O'Brien v. Shorey
2021 Ohio 2519
| Ohio Ct. App. | 2021Background:
- Nov. 8, 2016: O’Brien and Shorey contracted for purchase of an undeveloped lot next to Shorey’s home for $145,000; closing set for Jan. 26, 2017.
- O’Brien paid $10,000 earnest money and tendered $134,535 to the title company at closing; earnest money later returned when title was not delivered.
- Shorey failed to deliver good and marketable title on Jan. 27, 2017; O’Brien sued (breach of contract and related claims) on Feb. 7, 2017.
- Shorey blamed encumbrances tied to his divorce and his ex-wife Amy Guy’s refusal to release mortgages; record showed Guy had quitclaimed her interest to Shorey before the sale.
- Trial court granted O’Brien partial summary judgment on breach (denied specific performance), awarded $6,278.32 in damages, and later awarded $26,045.15 in attorney fees finding Shorey acted in bad faith.
- Shorey appealed; the Eighth District affirmed the breach finding, the damages, and the attorney-fee award.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Breach vs. impossibility of performance | O’Brien: Shorey breached by failing to deliver marketable title | Shorey: Performance was impossible due to mortgage/divorce encumbrances and ex-wife’s refusal to cooperate | Court: Breach; impossibility fails because Guy had quitclaimed and Shorey knew or should have known title issues before contracting |
| 2. Tender of purchase price | O’Brien: He substantially performed by tendering nearly full purchase price | Shorey: O’Brien failed to deposit full price (short $464.42), creating a factual dispute | Court: O’Brien substantially performed; the tiny shortfall was nominal and not a defense to Shorey’s breach |
| 3. Entitlement to attorney fees (bad faith) | O’Brien: Fees recoverable because Shorey acted in bad faith entering the contract | Shorey: He did not act in bad faith | Court: Fees proper; trial court did not abuse discretion—found Shorey entered contract despite inability (or knowledge thereof) to convey clear title |
| 4. Need for evidentiary hearing on fees | O’Brien: Fees could be decided on briefs; parties agreed to briefing-only resolution | Shorey: Trial court should have held an evidentiary hearing on requested fees | Court: No error—local rule and parties’ agreement permitted deciding fees on briefs without hearing |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (sets summary-judgment standard applied by appellate court)
- Powell v. Grant Med. Ctr., 148 Ohio App.3d 1 (2002) (elements of a breach-of-contract claim)
- West v. Bode, 145 N.E.3d 1190 (2019) (marketable record title extinguishes prior interests; relevance to title defects)
- G/GM Real Estate Corp. v. Susse Chalet Motor Lodge of Ohio, Inc., 61 Ohio St.3d 375 (1991) (definition/standard for marketable title)
- Mattress Matters, Inc. v. Trunzo, 74 N.E.3d 739 (2016) (burden-shifting rule on summary judgment under Civ.R. 56)
- Szymczak v. Szymczak, 136 Ohio App.3d 706 (2000) (standard of appellate review for attorney-fee awards)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse-of-discretion definition)
- State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Commrs., 127 Ohio St.3d 202 (2010) (definition of bad faith in litigation)
- Wilborn v. Bank One Corp., 121 Ohio St.3d 546 (2009) ("American Rule" principle limiting fee-shifting absent statute, contract, or bad faith)