CARY ERWIN, et al., Plaintiffs-Appellants, v. WANDA E. WISE REVOCABLE TRUST, et al., Defendants-Appellees.
Case No. 12CA3501
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
RELEASED 03/04/13
[Cite as Erwin v. Wanda E. Wise Revocable Trust, 2013-Ohio-952.]
Harsha, J.
DECISION AND JUDGMENT ENTRY
Robert A. Cassity, Alexandria, VA, for appellants.
Stephen C. Rodeheffer, Portsmouth, OH, for appellees.
Harsha, J.
{¶1} Cary Erwin and his wife Alicia (“the Erwins“) appeal the trial court‘s decision to grant Wanda Wise, the Wanda E. Wise Revocable Trust, and Gary Erwin summary judgment on the Erwins’ claims against them. The Erwins contend that Wise (Cary‘s mother) orally promised that if the couple moved from California to care for her and manage her trailer park, she would give the property to them when she died.1 After the Erwins moved to Ohio and began to fulfill their end of the bargain, Wise transferred the property to her revocable trust. The Erwins filed this action several years later when the trust listed the property for sale. The trial court dismissed the Erwins’ claims after finding they were: 1.) barred by
{¶2} The Erwins claim the doctrine of part performance and the “family member exception” render
{¶3} The Erwins suggest that
I. Facts
{¶4} In May 2011, the Erwins filed suit against Wise, the Wanda E. Wise Revocable Trust, and Gary Erwin. The Erwins alleged they moved to Ohio in September 2001 “at the request of * * * Wise who requested that the Plaintiffs move to care for her and manage her property and the property owned by the Wanda E. Wise Revocable Trust.” (Compl. ¶ 8.) They claimed that Wise promised to “bequeath the property located at 4546 Old Scioto Trail, Portsmouth, OH” to them “in return for their moving to the property to care for her and manage the property * * *.” (Compl. ¶ 9.) The Erwins alleged that they left “valuable careers and other assets in California.”
{¶5} The defendants filed a motion for summary judgment. They argued that the Erwins’ claims were barred by
{¶6} The trial court granted the motion for summary judgment, finding:
The Court having reviewed the entire file herein finds that Plaintiff‘s [sic] actions are barred by the statute of frauds. The Court finds further that it [sic] is barred by the statute of limitations for oral contracts. Inasmuch as pursuant to section 2107.04 (No agreement to make a will, or to make a devise or bequest by will shall be enforceable unless it is in writing. The agreement shall be signed by the maker or by some other person at the maker‘s express direction. If signed by a person other than the maker, the instrument shall be subscribed by two or more competent witnesses who heard the maker acknowledge that it was signed in the maker‘s direction.)
The Court finds this has not happened in this matter and therefore
{¶7} This appeal followed.
II. Assignments of Error
{¶8} The Erwins assign the following errors for our review:
I. The Trial Court Erred in finding the [Appellants‘] claims were barred by the Statute of Limitations.
II. The Trial Court Erred in finding the [Appellants‘] claims were barred by the Statute of Frauds.
III. The Trial Court Erred in failing to consider [Appellants‘] non-contractual claims.
{¶9} In their brief, the Appellees attempt to raise the following “cross-assignment of error“:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FINDING THAT APPELLANT [ALICIA ERWIN] HAD REQUISITE STANDING TO MAINTAIN HER LAWSUIT WHERE SHE WAS NOT A PARTY TO THE ALLEGED AGREEMENT NOR AN INTENDED THIRD PARTY BENEFICIARY.
{¶10} However,
{¶11} When reviewing a trial court‘s decision on a motion for summary judgment, we conduct a de novo review governed by the standard set forth in
{¶12} The burden of showing that no genuine issue of material fact exists falls upon the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). To meet its burden, the moving party must specifically refer to “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,” that affirmatively demonstrate the non-moving party has no evidence to support the non-moving party‘s claims.
IV. R.C. 2107.04
{¶13} Because it is dispositive of this appeal, we address the second assignment of error initially. The trial court found that all of the Erwins’ claims were barred by the “statute of frauds.” In their second assignment of error, the Erwins contend that the trial court erred because two exceptions “take the case outside the realm of the statute of frauds.” Initially, we must clarify the terminology used by the court and parties.
{¶14} In their motion for summary judgment, the Appellees argued that the Erwins’ claims were barred by
No agreement to make a will or to make a devise or bequest by will shall be enforceable unless it is in writing. The agreement shall be signed by the maker or by some other person at the maker‘s express direction. If signed by a person other than the maker, the instrument shall be subscribed by two or more competent witnesses who heard the maker acknowledge that it was signed at the maker‘s direction.2
{¶15} The Erwins do not dispute the fact that
{¶16} “In an action for specific performance, part performance is an equitable doctrine that renders the Statute of Frauds inoperative.” Bumgarner v. Bumgarner, 4th Dist. No. 09CA22, 2010-Ohio-1894, ¶ 26. As the Supreme Court of Ohio explained: “In an action for specific enforcement of an oral contract for the sale of land, equity intervenes to render the statute of frauds inoperative only when a failure to enforce the contract will result in fraud and injury. To entitle one claiming to have purchased land to enforce an oral contract for the conveyance thereof, he must, in reliance on the promise, have performed acts which changed his position to his prejudice.” Tier v. Singrey, 154 Ohio St. 521, 526, 97 N.E.2d 20 (1951).
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.
{¶18} Because
{¶19} The Erwins also contend that the “family exception doctrine” removes the alleged oral agreement from
In Estoppel in Property Law, 77 Neb. L. Rev. 756 (1998), Professor Sterk states:
“Courts generally assume that a reasonable person would not make expenditures on land owned by stranger in reliance on the stranger‘s oral promise to convey the land . . . The situation is somewhat different when family members are involved. Social norms may lead a family member/promisee to forego a writing even though the same promisee would never forego a writing when entering into a land sale transaction with a stranger . . . Where the supposed promise [sic] can prove not only expenditures made on the property, but also a contemporaneous transfer of money or other legal rights to the family member who is the property‘s record owner, courts have little difficulty finding, and enforcing, the family member‘s promise.” Id. [a]t 764-66. See also Melanie Leslie, Enforcing Family Promises: Reliance, Reciprocity and Relational Contract, 77 N.C. L. Rev. 551 (1991).
In addition, the Erwins claim that “this Court applied a family exception to the statute of frauds in a similar case involving land wherein a father sued his child and grandchild for the right to live on land pursuant to an oral agreement. Ratliff v. Waughtel, Scioto County Case 04-CIH-111 (2004).”
{¶20} However, from the broad holding in Sherman, it is clear no exception exists that would remove an agreement to make a will or to make a devise or bequest by will from the operation of
{¶22} Because the doctrine of part performance and the “family exception doctrine” do not apply to
{¶23} In their first assignment of error, the Erwins challenge the court‘s finding that they filed their claims outside the applicable statute of limitations. In their third assignment of error, the Erwins contend that the trial court erred “in failing to consider Appellant‘s [sic] non-contractual claims.” The Erwins argue:
[T]he trial court granted Appellee[s] summary judgment citing the statute of limitations and statute of frauds, but apparently did not consider Appellants’ non-contractual claims. In addition to its [sic] contractual claims, Appellant[s] brought claims of unjust enrichment which could not have been properly barred by the statute of frauds and/or statute of limitations. The trial court‘s brief judgment entry granting summary judgment did not address these claims nor explain how these claims would be barred at summary judgment.
In Arguendo, the quantum meiriut [sic], or unjust enrichment claim should survive even if one or more of the other claims of action were defeated.
Then, the Erwins list the elements of an unjust enrichment claim and argue that they submitted summary judgment evidence to prove each of those elements.
{¶24} Contrary to the Erwins’ assertion in their third assignment of error, the trial court did address their quantum meruit or unjust enrichment claims in its judgment – the court dismissed all of the Erwins’ claims based on
{¶25} Again, the trial court dismissed all of the Erwins claims based on
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellants shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.