COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71320 PATRICIA A. CORCORAN, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION LAURIE ANN BRODEK, EXECUTRIX OF : THE ESTATE OF VICTORIA M. LINDIC : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION MAY 15, 1997 CHARACTER OF PROCEEDING Appeal from Court of Common Pleas Probate Division Case No. 1127692 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: ROBERT M. DUNN, ESQ. EDWARD M. HEINDEL, ESQ. MICHAEL P. McGUIRE, ESQ. 800 Standard Building 3130 Mayfield Road 1370 Ontario Street Suite GW105 Cleveland, Ohio 44113 Cleveland Hts., OH 44118-1754 - 2 - JAMES M. PORTER, P.J., Plaintiffs-appellants Patricia Corcoran and Peter Lindic, III appeal from the Probate Court's denial of a purchase money resulting trust in plaintiffs' declaratory judgment action against defendant-appellee Laurie Ann Brodek, Executrix of the Estate of Victoria M. Lindic, Deceased. Plaintiffs contend that the dismissal of their claim was against the manifest weight of the evidence. We find no error and affirm. Plaintiffs contend that at various times during the years between 1943 and 1953 their grandfather, Peter J. Lindic, Sr. purchased U.S. Savings Bonds as presents for his grandchildren on special occasions like birthdays and holidays. Since the grandchildren were minors, the bonds were purchased in the joint names of the child and their father, Peter J. Lindic, Jr., with the beneficial interest in the child. Plaintiffs claim that in the summer of 1954 their father, as custodian of the bonds, cashed them in and used the proceeds to purchase a parcel of land in Highland Heights. Peter Lindic, Jr. took title in his own name and in that of his wife. Plaintiffs contend that this acquisition amounted to a purchase money resulting trust for the children as beneficiaries. Peter Lindic, Jr. died on June 24, 1983, and the title to the property was transferred to Victoria Lindic, his surviving wife and the mother of plaintiffs Patricia and Peter, III. In early May 1994, it came to plaintiffs' attention that a transaction was in progress whereby their mother, Victoria Lindic, - 3 - proposed to transfer the property to the City of Highland Heights. After unsuccessful attempts by plaintiffs to have their rights recognized by their mother, and eventually her estate, they brought a declaratory judgment action to establish a resulting trust in their favor. Originally, the action was brought in the Common Pleas Court. However, that action was voluntarily dismissed and the plaintiffs refiled the complaint in Probate Court. The matter was tried to the Probate Court without a jury. Plaintiffs offered evidence that at all times during their childhood and thereafter they were told that the property had been purchased with their money and that it would be kept in the family for their benefit. Their father also told other individuals the same thing, that the property in question had been purchased with the childrens' money and that he was holding it in trust for them. Since there was never any reason to believe otherwise, Patricia and Peter, III were content to leave the issue unquestioned and trust their parents. Following the presentation of plaintiffs' evidence, the trial court involuntarily dismissed the plaintiffs' claims pursuant to Civ.R. 41(B)(2) and entered the following Journal Entry on August 28, 1996: The Court finds that the Plaintiffs have failed to prove by clear and convincing evidence the number, denomination and total value of the bonds that were allegedly used to purchase the subject matter property. The Court further finds that the Plaintiffs have failed to prove by clear and convincing - 4 - evidence the ownership of the bonds that were alleged to be sold to purchase the property for the reason that the bonds were held in the joint names of Peter Lindic Jr. and some of his children. The Court further finds that Plaintiffs have failed to prove by clear and convincing evidence that the proceeds from the sale of the bonds, if the bonds were sold, were used to purchase the property. Therefore, the Court finds that the Plaintiffs have failed to prove by clear and convincing evidence a purchase money resulting trust. It is therefore ORDERED that the real property located in the City of Highland Heights, permanent Parcel Number 822-15-031 is not held in a purchase money resulting trust for the benefit of Patricia A. Corcoran and Peter J. Lindic, III. Plaintiffs' sole assignment of error states as follows: I. THAT THE PLAINTIFF-APPELLANTS PRESENTED SUFFICIENT EVIDENCE UNDER THE STANDARDS OF A CIVIL RULE 41(B)(2) MOTION FOR INVOLUNTARY DISMISSAL AND THE GRANTING OF THE MOTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The standard to be applied in reviewing a Civ.R. 41(B)(2) dismissal was set forth in Johnson v. Tansky Sawmill Toyota, Inc. (1994), 95 Ohio App.3d 164, 167 as follows: In a trial to a court without a jury, a motion for judgment by a defendant at the close of plaintiff's case is one for dismissal, pursuant to Civ.R. 41(B)(2) and not for a directed verdict, pursuant to Civ.R. 50(A)(4). The distinction is critical because there are two different tests to be utilized by the court. Pursuant to Civ.R. 41(B)(2), the trial court is the trier of fact and is to weigh the evidence. A dismissal pursuant to Civ.R. 41(B)(2) will not be set aside unless it is - 5 - incorrect as a matter of law or is against the manifest weight of the evidence. A resulting trust is defined by the Ohio Supreme Court in First National Bank of Cincinnati v. Tenney (1956), 165 Ohio St. 513, 515-516 as: one which the court of equity declares to exist where the legal estate and property is transferred or acquired by one under facts and circumstances which indicate that the beneficial interest is not intended to be enjoyed by the holder of the legal title. The device has historically been applied to three situations: (1) purchase money resulting trusts; (2) instances where an expressed trust does not exhaust the res given to the trustee; (3) expressed trust which fail in whole or in part. See, also, Cayten v. Cayten (1995), 103 Ohio App.3d 354, 359; Glick v. Dolin (1992), 80 Ohio App.3d 592, 597; Bivolocki v. Marimbarga (1979), 62 Ohio App.2d 169, 172; John Deere Indus. Equip. v. Gentile (1983), 9 Ohio App.3d 251, 254. The key to whether a resulting trust exists is the intention of the parties. At trial, plaintiff Patricia Corcoran admitted that there were no copies of any bonds or evidence of their denominations; that there were no bank records indicating that the bonds were cashed; that there were no title records indicating the purchase price; or records that the funds from the bonds were used to purchase the property. (Tr. 36-37). Plaintiffs' witnesses at trial corroborated that they had no records to establish the foregoing. A review of the transcript also reveals that the parties did not recall the exact amount of the bonds that they received on each - 6 - occasion, but only that on some occasions they did receive bonds in amounts ranging from $25.00 to $100.00. The receipt of these bonds occurred early in their childhood, prior to age seven and ten. There was no evidence presented that Grandfather Lindic intended to create a trust for the benefit of the plaintiffs. There was no evidence of savings bonds held in trust and there was no notation on any of the three deeds involving the Highland Heights property that it was being held in trust. As the trial court found, the burden of proof to establish a purchase money resulting trust is clear and convincing evidence. See 91 O. Jur.3d Trusts, Sec. 203 (1989); Gertz v. Doria (1989), 63 Ohio App.3d 235, 237; Bivolocki, supra at 173. Under Civ.R. 41(B)(2), the trial court determined that the plaintiffs had failed to meet a standard of clear and convincing evidence. We agree. Even if we believed that the bonds were used to purchase the property, this lack of specific evidence of how much the property was worth and how much was bought through the funding of the bonds prevents the finding of a purchase money resulting trust. As this Court in Glick, supra at 597, citing Restatement of Law 2d, Trusts, supra, at section 454, held: "Where a transfer of property is made to one person and a part of the purchase price is paid by another, a resulting trust arises in favor of the person by whom such payment is made in such proportion as the part paid by him bears to the total purchase price, unless he manifests an intention that no resulting trust should arise or that a resulting trust to that extent should not arise." - 7 - Thus, the equitable owner has an interest in such proportion as the amount he paid bears to the total purchase price. Without specific evidence of the total amount of the bonds and what the purchase price of the property was, we cannot determine that a resulting trust exists. We find no error of law and, upon a review of the entire transcript, cannot find that the trial court's judgment is against the manifest weight of the evidence. Plaintiffs' sole assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellants 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 Court of Common Pleas, Probate Court Division, 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. DYKE, J., and NAHRA, J., CONCUR. JAMES M. PORTER 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 .