impeachment since Wood denied that such litigation occurred. (Tr. 307). The second assignment of error is overruled. Plaintiffs' third assignment of error states: THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY ON FRAUD WHERE THE INSTRUCTIONS WERE CONFUSING AND ADDED ONE ADDITIONAL ELEMENT THAT WAS NOT REQUIRED IN ORDER TO ESTABLISH FRAUD. Herein, plaintiffs note that fraud may be established upon the occurrence of either a false representation of fact or a knowing concealment of fact, material to the transaction, made falsely, with the intent of misleading another into relying upon it, justifiable reliance, and a resulting injury. See Burr v. Stark 15 County Board of Commissioners (1986), 23 Ohio St.3d 69, paragraph two of the syllabus. Plaintiffs complain that the trial court erred herein in instructing the jury that the elements of fraud included both the occurrence of a false representation of fact and a knowing concealment of fact, as well as the remaining elements of knowledge, intent, reliance and injury. (Tr. 807). In light of the fact that we have found plaintiff's first assignment of error to be well-taken and have reversed and remanded this matter on the merit of that assignment of error, this claim is moot and will not be addressed herein. App.R. 12(A)(1)(c). This court hereby reverses the judgment of the trial court and remands this matter for further proceedings consistent with this opinion. 16 This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. It is ordered that a special mandate be sent to said 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. O'DONNELL, J., AND PATTON, J., CONCUR. ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .