Kellie Auto Sales v. Rahbars & Ritters

• Decision Date: 23 August 2007
• Docket Number: No. 06AP-1243.,06AP-1243.
• Citation: 2007 Ohio 4312,876 N.E.2d 1014,172 Ohio App.3d 675
• Parties: KELLIE AUTO SALES, INC. et al., Appellants, v. RAHBARS & RITTERS ENTERPRISES, L.L.C. et al., Appellees and Cross-Appellants.
• Court: Ohio Court of Appeals

876 N.E.2d 1014

172 Ohio App.3d 675

2007-Ohio-4312

KELLIE AUTO SALES, INC. et al., Appellants, v. RAHBARS & RITTERS ENTERPRISES, L.L.C. et al., Appellees and Cross-Appellants.

No. 06AP-1243.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided August 23, 2007.

Keener, Doucher, Kelley & Doucher, L.P.A., Paul M. Doucher, and Michael J. Kelley, Columbus, for appellants.

James R. Leickly, Columbus, for appellees and cross-appellants.

NUNC PRO TUNC¹ OPINION

FRENCH, Judge.

{¶ 1} Plaintiffs-appellants, Kellie Auto Sales, Inc. ("Kellie Auto") and Raymond Said ("Said") (collectively, "appellants") appeal from the judgment of the Franklin County Court of Common Pleas granting in part and denying in part appellants' motion for summary judgment and granting in part and denying in part the motion for summary judgment of defendants-appellees, Rahbars & Ritters Enterprises, L.L.C. ("Rahbars & Ritters"), Ritter Co. Real Estate Ltd. ("Ritter Co."), Rosemarie Ritter, William Ritter, Mohammad Hossein Rahbar, and Afsaneh Zekri (collectively, "appellees"). Appellees filed a cross-appeal from the trial court's disposition of the motions for summary judgment. For the following reasons, we affirm in part and reverse in part.

{¶ 2} On September 7, 2005, appellants filed a complaint in the Franklin County Court of Common Pleas against appellees and an additional defendant, Oak Hill Banks, asserting claims arising out of the failed purchase of approximately 7.348 acres of undeveloped real property owned by Rahbars & Ritters. Rahbars & Ritters is a limited liability company, equally owned by Rosemarie Ritter, William Ritter, Mohammad Hossein Rahbar, and Afsaneh Zekri. In their complaint, appellants alleged claims for breach of contract, conversion, promissory estoppel, specific performance, and injunctive relief. Simultaneous with the filing of their complaint, appellants filed motions for a preliminary injunction and temporary restraining order.² On October 5, 2005, appellees filed an answer to appellants' complaint, along with counterclaims for violations of R.C. 2323.51 and Civ.R. 11, slander of title, and intentional interference with business relations.³ Appellants filed an answer to appellees' counterclaims on October 7, 2005.

{¶ 3} Of primary importance to appellants' claims and this appeal is a real estate purchase contract dated June 20, 2005, completed on the standardized form adopted by the Columbus Board of Realtors and the Columbus Bar Association. On June 20, 2005, Said, who is the president and sole owner of Kellie Auto Sales, met with Rosemarie Ritter, a licensed real estate broker, at her office, where the purchase contract was prepared in Said's presence. Said signed the purchase contract as buyer, with no mention of Kellie Auto Sales or of Said acting in a representative capacity, and Rosemarie Ritter and William Ritter signed the purchase contract, as sellers in their capacity as "partner[s]." Underneath the Ritters' signatures, address, and telephone number, appear two additional blank signature lines with a handwritten notation of "partner" on each. The purchase contract neither identifies Rahbars & Ritters as the seller, nor identifies any other partner by name. In addition to signing the purchase contract, Said and Rosemarie Ritter signed a disclosure of agency relationship, acknowledging that Rosemarie Ritter and Ritter Co. represented the seller in the transaction contemplated by the purchase contract.

{¶ 4} While negotiating with Said, Rosemarie Ritter handwrote into the purchase contract a term requiring the buyer to pay $10,000 earnest money to the seller upon signing, which Said tendered. Rosemarie Ritter also handwrote into the purchase contract an attorney-approval clause, requiring that "[f]inal terms and conditions are subject to approval by both parties attorneys [sic] prior to 7/12/05." The purchase contract provided for a closing on or before July 13, 2005.

{¶ 5} On July 13, 2005, two days after the deadline for attorney approval, Said's attorney received an e-mail containing a new proposed contract from the Rahbars & Ritters' attorney, Donald T. Plank. The new contract included additional terms, including requirements for the construction of a curb cut and the installation of city water lines for the benefit of adjacent property owned by members of Rahbars & Ritters, a deadline for commencement of development, an irrevocable letter of credit in the amount of $125,000 payable to Rahbars & Ritters, and the right to a return of the property to Rahbars & Ritters under certain conditions without compensation for improvements thereto. The July 13, 2005 e-mail from attorney Plank was Said's first indication that either appellees or their counsel were dissatisfied with the terms of the purchase contract. Rahbars & Ritters refused to close under the purchase contract on July 13, 2005.

{¶ 6} On May 12, 2006, the parties filed cross-motions for summary judgment. Appellees moved for summary judgment on appellants' claims, arguing primarily that the attorney-approval clause in the purchase contract had not been satisfied and that the two remaining members of Rahbars & Ritters had not signed the purchase contract.⁴ In support of their motion, appellees submitted an affidavit from attorney Plank, who stated that he had received the purchase contract from his client prior to July 12, 2005, and added, "At no time did I approve the Offer." In their own motion, appellants requested an order of specific performance, arguing that the Ritters' signatures had bound Rahbars & Ritters to the purchase contract and that the attorney-approval clause was satisfied or waived because neither Said nor his attorney had received notice that the Rahbars & Ritters attorney had disapproved the purchase contract before July 12, 2005. The parties fully briefed the cross-motions for summary judgment.

{¶ 7} On August 9, 2006, the trial court issued a decision and entry granting in part and denying in part the cross-motions for summary judgment. Specifically, the trial court granted summary judgment in favor of appellants on their conversion claim and on appellees' cross-claims for violations of R.C. 2323.51, violations of Civ.R. 11, and slander of title. The trial court granted summary judgment in favor of appellees on appellants' claims for breach of contract, specific performance, and injunctive relief. The trial court denied both motions for summary judgment on appellants' claim for promissory estoppel and appellees' counterclaim for intentional interference with business relations. With respect to appellants' primary claim for breach of contract, the trial court concluded that although the Ritters had authority to bind Rahbars & Ritters, the purchase contract did not become binding on either party because the condition precedent requiring attorney approval was not satisfied. Despite issuing a combined decision and entry on August 9, 2006, the trial court again journalized its decision on the motions for summary judgment on September 1, 2006, stating that the judgment was not a "terminating" entry.

{¶ 8} On November 14, 2006, the parties filed a document captioned "Stipulated Mutual Dismissals Without Prejudice of Remaining Claims Pursuant to Civil Rule 41(A)," rendering the trial court's previous entry of summary judgment a final appealable order.

{¶ 9} Appellants filed a timely notice of appeal on December 12, 2006, and appellees filed a notice of cross-appeal on December 22, 2006. Appellants assert two assignments of error:

FIRST ASSIGNMENT OF ERROR:

The trial court erred in finding that no binding contract existed between the parties due to the purported "attorney approval" clause.

SECOND ASSIGNMENT OF ERROR:

The trial court erred in denying Plaintiffs' Motion for Summary Judgment and in granting Defendants' Motion for Partial Summary Judgment.

Appellees assert the following four cross-assignments of error:

ASSIGNMENT OF ERROR I

The trial court erred as a matter of law by finding that the signatures of Defendants-Appellees Mr. and Mrs. Ritter provided the authority to bind Defendant-Appellee [Rahbars & Ritters] when the real estate purchase proposal had two additional hand-written signature lines for two of the four members and that those two members, representing 50 percent of the ownership of [Rahbars & Ritters], never signed the document.

ASSIGNMENT OF ERROR II

The trial court erred as a matter of law in not granting Defendants-Appellees' motion for summary judgment on Plaintiffs-Appellants' promissory estoppel claims because Plaintiff[s]-Appellants put forth no evidence of justifiable reliance and because a party cannot claim that both an express contract and quasi contract exist over the same subject matter.

ASSIGNMENT OF ERROR III

The trial court erred as a matter of law in granting Plaintiffs-Appellants' motion for summary judgment against Defendants-Appellees on Plaintiffs-Appellants' conversion claim because Plaintiffs-Appellants never moved the trial court for summary judgment on this claim.

ASSIGNMENT OF ERROR IV

The trial court erred as a matter of law in granting Plaintiffs-Appellants' motion for summary judgment against Defendants-Appellees on Defendants-Appellees' counterclaims because neither Plaintiffs-Appellants nor Defendants-Appellees ever moved the trial court for summary judgment on these claims.

{¶ 10} All of the assignments of error stem from the trial court's disposition of the parties' motions for summary judgment. Appellate review of summary judgments is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, 641 N.E.2d 265, citing Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153. When an appellate court reviews a trial court's disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court's determination. Maust...