Hill v. Dorger

2024 Ohio 2305

• Court: Ohio Court of Appeals
• Decided: June 17, 2024
• Docket: CA2023-10-071
• Status: Published

Opinion

[Cite as Hill v. Dorger, 2024-Ohio-2305.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

JOHN M. HILL, et al., :

Appellees, : CASE NO. CA2023-10-071

: OPINION - vs - 6/17/2024 :

JOSEPH DORGER, :

Appellant. :

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2022 CVH 01111

Strauss Troy Co., LPA, and James D. Houston and Alexa E. Wainscott, for appellees.

Ennis Britton Co., L.P.A., and J. Michael Fischer, for appellant.

PIPER, J.

{¶ 1} Appellant, Joseph Dorger ("Seller"), appeals the decision of the Clermont

County Court of Common Pleas denying his motion for relief from a judgment granted to

appellees, John Hill ("Buyer") and John Hill Construction, L.L.C. For the reasons detailed

below, we affirm the trial court's decision.

Factual Background

{¶ 2} This case involves a dispute surrounding the sale of undeveloped property. Clermont CA2023-10-071

Buyer is a construction industry professional. Seller was also in the construction industry

but retired some time ago. As relevant here, Seller owned three lots in Milford, Clermont

County, Ohio: Lots 98, 99, and 100. Seller's home was built on Lot 100 and his driveway

encroached upon Lot 99 by approximately nine feet.

{¶ 3} On November 3, 2022, Seller contacted Buyer and asked if he had any

interest in purchasing Lots 98 and 99 ("Property"). Buyer indicated he was interested and

the two met the next day to discuss a possible sale. Buyer and Seller walked the Property

and negotiated a sale where Buyer agreed to purchase the Property for $87,500 except

that Seller was entitled to a portion of Lot 99 so that he could continue to use the driveway.

Seller drafted the purchase agreement, which was then signed by the parties.

{¶ 4} The purchase agreement stated that Lots 98 and 99 were being sold by

Seller to Buyer for a total of $87,500 with a $500 down payment of earnest money. Closing

was set for the first week of January 2023. The parties agreed that Buyer could either

purchase two separate lots (Lots 98 and 99), or a single lot combining the two lots. Under

either option, Seller would be allowed to retain the portion of Lot 99 for his driveway.

{¶ 5} On November 15, 2022, 12 days after executing the purchase agreement,

Seller sent an email to Buyer that he was "having second thoughts" and did not want to

go through with the sale of the Property. Seller said he wanted to terminate the deal and

hoped Buyer understood. However, the very next day (and before Buyer could respond),

Seller sent another email indicating a willingness to sell the Property but demanded a

higher purchase price:

[Y]ou can have the lots if you still want them but the price is $89500. not $87500. I have had 2 offers from people that live in the Apts. one for $100,000. and another for $125,000. I believe the lots are worth $75. each, so you will do quite well with them. * * * Confirm you got this email and you agree to the $89500, If not I will sell them to someone else. Sorry for the glitch, but this is how it will be.

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Buyer responded that he intended to complete the purchase agreement and close on the

Property. Buyer said he intended to "honor our word, our handshake, and our signatures."

In response, Seller unilaterally cancelled the closing.

{¶ 6} On November 21, 2022, Buyer filed a complaint against Seller claiming

anticipatory breach of contract. Seller filed an answer admitting that he entered into the

agreement with Buyer. However, Seller claimed there was a "mutual mistake" that

nullified the original agreement "rendering it impossible for the Purchase Agreement to

be specifically enforced." Seller claimed that he had the replatted legal descriptions for

the lots, but that the "cut-up and re-platting of Lots 99 and 100 was rejected by the city of

Milford because the width of Lot 99 could not be reduced to less than 50 feet." Seller did

not mention the possibility of combining Lots 98 and 99.1

Bench Trial and Procedural Posture

{¶ 7} A bench trial was held on March 21, 2023. Buyer testified about the

purchase agreement, which was admitted into evidence, as well as Seller's attempts to

terminate and then renegotiate the original purchase agreement. Buyer testified that it

did not matter to him if the Property was sold as one lot or two.

{¶ 8} Seller presented only limited testimony, but he stated that he thought he

had to provide Buyer with two separate lots. He further testified that he was not able to

record the plat:

Q. Were you able to record the plat * * * [?]

A. No. We were not.

Q. Okay.

A. The plat could not be recorded. It was not accepted by the

1. Seller's answer is not styled as a typical answer with paragraph numbers admitting or denying allegations in Buyer's complaint. It instead more closely resembles a memorandum in opposition.

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City of Milford.

{¶ 9} Following trial, the trial court found in favor of Buyer and awarded specific

performance. With the exception of the portion of Lot 99 comprising Seller's driveway,

Seller was ordered to either sell the Property to Buyer as two lots or combine the Property

into one lot. The trial court stated:

[T]he Purchase Agreement provides the parties with two options to effectuate the sale: the Property can either be sold as two lots (e.g. Lot 98 and 99), or it can be combined into one lot. Should the [Seller] find himself unable to sell Lot 99 with a modified width, then he could resort to selling the Property as one combined lot. Stated differently, the [Seller] could perform the specific terms of the Purchase Agreement if ordered to do so.

{¶ 10} Seller timely appealed the trial court's decision. Seller maintained that he

was unable to comply with the trial court's order because the city of Milford would not

approve the replatting of the lots. However, before the matter could be resolved on direct

appeal, Seller voluntarily dismissed the appeal.

{¶ 11} The same day Seller filed the voluntary dismissal, he filed a Civ.R. 60(B)

motion for relief from judgment in the trial court. Seller continued to argue that the city of

Milford had denied the applications for the replatting of the lots and submitted two denial

letters from the city of Milford. However, Seller then stated Buyer had been able to secure

approval from the city of Milford for the replatting of the lots. Apparently undeterred, Seller

maintained the trial court "should grant [Seller] relief from the previous judgment of the

court in this action, and dismiss this action. At the very least, [the court] should schedule

an evidentiary hearing to establish on the record how the re-platting submitted by [Buyer]

was approved by Milford, when the exact same re-platting submitted by [Seller] was not

approved by Milford." The trial court denied Seller's motion for relief, finding that Seller

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failed to establish a meritorious defense and that there were no grounds from relief as

provided in Civ.R. 60(B)(1) through (5). Seller filed a timely appeal, raising two

assignments of error for review.

Appeal

{¶ 12} Assignment of Error No. 1:

{¶ 13} THE TRIAL COURT ERRED BY DENYING [SELLER'S] MOTION FOR

RELIEF FROM JUDGMENT.

{¶ 14} In his first assignment of error, Seller argues the trial court erred by denying

his Civ.R. 60(B) motion for relief from judgment. Civ.R. 60(B) provides that the trial court

may relieve a party from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B);

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;

(4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(5) any other reason justifying relief from the judgment.

{¶ 15} To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving

party must demonstrate that it (1) has a meritorious claim or defense to present if the

motion is granted; (2) is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)

through (5); and (3) has made the motion within a reasonable time. Kutz v. Kutz, 12th

Dist. Madison No. CA2012-08-017, 2013-Ohio-532, ¶ 8. Failing to meet any one of these

three factors is dispositive, for all three must be satisfied in order to gain relief. Bowman

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v. Leisz, 12th Dist. Warren No. CA2014-02-029, 2014-Ohio-4763, ¶ 16.

Standard of Review

{¶ 16} The decision to grant or deny a Civ.R. 60(B) motion lies within the trial

court's discretion, and the decision will be reversed only for an abuse of discretion.

Purcell v. Schaefer, 12th Dist. Preble No. CA2013-09-007, 2014-Ohio-4894, ¶ 26. An

abuse of discretion connotes more than an error of law or judgment; it implies that the

court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983).

{¶ 17} In his Civ.R. 60(B) motion, Seller argued that he submitted a new

application for replatting that was rejected by the city of Milford and maintained that there

was nothing he could do to comply with the trial court's order. Seller attached two letters

dated December 12, 2022, and July 6, 2023, purportedly from the city of Milford indicating

that two applications to replat the lots had been denied. However, he then admitted that

the city of Milford had since approved the replatting of Lots 98, 99, and 100:

Without [Seller's] knowledge, let alone his approval, [Buyer] contracted with another surveyor to prepare a re-platting of Lots 98, 99, and 100. This re-platting produced the exact same re-platting that [Seller] submitted to Milford which was not approved by Milford. Inexplicably, without any notice to [Seller], who is the owner of record of the real estate parcels involved, the re-platting of the involved parcels submitted by [Buyer] was approved by Milford even though the exact same re-platting when submitted by [Seller] was not approved by Milford. Thus, [Buyer was] apparently somehow able to obtain a favorable interpretation of, or a variance from, Milford's Zoning Code without having to go through Milford's Board of Zoning Appeals.

Seller argued that the court should conduct an evidentiary hearing, among other things,

to obtain testimony from various city officials regarding the replatting process.

{¶ 18} The trial court denied Seller's Civ.R. 60(B) motion for relief from judgment

concluding "[t]here are no new operative facts alleged in this motion which were not

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already known by both parties prior to the trial which, if proven, would provide a

meritorious defense to the [Seller.]" The trial court first considered the denial letters from

the city of Milford. The first letter was dated December 12, 2022, and was therefore

issued three months before trial and was not an appropriate basis for relief. The second

letter was dated July 6, 2023. The trial court noted that while this letter was sent after the

bench trial, it was essentially the same denial that Seller received earlier. Therefore,

neither letter aided in Seller's argument that he was entitled to relief. The trial court then

continued:

[Seller] acknowledges on Page 5 of his motion that Milford has now seemingly changed its position and will now allow "the exact same re-platting" that he had previously submitted. [Seller's] argument that it is impossible for him to specifically perform the real estate agreement is, by his own admission, no argument at all. It certainly does not provide him a meritorious defense and, for that reason alone, he cannot meet the first requirement for succeeding under Civ.R. 60(B).

(Bold sic.) Thereafter, the trial court also found that Seller failed to demonstrate that he

was entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5).

{¶ 19} Following review, we find the trial court did not abuse its discretion by

denying Seller's Civ.R. 60(B) motion. As correctly determined by the trial court, Seller

failed to present operative facts that would aid in a meritorious claim or defense. Seller's

argument is essentially a repackaged argument from the bench trial that he is unable to

have the lots replatted due to a mutual mistake. Neither of the city's letters aids Seller's

attempt to show he has a meritorious defense. Moreover, Seller now admits that the city

of Milford has approved the replatting, undermining the argument that a claimed "mutual

mistake" had "nullified" the contract. Seller is in effect asking this court to vacate the

underlying judgment so he can continue to litigate this matter and use it as a basis to

obtain testimony from various city officials. However, we agree with the trial court;

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namely, that Seller's "argument is, by his own admission, no argument at all." Certainly,

there is no need for an evidentiary hearing to elicit testimony from various city of Milford

officials.

{¶ 20} Seller's arguments on appeal appear to be nothing more than another

attempt to further delay resolution of this matter from an agreement that Seller has come

to regret. Although he may be dissatisfied with the terms of the purchase agreement, it

is well established that "[p]arties to contracts are presumed to have read and understood

them and * * * a signatory is bound by a contract that he or she willingly signed." Hodge

v. Callinan, 12th Dist. Warren No. CA2018-07-073, 2019-Ohio-1836, ¶ 25. In this case,

Seller has failed to demonstrate that he has any meritorious claim or defense and his

Civ.R. 60(B) motion was appropriately denied. There is simply no valid reason why the

terms of the agreement cannot be enforced to effectuate the sale of the Property through

specific performance.

{¶ 21} Furthermore, although the failure to meet any one of the three Civ. R. 60(B)

factors is dispositive, we likewise agree that Seller failed to demonstrate that he was

entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5). Here, the

trial court listed each of the Civ.R. 60(B)(1)-(5) grounds and determined that none were

applicable. We agree with that determination—Seller simply argues that it was a

"surprise" or a "mistake" that the court's order "does not comply with Milford's zoning

regulations." Seller's arguments do not support any of the grounds for relief, and

moreover, as noted above, Seller acknowledged that the city of Milford has since

approved an application for replatting. The trial court did not abuse its discretion by

denying Seller's Civ.R. 60(B) motion for relief from judgment. Seller's first assignment of

error is overruled.

{¶ 22} Assignment of Error No. 2:

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{¶ 23} THE TRIAL COURT ERRED PREVENTING EVIDENCE OF A MUTUAL

MISTAKE BY THE PARTIES ENTERING INTO THE PURCHASE AGREEMENT FROM

INCLUSION IN THE RECORD.

{¶ 24} Seller fails to present a separate argument regarding his second

assignment of error. While he fails to elaborate, it appears this assignment of error relates

to the bench trial when the trial court denied Seller from introducing a purported letter

from the city of Milford denying his application for replatting. The trial court denied the

introduction of the letter because it was "classic hearsay." Seller's opportunity to present

such an argument was in a direct appeal.2 While Seller initially filed a direct appeal, he

voluntarily dismissed that appeal and proceeded with the filing of the Civ.R. 60(B) motion

for relief from judgment. It is well established that a party may not use a Civ.R. 60(B)

motion as a substitute for a timely appeal. Doe v. Trumbull Cty. Children Services Bd.,

28 Ohio St.3d 128 (1986), paragraph two of the syllabus.

{¶ 25} Regardless, App.R. 12(A)(2) provides that an appellate court "may

disregard an assignment of error presented for review if the party raising it fails to identify

in the record the error on which the assignment of error is based or fails to argue the

assignment separately in the brief, as required under App.R. 16(A)." It is not the

obligation of the appellate court to search the record for evidence to support an appellant's

argument as to any alleged error. MB Fin. Bank, N.A. v. Mitchell, 12th Dist. Warren No.

CA2018-04-041, 2019-Ohio-84, ¶ 18. Since Seller failed to separately argue, or even

adequately explain his second assignment of error, we need not elaborate further and

may simply overrule the assignment of error. As a result, Seller's second assignment of

2. The letter was not admitted into evidence and there was no proffer of the exhibit. As part of his Civ.R. 60(B) motion, Seller attached a denial letter from the city of Milford dated December 12, 2022. Presumably, Seller was attempting to offer this letter into evidence during the bench trial. However, what occurred at the bench trial is not before us in this appeal.

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{¶ 26} In Seller's reply brief, he raises two additional assignments of error.

Pursuant to App.R. 16(C), reply briefs are to be used to rebut arguments raised in the

appellee's brief; an appellant may not use a reply brief to raise new issues or assignments

of error not addressed in the appellant's opening brief. Baker v. Meijer Stores Ltd.

Partnership, 12th Dist. Warren No. CA2008-11-136, 2009-Ohio-4681, ¶ 17; In re A.V.,

12th Dist. Warren Nos. CA2021-04-030 thru CA2021-04-033, 2021-Ohio-3873, ¶ 36;

Young v. Kaufman, 8th Dist. Cuyahoga Nos. 104990 and 105359, 2017-Ohio-9015, ¶ 44.

Accordingly, we do not consider these new assignments of error on appeal.3

{¶ 27} Judgment affirmed.

S. POWELL, P.J., and HENDRICKSON, J., concur.

3. Based on the same rationale, we deny Seller's motion filed on March 22, 2024 (which was filed after his reply brief and after oral argument), requesting that we permit him additional opportunity to respond to Buyer's arguments and raise new assignments of error.

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