author: Baldwin, J.

text:
    MID-OHIO COAL COMPANY, Plaintiff-Appellee v. Ralph C. BROWN, Jr., et al., Defendant-Appellant
    No. 17 CA 21
    Court of Appeals of Ohio, Fifth District, Guernsey County.
    DATE OF JUDGMENT: May 14, 2018
    CHRISTOPHER F. SWING, Brouse McDowell, LPA, 388 South Main Street, Suite 500, Akron, Ohio 44311, For Plaintiff-Appellee
    C. KEITH PLUMMER, Tribbie, Plummer, Church & LaPlante, 139 West Eighth Street, P.O. Box 640, Cambridge, Ohio 43725, For Defendant-Appellant
    JUDGES: Hon. W. Scott Gwin, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.
   Baldwin, J.

{¶ 1} Appellants, Ned Bryson Wakeley and Cheryl Wakeley, Joe LaFave and Patricia D. LaFave, and Ralph C. Brown, Jr. and Patricia A. Brown appeal the August 3, 2017 order of the Guernsey County Court of Common Pleas granting appellee's motion for summary judgment and finding that appellee owns and is vested with all right, title and interest in and to the subsurface of the subject property. Appellee is Mid-Ohio Coal Company.

STATEMENT OF FACTS AND THE CASE

{¶ 2} This case arises out of a dispute over the ownership of mineral rights appurtenant to real estate located in Guernsey County. Appellee contends and the court found it holds title to all subsurface rights without limitation, based upon the interpretation of the deed recorded by Jesse and Sarah Linkhorn in 1882. Appellant contends that a proper reading of the Linkhorn deed limits the appellee's claim to the subsurface coal.

{¶ 3} The issue of ownership of the mineral rights in this property was considered by the trial court in a prior case. In 1993 appellants Ralph C. Brown, Jr. and Patricia A. Brown filed a quiet title action in the Guernsey County Court of Common Pleas claiming ownership of the mineral interests in the same property. Mid-Ohio Coal was not named as a party in that litigation. In that case, no party responded to the complaint and the Browns were granted default judgment. Ralph C. Brown, et al. v. The Akron and Cambridge Coal Company nka The Wheeling and Lake Erie Coal Company , Guernsey C.P. Case No. 93-CV-266 (Aug. 25, 1993)

{¶ 4} On June 10, 2014, appellee filed a complaint requesting declaratory judgment, quiet title, ejectment, injunctive relief, and alleging continuing trespass and conversion regarding the property that was the subject of the complaint in Brown, supra . Appellee named several defendants including appellants and others who might claim any interest in the property . Ralph C. Brown, Jr., Patricia A. Brown and EQT Productions filed motions for summary judgment contending appellee's claim was barred by the doctrine of res judicata. Appellant opposed the motions, but on April 20, 2015 the trial court found "Defendants EQT Productions (sic) and Defendant Brown's Motion for Summary judgment is GRANTED and this case is DISMISSED as Plaintiff's claims are barred by res judicata." Mid-Ohio Coal Company v. Ralph C. Brown , Guernsey C.P No.14-OG-276, Entry, April 20, 2015, p. 2. The trial court issued no further findings nor did it rule on any other issues. Appellants filed a timely appeal to this court.

{¶ 5} We reversed the trial court holding that:

We therefore conclude the doctrine of res judicata does not bar the filing of the complaint in the present case. The Brown Quiet Title Action is not binding or enforceable against appellant. The action never cleared the title as to the named defendants who at the time were not the record holders of the subsurface rights in question. Therefore, the judgment is subject to collateral attack by appellant.

Mid-Ohio Coal Co. v. Brown , 5th Dist. Guernsey No. 15CA00012, 2015-Ohio-5111, 2015 WL 8483950, ¶ 31

{¶ 6} After the case was remanded to the trial court, appellee filed a motion for summary judgment on March 22, 2017 contending there were no genuine issues of material fact remaining to be decided and that the case could be decided by the interpretation of the Linkhorn deed. Appellee attached the affidavit and report of their expert, Robert T. Erhard, who traced the title of the property from Jesse and Sarah Linkhorn's deed recorded in 1882. Mr. Erhard prepared a Certificate of Title and Opinion dated February 27, 2017 and concluded that the fee simple title to the oil and gas interests at issue in this case was vested in appellee. On April 19, 2017, appellants filed their memorandum contra and, on April 26, 2017, appellee filed its reply. On June 21, 2017, appellants requested that the court consider their memorandum contra a motion for summary judgment and, by agreed entry dated June 28, 2017, the court ordered that the memorandum contra was deemed as the appellants' motion for summary judgment and that appellee's existing briefing would constitute its brief in opposition to appellants' cross motion for summary judgment.

{¶ 7} On August 3, 2017, the trial court issued its entry granting appellee's motion for summary judgment "on all counts of its complaint" and entered "an order declaring that Mid-Ohio owns and is vested with all right, title and interest in and to the subsurface and the estate to the exclusion of the defendant's interest as they may appear of record."

{¶ 8} Appellants filed their notice of appeal on August 29, 2017 and included one assignment of error:

{¶ 9} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO APPELLEE IN FINDING THE LINKHORN DEED CONVEYED ALL SUBSURFACE RIGHTS TO GRANTEE.

STANDARD OF REVIEW

{¶ 10} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987).

{¶ 11} Civ.R. 56 provides summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come to but one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 364 N.E.2d 267 (1977).

{¶ 12} The parties concede there are no genuine issues of material fact remaining for trial in this case and both sides agree the resolution of this case is contingent upon interpretation of the Linkhorn deed. Appellants ask that we review the deed and the documents attached to appellee's motion for summary judgment and conclude that the Linkhorn's intended to transfer only an interest in "stone coal" and no other minerals. Appellee agrees that this case should be resolved by the construction of the Linkhorn deed, but that we should conclude that the Linkhorn deed transferred titled to all minerals save stone and water.

{¶ 13} Under a de novo review of the Linkhorn deed, an appellate court may interpret the language of the written instrument, substituting its interpretation for that of the trial court. Children's Medical Center v. Ward , 87 Ohio App.3d 504, 622 N.E.2d 692 (2nd Dist.1993). Written instruments "are to be interpreted so as to carry out the intent of the parties, as that intent is evidenced by the contractual language." Skivolocki v. East Ohio Gas Co. , 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus. "The principles of deed construction dictate that a court presumes that a deed expresses the intentions of the grantor and grantee at the time of execution. "* * *A court cannot interpret the parties' intent in a manner contrary to the clear, unambiguous language of the deed.* * *" American Energy Corp. v. Datkuliak , 174 Ohio App.3d 398, 2007-Ohio-7199, 882 N.E.2d 463, (7th Dist.) ¶ 50. As explained by the Supreme Court of Ohio in Pure Oil Co. v. Kindall , 116 Ohio St. 188, 202-203, 156 N.E. 119 (1927) :

It is, of course, the general rule in the construction of deeds, that in case of ambiguity the instrument must be construed most strongly against the grantor and in favor of the grantee. 2 Tiffany on Real Property (2d Ed.) 437: 'The courts, in connection with the construction of written conveyances, as of other instruments, have asserted some general rules of construction, to aid in ascertaining the intention of the parties thereto.

ANALYSIS

{¶ 14} In support of their motion for summary judgment, Appellees provided the affidavit and report of their expert, Robert T. Erhard, who completed an exhaustive review of the records, traced the interest received by the Akron and Cambridge Coal Company through the Linkhorn deed, and concluded that the deed conveyed all mineral rights and that appellee now hold title to those interests. Mr. Erhard concluded appellants hold only rights to the surface of the property as well as the stone and water privileges reserved by the Linkhorn deed. Appellants disagree and contend that coal was the only mineral conveyed by the Linkhorn deed.

{¶ 15} In September 1882 Jesse and Sarah Linkhorn delivered a deed to the Akron and Cambridge Coal Company and recorded the same with the Guernsey County Recorder. Relevant to this case is the following language from the deed:

Know all men by these presents: that we Jesse Linkhorn and Sarah Linkhorn the grantors, for the consideration of thirty-nine hundred dollars ($3900.00) received to our full satisfaction of the Akron and Cambridge Coal Company the grantees do give grant bargain sell and convey unto the said grantee its successors and assigns the following described premises situated in the Township of Jackson, County of Guernsey and State of Ohio and known as the Southeast quarter of the northeast quarter and the southeast quarter of Section Six (6) township one and range two (2). Excepting that part of the same south west of the (illegible) of Wills Creek. Also excepting one half an acre formerly a school house lot now owned by Mary J Hildebrandt containing 198 acres. But reserving to said grantors their heirs and assigns all the surface of said land including stone and water privileges on or under the same excepting stone coal. Provided that if said grantee should need any hard surface of said land for coal or other minerals there under it shall take and use what is necessary therefore and shall at once pay said first party his heirs and assigns therefore at the rate of $40.00 per acre and provided further that any damage that grantee may do to the surface of aforesaid by reason of the mining of said stone coal shall be paid for by the grantor at the rate of $40 per acre as liquidated damages be the same more or less but subject to all legal highways. To have and to hold the above granted and bargained premises with the appurtenances thereto belonging unto the said grantor it successors and assigns forever. And we the said grantors do for ourselves and our heirs executors and administrators covenant with the said grantee its successors and assigns that at and until the ensealing of these presents we were well seized of the above described premises as a good and indefeasible estate in fee simple and have good right to bargain and sell the same in manner and form as above written that the same are free and clear from encumbrances whatsoever and that we will warrant and defend said premises with the appurtenances thereunto belonging to the said grantee it successors and assigns forever against all lawful claims and demands whatsoever.

{¶ 16} The resolution of this dispute rests upon the interpretation of this language in the deed.

{¶ 17} Appellee has described the various conveyances from 1882 to date in its brief and filed an affidavit and report of its expert, Robert T. Erhard. We will not reproduce that recitation within this opinion, but because appellants did not file an opposing report, we accept the conclusions of the Erhard report regarding the conveyances and give them due consideration in our analysis.

{¶ 18} In the 1882 deed the Linkhorns represented that they were "* * *well seized of the above described premises as a good and indefeasible estate in fee simple and have good right to bargain and sell the same any manner and form as above written, that the same are free and clear from encumbrances whatsoever and that we will warrant and defend said premises with the appurtenances thereunto belonging to the said grantee * * *." The parties to this action are not disputing the Linkhorns representation, so it is clear the Linkhorns held a fee simple, "the highest right, title and interest that one can have in land. It is the full and absolute estate in all that can be granted." (Citations omitted.) Masheter v. Diver , 20 Ohio St.2d 74, 78, 253 N.E.2d 780, 783 (1969). This title, therefor, included gas, oil, coal, stone, water, and any mineral as well as the right to use or convey the property.

{¶ 19} By the deed, the Linkhorns did "give, grant, bargain, sell and convey" to the grantee, its successors and assigns, the property described within the deed. On the date of the execution of this deed, the common law rule required "appropriate words of perpetuity" to convey fee simple title and the term "successors" and "assigns" satisfies that requirement. First New Jerusalem Church of Lakewood v. Singer, 68 Ohio App. 119, 123, 34 N.E.2d 1007 (8th Dist.1941) ; Schurch v. Harraman , 47 Ohio App. 383, 387, 191 N.E. 907 (3rd Dist.1933) The Linkhorn deed does contain exceptions and reservations, so the Linkhorn's conveyed a fee simple estate, subject to those express limitations and reservations.

{¶ 20} The Linkhorn's excepted specific portions of the property from the grant and reserved to themselves, their heirs and assigns "all the surface of said land including stone and water privileges on or under the same".

{¶21} The Linkhorn's reservation to themselves is subject to a further exception, "stone coal." Consequently, with the exception of the those portions of the property excepted from the transfer, the surface of all of the property, stone and water privileges on or beneath the same, all of the Linkhorn's interest and rights regarding this parcel were transferred to Cambridge and Akron Coal in their 1882 deed, coal, gas and oil included.

{¶ 22} Appellants' argument characterizes the deed as an attempt by the Linkhorns to transfer only mineral rights, but we cannot accept their rational or the precedent they submit as it would require us to alter the clear and unambiguous language of the deed. American Energy Corp., supra. The Linkhorn deed is distinguishable from the deeds in appellants' submitted authority because it transfers fee simple and reserves rights to the grantor. Cambridge and Akron Coal received a fee simple title subject only to the exceptions or reservations expressed by the Linkhorn's, and the Linkhorns did not reserve the rights to gas, oil or any other substance save stone and water. The precedent cited by appellants' addresses interpretation of clauses reserving, granting or defining mineral or mineral rights, an analysis made unnecessary by the Linkhorn's granting of a fee simple title.

{¶ 23} In Stocker & Sitler, Inc. v. Metzger , 19 Ohio App.2d 135, 136, 250 N.E.2d 269, 270 (5th Dist.1969) the trial court interpreted a reservation of mineral rights in a deed:

Excepting there is reserved unto said grantors, all the veins of coal and other substances of value underlying said above conveyed premises, together with all necessary rights of way and privileges of entry thereon to remove same, unto them, their heirs and assigns forever.

{¶ 24} The Court found that this phrase included oil and gas and held that the oil and gas was not transferred. In the case sub judice there is no such reservation, nor is there any language that suggest that the parties intended to reserve the rights to oil and gas or any estate, with the exception of the surface, water and stone.

{¶ 25} In Hardesty v. Harrison , 6 Ohio Law Abs. 445, 446 (5th Dist.1928) the deed transferred "all the coal, clay and mineral rights" and the trial court found this description included oil and gas. Id. at 446. In the matter before this court, the deed does not expressly reference minerals in the granting clause. The deed conveyed fee simple title subject to the exception of certain portions of property and the reservation to the grantors of use of the surface, water and stone. The mineral referenced, stone coal, is described in an exception to the reservation of stone and is not part of the granting language.

{¶ 26} We held in Hardesty, supra, that "[a] grant without qualifying or limiting words of the minerals underlying certain real estate will include oil and gas." Id. at 446. The Linkhorn deed contains no such qualifying language, so we must construe the deed to include oil and gas. And while the Linkhorn's conveyance might be convoluted, "[a]ny ambiguity which exists in the reservation the deed must be construed most strongly against the grantor who made the reservation." Belden v. Thomas , Tuscarawas County, Case No. 1148, Aug. 5, 1975, unreported, Pg. 12, as cited in Muffley, by Double v. M.B. Operating Co. , 5th Dist. Stark No. CA-6910, 1986 WL 12348, *2 (Oct. 27, 1986).

{¶ 27} Riggs v. Island Creek Coal Co. , 542 F.2d 339, 340 (6th Cir.1976) addressed confusion regarding the reference to coal deposits in a deed and Jividen v. New Pittsburg Coal Co. , 45 Ohio App. 294, 295, 187 N.E. 124 (4th Dist.1933) addressed a clause that "reserve[d] all coal and other mineral" in the premises and whether the term "mineral" in the deed referenced gas and oil. These cases are distinguishable on their facts as there is no need to interpret the term mineral as it appears in the Linkhorn deed. The word appears only in the reservation language and "[a]ny ambiguity which exists in the reservation the deed must be construed most strongly against the grantor who made the reservation." Muffley, supra.

{¶ 28} Likewise, Gordon v. Carter Oil Co., 19 Ohio App. 319, 320, 3 Ohio Law Abs. 43 (5th Dist.1924) is inapposite as it addresses a transfer of "[a]ll the coal and other minerals under the surface of the following real estate: [Here eighty acres of land are described]." The court in that case addressed whether gas and oil were included in the conveyance, whereas, in this case, the deed conveyed a fee simple and the trial court correctly determined that gas and oil were not reserved by the grantor.

{¶ 29} The more recent decision in Sheba v. Kautz, 7th Dist. Belmont, 2017-Ohio-7699, 97 N.E.3d 893, ¶ 3, appeal not allowed, 152 Ohio St.3d 1422, 2018-Ohio-923, 93 N.E.3d 1004, (2018) is not helpful to appellant's cause as that court was tasked with deciding whether a reservation of "coal and mineral privileges" included gas and oil. The Linkhorns reserved only water and stone privileges and excepted coal from the reservation. Aside from those reservations, the Linkhorn deed conveyed to Cambridge and Akron Coal a fee simple title to the land, gas and oil included.

{¶ 30} Appellant argues that continued reference to coal or minerals in the chain of title as well as any lack of reference to gas and oil should be viewed as persuasive evidence that the Linkhorns did not intend to convey gas and oil in their deed. The granting language of the deed is a clear and unambiguous conveyance of fee simple. The reservation language does not include gas and oil, so we are restricted to reviewing the language of the deed and may not resort to the extrinsic evidence promoted by appellants. "* * *A court cannot interpret the parties' intent in a manner contrary to the clear, unambiguous language of the deed.* * *" American Energy Corp.,supra.

{¶ 31} Appellant's attempt to interpret the language of the deed as transferring only rights to coal is a strained and unsupportable interpretation of the deed. Coal or "stone coal" as it is referenced in the deed is only included as an exception to the grantor's reservation to themselves and cannot be interpreted as a part of the granting language. We cannot construe this deed as a transfer of mineral rights only but, instead, must find it a conveyance of a fee simple estate subject to the reservation of surface rights as well as stone and water privileges. "A deed of real property which conveys a fee-simple estate in the granting and habendum clauses" but contains a provision exception the surface, stone and water, conveys all other rights and interests in the land, including oil and gas. Anderson v. Pryor , 51 Ohio App. 35, 199 N.E. 364, syllabus (5th Dist.1935).

{¶ 32} For the reasons set forth above, we overrule appellant's sole assignment of error and affirm the decision of the Guernsey County Court of Common Pleas.

{¶ 33} All costs assessed to appellants.

Gwin, P.J. and Earle Wise, J., concur.

      Several parties were dismissed from the proceedings, some did not oppose the appellee's motion for summary judgment and two who opposed summary judgment did not participate in this appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Irvin W. HUTH, et al., Plaintiffs-Appellants v. Tama KUS, Administrator, Estate of Bryon L. Holbrook, Defendant-Appellee
    No. 2017 AP 06 0015
    Court of Appeals of Ohio, Fifth District, Tuscarawas County.
    DATE OF JUDGMENT ENTRY: May 14, 2018
   MICHELA HUTH, P.O. Box 17, Bolivar, OH 44612, For Plaintiffs-Appellants

GREGORY BECK, ANDREA ZIARKO, 400 South Main St., North Canton, OH 44720, For Defendant-Appellee

JUDGES: Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. William B. Hoffman, J.

Gwin, J., {¶ 1} Appellants Irvin W. and Kay V. Huth [collectively "Huths"] appeal the May 4, 2017 Judgment Entry after a bench trial in the Tuscarawas County Court of Common Pleas.

Facts and Procedural History

The parties.

{¶ 2} In March 2014, the Huths entered into a written contract with Bryon L. Holbrook ["Holbrook"] whereby they loaned him $25,000.00 and in exchange were given a security interest in certain items of personal property owned by Holbrook and/or his two companies, HES Group, Inc. and Diamond Dustless Blasting. Huths also have alleged that they entered into a verbal agreement with Holbrook whereby they loaned him an additional $29,500.00, unsecured. See, Huth v. Tama Kus, Adm. Estate of Byron L. Holbrook, 5th Dist. Tuscarawas Nos. 2014 AP 10 0041, 2015-Ohio-3457, 2015 WL 5047695, ¶ 2. [Hereinafter Huth I " ].

{¶ 3} Holbrook died intestate on or about July 16, 2014. On or about August 5, 2014, his estate administration was opened. Huth I , ¶ 3. Defendant/Appellee, Tama Fairbanks (FKA Tama Kus), is the Administrator of the Estate of Bryon L. Holbrook, Tuscarawas County Court of Common Pleas, Probate Division, In Re: Estate of Bryon L. Holbrook , Case No. 2014 ES 57825. In the probate proceedings, the Huths' claims against Holbrook's estate were rejected by appellee on September 7, 2014, with said rejection notices being filed with the probate court on September 9, 2014. Huth I , ¶ 8.

The replevin action.

{¶ 4} On August 18, 2014, the Huths filed a "complaint in replevin and motion for order of possession" ( R.C. 2737.03 ) in the Tuscarawas County Court of Common Pleas against appellee Tama Kus, as the administrator of the Bryon L. Holbrook estate. On August 27, 2014, appellee filed an answer and a Civ.R. 12(C) motion for judgment on the pleadings.

{¶ 5} On September 12, 2014, the trial court issued a six-page judgment entry dismissing the Huths' replevin action, concluding inter alia, "replevin is not appropriate under the complaint, its supporting documents, and answer, and Ohio law." Huth I , ¶ 11. This Court upheld the trial court's decision as well as its decision to deny the Huths' Civ. R. 60 (B) motion. Huth I .

{¶ 6} On November 4, 2015, the Huths filed a motion for leave to file an amended complaint. By Judgment Entry filed January 21, 2016, the trial court granted the Huths' motion.

The amended complaint.

{¶ 7} On January 29, 2016, the Huths filed an amended complaint alleging counts for Replevin, Breach of Contract, Unjust Enrichment and Conversion. In their amended complaint, the Huths alleged the balance due on the secured loan was $22,973.56 plus interest ; the balance due on the unsecured loan was $22,057.44 plus interest ; and the balance due under both the unsecured and secured loans equals $45,031 plus interest . The Huths requested $45,031.00 plus interest as their prayer for relief. Nowhere in the amended complaint do the Huths set forth a cause of action or a prayer for relief for unpaid rent.

The bench trial.

{¶ 8} The trial court issued a Pretrial and Scheduling Order on June 8, 2016, wherein the Court ordered, "For trials to the bench, trial briefs shall be filed with the Court, one week before trial, unless leave is otherwise granted." By Judgment Entry filed January 20, 2017, the trial court, sua sponte granted an extension of time to the parties for filing trial briefs on or before January 23, 2017, one day prior to the trial. The parties were specifically advised to present the trial court with a brief of the legal issues that were being tried to the court, along with the relevant law. This Judgment Entry was also sent to the parties via facsimile on January 19, 2017 at 2:32 p.m. The appellee's trial brief was filed on January 23, 2017. The Huths failed to file a trial brief prior to trial. On January 25, 2017, the trial court denied the Huths' Motion for Leave to File Post-Trial Brief Instanter to Specifically Respond to Defendant's Trial Brief. A bench trial took place on January 24, 2017.

The evidence presented at trial.

{¶ 9} On February 21, 2014, appellant Kay Huth wrote Bryon Holbrook check number 8896 for $10,000.00. (Plaintiff's Exhibit 1). The memo line for this check indicated "loan." Holbrook deposited that amount into his checking account on the same day, as both he and Kay were standing at the bank counter. Bryon's checking account statement showed the deposit of this amount on that day. Kay testified that Holbrook told her "you know, mom, I will pay you back. And I said of course Byron I know that." (T. at 14). Appellee's objection was overruled by the trial court. (T. at 11-14).

{¶ 10} Kay testified that Holbrook "asked me if he could have more money, I said yes up to twenty-five thousand dollars you can have." (T. at 21). On March 7, 2014, Kay Huth received $2,500.00 cash from check number 8886 issued from her own bank account. (Plaintiff's Exhibit 4). Kay Huth testified that she gave this amount to Holbrook and he deposited the same into his account immediately upon her handing him the cash. Holbrook's checking account statement shows $2,500.00 deposited into his bank account on the same day.

{¶ 11} On March 12, 2014, Kay Huth wrote check number 8787 to Holbrook for $12,500.00. (Plaintiff's Exhibit 5). The memo line of this check contained the word "loan." Kay testified that Holbrook deposited the check into his checking account the same day, while she and he were standing at the bank counter together. Holbrook's checking account statement shows $12,000.00 deposited into his bank account on March 12, 2014. Kay testified that Holbrook kept $500.00 cash of the $12,500.00 given him at that time, and deposited $12,000.00 into his bank account.

{¶ 12} On March 24, 2014, Kay received $15,000.00 cash from check number 8886 issued from her own bank account. (Plaintiff's Exhibit 7). Kay testified that the $15,000.00 was given to Holbrook who deposited the money directly into his account when she and he were at the bank counter.

{¶ 13} Kay testified that her own mother had passed away in January 2014, and Kay planned to buy her mother's home. T. at 26. Kay testified that she was informed by her bank that the easiest way to purchase her mother's house was to increase her personal line of credit ("PCL"). T. at 26. A new PCL was created based upon the additional money loaned to Kay by the bank so that she could buy her mother's home. T. at 27. Kay testified that the $15,000 she provided to Holbrook on March 24, 2014 came from this new PCL. T. at 26.

{¶ 14} On March 26, 2014, the Huths entered into a written agreement with Holbrook, which provided that Huths, "loaned [Holbrook] $25,000" and in consideration for the loan, Holbrook agreed to repay the principal amount of $25,000 with variable interest. (Plaintiff's Exhibit 16). The Note, which was prepared by Huths' attorney and daughter, Michela Huth, further provided that Holbrook would repay the loan on a monthly basis of $449.11 for four years. (Id. ). An attorney did not represent Holbrook. Based upon the express terms of the Note, the total repayment equaled $21,557.28 (48 months at $449.11 per month).

{¶ 15} The agreement also provided that Holbrook assigned a security interest in certain collateral, which included a Voyager Pontoon Boat, a Johnson Inboard Motor (attached to the pontoon boat), a 2012 Kawasaki STX15F Jet Ski, a 2014 Load Rite Trailer, a 2013 Arctic Cat, and a Mihindra Tractor. (Plaintiff's Exhibit 16 at 1(a) and Exhibit A, attached to Plaintiff's Exhibit 16). Holbrook's death triggered the default clause of the agreement. Id. at ¶ 8.

{¶ 16} At the time of the trial, the Huths were in possession of several of these items, specifically the pontoon boat, motor, and trailer, valued at $4,800, and the Mahindra Tractor, valued at $11,950. (Judgment Entry at 7). The trial court found appellee was in possession of the Arctic Cat, and that the Kawasaki Jet Ski was repossessed. (Judgment Entry, at 8, 19).

{¶ 17} Appellant Irvin Huth testified that Holbrook had telephoned him saying "I need the money badly could you come into the bank." (T. at 83). On April 24, 2014, appellant Irvin Huth received $2000.00 in cash from a check issued from the PCL account. (Plaintiff's Exhibit 18). Holbrook immediately deposited cash of $2000.00 into his bank account. Irvin further testified, "I believed that Byron would pay and I expected him to pay. In fact, I, he and I had a couple of conversations that this was very important to us, that yes we wanted to help but it meant we were mortgaging our home, and this was a very serious thing. And Byron did make payments and we did continue to give him money at the [bank]." T. at 80-81.

{¶ 18} On April 30, 2014, Kay received $12,500.00 cash from the PCL account. (Plaintiff's Exhibit 9). When Kay gave Holbrook the money, he deposited it into his checking account on the same day. Holbrook's checking account statement reflects a deposit of $12,500.

{¶ 19} Kay Huth testified that on June 3, 2014, Holbrook approached her at the bank and "he says mom look, I paid three thousand dollars on the PCL, he was like a little boy, real proud of what he had done." T. at 33.

{¶ 20} Prior to Holbrook's death, he paid $14,800.00 to the Huths. The Huths contend that of that amount, he paid $4,800.00 for four months' rent. Holbrook lived with the Huths' daughter and personal attorney, Michela Huth, in a home owned by the Huths.

The trial court's decision.

{¶ 21} The trial court issued its ruling on May 4, 2017, in which it denied the Huths' demand for replevin. The court ordered judgment in the amount of $1,957.28 in favor of the Huths, in part, on their breach of contract claim as it pertained to the written agreement. The trial court found the Huths failed to prove the existence of an oral contract by clear and convincing evidence and therefore denied the Huths' breach of contract claim as to the alleged oral agreement. The court further denied the Huths' claims for unjust enrichment and conversion.

{¶ 22} In reaching these conclusions, the trial court reversed the ruling made during the Huths' case-in-chief finding the statements of Holbrook to be admissible:

The Court FINDS that the Defendant's objection to the hearsay statements of the decedent, Bryon L. Holbrook, is well taken. Although the Court permitted the testimony to proceed during the bench trial, such statements have been disregarded by the Court as impermissible hearsay. The Court has made no Findings of Fact regarding the statements of the decedent, as such evidence must be utilized only for purposes of rebuttal. The proceedings and presentation by the Defendant did not give rise to rebuttal.

Judgment Entry, May 4, 2017 at 18.

Assignments of Error

{¶ 23} The Huths raise five assignments of error,

{¶ 24} "I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, AND PREJUDICED APPELLANT, WHEN IT REVERSED ITS OWN HEARSAY EVIDENTIARY RULING AFTER THE TRIAL WAS CONCLUDED.

{¶ 25} "II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, AND PREJUDICED APPELLANT, WHEN IT DISREGARDED EVIDENCE, WHICH IT INCORRECTLY FOUND TO BE INADMISSIBLE HEARSAY.

{¶ 26} "III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FOUND THE APPELLANTS/PLAINTIFFS FAILED TO PROVE THE EXISTENCE OF AN ORAL CONTRACT FOR REPAYMENT OF THE $31,50000 [SIC] THAT WAS ALLEGEDLY LOANED TO BRYON HOLBROOK.

{¶ 27} "IV. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FOUND NO EVIDENCE OF A RENTAL AGREEMENT WAS PRESENTED AT TRIAL.

{¶ 28} "V. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FOUND THE APPELLANTS/PLAINTIFFS FAILED TO PROVE THE RIGHT TO RECOVER FOR UNJUST ENRICHMENT."

I., II, III. & V.

{¶ 29} The Huths' First and Second Assignments of Error concern the trial court ruling during trial that Holbrook's statements were admissible, and then reversing that ruling after the case had been submitted after the conclusion of the evidence. The Huths' Third and Fifth assignments of error concern the evidence of the existence of an oral contract and evidence of their right to recover for unjust enrichment.

Standard of Appellate Review.

{¶ 30} "[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake Cty. , 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). "Ordinarily, we review a trial court's hearsay rulings for an abuse of discretion. State v. Hymore , 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). However, "[w]hether evidence is admissible because it falls within an exception to the hearsay rule is a question of law, thus, our review is de novo." State v. Truitt , 9th Dist. No. 25527, 2011-Ohio-6599, 2011 WL 6749811, ¶ 24 (quoting Monroe v. Steen , 9th Dist. No. 24342, 2009-Ohio-5163, 2009 WL 3119693, ¶ 11.

ISSUE FOR APPEAL

Whether the statements of Byron Holbrook were admissible at trial.

{¶ 31} "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). Hearsay is generally not admissible unless it falls within one of the recognized exceptions. Evid.R. 802 ; State v. Steffen , 31 Ohio St.3d 111, 119, 509 N.E.2d 383 (1987).

{¶ 32} "The hearsay rule...is premised on the theory that out-of-court statements are subject to particular hazards. The declarant might be lying; he might have misperceived the events which he relates; he might have faulty memory; his words might be misunderstood or taken out of context by the listener. And the ways in which these dangers are minimized for in-court statements-the oath, the witness' awareness of the gravity of the proceedings, the jury's ability to observe the witness' demeanor, and, most importantly, the right of the opponent to cross-examine-are generally absent for things said out of court." Williamson v. United States , 512 U.S. 594, 598, 114 S.Ct. 2431, 2434, 129 L.Ed.2d 476 (1994).

{¶ 33} In ruling subsequent to trial that the statements were not admissible, the trial court relied upon Evid. R. 804 which provides in relevant part,

(B) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
* * *
(5) Statement by a Deceased or Incompetent Person. The statement was made by a decedent or a mentally incompetent person, where all of the following apply:
(a) the estate or personal representative of the decedent's estate or the guardian or trustee of the incompetent person is a party;
(b) the statement was made before the death or the development of the incompetency;
(c) the statement is offered to rebut testimony by an adverse party on a matter within the knowledge of the decedent or incompetent person.

{¶ 34} The 1980 staff notes to Evidence Rule 804(B) (3) indicate, "[t]his declaration against interest applies to statements of persons other than parties to the action and should be distinguished from statements of parties to the action. " See, Volpe v. Heather Knoll Retirement Village, 9th Dist. Summit No. 26215, 2012-Ohio-5404, 2012 WL 5872749, ¶ 17 (emphasis added).

Statements of a party opponent are not hearsay under Evid. R 801(D)(2).

{¶ 35} Evid. R 801 provides,

(D) Statements Which Are Not Hearsay. A statement is not hearsay if:
(2) Admission by Party-Opponent. The statement is offered against a party and is (a) the party's own statement, in either an individual or a representative capacity, or (b) a statement of which the party has manifested an adoption or belief in its truth, or (c) a statement by a person authorized by the party to make a statement concerning the subject, or (d) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (e) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy.

Emphasis in original.

{¶ 36} The First District Court of Appeals addressed this distinction between Evid.R. 801(D)(2) and 804(B)(3) :

Evid.R. 804(B)(3) provides that a statement against interest may be admitted under certain circumstances as an exception to the hearsay rule. But Evid.R. 804(B)(3) does not apply to statements made by a party to the action. 1993 Staff Note to Evid.R. 804(B)(3). A statement made by a defendant is considered an "admission," and is governed by Evid.R. 801(D)(2). An "admission" and a "statement against interest" reflect two distinct concepts and different rules of admissibility apply to each. See Ferrebee v. Boggs, 24 Ohio App.2d 18, 263 N.E.2d 574 (4th Dist. 1970).

State v. Webster, 1st Dist. Hamilton No. C-120452, 2013-Ohio-4142, 2013 WL 5432082, ¶ 66 (emphasis added). Accord, State v. Phillips, 8th Dist. Cuyahoga No. 104806, 2017-Ohio-1284, 2017 WL 1283590, ¶ 29. In Ferrebee v. Boggs, the court observed,

It is generally accepted that a distinction exists, both in theory and practical effect, between statements by a party to a suit, termed admissions, and declarations of fact by third persons against their interest. 4 Wigmore on Evidence (3 Ed.) 6, Section 1049. This distinction, however, has not always been observed by Ohio courts. See Admissions 'Against Interest' in Ohio, 15 Ohio St.L.J. 187. It is observed by Wigmore that universally statements by a party opponent are admissible. 4 Wigmore on Evidence (3 Ed.) 2, Section 1048. Whether the theory of admissibility is that such statements are non-hearsay or an exception to the rule, to be admissible it must be against some interest of the party at trial and not at the time made, and no foundation need be laid and no requirement of proof of the absence of the declarant is necessary.
2 Jones on Evidence (5th Ed.), 630 et seq., Section 334 et seq.; 4 Wigmore on Evidence (3 Ed.), 2 Section 1049.

24 Ohio App.2d 18, 23, 263 N.E.2d 574 (1970) ; Accord, Romay v. Mayfair Pools & Supplies, 6th Dist. Lucas No. L-86-093, 1986 WL 15063 (Dec. 31, 1986).

Statements of a decedent are admissible against his or her estate as admissions against a party opponent.

{¶ 37} The Court in Ferrebee further observed,

Another important distinction is that admissions by a party are not only admissible against him, but, likewise, are admissible against those in privity with him. 4 Wigmore on Evidence (3 Ed.), 25, Section 1060.
Applying the above principles, was the proffered testimony admissible? We consider, first, the question of admissibility as an admission in the second cause of action for pain, suffering and expenses prior to death. This action survived by virtue of R.C. 2305.21 and was for the benefit of the estate. The plaintiff administratrix was, therefore, in the same position as the deceased had he survived. Clearly, the admission would have been admissible against the decedent and, hence, the deadman's statute aside, was admissible against the plaintiff. See 2 Jones on Evidence (5 Ed.) 644, Section 342.

24 Ohio App.2d 18, 25, 263 N.E.2d 574. Indeed, "[n]o modern court doubts that a decedent, whose rights are transmitted intact to his successor, is a person whose admissions are receivable against a party claiming the decedent's rights as heir, executor, or administrator ," Estate of Shafer v. C.I.R., 749 F.2d 1216, 1219 (6th Cir. 1984) (citing IV J. Wigmore, Evidence in Trials at Common Law § 1081 (1972) (emphasis in original) ). In Estate of Shafer , the Sixth Circuit held that the Tax Court properly admitted the statements of decedent made to his sons as admissions of decedent's estate. In addition, the Third Circuit has affirmed a district court's rulings that the statements of a deceased defendant were properly admitted as admissions by a party opponent. Savarese v. Agriss , 883 F.2d 1194, 1201 (3rd Cir.1989). In so holding, the Third Circuit stated, "we have, on a prior occasion, suggested that an admission by a party-opponent may be admissible when the party is deceased at the time of the trial." Id.

{¶ 38} In Fischer v. Forestwood Company, Inc. , the Tenth Circuit observed,

[C]ourts have consistently rejected the argument that for an admission by a party opponent to be admissible, the declarant must be available for cross-examination. See, e.g., Savarese v. Agriss , 883 F.2d 1194, 1201 (3d Cir.1989) ("[A] statement by a declarant, deceased at the time of trial, may be admissible under ... Fed.R.Evid. 801(d)(2)(D)."); Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714, 722 (8th Cir.1981) (explaining that admissions by a party opponent do not need to be subjected to cross-examination in order to be admissible). The reason cross-examination is not required is because the "admissions doctrine amounts to a logical expression of the philosophy of the adversary system and is closely connected with the personal freedom and responsibility that are part of life in a free society: In the case of individual admissions, it seems appropriate to point out that parties bear the lion's share of responsibility for making or breaking their own cases, and lawsuits are focused inquiries into personal rights and social responsibilities. These ideas make it reasonable to say that one cannot claim that his own statement should be excluded because it was not made under oath or subject to cross-examination or in view of the trier of fact." 4 Mueller & Kirkpatrick, Federal Evidence § 8:44 (3d ed.2007) (internal citations omitted); see also Fed.R.Evid. 801 advisory committee's note ("Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system.... No guarantee of trustworthiness is required in the case of an admission.").

525 F.3d 972, 984-985 (10th Cir. 2008) ; Accord, United States v. Ballou , 59 F.Supp.3d 1038, 1060 (D.New Mexico 2014). In Sherif v. AstraZenca , the court echoed the holding that a decedent's statements as not hearsay,

The Advisory Committee Notes state that "[n]o guarantee to trustworthiness is required in the case of an admission." Fed.R.Evid. 801(d)(2). It has generally been stated that "admissions pass the gauntlet of the hearsay rule, which requires that extra-judicial assertions be excluded if there was no opportunity for the opponent to cross-examine because it is the opponent's own declaration, and 'he does not need to cross-examine himself.' " 2 John W. Strong, McCormick on Evidence § 254 at 136 (5th ed.1999). Moreover, the party "now as opponent has the full opportunity to put himself on the stand and explain his former assertion." Id. (quotation omitted). The Third Circuit Court of Appeals has held that even the death of the declarant does not render such statements inadmissible but impacts on the weight of the evidence rather than its admissibility. Savarese v.Agriss , 883 F.2d 1194, 1201 (3d Cir.1989).

E.D.Pa. No. Civ.A. 00-3285, 2002 WL 32350023 (May 9, 2002) at *3.

{¶ 39} The death of the party does not make the statements hearsay; rather the fact that the party is deceased goes to the weight of the evidence,

However, Stiglich's intervening death does [not] change the applicability of Rule 801(d) (2)(A) or render his statements, in this context as statements of a party opponent, hearsay. See Savarese v. Agriss , 883 F.2d 1194, 1200-01 (3d Cir.1989) (holding that "the impact of the declarant's death impacts on the weight of the evidence rather than its admissibility;" noting the tactical risk a plaintiff assumes [is] that a jury is likely to discredit the purported utterance of the deceased party opponent simply because it is being offered); see also White v. Honeywell , 141 F.3d 1270, 1277 (8th Cir.1998) (reasoning that the availability of the declarant is not relevant under Rule 801(d)(2)(D) because under the rule, the statement is not hearsay); Thomas D. Wilson Consulting, Inc. v. Keely & Sons, Inc. , No. 4:05CV2115, 2007 WL 1774434, at *7 n. 2 (E.D.Mo. June 18, 2007) ; Todd v. City of Chi., 28 F.Supp.2d 1062, 1064 (N.D.Ill.1998) (citing Savarese , 883 F.2d at 1200-01 ).

Swiss v. Stiglich, N.D. Indiana No. 2:05-CV-203-PRC, 2008 WL 763015 (Mar. 20, 2008), at *5.

Conclusion.

{¶ 40} The trial court erred when it denied the admissibility of Holbrook's statement based upon Evid. R. 804(B)(5) because Holbrook's statements were admissible under Evid.R. 801(D)(2) as admissions of a party opponent.

{¶ 41} It was fundamentally unfair for the trial court to reverse the ruling that allowed the statements to be considered and then exclude the statements after the trial had ended. The proponent of the statements had no opportunity to present other, admissible evidence to carry its burden of proof. The proponent of the evidence may have forgone presentation of additional evidence in reliance upon the trial court's ruling that it would consider the hearsay statements of Holbrook.

{¶ 42} Additionally, the trial court, as the trier of fact may have reached a different conclusion on the issues of the existence of an oral contract and the Huths' right to recover for unjust enrichment had the trial court considered the statements made by Holbrook.

{¶ 43} The Huths' First and Second Assignments of Error are sustained. In light of our holding, we overrule the Huths' Third and Fifth Assignments of Error as being premature.

IV.

{¶ 44} In their Fourth Assignment of Error, the Huths contend that the trial court abused its discretion in finding no evidence that Holbrook and the Huths had an agreement for Holbrook to pay rent.

Standard of Appellate Review.

{¶ 45} In Kostelnik v. Helper , 96 Ohio St.3d 1, 16, 2002-Ohio-2985, 770 N.E.2d 58, the Ohio Supreme Court described the requirements for formation of a contract:

A contract is generally defined as a promise, or a set of promises, actionable upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration.

{¶ 46} The Supreme Court has further explained, "[a] meeting of the minds as to the essential terms of the contract is a requirement to enforcing the contract." Kostelnik, citing Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations , 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991). And to be enforceable, "the contract must be definite and certain." Episcopal Retirement Homes at 369, 575 N.E.2d 134, citing James Ward & Co. v. Wick Bros. & Co. , 17 Ohio St. 159 (1867).

ISSUE FOR APPEAL

Whether the trial court erred in finding insufficient evidence of a contract to pay rent.

{¶ 47} The evidence contained within the record demonstrates that Holbrook lived with the Huths' daughter. The Huths' are represented in this case by that same daughter. The house that Holbrook and Michela Huth lived in was the home that was purchased from Kay Huth's mother. (T. at 52). No documentation exists to demonstrate how the money that Holbrook paid the Huths was applied to his obligations. (T. at 51-53). None of the rental terms or length of the contract was presented in evidence.

{¶ 48} In the case at bar, the evidence presented does not expressly set out the parties' mutually agreed-upon obligations in terms that are definite and certain. Although Kay Huth testified that Holbrook agreed to pay rent, a rational basis exists in the record to support the trial court's decision.

{¶ 49} The Huths' Fourth Assignment of Error is overruled.

{¶ 50} The judgment of the Tuscarawas County Court of Common Pleas is reversed in part and affirmed in part and this case is remanded to the trial court for proceedings in accordance with our opinion and the law.

Wise, P.J., and Hoffman, J., concur

      ¶ 52

      ¶ 53

      ¶ 54.

      Appellee subsequently entered a continuing objection and motion to strike all statements made by Byron Holbrook. (T. at 15).

      Although the date on the check is Mar 17, 2014, the testimony at trial revealed that the transaction actually had taken place on March 12, 2014. (T. at 21-22).

      We express no opinion on the merits of the Huths' causes of action for breach of an oral contract or unjust enrichment.


author: FRANK D. CELEBREZZE, JR., J.:

text:
    Anthony FOSTER, Plaintiff-Appellant v. Eral M. FOSTER, et al., Defendants-Appellees
    No. 106173
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 17, 2018
    Mitchell L. Alperin, 29325 Chagrin Boulevard, Suite 305, Pepper Pike, Ohio 44122, ATTORNEY FOR APPELLANT.
    Michael A. Heller, Mike Heller Law, L.L.C., 333 Babbit Road, Suite 233, Euclid, Ohio 44123, ATTORNEY FOR APPELLEES.
    BEFORE: Celebrezze, J., McCormack, P.J., and Keough, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Plaintiff-appellant, Anthony Foster ("appellant"), appeals the grant of summary judgment in favor of defendants-appellees, Eral Foster ("Eral"), Velma Knight ("Knight"), and Cleveland Suburban Homes Realty Company (collectively "appellees"). Appellant argues that the trial court erred by granting appellees' summary judgment motion because a genuine issue of material fact exists regarding when the applicable statute of limitations began to run. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} The instant matter arose from a dispute regarding a real estate transaction involving appellant's house, located at 3601 East 106th Street, Cleveland, Ohio. In September 2006, appellant contacted his brother Eral and retained appellees to represent him in the sale of his house. Eral participated in the transaction as appellant's agent, and Knight was involved in the transaction as a broker. The parties agreed that appellant would net a minimum of $35,000 from the sale.

{¶ 3} Appellees procured a buyer, Faruq Husam Adeen, in February 2007. Adeen agreed to purchase the house for $83,000 on the condition that appellant contributed $43,020 for repairs and updating. Appellant would net $35,000 from the transaction. Closing was set for February 28, 2007. Appellees advised appellant that Adeen was having issues obtaining the requisite financing.

{¶ 4} While Adeen was in the process of securing financing for the purchase, appellant obtained a buyer on his own that agreed to pay more than Adeen. Appellant asked Eral to terminate the agreement with Adeen. Eral advised appellant that the purchase agreement with Adeen could not be terminated unless Adeen was unable to obtain the requisite financing.

{¶ 5} Appellant's house sold on March 28, 2007. Appellant and his wife went to the title company, Heights Title, to sign the closing documents. Appellant alleges that he and his wife were rushed through the process of signing the documents without having an opportunity to review them.

{¶ 6} Eral picked up appellant's check and the closing documents from the title company and provided appellant a check for $25,000. Appellant discovered that Adeen was not listed as the buyer on the closing documents. Appellant asked Eral about the discrepancy with the buyer's name and also inquired why he received $25,000 rather than the $35,000 they had agreed upon. Eral asserted that the discrepancy was a clerical mistake and that the $10,000 shortage was based on outstanding utility bills and taxes. Eral purportedly agreed to give some of the money he earned from his commission to appellant. Eral did not provide the original closing documents to appellant and did not give a portion of his commission to appellant.

{¶ 7} Appellant filed a complaint with the Ohio Department of Commerce's Division of Real Estate and Professional Licensing on May 30, 2007 ("DOC complaint"). In the "Nature of Your Complaint" section, appellant alleged that Eral threatened him with a lawsuit, promised him something that was not in the contract, his agent was not loyal to him or his interests, did not provide an agency disclosure form to him, did not give him copies of paperwork that he signed or requested, lied to him about the transaction, discriminated against him or members of his family, did not deliver his offer or present an offer to him, changed a form or document without his permission, tried to sell the property without his consent, did not tell him that he had a relationship with the other party, and did not follow his instructions. Appellant provided the following details in support of his DOC complaint:

On or around September of 2006, I was in distress and needed to sell my house, so I contacted my brother Eral Foster because he has a realty company. The agreement was for me to get back $35,000 minus any liens & taxes, and the buyer was to pay all other costs involved with the [sale].
On January 18th, Joseph Sheppard * * * and I, sign a purchase agreement that I terminated because the buyer tried to low ball me.
On February 06, 2007, I sign a purchase agreement to sell my house to [Faruq] Adeen. The closing date was set for Feb. 28th. The week of closing [Eral] called me to inform me that the buyer was having trouble with the financing company. I then ask [Eral] if I could get out of the agreement because first, were [sic] not closing on time, and second I have another buyer that willing to pay ten thousand more for the property and one thousand earnest money. Eral's response to me was no! you can't, you have to wait until the buyer financing fell through, plus the buyer still wants the house.
Finally, on March 28, I go to the title company to sign closing documents. (all this time I think I'm still selling my house to [Adeen].) I notice the amount I was getting back was incorrect. The escrow officer quickly tried to explain that some item the amount was increased such as the water bill and county taxes. I didn't stop the transaction then because I didn't know I could and I was going to Eral's office the next day for an explanation, and because he and I had a verbal agreement that he would give me a break on his commission to make up the difference that I was short. When I got home from the title company, I reviewed the papers and realized that not only was the amount I received back was not correct but the buyer was also wrong.
The next day at Eral's office we received the check and Eral's response to why the shortage was the same as the escrow officers and he still insisted that [Adeen] was the buyer of the property. So when I asked about our verbal agreement to give me some money back off his commission he said he was busy right now but to give him some time to see what he could do. Still not satisfied I review all the papers and on the settlement statement the addition cost did not add up to my losses and Joseph Sheppard the first buyer who I did not and do not want to sell my house and [Ockington] the wrong buyer has the same address. Getting nowhere with Eral I consulted an attorney who advised me to ask the title company for a copy of the purchase agree-ment, which I did and discovered that without my consent or knowledge, on March 6, 2007 someone from [Eral's] office Cleveland-Suburban home Realty Co. entered into a new purchase agreement with a new buyer "Scott Ockington" and they forged my signature on this same document, then submitted the agreement to the title company. I tried to resolve this matter with Eral, several times by phone and in person and each time Eral [refused] to get out the original paper work involved with this and now he has no knowledge of our verbal agreement "he doesn't recall having said he was giving me money back from his commission." So this brings me to you.

{¶ 8} The Ohio Real Estate Commission (hereinafter "the Commission") held a hearing on appellant's allegations on April 6, 2011. The issue before the Commission was whether Eral Foster violated R.C. 4735.18 and whether he should be disciplined for any violations. The Commission concluded that Eral Foster violated R.C. 4735.18 during the sale of appellant's house. Specifically, the Commission determined, in relevant part, that Eral committed the following violations:

1. Failed to endeavor to maintain and establish high standards of professional conduct and integrity in dealings with members of the public as well as with fellow licensees and, further, seek to avoid even the appearance of impropriety in any activities as a licensee when after closing was scheduled with purchaser [Adeen], [Eral] prepared, agreed to prepare, presented, agreed to present, and/or executed a purchase contract with a different purchaser, Scott Ockington, for the subject property and closing then went forward with [Ockington] as the purchaser. This constitutes a violation of R.C. 4735.18(A)(6), misconduct, as it incorporates the Canons of Ethics, Section I, Article 1.
* * *
3. Failed to exercise reasonable skill and care when [Eral] allowed [appellant], the seller, to enter into two concurrent purchase contracts for the same property with two differen[t] purchasers in violation of R.C. 4735.18(A)(9) as it incorporates R.C. 4735.62(A).
4. Engaged in misconduct when [Eral] provided purchaser [Ockington] a residential property disclosure form that was previously signed and dated by prior potential purchaser, Joseph Sheppard. This conduct is in violation of R.C. 4735.18(A)(6).
5. Failed to keep complete and accurate records of the transaction for a period of three years from the date of the transaction in violation of R.C. 4735.18(A)(24).
6. Prior to presenting [Adeen's] purchase offer, failed to present and/or have [appellant], the seller of the subject property, sign an agency disclosure statement in violation of R.C. 4735.18(A)(6), misconduct, as that section incorporates R.C. 4735.58(A).

Ohio Real Estate Commission's April 14, 2011 Adjudication Order.

{¶ 9} The sanctions imposed by the Commission were challenged by Eral and Knight and subsequently reversed on procedural grounds. See Ohio Div. of Real Estate & Professional Licensing v. Foster , Cuyahoga C.P. No. CV-11-754631; Ohio Div. of Real Estate & Professional Licensing v. Knight, Cuyahoga C.P. No. CV-11-754470; Ohio Div. of Real Estate v. Knight , 8th Dist. Cuyahoga No. 98160, 2013-Ohio-2896, 2013 WL 3421836.

{¶ 10} On January 15, 2013, in Cuyahoga C.P. No. CV-13-799526, appellant filed a complaint against appellees seeking $10,000 in actual damages based on appellees' fraudulent conduct and willful, wanton, and intentional actions. The parties ultimately agreed to dismiss this case, without prejudice, on July 28, 2015.

{¶ 11} On July 25, 2016, in Cuyahoga C.P. No. CV-16-866624, appellant filed a complaint against appellees seeking $25,000 plus damages based on appellees' fraudulent conduct and willful, wanton, and intentional actions. Appellees filed a motion to dismiss appellant's complaint pursuant to Civ.R. 12(B)(6) on September 30, 2016. The trial court denied appellees' motion to dismiss on November 14, 2016.

{¶ 12} On November 24, 2016, appellees filed an answer and a counterclaim alleging that appellant engaged in frivolous conduct. The trial court referred the case to mediation on December 2, 2016. A mediation hearing was held on February 7, 2017. The parties were unable to resolve the dispute in mediation.

{¶ 13} On May 21, 2017, appellees filed a motion for summary judgment. Therein, appellees argued that they were entitled to summary judgment based on the applicable four-year statute of limitations because appellant had discovered appellees' allegedly fraudulent conduct when he filed his DOC complaint in May 2007. Appellees further argued that appellant's claims were barred by the doctrine of laches.

{¶ 14} Appellant filed a brief in opposition to appellees' summary judgment motion on June 15, 2017. He argued that the documentation that he had available to him in 2007 was not sufficient to put him on notice of appellees' fraudulent conduct or the damages he incurred therefrom.

{¶ 15} Appellees filed a reply brief in support of their summary judgment motion on June 28, 2017. Therein, appellees argued that appellant's deposition testimony and DOC complaint demonstrated that although he may not have known the full extent of the purportedly fraudulent conduct, appellant was aware of the fraud and/or the fact that something was "fishy" as early as 2007.

{¶ 16} On July 28, 2017, the trial court granted appellees' motion for summary judgment. It is from this judgment that appellant filed the instant appeal on August 25, 2017. He assigns two errors for review:

I. The lower court erred in granting summary judgment and not ruling on the case based on the merits.
II. The trial court failed to recognize that genuine issues of material fact remain.

Because appellant's assignments of error are interrelated and both pertain to the trial court's ruling granting appellees' motion for summary judgment, they will be addressed together.

II. Law and Analysis

A. Final Appealable Order

{¶ 17} As an initial matter, we must determine whether the trial court's judgment is a final appealable order. At the time that appellant filed the instant appeal, appellees' counterclaim for frivolous conduct was still pending.

An order of a court is a final appealable order only if the requirements of both Civ.R. 54(B), if applicable, and R.C. 2505.02 are met. Chef Italiano Corp. v. Kent State Univ. [44 Ohio St.3d 86, 541 N.E.2d 64 (1989),] syllabus. Moreover, an order which adjudicates one or more but fewer than all the claims or the rights and liabilities of fewer than all the parties must meet the requirements of R.C. 2505.02 and Civ.R. 54(B) in order to be final and appealable. Noble v. Colwell , [44 Ohio St.3d 92, 540 N.E.2d 1381 (1989),] syllabus. An order fully adjudicating a claim and accompanied by a Civ.R. 54(B) determination and direction is final and appealable despite the fact that a counterclaim remains pending. Id. at 94 [540 N.E.2d 1381].
R.C. 2505.02 in relevant part defines a final order as "an order affecting a substantial right in an action which in effect determines the action and prevents a judgment." Id. at 88 [541 N.E.2d 64].

Philpott v. Ernst & Whinney , 8th Dist. Cuyahoga No. 61203, 1992 WL 357250, 1-2 (Nov. 25,1992).

{¶ 18} The Ohio Supreme Court has held that where multiple claims and/or parties exist, an order adjudicating one or more but fewer than all the claims or the rights and liabilities of fewer than all of the parties must meet the requirements of both R.C. 2505.02 and Civ.R. 54(B) in order to constitute a final appealable order. Noble at 96, 540 N.E.2d 1381. The court explained that Civ.R. 54(B)"makes mandatory the use of the language, 'there is no just reason for delay.' Unless those words appear where multiple claims and/or multiple parties exist, the order is subject to modification and it cannot be either final or appealable." Id. , quoting Jarrett v. Dayton Osteopathic Hosp., Inc. , 20 Ohio St.3d 77, 486 N.E.2d 99 (1985), and Whitaker-Merrell Co. v. Geupel Constr. Co. , 29 Ohio St.2d 184, 280 N.E.2d 922 (1972), syllabus. The court emphasized, however, that a trial court cannot turn an otherwise nonfinal order into a final appealable order by merely reciting the language required under Civ.R. 54(B). Noble at id. ; Cirino v. Ohio Bur. of Workers' Comp. , 2016-Ohio-8323, 75 N.E.3d 965, ¶ 124 (8th Dist.).

{¶ 19} In the instant matter, the trial court's order granting appellees' motion for summary judgment on appellant's claims for fraud fully adjudicates the action and prevents a judgment against appellees, satisfying the requirements of R.C. 2505.02. The trial court's order also included an express determination of "no just reason for delay," satisfying the requirements set forth in Civ.R. 54(B).

{¶ 20} Accordingly, even though appellees' counterclaim for frivolous conduct remains pending, we find that the trial court's order granting appellees' motion for summary judgment constitutes a final, appealable order because it fully adjudicates appellant's claims and is accompanied by a Civ.R. 54(B) determination and direction. Therefore, we will address the merits of the appeal.

B. Summary Judgment

{¶ 21} In his first and second assignments of error, appellant argues that the trial court erred by granting appellees' motion for summary judgment, rather than adjudicating the merits of the case, because there were genuine issues of material fact.

C. Standard of Review

{¶ 22} Summary judgment, governed by Civ.R. 56, provides for the expedited adjudication of matters where there is no material fact in dispute to be determined at trial. In order to obtain summary judgment, the moving party must show that "(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion when viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party." Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. , 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).

{¶ 23} The moving party has the initial responsibility of establishing that it is entitled to summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). "[I]f the moving party meets this burden, summary judgment is appropriate only if the nonmoving party fails to establish the existence of a genuine issue of material fact." Deutsche Bank Natl. Trust Co. v. Najar , 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, 2013 WL 1791372, ¶ 16, citing Dresher at 293, 662 N.E.2d 264.

{¶ 24} Once a moving party demonstrates no material issue of fact exists for trial and the party is entitled to judgment, the nonmoving party has a duty to come forth with argument and evidence demonstrating a material issue of fact does exist that would preclude judgment as a matter of law. Dresher at id. Summary judgment is appropriate if the nonmoving party fails to meet this burden. Id.

{¶ 25} As noted above, in appellees' motion for summary judgment, appellees argued that appellant's claims were barred by the four-year statute of limitations set forth in R.C. 2305.09 and the doctrine of laches. The trial court granted appellees' motion for summary judgment, concluding that there was no genuine issue as to any material fact. The trial court did not, however, specify whether its determination was based on the statute of limitations, the doctrine of laches, or both.

D. Statute of Limitations

{¶ 26} Appellant argues that the trial court erred in granting appellees' summary judgment motion because a genuine issue of material fact exists regarding when the statute of limitations began to run.

{¶ 27} In their motion for summary judgment, appellees argued that the statute of limitations began to run in May 2007 when appellant filed his DOC complaint because the allegations appellant asserted in his DOC complaint demonstrated that he was aware of appellees' purportedly fraudulent conduct. On the other hand, appellant argues that the statute of limitations began to run in April 2011 when the Commission issued its Adjudication Order. After reviewing the record, we agree with appellees.

{¶ 28} Under Ohio law, a claim for fraud is governed by a four-year statute of limitations. Riddick v. Taylor , 2018-Ohio-171, 105 N.E.3d 446, ¶ 11, citing R.C. 2305.09.

The four-year limitations period in a fraud claim begins to run " 'when the complainant has discovered, or should have discovered in the exercise of reasonable diligence, the alleged fraud.' " Washburn v. Gvozdanovic , 1st Dist. Hamilton No. C-160590, 2017-Ohio-2954 [91 N.E.3d 164], ¶ 17, quoting Vanderlaan v. Pavlik , 1st Dist. Hamilton No. C-150060, 2015-Ohio-5349 [2015 WL 9392747], ¶ 13. A person should be aware that a fraud has occurred when the facts that she or he possesses would alert a reasonable person to the possibility of fraud. Washburn at id. [,] citing Palm Beach Co. v. Dun & Bradstreet, Inc. , 106 Ohio App.3d 167, 171, 665 N.E.2d 718 (1st Dist.1995).

Riddick at ¶ 12.

"[T]his standard does not require the victim of the alleged fraud to possess concrete and detailed knowledge, down to the exact penny of damages, of the alleged fraud; rather, the standard requires only facts sufficient to alert a reasonable person of the possibility of fraud." (Emphasis added.) Palm Beach Co. [at 171, 665 N.E.2d 718]. "[C]onstructive knowledge of facts, rather than actual knowledge of their legal significance, is enough to start the statute of limitations running under the discovery rule." (Emphasis sic.) Flowers v. Walker (1992), 63 Ohio St.3d 546, 549, 589 N.E.2d 1284.

Cundall v. U.S. Bank , 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 30.

{¶ 29} In the instant matter, appellant asserts that he filed his DOC complaint in May 2007 based "upon his suspicion of potential wrongdoing by his brother [Eral]." Appellant's brief at 10. He argues that his suspicion, however, did not constitute a cognizable event that triggered the running of the statute of limitations because he was unable to discover his cause of action for fraud or verify his suspicions of wrongdoing at that time. Appellant argues that the statute of limitations did not begin to run until April 2011, when the Commission issued its Adjudication Order validating his suspicions. Appellant's argument is misplaced and belied by the record.

{¶ 30} The allegations appellant asserted in his May 2007 DOC complaint demonstrate that he had, in fact, discovered appellees' fraudulent conduct and the basis of his injuries at that time. As noted above, appellant alleged in his DOC complaint that Eral was not loyal to him or his interests, did not provide him with an agency disclosure form or copies of paperwork that he signed or requested, lied to him about the transaction, changed a form or document without his permission, tried to sell the property without his consent, failed to disclose his relationship with another party, and failed to follow his instructions. Appellant asserted that he examined the closing documents and noticed that the amount he was receiving from the transaction was incorrect and that the buyer's name had been changed. Appellant alleged that he had a verbal agreement with Eral under which Eral agreed to give him some of the money he earned from his commission, and that Eral refused to honor this verbal agreement. Appellant discovered that a new purchase agreement had been executed without his knowledge or consent, and that his name had been forged on the new purchase agreement.

Appellant inquired about these discoveries by contacting Eral, consulting with an attorney, and filing his DOC complaint.

{¶ 31} In his appellate brief, appellant acknowledges that in 2007, he "did note some discrepancies in the paperwork" and he "knew that he received $10,000.00 less than what he was promised by his brother [Eral]." Appellant's brief at 10, 12.

{¶ 32} For all of the foregoing reasons, it is evident that appellant did, in fact, discover the alleged fraud prior to the filing of his DOC complaint in May 2007.

{¶ 33} Nevertheless, appellant argues that "[b]ased on the limited amount of information available to him, [he] had an incomplete picture of a cause of action for fraud in 2007." Appellant's brief at 10. Appellant asserts that he did not have the necessary paperwork needed to discover the full extent of his cause of action. Specifically, appellant contends that in 2007, he (1) did not receive the "modification page" that supplemented the purchase agreement and he was not aware that the modification page existed; (2) received a real estate purchase agreement that was fraudulent and contained little information about the sale and appellant's obligations; and (3) received a partial settlement statement that was fraudulent, had not been used to finalize the transaction at closing, and did not contain information about the costs that the buyer and seller were responsible for. Appellant's argument is misplaced.

{¶ 34} The Ohio Supreme Court has recognized that an injured person need not be aware of the full extent of his or her injury before there is a "cognizable event" triggering the statute of limitations. Zimmie v. Calfee, Halter & Griswold , 43 Ohio St.3d 54, 58, 538 N.E.2d 398 (1989), citing Allenius v. Thomas , 42 Ohio St.3d 131, 538 N.E.2d 93 (1989). "Instead, it is enough that some noteworthy event, the cognizable event, has occurred which does or should alert a reasonable person" that a wrong has taken place. Zimmie at 58, 538 N.E.2d 398 ; see Beavercreek Local Schools v. Basic, Inc. , 71 Ohio App.3d 669, 689, 595 N.E.2d 360 (2d Dist.1991) ("an accrual of a cause of action is not delayed until the full extent of the resulting damage is known."); see also Columbus Bd. of Edn. v. Armstrong World , 89 Ohio App.3d 846, 851, 627 N.E.2d 1033 (10th Dist.1993) (the discovery rule states that the cause of action accrues when the plaintiff knew or, in the exercise of reasonable diligence, should have known, of the injury).

{¶ 35} In this case, appellant may not have been aware of the full extent of appellees' fraudulent conduct or his injuries until the Commission issued its April 2011 Adjudication Order, which contained findings of fact and conclusions of law and specified Eral's violations of R.C. 4735.18. However, the record before this court, including appellant's DOC complaint, clearly reflects that appellant had discovered appellees' fraudulent conduct and the basis for his injuries in May 2007.

{¶ 36} Although appellant discovered appellees' fraudulent conduct and the basis for his injuries in May 2007, he inexplicably waited more than five years before filing his original complaint against appellees on January 15, 2013. When appellant filed his original complaint, the four-year statute of limitations had expired. Accordingly, appellant's claims were time-barred, and the trial court properly granted summary judgment in appellees' favor.

E. Laches

{¶ 37} Appellant further argues that the doctrine of laches is inapplicable in this case.

Laches is an equitable defense. It applies where a party fails " 'to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party.' " Connin v. Bailey , 15 Ohio St.3d 34, 35, 472 N.E.2d 328 (1984), quoting Smith v. Smith , 107 Ohio App. 440, 443-444, 146 N.E.2d 454 (8th Dist.1957) ; see also Sobin v. Lim , 8th Dist. Cuyahoga No. 97952, 2012-Ohio-5544, ¶ 17, 984 N.E.2d 335 ("Laches is an equitable doctrine that bars the delayed assertion of claims when the delay has caused circumstances to change so much that it is no longer just to grant the plaintiff's claim.").
The party invoking the doctrine of laches must establish four elements by a preponderance of the evidence: (1) an unreasonable delay or lapse of time in asserting a right; (2) the absence of an excuse for the delay; (3) knowledge, actual or constructive, of the injury or wrong; and (4) prejudice to the other party. Sobin at ¶ 17 ; Portage Cty. Bd. of Comm. v. Akron , 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 81. "Because laches is a component of equity, we review claimed error in the application of the doctrine for an abuse of discretion." Sobin at ¶ 17, citing Payne [v. Cartee , 111 Ohio App.3d 580, 590, 676 N.E.2d 946 (4th Dist.1996) ].

In re S.K.L. , 2015-Ohio-2860, 39 N.E.3d 825, ¶ 38-39 (8th Dist.).

{¶ 38} In this case, based on our determination that appellant's claims were barred by the four-year statute of limitations, we need not consider, as an alternative basis for granting summary judgment in favor of appellees, whether appellant's claims were also barred by the doctrine of laches.

{¶ 39} For all of the foregoing reasons, appellant's assignments of error are overruled.

III. Conclusion

{¶ 40} After thoroughly reviewing the record, and construing the evidence most strongly in appellant's favor as we must under Civ.R. 56, we conclude that reasonable minds can come to but one conclusion, with that conclusion being adverse to appellant. There remains no genuine issue of material fact as to when the statute of limitations period began to run on appellant's claims. Accordingly, appellees were entitled to judgment as a matter of law, and the trial court properly granted appellees' motion for summary judgment.

{¶ 41} Judgment affirmed.

TIM McCORMACK, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR