Yorkland Ltd. v. Kildow

2025 Ohio 152

• Court: Ohio Court of Appeals
• Decided: January 17, 2025
• Docket: 24 CAE 04 0028
• Status: Published

Opinion

[Cite as Yorkland Ltd. v. Kildow, 2025-Ohio-152.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

YORKLAND, LTD., : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : TIM KILDOW, et al., : Case No. 24 CAE 04 0028 : Defendants - Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 24 CV H 03 0297

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 17, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

NICHOLAS S. BOBB J.C. RATLIFF DANIELLE M. CRANE ROCKY RATLIFF Kegler, Brown, Hill & Ritter KYLE PHILLIPS 65 E. State Street, Suite 1800 Ratliff Law Office Columbus, Ohio 43215 200 West Center Street Marion, Ohio 43302 Delaware County, Case No. 24 CAE 04 0028 2

Baldwin, J.

{¶1} The appellants Tim Kildow and Warehouse Italian Dinners, LLC,

(“Warehouse”) appeal the April 29, 2024, judgment entry granting judgment to the

appellees on its Forcible-Entry-and-Detainer Claim. The appellee is Yorkland, Ltd.

STATEMENT OF THE FACTS AND THE CASE

{¶2} On June 30, 2017, the appellee acquired property at 1003 U.S. Highway 23

North, Delaware, Ohio 43015 (the “Property”). At the time of the appellee’s acquisition,

Tim Kildow, on behalf of Warehouse, was leasing the property at a rate of $3,250 per

month under an oral lease. Payments of $3,250 continued. On September 15, 2023, the

appellee informed the appellants that he was increasing the monthly rent to $4,000 per

month, effective November 1, 2023.

{¶3} In April of 2023, the appellee approached Appellant Kildow about

purchasing the Property. No purchase price was agreed to, and no option to purchase

was ever reduced to writing.

{¶4} On June 19, 2023, the appellee offered to sell the Property to Appellant

Kildow for $136,323, plus unspecified transfer costs. Appellant Kildow did not respond.

{¶5} On September 15, 2023, the appellee offered to sell the Property to

Appellant Kildow for $150,000. He said the offer would remain open until December 31,

2023. No agreement was reached by the deadline.

{¶6} On November 30, 2023, the appellants made a $3,250 payment, thirty days

late. The appellants did not pay the increased rent of $4,000. The appellants made no

payments in December, January, or February. Delaware County, Case No. 24 CAE 04 0028 3

{¶7} On February 28, 2024, the appellant posted a Notice to Leave Premises on

the Property’s front door. The Notice required the appellant’s compliance within three

days.

{¶8} On March 22, 2024, the appellee filed its Complaint in Forcible Entry and

Detainer (“FED”), breach of contract, and declaratory judgment against the appellants.

{¶9} On April 11, 2024, the appellants filed a demand for a trial by jury in the

FED claim and a motion for continuance of the trial date. The appellee opposed the

demand for a jury trial. The trial court granted both the motion for continuance and held

the FED claims would proceed before a jury.

{¶10} On April 17, 2024, the appellants filed a Notice of Waiver of Trial for the

FED claims.

{¶11} On April 23, 2024, the trial court held a bench trial on the FED claims.

{¶12} At trial, the appellee argued that the appellants and the appellee had an oral

month-to-month lease that the appellants breached by not paying rent and property taxes.

The appellants argued that they had an agreement with the appellee for a land installment

contract to purchase the Property, which they fulfilled.

{¶13} The trial court found that Warehouse and the appellee entered into an oral

month-to-month lease. The trial court also found that the parties did not enter an oral

agreement to purchase the Property.

{¶14} The appellants filed a timely notice of appeal and raised the following three

assignments of error:

{¶15} “I. THE TRIAL COURT ERRED WHEN IT DETERMINED THE ORAL

AGREEMENT BETWEEN THE PARTIES WAS AN ORAL LEASE AGREEMENT.” Delaware County, Case No. 24 CAE 04 0028 4

{¶16} “II. THE TRIAL COURT ERRED WHEN IT DECIDED THE COMPLAINT IN

FORCIBLE ENTRY AND DETAINER RATHER THAN IT BEING TRIED TO A JURY

WITH ALL REMAINING ISSUES.”

{¶17} “III. IF THE TRIAL COURT DID NOT ERROR WHEN IT DETERMINED

THE ORAL AGREEMENT BETWEEN THE TWO PARTIES WAS AN ORAL LEASE

AGREEMENT, THEN THE TRIAL COURT ERRED WHEN IT FOUND TERMS OF A

TRIPLE-NET LEASE WITHOUT A WRITTEN LEASE AGREEMENT.”

I.

{¶18} In the appellants’ first assignment of error, the appellants argue the trial

court erred by determining the agreement between the parties was an oral lease

agreement. We disagree.

STANDARD OF REVIEW

{¶19} In the case sub judice, the trial court conducted a bench trial. We are not

finders of fact. “[W]e neither weigh the evidence nor judge the credibility of witnesses.”

Estate of DeChellis v. DeChellis, 2019-Ohio-3078 (5th Dist.). Our role is to determine

whether there is relevant, competent, and credible evidence upon which the factfinder

could base its judgment. Cross Truck v. Jeffries, 1982 WL 2911 (5th Dist. Feb. 10, 1982).

We review questions of law de novo. In re Estate of Quick, 2004-Ohio-4434 (5th Dist.),

¶25.

{¶20} The Ohio Supreme Court held the standard of review for the manifest weight

of the evidence in criminal cases is also applicable to civil cases. Eastley v. Volkman,

2012-Ohio-2179. A reviewing court is to examine the entire record, weigh the evidence

and all reasonable inferences, consider the credibility of witnesses, and determine Delaware County, Case No. 24 CAE 04 0028 5

“whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and

created such a manifest miscarriage of justice that the judgment must be reversed and a

new trial ordered.” Id. at ¶20; quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th

Dist.2001).

ANALYSIS

{¶21} Forcible entry and detainer is solely a “possessory action” brought to

enforce a party’s right to present possession; that is the sole and ultimate issue in a

proceeding. Fenner v. Parkinson, 69 Ohio App.3d 210, 213 (10th Dist.1990); citing Carroll

v. O’Connor, 25 Ohio St. 617 (1874); Kuhn v. Griffin, 3 Ohio App.2d 195 (6th Dist.1964).

{¶22} The appellants argue that they had a land-installment agreement to

purchase the Property from the appellee. Ohio’s statute of frauds requires that certain

agreements must be in writing. R.C. §1335.05, states:

No action shall be brought whereby to charge the defendant * * *

upon a contract or sale of lands, tenements, or hereditaments or interest in

or concerning them, or upon an agreement that is not to be performed within

one year from the making thereof; unless the agreement upon which such

action is brought, or some memorandum or note thereof, is in writing and

signed by the party to be charged therewith or some other person thereunto

by him or her lawfully authorized.

{¶23} The alleged land-installment sale pertains to both an interest in land and

was not to be performed within one year.

{¶24} The appellants argue that their payments are part of a land-installment

contract, not rent payments. R.C. §5313.02 sets forth the minimum requirements of a Delaware County, Case No. 24 CAE 04 0028 6

land-installment contract and requires those contracts to be written. As the appellants

admit that the agreement was never memorialized in writing, no valid land-installment

contract was ever formed.

{¶25} During the trial, Kevin Hensel, the sole member of the appellee, testified

that he purchased the Property to allow Appellant Kildow to remain in business. He

testified that he made no promises as to the future of the Property, including selling it to

the appellants. The appellee did not wish to remain a landlord and had hoped to reach an

agreement with the appellants to sell the Property. Over the course of the seven years

since he purchased the Property, Hensel made several offers to the appellants. All such

offers were either rejected or ignored. After one such offer in 2022, the appellants did not

accept an offer to purchase the Property. They never mentioned that they believed a

contract to purchase the Property was already in place. Hensel stated that he treated the

payments received from the appellants as rental income on his tax returns and business

records. As the trial court’s determination is supported by relevant, competent, and

credible evidence, it did not lose its way and create a manifest miscarriage of justice by

determining that no land-installment contract existed, but the parties formed a month-to-

month lease.

{¶26} The appellants also argue that the land-installment contract should be found

valid due to the doctrine of part performance. “In order to establish part performance, a

party must show: 1) evidence of a change in who possesses the land; 2) payment of all

or part of the consideration for the land; and 3) improvements, alterations, or repairs on

the land.” Bear v. Troyer, 2016-Ohio-3363 (5th Dist.), ¶33. The appellants must have

undertaken acts that “changed [their] position to [their] detriment and make it impossible Delaware County, Case No. 24 CAE 04 0028 7

or impractical to place the parties in status quo.” Delfino v. Paul Davies Chevrolet, Inc., 2

Ohio St.2d 282 (1965).

{¶27} The trial court found the doctrine of part performance does not apply.

Indeed, the appellants presented no evidence that they improved the property.

Furthermore, no change in possession of the property occurred. The appellants had

possession of the property when the appellee purchased it, and they continued to operate

their business on the property after the purchase. As the trial court’s determination is

supported by relevant, competent, and credible evidence, it did not lose its way and create

a manifest miscarriage of justice by determining that the doctrine of partial performance

does not apply.

{¶28} Finally, the appellants argue that the land-installment contract should be

enforced through promissory estoppel. Promissory estoppel is an equitable doctrine for

preventing harm resulting from reasonable reliance upon false representations. GGJ, Inc.

v. Tuscarawas Cty. Bd. of Commrs., 2006-Ohio-2527 (5th Dist.), citing Karnes v. Doctors

Hosp., 51 Ohio St.3d 139, 142 (1990). The party asserting promissory estoppel bears the

burden of proving, by clear and convincing evidence, all the elements of the claim. In re

Estate of Popov, 2003-Ohio-4556 (4th Dist.). The elements necessary to establish a claim

for estoppel are: (1) a promise clear and unambiguous in its terms; (2) reliance by the

party to whom the promise is made; (3) the reliance must be reasonable and foreseeable;

and (4) the party claiming estoppel must be injured by the reliance. Schepflin v. Sprint-

United Telephone of Ohio, 1997 WL 1102026 (5th Dist. Apr. 29, 1997), citing Stull v.

Combustion Eng., Inc., 72 Ohio App.3d 553, 557 (3d Dist. 1991). Promissory estoppel

does not take this matter outside the statute of frauds. “Courts generally apply the Delaware County, Case No. 24 CAE 04 0028 8

promissory-estoppel exception to the statute of frauds defense ‘only in narrow

circumstances.’ ” HAD Ents. v. Galloway, 2011-Ohio-57 (4th Dist.), ¶26, citing Beaverpark

Assoc. v. Larry Stein Realty Co., 1995 WL 516469 (2d Dist. Aug. 30, 1995). For

promissory estoppel to apply, there must be “either a misrepresentation that the statute

of fraud’s requirements have been complied with or a promise to make a memorandum

of the agreement.” Id. Neither applies here. There was no alleged misrepresentation that

the statute of frauds’ requirements had been satisfied. Accordingly, the alleged land-

installment contract may not be enforced through promissory estoppel.

{¶29} As the alleged land-installment contract was not reduced to writing, and

neither the part performance doctrine nor promissory estoppel applies in this situation,

the appellants’ first assignment of error is overruled.

II.

{¶30} In the appellants’ second assignment of error, the appellants argue the trial

court committed reversible error by trying the forcible entry and detainer action separate

from the counterclaims. We disagree.

{¶31} The appellants do not point to the record where they brought this error to

the attention of the trial court. “An appellate court will not consider any error which could

have been brought to the trial court’s attention and hence avoided or otherwise corrected.”

Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210 (1982). Accordingly, a party forfeits

and may not raise on appeal any error that arises during trial court proceedings if that

party fails to bring the error to the court’s attention at a time when the trial court could

avoid or correct the error. Goldfuss v. Davidson, 1997-Ohio-401. Delaware County, Case No. 24 CAE 04 0028 9

{¶32} However, this Court has the discretion to consider forfeited errors under the

plain error doctrine. Hill v. Urbana, 1997-Ohio-400. For the plain error doctrine to apply,

the party claiming error must establish (1) that “ ‘an error, i.e., a deviation from a legal

rule’ ” occurred, (2) that the error was “ ‘an “obvious” defect in the trial proceedings,’ ” and

(3) that this obvious error affected substantial rights, i.e., the error “ ‘must have affected

the outcome of the trial.’ ” Lewis v. Gravely, 2016-Ohio-1502 (4th Dist.), ¶16; quoting State

v. Rogers, 2015-Ohio-2459, ¶22.

{¶33} “The plain error doctrine is not, however, readily invoked in civil cases.” Id.

An appellate court “must proceed with the utmost caution” when applying in civil cases.

Goldfuss v. Davidson, 1997-Ohio-401. In Goldfuss, the Ohio Supreme Court limited the

doctrine to “extremely rare case[s] involving exceptional circumstances where error, to

which no objection was made at the trial court, seriously affects the basic fairness,

integrity, or public reputation of the judicial process, thereby challenging the legitimacy of

the underlying judicial process itself.” Id. “The plain error doctrine should never be applied

to reverse a civil judgment simply * * * to allow litigation of issues which could easily have

been raised and determined [during the trial court proceedings].” Id. Appellate courts

“should be hesitant to decide [forfeited errors] for the reason that justice is far better

served when it has the benefit of briefing, arguing, and lower court consideration before

making a final determination.” Sizemore v. Smith, 6 Ohio St.3d 330, 332 (1983).

{¶34} In the case sub judice, the appellants did not show that the alleged error

was brought to the attention of the lower court or that it warrants the application of the

plain error doctrine. The appellants did not show that this error seriously affected the basic

fairness, integrity, or public reputation of the judicial process. The appellants did not allege Delaware County, Case No. 24 CAE 04 0028 10

that the outcome of the trial would have affected the outcome of the trial. The appellant

merely stated that if they are successful with their counterclaim, then they will be entitled

to specific performance. Therefore, we find the appellants’ alleged error is not one of

those extremely rare cases involving exceptional circumstances to which the plain error

doctrine should be analyzed.

{¶35} Accordingly, the appellants’ second assignment of error is overruled.

III.

{¶36} In the appellants’ third assignment of error, the appellant argues that the

trial court erred in determining the terms of the oral month-to-month lease is a triple-net

lease. We disagree.

{¶37} Again, forcible entry and detainer is solely a “possessory action” brought to

enforce a party’s right to present possession; that is the sole and ultimate issue in a

proceeding. Fenner v. Parkinson, 69 Ohio App.3d 210, 213 (10th Dist.1990); citing Carroll

v. O’Connor, 25 Ohio St. 617 (1874); Kuhn v. Griffin, 3 Ohio App.2d 195 (6th Dist.1964).

As a forcible entry and detainer proceeding, the trial court merely found a month-to-month

lease existed, the lease was breached by nonpayment of rent, and the appellee was

entitled to possession. The full terms of the lease have yet to be litigated. Accordingly,

this assignment of error is not ripe for review.

{¶38} The appellants’ third assignment of error is overruled. Delaware County, Case No. 24 CAE 04 0028 11

CONCLUSION

{¶39} Based upon the foregoing, the decision of the Delaware County Court of

Common Pleas is, hereby, affirmed.

By: Baldwin, J.

Hoffman, P.J. and

King, J. concur.