[Cite as Solomon v. Harwood, 2011-Ohio-5268.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96256
ALEX A. SOLOMON, TRUSTEE PLAINTIFF-APPELLANT CROSS-APPELLEE
vs.
DALE HARWOOD, ET AL. DEFENDANTS-APPELLEES
and
RESOURCE TITLE AGENCY, INC. DEFENDANT-APPELLEE CROSS-APPELLANT
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-644729 and CV-664133
BEFORE: Jones, J., Blackmon, P.J., and Celebrezze, J. RELEASED AND JOURNALIZED: October 13, 2011
ATTORNEY FOR APPELLANT
Harold Pollock Harold Pollock Co., L.P.A. 5900 Harper Road, Suite 107 Solon, Ohio 44139
ATTORNEYS FOR APPELLEES
For Dale Harwood, et al.
Ronald A. Rispo Shawn W. Maestle Weston Hurd, L.L.P. The Tower at Erieview 1301 East 9th Street, Suite 1900 Cleveland, Ohio 44114
For David J. Horvath
Nicholas D. Satullo Reminger Co., L.P.A. 1400 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115
For Remah Mustafa
Russell S. Bensing 1350 Standard Building 1370 Ontario Street Cleveland, Ohio 44113
For RBS Citizens
Gregory P. Amend Kohrman Jackson & Krantz, P.L.L. 1375 East Ninth Street One Cleveland Center, 20th Floor Cleveland, Ohio 44114 Attorneys continued
For RBS Citizens, N.A.
Kathleen A. Nitschke Ari H. Jaffe Giffen & Kaminski, L.L.C. 1300 East Ninth Street Suite1600 Cleveland, Ohio 44114
For Resource Title Agency Inc.
David M. Cuppage Climaco, Wilcox, Peca, Tarantino, Garofoli 55 Public Square Suite 1950 Cleveland, Ohio 44113
LARRY A. JONES, J.:
{¶ 1} Plaintiff-appellant, Alex Solomon, Trustee, appeals the trial court’s
judgment in favor of defendants-appellees, Dale Harwood, Mukhless and Remah
Mustafa, RBS Citizens N.A., David Horvath, and defendant-appellee cross- appellant,
Resource Title Agency. For the reasons that follow, we affirm.
Procedural History and Facts
{¶ 2} The facts and procedural history of this case are lengthy and convoluted.1
1 Since a single succinct statement of all the material facts is difficult given the number of parties and claims involved, we will discuss many of the facts pertinent to each party with our analysis of the legal issues. What is undisputed is that in 2003, real estate investor Dale Harwood purchased real
property located at 1359 Adelaide Street in Westlake for $1.1 million. In August
2005, Harwood contracted with Solomon to sell the property for only $595,000. In
October 2005, Harwood allowed Solomon to take possession of the home prior to the
sale, and the parties executed a written agreement by which Solomon was to pay $1,800
per month in rent until the sale of the house could go through. The sale did not occur,
however, because Harwood could not convey title free and clear. Solomon alleges he
began to make improvements to the property shortly after moving in.
{¶ 3} In October 2006, Washington Mutual Bank, the holder of the first mortgage
on the property, began foreclosure proceedings. Solomon stopped paying rent in July
2007. In September 2007, Solomon and Harwood entered into a second contract,
whereby Solomon would buy the house for $575,000 through a “short sale” process that
would be approved by Washington Mutual. The bank approved a short sale that
contemplated a closing on or before November 3, 2007. Solomon, who at one time
had enough cash to pay for the house outright, was now in need of a mortgage to
finance the house. At this time, Harwood retained attorney David Horvath to represent
his interests.
{¶ 4} Solomon was unable to obtain the necessary financing, so he and Harwood
entered into another agreement, this time extending the contract 30 days, until
November 30, to obtain financing for a new purchase price of $525,000. On
December 6, Harwood offered to extend the financing time limit an additional 14 days
if Solomon met certain conditions. On December 13, Horvath faxed a letter to Solomon’s attorney, David Lynch, withdrawing the offer to sell.
{¶ 5} On December 14, 2007, Solomon filed a mechanic’s lien against the
property in the amount of $107,000. On December 17, he filed suit against the
appellees, asserting various claims. He then filed two amended complaints.
Solomon’s second amended complaint asserted the following claims against Harwood:
specific performance (Count I), breach of contract (Count II), declaratory relief (Count
III), promissory estoppel (Count IV), fraud and misrepresentation (Count V), and
intentional and/or reckless infliction of emotional distress (Count XII). The complaint
asserted the following claims against Harwood’s attorney, David Horvath: promissory
estoppel (Count IV), fraud and misrepresentation (Count V), intentional and/or reckless
infliction of emotional distress (Count XII), and legal malpractice (Count XIV).
{¶ 6} The complaint asserted the following claims against the parties who
eventually purchased the property, Mukhless and Remah Mustafa: declaratory relief
(Count VI), tortious interference (Count VII), intentional and/or reckless infliction of
emotional distress (Count XII). The complaint requested declaratory relief from the
Mustafas’s mortgage holder, RBS Citizens (Count VI), and asserted the following
claims against the title agency, Resource Title: breach of contract (Count IX),
negligence (Count X), and breach of fiduciary duty (Count XI).
{¶ 7} Solomon also set forth a claim titled “occupying claimant law” (Count
XIII) asking for the fair market value of all improvements, although Solomon did not
name a party to this count. Solomon further asked for a preliminary and permanent
injunction against all the defendants. {¶ 8} Each of the appellees answered the amended complaint. Resource Title,
the Mustafas, and Harwood filed counterclaims against Solomon. A long and arduous
discovery process began. The appellees individually moved for summary judgment,
which the court granted, without opinion. The trial court also discharged the
mechanic’s lien Solomon had filed against the property and ordered him evicted from
the property. The court subsequently granted the Mustafas’s counterclaim for eviction
and Harwood’s counterclaim for breach of contract (failure to pay rent).
{¶ 9} Harwood, the Mustafas, and Resource Title individually moved for
summary judgment on the issue of damages. The trial court subsequently awarded
Harwood compensatory damages of $97,829.88, punitive damages in the amount of
$75,000, and attorney fees in the amount of $56,188.98; awarded damages to the
Mustafas in the amount of $90,200.83; and awarded attorney fees and expenses to
Resource Title in the amount of $52,832.35.
Assignments of Error
{¶ 10} On appeal, Solomon raises eleven assignments of error for our review:
“I. The trial court erred in granting summary judgment to appellees where appellees Harwood, Resource Title, and Horvath have unclean hands.
“II. The trial court erred in granting summary judgment to Mustafa where Mustafa interfered with Solomon’s contract and took title to the property in violation of the doctrine of lis pendens with actual notice of Solomon’s interest in the property.
“III. The trial court erred in granting summary judgment to appellees where genuine issues of fact and credibility exist regarding whether Harwood had anticipatorily breached the purchase agreement, and whether Solomon had financing to purchase the property and could have closed such transaction had Harwood not breached the contract the day preceding the scheduled closing. “IV. The trial court erred in enforcing indemnification agreement language in Resource’s standard conditions of escrow where the evidence established unequivocally that Resource breached its fiduciary duty and contractual responsibilities to Solomon to assist Harwood in avoiding his contractual obligations to Solomon and/or was negligent in terminating the escrow prematurely.
“V. The trial court erred in granting summary judgment to Horvath where Solomon satisfied both the privity and malice prongs of Scholler, the question of whether malice existed was a jury issue, and Solomon provided expert testimony in support of his legal malpractice claim.
“VI. The trial court erred in granting summary judgment to [RBS] as the validity of [RBS’s] mortgage deeds depends upon the erroneous summary judgment in favor of Mustafa.
“VII. The trial court erred in disregarding the application of the occupying claimant law R.C. 5303.08, to the claims of Solomon.
“VIII. The trial court erred in denying Solomon the right to a jury trial on damages.
“IX. The trial court erred in discharging Solomon’s mechanic’s lien.
“X. The trial court erred in awarding damages to appellees Harwood, Resource, and Mustafa, and all such awards must be vacated. Further, there was no lawful basis to render punitive damages against Solomon.
“XI. The trial court erred in failing to issue findings of fact and conclusions of
law.”
{¶ 11} Each assignment of error addresses Solomon’s claims against a separate
appellee or group of appellees; we will discuss the evidence relevant to each party in
turn.
Standard of Review
{¶ 12} We review an order granting summary judgment de novo, applying the
same standard the trial court used. “Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the non-moving party, said party being
entitled to have the evidence construed most strongly in his favor.” Zivich v. Mentor
Soccer Club, Inc., 82 Ohio St.3d 367, 369, 1998-Ohio-389, 696 N.E.2d 201.
Harwood
{¶ 13} In the first and third assignments of error, Solomon argues that the trial
court erred in granting summary judgment to Harwood. Solomon claims that there
was ample evidence to show that he was ready and willing to purchase the Adelaide
property and, if not for Harwood’s misdeeds, he would have purchased the house.
{¶ 14} The crux of Solomon’s argument on appeal is that an issue of fact remains
regarding whether he was able to obtain the financing necessary to close the transaction
in a timely fashion. To support his argument that he would have been able to close the
transaction by the extension date, December 14, 2007, he attacks the credibility of his
lender, Richard Gill, whom, Solomon claims, changed his story when he decided to
“align” with the appellees.
{¶ 15} A review of the voluminous record in this case shows that there is no
genuine issue of material fact regarding whether Solomon was able to close the
transaction by the close of business on December 14, 2007. Simply put, Solomon was
not able to obtain the necessary financing to purchase the property within the time
allotted by the purchase agreement and subsequent extension.
{¶ 16} When Solomon applied for a mortgage to purchase the property in October 2007, his application was denied. Harwood then extended the deadline an additional
30 days to November 30, 2007. The parties executed an addendum, which stated
that “[i]f Solomon has not provided funds sufficient to satisfy his reimbursement
obligations under this Contract * * * the purchase agreement between Solomon and
Harwood will be null and void.”
{¶ 17} The purchase agreement expired on November 30, 2007. Solomon
admitted at deposition that his attorney, David Lynch, informed him on December 1 that
he did not yet have financing for the property. On December 6, Harwood offered by
letter to extend the contract an additional 14 days, if Solomon agreed to pay $2,000 and
return the offer letter after executing the “affirmation and acknowledgment” portion of
the letter, agreeing to the terms of the extension.
{¶ 18} It is undisputed that Solomon did not return Harwood’s offer letter.
Solomon claims he signed the letter, but admits neither he nor his attorney ever returned
the letter. Lynch avers that it was his understanding that the parties were dealing “in
good faith,” thus, it was unnecessary to execute the offer letter. But, by the plain terms
of the letter, it required a signature to take effect. On December 13, 2007, at 3:40
p.m., Horvath sent a fax to Lynch withdrawing the December 6 offer. Based on these
facts, the contract to purchase the property expired on November 30, 2007, and the
failure to complete the transaction on or before the closing date resulted in the
expiration of the contractual relationship. See Graines v. Wald & Fisher, Inc. (Mar.
31, 1988), Cuyahoga App. No. 53640.
{¶ 19} Notwithstanding the expiration of the contract, Solomon proposes that he still has a cause of action against Harwood because he would have been able to obtain
financing by December 14, 2007. But the record belies that contention. Richard Gill,
the “hard money” private lender Lynch contacted to finance the transaction, testified
that Solomon failed to comply with the necessary prerequisites to obtain the loan,
including submitting the loan application, disclosure forms, and sales contract, or
Solomon’s tax returns, employment verification, credit reports, bank statements, and
insurance information. Gill testified that he was “willing and able” to make the loan,
but Solomon and Lynch “had not provided me with all the necessary documentation for
me to make the loan commitment.” In fact, according to Gill, he and Solomon had not
even discussed the basic terms and conditions of the loan, including the interest rate or
length of the loan.
{¶ 20} Thus, the trial court correctly granted summary judgment to Harwood.
Moreover, there is no evidence that Harwood had “unclean hands” in dealing with
Solomon.
{¶ 21} Therefore, the first assignment of error is overruled as it relates to
Harwood, and the third assignment of error is overruled in toto.
Horvath
{¶ 22} In the first and fifth assignments of error, Solomon alleges that Harwood’s
attorney, David Horvath, had “unclean hands” and committed legal malpractice against
{¶ 23} First, there is no evidence that Horvath had “unclean hands” in his
relations with Solomon. There is nothing other than Solomon’s own unsupported allegations claiming that Horvath was somehow involved in nefarious activity in
relation to his handling of the Adelaide property. Absent anything more, Solomon’s
allegations cannot survive summary judgment. The first assignment of error is
overruled as it relates to Horvath.
{¶ 24} Next, Solomon argues that Horvath committed legal malpractice against
him. We find no merit to this argument.
{¶ 25} To establish a claim for legal malpractice, Solomon must show that 1)
Horvath owed him a duty; 2) Horvath failed to conform to the standard of care required
by law; and 3) there is a causal connection between the conduct complained of and the
resulting damage or loss. Vahila v. Hall, 77 Ohio St.3d 421, 1997-Ohio-259, 674
N.E.2d 1164. There is no evidence that Horvath ever represented Solomon; nor is
Solomon arguing that Horvath was his attorney. Horvath represented Harwood, who
was being sued by Solomon. Solomon was represented by his own counsel, David
Lynch.
{¶ 26} In Scholler v. Scholler (1984), 10 Ohio St.3d 98, 462 N.E.2d 158, the Ohio
Supreme Court held that attorneys have a qualified immunity from liability to third
parties for acts or omissions concerning the representation of a client. The Court
found that “[a]n attorney is immune from liability to third persons arising from his
performance as an attorney in good faith on behalf of, and with the knowledge of his
client, unless such third person is in privity with the client or the attorney acts
maliciously.” Id. at paragraph one of the syllabus. Solomon claims that his cause of
action against Horvath should survive summary judgment because there is a question of fact whether the attorney acted with “malice.” But Solomon has set forth no evidence,
other than unsupported allegations, that Horvath acted with any malice.
{¶ 27} Solomon has also failed to set forth evidence that he and Harwood are in
privity. To be in privity, Solomon would have to show that his and Harwood’s
interests were the same, “such that representing the client is equivalent to representing
the party alleging privity with the client.” Scholler at 103-104. Solomon and
Harwood clearly had opposing interests; therefore, they were not in privity to each
other.
{¶ 28} Thus, the fifth assignment of error is overruled.
Resource Title
{¶ 29} Resource Title Agency was the title agency that Harwood and Solomon
were using in their attempts to complete the sale of the property.
{¶ 30} In October 2007, during the time period in which Solomon was to gain
financing to purchase the house, Solomon and Harwood caused an escrow to be opened
at Resource Title and deposited the contract into escrow with the title agency.
Solomon and Harwood executed two forms: “Standard Conditions of Settlement Agent”
and “Acceptance of Escrow.” The Standard Conditions contained an indemnification
clause whereby both buyer and seller agreed to hold the agency harmless from any loss
or damage resulting from the termination or declinations and also indemnify the agency
for “any loss, cost or damages including, without limitations, attorneys fees and costs of
litigation.”
{¶ 31} After the escrow was opened, Solomon and Harwood executed an “Escrow Instructions Addendum to Contract.” Pursuant to the addendum, Solomon
deposited $200,000 of the purchase price into escrow. Resource Title then transferred
the funds to Washington Mutual, in conformance with the agency’s standard processes.
{¶ 32} Although the remainder of the funds were to be deposited with Resource
Title prior to the extended closing date of December 14, 2007, Harwood never
deposited those funds. Resource Title refunded the $200,000 deposit to Solomon. In
its counterclaim, the title agency claimed that it incurred damages of $52,385.35 in
attorney fees and litigation costs.
{¶ 33} On appeal, Solomon alleges that the trial court erred in granting summary
judgment in favor of Resource Title because the company had “unclean hands” (first
assignment of error), and breached its fiduciary duty and contractual responsibilities to
Solomon (fourth assignment of error). Solomon also claims that the trial court erred in
awarding damages to the agency (tenth assignment of error). But there is no evidence
that Resource Title acted improperly. When it became known to the title company that
the purchase was not going to go through, the company refunded Solomon’s $200,000
deposit. Moreover, Solomon executed the Standard Conditions form, which included
an indemnification clause. Based on these facts, the trial court did not err when it
granted summary judgment in Resource Title’s favor.
{¶ 34} The first assignment of error is overruled as it relates to Resource Title.
The fourth assignment of error is overruled in toto. As to the tenth assignment of
error, it is discussed separately, infra.
The Mustafas {¶ 35} Mukhless and Remah Mustafa were the eventual purchasers of the
Adelaide property. In the second assignment of error, Solomon argues that the trial
court erred in granting summary judgment to the Mustafas because they interfered with
his contract on the property and the doctrine of lis pendens should have applied to bar
their possession of the property.
{¶ 36} Although Solomon mentions in the heading to his second assignment of
error that the Mustafas interfered with his contract with Harwood, he neither makes that
argument nor supports it. App.R. 16(A)(7) provides that the appellant’s brief shall
include “[a]n argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the contentions,
with citations to the authorities, statutes, and parts of the record on which appellant
relies. * * *.” “It is not the duty of an appellate court to search the record for
evidence to support an appellant’s argument as to any alleged error.” Rodriguez v.
Rodriguez, Cuyahoga App. No. 91412, 2009-Ohio-3456, ¶7, citing State v. McGuire
(Apr. 15, 1996), Preble App. No. CA95–01–001. Thus, we could, in our discretion,
choose not to address Solomon’s contention that the Mustafas interfered with his
contract. But in briefly addressing his arguments, there is no evidence that the
Mustafas interfered with the contract Harwood had with Solomon.
{¶ 37} In order to recover for a claim of intentional interference with a contract,
one must prove (1) the existence of a contract, (2) the wrongdoer’s knowledge of the
contract, (3) the wrongdoer’s intentional procurement of the contract’s breach, (4) the
lack of justification, and (5) resulting damages. Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 1995-Ohio-61, 650 N.E.2d 863, paragraph two of the syllabus.
{¶ 38} Solomon has presented no evidence that the Mustafas knew of his contract
with Harwood and that if they did know, they induced Harwood to breach the contract.
The evidence presented shows that Harwood granted Solomon one extension and then
offered to grant him a second extension to come up with financing for the house.
Harwood contracted with the Mustafas on December 7, 2007, but that agreement was
“subject to release from tenant.” Although the purchase agreement the Mustafas and
Harwood executed occurred before December 14, the contract between Harwood and
Solomon ended November 30, 2007. Thus, there was no contract between Harwood
and Solomon for the Mustafas to interfere in. Solomon’s argument on this claim fails.
{¶ 39} Finally, the doctrine of lis pendens does not apply to the case at bar. R.C.
2703.26 provides that “[w]hen a complaint is filed, the action is pending so as to charge
a third person with notice of its pendency. While pending, no interest can be acquired
by third persons in the subject of the action, as against the plaintiff’s title.” Solomon
has alleged that the Mustafas acquired their interest in the Adelaide property prior to his
lawsuit being filed. Therefore, R.C. 2703.26 does not apply. But even if a court
were to find that the Mustafas acquired the interest after Solomon filed his complaint,
lis pendens is not a substantive right. “It does not create a lien, but charges the
purchaser with notice of the pending action. If applicable, it does not prevent persons
from transacting an interest in the property subject to litigation”; rather, any conveyed
interest becomes subject to the outcome of the pending litigation. (Internal citations
omitted.) Cincinnati ex rel. Ritter v. Cincinnati Reds, L.L.C., 150 Ohio App.3d 728, 2002-Ohio-7078, 782 N.E.2d 1225, appeal not allowed by 98 Ohio St.3d 1539,
2003-Ohio-1946, 786 N.E.2d 901. Therefore, even if the doctrine did apply, it would
not create a cause of action against the Mustafas.
{¶ 40} Based on these facts, the trial court correctly granted summary judgment
to the Mustafas, and the second assignment of error is overruled.
RBS Citizens, N.A.
{¶ 41} RBS Citizens, N.A., was the Mustafas’s lender. RBS recorded two
mortgages on the Adelaide property in February 2008. Solomon argues in his sixth
assignment of error that “the same arguments that pertain to Mustafa pertain to [RBS].”
Again, Solomon claims that the doctrine of lis pendens invalidates the deed from
Harwood to the Mustafas because the transfer occurred during the pendency of the court
case. Since the Mustafas’s purchase of the property is null and void, Solomon argues,
RBS’s mortgages are also void. RBS contends that the doctrine of lis pendens does
not apply so the mortgages granted in favor of RBS were valid.
{¶ 42} Because we have already found that the trial court correctly granted
summary judgment in favor of the Mustafas, it follows that the trial court was correct in
granting summary judgment to RBS. There is no evidence that the mortgages RBS
granted to the Mustafas were void.
{¶ 43} The sixth assignment of error is overruled.
Occupying Claimant Law
{¶ 44} In the seventh assignment of error, Solomon argues that the trial court
erred by failing to apply Ohio’s “occupying claimant law” to this case. R.C. 5303.08 provides as follows:
“A person who, without fraud or collusion on his part, obtained title to and is in the quiet possession of lands or tenements, claiming to own them, shall not be evicted or turned out of possession by any person who sets up and proves an adverse and better title, until the occupying claimant, or his heirs, is paid the value of lasting improvements made by the occupying claimant on the land, or by the person under whom he holds, before the commencement of suit on the adverse claim by which such eviction may be effected, unless the occupying claimant refuses to pay to the party establishing a better title the value of the lands without such improvements, on demand by him or his heirs, when such occupying claimant holds:
“(A) Under a plain and connected title, in law or equity, derived from the records of a public office;
(B) By deed, devise, descent, contract, bond, or agreement, from and under a person claiming a plain and connected title, in law or equity, derived from the records of a public office, or by deed authenticated and recorded;
“(C) Under sale on execution against a person claiming a plain and connected title, in law or equity, derived from the records of a public office, or by deed authenticated and recorded;
“(D) Under a sale for taxes authorized by the laws of this state;
“(E) Under a sale and conveyance made by executors, administrators, or
guardians, or by any other person, in pursuance of an order or decree of court,
where lands are directed to be sold.”
{¶ 45} According to Solomon, R.C. 5303.08 applies to this case because he was
an equitable owner of the property based on the first purchase agreement he signed with
Harwood. He argues he had “color of title” under the deed the parties deposited into
escrow with Resource Title.
{¶ 46} It is unclear whether Solomon is arguing that he was entitled to payment
for the improvements he alleges he made to the property or that he should not have been evicted from the property. Nevertheless, R.C. 5303.08 does not apply to Solomon
because he never gained title to the property. Although he and Harwood deposited the
deed into escrow, Solomon never obtained the deed or title to the property. A
purchaser, after delaying for many years to pay the purchase price, is not entitled to
value of improvements. Mann v. Dun (1853), 2 Ohio St. 187. In addition, payment
for lasting improvements, pursuant to R.C. 5303.08, can be awarded only if the
occupying claimant acquired title to the disputed premises in a manner designated by
the statute. Ohio Dept. of Adm. Serv. v. Morrow (1990), 67 Ohio App.3d 225, 586
N.E.2d 259.
{¶ 47} According to the original purchase agreement executed by the parties,
Solomon was a lessee, who was charged with paying rent and utilities and maintaining
the property. Thus, the trial court did not err in failing to apply R.C. 5303.08 to the
case at bar.
{¶ 48} The seventh assignment of error is overruled.
Attorney’s Fees
{¶ 49} In the eighth assignment of error, Solomon claims the trial court erred in
denying him the right to a jury trial on damages.
{¶ 50} In this assignment of error, Solomon does not challenge that court’s
decision to award attorney’s fees, instead, he merely claims that he had a right to a jury
trial on the issue. But a litigant does not have a right to trial by jury to determine the
amount of attorney’s fees. Digital & Analog Design Corp. v. N. Supply Co. (1992), 63
Ohio St.3d 657, 590 N.E.2d 737, overruled on other grounds by Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 1994-Ohio-461, 644 N.E.2d 397. We also decline to
review the amount of attorney’s fees awarded in this case, as Solomon does not dispute
the amount of the award.
{¶ 51} Therefore, the eighth assignment of error is overruled.
Mechanic’s Lien
{¶ 52} In the ninth assignment of error, Solomon argues that the trial court erred
in discharging his mechanic’s lien. Within this assignment of error, Solomon contends
that he was the equitable owner of the property; therefore, he was authorized to perform
work on the property or to hire someone else to do the work.
{¶ 53} “The purpose of the mechanics’ lien law is to provide a contractor or
material man with a means of obtaining a lien on real estate to secure a claim for labor
performed or material supplied.” Thrush v. Thrush (Apr. 26, 1988), Union App. No.
14-86-17. “A mechanics’ lien (1) gives a materialman an interest in the property to
secure payment for materials and (2) fixes the order of priority for that payment.”
Portco, Inc. v. Eye Specialists, Inc., 177 Ohio App.3d 139, 2008-Ohio-3154, 894
N.E.2d 84, at ¶9. R.C. 1311.02 provides for the filing of a mechanics’ lien where labor
has been performed on personal property, as follows:
“Every person who performs work or labor upon or furnishes material in furtherance of any improvement undertaken by virtue of a contract, express or implied, with the owner, part owner, or lessee of any interest in real estate, or the owner’s, part owner’s, or lessee’s authorized agent, and every person who as a subcontractor, laborer, or material supplier, performs any labor or work or furnishes any material to an original contractor or any subcontractor, in carrying forward, performing, or completing any improvement, has a lien to secure the payment therefor upon the improvement and all interests that the owner, part owner, or lessee may have or subsequently acquire in the land or leasehold to which the improvement was made or removed.”
{¶ 54} Mechanics’ liens can only properly attach where a contract exists. JC&F
Invests., L.L.C. v. Housholder, Shelby App. No. 17-08-11, 2008-Ohio-5313. “[T]he
statute requires by its terms, as a condition to the existence of a lien, that the labor be
performed or material furnished by virtue of a contract, expressed or implied, with the
owner * * *.” Id., citing Benes v. United States (C.A. 6, 1960), 276 F.2d 99.
{¶ 55} The mechanic’s lien Solomon filed claimed a lien in the amount of
$107,000. To support this amount, Solomon provided, during discovery, undated
invoices that showed maintenance and repairs made to the property from October 2005
to December 2007. He also submitted various receipts from The Home Depot and for
landscaping supplies.
{¶ 56} As discussed in the seventh assignment of error, although Solomon was
the intended purchaser of the property, his status was that of a lessee. The lease the
parties signed provided, in part, as follows:
“***
“3. Lease amount with be Eighteen Hundred dollars per month, plus the cost of all necessary maintenance and repairs. Buyer will pay for all utilities including water and sewer while occupying this property during the lease.
“6. Buyer agrees to lease and maintain this property until the sale is completed. * * *.” (Emphasis added).
{¶ 57} In order for the mechanic’s lien to properly attach to the property, there
had to be a contract for the renovations. But there was no contract between the parties, either express or implied, that provided Solomon would be compensated for
improvements he made to the property. The only contract present in this case was the
lease, which did not concern any renovations that Solomon would need to make, and, in
fact, clearly states that Solomon is responsible for the cost of “all necessary
maintenance and repairs.” See JC&F Invests. at ¶43. Therefore, the trial court did
not err in discharging the mechanic’s lien.
{¶ 58} Accordingly, the ninth assignment of error is overruled.
Damages
{¶ 59} In the tenth assignment of error, Solomon claims that the trial court erred
in awarding damages and in assessing punitive damages against him. However, once
again, Solomon has failed to support his claims with citations to the record, case law, or
statutes. See App.R. 12(A)(2) and 16(A)(7). Instead, he merely states in arguing this
assignment of error, “all of the damage awards on this case are predicated upon
determinations of liability which are erroneous. Therefore, all damage awards in this
case must be vacated. Further, there were no valid grounds to impose punitive
damages against Solomon for filing a lien.” That is his entire argument.
{¶ 60} “An appellate court is not a performing bear, required to dance to each and
every tune played on an appeal.” Rodriguez, supra, citing State v. Watson (1998), 126
Ohio App.3d 316, 710 N.E.2d 340. Since it is not this court’s job to make Solomon’s
arguments for him, we will not further address this assignment of error. The tenth
assignment of error is overruled.
Findings of Fact and Conclusions of Law {¶ 61} Finally, Solomon claims in his eleventh assignment of error that the trial
court erred in denying his motion for findings of fact and conclusions of law. But it is
well settled in Ohio that a trial court is not required to issue a written opinion containing
findings of fact and conclusions of law when ruling on a motion for summary judgment.
Tiefel v. Gilligan (1974), 40 Ohio App.2d 491, 495, 321 N.E.2d 247; Civ.R. 52.
{¶ 62} The eleventh assignment of error is overruled.
Cross-appeal
{¶ 63} Resource Title filed a notice of cross-appeal, assigning one error for our
review. In its sole assignment of error, Resource Title claims the trial court committed
reversible error in denying its motion for sanctions.
{¶ 64} Our review of a trial court’s decision on a motion for sanctions is
reviewed for an abuse of discretion. Mitchell v. W. Res. Area Agency on Aging,
Cuyahoga App. Nos. 83837 and 83877, 2004-Ohio-4353, citing Cook Paving & Constr.
Co. Inc. v. Treeline Inc., Cuyahoga App. No. 77408, 2001-Ohio-4235; Pisani v. Pisani
(1995), 101 Ohio App.3d 83, 654 N.E.2d 1355.
{¶ 65} Resource Title’s argument is puzzling. Resource Title moved for
sanctions against Solomon and his attorney pursuant to R.C. 2323.51, which provides
for award of attorney’s fees as sanction for frivolous conduct. Resource Title then
moved for summary judgment on the issue of damages. The trial court granted the
motion for summary judgment on the issue of damages and awarded Resource Title
attorney’s fees and expenses in the amount of $52,832.35, which is the amount
Resource Title requested. Pursuant to statute, Resource Title cannot recover more than reasonable attorney’s fees and expenses. Thus, there is nothing more the trial court
could have awarded them, nor is Resource Title disputing the amount awarded to them
pursuant to their summary judgment motion.
{¶ 66} The trial court did not err in denying Resource Title’s motion for
sanctions. Therefore, the cross-assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover of appellant their 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.
LARRY A. JONES, JUDGE
PATRICIA A. BLACKMON, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR