[Cite as Ludwig v. Lydick, 2011-Ohio-5164.]

STATE OF OHIO, MONROE COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

PHILIP LUDWIG, et al., ) 

 ) CASE NO. 10 MO 9 

 PLAINTIFFS-APPELLEES, ) 

 ) 

 VS. ) O P I N I O N 

 ) 

DANIEL LYDICK, II, et al., ) 

 ) 

 DEFENDANTS-APPELLANTS. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, 

 Case No. 2009-165. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiffs-Appellees: Attorney James Peters 

 107 West Court Street 

 Woodsfield, Ohio 43793 

For Defendants-Appellants: Attorney Ric Daniel 

 1660 NW Professional Plaza, Suite A 

 Columbus, Ohio 43220 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

 Dated: September 26, 2011 
VUKOVICH, J. 

¶{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. 

¶{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 required to pay the $59,500 

called for in the written contract plus $3,519.22 for the additional acreage. As the 

court explained: 

¶{11} “The Court finds that Ludwigs’ surveyed portion of the McQueen property 

of approximately 174 acres, at $650.00 per acres, amounts to $113,100.00. Therefore, 

the Court hereby Orders Ludwigs to deposit the sum of $63,019.22 (payable to 
Woodsfield Savings Bank) with the Clerk of Courts within thirty (30) days. This figure 

represents $113,100.00 for their surveyed portion of the McQueen property, less the 

amount previously paid at closing of $39,699.50, less the amount of payments already 

made ($399.28 x 26 months) of $10,381.28, leaving a balance of $59,500.00 called for 

in the contract ̧ and $3,519.22 for the approximate remaining acreage.” 09/23/10 J.E. 

¶{12} The Lydicks appeal the trial court’s decision that there was an oral 

amendment to the contract between the parties. 

ASSIGNMENT OF ERROR

¶{13} “THE LOWER COURT COMMITTED ERROR IN AWARDING 

APPELLEES 174 ACRES CONTRARY TO THE TERMS OF THE AGREEMENT.” 

¶{14} This case deals with an alleged oral amendment to a contract. In Ohio, it 

is well settled that a party asserting the oral modification of, or addition to, a written 

contract must establish that charge by clear and convincing evidence. Russell v. 

Daniels-Head & Associates, Inc. (June 30, 1987), 4th Dist. No. 1600, citing Ashley v. 

Henahan (1897), 56 Ohio St. 559, paragraph five of the syllabus and Olinger v. 

McGuffey (1896), 55 Ohio St. 661. The Supreme Court of Ohio has defined “clear and 

convincing evidence” as “‘that measure or degree of proof which is more than a mere 

“preponderance of the evidence,” but not to the extent of such certainty as is required 

“beyond a reasonable doubt” in criminal cases, and which will produce in the mind of 

the trier of facts a firm belief or conviction as to the facts sought to be established.’ 

Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus.” Cleveland 

Bar Assn. v. Cleary (2001), 93 Ohio St.3d 191, 198. 

¶{15} The Lydicks position is that the evidence did not clearly and convincingly 

establish that there was an oral modification to the written contract. This argument is 

an assertion that the trial court’s decision was against the manifest weight of the 

evidence. 

¶{16} Appellate review of a manifest weight of the evidence argument in a civil 

case is much more deferential to the trial court than in a criminal case. State v. 

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶26. The civil manifest weight of the 

evidence standard provides that judgments 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. Id. at ¶24, citing 

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

¶{17} The reviewing court is obliged to presume that the findings of the trier of 

fact are correct. Id., citing Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 

77, 80-81. This presumption arises in part because the fact-finder occupies the best 

position to observe the witnesses' demeanor, gestures, and voice inflections and to 

utilize these observations in weighing credibility. Id., citing Seasons Coal, supra at 80. 

¶{18} This civil manifest weight standard of review applies to civil judgments 

requiring clear and convincing evidence. State v. Baird, 7th Dist. No. 07CO25, 2008-

Ohio-3328, ¶31. 

¶{19} The written contract at issue in this case does not contain a prohibition 

against oral modification. Thus, according to Ohio law oral modification is permitted. 

Kelley v. Ferraro, 188 Ohio App. 3d 734, 744, 2010-Ohio-2771, ¶39 citing FreemanMcCown v. Cuyahoga Metro. Hous. Auth. (Oct. 26, 2000), 8th Dist. Nos. 77182 and 

77380; Rosepark Properties, Ltd. v. Buess, 167 Ohio App.3d 366, 2006-Ohio-3109, 

¶38; Chiaverini, Inc. v. Jacobs, 6th Dist. No. L-06-1360, 2007-Ohio-2394, ¶24; Fultz & 

Thatcher v. Burrows Group Corp., 12th Dist. No. CA2005-11-126, 2006-Ohio-7041, at 

¶17. That said, a contract cannot be unilaterally modified; the parties must mutually 

consent to the modification. Fraher Transit, Inc. v. Aldi, Inc., 9th Dist. No. 24133, 

2009-Ohio-336, ¶12; Nagle Heating & Air Conditioning Co. v. Heskett (1990), 66 Ohio 

App.3d 547, 550. 

¶{20} In the case at hand, the written contract indicated that the parties would 

split the 300 acres equally with each party receiving 150 acres was admitted at trial. 

However, as aforementioned, that contract does not provide how the property would 

be split, i.e. it did not state that the property would be split north/south, east/west, 

diagonally, or by any other configuration. 

¶{21} Glenn Ludwig testified that originally the parties orally agreed to split the 

property north and south down the middle. (Trial Tr. 19). He explained that Daniel 

Lydick did not want it split that way because the Lydicks would not be receiving all of 

the property that abutted the property they already owned. (Trial Tr. 19-20). Daniel 

Lydick wanted the property that was close to his property and he wanted the barn and 
the gas and oil wells. (Trial Tr. 19). Glenn Ludwig claimed that he and Daniel Lydick 

met with Mr. Hunnell, the surveyor, and agreed to split the property in a manner done 

by the survey which was 173.883 acres to the Ludwigs and 125.18 acres to the 

Lydicks. (Trial Tr. 20). 

¶{22} Daniel Lydick initially testified that he did not agree to split the land 

according to the survey. (Tr. 9). However, upon further questioning, he agreed that 

during his deposition testimony he stated that he orally agreed “to an extent” that the 

survey showed how the property would be divided. (Trial Tr. 10-11). His testimony 

concerning the survey and the splitting of the land is as follows: 

¶{23} “Q. [Direct Examination]: All right. Now, you heard some testimony 

earlier that you changed the terms or tenor of this agreement and went from a hundred 

and fifty to a hundred and seventy that the plaintiff [the Ludwigs] was supposed to 

receive. 

¶{24} “Do you remember that? 

¶{25} “A. Yes. They – the survey was going to split the property this way 

[Indicating]. 

¶{26} “Q. Length wise? 

¶{27} “A. Length. That served me and my family no purpose that way. 

¶{28} “I mean, before we even talked about it, I talked with Glenn [Ludwig] 

several times about how the property was going to be split equally. 

¶{29} “And I’ll never forget, they said during the conversation with Hunnell, that 

by putting the line where he wanted to put it, may be the difference of six or seven 

acres. It made a difference of almost twenty-five acres. 

¶{30} “And I asked him you know, what makes him feel that he needs a 

hundred seventy-four acres of the property that I did a deal on, and he pointed to the 

map and he said because you own this up here [Indicating]. 

¶{31} “* * * 

¶{32} “Q. All right. So was there ever an understanding between you and 

plaintiffs [the Ludwigs] that you would in fact convey to them a hundred and seventy 

some acres as opposed to a hundred and fifty? 
¶{33} “A. We didn’t know what the amount of acreage was going to be, 

because the survey wasn’t back or wasn’t compete. 

¶{34} “We didn’t know. 

¶{35} “* * * 

¶{36} “Q. [Cross-examination]: Let’s get back to this split of the property. You 

kind of indicated in response to some of Mr. Daniel’s questions that you agreed to a 

split but you didn’t really know how many acres it was going to be one way or the 

other. 

¶{37} “Is that correct? 

¶{38} “A. That’s correct. 

¶{39} “Q. And so you did agree to a split with Hunnell and Mr. Ludwig, is that 

right? 

¶{40} “A. To an extent, yes. 

¶{41} “Q. And – 

¶{42} “A. Not seeing what it is or not knowing, I guess you could say that. 

¶{43} “Q. And the first time you voiced your dissatisfaction with that split was 

when the final survey came back and you discovered that the variance in acreage was 

more than you thought it was going to be? 

¶{44} “A. Not necessarily my – when my red flag went up was when I asked 

him why we’re splitting it this way, and he told me because I own this property up here 

[Indicating]. 

¶{45} “Meaning that I own eighty-three acres besides this, it was like that I was 

going to have more ground than them or something down there and they was trying to 

acquire more ground in that way. 

¶{46} “When I asked him why, that was the only answer that he could give, is 

because I own this here [Indicating].” (Trial Tr. 103-104, 111-112). 

¶{47} Likewise, portions of his deposition testimony were discussed at trial. In 

his deposition he agreed that the survey showed that the property would be divided 

177 acres to the Ludwigs and 125 acres to him. (Tr. 10; Depo. Tr. 11-12, 13-14). He 

stated he agreed that the property would be divided that way to a certain extent. (Tr. 

10-11, Dep. Tr. 11-12, 13-14). 
¶{48} Considering all of the testimony, the trial court had a reasonable basis to 

believe Glenn Ludwig’s testimony over Daniel Lydick’s testimony. The trial court is in 

the best position to determine which witness was more believable, especially 

considering Daniel Lydick’s position that he agreed to the split according to the survey, 

but only to a “certain extent.” Considering all of the evidence, Glenn Ludwig’s 

testimony provided some competent credible evidence that the contract was orally 

modified and that there was an agreement to split the property pursuant to the survey. 

Therefore, considering our deferential standard of review, the trial court’s well 

reasoned opinion, and all of the evidence, we cannot find that the trial court’s decision 

was against the manifest weight of the evidence. This assignment of error is 

meritless. 

¶{49} For the foregoing reasons, the judgment of the trial court is hereby 

affirmed. 

Donofrio, J., concurs. 

Waite, P.J., concurs.