2021 Ohio 99
Ohio Ct. App.2021Background:
- Plaintiff Clay Canter claims that in April 2009 John L. Garvin (trustee of the John L. Garvin Trust) gave him a written paper and orally promised Canter the right to purchase ~100 acres of a 108‑acre farm for $200,000, effective at Garvin’s death.
- Canter performed extensive, unpaid labor and improvements on the farm over years (tree removal, creek work, fencing, grading) which he says was consideration under the agreement; two red posts were placed to mark the parcel boundaries.
- Garvin died in February 2016; the alleged written memorandum was lost and could not be produced at trial; witnesses gave varying recollections about its form and content.
- A magistrate ordered specific performance; the trial court largely adopted that recommendation and ordered conveyance of the marked acreage to Canter for $200,000. Defendants (the successor co‑trustees) appealed.
- The appellate court examined (1) whether a writing satisfied the statute of frauds (contained essential terms) and (2) whether the doctrine of part performance removed the transaction from the statute; it reversed, holding the writing lacked an essential term (the labor/consideration) and part performance did not apply.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the writing satisfied the statute of frauds (contains essential terms) | Canter: the lost writing (as recalled by witnesses) identified the parties, described ~100 acres, stated the $200,000 price and that Canter had the right to buy after Garvin’s death — sufficient. | Co‑Trustees: the writing (if any) did not state the essential consideration term (the labor) or show an agreement supported by consideration, so it fails R.C. 1335.05. | Writing failed to state an essential term (the agreed‑upon work/consideration); therefore it did not comply with the statute of frauds. |
| Whether the doctrine of part performance removes the transaction from the statute of frauds | Canter: extensive, unpaid labor and improvements were performed in reliance on the agreement and altered his position to his detriment; this is part performance that justifies specific performance. | Co‑Trustees: possession and improvements are explainable as tenant activity, gratuitous services, or acts Garvin may have intended to pay for; not exclusively referable to an option contract; no payment of purchase price or exclusive possession. | Part performance doctrine inapplicable: Canter’s acts were not shown to be exclusively referable to the alleged option and could be reasonably explained otherwise; possession and improvements alone insufficient. |
| Whether testimony about the deceased trustee’s statements (and recollections of the lost writing) was admissible to prove the contents of the writing | Canter: testimony by witnesses about what Garvin said and what the lost writing contained proves the writing’s existence and contents. | Co‑Trustees: such testimony is inadmissible hearsay and cannot substitute for the required signed writing. | Appellate court did not decide the hearsay admissibility question for purposes of its dispositive holding, but found that even assuming admissibility, the writing lacked essential terms. |
| Whether specific performance was properly ordered (exercise of option and certainty) | Canter: he attempted to exercise the option after Garvin’s death and sued when co‑trustees refused; the court should order specific performance. | Co‑Trustees: Canter never paid or tendered purchase money or clearly exercised the option; the agreement lacks completeness and certainty. | Because the agreement is unenforceable under the statute of frauds and part performance does not apply, specific performance cannot be ordered (trial court’s order reversed). |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard explained)
- Sherman v. Johnson, 159 Ohio St. 209 (Ohio 1953) (writing must contain words reasonably construed as promise to be a memorandum under statute of frauds)
- Tier v. Singrey, 154 Ohio St. 521 (Ohio 1951) (possession alone insufficient to take contract out of statute of frauds)
- Delfino v. Paul Davies Chevrolet, Inc., 2 Ohio St.2d 282 (Ohio 1965) (doctrine of part performance may render statute of frauds inoperative where acts unequivocally refer to agreement)
- Potts v. Potts, 72 Ohio App. 268 (Ohio Ct. App.) (possession must be definite and exclusive to support part performance)
- Plikerd v. Mongeluzzo, 73 Ohio App.3d 115 (Ohio Ct. App. 1992) (option contract must be supported by consideration)