[Cite as Warnecke v. Chaney, 194 Ohio App.3d 459, 2011-Ohio-3007.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

WYANDOT COUNTY 

 

WARNECKE, 

 APPELLANT, CASE NO. 16-10-11 

 v. 

CHANEY ET AL., O P I N I O N 

 APPELLEES. 

 

Appeal from Wyandot County Common Pleas Court 

Trial Court No. 09 CV 0176 

Judgment Affirmed 

Date of Decision: June 20, 2011 

 

APPEARANCES: 

Charles R. Hall Jr., for appellant. 

Dennis E. Pfeifer, for appellees. 
Case No. 16-10-11 

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SHAW, Judge. 

{¶1} Appellant, Donna Warnecke (“Donna”), appeals the October 8, 2010 

judgment of the Wyandot County Court of Common Pleas dismissing her claims 

for conversion, fraud, and unjust enrichment against appellees, Valli Chaney 

(“Valli”) and Jim Chaney (“Jim”). 

{¶2} Donna is Valli’s mother. In 2005, Valli made arrangements for Donna 

to move from her home in Fostoria, Ohio, to McCutchenville, Ohio, where Valli 

resides. Donna’s health was deteriorating, and it was no longer practical for her to 

live in her five-bedroom house in Fostoria, which also required maintaining a 

swimming pool and a large yard. In addition, Donna’s move to McCutchenville 

ensured that Valli could check in on her elderly mother more frequently than 

before. 

{¶3} Donna agreed to put her house in Fostoria on the market, and Valli 

began looking for a house for Donna in McCutchenville. After failing to find a 

suitable house for Donna, Valli offered to allow Donna to live in one of her rental 

properties in McCutchenville, located at 143 Clay Street, which also happened to 

be situated next to the home of Donna’s other daughter, Vicky. Valli bought the 

home in 2000 for $35,000 and spent $10,000 on renovations to make the house 

rentable. Since that time, Valli rented the house for $400 a month. 
Case No. 16-10-11 

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{¶4} It is undisputed by the parties that Valli’s rental house was not big 

enough for Donna’s belongings and that Donna needed a larger bedroom. Valli’s 

husband, Jim, owns a contracting business and agreed to remodel the home to 

accommodate Donna’s needs. Valli and Jim testified that the agreement with 

Donna was that she would pay for the remodeling and, in return, she would live in 

the house rent free for the remainder of her life. Valli also testified that she agreed 

to pay all the expenses related to the house and that she and Jim would cook, 

clean, and take care of the yard work for Donna. The only expense Donna would 

be responsible for was the cost of her utilities. This alleged agreement, however, 

was never reduced to writing. 

{¶5} On May 11, 2005, Jim’s company began work on the improvements. 

Donna lived with Valli and Jim while the construction took place. Jim testified 

that his company built a 20 foot by 40 foot addition on a poured concrete slab, 

which included a new bedroom and living room; installed a new front porch on the 

front of the property with a sitting area; and remodeled the garage. Jim explained 

that the house was also modified to make it more convenient for Donna by 

removing steps and other obstacles that may be difficult for her to traverse. Jim’s 

company finished the project on September 23, 2005. Donna subsequently moved 

into the residence. Both Jim and Valli recalled that Donna was very pleased with 

the renovations. 
Case No. 16-10-11 

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{¶6} Shortly after the renovations were complete, Jim submitted an invoice 

to Donna that reflected that the cost of the entire project was $69,926 ($36,016 for 

materials and $33,910 for the labor). The invoice noted that Donna made two 

payments toward the final balance in the amounts of $8,300 on June 16, 2005, and 

$9,993 on June 17, 2005. According to the testimony at trial, the remaining 

$51,633 for the renovations was to be taken out of the proceeds from the sale of 

Donna’s home in Fostoria. However, at the time Donna’s house had not yet sold 

and was still on the market. Jim testified that in the interim Valli covered the cost 

of the renovations by paying the remaining balance out of her savings account. 

{¶7} On November 10, 2006, nearly 14 months after the renovations were 

completed, Donna’s home in Fostoria sold. Jim accompanied Donna to the 

closing. Donna received a check for $73,517.58 from the sale of her home. After 

the closing, Donna and Jim went to the bank and deposited $51,633—the balance 

for the cost of the improvements—into Valli’s savings account. The rest of the 

sale proceeds were deposited into Donna’s account. 

{¶8} Several months later, on June 7, 2007, Donna met with her attorney, 

Clair Forrest, to discuss a number of estate-planning and financial matters. 

Among the things discussed was Donna’s interest in the 143 Clay Street property. 

Donna claimed that she paid Valli and Jim $71,126 (the cost of the remodeling 
Case No. 16-10-11 

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plus $1,200 for the furnace) to purchase the 143 Clay Street property but had yet 

to receive the deed. 

{¶9} Valli and Jim were surprised to discover that Donna believed the 

money she paid them was for the purchase of the property and not the remodeling. 

The parties attempted to reach an agreement on the matter but failed to settle their 

differences. 

{¶10} On September 25, 2009, Donna filed this action against Valli and 

Jim alleging conversion, negligence, unjust enrichment, and fraud. Jim and Valli 

timely filed an answer. Prior to trial, Donna informed the trial court that she was 

not going to proceed on her negligence claim. 

{¶11} On August 11, 2010, the case was heard before the bench. On 

October 8, 2010, the trial court issued its decision on the matter. The trial court 

found that Donna failed to present sufficient evidence to support her case and 

dismissed her claims for conversion, unjust enrichment, and fraud against Valli 

and Jim. Notably, Donna remained living in the house while these proceedings 

were pending. 

{¶12} Donna now appeals, asserting the following assignment of error. 

ASSIGNMENT OF ERROR 

The decision of the trial court regarding the plaintiff’s claims 

for conversion, unjust enrichment and fraud was against the manifest 

weight of the evidence. 
Case No. 16-10-11 

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{¶13} At the outset, we note that a civil judgment “supported by some 

competent, credible evidence going to all the essential elements of the case will 

not be reversed by a reviewing court as being against the manifest weight of the 

evidence.” C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 

N.E.2d 578, syllabus. “[W]hen reviewing a judgment under a manifest-weight-ofthe-evidence standard, a court has an obligation to presume that the findings of the 

trier of fact are correct.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 

865 N.E.2d 1264, ¶ 24, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio 

St.3d 77, 80, 461 N.E.2d 1273. The rationale for this presumption is that the trial 

court is in the best position to evaluate the evidence by viewing witnesses and 

observing their demeanor, voice inflection, and gestures. Seasons Coal Co. at 80. 

“A reviewing court should not reverse a decision simply because it holds a 

different opinion concerning the credibility of the witnesses and evidence 

submitted before the trial court. A finding of an error in law is a legitimate ground 

for reversal, but a difference of opinion on credibility of witnesses and evidence is 

not.” Id. at 81. 

{¶14} On appeal, Donna argues that the trial court’s decision to dismiss her 

claims for conversion, unjust enrichment, and fraud is against the manifest weight 
Case No. 16-10-11 

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of the evidence. We will address the trial court’s decision as to each of Donna’s 

claims in turn. 

1. Conversion 

{¶15} Donna contends that the trial court erred in finding that Valli and Jim 

did not commit conversion when they failed to transfer the deed to her for the 

property after she paid for the cost of the improvements performed by Jim. 

Conversion is the “ ‘wrongful exercise of dominion over property to the exclusion 

of the rights of the owner, or withholding it from his possession under a claim 

inconsistent with his rights.’ ” State ex rel. Toma v. Corrigan (2001), 92 Ohio 

St.3d 589, 592, 752 N.E.2d 281, quoting Joyce v. Gen. Motors Corp. (1990), 49 

Ohio St.3d 93, 96, 551 N.E.2d 172. “The elements of conversion are: (1) 

plaintiff’s ownership or right to possession of the property at the time of the 

conversion; (2) defendant’s conversion by a wrongful act or disposition of 

plaintiff's property rights; and (3) damages.” Miller v. Cass, 3rd Dist. No. 3-09-

15, 2010-Ohio-1930, ¶ 32, quoting Dice v. White Family Cos., Inc., 173 Ohio 

App.3d 472, 2007-Ohio-5755, 878 N.E.2d 1105, ¶ 17. 

{¶16} Here, the trial court found that there was no evidence of an 

agreement between the parties that Donna was purchasing the property with the 

money that she gave to Jim and Valli to pay for the improvements. Thus, there 

was no evidence that Donna obtained an ownership interest in the home. The trial 
Case No. 16-10-11 

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court also concluded that based on the evidence at trial, Donna had incurred an 

antecedent debt for the cost of the improvements. Accordingly, the trial court 

determined that this debt was extinguished at the moment Donna transferred the 

proceeds from the sale of her Fostoria home to Jim. Therefore, the trial court held 

that the funds ceased to be Donna’s and that she consequently had no ownership 

rights to the money she paid to Valli and Jim for the balance of the improvements’ 

cost. 

{¶17} The parties’ testimony at trial concerning their agreement was 

surprisingly similar. Valli, Jim, and Donna each testified that the essential terms 

of the agreement were that Donna could move into Valli’s rental home, live there 

rent free for the remainder of her life, and the only bills she would be responsible 

for were her utilities. The evidence also demonstrates that Donna would not have 

moved into the rental house unless the renovations were made. 

{¶18} Notably, Donna failed to voice any objections when Jim submitted 

an invoice to her in September 2005 detailing the cost of the improvements. Once 

Donna’s house sold in November 2006, Jim accompanied her to the closing and 

subsequently to the bank with the understanding that the remaining balance for the 

cost of the remodeling would be paid out of the proceeds from the sale. There is 

no evidence before the trial court that Donna objected to transferring this money 

into Valli’s account to satisfy this debt. Moreover, Donna testified that she had 
Case No. 16-10-11 

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owned five houses during her lifetime and was familiar with real-estate-closing 

procedures. Nevertheless, it was not until eight months later, in June 2007, when 

Donna first mentioned that she believed she was entitled to the deed to the 

property for the money she paid for the renovations. 

{¶19} Although Donna may have misunderstood the legal consequences of 

paying for the improvements, there is no evidence of an agreement between the 

parties that Valli would transfer the deed to Donna after she had paid for the cost 

of the remodeling. Furthermore, Donna admitted that no one made her any 

promises concerning the property. Simply put, the evidence fails to demonstrate 

that Donna had any ownership rights to the property, let alone to substantiate her 

claim that Jim and Valli wrongfully exercised dominion over her property to the 

exclusion of her ownership rights. Accordingly, we conclude that the trial court’s 

decision to dismiss Donna’s claim for conversion is supported by some competent, 

credible evidence going to all the essential elements of the case and is not against 

the manifest weight of the evidence. 

2. Unjust Enrichment 

{¶20} Donna maintains that the trial court erred in finding that Valli and 

Jim were not unjustly enriched by Donna’s payment for the renovations. Donna 

also asserts that she received no benefit for the money that she expended to 

improve Valli’s property. 
Case No. 16-10-11 

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{¶21} The elements of an unjust-enrichment claim are as follows: (1) a 

benefit conferred by a plaintiff upon a defendant, (2) knowledge by the defendant 

of the benefit, and (3) retention of the benefit by the defendant under 

circumstances in which it would be unjust to do so without payment. City Rentals, 

Inc. v. Kesler, 191 Ohio App.3d 474, 2010-Ohio-6264, 946 N.E.2d 785, ¶ 12, 

citing Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183, 465 N.E.2d 

1298. 

{¶22} Initially, we note that the trial court determined that Donna did in 

fact receive a benefit from Valli and Jim because she has lived on the property rent 

free for the past five years and continues to do so, with no expenses other than her 

monthly utilities. Moreover, at the time of trial, Jim and Valli had already lost 

$25,000 in foregone rent since Donna moved into the residence in September 

2005. The testimony also reveals that Valli and Jim were willing to honor their 

agreement with Donna and permit her to live in the residence for the remainder of 

her life, despite the potential outcomes of these proceedings. Furthermore, the 

evidence shows that the improvements were made only to accommodate Donna, 

and that Jim and Valli could have continued to collect rent from the property in its 

condition prior to the renovations but chose to forego that income to ensure that 

Donna lived in a suitable home close to her family. Notwithstanding the apparent 

benefit received by Donna in this arrangement, there is no evidence to suggest that 
Case No. 16-10-11 

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Valli and Jim received and retained a benefit at Donna’s expense when it would be 

unjust to do so without payment. 

{¶23} Therefore, we conclude that the trial court’s finding that Donna 

failed to establish she is entitled to recovery on the basis of unjust enrichment is 

not against the manifest weight of the evidence because it is supported by some 

competent, credible evidence going to all the essential elements of the case. 

3. Fraud 

{¶24} Finally, Donna contends that the trial court erred when it determined 

that she failed to present sufficient evidence to support her claim for fraud against 

Valli and Jim. Specifically, Donna maintains that Valli and Jim intentionally 

misled her into believing that she would receive the deed to the property upon her 

payment for the cost of the improvements. 

{¶25} A claim of fraud requires proof of the following elements: “(a) a 

representation or, where there is a duty to disclose, concealment of a fact, (b) 

which is material to the transaction at hand, (c) made falsely, with knowledge of 

its falsity, or with such utter disregard and recklessness as to whether it is true or 

false that knowledge may be inferred, (d) with the intent of misleading another 

into relying upon it, (e) justifiable reliance upon the representation or 

concealment, and (f) a resulting injury proximately caused by the reliance.” Russ 

v. TRW, Inc. (1991), 59 Ohio St.3d 42, 49, 570 N.E.2d 1076. 
Case No. 16-10-11 

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{¶26} Additionally, a plaintiff who prosecutes a fraud claim has the burden 

of proving that the defendant knowingly and intentionally misled or deceived the 

plaintiff. Urbanek v. All State Home Mtge. Co., 178 Ohio App.3d 493, 2008-

Ohio-4871, 898 N.E.2d 1015, ¶ 11. This burden cannot be established by 

conjecture, but rather must be proved by “direct evidence or justifiable inferences 

from established facts.” Id., citing Pumphrey v. Quillen (1955), 102 Ohio App. 

173, 177, 141 N.E.2d 675. 

{¶27} In the instant case, Donna offers only mere conjecture that Valli and 

Jim committed a fraud against her regarding their arrangement concerning the 

property. There is no evidence to support Donna’s claim that Valli and Jim made 

a false or misleading representation to her that she would get the deed in exchange 

for paying for the cost of the renovations. As previously mentioned, Donna 

admitted at trial that no one made any promises to her concerning the property. 

Moreover, the record is devoid of any evidence to support Donna’s position that 

Valli and Jim intentionally misrepresented the nature of their agreement 

concerning the improvements to the property. 

{¶28} Accordingly, we find that the trial court’s decision to dismiss 

Donna’s claim for fraud is supported by some competent, credible evidence going 

to all essential elements of the case and, therefore, is not against the manifest 

weight of the evidence. 
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{¶29} Based on the foregoing, Donna’s assignment of error is overruled, 

and the judgment of the Wyandot County Court of Common Pleas is affirmed. 

Judgment affirmed. 

ROGERS, P.J., and WILLAMOWSKI, J., concur.