Ma v. Gomez

2023 Ohio 524, 209 N.E.3d 178

• Court: Ohio Court of Appeals
• Decided: February 23, 2023
• Docket: 111465
• Status: Published

Opinion

[Cite as Ma v. Gomez, 2023-Ohio-524.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

SIMON MA, :

Plaintiff-Appellee, : No. 111465 v. :

ALBERTO GOMEZ, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 23, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-937446

Appearances:

Thrasher, Dinsmore & Dolan, Tim L. Collins, Elizabeth E. Collins and Ashley C. Kirk, for appellee.

Sam Thomas, III & Associates, LLC, and Sam Thomas, III, for appellants.

EILEEN A. GALLAGHER, J.:

Defendants-appellants Alberto Gomez and Carlina Taylor (together,

“Defendants”) appeal orders of the Cuyahoga County Court of Common Pleas

granting summary judgment in favor of the plaintiff-appellee, Simon Ma, and

nullifying a quitclaim deed filed by Taylor. Gomez is the vendee of a land installment contract for real estate. Ma

stepped into the shoes of the vendor and sought forfeiture of Gomez’s interest in the

contract. The trial court granted summary judgment for Ma on that claim and, for

the reasons that follow, we affirm.

Ma also sought declaratory judgment that a quitclaim deed to the

property, filed by Taylor, was null and void for fraud. The trial court granted

summary judgment on that claim as well and issued an order nullifying the deed.

Because Ma recorded the trial court’s judgment before the appellants obtained a stay

of execution of the judgment, essentially quieting title to the property against Taylor,

we conclude that this portion of the appeal is moot.

I. Factual Background and Procedural History1

A. The Land Installment Contract

In May 2010, Alberto Gomez signed a land installment contract with

an entity called Original Resources, Inc. for a single-family residence and associated

real estate located at 2016-2018 Warren Road in Lakewood, Ohio.

1 Ma and Gomez each submitted, in their summary-judgment briefing before the trial court, documents styled as “affidavits” but which do not contain notarial certificates indicating that the written statements were made under oath or affirmation. An affidavit is “a written declaration under oath, made without notice to the adverse party.” (Emphasis added.) R.C. 2319.02. The notarial certificates on Gomez’s and Ma’s written statements are acknowledgments, not jurats. Compare R.C. 147.011(A) (defining an acknowledgment) and R.C. 147.011(C) (defining a jurat). The notarial certificate following Ma’s affidavit specifically states that no oath or affirmation was given. The notarial certificate following Gomez’s written statement provides only that Gomez “acknowledged that he did sign the foregoing instrument, and that the same is his free act and deed.” Ohio notaries are required to clearly state if an oath or affirmation was Gomez testified that he looked at the property prior to entering into the

contract. The land installment contract he signed contains the following language:

Buyer hereby acknowledges, understands and agrees that Buyer has thoroughly inspected and examined the Property and has been afforded sufficient opportunity so to do. Buyer is familiar with all factors relevant to the Property’s current and prospective use and its physical condition. Buyer further warrants and agrees that Buyer is familiar with and has examined and inspected or has been afforded sufficient opportunity to examine and inspect all matters with respect to * * * all aspects of its physical and structural condition related to the Property, and any and all other matters, facts or circumstances bearing upon the value of the Property in Buyer’s judgment and for Buyer’s prospective purposes and uses. * * * Buyer further acknowledges that Buyer is acquiring the Property in its “as is” condition and that Seller has made no promises, warranties or representations, express or implied, oral or written, with respect to the property * * *. In the event that any facts, conditions or circumstances change, or turn out differently from that which Buyer believes or knows concerning the property and related matters as of the date hereof, Buyer’s obligations hereunder shall remain in full force and effect, and with no right to

administered and, therefore, we presume that Gomez’s written statement was not made under oath or affirmation. R.C. 147.542(D). Civ.R. 56(C) provides, in relevant part, that “[s]ummary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule.” (Emphasis added.) As this court has previously said, “‘Inadmissible affidavits are no different from inadmissible evidence. They may be stricken in the discretion of the trial judge, but will support a judgment if [the judge] elects to consider them and no objection is made.’” Brown v. Ohio Cas. Ins. Co., 63 Ohio App.2d 87, 90, 409 N.E.2d 253 (8th Dist.1978), quoting United States v. Dibble, 429 F.2d 598, 603 (9th Cir.1970) (Wright, J., concurring); see also Wolk v. Paino, 8th Dist. Cuyahoga No. 93095, 2010-Ohio-1755, ¶ 28 (“While a court, in its discretion, may consider other documents than those specified in Civ.R. 56(C) if there is no objection, there is no requirement that a court do so.”). Here, no party objected to the trial court’s consideration of these unsworn statements. Because the trial court did not strike the documents and no party objected to the deficiencies, we consider both parties’ unsworn statements in reviewing this summary judgment. delay payment or performance in the terms of this Agreement, or to seek any relief or compensation from Seller as a result thereof.

Original Resources expressly disclaimed making any representations

or warranties “regarding any liens or encumbrances affecting the Property,

including but not limited to real property taxes, covenants, conditions, restrictions

and easements, whether or not of record.”

After looking at the property, Gomez agreed to purchase it for $42,000.

He agreed to pay this purchase price in installments. Under the contract, Gomez

was to pay a down payment of $1,500 when the contract was executed. He was to

execute and deliver a promissory note in favor of Original Resources in the principal

amount of $40,500 at the close of escrow, secured by a mortgage on the property.

He was to pay $540 a month2 for 24 months thereafter, a portion of which was

designated to cover property taxes. This 24-month period was considered a

“probationary period.” During the probationary period, the parties agreed that

Gomez could possess the property as a tenant of Original Resources. The contract

provided that these probationary payments were due on the first day of each month

and would be considered delinquent if Original Resources did not receive them

within ten calendar days of the due date. Delinquent payments would be assessed a

late charge in the amount of 10 percent of the overdue amount.

2 To improve readability, we have truncated dollar amounts throughout this opinion. For instance, we have truncated the monthly payment of $540.17 to $540. Original Resources agreed to record a quitclaim deed transferring the

property to Gomez upon successful completion of the probationary period. Gomez

was thereafter to continue paying $540 a month on the promissory note for 18 years.

Gomez agreed that any notices or demands under the agreement must

be addressed to Gomez at an address on Elbur Avenue in Lakewood.

Gomez stated that he made the $1,500 down payment and paid

delinquent real estate taxes on the property in the amount of $4,510. Gomez

testified that Original Resources never requested that he execute any documentation

other than the land installment contract. He said he never received a quitclaim deed,

mortgage or promissory note from Original Resources.3

Gomez testified that, after he moved into the property, he came to

discover that the residence was “on the demo list” and had been set to be demolished

by the city’s building department. He said there were many things wrong with the

property — “[t]oo many to mention.” He stated that he incurred over $20,000 in

legal fees to defend against actions initiated by the city of Lakewood regarding

building-code violations at the property. He stated that he expended “substantial

additional funds” to bring the property into compliance with building codes.

Taylor, Gomez’s romantic partner, testified that city officials came to

the property after she and Gomez moved in and “told us we had to leave because the

3 Ma stated that Original Resources, Inc. sent Gomez the note and mortgage to execute but Gomez never returned them despite “repeated requests.” For purposes of reviewing this summary judgment, we resolve that dispute in Gomez’s favor. house was on the demo list.” She stated that Gomez addressed the issue and she

does not know how the issue was resolved.

In November 2010, Original Resources assigned its rights under the

land installment contract to Simon Ma. Original Resources transferred the property

to Ma in January 2011 by quitclaim deed, which was recorded in February 2011.

Ma stated that Original Resources provided him a payment ledger

showing that Gomez had been late on many of his probationary-period installment

payments. Gomez does not dispute that he was late on some of his payments but he

testified that he was current on his payments at the time Original Resources

assigned its rights to Ma. Ma, in turn, does not dispute this. He claims, however,

that Gomez incurred additional fees and penalties as a result of the late payments

and had not cured those deficiencies.

Ma attached a copy of a payment ledger to his motion for summary

judgment.4 The ledger shows that Gomez was current on his payments as of

November 2010 when Ma stepped into the shoes of Original Resources. Indeed,

4 This document is not among the evidentiary matters specifically authorized by Civ.R. 56(C). See supra at fn. 1. This court has previously recognized that “the proper procedure for introducing evidentiary matters not specifically authorized by Civ.R. 56(C) is to incorporate them by reference in a properly framed affidavit.” Wolk v. Paino, 8th Dist. Cuyahoga No. 93095, 2010-Ohio-1755, ¶ 26–28. As discussed above at footnote 1, the written statement Ma submitted with his motion, which discusses the ledger, is not an affidavit. Nevertheless, because the trial court did not strike this document and because the Defendants did not object to the deficiency, we consider this document in reviewing this summary judgment. See id. at ¶ 28 (“[A] court, in its discretion, may consider other documents than those specified in Civ.R. 56(C) if there is no objection * * *.”). Gomez made his installment payments early, on time or at least before the payments

became delinquent until May 2011.

Gomez paid his May 2011 installment payment late — on May 16 —

and was assessed a late fee. He paid his June and July 2011 payments on time. He

was late in August, September and October 2011 and was assessed late fees for each

of those months. Thereafter, the payments tended to be later and later. He made

his November 1, 2011 payment on December 15, 2011. He was late again on his

December payment. He paid his January 1, 2012 payment on February 6. He did

not make his February 2012 payment until April 2012. He made his March 2012

payment in June 2012. He was more than a month late in April, May, June and July

2012. He was more than three months late for his August, September, October and

November 2012 payments. He missed December 2012 and January 2013 altogether,

paying $2,516 in March 2013. He made his February 2013 payment in March 2013

and he did not make his March 2013 payment until May 21, 2013.

The ledger does not show any payment made between May 21, 2013

and the execution of the Home Mortgage Payoff Agreement contract.

B. Home Mortgage Payoff Agreement

Gomez and Ma entered into a written contract in the summer of 2013

that they titled a “Home Mortgage Payoff Agreement.” They have different

recollections of how this agreement came to be executed.

Ma said he contacted Gomez to cure Gomez’s default under the land

installment contract. He said that Gomez agreed to pay the overdue amounts and pay off the remainder that was due and owing under the contract in June 2013. Ma

stated that he had a loan-modification agreement prepared that allowed Gomez to

pay off the overdue balance at a discount if Gomez paid timely.

Gomez testified that he had a couple conversations with Ma in which

Gomez explained that he would have to “dump a bunch of money into the house” to

remedy the housing code violations and avoid demolition. He said this payoff

agreement resulted from those conversations.

In any event, Gomez admitted that he negotiated and executed a

payoff agreement with Ma and acknowledged his signature on the Home Mortgage

Payoff Agreement.

According to the Home Mortgage Payoff Agreement, Gomez agreed

to pay off “the mortgage loan borrowed from” Ma and Ma agreed to transfer the

property to Gomez through a quitclaim deed. The contract lists eight “detail steps”

of the parties’ agreement.

First, the parties agreed that the principal balance under the land

installment contract was $38,269 as of June 1, 2013; the parties referred to this as a

“mortgage.” They further agreed that the monthly payment had been $540 under

the installment contract but was raised to $758 in March 2013 to reflect higher

property taxes.

Second, Ma agreed to reduce the “payoff balance” on the purchase

price to $36,000 if Gomez paid the balance by July 31, 2013. Gomez also agreed to

repay Ma $1,900, representing the amount Ma paid to cover property taxes that Gomez had failed to pay to that point. The contract states that the $1,900 payment

would “be considered as the down payment” on the $36,000 payoff balance.

Third, the contract provided that the total payoff amount was

$37,900 if Gomez paid that amount in full by July 31, 2013. The contract further

provided that “[i]f this loan amount is paid off after 7/31/2013, [Gomez] shall be

obligated to pay $758.79 each month thereafter.” (Emphasis omitted.) In other

words, if Gomez did not pay the reduced payoff balance by July 31, 2013, the contract

would require him to continue making the monthly payments that would have been

required under the original land installment contract.

Fourth, Gomez was required to tender the $1,900 tax repayment

when he delivered the signed payoff agreement.

Fifth, Gomez was required to pay “for any title search fees to ensure

the title is clear without any lien.”

Sixth, Ma was required to “mail the signed quit claim form to

[Gomez.]” There is a handwritten note under the signatures on this agreement that

states: “Note: quit claim deed to be under Carlina Taylor.” Taylor signed the payoff

agreement under that handwritten line. She testified that she signed at the bottom

of the payoff agreement but never read it. She said Gomez told her she was signing

a quitclaim deed and instructed her to sign it.

Seventh, Gomez was required to “mail the money order to [Ma] with

the remaining amount of $36,000.”

Eighth, Gomez was required to “record the quit claim deed.” Ma signed the payoff agreement on July 15, 2013. Gomez signed on

August 2, 2013.

Gomez said he paid Ma the $1,900 “down payment” under the

agreement.5 It is undisputed that Gomez never paid the remainder of the $36,000

reduced payoff amount.

Ma mailed a quitclaim deed to Defendants around the time that this

agreement was executed. Ma says he mailed the deed inadvertently during a period

of stress related to the illness and death of a family member.

C. Alleged Oral Agreement Subsequent to the Payoff Agreement

In an unsworn statement attached to his opposition to the motion for

summary judgment, Gomez stated that he contacted Ma shortly after signing the

payoff agreement and told Ma that he could not afford to pay off the balance of the

purchase price while at the same time defending against the pending legal actions

related to the property and paying for the repairs necessary to bring the property up

to code. The unequivocal nature of his recollection about the timing of this alleged

agreement contradicts his sworn deposition testimony, which proceeded as follows:

Q. Okay. So when did this verbal agreement take place?

A. Again, we had a couple of conversations after this paperwork [the payoff agreement] was signed.

Q. So when did the verbal agreement take place?

5 Ma said Gomez never made this payment, but we resolve that dispute in Gomez’s favor for purposes of reviewing this summary judgment. A. A couple of days. Again, I don’t recall. It was a couple of days after this agreement.

Q. Okay.

A. Or before the agreement. I — I don’t really recall exactly. * * *

Q. So what was the verbal agreement?

A. The verbal agreement is the agreement that we reached that’s on the paperwork. Okay? But as far as that, the problems would have to be taken care of with the Building Department for me to be able to settle out the balance of that — on that.

***

Q. Well, you said you had that oral conversation a few days afterwards.

A. A few days — a few days before.

Therefore, Gomez’s deposition testimony was that the alleged oral

agreement was reached either a couple of days before or after the payoff agreement

was executed and the terms of that agreement were reflected in the written payoff

agreement except that Gomez claims that Ma orally agreed “that I could defer

payments on the balance owed on the property until such time as the building code

issues and demolition issues had been resolved.” Gomez said that “it was either

dump money into the Building Department into the — into the house so that the

house would not go back on the demo list or settle it out with him.”

Gomez admitted that there was no date certain by which he was

required to have the building issues resolved under the parties’ alleged oral

agreement. But he testified that “it’s getting to that point that it’s almost resolved.” It does not appear that Gomez made any further payments to Ma after

signing the Home Mortgage Payoff Agreement. He admitted that he has not made

any payments to Ma since receiving the quitclaim deed Ma inadvertently sent to

him. Further, Gomez has not been paying the taxes on the property; Ma has been

paying the taxes. Gomez said it was his understanding that Ma would pay the taxes

on the property until he resolved the issues with the building department.

Gomez specifically admitted as follows:

Q. * * * [Y]ou acknowledge that you haven’t paid the amounts remaining and due to Mr. Ma; is that correct?

A. I already answered the question.

Q. Well, I’m just trying to —

A. Yes.

Q. — clarify.

Gomez stated that Ma never made any demands on him for any

amounts due and owing under the installment land contract or the payoff agreement

between August 2013 and November 2020. He said Ma never even sent him a billing

statement, an accounting of accrued interest and penalties “or any type of

communication of any kind regarding payment of sums due for the property.”

Gomez said he was not aware of the amount that Ma claimed he owed until he

received a copy of the complaint. Ma said that he has attempted to call Gomez

“numerous times” since the execution of the payoff agreement but Gomez has not

answered his calls. Ma attached to his motion for summary judgment a notice of default,

on the letterhead of a law firm and addressed to Gomez both at the subject property

on Warren Road and at an Elbur Avenue address identified as Gomez’s mailing

address for notices under the installment contract. The notice is dated August 13,

2020. The notice provides as follows, in relevant part:

You have failed to comply with payment and other obligations under the land contract, and the subsequent Home Mortgage Payoff Agreement (Attached). You owe $103,776.73 as of August 31, 2020 in principal and interest as a result of your defaults, including nonpayment of agreed to monthly payments and taxes. To cure your default and become current, you must pay $74,516.20 for past due payments of 87 months since 7/1/2013 with the amended monthly payment of $758.79, $6,601.47 for late fees and $1,900.00 of property taxes which Mr. Ma paid on 6/26/2013, totaling $74,516.20. Thereafter you will owe $29,250.53 from September 1, 2020 if you cure your default. You also have not supplied proof of insurance. Please be advised that unless you pay $74,516.20 within ten (10) days of the date hereof, and supply proof of fire insurance, then the Land Contract will stand forfeited.

Gomez denied receiving the notice.

D. Filing of the Quitclaim Deed

Ma filed suit against Gomez on September 18, 2020. He asserted a

claim for forfeiture of the land installment contract and sought declaratory

judgment that the contract was terminated and that Gomez’s interest in the property

has been forfeited, “with all rights as to the subject property restored to [Ma].”

Taylor testified that Gomez informed her when the original

complaint was filed. She said Gomez gave her the quitclaim deed he had received

from Ma and her lawyer advised her to file it. Gomez said he waited to file the quitclaim deed because he did not want Taylor to have issues with the city building

department.

Taylor asked her lawyer to file the quitclaim deed and the lawyer did

so on October 26, 2020. She said she did not know that the property was not fully

paid for when the deed was filed. She admitted that she did not pay any money for

the property and said she did not know how much Gomez paid for the property.

Taylor testified that she never saw a copy of the land installment contract.

Ma filed an amended complaint on November 13, 2020, adding a

claim of fraud against Defendants for recording the quitclaim deed. To his initial

request for forfeiture of the land installment contract, Ma requested compensatory

damages and a judgment declaring that the quitclaim deed “be reversed, and that

title be reinstated to the condition it was prior to the filing” of the quitclaim deed.

Ma filed a motion for summary judgment, which the Defendants

opposed. The trial court granted Ma’s motion for summary judgment and stated

that a hearing would be set to determine Ma’s damages and any setoffs that may

apply.6 Ma then voluntarily withdrew all of his damages claims and the trial court

entered a journal entry indicating that the order was final since there is “no just

cause for delay.”

6 The trial court did not set forth detailed reasoning for its grant of summary judgment for the plaintiff. We strongly encourage trial courts to explain a decision to grant summary judgment in a written opinion. See Ferguson v. Univ. Hosps. Health Sys., Inc., 8th Dist. Cuyahoga No. 111137, 2022-Ohio-3133, ¶ 72. On March 29, 2022, the trial court entered an order declaring the

quitclaim deed Taylor filed to be “null and void for lack of adequate consideration

and for failure of delivery.” The order declared that title to the property is vested in

Ma’s name. The order stated that because the damages claims had been dismissed,

all issues in the case had been determined.

The Defendants appealed from these orders, raising the following

two assignments of error for review:

Assignment of Error 1:

Reviewing Appellee’s Motion for Summary Judgment de novo, the Record is clear and convincing that the trial court erred to the prejudice of the Appellants by granting the Appellee’s Motion for Summary Judgment on the Appellee’s Breach of Contract cause of action.

Assignment of Error 2:

Reviewing Appellee’s Motion for Summary Judgment de novo, the Record is clear and convincing that the trial court erred to the prejudice of the Appellants by granting the Appellee’s Motion for Summary Judgment on the Appellee’s Fraud cause of action.

On November 9, 2022, Ma filed a motion to dismiss the appeal as

moot based on an alleged “voluntary satisfaction” of the trial court’s judgment.7 The

Defendants did not file a response to the motion to dismiss the appeal.

7 Ma did not raise this mootness argument in his appellee brief, although he could have done so. He recorded the trial court’s March 29, 2022 order with the Cuyahoga County Fiscal Officer in April 2022 and he filed his appellee brief in August 2022. While the better practice would have been for Ma to raise the issue earlier, we must consider the mootness argument. Cf. Pride v. Cleveland Hts. Nuisance Abatement Bd. of Review, 8th Dist. Cuyahoga No. 110638, 2022-Ohio-1236, ¶ 17 (considering mootness argument raised for the first time at oral argument). II. Law and Analysis

A. Voluntary Satisfaction of Judgment Through Recording

Before turning to the merits of this case, we first address Ma’s

contention that the appeal is moot because Ma recorded the trial court’s judgment

nullifying the quitclaim deed before the Defendants filed a notice of appeal or sought

to post a supersedeas bond. We conclude that the Defendants’ second assignment

of error is moot. Even if, arguendo, their first assignment of error is not moot, we

find that Ma was entitled to summary judgment.

It is a “well-established principle of law” that voluntary satisfaction of

a judgment renders an appeal from that judgment moot. Blodgett v. Blodgett, 49

Ohio St.3d 243, 245, 551 N.E.2d 1249 (1990); Francis David Corp. v. MAC Auto

Mart, Inc., 8th Dist. Cuyahoga No. 93951, 2010-Ohio-1215, ¶ 11 (“‘Voluntary

satisfaction of judgment waives the right to appeal.’”), quoting Brickman v. Frank

G. Grickman Trust, 8th Dist. Cuyahoga No. 81778, 2004-Ohio-2006, ¶ 8. As the

Ohio Supreme Court explained in Blodgett:

“‘Where the court rendering judgment has jurisdiction of the subject[] matter of the action and of the parties, and fraud has not intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error or even to move for vacation of judgment.’”

Blodgett at 245, quoting Rauch v. Noble, 169 Ohio St. 314, 316, 159 N.E.2d 451

(1959), quoting Lynch v. Bd. of Edn. of City School Dist. of City of Lakewood, 116

Ohio St. 361, 156 N.E. 188 (1927), paragraph three of the syllabus; see also Cleveland

v. Embassy Realty Invests., Inc., 8th Dist. Cuyahoga No. 105091, 2018-Ohio-4335, ¶ 20 (If the successful party obtains a satisfaction of the judgment, any appeal “‘must

be dismissed because the issues raised in the appeal have become moot.’”), quoting

Hagood v. Gail, 105 Ohio App.3d 780, 785, 664 N.E.2d 1373 (11th Dist.1995).

If a party adversely affected by a judgment fails to obtain a stay of the

judgment, the successful party to the judgment has the right to attempt to obtain a

satisfaction of the judgment even if an appeal of the judgment is pending. See, e.g.,

Trumbull Twp. Bd. of Trustees v. Rickard, 11th Dist. Ashtabula No. 2017-A-0048,

2019-Ohio-2502, ¶ 22, 27; Wiest v. Wiegele, 170 Ohio App.3d 700, 2006-Ohio-

5348, 868 N.E.2d 1040, ¶ 12 (1st Dist.). Where a party is entitled to enforce a

judgment, actions to enforce the judgment do not render subsequent payment

involuntary. CommuniCare Health Servs. v. Murvine, 9th Dist. Summit No. 23557,

2007-Ohio-4651, ¶ 19. An appellant is deemed to have acted voluntarily in satisfying

a judgment when the appellant fails to seek a stay of execution prior to the judgment

being satisfied. Hagood at 790. As the Third District explained in Crites v. Crites,

3d Dist. Defiance No. 4-18-03, 2019-Ohio-1043:

Generally, a party may avoid a voluntary satisfaction of judgment by moving to stay execution of the judgment and by posting a supersedeas bond in an amount deemed by the trial court to be adequate to secure the judgment. See R.C. 2505.09; Civ.R. 62(B); App.R. 7(A), (B). “‘Once the appellant obtains the stay of execution, neither the trial court nor the non-appealing party is able to enforce the judgment.’” Alan v. Burns, 9th Dist. Medina No. 3271-M, 2002-Ohio-7313, ¶ 5, quoting LaFarciola v. Elbert, 9th Dist. Lorain No. 98CA007134, 1999 Ohio App. LEXIS 5833, 2 (Dec. 8, 1999). “‘The lone requirement of Civ.R. 62(B) is the giving of an adequate supersedeas bond.’” Burns at ¶ 5, quoting State ex rel. Ocasek v. Riley, 54 Ohio St.2d 488, 490, 377 N.E.2d 792 (1978). Conversely, “[a] judgment is voluntarily satisfied ‘where the party fails to seek a stay prior to the satisfaction of [the] judgment.’” Summit Servicing Agency, L.L.C. v. Hunt, 9th Dist. Summit No. 28699, 2018-Ohio-2494, ¶ 13, quoting [Murvine at] ¶ 20.

Id. at ¶ 11.

This rule applies to real-estate proceedings. Royal Fleet Auto Sales,

L.L.C. v. Chambers, 8th Dist. Cuyahoga No. 107769, 2019-Ohio-2236; Filip v.

Wakefield Run Master Homeowners’ Assn., 9th Dist. Medina No. 17CA0025-M,

2018-Ohio-1171.

Here, the trial court entered its judgment declaring the quitclaim

deed Taylor filed to be “null and void for lack of adequate consideration and for

failure of delivery.” The order declared that title to the property is vested in Ma’s

name. Ma filed the judgment in the recorder’s office on April 22, 2022, effectively

quieting title against Taylor.

Defendants filed their notice of appeal on April 27, 2022; they

contemporaneously filed a motion in the trial court to stay execution of the

judgment — which had already been executed — and asked the court to waive the

posting of a supersedeas bond. They specifically noted that “if the Plaintiff or Court

proceeds, the instant appeal could be rendered moot.” The trial court denied the

motion.

Even if we were to agree with the Defendants that the trial court erred

in granting summary judgment to Ma on his fraud claim, our reversal would have

no practical effect because the remedy Ma sought on that claim — the judgment

nullifying the quitclaim deed and removing the cloud on his title to the property — was satisfied before the Defendants appealed, sought a stay of execution or posted a

supersedeas bond. See Royal Fleet Auto Sales, L.L.C. at ¶ 21. Therefore, the

Defendants’ second assignment of error, addressed to the fraud claim and the

judgment nullifying the quitclaim deed, is moot.

The dissent’s conclusion that this assignment of error is not moot

seems to stem from the conclusion — rejected by the trial court — that Ma’s mailing

of the quitclaim deed operated to transfer the property to Taylor. See below at ¶ 114,

119 (“Ma transferred title to Taylor, but the payment became delayed. * * * Ma was

on notice of his transferring the title of the property to Taylor in 2013.”). If Taylor

validly held title to the property as of 2013, the dissent reasons that the trial court’s

order had the effect of transferring the property back to Ma. The order actually

declared that there had been no valid transfer to Taylor in the first place.

A deed must be validly delivered to be operative as a transfer of

ownership of real property. Turney, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 2015-

Ohio-4086, 43 N.E.3d 868, ¶ 12 (8th Dist.). While a grantee’s possession of a deed

creates a presumption of valid delivery, ‘“[i]t is essential to delivery that there not

only be a voluntary delivery, but there must also be an acceptance thereof on the

part of the grantee, with the mutual intention of the parties to pass title to the

property described in the deed.”’ Id., quoting Temple v. Temple, 2015-Ohio-2311,

38 N.E.3d 342, ¶ 42–43 (3d Dist.). “Delivery imports transfer of possession or the

right to possession of the instrument with the intent to pass title as a present

transfer. * * * [T]he mere manual transfer of a deed does not constitute delivery unless it is coupled with an intent of a present, immediate and unconditional

conveyance of title.” Kniebbe v. Wade, 161 Ohio St. 294, 297, 118 N.E.2d 833 (1954).

The trial court’s order declared the quitclaim deed to be “null and

void * * * for failure of delivery.” It did not transfer title back to Ma; it said that Ma

always held title to the property.

We address this distinction not because we have rejected Defendants’

arguments that the trial court erred in granting summary judgment on the fraud

claim and finding a failure of delivery but to further explain, in light of the dissent,

why the second assignment of error is moot. Following the reasoning of Royal Fleet

Auto Sales, L.L.C., the recording of the trial court’s judgment had the effect of

quieting title to the property against Taylor. See Royal Fleet Auto Sales, L.L.C. v.

Chambers, 8th Dist. Cuyahoga No. 107769, 2019-Ohio-2236, ¶ 21. Defendants do

not ask us to depart from this reasoning (they did not respond to the mootness

argument at all) and we see no reason to do so in the absence of briefing on the

issue.8

The mootness analysis is more complicated as it relates to

Defendants’ first assignment of error. The subject of the first assignment of error is

8 We do not consider whether the dissenting opinion properly addressed the merits

of the second assignment of error — including the effect of Ma’s dismissal of the request for compensatory damages and the effect of the statute of limitations — because those arguments are moot. See Filip, 2018-Ohio-1171, at ¶ 7 (“‘The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not * * * to declare principles or rules of law which cannot affect the matter in issue in the case before it.’”), quoting Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21 (1910), syllabus. the trial court’s grant of summary judgment as to Ma’s claim for forfeiture of the

land installment contract. The judgment for Ma resulted in the installment contract

being cancelled and Gomez’s interests in the contract being forfeited. R.C.

5313.09(A). However, a few facts unique to this case give us pause as to whether the

order Ma recorded effectively quiets title against Gomez. First, the land installment

contract itself was never recorded as required by R.C. 5301.25(A). Second, neither

Ma’s motion for summary judgment nor the trial court’s order of November 9

specifically reference the forfeiture of the land installment contract. Therefore, the

legal effect of the order Ma recorded — as it relates to Ma’s interest in the property

as against Gomez — is arguably gleaned only after review of the amended complaint

and the trial court’s order granting summary judgment, neither of which were

recorded.

Under the unique facts and circumstances of this case, we will not

deny the Defendants substantive appellate review of this assignment of error. Even

if the first assignment of error is not moot, though, we would affirm.

B. Forfeiture of the Land Installment Contract

Ma’s breach-of-contract claim sought forfeiture of the land

installment contract. In relevant part, Ma alleged as follows in his amended

complaint:

[Gomez] has paid toward his Installment Purchase Land Contract for less than five (5) years since the Contract’s formation, and has paid less than twenty percent (20%) of the purchase price of the subject property. [Ma] is entitled to a declaration that [Gomez]’s interest in the subject property stands forfeited, that the Installment Purchase Land Contract is terminated and cancelled, and that [Ma] is entitled to restitution of the subject property * * *.

(Emphasis deleted.)

Ma’s summary-judgment briefing did not specifically reference the

statutes relevant to forfeiture or foreclosure of land installment contracts; he

focused his arguments on the elements of a breach of contract and argued that there

was no genuine dispute that Gomez breached the installment contract and the payoff

agreement in various ways. He asked generally for a judgment in his favor, arguing

that “[s]ummary judgment should be granted as to both claims, and the property

should be reverted back to the Plaintiff and damages awarded * * *.”

Gomez also focused his arguments to the trial court on the elements

of a breach of contract. Specifically, he argued that Original Resources — and

therefore Ma, as assignee of the contract — had failed to fully perform their

obligations under the installment contract. He also argued that he and Ma had come

to an oral agreement that Gomez could defer payments on the contract until the

demolition and compliance issues had been resolved. He made no argument based

on the statutes relevant to forfeiture or foreclosure of land installment contracts.

On appeal, Gomez argues for the first time that Ma did not meet the

statutory requirements that would allow for forfeiture of the land installment

contract. We address that argument first.

R.C. 5313.08 provides as follows: If [a land installment] contract has been in effect for less than five years, in addition to the other remedies provided by law and after the expiration of the periods prescribed by sections 5313.05 and 5313.06 of the Revised Code, if the vendee is still in default of any payment the vendor may bring an action for forfeiture of the vendee’s rights in the land installment contract and for restitution of [the vendor’s] property * * *.

While the statute only allows forfeiture — as opposed to

foreclosure — when “the contract has been in effect for less than five years,” this

phrase is commonly understood to allow forfeiture unless the vendee has made

payments in accordance with the contract for five years or more. See Thomas D.

Stiffler, Trustee v. F.I.O.P Assocs., LLC, 2d Dist. Montgomery No. 28501, 2020-

Ohio-826, ¶ 11 (“Where the vendee has not yet made payments under the contract

for a period of five years, R.C. 5313.08 permits the vendor to bring an action for

forfeiture of the vendee’s rights and for restitution of the property.”); Clifton v.

Malone, 4th Dist. Pike No. 429, 1989 Ohio App. LEXIS 4478, 8–9 (Nov. 22, 1989)

(“Forfeiture is available only where the vendee has neither made payments under

the contract for five years, nor paid a sum equal to twenty percent of the purchase

price.”); Chem. Bank v. Sullivan, 121 Ohio App.3d 111, 112, 699 N.E.2d 105 (6th

Dist.1997) (“In a default situation, a vendor under a land contract has two potential

options available to reclaim the property. The first is a relatively summary

procedure known as a forfeiture. If a defaulting vendee has paid on the contract for

less than five years and accrued payments are less than twenty percent of the total

purchase price, the vendor may institute a forfeiture action.”); Taylor v. Nickston

Invests., 10th Dist. Franklin No. 92AP-508, 1992 Ohio App. LEXIS 5836, 12–13 (Nov. 17, 1992) (“Conversely, where a buyer fails to meet either of [the R.C. 5313.07]

requirements, the seller may seek forfeiture of the property as provided for in R.C.

5313.08 and R.C. Chapter 1923.”).

This is so because the forfeiture statute is read in conjunction with

R.C. 5313.07, which sets forth the requirements for foreclosure. That statute

requires foreclosure “[i]f the vendee of a land installment contract has paid in

accordance with the terms of the contract for a period of five years or more from the

date of the first payment * * *.” Together, R.C. 5313.07 and 5313.08 “address and

provide for all available remedies in a breach of land contract action * * *.” Castro

v. Prokop, 11th Dist. Trumbull No. 89-T-4238, 1991 Ohio App. LEXIS 1061, 5 (Mar.

15, 1991).

We are aware that at least one appellate court, in dicta, read the

statute to prohibit forfeiture “where five years from the first payment has elapsed

* * *.” Alright v. Wayne, 5th Dist. Morrow No. CA-613, 1984 Ohio App. LEXIS 9537,

4 (Mar. 2, 1984) (“R.C. 5313.07 limits the remedies to vendor available upon vendee

default where five years from the first payment has elapsed, or the vendee has paid

20% or more of the purchase price.”). We are also aware of two appellate decisions

that squarely addressed the issue and came out differently. In Vukin v. Gerena, 9th

Dist. Summit No. 3340, 1982 Ohio App. LEXIS 12633 (Sept. 15, 1982), the Ninth

District Court of Appeals examined these statutes and concluded that “[w]hen the

contract has been in effect for more than five years, even though the vendee has not

paid in accordance with the contract for five years or more, the [vendor] may not bring a forfeiture action. This does not mean * * * that [the vendor] is limited to a

foreclosure action. Rescission, for example, might lie depending on the particular

circumstances.” Another panel of the Ninth District came to the same conclusion,

albeit with less detailed reasoning, in Sancic v. Jackson (per curiam), 9th Dist.

Summit No. 11082, 1983 Ohio App. LEXIS 15770 (July 6, 1983).

The dissenting opinion would also hold differently. The dissent does

not discuss Vukin but follows its reasoning. The dissent would find that a vendor

cannot obtain forfeiture under R.C. 5313.08 if the land installment contract has been

“in operation” or “in force” for longer than five years. Below at ¶ 111; compare Vukin

at 6–7. The dissent does not specifically address when the contract should be

considered “in operation,” that is to say whether the clock runs from the date of the

first payment (as suggested by Alright) or from some other point. Neither does

Vukin. Both Vukin and the dissent would also have the vendor’s relief in situations

like this — where five years have passed from some initial starting point but where

payments have not been made for five years — “lay elsewhere” than forfeiture. See

below at ¶ 110; Vukin at 7. Vukin suggests that the vendor’s relief lies in rescission.

Vukin at 7. The dissenting opinion suggests that the vendor’s relief — or Ma’s relief,

at least — is limited to monetary damages for breach of contract. See below at ¶ 114

(“[I]t must be recognized that this is a breach of contract action solely based on

general principles of contract.”).

With due respect to the conclusion reached by two panels of the Ninth

District and to the dissenting opinion, we are persuaded to follow the reasoning of the Second, Fourth, Sixth and Tenth Districts in holding that forfeiture was an

available remedy to Ma because Gomez had not paid in accordance with the land

installment contract for a period of five years or more.

Reading R.C. 5313.07 and 5313.08 together, it is clear that the

legislature (1) required foreclosure proceedings when the vendee has paid in

accordance with the contract for at least five years or has paid 20 percent or more

toward the purchase price and (2) allowed forfeiture proceedings where these

circumstances are not present. Our reading does not render R.C. 5313.08

“meaningless,” as the dissent contends. Our reading says that the phrase “in effect,”

as used in that statute, is defined by reference to the more specific language of the

immediately preceding statutory section. This conclusion is readily reached by a

plain reading of these two statutes and bolstered after consideration of the history

and purposes of R.C. Chapter 5313.

The Ohio Supreme Court discussed the history of R.C. Chapter 5313

in Kiser v. Coleman, 28 Ohio St.3d 259, 503 N.E.2d 753 (1986), as follows:

The law in force prior to the enactment of R.C. Chapter 5313 most clearly granted to vendors of a land contract the right to declare the vendee’s forfeiture for breach of such land contract without legal proceedings where such right was contractually agreed upon by the parties. Further, such forfeiture became effective upon notice. Judicial relief was limited to equitable considerations alone.

In 1969, the General Assembly acted to change that state of the law by enacting R.C. Chapter 5313, land installment contracts. The chapter made express changes in the above common law by its provisions contained in R.C. 5313.07 and 5313.08. * * *

These provisions limit the availability of forfeitures to specific circumstances. (Citations omitted.) Id. at 261–262.

The court described that the enactment of R.C. 5313.07 created “new

substantive rights,” in that “the defaulting vendee has been effectively granted an

equity of redemption in the property” “[u]pon payment of twenty percent of the

purchase price or payments extending over five years.” Id. at 263. The court further

described that “[t]he contractual right of possession which was in the vendee only

so long as the contract was in force was established as a legal right in the vendee by

R.C. 5313.07, which would exist despite the enforceability of the contract.” Id.

In other words, at common law a vendor could forfeit a vendee’s

interest in a land installment contract upon default, in accordance with the terms of

their contract. The enactment of R.C. 5313.07 enshrined a legal right that cannot be

forfeited — notwithstanding a forfeiture right provided by the contract — after the

vendee has paid 20 percent of the purchase price or made payments extending over

five years. It follows, as the other side of the coin, that the legislature intended a

vendor to retain the ability to forfeit a vendee’s interest in a land contract where the

right enshrined in R.C. 5313.07 has not attached. The Supreme Court in Kiser made

no mention of any kind of intermediate protection the General Assembly sought to

provide to vendees in Gomez’s situation — more than five years after a land contract

was executed but where the vendee had not made payments for five years or more.

There is no such intermediate protection.

Chapter 5313’s intent was to “prevent a ‘windfall to a vendor who has

previously collected substantial sums under a land contract and/or has actually recovered the property.’” Howard v. Temple, 172 Ohio App.3d 21, 2007-Ohio-3074,

872 N.E.2d 1260, ¶ 9 (4th Dist.), quoting Farkas v. Bernard, 10th Dist. Franklin No.

95APE10-1365, 1996 Ohio App. LEXIS 1953, 10 (May 16, 1996). The legislature

provided the protections of foreclosure proceedings to vendees that “ha[ve] a large

amount of equity in the real estate.” Castro v. Prokop, 11th Dist. Trumbull No. 89-

T-4238, 1991 Ohio App. LEXIS 1061, 5 (Mar. 15, 1991). A vendee who does not

amass sufficient equity by paying 20 percent of the purchase price or making

payments over five years does not receive the protection of the right conferred by

R.C. 5313.07.9

It is undisputed that at the time Ma instituted these forfeiture

proceedings, Gomez had not paid in accordance with the contract for five years.

Gomez made the first payment under the contract in 2010 and he stopped making

payments in 2013. Gomez does not claim that he has paid 20 percent or more

toward the purchase price either; indeed, he agreed in the payoff agreement that as

of summer 2013 there remained $38,269 remaining on the principal balance toward

the purchase price of $42,000. Thus, forfeiture was a remedy available to Ma under

R.C. 5313.08.

Having found that forfeiture was an available remedy here, we turn

to the merits of Ma’s motion for summary judgment on that claim. A judgment for

9 Our holding today does not address the merits of any claim that may lie against a vendor, for unjust enrichment or otherwise; there was no counterclaim asserted against Ma here. the vendor on a forfeiture claim “operate[s] to cancel the land installment contract

as of a date to be specified by the court.” R.C. 5313.09.

We review summary-judgment rulings de novo, applying the same

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). Under Civ.R. 56, summary judgment is appropriate when no

genuine issue exists as to any material fact and, in viewing the evidence most

strongly in favor of the nonmoving party, reasonable minds can reach only one

conclusion that is adverse to the nonmoving party, entitling the moving party to

judgment as a matter of law.

On a motion for summary judgment, the moving party carries an

initial burden of identifying specific facts in the record that demonstrate their

entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292–293,

662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary

judgment is not appropriate; if the moving party meets this burden, the nonmoving

party has the reciprocal burden to point to evidence of specific facts in the record

demonstrating the existence of a genuine issue of material fact for trial. Id. at 293.

Summary judgment is appropriate if the nonmoving party fails to meet this burden.

Id.

Ma met his initial summary-judgment burden by pointing to

evidence establishing that Gomez was consistently delinquent on payments under

the land installment contract and stopped making payments altogether in 2013. He

further pointed to evidence that he and Gomez entered into a payoff agreement under which Gomez undertook to either pay off the entire reduced purchase price

by July 2013 or to continue making monthly installment payments under the

installment contract, yet Gomez failed to do either. Ma has been paying the property

taxes on the property for years. He sent Gomez a notice of default that complies

with R.C. 5313.06 prior to filing suit and directed the notice both to the real estate

that is the subject of the installment contract and the Elbur Avenue address that

Gomez agreed was the appropriate address to which the vendor could direct notices

under the agreement.

Defendants have not met their reciprocal burden to point to evidence

of specific facts demonstrating the existence of a genuine issue of material fact for

trial. Their arguments are essentially three-fold: (1) Original Resources, Inc. failed

to include certain disclosures they say were required by R.C. 5131.02(A) in the land

installment contract, particularly by failing to identify orders pending against the

property by public agencies, (2) Gomez contends that he and Ma came to an oral

agreement that Gomez could defer payments under the payoff agreement until the

compliance issues with the city had been fully resolved and (3) the trial court was

not permitted to forfeit the contract without consideration of “repayment, set-off,

credit, or reimbursement or other contractual or equitable relief to the Appellants.”

None of these arguments preclude summary judgment.

It is true that, in several ways, Original Resources and Ma failed to

comply with the statutory requirements for land installment contracts. Ma does not

seriously dispute Gomez’s complaints about the disclosures required under the statute, and it is undisputed that the contract was never recorded. However, these

failures do not excuse Gomez’s failure to make payments under the installment

contract. A vendee has a statutory cause of action to enforce the provisions of R.C.

Chapter 5313; a vendee may seek “appropriate relief” in a municipal court, county

court or court of common pleas. R.C. 5313.04. Gomez did not do so, even after he

discovered shortly after entering the property that the house was on the “demolition

list.”

Moreover, Gomez has not shown how the failure to comply with these

statutory requirements prevented him from complying with his obligation to make

monthly payments. Gomez entered into the land installment contract after

inspecting the property and expressly agreeing that he was accepting the property

as is, with Original Resources disclaiming making any representations or warranties

“regarding any liens or encumbrances affecting the Property, including but not

limited to real property taxes, covenants, conditions, restrictions and easements,

whether or not of record.” And beyond generally claiming that he paid $20,000 to

deal with legal matters related to the building violations, Gomez has not explained

how these expenses prevented him from making monthly payments or why he

entered into the payoff agreement that recommitted him to making monthly

payments if he could not pay off the entire balance owed.

For all these reasons, Gomez has not established a genuine dispute

that the vendors’ failure to follow certain statutory requirements for land

installment contracts excused his default on the monthly payments. Ma correctly argues that the alleged oral agreement that Gomez

claims was reached regarding continued payments on the property is unenforceable

under the statute of frauds. “[A]n agreement concerning an interest in real property

is unenforceable unless it is reflected in a signed writing containing all the essential

terms of the agreement and signed by the party to be charged.” JP Morgan Chase

Bank, N.A. v. Spears, 3d Dist. Shelby No. 17-17-10, 2018-Ohio-917, ¶ 11, citing R.C.

1335.04 and 1335.05.

Gomez does not contend that this alleged oral agreement was not one

“concerning an interest in real property.” We find that the alleged agreement is one

concerning an interest in real property. See FirstMerit Bank, N.A. v. Inks, 138 Ohio

St.3d 384, 2014-Ohio-789, 7 N.E.3d 1150, ¶ 25 (“[T]he alleged oral agreement

between [mortgagor] and FirstMerit does pertain to an interest in land, because it

involves the terms upon which FirstMerit allegedly agreed to release the mortgage.

As such, even if it is characterized as a settlement agreement, it falls within R.C.

1335.05.”).

Gomez instead argues that the statute of frauds does not bar

enforcement of the alleged oral agreement because Ma instituted this suit, not him.

But it is “well-settled” that “‘a verbal contract within the condemnation of the statute

of frauds cannot be enforced in any way, either directly or indirectly, and cannot be

made either the ground of a demand or the ground of a defense.’” (Emphasis

added.) FirstMerit Bank, N.A. v. Inks, 138 Ohio St.3d 384, 2014-Ohio-789, 7 N.E.3d 1150, ¶ 20, quoting McGinnis v. Fernandes, 126 Ill. 228, 232, 19 N.E. 44 (1888).

Thus, the statute of frauds is implicated in this case.

Nevertheless, Gomez argues that the statute of frauds does not

prohibit enforcement of the alleged oral agreement under the doctrine of part

performance, because of promissory estoppel or because the contract was orally

modified.

“Partial performance sufficient to remove a contract from the

operation of the statute of frauds ‘must consist of unequivocal acts by the party

relying upon the agreement, which are exclusively referable to the agreement and

which have changed his position to his detriment and make it impossible or

impractical to place the parties in statu quo.’” (Emphasis sic.) U.S. Bank v. Stewart,

7th Dist. Columbiana No. 12 CO 56, 2015-Ohio-5469, ¶ 27, quoting Delfino v. Paul

Davies Chevrolet, Inc., 2 Ohio St.2d 282, 287, 209 N.E.2d 194 (1965).

[A]cts which do not unmistakably point to a contract existing between the parties, or which can be reasonably accounted for in some other manner than as having been done in pursuance of a contract, do not constitute a part performance sufficient in any case to take it out of the operation of the statute, even though a verbal agreement has actually been made between the parties.

Hughes v. Oberholtzer, 162 Ohio St. 330, 339–340, 123 N.E.2d 393 (1954).

A party seeking to establish promissory estoppel must prove: (1) a

clear, unambiguous promise, (2) reliance on the promise by the person to whom the

promise is made, (3) reasonable and foreseeable reliance on that promise and (4) injury that results from that reliance. Zindroski v. Parma City School Bd. of Edn.,

8th Dist. Cuyahoga No. 93583, 2010-Ohio-3188, ¶ 62.

Finally, even contracts that are required by the statute of frauds to be

in writing can be modified orally “when the parties to the written agreement act

upon the terms of the oral agreement.” Third Fed. S. & L. Assn. of Cleveland v.

Formanik, 8th Dist. Cuyahoga Nos. 100562 and 100810, 2014-Ohio-3234, ¶ 13,

citing 200 W. Apts. v. Foreman, 8th Dist. Cuyahoga No. 66107, 1994 Ohio App.

LEXIS 4081 (Sept. 15, 1994); see also 3637 Green Rd. Co. v. Specialized Component

Sales Co., 8th Dist. Cuyahoga No. 103599, 2016-Ohio-5324, ¶ 21–25, 30–35

(substantial, competent credible evidence supported the trial court’s conclusion that

commercial landlord waived lease’s no-oral-modification and written waiver

provisions by its subsequent course of conduct, resulting in an enforceable oral

agreement to reduce the rent due under the lease, where the landlord’s records

showed that landlord “invoiced” monthly rent at reduced rate and tenant “paid”

monthly rent at reduced rate leaving a zero balance due on the account).

Gomez does not point to evidence establishing a genuine issue of

material fact that there was partial performance on the alleged oral agreement, that

promissory estoppel applies or that the parties orally modified the contract. His

only support for these arguments is his allegation that the parties orally agreed that

— despite the clear language of the payoff agreement to the contrary — he need not

make any payments on the balance owed on the installment contract until some

indeterminate future time when “the building code issues and demolition issues had been resolved” and the fact that Ma did not make any written demands upon him

for payment for several years before instituting this lawsuit.

The first problem with Gomez’s argument is that he has not shown a

genuine issue that an oral agreement existed prior to the execution of the payoff

agreement. While his unsworn written statement provides that the oral agreement

occurred “[s]hortly after executing the Home Mortgage Payoff Agreement,” the

clarity of this timing contradicts Gomez’s sworn deposition testimony, as discussed

further above at paragraphs 34–35.

We will not read an unsworn, self-serving statement made in

response to a motion for summary judgment as creating a genuine issue of material

fact when the statement contradicts sworn deposition testimony. Even if there had

been an oral agreement reached prior to the execution of the payoff agreement, the

statute of frauds would bar its execution.

Gomez does not show how, if at all, he or Ma acted in a way that

“unmistakably point[s] to a contract existing between the parties.” Delfino at 287.

It does not seem that Ma ever sent Gomez invoices before the alleged oral

agreement, such that there would have arguably been a change in the parties’ course

of dealing after the oral agreement was supposedly reached. Moreover, Ma states

that he tried calling Gomez repeatedly about the property, which Gomez does not

specifically deny. Gomez also does not show how, if at all, he detrimentally relied

on the alleged oral agreement. Defendants’ third argument similarly fails. Gomez argues that the

trial court could not have granted summary judgment to Ma without considering

“repayment, set-off, credit, or reimbursement or other contractual or equitable relief

to the Appellants.” Gomez does not argue what setoff, credit or reimbursement to

which he believes he is entitled. But because Gomez did not file any counterclaims

against Ma — for breach of contract or unjust enrichment, for example — and Ma

dismissed his claims for monetary damages, the trial court was left solely to decide

whether Gomez’s interest in the land contract should be forfeited. Under the facts

and circumstances of this case, we find that the trial court was permitted to grant

summary judgment on that issue without consideration of setoff, credit or

reimbursement.

It was the Defendants’ burden to show a genuine issue of material

fact regarding Ma’s claim for forfeiture of the land installment contract as a result of

a breach of that contract. Considering the evidence in a light most favorable to the

Defendants, they did not meet that burden. Ma was thus entitled to judgment as a

matter of law.

We, therefore, overrule Defendants’ first assignment of error.

Before concluding, we address one final point raised by the dissent,

namely that the trial court granted Ma a “windfall.” See below at ¶ 103. Gomez

testified that he paid over $25,000 in attorney fees in actions filed by the city of

Lakewood regarding the property and “expended substantial additional funds”

bringing the property up to code; he also testified that he paid the water and sewer bills for the property. He testified that he paid $6,000 upgrading the exterior power

for the property and suggested that he improved the roof and driveway. But calling

this summary judgment a “windfall” for Ma is speculative in light of the record here.

There was no evidence presented about the property’s current condition or current

market value. Gomez admitted that the property “still has issues with the Building

Department.” There was no evidence presented about the fair rental value of the

property over the years Gomez possessed the property without making payments to

Ma. There was no evidence presented about rents Gomez collected for the property

over the years; Defendants testified that there were tenants at the property for a

period of time. Ma paid the property taxes on the parcel for years after Gomez

stopped paying them. Without more information, it is impossible to conclude which

party (if any) received a “windfall” in this unique situation.

III. Conclusion

Having overruled Defendant’s assignments of error for the reasons

stated above, we affirm.

It is ordered that the appellee recover from the appellants the 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

Cuyahoga County Court of Common Pleas 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.

_________________________ EILEEN A. GALLAGHER, JUDGE

ANITA LASTER MAYS, A.J., CONCURS; SEAN C. GALLAGHER, P.J., DISSENTS (WITH SEPARATE OPINION)

SEAN C. GALLAGHER, P.J., DISSENTING WITH SEPARATE DISSENTING OPINION:

I respectfully dissent. Ma received a windfall, retaking ownership

and possession of a property that was maintained and possessed by Gomez and

owned by Taylor for close to a decade. Neither party is entitled to the property free

and clear at the expense of the other in this rather unique situation.

The complaint in this action involved two claims, both related to the

restitution of Ma’s ownership of the residential property that he transferred to

Taylor in 2013. The sole issue before this court is whether summary judgment was

warranted on Ma’s breach of contract stemming from the alleged breach of the home

mortgage payoff agreement and fraud claims pertaining to his transferring the title

of the disputed property to Taylor in 2013. The trial court granted the motion for

summary judgment on the breach-of-contract and fraud claims, but left the

damages, including any “set-offs [Gomez] may be entitled to” to be resolved at a subsequent hearing. That hearing never occurred. Before the hearing could be

conducted, Ma “withdrew all damages claims he might have in this matter.”10

It was only after Ma “withdrew” all claims for damages that the trial

court issued an order that restored Ma’s ownership of the property by deeming the

2013 transfer null and void and declared the judgment to be “final,” without

conducting a damages hearing on any potential set0ff the court previously

recognized as an issue in need of resolution or providing notice to Gomez of any

intent to forego such a hearing.11

Before addressing the merits of the arguments presented, the

mootness issue needs to be put to rest. The motion to dismiss this appeal, filed

several months after the close of the briefing schedule, has been denied. See Journal

Entry dated February 1, 2023. Despite this, the majority reconsiders that decision

and now deems any issues pertaining to the trial court’s decision to nullify the 2013

transfer moot based on Ma’s recording of the trial court’s decision. Ma’s entire

10 Breach-of-contract and fraud claims require a plaintiff to demonstrate damages in order for the claims to be substantiated. Corsaro v. ARC Westlake Village, Inc., 8th Dist. Cuyahoga No. 84858, 2005-Ohio-1982, ¶ 20, citing Am. Sales, Inc. v. Boffo, 71 Ohio App.3d 168, 175, 593 N.E.2d 316 (2d Dist.1991) (breach of contract requires proof of actual damages); Burr v. Bd. of Cty. Commrs. of Stark Cty., 23 Ohio St.3d 69, 73, 491 N.E.2d 1101 (1986) (fraud requires proof of a resulting injury). 11 There is no provision under the Civil Rules that permits a party to withdraw all claims for damages that are a prerequisite to the contract and tort claims for which summary judgment was partially granted. In general terms, the withdrawing of the damages is tantamount to dismissal of the claims since there is no relief that can be granted at that point in time. In light of the fact that the trial court restored Ma’s ownership without conducting the damages hearing, this observation does not impact the finality of the judgment underlying this appeal. argument is that the “judgment” was “voluntarily satisfied” because he recorded the

trial court’s order nullifying the 2013 transfer before Gomez and Taylor sought the

stay of execution that was denied by the trial court.

The three paragraphs of cursory discussion presented by Ma on the

mootness issue was rightfully denied, but even if it is the majority’s intent to

reconsider the merits of the motion, our analysis and discussion should be limited

to the arguments as presented. Tellingly, the majority bases its decision on its own

extensive and well-researched analysis, straying far beyond the extremely limited

argument presented for our review. But see Maj. Op. at ¶ 60 (refusing to depart

from the majority’s reasoning because Gomez and Taylor did not respond to the

motion to dismiss). I would limit the analysis to Ma’s arguments, which solely

hinges on the effectiveness of a stay of execution.

Any stay of execution would have been futile in this particular case.

Recording a land transfer does not effectuate or validate the land transfer itself, it

merely memorializes it. Deutsche Bank Natl. Trust Co. v. Hill, 5th Dist. Perry No.

14 CA 00021, 2015-Ohio-1575, ¶ 29. According to the unambiguous language of the

judgment at issue, the judgment nullifying the Taylor’s 2020 recording of the

quitclaim deed, the court’s decision was “effective as of the recording date of the

prior instrument number” that vested title to Taylor. In other words, by its own

terms, the judgment was effective immediately; the 2013 transfer was null and void

from the date of transfer. Recording that judgment simply put third parties on

notice of the status change in the titled owner. There was no execution to be had, and no judgment to be satisfied; especially considering the fact that Ma effectively

dismissed all pending claims after the partial summary judgment on both claims.

Preventing Ma from recording the judgment would not divest him of ownership of

the property bestowed upon him by the trial court.

This case is unique in that the final judgment was not rendered upon

any claims, all of which had been withdrawn by Ma by that point in time. The

appellants had no recourse but to file this appeal, which Ma tacitly recognized since

his motion to dismiss was not filed until several months into the appellate

proceedings. Since the panel already denied that motion, there is no need to address

those concerns any further.

In the complaint, Ma claims that Gomez breached the installment

purchase land contract (“installment contract”) and the home mortgage payoff

agreement (“purchase agreement”) entered between himself and Gomez in 2013.

The purchase agreement does not contemplate the continuation of the installment

contract, nor would any breach of the installment contract entitle Ma to restitution

or forfeiture through R.C. Chapter 5313. Those statutory sections are not applicable

since the installment contract was in effect for longer than five years. R.C. 5313.08

(restitution and forfeiture are only available as remedies if the land installment

contract has been “in effect” for less than five years). Ma’s relief lay elsewhere.

The majority’s conclusion, that R.C. 5313.08 permits forfeiture

claims beyond five years following the effective date of the land installment contract

as long as the vendee does not make payments amounting to 20 percent of the total purchase prices, is rewriting R.C. 5313.08. According to the majority, R.C. 5313.07

and 5313.08 must be read together to mean that forfeiture may occur after a land

installment contract was in effect as long as the conditions of R.C. 5313.07 are not

met. In other words, R.C. 5313.08 is meaningless; forfeiture is a remedy whenever

foreclosure is not required under R.C. 5313.07. In this regard, the majority is

substituting the unambiguous term “if the contract has been in effect for less than

five years” under R.C. 5313.08 to mean “if the vendee of the land installment

contract has paid in accordance with the contract for less than five years” as used in

R.C. 5313.07. “In effect” is defined as “in operation” or “in force.” See, e.g., Hocking

Valley Community Hosp. v. Community Health Plan of Ohio, 4th Dist. Hocking No.

02CA28, 2003-Ohio-4243, ¶ 16 (if a contract is not executed but the parties act “as

if the contract [is] in effect,” performance can be a substitute for the writing). If the

lack of payments somehow rendered the contract inoperable or not enforceable, as

opposed to merely being a breach of an otherwise enforceable contract, then there

would never be a breach of contract that could ever occur since the failure to make

payments renders the contract inoperable or unenforceable. The majority’s

conclusion will have ramifications beyond this case. It is for this reason that statutes

are to be applied as written.

If the legislature had intended the majority’s result, it would have

used the same language in both sections. As it stands, forfeiture is not a statutorily

authorized remedy in this case under the unambiguous language of R.C. 5313.08.

Instead, under the unambiguous language of R.C. 5313.08 the legislature set a deadline within which a vendor must seek forfeiture and restitution. That deadline

is not limited to situations in which a vendee has paid for five years or has paid an

amount equal or greater to 20 percent of the purchase price. Unless “the contract

has been in effect for less than five years,” there is no authority under R.C. 5313.08

to institute an action for forfeiture and restitution.

If the contract has been in effect for less than five years (R.C.

5313.08), a vendor may seek restitution (forcible entry and detainer) and forfeiture

(of the land installment contract) unless the vendee has made payments for five

years or in an amount equal or greater than 20 percent of the purchase price, in

which case foreclosure is required (R.C. 5313.07). Reading statutory provisions

together means applying the unambiguous language of each section, not redefining

words of common usage to create remedies not provided by the legislature. The

majority’s conclusion provides windfalls to vendors who sit on their statutory rights

only to evict the vendee and force that vendee to forfeit any equitable rights in the

property after five years. The legislature unambiguously set a five-year deadline for

forfeiture actions under R.C. 5313.08, and no amount of judicial interpretation

should be used to alter that unequivocal conclusion.

As a result of Gomez’s foregoing observation, it must be recognized

that this is a breach-of-contract action solely based on general principles of contract.

After operating under the installment contract for several years, the parties’

disagreement relating to the failure to abide by the notice requirements under R.C.

5313.02(A) resulted in negotiation of the purchase agreement involving a lump-sum payment in exchange for title to property in Taylor’s name. Ma transferred title to

Taylor, but the payment became delayed. According to Ma, the transfer was

premature because Gomez did not timely submit the payment and breached the

agreement thereby, but Gomez claims they orally agreed to defer payment until the

issues with the city were resolved. That delay necessarily impacts the damages for

any breach.

With respect to the breach of the purchase agreement, there are

genuine issues of material fact precluding the granting of summary judgment under

Civ.R. 56. Gomez submitted an affidavit under Civ.R. 56(E), and that affidavit goes

well beyond bare legal conclusions or allegations that fall under the prohibition

against self-serving affidavits. Gomez’s affidavit presents evidence demonstrating

that Ma did not prove a breach-of-contract claim as a matter of law, also

demonstrated by the fact that Ma “withdrew” any claims for actual damages that are

a necessary requisite of any breach-of-contract action. Corsaro, 8th Dist. Cuyahoga

No. 84858, 2005-Ohio-1982, at ¶ 20. And importantly, Gomez’s affidavit setting

forth evidence favorable to his argument is no more self-serving than Ma’s affidavit

that was unequivocally accepted by the trial court and the majority herein. The

weight or veracity of Gomez’s evidence is not properly considered under Civ.R. 56.

In his affidavit, Gomez avers that Ma and his predecessor in interest

failed to comply with the provisions of R.C. Chapter 5313, including the failure to

abide by R.C. 5313.02, leading to the negotiation and execution of the purchase

agreement. After executing the purchase agreement, Gomez claimed that he and Ma orally agreed to defer the lump-sum payment until Gomez could resolve the

dispute with the city. Ma’s failure to pursue any action against Gomez for seven

years following the 2013 agreement and his transferring of the title to Taylor, a third-

party beneficiary of the purchase agreement, demonstrates: (1) that the purchase

agreement controlled over the installment contract because the installment contract

would have required Ma to hold title to the property until the loan was paid over

time, and (2) that the course of performance, impacting Ma’s potential waiver of any

statute-of-frauds defense, suggests the existence of the oral modification Gomez

claims to have been necessitated by the continuing actions of the city against the

property. See TLOA Acquisitions, L.L.C. v. Unknown Heirs, 2021-Ohio-3678, 179

N.E.3d 246, ¶ 16 (8th Dist.), quoting 3637 Green Rd. Co. v. Specialized Component

Sales Co., 2016-Ohio-5324, 69 N.E.3d 1083, ¶ 33 (8th Dist.), and Crilow v. Wright,

5th Dist. Holmes No. 10 CA 10, 2011-Ohio-159, ¶ 47 (statute of frauds may apply

where it would be inequitable to permit the doctrine to operate and the acts of the

parties are sufficient to provide a safeguard in lieu of the writing requirement).

Although Gomez’s affidavit was unsworn, it is well settled that such

affidavits will support a judgment if the trial court considers them and no objection

is made. Brown v. Ohio Cas. Ins. Co., 63 Ohio App.2d 87, 90, 409 N.E.2d 253 (8th

Dist.1978), quoting United States v. Dibble, 429 F.2d 598, 603 (9th Cir.1970)

(Wright, J., concurring); see also Wolk v. Paino, 8th Dist. Cuyahoga No. 93095,

2010-Ohio-1755, ¶ 28 (“While a court, in its discretion, may consider other

documents than those specified in Civ.R. 56(C) if there is no objection, there is no requirement that a court do so.”). Ma failed to object to the trial court’s

consideration of these unsworn statements and as the majority recognizes, see Maj.

Op. ¶ 4, fn. 1, neither affidavit from Ma or Gomez were properly submitted. Despite

this conclusion, the majority rejects Gomez’s evidence, which largely tracked his

deposition testimony that the parties agreed to delay payments pending the city’s

actions against the property, while fully accepting Ma’s. Maj. Op. at ¶ 96.

And, in addition to all this, Ma presented no evidence of damages in

his motion for summary judgment, much less that he was entitled to receive the

property free and clear of all expenses paid and any equity built by Gomez for the

decade Gomez retained possession of the property. As the trial court initially

recognized, the issue of damages required, at the least, a hearing (if not a trial).

With respect to the fraud claim against Taylor, the court erred in

granting judgment in favor of Ma against Taylor. Ma was on notice of his

transferring the title of the property to Taylor in 2013. He admitted he undertook

the act of his own volition. His defense was limited to a self-serving statement in his

affidavit that he did so by mistake due to personal matters. Taylor’s recording of the

title is of little consequence to the fraud claim. Under R.C. 5301.25, “[u]ntil so

recorded or filed for record, [all deeds] are fraudulent [only] insofar as they relate

to a subsequent bona fide purchaser having, at the time of purchase, no knowledge

of the existence of that former deed, land contract, or instrument.” R.C. 5301.25(A).

Thus, the recording of the transferred title goes to fair notice to subsequent purchasers, not the validity of the transaction itself. See Hill, 5th Dist. Perry No. 14

CA 00021, 2015-Ohio-1575, ¶ 29.

Ma cannot claim that he first discovered the alleged fraudulent

conduct, Taylor’s erroneous retention of the title to the property starting in 2013,

after Taylor belatedly recorded the transfer of title that he initiated without anything

other than his admission of a mistake. R.C. 2305.09(C). Ma voluntarily, albeit

prematurely, transferred title of his property to Taylor in 2013 before Gomez upheld

his end of the bargain. In the seven ensuing years, Ma took no action to rectify the

situation or pursue the lump-sum payment from Gomez. Even if Taylor’s retention

of the title somehow constituted fraud, that conduct originated in 2013 when Ma

transferred the title to Taylor and she retained that title despite Gomez’s failure to

submit the lump-sum payment. The filing of the complaint in 2020 was well beyond

the statute of limitations for a fraud claim that accrued in 2013, and therefore, it

cannot be the basis of awarding Ma title to the property.

There are genuine issues of material fact precluding the granting of

summary judgment upon the breach-of-contract allegations, and accordingly, the

trial court’s order granting Ma title to the property should be vacated and this matter

remanded for further proceedings.