Goddard v. Goddard

• Decision Date: 07 February 2011
• Docket Number: No. 10CA3343.,10CA3343.
• Parties: GODDARD, Appellee,v.GODDARD; Goddard, Appellant.
• Court: Ohio Court of Appeals

192 Ohio App.3d 718

950 N.E.2d 567

2011 -Ohio- 680

GODDARD, Appellee,

v.GODDARD; Goddard, Appellant.

No. 10CA3343.

Court of Appeals of Ohio, Fourth District, Scioto County.

Decided Feb. 7, 2011.

Southeastern Ohio Legal Services and Tammy L. Greenwald, for appellee.

The Blume Law Firm, L.L.C., and T. Kevin Blume, for appellant.PER CURIAM.

[Ohio App.3d 721] {¶ 1} Defendant-appellant, Mike Goddard, appeals the trial court's decision that declared plaintiff-appellee, Alma Goddard, the legal owner of a piece of real estate. Appellant raises two arguments that he contends warrant a reversal of the trial court's decision. First, he asserts that the trial court deprived him of his right to a jury trial. Appellant did not file a timely answer in the action. Therefore, under Civ.R. 39(A), he waived his right to a jury trial. Moreover, appellant never objected to the lack of a jury trial and readily proceeded with a bench trial, presented evidence, and cross-examined witnesses. Under these circumstances, we conclude that appellant waived his right to a jury trial. Appellant next argues that the trial court's decision is against the weight of the evidence or contrary to law. Specifically, he contends that no evidence supports the trial court's decision that his brother, Carl Goddard, delivered a deed conveying the disputed property to appellee. The record contains some competent and credible evidence that Carl delivered the deed to appellee. Moreover, we may uphold the trial court's judgment on the alternate basis that the evidence fully supports the imposition of a constructive trust over the property in appellee's favor. Consequently, we overrule appellant's two assignments of error and affirm the trial court's judgment.

I

FACTS

{¶ 2} Appellee is the elderly mother of appellant and Carl. Before July 1, 2002, appellee and Carl jointly owned property located on Grace Street, in New Boston, Ohio. On July 1, 2002, appellee conveyed her interest in the property to Carl. In return, Carl agreed to care for his mother for the remainder of her life and to allow her to continue to reside in the home.

{¶ 3} In February 2007, Carl informed appellee that he had to move from the home because he is a sexually oriented offender and the Grace Street property sits less than 1,000 feet from a school. He advised appellee that he wished to convey the property to appellee, solely in her name. Appellee thus hired an attorney to prepare a quitclaim deed conveying the property from Carl to appellee. Carl executed the quitclaim deed and appellee gave him money to record it. Carl told appellee that he had recorded it. However, she later learned that Carl had never recorded the deed.

[Ohio App.3d 722] {¶ 4} In March 2007, appellee fell gravely ill and was hospitalized. While hospitalized, she requested another son, John, to retrieve some of her personal items from the Grace Street property. Carl refused to allow John into the home.

{¶ 5} In April 2007, appellee learned that Carl had listed the property for sale. Appellee later learned that Carl had transferred the home to appellant. On May 4, 2007, appellant filed a deed that purported to transfer the Grace Street property from Carl to appellant. Appellant moved into the home and has not permitted appellee access to the home.

{¶ 6} On May 16, 2007, appellee filed an amended complaint against Carl, Carl's wife, and appellant. She requested the court to declare that she either has a life estate in the property or that because the May 4, 2007 deed is invalid, she is the sole legal owner. She also asserted that Carl and his wife breached the agreement to care for her for the rest of her life and to allow her to live in the home. Appellee alleged that that the deed conveying her interest to Carl is therefore invalid due to a failure of consideration.

{¶ 7} Carl filed a pro se answer and a pro se motion to dismiss.

{¶ 8} On September 12, 2008, appellee filed a motion for default judgment against Carl's wife, which the court subsequently granted.

{¶ 9} On September 23, 2008, appellant entered an appearance in the action by filing a pro se “motion to dismiss default judgment” entered against him. However, the record does not contain any evidence that the court entered a default judgment against him.

{¶ 10} After a bench trial, the court declared appellee the sole legal owner of the Grace Street property. The court found that (1) Carl executed a valid deed transferring the Grace Street property to appellee but did not record it, (2) on April 10, 2007, appellee filed an affidavit of facts relating to title, putting any subsequent purchasers on notice that there was an issue regarding title, (3) appellant had actual and constructive notice of the unrecorded deed from Carl to appellee, (4) appellant did not pay Carl for the property, and (5) the May 4, 2007 deed is null and void. This appeal followed.

II

ASSIGNMENTS OF ERROR

{¶ 11} Appellant raises the following assignments of error:

First Assignment of Error:

The Trial Court erred in holding a Trial to the Court and not conducting a Jury Trial.

Second Assignment of Error:

[Ohio App.3d 723] The Judgment of the Trial Court is contrary to Law in that there was no evidence to establish that the deed from Carl Willard Goddard to Alma Goddard was ever delivered to the Grantee.

III

JURY TRIAL

{¶ 12} In his first assignment of error, appellant argues that the trial court violated his right to a jury trial. We disagree with appellant.

{¶ 13} Civ.R. 38(B) states: “Any party may demand a trial by jury on any issue triable of right by a jury by serving upon the other parties a demand therefor at any time after the commencement of the action and not later than fourteen days after the service of the last pleading directed to such issue. Such demand shall be in writing and may be indorsed upon a pleading of the party.”

{¶ 14} Once a party properly demands a jury, the demand may not be withdrawn “without the consent of the parties.” Civ.R. 38(D). “Ohio case law is clear that once any party makes a proper jury demand, the demand applies to the entire action and all parties, regardless of which party made the demand, and can be waived only as provided by Civ.R. 39(A).” Jovanovski v. Kotefski, Lorain App. Nos. 07CA009203 and 07CA009223, 2008-Ohio-4773, 2008 WL 4292748, at ¶ 14; see also West v. Scott (Dec. 6, 2001), Mahoning App. No. 01CA24, 2001 WL 1568880 (stating that “any one party can demand a jury, but all parties to the lawsuit must consent to the withdrawal of the demand” and that the rules do “not specify that consent is only needed from the parties who demanded a jury trial”).

{¶ 15} Further, once a party properly demands a jury, Civ.R. 39(A) sets forth “the only ways to waive [a jury].” Soler v. Evans, St. Clair & Kelsey (2002), 94 Ohio St.3d 432, 438, 763 N.E.2d 1169. Civ.R. 39(A) sets forth the three situations in which the Civ.R. 38 right to a jury will not apply. First, the right will not apply when “the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury.” Civ.R. 39(A). Second, the right will not apply when “the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist.” Id. Third, the right will not apply when “a party or his attorney of record either [fails] to answer or appear for trial.” Id.

{¶ 16} In Huffer v. Cicero (1995), 107 Ohio App.3d 65, 72, 667 N.E.2d 1031, we applied Civ.R. 39(A) and concluded that a litigant's failure to file a timely answer constitutes a waiver of a jury trial. In Huffer, the plaintiff had properly demanded a jury, but the defendant had not. Instead, the defendant filed an [Ohio App.3d 724] untimely answer in which he demanded a jury. The plaintiff subsequently requested to withdraw his jury demand and to proceed to a bench trial. The defendant objected, but the court nonetheless permitted the plaintiff to withdraw his jury demand.

{¶ 17} On appeal, we rejected the defendant's assertion that the trial court erred by failing to hold a jury trial. We explained:

We agree that generally when one party has requested a trial by jury, a trial by jury must be granted unless both parties consent to try the action before the court. See Civ.R. 38(D); Civ.R. 39(A) and Commentary. However, Civ.R. 39(A) also states in part that: “The failure of a party or his attorney of record either to answer or appear for trial constitutes a waiver of trial by jury by such party and authorizes submission of all issues to the court.”

In this case, [the defendant] failed to file a timely answer to the complaint. Further, when [the defendant] finally did submit an answer over six months later, [the defendant] failed to first obtain leave of court and make a showing of “excusable neglect” as mandated by Civ.R. 6(B). See Civ.R. 6(B)(2); Miller v. Lint (1980), 62 Ohio St.2d 209, 16 O.O.3d 244, 404 N.E.2d 752; McDonald v. Berry (1992), 84 Ohio App.3d 6, 616 N.E.2d 248. Because [the defendant] never filed a valid answer in this case, the trial court correctly found that [the defendant] waived his right to a jury trial under Civ.R. 39(A). As a result, we overrule [the defendant]'s first cross-assignment of error.

Id. at 72.

{¶ 18} The same analysis applies in the case at bar. Appellee demanded a jury trial. Appellant never filed a proper answer. Even if we construed his pro se “motion to dismiss” as an answer, it was untimely. Thus, because appellant did not file a timely answer in the action, he waived his right to a jury trial under Civ.R. 39(A).¹

[Ohio App.3d 725] {¶ 19} Additionally, appellant never once objected to the trial court proceeding without a jury. Several courts have held that a party may not stand idly by while the court conducts a bench trial and then complain on appeal that the court should have held a jury...