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Leah Musarra, et al. v. Roger Griffin

September 30, 2011

LEAH MUSARRA, ET AL. APPELLANT
v.
ROGER GRIFFIN, EXECUTOR APPELLEE



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 09 03 2101

The opinion of the court was delivered by: Dickinson, Judge.

Cite as

Musarra v. Griffin,

ss:

DECISION AND JOURNAL ENTRY

INTRODUCTION

{¶1} Rosario Musarra began building a house for himself, his wife Leah, and his son Mark. Because he wanted Mark to gain construction experience, he asked him to oversee the project and granted him a power of attorney. Mr. Musarra also put money in a bank account for Mark to use to pay contractors. Mr. Musarra died, however, a few months before the house was finished. Despite Mr. Musarra's death, Mark and Leah finished the house, allegedly using some of their own money to pay contractors when the funds that were in the bank account ran out. They filed a claim with the executor of Mr. Musarra's estate, seeking to recover the amount they paid contractors from their own assets and for any amounts that were still owed to contractors. When the executor denied their claim, the Musarras sued the estate. The trial court assigned the case to a magistrate, who determined that the Musarras could not recover from Mr. Musarra's estate. In particular, he determined that an agent cannot recover from his principal on behalf of unpaid creditors. He also determined that there was no evidence that the Musarras used their own funds to pay Mr. Musarra's debts. The Musarras objected, but the trial court adopted the magistrate's decision and entered judgment for the estate. The Musarras have appealed, arguing that the court incorrectly allowed the estate to withdraw a stipulation after they finished presenting their case and that it incorrectly concluded that they could not collect on the contracts Mark had entered into under the power of attorney. We affirm because the trial court did not allow the estate to withdraw from a stipulation and it correctly determined that the Musarras could not recover from the estate.

PROCEDURAL BACKGROUND

{¶2} The Musarras filed a complaint against Mr. Musarra's estate, seeking to recover for any construction expenses that were unpaid at the time of Mr. Musarra's death. The estate counterclaimed against Leah, alleging that, because ownership of the house transferred to her upon Mr. Musarra's death, she would be unjustly enriched if it had to pay all of the construction costs. The case was heard by a magistrate, who determined that the Musarras could not recover from the estate on behalf of its unpaid creditors. He also determined that the Musarras had failed to prove that they used their own funds to pay contractors.

{¶3} Ten days after the magistrate entered his decision, the Musarras objected to it, arguing that his findings were contrary to the weight of the evidence and that he had incorrectly concluded that Mark could not sue the estate on behalf of the contractors. The Musarras also requested additional time to file a memorandum in support of their objections until after the transcript was filed. The trial court granted their motion. A month later, the Musarras filed another "[o]bjection" to the magistrate's decision, arguing that he had incorrectly determined Finding of Fact #23, regarding whether they had paid any of the contractors from their own funds. They also argued that the magistrate incorrectly decided Conclusion of Law #3, regarding whether Mr. Musarra was indebted to the contractors, and Conclusion of Law #4, regarding whether they could recover on their claims. They filed a memorandum of law in support of their objection.

{¶4} The trial court reviewed the Musarras' objections, but determined that there was "no error of law or defect on the relevant facts in the Magistrate's Decision." It adopted the magistrate's decision, found in favor of the estate on the Musarras' claims, and denied the estate's counterclaim as moot. The Musarras have appealed, assigning two errors.

STIPULATION

{¶5} Mark and Leah Musarra's first assignment of error is that the trial court incorrectly allowed the estate to withdraw from a stipulation too late during trial, which resulted in unfair surprise and a finding that they had failed to present the evidence that they claim the stipulation covered. According to the Musarras, the parties had stipulated that the invoices they submitted established that the total amount of work performed by contractors that was unpaid at the time of Mr. Musarra's death was approximately $145,000. The Musarras have argued that the purpose of the stipulation was so they would not have to call each of the individual contractors as witnesses. After they rested, however, the estate argued that the Musarras should have called the contractors to establish when the unpaid work was performed.

{ΒΆ6} The Musarras' argument is without merit. At the beginning of the trial, the Musarras' lawyer explained that, regarding the contractor invoices, the parties were stipulating "that the work was done, again, not who is responsible to pay it[.]" Neither side indicated that there was a stipulation ...


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