Galloway v. Garmon, Exr.

2025 Ohio 5044

• Court: Ohio Court of Appeals
• Decided: November 6, 2025
• Docket: 114786, 115075
• Status: Published

Opinion

[Cite as Galloway v. Garmon, Exr., 2025-Ohio-5044.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

MARK GALLOWAY, ET AL., :

Plaintiffs-Appellants, : Nos. 114786 and 115075 v. :

CHARLOTTE GARMON, EXECUTOR, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 6, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division Case No. 2023ADV285386

Appearances:

Flowers & Grube, Louis E. Grube, and Kendra N. Davitt, for appellants.

TM Wilson Law Group, LLC, and Thomas M. Wilson, for appellees.

SEAN C. GALLAGHER, J.:

In this consolidated appeal, plaintiffs-appellants Mark Galloway and

Susan Galloway challenge the probate court’s decision granting the motion for

summary judgment of defendants-appellees Charlotte Garmon, individually and as executor of the estate of Madelon E. Cortright, Elizabeth A. McCullough, and

Sally Weber. Appellants also challenge the probate court’s decision denying their

motion for relief from final judgment. Upon review, we affirm the judgment of the

probate court.

In December 2023, appellants filed a complaint for declaratory

judgment and other relief against Garmon, individually and as the executor of the

estate of Madelon E. Cortright, and the beneficiaries of the estate. 1 Appellants

included a claim for a “declaration of validity of agreement to sell,” which

agreement is allegedly set forth in a letter dated June 15, 2006 (“the Cortright

letter”). Appellants also set forth a claim for “specific performance to sell real

estate.”

An unauthenticated copy of the Cortright letter is attached to the

complaint. It is addressed to “June” and states in pertinent part as follows:

I, Madelon Cortright and my husband Floyd Cortright, would like to give you or your nephew Mark Galloway and Susan Galloway, “Right of first refusal” to purchase our home . . . after we both pass away. You may purchase our home at Cuyahoga County appraised value of that year. . . .

Our wishes are that you or your nephew may purchase our property right after we both pass away without any dispute.

The Cortright letter is purportedly signed by “Madelon E. Cortright.” It is not

signed by Floyd Cortright. Nor is it signed by appellants.

1 Along with the appellees herein, Berea Animal Rescue is a named defendant in

the case. In their complaint, appellants alleged that the Cortright letter

“represents a valid offer” from Madelon Cortright and that they “accepted

[Madelon’s] offer.” Among other allegations, appellants alleged that the Cortright

letter gave them “a right of first refusal” and an “option to purchase” the subject

property, that Madelon passed away in May 2022 and was predeceased by Floyd,

and that on or about June 25, 2023, they exercised the option, but Garmon refused

to sell them the property. Appellants sought a declaration that the Cortright letter

“is a valid agreement for the purchase of real property [at] the Cuyahoga County

Auditor’s value and is enforceable against the Defendants[.]” Appellants also

sought specific performance of the alleged “written agreement” that they asserted

was entered by “Plaintiffs and [Madelon Cortright]” “[o]n or about June 15,

2o06[.]”

In the course of proceedings, answers were filed by the defendants,

a motion for judgment on the pleadings was denied, and the parties herein filed

cross-motions for summary judgment and opposition briefs. The appellants’

arguments largely focused upon their belief that the Cortright letter “is clearly

meant to be a contract between the parties” that gave them a right of first refusal

and that they had “expressed their intent to be bound by the terms of the Contract.”

On the other hand, appellees argued that appellants had failed to authenticate the

signature of Madelon Cortright and appellants’ motion was devoid of permissible

evidentiary materials, that the Cortright letter does not constitute a valid contract,

that the Cortright letter violated the statute of frauds, and that the Cortright letter did not include a valid right of first refusal and violated the rule against

perpetuities, among other arguments.

The probate court issued a decision on December 31, 2024, that

denied appellants’ motion for summary judgment and granted appellees’ motion.

In the judgment entry, the probate court recognized that appellants relied upon

unauthenticated documents, and the court found that appellants’ motion for

summary judgment was devoid of any permissible materials as required by

Civ.R. 56(C). The probate court found, in part, that “even if the unauthenticated

letter from Madelon Cortright were acceptable evidence, it fails to create any

contractual rights in favor of Plaintiffs” and that the language of the Cortright letter

was contradictory and did not meet the requirements of a valid “right of first

refusal” at the time it was written. The probate court further found that “even if

authenticated,” the Cortright letter violates Ohio’s statute of frauds because it is

not signed by a co-owner of the subject property, Floyd Cortright, and that “there

was no ‘meeting of the minds’ or ‘acceptance’ of the supposed contract until

Plaintiffs sent a letter through their attorney in 2023 indicating that they wanted

to purchase the subject property.” In granting appellees’ motion for summary

judgment, the probate court found that the Cortright letter was not admissible

pursuant to the authentication requirement under Evid.R. 901 and that even if it

were admissible, it could not be construed as a contract to sell land because it was

not signed by Floyd Cortright. Ultimately, the probate court found that “even if

Plaintiffs were able to authenticate and present the Cortright letter as evidence, the letter fails, as a matter of law, to grant any contractual rights to the Plaintiffs.” The

court determined under the Civ.R. 56 standard that appellees “are entitled to

judgment as a matter of law.” The probate court declared that “the Cortright letter

dated June 15, 2006, is not a valid offer from Madelon E. Cortright to Plaintiffs to

purchase the subject property at the Cuyahoga County Auditor’s value” and

dismissed the complaint as to all parties.

Following the probate court’s judgment entry, appellants filed an

appeal to this court and a motion for relief from final judgment with the probate

court. Upon limited remand from this court, the probate court issued a decision

denying appellants’ motion for relief from judgment on April 29, 2025. The

probate court recognized that it had granted appellees’ motion for summary

judgment upon finding that the Cortright letter “was unauthenticated and outside

the limits of evidence allowed by Civ.R. 56” and that “even if the letter were to be

admitted, it fails to create any contract rights in favor of the Plaintiffs.” The

probate court noted that appellants had submitted new evidence in an attempt to

authenticate the Cortright letter and had set forth an argument claiming the

probate court was mistaken regarding a “right of first refusal.” The probate court

rejected appellants’ arguments and determined that “[p]laintiffs have not set forth

grounds for relief pursuant to Civ.R. 60(B)” and denied the motion. Appellants

appealed this decision, and their two appeals were consolidated for review. Appellants raise two assignments of error.2 Under the first

assignment of error, appellants claim the trial court erred by granting summary

judgment to appellees.

Appellate review of summary judgment is de novo, governed by the

standard set forth in Civ.R. 56. Argabrite v. Neer, 2016-Ohio-8374, ¶ 14.

Summary judgment is appropriate only when “[1] no genuine issue of material fact

remains to be litigated, [2] the moving party is entitled to judgment as a matter of

law, and [3] viewing the evidence most strongly in favor of the nonmoving party,

reasonable minds can reach a conclusion only in favor of the moving party.” Id.,

citing M.H. v. Cuyahoga Falls, 2012-Ohio-5336, ¶ 12. “Although we must review

a summary judgment decision de novo, ‘that standard does not supersede our

settled practice of not addressing issues raised for the first time on appeal.’” Davis

v. Diley Ridge Med. Ctr., 2025-Ohio-1940, ¶ 9 (10th Dist.), quoting Deutsche Bank

Natl. Trust Co. v. Stone, 2021-Ohio-3007, ¶ 12 (10th Dist.). We limit our review

accordingly.

In their complaint and summary-judgment pleadings, the claims

and arguments as presented to the trial court by appellants were premised upon

their assertion of a “valid contract” or “agreement” that they maintained granted

them a right of first refusal to the purchase of the subject property at the Cuyahoga

2 We note that appellants have not challenged the decision to deny their motion for

summary judgment. Though appellees argue res judicata should be applied, the authority they cite does not support their argument. County auditor’s value. Appellees argued, and the probate court properly

determined, that not only was the unauthenticated Cortright letter inadmissible, but

also even if it were admissible, the Cortright letter fails as a matter of law to grant

any contractual rights to appellants. We agree. The record demonstrates that the

Cortright letter was unauthenticated, and this alone warranted summary judgment

in favor of appellants. Furthermore, even if it were admissible, it is not a valid

contract.

At oral argument in this matter, appellants’ counsel conceded the

Cortright letter is not a valid contract. Rather, appellants’ counsel argued that the

letter evinced a “donative intent” to convey a preemptive right. That was not the

basis for the claims presented in the complaint or the arguments made to the trial

court on summary judgment.

Further, although appellants argue appellees’ motion for summary

judgment was not supported by any admissible evidence, they made no such

argument in opposing appellees’ motion. “A party against whom a claim . . . is

asserted or . . . a declaratory judgment is sought may, at any time, move with or

without supporting affidavits for a summary judgment in the party’s favor as to all

or any part of the claim . . . or declaratory judgment action.” Civ.R. 56(B).

Appellees attached an affidavit with the survivorship deed for the subject property

to their brief in opposition to appellants’ motion for summary judgment, which

was among the pleadings filed in the action. See Civ.R. 56(C). Additionally,

appellants’ claims were premised upon the Cortright letter, which was attached to the complaint, and they sought to declare it a valid contract. Appellees established

upon the pleadings before the court that no valid contract exists and that they are

entitled to judgment as a matter of law.

“A valid contract requires ‘mutual assent, an offer and acceptance of

the offer, and consideration[,]’ . . . and a contract has not been formed if there is no

meeting of the minds.” Smith v. Rezutek, 2024-Ohio-5599, ¶ 8 (8th Dist.), quoting

Butcher v. Bally Total Fitness Corp., 2003-Ohio-1734, ¶ 28 (8th Dist.). Appellees

established that these requirements were not met.

The record shows that at the time the Cortright letter was purportedly

written, Madelon Cortright and Floyd Cortright were co-owners of the subject

property under a survivorship deed. The Cortright letter indicates that “Madelon

Cortright and my husband Floyd Cortright, would like to give you or your nephew

Mark Galloway and Susan Galloway, ‘Right of first refusal’ to purchase our home

. . . after we both pass away.” (Emphasis added.) However, there is no evidence

that Floyd Cortright manifested an intent to be bound by those terms. “[I]n a joint

tenancy with right of survivorship, one joint tenant [cannot] unilaterally terminate

the survivorship rights of another joint tenant.” Wilson v. Brown, 2008-Ohio-1743,

¶ 15 (4th Dist.). Also, “‘if more than two (2) persons are intended to be parties to a

proposed contract, the contract does not come into existence unless all of them

manifest their assent.’” Id. at ¶ 19, quoting Living Waters Fellowship Inc. v. Ross,

2000 Ohio App. LEXIS 5004, *15 (4th Dist. Oct. 23, 2000). As argued by appellees

in their motion, “[n]o evidence exists that as of June 15, 2006, or any other time, Floyd Cortright intended to convey any rights he had as to the Property. This defect

is fatal to any argument that the [Cortright letter] was a valid offer to sell the

Property. . . .”

Additionally, because Floyd Cortright never signed the Cortright

letter, arguably the statute of frauds was not satisfied. See Gajovski v. Estate of

Philabaun, 192 Ohio App.3d 755, 762 (11th Dist. 2011). In short, the statute of

frauds generally “requires a written contract for the sale of land to be signed by the

parties, thereby executing the contract.” Arrich v. Moody, 2005-Ohio-6152, ¶ 22

(11th Dist. 2005). “The absence of a signature establishes that a valid contract did

not exist.” Arrich at ¶ 23. “Agreements that do not comply with the statute of frauds

are unenforceable.” Olympic Holding Co., L.L.C. v. ACE Ltd., 2009-Ohio-2057,

¶ 32; Hummel v. Hummel, 133 Ohio St. 520 (1938), paragraph one of the syllabus;

see also Cummings Court, L.L.C. v. Scott, 2018-Ohio-4870, ¶ 38 (8th Dist.).

Furthermore, even if Madelon Cortright could have entered a

contract giving an enforceable right of first refusal to appellants, appellants

acknowledged that they did not accept the purported offer until after Madelon

Cortright’s death. If an offer does not prescribe a time limit for acceptance, it must

occur within a reasonable time, and generally acceptance cannot occur after the

death of the offeror. See Univ. of Toledo Chapter of Am. Assn. of Univ. Professors

v. Univ. of Toledo, 2013-Ohio-1517, ¶ 7 (Ct. of Cl.); Lewis v. Motorists Ins. Co., 96

Ohio App.3d 575, 584 (8th Dist. 1994). Moreover, as the trial court observed, the Cortright letter “does not become a valid contract by virtue of future events.”

Finally, because there was no meeting of the minds, there can be no valid contract.3

Appellees established that there is no valid contract and that specific

performance is not warranted. Applying the Civ.R. 56 standard, we find appellees

are entitled to summary judgment on the claims raised in the complaint. We are

not persuaded by any of appellants’ arguments otherwise. We declare as a matter

of law that there was no valid contract or agreement as pled by appellants, and they

are not entitled to any specific performance. The first assignment of error is

overruled.

Under their second assignment of error, appellants claim the

probate court abused its discretion in denying their motion for relief from final

judgment. We do not find this to be the case.

In order to prevail on a Civ.R. 60(B) motion, the moving party must

demonstrate “(1) a meritorious claim or defense in the event relief is granted, (2)

entitlement to relief under one of the provisions of Civ.R. 60(B)(1) through (5), and

(3) timeliness of the motion.” State ex rel. Hatfield v. Miller, 172 Ohio St.3d 247,

249 (2023), citing Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994). We review the

probate court’s denial of appellants’ motion for an abuse of discretion. See id., citing

Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21 (1988).

3 Despite the parties’ arguments, we need not address the “right of first refusal”

language or consider whether it violates the rule against perpetuities. Appellants asserted that they are entitled to relief under

Civ.R. 60(B)(1) for “mistake, inadvertence, surprise or excusable neglect” with

regard to their failure to submit permissible evidentiary materials. However, as a

general rule, “the neglect of a party’s attorney will be imputed to the party for the

purposes of Civ.R. 60(B)(1).” GTE Automatic Electric, Inc. v. ARC Industries, Inc.,

47 Ohio St.2d 146, 153 (1976). As the probate court determined, appellants failed to

provide any evidence allowed under Civ.R. 56, despite having had every opportunity

to include authenticated documents. Appellants did not provide sufficient operative

facts to support their motion. Also, appellants’ motion failed to demonstrate

grounds for relief under Civ.R. 60(B)(5) for “any other reason justifying relief from

the judgment,” which “‘is only to be used in an extraordinary and unusual case when

the interests of justice warrant[] it.’” State ex rel. Hatfield v. Miller, 2023-Ohio-429,

¶ 12, quoting Adomeit v. Baltimore, 39 Ohio App.2d 97, 105 (8th Dist. 1974).

Further, appellants failed to demonstrate a potentially meritorious

claim. In their motion, appellants again expressed that they “pled a claim for

declaratory relief, asking for a declaration that the [Cortright letter] was a valid

offer to purchase the Property, that they had accepted it, and that it was therefore

a binding agreement.” Appellants also asserted that they “pled a claim for specific

performance of that agreement.” As the probate court indicated, it was not

required to reconsider matters that were fully briefed and already ruled upon.

Indeed, “‘[a] Civ.R. 60(B) motion must not be used merely to reiterate arguments

concerning the merits of the case that could have been raised on appeal.’” Allen v. P.E. Techs., Inc., 2010-Ohio-3878, ¶ 21 (8th Dist.), quoting Bonde v. Bonde, 2009-

Ohio-2135, ¶ 8 (8th Dist.).

Nonetheless, appellants attempted to recast their claims and asserted

that “even if [the Cortright letter] was not a contract, the Letter should have been

given effect as a lifetime gift of a preemptive right” or “right of first refusal.”

However, the trial court found the cases relied on by appellants are distinguishable.

See Davis v. Iofredo, 127 Ohio App.3d 367 (8th Dist. 1998) (involving a written

contract between the parties); Natl. City Bank v. Welch, 2010-Ohio-2981 (10th Dist.

1998) (involving a deed restriction); Schafer v. Deszcz, 120 Ohio App.3d 410 (6th

Dist. 1997) (involving a deed restriction). Likewise, the cases cited by appellants on

appeal are distinguishable. Indeed, none of the authority or evidence upon which

appellants rely shows that they have a potentially meritorious claim in this matter.

The probate court properly found appellants failed to establish

grounds for relief pursuant to Civ.R. 60(B). Additionally, appellants did not

demonstrate the existence of a potentially meritorious claim. Accordingly, we find

no abuse of discretion by the probate court in denying appellants’ motion for relief

from final judgment. The second assignment of error is overruled.

We are not persuaded by any other argument presented by appellants

in this matter. Summary judgment in favor of appellees is warranted, and appellants

are not entitled to relief from judgment.

Judgment affirmed.

It is ordered that appellees recover from appellants costs herein taxed. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, probate division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

______________________ SEAN C. GALLAGHER, JUDGE

ANITA LASTER MAYS, J., CONCURS; LISA B. FORBES, P.J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE OPINION)

LISA B. FORBES, P.J., CONCURRING IN JUDGMENT ONLY:

I write separately because I would limit the analysis of the Appellants’

first assignment of error — that “the Probate Court erred as matter of law by granting

summary judgment to the defendant-Appellants” — to the analysis found in

paragraph 16 of the majority’s opinion. That is, “[i]f the offer does not prescribe a

time limit for acceptance, it must occur within a reasonable time . . . .” Univ. of

Toledo Chapter of Am. Assn. of Univ. Professors v. Univ. of Toledo, 2013-Ohio-1517,

¶ 7 (Ct. of Cl.), citing Restatement of the Law 2d, Contracts, § 41 (1981). The

Restatement provides:

(1) An offeree’s power of acceptance is terminated at the time specified in the offer, or, if no time is specified, at the end of a reasonable time.

(2) What is a reasonable time is a question of fact, depending on all the circumstances existing when the offer and attempted acceptance are made. Restatement 2d of Contracts, § 41. Moreover, “It is a fundamental rule of contract

law that an offer cannot be accepted after the death of the offeror because the death

of the offeror revokes the offer.” Lewis v. Motorists Ins. Co., 96 Ohio App.3d 575,

584 (8th Dist. 1994), citing Wallace v. Townsend, 43 Ohio St. 537 (1885); 17 Ohio

Jur.3d, Contracts, § 23, at 455-456 (1980); Restatement of the Law 2d, Contracts,

§ 48 (1982).

Here the Cortright letter that forms the supposed contract purports

to be dated June 15, 2006. The Appellants do not claim to have accepted the offer

until June 25, 2023, after the deaths of both Floyd and Madelon. Based on the

undisputed facts, I would find that the 17-year lapse in time coupled with the deaths

of the offerors before Appellants attempted to communicate their acceptance of the

offer was not reasonable or effective to create a valid or enforceable contract.

I concur in judgment only with the remainder of the majority’s

opinion.