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Philip Ludwig, et al v. Daniel Lydick

September 26, 2011

PHILIP LUDWIG, ET AL., PLAINTIFFS-APPELLEES,
v.
DANIEL LYDICK, II, ET AL., DEFENDANTS-APPELLANTS.



CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Case No. 2009-165.

The opinion of the court was delivered by: Vukovich, J.

OPINION

JUDGMENT: Affirmed.

JUDGES: Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Cheryl L. Waite

¶{1} Defendants-appellants Daniel and Aubrey Lydick (the Lydicks) appeal the decision of the Monroe County Common Pleas Court granting judgment in favor of plaintiffs-appellees Philip and Glenn Ludwig (the Ludwigs) in a contractual dispute.

¶{2} The Lydicks contend that the trial court's decision finding that there was an oral amendment to the parties' written agreement was against the manifest weight of the evidence. The Ludwigs disagree, stating that there is competent credible evidence to support the trial court's holding that the contract was amended orally to split the land according to the survey.

¶{3} A review of the record indicates that the trial court's decision was well reasoned, just and supported by some competent credible evidence. Thus, as it was not against the manifest weight of the evidence, the judgment of the trial court is hereby affirmed.

STATEMENT OF FACTS AND CASE

¶{4} The Lydicks and the Ludwigs entered into a written agreement for purchase and financing a 300 acre tract of real property in Monroe County (tract of land referred to as the McQueen property). The McQueen property seller would only sell to the Lydicks, thus, the Lydicks entered into a sales agreement with the seller to purchase the property for $195,000. The written agreement between the Lydicks and the Ludwigs provided that the Ludwigs would provide the $35,000 down payment to Woodsfield Savings Bank. At closing the Ludwigs actually paid $39,699.50. (Tr. 36).

The written agreement between the parties provided that the 300 acre tract of land would be split evenly with each party receiving 150 acres.

¶{5} Other than stating that each party would receive 150 acres, the written agreement did not describe how the property would be split. Thus, sometime after the agreement was made and after the property was purchased, the parties had the land surveyed for purposes of dividing it. The surveyor split the land 173.883 acres for the Ludwigs and 125.18 acres for the Lydicks. The Lydicks received the land that was abutting their already owned property, which included the barn and wells.

¶{6} For approximately two years the Ludwigs paid their portion of the mortgage to the Lydicks and the Lydicks remitted that amount plus their portion to the Woodsfield Savings Bank. However, after that point, the Lydicks began to refuse acceptance of the Ludwigs portion of the mortgage payment.

¶{7} The Ludwigs then sought to invoke paragraph four of the written agreement. That paragraph indicates that if the Ludwigs would make an additional $59,500 payment to Woodsfield Savings Bank, the Lydicks would within 60 days give them a warranty deed to their portion of the property. Thus, the Ludwigs were seeking a deed pursuant to the survey for their purported 173.883 acres. The Lydicks purportedly indicated that they would not produce a deed if the Ludwigs paid that amount.

¶{8} The Ludwigs then filed a complaint against the Lydicks seeking a declaration of parties' rights concerning the written agreement and the alleged "oral modification of the agreement" which split the land pursuant to the survey. The Ludwigs also sought money damages based upon other claims brought against the Lydicks, which are not at issue in this appeal.

¶{9} In response, the Lydicks filed an answer and counterclaim and later filed a third party complaint solely against Glenn Ludwig. The Ludwigs filed an answer to the counterclaim. In response to the third party complaint, Glenn Ludwig filed an answer and a motion to dismiss. Thereafter, the Ludwigs filed a motion for partial summary judgment on the counterclaim and the third party complaint, which was granted in its entirety.

ΒΆ{10} The matter then proceeded to trial solely on the Ludwigs' complaint. Testimony was taken from all parties. Following trial, the trial court found that when the survey was being done the parties agreed to the manner in which the surveyor split the McQueen property. Thus, the parties were bound by the survey and the Ludwigs were entitled to specific performance. However, the trial court found that in order to receive a deed for their 173.883 acres they were ...


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