[Cite as Sood v. Rivers, 2023-Ohio-3417.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY
VINOY C. SOOD, et al., CASE NO. 2023-T-0022
Plaintiffs-Appellees, Civil Appeal from the - vs - Warren Municipal Court
DONOVAN RIVERS, et al., Trial Court No. 2022 CVG 001007 Defendants-Appellants.
OPINION
Decided: September 25, 2023 Judgment: Reversed and remanded
Thomas G. Carey, Harrington, Hoppe & Mitchell, Ltd., 108 Main Avenue, S.W., Suite 500, Warren, OH 44481 (For Plaintiffs-Appellees).
William M. Flevares, Flevares Law Firm, LLC, 1064 Niles-Cortland Road, N.E., Warren, OH 44484 (For Defendants-Appellants).
MARY JANE TRAPP, J.
{¶1} The instant appeal arises from a land installment contract dispute and
whether the appellants, Donovan Rivers (“Mr. Rivers”) and Roberta Hileman (collectively
the “vendees”), paid at least 20% of the principal to avoid forfeiture and restitution of the
property pursuant to R.C. 5313.07 and R.C. 5313.08. The magistrate’s decision, which
the trial court adopted, found the vendees paid less than 20% of the principal and were in breach of the land contract. It concluded forfeiture was proper and ordered restitution
in favor of appellee, Vinoy Sood (“Mr. Sood”).1
{¶2} The vendees appeal from the judgment of the Warren Municipal Court that
denied their “Objections to Magistrate’s Decision” and “Supplement to Objections to
Magistrate’s Decision.”
{¶3} The vendees raise three assignments of error, contending (1) the trial court
erred as a matter of law when it determined they had not paid 20% of the principal owed
on the land contract; (2) the trial court rendered a judgment against the manifest weight
of the evidence when it miscalculated the amount of principal paid; and (3) Mr. Sood
improperly assessed late fees, which resulted in an error in the calculation of the paid
principal.
{¶4} After a thorough review of the record and pertinent law, we find the vendees’
second assignment of error to have merit and is dispositive of this appeal. Our review of
the magistrate’s decision and the trial court’s judgment entries adopting the magistrate’s
decision and overruling the vendees’ objections/supplemental objections reveal there are
no factual findings as to the magistrate’s calculation of the paid principal, nor is it evident
from the record. Thus, we cannot find the manifest weight of the evidence supports the
trial court’s judgment.
{¶5} Since the 20% issue is the linchpin to resolving this case, and we cannot
ascertain the amount of paid principal (and the magistrate’s calculation) from the record,
we reverse and remand for the trial court to conduct an independent, de novo review of
1. Mr. Sood’s wife, Krishna, quitclaimed her interest in the property before her death; thus, Mr. Sood is the sole owner of the property. 2
Case No. 2023-T-0022 the magistrate’s decision and the vendees’ objections/supplemental objections and to
take additional evidence, if necessary.
{¶6} The judgment of the Warren Municipal Court is reversed and remanded in
accordance with this opinion.
Substantive and Procedural History
{¶7} In June 2022, Mr. Sood, the vendor, filed a complaint for forfeiture of a land
installment contract against the vendees. In May 2019, Mr. Sood agreed to sell the
property located at 285 North Road, N.E., Warren, Ohio 44483, to the vendees for
$206,500, which included a $28,000 deposit, plus a 7% per annum interest rate on the
remainder. The parties further agreed monthly installments were payable on the first day
of the month, beginning June 1, 2019, until December 1, 2019, with a balloon payment
(the lump sum remainder of the principal) due on January 3, 2022.
{¶8} Mr. Sood alleged the vendees were in breach of the contract because they
failed to make timely payments, and they paid an additional $2,000 on January 3, 2022,
instead of the balloon payment that was due. Since the contract was in effect for less
than five years and the vendees paid less than 20% of the principal, Mr. Sood alleged he
was entitled to forfeiture and restitution pursuant to R.C. 5313.08.
The Land Installment Contract
{¶9} Per the contract, the vendees paid a deposit of $28,000, which left a
principal balance of $178,500. The monthly payments, due on the first of each month,
consisted of principal and interest ($1,383.91), real estate taxes ($181), and a
homeowner’s assessment fee ($427), for a total of $1,991.91. The contract further
provided that should the taxes and homeowner’s assessment fee increase or decrease,
Case No. 2023-T-0022 the monthly payment would be adjusted. Taxes were increased in April 2021, raising the
monthly payment to $2,090.24.
{¶10} The contract dictated how the monthly payments would be apportioned:
“Said payments shall be applied first to the real estate taxes and the Homeowner’s
Assessment, and then to interest and the balance to principal, interest to be calculated
and compounded on the due date of each month and each time a payment is made by
the Vendees or an addition is made to principal as prescribed herein. In the event
Vendors do not receive the monthly payment by the fifth (5th) day of the month, Vendees
will be charged and agrees to pay a late charge equal to ten percent (10%) of the monthly
payment, which, when assessed, will be added to the principal. Additional partial
payments or entire payment of the principal may be made at any time, without prepayment
penalty. However, any prepayment prior to the final payment must be in excess of Forty
Thousand Dollars ($40,000.00). Entire balance is due and payable in full on January 3,
2022.”
Magistrate’s Hearings
{¶11} In July 2022, a hearing was held before the magistrate. The parties agreed
to three stipulations: (1) the parties entered into a land contract with a purchase price of
$206,500; (2) the vendees missed at least one payment; and (3) the notice of forfeiture
was proper. The magistrate found the issue to be determined was how much had been
paid on the land contract, i.e., whether it was more than or less than 20%, which would
allow the forfeiture action to proceed, and ordered the parties to do an accounting.
{¶12} In August 2022, the magistrate held a second hearing, at which Mr. Sood
and Mr. Rivers testified. Mr. Sood entered into evidence an amortization table of the
Case No. 2023-T-0022 payments made (“Exhibit E”). Mr. Rivers contested the exhibit, noting that two payments
were missing from June and July 2019. He entered into evidence 30 monthly bank
statements that included check images reflecting 30 monthly payments, including for
those two months.
{¶13} There was much confusion between the parties as to how many payments
were due (and paid) under the contract and how to apply the January 3, 2022, payment.
Mr. Rivers claimed Mr. Sood had sent him an email confirming he had paid $39,198.52.
The magistrate inquired why Exhibit E did not reflect that $39,198.52 had been paid on
the principal. Mr. Sood told the court his amortization table was incorrect, and he agreed
$39,198.52 (18.98% of the purchase price) had been paid.
{¶14} The magistrate also questioned the increase in the monthly payments. Mr.
Sood explained the real estate taxes increased and the monthly real estate payment was
adjusted from $181 to $279. In addition, Mr. Sood’s attorney clarified that some of the
monthly payments were under $2,000 with an additional $100 payment because the
parties used a Zelle (a digital payment network) account to transfer funds that would only
accept transfers up to $2,000.
{¶15} Subsequent to the hearing, Mr. Sood filed a supplemental exhibit (“Exhibit
F”) with an updated table, reflecting the two missing payments and allocating them
accordingly. The table accounted for 31 payments (June 2019 – December 2021), plus
the January 2022 payment, for a total of 32 payments. However, the total paid principal
documented in the table did not match the amount of paid principal to which the parties
agreed at the hearing. Thus, the table showed that $38,389.18 of the principal was paid
Case No. 2023-T-0022 ($28,000 deposit + $10,389.18 monthly payments, or 18.59% of the purchase price of
$206,500).
{¶16} The vendees failed to file a response despite the magistrate granting them
leave to do so.
The Magistrate’s Decision
{¶17} In September 2022, the magistrate issued findings of fact and conclusions
of law, in which it found the land contract ran from June 1, 2019, to January 3, 2022. The
magistrate reviewed Mr. Sood’s Exhibit E, noting that neither party disputed the allocation
of the monthly payments but that the table consisted of only 30 payments. Further, at the
hearing, Mr. Sood agreed the total amount of payments made on the contract was
$39,198.52 as of January 1, 2022.
{¶18} The magistrate also reviewed that the vendees alleged the June and July
2019 payments, which were not listed on Exhibit E, should be credited to reduce the
principal since they are “additional payments.” They argued this would bring the total
principal paid to more than $41,300, or 20%, requiring a dismissal of the present action.
{¶19} The magistrate noted Mr. Sood supplemented the record after the hearing
with Exhibit F, which included the two payments from June and July and allocated them
accordingly. Thus, Mr. Sood argued, even with the two missing payments, the vendees
did not pay more than 20% of the purchase price.
{¶20} The magistrate found the language of the contract was unclear as to how
additional payments were to be applied.
{¶21} The magistrate concluded from the evidence, specifically the land contract,
that at least 31 payments were required, and that 32 payments were made. Thus, at
Case No. 2023-T-0022 best, there was only one extra payment of $2,000. Even crediting the vendees with
$2,000 off the principal for that payment, the amount did not meet the 20% threshold
($39,198.52 + $2,000 = $41,198.52, or 19.95% of the principal). Thus, the vendees were
in breach of the land contract and forfeiture was proper.
{¶22} On the same day, “after independent review,” the trial court adopted the
finding of the magistrate and affirmed the judgment. The court ordered the writ of
restitution to issue.
{¶23} At the end of September 2022, the case was stayed due to the vendees’
bankruptcy action.
Objections to the Magistrate’s Decision
{¶24} In January 2023, after the vendees’ bankruptcy case was dismissed, the
vendees filed objections to the magistrate’s decision. The vendees objected to the
magistrate’s calculation of the principal paid and attached an amortization table of the
payments made from June 2019 to December 2021. The table reflected that they paid
$39,606.50 of the principal. The vendees further argued the additional January 2022
payment should be applied to the principal because it could not be considered a
“prepayment” under the terms of the contract and any ambiguity should be interpreted
against the drafter, which in this case was Mr. Sood and his attorney. Thus, the correct
calculation should be $39,606.50 + $2,000 = $41,606.50, or 20.14% of the principal.
{¶25} The vendees objected to the magistrate’s reliance on Mr. Sood’s
supplemental table (Exhibit F), which they alleged was inaccurate, especially as it
pertained to late fees. In addition to objecting to the contract’s provision on late fees
(applying 10% of the monthly payment to the principal), they also objected to the late fees
Case No. 2023-T-0022 as being either improper or excessive. More specifically, Exhibit F reflects a late fee was
assessed on January 3, 2022, even though that payment was not a “monthly payment”;
the July 2019 late fee was improper because the payment was received on July 2, 2019;
and excessive late fees were assessed in March, July, and October 2021 because Mr.
Sood did not account for the increased monthly payment due to the increase in real estate
taxes.
{¶26} Lastly, the vendees noted they offered other evidence at trial that went to
the credibility of Mr. Sood, which included Mr. Sood’s failure to disclose a lawsuit against
the development for a faulty foundation in one of the units, thus obstructing their ability to
obtain financing, and a $10,000 payment to Mr. Sood from the condominium association
that was supposed to be held in escrow for foundation repairs, if needed.
{¶27} After the transcript was filed, the vendees filed supplemental objections to
the magistrate’s decision. They again contended the magistrate’s calculation of the paid
principal was incorrect and pointed to Mr. Sood’s testimony from the second hearing, in
which he agreed the paid principal was $39,198.52. They further contended there was a
monthly payment that was not accounted for (with an appropriation of $350 to the paid
principal). Thus, the correct calculation should be $39,198.52 + $350 + $2,000 for a total
of $41,548.52, or 20.12% of the principal.
{¶28} Without further explanation, the trial court denied the vendees’ objections
and supplemental objections, terminated the stay of execution of the writ of restitution,
and ordered the eviction to proceed.
{¶29} The vendees raise three assignments of error for our review:
Case No. 2023-T-0022 {¶30} “[1.] The Trial Court erred as a matter of law when it determined that Rivers
and Hileman had not paid 20% of the principal owed on the land contract and thus erred
in ruling that Appellees were entitled to a forfeiture of said contract.
{¶31} “[2.] The Trial Court rendered a judgment against the manifest weight of
the evidence when it miscalculated the amount of principal paid by Rivers and Hileman
on the land contract.
{¶32} “[3.] Appellees improperly assessed late fees, which resulted in an error in
the calculation of the amount of principal paid by Rivers and Hileman.”
Standard of Review
{¶33} Whether or not objections are timely, a trial court may adopt or reject a
magistrate’s decision in whole or in part, with or without modification. Further, the court
may hear a previously referred matter, take additional evidence, or return a matter to the
magistrate. Civ.R. 53(D)(4)(b). In addition, when ruling on objections and “undertak[ing]
an independent review,” the court may hear additional evidence, but it may refuse to do
so unless the objecting party can demonstrate that it “could not, with reasonable diligence,
have produced that evidence for consideration by the magistrate.” Civ.R. 53(D)(4)(d).
{¶34} “When reviewing a magistrate’s decision pursuant to Civ.R. 53[(D)(4)], a
trial court does not sit in the position of a reviewing court; rather, the trial court must
conduct a de novo review of the facts and conclusions contained in the magistrate’s
decision. Inman v. Inman (1995), 101 Ohio App.3d 115, 117-118. As the ultimate finder
of fact, the trial court must make its own factual determinations through an independent
analysis of the issues and should not adopt the findings of the magistrate unless the trial
court fully agrees with them. Id. The trial court’s role is to determine whether the
Case No. 2023-T-0022 magistrate has properly determined the factual issues and appropriately applied the law,
and, if the magistrate has failed to do so, the trial court must substitute its judgment for
that of the magistrate. Id. Magistrates do not have the authority to render final judgments;
therefore, the trial court remains responsible to critically review and verify the work of the
magistrate to determine if the magistrate’s findings of fact are sufficient to support the
conclusions of law. Quick v. Kwiatkowski (Aug. 3, 2001), Montgomery App. No. 18620,
[2001 WL 871406], *[3]. A trial court may also come to a different legal conclusion if that
conclusion is supported by the magistrate’s findings of fact. Wade v. Wade (1996), 113
Ohio App.3d 414, 419.” (Emphasis sic.) Tulley v. Tulley, 11th Dist. Portage No. 2000-P-
0044, 2001 WL 1216974, *4 (Oct. 12, 2001); see Civ.R. 53(D)(4)(d).
{¶35} Our review of the trial court’s judgment is more deferential. Thus, on
appeal, a trial court’s adoption of a magistrate’s decision will not be reversed unless the
trial court abused its discretion in adopting the decision. Marcellino v. Nicastro, 11th Dist.
Geauga No. 2021-G-0025, 2022-Ohio-2736, ¶ 37.
{¶36} An abuse of discretion is the “‘failure to exercise sound, reasonable, and
legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900,
¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). When an appellate court is
reviewing a pure issue of law, the mere fact that the reviewing court would decide the
issue differently is enough to find error. Id. at ¶ 67. By contrast, where the issue on
review has been confided to the discretion of the trial court, the mere fact that the
reviewing court would have reached a different result is not enough, without more, to find
error. Id.
Case No. 2023-T-0022 Land Installment Contracts
{¶37} The statutory scheme governing land installment contracts for residential
dwellings is contained in Chapter 5313 of the Revised Code. A “land installment contract”
is an “executory agreement which by its terms is not required to be fully performed by one
or more of the parties to the agreement within one year of the date of the agreement and
under which the vendor agrees to convey title in real property located in this state to the
vendee and the vendee agrees to pay the purchase price in installment payments, while
the vendor retains title to the property as security for the vendee’s obligation.” R.C.
5313.01(A).
{¶38} R.C. Chapter 5313 has been described as “‘essentially a “consumer
protection law * * *.”’” Howard v. Temple, 172 Ohio App.3d 21, 2007-Ohio-3074, 872
N.E.2d 1260, ¶ 9 (4th Dist.), quoting Albright v. Cochran, 5th Dist. Morrow No. CA-613,
1984 WL 4479, *2 (Mar. 2, 1984). It is “intended to prevent a ‘windfall to a vendor who
has previously collected substantial sums under a land contract and/or has actually
recovered the property.’” Id., quoting Farkas v. Bernard, 10th Dist. Franklin No.
95APE10-1365, 1996 WL 257455, *4 (May 16, 1996). As a result, “upon an election of
forfeiture, the statutes limit a vendor’s remedies.” Id., citing Koehler v. Paniagua, 3d Dist.
Hancock No. 5-02-64, 2003-Ohio-1972, ¶ 9.
{¶39} If the vendee defaults under the contract and fails to cure within 30 days,
the vendor may pursue one of two courses of action to regain possession of the property.
R.C. 5313.05. The first course of action occurs when a vendee defaults on a land
installment contract that has been in effect for less than 5 years. R.C. 5313.08 permits a
vendor to bring an action for forfeiture of the vendee’s rights in the contract and for
Case No. 2023-T-0022 restitution of the property. Am. Servicing Corp. v. Wannemacher, 2014-Ohio-3984, 19
N.E.3d 566, ¶ 38 (3d Dist.). However, if the contract has been in effect for more than 5
years, or if the vendee has paid more than 20% of the purchase price, a vendor must
pursue the second course of action and may only recover possession of his property by
a foreclosure proceeding and judicial sale of the foreclosed property. R.C. 5313.07.
Manifest Weight of the Evidence
{¶40} We address the vendees’ second assignment of error first because it is
dispositive of this appeal. In their second assignment of error, the vendees contend the
trial court’s judgment is against the manifest weight of the evidence because the
magistrate miscalculated the amount of paid principal.
{¶41} The weight of the evidence concerns “‘the inclination of the greater amount
of credible evidence, offered in a trial, to support one side of the issue rather than the
other.’” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
541 (1997), quoting Black’s Law Dictionary 1433 (6th Ed.1990). “‘The [reviewing] court *
* * weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the [finder of
fact] clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new trial ordered.’” Id., quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); see State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25 (“a reviewing court asks whose
evidence is more persuasive”).
{¶42} It is well settled that, in considering a challenge to the weight of the
evidence, a reviewing court must consider all the evidence in the record, the reasonable
Case No. 2023-T-0022 inferences that can be drawn therefrom, and the credibility of witnesses. Golubski v. U.S.
Plastic Equip., LLC, 11th Dist. Portage No. 2015-P-0001, 2015-Ohio-4239, ¶ 43. The
trier of fact, however, is in the best position to weigh the evidence and assess the
credibility of witnesses. Id.; see Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,
80, 461 N.E.2d 1273 (1984).
{¶43} Our review of the magistrate’s decision and the trial court’s judgment entries
adopting the magistrate’s decision and overruling the vendees’ objections/supplemental
objections reveal there are no factual findings as to the magistrate’s calculation of the
paid principal, nor is it evident from the record.
{¶44} In the finding of facts, the magistrate found Mr. Sood agreed at the hearing
that $39,198.52 of the principal was paid while simultaneously noting he filed a
supplemental exhibit with the two missing payments (June and July 2019). This exhibit
reflected that $38,389.18 of the principal was paid (both sums do not account for the
additional January 3, 2022, payment). The magistrate never made a factual finding as to
the amount of principal the vendees actually paid or set forth the calculation. Further, the
magistrate never determined whether the additional payment applied under the terms of
the contract. The magistrate’s conclusion simply stated, “I therefore find, at best, there
was only (1) extra payment and even crediting the [vendees] with $2000.00 off the
principal for that payment, the amount does not come to the 20% threshold.” In addition,
in their subsequent objections to the magistrate’s decision, the vendees asserted that the
amount of paid principal was $39,198.52 and that there is an additional, unaccounted for
payment of $350.
Case No. 2023-T-0022 {¶45} Most fundamentally, all three of these sums result in a variance of 18.59%
to 20.12% (with the additional January 3, 2022, payment), and we cannot glean from the
evidence in the record which of Mr. Sood’s numbers the magistrate found credible. Nor
does a review of the trial court’s judgment entry overruling the vendees’
objections/supplemental objections offer any insight. Although the court stated it
conducted an “independent review,” it was silent as to any of the issues the vendees
raised and failed to address any of the vendees’ objections to the magistrate’s
calculations. Thus, we cannot find the manifest weight of the evidence supports the trial
court’s judgment since we cannot review it from the record. See Reamensnyder v.
Marino, 2018-Ohio-5336, 127 N.E.3d 340, ¶ 10 (11th Dist.) (finding trial court’s judgment
adopting the magistrate’s decision was against the manifest weight of the evidence
because the record did not contain sufficient grounds to justify the magistrate’s decision
and the trial court did not review any additional evidence); Singer Steel Co. v. H & J Tool
& Die Co., Inc., 11th Dist. Portage No. 2002-P-0135, 2004-Ohio-5007, ¶ 22-37 (evidence
in the record did not support the magistrate’s findings); Nieto v. Marcellino, 11th Dist.
Geauga No. 2017-G-0146, 2018-Ohio-4952, ¶ 20 (trial court erred as a matter of law in
adopting magistrate’s award of damages because the magistrate failed to make a factual
finding in the magistrate’s decision).
{¶46} Since the 20% issue is the linchpin to resolving this case, and we cannot
ascertain the amount of paid principal (and the magistrate’s calculation) from the record,
we reverse and remand for the trial court to conduct an independent, de novo review of
the magistrate’s decision and the vendees’ objections/supplemental objections and to
Case No. 2023-T-0022 {¶47} Pursuant to our holding in the second assignment of error, the remaining
assignments of error are moot.
{¶48} The judgment of the Warren Municipal Court is reversed and remanded in
JOHN J. EKLUND, P.J.,
EUGENE A. LUCCI, J.,
concur.
Case No. 2023-T-0022