Plikerd v. Mongeluzzo

• Decision Date: 07 February 1992
• Docket Number: No. 1-90-62,1-90-62
• Citation: 73 Ohio App.3d 115,596 N.E.2d 601
• Parties: PLIKERD et al., Appellants, v. MONGELUZZO et al., Appellees.
• Court: Ohio Court of Appeals

Page 115

73 Ohio App.3d 115

596 N.E.2d 601

PLIKERD et al., Appellants, v. MONGELUZZO et al., Appellees.

No. 1-90-62.

Court of Appeals of Ohio, Third District, Allen County.

Decided Feb. 7, 1992.

Ronald H. Miller, Wapakoneta, for appellants.

Matt C. Staley, Lima, for appellees, M.F. Waste Ventures, Inc., John Mongeluzzo and Arnold B. Fink.

Cory, Meredith, Witter, Roush & Cheney and David A. Cheney, Lima, for appellee Curtiss Hager.

Meister, Ayers & Meister Co., L.P.A., and Andrew J. Ayers, Toledo, for appellees, Bowser-Morner, Inc., William R. Christy, Donald B. Kirkpatrick, Clayton S. Russell, Jr. and Russell R. Howard.

Fuller & Henry, Martin D. Carrigan and Craig J. Van Horsten; and David A. Domzal, Toledo, for appellee Ohio Waste Systems, Inc.

William J. Welch, pro se.

THOMAS F. BRYANT, Presiding Judge.

This is an appeal by plaintiffs, Wesley F. and Dorothea Plikerd ("Plikerds") from summary judgments entered by the Court of Common Pleas of Allen County in favor of the defendants, John Mongeluzzo, ¹ Arnold B. Fink, M.F. Waste Ventures, Inc., Ohio Waste Systems, Inc., Curtiss Hager, Bowser-Morner Associates, William R. Christy, Donald B. Kirkpatrick, Clayton S. Russell, Jr., Russell R. Howard, and Waste Management, Inc., dismissing plaintiffs' complaint.

On November 17, 1986, Plikerds and real estate salesman, Curtiss Hager ("Hager") in behalf of his employer, Ron Spencer Real Estate, Realtor, entered into an exclusive real estate listing agreement authorizing the broker and thus Hager, the salesman, to solicit offers to purchase and secure a purchaser for Plikerds' one-hundred-sixty-acre farmstead.

On that same day, by signing a written offer presented to them by Hager, for the recited consideration of one dollar, Plikerds granted to John Mongeluzzo ("Mongeluzzo") and Arnold B. Fink ("Fink") an exclusive, renewable option to purchase Plikerds' land within forty-three days after the date of the instrument or within the time for exercise as it might be extended by the optionees' compliance with the option terms.

The option terms provided for four monthly renewals beginning January 1, 1987, upon payment of $500 on the first of each of the four months. The option term could be extended for six additional monthly renewals by payment of $1,000 on the first day of each of the six successive months following the first $1,000 payment beginning May 1, 1987.

Another term of the option permitted Mongeluzzo and Fink to enter the optioned premises to take soil samples "for feaseability [sic ] and engineering studies for qualification of land use."

On January 1, 1987, Mongeluzzo and Fink assigned to M.F. Waste Ventures, Inc. ("MFW") their option to purchase Plikerds' land. Mongeluzzo and Fink are the principal shareholders of MFW, an Ohio corporation.

On December 24, 1986, Plikerds, by counsel, sent notice to Mongeluzzo and Fink purporting to rescind the option agreement, claiming lack of consideration for the agreement and alleging that the option was obtained by Hager's misrepresentation of the proposed use of the land by a prospective purchaser.

Replying by letter of counsel, Mongeluzzo and Fink denied Plikerds' right to unilaterally rescind the option and, accordingly, MFW made a timely tender of the renewal payment due January 1, 1987.

The letter by Plikerds' attorney returning the tendered renewal payment to Mongeluzzo and Fink expressly waived the option requirement for tender of further renewal payments, rejecting them in advance, but purporting to reserve to Plikerds their right to recover payments found to be due, if any, on conclusion of the matter.

Nevertheless, until June 1, 1987, MFW continued to make timely tender of the succeeding renewal payments as they came due, although all those tendered payments were returned also.

During January or February 1987, employees of Bowser-Morner Associates, purporting to act by order of MFW given under authority of its option, entered Plikerds' land and attempted to continue drilling and testing operations begun earlier in Plikerds' absence. Plikerds ordered that the testing operations be halted and the land vacated by Bowser-Morner. At some time after execution of the option agreement, monitoring wells had been installed by Bowser-Morner and later capped by Plikerds.

In the trial court, for purposes of summary judgment, it was apparently conceded by the parties that MFW failed to timely tender the renewal payment due June 1, 1987 and that Plikerds immediately sent to MFW notice reiterating their prior claim of rescission of the option with notice in the alternative that the option to purchase had lapsed as a result of the late June payment. MFW belatedly tendered the June payment, citing Plikerds' earlier waiver of the necessity for tender of option payments. Thereafter, MFW resumed its timely tender of option payments and Plikerds continued to reject and return them.

On October 27, 1987, MFW assigned its interest in the Plikerd option to Ohio Waste Systems, Inc. ("OWS"). The next day, by notice sent in compliance with the terms stated in the option document, OWS attempted to exercise its option to purchase the Plikerd farmstead. Subsequently, after Plikerds refused to accept delivery of the notice of exercise of option, OWS, by letter to Plikerds' counsel, withdrew the notice of exercise of the option.

Thereafter, Plikerds filed their complaint, followed by their first and then second amended complaint asserting numerous, varied claims against the several defendants, based on allegations of lack of consideration for the option agreement, misrepresentation by defendants inducing Plikerds to grant the option, trespass upon real estate, intentional infliction of emotional distress, and breach of contract.

The trial court granted the separate motions for summary judgment in their favor presented by the defendants and dismissed the plaintiffs' complaints entirely. The summary judgment entries recite the trial court's enumeration of facts it believed to be material and undisputed as well as the legal conclusions the court believed reasonable minds would find to be inescapable.

On appeal, appellant Plikerds assert a single assignment of error:

"The trial court committed error prejucial [sic ] to plaintiff-appellants in granting the motions for summary judgment because there were material issues of fact to be determined from the evidence."

On appeal from a summary judgment, the reviewing court must follow the same standards the trial court is required to follow when granting summary judgment. Civ.R. 56(C) requires that the trial court in the first instance and we on appeal must determine from the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, resolving all doubts against the movant, that no genuine issue exists as to any material fact, that reasonable minds could reach no other conclusion, and that the moving party is entitled to judgment as a matter of law.

Thus in the cause before us we consider all the material properly before the court on the several motions for summary judgment, including applicable affidavits and documents properly in the record, and where permissible to do so, Plikerds' deposition testimony and other deposition testimony filed in the trial court.

The party moving for summary judgment bears the burden of showing that when considering the materials presented in support of the motion most favorably for the opposing party, no genuine issue of material fact remains for trial. Once the movant has met this burden, the burden shifts to the party opposing the motion to identify in proper form specific facts showing a genuine issue for trial.

The rule has been summarized as follows:

"The requirement that a party opposing a supported motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial also applies where the plaintiff is the opponent. To oppose a defendant's motion for a summary judgment, the plaintiff must disclose in his affidavits or other documents the facts on which he intends to rely, but is not required to present a prima facie case in order to withstand the motion. There is no burden on the plaintiff to establish his entire case in a pretrial deposition. The allegations of the complaint are not sufficient to defeat a motion by the defendant for summary judgment. The plaintiff must support the allegations with counteraffidavits or other materials. The plaintiff must present evidence in a permissible form that controverts the evidence presented by the defendant. There is, however, no affirmative duty on the plaintiff to present evidence on material issues on which the defendant has presented no evidence in support of his motion for summary judgment.

"The failure of a plaintiff to file any counteraffidavit or present any proof in response to the defendant's motion for summary judgment results in the facts as stated in the defendant's affidavit being accepted as true with the plaintiff unable to rely on the allegations of his complaint if they are inconsistent, but the failure of the plaintiff to respond to the defendant's motion is not conclusive of the right to a summary judgment, which may issue only 'if appropriate' as expressly stated in the Rule." (Footnotes omitted.) 85 Ohio Jurisprudence 3d (1988) 454-456, Summary Judgment and Judgment on the Pleadings, Section 38.

All defendants moved with supporting documents for summary judgment dismissing Plikerds' claims. Plikerds responded only to the motion filed by OWS, but in that response did not set forth as required the disputed issues of fact claimed to be material to decision of the matters of law before the court and requiring trial to resolve them. Thus, the trial court was required to enter judgments for the movants, if appropriate.

To begin our analysis, we...