[Cite as Brannon v. Edman, 2018-Ohio-70.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
MICHAEL BRANNON C.A. No. 28544
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DERRICK EDMAN, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellees CASE No. CV-2016-10-4593
DECISION AND JOURNAL ENTRY
Dated: January 10, 2018
CARR, Judge.
{¶1} Plaintiff-Appellant Michael Brannon appeals from the judgment of the Summit
County Court of Common Pleas dismissing his complaint. This Court reverses.
I.
{¶2} In October 2016, Mr. Brannon filed a complaint against Defendants-Appellees
Derrick and Nancy Edman (“the Edmans”) asserting claims for breach of contract and fraud
concerning an alleged contract for the sale of real property. The Edmans filed a motion to
dismiss asserting that the breach of contract claim violated the statute of frauds and that the fraud
claim was not stated with particularity. Thereafter, Mr. Brannon moved to amend the complaint
asserting that, while he believed the complaint would withstand a motion to dismiss, the
amended complaint would provide more specificity and resolve the issues raised by the Edmans.
In addition, he filed a response to the motion to dismiss arguing that the complaint contained
allegations of partial performance which removed the contract from the statute of frauds and that
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he had pleaded fraud with the necessary particularity. Without specifically referring to Mr.
Brannon’s motion to amend or his fraud claim, the trial court granted the Edmans’ motion to
dismiss the complaint. The trial court appeared to conclude that the statute of frauds was
applicable and that Mr. Brannon’s failure to attach a written contract to the complaint warranted
dismissal of the complaint.
{¶3} Mr. Brannon has appealed, raising three assignments of error for our review,
which will be addressed out of sequence to facilitate our analysis.
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY GRANTING THE EDMANS’ MOTION TO
DISMISS BECAUSE BRANNON’S ALLEGATIONS EXHIBITED PART
PERFORMANCE BY BRANNON AND PART PERFORMANCE OF AN
ORAL AGREEMENT TO TRANSFER REAL PROPERTY SHOULD
WITHSTAND SUCH A DISMISSAL MOTION.
{¶4} Mr. Brannon argues in his second assignment of error that the trial court erred in
dismissing the complaint because the allegations of the complaint supported that Mr. Brannon
partially performed the contract, thereby removing the contract from the statute of frauds.
{¶5} “An appellate court reviews a trial court order granting a motion to dismiss
pursuant to Civ.R. 12(B)(6) under a de novo standard of review.” Hudson v. Akron, 9th Dist.
Summit No. 28011, 2017-Ohio-7590, ¶ 8, citing Perrysburg Twp. v. Rossford, 103 Ohio St.3d
79, 2004-Ohio-4632, ¶ 5. “In reviewing whether a motion to dismiss should be granted, an
appellate court must accept as true all factual allegations in the complaint and all reasonable
inferences must be drawn in favor of the nonmoving party.” Hudson at ¶ 9, citing Rossford at ¶
5. “To prevail on a Civ.R. 12(B)(6) motion to dismiss, it must appear on the face of the
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complaint that the plaintiff cannot prove any set of facts that would entitle him to recover.”
(Internal quotations and citations omitted.) Hudson at ¶ 9.
{¶6} We begin by noting that the trial court appears to have dismissed the entire
complaint on the basis that the statute of frauds prevented Mr. Brannon’s recovery. However,
the Edmans did not argue in their motion to dismiss that the fraud claim was barred by the statute
of frauds. Even if we were to assume that it could be appropriate under these circumstances for
the trial court to dismiss the fraud claim on the basis of the statute of frauds, because there are
allegations of partial performance that would remove the agreement from the application of the
statute of frauds, dismissal on that basis was error, as will be discussed below.
{¶7} In their motion to dismiss, the Edmans argued that Mr. Brannon’s breach of
contract claim was barred by the provisions of the statute of frauds that require that an agreement
concerning the transfer of an interest of land be in writing and signed by the party to be charged
as Mr. Brannon’s complaint failed to allege the existence of a written agreement. Mr. Brannon
opposed the motion to dismiss arguing that the court could enforce the oral agreement to transfer
real estate because there were allegations of partial performance that would remove the contract
from the application of the statute of frauds.
{¶8} The Edmans relied on the following provisions in support of their motion: R.C.
1335.04 and 1335.05. R.C. 1335.04 provides that “[n]o lease, estate, or interest, either of
freehold or term of years, or any uncertain interest of, in, or out of lands, tenements, or
hereditaments, shall be assigned or granted except by deed, or note in writing, signed by the
party assigning or granting it, or his agent thereunto lawfully authorized, by writing, or by act
and operation of law.” R.C. 1335.05 provides, in relevant part, that “[n]o action shall be brought
whereby to charge the defendant * * * upon a contract or sale of lands, tenements, or
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hereditaments, or interest in or concerning them * * * unless the agreement upon which such
action is brought, or some memorandum or note thereof, is in writing and signed by the party to
be charged therewith or some other person thereunto by him or her lawfully authorized.”
{¶9} Pursuant to Civ.R. 8(C), the statute of frauds is an affirmative defense. It is not
included in the list of defenses that may be raised in a Civ.R. 12(B) motion to dismiss. See
Jefferson v. Bunting, 140 Ohio St.3d 62, 2014-Ohio-3074, ¶ 10; see also Civ.R. 12(B). “The
statute of frauds is, in fact, a fact-sensitive affirmative defense that is riddled with qualifications
and exceptions.” (Internal quotations and citations omitted.) OBLH, LLC v. O’Brien, 11th Dist.
Trumbull No. 2015-Ohio-1208, at ¶ 20. Accordingly, a Civ.R. 12(B)(6) motion to dismiss
based upon an affirmative defense is only properly granted where the defense is conclusively
established from the face of the complaint. See Jones v. Goodyear Tire & Rubber Co., 9th Dist.
Summit No. 21724, 2004-Ohio-2821, ¶ 12; see also OBLH, LLC at ¶ 20.
{¶10} The doctrine of part performance can remove certain agreements from the statute
of frauds. Kiser v. Williams, 9th Dist. Summit No. 24968, 2010-Ohio-3390, ¶ 15. The Ohio
Supreme Court has limited application of the doctrine to “‘cases involving the sale or leasing of
real estate, wherein there has been a delivery of possession of the real estate in question, and in
settlements made upon consideration of marriage, followed by actual marriage.’” Id., quoting
Hodges v. Ettinger, 127 Ohio St. 460 (1934), syllabus. “The doctrine takes a case out of the
operation of the statute of frauds if the acts of the parties * * * are such that it is clearly evident
that such acts would not have been done in the absence of a contract and * * * there is no other
explanation for the performance of such acts except a contract containing the provisions
contended for by the plaintiff.” (Internal quotations and citations omitted.) Kiser at ¶ 15.
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{¶11} “There are generally three criteria for establishing part performance: ‘(1) evidence
of a change in who possesses the land, (2) payment of all or part of the consideration for the
land, and (3) improvements, alterations or repairs upon the land.’” Areawide Home Builders,
Inc. v. Hershberger, 9th Dist. Summit No. 18514, 1998 Ohio App. LEXIS 340, *8-9 (Feb. 4,
1998); quoting Geiger v. Geiger, 2d Dist. Montgomery No. 13841, 1993 Ohio App. LEXIS
5532, *12 (Nov. 16, 1993). “Generally, the performance of only one of the three acts is
insufficient to establish part performance.” Hershberger at *9.
{¶12} First, we note that the complaint itself does not specify whether the agreement
was written or oral. Under similar circumstances, at least one court has concluded that the
complaint could be interpreted as alleging a valid written contract. See Maguire v. Nat’l City
Bank, 2d Dist. Montgomery No. 22168, 2007-Ohio-4570, ¶ 16. Thus, there is an argument to be
made that the Edmans have not demonstrated that the affirmative defense has been conclusively
established. See id.; see also Jones, 2004-Ohio-2821, at ¶ 12. Further, that same court
concluded that the failure to attach the written agreement or explain its absence did not warrant
dismissal. See Maguire at ¶ 19.
{¶13} However, given that in Mr. Brannon’s response to the Edmans’ motion to dismiss
he appears to concede that the agreement was oral, we will proceed to determine whether
sufficient facts were alleged such that Mr. Brannon could possibly succeed on his claim.
{¶14} Mr. Brannon’s complaint provides as follows:
1. Plaintiff and defendants had a contract whereby plaintiff would purchase the
real property at 1323 Weiser Ave., Akron, Ohio 44314 from defendants by
making monthly payments.
2. Plaintiff has diligently made the required payments to defendants as agreed.
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3. Plaintiff attempted to make his Oct.[] 2016 payment to defendants, who refused
to accept the payment and also refused to issue plaintiff a receipt for his house
payment.
4. Defendants accepted each of his house payments and credited each against the
balance remaining reducing the original amount of $21,000 to $10,474.00.
5. The agreement between these parties was that plaintiff would continue making
his monthly house payments to defendants until the amount was fully paid,
including taxes and insurance.
6. On the date the Oct.[] 2016 payment was due, and plaintiff tried to pay
defendants and receive a receipt for his payment, defendants breached the terms
of the sales agreement by refusing to take the Oct.[] 2016 payment and refusing to
issue a receipt to plaintiff for this house payment.
7. Subsequently, plaintiff again tried to pay the defendants and get a receipt from
defendants, but they refused to grant plaintiff a receipt and take his payment.
8. Defendants falsely induced plaintiff to make years of house payments to
defendants from Oct.[] 2013 and now have breached their contract for this sale
and are threatening to evict plaintiff when he is not a tenant but a purchaser of the
real property located at 1323 Weiser Ave., Akron, Ohio.
9. Plaintiff relied upon the agreement of the defendants to sell him the real
property and made significant improvements to the house investing time and
money relying upon his receiving ownership of this property.
10. Defendants have breached the agreement with plaintiff.
11. Defendants intentionally deceived the plaintiff into making monthly payments
and making improvements while they never intended to keep their agreement to
sell this real property to plaintiff.
12. As the direct and proximate result of defendants’ breach of contract, plaintiff
has suffered damages
13. As the direct and proximate result of defendants’ fraud & deception of
plaintiff, plaintiff has suffered damages.
{¶15} Viewing the allegations in a light most favorable to Mr. Brannon, we conclude
they are sufficient to withstand a motion to dismiss based on the affirmative defense of the
statute of frauds as there are allegations which if proven would support part performance. In so
doing, we remain mindful that “Ohio is a notice-pleading state” and, thus, “the plaintiff need not
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prove his or her case at the pleading stage.” (Internal quotations and citations omitted.) Chunyo
v. Gauntner, 9th Dist. Summit No. 28346, 2017-Ohio-5555, ¶ 10. From the allegations, one can
infer that Mr. Brannon had possession of the premises, that he paid approximately half of the
amount due, that he made improvements to the property, and that he relied upon the agreement in
making said improvements. See Kiser, 2010-Ohio-3390, at ¶ 15; Hershberger, 1998 Ohio App.
LEXIS 340, at *8-9.
{¶16} Thus, the trial court erred in granting Edmans’ motion to dismiss based upon the
affirmative defense of the statute of frauds. Mr. Brannon’s second assignment of error is
sustained.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY GRANTING THE EDMANS’ MOTION TO
DISMISS BECAUSE BRANNON’S ALLEGATIONS IN THE COMPLAINT[]
WERE SUFFICIENT TO GO FORWARD ON FRAUD.
{¶17} Mr. Brannon argues in his third assignment of error that the trial court erred in
dismissing the fraud count because his factual allegations were sufficiently particular to survive a
motion to dismiss.
{¶18} The Edmans moved to dismiss the fraud claim on the basis that the allegations
were not stated with sufficient particularity. See Civ.R. 9(B). However, the trial court did not
mention Civ.R. 9(B) in its ruling, and instead, appears to have dismissed the entire complaint on
the basis of the statute of frauds. As we have determined previously that the trial court erred in
dismissing the complaint on the basis of the statute of frauds, and, as the trial court has not yet
considered whether the allegations were stated with sufficient particularity, we are not inclined to
resolve this issue in the first instance. See Savoy v. Kramer, 9th Dist. Summit No. 26668, 2013-
Ohio-3607, ¶ 6; see also State ex rel. Midview Local School Dist. Bd. of Edn. v. Ohio School
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Facilities Comm., 9th Dist. Lorain No. 14CA010596, 2015-Ohio-435, ¶ 8. Therefore, we decline
to consider the merits of this assignment of error in the first instance. Upon remand, the trial
court can consider the Edmans’ arguments on this point and determine whether dismissal is
warranted.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT IGNORED AND DID NOT EVEN
MENTION IN ITS ORDER GRANTING DISMISSAL OF THE COMPLAINT
THAT BRANNON MOVED THE COURT TO AMEND HIS COMPLAINT TO
GIVE MORE SPECIFICITY TO THE ALLEGATIONS.
{¶19} Mr. Brannon argues in his first assignment of error that the trial court erred in
failing to mention his motion to amend his complaint and in thereby implicitly denying his
motion.
{¶20} In the instant matter, the trial court never explicitly ruled on Mr. Brannon’s
motion to amend his complaint. “[W]e have generally held that a trial court’s failure to rule [on
a motion] gives rise to a presumption that the trial court has denied the motion.” GMAC Mtge.,
LLC v. Jacobs, 196 Ohio App. 3d. 167, 2011-Ohio-1780, ¶ 9 (9th Dist.). Nonetheless, the
absence of an explicit ruling and the lack of analysis also inherently limits this Court’s ability to
evaluate whether the trial court abused its discretion in denying Mr. Brannon’s motion to amend.
See Copen v. CRW, Inc., 9th Dist. Wayne No. 15AP0064, 2017-Ohio-349, ¶ 16-17.
{¶21} Mr. Brannon sought to amend the complaint to address the Edmans’ argument
that his fraud claim lacked specificity. The trial court dismissed the entire complaint on the basis
that the statute of frauds barred Mr. Brannon’s claims. It is unclear whether the trial court denied
the motion to amend the complaint because it believed that granting Mr. Brannon’s motion
would not alter the outcome of the proceedings in light of its conclusion regarding the statute of
frauds, or whether the trial court denied the motion for another reason, notwithstanding the
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preference in the rules for liberally granting said motions. See id. Accordingly, as this Court
cannot discern the trial court’s basis for denying the motion, we remand the matter to the trial
court for it to clarify its reasoning. See MSRK, LLC v. Twinsburg, 9th Dist. Summit No. 24949,
2012-Ohio-2608, ¶ 10. If the trial court denied the motion solely based on its statute of frauds
determination, then the trial court must reconsider the motion.
{¶22} Given the specific circumstances of this case, we conclude it is appropriate for the
trial court to clarify its basis for denying the motion to amend and reconsider its ruling if
necessary. Therefore, Mr. Brannon’s first assignment of error is sustained to that extent.
III.
{¶23} Mr. Brannon’s first assignment of error is sustained to the extent discussed above.
Mr. Brannon’s second assignment of error is also sustained. We decline to rule on the merits of
the third assignment of error at this time as the trial court has yet to consider the issue.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellees.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
WILLIAM LOVE, II, Attorney at Law, for Appellant.
COLIN MEEKER, Attorney at Law, for Appellees.
Brannon v. Edman
Combined Opinion