Myers v. Garson, 92-868

• Decision Date: 07 July 1993
• Docket Number: No. 92-868,92-868
• Citation: 66 Ohio St.3d 610,614 N.E.2d 742
• Parties: MYERS, Appellee, v. GARSON, Appellant, et al.
• Court: Ohio Supreme Court

Page 610

66 Ohio St.3d 610

614 N.E.2d 742

MYERS, Appellee, v. GARSON, Appellant, et al.

No. 92-868.

Supreme Court of Ohio.

Submitted April 28, 1993.

Decided July 7, 1993.

Brouse & McDowell, Linda B. Kersker and David B. Nolin, Akron, for appellee.

Skidmore & Associates Co., L.P.A., Archie W. Skidmore and Spiros Vasilatos, Jr., Akron, for appellant.

A. WILLIAM SWEENEY, Justice.

Preliminarily, appellant Garson essentially contends that the decision by the court of appeals was tainted because Judge John W. Reece did not recuse himself from the appellate panel below, since at an earlier state of the present litigation, Judge Reece had in fact recused himself from hearing the action while he was sitting as a trial judge. ¹ While one can perhaps argue that Judge Reece should have disqualified himself from sitting on the appellate panel below given his prior recusal, we remain unpersuaded because appellant raised no objections until after he had obtained an adverse decision from the court of appeals. In our view, appellant had several opportunities to object to the presence of Judge Reece on the court of appeals panel; however, no objection was raised in a timely manner. As noted by the court of appeals upon appellant's motion for reconsideration, appellant could have contacted the court to discover Judge Reece's presence on the appellate panel after appellant had waived oral argument, but he neglected to do so. Therefore, we reject appellant's hollow assertions that Judge Reece's involvement with the decision below somehow prejudiced his reliability or impartiality.

With respect to the determinative issue in this appeal, appellee Myers argues, inter alia, that the court of appeals merely followed the dictates of App.R. 12(B) by "render[ing] the judgment or final order that the trial court should have rendered." It is appellee's contention that the court of appeals below did not substitute its judgment for that of the trial court, but simply corrected a legally insupportable judgment of the trial court by finding that a novation took place between the parties.

We have reviewed the extensive record developed during this protracted litigation and find persuasive arguments and elements supporting the reasoning of the court of appeals below. However, as we have often noted in the past, where the decision in a case turns upon credibility of testimony, and where there exists competent and credible evidence supporting the findings and conclusions of the trial court, deference to such findings and conclusions must be given by the reviewing court. See Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 410, 461 N.E.2d 1273, 1276; and Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, 10 OBR 500, 462 N.E.2d 407. In addition, this court has held that a reviewing court is not authorized to reverse a correct trial judgment merely because erroneous reasons were assigned as a basis therefor. Agricultural Ins. Co. v. Constantine (1944), 144 Ohio St. 275, 284, 29 O.O. 426, 430, 58 N.E.2d 658, 663.

As this court observed in Seasons Coal, supra, 10 Ohio St.3d at 80, 10 OBR at 410, 461 N.E.2d at 1276: "The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony."

While it is true that the trial court decision of June 17, 1991 was based on the resubmission of the pre-existing trial court record, it is also true that all the pertinent trial court proceedings in this cause were presided over by the same trial judge.

The appellate court below and appellee herein emphasize that the trial court had specifically found that appellee, as of March 23, 1970, "was to recover 50% of the profits from the ultimate disposition of the property," but concluded that appellee was not entitled to any profits from the sale of the property in issue. While the finding of the trial court in this respect does indeed appear to be inconsistent with its ultimate holding, the particular circumstances and course of dealings between the parties, as set forth in the record, while not explicitly set forth in the trial court's 1991 decision, arguably support the trial court's conclusion. For example, although the trial court made no specific findings as such, appellee's refusals to advance further funds to appellant between 1970 and 1976 could be characterized as breaches of the parties' agreement that profits be divided equally, and thus would not entitle appellee to any profits from the ultimate disposition of the subject property. In addition, there was sufficient evidence in the record to support the apparent conclusion of the trial court that the profit-sharing agreement between the parties, contemplated profit sharing only with respect to Phase I of the Bathcrest Estates development. Since Phase I yielded no profit, appellee would be entitled to no profit from the disposition of that property. Moreover, profits from the land development were not realized until the sale of Phase II of the development, and Phase II was not completed until after 1979 when the parties could not reach any agreement whatsoever.

In any event, the court of appeals below went beyond its prerogative as set forth in App.R. 12 and did not accord due deference to the judgment of the trial court. In effect, the appellate court substituted its judgment for that of the trier of fact. While the court of appeals' finding of a novation between the parties appears somewhat persuasive when viewed in an after-the-fact context of what would have been most advantageous from appellee's standpoint the record is devoid of any substantial evidence to support such a finding.

Thus, we reaffirm our prior reasoning in Seasons Coal, supra, and hold that an appellate court must not substitute its judgment for that of the trial court where there exists some competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court. Upon a careful review of the instant record, we find there was competent and credible evidence supporting the judgment of the trial court and, therefore, that judgment must be reinstated.

Notably, the cause sub judice amply points out that different persons can arrive at different conclusions in a case based on the same evidence. If nothing else, the protracted history of the instant cause unquestionably underscores the proposition that parties to an agreement should protect their interests by reducing all of their understandings to writing. So-called "gentlemen's agreements" not totally put in writing can become shaded or altered in the minds of the contracting parties over time, when changed circumstances and/or faulty memories make it more advantageous to assert a different meaning to an agreement than that which was originally intended. The vagaries of the legal system cannot guarantee that the "true" understanding of each of the parties is the one that ultimately becomes the agreement to which they are legally bound.

Based on all the foregoing, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court.

Judgment reversed.

MOYER, C.J., and DOUGLAS and RESNICK, JJ., concur.

WRIGHT, FRANCIS E. SWEENEY, Sr., and PFEIFER, JJ., dissent.

WRIGHT, Justice, dissenting.

Not long ago a majority of my colleagues declared that we sit as a court of equity. See State v. West (1993), 66 Ohio St.3d 508, 613 N.E.2d 622. I cannot agree with such a premise; however, I do believe we should apply common business sense to cases involving...