TAMARA J. LOVEJOY, Appellant, - vs - TAMMY DIEL, et al., Appellees.
CASE NO. CA2020-06-067
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
4/5/2021
[Cite as Lovejoy v. Diel, 2021-Ohio-1124.]
BYRNE, J.
CIVIL APPEAL FROM MIDDLETOWN MUNICIPAL COURT Case No. 19CVI02127
Christina N. Harrison, 1735 North Derexa Drive, Hamilton, Ohio 45011, for appellees
BYRNE, J.
{¶1} Appellant, Tamara J. Lovejoy, appeals from the decision of the Middletown Municipal Court, Small Claims Division, dismissing her complaint for lack of subject-matter jurisdiction. For the reasons discussed below we reverse.
{¶2} In 2015, Lovejoy and appellees, Tammy Diel and Dan Diel, entered into an agreement. The cover page was titled “LAND CONTRACT,” but the next page captioned the agreement as an “Agreemеnt to sell [sic] Real Estate.” We will refer to this document as “the Agreement.” The Agreement‘s full text is as follows, with typographical errors not corrected:
Agreement to sell Real Estate
This agreement is made on May 29, 2015, between Tamara J. Lovejoy, Seller, of 3206 Morgan Street, City of Middletown 45044, State of Ohio and Dan and Tammy Diel, Buyers, of 3206 Morgan Street, City of Middletown 45044, State of Ohio.
For valuable consideration, the Seller agrees to sell and the Buyers agrees to buy this property for the following price and on the following terms:
1. The Seller will sell the property to the Buyers, free from all claims, liabilities, and indebtedness, unless noted in this Agreement.
2. The following persоnal property is also included in this sale: 2 green rocking chairs, 2 front porch swings.
3. The Buyers agrees to pay the Seller the sum on $64,632.63, which the Seller agrees to accept as full payment. The Buyers mortgage payments will be: $740.00 monthly, and due on the 1st of each month. The Buyers are to arrange a mortgage in their names within 5 years.
4. The Buyers also agrees to pay the sum of $740.00 as a deposit
$64,632.63 Purchase Price
$ -0- Down Payment
$64,632.63 Balanced Carried
It is the responsibility of the Buyers to obtain a tenants insurance policy to cover their personal belongings, the dwelling insurance
is included in the house payment. It is the Buyers responsibility to maintain the premises inside and out. This property is sold “As Is” condition.
In the event that the Buyer should elect not to purchase the property, it is agreed that the Buyer shall forfeit the monies paid and any credit for work started or completed shall remain the property of the Seller.
THIS AGREEMENT on May 29, 2015 shall be binding upon and insure to the benefit of the respective heirs, representatives, successors and assigns of the parties hereto.
The Agreement included the signatures of the parties and a single notary stamp and notary signature. Though the Agreement listed the Seller as “Tamara J. Lovejoy,” it was signed by “Jennifer Lovejoy.” The record does not indicate whether “Tamara J. Lovejoy” and “Jennifer Lovejoy” are the same person. Because the parties have not made an issue of this discrepancy, we will assume that they are the same person.
{¶3} The Diels lived in the house located at 3206 Morgan Street, Middletown, Ohio 45044 (“the House“) for almost five years. In May 2009, Lovejoy learned that the Diels were moving out. During a walkthrough, Tammy Diel told Lovejoy that the House would be ready for move-in condition and that she would have the carpets cleaned.
{¶4} After the Diels moved out, Lovejoy identified a number of problems with the House, including, but not limited to extensive mold, overgrown vegetation, trash strewn on the lawn, rat nests inside the House, animal droppings and stains in the House, other unidentified stains, missing closet doors, broken steps and a broken fence, holes in siding, piles of junk on the driveway and in the garage, and other general filth, damage, and disrepair. The city of Middletown also issued a citation for violations of the city‘s grass and weeds ordinance, violations of the garbage, litter, and rubbish ordinance, and violations of the tree/shrubbery ordinance.
{¶5} Lovejoy paid to clean up the House and its yard, as well as to clean up trash,
{¶6} By the time the Diels mоved out of the House, they had paid to Lovejoy monthly payments totaling around $35,500, nearly 55% of the total $64,632.63 purchase price contemplated by the Agreement.
II. Procedural Background
{¶7} In July 2019, Lovejoy filed a complaint against the Diels in the small claims division of the Middletown Municipal Court. Lovejoy sought $6,000 as compensation for her efforts to clean up the House and the adjacent city-owned lot.
{¶8} The Diels filed a motion to dismiss the complaint. The Diels argued that the Agreement was a land installment contract and because the Diels had paid more than 20% of the purchase price,
{¶10} In January 2020, the magistrate entered a decision determining that the Agreement constituted a land installment contract and that the Diels had paid more than 20% of the total purchase price for the Housе. Therefore, the magistrate concluded, Lovejoy‘s only recourse was through a foreclosure proceeding pursuant to
III. Law and Analysis
{¶11} Lovejoy raises the following sole assignment of error:
{¶12} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF/APPELLANT BY DISMISSING HER COMPLAINT.
{¶13} In support of this assignment of error, Lovejoy presents four issues for review. We will address Lovejoy‘s arguments out of order.
A. Revival of the Question of Subject-Matter Jurisdiction
{¶14} Lovejoy argues that the trial court erred when it revived the question of subject-matter jurisdiction because the trial court denied the Diels’ motion to dismiss, and the Diels did not object to that decision. She also argues that the issue of subject-matter
{¶15} “Subject matter jurisdiction refers to a court‘s power to hear and decide a case on the merits.” State ex rel. Jones v. Suster, 84 Ohio St. 3d 70, 75 (1998). “It is well-established that subject matter jurisdiction ‘may not be conferred by agreement of the parties or waived, and is the basis for mаndatory, sua sponte dismissal either at the trial court or on appeal.‘” In re S.C.R., 12th Dist. Clinton No. CA2017-11-018, 2018-Ohio-4063, ¶ 22, quoting In re B.M., 4th Dist. Hocking No. 16CA12, 2017-Ohio-7878, ¶ 8; see also In re O.V., 12th Dist. Butler No. CA2019-03-046, 2019-Ohio-4628, ¶ 6. Once a court determines that it lacks subject-matter jurisdiction it is required to dismiss the complaint. In re S.C.R. at ¶ 22. In this case the municipal court was not provided with a copy of the Agreement until after it had denied the Diels’ motion to dismiss. We conclude that the trial court did not err in asking the parties at that time to brief the question of whether the Agreement was a land installment contract which, by operation of
B. Appellate Standard of Review
{¶16} On review of a trial court‘s dismissal for lack of subject-matter jurisdiction, this сourt must determine whether “‘any cause of action cognizable by the forum has been raised in the complaint.‘” McDaniel v. McDaniel, 12th Dist. Warren No. CA2006-12-142, 2007-Ohio-4220, ¶ 10, quoting State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80 (1989). Whether a court has subject-matter jurisdiction is a question of law. Duke Energy Ohio, Inc. v. Hamilton, 12th Dist. Butler No. CA2018-01-001, 2018-Ohio-2821, ¶ 21, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 34. As a matter of law, this court will conduct a de novo review of the trial court‘s decision. In re S.C.R., 2018-Ohio-4063 at ¶ 12. This means that the court engages in an independent review without deference to the
C. Nature of the Agreement
{¶17} Lovejoy argues that the Agreement cannot be construed as a land installment contract because it does not comply with the requirements of
1. The Relevant Statutes
{¶18}
an executory agreement which by its terms is not required to be fully performed by one or more of the parties to the agreement within one year of the date of the agreement and under which the vendor agrees tо convey title in real property located in this state to the vendee and the vendee agrees to pay the purchase price in installment payments, while the vendor retains title to the property as security for the vendee‘s obligation. Option contracts for the purchase of real property are not land installment contracts.
The second statute,
Every land installment contract shall be executed in duplicate, and a copy of the contract shall be provided to the vendor and the vendee. The contract shall contain at least the following provisions:
(1) The full names and then current mailing addresses of all the parties to the contract; - (2) The date when the contract was signed by each party;
- (3) A legal description of the property conveyed;
- (4) The contract price of the property conveyed;
- (5) Any charges or fees for services that are includable in the contract separate from the contract price;
- (6) The amount of the vendee‘s down payment;
- (7) The principal balance owed, which is the sum of the items specified in divisions (A)(4) and (5) of this section less the item specified in division (A)(6) of this section;
- (8) The amount and due date of each installment payment;
- (9) The interest rate on the unpaid balance and the method of computing the rate;
- (10) A statement of any encumbrances against the property conveyed;
- (11) A statement requiring the vendor to deliver a general warranty deed on completion of the contract, or another deed that is available when the vendor is legally unable to deliver a general warranty deed;
- (12) A provision that the vendor provide evidence of title in accordance with the prevailing custom in the area in which the property is located;
- (13) A provision that, if the vendor defaults on any mortgage on the property, the vendee can pay on that mortgage and receive credit on the land installment contract;
- (14) A provision that the vendor shall cause a copy of the contract to be recorded;
- (15) A requirement that the vendee be responsible for the payment of taxes, assessments, and other charges against the property from the date of the contract, unless agreed to the contrary;
- (16) A statement of any pending order of any public agency against the property.
{¶19}
{¶20} We now turn to the question of how these statutes apply to the Agreement.
2. Application of Statutes to the Agreement
{¶21} In addressing the Diels’ argument that the Agreement was a land installment contract, the magistrate—whose decision was adopted by the trial court—analyzed the Agreement solely under
{¶22}
{¶23} First,
{¶24} Second,
{¶25} Third,
{¶26} For all three of these reasons, we determine that the Agreement does not satisfy the definition of land installment contract under
{¶27} The same is true with regard to
{¶28} On the other hand, the Agreement does not contain a legal description of the
{¶29} This leaves three of
{¶30} The trial court concluded that the Agreement was a land installment contract despite lacking the mandatory elements provided in
{¶32} “When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need for this court to apply the rules of statutory interpretation.” Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553 (2000). Rather, “[a]n unambiguous statute is to be applied, not interpreted.” Sears v. Weimer, 143 Ohio St. 312 (1944), paragraph five of the syllabus. “To interpret what is already plain is not interpretation, but legislation, which is not the function of the courts, but of the general assembly.” Id. at 316.
{¶33}
{¶34} It is the duty of a court to give effect to the words used; not to delete or insert new words. Cleveland Elec. Illum. Co. v. City of Cleveland, 37 Ohio St.3d 50, 53 (1988). The General Assembly has explicitly required that the 16 elements set forth in
{¶35} In the magistrate‘s decision adopted by the trial court, the magistrate cited only one Twelfth District case, Young v. Hodapp, 12th Dist. Butler No. CA85-08-094, 1986 Ohio App. LEXIS 9534 (Dec. 29, 1986), in support of his conclusion that the Agreement was a land installment contract despite the omission of multiple
{¶36} Young was our earliest case addressing the question of whether an agreement constituted a land installment contract under
enforceable contract. Id. at *8. We did not analyze the agreement under
{¶38} Fourteen years later in Hubbard v. Dillingham, 12th Dist. Butler No. CA2002-02-045, 2003-Ohio-1443, we decided whether an agreement was a land installment contract solely by analyzing whether the agreement met the definition of a land installment contract in
{¶39} A cursory review could leave the impression that these three cases are inconsistent with one another. However, Young, McGlothin, and Hubbard can and should be read as consistent with one another and with our opinion today. Young and McGlothin both explained that the 16 elements listed in
{¶40} We are aware that the Fourth, Fifth, Sixth, and Tenth Districts have held that
{¶41} Nevertheless, the outcome of this case would not change even if we followed the “substantial compliance” approach. In Shrock v. Spognardi, 5th Dist. Richland No. 15CA33, 2015-Ohio-4555, the Fifth District analyzed a residential lease agreement and a purchase real estate agreement that were signed on the same day. The Fifth District noted that, collectively, these “documents failed to include the majority of the
3. Lovejoy‘s Remaining Arguments
{¶42} Lovejoy raises two other issues for review in her brief. She argues that the trial court erred as a matter of law because its dismissal of her complaint constituted a declaratory judgment, and declaratory judgments may not be issued by small claims divisions of municipal courts. Lovejoy also argues that a foreclosure proceeding is not required where a vendee in the land installment contract breaches the contract and surrenders possession of the property. Because we have determined that the Agreement is not a land installment contract and the trial court erred when it dismissed Lovejoy‘s complaint for lack of subject-matter jurisdiction, both of Lovejoy‘s remaining two arguments are moot and need not be addrеssed at this time.
IV. Conclusion
{¶43} Given our determination that the Agreement was not a land installment contract under
{¶44} Our decision does not address the merits of Lovejoy‘s claim against the Diels. Whether there is a lawful basis for Lovejoy to recover, whether the facts support Lovejoy‘s claim, and how much Lovejoy may be able to recover, if at all, remain to be determined by the trial court.
{¶45} Judgment reversed and remanded for further proceedings consistent with this opinion.
M. POWELL, P.J., and HENDRICKSON, J., concur.