2018 Ohio 1663
Ohio Ct. App.2018Background
- In Oct 2014 Klossner and Burr executed a purchase agreement for 6 acres plus a permanent easement across Burr’s adjoining land; the sale was contingent on obtaining required zoning variances.
- Klossner sought zoning approvals and, during the process, negotiated two informal changes with Burr by email: widening the driveway to 100 ft and shifting the driveway/structures 75 ft.
- A leach-field on neighboring property overlapped part of the proposed driveway; Klossner requested a temporary 15-ft south extension of the easement to allow construction to proceed, and Burr agreed by email to a temporary easement.
- Communications broke down after dispute over definition of “temporary” and after Burr received a lawyer’s letter threatening suit; Burr ceased communicating and did not close.
- Klossner sued for specific performance; following a bench trial the trial court ordered conveyance of the property and both permanent and temporary easements to Klossner. Burr appealed.
Issues
| Issue | Plaintiff's Argument (Klossner) | Defendant's Argument (Burr) | Held |
|---|---|---|---|
| Whether trial court improperly admitted parol evidence | Emails and testimony showed parties’ intent and mutual agreement to modifications and temporary easement | Admission of emails and testimony violated parol evidence rule | Evidence objection largely forfeited on appeal for lack of timely objection; no plain-error claim, so no reversal |
| Whether contract voidable for mutual mistake | Not argued at trial | Contract voidable due to mutual mistake about site conditions (leach field) | Court refused to consider mutual-mistake claim raised first on appeal |
| Whether conditions precedent (zoning variance) were unmet | N/A (Klossner contended he waived condition and was ready to close) | Zoning-variance condition and easement conditions precedent were not satisfied | Court held Klossner implicitly waived conditions precedent when he said he was ready to close; easement language did not create a condition precedent |
| Whether exhibits were attached when contract signed | N/A | Alleged exhibits were not attached, so contract defective | Burr failed to develop argument; appellate court declined to create supporting argument and rejected the claim |
Key Cases Cited
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997) (failure to timely object at trial forfeits appellate review of error)