[Cite as Bordenkircher v. Baker, 2023-Ohio-1770.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TESSA BORDENKIRCHER JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2022CA0023
BROCK BAKER, ET AL.,
Defendants-Appellants OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Coshocton County Court
of Common Pleas, Case No. 22CI0050
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: May 24, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES R. SKELTON BRIAN W. BENBOW
309 Main Street 265 Sunrise Center Drive
Coshocton, Ohio 43812 Zanesville, Ohio 43701
Co-Counsel for Appellants Co-Counsel for Appellants
WILLIAM TODD DROWN NANCY ASHBROOK WILLIS
232 Chestnut Street 6361 Crouch Road
Coshocton, Ohio 43812 Mount Vernon, Ohio 43050
Coshocton County, Case No. 2022CA0023 2
Hoffman, J.
{¶1} Defendant-appellant Brock Baker appeals the August 8, 2022 Journal Entry
entered by the Coshocton County Court of Common Pleas, which granted plaintiff-
appellee Tessa Bordenkircher’s motion for judgment on the pleadings, and issued a Writ
of Partition and Order of Sale.
STATEMENT OF THE CASE AND FACTS
{¶2} On May 4, 2016, Appellant and Appellee purchased real property located
at 19450 County Road 54, Warsaw, Coshocton County, Ohio (“the Property”). A
Warranty Deed was recorded in Volume 700, Pages 590-592, in the Official Records of
Coshocton County, Ohio, on May 5, 2016. Thereafter, the parties occupied the Property
together until Appellee moved out in April, 2018.
{¶3} On March 15, 2022, Appellee filed a Petition for Partition of Real Estate. On
April 13, 2022, Appellant filed an answer and counterclaims, seeking to quiet title and for
specific performance. Appellee filed an answer to Appellant’s affirmative defenses and
counterclaims on April 27, 2022. Appellee also filed a motion to amend her complaint,
which the trial court granted. Appellee filed an Amended Petition for Partition of Real
Estate on May 25, 2022. On June 7, 2022, Appellant filed his answer to the amended
petition, affirmative defenses, and counterclaims, seeking to quiet title and for specific
performance, declaratory judgment, unjust enrichment, and promissory estoppel.
{¶4} In his answer, Appellant denied “the allegation that [Appellee] is the owner
of an undivided one-half interest in fee simple of [the Property].” June 7, 2022 Defendant
Brock Baker’s Answer to Amended Petition for Partition of Real Estate, Counterclaim to
Quiet Title, Counterclaim for Specific Performance, Counterclaim for Declaratory
Judgment, Counterclaim for Unjust Enrichment, and Counterclaim for Promissory
Coshocton County, Case No. 2022CA0023 3
Estoppel (“Appellant’s Answer and Counterclaims”) at para. 1. Appellant further denied
“he owns only an undivided one-half interest in fee simple in the Property and claims
100% ownership of the Property by virtue of a judgment entered in Case No. CVI 1800382
in Coshocton County Municipal Court and/or by virtue of a constructive or resulting trust,
res judicata, collateral estoppel, and other legal and equitable principles.” Id. at para. 2.
{¶5} Appellant asserted 21 affirmative defenses including, inter alia, Appellee’s
claims were:
• barred by res judicata and collateral estoppel (3rd Affirmative
Defense);
• barred by estoppel, equitable estoppel, and/or judicial estoppel (4th
Affirmative Defense);
• barred by the doctrine of accord and satisfaction “[b]y virtue of the
Judgment dated February 14, 2019, Case No. CVI 1800382, in
Coshocton County Municipal Court, [Appellant] paid the judgment
amount to [Appellee] in full satisfaction of her claims against
[Appellant]” (6th Affirmative Defense);
• recovery or relief would unjustly enrich Appellee (7th Affirmative
Defense);
• barred by the doctrine of constructive and/or resulting trust (8th
Affirmative Defense);
• released “[b]y virtue of the Judgment dated February 14, 2019, Case
No. CVI 1800382, in Coshocton County Municipal Court, [Appellee’s]
Coshocton County, Case No. 2022CA0023 4
interest in the Property was extinguished, and she was divested of
any interest in the Property” (9th Affirmative Defense);
• barred by the doctrine of waiver, laches, and/or election of remedies
(11th Affirmative Defense);
• subject to an executory contract which had yet to be fully performed
(16th Affirmative Defense);
• subject to offset for Appellant’s expenditures relating to the Property
(17th Affirmative Defense); and
• barred by breach of contract (18th Affirmative Defense).
{¶6} Appellant’s counterclaim to quiet title alleged, in relevant part:
On March 4, 2016, a Warranty Deed for the Property was executed
in favor of [Appellant] and [Appellee] as joint and survivorship tenants.
***
3. [Appellee] and [Appellant] contributed equally to the down
payment for the purchase of the Property.
***
5. After purchasing the Property, [Appellee] and [Appellant] jointly
occupied the Property until [Appellee] moved out prior to April 28, 2017.
6. When [Appellee] vacated the Property, the parties agreed
[Appellant] would repay [Appellee] for her down payment on the purchase
Coshocton County, Case No. 2022CA0023 5
of the Property and in return [Appellee] agreed to be removed from the
Warranty Deed.
7. When [Appellee] vacated the Property, [Appellant] gave her
$2000.00 in partial repayment of [Appellee’s] down payment toward the
purchase of the Property.
8. On June 19, 2028, [Appellee] filed an action against [Appellant] in
Coshocton County Municipal Court, Case No. CVI 1800382, seeking to
enforce the agreement between [Appellee] and [Appellant] whereby
[Appellant] agreed to repay [Appellee] for her down payment on the
purchase of the Property and, in return, [Appellee] agreed to be removed
from the Warranty Deed. A copy of [Appellee’s] Municipal Court Complaint
is attached as Exhibit D and incorporated herein by reference.
9. On July 18, 2918, [Appellant] requested that [Appellee] execute a
quitclaim deed conveying her interest in and to the Property to [Appellant],
but [Appellee] refused to execute a quitclaim deed to [Appellant].
10. On August 7, 2018, [Appellee] recovered a judgment on her
Complaint against [Appellant] in the amount of $3,725. A copy of the August
7, 2018 Judgment Entry is attached hereto as Exhibit E and incorporated
by reference.
11. [Appellant] paid [Appellee] the judgment amount of $3,725.
12. On January 29, 2019, the Coshocton County Municipal Court
entered a Judgment directing [Appellee] to file a satisfaction of judgment or
deny payment in full within 14 days of the Judgment Entry or the judgment
Coshocton County, Case No. 2022CA0023 6
will be considered paid in full and the case will be closed. A copy of the
January 29, 2019 Judgment Entry is attached hereto as Exhibit F and
incorporated by reference.
13. On February 14, 2019, Coshocton County Municipal Court
entered a Judgment stating that the August 7, 2018 Judgment had been
paid in full and the matter was ordered satisfied and closed. A copy of the
February 14, 2019 Judgment Entry is attached hereto as Exhibit G and
incorporated herein by reference.
14. The agreement upon which [Appellee] sued in the Coshocton
County Municipal Court is an executory contract, which has not yet been
fully performed; while [Appellant] has repaid [Appellee] for her down
payment on the purchase of the Property, [Appellee] has not been removed
from the Warranty Deed.
***
18. By virtue of [Appellant’s] repayment to [Appellee] of her down
payment on the purchase of the Property, a presumption arose that
[Appellant] owns 100 percent of the Property since he contributed 100
percent of the purchase price.
19. After purchasing the Property, [Appellant] alone paid all
mortgage payments, property taxes, insurance, maintenance, and other
expenses for the Property.
Coshocton County, Case No. 2022CA0023 7
20. Further, after purchasing the Property, [Appellant] made
approximately $28,000 worth of repairs and improvements to the Property,
for which he alone paid the entire amounts for repairs and improvements.
21. By virtue of the February 14, 2019 Judgment Entry, [Appellee’s]
right, title, and interest in and to the Property was divested, extinguished,
and/or released and is now void for naught.
Appellant’s Answer and Counterclaims.
{¶7} As noted in the aforementioned paragraphs of Appellant’s counterclaim for
quiet title, copies of the Coshocton County Municipal Court’s August 7, 2018, January 29,
2019, and February 14, 2019 Judgment Entries were attached to Appellant’s Answer and
Counterclaims. Appellant also attached a copy of Appellee’s Small Claim Complaint.
Appellee’s “Statement of Claim” reads: “It was agreed upon after I had moved out of the
house we had bought together in agreement to getting my name off the deed that I would
receive my share back ($4,400.00) of the other half of the down payment I had put on the
house.” Exhibit D, Appellant’s Answer and Counterclaims.
{¶8} In her Answer and Affirmative Defenses to Defendant’s Counter-Claim filed
June 9, 2022, Appellee admitted Appellant paid her the Coshocton Municipal Court
judgment amount of $3,725,1 and admitted the municipal court’s February 14, 2019
Judgment Entry stated the August 7, 2018 Judgment had been paid in full and the matter
was satisfied and closed. Id. at para. 10-13. Appellee admitted the parties agreed
Appellant would repay her for her down payment, but denied she “agreed to be removed
1 When Appellee vacated the Property, Appellant paid her $2,000.00 in partial repayment of her portion of
the down payment.
Coshocton County, Case No. 2022CA0023 8
from the deed without being removed from the note and mortgage as well.” Id. at para. 6.
Appellee asserted 20 affirmative defenses to Appellant’s counterclaims, including accord
and satisfaction; waiver, laches, and/or election of remedies; breach of contract; and
Statute of Frauds.
{¶9} On June 9, 2022, Appellee also filed a Motion for Judgment, Appointment
of Commissioners, Writ of Partition and Order of Sale. On June 13, 2022, Appellant filed
his Opposition to Motion for Judgment, Appointment of Commissioners, Writ of Partition
and Order of Sale, arguing judgment on the pleadings was not appropriate as material
factual issues existed as to the parties’ ownership interests in the Property, and
Appellee’s affirmative defense of Statute of Frauds raises a question of fact. Appellee
filed a response to Appellant’s opposition on June 14, 2022.
{¶10} Via Journal Entry filed August 8, 2022, the trial court granted Appellee’s
motion for judgment on the pleadings as to her first cause of action (Partition). The trial
court found the parties each owned a 50% interest in the Property; therefore, Appellee
was entitled to Partition. The trial court issued a Writ of Partition and ordered the Property
sold by either the Coshocton County Sheriff or a licensed auctioneer. The trial court noted
Appellee’s second cause of action, Appellant’s counterclaims as well as his motion to
dismiss Appellee’s second cause of action would be heard after the sale of the Property.
{¶11} It is from this judgment entry Appellant appeals, raising as his sole
assignment of error:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY
GRANTING JUDGMENT ON THE PLEADINGS IN FAVOR OF APPELLEE.
Coshocton County, Case No. 2022CA0023 9
I
Judgment on the Pleadings
{¶12} “Motions for judgment on the pleadings are governed by Civ.R. 12(C).
Civ.R. 12(C) provides that ‘[a]fter the pleadings are closed but within such time as not to
delay the trial, any party may move for judgment on the pleadings.’ ” Bank of Am., N.A. v.
Michko, 8th Dist. Cuyahoga No. 101513, 2015-Ohio-3137, 2015 WL 4660060, ¶ 37. “In
ruling on a Civ.R. 12(C) motion, the court is permitted to consider both the complaint and
the answer as well as any material attached as exhibits to those pleadings.” Id. (Citation
omitted). “Civ.R. 12(C) requires a determination that no material factual issues exist and
that the movant is entitled to judgment as a matter of law.” Id. (Internal citations and
quotations omitted). “There is little caselaw discussing the standard of review of judgment
on the pleadings initiated by the plaintiff, but presumably it would involve the same type
of considerations used in resolving a defendant's motion for judgment on the pleadings.”
Balfour v. Haymon, 10th Dist. Franklin Nos. 20AP-323, 20AP-327, 2021-Ohio-3499, ¶ 13
(Citation omitted). “Thus, a party seeking affirmative relief would employ Civ.R. 12(C)
where the opposing party had admitted to all the salient facts of the complaint, thereby
admitting liability, and has no arguable defense.” Id. (Citation and internal quotations
omitted).
{¶13} Judgment on the pleadings is appropriate where the trial court, after
construing the material averments, admissions, or denials of the pleadings, with all
reasonable inferences to be drawn therefrom, in a light most favorable to the non-moving
party, finds beyond doubt that the non-moving party could prove no set of facts entitling
him to relief. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664
Coshocton County, Case No. 2022CA0023 10
N.E.2d 931 (1996); Ohio Manufacturers’ Assn. v. Ohioans for Drug Price Relief Act, 147
Ohio St.3d 42, 2016-Ohio-3038, 59 N.E.3d 1274, ¶ 10. “In order to grant such a motion,
it must appear, considering all the averments of the pleadings, that simply a question of
law is presented. If an issue of fact, or a direct issue joined on any single material
proposition is made, requiring the introduction of testimony by the moving party to sustain
such issue, the motion will be denied.” Wilhelms v. ProMedica Health System, Inc., 6th
Dist. Lucas No. L-22-1085, 2023-Ohio-143, ¶ 13. (Citation omitted. Emphasis added by
6th Dist.).
{¶14} “An appellate court reviews a trial court's decision on a Civ.R. 12(C) motion
for judgment on the pleadings de novo and considers all legal issues without deference
to the trial court's decision.” Wentworth v. Coldwater, 3d Dist. Mercer No. 10-14-18, 2015-
Ohio-1424, 2015 WL 1618923, ¶ 15.
Analysis
{¶15} As a preliminary matter, Appellant argues Appellee’s motion for judgment
on the pleadings was premature as the pleadings were not closed at the time Appellee
filed the motion. While technically we agree Appellee filed her Civ. R. 12(C) motion before
she filed her answer and affirmative defenses, (one minute, according to the Clerk of
Court’s time-stamp), the trial court waited to rule on said motion until the pleadings were
closed and provided Appellant with a meaningful opportunity to respond to Appellee’s
motion. Accordingly, we find any error to be harmless and such did not prejudice
Appellant.
{¶16} Next, Appellant asserts the trial court improperly relied upon facts which
were outside the pleadings. As stated, supra, this Court conducts a de novo review of a
Coshocton County, Case No. 2022CA0023 11
trial court’s decision on a Civ.R. 12(C) motion for judgment on the pleadings. Wentworth
v. Coldwater, supra. A de novo review requires an independent review of the trial court's
decision without any deference to the trial court's determination. Deutsche Bank Natl. Tr.
Co. for Ocwen Real Estate Asset Liquidating Tr. 2007-1, Asset Backed Notes, Series
2007-1 v. Mallonn, 5th Dist. Stark No. 2017CA00132, 2018-Ohio-1363, 110 N.E.3d 765,
¶ 21. Thus, we are not permitted to consider any factual allegations found outside the
pleadings and relied upon by the trial court.
{¶17} We now undergo an independent review to determine if judgment on the
pleadings in favor of Appellee on her claim for partition was warranted.
{¶18} R.C. 5307.04 provides:
[I]f the court of common pleas finds that the plaintiff in an action for
partition has a legal right to any part of the estate, it shall order partition of
the estate in favor of the plaintiff or all interested parties, appoint one
suitable disinterested person to be the commissioner to make the partition,
and issue a writ of partition.” A writ of partition issued under R.C. 5307.04
may be directed to the sheriff of any of the counties in which any part of the
estate lies and shall command the sheriff that, by the oaths of the
commissioner or commissioners, the sheriff shall cause to be set off and
divided to the plaintiff or each interested party, whatever part and proportion
of the estate as the court of common pleas orders. R.C. 5307.05.
Coshocton County, Case No. 2022CA0023 12
{¶19} As set forth in our Statement of the Case and Facts, supra, Appellee moved
out of the Property sometime in April, 2017. In his answer, Appellant denied the allegation
Appellee is the owner of an undivided one-half interest in the Property. Appellant’s
Answer and Counterclaims at para. 1. Appellant further denied he owned only an
undivided one-half interest in the Property and claimed 100% ownership. Id. at para. 2
{¶20} In his counterclaim for quite title, Appellant alleged, “When [Appellee]
vacated the Property, the parties agreed [Appellant] would repay [Appellee] for her down
payment on the purchase of the Property and in return [Appellee] agreed to be removed
from the Warranty Deed.” In her “Statement of Claim” in her Small Claim Complaint,
which is attached as Exhibit D to Appellant’s answer and counterclaim, Appellee states,
“It was agreed upon after I had moved out of the house we had bought together in
agreement to getting my name off the deed that I would receive my share back
($4,400.00) of the other half of the down payment I had put on the house.” In her answer,
Appellee admitted Appellant paid her the municipal court judgment amount of $3,725, but
denied she “agreed to be removed from the deed without being removed from the note
and mortgage as well.” Appellant also raised various affirmative defenses to Appellee’s
claim for partition including, inter alia, judicial estoppel and accord and satisfaction.
{¶21} Construing all material allegations and all reasonable inferences to be
drawn therefrom in a light most favorable to Appellant, we find material factual issues
exist which preclude the granting of judgment on the pleadings in Appellee’s favor.
Appellant has denied Appellee’s ownership interest in the Property and has asserted
arguable defenses to her claims.
{¶22} Appellant’s sole assignment of error is sustained.
Coshocton County, Case No. 2022CA0023 13
{¶23} The judgment of the Coshocton County Court of Common Pleas is reversed
and the matter remanded for further proceedings consistent with this Opinion and the law.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur