Donaldson Johannsen v. WardDonaldson Johannsen v. Ward
* * * * *
Robert P. DeSanto, for appellants.
Michael B. Jackson, for appellee Dorothy L. Ward.
Bradley P. Toman, for appellees Frank and Rebecca Van Dresser.
* * * * *
PIETRYKOWSKI, J.
{¶ 1} Plaintiffs-appellants, Jane Donaldson Johannsen, Mary Donaldson O‘Reilly, and Chris Donaldson Bond, appeal the October 28, 2009 judgment of the Huron County Court of Common Pleas, which granted summary judgment in favor of defendants-appellees, Dorothy L. Ward and Frank and Rebecca Van Dresser. Because we agree that no genuine issues of fact remain, we affirm the trial court‘s judgment.
{¶ 3} In 1987, Mr. Donaldson deeded the real property to Ward. Donaldson also transferred personal property, including stocks, bonds, and antiques to Ward. On July 7, 1990, Mr. Donaldson died.
{¶ 4} In September 1990, Mr. Donaldson‘s will was read at the office of attorney Beverly White. The children were made aware that Donaldson had deeded the farm to Ward. At this time, Ward stated that she would alter her will and leave some antiques and the property on the west side of Fitchville River Road to appellants. This statement was memorialized in two letters from appellee‘s attorney to appellants. The letters, dated October 17, 1990, and October 26, 1992, respectively, stated in relevant part, as follows:
{¶ 5} “Mrs. Dorothy Donaldson has asked me to advise you that she has made a change in her will which gives all of the family heirloom antiques and the farm land on the west side of Fitchville River Road to John‘s four children in equal shares. There is a
{¶ 6} “My client had authorized me earlier to advise the four children that she was leaving the house and contiguous farm land to them. There is a provision in her Will that should any one of the children institute litigation against her in this matter, none of them would inherit the property.”
{¶ 7} Predating the above representations, though not reviewed by appellants prior to this action, appellee executed several codicils to her 1987 will. The first codicil, executed after Mr. Donaldson deeded her the real property, provided that her son would receive the property to the east of Fitchville River Road and that the property to the west of Fitchville River Road would go to Mr. Donaldson‘s children John and Martha Donaldson.
{¶ 8} Appellee‘s second codicil, dated April 19, 1988, added a paragraph stating that if any of the stepchildren take any action to set aside the will or the gifts of property from Mr. Donaldson, the child was to get no share of appellee‘s estate. On April 20, 1990, appellee added a third codicil which added the caveat “if I still own the property at the date of my death” to the gift of the subject property.
{¶ 9} Appellee‘s July 16, 1990 fourth codicil was executed following the death of Mr. Donaldson and provided:
{¶ 10} “I give the remainder of the real estate conveyed to me in Deed recorded in Volume 371, page 529, located on the West side of Fitchville River Road (if I still own
{¶ 11} On July 3, 2008, appellees, Frank and Rebecca Van Dresser, purchased the subject property for $200,000. Prior to purchasing the property, appellees obtained a title report which revealed no recorded interest in the property.
{¶ 12} On September 17, 2008, the Donaldson children commenced the instant action against Ward and the Van Dressers. The complaint alleged breach of contract, anticipatory breach of contract, oral trust, unjust enrichment, constructive or resulting trust, promissory estoppel, equitable estoppel, and misrepresentation.
{¶ 13} In her answer, Ward asserted, inter alia, the arguments that the claims were barred by the statute of frauds doctrine, the laws of contract, and by appellants’ own inaction. Ward asserted a counterclaim alleging that the complaint was frivolous. In their answer, the Van Dressers stated that they were bona fide purchasers of the property, for value, and have a free and clear interest in the property. The Van Dressers based their assertion on their belief that there was no contract or enforceable agreement between Ward and appellants. Further, the Van Dressers raised a cross-claim against Ward and a counterclaim alleging slander of title.
{¶ 15} Appellee Ward filed her motion for summary judgment on July 9, 2009. Ward argued that if her comments could be construed as a promise to make a will, under
{¶ 16} On July 23, 2009, appellants filed a motion for leave to amend their complaint. Appellants asserted that, due to newly discovered evidence “concealed” by Ward, they wished to amend the fraudulent misrepresentation claim. On the same date, appellants also filed a motion for a continuance to respond to the Van Dressers’ motion for summary judgment. Appellants argued that the request was necessitated by Ward‘s failure to timely respond to discovery requests. Appellants filed an opposition to Ward‘s motion for summary judgment; they also filed a request for an oral hearing.
{¶ 18} On appeal, appellants raise the following eight assignment of error for our review:
{¶ 19} “First Assignment of Error: The trial court erred to the prejudice of appellants in concluding that there was no agreement, promise or contract between the parties but that if the court somehow found an agreement between the parties, it was an agreement to make a will (which must be in writing per
{¶ 20} “Second Assignment of Error: The trial court erred to the prejudice of appellants in concluding that their action was prohibited by the statute of frauds.
{¶ 21} “Third Assignment of Error: The trial court erred to the prejudice of appellants in concluding that the Plaintiffs ‘could have chosen a different path’ and ‘challenged the Will of Mr. Donaldson’ and ‘tried some action to set aside the 1987
{¶ 22} “Fourth Assignment of Error: The trial court erred to the prejudice of appellants in concluding that no genuine issue of material fact could be established from the evidence and that summary judgment should be granted to defendants on each of the eight counts pled in the plaintiffs’ complaint.
{¶ 23} “Fifth Assignment of Error: The trial court erred to the prejudice of appellants when it failed to grant plaintiffs’ motion to continue the summary judgment process where the record demonstrates an abuse of the discovery process by at least one of the defendants.
{¶ 24} “Sixth Assignment of Error: The trial court erred to the prejudice of appellants when it denied plaintiffs’ motion to amend their complaint based upon information that had been in the possession of one of the defendants and her attorney for years but which was not timely disclosed to plaintiffs until on or about the cutoff date for filing summary judgment motions.
{¶ 25} “Seventh Assignment of Error: The trial court erred to the prejudice of appellants when it failed to grant plaintiffs’ motion for an oral hearing before ruling on defendants’ summary judgment motions because the contract between plaintiffs-appellants and defendant-appellee Ward was a ‘settlement agreement’ under Ohio law.
{¶ 27} Appellants’ first and second assignments of error relate to the trial court‘s finding in its judgment entry granting summary judgment that there was no enforceable agreement or contract between the parties. Further, if an agreement was found, it was an agreement to make a will which must be in writing under
{¶ 28} At the outset we note that appellate review of a trial court‘s grant of summary judgment is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Accordingly, we review the trial court‘s grant of summary judgment independently and without deference to the trial court‘s determination. Brown v. Scioto Cty. Bd. Of Commrs. (1993), 87 Ohio App.3d 704, 711. Summary judgment will be granted only when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66;
{¶ 29} Appellants first argue that the trial court erred in finding that, assuming there was an agreement, it was an agreement to make a will which is required to be in writing. The relevant statute,
{¶ 30} “No agreement to make a will or to make a devise or bequest by will shall be enforceable unless it is in writing. Such agreement must be signed by the maker or by some other person at such maker‘s express direction. If signed by a person other than such maker, the instrument must be subscribed by two or more competent witnesses who heard such maker acknowledge that it was signed at his direction.”
{¶ 31} Appellants assert that the agreement between the parties was akin to an agreement not to contest a will, or a settlement agreement. Alternatively, appellants argue that if the agreement were to fall under
{¶ 32} At its most basic, in order to prove the existence of a contract, a plaintiff must allege facts showing: an offer and an acceptance and a meeting of the minds, which is supported by consideration. Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶ 16. The consideration for a contract can be the mutual exchange of a “* * * promise to perform given in exchange for the promise of the other to perform.” Union Sav. Bank v. White Family Cos., Inc., 183 Ohio App.3d 174, 2009-Ohio-2075, ¶ 19.
{¶ 34} The causes of action were based on the following facts. Bonita LaPoint and the appellants’ father, Rudolph LaPoint, executed reciprocal wills, each will devising the entire estate to the spouse. Id. at ¶ 2. Appellants’ father died in 1998. At the will reading, LaPoint handed out “written waivers” requesting that the stepchildren waive their right to contest their father‘s will. Id. at ¶ 4. LaPoint stated “in exchange, that they would still share equally in Rudolph‘s and her assets.” Id. The signed waivers were apparently collected by Bonita and never seen again. Id. at ¶ 6.
{¶ 35} Within a year of Rudolph‘s death, and upon executing a new will, Bonita transferred the entire business interest to her four natural children. Id. at ¶ 8. Following a business dispute, in 2003, Bonita again changed her will to gift any remaining business interest to one of her natural children and the remaining assets to various charitable organizations. Id. at ¶ 9. Bonita died in 2006.
{¶ 36} Appellants did not challenge Bonita‘s will but made a claim against the estate. The estate was granted summary judgment. Specifically, the court concluded that if Bonita‘s alleged oral promise could be considered a promise to make a will,
{¶ 38} Based on the facts presented, we determined that the only reasonable interpretation was that the promise was to be effectuated only upon death. Thus, the alleged contract was required to be in writing. Id. at ¶ 38. We further noted that because the promise to make a will was unenforceable, appellants’ claim of fraudulent misrepresentation and equitable arguments must also fail. Finally, we observed that “[a]lthough appellants argue persuasively that Bonita did not deal fairly with her stepchildren, the alleged oral contract to make will is unenforceable.” Id. at ¶ 42.
{¶ 39} Appellants dismiss the LaPoint holding as being factually distinguishable and because “it was not based on a consideration of all the causes of action pled in this case.” We disagree. As stated above, LaPoint examined whether the alleged promise at issue was a contract to make a will which required a writing. What is clear from LaPoint is that where a promise involves a testamentary transfer,
{¶ 40} In the present case, we agree that the agreement at issue was not a settlement agreement but, as in LaPoint, an agreement to make a will which must comply with
{¶ 42} As set forth above in the two letters from Ward‘s attorney, the gifts from Ward to appellants was described as “all the family heirloom antiques” and “farm land on the west side of Fitchville River Road.” As stated by the trial court, in order to have a contract, there must be a meeting of the minds as to all the essential terms. LaPoint, supra, at ¶ 34, citing Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, ¶ 16. In LaPoint, we further stated that the “appellants were never aware of the definite terms in the offer or promise which they were accepting.” Id. at ¶ 37.
{¶ 43} In the present case, following the two letters sent by Ward‘s attorney, appellants’ attorney sent a letter to Ward‘s attorney stating:
{¶ 44} “I confirm my interpretation of your client‘s representation that she is bequeathing the homestead and contiguous farm land to the four children which includes that land now in Dorothy‘s name as appears on the auditor‘s grant list card. If the meaning of your letter is otherwise, please notify.”
{¶ 46} Based upon the foregoing, we find that the writings at issue were not sufficient to make a will. In addition to the meeting of the minds requirement,
{¶ 47} In addition to
{¶ 48} Based on the foregoing, we find that appellants’ first and second assignments of error are not well-taken.
{¶ 49} In appellants’ third assignment of error, they take issue with some of the trial court‘s comments in its judgment entry awarding summary judgment. Specifically, the court‘s statements that appellants “could have chosen a different path” and “challenged the will of Mr. Donaldson” or “tried some action to set aside the 1987 transfer of property.” Appellants further question the court‘s comment that appellants
{¶ 50} Upon review, we find that this claim has no legal basis. In addition, the court did not base its findings upon these observations; thus, appellants cannot demonstrate prejudice. Appellants’ third assignment of error is not well-taken.
{¶ 51} Appellants’ fourth assignment of error disputes the trial court‘s finding that no genuine issue of fact existed as to any of appellants’ claims. Appellants specifically list the claims of breach of contract and anticipatory breach of contract, promissory estoppel, equitable estoppel, oral trust, constructive or resulting trust, fraudulent misrepresentation, and unjust enrichment. Appellants’ contract arguments were discussed and rejected above; thus, we will address only the estoppel, oral or constructive trust, fraudulent misrepresentation, and unjust enrichment arguments.
{¶ 52} Appellants contend that they were harmed by their reasonable reliance on Ward‘s promise to gift them the family heirloom antiques and the property on the west side of Fitchville River Road. The elements of promissory estoppel include: “(1) a clear and unambiguous promise; (2) reliance by the party to whom the promise is made; (3) reliance is reasonable and foreseeable; and (4) injury resulting from reliance.” Casillas v. Stinchcomb, 6th Dist. No. E-04-041, 2005-Ohio-4019, ¶ 18. As set forth above, the oral promise and the letters drafted by Ward‘s attorney were ambiguous; thus, the first element of promissory estoppel was not satisfied.
{¶ 54} Ward made an alleged promise to leave the stepchildren the heirloom antiques and the subject property if they did not contest Mr. Donaldson‘s will. Ward‘s will had been changed in accordance with the statement. The fact that the codicil conditioned that gift on Ward‘s continued ownership of the property does not equate with a misstatement of fact. This gift was clearly revocable.
{¶ 55} Regarding the trust arguments, appellants first argue that, relying on parol evidence, an express oral trust was created. Even if the court were to assume that Ward‘s will and codicils acted to create an express trust, the trust was clearly revocable. Further, Ward intended to retain full use of the property.
{¶ 56} Appellants next argue the equitable remedy of a constructive or resulting trust. “A constructive trust is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” Bilovocki v. Marimberga (1979), 62 Ohio App.2d 169, 171. A constructive trust operates to prevent unjust enrichment. Id. A
{¶ 57} Upon review, we cannot say that appellees wrongfully acquired or retained the property at issue and, thus, were unjustly enriched. Ward sold the property to the Van Dressers for value. Although appellants may feel that a “moral wrong” was committed, it does not merit equitable relief.
{¶ 58} Finally, appellants contend that the representations made by Ward that she was gifting the property, while concealing the condition that she still own the property, were false and made with knowledge of their falsity. The elements of fraudulent misrepresentation include:
{¶ 59} “‘(a) a representation, or where there is a duty to disclose, concealment of a fact,
{¶ 60} “‘(b) which is material to the transaction at hand,
{¶ 61} “‘(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,
{¶ 62} “‘(d) with the intent of misleading another into relying on it,
{¶ 64} “‘(f) a resulting injury proximately caused by the reliance.‘” Majoy v. Hord, 6th Dist. No. E-03-037, 2004-Ohio-2049, ¶ 20-26, quoting Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, paragraph two of the syllabus.
{¶ 65} In LaPoint v. Templeton, discussed supra, the stepchildren also raised a fraudulent misrepresentation claim. The stepchildren argued that “when Bonita made her oral promises, she knew they were false, and appellants relied in the false representation to their detriment.” Id. at ¶ 39. We dismissed the fraudulent misrepresentation claim stating that “[a]ppellants cannot accomplish through a claim of fraudulent misrepresentation what they were unable to accomplish with an unenforceable contract.” Id. at ¶ 40.
{¶ 66} Based on the foregoing, we find that appellants failed to present evidence sufficient to create an issue of fact as to their claims and that the trial court did not err in granting summary judgment to appellees. Appellants’ fourth assignment of error is not well-taken.
{¶ 67} In appellants’ fifth assignment of error, they contend that the trial court erred by failing to grant appellants’ motion to continue the summary judgment process, as to the Van Dressers, to allow for additional discovery. Appellants assert that the discovery needed had a direct bearing on the Van Dressers’ defense that they were “bona fide purchasers without knowledge and for value” and that Ward committed an abuse of the discovery process by not providing the requested documents.
{¶ 69} “Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party‘s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.”
{¶ 70} A court‘s decision regarding a
{¶ 71} “‘[a] party who seeks a continuance for further discovery is not required to specify what facts he hopes to discover, especially where the facts are in the control of the party moving for summary judgment.’ Doriott v. MVHE, Inc., 2d Dist. No. 20040, 2004-Ohio-867, at ¶ 41. ‘However, the court must be convinced that there is a likelihood of discovering some such facts.’ Id. Lack of diligence in pursuing discovery by the party moving under
{¶ 72} In the present case, the Van Dressers filed their motion for summary judgment on May 19, 2009. On June 23, 2009, appellants requested a 14 day extension to file their response; the trial court gave appellants until July 16, 2009, to file their brief. In the interim, on July 7, 2009, appellants filed a motion to dismiss the Van Dressers,
{¶ 73} Upon review, we find that the trial court did not abuse its discretion when it denied appellants’ motion for a continuance. From the affidavits and materials presented in support of their motion, it was reasonable for the court to conclude that there was little likelihood that additional discovery could have provided relevant information. Appellants’ fifth assignment of error is not well-taken.
{¶ 74} In their sixth assignment of error, appellants argue that the trial court erred when it failed to grant their motion to amend their complaint, particularly their fraudulent misrepresentation claim, based upon appellee Ward‘s failure to timely provide discovery.
{¶ 75}
{¶ 76} “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.”
{¶ 78} Further, appellants complained in their motion to amend that the reason for the tardy motion was Ward‘s refusal to timely provide discovery. Appellants had procedural mechanisms, including a motion to compel, to address discovery disputes. Accordingly, appellants’ sixth assignment of error is not well-taken.
{¶ 79} Appellants’ seventh assignment of error contends that the trial court erred by denying appellants’ motion for an oral hearing on the summary judgment motions. Appellants, citing Rulli v. Fan Co. (1997), 79 Ohio St.3d 374, argue that because the contract between the parties was a “settlement agreement” though its terms and existence were disputed, an evidentiary hearing was required to be held prior to entering judgment. Appellees assert that appellants failed to raise the settlement agreement argument during the summary judgment proceedings; thus, it cannot be raised for the first time in this court. Further, appellees note that conducting an oral hearing on a summary judgment motion is purely discretionary.
{¶ 81} Unlike Rulli, this case did not involve a trial court‘s enforcement of an uncertain settlement agreement. The issues were fully briefed by the parties and ripe for a
{¶ 82} In appellants’ eighth and final assignment of error, they argue that the trial court‘s findings are unsupported by the evidence or are contrary to the weight of the evidence when the facts are construed in favor of the nonmoving party. Appellants first assert that the court‘s finding that the parties agree that they never entered into a written contract “drawn or executed for the purpose of creating an enforceable transfer of property,” was incorrect. Appellants contend that the letters and codicils, in particular the fourth codicil, was a “written contract.”
{¶ 83} Upon review of the court‘s judgment, it appears that the court was merely stating that there was no single contract which provided “I, Dorothy Ward, grant the Donaldson children the property west of Fitchville River Road.” The court was not suggesting that appellants agreed that there was no enforceable contract.
{¶ 85} Based on our review of the record, we find that the trial court‘s judgment was not against the weight of the evidence. Appellants’ eighth assignment of error is not well-taken.
{¶ 86} On consideration whereof, we find that substantial justice was done the parties complaining and the judgment of the Huron County Court of Common Pleas is affirmed. Pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J.
_______________________________
JUDGE
Mark L. Pietrykowski, J.
_______________________________
JUDGE
Arlene Singer, J.
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.