Webb v. Pewamo, Ltd.Webb v. Pewamo, Ltd.
Fry, Waller & McCann Co., L.P.A., Barry A. Waller, 35 East Livingston Avenue, Columbus, OH 43215-5762, for defendants-appellees/cross-appellants, Pewano, Ltd. and Therll Clagg
Butler & Marshall, Jess C. Weade, 108 North Hinde Street, Washington C.H., 43160, for defendant-appellee, Harold Long, dba Harold Long Real Estate
O P I N I O N
YOUNG, J.
{¶1} Plaintiff-appellant and cross-appellee, Charles W. Webb, appeals a decision of the Fayette County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Harold Long, and defendants-appellees and cross-appellants, Pewano, Ltd. and Therll Clagg.
{¶3} On September 19, 2007, Long received an offer from Pewano, Ltd., through Clagg, to purchase the farm for $600,000. Accompanying the offer was a $25,000 check as earnest money. Webb rejected the offer and countered with a sales price of $625,000 which was accepted by Clagg on September 27, 2007. Under the terms of the contract, the $25,000 earnest money was to be held in escrow by Long and delivered to Webb at the time of the closing, on or before October 1, 2007. Further, paragraph eight of the contract stated: “This contract subject to buyers inspection and approval of the house.” [sic]
{¶4} On September 29, 2007, Clagg inspected the house and the rest of the property, accompanied by Webb and an associate of Long. Clagg and Webb discussed the condition of the house, property management issues, and the rental situation of the farm; Clagg was introduced to the current farm tenant. During the inspection, Clagg never told Webb he approved the house. On the morning of October 1, 2007, Clagg left a message on Webb‘s answering machine indicating he was not buying the farm because of the condition of the house. Webb and Long subsequently both received a letter from Clagg dated October 2, 2007. The letters listed the condition of the house and the lack of road frontage as to why Clagg decided not to buy the farm. Long never deposited the earnest money check into a bank account but merely held on to it. In his deposition, Clagg testified he was 90 percent certain the check was returned to him. By contrast, Long testified the check was still in his
{¶5} Webb filed a complaint against Long, Clagg, and Pewano, Ltd. alleging breach of contract. Long and Clagg both moved for summary judgment.1 On September 12, 2008, the trial court granted the motions for summary judgment.
{¶6} The trial court found that (1) under the plain and clear language of the contract, Clagg‘s approval of the house was a condition precedent to the performance of the contract; (2) the contract did not limit Clagg in any way in his decision to approve or reject the house, and his rejection of the house was not arbitrary; (3) “Clagg‘s cancellation by phone on October 1 did not violate any term, as the contract was silent regarding notification to Webb, and the rejection was made prior to closing;” and (4) Clagg did not breach the contract when he rejected the house and declined to buy the farm.
{¶7} With regard to Long, the trial court found that “[t]he liquidated damage provision requires a default by Clagg. The Court finds any claim by Webb against Long as to the handling of the deposit could only arise if Clagg had breached the contract. Webb‘s claim against Long for breach of a fiduciary relationship is not supported by the evidence.”
{¶8} Webb filed a notice of appeal on October 6, 2008. Four days later, Clagg timely filed a motion for sanctions against Webb under
{¶9} Webb now appeals, raising two assignments of error. Clagg cross-appeals, raising one assignment of error.
{¶10} Webb‘s Assignment of Error No. 1:
{¶11} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WEBB
{¶12} Webb challenges the trial court‘s grant of summary judgment to Clagg on the following grounds. Webb argues that by his actions during the inspection of the house, Clagg waived the condition precedent in paragraph eight of the contract. Webb further argues that a message left on an answering machine on the day of the closing is insufficient notice of a buyer‘s intention not to proceed. Webb submits that a buyer must reasonably and timely give notice of revocation in writing before the closing.
{¶13} This court reviews a trial court‘s decision on summary judgment de novo. White v. DePuy, Inc. (1999), 129 Ohio App.3d 472, 477. A court may grant summary judgment only when: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence submitted that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence most strongly in his favor.
{¶14} “The interpretation of a written agreement is a matter of law for the court. *** The parties’ intent is presumed to reside solely within the language employed in the agreement. If a contract is clear and unambiguous, the court looks only to the plain language of the agreement to determine the parties’ rights and obligations; the court only gives effect to the agreement‘s express terms.” Bd. of Trustees of Union Twp., Ohio v. Planned Dev. Co. of Ohio (Dec. 11, 2000), Butler App. No. CA2000-06-109, at 6-7. (Internal citations omitted.)
{¶15} A condition precedent is an act or event that must occur before the agreement of the parties become operative. Johnston v. Cochran, Franklin App. No. 06AP-1065, 2007-Ohio-4408, ¶12. If a condition precedent is not fulfilled, the parties are excused from performing under the contract. Id. A condition precedent may be waived by the party for whose benefit it existed. Cornett v. Fryman (Jan. 27, 1992), Warren App. No. CA91-04-031, at 5. A waiver is an intentional relinquishment of a known right; it may be made by express words or by conduct. Id.; White Co. v. Canton Transp. Co. (1936), 131 Ohio St. 190. To establish a waiver, the party alleging it “must prove a clear, unequivocal, decisive act of the party against whom the waiver is asserted, showing such a purpose or acts amounting to an estoppel on his part.” Cornett at 5.
{¶16} The plain language of the parties’ contract is clear and unambiguous. Under paragraph eight of the contract, Clagg‘s approval of the house was a condition precedent to the performance of the contract. However, Webb asserts that Clagg waived the condition precedent because during the inspection of the house and property, Clagg and Webb discussed the condition of the house, the rental situation, and property management issues; Clagg asked Webb to tear down an old building for $500 (Clagg denied making this request); Clagg met with the farm tenant; and Clagg did not disapprove the house.
{¶17} We find that Webb failed to prove a clear, unequivocal, decisive act by Clagg amounting to a waiver of the condition precedent. Webb testified that based on Clagg‘s foregoing conduct, Webb believed or assumed Clagg had approved the house. Webb admitted that Clagg never approved the house during the inspection and never told Webb he was satisfied with the house. The parties never discussed the closing during the inspection. By its express terms, the contract did not require Clagg to approve or disapprove the house at the time of the inspection; nor did it limit in any way his right to approve or disapprove the
{¶18} Regarding the manner in which Clagg notified Webb of his intention not to buy the farm, we find no breach of contract. By its express terms, the contract did not require Clagg to notify Webb of his disapproval of the house several days before closing, or in writing. Further, the contract contained no provision as to how Clagg was to notify Webb of his disapproval of the house or his intention not to buy the farm. In fact, absent from the contract was a requirement that Clagg notify Webb of his approval or disapproval of the house or his intention not to buy the farm. Clagg notified Webb of his intention not to buy the farm and the reasons why before the closing.
{¶19} Based on the foregoing, the condition precedent in paragraph eight of the contract was not fulfilled, nor was it waived. The trial court, therefore, did not err in granting summary judgment in favor of Clagg. Webb‘s first assignment of error is overruled.
{¶20} Webb‘s Assignment of Error No. 2:
{¶21} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING SUMMARY JUDGMENT TO APPELLEE HAROLD LONG BY HOLDING THAT APPELLANT‘S CLAIM AGAINST APPELLEE LONG AS TO THE HANDLING OF THE DEPOSIT COULD ARISE ONLY IF CLAGG HAD BREACHED THE CONTRACT; AND THAT LONG HAD NO FIDUCIARY DUTY TO APPELLANT AS PEWANO HAD NOT BREACHED ITS CONT[R]ACT.”
{¶22} The trial court granted summary judgment to Long on the grounds that (1) any claim by Webb against Long as to the handling of the $25,000 check could only arise if Clagg
{¶23} With regard to the $25,000 check, the contract required Clagg to “pay $25,000 as earnest money to be held in escrow by Harold Long Real Estate as escrow agent, for delivery to seller at time of closing[.]” It is undisputed that Long received the check from Clagg on September 19, 2007 and that he never deposited it into a bank account but merely held on to it. Clagg testified he was 90 percent certain the check was returned to him but would not be surprised if in fact, it had not been returned to him. Long testified he was still in possession of the check and that he had not done anything with it.
{¶24} The contract required Long to hold the check in escrow. It did not require him to deposit the check into an account or with another party. The Ohio Supreme Court has defined escrow as “[a] written instrument which by its terms imports a legal obligation, and which is deposited by the grantor, promissor, obligor, or his agent, with a stranger or a third party, to be kept by the depositary until the performance of a condition or the happening of a certain event, and then to be delivered over to the grantee, promisee or obligee.” Squire v. Branciforti (1936), 131 Ohio St. 344, 353. See, also, Black‘s Law Dictionary (8th Ed.2004) 584 (defining escrow as “a legal document or property delivered by a promisor to a third party to be held by the third party for a given amount of time or until the occurrence of a condition,
{¶25} In light of the foregoing definitions, Long held the check in escrow as required under the contract. The trial court, therefore, did not err in granting summary judgment to Long. Webb‘s second assignment of error is overruled.
{¶26} Clagg‘s Assignment of Error No. 1:
{¶27} “THE TRIAL COURT ERRED IN DISMISSING APPELLANT PEWA[N]O AND APPELLANT CLAGG‘S MOTION FOR SANCTIONS.”
{¶28} Following Webb‘s notice of appeal, Clagg timely filed a motion for sanctions against Webb under
{¶29} An appellate court acquires jurisdiction in a case as soon as a timely notice of appeal is filed. Columbus v. Adams (1984), 10 Ohio St.3d 57, 60. The general rule is that when a notice of appeal is filed, the trial court is divested of jurisdiction except to take action in aid of the appeal. However, the trial court does retain jurisdiction over issues not inconsistent with the appellate court‘s power to review, affirm, modify, or reverse the appealed judgment, such as a collateral issue like contempt. State ex rel. Special Prosecutors v. Judges (1978), 55 Ohio St.2d 94, 97.
{¶30} Ohio courts have found that motions for
{¶31} In Newman v. Al Castrucci Ford Sales, Inc. (1988), 54 Ohio App.3d 166, the First Appellate District held that a motion for
{¶32} In light of the foregoing, we find that the trial court‘s jurisdiction to rule on Clagg‘s motion for attorney fees and
{¶33} The trial court‘s September 12, 2008 judgment granting summary judgment in favor of Long and Clagg is affirmed. The trial court‘s October 31, 2008 judgment dismissing Clagg‘s motion for
BRESSLER, P.J., and POWELL, J., concur.