[Cite as Shimrak v. Goodsir, 2016-Ohio-1467.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 103270 and 103395
PETER E. SHIMRAK, ET AL.
PLAINTIFFS-APPELLEES
vs.
SUSAN GOODSIR, AS SUCCESSOR TRUSTEE TO THE WILLIAM MEYER TRUST
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-794008
BEFORE: Keough, P.J., E.A. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 7, 2016 ATTORNEY FOR APPELLANT
Mark I. Wachter Wachter, Kurant, L.L.C. 30195 Chagrin Boulevard Suite 300, Pepper Pike Place Cleveland, Ohio 44124
ATTORNEYS FOR APPELLEES
Amanda A. Barreto Steven M. Ott Lindsey A. Wrubel Ott & Associates Co., L.P.A. 1300 East Ninth Street Suite 1520 Cleveland, Ohio 44114
KATHLEEN ANN KEOUGH, P.J.: {¶1} Defendant-appellant, Susan Goodsir (“Goodsir”), successor trustee to the William
Meyer Trust, appeals from the trial court’s judgment that determined damages for breach of a
real estate transaction. We affirm in part, reverse in part, and remand.
I. Background
{¶2} On May 24, 2006, plaintiffs-appellees Peter and Patricia Shimrak (the
“Shimraks”) entered into an agreement to purchase residential property from Goodsir for
$340,000, the full asking price for the home. On August 18, 2006, after they were unable to
obtain financing, the Shimraks notified Goodsir that they would be withdrawing from the
transaction. Goodsir then relisted the house for sale, eventually selling the house in May 2007
for $272,000 — $68,000 less than what the Shimraks had agreed to pay.
{¶3} The Shimraks initiated this action in the Rocky River Municipal Court, seeking
return of the $2,000 they paid as earnest money for the purchase. Goodsir then counterclaimed
for breach of contract relating to the Shimraks’ failure to perform as outlined in the purchase
agreement. She also sought a declaratory judgment of her rights under the purchase agreement.
With Goodsir’s counterclaim exceeding the monetary jurisdiction of the municipal court, the case
was transferred to the court of common pleas. The court of common pleas then released the
earnest money to the Shimraks without objection from Goodsir.
{¶4} After a hearing on the declaratory judgment action, the trial court found in favor
of the Shimraks. On appeal, this court reversed the trial court’s judgment, finding that the
Shimraks had breached their performance obligations under the terms of the agreement relating
to obtaining financing, and could not unilaterally withdraw from the purchase agreement.
Shimrak v. Goodsir, 8th Dist. Cuyahoga No. 100612, 2014-Ohio-3716, ¶ 15. Accordingly, this court remanded the matter to the trial court to enter judgment for Goodsir and determine
damages.
{¶5} On remand, the parties submitted briefs regarding the issue of damages, and the
trial court heard argument from counsel. After argument, the court ordered the parties to
provide, by affidavit, responses to the following questions:
1. At the time the Shimraks made their offer, what was the amount of the “other offer on the house” that Goodsir had received?
2. What steps did the Goodsirs undertake to contact the individuals who made “the other offer on the house,” and when were those steps taken?
3. Why was the other offer not available?
{¶6} In response, Goodsir submitted an affidavit from Hilarie Hilonis, her real estate
agent during the transaction. Hilonis averred that the other offer on the house was
approximately $319,000, and that when she learned that the Shimraks would not follow through
with the purchase agreement, she immediately contacted the couple who had submitted the other
offer. That couple had moved on to another transaction, however, and was no longer interested
in Goodsir’s property.
{¶7} The Shimraks responded that the other offer was $305,000, as indicated by an email
dated August 4, 2006, from Hilonis to Goodsir that was admitted at trial.
{¶8} The trial court subsequently issued the following judgment entry:
The Court finds that the measure of damages is $35,000 plus interest from August 16, 2006. The Court finds that the fair market value at the time of the breach was what a willing buyer would have paid a willing seller. While there seems to be a dispute as what the offer was at the time the Shimraks made their offer and at the time of the breach, Shimraks’ counsel stated that it was $305,000. The difference between $340,000 and $305,000 is $35,000. Thereforth [sic], the Court award damages at $35,000. {¶9} When Goodsir’s counsel subsequently attempted to file a judgment lien with the
clerk of courts, the clerk rejected counsel’s attempt and wrote on the judgment entry, “Need a
clear JE if you are reversing creditor/debtor.”1 (Emphasis sic.) Goodsir then filed a Civ.R.
60(A) motion, asking the court to clarify the ambiguity as to which party was the judgment
creditor and which the judgment debtor. The trial court denied the motion, and this appeal
followed.
II. Analysis
{¶10} In her first assignment of error, Goodsir contends that the trial court’s award of
$35,000 in damages was against the manifest weight of the evidence. A judgment supported by
competent, credible evidence will not be reversed by a reviewing court as against the manifest
weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 367 N.E.2d
578, syllabus.
{¶11} The proper measure of damages for a buyer’s breach of contract for the sale of real
property is the difference between the original contract price and the fair market value of the
property at the time of the breach. Snider-Cannata Interests, LLC v. Ruper, 8th Dist. Cuyahoga
No. 93401, 2010-Ohio-1927, ¶ 45, citing Roesch v. Bray, 46 Ohio App.3d 49, 50, 545 N.E.2d
1301 (6th Dist.1988). Fair market value is generally defined as the price that would be agreed
upon between a willing seller and a willing buyer in a voluntary sale on the open market. Loft v.
Sibcy-Cline Realtors, 1st Dist. Hamilton No. C-880446, 1989 Ohio App. LEXIS 4593 (Dec. 13,
1989).
1 Because this action was originally filed by the Shimraks in the Rocky River Municipal Court, they appear as the plaintiffs in the case and Goodsir appears as a defendant. {¶12} Defense counsel conceded at oral argument that the Shimraks’ breach occurred on
June 26, 2006, 30 days after Goodsir accepted the Shimraks’ offer, and when the purchase
agreement required the Shimraks to exercise their options under the contract related to obtaining
financing. The trial court apparently considered the offer of $305,000 that was presented to
Goodsir in May 2006, a month before the Shimraks’ breach, as evidence of the fair market value
of the property at the time of the breach.
{¶13} Goodsir contends that this offer was not evidence of the fair market value of the
property at the time of the Shimraks’ breach because her retrospective appraisal of the property,
conducted in April 2013, determined that the fair market value of the property on August 16,
2006 was $275,000. The appraisal is admittedly some evidence of the fair market value of the
property. But the $305,000 offer is also evidence of the fair market value because it
demonstrates what a willing purchaser would have paid for the property at a point in time close
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Shimrak v. Goodsir, 2016-Ohio-1467.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 103270 and 103395
PETER E. SHIMRAK, ET AL.
PLAINTIFFS-APPELLEES
vs.
SUSAN GOODSIR, AS SUCCESSOR TRUSTEE TO THE WILLIAM MEYER TRUST
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-794008
BEFORE: Keough, P.J., E.A. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: April 7, 2016 ATTORNEY FOR APPELLANT
Mark I. Wachter Wachter, Kurant, L.L.C. 30195 Chagrin Boulevard Suite 300, Pepper Pike Place Cleveland, Ohio 44124
ATTORNEYS FOR APPELLEES
Amanda A. Barreto Steven M. Ott Lindsey A. Wrubel Ott & Associates Co., L.P.A. 1300 East Ninth Street Suite 1520 Cleveland, Ohio 44114
KATHLEEN ANN KEOUGH, P.J.: {¶1} Defendant-appellant, Susan Goodsir (“Goodsir”), successor trustee to the William
Meyer Trust, appeals from the trial court’s judgment that determined damages for breach of a
real estate transaction. We affirm in part, reverse in part, and remand.
I. Background
{¶2} On May 24, 2006, plaintiffs-appellees Peter and Patricia Shimrak (the
“Shimraks”) entered into an agreement to purchase residential property from Goodsir for
$340,000, the full asking price for the home. On August 18, 2006, after they were unable to
obtain financing, the Shimraks notified Goodsir that they would be withdrawing from the
transaction. Goodsir then relisted the house for sale, eventually selling the house in May 2007
for $272,000 — $68,000 less than what the Shimraks had agreed to pay.
{¶3} The Shimraks initiated this action in the Rocky River Municipal Court, seeking
return of the $2,000 they paid as earnest money for the purchase. Goodsir then counterclaimed
for breach of contract relating to the Shimraks’ failure to perform as outlined in the purchase
agreement. She also sought a declaratory judgment of her rights under the purchase agreement.
With Goodsir’s counterclaim exceeding the monetary jurisdiction of the municipal court, the case
was transferred to the court of common pleas. The court of common pleas then released the
earnest money to the Shimraks without objection from Goodsir.
{¶4} After a hearing on the declaratory judgment action, the trial court found in favor
of the Shimraks. On appeal, this court reversed the trial court’s judgment, finding that the
Shimraks had breached their performance obligations under the terms of the agreement relating
to obtaining financing, and could not unilaterally withdraw from the purchase agreement.
Shimrak v. Goodsir, 8th Dist. Cuyahoga No. 100612, 2014-Ohio-3716, ¶ 15. Accordingly, this court remanded the matter to the trial court to enter judgment for Goodsir and determine
damages.
{¶5} On remand, the parties submitted briefs regarding the issue of damages, and the
trial court heard argument from counsel. After argument, the court ordered the parties to
provide, by affidavit, responses to the following questions:
1. At the time the Shimraks made their offer, what was the amount of the “other offer on the house” that Goodsir had received?
2. What steps did the Goodsirs undertake to contact the individuals who made “the other offer on the house,” and when were those steps taken?
3. Why was the other offer not available?
{¶6} In response, Goodsir submitted an affidavit from Hilarie Hilonis, her real estate
agent during the transaction. Hilonis averred that the other offer on the house was
approximately $319,000, and that when she learned that the Shimraks would not follow through
with the purchase agreement, she immediately contacted the couple who had submitted the other
offer. That couple had moved on to another transaction, however, and was no longer interested
in Goodsir’s property.
{¶7} The Shimraks responded that the other offer was $305,000, as indicated by an email
dated August 4, 2006, from Hilonis to Goodsir that was admitted at trial.
{¶8} The trial court subsequently issued the following judgment entry:
The Court finds that the measure of damages is $35,000 plus interest from August 16, 2006. The Court finds that the fair market value at the time of the breach was what a willing buyer would have paid a willing seller. While there seems to be a dispute as what the offer was at the time the Shimraks made their offer and at the time of the breach, Shimraks’ counsel stated that it was $305,000. The difference between $340,000 and $305,000 is $35,000. Thereforth [sic], the Court award damages at $35,000. {¶9} When Goodsir’s counsel subsequently attempted to file a judgment lien with the
clerk of courts, the clerk rejected counsel’s attempt and wrote on the judgment entry, “Need a
clear JE if you are reversing creditor/debtor.”1 (Emphasis sic.) Goodsir then filed a Civ.R.
60(A) motion, asking the court to clarify the ambiguity as to which party was the judgment
creditor and which the judgment debtor. The trial court denied the motion, and this appeal
followed.
II. Analysis
{¶10} In her first assignment of error, Goodsir contends that the trial court’s award of
$35,000 in damages was against the manifest weight of the evidence. A judgment supported by
competent, credible evidence will not be reversed by a reviewing court as against the manifest
weight of the evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 367 N.E.2d
578, syllabus.
{¶11} The proper measure of damages for a buyer’s breach of contract for the sale of real
property is the difference between the original contract price and the fair market value of the
property at the time of the breach. Snider-Cannata Interests, LLC v. Ruper, 8th Dist. Cuyahoga
No. 93401, 2010-Ohio-1927, ¶ 45, citing Roesch v. Bray, 46 Ohio App.3d 49, 50, 545 N.E.2d
1301 (6th Dist.1988). Fair market value is generally defined as the price that would be agreed
upon between a willing seller and a willing buyer in a voluntary sale on the open market. Loft v.
Sibcy-Cline Realtors, 1st Dist. Hamilton No. C-880446, 1989 Ohio App. LEXIS 4593 (Dec. 13,
1989).
1 Because this action was originally filed by the Shimraks in the Rocky River Municipal Court, they appear as the plaintiffs in the case and Goodsir appears as a defendant. {¶12} Defense counsel conceded at oral argument that the Shimraks’ breach occurred on
June 26, 2006, 30 days after Goodsir accepted the Shimraks’ offer, and when the purchase
agreement required the Shimraks to exercise their options under the contract related to obtaining
financing. The trial court apparently considered the offer of $305,000 that was presented to
Goodsir in May 2006, a month before the Shimraks’ breach, as evidence of the fair market value
of the property at the time of the breach.
{¶13} Goodsir contends that this offer was not evidence of the fair market value of the
property at the time of the Shimraks’ breach because her retrospective appraisal of the property,
conducted in April 2013, determined that the fair market value of the property on August 16,
2006 was $275,000. The appraisal is admittedly some evidence of the fair market value of the
property. But the $305,000 offer is also evidence of the fair market value because it
demonstrates what a willing purchaser would have paid for the property at a point in time close
to the Shimraks’ breach. As trier of fact, the trial court was free to decide which evidence it
found more credible.
{¶14} We are not persuaded by Goodsir’s argument that the $305,000 number is invalid
because it came only from statements of the Shimraks’ counsel; as noted, an email from
Goodsir’s agent to Goodsir that was introduced at trial stated that the other offer was $305,000.
{¶15} We are also not persuaded by Goodsir’s argument that the $305,000 figure is not
valid because the offer was made before instead of after the Shimraks’ breach. The offer was
presented in May 2006, only a month before the Shimraks’ breach. Although the cases that
determine the fair market value of property based upon a subsequent sale after a breach discuss
after-breach offers to determine the fair market value of property, we find no hard and fast rule in the case law that a court may consider only after-breach offers to determine the fair market value
of property.
{¶16} Accordingly, because there was some competent, credible evidence in the record to
support the trial court’s decision, we cannot find that the trial court’s decision was against the
manifest weight of the evidence. The first assignment of error is overruled.
{¶17} In her second assignment of error, Goodsir contends that the trial court erred in
denying her Civ.R. 60(A) motion requesting that court clarify the ambiguity in its judgment entry
as to which party was the judgment creditor and which the judgment debtor.
{¶18} Civ.R. 60(A) permits a trial court to correct clerical mistakes that are apparent on
the record. The term “clerical mistake” refers to a mistake or omission that is apparent on the
record but does not involve a substantive legal decision or judgment. State ex rel. Litty v.
Leskovyansky, 77 Ohio St.3d 97, 100, 671 N.E.2d 236 (1996).
{¶19} Civ.R. 60(A) relief was appropriate for the trial court’s failure to specifically
render judgment in favor of Goodsir in its judgment entry. See Bobb Forest Prods. v. Morbark
Indus., 151 Ohio App.3d 63, 2002-Ohio-5370, 783 N.E.2d 560, ¶ 18 (7th Dist.). The court’s
failure to clearly designate the judgment creditor and judgment debtor was a mistake that could
be remedied pursuant to Civ.R. 60(A). In light of the clerk of court’s rejection of Goodsir’s
attempt to file a judgment lien using the journal entry, and the clerk’s notation on the journal
entry that “Need a clear JE if you are reversing creditor/debtor,” the trial court abused its
discretion in denying Goodsir’s Civ.R. 60(A) motion to correct the ambiguity. The second
assignment of error is sustained.
{¶20} Judgment affirmed in part, reversed in part, and remanded, with instructions for the
trial court to clarify its judgment entry to reflect judgment for Goodsir in the amount of $35,000, plus interest from June 24, 2006. Such judgment is to clearly designate Goodsir as the judgment
creditor and the Shimraks as the judgment debtors.
It is ordered that the parties share equally costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and PATRICIA ANN BLACKMON, J., CONCUR