Elkins v. Colburn
| Decision Date | 21 June 2019 |
| Docket Number | Case No. 18CA893 |
| Citation | 2019 Ohio 2681 |
| Parties | LISA M. ELKINS, Plaintiff-Appellee, v. JEFFREY A. COLBURN, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Clifford N. Bugg, Chillicothe, Ohio for appellant.
Paul F. Price, Waverly, Ohio, for appellee.
CIVIL CASE FROM COMMON PLEAS COURT
{¶ 1} This is an appeal from a Pike County Common Pleas Court judgment entered in favor of Lisa M. Elkins, plaintiff below and appellee herein. The trial court declared that appellee and Jeffrey A. Colburn, defendant below and appellant herein, entered into an enforceable land contract. Appellant assigns the following errors for review:
{¶ 2} Appellant and appellee are siblings who lived in apparent harmony on the same parcel of real estate in separate homes, until appellant's girlfriend ran over appellee inside appellant's garage. After that, the parties' relationship deteriorated and appellant sought to evict appellee from the premises.
{¶ 3} On July 1, 2015, appellee filed a complaint against appellant and alleged that, in January 2009, she and appellant entered into a land contract with the understanding that appellant would subdivide the real estate. Appellee asserted that appellant failed to fulfill his agreement to subdivide the real estate. Appellee additionally claimed that appellant sought to evict her for failing to obtain insurance, even though the land contract did not require appellee to obtain insurance. She alleged that she met her financial obligations under the land contract.
{¶ 4} Appellee thus requested a declaration that the land contract is valid and enforceable and an order to require appellant to record the document with the Pike County Recorder's Office. Appellee attached the purported land contract to her complaint. The contract, dated January 1, 2009, states that appellant agreed to sell "[a] tract of land located at 847 Pennington [R]oad described as 1 ½ acre's [sic] with a 1997 skyline 28x48 doublewide." In exchange, appellee agreed to pay appellant $35,000 at a rate of $261 per month and to pay real estate taxes.
{¶ 5} Appellant answered and filed a counterclaim. Appellant alleged that appellee failed to make payments, failed to pay property taxes, failed to maintain insurance, and breached the contract. Appellant sought to foreclose on the land contract. Appellant alternatively sought to quiet title.
{¶ 6} On October 13, 2016, the court held a trial. Cathy Stinson testified that in 2009, she notarized the land contract. She explained that although she did not specifically recall notarizing the land contract at issue, she would have followed her usual procedure. Stinson indicated that her usual procedure involves identifying the person appearing before her, either through personal knowledge or through appropriate identification.
{¶ 7} On cross-examination, appellant extensively questioned Stinson's compliance with notarial procedures and whether she actually complied with the correct procedures when notarizing the parties' land contract. Stinson refused to agree that she failed to comply with the notary requirements.
{¶ 8} Appellee testified that she has lived on the subject property since 1991. Appellee explained that her parents previously owned the land and that she obtained title to the land in 2000. Appellee reported that due to a series of unfortunate circumstances, she declared bankruptcy, and, in November 2008, appellant acquired title to the property. Appellee stated that around that same time, she and appellant agreed that they would enter into a land contract so that appellee could continue living on the property. Appellee also identified the parties' land contract and stated that she drafted it based upon a land contract that one of appellant's friends had given him. Appellee testified that both she and appellant signed it before the notary.
{¶ 9} Terry Smith testified that he performed a survey of the property. Smith explained that he first located appellant's five-acre tract of land and reviewed the parties' land contract. Smith observed that the property contained the two homes, a leach field, a septic tank, a driveway, a power line, and a water meter. He noted that the land contract indicated that the land to be conveyed involved a mobile home that sat upon a one-and-one-half-acre tract. Smith stated that after he examined the property, he prepared an initial plat drawing. Appellee visited his office to review the initial drawing, and Smith called appellant so that he also could see the initial drawing. Appellant did not return Smith's phone call.
{¶ 10} Smith related that appellee later advised him that she did not want part of the land included on the initial plat drawing because appellant used that part of the property for recreational vehicles. Smith explained that appellee also pointed out the area where she used to cut the grass.
{¶ 11} Subsequently, Smith prepared a final survey and indicated that it was based upon "the location of the existing buildings, the occupations of the existing current utilities; such as the septic tank; the leach field; the water meter; the power lines; and the existing gravel driveway."
{¶ 12} After appellee finished presenting her case, she requested the court to amend the pleadings to conform to the evidence. She asserted that the testimony and evidence presented during her case-in-chief showed that the land contract should be reformed to include the property description. Appellant objected, but the trial court allowed appellee to amend her complaint.
{¶ 13} Appellant then requested a directed verdict pursuant to Civ.R. 50.1 He argued that the court could not grant appellee the relief she requested: to declare that the land contract is valid and enforceable and to order that it be recorded. Appellant also asserted that appellee didnot submit any documentary evidence to show that appellant owns the property.
{¶ 14} Appellee countered that she presented oral testimony to show that appellant owns the property and that she presented sufficient evidence to show that the parties entered into a land contract and intended to be bound by it. Appellee contended that any errors in the contents of the contract could be fixed via reformation.
{¶ 15} The trial court denied appellant's motion. The court disagreed with appellant that appellee was required to submit a deed in order to establish that appellant owns the property.
{¶ 16} Appellant testified and stated that he owns the property. He agreed that he and appellee had discussed appellee buying part of the property. He explained that he "was going to sell her 1 ½ acres with the mobile home."
{¶ 17} Appellant further indicated that he and appellee had prepared a written document. Appellant, however, did not agree that the document appellee presented at trial is the document that he signed. He also denied that the document contained his signature and claimed that both the notary and the appellee lied when they stated that his signature appears on the document.
{¶ 18} Appellant nevertheless agreed that the document contained some of the terms he and appellee had discussed, such as the 1 ½ acres and the mobile home. Appellant disagreed that the document accurately reflected the purchase price. He indicated that he and appellee had agreed that appellee would pay $261 per month until appellant satisfied the mortgage on the property. Appellant additionally agreed that appellee made payments on the land contract.
{¶ 19} Appellant testified that he and appellee also discussed the property lines, but not in great detail. Appellant disputed appellee's evidence concerning the boundary lines and stated that appellee's proposal would deny him road frontage and that he wanted to maintain road frontage.
{¶ 20} The trial court issued a decision and judgment and found that the parties entered into an enforceable land contract. The court rejected appellant's argument that the document appellee presented at trial does not represent the terms of the contract and that the document is invalid due to the notary's alleged shortcomings. The court specifically found the notary's testimony credible and observed that the notary described the procedure that she follows when notarizing any document. The notary testified that she obtains picture identification of each signatory and that she witnesses the signing of the document. The court additionally recognized the notary's testimony that even though she did not specifically recall notarizing the document at issue, she did recognize her signature and she was certain that she followed the correct procedure when she notarized the document.
{¶ 21} The court also noted that appellant did not produce any other written document that purported to be the parties' agreement. The court thus concluded that the parties entered into a written contract, under which appellant agreed to sell certain property to appellee. The court next considered the terms of the parties' agreement and found that the parties agreed upon a purchase price of $35,000 and that appellant has received $19,283 thus far. The court found that appellee's surveyor's exhibit accurately depicted the real property intended to be conveyed, as well as the location of an easement for ingress and egress and for public utilities.
{¶ 22} The court thus declared the land contract to be a valid and enforceable contract and reformed the land contract to include the surveyor's legal description of the property involved. The court also dismissed the remaining claims and counterclaims. This appeal followed.
{¶ 23} In his first assignment of error, appellant asserts that the trial court's finding that appellee possessed a valid and enforceable...
To continue reading
Request your trial