654 N.E.2d 434 | Ohio Ct. App. | 1995
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *579 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *580 James F. Brannan appeals from a judgment of the Scioto County Court of Common Pleas granting summary judgment to Paul E. Fowler, executor of the estate of James H. McElhaney. Appellant assigns two errors:
"Assignment of Error Number 1: The trial court erred by not ruling upon the motion filed by plaintiff-appellant to amend the complaint and then making the lack of an amended complaint part of its decision in its ruling upon summary judgment."
"Assignment of Error Number 2: The trial court erred and abused its discretion granting summary judgment in favor of the defendant-appellee and dismissing the complaint."
Appellant filed a complaint in the Scioto County Court of Common Pleas demanding judgment "requiring the estate to transfer the real estate and business to [appellant] pursuant to the terms of the contract." Appellant alleged that appellee's decedent, James McElhaney, promised appellant in 1983 that if appellant would quit his job in Columbus, move to Scioto County, and manage the "Pitt Stop," upon McElhaney's death, appellant would get the business and real estate. McElhaney died in September 1992, leaving appellant $10,000 in cash. McElhaney's will did not pass the Pitt Stop to appellant. Appellant also alleged in his complaint that relying upon McElhaney's promise, appellant borrowed money in his own name for the business.
Appellee filed a motion for summary judgment, arguing that appellant's complaint alleged an oral contract to make a will, prohibited by R.C.
"Now comes the Plaintiff and moves this Court for an Order permitting him to file an Amended Complaint herein, for the reason that the Defendant has refused to deliver personal property belonging to the Plaintiff even after establishing proof of purchase and to further amend the Complaint to allege an alternative prayer for money damages." *581
Appellant never filed a proposed amended complaint and appellee did not file an objection to appellant's request for leave to amend. The trial court never ruled on the motion for leave to amend, but on February 14, 1994, the court filed an entry granting summary judgment to appellee.
In his first assignment of error, appellant argues that the trial court erred in failing to rule on the motion to amend the complaint. When a trial court fails to rule on a motion, the appellate court presumes that the trial court overruled the motion. Winters v. Winters (Feb. 24, 1994), Scioto App. No. 2112, unreported, 1994 WL 69885; Newman v. Al Castrucci FordSales, Inc. (1988),
Civ.R. 15(A) provides in part:
"(A) Amendments.
"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires. * * *"
An appellate court will only reverse a trial court's decision on a motion to amend a complaint if the trial court abused its discretion. Wilmington Steel Products, Inc. v. Cleveland Elec.Illum. Co. (1991),
Generally, the language of Civ.R. 15(A) favors a liberal policy of allowing amendments to pleadings beyond the time when such amendments are automatically allowed. Wilmington Steel,supra,
An amended pleading is designed to include matters occurring before the filing of the complaint, but either overlooked or not known at the time. Steiner v. Steiner (1993),
In his second assignment of error, appellant contends that the trial court erroneously granted summary judgment to appellee. In reviewing a summary judgment, the lower court and the appellate court utilize the same standard, i.e., we review the judgment independently and without deference to the trial court's determination. Midwest Specialties, Inc. v. FirestoneCo. (1988),
The trial court granted summary judgment, finding that appellant's complaint was barred by R.C.
"No agreement to make a will or make a devise or bequest by will shall be enforceable unless it is in writing. * * *"
Appellant concedes that the decedent never put into writing his promise to give appellant the Pitt Stop business and real estate. However, appellant contends that there is a genuine issue of fact whether the agreement between the decedent and appellant was a promise to make a will or a contract for the transfer of the business and real estate.
To his motion for summary judgment, appellee attached portions of appellant's deposition testimony in which he stated that the decedent promised appellant that "if anything ever happened" to the decedent, the business would belong to appellant. Appellant testified that the agreement was not necessarily that decedent would transfer the property by will, but that some time in the future, at some uncertain date, decedent would give the property to appellant. Appellant attached to his response to the summary judgment sworn statements from several friends, relatives and business associates. These people testified that they heard the decedent say that he planned to purchase a business for appellant or that the Pitt Stop belonged to appellant or that when the decedent died or if "something happened to him" appellant would get the Pitt Stop.
It is not clear that the agreement between decedent and appellant was a contract to make a will. However, even if the alleged oral agreement was not a contract to make a will, as a matter of law, it was not an enforceable contract for the transfer of real estate. R.C.
"No lease, estate, or interest, either of freehold or term of years, or any uncertain interest of, in, or out of lands, tenements, or hereditaments, shall be assigned or granted except by deed, or note in writing, signed by the party assigning or granting it, or his agent thereunto lawfully authorized, by writing or by act and operation of law."
Because the decedent never executed a written deed, note in writing, or memorandum, the Statute of Frauds bars enforcement of the alleged contract. R.C.
"`The plaintiff must be able to show such acts and conduct of the defendant as the court would hold to amount to a representation that he proposed to stand by his agreement and not avail himself of the Statute to escape performance; and also that plaintiff, in reliance on this representation, has proceeded, either in performance or pursuance of his contract, so far to alter his position as to incur an unjust or unconscientious injury and loss * * *.'" Heiss, supra, quotingTier v. Singrey (1951),
Generally, the performance of services as consideration of a promise to convey land is insufficient to justify enforcement of an oral agreement. 3 Williston on Contracts (3 Ed. 1960, Supp. 1994) 564, Section 494. However, services may be sufficient partial performance if the services are such that they cannot be readily valued in money. Id. at 565; Snyder, supra,
In this case, construing all facts most strongly in favor of appellant, appellant did perform services as manager of the Pitt Stop and did turn down other employment because of the decedent's alleged promise to convey the business and real estate to him. However, such services can be adequately compensated in money and appellant conceded that he and his wife were paid fair wages for the time they worked at the Pitt Stop. Thus, as a matter of law, both R.C.
Judgment affirmed in partand reversed in part.
STEPHENSON and PETER B. ABELE, JJ., concur. *585