Mishler v. Hale

• Decision Date: 31 December 2014
• Docket Number: No. 25962.,25962.
• Citation: 26 N.E.3d 1260
• Court: Ohio Court of Appeals
• Parties: Mark MISHLER, et al., Plaintiffs–Appellees v. Michael HALE, Defendant–Appellant.

26 N.E.3d 1260

Mark MISHLER, et al., Plaintiffs–Appellees

v.Michael HALE, Defendant–Appellant.

No. 25962.

Court of Appeals of Ohio, Second District, Montgomery County.

Dec. 31, 2014.

Nicholas E. Subashi, and Anne P. Keeton, Dayton, OH, for Plaintiffs–Appellees and Counterclaim Defendants–Appellees.

Anthony R. Cicero, Dayton, OH, for Defendant–Appellant.

OPINION

FROELICH

, P.J.

{¶ 1} Defendant-appellant, Michael Hale, appeals from a judgment of the Montgomery County Common Pleas Court which dismissed his counterclaims for specific performance, promissory estoppel and fraud, in favor of the Plaintiffs-appellees, Mark Mishler, Cin–Day Investments, LLC, and Counterclaim Defendants-appellees, William Apostelos and Connie Coleman–Apostelos. For the following reasons, the judgment of the trial court will be affirmed.

I. Factual and Procedural History

{¶ 2} This appeal involves a dispute between the title owner of a residential home, Mishler, and the person who occupied the home, Hale, for over seven years, from March 13, 2006 to Oct. 31, 2013. The legal issues arise from the terms of two written agreements and an addendum, executed by the parties, which included provisions regarding a lease and an option to purchase. Hale claimed that he exercised the option to purchase in 2007, and that all subsequent payments should be credited toward the purchase price. Mishler claimed that the option to purchase was never exercised and that when the payments ceased he had the right to pursue restitution of the premises through a forcible entry and detainer action. The trial court granted restitution of the premises to Mishler on Sept. 25, 2013. Subsequently, the parties entered in an Agreed Entry in which Hale agreed to vacate the premises on or before Oct. 31, 2013.

{¶ 3} The property which is the subject of this action is a residential home located at 80 Park Villa Court, Centerville, Ohio, where Hale resided with his family from 2006 to 2013. Hale initially moved into the house pursuant to an agreement entitled a “Lease with Purchase Option” dated March 13, 2006 (Defense Exhibit C), hereinafter referred to as the “first agreement.” At the time he entered into the first agreement, Hale was a licensed real estate agent, and had been working at a local real estate firm for approximately 18 months. Mark Mishler was the title owner of the property, and Cin–Day Investments, LLC, acted as the property management firm. Mishler has an M.B.A. and 30 years experience in corporate financial management, as a financial analyst, strategic planner and financial controller for several large corporations. Mishler owns approximately 25 houses for investment purposes. Cin–Day is one of several LLC's set up by Mishler to hold property and/or manage the properties. William Apostelos was the person who actually managed the Park Villa property on behalf of Mishler and Cin–Day, and he is the person who brokered a separate agreement with Hale's father, Lee Hale, to reduce the purchase price of the Park Villa property, which led to the execution of a second agreement between the parties.

{¶ 4} At the time of the transactions, Apostelos was a licensed loan officer, and had previously held a real estate broker's license. Apostelos employed Connie Coleman, in an administrative support role for several different business ventures he owned or operated including but not limited to a home remodeling business, a carpet store and rental property management. Later, Apostelos married Connie Coleman, who became Connie Coleman Apostelos, and she became a partner in some of his business ventures.

{¶ 5} The first agreement had a two year term, commencing on May 1, 2006 and ending on May 1, 2008. It required Hale to make monthly payments of $2,000.00, and to assume all expenses for utilities and maintenance of the premises. The agreement prohibited Hale from making any alterations or improvements to the property, without the prior written consent of the Lessor, and any such improvements expressly became the property of the Lessor, unless otherwise provided by a written agreement.

{¶ 6} The terms of the first agreement contain a “purchase option” provision, in paragraph 31, which states as follows:

Purchase Option. It is agreed that Lessee shall have the option to purchase real estate known as: 80 Park Villa Court, Centerville, OH 45459 for the purchase price of Two Hundred Forty Four Thousand Dollars ($244,000.00) with a down payment of Fifteen Thousand Dollars ($15,000.00) payable upon exercise of said purchase option, and with a closing date no later than 30 days thereafter. This purchase option must be exercised in writing no later than April 30, 2008, but shall not be effective should the Lessee be in default under any terms of this lease or upon any termination of this lease. If Lessee decides not to exercise the purchase option at that time the deposit of Fifteen Thousand Dollars ($15,000.00) is not refundable.

{¶ 7} The first agreement was signed by Connie Coleman¹ and Michael Hale, dated March 13, 2006. Above Connie Coleman's signature was hand written “Cin–Day Investment & Mark Mishler.” Attached to the original complaint for restitution of the premises was a different agreement, also dated March 13, 2006, which was nearly identical to the first agreement, except for the terms highlighted below. The signatures on the second agreement are not identical with the first agreement, and are witnessed by a notary. The notary admitted that the signature dates on the second agreement were incorrect, and that it was actually signed sometime after June 5, 2007.

{¶ 8} Two provisions in the second agreement are different than the first agreement. Paragraph 1 of both agreements identifies the obligation to pay monthly rent in the sum of $2,000.00, but the second agreement adds a sentence that states, “Full Two Thousand Dollars ($2,000.00) to be applied to the purchase price. ”

{¶ 9} The language of the option to purchase in the second agreement, at paragraph 31, provides as follows:

Purchase Option. It is agreed that Lessee shall have the option to purchase real estate known as: 80 Park Villa Court, Centerville, OH 45459 for the purchase price of Two Hundred Forty Four Thousand Dollars ($244,000.00) with a down payment of Fifteen Thousand Dollars ($15,000.00), and an interest credit of Two Thousand Dollars ($2000.00) per month for an interest credit total of Forty Eight Thousand Dollars ($48,000.00) and a credit of Eighty One Thousand Dollars ($81,000.00) for upgrades and renovations done to the property, payable upon exercise of said purchase option, for a final sale price of One Hundred Thousand Dollars ($100,000.00) and with a closing date no later than 30 days thereafter. This purchase option must be exercised in writing no later than April 30, 2008 but shall not be effective should the Lessee be in default under any terms of this lease or upon any termination of this lease. If Lessee decides not to exercise the purchase option at that time the deposit of Fifteen Thousand Dollars ($15,000.00) is not refundable.

$244,000.00	Purchase price
	–48,000.00	Interest credit
	–81,000.00	Upgrades and renovations
	–15,000.00	Down payment received
	$100,000.00	Final Sale Price

{¶ 10} In response to the motion for summary judgment, Hale claimed that the change in terms from the first agreement to second agreement was precipitated by a separate business transaction between his father, Lee Hale, and William Apostelos, which included an agreement to reduce the purchase price of the Villa Park residence. The record contains a “RELEASE OF LEASE & NOTE” that is dated June 5, 2007. The Release is signed by “LEE HALE, LEASOR & NOTE HOLDER” and “CONNIE COLEMAN, PRESIDENT CARMEN–COLEMAN, INC. LEASEE & NOTE BORROWER.” The Release provides:

I, LEE HALE, PRESIDENT OF L & H REAL ESTATE, LLC, AGREE TO RELEASE THE LEASE & NOTE DATED MAY 31, 2006 SIGNED BY CARMEN–COLEMAN, INC AND PERSONALLY GAURANTEED [SIC] BY WILLIAM APOSPELOS [SIC] CONCERNING “DELTA CARPET” (the Business Note) AND 4521 FREDERICK PIKE (the Leased Property) UPON THE FOLLOWING TERMS:

1. A NEW LEASE PURCHASE AGREEMENT FOR 80 PARK VILLA COURT IN CENTERVILLE, OHIO, IN THE AMOUNT OF $100,000.00

2. ALL ASSETS FOR DELTA CARPET IS [SIC] TURNED BACK OVER TO LEE HALE, WITH THE EXCEPTION OF ONE COMPUTER.

{¶ 11} The “Release of Lease and Note” is not signed by anyone identified as a representative of Cin–Day Investments, Mishler or Michael Hale. The terms of the “Release of Lease and Note” relating to the Villa Park property also do not match the terms of the second agreement, nor the terms of an addendum to the agreement, dated Jan. 7, 2009.

{¶ 12} An “ADENDUM [SIC] TO LEASE WITH PURCHASE OPTION” was signed by Hale, and a representative of the Lessee² , Cin–Day Investments, LLC on January 7, 2009. The addendum provides, in part:

FOR: 80 Park Villa Court Centerville, OH 45459

Beginning purchase amount $144,000.00.

Monthly rental amount to change from $2000.00 to $1000.00 with purchase price to adjust up monthly starting in February 2009.

{¶ 13} The addendum also shows a schedule setting forth the month, year, previous rent amount, new rent amount, old purchase price, and new purchase price beginning in February 2009 and ending in May 2011. The schedule states that as of February 2009, the rental amount was $1,000.00, the old purchase price was $144,000.00, and the new purchase price was $145,000.00. The last date on the schedule, May 2011, reflects that the new rent amount remained at $1,000.00, the old purchase price was $171,000, and the new purchase price was $172,000.00.

{¶ 14} Plaintiffs' motion for summary judgment asked for a judgment on their claim for restitution of the premises, and to dismiss all of Hale's counterclaims. The motion for summary judgment was supported by the depositions of Hale, Connie Coleman–Apostelos, William Apostelos, Carolyn Prater (the notary), and Defendant's answers to interrogatories and request for admissions. Hale's response to the...