2013 Ohio 3683
Ohio Ct. App.2013Background
- Property: Doris and Frederick Shrum acquired ~40 acres in 1978; a cabin was later built and improved by Herbert Shrum and appellant Pamela Perry (Herbert’s wife).
- Dispute: Perry claims Doris promised by agreement to make a will leaving the property to Perry and Herbert in exchange for the improvements; appellees (the Hammonds, and later Sheila Hammond as title owner) deny any enforceable agreement.
- Procedural posture: Appellees filed forcible entry and detainer; Perry filed counterclaims/third-party claims including breach of contract to make a will, quiet title, unjust enrichment, and tortious interference with expectancy.
- Trial court actions: Court dismissed Perry’s breach-of-contract-to-make-a-will claim under Civ.R. 12(B)(6) for failure to allege a written agreement; later granted summary judgment for appellees on the remaining claims and issued writ of eviction.
- Appeal: Perry appealed, arguing (1) the trial court erred in dismissing the oral contract claim and (2) the trial court erred in granting summary judgment on remaining claims (ownership, fixture status of cabin, unjust enrichment, and interference with expectancy).
Issues
| Issue | Plaintiff's Argument (Perry) | Defendant's Argument (Hammonds/others) | Held |
|---|---|---|---|
| Whether an oral contract to make a will is enforceable | Perry: Partial performance (improvements) makes the oral agreement enforceable despite not being in writing | Appellees: R.C. 2107.04 requires a writing; no written agreement alleged | Court: R.C. 2107.04 bars enforcement absent a written agreement; dismissal affirmed |
| Whether genuine issues of fact exist as to title/ownership | Perry: Disputes who owns the cabin; claims interest based on the alleged agreement and improvements | Appellees: Record alleges and shows transfer to Sheila Hammond; title is to Doris then to Sheila | Court: No factual dispute over legal title; title is to Sheila Hammond |
| Whether the cabin is a removable chattel or fixture | Perry: Intention was that cabin not become a fixture; thus different remedies may apply | Appellees: Improvements (foundation, utility hookups, septic) show annexation to land — a fixture | Court: Evidence supports that the cabin is a fixture; characterization argument is immaterial to R.C. 2107.04 analysis |
| Unjust enrichment and tortious interference with expectancy | Perry: Even if contract unenforceable, unjust enrichment supports recovery; Sheila induced transfer denying Perry inheritance | Appellees: No evidence appellees retained an unjust benefit or procured transfer by fraud/duress; Doris’s affidavit states voluntary transfer | Court: No evidentiary showing of unjust enrichment or intentional interference; summary judgment for appellees affirmed |
Key Cases Cited
- Sherman v. Johnson, 159 Ohio St. 209 (1953) (statute requiring written agreements to make wills is mandatory and not negated by part performance)
- Hugh v. Oberholtzer, 162 Ohio St. 330 (1954) (discussed in context of will/estate-related contract principles)
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (1998) (summary-judgment standard and requirement that all reasonable inferences favor nonmoving party)
- Firestone v. Galbreath, 67 Ohio St.3d 87 (1993) (definition of tortious interference with an expectancy of inheritance)
JUDGMENT: Affirmed — dismissal of breach-of-contract-to-make-a-will for lack of written agreement and summary judgment for appellees on remaining claims upheld.