[Cite as Green v. Shafer, 2014-Ohio-2356.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
EMILY GREEN JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2014 CA 00036
SUZANNE SHAFER
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Canton Municipal
Court, Case No. 2014 CVG 00174
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 2, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JOHN V. BOGGINS No Appearance
1428 Market Avenue North
Canton, Ohio 44714
Stark County, Case No. 2014 CA 00036 2
Wise, J.
{¶1}. Appellant Emily Green appeals the decision of the Canton Municipal
Court, Stark County, which found, in a forcible entry and detainer action, that a 2008
land installment contract between Appellant Green and Appellee Suzanne Shafer
remained in effect. The relevant facts leading to this appeal are as follows.
{¶2}. Appellant is the owner of a residential property located at 809 Clarendon
Avenue NW in Canton. On June 26, 2008, appellant (as vendor) and appellee (as
vendee) entered into a land installment contract regarding the Clarendon Avenue
property. Said land contract was duly recorded in Stark County on July 28, 2008. Under
the terms of the land contract, appellee was to obtain a mortgage loan, on or before
August 1, 2012, in an amount sufficient to pay off the balance due.
{¶3}. Appellee was thereafter apparently unable to obtain the necessary
mortgage financing. Accordingly, in early June 2013, appellant and appellee signed a
written agreement to terminate the land contract. Appellant's father, Attorney Lemuel
Green, notarized the agreement to terminate; however, the acknowledgement is dated
June 7, 2013, even though the agreement is dated the next day, June 8, 2013.
{¶4}. Appellant and appellee also entered into a new rental agreement during
the aforesaid events. This agreement, dated June 7, 2013, set up monthly rental
payments from appellee to appellant of $400.00, payable on the eighth day of each
month.
{¶5}. On January 10, 2014, appellant brought a forcible entry and detainer
action in the Canton Municipal Court, alleging non-payment of rent under the terms of
the new rental agreement of June 7, 2013.
Stark County, Case No. 2014 CA 00036 3
{¶6}. The matter proceeded to an evidentiary hearing before a magistrate on
January 27, 2014. In her defense, appellee contended that the land contract had not
been properly terminated and, because the land contract was by then more than five
years old, appellant would have to pursue foreclosure as required by R.C. 5313.07.
{¶7}. The magistrate issued a written decision on February 4, 2014. The
magistrate therein found in part as follows: "Parties had land contract agreement.
Subsequently, parties entered into a termination of said contract. However, evidence
presented indicated that dates are wrong and Plaintiff's father notarized said document.
Further, Plaintiff did not appear. *** The Court is not convinced that the parties
effectively terminated their land contract. The 'termination' is deficient in many respects.
Parties signed said document on the 8th day of June '13 and yet notarized on 6/7/13
and filed 6/7/13."
{¶8}. The magistrate therefore denied appellant a writ of restitution and
dismissed the action.
{¶9}. On February 10, 2014, appellant filed an objection to the decision of the
magistrate. On March 3, 2013, the trial court adopted the magistrate's decision.
{¶10}. Appellant filed a notice of appeal on March 9, 2014. She herein raises the
following two Assignments of Error:
{¶11}. “I. THE LOWER COURT ERRED AS A MATTER OF LAW IN FINDING
INEFFECTIVE A WRITTEN TERMINATION OF A LAND INSTALLMENT CONTRACT
SIGNED BY BOTH THE VENDOR AND THE VENDEE.
{¶12}. “II. THE LOWER COURT ERRED IN FAILING TO FIND THE APPELLEE
WAIVED ANY CLAIMS UNDER A LAND INSTALLMENT CONTRACT WHEN SHE
Stark County, Case No. 2014 CA 00036 4
SIGNED A TERMINATION OF THE CONTRACT AND ENTERED INTO AND
PARTIALLY PERFORMED A NEW RENTAL AGREEMENT.”
{¶13}. We initially note this case comes to us on the accelerated calendar.
App.R. 11.1(E), which governs the nature of the determination and judgment on appeal
in accelerated calendar cases, provides, in pertinent part, that "*** [i]t shall be sufficient
compliance with App.R. 12(A) for the statement of the reason for the court's decision as
to each error to be in brief and conclusionary form. ***." This appeal shall be considered
in accordance with the aforementioned rule. See State v. Phillips, 5th Dist. Stark No.
2013CA00160, 2014-Ohio-597, ¶ 5.
{¶14}. Furthermore, we note appellee has not filed a brief in response to this
appeal. App.R. 18(C) states in pertinent part: “If an appellee fails to file the appellee's
brief within the time provided by this rule, or within the time as extended, the appellee
will not be heard at oral argument * * * and in determining the appeal, the court may
accept the appellant's statement of the facts and issues as correct and reverse the
judgment if appellant's brief reasonably appears to sustain such action.”
I.
{¶15}. In her First Assignment of Error, appellant argues the trial court erred in
finding the parties' written termination of their land contract to be ineffective. We agree.
{¶16}. R.C. 5301.331 requires that the cancellation of a recorded land contract
by a separate written instrument be acknowledged "as provided in section 5301.01 of
the Revised Code." However, it is well-established in Ohio that a defectively executed
conveyance of an interest in land is valid as between the parties thereto, in the absence
of fraud. See Swallie v. Rousenberg, 190 Ohio App.3d 473, 942 N.E.2d 1109, 2010-
Stark County, Case No. 2014 CA 00036 5
Ohio-4573, ¶ 33, quoting Citizens National Bank Zanesville v. Denison (1956), 165 Ohio
St. 89, 95, 133 N.E.2d 329. By analogy, in Stanick v. Wright (1935), 19 Ohio Law Abs.
597, the Second District Court of Appeals stated that an affidavit of a mortgagee to a
chattel mortgage, duly acknowledged before a notary public, remained effective even
though "the date may be in error." Id. at 599.
{¶17}. In the case sub judice, Attorney Green, appellant's father, testified before
the magistrate that the date discrepancy in the notary acknowledgment at issue was
attributable to "simple negligence." See Tr. at 14. Appellee offered no evidence of fraud
or that Attorney Green had any interest in his daughter's ownership or use of the
Clarendon Avenue property.
{¶18}. In light of the foregoing, and pursuant to App.R. 18(C), we find the trial
court committed reversible error in finding the land contract had not been properly
terminated as between the parties and in denying appellant the remedy of a writ of
restitution concerning said property.
{¶19}. Appellant's First Assignment of Error is sustained.
II.
{¶20}. In her Second Assignment of Error, appellant contends the trial court erred
in failing to find appellee had waived her claims under the land contract by entering into
a new rental agreement.
{¶21}. Based on our holding as to appellant's First Assignment of Error, we find
the issues in regard to appellant's Second Assignment of Error to be moot.
Stark County, Case No. 2014 CA 00036 6
{¶22}. For the foregoing reasons, the judgment of the Canton Municipal Court of
Stark County, Ohio, is hereby reversed and remanded for further proceedings
consistent with this opinion.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/d 0513
Stark County, Case No. 2014 CA 00036 7
Green v. Shafer
Combined Opinion