[Cite as Bertovich v. St. John, 2012-Ohio-475.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96619




                             MICHAEL BERTOVICH
                                                        PLAINTIFF-APPELLANT

                                                  vs.

                                 WILLIAM ST. JOHN
                                                        DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                               Garfield Heights Municipal Court
                                    Case No. CVI 1003126

        BEFORE:            Keough, J., Cooney, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: February 9, 2012
ATTORNEYS FOR APPELLANT

Brent L. English
Law Offices of Brent L. English
M.K. Ferguson Plaza, Suite 470
1500 West Third Street
Cleveland, OH 44113-1422

Nicholas A. Reif
1220 West 6th Street
Suite 502
Cleveland, OH 44113

FOR APPELLEE

William St. John, pro se
19413 Rashell Drive
Walton Hills, OH 44146


KATHLEEN ANN KEOUGH, J.:

      {¶ 1} Plaintiff-appellant, Michael C. Bertovich (“Bertovich”), appeals

from the trial court’s judgment finding in favor of defendant-appellee,

William St. John (“St. John”), and dismissing his small claims action for

breach of contract. For the reasons that follow, we affirm.

                       I. Facts and Procedural History

      {¶ 2} On October 21, 2010, Bertovich filed suit in Garfield Heights

Municipal Court for St. John’s alleged breach of contract in connection with

the sale of residential property owned by St. John.           Bertovich claimed
damages of $2,670.98.1 St. John filed a counterclaim (which he voluntarily

dismissed at the close of trial), and the case proceeded to a bench trial on

February 17, 2011.

       {¶ 3} The evidence at trial demonstrated the following.                  On September

17, 2009, the parties entered into an agreement for the sale to Bertovich of St.

John’s residential property located in Maple Heights, Ohio. The purchase

price for the property was $120,000, and the property was to be sold in “as is”

condition. The purchase agreement was silent regarding a closing date for

the transaction. The agreement contained the following provision regarding

compliance with point-of-sale inspections required by the city of Maple

Heights:

       SELLER agrees to comply with any and all local governmental
       point-of-sale laws and/or ordinances. SELLER will promptly
       provide BUYER with copies of any notices received from
       governmental agencies to inspect or correct any current building
       code or health violations. If applicable, BUYER and SELLER
       shall have ____ (   ) days after receipt by BUYER of all notices
       to agree in writing which party will be responsible for the
       correction of any building code or health violation(s). In the
       event BUYER and SELLER cannot agree in writing, this
       AGREEMENT can be declared null and void by either party.

The parties did not fill in the blanks in this provision regarding how many

days the parties would have to agree upon who would pay for necessary


         Prior to trial, Bertovich filed a motion to amend his claim for damages to $3,648.98. The
       1


trial court denied the motion because the municipal court has no jurisdiction to award damages over
$3,000 when the case is filed in the small claims division.
repairs after receiving notice from the city.     However, in a handwritten

addendum to the purchase agreement, the parties agreed that Bertovich

would “assume all costs associated with and related to the sale of the property

and transfer of title.”

      {¶ 4} Bertovich testified at trial that he agreed to pay $13,000 to

replace the gravel driveway at the property, which the parties knew was not

code-compliant, but never agreed to pay for the costs of repairing other code

violations that the city’s required point-of-sale inspection might reveal. St.

John, on the other hand, testified that Bertovich repeatedly assured him that

he would pay for all required repairs the inspection might reveal and that the

understanding of all parties to the addendum was that Bertovich was

assuming responsibility for such costs.

      {¶ 5} On November 5, 2009, St. John arranged for the city to conduct

the required inspection on the following day.         That evening, however,

Bertovich advised St. John that he would not pay for any repairs necessitated

by the inspection, other than to replace the driveway.          St. John then

cancelled the inspection, at which point Bertovich repudiated the agreement.

Bertovich subsequently purchased a home located in Walton Hills, Ohio for

$125,000.

      {¶ 6} In its findings of fact and conclusions of law rendered after trial,

the trial court found that there was no meeting of the minds between the
parties as to who would pay for repairs necessitated by the city’s inspection

and, accordingly, there was no contract.      The court further found that

because the purchase agreement, including the addendum, was vague and

ambiguous regarding performance (who was to pay for the repairs) and

performance (when the transaction was to close), it was unenforceable.

Finally, the court held that even assuming there was a valid contract and a

breach, Bertovich had not suffered any damages. Accordingly, the trial court

found in favor of St. John and dismissed the complaint.

                            II. Meeting of the Minds

      {¶ 7} In his first assignment of error, Bertovich contends that the trial

court erred in finding that the contract was unenforceable because there was

no meeting of minds regarding who was to pay for repairs required by the

point-of-sale inspection.

      {¶ 8} To prove the existence of a contract, a party must show that both

parties consented to the terms of the contract, there was a “meeting of the

minds,” and the essential terms of the contract are definite and certain.

Morganstern, MacAdams & Devito Co., L.P.A. v. Hilliard Bldg. Partnership,

8th Dist. No. 79407, 2001-Ohio-4258, 2001 WL 1612080, citing Nilavar v.

Osborn, 137 Ohio App.3d 469, 738 N.E.2d 1271 (2d Dist.2000); see also

Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio

St.3d 366, 369, 575 N.E.2d 143 (1991).
       {¶ 9} The terms of a contract are sufficiently certain if they “provide a

basis for determining the existence of a breach and for giving an appropriate

remedy.” Mr. Mark Corp. v. Rush, Inc., 11 Ohio App.3d 167, 169, 464 N.E.2d

586 (8th Dist.1983). Where the parties have agreed about issues critical to

the transaction, the court may determine the meaning of ambiguous or

uncertain terms according to the parties’ mutual understanding, the custom

and practice in the trade, or other established legal principles. Id.

       {¶ 10} Nevertheless, as the Supreme Court of Ohio observed in Litsinger

Sign Co., Inc. v. Am. Sign Co., 11 Ohio St.2d 1, 14, 227 N.E.2d 609 (1967),

       it is settled law that if the parties’ manifestations taken together
       as making up the contract, when reasonably interpreted in the
       light of all the circumstances, do not enable the court to
       determine what the agreement is and to enforce it without, in
       effect, ‘making a contract for the parties,’ no enforceable
       obligation results.” Id., citing 1 Corbin on Contracts, 394 and
       398, Section 95.

       {¶ 11} That is the situation presented here.                   The evidence at trial

demonstrated that there was no “meeting of the minds” regarding

performance of the contract. St. John testified that Bertovich had agreed to

pay for the repairs necessitated by the city’s required point-of-sale

inspection,2 while Bertovich insisted that he had agreed to pay only the cost



        Bertovich argues that St. John’s testimony to this effect was excluded. But Bertovich called
       2


St. John on cross-examination in his case-in-chief and asked him whether it was his understanding
upon signing the addendum that Bertovich was to pay the repair costs: “[Y]our understanding when
you signed that it was all costs, it wasn’t just closing – it wasn’t the closing costs?” St. John
of replacing the driveway.           But Bertovich’s alleged agreement to pay to

replace the driveway was not included in the purchase agreement, nor did

either the purchase agreement or the addendum provide who was to pay for

the repairs.      St. John testified that the parties’ intent in signing the

addendum to the purchase agreement, which provided that Bertovich was to

assume “all” costs “related to the sale,” was that Bertovich was to pay the

repair costs. But the addendum can also be reasonably interpreted to mean

that Bertovich assumed only such costs related to the sale as title and closing

costs.

         {¶ 12} Bertovich’s argument that the parties agreed in the purchase

agreement on a procedure for handling repairs resulting from the

point-of-sale inspection is without merit because the parties did not complete

that part of the agreement. Thus, not only was there no agreement as to

who would pay for the repairs, there was also no agreement as to how many

days the parties would have after receiving notice of necessary repairs to

agree on who was to pay for them before the agreement could be declared

void. Hence, there was no agreement as to procedure or performance.

         {¶ 13} In light of the evidence at trial and the ambiguity in the


responded, “It was everybody in the room’s understanding because we talked about it.” No one
raised any objection to this testimony. Later, when St. John’s counsel asked St. John about his
understanding of the addendum, the trial court sustained Bertovich’s objection to any further
testimony about what Bertovich had told him.
addendum, it is apparent there was no agreement regarding performance of

the contract. Under such circumstances, for the court to have decided that

either Bertovich or St. John was responsible for the repair costs would have

essentially created a contract for the parties. The trial court properly held

that without a meeting of the minds, the agreement was unenforceable and,

therefore, the first assignment of error is overruled.

                           III. Specific Closing Date

      {¶ 14} In his second assignment of error, Bertovich contends that the

trial court erred in holding that the purchase agreement was not enforceable

because it lacked a specific closing date. He contends that the court should

have concluded from the evidence presented at trial that the parties agreed

that the closing date was to be a “reasonable time” after the transaction was

signed, which he interprets to mean prior to the end of November 2009, the

date he had to be out of the house he was living in.

      {¶ 15} “A closing date is not a per se essential term required to validate

a [real estate purchase] contract. * * * If the agreement does not contain a

date as to when payment is to be made or performance is to be rendered, a

reasonable time can be imposed.”       Park v. Acierno, 160 Ohio App.3d 117,

2005-Ohio-1332, 826 N.E.2d 324, ¶ 45 (7th Dist.), citing Cionni v. Reid, 7th

Dist. No. 90J19, 1991 WL 139579 (July 25, 1991), and Walkana v. Hanna, 7th

Dist. No. 87CA174, 1988 WL 117988 (Oct. 28, 1988).
      {¶ 16} Therefore, the trial court erred in holding that the lack of a

closing date in the purchase agreement made the contract unenforceable.

The court could have determined a reasonable time for performance, whether

the end of November or otherwise, from the facts presented at trial.

      {¶ 17} Appellant’s   second    assignment    of   error   is     sustained.

Nevertheless, we find the court’s error to be harmless because, as discussed

above, the contract was unenforceable due to its ambiguity regarding who

was to pay for necessary repairs.        Further, as discussed below, even

assuming there was a contract and a breach, Bertovich did not incur any

damages.

                                IV. Damages

      {¶ 18} In his third assignment of error, Bertovich contends that the trial

court erred in determining that even assuming a contract and breach,

Bertovich did not incur any damages.

      {¶ 19} To prove breach of contract, a plaintiff must demonstrate the

existence of a contract, performance by the plaintiff, breach by the defendant,

and damage or loss to the plaintiff. Nilavar v. Osborn, 127 Ohio App.3d 1,

11, 711 N.E.2d 726 (2d Dist.1998), citing Doner v. Snapp, 98 Ohio App.3d 597,

600, 649 N.E.2d 42 (2d Dist.1994).

      {¶ 20} The damages awarded for a breach of contract should place the

injured party in as good a position as he would have been but for the breach.
Mercury Fin. Co., LLC v. Smith, 8th Dist. No. 87562, 2006-Ohio-5730, 2006

WL 3095664, ¶ 29, citing Textron Fin. Corp. v. Nationwide Mut. Ins., 115

Ohio App.3d 137, 684 N.E.2d 1261 (9th Dist.1996). A corollary of this legal

principle is that a party generally should not recover a greater amount in

damages for breach of an obligation than he could have gained by full

performance thereof on both sides. Id., citing Computer Sciences Corp. v.

Owens-Illinois Corp., 6th Dist. No. 7778, 1975 WL 182484 (Apr. 18, 1975).

       {¶ 21} Just two weeks after he repudiated the contract for the Maple

Heights home, Bertovich purchased a home in Walton Hills.                            Bertovich

testified that he paid $125,000 for the home and that it needed no repairs.

Bertovich also testified that if his purchase of the Maple Heights home had

gone through, he would have paid $133,000 ($120,000 for the house plus

$13,000 to repair the driveway). Even adding Bertovich’s alleged expenses

related to the uncompleted purchase of the Maple Heights home 3 to the

$125,000 that he paid for the Walton Hills home, Bertovich’s net cost for the

Walton Hills home is still less than what he would have paid if his purchase

of the Maple Heights home had gone through. Accordingly, the trial court

did not err in concluding that, even assuming there was a contract and a

breach, Bertovich incurred no damages.



        $3,000 for the lost down payment assistance grant, $350 for an appraisal of the Maple
       3


Heights property, $240 to clean the Maple Heights property, and $58.98 to transport items from the
       {¶ 22} We are not persuaded by Bertovich’s argument that he sustained

money damages because every piece of real estate is unique, and he was

denied the opportunity to purchase the Maple Heights property. Contracts

involving interests in land may be specifically enforced, even without

evidence there is no adequate remedy at law, because interests in land are

unique. Gleason v. Gleason, 64 Ohio App.3d 667, 672, 582 N.E.2d 657 (4th

Dist.1991). Bertovich requested only money damages, however; he did not

ask for the equitable remedy of specific performance. Moreover, as the trial

court noted, there was no testimony at trial as to the uniqueness of the Maple

Heights home.

       {¶ 23} The third assignment of error is therefore overruled.

       Affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       It is ordered that a special mandate be sent to said court 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.




KATHLEEN ANN KEOUGH, JUDGE


Maple Heights property to the Walton Hills property (total $3,648.98).
COLLEEN CONWAY COONEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
