Hubbard Family Trust v. TNT Land Holdings, LLC

• Decision Date: 25 February 2014
• Docket Number: No. 12CA833.,12CA833.
• Court: Ohio Court of Appeals
• Parties: The HUBBARD FAMILY TRUST, Joseph Hubbard, Trustee, et al., Plaintiffs–Appellees/Cross–Appellants/Cross–Appellees, v. TNT LAND HOLDINGS, LLC, et al., Defendants–Appellants, and Angela Shanks, et al., Defendants/Cross–Appellees/Cross–Appellants.

9 N.E.3d 411

The HUBBARD FAMILY TRUST, Joseph Hubbard, Trustee, et al., Plaintiffs–Appellees/Cross–Appellants/Cross–Appellees,

v. TNT LAND HOLDINGS, LLC, et al., Defendants–Appellants,andAngela Shanks, et al., Defendants/Cross–Appellees/Cross–Appellants.

No. 12CA833.

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

Feb. 25, 2014.

Stanley C. Bender, Law Offices of Stanley C. Bender, Portsmouth, OH, and Thomas M. Spetnagel, Chillicothe, OH, for Appellants TNT Land Holdings, LLC, and Marie Hoover.

Michael P. McNamee and Gregory B. O'Connor, McNamee & McNamee, PLL, Beavercreek, OH, for Appellees/Cross–Appellants/Cross–Appellees, The Hubbard Family Trust, Joseph Hubbard, Trustee.

Shane A. Tieman, Portsmouth, OH, for Defendants/Cross–Appellees/Cross–Appellants Angela Shanks and Acceleration Enterprises, LLC, dba Realtec Real Estate.

BROWN, J.

{¶ 1} TNT Land Holdings, LLC (“TNT”), and Marie Hoover (“Hoover”) (sometimes referred to collectively as “TNT”), defendants-appellants/cross-appellees appeal the judgment of the Pike County Court of Common Pleas, in which the court, pursuant to a jury verdict, entered judgment in favor of and awarded damages to The Hubbard Family Trust, Joseph Hubbard, Trustee (“Trust”), and Joseph W. Hubbard (“Hubbard”) (sometimes collectively referred to as “Hubbard”), plaintiffs-appellees/cross-appellants. Angela Shanks and Acceleration Enterprises, LLC, DBA Realtec Real Estate (sometimes collectively referred to as “Realtec”), defendants-appellees/cross-appellants, have filed an appeal of the trial court's judgment. Hubbard also appeals the trial court's judgment.

{¶ 2} Hoover, along with her ex-husband, bought the subject property, a single-family home on Lake White in Waverly, Ohio, in 1994. They made significant additions to the original “cottage.” Hoover became the owner of the home upon termination of the marriage. She transferred the home to TNT in 2000 and her then husband, Tracy Hoover, transferred any right he had in the home to TNT as well. Hoover is a member of TNT.

{¶ 3} Shanks is a real estate agent and broker. In 2006, Shanks began working for Acceleration Enterprises, LLC, which does business as Realtec. In March 2007, TNT and Shanks listed the subject home for TNT for $325,000. TNT accepted an offer for $310,000 from a buyer, the Marions. The Marions conducted a home inspection, returned to Shanks about two hours later with a handwritten list of problems with the home, and then made an offer for a reduced amount. The list included issues about which the Marions were concerned, including condensation on the turret windows, settling of the doors and spiral staircase pad, and settling of the corner of the master bedroom. Shanks handwrote an addendum to the purchase contract, which included an Exhibit A (“Marion contingency addendum”) that listed the defects discovered by the Marions. Shanks submitted the addendum and offer to TNT through Hoover, who rejected the offer.

{¶ 4} Thereafter, Hoover began repair work on the home, including the repainting of the exterior, installation of retaining walls on the rear slope of the property, installation of new windows in the turret room, replacement of a concrete pad behind the turret room, and replacement of the garage floor.

{¶ 5} On July 28, 2007, Hubbard, who was 86 years old and resided in California, was in Ohio for the weekend for a school and family reunion. Hubbard had long been interested in owning a home on Lake White, and he learned there was one currently for sale there. He and a relative, Angie Snodgrass, met Shanks at TNT's Lake White home, and Shanks pointed out several repairs that had been done. Construction work was still ongoing at the time. Hubbard obtained a key to the home and took an architect with him and inspected the property soon after the walk through with Shanks. Hubbard and his family walked through the property the next day, July 29, 2007.

{¶ 6} On July 29, 2007, Hubbard signed a purchase agreement, agreeing to pay $320,000 for the house. An inspection addendum, which permitted Hubbard to obtain an inspection and receive credit for repairs for any problems, was included in the purchase contract, but Hubbard never obtained an inspection. Shanks dually represented Hoover and Hubbard in the transaction.

{¶ 7} After Hubbard's purchase, his relative, Jeanetta Pixley, began living in the home in November 2007. In spring 2008, Pixley began noticing several settling problems. The deck had shifted and the sidewalk was cracked. The yard also developed a large crack. A contractor and engineer hired by Hubbard determined the land was settling and the soil was shifting down the slope toward the edge of the lake.

{¶ 8} Hubbard believed that many of the “repairs” undertaken by Hoover prior to his purchase were actually designed to conceal the structural flaws and settling. On October 9, 2009, Hubbard filed a complaint, alleging fraud, negligent misrepresentation, breach of contract, and unjust enrichment against Hoover and TNT; and breach of fiduciary duty, negligence, and promissory estoppel against Realtec. Hubbard also included claims against Tracy Hoover, but Hubbard dismissed those claims prior to trial. Realtec brought claims against Pixley and Snodgrass, although those are not relevant to the appeal.

{¶ 9} All parties filed motions for summary judgment, and the trial court denied all motions except for those of Pixley and Snodgrass. A jury trial began April 30, 2012. Hubbard subsequently dismissed his claims for fraud, negligent misrepresentation, and unjust enrichment, against TNT, and its claim for promissory estoppel against Shanks.

{¶ 10} On May 4, 2012, the jury returned verdicts against Hoover on the fraudulent concealment, fraudulent misrepresentation, and breach of contract, and against TNT on the breach of contract claim. The jury awarded Hubbard $216,337.75 in damages. The jury also returned verdicts against Realtec on the claims for breach of fiduciary duty and negligence but awarded zero damages on those claims.

{¶ 11} After a subsequent hearing on punitive damages and attorney fees against Hoover, the same jury awarded Hubbard $68,020.11 for punitive damages and $68,020.11 for attorney fees. On May 18, 2012, the trial court filed a judgment entry journalizing the jury's verdicts. TNT and Realtec filed motions for judgment notwithstanding the verdict, which the trial court denied on July 18, 2012. TNT and Realtec have filed appeals, and Hubbard has filed a cross-appeal.

{¶ 12} TNT asserts the following assignments of error:

I. THE TRIAL COURT ERRED IN DENYING APPELLANTS' MOTION FOR SUMMARY JUDGMENT, DIRECTED VERDICT, AND JUDGMENT NOTWITHSTANDING THE VERDICT.

II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING MARIE HOOVER PERSONALLY LIABLE.

III. THE TRIAL COURT ERRED IN ALLOWING APPELLEES' EXPERT WITNESS TO EXPRESS AN OPINION AS TO THE ULTIMATE ISSUE OF WHETHER APPELLANTS KNOWINGLY MISREPRESENTED OR CONCEALED DEFECTS IN THE PROPERTY.

IV. THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY.

V. THE JURY'S VERDICT AGAINST APPELLANTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 13} Realtec asserts the following assignments of error:

[I.] THE TRIAL COURT ERRED BY DENYING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT ANGELA SHANKS/REALTEC.

[II.] THE TRIAL COURT ERRED BY DENYING DEFENDANT ANGELA SHANKS/REALTEC MOTION FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT.

[III.] THE FINDING BY THE JURY THAT DEFENDANTS SHANKS AND REALTEC VIOLATED A FIDUCIARY DUTY AND WERE NEGLIGENT

IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 14} Hubbard asserts the following assignment of error:

The jury's award of zero damages against Shanks and Realtec was against the manifest weight of the evidence.

{¶ 15} TNT argues in its first assignment of error that the trial court erred when it denied its motion for summary judgment, motion for directed verdict, and motion of judgment notwithstanding the verdict. Appellate review of summary judgment motions is de novo. Andersen v. Highland House Co., 93 Ohio St.3d 547, 548, 757 N.E.2d 329 (2001). “ ‘When reviewing a trial court's ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.’ ” Abrams v. Worthington, 169 Ohio App.3d 94, 2006-Ohio-5516, 861 N.E.2d 920, ¶ 11 (10th Dist.), quoting Mergenthal v. Star Banc Corp., 122 Ohio App.3d 100, 103, 701 N.E.2d 383 (12th Dist.1997). Civ.R. 56(C) provides that a trial court must grant summary judgment when the moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 6.

{¶ 16} We employ a de novo standard of review in evaluating a trial court's ruling on a motion for directed verdict or judgment notwithstanding the verdict. Whitaker v. Kear, 123 Ohio App.3d 413, 422, 704 N.E.2d 317 (4th Dist.1997); Kanjuka v. MetroHealth Med. Ctr., 151 Ohio App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920 (8th Dist.). Civ.R. 50 sets forth the standard for granting a motion for a directed verdict and a motion for JNOV:

(A) Motion for directed verdict.

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(4) When granted on the evidence. When a motion for 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 each party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

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(B) Motion for judgment notwithstanding the verdict. Whether or not a motion to direct a...