Open Container, Ltd. v. CB Richard Ellis, Inc.
2015 Ohio 85
Ohio Ct. App.2015Background
- Open Container, Ltd. leased commercial property from Greater Ohio Leasing Corp. (Greater Ohio); lease began 1997 with renewal options and Open Container operated a restaurant until 2001.
- In January 2004 Open Container and Greater Ohio executed a written "Offer to Purchase" giving Open Container 45 days to obtain financing; Open Container failed to secure financing.
- In February 2006 Open Container listed the property for sale with CB Richard Ellis, Inc. (CBRE), representing it had authority to sell based on the 2004 offer; Greater Ohio notified Open Container on February 21, 2006 that the offer was null and void and terminated the lease for default.
- CBRE learned Open Container lacked authority and canceled its listing; CBRE later listed the property for Greater Ohio.
- Greater Ohio sued to evict; subsequent litigation included summary judgment motions by Greater Ohio and CBRE, which the trial court granted; Open Container appealed and this appeal followed after procedural steps were cured.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CBRE's listing covered the restaurant fixtures/turnkey business or only real estate | Open Container: listing covered sale of the 10,000 sq ft turnkey restaurant plus long-term lease for $1.5M | CBRE: listing described the entire property (land, building and amenities) and CBRE relied on Open Container's representation of authority | Court: listing included the whole property (land, building and restaurant); plaintiff's testimony confirmed this; no genuine dispute |
| Whether CBRE was required to cancel the listing after notice from Greater Ohio | Open Container: CBRE wrongfully canceled the listing and violated ethics/statute | CBRE: once informed Open Container lacked authority, R.C. 4735.18(A)(20) required termination to avoid discipline | Court: CBRE had a statutory/ethical obligation to remove the listing after being informed Open Container lacked authority; cancellation was proper |
| Whether the 2004 offer to purchase was enforceable despite alleged oral waivers/estoppel (Statute of Frauds) | Open Container: financing condition was waived or estopped, creating fact issues precluding summary judgment | Greater Ohio: any oral waiver/estoppel would be subject to the statute of frauds and must be in writing | Court: Even if waiver occurred, agreements affecting sale of land fall under the statute of frauds and must be written; offer had been formally voided by Greater Ohio's February 21, 2006 letter |
| Whether Open Container has damages to sustain remaining claims (breach, estoppel, unjust enrichment, torts) | Open Container: various claims remain and factual disputes exist about damages | Defendants: plaintiff failed to show actual damages; property later sold and proceeds distributed consistent with defendants' rights | Court: Plaintiff presented no evidence of actual damages (no offers while marketing; property sold for amount leaving nothing for Open Container); absence of damages defeats remaining claims |
Key Cases Cited
- Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621 (summary judgment standard)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (summary judgment standard)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving party burden in summary judgment)
- Byrd v. Smith, 110 Ohio St.3d 24 (when contradictory affidavit creates genuine issue)
- FirstMerit Bank, N.A. v. Inks, 138 Ohio St.3d 384 (statute of frauds bars oral agreements for sale of land)
- DeCastro v. Wellston City Sch. Dist. Bd. of Edn., 94 Ohio St.3d 197 (need for evidence of damages in breach claims)
- Olympic Holding Co., L.L.C. v. ACE Ltd., 122 Ohio St.3d 89 (purpose of statute of frauds)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo review of summary judgment)