[Cite as Swank v. Swank, 2011-Ohio-6920.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ROBERT L. SWANK, et al. 

 Plaintiffs-Appellees 

v. 

FREEMAN J. SWANK, JR., et al. 

 Defendants-Appellants 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. John W. Wise, J. 

Hon. Julie A. Edwards, J. 

Case No. 2011 CA 8 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 96 CV 0254 

JUDGMENT: Affirmed in part; reversed in part 

DATE OF JUDGMENT ENTRY: December 30, 2011 

APPEARANCES: 

For Plaintiffs-Appellees Robt. & E. Clark For Defendant-Appellant Mary Jane 

MICHAEL L. INSCORE SHAWN W. MAESTLE 

INSCORE, RINEHARDT, WHITNEY ANGELA G. CARLIN 

& ENDERLE WESTON HURD 

13 Park Avenue West, Suite 400 1301 East 9th Street, Suite 1900 

Mansfield, Ohio 44902-1741 Cleveland, Ohio 44114-1862 

For Defendant-Appellee Rheabelle For Defendant-Appellant Freeman and 

 Appellee Estate 
JOHN K. KELLER 

VORYS, SATER, SEYMOUR & PEASE ROBERT S. NAYLOR 

Post Office Box 1008 Post Office Box 4697 

Columbus, Ohio 43216 Steubenville, Ohio 43952 

Wise, J. 

{¶1} Defendants-appellants Freeman J. Swank, Jr. and Mary Jane Swank 

appeal the jury verdict entered in the Court of Common Pleas of Richland County, Ohio, 

in favor of Plaintiffs-Appellees Robert L. Swank and E. Clark Swank 

{¶2} Robert L. Swank and E. Clark Swank filed a cross-appeal, challenging the 

trial court’s judgment notwithstanding the verdicts as to their claims of unjust 

enrichment, along with the trial court’s December 8, 2009, Judgment Entry denying their 

motion for leave to file an amended complaint and dismissing their claims for 

constructive fraud and promissory estoppel. 

STATEMENT OF THE FACTS AND CASE

{¶3} The case has a very long and complicated history dating back to at least 

1995. Freeman Swank, Sr., now deceased, and his wife Rheabelle Swank are the 

parents of Freeman Swank, Jr., Robert L. Swank, and E. Clark Swank. 

{¶4} Freeman Sr. and Rheabelle owned approximately 670 acres of farm land, 

on which they conducted dairy and farming operations and raised hogs. The land was 

referred to as the Residence Farm (76 acres), the Dairy Farm (305 acres) and the Hog 

Farm (275 acres). 

{¶5} Robert and Clark worked on the family farm, Robert beginning in 1965 and 

Clark in 1968. According to Robert, Freeman Sr. had promised that approximately 285 

acres of the property, including the dairy operations and a farm house where Robert 

lived, would be conveyed to Robert upon the deaths of his parents, if not sooner. Clark 
alleged the Swank parents had promised to title 270 acres of the property, where the 

parties conducted the hog raising operation, as well as the farmhouse where Clark 

lived, to Clark upon their deaths, if not sooner. 

{¶6} Both Clark and Robert allege during the time they worked the family farm 

they received weekly draws of substantially less than the minimum wage, along with 

tenancy rights in the farmhouses. They allege from time to time, each had to borrow 

money to finance various aspects of the farming operations and to maintain and 

purchase farm equipment and livestock. 

{¶7} Clark and Robert alleged they were actually partners in the family farm, 

but because of income tax considerations, the family operated the business as a 

proprietorship rather than a partnership. 

{¶8} Clark and Robert also allege that on a number of occasions, prior to 1995, 

their parents, Freeman Swank, Sr. and Rheabelle Swank, showed them their wills1

which, upon the death of the surviving parent, left either all of the farm property, or just 

the hog and dairy farms to Robert and Clark. 

{¶9} In the late 1970’s, early 1980’s, the farming operations began to lose 

money, requiring the parents to use personal funds and to mortgage the property to 

keep the farm going. In 1983, Freeman, Sr. and Rheabelle obtained a mortgage loan 

with Bank One in the amount of $550,000. When their financial situation did not 

improve, the parents took out additional loans. 

 

1 The Swanks, Sr. executed reciprocal wills in 1950, 1968, 1982, 1995 and 1996. 
{¶10} Further, in the early 1980s’ Freeman, Sr. became ill and was diagnosed 

with pancreatic cancer, which would lead to two-year period of hospitalization at the 

Cleveland Clinic. 

{¶11} In October, 1995, AgriMark, a feed supplier, obtained a default judgment 

in the amount of $77,844.00, including interest accruing at 24%. (T. II at 342, 476, T. III 

at 745). As a result, Bank One, which held a mortgage on all of the farm property, 

declared a default on its loan and called the note, which was at that time approximately 

$452,000. (T. II at 489, 505, T. III at 676, 745-46, T. V at 1121, 1187-88, T. VI at 1263). 

At that time, there were also outstanding liens to First National Bank of Shelby and 

Mechanics Bank as well as other feed companies and suppliers. 

{¶12} In early 1996, a family meeting was held between the Swank parents and 

their three sons. (T. II at 346). During this meeting, an offer was made to Robert to 

allow him to purchase the dairy farm for an assumption of the debt. (T. II at 346, 479, 

T.III at 679, T.V at 1223, T VI at 1265). Robert refused the offer and “stormed out the 

door.” (T.II at 348, T. VI 1265). 

{¶13} In January, 1996, Freeman, Jr. hired an attorney to help his parents with 

their financial problems. 

{¶14} In the spring of 1996, farming operations were terminated and livestock 

and equipment were auctioned. The auction raised approximately $156,000.00. These 

funds were used to satisfy the AgriMark judgment and pay down the Bank One 

Mortgage. 

{¶15} Freeman Jr. then purchased the defaulted first mortgage held by Bank 

One on the property and became the assignee on said mortgage. 
{¶16} On August 22, 1996, Freeman and Rheabelle Swank executed a real 

estate option contract in favor of Freeman, Jr. and also executed new wills. These new 

wills again were reciprocal, naming each other as the primary beneficiary. The 

contingency clauses in these wills, however, reflected a change from the previous wills 

in that only Freeman, Jr. was named as the only contingent beneficiary; Robert and 

Clark were not named.2

{¶17} Since that time, Robert and Clark have filed various actions, asserting, 

among other things, their expectation to share in the inheritance of the farms. 

{¶18} Robert Swank filed the first lawsuit, Case No. 96-CV-254, claiming that 

cattle sold by Freeman, Sr. and Rheabelle Swank belonged to him. 

{¶19} Thereafter, on or about January 3, 1997, Robert and E. Clark Swank filed 

Case No. 97-CV-11, in which they asserted claims against their parents for an equitable 

partnership in the farm, constructive fraud, restitution, promissory estoppels. They also 

raised claims of intentional interference with their expectancies of inheritance against 

Freeman, Jr. and Mary Jane Swank. 

{¶20} On April 3, 1998, Appellees filed a First Amended Complaint and 

Supplemental Complaint, alleging (1) breach of partnership and contractual obligations, 

(2) constructive fraud, (3) unjust enrichment, (4) interference with expectancy of 

inheritance and (5) punitive damages. 

{¶21} Case Nos. 96-CV-254 and 97-CV-11 were consolidated under Case No. 

254, along with two other cases (96-CV-501 and 96-CV-278) which are not at issue in 

this case. 

 

2

 In 1998, the Swanks, Sr. signed almost identical reciprocal wills, again naming 

Freeman, Jr. as the sole contingent beneficiary. 
{¶22} In 1998 and 1999, the farm real estate was conveyed to Freeman, Jr. and 

his wife Mary Jane in exchange for assumption of the remaining debt. (T. IV at 948-

950, 976; T. III at 780-82). 

{¶23} In 1998, in response to Parents sale and inter vivos transfer of a portion of 

the farm to Appellant, Appellees also instituted probate proceedings to have Parents 

declared legally unfit to handle their own legal affairs. See, In re Freeman J. Swank, Sr. 

and Rheabelle Swank, Richland County Court of Common Pleas, Probate Division, 

Case Nos. 982036 and 982037. Specifically, Appellees claimed a guardianship was 

necessary to protect Parents from further improvident disposition of their property; to 

evaluate and seek to remedy any past breaches of the Parents' rights; and to protect 

the interests of the Parents in the litigation described above. 

{¶24} On June 2, 1998, the Richland County Court of Common Pleas, Probate 

Division found that applicants (Appellees) seeking the imposition of a guardianship for 

Parents failed to present clear and convincing evidence which, even if accepted as true, 

would establish that Parents were incompetent as defined in R.C. §2111.01(D). In 

addition, the Richland County Probate Court found there was insufficient evidence to 

merit appointment by the court of a physician to examine either of the Parents. ld. 

{¶25} In 2000, Robert and Clark Swank filed Case No. 00-CV-649, wherein they 

asked for a declaratory judgment that Freeman, Jr.’s conduct was malicious, that he 

had engaged in a conspiracy and/or other tortious conduct, including spoliation, 

fabrication, and distortion of evidence and further attempted to disrupt their prosecution 

of Case No. 97-CV-11. 
{¶26} Specifically, Clark and Robert alleged that First National Bank (nka First 

Citizens Bank) and its officer conspired with Freeman Sr. and Freeman, Jr.'s attorneys 

to create the appearance that the farming operation was in financial difficulties, so as to 

enable Freeman Jr. to acquire the property. Clark and Robert alleged that they knew or 

should have known of Clark and Robert's claims against the property, and they argued 

the farm was actually solvent. 

{¶27} On January 9, 2001, the trial court dismissed Case No. 00-CV-649, finding 

no fraud or wrongful disruption. In 00-CV-649, the trial court discussed Appellants 

claims, finding the allegations in the complaint against Freeman, Jr. and Mary Jane 

consisted of “nothing more than what any owner of property might do * * *.” Judgment 

Entry of January 9, 2001, at page 2. 

{¶28} In case number 00-CV-649, Clark and Robert filed a notice of appeal and 

also a motion for relief from judgment pursuant to Civ.R. 60(B). However, they later 

withdrew both the appeal and the motion.

{¶29} In 2002, Robert and Clark filed Case No. 02-CV-12. The defendants in 

that case filed motions for summary judgment. In granting defendants’ motions for 

summary judgment, the trial court found the allegations in 00-CV-649 and 02-CV-12 

were virtually the same against all defendants. The court found the action was barred by 

the principles of res judicata, and noted Civ.R. 41(B)(3) required the court to consider 

the dismissal of 00-CV-649 to be on the merits because the order did not specify 

otherwise. 

{¶30} Robert and Clark appealed to this Court, which affirmed the decision of 

the trial court in Swank v. Swank, Richland App. No. 10-CA-2, 2010-Ohio-3105. 
{¶31} By Judgment Entry filed February 1, 2001, the trial court bifurcated the 

issues in the Case No. 97-CV-11-H and ordered that the “nature and extent of the 

claims by Plaintiffs Robert and Clark Swank to be an equitable interest in the Swankaire 

Farms and against Defendants” be tried to the court. 

{¶32} Two bench trials referred to as Phase I and Phase II followed in 2001 and 

2004, respectively. 

{¶33} During the Phase 1 trial which commenced on March 19, 2001, the trial 

court ordered Appellees Robert and Clark Swank to raise and prosecute any equitable 

claims they had in the farm property. Appellees chose to pursue a theory based on the 

existence of an equitable partnership. At the conclusion of Phase I, the trial court found 

instead that there existed an agreement between Appellees and their parents and that 

such agreement was based on an exchange of promises and performance. 

{¶34} Based on its finding in Phase I, the trial court set forth the issues to be 

determined in Phase II as (1) determining the value of the farm and related personal 

property as of December, 1995, (2) determining the value of Robert Swank’s interest in 

the farm property and related personal property, and (3) determining Clark Swank’s 

interest in the farm property and related personal property. 

{¶35} In February, 2004, a bench trial was held and the trial court determined 

that the net equity in the farm property and related chattels as of December, 1995, was 

$324,243. The trial court determined that Robert Swank was entitled to 42% of the net 

equity or $163,350.06 and E. Clark Swank was entitled to 35% of the net equity, or 

$113,625.05. 
{¶36} On April 29, 2004, Freeman Swank, Sr. died. The sole beneficiary of his 

Last Will and Testament was his wife, Rheabelle Swank. No challenges or will contest 

actions were raised as to Mr. Swank’s will. 

{¶37} On November 16, 2004, the trial court issued its Judgment Entry on Phase 

I and Phase II. 

{¶38} Both parties filed appeals from the November 16, 2004, decision with this 

Court. By Opinion filed October 17, 2005, this Court decided the case of Swank, et al. 

v. Estate of Swank, et al., Richland App. Nos. 2004-CA-0110, 2004-CA-0111, and 

2004-CA-0112, 2005-Ohio-5524. In the 2005 appeal, this Court reviewed several cases 

arising out of the Court of Common Pleas, including 97-CV-11. This Court found the 

various contractual interests Clark and Robert claimed were in reality an unenforceable 

contract to make a will, because there was no present interest, by partnership or 

otherwise, supported by the evidence and that the trial court's conclusion was contrary 

to R.C. §2107.04. Swank at paragraph 91. 

{¶39} In remanding the matter back to the trial court, this Court also reversed the 

dismissal of Freeman, Sr. and Rheabelle Swank, holding that the merits of alleged 

claims other than that of entitlement to a present interest in the parents' farm real estate 

needed to be addressed. This Court also stated the presence of Parents as parties may 

be of consequence relating to unjust enrichment, sale of chattels, and the assertion of 

interference with the expectancy of inheritance claims. Id. at 94.

{¶40} On May 3, 2007, Appellants Freeman, Jr. and Mary Jane moved for 

summary judgment as to all remaining issues. As to the Appellees' assertion of 

interference with the expectancy of inheritance by Appellant, Appellant argued 
Appellees could not establish they had an expectancy of inheritance. In Appellant’s 

Motion for Summary Judgment, Appellant argued that Appellees admitted they are not 

entitled to any interest in the land until both of their parents are dead. (Phase I, T. at 

263-264).

{¶41} By Judgment Entry filed June 28, 2007, the trial court denied all parties’ 

motions for summary judgment and stated the case would be set for trial. Thereafter, on 

December 7, 2007, the case was reassigned, and in early 2008, the parties prepared 

case summaries in an attempt to narrow the remaining issues in the case.

{¶42} In November 2008, Appellees filed a Motion to Renew previously filed 

motions, including a Motion for Partial Summary Judgment seeking judgment: (i) against 

Appellant for constructive fraud; and (ii) against Appellant and Parents for fraudulent 

conveyance related to the transfer of a lien interest and inter vivos transfer by contract 

of the farm to Appellant by Parents. 

{¶43} On December 22, 2008, Appellant filed a reply memorandum to Appellees' 

Motion for Summary Judgment. 

{¶44} By Judgment Entry dated December 8, 2009, the trial court denied all 

pending motions for summary judgment. The trial court found that the operative 

pleading in this matter was Appellees' First Amended and Supplemental Complaint 

dated April 3, 1998. The trial court found plaintiffs’ claims of promissory estoppel and 

quantum meruit were inadequately pled as individual claims and that the claim of 

constructive fraud was waived because Plaintiffs failed to raise it in the Phase I trial.

{¶45} The trial court found that the only issues remaining for trial were limited to 

unjust enrichment, interference with expectancy of inheritance against Appellant with 
compensatory and punitive damages, counterclaims of Parents for fraud and 

conversion, and the damage claim related to the sale of chattels.

{¶46} The trial court further stated that because this Court had ruled that 

Appellees had no present interest in the land, issues relating to the conveyance of the 

land including fraudulent conveyance, conspiracy, and spoliation of documents were not 

properly raised by Appellees as part of the original claim and have been precluded by 

the ruling of this Court. 

{¶47} Said Judgment Entry also denied Plaintiffs’ motion for leave to amend 

complaint. 

{¶48} On September 27, 2010, a jury trial commenced on plaintiffs’ claims of 

unjust enrichment against Freeman Swank, Sr. and Rheabelle Swank, interference with 

expectancy of inheritance against Freeman Swank, Jr. and the counterclaims of 

defendants for fraud and conversion. Also to be considered by the jury were damage 

claims as to sales of chattels and cattle. 

{¶49} On October 7, 2010, the jury found in favor of Appellee Robert Swank on 

his claim related to the sale of cattle, and to Robert and E. Clark on their claims against 

Freeman Swank, Sr. and Rheabelle Swank for unjust enrichment3 and against Freeman 

Swank, Jr. and Mary Jane Swank for interference with expectancy of inheritance. The 

jury also awarded $1.00 in punitive damages to each plaintiff and further found that 

plaintiffs were entitled to recover attorney fees against Freeman Swank, Jr. and Mary 

Jane Swank. 

 

3

 As to the unjust enrichment claims against Parents, the judgments awarded to 

Appellee Robert L. Swank was the sum of $605,531 in compensatory damages, plus 

costs and interest, and to Appellee E. Clark Swank the sum of $579,849 in 

compensatory damages, plus costs and interest. 
{¶50} By Judgment Entry docketed November 24, 2010, the trial court entered 

judgment upon the verdicts and awarded to Plaintiff-Appellee Robert L. Swank on his 

claim of intentional interference with and expectancy interest the sum of $767,666.00 in 

compensatory damages, $1.00 in punitive damages, and $75,000.00 in attorney fees for 

a total judgment of $842,667.00 plus interest at four percent (4%) per annum from 

October 7, 2010 until paid and costs. The judgment awarded to Plaintiff-Appellee E. 

Clark Swank on his claim of intentional interference with and expectancy interest the 

sum of $607,667.00 in compensatory damages, $1.00 in punitive damages, and 

$75,000.00 in attorney fees for a total judgment of $682,668.00 plus interest at four 

percent (4%) per annum from October 7, 2010, until paid and costs. 

{¶51} On or about December 6, 2011, Appellant filed a Motion for Judgment 

Notwithstanding the Verdicts in favor of Appellees or, in the alternative, for a New Trial 

on the claims of Appellees. 

{¶52} On December 20, 2010, the trial court issued an Order Granting JNOV for 

Appellants on Count III (unjust enrichment), Order Denying Motion for JNOV or New 

Trial on Count IV (intentional interference with expectation of inheritance) and punitive 

damages and attorney fees. This Order was journalized on December 21, 2010. 

{¶53} It is from this Order and the November 24, 2010, Judgment Entry that 

Appellants Freeman Swank, Jr. and Mary Jane Swank filed their separate appeals and 

Appellees Robert Swank and E. Clark Swank filed their cross-appeal. 

ASSIGNMENTS OF ERROR

APPEAL

{¶54} Appellant Mary Jane Swank assigns four errors to the trial court: 
{¶55} “I. THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT 

AND/OR A JUDGMENT NOTWITHSTANDING THE VERDICT SINCE APPELLEES 

LACKED LEGAL STANDING TO ASSERT AN INTENTIONAL INTERFERENCE WITH 

EXPECTANCY OF INHERITANCE CLAIM. 

{¶56} “II. THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT 

AND/OR A JUDGMENT NOTWITHSTANDING THE VERDICT SINCE APPELLEES 

INTENTIONAL INTERFERENCE CLAIM FAILS AS A MATTER OF LAW BECAUSE 

APPELLEES HAD NO ACTUAL EXPECTANCY OF INHERITANCE AT THE TIME OF 

FREEMAN SWANK, SR.'S DEATH NOR COULD THEY ESTABLISH THAT THEY 

WOULD HAVE INHERITED BUT FOR THE ALLEGED TORTIOUS CONDUCT. 

{¶57} “III. THE JURY'S VERDICT IS NOT SUPPORTED BY LEGALLY 

SUFFICIENT EVIDENCE AND THEREFORE THE TRIAL COURT ERRED IN FAILING 

TO ISSUE A JUDGMENT NOTWITHSTANDING THE VERDICT 

{¶58} “IV. AS THERE WAS ABSOLUTELY NO COMPETENT CREDIBLE 

EVIDENCE ESTABLISHING THAT APPELLANT MARY JANE SWANK COMMITTED 

ANY INTENTIONAL TORT OR IN ANYWAY INTENTIONALLY INTERFERED AND 

DEPRIVED APPELLEES OF THEIR ALLEGED INHERITANCE, THE JURY'S 

VERDICT AND TRIAL COURT JUDGMENT IS AGAINST THE MANIFEST WEIGHT 

OF THE EVIDENCE.” 

{¶59} Appellant Freeman Swank, Jr. raises the following four assignments of 

error: 

{¶60} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT 

DENIED APPELLANT'S MOTION FOR A DIRECTED VERDICT AND IN THE 
ALTERNATIVE APPELLANT'S MOTION FOR A JUDGMENT NOTWITHSTANDING 

THE VERDICT AND/OR APPELLANT'S MOTION FOR A NEW TRIAL. 

{¶61} “II. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S 

MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT AND IN THE 

ALTERNATIVE APPELLANT'S MOTION FOR A NEW TRIAL AS THE JURY'S 

VERDICT IS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE. 

{¶62} “III. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S 

MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT AND IN THE 

ALTERNATIVE APPELLANT'S MOTION FOR A NEW TRIAL AS THE JURY'S 

VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

{¶63} “IV. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED 

ITS DISCRETION IN AWARDING ATTORNEY FEES TO APPELLEES.” 

CROSS-APPEAL

{¶64} Cross-Appellants Robert L. Swank and E. Clark Swank assign three 

errors: 

{¶65} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING 

THE MOTIONS OF DEFENDANTS RHEABELLE SWANK AND ESTATE OF 

FREEMAN SWANK, SR., FOR JUDGMENT NOTWITHSTANDING THE VERDICTS AS 

TO THE CLAIM OF UNJUST ENRICHMENT. 

{¶66} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DISMISSING 

PLAINTIFFS' CLAIMS BASED ON CONSTRUCTIVE FRAUD AND PROMISSORY 

ESTOPPEL. 
{¶67} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE 

MOTION OF PLAINTIFFS FOR LEAVE TO FILE AN AMENDED OR SUPPLEMENTAL 

COMPLAINT. 

I, II, III, IV (Mary Jane Swank) 

I, II, III (Freeman Swank, Jr.) 

{¶68} We shall address the Mary Jane Swank’s assignments of error and 

Freeman Swank, Jr.’s first three assignments of error together as they all deal with 

Appellees’ claims of interference with expectancy of inheritance. 

{¶69} Appellants herein argue that the trial court erred in failing to direct a 

verdict or in failing to grant judgment notwithstanding the verdict as to Appellees’ claim 

of intentional interference with expectancy of inheritance claims. Appellants further 

argue that the jury’s verdict as to such claims is not supported by the manifest weight or 

sufficiency of the evidence.

{¶70} Ohio Civil Rule 50 governs directed verdicts and judgments 

notwithstanding the verdict, and reads, in pertinent part: 

{¶71} “(A) Motion for a directed verdict 

{¶72} “ *** 

{¶73} “(4) When granted on the evidence. When a motion for a directed verdict 

has been properly made, and the trial court, after construing the evidence most strongly 

in favor of the party against whom the motion is directed, finds that upon any 

determinative issue reasonable minds could come to but one conclusion upon the 

evidence submitted and that conclusion is adverse to such party, the court shall sustain 

the motion and direct a verdict for the moving party as to that issue. 
{¶74} “(B) Motion for judgment notwithstanding the verdict 

{¶75} “Whether or not a motion to direct a verdict has been made or overruled 

and not later than fourteen days after entry of judgment, a party may move to have the 

verdict and any judgment entered thereon set aside and to have judgment entered in 

accordance with his motion; or if a verdict was not returned such party, within fourteen 

days after the jury has been discharged, may move for judgment in accordance with his 

motion. A motion for a new trial may be joined with this motion, or a new trial may be 

prayed for in the alternative. If a verdict was returned, the court may allow the judgment 

to stand or may reopen the judgment. If the judgment is reopened, the court shall either 

order a new trial or direct the entry of judgment, but no judgment shall be rendered by 

the court on the ground that the verdict is against the weight of the evidence. If no 

verdict was returned the court may direct the entry of judgment or may order a new 

trial.” 

{¶76} When ruling on a motion for judgment notwithstanding the verdict, a trial 

court applies the same test as in reviewing a motion for a directed verdict. Ronske v. 

Heil Co., Stark App.No. 2006-CA-00168, See also, Pariseau v. Wedge Products, Inc.

(1988), 36 Ohio St.3d 124, 127, 522 N.E.2d 511. “A motion for judgment 

notwithstanding the verdict is used to determine only one issue i.e., whether the 

evidence is totally insufficient to support the verdict.” Krauss v. Streamo, Stark App. No. 

2001 CA00341, 2002-Ohio-4715, paragraph 14; see also, McLeod v. Mt. Sinai Medical 

Center (2006), 166 Ohio App.3d 647, 853 N.E.2d 1235, reversed on other grounds, 116 

Ohio St.3d 139, 876 N.E.2d 1201. Neither the weight of the evidence nor the credibility 

of the witnesses is a proper consideration for the court. Posin v. A.B.C. Motor Court 
Hotel, Inc. (1976), 45 Ohio St.2d 271, 275, 344 N.E.2d 334. See, also, Civ.R. 50(B); and 

Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, 504 N.E.2d 19. In other words, if there is 

evidence to support the nonmoving party's side so that reasonable minds could reach 

different conclusions, the court may not usurp the jury's function and the motion must be 

denied. Goodyear Tire & Rubber Co. v. Aetna Casualty & Surety Co., 95 Ohio St.3d 

512, 769 N.E.2d 835, 2002-Ohio-2842. Again, in ruling on a motion for judgment 

notwithstanding the verdict, the court does not determine factual issues, but only 

questions of law, even though it is necessary to review and consider the evidence in 

deciding the motion. Goodyear at paragraph 4. 

{¶77} Appellate review of a ruling on either a motion for directed verdict or a 

motion for judgment notwithstanding the verdict is de novo, Midwest Energy 

Consultants, L.L.C. v. Utility Pipeline, Ltd., 5th Dist.App. No. 2006CA00048, 2006-Ohio6232; Ronske v. Heil, supra; Cleveland Electric Illuminating Company v. Public Utility 

Commission, 76 Ohio St.3d 521, 523, 1996-Ohio-298, 668 N.E.2d 889, citation deleted. 

Intentional interference with expectancy of inheritance

{¶78} In Firestone v. Galbreath (1993), 67 Ohio St.3d 87, 616 N.E.2d 202, the 

Ohio Supreme Court first recognized the tort of intentional interference with expectancy 

of inheritance. The essential elements of the claim are: (1) the existence of a plaintiff's 

expectancy of inheritance; (2) a defendant's intentional interference with plaintiff's 

expectancy, (3) the defendant's tortious conduct involving the interference, such as 

fraud, duress, or undue influence; (4) a reasonable certainty that, but for the defendant's 

interference, the expectancy of inheritance would have been realized; and (5) damage 

resulting from the interference. Id. at 88, 616 N.E.2d 202. 
{¶79} Before pursuing an intentional interference with expectancy of 

inheritance (IIEI) claim, a plaintiff must first exhaust all appropriate probate procedures. 

Firestone v. Galbreath (Oct. 6, 1992), 10th Dist. No. 92AP-159. See also Roll v. 

Edwards, 156 Ohio App.3d 227, 2004-Ohio-767, ¶ 28. The rationale is that the probate 

proceedings may resolve the damages issue by simply validating the will through which 

the plaintiff claims an expectancy. In re Estate of Goehring, 7th Dist. No. 05 CO 35, 

2007-Ohio-1133, ¶ 66. An exception to the rule allows a plaintiff to bypass probate if no 

remedy is available in the probate court or if that remedy would be inadequate. 

Firestone v. Galbreath (S.D.Ohio 1995), 895 F.Supp. 917, 926. Thus, “[c]ourts must 

look to whether the probate court can provide the plaintiff with adequate relief in the 

form of the actual damages which would be recovered in the tort action; punitive 

damages awards are not considered a valid expectation in this context.” Id. Rather, the 

circumstances surrounding the tortious conduct must be what effectively precludes 

adequate relief in the probate court. DeWitt v. Duce (Fla.1981), 408 So.2d 216, 219. 

{¶80} With regard to exhaustion of remedies, we find that the two probate 

actions which could have been raised in the case were a will contest action or a 

declaratory judgment action to determine the validity of the inter vivos transfer of the 

farm property. 

{¶81} However, we do not find that either Robert or Clark would have had 

standing to raise such claims with the probate court. 

{¶82} In the case sub judice, Freeman, Sr.’s 1996 will left everything to his wife 

Rheabelle, who survived him. Appellees were not even named as contingent 

beneficiaries in this will. Even under all of Freeman, Sr.’s previous wills, including the 
ones that did include Robert and Clark as contingent beneficiaries, Rheabelle was 

always the primary beneficiary. Appellees only ever stood to inherit if their mother 

predeceased their father, which did not happen, and their mother was the sole 

beneficiary of their father’s estate. As long as Rheabelle survived Freeman, Sr., the 

result would have been the same. 

{¶83} Furthermore, at the time of his death, Freeman, Sr. no longer owned the 

farm real estate, which is what Appellees claim as the inheritance they were expecting. 

The farm property had been transferred to Freeman, Jr. approximately nine years prior 

to Freeman, Sr.’s death. In cases where there are questions raised as to the validity of 

certain inter vivos transfers that involve property which would revert to the estate if the 

transfers are found invalid, the action is related to the administration of the estate and is 

within the exclusive jurisdiction of the probate court.” (Emphasis added.) Bobko v. 

Sagen (1989), 61 Ohio App.3d 397, 572 N.E.2d 823. 

{¶84} A declaratory judgment action could have been filed with the probate court 

to determine the validity of inter vivos transfers to Freeman, Jr. A successful challenge 

would have resulted in the transfers being invalidated and the property would have 

reverted to the estate. Bobko, supra. See, also, In re Estate of Morrison (1953), 159 

Ohio St. 285, 112 N.E.2d 13 (holding that matters “as to the title to and the status of 

certain personal property-whether it properly belongs to the estate and should be 

administered as a part thereof or whether the decedent effectually disposed of such 

property during his lifetime * * *” is “within the jurisdiction of the Probate Court and are 

determinable by that tribunal”); Johnson v. Johnson (June 25, 1999), Vinton App. No. 

98CA519, 1999 WL 527753. 
{¶85} Again, however, the only primary beneficiary to Freeman, Sr.’s estate was 

Rheabelle. As such, she was the only person with standing to raise such a claim. 

{¶86} In Firestone, the Ohio Supreme Court stated that any person who can 

prove the elements of the tort of intentional interference with expectancy of inheritance 

has standing to maintain a claim. Id. As set forth above, the fourth element of the test 

requires that Appellants demonstrate to a reasonable certainty that the expectancy of 

inheritance would have been realized but for the tortious conduct. This requires a 

showing to a reasonable certainty that, had the alleged undue influence not occurred, 

appellants would have realized their expectancy to inherit from the decedent’s estate. 

{¶87} Applying a de novo standard of review, we find that the trial court erred 

when it determined that Appellees had standing to assert this claim. “Standing” means 

that the plaintiff has some personal stake in the outcome of the controversy, some 

concrete injury that will be resolved by the court, rather than a hypothetical or 

conjectural matter. Bourke v. Carnahan, 163 Ohio App.3d 818, 2005-Ohio-5422, 840 

N.E.2d 1101, ¶ 10. 

{¶88} The facts of the case, as set forth above, make it clear that the Appellees 

would not have been beneficiaries of Freeman, Sr.'s estate (probate or non-probate), 

even if the purported tortious interference had not occurred. In light of these facts, it is 

impossible for Appellees to prove the fourth element of the tort. 

{¶89} Further, there was no evidence presented that the Freeman, Sr.’s transfer 

of the farmland to Freeman, Jr. during her lifetime was anything other than by voluntary 

choice. If Appellees felt that the conveyance of the property by the parents to Freeman, 

Jr. was based on undue influence or was in some way coerced or fraudulent, Appellees 
should have brought an action for fraudulent conveyance within the statute of limitations 

allowed for such an action. 

{¶90} It appears that Appellees did unsuccessfully attempt to try and stop the 

transfer of the land by bringing an action before the probate court challenging their 

parents’ competency and seeking the appointment of a guardian for the Swank parents. 

The trial court, however, found insufficient evidence was presented that the parents 

were incompetent to handle their own affairs and understood. Instead, the trial court 

found: 

{¶91} “There is also evidence that the [Parents], in attempting to salvage their 

operations and restore their financial well-being were involved in differences of opinion 

with children which resulted in hostility toward two, and favorable relationships with one. 

That unfortunately happens, family fights and squabbles, it’s very unfortunate. But in 

itself is not evidence of incompetency.” (T. of Recording of Judge Christiansen’s May 

22, 1998, Ruling Only at 2). 

{¶92} At any time during their lifetimes, Freeman Swank, Sr. and Rheabelle 

Swank could have chosen to sell all or part of the farmland which Appellees claim they 

should have inherited. Ohio law does not provide a means to prevent a competent 

person from using or disposing of property as he or she wishes, even if to do so may 

appear unfair or unwise to other persons. 

{¶93} Alternatively, any number of events could have transpired which could 

have had an effect on the Swank, Sr.’s ownership of the property. In this case, financial 

problems caused the parents to have to sell and/or transfer the property in exchange for 

a release of their debts. The Swank, Sr.’s financial problems were very real, as 
evidenced by the record. Their son Freeman, Jr. offered them an opportunity to get out 

from under their debt and still be able to continue to live on the farm the remainder of 

their lives. The fact that they sold/transferred the property to one of their sons and not 

an unrelated person does not automatically create an undue influence situation. 

{¶94} Having found that Appellees did not have standing to pursue claims of 

intentional interference with expectation of inheritance against Freeman Swank, Jr. 

and/or Mary Jane Swank, we find Mary Jane Swank’s assignments of error I, II, III and 

IV and Freeman Swank, Jr.’s assignments of error I, II and III well-taken and sustain 

same. 

IV. 

{¶95} In Appellant Freeman, Jr.’s fourth assignment of error, he argues that the 

trial court erred in awarding attorney fees in this action. We agree. 

{¶96} Based on our disposition of the above assignments of error, we find that 

attorney fees were improperly awarded in this matter. 

{¶97} Appellant’s fourth assignment of error is sustained. 

Cross-Appeal

I. 

{¶98} In their first assignment of error, Cross-Appellants argue that the trial 

court erred in granting Cross-Appellees’ motion for judgment notwithstanding the verdict 

on their claims of unjust enrichment. 

{¶99} As set forth above, Ohio Civ.R. 50 governs directed verdicts and 

judgments notwithstanding the verdict, and reads, in pertinent part: 

{¶100} “(B) Motion for judgment notwithstanding the verdict 
{¶101} “Whether or not a motion to direct a verdict has been made or 

overruled and not later than fourteen days after entry of judgment, a party may move to 

have the verdict and any judgment entered thereon set aside and to have judgment 

entered in accordance with his motion; or if a verdict was not returned such party, within 

fourteen days after the jury has been discharged, may move for judgment in accordance 

with his motion. A motion for a new trial may be joined with this motion, or a new trial 

may be prayed for in the alternative. If a verdict was returned, the court may allow the 

judgment to stand or may reopen the judgment. If the judgment is reopened, the court 

shall either order a new trial or direct the entry of judgment, but no judgment shall be 

rendered by the court on the ground that the verdict is against the weight of the 

evidence. If no verdict was returned the court may direct the entry of judgment or may 

order a new trial.” 

{¶102} When ruling on a motion for judgment notwithstanding the verdict, a trial 

court applies the same test as in reviewing a motion for a directed verdict. Ronske v. 

Heil Co., Stark App. No. 2006-CA-00168, See also, Pariseau v. Wedge Products, Inc.

(1988), 36 Ohio St.3d 124, 127, 522 N.E.2d 511. “A motion for judgment 

notwithstanding the verdict is used to determine only one issue i.e., whether the 

evidence is totally insufficient to support the verdict.” Krauss v. Streamo, Stark App. No. 

2001 CA00341, 2002-Ohio-4715, paragraph 14; see also, McLeod v. Mt. Sinai Medical 

Center (2006), 166 Ohio App.3d 647, 853 N.E.2d 1235, reversed on other grounds, 116 

Ohio St.3d 139, 876 N.E.2d 1201. Neither the weight of the evidence nor the credibility 

of the witnesses is a proper consideration for the court. Posin v. A.B.C. Motor Court 

Hotel, Inc. (1976), 45 Ohio St.2d 271, 275, 344 N.E.2d 334. See, also, Civ.R. 50(B); and 
Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, 504 N.E.2d 19. In other words, if there is 

evidence to support the nonmoving party's side so that reasonable minds could reach 

different conclusions, the court may not usurp the jury's function and the motion must be 

denied. Goodyear Tire & Rubber Co. v. Aetna Casualty & Surety Co., 95 Ohio St.3d 

512, 769 N.E.2d 835, 2002-Ohio-2842. Again, in ruling on a motion for judgment 

notwithstanding the verdict, the court does not determine factual issues, but only 

questions of law, even though it is necessary to review and consider the evidence in 

deciding the motion. Goodyear at paragraph 4. 

{¶103} Appellate review of a ruling on a motion for judgment notwithstanding the 

verdict is de novo, Midwest Energy Consultants, L.L.C. v. Utility Pipeline, Ltd., 5th 

Dist.App. No. 2006CA00048, 2006-Ohio-6232; Ronske v. Heil, supra. 

{¶104} Three elements comprise an unjust enrichment claim: “(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 where it would be 

unjust to do so without payment.” Hambelton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 

179, 183, 465 N.E.2d 1298. Unjust enrichment is inapplicable to gifts or any officious 

act. Wendover Rd. Property Owners Assn. v. Kornicks (1985), 28 Ohio App.3d 101, 502 

N.E.2d 226, syllabus. 

{¶105} In its Entry granting Cross-Appellee’s JNOV, the trial court found that the 

testimony of Cross-Appellant’s witness Dr. James Zinser failed to provide “evidence of 

the value of services furnished by Robert and Clark Swank and claimed to be unjustly 

retained by Freeman Swan, Sr. [sic] and Rheabelle Swank. It is proof only of earnings 

the plaintiffs might have made had they worked for a higher wage. The testimony was 
insufficient and there is no competent, credible evidence of the value of any unjust 

enrichment.” (Dec. 20, 2010, Order at 2). 

{¶106} Upon review of the record, we likewise find that Cross-Appellants failed 

to present sufficient evidence of the value of any unjust enrichment to Freeman Swank, 

Sr. and Rheabelle Swank. In this case, Cross-Appellants worked on the farm owned by 

their parents for an agreed upon wage, free rent for their entire families and other 

miscellaneous benefits. The fact that they could have made more money working 

somewhere else does not constitute unjust enrichment on the part of their parents. 

While it may be true that they did so based on an assumption that they would someday 

inherit part of the farm, such assumptions were premised on the actuality that their 

parents still owned the farm at the time of their death. As evidenced by the events 

which took place in this case, any number of factors could cause their parents to be 

divested of their real estate: i.e., at any time during their lives, their parents could have 

chosen to sell all or part of their lands or financial obligations could cause them to 

default on their loans resulting in foreclosure. 

{¶107} Based on the foregoing, we find Cross-Appellants’ first assignment of 

error is overruled. 

II. 

{¶108} In their second assignment of error, Cross-Appellants argue that the trial 

court erred in dismissing their claims based on constructive fraud and promissory 

estoppel. We disagree. 

Promissory Estoppel
{¶109} Promissory estoppel is an equitable doctrine for preventing the harm 

resulting from reasonable reliance upon false representations. GGJ, Inc. v. Tuscarawas 

Cty. Bd. of Commrs., Tuscarawas App.No. 2005AP070047, 2006-Ohio-2527, ¶ 11, 

citing Karnes v. Doctors Hosp. (1990), 51 Ohio St.3d 139, 142, 555 N.E.2d 280. The 

party asserting promissory estoppel bears the burden of proving, by clear and 

convincing evidence, all of the elements of the claim. In re Estate of Popov, Lawrence 

App. No. 02CA26, 2003-Ohio-4556, ¶ 30. 

{¶110} The elements necessary to establish a claim for promissory estoppel 

are: (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom 

the promise is made; (3) the reliance must be reasonable and foreseeable; and (4) the 

party claiming estoppel must be injured by the reliance. Schepflin v. Sprint-United 

Telephone of Ohio (April 29, 1997), Richland App.No. 96-CA-62-2, citing Stull v. 

Combustion Engineering, Inc. (1991), 72 Ohio App.3d 553, 557, 595 N.E.2d 504. 

{¶111} We have reviewed Cross-Appellants’ first Amended Complaint and find 

that promissory estoppel was not raised against Freeman Swank, Sr. and/or Rheabelle 

Swank. As such, we find that the trial court did not err in dismissing such individual 

claim. 

Constructive fraud

{¶112} Constructive fraud is an equitable action which does not require proof of 

fraudulent intent. Perlberg v. Perlberg (1969), 18 Ohio St.2d 55, 247 N.E.2d 306. 

Constructive fraud is defined as “ ‘a breach of a legal or equitable duty, which, 

irrespective of moral guilt of the fraud feasor, the law declares fraudulent, because of its 

tendency to deceive others, to violate public or private confidence, or to injure public 
interests.’ “ Camp St. Mary's Assn. of the W. Ohio Conf. of the United Methodist Church, 

Inc. at ¶ 22, quoting Cohen v. Estate of Cohen (1986), 23 Ohio St.3d 90, 91-92, 491 

N.E.2d 698; L & N Partnership v. Lakeside Forest Assn., 183 Ohio App.3d 125, 916 

N.E.2d 500, 2009-Ohio-2987. 

{¶113} Constructive fraud is different from actual fraud. Actual fraud requires an 

“affirmative misrepresentation,” while constructive fraud “results from the ‘failure to 

disclose facts of a material nature where there exists a duty to speak.’ ” Camp St. 

Mary's Assn. of the W. Ohio Conf. of the United Methodist Church, Inc., quoting 

Baughman v. State Farm Mut. Auto. Ins. Co., 9th Dist. No. 22204, 2005-Ohio-6980, 

quoting Layman v. Binns (1988), 35 Ohio St.3d 176, 178, 519 N.E.2d 642. Constructive 

fraud typically exists where the parties to an agreement have a special confidential or 

fiduciary relationship. Cohen at 92, 491 N.E.2d 698. 

{¶114} With regard to the claim of constructive fraud, the trial court found that 

while such claim had been appropriately pled, it was waived because Cross-Appellants 

failed to pursue it during the Phase I trial. 

{¶115} In this case, the trial court bifurcated the trials into legal and equitable 

issues, with the equitable issues being tried in the first trial referred to as Phase I. 

Cross-Appellants did not pursue their claims for constructive fraud during this phase of 

the trial. We therefore find that the trial court did not err or abuse its discretion in 

determining that claims were therefore waived. 

{¶116} Cross-Appellants’ second assignment of error is overruled. 

III. 
{¶117} In their third assignment of error, Cross-Appellants argue that the trial 

court erred in denying their November 18, 2008, motion for leave to file an amended or 

supplemental complaint. We disagree. 

{¶118} Specifically, Cross-Appellants sought to amend their Complaint to add 

as additional defendants, Mary Jane Swank in her official capacity as a purported 

trustee and Regal Eagle Enterprises, Inc., a corporation owned and/or controlled by 

Freeman Swank, Jr. or Freeman Swank, Jr. and Mary Jane Swank jointly. 

{¶119} Upon review, we find that Cross-Appellants filed their initial Complaint in 

this matter in 1997, followed by an Amended Complaint in 1998. They then moved the 

trial court for leave to amend again in 2000, 2002, 2007, 2008 and 2009, all of which 

were denied. 

{¶120} A trial court's determination whether to grant a motion for leave to 

amend a complaint will not be reversed on appeal absent an abuse of discretion. 

Darulis v. Ayers (Feb. 2, 1999), 5th Dist. No.1996CA00398 citing Cselpes v. Cleveland 

Catholic-Diocese (1996), 109 Ohio App.3d 533, 541, 672 N.E.2d 724. To demonstrate 

abuse of discretion in denying a motion for leave to amend complaint, appellant must 

demonstrate more than error of law and that the trial court's denial of the motion was 

unreasonable, arbitrary or unconscionable. Id.

{¶121} Pursuant to Civ.R. 15(A): 

{¶122} “A party may amend his pleading once as a matter of course at any time 

before a responsive pleading is served or, if the pleading is one to which no responsive 

pleading is permitted and the action has not been placed upon the trial calendar, he 

may so amend it at any time within twenty-eight days after it is served. Otherwise a 
party may amend his pleading only by leave of court or by written consent of the 

adverse party. Leave of court shall be freely given when justice so requires. A party 

shall plead in response to an amended pleading within the time remaining for response 

to the original pleading or within fourteen days after service of the amended pleading, 

whichever period may be the longer, unless the court otherwise orders.” 

{¶123} The Ohio Supreme Court has held that “it is an abuse of discretion for a 

court to deny a motion, timely filed, * * *, where it is possible that plaintiff may state a 

claim upon which relief may be granted and no reason otherwise justifying denial of the 

motion is disclosed.” Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 297 N.E.2d 113, 

paragraph six of the syllabus. 

{¶124} The Ohio Supreme Court refined the holding in Peterson, supra, by 

adopting the test found in Solowitch v. Bennett (1982), 8 Ohio App.3d 115, 117, 456 

N.E.2d 562, that “there must be at least a prima facie showing that the movant can 

marshal support for the new matters sought to be pleaded, and that the amendment is 

not simply a delaying tactic, nor one which would cause prejudice to the defendant.” 

Wilmington Steel Products, Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 

123, 573 N.E.2d 622, syllabus. 

{¶125} While Civ.R. 15(A) allows for liberal amendment, the trial court does not 

abuse its discretion if it denies a motion to amend pleadings if there is a showing of bad 

faith, undue delay or undue prejudice to the opposing party. Hoover v. Sumlin (1984), 

12 Ohio St.3d 1, 465 N.E.2d 377, paragraph two of syllabus; Turner v. Cent. Local 

School Dist., 85 Ohio St.3d, 95, 99, 1999-Ohio-207, 706 N.E.2d 1261. 
{¶126} By the time Cross-Appellants filed the November, 2008, motion for leave 

to amend, this case had been pending for eleven (11) years and two trials had already 

taken place. As such, we find that the trial court did not abuse its discretion in denying 

Cross-Appellants’ request to amend and/or supplement the Amended Complaint in this 

matter. 

{¶127} Cross-Appellants’ third assignment of error is overruled. 

{¶128} For the reasons stated in the foregoing opinion, the judgment of the 

Court of Common Pleas of Richland County, Ohio, is affirmed in part and reversed in 

part. 

By: Wise, J. 

Hoffman, P. J., and 

Edwards, J., concur. 
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ROBERT L. SWANK, et al. : 

 : 

 Plaintiffs-Appellees : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

FREEMAN J. SWANK, JR., et al. : 

 : 

 Defendants-Appellants : Case No. 2011 CA 8 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Richland County, Ohio, is reversed as to 

Robert Swank and E. Clark Swank’s claims of intentional interference with expectation 

of inheritance, punitive damages and attorney fees and affirmed in all other aspects. 

 Costs assessed to Appellants.