Cairelli v. Brunner

[Cite as Cairelli v. Brunner, 2019-Ohio-1511.]

COURT OF APPEALS
FRANKLIN COUNTY, OHIO
TENTH APPELLATE DISTRICT

SANDRA K. CAIRELLI JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellant Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.

-vs- Sitting by Assignment by the Ohio
Supreme Court

RICK L. BRUNNER, et al. Case No. 18 AP 000164

Defendants-Appellees OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Franklin County Court
of Common Pleas, 14 CV 007770

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 7, 2019

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

ROBERT G. KENNEDY PATRICK M. QUINN
4924 B-Reed Road BRUNNER QUINN
Columbus, Ohio 43220 35 North Fourth Street
Suite 200
B. CASEY YIM Columbus, Ohio 43215
18201 Von Karman, Suite 1100
Irvine, California 92612
Wise, J.

{¶1} Appellant Sandra K. Cairelli appeals the September 12, 2017, decision

entered in the Franklin County Court of Common Pleas denying Appellant’s motion for

summary judgment and granting summary judgment in favor of Appellees Richard and

Jennifer Brunner.

STATEMENT OF THE FACTS AND CASE

{¶2} The facts as presented to the trial court are as follow.

{¶3} In June, 1984, Richard and Jennifer Brunner and Sandra K. Cairelli entered

into a lease agreement for the real property commonly known as 1318 Ashland Avenue,

Columbus, Ohio, 43212, owned by Ms. Cairelli. The Brunners leased the property until

approximately October of 1987. At the time the parties entered the lease agreement, the

Brunners were granted a right of first refusal (ROFR) to purchase the property.

{¶4} A "Memorandum of Lease" was filed with the Franklin County Recorder

which recites that Appellees were granted a right of first refusal "upon certain terms and

conditions set forth in an independent and self-sustaining covenant contained in the

aforementioned now unrecorded lease agreement." In June, 2014, Ms. Cairelli entered

into a purchase agreement with Andrew and Deidre Allman for the sale of the Ashland

Avenue property for $276,000: $275,000 to be paid by the buyers and $500 each from

the real estate agents for the parties. The Allmans agreed to purchase the property “as

is”. The title search revealed the above-referenced 1984 Memorandum as a cloud on the

title.

{¶5} On or about July 2, 2014, Ms. Cairelli contacted the Brunners about

releasing the recorded Memorandum, but they refused.
 {¶6} On July 15, 2014, Ms. Cairelli sent the Brunners a “Mitigation Offer” to allow

them to purchase the property. The Brunners did not accept the offer.

{¶7} On July 25, 2014, Ms. Cairelli filed a Complaint to Quiet Title, For Injunctive

Relief, Slander of Title, Tortious Interference with Contract and Fraud. Ms. Cairelli also

filed Motion for Temporary Restraining Order and Preliminary Injunction, seeking to have

the Memorandum of Lease and Right of First Refusal removed from the Franklin County

Recorder’s Office to clear the title so that she could sell the property.

{¶8} On July 27, 2014, a hearing was held on the Motion for Temporary

Restraining Order.

{¶9} On July 30, 2014, the trial court conducted a status conference with the

parties.

{¶10} By Judgment Entry filed July 31, 2014, the trial court denied the motion for

a temporary restraining order. As reflected in the trial court's Entry, neither party had been

able to locate and/or produce the Lease Agreement, ROFR or “surrender of possession”

documents. The trial court ordered the parties to produce these documents within 14

days. The trial court also set another status conference for August 19, 2014.

{¶11} On August 7, 2014, Ms. Cairelli renewed her Motion for a Temporary

Restraining Order. This renewed Motion stated that it was “premised upon the August 1,

2014 Supplemental Brief in Support of Motion for Temporary Restraining Order and

Preliminary Injunction, which incorporated the affidavits of BC Yim and Kiki Street

Kullman and affirmatively established that Defendants have rejected the ability to 'meet

or beat' the existing terms and conditions of the Allman's proposed purchase of real

property commonly known as 1318 Ashland Avenue, Grandview Heights, Ohio.”
 {¶12} On August 22, 2014, a hearing was held on Ms. Cairelli’s Motion for

Temporary Restraining Order. At the beginning of the hearing, the trial court stated the

purpose of the hearing was to determine whether or not a right of first refusal exists in this

case, and if so, what terms of such ROFR needed to be applied to this situation.

{¶13} The trial court heard testimony from Andrew Allman and Richard Brunner.

Mr. Allman testified to the terms of the offers and subsequent negotiations between him

and Appellee for the purchase of 1318 Ashland Avenue and to establish that Ms. Cairelli

allegedly complied with any right of first refusal because the Brunners were eventually

offered "the purchase contract as it existed" on July 15th, 2014, with the Allmans, almost

one (1) month after being entered and after various waivers and contingencies were

satisfied. (T. at 5).

{¶14} Ms. Cairelli did not testify, as she now lives in Orange County, California.

No objection was raised to the hearing proceeding without Cairelli present. Cairelli was,

however, subject to cross-examination during her deposition conducted in November,

2014.

{¶15} On August 26, 2014, the parties filed post-hearing briefs.

{¶16} On February 6, 2015, the trial court filed its Judgment Entry Quieting Title

in Plaintiff’s Favor and Denying as Moot Plaintiff’s Renewed Motion for Temporary

Restraining Order and Preliminary Injunction.

{¶17} The Brunners appealed the trial court’s decision. By Opinion and Entry

dated August 25, 2016, this Court affirmed the decision of the trial court quieting title. See

Cairelli v. Brunner, 10th Dist. No. 15AP-854. The Ohio Supreme Court declined

discretionary review.
 {¶18} Following remand from this Court, the trial court considered the competing

motions for summary judgment on the remaining causes of action, which had been filed

prior to the first appeal.

Promissory Fraud – Count Four

{¶19} On January 16, 2015, the Brunners, Appellees in this appeal, filed a motion

for summary judgment on Appellant Sandra Cairelli’s claim for Promissory Fraud.

{¶20} On February 16, 2015, Appellant Cairelli filed a Memorandum Contra and

Cross Motion for Summary Judgment.

{¶21} On February 23, 2015, Appellees filed a Reply in support of their motion.

{¶22} On February 25, 2015, Appellant filed a Reply in support of her Cross-

Motion for Summary Judgment.

{¶23} On March 2, 2015, Appellees filed a Memorandum Contra to Appellant’s

Cross-Motion for Summary Judgment.

Slander of Title – Second Cause of Action

{¶24} On January 21, 2015, Appellees filed a motion for summary judgment on

Appellant’s claim for slander of title.

{¶25} On February 23, 2015, Appellant Cairelli filed a Cross-Motion for Summary

Judgment and Opposition Contra.

{¶26} On March 2, 2015, Appellees filed their Reply in Support of their Motion for

Summary Judgment.

{¶27} On March 9, 2015, Appellees filed a Notice of Incorporation.

{¶28} On March 18, 2015, Appellant Cairelli filed a Reply in support of her Cross-

Motion for Summary Judgment.
 Tortious Interference with Contract – Third Cause of Action

{¶29} On February 6, 2015, Appellees filed a summary judgment on Appellant

Cairelli's claim for tortious interference with contract.

{¶30} On March 6, 2015, Appellant Cairelli filed a Cross-Motion for Summary

Judgment and Opposition Contra.

{¶31} On March 13, 2015, Appellees filed their Reply in Support of Defendant's

Motion for Summary Judgment.

{¶32} On March 18, 2015, Appellant filed a Reply in Support of Cross-Motion.

{¶33} On March 20, 2015, Appellees filed a Memorandum Contra Plaintiffs Cross-

Motion for Summary Judgment.

{¶34} On March 26, 2015, Appellant filed a supplemental reply in support of her

Cross-Motion for Summary Judgment.

{¶35} Following remand, by Judgment Entry filed September 12, 2017, the trial

court granted the Brunners' motions for summary judgment as to Cairelli's claims for

slander of title and tortious interference with contract claims. (DecisionIEntry on Pending

Motions, September 12, 2017).

{¶36} As to the slander of title claim, the trial court held that:

It is undisputed that the Memorandum of Lease was executed by all

parties prior to it being recorded in July of 1984. Because [Appellant] signed

her name to that document she cannot now claim it was false, or that the

statements therein were slanderous and made with malice. Furthermore,

the date when the lease was terminated and the date when the Court

quieted title in favor of [Appellant] are irrelevant for the purpose of
 considering the merits ... because the relevant time is the date of publication

of the allegedly false/slanderous statement ... [Appellant] cannot prevail on

a slander of title claim merely because the document she and [Appellees]

previously signed delayed her ability to sell and transfer clean title to her

property. (Decision, September 12, 2017, at 14-15).

{¶37} As to the tortious interference claim:

As demonstrated by the attachments to the Complaint, the

agreement [Appellant] had with the Allmans was conditioned upon

[Appellant] conveying free and clear title to the Ashland Avenue property.

Because [Appellant] was unable to satisfy that condition, her agreement

with the Allmans lapsed, or rather, was left incomplete. As that agreement

was not completed, there is no contractual breach for which [Appellees]

could be liable ... [E]ven assuming the agreement with the Allmans was a

contract, [Appellant's] tortious interference claim would nevertheless fail as

[Appellees] believed they had a valid [right of first refusal] and

documentation to support that belief. (Decision, September 12, 2017, at 17).

{¶38} The trial court also found a genuine issue of material fact with respect to

Appellant's promissory fraud claim. This claim proceeded to trial and was resolved with a

directed verdict for Mr. Brunner and a unanimous jury verdict for Ms. Brunner. (Final

Judgment Entry, February 9, 2018).

{¶39} Appellant Cairelli now appeals to this Court, challenging only the trial court's

grant of summary judgment to Appellees on the claims for slander of title and tortious

interference assigning the following errors for review:
 ASSIGNMENTS OF ERROR

{¶40} “I. THE TRIAL COURT ERRED BY DISMISSING PLAINTIFF'S SECOND

CAUSE OF ACTION FOR SLANDER OF TITLE ON DEFENDANTS' MOTION FOR

SUMMARY JUDGMENT, ON THE GROUNDS THAT THE SUBJECT ROFR WAS VALID

WHEN IT WAS ORIGINALLY FILED, BUT DID NOT BECOME "INVALID" OR

SLANDEROUS UNTIL AFTER THE POINT IN TIME WHEN DEFENDANTS MOVED

OUT OF THE SUBJECT PROPERTY IN OCTOBER 1987, AND CEASED PAYING ANY

RENT OR OTHER CONSIDERATION TO CONTINUE THE ROFR THEREAFTER.

{¶41} “II. THE TRIAL COURT ERRED BY GRANTING APPELLEES' MOTION

FOR SUMMARY JUDGMENT ON THE THIRD CAUSE OF ACTION AND DISMISSING

PLAINTIFF'S CLAIMS FOR TORTIOUS INTERFERENCE WITH CONTRACT BY

ERRONEOUSLY TREATING THE DEFENDANTS' REFUSAL TO REMOVE THE

INVALID ROFR ENCUMBERING APPELLANT'S TITLE TO THE SUBJECT PROPERTY

TO BE MERELY PREVENTION OF A "CONDITION" TO THE EXISTENCE OF THE

CONTRACT, AS OPPOSED TO A CONTRACT OBLIGATION TO TRANSFER OF

CLEAR TITLE; EITHER WAY, THE UNDERLYING ALLMAN CONTRACT WAS LOST.

{¶42} “III. THE TRIAL COURT ERRED BY GRANTING DEFENDANTS' MOTION

FOR SUMMARY JUDGMENT ON THE THIRD CAUSE OF ACTION FOR TORTIOUS

INTERFERENCE, BASED SOLELY ON "INTERFERENCE WITH CONTRACT"

WITHOUT CONSIDERING THE ALTERNATIVE INTERFERENCE TORT OF

"INTERFERENCE WITH PROSPECTIVE BUSINESS ADVANTAGE'', WHICH DOES

NOT REQUIRE A CONTRACT OR BREACH.”
 Summary Judgment Standard of Review

{¶43} 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.

The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides, in pertinent

part:

Summary judgment shall be rendered forthwith if the pleadings,

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 judgment as a

matter of law. * * * 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.

{¶44} Pursuant to the above rule, a trial court may not enter a summary judgment

if it appears a material fact is genuinely disputed. The party moving for summary judgment

bears the initial burden of informing the trial court of the basis for its motion and identifying

those portions of the record that demonstrate the absence of a genuine issue of material

fact. The moving party may not make a conclusory assertion that the non-moving party

has no evidence to prove its case. The moving party must specifically point to some

evidence which demonstrates the non-moving party cannot support its claim. If the
moving party satisfies this requirement, the burden shifts to the non-moving party to set

forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila

v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio St.3d 280,

1996-Ohio-107.

{¶45} It is based upon this standard that we review Appellant’s assignments of

error.

I.

{¶46} In her first assignment of error, Appellant argues that the trial court erred in

granting summary judgment in favor of Appellees on her claim for slander of title. We

disagree.

{¶47} In her second cause of action in her Complaint, Appellant alleged:

Defendants Rick L. Brunner and Jennifer L. Brunner’s failure to take

steps to remove the subject Memorandum constitutes a false statement

(i.e., that the Lease and right of first refusal remain(s) in effect and/or that

Defendants have a legal and/or equitable interest in the subject property),

that has been published with malice, is false, and has caused and will

continue to cause special monetary damages to Plaintiff. (Complaint at

¶38).

{¶48} To prevail on a claim of slander of title claim, the plaintiff must prove “(1)

there was a publication of a slanderous statement disparaging claimant's title; (2) the

statement was false; (3) the statement was made with malice or made with reckless

disregard of its falsity; and (4) the statement caused actual or special damages.” Green

v. Lemarr, 139 Ohio App.3d 414, 430–431, 744 N.E.2d 212 (2d Dist.2000).
 {¶49} Upon review, we find that at the time the Memorandum of Lease was

recorded in July, 1984, it was not slanderous or false. Rather, such document, having

been executed by Appellant and Appellees, demonstrated that a valid lease existed and

that statements made therein were not false.

{¶50} While Appellant tries to argue that the title has been slandered by virtue of

Appellees’ “continuation” of the ROFR as a cloud on the title after Appellees moved out

of the premises in October, 1987, and ceased paying rent or other consideration to

continue the ROFR, such argument fails. The relevant time period for a cause of action

for slander of title is the time of publication, that being the time a document is filed with

recorder. It is well-established that slander of title occurs at the time the offending

document is filed with the recorder. Smith Elec. v. Rehs, 9th Dist. Summit No. 18433,

1998 WL 103334; See, e.g., Wendover Property Owners, supra; Hatfield v. the Orville

Savings Bank, supra. See, also, Doyle Walters Distributors, Inc. v. Marathon Petroleum

Co. (Sept. 29, 1992), Richland App. No. 92-CA-2, unreported; Cardinal Fed. S. & L.

Assoc. v. Michaels Bldg. Co. (May 8, 1991), Summit App. No. 14521, unreported, at 27.

{¶51} Here, at the time the Memorandum of Lease was filed with the recorder,

such document and the statement contained therein were not false or slanderous. As

such, Appellant’s claim for slander of title fails.

{¶52} Appellant’s first assignment of error is overruled.

II., III.

{¶53} In her second and third assignments of error, Appellant argues the trial court

erred in granting summary judgment in favor of Appellees on her tortious interference with

contract claims. We disagree.
 {¶54} In her third cause of action in her Complaint, Appellant alleged:

Defendants Rick L. Brunner and Jennifer L. Brunner knew and

understood that Plaintiff could not consummate any sale transaction of the

subject property to any prospective buyer as long as the Memorandum

remained as a cloud on title to the subject property.

Defendants Rick L. Brunner and Jennifer L. Brunner's wrongful

failure and refusal to execute a Release to Plaintiff, or to take any other

steps to remove the improper Memorandum clouding Plaintiff's title has

prevented Plaintiff from consummating the sale transaction with her present

buyers (the Allmans). (Complaint at ¶41-42.)

{¶55} The elements of the tort of tortious interference with contract are (1) the

existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the

wrongdoer's intentional procurement of the contract's breach, (4) lack of justification, and

(5) resulting damages. Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 707

N.E.2d 853 (1999), paragraph one of the syllabus.

{¶56} To satisfy the third element, it is essential that the plaintiff show that the

defendant intended to cause a breach of contract. Gosden v. Louis, 116 Ohio App.3d

195, 224 (9th Dist.1996), citing Restatement of the Law 2d, Torts, Section 766, Comment

h (1979) (“[i]f the actor does not have this intent, his conduct does not subject him to

liability under this rule even if it has the unintended effect of deterring the third person

from dealing with the other.”)

{¶57} “Establishment of the fourth element of the tort of tortious interference with

contract, lack of justification, requires proof that the defendant's interference with
another's contract was improper.” Id. at paragraph two of the syllabus. In determining

whether an actor's interference with another's contract is improper, the Ohio Supreme

Court has adopted “Section 767 of the Restatement, which provides guidelines to be

followed.” Id at 178.

{¶58} In the instant case, as found by the trial court, the agreement between

Appellant and the Allmans was conditioned upon Appellant being able to convey free and

clear title to the real property. As Appellant was unable to meet such condition precedent,

a completed contract was never formed and therefore no breach of contract occurred.

Without a breach of contract there can be no tortious interference with contract. Tortious

interference with a contract requires that there be a breach of a contract. Sony Elecs.,

Inc. v. Grass Valley Group, Inc., 1st Dist. Hamilton No. C-010133, 2002-Ohio-1614.

{¶59} The trial court in this case also found that, even assuming a breach,

Appellant’s tortious interference claim would still fail because Appellees initially believed

they had a valid ROFR. Proof of such lack of justification is required to support a claim

for tortious interference with contract. Appellant has not challenged this finding.

{¶60} Lastly, Appellant argues that the trial court failed to consider or address the

alternative tort of interference with prospective business advantage which does not

require a contract or breach thereof.

{¶61} Upon review, we find Appellant failed to plead a cause of action for

interference with prospective business advantage. As there was no cause of action for

such tort pled, the trial court did not consider or address same and we will likewise refrain

from so doing. It is well-settled that issues not raised in the trial court may not be raised

for the first time on appeal; such issues are deemed waived. Schottenstein v.
Schottenstein, Franklin App. No. 02AP–842, 2003–Ohio–5032, ¶8, citing State v. Burge,

88 Ohio App.3d 91, 93, 623 N.E.2d 146 (10th Dist.1993).

{¶62} Based on the foregoing, we find that the trial court did not err in granting

Appellees’ Motion for Summary Judgment while denying that filed by Appellant.

{¶63} Appellant’s second and third assignments of error are overruled.

{¶64} Accordingly the judgment of the Franklin County Court of Common Pleas is

affirmed.

By: Wise, J.

Baldwin, J., concurs.

Hoffman, P. J., concurs separately.

Sitting by Assignment by the Ohio
Supreme Court

/S/ Honorable John W. Wise___________
HON. JOHN W. WISE

__________________________________
HON. WILLIAM B. HOFFMAN

/S/ Honorable Craig R. Baldwin_________
HON. CRAIG R. BALDWIN

JWW/d 0402
Hoffman, P.J., concurring

{¶65} I concur in the majority’s analysis and disposition of Appellant’s first and

third assignments of error.

{¶66} I further concur with the majority’s disposition of Appellant’s second

assignment of error.

{¶67} The majority finds a completed contract was never formed; therefore, no

breach of contract occurred. (Maj. Op. at ¶58). I disagree. I find there was a valid

purchase agreement [contract] formed. The Allmans were prepared to fulfil their

obligations under the contract but were relieved of their obligations thereunder because

of Appellant’s failure to satisfy her obligations thereunder. The fact the Allmans chose

not to sue Appellant for breach of contract and/or specific performance did not relieve

Appellant of her obligation to perform under the contract. If Appellees’ actions caused

Appellant to fail to perform her obligations under the purchase agreement, I maintain they

interfered with the contact.

{¶68} Despite my disagreement with the majority on this issue, I concur in its

decision overruling the second assignment of error on the basis the trial court found

Appellees were justified in their belief they had a valid right of first refusal; i.e., they did

not tortiously interfere with the contract.

/S/ Honorable William B. Hoffman_________
HON. WILLIAM B. HOFFMAN