I concur with the majority's dismissal of the appeal as raised by appellant-Vassilakis and appellant-Economou. I must respectfully dissent, however, from the opinion of the majority which affirms the judgment of the trial court and orders specific performance on the part of appellant-Xifaras.
Appellant-Xifaras, through her first and second assignments of error, argues that the trial court erred in granting the motion for summary judgment which ordered specific performance on the part of appellant-Xifaras. Specifically, appellant-Xifaras argues that the trial court erred as a matter of law by entering summary judgment on behalf of the appellee-Shaheen since: (1) the failure of appellant-Xifaras and former appellant-Vassilakis to convey title to the two parcels of real estate to the trustee resulted in a failed trust which prevented the intended trustee from delivering title to appellee-Shaheen; and (2) appellant-Xifaras was not a party to the real estate purchase agreement. Thus, the trial court was prohibited from ordering specific performance of the real estate purchase agreement against appellant-Xifaras.
Civ.R. 56(C), which guides a trial court in its disposition of a motion for summary judgment, provides in pertinent part that:
"* * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgmentas a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * *" (Emphasis added.)
Pursuant to the application of Civ.R. 56(C), a trial court may grant a motion for summary judgment only where there exists no genuine issues of material fact for the trier of fact and the moving party is entitled to judgment as a *Page 320 matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 24 O.O.3d 1, 433 N.E.2d 615; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267. In addition, a party which opposes a motion for summary judgment may not rest upon the denials or allegations of his pleadings but must affirmatively demonstrate the existence of genuine issues of material fact in order to prevent the granting of a motion for summary judgment. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 526 N.E.2d 798.
In the case sub judice, appellant-Xifaras argues that appellee-Shaheen was not entitled as a matter of law to specific performance, since a valid inter vivos trust did not exist which vested trustee-Economou with the authority to sell the two parcels of real property to appellee-Shaheen.
In order to create a valid inter vivos trust, three requirements must be met: (1) intention to create a trust; (2) declaration of a trust; and (3) actual conveyance or transfer ofproperty to the trust.
"One of the cardinal elements of a valid express trust is a trust res. In re Estate of Ternansky (App. 1957), 76 Ohio Law Abs. 203 [4 O.O.2d 329, 141 N.E.2d 189]. The trustee is under a duty to preserve and protect the corpus of the trust. In reEstate of Fiorelli (App. 1956), 74 Ohio Law Abs. 38 [134 N.E.2d 576]; Bd. of Edn. v. Unknown Heirs of Aughinbaugh (1955),99 Ohio App. 463, 471 [59 O.O. 267, 271, 134 N.E.2d 872, 878]. However, a primary requirement is that the trustee must first be vested with title to the trust res. The Supreme Court stated inFirst Natl. Bank of Cincinnati v. Tenney (1956), 165 Ohio St. 513,518 [60 O.O. 481, 483, 138 N.E.2d 15, 18], that `* * * [i]n order for a trust to be a trust, the legal title of the res mustimmediately pass to the trustee * * *.' (Emphasis added.) In creating the trust, there must be a declaration of trust, accompanied with an intention to create a trust, followed by an actual conveyance or transfer of property." First Natl. Bank ofMiddleton v. Gregory (1983), 13 Ohio App.3d 161, 163, 13 OBR 195, 197, 468 N.E.2d 739, 741. See, also, Cleveland Trust Co. v.White (1937), 58 Ohio App. 339, 9 O.O. 239, 16 N.E.2d 588.
Herein, the inter vivos trust as contemplated by appellant-Xifaras and former appellant-Vassilakis clearly met the first two requirements of (1) an intention to create a trust; and (2) declaration of the trust. The record, however,clearly fails to demonstrate that actual conveyance or transferof the two parcels of real property was made so as to vesttrustee-Economou with title in the trust res. Absent conveyance or transfer of title to the trust res to trustee-Economou, it is patently evident that the inter vivos trust failed, thus preventing trustee-Economou from possessing the ability to transfer title to the two parcels of real property. In addition, the failure of the inter vivos trust prevented the appellee-Shaheen from pursuing the remedy of *Page 321 specific performance against trustee-Economou. Moeller v. Poland (1909), 80 Ohio St. 418, 89 N.E. 100.
Thus, the trial court erred in granting summary judgment on behalf of appellee as a matter of law, since the inter vivos trust failed, which in turn prevented the trustee-Economou from transferring title to appellee-Shaheen. In addition, the trial court was without authority to order specific performance on the part of appellant-Xifaras, since she was not a party to the original real estate purchase agreement. Therefore, I find that the first and second assignments of error of appellant-Xifaras are well taken.
Appellant-Xifaras, in her third assignment of error, argues that the trial court erred in granting summary judgment on behalf of appellee-Shaheen as based upon the doctrine of estoppel. Specifically, the appellant argues that she was not estopped from asserting her interest in the two parcels of real property.
The Supreme Court of Ohio, with regard to the concept of equitable estoppel, has opined that:
"The purpose of equitable estoppel is to prevent actual or constructive fraud and to promote the ends of justice. It is available only in defense of a legal or equitable right or claim made in good faith and should not be used to uphold crime, fraud, or injustice. Heckler v. Community Health Services (1984), 467 U.S. 51, 59 [104 S.Ct. 2218, 2223, 81 L.Ed.2d 42,51]; Lex Mayers Chevrolet Co. v. Buckeye Finance Co. (1958),107 Ohio App. 235, 237, 8 O.O.2d 171, 173, 153 N.E.2d 454, 456, affirmed (1959), 169 Ohio St. 181, 8 O.O.2d 154, 158 N.E.2d 360. The party claiming the estoppel must have relied on conduct of an adversary in such a manner as to change his position for the worse and that reliance must have been reasonable in that the party claiming estoppel did not know and could not have known that its adversary's conduct was misleading. Heckler, supra [467 U.S.], at 59 [104 S.Ct. at 2223, 81 L.Ed.2d at 51]." Ohio StateBd. of Pharmacy v. Frantz (1990), 51 Ohio St.3d 143, 145,555 N.E.2d 630, 633.
Herein, an application of the doctrine of equitable estoppel is not mandated, since it is not necessary to prevent actual or constructive fraud or further promote the ends of justice. As dealt with in the first and second assignments of error as raised by appellant-Xifaras, a valid inter vivos trust was not created nor was appellant-Xifaras a party to the real estate purchase agreement. Appellee-Shaheen, who attempted to apply the doctrine of estoppel, did not rely upon the conduct of appellant-Xifaras. Thus, as a matter of law, estoppel wasnot available to appellee-Shaheen and the third assignment of error as raised by appellant-Xifaras should be well taken. *Page 322
Therefore, the judgment of the trial court which granted summary judgment and specific performance against appellant-Xifaras should be reversed.