[Cite as Smith v. Pickersgill, 2014-Ohio-5606.]


                                          COURT OF APPEALS
                                         PERRY COUNTY, OHIO
                                      FIFTH APPELLATE DISTRICT


 JOHN C. SMITH                                    :    JUDGES:
                                                  :
                                                  :    Hon. John W. Wise, P.J.
          Plaintiff - Appellee                    :    Hon. Patricia A. Delaney, J.
                                                  :    Hon. Craig R. Baldwin, J.
                                                  :
 -vs-                                             :
                                                  :
 DON PICKERSGILL                                  :    Case No. 14-CA-00012
                                                  :
                                                  :
          Defendant - Appellant                   :    OPINION



 CHARACTER OF PROCEEDING:                              Appeal from the Perry County Court
                                                       of Common Pleas, Case No.
                                                       12 CV 00057



 JUDGMENT:                                             Affirmed




 DATE OF JUDGMENT:                                    December 19, 2014



 APPEARANCES:

 For Plaintiff-Appellee                                For Defendant-Appellant

 SCOTT D. EICKELBERGER                                 JILLIAN B. VON GUNTEN
 RYAN H. LINN                                          Allen & Baughman
 Kincaid, Taylor & Geyer                               58 North Fifth Street, Suite 102
 50 North Fourth Street                                Zanesville, OH 43701
 PO Box 1030
 Zanesville, OH 43701
[Cite as Smith v. Pickersgill, 2014-Ohio-5606.]



 Baldwin, J.

          {¶1}    Defendant-appellant Don Pickersgill appeals from the February 10, 2014

 Entry of the Perry County Court of Common Pleas granting summary judgment in favor

 of plaintiff-appellee John Smith.

                                  STATEMENT OF THE FACTS AND CASE

         {¶2}     On or about November 20, 2011, appellant Don Pickersgill, as seller,

 entered into a real estate purchase agreement with appellee John Smith, as buyer.

 Pursuant to the terms of the same, appellee agreed to buy specified real estate from

 appellant for $30,000.00 with a $1,500.00 deposit and the balance due on January 30,

 2012.       The agreement further provided that appellant would pay prorated property

 taxes and appellee would “pay the costs to convey and record the deed and any other

 cost that may be, to complete the sale. Except Liens.” Appellant also agreed to give

 appellee the right of first refusal if any adjacent land became available for sale.

         {¶3}     On February 17, 2012, appellee filed a Complaint for Specific

 Performance of Contract to Convey Land against appellant. Appellee, in his complaint,

 alleged that he tendered the down payment of $1,500.00 to appellant at the time the

 parties entered into the contract and that he met with appellant to complete the

 transaction on or before January 20, 2012.          Appellee further alleged that he told

 appellant that the land was encumbered by two liens and that the contract required

 appellant to provide the property free of liens. Appellant, according to the complaint,

 refused to complete the transaction and provide appellee with a general warranty deed

 for the property. Appellee asked that appellant be required to specifically perform the

 contract and provide a general warranty deed for the property to appellee. Appellee also
[Cite as Smith v. Pickersgill, 2014-Ohio-5606.]


 asked for a court order that appellee had a right of refusal on adjacent land owned by

 appellant.

         {¶4}     Appellant filed an answer to the complaint on April 2, 2012 and an

 amended answer on April 9, 2012.

         {¶5}     Both parties filed Motions for Summary Judgment. Pursuant to an Entry

 filed on February 10, 2014, the trial court granted appellee’s Motion for Summary

 Judgment while denying that filed by appellee.

         {¶6}     Appellant now raises the following assignment of error on appeal:

         {¶7}     WHETHER THE TRIAL COURT ERRED IN HOLDING THERE WERE NO

 ISSUES OF MATERIAL FACT TO BE DECIDED AND GRANTING SUMMARY

 JUDGMENT TO PLAINTIFF/APPELLEE.

                                                    I

         {¶8}     Appellant, in his sole assignment of error, argues that the trial court erred

 in granting summary judgment in favor of appellee. We disagree.

         {¶9}      Summary judgment motions are to be resolved in light of the dictates of

 Civ.R. 56, which was reaffirmed by the Ohio Supreme Court in State ex rel. Zimmerman

 v. Tompkins, 75 Ohio St.3d 447, 448, 1996–Ohio–211, 663 N.E.2d 639.

                           Civ.R. 56(C) provides that before summary judgment may be

                  granted, it must be determined that (1) no genuine issue as to any

                  material fact remains to be litigated, (2) the moving party is entitled

                  to judgment as a matter of law, and (3) it appears from the

                  evidence that reasonable minds can come to but one conclusion,

                  and viewing such evidence most strongly in favor of the nonmoving
[Cite as Smith v. Pickersgill, 2014-Ohio-5606.]


                  party, that conclusion is adverse to the party against whom the

                  motion for summary judgment is made. State ex rel. Parsons v.

                  Fleming, 68 Ohio St.3d 509, 511, 1994–Ohio–172, 628 N.E.2d

                  1377, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327,

                  472, 364 N.E.2d 267, 274 (1977).

         {¶10} As an appellate court reviewing summary judgment motions, we must

 stand in the shoes of the trial court and review summary judgment motions on the same

 standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

 St.3d 35, 36, 56 N.E.2d 212 (1987).

         {¶11} Appellant, in his brief, argues that the trial court erred in granting summary

 judgment in favor of appellee because “[i]t is unclear whether there was a genuine

 ‘meeting of the minds’ in the contract formation.”       Appellant argues that the parties

 never considered who would be responsible for any outstanding liens or encumbrances

 on the property and that appellant honestly believed that there were no such liens or

 encumbrances. Appellant also contends that both parties were aware, when

 contemplating the transaction, that appellant would only sell the property if he cleared

 $30,000.00 in proceeds from the sale.            Appellant further maintains that appellee

 breached the contract by refusing to complete the transaction on the closing date.

         {¶12} A contract is to be interpreted to give effect to the intention of the parties.

 Morrison v. Petro Evaluation Serv., Inc., 5th Dist. Morrow No. 2004 CA 0004, 2005–

 Ohio–5640, ¶ 29 citing Employer's Liab. Assur. Corp. v. Roehm, 99 Ohio St. 343, 124

 N.E. 223 (1919), syllabus. It is a fundamental principle in contract construction that

 contracts should “be interpreted so as to carry out the intent of the parties, as that intent
[Cite as Smith v. Pickersgill, 2014-Ohio-5606.]


 is evidenced by the contractual language.” Id. quoting Skivolocki v. E. Ohio Gas Co., 38

 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus. “The intent of

 the parties to a contract is presumed to reside in the language they chose to employ in

 the agreement.” Id. quoting Foster Wheeler Enviresponse, Inc. v. Franklin Cty.

 Convention Facilities Auth., 78 Ohio St.3d 353, 361, 1997–Ohio–202, 678 N.E.2d 519.

 If the terms of the contract are clear and unambiguous, courts must give the words their

 plain and ordinary meaning and may not create a new contract by finding the parties

 intended something not set out in the contract. Alexander v. Buckeye Pipeline, 53 Ohio

 St.2d 241, 374 N.E.2d 146 (1978).

         {¶13} In the case sub judice, the parties’ contract clearly and unambiguously

 provides that appellant would sell the subject property to appellee for a total of

 $30,000.00. There is no language stating that appellant has to clear $30,000.00 in order

 for the sale to occur. The contract further provides that appellee “agrees to pay the

 costs to convey and record deed and any other cost that may be, to complete the sale.

 Except Liens.” (Emphasis added).                 We concur with appellee that the contract plainly

 and clearly provides that appellant, as the seller, would pay the costs of the liens.         We

 find that appellant breached the agreement by failing to satisfy the liens covering the

 property.

         {¶14} Appellee, in his brief, also argues that appellant breached the agreement

 by failing to provide marketable title to him at the time of closing. In McCarty v. Lingham,

 111 Ohio St. 551, 557, 146 N.E. 64 (1924), the Supreme Court of Ohio held, “where a

 sale of real estate is made in general terms, without any stipulation as to the character
[Cite as Smith v. Pickersgill, 2014-Ohio-5606.]


 of title which the purchaser is to get, he is entitled to demand that a marketable title

 shall be given.” The Court then described at 557-558 what was a marketable title:

                           As to what constitutes a marketable title no hard and fast

                  rule can be declared to govern every state of facts which might be

                  presented in the numerous controversies which are likely to arise

                  where such a title is implied in a sale contract drawn in general

                  terms, and each case is therefore sui generis. Some attorneys are

                  more technical than others in advising their clients upon the defects

                  of greater or less importance to be found in an abstract of title, and

                  some purchasers are more timid than others, and the court can

                  therefore do nothing more than establish a very general rule. As a

                  result of the numerous expressions of the courts on this subject, it

                  may be conservatively stated that a marketable title is one which

                  imports such ownership as insures to the owner the peaceable

                  enjoyment and control of the land, as against all others. It has also

                  been defined as one which is sufficient to support or defend an

                  action of ejectment. It should show a full and perfect right of

                  possession in the vendor. It should appear reasonably certain that

                  the title will not be called in question in the future, so as to subject

                  the purchaser to the hazard of litigation with reference thereto. It

                  must in any event embrace the entire estate or interest sold, and

                  that free from the lien of all burdens, charges, or incumbrances

                  which present doubtful questions of law or fact.
      {¶15} Because the subject property was encumbered by two liens, appellant did

not provide marketable title at the time of closing. Appellee, therefore, was not required

to pay the balance of the purchase price at the time of the closing.

      {¶16} We find, therefore, that the trial court did not err in granting summary

judgment in favor of appellee because there were no genuine issues of material fact in

dispute.

      {¶17} Appellant’s sole assignment of error is, therefore, overruled.

      {¶18} Accordingly, the judgment of the Perry County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Wise, P.J. and

Delaney, J. concur.
