Park v. Acierno

• Decision Date: 17 March 2005
• Docket Number: No. 04 MA 87.,04 MA 87.
• Citation: 2005 Ohio 1332,160 Ohio App.3d 117,826 N.E.2d 324
• Parties: PARK, Appellant, v. ACIERNO et al., Appellees.
• Court: Ohio Supreme Court

Page 324

826 N.E.2d 324

160 Ohio App.3d 117

2005 Ohio 1332

PARK, Appellant, v. ACIERNO et al., Appellees.

No. 04 MA 87.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Decided March 17, 2005.

James Lanzo, Youngstown, for appellant.

Christopher Newman, Youngstown, for appellees.

VUKOVICH, Judge.

{¶ 1} Plaintiff-appellant, Moon S. Park, appeals the decision of the Mahoning County Common Pleas Court that granted a motion to dismiss filed by defendants-appellees, Anthony and Joann Acierno. The issues presented to this court generally concern whether the trial court considered evidence outside of the pleadings, and more specifically, whether the trial court could view and find the terms of a settlement offer reasonable in order to conclude that a potential purchaser of realty is not entitled to specific performance. For the following reasons, the judgment of the trial court dismissing appellant's action is reversed, and this case is remanded.

STATEMENT OF THE CASE

{¶ 2} On September 29, 2003, appellant filed a complaint for specific performance of a real estate contract against appellees. He alleged that appellees, who are husband and wife, owned realty on Route 224 that they had agreed to sell to him, but when he attempted to close, they refused to complete the sale. Appellant also stated that he incurred expenses, including attorney fees. He claimed that he had no adequate remedy at law and that he will suffer damage in an amount that cannot be determined in money, as the property is unique. As remedies, appellant sought specific performance, costs of the action, and any other relief the court deemed appropriate. He attached what he alleged was the purchase agreement, which stated:

{¶ 3} "The purchase price for the property at 695 Boardman-Canfield Rd in Boardman, Oh. Mr. Moon Park and Anthony Acierno.

{¶ 4} "$370,000.00

{¶ 5} "DEP. 2,000.00

{¶ 6} "BAL 368,000 UPPON [sic] BANK APPROVAL

{¶ 7} "x Anthony Acierno [signature] 2-26-2003

{¶ 8} "x Moon S. Park [signature] 2-26-2003"

{¶ 9} Appellant also attached a carbon page from his checkbook showing that a $2,000 payment was made to Anthony Acierno on February 26, 2003; the memorandum line described the check as a down payment for 695 Boardman-Canfield Road.

{¶ 10} Appellees responded to the complaint by filing a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief could be granted. Appellees argued that the attachment was not a true contract and that it violated the Statute of Frauds because the only essential term it contained was the purchase price. Appellees noted that after February 26, 2003, they signed a form purchase agreement and offered it to appellant; they contended that this further negotiation demonstrated that the initial writing was not a binding contract. They attached this offer, which maintained the total sale price of $370,000 but required two separate down payments of $2,000 and $13,000 and the balance at closing, which was set at on or before January 10, 2004. Appellees framed the document attached to appellant's complaint as "merely establish[ing] the price of a potential sale."

{¶ 11} Appellees also pointed out that the writing relied upon by appellant was not signed by co-owner, Joann Acierno, but noted that the purchase agreement was signed by her. Finally, they argued that even if the writing satisfies the Statute of Frauds, specific performance is inappropriate because only the price is contained in the agreement. Besides attaching the offered purchase agreement, they also attached an affidavit of Anthony Acierno and a letter written by appellees' attorney to appellant's attorney on August 14, 2003, stating that appellant had ten days to sign the offered purchase agreement and until the end of August to "close the bike shop."

{¶ 12} On December 17, 2003, appellant opposed the motion to dismiss, arguing that it presented matters outside of his complaint. He cited Civ.R. 12(B), which requires the court to treat a motion to dismiss as a motion for summary judgment if it presents matters outside the pleading. Appellant then argued that the February 26, 2003 writing satisfied the Statute of Frauds and contained the essential terms.

{¶ 13} As to Joann Acierno, he argued that the question of whether Anthony Acierno was an agent for his wife is a factual question for determination at trial. Appellant attached his affidavit stating the facts surrounding the contract evidenced by the February 26, 2003 memorandum and stating that Anthony Acierno represented that he was the owner, he had authority to sell, and he was authorized by his wife to act as her agent.

{¶ 14} Appellant stated that he applied for a loan and is able to pay the purchase price. He also alleged that he incurred expenses due to the fact that the property was previously a gas station and he had to find tenants. Finally, he claimed that he was ready to close on September 11, 2003, but appellees were planning to sell to a third party.

{¶ 15} Appellees filed a reply in support of their dismissal motion and argued that appellant had failed to satisfy his reciprocal burden to avoid summary judgment. They reiterated that the February 26, 2003 writing did not contain the essential terms, such as a closing date and a definitive statement of intent to sell.

{¶ 16} On January 30, 2004, the trial court stated, "Motion to Dismiss and/or Motion for Summary Judgment is overruled as genuine issues of fact exist." On February 5, 2004, appellees sent a letter to appellant, stating that although they did not agree with the court's decision, they would allow appellant to close on the property by tendering $370,000 on February 26, 2004. The letter concluded by stating that as a condition of the sale, appellant had to dismiss the lawsuit with prejudice, with each party bearing his own costs and attorney's fees.

{¶ 17} On March 10, 2004, appellees filed a renewed motion to dismiss, with the February 5, 2004 letter attached. They incorporated their prior motion by reference and added arguments surrounding their recent offer of sale. Appellees alleged that appellant had failed to close as they had demanded. They thus concluded that appellant did not have the ability or intent to purchase the realty. Appellees also urged that they would suffer grave prejudice and injustice if appellant is permitted to continue to "tie up" their realty any longer.

{¶ 18} On March 29, 2004, a judgment entry was filed concerning a mediation conference scheduled for June. The next entry is an April 8, 2004 judgment entry granting appellees' renewed motion to dismiss. The court noted that appellant did not respond in writing but presented arguments "at the meeting" that appellees' February 5, 2004 offer to close on February 26, 2004, provided insufficient time to obtain financing. The court opined that appellees offered the realty to appellant "on terms that appear reasonable." The court then chastised appellant by stating in its judgment entry:

{¶ 19} "Plaintiff failed to meet the deadline imposed by Defendant, the seller of the property, in spite of the fact that this litigation for specific performance began in September 2003 and concerns Plaintiff's allegations that a written agreement for the sale and purchase of the subject property was made on or about February 26, 2003. Now, over one year later, Plaintiff has not obtained financing for the purchase of the subject property."

{¶ 20} The trial court then agreed with appellees' assertion that appellant cannot obtain financing or has failed to obtain financing within a reasonable time. The court also agreed that appellees would suffer grave prejudice if appellant can continue to "tie up" their property. Upon the trial court's dismissal, appellant filed timely notice of appeal to this court.

ASSIGNMENT OF ERROR NUMBER ONE

{¶ 21} Appellant sets forth the following three assignments of error, all alleging the trial court's dismissal order was improper:

{¶ 22} "The trial court erred by considering evidence outside of the complaint in ruling on the defendant-appellee's renewed 12(B)(6) motion."

{¶ 23} "The trial court erred by applying an arbitrary standard in reviewing the plaintiff-appellant's specific performance claim and by finding the terms dictated by the defendant's settlement offer reasonable without any other evidence thus denying the plaintiff-appellant his due process rights."

{¶ 24} "The trial court committed plain error by permitting the defendant-appellee to present an offer of compromise or attempt to compromise a claim which is disputed to prove invalidity of the claim in violation of Evidence Rule 408 and public policy thus denying the plaintiff-appellant due process of law."

{¶ 25} Under the first assignment of error, appellant briefly argues that the complaint sets forth a legally sufficient claim to withstand a motion to dismiss, the court was not permitted to consider an offer of settlement that was outside the complaint, and there was no evidence that he could not obtain financing. Appellees respond that the trial court was permitted to convert the motion to dismiss into a motion for summary judgment, which would entitle the court to consider evidence outside the pleadings. Appellees conclude that they met their initial summary judgment burden, but appellant failed to meet his reciprocal burden to avoid summary judgment. See Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264.

{¶ 26} Under the second assignment of error, appellant complains that the trial court presumed facts not in evidence, such as his pursuit of financing. Appellant also urges that his claim should not be disposed of due to a failure to obey appellees' command to buy the property within three weeks and to dismiss a lawsuit that seeks more than just specific performance. Appellees respond by claiming that appellant failed to prove he was ready, willing, and able to purchase the property, which is an...