6610 Cummings Court, L. L.C. v. Scott

• Decision Date: 06 December 2018
• Docket Number: Nos. 106803,106804,s. 106803
• Citation: 125 N.E.3d 362,2018 Ohio 4870
• Parties: 6610 CUMMINGS COURT, L.L.C., et al., Plaintiffs-Appellants v. Darrel SCOTT, et al., Defendants-Appellees
• Court: Ohio Court of Appeals

125 N.E.3d 362

2018 Ohio 4870

6610 CUMMINGS COURT, L.L.C., et al., Plaintiffs-Appellants

v.Darrel SCOTT, et al., Defendants-Appellees

Nos. 106803

106804

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: December 6, 2018

Harold Pollock, 5900 Harper Road, Suite 107, Solon, Ohio 44139, ATTORNEY FOR APPELLANTS

Richard N. Selby, Jo A. Tatarko, Dworken & Bernstein Co., L.P.A., 60 South Park Place, Painesville, Ohio 44077, For Darrel Scott and New Spirt Revival Center Ministries, Inc.

Louis R. Garland, 7301 West Boulevard, Unit C-2, Boardman, Ohio 44512, For Chemical Bank f.k.a. Talmer Bank

W. Christopher Murray II, pro se, Cuyahoga County Treasurer, c/o Cuyahoga County Administration, 20179 East 9th Street, Cleveland, Ohio 44115, For Cuyahoga County Treasurer

BEFORE: Boyle, J., Kilbane, P.J., and Celebrezze, J.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, J.:

{¶ 1} Plaintiffs-appellants, 6610 Cummings Court, L.L.C. ("6610") and Munna Agarwal (collectively "appellants"), appeal the trial court's grant of partial summary judgment to defendants-appellees, Darrel Scott, Belinda Scott, and New Spirit Revival Ministries Inc. ("New Spirit") (collectively "appellees"), and the trial court's award of damages. Appellants raise 16 assignments of error for our review:

1. The trial court erred in denying appellants summary judgment and granting appellees summary judgment where the evidence clearly showed that the contract in issue was a sale contract and not a lease.

2. The trial court erred in denying appellants summary judgment and granting defendants summary judgment where the memorandum dated March 6, 2010 introduced by appellants was a sufficient admissible writing to satisfy the requirements of the statute of frauds.

3. Alternatively, the trial court erred in denying appellants summary judgment and granting appellees summary judgment where the memorandum dated March 6, 2010 introduced by appellants together with ancillary unexecuted documents were admissible sufficient writings to satisfy the requirements of the statute of frauds.

4. The trial court erred in denying appellants summary judgment and granting appellees summary judgment where the evidence showed that the contract in issue was removed from the operation of the statute of frauds by the doctrine of partial performance.

5. The trial court erred in denying appellants summary judgment and granting appellees summary judgment where the evidence showed that appellees were precluded from obtaining affirmative relief due to their default on the sale contract.

6. The trial court erred in denying appellants summary judgment and granting appellees summary judgment where the evidence clearly showed that the intent of the parties was that there be a sale contract.

7. The trial court erred in failing to consider the memorandum and draft contracts as evidence of the intent of the parties to create a sale contract.

8. The trial court erred in failing to consider the memorandum and draft contracts as a single document for purposes of establishing a binding sale contract.

9. The trial court erred in failing to find that appellees breached the contract.

10. The trial court erred in determining the end date of the contract.

11. The trial court erred in failing to declare all amounts paid by appellees toward the purchase of the property as forfeited by reason of appellees' breach of the sale contract.

12. The trial court erred in determining appellants' damages by crediting forfeited principal payments toward rent and failing to charge appellees for property taxes as required by the contract.

13. The trial court erred in determining the end date of the contract.

14. The trial court erred in failing to find appellee New Spirit Revival Center Ministries Incorporated a party to the sale contract where the evidence showed that the parties intended that New Spirit be a party and the monies paid under the contract were paid largely or entirely by New Spirit.

15. The trial court erred in holding that appellants had not adequately established damages where the use of a summary of damages is permissible under Evid.R. 1006, the court based its determination of damages on a similar summary of appellees, and the parties stipulated to the admissibility of the summaries.

16. The judgment of the trial court was against the manifest weight of the evidence.

{¶ 2} Finding no merit to their assignments of error, we affirm.

I. Procedural History and Factual Background

{¶ 3} The following facts are largely undisputed. In 2006, Agarwal became the owner of a sublot located at 6610 Cummings Court in Solon, Ohio ("the property") and began constructing a home on the property.

{¶ 4} Around March 2010, the Scotts expressed an interest in the property and began discussing a possible deal with Agarwal. During these discussions, Darrel Scott created a "memorandum" of the transaction ("the memorandum"), which stated, "Lease option – purchase price 1.9 million" and contained the following numbered points:¹

1. 5 yrs./ 2 yr. extension

2. Downput 50,000.00 plus construction cost 5,000 already given

3. 1,500 per week from March 22 to May 3 — 9,000

4. 2,500 per week from May 3 to end of lease

5. 5,000 per month from Jun thru Nov [illegible writing]

6. 3,000 per month March and April — Down pmt [illegible writing]

7. 52 pmt per year of 2,500.00

8. 10,000 per year applied to purchase price

9. 25,000 balloon pmt each year applied to purchase price 120,000 amt. [Circled] Due April-June.

10. Scotts pay property taxes/insurance

11. 4% [illegible writing] per year — 2% applies to down pmt

The Scotts and Agarwal signed the memorandum.

{¶ 5} Approximately two weeks later, Agarwal had an attorney prepare a real estate purchase agreement ("purchase agreement") and an installment purchase land contract ("installment contract") as part of the parties' discussions. The purchase agreement set forth terms of an agreement under which New Spirit would purchase the property from Agarwal. The installment contract lists terms of a land contract between New Spirit and 6610. Neither document was signed by the parties or acknowledged.

{¶ 6} On July 10, 2010, the Scotts moved into the property. Per the memorandum, the Scotts paid $2,500 in rent per week. According to testimony and evidence presented at the damages hearing, beginning in February 2013, the Scotts paid $2,850 in rent per week until September 2016, and both parties agreed that the $350 increase in rent was to account for property taxes.

{¶ 7} In September 2010, Agarwal created a limited liability company, 6610, and executed a quit claim deed conveying the property and home to 6610. As a result, 6610 became the new owner of the property, and the Scotts made their payments to 6610.²

{¶ 8} On September 28, 2016, the Scotts stopped making their weekly payments. As a result, Agarwal served the Scotts with a notice to leave the premises. The Scotts vacated the property on October 10, 2016.³

A. Case No. CV-16-870194: 6610 Sues the Scotts

{¶ 9} On October 31, 2016, 6610 filed an amended complaint against the Scotts and New Spirit for breach of contract, seeking declaratory relief and compensatory damages.⁴ The memorandum, which 6610 referred to as "a memorandum of the land contract," was attached to the complaint. Also attached to 6610's complaint was the unsigned purchase agreement and installment contract as well as the installment contract's exhibits, the quit claim deed conveying the property to 6610, and an unsigned promissory note between New Spirit and Agarwal.

{¶ 10} The Scotts and New Spirit filed a motion for a more definite statement, alleging that

it is unclear from the allegations in the complaint and/or amended complaint and the documents attached whether plaintiff is alleging that defendants agreed to purchase the real property at issue, and are in breach of their agreement to do so, or whether they merely leased the property and are simply liable for unpaid rent.

The trial court granted their motion.

{¶ 11} As a result, 6610 filed a "Second Amended Complaint" in December 2016. In its new complaint, however, 6610 also included Chemical Bank f.k.a. Talmer Bank and W. Christopher Murray II, the Cuyahoga County Treasurer, as new party defendants. The complaint included a breach of contract claim and additionally alleged, under Count II, that the "Scott Defendants have falsely sought to characterize the contract in issue as a lease when it in fact is a land contract governed by the provisions of Ohio Revised Code Chapter 5313." The complaint also included an "alternative" third count for foreclosure.

{¶ 12} The Scotts and New Spirit filed a joint answer. Chemical Bank also filed an answer. Murray did not file an answer.

{¶ 13} In February 2017, 6610 moved for leave to add Agarwal as a new party plaintiff to its case as well as to assert an additional claim through a third amended complaint. The court struck 6610's motion from the docket and ordered that Agarwal file a separate action.

B. Case No. CV-17-876762: Agarwal Sues the Scotts

{¶ 14} On March 2, 2017, Agarwal filed a separate complaint against the Scotts and New Spirit with claims for declaratory relief, promissory estoppel, foreclosure, and breach of contract. Attached to Agarwal's complaint was the general warranty deed giving Agarwal ownership of the property, the purchase agreement, the quit claim deed, and a document titled, "New Spirit Revival Ministries: Receivables" ("the receivables document"), which listed property payments and tax calculations for New Spirit between July 2010 and June 2017.⁵

{¶ 15} On the same day that Agarwal filed his complaint, 6610 filed a motion to consolidate Cuyahoga C.P. Nos. CV-16-870194 and CV-17-876762, which the trial court granted.

{¶ 16} The Scotts and New Spirit filed an answer in Case No. CV-16-870194 and set forth counterclaims against Agarwal for unjust enrichment and defamation. Agarwal filed a reply in regards to the counterclaims against him.

{¶ 17} During a pretrial hearing, the trial court...