Nancy J. Dick v. Douglas J. Perkins, 94-LW-3130
| Decision Date | 30 September 1994 |
| Docket Number | 93WD111,94-LW-3130 |
| Parties | Nancy J. Dick, Appellee v. Douglas J. Perkins, Appellant Court of Appeals |
| Court | Ohio Court of Appeals |
Richard A. Schmidt, for appellee.
Karen E. Elliott, for appellant.
This is an appeal from a judgment issued by the Wood County Court of Common Pleas in an action which sought an order requiring that an equitable contribution be made to a mortgage obligation. Because the trial court's judgment entry is uncertain as to monetary amounts awarded, we reverse in part.
Appellant, Douglas J. Perkins, and appellee, Nancy J. Dick lived together in appellee's house from November 1984 to July 1990. From December 1985 to July 1990, the parties pooled their money in a joint checking account from which they paid their expenses. During the time the parties lived together, appellant used appellee's credit cards and automobile. Appellant also purchased a truck, using funds from the joint account. As part of the arrangement, appellant made various improvements to appellee's house. In November 1989, the parties also purchased membership in a resort.
In December 1989, the parties obtained a debt consolidation loan; they secured the loan by placing a mortgage on appellee's house in the approximate amount of $19,950. Both appellant and appellee signed the loan documents. The debts paid with the loan proceeds included: credit card debts of both parties, appellee's automobile loan, and jointly purchased Christmas gifts.
Ultimately, the relationship between appellant and appellee ended. In July 1990, appellant moved out. He, nevertheless, continued to pay the resort membership. However, in July 1991, appellant stopped contributing to the mortgage payments.
In December 1992, appellee filed suit seeking damages for appellant's non-payment of the mortgage obligation. Appellant answered and filed a counterclaim for the value of the improvements and for his monetary contribution to the resort membership. The case proceeded to trial. Ultimately, the court entered judgment for appellee for one-half of the payments made by her, excluding payments made by her from the parties' joint checking account. Appellee was further awarded "one-half of all future mortgage payments, as said payments are made." The trial court also then awarded appellant judgment for one-half of the resort membership note payments he had previously paid, and for "all future payments made by [appellant] on said note." It is from this judgment that appellant appeals, setting forth the following six assignments of error:
Appellant, in his first assignment of error, argues that the trial court erred in concluding that he was a co-maker on the mortgage note, rather than an accommodation party.
An accommodation party is one who signs a note merely to lend his or her name to another party. R.C. 1303.51(A). A co-maker on a loan may be an accommodation party. Huron Cty. Banking Co. v. Knally (1984), 22 Ohio App.3d 110, 114. Factors which determine whether or not a co-maker is an accommodation party are: 1) the location of the party's signature, 2) the language of the note, 3) whether the party claiming accommodation status received any proceeds or benefit from the loan, 4) the parties' intent, and 5) whether the signature of the party claiming accommodation status was needed to get the loan. Glimcher v. Reinhorn (1991), 68 Ohio App.3d 131, 136; Huron Cty. Banking Co. v. Knally, supra, at 114-115; Blumenthal v. Abrams (Feb. 16, 1983), Montgomery App. No. 7797, unreported. Absent a clear indication otherwise, a party who signs in the lower right hand corner of a promissory note is a maker on the note. Glimcher v. Reinhorn, supra, at 135. While a party's status as a maker does not necessarily preclude him from also being an accommodation party, a party who receives proceeds or otherwise directly benefits from an instrument is generally not an accommodation party. Id. at 135, 136.
We will now examine the evidence as to appellant's status as an accommodation party. First, appellant's signature appears directly below appellee's signature, in the lower right hand corner of the note; on the loan application, appellant's signature appears on the co-maker line adjacent to appellee's signature. Second, the note defines "I" as including each borrower listed at the top left corner of the note, which indicates that the form may be used for joint borrowers. No language in either document designates appellant as an accommodation party. Third, the record shows that appellant directly benefitted from the mortgage proceeds. The parties used the loan proceeds to: pay credit card debts partially attributable to appellant, pay off a loan on appellee's auto which was sometimes used by appellant, and jointly purchase Christmas gifts.
Appellant also enjoyed living in appellee's house and the use of the joint checking account from which the parties paid their financial obligations. Finally, a bank loan officer testified that appellant and appellee represented that the loan would be used to pay off joint debts of the parties; the loan officer also stated that a check for $1,016, part of the loan proceeds, was jointly made to appellant and appellee. Because the parties used their joint debts and joint income as a basis for seeking the loan, the loan officer could not testify as to whether appellee would have qualified for the loan individually. Appellee, however, testified that she could have obtained the loan but under different financing terms. Appellant provided no evidence to refute this.
An appellate court will not reverse a trial court's finding of fact if the finding is supported by some competent, credible evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81. In the present case, the record provides competent credible evidence which supports the finding that appellant was a jointly obligated co-maker, rather than an accommodation party. Therefore, we conclude that the trial court's finding was proper. Accordingly, appellant's first assignment of error is found not well-taken.
Appellant, in his second assignment of error, contends that he should have received a monetary set-off for benefits appellee received. Appellant asserts that appellee was unjustly enriched. Appellant maintains that he should be reimbursed for the improvements to appellee's house, for appellee's tax savings gained through mortgage interest payments, and for loan proceeds used to pay off appellee's automobile loan and credit card debts.
The weight of the evidence and credibility of witnesses is properly a matter for the trier of fact. Alarm Device Mfg. Co. v. Arnold Industries (1979), 65 Ohio App.2d 256, 263. As previously noted, an appellate court will not reverse a trial court's finding of fact if the finding is supported by some competent, credible evidence. Seasons Coal Co. v. Cleveland, supra.
In this case, the trial court specifically found that the parties' arrangement benefitted both appellant and appellee. The record shows that appellant may have improved appellee's home and contributed to some of the mortgage payments. However, appellant also benefitted because the parties' arrangement permitted appellant to use appellee's automobile and credit cards, to live in appellee's house, to purchase a truck, and to pursue custody of his son from a former marriage.
We conclude, therefore, that competent, credible evidence exists to support the exclusion of appellant's contributions as an adjustment to the judgment awarded. Accordingly, appellant's second assignment of error is found not well-taken.
Appellant, in his third assignment of error, argues that the trial court erred in denying his motion for a directed verdict. Appellant contends that appellee failed to produce any evidence of amounts paid by her on the mortgage loan for which she claimed a right of contribution.
At the outset, we note that in a non-jury trial, "a motion for judgment at the conclusion of the plaintiff's case is one for dismissal under Civ.R....
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