Ed Schory & Sons, Inc. v. Francis

75 Ohio St. 3d 433
CourtOhio Supreme Court
DecidedApril 24, 1996
DocketNo. 94-2201
StatusPublished
Cited by336 cases

This text of 75 Ohio St. 3d 433 (Ed Schory & Sons, Inc. v. Francis) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ed Schory & Sons, Inc. v. Francis, 75 Ohio St. 3d 433 (Ohio 1996).

Opinion

Douglas, J.

The court of appeals affirmed the trial court’s judgment granting summary judgment in favor of Schory & Sons and Schory on all claims asserted against them by Francis and FGC. The court also affirmed the portion of the trial court’s judgment granting summary judgment in favor of Society and Reiber with respect to all contract-based claims advanced against them by Francis and FGC, finding that these claims were barred by the Statute of Frauds or the parol evidence rule. However, the court of appeals held that the trial court had erred in granting summary judgment in favor of Society and Reiber and against Francis and FGC on the claims of negligent misrepresentation, breach of an implied duty of good faith, breach of a fiduciary relationship, and intentional and/or negligent infliction of severe emotional distress.

Society and Reiber have appealed certain issues to this court, and Francis and FGC have filed a cross-appeal with respect to other issues. For the sake of convenience, and where applicable, we will hereinafter refer to Society and Reiber collectively as Society, and refer to Francis and FGC collectively as Francis. Further, we will use “Schory” to refer to both Schory & Sons and Robert G. Schory, Jr.

[438]*438I

Society and Francis

The parties involved in this appeal and cross-appeal have set forth an array of issues for our consideration. Francis contends that material issues of fact exist as to whether Society breached a contract to finance the entire Sherbrook development. Francis claims that the facts of this particular case warrant a finding that such a contract was entered into between the parties, and that the contract was not subject to, or, alternatively, not barred by the Statute of Frauds. Francis also requests that we affirm the judgment of the court of appeals regarding the claims for negligent misrepresentation, breach of an implied duty of good faith, breach of a fiduciary relationship, and intentional and/or negligent infliction of severe emotional distress.

Society, on the other hand, suggests that many, if not all, of the claims asserted by Francis are merely improper attempts to seek enforcement of certain alleged oral statements. Society contends that it did not enter into a contract with Francis to finance the entire project but, rather, that the development was divided into separate phases for purposes of completion and financing. Society also asserts that Francis’s “attempt to enforce the alleged oral agreements which are contradicted by subsequent written loan agreements is prohibited by the Statute of Frauds and parol evidence rule.”

A

Breach of Contract

In Ohio, the Statute of Frauds is embodied in R.C. Chapter 1335. At issue here are R.C. 1335.04 and 1335.05. These statutes state, respectively, in part, that:

“No lease, estate, or interest, either of freehold or term of years, or any uncertain interest of, in, or out of lands, tenements, or hereditaments, shall be assigned or granted except by deed, or note in writing, signed by the party assigning or granting it * * *.”

“No action shall be brought whereby to charge * * * a person * * * upon a contract or sale of lands, tenements, or hereditaments, or interest in or concerning them, or upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in uniting and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized.” (Emphasis added.)

R.C. 1335.05 clearly requires that “no action shall be brought” regarding an “interest in or concerning” land unless the agreement upon which the action is [439]*439based is in writing and signed by the defendant. See Manon Prod. Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 273, 533 N.E.2d 325, 333. The record in the case at bar does not contain any writing signed by Society which evidences that Society agreed to finance the entire development. Rather, the record reveals that the parties entered into a series of separate written agreements, involving different phases of the development. Francis had sought financing from Society for a multiphase development.

In this case, Francis met initially with Crowl and they discussed various aspects of the project. Francis explained to Crowl that the development would consist of numerous buildings, and that it would take between two and three years to complete. A formal application regarding the first phase of the development was submitted to Society. In the application, Francis requested an A & D loan and two separate construction loans. The committee approved the requests, and Society sent Francis a commitment letter. In the letter, Society informed Francis that it had approved the loans. The letter also included various terms and conditions that would be applicable to those particular loans. Additionally, in the letter, Society explained to Francis that “[a]t least two of the three condominiums must be sold before any consideration for another construction loan will be given.” (Emphasis added.) Francis signed the letter, agreeing to the terms set forth therein. Thereafter, Francis and Society closed the loans and, in doing so, the parties entered into various written agreements, i.e., construction loan agreements and promissory notes which refer to certain mortgages. This procedure was apparently repeated each time Francis constructed additional buildings involving different phases of the development.

Indeed, the record belies Francis’s contention that Society agreed to finance the entire project. Instead, it is evident that the parties intended to divide the project into phases for purposes of completion and financing. The parties entered into a series of written agreements. In this regard, Society could not have breached a contract to finance the entire development because such a contract simply did not exist. Even if it did exist as alleged by Francis, it was not in writing and signed by Society. Thus, Francis’s breach of contract action is barred by the Statute of Frauds.

B

Promissory Estoppel and Negligent Misrepresentation

Francis also claims that he is entitled to relief under the equitable doctrine of promissory estoppel and the tort of negligent misrepresentation. This court has adopted the doctrine of promissory estoppel as set forth in the Restatement of the Law 2d, Contracts (1981), Section 90. See McCroskey v. State (1983), 8 Ohio St.3d 29, 8 OBR 339, 456 N.E.2d 1204. Further, we also recognize the tort of [440]*440negligent misrepresentation. See Haddon View Invest. Co. v. Coopers & Lybrand (1982), 70 Ohio St.2d 154, 156, 24 O.O.3d 268, 269, 436 N.E.2d 212, 214. See, also, Gutter v. Dow Jones, Inc. (1986), 22 Ohio St.3d 286, 22 OBR 457, 490 N.E.2d 898. However, we find that these claims are barred by the parol evidence rule.

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Cite This Page — Counsel Stack

Bluebook (online)
75 Ohio St. 3d 433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ed-schory-sons-inc-v-francis-ohio-1996.