Rothwell v. Rothwell

104 N.E.3d 836

2018 Ohio 535

Jack O. ROTHWELL, et al., Plaintiffs–Appellees,

v.Lawrence V. ROTHWELL, et al., Defendants–Appellants

No. 17CA709

Court of Appeals of Ohio, Fourth District, Vinton County.

RELEASED: January 29, 2018

William S. Cole and Evan T. Cole, Cole, Kirby, & Associates, Jackson, Ohio, for appellant.

Jonathan C. Clark and Daniel A. Yarmesch, Clark & Clark and Associates, LLC, Lancaster, Ohio, for appellees.

Trecia Kimes–Brown, Vinton County Prosecuting Attorney, and William L. Archer, Jr., Vinton County Assistant Prosecuting Attorney, McArthur, Ohio, for defendant Vinton County Treasurer.

DECISION AND JUDGMENT ENTRY

Harsha, J.

{¶ 1} The trial court granted summary judgment to the petitioners on their claim for the partition of property they owned jointly with Lawrence and Mark Rothwell. Appellant Mark Rothwell asserts that the trial court erred because his evidence established a genuine issue of material fact concerning the existence of an implied oral agreement between the parties not to partition the property. However, Mark Rothwell's evidence did not raise a genuine issue of fact, and even if it did, an oral contract is unenforceable under the statute of frauds. We reject his assertion.

{¶ 2} He also contends that the trial court erred in finding that his claims were barred by the statute of limitations. However, even if the statute of limitations did not apply, his claims were still meritless. First, there was no evidence of an implied-in-fact agreement not to partition the property. Second, there is no viable claim of fraud. And third, the statute of frauds barred his claims, which were premised on a purported oral agreement.

{¶ 3} We affirm the summary judgment of the trial court granting the partition.

I. FACTS

{¶ 4} Jack, Samuel, and Lawrence Rothwell are brothers; Mark Rothwell is Lawrence's son. In August 1995, they obtained ownership of two parcels of property in Vinton County. The deed conveyed a joint life estate to the Rothwells with remainder in fee simple going to the ultimate survivor.

{¶ 5} Nearly eleven years later in June 2016, Jack and Samuel Rothwell filed a complaint in the Vinton County Court of Common Pleas for the partition of the real property, naming Lawrence, Mark, and the Vinton County Treasurer as defendants. Mark filed an answer and counterclaim, which alleged that when the Rothwells purchased the property in 1995, Jack and Samuel approached him about investing in the real estate upon the promise that title would be vested jointly with the right of survivorship among the parties. And because Mark was significantly younger than the other parties, he would end up owning the entire interest in the property. Mark claimed that these representations were false and that he had relied upon them.

{¶ 6} Lawrence did not respond to his brothers' complaint for partition. Jack and Samuel filed a reply to Mark's counterclaim.

{¶ 7} Jack and Samuel filed a motion for summary judgment against Mark and for default judgment against Lawrence. They supported their motion with affidavits which stated: (1) Jack, Samuel, Lawrence, and Mark each have an undivided one-fourth interest as survivorship tenants in the real property; (2) neither Jack nor Samuel told Mark that he would eventually own the entire interest in the real property; and (3) neither Jack nor Samuel entered into any written agreement with Mark stating that he would eventually own the entire interest in the real property.

{¶ 8} Mark filed a memorandum in opposition, which primarily argued that Jack and Samuel fraudulently misrepresented that he would eventually own the real property. Mark submitted the affidavits of himself, his father, Lawrence, and his brother, Derek.

{¶ 9} Mark and Lawrence stated in their affidavits that: (1) they were approached by Jack and Samuel to purchase the real estate; (2) the purchase price of the real estate was $20,000 and they each paid $5,000; (3) it was explained that the property would be held in survivorship form, the last person surviving would own the property free from any other person, and the last person "would most likely be" Mark because "he was the youngest of the four owners"; and (4) had they known that one of the owners could force a sale of the property, they never would have invested in it.

{¶ 10} Derek stated in his affidavit that: (1) he had been asked to join as a partner in the potential purchase of the property after being told about the "last man standing," but he declined because he did not have the money; (2) over the years it was explained that the property was to be held in survivorship form, with the last person surviving owning the property free of any other person, and that the last person surviving would most likely be his brother, Mark, because he was the youngest of the four owners; and (3) he had provided material and labor to improve the real property.

{¶ 11} The trial court's decision found that because there was no written agreement supporting Mark's claim, it was barred by the statute of frauds. The court granted Jack and Samuel's motion for summary judgment and default judgment, also found that Mark's claims were barred by the applicable statutes of limitation, and determined that Jack and Samuel were entitled to partition the real property. It ordered Jack and Samuel's counsel to prepare and circulate a judgment entry.

{¶ 12} During the pendency of the case, Lawrence died, making Jack, Samuel, and Mark sole owners of the real property. The trial court entered judgment issuing a writ of partition for the property and this appeal ensued.

II. ASSIGNMENTS OF ERROR

{¶ 13} Mark assigns the following errors for our review:

1. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE PLAINTIFFS–APPELLEES WERE ENTITLED TO PARTITION THE REAL PROPERTY.

2. THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFFS–APPELLEES WERE ENTITLED TO SUMMARY JUDGMENT.

3. THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT–APPELLANT MARK ROTHWELL'S CLAIMS WERE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS.

III. STANDARD OF REVIEW

{¶ 14} Mark contests the trial court's granting of Jack and Samuel's motion for summary judgment on their partition claim. Appellate review of summary judgment decisions is de novo, governed by the standards of Civ.R. 56. Vacha v. N. Ridgeville , 136 Ohio St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19. Summary judgment is appropriate if the party moving for summary judgment establishes that (1) there is no genuine issue of material fact, (2) reasonable minds can come to but one conclusion, which is adverse to the party against whom the motion is made and (3) the moving party is entitled to judgment as a matter of law. Civ.R. 56 ; New Destiny Treatment Ctr., Inc. v. Wheeler , 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24 ; Chase Home Finance, LLC v. Dunlap , 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484, 2014 WL 3940314, ¶ 26.

{¶ 15} The moving party has the initial burden of informing the trial court of the basis for the motion by pointing to summary judgment evidence and identifying parts of the record that demonstrate the absence of a genuine issue of material fact on the pertinent claims and that the movant is entitled to judgment as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996) ; Chase Home Finance at ¶ 27. Once the moving party meets this initial burden, the non-moving party has the reciprocal burden under Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue remaining for trial, or that the moving party is not entitled to judgment as a matter of law. See Dresher at 293, 662 N.E.2d 264.

IV. LAW AND ANALYSIS

A. Implied Agreement Not to Sell Real Property

{¶ 16} In his first and second assignments of error Mark asserts that the trial court erred because he established a genuine issue of material fact concerning the existence of an oral agreement between the parties not to partition the property. "Tenants in common, survivorship tenants, and coparceners, of any estate in lands, tenements, or hereditaments within the state, may be compelled to make or suffer partition thereof as provided in sections 5307.01 to 5307.25 of the Revised Code." R.C. 5307.01. "If the court of common pleas finds that the plaintiff in an action for partition has a legal right to any part of the estate, it shall order partition of the estate in favor of the plaintiff or all interested parties, appoint one suitable disinterested person to be the commissioner to make the partition, and issue a writ of partition." R.C. 5307.04. Although the right to partition is governed by statute, it remains an essentially equitable remedy committed to the discretion of the trial court. See, e.g., Reel v. Reel , 2016-Ohio-8116, 74 N.E.3d 995, ¶ 34 (11th Dist.).

{¶ 17} "Courts recognize three types of contracts: express, implied in fact, and implied in law." Martin v. Jones , 2015-Ohio-3168, 41 N.E.3d 123, ¶ 38 (4th Dist.), citing Legros v. Tarr , 44 Ohio St.3d 1, 6, 540 N.E.2d 257 (1989). Mark does not claim that there was an express contract between the parties or one implied in law. He instead argues that the summary judgment evidence raised a genuine issue of material fact about the parties' oral implied-in-fact agreement not to partition the property.¹ A contract implied in fact is " ‘a contract that the parties presumably intended, either by tacit understanding or by the assumption that it existed.’ " State ex rel. R.T.G., Inc. v. State , 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 998, ¶ 31, quoting Black's Law Dictionary 322 (7th Ed. 1999).

{¶ 18} To establish an implied-in-fact contract the proponent must prove there is an agreement, based on a meeting of the minds of the parties and on mutual assent. See Chiquita Brands Internatl., Inc. v. Natl. Union Fire Ins. Co. of Pittsburgh, PA , 2015-Ohio-5477, 57 N.E.3d 97, ¶ 7, quoting Lucas v. Costantini , 13 Ohio App.3d 367, 368, 469 N.E.2d 927 (12th Dist.1983). But unlike an express contract, an...