Fifth Third Mtge. Co. v. Perry

[Cite as Fifth Third Mtge. Co. v. Perry, 2016-Ohio-5679.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY

FIFTH THIRD MORTGAGE COMPANY, :

Plaintiff-Appellee, :
Case No. 15CA22
v. :
DECISION AND
KENNETH L. PERRY, ET AL., : JUDGMENT ENTRY

Defendants-Appellants. : RELEASED 08/30/2016

APPEARANCES:

James P. Connors, Law Offices of James P. Connors, Columbus, Ohio, for appellant Kenneth L.
Perry.

Stacy A. Cole, Harry W. Cappel, and John C. Greiner, Graydon Head & Ritchey LLP,
Cincinnati, Ohio, for appellees Fifth Third Mortgage Company and Fifth Third Bank.

PER CURIAM.

{¶ 1} Kenneth L. Perry (“Perry”) appeals, for the second time, a decision and judgment

entry of the Pickaway County Common Pleas Court, which granted summary judgment in favor

of Fifth Third Mortgage Company (“Fifth Third Mortgage”) on its foreclosure complaint; and in

favor of Fifth Third Mortgage and Fifth Third Bank on Perry’s remaining counterclaims/new-

party claims.

{¶ 2} This case was previously before this Court in 2013 after the trial court granted

summary judgment in favor of Fifth Third Mortgage on its foreclosure complaint and in favor of

Fifth Third Mortgage and Fifth Third Bank on Perry’s counterclaims/new-party claims. See Fifth

Third Mortgage Co. v. Perry, 4th Dist. Pickaway No. 12CA13, 2013-Ohio-3308 (“Perry I”). In
Pickaway App. No. 15CA22 2

Perry I, this Court affirmed the judgment in part, reversed the judgment in part, and remanded

the case to the trial court. Id. at ¶ 75. Specifically, we concluded that summary judgment in favor

of Fifth Third Mortgage on its foreclosure complaint was improper because an issue of fact

remained as to whether the parties had entered into an oral agreement modifying the terms,

timing, and mode of payment. Id. at ¶¶ 34-36. We also ruled that issues of fact precluded

summary judgment in favor of Fifth Third Mortgage and Fifth Third Bank on Perry’s breach of

contract and negligent misrepresentation counterclaims/new-party claims. Id. at ¶ 73. However,

we did affirm the trial court’s award of summary judgment in favor of Fifth Third Mortgage and

Fifth Third Bank on all of Perry’s other counterclaims/new-party claims. Id.

{¶ 3} On remand, the trial court has once again granted summary judgment in favor of

Fifth Third Mortgage and Fifth Third Bank. Faced with a second Motion for Summary

Judgment, the trial court has concluded that Fifth Third Mortgage and Fifth Third Bank are

entitled to judgment as a matter of law based on the Ohio Supreme Court’s 2014 decision in

FirstMerit Bank N.A. v. Inks, 138 Ohio St.3d 384, 2014-Ohio-789, 7 N.E.3d 1150.

{¶ 4} In the case sub judice, Perry contends that the trial court once again erred by

granting Fifth Third Mortgage and Fifth Third Bank summary judgment on all claims, defenses,

and issues. Specifically, he contends that the trial court erred by failing to apply the law of the

case doctrine; and that this case should be remanded to the trial court for further proceedings. We

disagree. Intervening decisions from the Ohio Supreme Court provide an exception to the law of

the case doctrine, and we conclude that Inks is an intervening decision that controls this case.

Accordingly, we affirm the decision and judgment entry of the trial court.

I. Facts and Procedural Posture
Pickaway App. No. 15CA22 3

{¶ 5} On July 15, 2004, Richard A. Perry and Audrey M. Perry, Perry’s parents, executed

a promissory note in favor of The Equitable Mortgage Corporation in the principal amount of

$77,650.00. The note was secured by a mortgage on the property located at 9438 U.S. Route 62

in Orient, OH (the “property”). Eventually the note and mortgage were assigned to Fifth Third

Mortgage.

{¶ 6} On June 4, 2005, Audrey M. Perry died and her interest in the property was

transferred to Richard A. Perry by Warranty Deed dated July 27, 1988. In February 2008,

Richard Perry entered into a Loan Modification Agreement (the “loan modification”) with Fifth

Third Mortgage, which increased the principal balance on the promissory note to $86,882.96.

{¶ 7} On October 9, 2009, Richard Perry passed away. A short time later appellant Perry

took title to the property by a transfer on death deed. Both parties agree that while Perry is the

current titleholder of the property, he never assumed the note, loan modification, or mortgage by

any written agreement. According to the record, no probate estate was opened following Richard

Perry’s death.

{¶ 8} From here, the parties’ portrayal of the facts varies significantly.

{¶ 9} According to Perry, following his father’s death he continued to make payments on

the debt, but eventually fell behind on the obligations. Once the debt became delinquent, Perry

contends that Fifth Third began to threaten legal action.

{¶ 10} In late June 2010, Perry says that Fifth Third contacted him regarding a residential

loan assistance program that was being offered from a branch office in Grove City, Ohio. Perry

purportedly accepted the invitation, and in July 2010 he allegedly met with a Fifth Third loan
Pickaway App. No. 15CA22 4

officer.1 At the meeting, Perry contends that he reached an oral agreement with Fifth Third,

under which Fifth Third would withhold from foreclosing the mortgage conveyed by his father,

if he would pay a lump sum of $5,000.00 and agree to a modified payment plan on his father’s

debt.2

{¶ 11} According to Perry, he paid the $5,000.00 at the July 2010 meeting and was told

by Kathy/Roberts that an accounting and new loan payment coupon book would be sent to him

in several months; and that once he received the coupon payment book he should resume

payments. Perry was allegedly told that the delay in time was due to the popularity of the

program.

{¶ 12} Perry claims that the new loan payment book arrived in November 2010. Perry

made his first payment of $1,114.72 pursuant to the new coupon book on November 18, 2010,

well in advance of the December 1 due date. Unbeknownst to Perry, however, Fifth Third

Mortgage had filed its foreclosure complaint two days earlier, on November 16, 2010. Fifth

Third returned the November 18 payment to Perry. Perry attempted to make a second payment

that was due on January 1, 2011, but Fifth Third again refused payment.

{¶ 13} Perry contends that he never received an accounting and never received any

notices, warnings, or other written materials between the July 2010 meeting and receipt of the

payment coupon book in November 2010.

{¶ 14} The Fifth Third entities convey a significantly different version of the events.

1
In Perry I, this loan officer was referred to as “Kathy”. However, further discovery has revealed this individual to
be “Nora Roberts”.
2
Under the new payment plan purportedly reached by the parties, Perry claims that the exact monthly amount due
was undetermined, but that it was to increase significantly from the $830.00 per month that was currently due.
Pickaway App. No. 15CA22 5

{¶ 15} The Fifth Third entities, appellees in the instant case, claim that following the

death of his father, Perry held himself out as the executor of the Richard Perry estate. The Fifth

Third entities claim that after the loan payments fell behind, Perry contacted them about catching

up on the debt. According to them, on or about June 10, 2010, Perry discussed the loan with Fifth

Third Mortgage and agreed to pay $5,000.00 by June 30, 2010, and an additional $4,143.92 in

July 2010 to bring the account current. It appears that in exchange for the payments, Fifth Third

agreed to send a forbearance proposal. To that end, the Fifth Third entities contend that they sent

a proposed forbearance agreement on June 14, 2010, addressed to the Estate of Richard A. Perry,

permitting a single monthly payment to be skipped. The forbearance proposal was never signed

or returned. The Fifth Third entities deny that any other forbearance proposals were discussed,

and deny ever entering any agreement or making any representation, in writing or otherwise, to

modify the loan.

{¶ 16} The Fifth Third entities agree that a payment of $5,000.00 posted to the loan

account on July 15, 2010, but contend that the payment covered the existing loan payments and

fees through June 2010. Fifth Third also agrees that the next payment received from appellant

was on November 18, 2010, after Fifth Third Mortgage had instituted the foreclosure action. The

Fifth Third entities also agree that it returned the November payment. They allege, however, that

they sent numerous letters of default to the Richard Perry Estate beginning in August of 2010; to

the same address that the coupon book was sent.

{¶ 17} On November 16, 2010, Fifth Third Mortgage filed its Complaint in Foreclosure

with the Pickaway County Common Pleas Court. Named as defendants were Kenneth L. Perry;

Jane Doe, Unknown Spouse of Kenneth L. Perry; and Kemba Columbus Credit Union.
Pickaway App. No. 15CA22 6

Ultimately Fifth Third Mortgage sought, and the trial court granted, an order adding the

Pickaway County Treasurer as a party defendant.

{¶ 18} On March 21, 2011, Perry filed an Answer, Counterclaims, and New Party

Claims. Perry brought counterclaims and new-party claims against Fifth Third Mortgage and

new-party defendant Fifth Third Bank for breach of contract, conversion, civil conspiracy, abuse

of process, fraud, negligent misrepresentation, and violations of the Ohio Consumer Sales

Practices Act.

{¶ 19} After responding to the counterclaims and new-party claims, on August 19, 2011,

the Fifth Third entities filed their first Motion for Summary Judgment seeking judgment on Fifth

Third Mortgage’s foreclosure claim and on Perry’s counterclaims and new-party claims. Perry

filed his Memorandum Contra, along with his own Cross Motion for Summary Judgment on

September 21, 2011. In his Cross Motion for Summary Judgment, Perry sought judgment on his

counterclaims and new-party claims, as well as the foreclosure claim asserted by Fifth Third

Mortgage. Both motions were fully briefed by October 17, 2011.

{¶ 20} The trial court granted the Fifth Third entities’ first Motion for Summary

Judgment and denied Perry’s Cross Motion for Summary Judgment by an order dated January 3,

2012. The Summary Judgment Order specifically found that Fifth Third Mortgage was entitled to

summary judgment on its foreclosure claim and that the Fifth Third entities were entitled to

summary judgment on Perry’s counterclaims and new-party claims. The Summary Judgment

Order further directed counsel for Fifth Third Mortgage to submit a foreclosure decree, to be

entered by separate order.
Pickaway App. No. 15CA22 7

{¶ 21} Ultimately, the first Entry Granting Summary Judgment and Decree in

Foreclosure was entered on May 17, 2012, and Perry filed a timely notice of appeal (i.e. Perry I).

{¶ 22} In Perry I, we affirmed the trial court’s judgment in part, reversed the judgment in

part, and remanded the case for further proceedings. See Perry I at ¶ 75. Ultimately we

determined, inter alia, that Fifth Third Mortgage was not entitled to summary judgment on its

foreclosure complaint because an issue of fact existed as to whether the parties had reached an

oral agreement modifying the terms, timing, and mode of payment. Id. at ¶ 36. Specifically, we

noted that: “Whether the agreement is characterized as a modification agreement, forbearance

agreement, assumption of mortgage, or otherwise; if any such agreement exists, as asserted by

[Perry], than the mortgage would not have been in default and Fifth Third would not have been

entitled to foreclose on the property.” Id. In reaching this conclusion, we also rejected the Fifth

Third entities’ argument that if any oral agreement existed, it violated the Statute of Frauds,

noting as follows:

While [the Fifth Third entities] deny ever reaching an agreement with

[Perry], they assert that even if one exists it fails to comply with the Statute of

Frauds, and thus is invalid as a matter of law. Under the Statute of Frauds, an

agreement concerning an interest in real property is unenforceable unless it is

reflected in a signed writing containing all the essential terms of the agreement

and signed by the party to be charged. R.C. 1335.04 and 1335.05. Oral

agreements which extend the time of payment due under a mortgage debt are not

barred by the Statute of Frauds, however, since such an agreement does not take

away or confer any interest in land, but merely determines when the installments

of the mortgage indebtedness become due. See Nonamaker v. Amos, 73 Ohio St.
Pickaway App. No. 15CA22 8

163, 172, 76 N.E. 949 (1905); Negley v. Jeffers, 28 Ohio St. 90, 100 (1875); Jones

v. Seven Hills Farm, Inc., 4th Dist. No. 1977, 1991 WL 224159, *4 (Oct. 30,

1991.); Midfirst Bank v. Biller, 3rd Dist. No. 13-10-13, 2010-Ohio-6067, ¶ 21, fn.

4. This is consistent with the general rule that oral agreements respecting the

payment schedule for an executed conveyance of land are unaffected by the

Statute of Frauds. Jones at *4; Pettett v. Cooper, 62 Ohio App. 377, 383, 24

N.E.2d 299 (1st Dist.1939).

Moreover, an oral assumption of a mortgage is not within the Statute of

Frauds. See Cleveland Trust Co. v. Elbrecht, 137 Ohio St. 358, 361-362, 30

N.E.2d 433 (1940). “[S]uch a contractual obligation is not within the statute of

frauds for the promise to pay the mortgage does not concern an interest in land

nor constitute an agreement to answer for the debt, default or miscarriage of

another.” Id. at 362, 30 N.E.2d 433.

In this case, the agreement, if one was in fact made between the parties,

does not affect an interest in land. It merely structured new payment amounts and

deadlines so that [Perry] could avoid foreclosure. As such, the alleged agreement

was not required to be reduced to writing, and is not barred by the Statute of

Frauds.

Id. at ¶¶ 39-41. Finally, in Perry I, we also determined that Perry’s counterclaims/new-party

claims for breach of contract and negligent misrepresentation should not have been disposed via

summary judgment because issues of fact remained regarding whether the parties had entered

into a contract or discussed new payment terms. Id. at ¶¶ 50-51, 59. However, we did affirm the
Pickaway App. No. 15CA22 9

trial court’s grant of summary judgment in favor of the Fifth Third entities on Perry’s remaining

counterclaims/new-party claims. Id. at ¶¶ 52-58, 60-67, 73.

{¶ 23} The Fifth Third entities filed a Motion for Reconsideration of our decision in

Perry I. Through the Motion for Reconsideration, the Fifth Third entities argued that we

improperly interpreted, construed, and applied Ohio law; and again asserted that the Statute of

Frauds barred any purported oral agreement of the parties and that they were entitled to judgment

as a matter of law. This Court denied the Motion for Reconsideration by Entry filed on

September 17, 2013. In that Entry we concluded that in addition to the reasons stated in the

Perry I decision and judgment entry, the Statute of Frauds arguably did not apply because there

existed evidence that the Fifth Third entities had “engaged in subsequent conduct acknowledging

the alleged modification or its mutual assent to the modification”.

{¶ 24} On remand, the Fifth Third entities filed a second Motion for Summary Judgment

on May 20, 2014. Among other things, the Fifth Third entities claimed that Perry’s primary

defense and remaining counterclaims/new-party claims – based on the existence of an oral

agreement modifying the terms, timing, and mode of payment – were barred as a matter of law

by the Statute of Frauds according to the Ohio Supreme Court’s decision in Inks, supra, which

had been decided on March 4, 2014. The Fifth Third entities also argued, in the alternative, that

if the parties were permitted to contract orally, the contract lacked in essential terms and was not

enforceable. Perry filed a Memorandum Contra the Second Motion for Summary Judgment on

June 5, 2014; and the Fifth Third entities filed a Reply Memorandum in support of the motion on

June 12, 2014. The trial court filed a Decision granting the motion on June 17, 2015. The

Decision states, inter alia, that the Inks decision “controls the case sub judice” and is an

“intervening, precedent setting decision, overturning the decision of [Perry I]”. (Emphasis sic.)
Pickaway App. No. 15CA22 10

{¶ 25} Perry filed a Motion for Reconsideration of the June 17 Decision. However, on

July 9, 2015, the trial court issued its Entry Granting Summary Judgment and Decree in

Foreclosure in favor of the Fifth Third entities on all claims, defenses, and issues. The Entry also

included a single sentence denial of Perry’s Motion for Reconsideration. Perry then filed a timely

Notice of Appeal indicating his intent to appeal from the June 17 Decision and July 19 Entry.

II. Assignments of Error

{¶ 26} On appeal, Perry raises the following assignments of error for review:

First Assignment of Error:

The trial court erred by granting summary judgment for a second time on remand
to Fifth Third Mortgage Company and Fifth Third Bank in an Entry Granting
Summary Judgment and Decree in Foreclosure filed on July 9, 2015.
Second Assignment of Error:

The trial court erred by denying appellant Kenneth Perry’s motion for
reconsideration by its Entry Granting Summary Judgment and Decree in
Foreclosure filed on July 9, 2015.
Third Assignment of Error:

The trial court erred by granting summary judgment to Fifth Third Mortgage
Company and Fifth Third Bank in a Decision filed on June 17, 2015.
Fourth Assignment of Error:

The trial court erred by failing and refusing to follow this court’s mandate on
remand from its decision in Fifth Third Mortgage Co. v. Perry, 2013-Ohio-3308.

III. Law and Analysis

{¶ 27} The issues raised by all of Perry’s assignments of error are so interrelated that this

Court chooses to address them together. Through these assignments of error, Perry contends that

the trial court erred when it granted summary judgment in favor of Fifth Third Mortgage on its
Pickaway App. No. 15CA22 11

foreclosure action; and in favor of Fifth Third Mortgage and Fifth Third Bank on his remaining

counterclaims and new-party claims for breach of contract and negligent misrepresentation.

A. Summary Judgment Standard of Review

{¶ 28} We review the trial court’s decision on a motion for summary judgment de novo.

Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Accordingly, we

afford no deference to the trial court’s decision and independently review the record and the

inferences that can be drawn from it to determine whether summary judgment is appropriate.

Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464, ¶

12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35, 2009-Ohio-3126, ¶ 16.

{¶ 29} Summary judgment is appropriate only when the following have been established:

(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to

judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and

that conclusion is adverse to the nonmoving party. Civ.R. 56(C); DIRECTV, Inc. v. Levin, 128

Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15. In ruling on a motion for summary

judgment, the court must construe the record and all inferences therefrom in the nonmoving

party’s favor. Civ.R. 56(C). The party moving for summary judgment bears the initial burden to

demonstrate that no genuine issues of material fact exist and that they are entitled to judgment in

their favor as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264

(1996). To meet its burden, the moving party must specifically refer to “the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence,

and written stipulations of fact, if any, timely filed in the action,” that affirmatively demonstrate

that the nonmoving party has no evidence to support the nonmoving party’s claims. Civ.R.
Pickaway App. No. 15CA22 12

56(C); Dresher at 293. Moreover, the trial court may consider evidence not expressly mentioned

in Civ.R. 56(C) if such evidence is incorporated by reference in a properly framed affidavit

pursuant to Civ.R. 56(E). Discover Bank v. Combs, 4th Dist. Pickaway No. 11CA25, 2012-Ohio-

3150, ¶ 17; Wagner v. Young, 4th Dist. Athens No. CA1435, 1990 WL 119247, *4 (Aug. 8,

1990). Once that burden is met, the nonmoving party then has a reciprocal burden to set forth

specific facts to show that there is a genuine issue for trial. Dresher at 293; Civ.R. 56(E).

B. The Law of the Case Doctrine

{¶ 30} Perry contends that this Court’s decision in Perry I and our subsequent denial of

the application for reconsideration constitutes the law of the case; and thus, the trial court erred

by granting summary judgment on remand and by deciding legal issues which had been

previously determined. Specifically, Perry contends that our previous decisions unequivocally

held that the Statute of Frauds did not operate to bar his defense and claims of a purported oral

agreement between the parties concerning the payment amounts and deadlines. Thus, Perry

argues that the trial court acted beyond its authority by re-considering the Statute of Frauds issue

in the second Motion for Summary Judgment.

{¶ 31} In Nolan v. Nolan, 11 Ohio St.3d 1, 462 N.E.2d 410 (1984), the Ohio Supreme

Court discussed the law of the case doctrine in relation to a trial court's failure to execute a

remand mandate given by a reviewing court. Specifically, Nolan involved a trial court's complete

restructuring of a real estate settlement on remand, rather than limiting its action on remand to

making findings regarding the right of occupancy of the marital home, as instructed by the

reviewing court. Nolan at 2. In response, the Ohio Supreme Court held that “[a]bsent

extraordinary circumstances, such as an intervening decision by the Supreme Court, an inferior
Pickaway App. No. 15CA22 13

court has no discretion to disregard the mandate of a superior court in a prior appeal in the same

case.” Id. at syllabus. In reaching its decision, the Nolan court discussed the law of the case

doctrine as follows: “* * * [T]he doctrine provides that the decision of a reviewing court in a

case remains the law of that case on the legal questions involved for all subsequent proceedings

in the case at both the trial and reviewing levels.” Id. at 3. The Nolan court further noted that

while the rule will not be applied to achieve unjust results, the application of the rule is necessary

“to ensure consistency of results in a case” as well as “to avoid endless litigation by settling the

issues, and to preserve the structure of superior and inferior courts as designed by the Ohio

Constitution.” Id.; citing Gohman v. St. Bernard, 111 Ohio St. 726, 730–731, 146 N.E. 291

(1924) (reversed on other grounds), and State ex rel. Potain v. Mathews, 59 Ohio St.2d 29, 32,

391 N.E.2d 343 (1979).

C. Inks is an Intervening Decision that Creates an Exception to the Law of the Case

Doctrine

{¶ 32} The Fifth Third entities claim that the law of the case doctrine does not apply in

this instance because Inks is dispositive of the Statute of Frauds issue and was decided by the

Ohio Supreme Court on March 4, 2014, after this Court had issued our decision in Perry I. Thus,

the Fifth Third entities contend that Inks is an “intervening decision” by a superior court,

justifying the trial court’s decision to disregard our prior holdings in Perry I. See Nolan at

syllabus (implying that “extraordinary circumstances, such as an intervening decision by the

Supreme Court”, provide an inferior court with discretion to disregard the mandate of a superior

court in a prior appeal in the same case). For the reasons that follow, we conclude that Inks does

relate to the case sub judice, and thus does constitute an “intervening decision” justifying the trial

court’s departure from our holdings in Perry I.
Pickaway App. No. 15CA22 14

{¶ 33} In FirstMerit Bank, N.A. v. Inks, supra, the Ohio Supreme Court was presented

with the following question: “Whether Section 1335.05 of the Ohio Revised Code prohibits a

party from raising as a defense that the parties to a contract involving an interest in land orally

agreed to modify the terms of their agreement.” Inks at ¶ 1. Ultimately, the Ohio Supreme Court

ruled “a party cannot assert an oral agreement pertaining to an interest in land in an effort to

defeat a judgment entered pursuant to a written contract.” Id. at ¶ 3.

{¶ 34} In Inks, a bank had obtained a foreclosure judgment. Id. at ¶ 5. Before the

foreclosure auction, the judgment debtor and the bank entered into a written agreement providing

for the judgment debtor making a $200,000 deposit and various payments by specified dates,

which would ultimately result in a release of the mortgage. Id. at ¶ 7. Two days before the

scheduled auction, the judgment debtor orally told a bank employee that he could only raise

$150,000. The judgment debtor alleged that the bank employee stated that $150,000 was

“doable”. Id. at ¶ 8. Nonetheless, the bank proceeded with the auction and obtained a deficiency

judgment. The judgment debtor moved to set aside the judgment contending the oral agreement

precluded the bank’s auction. Id. at ¶¶ 9-11.

{¶ 35} In response to the bank’s contention that the Statute of Frauds invalidated the oral

agreement, the judgment debtor argued that the contract did not pertain to an interest in land. The

Ohio Supreme Court rejected the judgment debtor’s argument, however, noting first that a

mortgage is a “conveyance of property that passes the property conditionally to the mortgagee as

well as a transfer of property as security for the debt.” Id. at ¶ 23. The Court further noted that an

“alleged oral agreement [which] * * * involves the terms upon which [the bank] allegedly agreed

to release the mortgage” pertains to an interest in land. Id. at ¶ 25.
Pickaway App. No. 15CA22 15

{¶ 36} The facts here are very similar to Inks. The alleged oral modification in the

present matter involves the terms upon which the Fifth Third entities allegedly agreed to modify

the terms, timing, and mode of payment due under the mortgage. Accordingly, and pursuant to

Inks, the Statue of Frauds renders the oral modification to the mortgage unenforceable; and

summary judgment in favor of the Fifth Third entities was appropriate.

{¶ 37} The Ohio Supreme Court had not yet decided Inks when we issued our opinion in

Perry I and our decision denying the Fifth Third entities’ application for reconsideration. In

short, Inks is an intervening Supreme Court decision that justified the trial court’s departure from

this Court’s directives on remand. Thus, the law of the case doctrine does not apply here. Perry’s

first, second, third, and fourth assignments of error are overruled.

IV. Conclusion

{¶ 38} Having overruled all of Perry’s assignments of error, we hereby affirm the

judgment of the trial court.

JUDGMENT AFFIRMED.

HOOVER, J.: Dissents with Dissenting Opinion.

{¶ 39} I respectfully dissent from the per curiam opinion. I believe that Inks is factually

distinguishable from the case sub judice in several key aspects, and thus, its legal ruling does not

apply to this case. Rather, I would conclude that (1) Inks is not an intervening Supreme Court

decision; (2) the law of the case doctrine applies; and (3) the Fifth Third entities are not entitled

to summary judgment. Accordingly, I would sustain Perry’s assignments of error as they relate to

the summary judgment award and reverse the judgment of the trial court.
Pickaway App. No. 15CA22 16

{¶ 40} First, Inks involved matters that took place after the bank had already obtained a

foreclosure judgment. Here, the foreclosure decree was not obtained prior to the alleged oral

agreement of the parties. Next, the judgment debtor in Inks was a party to the written note and

mortgage and to the written agreement to release the mortgage. On the other hand, in this case,

Perry was not a party to the note or mortgage, or to any other written agreement with the Fifth

Third entities. Rather, it was Perry’s parents who had executed the note, mortgage, and loan

modification at issue. Any alleged oral agreement reached by Perry and Fifth Third was thus a

new agreement, and not a modification to an existing written agreement between the parties.

Finally, and most importantly, the alleged oral agreement at issue in this case did not involve an

agreement to release or terminate the mortgage, as in Inks. Rather, the alleged oral agreement

between Perry and Fifth Third would only affect the timing and amounts of payments due under

the note and mortgage. It is not an agreement to release or discharge the property from the effect

of the mortgage. As such, and in accordance with the cases cited by this Court in Perry I, I would

conclude that the alleged oral agreement does not concern an interest in land and is not subject to

the Statute of Frauds. In other words, I would conclude that Inks does not control the outcome of

this case, and is not an intervening decision that would allow the trial court to ignore our prior

holdings.3

{¶ 41} The Fifth Third entities also contend that the trial court’s grant of summary

judgment in their favor was proper because “the undisputed facts, which have now been

3
Even if one were to assume, arguendo, that Inks does control this case, and is an intervening decision; there still
exists a genuine issue of material fact as to whether the parties’ performance constituted partial performance of the
oral agreement, thus removing it from the Statute of Frauds. See [Entry Denying Motion for Reconsideration, ¶ 9];
U.S. Bank Natl. Assn. v. Stewart, 7th Dist. Columbiana No. 12CO56, 2015-Ohio-5469, ¶ 28 (“To remove an oral
contract from the statute of frauds, the party seeking removal must prove partial performance by clear and
convincing evidence.”); Third Fed. Savs. & Loan Assn. of Cleveland v. Formanik, 8th Dist. Cuyahoga Nos. 100562,
100810, 2014-Ohio-3234, ¶ 13 (“As this court has found, even contracts that are required by the statute of frauds to
be in writing can be modified orally ‘when the parties to the written agreement act upon the terms of the oral
agreement.’ ”).
Pickaway App. No. 15CA22 17

examined in discovery, demonstrat[e] the failure of Perry’s claims and defense.” [App. Brief,

10.]

{¶ 42} Specifically, the Fifth Third entities contend that if an agreement does exist, and if

the Statute of Frauds does not bar it, it is not enforceable as a matter of law because it lacks

essential terms. The Fifth Third entities admit that their first Motion for Summary Judgment was

limited to the Statute of Frauds issue and did not raise this particular argument, but contends that

upon remand they have now taken “multiple depositions” and “engaged in substantial written

discovery” allowing them to further develop the argument.

{¶ 43} “As noted in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d

332, ¶ 35, ‘[t]he law-of-the-case doctrine is rooted in principles of res judicata and issue

preclusion * * *.’ ” Farm Credit Servs. of Mid-Am. PCA v. Pertuset, 2014-Ohio-1289, 10 N.E.3d

769, ¶ 14 (4th Dist.). “Further, the Fischer court noted that prior decisions have held that the law

of the case doctrine ‘ “precludes a litigant from attempting to rely on arguments at a retrial which

were fully pursued, or available to be pursued, in a first appeal.” ’ ” (Emphasis sic.) Id., quoting

Fischer at ¶ 34, in turn quoting Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404-405,

659 N.E.2d 781 (1996).

{¶ 44} Here, any issue related to the validity and essential terms of the purported contract

should have been known by the Fifth Third entities at the time Perry I was decided, and were

available to be pursued in that appeal. For instance, the Fifth Third entities cite to their own Pay

History document to support the proposition that the $5,000 payment received from Perry was

applied to payments already owed on the mortgage loan and thus did not constitute new

consideration. This document belonged to the Fifth Third entities and should have been apparent
Pickaway App. No. 15CA22 18

and available to them in Perry I. Moreover, any lack of knowledge concerning the essential

terms of the purported oral agreement by the Fifth Third entities in Perry I was attributable to

their admitted failure to conduct discovery prior to the filing of their first Motion for Summary

Judgment. Accordingly, I would conclude that because the essential terms argument could have

been pursued in Perry I, but was not, any argument based thereon in support of the second

Motion for Summary Judgment is barred under the law of the case doctrine and doctrine of res

judicata.

{¶ 45} In accordance with the foregoing, I would conclude that all of the legal questions

raised by the Fifth Third entities in their second Motion for Summary Judgment were or could

have been raised in Perry I. Moreover, I would conclude that the Ohio Supreme Court’s decision

in Inks is not an “intervening decision” affecting our prior holdings. Therefore, I believe this

Court’s decision in Perry I remains the law of the case; and the trial court erred by granting

summary judgment in favor of the Fifth Third entities where genuine issues of material fact

remain. I would therefore sustain Perry’s assignments of error and reverse the judgment of the

trial court.
Pickaway App. No. 15CA22 19

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

The Court finds that reasonable grounds existed for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pickaway County
Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Abele, J., & *DeGenaro, J.: Concur in Judgment and Opinion.
Hoover, J: Dissents with Dissenting Opinion.

For the Court,

By:
Peter B. Abele, Judge

By:
Marie Hoover, Judge

By:
Mary DeGenaro, Judge*

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.

*Judge Mary DeGenaro from the Seventh Appellate District, sitting by assignment of the
Supreme Court of Ohio in the Fourth Appellate District.