CLAY CANTER v. JOHN ROGER GARVIN ET AL.
CASE NO. 14-19-30
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
January 19, 2021
2021-Ohio-99
Aрpeal from Union County Common Pleas Court Trial Court No. 2016-CV-0169
Judgment Reversed and Cause Remanded
Date of Decision: January 19, 2021
APPEARANCES:
Thomas H. Fusonie and Daniel E. Shuey for Appellants
Terrence G. Stolly and Zebulon N. Wagner for Appellee
{¶1} Defendants-appellants, John Roger Garvin (“John“) and Anita Marie Green (“Green“) (collectively the “Co-Trustees“), as co-trustees of the John L. Garvin Trust (the “Trust“), appeal the October 24, 2019 judgment of the Union County Court of Common Pleas overruling their objections to a March 19, 2018 magistrate‘s decision, in which the magistrate ordered that an alleged contract involving the sale of land be specifically performed and that the Co-Trustees convey approximately 100 acres of farmland in West Mansfield, Ohio to plaintiff-appellee, Clay Canter (“Canter“). For the reasons that follow, we reverse.
{¶2} At the heart of this case is a single question: did Canter and John L. Garvin (“Garvin“), the Co-Trustees’ father and predecessor trustee, enter into a legally enforceable contract whereby Canter either purchased approximately 100 acres of Garvin‘s 108-acre farm in West Mansfield, Ohio (the “Farm“) from the Trust,1 with possession transferring after Garvin‘s death, or acquired the right to purchase these 100 acres for $200,000 upon Garvin‘s demise? While this question may be straightforward, the facts of this case are anything but.
{¶4} In 2003, Canter and Garvin entered into a verbal agreement by which Canter rented a portion of the Farm, consisting of a pasture, a lane, and a barnyard, to raise cattle. The agreement called for Canter to pay Garvin $6 per head of cattle; Garvin was to be responsible for caring for the fences surrounding the rented farmland. In December 2006, Canter began renting a barn from Garvin in addition to the pastureland.
{¶5} According to Canter, sometime in 2008, he and Garvin were spraying bushes along one of the property lines of the Farm when Garvin asked him whether he would be interested in buying the Farm. Canter indicated that he would be interested in buying the Farm for $200,000. Garvin, apparently satisfied with this figure, told Cantеr that he would think about it. However, Canter and Garvin did not reach an agreement in 2008 regarding the sale of the Farm, and the matter was seemingly abandoned.
{¶7} At that point, Canter informed Garvin that he could not read any more without his reading glasses. Rather than allowing Canter to retrieve his reading
[Garvin] read [him] the paperwork and read that it gave [him] the right to purchase [the Farm] and [Garvin] went on through about the borders of the property and the acreage. And * * * it mentioned two red posts. Two posts that weren‘t in yet that would be painted red and drove as boundaries to the property and [Garvin] said one of them deeded the fencerow on State Route 47. [Garvin] said north of a white fence that was a yard fence on his property. The second post would be east of the first fence post and that the property line would go to the fence, across the creek to the fence but it went over to another corner of the property and [Garvin] would carve out the house and the buildings.
(Id. at 43). Canter remembered that after Garvin was done reading the paper,
[Garvin] * * * went on about the creeks that he wanted straightened out that had erosion. He had large thorn trees both on the property that [Canter] was leasing and outside the property [Canter] was leasing down the lane and in the woods behind the property that [Canter] was leasing that he wanted the trees and thorns removed.
And, also, on the side that [Jerry] Regula [(“Regula“)] was leasing that he also mentioned that he wanted those trees removed.
(Id. at 45). Canter stated that he and Garvin agreed that the performance of this work “would be part of * * * the terms on the Farm” and that he “would not receive cash” for doing the work. (Id.). According to Canter, he and Garvin “shook hands on it as the agreement and [he] * * * thanked [Garvin] for giving [him] the opportunity to purchase the Farm.” (Id.).
{¶8} According to Canter, after he and Garvin entered into the agreement, Garvin retained the piece of paper containing the terms of the agreement. Canter did not sign the piece of paper, and he never asked for or possessed a copy of the document. In the months and years following Canter and Garvin‘s alleged agreement, several people saw documents that may have been the document Canter and Garvin reviewed in April 2009, though descriptions of these documents vary. Ruth, who was present when Garvin read to Canter from the paper, said that she once saw a document that said that Garvin was giving Canter the right to purchase part of the Farm upon Garvin‘s death. However, she stated that the paper used to compose this document was part of a sheet of yellow tablet paper, that the inscriptions were handwritten in pencil, and that the document was not notarized.
{¶9} Likewise, Kathy Taylor (“Taylor“), Ruth‘s friend, recalled that during one visit to Garvin‘s house, she saw a piece of yellow paper with four inches of
{¶10} Shortly after Canter and Garvin allegedly entered into the contract, Canter began performing work at the Farm. Canter paid to have his uncle‘s excavator transported to the Farm, and for two weeks, Canter‘s uncle, Eric Canter (“Eric“), worked 10-12 hours per day clearing brush, tearing down thorn trees, and rerouting and improving a creek on the Farm. Although the work performed by Eric
{¶11} Sometime after Canter and Garvin allegedly entered into the contract, two metal fence posts were placed in the ground at the Farm and painted red. One of the fence posts was placed along a fencerow on the westernmost boundary of the Farm. The other post was placed near a small outbuilding east of the first post. According to Canter, Garvin stated that he had driven the posts to mark the boundaries of the property that was the subject of their agreement. Other people were aware of the fence posts and their apparent significance. Ruth recalled that Garvin had told her that the fence posts split the Farm into two parts and demarcated the land that was the subject of the alleged agreement; she thought that Garvin “had
{¶12} Following their alleged April 2009 agreement, Canter and Garvin‘s relationship remained much the same. Canter continued to perform under the terms of his verbal lease agreement with Garvin. Canter continuously raised cattle at the Farm from 2003 until approximately 2017, other than an 11-month period between December 2014 and November 2015, and he maintained his friendship with Garvin. Canter and Garvin‘s relationship continued in this fashion until Garvin fell and broke his hip in December 2015. Canter visited with Garvin often over the next two months until Garvin died in February 2016 at the age of 102.
{¶13} After Garvin‘s death, no document evidencing Canter and Garvin‘s alleged contract could be found. According to John, Garvin was a meticulous record-keeper, and his records were in good order when he died. When Garvin‘s records were searched after his death, John easily found Garvin‘s estate planning,
{¶14} It is unclear from the record exactly when or how Canter attempted to take possession of part of the Farm or to exercise his alleged right to purchase a portion of the Farm from the Trust. Evidently, Canter attempted to purchase a portion of the Farm from the Trust at some point after Garvin‘s death but the Co-Trustees declined to deal with him.
{¶15} On August 19, 2016, Canter filed a complaint against the Co-Trustees. (Doc. No. 2). In his complaint, Canter asserted various causes of action, including breach of contract, “breach [of] oral contract,” and promissory estoppel. (Id.). Canter requested that the Co-Trustees “be ordered to sell the Farm, less the acreage upon which the farmhouse is situated,” to him for $200,000, along with “monetary judgment against [the Co-Trustees] in the amount proven for breach of contract” and other legal and equitable relief. (Id.).
{¶16} On September 12, 2016, the Co-Trustees filed their answer to Canter‘s сomplaint. (Doc. No. 9). In their answer, the Co-Trustees asserted that because
{¶17} On July 13, 2017, a bench trial commenced before the magistrate. (See Doc. No. 40); (July 13, 2017 Tr., Vol. I, at 1, 5). Eventually, on March 19, 2018, the magistrate issued his decision and recommendation. (Doc. No. 61). The magistrate recommended that the trial court find that Canter and Garvin “entered into a contract for the sale of certain real estate” and that irrespective of compliance with the statute of frauds, because Canter performed extensive work at thе Farm, “the doctrine of part performance takes the transaction out of the statute of frauds.” (Id.). The magistrate further recommended that the trial court find that “the real estate to be sold consists of all acreage north of a line demarcated by two red posts which line extends from the western most boundary of [the Farm] and extending to the eastern most boundary of [the Farm],” that “all acreage south of the above bifurcating line is not subject to the sale contract,” and that “the purchase price is
{¶18} On April 11, 2018, the Co-Trustees filed their objections to the magistrate‘s decision. (Doc. No. 65). On April 23, 2018, Canter filed his response to the Co-Trustees’ objections to the magistrate‘s decision. (Doc. No. 66). On April 30, 2018, the Co-Trustees filed their reply brief in support of their objections to the magistrate‘s decision. (Doc. No. 67).
{¶19} On October 24, 2019, the trial court issued a judgment entry overruling most of the Co-Trustees’ objections to the magistrate‘s decision. (Doc. No. 72). In particular, the trial court concluded that the writing Canter and Garvin reviewed in April 2009 contained all of the essential terms of their alleged agreement and that, alternatively, the doctrine of part performance applied to remove the alleged agreement from the operation of the statute of frauds. (Id.). However, the trial court sustained one of the Co-Trustees’ objections, which related to the description of the property to be sold to Canter pursuant to his alleged agreement with Garvin. (Id.). As a result, the trial court ordered that, contrary to the magistrate‘s finding, the “acreage to be sold shall be all acreage north of a line demarcated by two red posts which line extends from the western most boundary of [the Farm] and extending to
{¶20} On November 22, 2019, the Co-Trustees filed a notice of appeal. (Doc. No. 78). They raise four assignments of error for our review. We begin by addressing the Co-Trustees’ second and third assignments of error together because our resolution of these assignments of error is dispositive of this appeal and they concern related issues.
Assignment of Error No. II
The trial court erred when it found that a valid and enforceable option contract for the sale of land existed that satisfied the statute of frauds and entered judgment in favor of Plaintiff instead of Defendants.
Assignment of Error No. III
The trial court erred when it found part performance exempted the document from the statute of frauds and permitted the trial court to enforce an alleged oral contract and entered judgment in favor of Plaintiff instead of Defendants.
{¶21} In their second and third assignments of error, the Co-Trustees argue that the trial court erred when it overruled two of their objections to the magistrate‘s decision. Specifically, in their second assignment of error, the Co-Trustees argue that the trial court erred by concluding that the magistrate had correctly determined that the document Canter and Garvin reviewed in April 2009 contained the essential
{¶22} Generally, “[a]n appellate court reviews the trial court‘s decision to adopt, reject or modify the Magistrate‘s decision under an abuse of discretion standard.” Tewalt v. Peacock, 3d Dist. Shelby No. 17-10-18, 2011-Ohio-1726, ¶ 31, citing Figel v. Figel, 3d Dist. Mercer No. 10-08-14, 2009-Ohio-1659, ¶ 9, citing Marchel v. Marchel, 160 Ohio App.3d 240, 2005-Ohio-1499, ¶ 7 (8th Dist.). An abuse of discretion suggests the trial court‘s decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). However, “[w]here an appeal from the trial court‘s action on a magistrate‘s decision * * * presents only a question of law, * * * we review that question de novo.” Brunetto v. Curtis, 10th Dist. Franklin No. 10AP-799, 2011-Ohio-1610, ¶ 10, citing Shah v. Smith, 181 Ohio App.3d 264, 2009-Ohio-743, ¶ 7 (1st Dist.). “De novo review is independent and without deference to the trial court‘s determination.” ISHA, Inc. v. Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S. Bancorp, 195 Ohio App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.).
{¶24} The magistrate and the trial court only compounded Canter‘s conceptual confusion. In his decision, the magistrate ultimately concluded that Canter and Garvin “entered into a contract for the sale of certain real estate” and recommended that “the contract for the sale of real estate between [Garvin] and [Canter] be specifically enforced.” (Doc. No. 61). Yet, throughout his decision, the magistrate also referred to Canter‘s “right” to purchase pаrt of the Farm, and he once described the land marked by the painted fence posts as “the property that [Canter] could buy for $200,000” rather than as the property that Canter had bought for
{¶25} However, whatever ambiguity existed in earlier proceedings with respect to the identity of Canter and Garvin‘s alleged contract, it now appears that the parties are generally in agreement that the alleged contract should be analyzed as an option contract. Most of the Co-Trustees’ arguments on appeal rely to some extent on characterizing Canter and Garvin‘s alleged contract as an option contract. (See Appellants’ Brief at 1-2, 5, 9, 14-23). Furthermore, though Canter begins his appellate brief by describing his allеged contract with Garvin as “an agreement * * * to purchase a portion of the [Farm] * * * for two hundred thousand dollars,” he does not challenge the Co-Trustees’ characterization of the alleged contract as an option contract. In fact, in countering one of the Co-Trustees’ arguments, Canter talks about exercising an option. (See Appellee‘s Brief at 23-24) (“[T]he notion that [Canter] failed to exercise the option is intellectually dishonest. * * * The fact is that [Canter] would not have initiated litigation if he was permitted by [the Co-Trustees] to exercise the option.“). Therefore, in considering whether Canter and
{¶26} “‘In general, the term “statute of frauds” refers to а provision that requires that certain agreements be in writing.‘” LHPT Columbus, L.L.C. v. Capitol City Cardiology, Inc., 10th Dist. Franklin No. 14AP-264, 2014-Ohio-5247, ¶ 18, quoting ELM Invests., Inc. v. BP Exploration & Oil, Inc., 10th Dist. Franklin No. 11AP-1000, 2012-Ohio-2950, ¶ 11. “In Ohio, the General Assembly codified the statute of frauds in
No action shall be brought whereby to charge the defendant * * * upon a contract or sale of lands, tenements, or hereditaments, or interest in or concerning them * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized.
{¶27} “The purpose of the statute of frauds is to prevent ‘frauds and perjuries.‘” Olympic Holding Co., L.L.C. v. ACE Ltd., 122 Ohio St.3d 89, 2009-Ohio-2057, ¶ 33, quoting Wilber v. Paine, 1 Ohio 251, 255 (1824).
By requiring that contracts concerning real estate be evidenced by a signed writing, the statute of frauds “serves to ensure that transactions involving realty interests are commemorated with sufficient solemnity. A signed writing provides greater assurance that the parties and the public can reliably know when such a transaction occurs. It supports the public policy favoring clarity in determining real estatе interests and discourages indefinite or fraudulent claims about such interests.” * * * If a contract falling under the statute of
frauds is not properly memorialized in a signed writing, the effect of the statute is to render an otherwise valid contract unenforceable.”
Stickney at ¶ 23, quoting Beaverpark Assocs. v. Larry Stein Realty Co., 2d Dist. Montgomery No. 14950, 1995 WL 516469, *3 (Aug. 30, 1995), quoting N. Coast Cookies, Inc. v. Sweet Temptations, Inc., 16 Ohio App.3d 342, 348 (8th Dist.1984).
{¶28} To satisfy the statute of frauds, “[t]he writing does not need to contain all the terms of the agreement between the parties.” 6610 Cummings Court, L.L.C. v. Scott, 8th Dist. Cuyahoga Nos. 106803 and 106804, 2018-Ohio-4870, ¶ 39, citing N. Coast Cookies at 349, citing Normandy Place Assocs. v. Beyer, 2 Ohio St.3d 102 (1982). Instead, “““[a]ny signed memorandum is sufficient to satisfy the Statute of Frauds so long as it (1) identifies the subject matter of the agreement, (2) establishes that a contract has been made, and (3) states the essential terms with reasonable certainty.““” LHPT Columbus at ¶ 22, quoting Lamkin v. First Community Bank, 10th Dist. Franklin No. 00AP-935, 2001 WL 300732 (Mar. 29, 2001), quoting Busler v. D & H Mfg., Inc., 81 Ohio App.3d 385, 389 (10th Dist.1992), citing N. Coast Cookies at 349. “As to essential terms, the essential terms of a contract are ‘the identity of the parties to be bound, the subject matter of the contract, consideration, a quantity term, and a price term.‘” Mezher v. Schrand, 1st Dist. Hamilton No. C-180071, 2018-Ohio-3787, ¶ 8, quoting Alligood v. Procter & Gamble Co., 72 Ohio App.3d 309, 311 (1st Dist.1991). “If the writing does not
{¶29} Whether a document complies with the statute of frauds is a question of law, which we review de novo. LHPT Columbus, 2014-Ohio-5247, at ¶ 21, citing Fontbank, Inc. v. CompuServe, Inc., 138 Ohio App.3d 801, 812 (10th Dist.2000), citing Ruhe v. Hemmelgarn, 2d Dist. Darke No. 96-CA-1423, 1997 WL 476687 (Aug. 22, 1997), and citing State v. Evans, 10th Dist. Franklin No. 13AP-939, 2014-Ohio-2081, ¶ 9. See Peoples v. Holley, 181 Ohio App.3d 203, 2009-Ohio-897, ¶ 20 (2d Dist.).
{¶30} In this case, it is undisputed that if a writing evidencing the alleged option contract between Canter and Garvin ever existed, it has been lost or inadvertently destroyed. Therefore, to prove that such a writing existed and that the writing complied with the statute of frauds, Canter introduced his own recollections of the writing‘s contents, testimony of other people who allegedly saw the writing and recalled its contents, and testimony about statements Garvin made concerning the contents of the writing.2
{31} Canter was the first to testify about the contents of the alleged writing. As indicated above, Canter testified that the writing stated, “John Garvin, Trustee, gives Clay Canter the right to purchase my farm at $200,000,” and Canter stated that the writing specified that this right would be effective upon Garvin‘s death. (July 13, 2017 Tr., Vol. I, at 42, 97). Canter also testified that the writing described approximately 100 acres and that the writing was signed by Garvin. (Id. at 42). Apart from other details irrelevant to determining whether the writing complied with the statute of frauds, such as the color of the paper or the presence of letterhead, Canter could remember nothing more about the writing or its contents. (Id. at 42-43).
{32} To make up for some of the deficits in his personal memory оf the writing and its contents, Canter also testified about what Garvin said the writing said when Garvin read it aloud in April 2009.3 Canter stated that Garvin‘s reading of the document confirmed that “it gave him the right to purchase the [F]arm.” (Id. at 43). Canter also testified that Garvin thoroughly explained the writing‘s description of the land that was the subject of the alleged contract, including the fact that two red-
{33} In addition, Ruth, Taylor, and Jesse testified about the alleged contents of the writing. Ruth testified that Garvin once showed her a piece of “yellow tablet paper with pencil” that said that Garvin “was giving [Canter] the right to purchase the [F]arm upon [Garvin‘s] death.” (Id. at 128). Moreover, in the following exchange, Ruth testified about her memory of what Garvin read to Canter in April 2009:
[Canter‘s Counsel]: Do you remember hearing anything that [Garvin] read from that document?
[Ruth]: Not exactly, no.
[Canter‘s Counsel]: I understand you don‘t remember exactly. Was there anything that stuck in your mind that you recall all these years?
[Ruth]: Nothing more than just he thought he would like for [Canter] to buy it.
[Canter‘s Counsel]: For $200,000?
[Ruth]: Yes.
* * *
[Canter‘s Counsel]: [U]pon his death is when [Canter] would buy it. Do you recall that?
[Ruth]: [Garvin] didn‘t say one way or the other but he wanted to retain ownership until his death.
(Id. at 133-134). Ruth testified that the writing she saw was signed by Garvin. (Id. at 134).
{34} As for Taylor, she testified that she once saw a handwritten document in Garvin‘s house that said that “Clay Canter was going to be given the right to buy the farmland.” (July 13, 2017 Tr., Vol. I, at 140). She also remembered that the document was signed by Garvin. (Id.). However, Taylor could not recall whether the writing featured the word “agreement,” whether it said anything about a price for the Farm, or whether it said anything about when Canter could buy the Farm.
{35} With this evidence, the magistrate could have decided whether the writing complied with the statute of frauds. Yet, the magistrate did not definitively conclude whether the writing satisfied the statute of frauds, concluding instead that the doctrine of part performance entitles Canter to relief irrespective of compliance with the statute of frauds. (Doc. No. 61). The magistrate questioned whether Garvin “in drafting the document was acting in his individual capacity or as trustee of the [Trust]” and he observed that if Garvin “was not acting in his fiduciary capacity, then there would be no compliance with the statute of frauds.” (Id.). Nonetheless, aside from his doubts about whether Garvin was acting in his individual or fiduciary
[A] writing existed and the contents thereof set forth that [Canter] had the right to purchase the portion of [the Farm] marked by the red stakes after [Garvin‘s] death for $200,000. While the additional work to be done on the [F]arm later added as consideration was not a part of the writing, the Court finds that all essential terms of the agreement were contained in the writing.
(Doc. No. 72).
{36} However, both the magistrate and the trial court were mistaken at least one of the essential terms of the alleged option contract was not contained in the writing. Canter‘s own testimony supports that if he did in fact have an agreement with Garvin, the work he performed at the Farm was an essential term of that agreement. Canter consistently testified that the work was “part of the contract” or “part of the agreement the terms on the [F]arm.” (July 13, 2017 Tr., Vol. I, at 45);
{37} Because Canter repeatedly stated that the work was part of his alleged agreement with Garvin and that he performed the work in exchange for the rights allegedly set forth in the writing, we believe that the trial court was correct when it noted that the work constituted consideration for the alleged contract. In fact, since Canter also testified that he did not give Garvin “any money or a check or anything of value on [the] date of the alleged agreement” and that there was “[j]ust work” after the date of the alleged agreement, this work, or Canter‘s promise to complete the work, is the only possible consideration for the alleged option contract. (July 13, 2017 Tr., Vol. I, at 100, 108). As the consideration for the alleged option contract, the work was clearly an integral term of the alleged contract; without it, the alleged contract would be nothing more than an alleged non-binding promise or offer. See Plikerd v. Mongeluzzo, 73 Ohio App.3d 115, 122-123 (3d Dist.1992) (“An option to be effective and not revocable must be based upon a consideration. Thе consideration for the option contract is something other and independent of the consideration that will pass between the parties in the event that the option is exercised.“), quoting 17 Ohio Jurisprudence 3d, Contracts, Section 22, at 453-455 (1980). Thus, contrary to the trial court‘s conclusion, the writing did not contain
{38} Moreover, without referencing the additional work, there was nothing in the writing demonstrating that any type of agreement was reached by Canter and Garvin, whether that agreement be a contract for the sale of land or an option contract. The writing did not indicate that Canter and Garvin actually reached an agreement whereby Canter purchased a portion of the Farm from the Trust for $200,000. At best, the language in the writing supported that Garvin had offered to sell Canter part of the Farm for $200,000 and that the offer could be accepted after Garvin died. The writing did not evidence that Canter had accepted an offer to buy a portion of the Farm for $200,000. Furthermore, though the writing supported that Canter may have been granted the right to purchase рart of the Farm, it did not contain language sufficient to show that Canter acquired this right as part of a contract with Garvin. Statements in the writing that Canter had been “give[n] * * * the right to purchase [the Farm] at $200,000,” that Garvin “was giving [Canter] the right to purchase the [F]arm,” or that Canter “was going to be given the right to buy the farmland” were as consistent with the making of a gratuitous promise as they were with the formation of a legally binding option contract. Without a statement that the right to purchase had been, or was to be, given in exchange for the work at the Farm, or some other consideration, the writing did not contain words which
{39} In sum, because Canter was unable to produce a writing evidencing the alleged option contract, he was required to prove both that such a writing once existed and that it satisfied the requirements of the statute of frauds. Assuming that Canter‘s evidence was sufficient to show that a writing once existed and that this evidence proved all of the writing‘s contents, the writing failed to contain the essential terms of the alleged option cоntract. As a result, we conclude that the trial court erred by determining that the writing contained the essential terms of the alleged option contract. Accordingly, the trial court should have sustained the Co-Trustees’ objection to the magistrate‘s conclusion that the writing did contain the essential terms of the alleged contract. Furthermore, given our conclusion that the writing did not contain the essential terms of the alleged option contract, we must conclude that the writing failed to comply with the requirements of the statute of frauds.
{40} Although we conclude that the writing evidencing the alleged option contract did not satisfy the requirements of the statute of frauds, the alleged option contract may yet be enforceable under the doctrine of part performance. “In an action for specific performance, part performance is an equitable doctrine that
{41} “To remove an agreement from the requirements of the statute of frauds, part performance ‘must consist of unequivocal acts by the party relying upon the agreement, which are exclusively referable to the agreement and which have changed his position to his detriment and make it impossible or impractical to place the parties in statu quo.‘” OBLH, L.L.C. v. O‘Brien, 11th Dist. Trumbull No. 2013-T-0111, 2015-Ohio-1208, ¶ 21, quoting Delfino at 287, citing Hughes v. Oberholtzer, 162 Ohio St. 330, 339 (1954). “If the performance can reasonably be accounted for in any other manner or if plaintiff has not altered his position in reliance on the agreement, the case remains within the operation of the statute.” Delfino at 287.
{42} With respect to contracts concerning interests in real estate, “Ohio courts generally consider the following factors to be relevant in determining the applicability of the part performance doctrine: (1) evidence of a change in possession; (2) payment of all or part of the consideration for the land; and (3) improvements, alterations or repairs upon the land by the possessor.” Monea v. Lanci, 5th Dist. Stark No. 2009-CA-0083, 2009-Ohio-6446, ¶ 21, citing Brown v. Brown, 5th Dist. Knox No. 04CA000018, 2005-Ohio-1838, ¶ 29. Courts accept a combination of these elements in determining whether to apply the doctrine of part performance. See Dinunzio v. Murray, 11th Dist. Lake No. 2003-L-213, 2005-Ohio-4047, ¶ 30, citing Rolland v. Biro, 8th Dist. Cuyahoga No. 44632, 1982 WL 2547, *4 (Nov. 18, 1982). However, it is generally accepted that the presence of one of these factors, standing alone, is not sufficient to remove an agreement from
{43} “Determining whether the trial court correctly applied * * * the doctrine of part[] performance is a matter of law.” Verhoff v. Verhoff, 3d Dist. Allen No. 1-18-66, 2019-Ohio-3836, ¶ 21, quoting Crilow v. Wright, 5th Dist. Holmes No. 10 CA 10, 2011-Ohio-159, ¶ 27. As a result, we determine whether the trial court correctly applied the doctrine of part performance under a de novo standard of review. Id., citing Ruhe, 1997 WL 476687, at *3 and LHPT Columbus, 2014-Ohio-5247, at ¶ 21. Contra Bumgarner, 2010-Ohio-1894, at ¶ 26 (“Although the facts establishing part performance must be established by clear and convincing evidence, * * * the ultimate decision to apply equitable doctrines [such as the doctrine of part performance] is generally left to the discretion of the trial court and
{44} In his decision, the magistrate made the following conclusions with respect to Canter‘s part performance of the alleged option contract:
The Court finds that [Canter] performed substantial work on the farm at [Garvin‘s] request. The work performed was for no compensation as [Garvin] deemed this part of the deal if [Canter] wanted the opportunity to buy the farm. The work took place over a number of years and was substantial. [Canter] and his wife financed the cost of the work performed. As a result, their economic position was altered by their substantial investment to perform work. * * * [Canter] performed substantial work on the farm over a period of years. The work was performed in reliance of the contract. Considering the fact that many trees were removed, a stream diverted, old fences removed, new fences installed, and land re-graded and seeded, [Garvin] had to know that the work was being performed on his property. [Garvin] acquiesced in these improvements. In such a situation, the equitable doctrine of part performance applies to take the transaction out of the statute of frauds.
(Doc. No. 61).
{45} In its judgment overruling the Co-Trustees’ objection to the magistrate‘s determination, the trial court similarly concluded:
[The Co-Trustees] assert that more than improvements, alterations or repairs is required to establish part performance. The Court finds that [Canter] provided extensive work on the farm at the request of [Garvin] for no compensation. That work was to the detriment of [Canter] unless and until he was able to exercise his option to purchase the farm. This is work that [Garvin] certainly knew was occurring on his farm. The Court finds that the equitable doctrine of part performance applies to take this transaction out of the statute of frauds.
(Doc. No. 72).
{46} We agree with the magistrate and with the trial court that the work performed by Canter was substantial. We also agree that by performing the work at the Farm for no remuneration, Canter altered his economic position to his detriment. However, the substantiality of a party‘s acts allegedly done in pursuance of a contract, or a detrimental change in the performing party‘s economic position caused by performance of the acts, do not, by themselves, support application of the doctrine of part performance. Instead, the performing party‘s acts, even if substantial and financially burdensome, must be exclusively or unmistakably
{47} First, the record supports that some of the work Canter performed benefitted him as a lessee of part of the Farm. While it is clear that much of the work Canter performed was on land that he did not rent or that was rented by Regula, some of the work was done on land that he did rent, and this work was of value to his cattle-raising operation. For example, with respect to the eroded creek banks that he restored, Canter identified a number of factors that could have potentially caused the erosion, but he was confident that some of the erosion was caused by his cattle. (July 13, 2017 Tr., Vol. I, at 103). Vicky agreed that the work Canter performed provided his cattle with better access to water, and she also agreed that other work Canter performed “opened it up so [his] cows would have a place to
{48} In addition, the record demonstrates that Canter regularly provided services to Garvin without receiving compensation. As Canter testified:
A lot of work I did free. I cut all his firewood for his house. I carried salt down in the basement. I mowed his orchards. I worked on his farm equipment. I dug electric lines from the woodshed to his house. I carried toilets up. I filled it up to replace the toilet upstairs. I‘ve shoveled the snow every year there for the sidewalks all the sidewalks every year. I plowed the drive every year. I planted his garden. I plowed with the disc tractor. Disced [sic] it with his tractor. Planted it. Grew the crops for at least six years prior to the last six
years completely. And we carried the vegetables and stuff up to the house. And I considered that all things of friendship.
(July 14, 2017 Tr. at 54-55). We acknowledge that the work Canter allegedly did in pursuance of the option contract was apparently more costly and more extensive than the other services he provided to Garvin at no cost. Nonetheless, the work Canter purports to have done for Garvin as part of the alleged contract was not wholly inconsistent with his history of doing work for Garvin for free.
{49} Finally, the record supports that Garvin may have actually intended to pay Canter for the work he performed at the Farm. Although Canter insisted that he did not want to get paid for the work he performed at the Farm, he testified that “[Garvin] had actually offered to pay [him] for different things,” but he told Garvin “with the agreement on the Farm, [he] didn‘t feel it was right.” (Id. at 54). As one could query why Garvin would offer to pay Canter for the work if the work was indeed consideration for a contract giving Canter the right to buy part of the Farm, a different understanding under which Garvin would pay Canter for the work performed, though payment was ultimately rejected by Canter, supplies an additional plausible explanation for Canter‘s performance.
{50} In light of the foregoing, we cannot conclude that the work performed by Canter at the Farm was exclusively referable to an option contract existing between Canter and Garvin. Accordingly, we are inclined to conclude that the
{51} Regarding Canter‘s possession of the Farm, it is undisputed that Canter possessed, or at least exercised some control over, a portion of the Farm. However, as this court explained in Potts,
In order that possession may take a lease or contract for the sale of land out of the operation of the statute [of frauds], the possession must be definite and exclusive; it must unequivocally show what land is possessed, and that it is possessed by the purchaser exclusively and not concurrently with the vendor. It must, in short, indicate the commencement of a new interest in the estate.
The joint or concurrent possession of land by both the vendor and vendee, is not sufficient to take a parol contract of sale out of the operation of [the statute of frauds]. To have such effect the рossession of the vendee must be definite and exclusive.
{52} In addition, with respect to whether Canter paid all or part of the alleged $200,000 purchase price, the record reflects that Canter never paid any part of the $200,000 to Garvin or to the Trust. Vicky testified that there “hasn‘t been any money paid” by her or Canter to Garvin or the Trust for purchase of part of the Farm. (July 13, 2017 Tr., Vol. II, at 192-193). While Vicky stated that there was money “available and in the bank” to purchase part of the Farm, she conceded that they had never tendered a check for $200,000 to Garvin or the Trust. (Id. at 194-195). She agreed that she and Canter “never paid them one dollar * * * for [this]
{53} Finally, the improvements made by Canter at the Farm cannot alone sustain the application of the doctrine of part performance. First, as discussed above, some of the improvements made by Canter benefitted his cattle operation and were consistent with his status as Garvin‘s tenant. Additionally, “[i]mprovements made by a purchaser under an oral contract must be of such a character as to be incapable of compensation in damages in order to constitute part performance of such contract sufficient to take it out of the operation of the statute [of frauds].” Potts at 273. In this case, Canter performed significant work at the Farm, including tearing down many trees, rerouting a creek, and leveling ground. However, Canter failed to show that thе work he did at the Farm and the improvements he made are of such character as to be incapable of compensation in damages. Though we stop short of holding that the doctrine of part performance can never be applied if a party can be compensated in money for improvements made to real estate, where, as here, such improvements are not accompanied by qualifying possession of the land or payment of any part of the consideration, we believe that application of the doctrine of part performance is not warranted.
{54} Accordingly, we conclude that the trial court erred by concluding that the doctrine of part performance applies to remove the alleged option contract from
{55} The Co-Trustees’ second and third assignments of error are sustained.
Assignment of Error No. I
The trial court erred when it admitted the statements of John L. Garvin, Sr., a former trustee deceased at the time of trial, to prove the contents of the alleged writing or any alleged agreement.
Assignment of Error No. IV
The trial court erred when it ordered specific performance because Mr. Canter never exercised the option and the purported contract lacked completeness and certainty and when it entered judgment in favor of Plaintiff instead of Defendants.
{56} In light of our resolution of the Co-Trustees’ second and third assignments of error, the Co-Trustees’ remaining assignments of error are rendered moot, and accordingly, we need not address them.
{57} Having found error prejudicial to the appellants herein in the particulars assigned and argued, we reverse the judgment of the trial court and remand to the trial court for further proceedings cоnsistent with this opinion.
Judgment Reversed and Cause Remanded
SHAW, J., concurs.
/jlr
WILLAMOWSKI, P.J., concurring separately.
{58} In this case, Canter and Garvin entered into an option contract that was partially reduced to writing. However, the consideration for this option contract was agreed to orally and was not included in the writing. Since this writing did not contain an essential term of the option contract, I fully agree with the majority that this writing does not comply with the statute of frauds and that this option contract is not enforceable at law.
{59} Since this agreement is not enforceable at law, we must examine the arguments of the parties as to whether this agreement is enforceable in equity under the doctrine of partial performance. This doctrine “removes a contract from the operation of the statute of frauds” if partial performance of the agreement (1) “consist[ed] of unequivocal acts by the party relying on the agreement” (2) that “are exclusively referable to the agreement” (3) that “have changed his position to his
{60} In this case, I agree with the majority that Canter failed to establish that it is “imрossible or impracticable” to return the parties to the status quo ante. Verhoff, supra, at ¶ 19. See Majority, supra, at ¶ 54. Since he failed to establish this fourth element, the doctrine of partial performance is inapplicable and does not remove this option contract from the operation of the statute of frauds. I concur separately because the failure of the fourth element of the doctrine of partial performance negates the need to consider the application of the third element—whether the work Canter performed on Garvin‘s land was “exclusively referable to the agreement.” It is not necessary to the disposition of this case and I would not, therefore, discuss, consider nor determine it. Verhoff, supra, at ¶ 19.
{61} Further, in determining whether the doctrine of partial performance removes a contract from the operation of the statute of frauds, Ohio courts are also to consider whether the following three factors are present in that case:
‘(1) evidence of a change in who possesses the land, (2) payment of all or part of the consideration for the land, and (3) improvements, alterаtions or repairs upon the land.’ Accord 51 Ohio Jurisprudence 3d (1984) 320, Frauds, Statute of, Section 171. Generally, the performance of only one of the three acts is insufficient to establish part performance.
{62} For the foregoing reasons, I concur separately.