2004 Ohio 4576 | Ohio Ct. App. | 2004
{¶ 3} On May 1, 2002, appellant filed a complaint against appellee for breach of contract and fraud. Appellee filed a motion for summary judgment on August 28, 2003. On September 12, 2003, appellant filed a motion in opposition to appellee's motion for summary judgment and a motion for partial summary judgment on the issue of breach of contract. Appellee filed a motion in opposition to appellant's motion for partial summary judgment.
{¶ 4} Appellant timely appealed, setting forth one assignment of error. Given that appellant's assignment of error contains in excess of two hundred words and includes part of its legal argument, this Court has reproduced only the statement of the actual assignment of error.
{¶ 5} In its sole assignment of error, appellant challenges the trial court's award of summary judgment in favor of appellee.
{¶ 6} An appellate court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996),
{¶ 7} Pursuant to Civil Rule 56(C), summary judgment is proper if:
"(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977),
{¶ 8} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996),
{¶ 9} The "letter of mutual intent" provided:
"Furthermore, this letter of mutual intent is subject to Seller and Bender Development Inc. coming to a written agreement regarding floor plans, standard features, and other terms and agreements within 100 days of acceptance of this agreement. All terms, conditions, and floor plans must be signed for by both parties. * * *"
Breach of Contract
{¶ 10} "Generally, a breach of contract occurs when a party demonstrates the existence of a binding contract or agreement; the non-breaching party performed its contractual obligations; the other party failed to fulfill its contractual obligations without legal excuse; and the non-breaching party suffered damages as a result of the breach." Garofalo v. Chicago TitleIns. Co. (1995),
{¶ 11} "A contract consists of an offer, acceptance, and consideration." Bobinsky v. Tippett, 9th Dist. No. 21444, 2003-Ohio-3787 at ¶ 9, citing Tersigni v. Gen.Tire, Inc.
(1993),
{¶ 12} In her motion for summary judgment, appellee argued that the letter of mutual intent entered into by she and appellant was nothing more than an agreement to make an agreement. To support her motion, appellee attached the affidavit of Richard L. Bender, the president of Bender Development Company, Inc. ("Bender Development"), as well as a copy of the "letter of mutual intent." Appellee contended that the parties did not have a "meeting of the minds" sufficient to form a contract. Further, appellee argued that the terms of the letter of intent were not definite and certain enough to constitute a contract. In her motion for summary judgment, appellee listed several essential details regarding the construction of her unit that were to be agreed upon at a later date and set forth in a written agreement which was to be signed by both appellant and appellee. To support her argument, appellee presented the testimony of Richard Bender wherein he admitted that the letter of mutual intent did not contain all of the necessary information needed in order to begin the construction of appellee's unit.
{¶ 13} In its motion in opposition to appellee's motion for summary judgment and its motion for partial summary judgment on the issue of breach of contract, appellant argued that all the elements necessary to establish a contract existed between it and appellant. To support its motion, appellant attached the affidavit of Richard L. Bender. In his affidavit, Bender testified that he had many contacts with appellee after both parties executed the letter of intent. Bender testified that Bender Development fully performed all of its obligations under the letter of intent through the date appellee's attorney informed Bender Development's attorney that she no longer wanted to pursue the development of her property with Bender Development. Bender further testified that appellee approved and participated in acquiring the necessary variances from the City of Lorain for the project. Bender testified that the parties came to an agreement on the floor plans and standard features of appellee's unit. Bender testified that he and Bender Development relied on various statements made by appellee regarding the proposed project to their detriment.
{¶ 14} In the present case, the express terms of the letter of intent clearly indicate that that document was nothing more than an agreement to principles which were subject to further negotiation and a definitive written agreement. While the letter of intent may have provided the basic framework for future negotiations, the letter itself did not address all the essential terms of the construction contract. Thus, the letter of intent is not a legally enforceable contract.
Fraud
{¶ 15} In order to establish a claim for fraud, a party must prove each of the following elements:
"(a) a representation or, where there is a duty to disclose, concealment of a fact,
"(b) which is material to the transaction at hand,
"(c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred,
"(d) with the intent of misleading another into relying upon it,
"(e) justifiable reliance upon the representation or concealment, and
"(f) a resulting injury proximately caused by the reliance."Burr v. Bd. Of Commrs. of Stark Cty. (1986),
{¶ 16} An action in fraud will only be found if all of the elements are present and "the absence of one element is fatal to recovery." Westfield Ins. Co. v. Huls Am., Inc. (1998),
{¶ 17} In her motion for summary judgment, appellee argued that there was no material issue of fact as to whether she had engaged in fraud in her interaction with appellant. To support her argument, appellee presented the deposition testimony of Richard Bender.
{¶ 18} Appellant did not address the fraud claim in its opposition to appellee's motion for summary judgment and motion for partial summary judgment.
{¶ 19} This Court finds that appellee met her Dresher burden in that she demonstrated that a contract did not exist between the parties and that appellant had no actionable claim for fraud. The burden then shifted to appellant to show that there existed a genuine issue of material fact as to whether a contract existed or that appellee was liable for fraud. Appellant failed to meet its burden. This Court finds that summary judgment was properly granted in favor of appellee.
{¶ 20} Appellant's assignment of error is overruled.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to appellant.
Exceptions.
Whitmore, J., Boyle, J., concur.