[Cite as Burgh v. Potter, 2025-Ohio-2765.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
STEPHEN R. BURGH, et. al., : Case No. 24CA3 : Plaintiffs-Appellants, : : : v. : DECISION AND JUDGMENT : ENTRY VIOLET POTTER, Individually and : as Guardian of Gladys Swank, : : RELEASED: 07/29/2025 Defendant-Appellee. :
APPEARANCES:
John A. Gleason, Gleason Law Office, LLC, Columbus, Ohio, for appellants.
William L. Burton, Marietta, Ohio, for appellee.
Wilkin, J.
{¶1} Appellants, Stephen R. Burgh and Sevren Burgh (the “Burghs”),
appeal a Washington County Court of Common Pleas judgment entry that
dismissed their complaint against appellee, Violet Potter, Individually and as
Guardian of Gladys Swank (“Potter”), for failure to state a claim upon which relief
could be granted under Civ.R. 12(B)(6). The Burghs assert three assignments of
error on appeal. The first assignment of error challenges the trial court’s decision
to grant the motion to dismiss, arguing that the complaint did state a claim upon
which relief could be granted. The second assignment of error questions the trial
court’s determination that the Letter of Understanding (“LOU”) was not a contract.
The third assignment of error challenges the trial court’s decision that the
existence of a contract is a legal issue for the court to decide. Washington App. No. 24CA3 2
{¶2} After reviewing the parties’ arguments, the law, and the record in this
case, we sustain Burghs first and second assignments of error but overrule their
third assignment of error. Therefore, we reverse the judgment of dismissal and
remand the matter to the trial court.
PROCEDURAL BACKGROUND
{¶3} On September 12, 2023, the Burghs filed a complaint against Potter
individually and as guardian of Gladys Swank (“Mrs. Swank”), which alleged the
following. The Burghs are Florida residents who have been visiting Washington
County three times a year for more than 26 years. Potter is an Ohio resident and
guardian of her grandmother, Mrs. Swank.
{¶4} The Burghs’ complaint alleged that they were “great friends” with Mrs.
Swank and her husband. The Burghs considered Mrs. Swank as a “grandmother
figure.” Every year, for at least 26 years, the Burghs stayed in a trailer located on
an Ohio property owned by the Swanks (“the property”). The trailer was
maintained by the Burghs and contained only their personal property, including
“tree stands” worth $15,000.
{¶5} The Burghs maintained that Mrs. Swank was aware that they wanted
to purchase approximately 80 acres of the property from her, and she wanted
them to have the right to purchase that property. After Mr. Swank passed away,
Mrs. Swank and the Burghs memorialized their desire that the Burghs acquire
the property by entering into the LOU.
{¶6} The LOU asserted that because Mr. Swank’s name was on the
property title, the property could not be transferred to the Burghs until it was titled Washington App. No. 24CA3 3
solely to Mrs. Swank. Therefore, the LOU stated: “ ‘The Right of First Refusal
can be prepared and processed as soon as a Survivorship Affidavit is filed with
the Washington County Recorder . . .’ ” [ellipses original]. However, before the
Survivorship Affidavit was prepared, Tim Loughry was appointed Mrs. Swank ’s
guardian.
{¶7} The Burghs provided title reports for the property to Loughry, as well
as other property owned by the Swanks, and expressed their desire to go
forward with the LOU. However, Potter, filed a motion to substitute for Loughry
as Mrs. Swank ’s guardian, which was granted and in her motion she asserted
that “ ‘[t]here is currently a disputed agreement to sell property, which [the
Burghs] believe[ ] the current guardian is willing to participate in.’ ”
{¶8} In addition to a right of first refusal to purchase the property, Mrs.
Swank also wanted, and the LOU provided, that the Burghs were to be provided
a Recreational License Agreement to hunt on Mrs. Swank’s property beyond the
80 acres they would purchase. However, the license could not be recorded until
Mr. Swank’s interest in the property was transferred to Mrs. Swank, which likely
required opening an estate administration.
{¶9} Even though Potter signed the LOU, she subsequently maintained
that the LOU was not enforceable, so the Burghs were not entitled to a right of
first refusal on the property or the recreational license. Consequently, the Burghs
filed a five-count complaint seeking: (1) declaratory judgment that the LOU is
valid and enforceable, (2) specific performance, (3) a breach of contract finding
and $25,000 in damages, (4) injunctive relief to enjoin Potter from interfering with Washington App. No. 24CA3 4
the Burghs use of the property, license, or use of the trailer, and (5) a finding that
Potter intentionally interfered with the contract herein.
{¶10} On October 12, 2023, Potter filed a Civ.R. 12(B)(6) motion to
dismiss the Burghs’ complaint. Potter claimed that her only involvement in this
case is in her role as a guardian for Mrs. Swank. Therefore, she is not a proper
party in this case. Consequently, the Burghs’ claims against her individually
failed to state a claim upon which relief could be granted.
{¶11} Potter also argued that the LOU was not an offer of first refusal. It
was simply an offer to negotiate a right of first refusal. This is evidenced by the
introductory sentence, which states: “Stephen Burgh, Jr., and Stephen Timothy
Severn Timothy Burgh, have engaged the office of Joseph E. Budde, ESQ to
assist in preparing and filing the following documents[.]”
{¶12} Potter also claimed that pursuant to the LOU document, time is of
the essence. Because the document was signed in 2020, and neither a right of
first refusal or license agreement have ever been drafted, the document was
void.
{¶13} Finally, Potter maintained that the LOU is not a contract because
there is no offer, acceptance, or consideration because the terms and nature of
the documents to be drafted are not stated therein.
{¶14} On November 15, 2023, The Burghs filed a memorandum in
opposition. They claimed that Potter was a proper party not only as Mrs.
Swanks’ guardian, but also as an individual. Washington App. No. 24CA3 5
{¶15} The Burghs also claimed that the LOU was a valid contract,
“especially given the facts of this case.” Mrs. Swank wanted the Burghs to
purchase the property and to continue to hunt as they had in the past. The
signatures on the LOU represent both the offer and acceptance by the parties,
and it sets out the responsibilities of the parties. Mrs. Swank and Potter agreed
to sell the property to the Burghs for the auditor’s assessed value, which shows
consideration. The Burghs claimed additional facts would be developed during
discovery.
{¶16} Potter filed a reply arguing that the LOU is insufficient to support the
Burghs claims. She emphasizes that the terms of the right of first refusal are
ambiguous and unenforceable, and no such document exists. Potter argues that
the Burghs have not fulfilled their obligations, such as filing an affidavit of
survivorship. She notes that the Burghs waited over 975 days before taking any
action, which is unreasonable given the “time is of the essence” clause. Finally,
she concludes that the lawsuit should be dismissed as the LOU does not support
the claims and the Burghs have not shown a readiness or willingness to perform
their obligations. Therefore, the motion to dismiss should be granted.
{¶17} On December 18, 2023, the trial court issued a decision and
judgment entry that granted Potter’s Civ.R. 12(B)(6) motion to dismiss the
Burghs’ complaint. After reviewing the LOU, the court found that it was not a
contract, and imposed upon Potter no legal obligation to perform any act. The
court found there was no offer, acceptance, or consideration, but rather the LOU
was unambiguously a letter of engagement for Attorney Budde to perform some Washington App. No. 24CA3 6
legal work in the future for the Burghs. The court pointed out that the LOU
outlined what conditions precedent the attorney was required to perform before
he could do the legal work, e.g., draft the right of first refusal.
{¶18} The court found that the interpretation of the terms of the LOU was
a legal issue for the court to decide. Finding that it was not a contract, the court
granted Potter’s Civ.R 12(B)(6) motion to dismiss because the Burghs’ complaint
{¶19} It is this judgment that the Burghs appeal.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION TO DISMISS BECAUSE ASSUMING ALL THE FACTS IN APPELLEE’S COMPLAINT TO BE TRUE, AND MAKING ALL REASONABLE INFERENCES IN FAVOR OF APPELLANTS, THE COMPLAINT IN THIS CASE STATED A CLAIM UPON WHICH RELIEF COULD BE GRANTED.
II. THE TRIAL COURT ERRED IN HOLDING THAT THE LETTER OF UNDERSTANDING WAS NOT A CONTRACT.
III. THE TRIAL COURT ERRED IN HOLDING THAT WHETHER A CONTRACT EXISTS IS FOR THE COURT TO DECIDE.
{¶20} The Burghs’ first and second assignments of error essentially raise
the same issue, i.e., the trial court erred in determining that the LOU was not a
contract, and; thus, the Burghs failed to state a claim upon which relief could be
granted.
{¶21} In the Burghs’ first assignment of error they assert that the trial court
erred in granting Potter’s motion to dismiss because assuming all facts in the
Burghs’ complaint to be true, and making all reasonable inferences in favor of the Washington App. No. 24CA3 7
Burghs, the complaint in this case stated a claim upon which relief could be
{¶22} The Burghs allege that a complaint needs to only set out a short and
plain statement of the plaintiff’s claim, and is not required to plead operative facts
with particularity. The Burghs claim that they do not need to prove their case at
the pleading stage. Rather, the case is developed though discovery.
{¶23} The Burghs assert that they have sufficiently alleged that there was
an agreement between the parties, but then Potter, both individually, and in her
capacity as Mrs. Swank’s guardian, refused to comply with the terms of that
agreement. Therefore, the Burghs claim that they have stated a claim upon
which relief can be granted.
{¶24} In the Burghs second assignment of error they argue that the trial
court erred when it held that the LOU was not a contract. Mrs. Swank desired to
sell the property to the Burghs but could not do so until a survivorship affidavit
was recorded. The LOU was entered into by the parties to set forth their legal
rights and responsibilities until the affidavit was recorded. Mrs. Swank paid a
lawyer to start that process. However, prior to completion of that process, a
guardian was appointed for Mrs. Swank.
{¶25} The Burghs do not dispute that the LOU is not a right of first refusal.
However, they claim it is an agreement setting forth the parties’ rights and
responsibilities once the survivorship affidavit is recorded. The Burghs claim that
an agreement to make an agreement does not necessarily make the initial
agreement unenforceable. Enforceability of the initial agreement depends on Washington App. No. 24CA3 8
whether the parties clearly manifested an intent to be bound by the terms, and
whether these intentions are sufficiently definite to be enforced. The Burghs
assert that the LOU is a valid agreement to draft a contract consistent with the
terms discussed in the LOU. That the LOU references that the Burghs engaged
an attorney, or that the referenced agreements were not completed does not
diminish that the LOU is a valid agreement to reach an agreement.
{¶26} In their third assignment of error, the Burghs assert that the trial
court erred in holding that whether a contract exists is for the court to decide,
citing Wilhelm v. Coverstone, 2018-Ohio-3078.
{¶27} Potter’s brief does not respond to each of the Burghs’ assignments
of error, but instead merely asserts that there is no merit to the Burghs’ argument
that the LOU is a contract; it is not.
LAW
A. Standard of Review
{¶28} “Appellate courts conduct a de novo review of trial court decisions
granting a Civ.R. 12(B)(6) motion to dismiss.” Alexander Loc. Sch. Dist. Bd. of
Educ. v. Vill. of Albany, 2017-Ohio-8704, ¶ 22 (4th Dist.), citing State ex rel. Ohio
Civ. Serv. Emps. Assn. v. State, 2016-Ohio-478, ¶ 12. Therefore, in reviewing a
trial court’s decision regarding a Civ.R. 12(B)(6) motion to dismiss, “we afford no
deference to the trial court's decision and apply our own, independent review to
determine if the requirements of Civ.R. 12(B)(6) were satisfied.” Estep v. State,
2009-Ohio-4349, ¶ 5 (4th Dist.).
B. Civ.R. 12(B)(6) Washington App. No. 24CA3 9
{¶29} “Civ.R. 12(B)(6) allows a party to file a motion to dismiss a
complaint for failing to state a claim upon which relief can be granted. ‘[A] Civ.R.
12(B)(6) motion to dismiss tests only the sufficiency of the allegations.’ ”
(Brackets original) Alexander Loc. Sch. Dist. Bd. of Educ., 2017-Ohio-8704, ¶ 23
(4th Dist.), quoting Volbers-Klarich v. Middletown Mgt., Inc., 2010-Ohio-2057, ¶ 9.
Therefore, “ ‘Rule 12(B)(6) motions should be granted only where the allegations
in the complaint show the court to a certainty that the plaintiff can prove no set of
facts upon which he might recover.’ ” Id., quoting Slife v. Kundtz Properties, Inc.,
40 Ohio App.2d 179, 185-86 (8th Dist. 1974).
{¶30} In reviewing a Civ.R. 12(B)(6) motion to dismiss, a “court must
presume that all factual allegations contained in the complaint are true and must
construe all reasonable inferences in favor of the nonmoving party.” Varney v.
Allen, 2017-Ohio-1409, ¶ 15 (4th Dist.), citing State ex rel. Talwar v. State Med.
Bd. of Ohio, 2004-Ohio-6410, ¶ 5. “ ‘This standard is consistent with Civ.R. 8(A),
which provides for notice pleading and requires only (1) “a short and plain,
statement of the claim showing that the pleader is entitled to relief, and (2) a
demand for judgment for the relief to which he deems himself entitled.” ’ ”
Alexander Loc. Sch. Dist. Bd. of Educ. at ¶ 24, quoting State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 549 (1992), quoting York v.
Ohio State Highway Patrol, 60 Ohio St.3d 143, 144-145 (1991). “Accordingly, a
complaint is not ‘fatally defective and subject to dismissal’ simply because it does
not set forth each element of a cause of action ‘with crystalline specificity.’ ” Id.,
quoting Border City Sav. & Loan Ass'n. v. Moan, 15 Ohio St.3d 65, 66 (1984). Washington App. No. 24CA3 10
{¶31} Furthermore, a court that is reviewing a Civ.R. 12(B)(6) motion to
dismiss “cannot rely on evidence or allegations outside the complaint.” State ex
rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207 (1997). However, “[m]aterial
incorporated in a complaint may be considered part of the complaint for purposes
of determining a Civ.R. 12(B)(6) motion to dismiss.” State ex rel. Crabtree v.
Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249 (1997), fn. 1. Thus, a court
may consider written instruments attached to a complaint when ruling on a Civ.R.
12(B)(6) motion to dismiss. Cooper v. Highland Cty. Bd. Of Commrs., 2002-
Ohio-2353, ¶ 9 (4th Dist.).
{¶32} Finally, “[a] motion to dismiss for failure to state a claim is viewed
with disfavor and is rarely granted.” Wilson v. Riverside Hosp., 18 Ohio St.3d 8,
9-10, (1985), citing 5 Wright & Miller, Federal Practice and Procedure Section
1357 at 593, 598 (1969). Consequently, Civ.R. 12(B)(6) dismissals are “reserved
for the rare case that cannot possibly succeed.” Tri-State Computer Exchange,
Inc. v. Burt, 2003-Ohio-3197, ¶ 12 (1st Dist.).
C. Preliminary Agreements
{¶33} “Ohio has long recognized the general validity of preliminary
agreements[.]” Normandy Place Assocs. v. Beyer, 2 Ohio St. 3d 102, 105
(1982), citing Rhodes v. Baird, 16 Ohio St. 573 (1886). See also M.J. DiCorpo,
Inc. v. Sweeney, 1994-Ohio-316, 69 Ohio St.3d 497 (1994). A “preliminary
agreement” is “an agreement to make an agreement.” Columbia Props., Inc. v.
Tiedeman Distribution Co., 1988 WL 86964, * 2 (8th Dist. July 28, 1988).
Consistent with contract law, “[t]he enforceability of such an agreement depends Washington App. No. 24CA3 11
[ ] on whether the parties have manifested an intention to be bound by its terms
and whether these intentions are sufficiently definite to be specifically enforced.”
Beyer at 105-106, citing Restatement of Contracts 2d 75, Section 26; 1 Corbin on
Contracts 97, Section 30. “ ‘If it is found that the parties intended to be bound,
the court should not frustrate this intention, if it is reasonably possible to fill in
some gaps that the parties have left, and reach a fair and just result. [Citations
omitted.][.]’ ” Oglebay Norton Co. v. Armco, Inc., 1989 WL 36718, *4 (8th Dist.
Apr. 13, 1989), quoting Litsinger v. American Sign Co. , 11 Ohio St.2d 1, 14
(1967). Finally, “[w]hether the parties intended a contract remains a factual
question, not a legal one, and as such is an issue to be resolved by the finder of
fact.” Beyer, 2 Ohio St. 3d at 106, citing Arnold Palmer Golf Co. v. Fuqua
Industries, Inc., 541 F.2d 584, 588 (6th Cir. 1976).
ANALYSIS
A. First and Second Assignments of Error
{¶34} The Burghs first and second assignments of error essentially claim
that the trial court erred in determining the LOU was not a contract and
dismissing their complaint for failure to state a claim upon which relief can be
granted. Therefore, we will address the two assignments of error together. See
Hiener v. Kelly, 1999 WL 595363, * 4 (4th Dist. July 23, 1999) (Where several
assignments of error addressed similar issues we consolidated them “[i]n the
interest of judicial economy and justice.”).
{¶35} The court found that the LOU was not a contract between the
Burghs and Mrs. Swank/Potter. It imposed no legal obligation on any of the Washington App. No. 24CA3 12
parties. Thus, the court determined that Burghs’ complaint failed to state a claim
upon which relief could be granted.
{¶36} In their complaint, the Burghs alleged that they were “great friends”
with Mrs. Swank and her husband. The Burghs considered Mrs. Swank as a
“grandmother figure.” Every year, for at least 26 years, the Burghs stayed in a
trailer located on their property.
{¶37} The complaint further maintained that Mrs. Swank was aware that
the Burghs wanted to purchase the property from her, and she wanted to give
them the right to purchase the property. After Mr. Swank passed away, Mrs.
Swank and the Burghs memorialized their desire that the Burghs acquire the
property by entering into the LOU, which was attached to the Burghs’ complaint.
{¶38} The title “LOU” suggests a preliminary agreement. As stated infra,
preliminary agreements can be enforced if the parties have manifested an intent
to be bound by its terms and whether these intentions are sufficiently definite to
be enforced. The LOU references the right of first refusal, and the price of the
property as determined by the auditor’s value. It sets out in detail the property’s
location and that the recreational license agreement permits hunting not only on
the property, but on additional acreage that was still owned by Mrs. Swank. The
LOU states that “[t]he parties hereby acknowledge and agree to diligently
endeavor to achieve the goals of this Letter of Understanding knowing that time
is of the essence.” (Emphasis added.). Finally, the Burghs, Mrs. Swank, and
Potter, all signed the agreement. Washington App. No. 24CA3 13
{¶39} If we presume that all factual allegations contained in the Burghs’
complaint are true, and, construe all reasonable inferences from those
allegations in the Burghs’ favor, together with the language in the LOU, we find
that the Burghs’ complaint potentially states a claim for which relief can be
granted under Civ.R. 12(B)(6). Consequently, we find that the trial court erred by
dismissing the Burghs’ complaint under Civ.R. 12(B)(6). Therefore, we sustain
the Burghs’ first and second assignments of error.
B. Third Assignment of Error
{¶40} In their third assignment of error, the Burghs assert that the trial
court erred in holding that whether a contract exists is for the court to decide.
The Burghs maintain that determining whether a contract exists “is a question for
the trier of fact[,]” citing, among other cases, Wilhelm v. Coverstone, 2018-Ohio-
3078, ¶ 38.
{¶41} The Supreme Court has decreed that determining whether parties
intend to contract is a matter of fact as set out in Beyer while “[t]he construction
of written contracts and instruments of conveyance is a matter of law.”
Alexander v. Buckeye Pipe Line Co., 53 Ohio St. 2d 241 (1978), paragraph one
of the syllabus.
{¶42} In the instant case, the trial court determined that the LOU was not a
contract between the parties, but determined it was an engagement letter
between the Burghs and Attorney Budde. It was only the interpretation of the
terms of the letter of engagement between the Burghs and Attorney Budde that
the court found was a matter of law for the court to decide. Washington App. No. 24CA3 14
{¶43} Therefore, because the trial court did not hold that determining
whether a contract exists is a matter of law, it did not err in this regard.
Accordingly, we overrule the Burghs third assignment of error.
CONCLUSION
{¶44} We note that “a dismissal on the pleadings under Civ.R. 12(B)(6) is
reserved for the rare case that cannot possibly succeed, and it should not be
granted simply because the court many have reservations about the plaintiff's
ultimate chance of success on the merits.” Tri-State Computer Exch., Inc. v.
Burt, 2003-Ohio-3197, ¶ 12 (1st Dist.), citing Leichtman v. WLW Jacor
Communications, Inc., 92 Ohio App.3d 232, 234 (1st Dist. 1994). “Reversal of
the judgment [granting a Civ.R. 12(B)(6) motion], however, does not mean that
appellant will prevail upon remand. What it does mean is that appellant has
alleged the facts necessary to withstand a motion to dismiss and will now have
the opportunity to pursue its claims.” Cincinnati v. Beretta U.S.A. Corp., 2002-
Ohio-2480, ¶ 51.
{¶45} Based on our de novo review, we find the Burghs’ complaint
potentially states a claim upon which relief can be granted. Therefore, the trial
court erred in dismissing the Burghs complaint under Civ.R. 12(B)(6).
Accordingly, we reverse the trial court’s judgment entry of dismissal, and remand
the cause to the trial court for further proceedings.
JUDGMENT REVERSED AND CAUSE REMANDED. Washington App. No. 24CA3 15
Smith, P.J., dissenting
{¶46} I respectfully dissent from my colleagues’ majority opinion. I agree
with the trial court’s decision that the Letter of Understanding is not a contract
and I would affirm the trial court’s decision. Washington App. No. 24CA3 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED AND REMANDED and appellant and appellee shall share paying the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J.: Concurs in Judgment and Opinion. Smith, P.J.: Dissents with Dissenting Opinion.
For the Court,
BY: ____________________________ Kristy S. Wilkin, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.