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Vol. 2008-11 November, 2008

REAL PROPERTY CONVEYANCE - DEED REFORMATION TO CORRECT MISTAKE

Deed reformation may be permitted where mutual mistake can be shown and proved:

{13} "Equity allows reformation of a written instrument when, due to a mutual mistake on the part of the original parties to the instrument, the instrument does not evince the parties' actual intention. See Mason v. Swartz (1991), 76 Ohio App.3d 43, 50, 600 N.E.2d 1121. `The purpose of reformation is to cause an instrument to express the intent of the parties as to the contents thereof.' Delfino v. Paul Davies Chevrolet, Inc. (1965), 2 Ohio St.2d 282, 286, 209 N.E.2d 194. `[R]eformation of a contract is appropriate where the written agreement does not accurately reflect the true understanding of the parties, and it is used to effectuate their true intent.' Concrete Wall Co. v. Brook Park (Feb. 26, 1976), Cuyahoga App. Nos. 34054, 34090, 34171, citing Greenfield v. Aetna Cas. Ins. Co. (1944), 75 Ohio App. 122, 61 N.E.2d 226. `The purpose of reformation is not to make a new agreement but to give effect to the one actually made by the parties, which is not accurately reflected in the written agreement.' Concrete Wall Co.

A person seeking reformation of a written instrument must prove by clear and convincing evidence that the mistake regarding the instrument was mutual. See Stewart v. Gordon (1899), 60 Ohio St. 170, 53 N.E. 797, paragraph one of the syllabus; Justarr Corp. v. Buckeye Union Ins. Co. (1995), 102 Ohio App.3d 222, 225, 656 N.E.2d 1345. Clear and convincing evidence is the degree of evidence necessary to elicit in the mind of the trier of fact a firm belief or conviction as to the allegations to be established. See In re Haynes (1986), 25 Ohio St.3d 101, 104, 495 N.E.2d 23.

To be entitled to deed reformation based upon a mutual mistake, the mistake must be material. See Reilley v. Richards (1994), 69 Ohio St.3d 352, 352-353, 632 N.E.2d 507. `A mistake is material to a contract when it is "a mistake as to a basic assumption on which the contract was made [that] has a material effect on the agreed exchange of performances." 1 Restatement of the Law 2d, Contracts (1981), 385, Mistake, Section 152(1). Thus, the intention of the parties must have been frustrated by the
mutual mistake.' Id. Reformation of a deed is available upon a showing that both parties were mistaken as to what was being conveyed. See Stewart v. Gordon (1899), 60 Ohio St. 170, 53 N.E. 797.

In the case at bar, the evidence indisputably and clearly and convincingly shows that the parties were mutually mistaken as to the land conveyed. The parties' "outward manifestations" show that they "believed that the intended conveyance was different from that contained in the deed." See Castle, 16 Ohio App.3d at 213. The parties did not intend Ditmyer's house and the land upon which it sits to be part of the real estate transaction." Id. at 27-34.

In applying the "some competent credible evidence" standard, we should not reverse a judgment merely because the record contains evidence that could reasonably support a different conclusion. It is the trier of fact's role to determine what evidence is the most credible and convincing. The fact finder is charged with the duty of choosing between two competing versions of events, both of which are plausible and have some factual support. Thus, the trial court's decision finding that a mutual mistake occurred in preparing the deed and that the Brumfields were entitled to have the deed reformed is supported by the manifest weight of the evidence.

AMSBARY v. BRUMFIELD 2008-Ohio-3183. (CA 4 GALLIA, Decided June 19, 2008.)

"If you're strong enough, there are no precedents."
F. Scott Fitzgerald

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.

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