[Cite as Mezher v. Schrand, 2018-Ohio-3787.]



                         IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



MIKE MEZHER,                                   :   APPEAL NO. C-180071
                                                   TRIAL NO. A-1705484
   and                                         :

JOSEPEH MEZHER,                                :
                                                      O P I N I O N.
         Plaintiffs-Appellants,                :

   vs.                                         :

JEFF SCHRAND,                                  :

   and                                         :

KARRI SCHRAND,                                 :

         Defendants-Appellees.                 :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: September 21, 2018



Kathleen Mezher & Associates and Kathleen D. Mezher, for Plaintiffs-Appellants,

Graydon Head & Ritchey, LLP, and Michael A. Roberts, for Defendants-Appellees.
                    OHIO FIRST DISTRICT COURT OF APPEALS


DETERS, Judge.

       {¶1}   This is a dispute over the sale of a high-end residential property in Mt.

Adams owned by defendants-appellees Karri and Jeff Schrand. Plaintiffs-appellants

Joseph and Mike Mezher contend that the Schrands agreed by email to sell their

home to Mike Mezher and that the Schrands breached that agreement.                  The

Schrands argue that no agreement existed because of the requirements of the statute

of frauds. For the reasons set forth below, we hold that a question of fact exists as to

whether the parties intended to be bound by the email exchange. Therefore, we

reverse the trial court’s judgment in favor of the Schrands, and we remand the cause

for further proceedings.

                                       Background

       {¶2}   Joseph Mezher owns property at 1140 Fort View Place.            In 2016,

Joseph Mezher sought and received a building permit from the city of Cincinnati to

build a new home on his property. The Schrands bought the property next door to

Joseph Mezher in July 2017. Joseph Mezher’s father, Mike Mezher, spoke with the

Schrands regarding the new-home construction plans, and he proposed renting a

sidewalk on the Schrands’ property to aid in the construction.           The Schrands

responded by offering to sell their property to Mike Mezher.             Mike Mezher

negotiated with the Schrands through email about purchasing the property.

       {¶3}   On September 29, 2017, Karri Schrand sent an email to Mike Mezher,

stating, “Mike: We would like to wrap this up if there is still a conversation going

regarding your potential purchase of our home. As you are aware your offer of

$960,000 was way too low.        We are countering with $1,000,000.         We would

appreciate a quick response. Karri and Jeff Schrand.” Mike responded, “Hi Karrie


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[sic], The max that I can do is $980,000 as Cash closing with inspection contingency.

(split the difference between us and call it a day). Let me know. Thanks, Mike.” Ms.

Schrand responded, “Mike we have an agreement if we are at $985,000.” Mike

responded: “I starched [sic] the amount it to go [sic] to 980K. However, will split it

again with you because I want to be flexible. I am good at $982,500 for a purchase

price Based on inception [sic] and customary closing. we can get a simple contract

drafted Monday and have it signed by us Tuesday with the earnest money cashier

check to you upon acceptance of contract by Tuesday. Please let me know, Mike[.]”

The next morning, Ms. Schrand responded to Mike, “We accept.” Mike responded,

in part, “Great, I agree too. Do you have some one [sic] to draw a simple contract

(neutral contract). I am willing to do one if you like.”

       {¶4}    The parties further discussed drafting a formal document, as well as

inspection and closing timing, and earnest money. On October 5, Mike Mezher, his

wife, and the home builder for his son’s property next door went to the Schrands’

home. At this meeting, Mike Mezher gave Ms. Schrand a document titled “Contract

to Purchase Real Estate.” Christine Mezher signed the document as the buyer. The

document stated that “[t]his offer expires Monday October 9, 2017 at 4:00 p.m. if not

signed by the Buyer and Sellers.” The parties have differing accounts as to exactly

what happened at this October 5 meeting, but both parties agree that an argument

ensued and Ms. Schrand asked the group to leave the home. The Schrands never

signed the document.

       {¶5}    Mike and Joseph Mezher filed a complaint against Jeff and Karri

Schrand, requesting specific performance of the real estate contract, a preliminary

injunction, and pecuniary and punitive damages. The Schrands filed an answer,


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asserting that no agreement had been reached, because the parties had merely been

negotiating a potential purchase via email. The Schrands also filed a counterclaim

for a declaratory judgment.

       {¶6}   The Schrands filed a summary-judgment motion, arguing that no

contract existed because the Schrands never signed the October 5 document, that any

email “agreement” was barred by the statute of frauds, and that no meeting of the

minds occurred. The Mezhers also filed a motion for partial summary judgment with

respect to their claim for specific performance.      The Mezhers argued that the

September 29-30 email exchange constituted a contract and satisfied the statute of

frauds. The trial court granted summary judgment in favor of the Schrands, finding

that the September 29-30 email exchange between the parties did not satisfy the

statute of frauds, because the emails did not describe the subject property with

particularity. The Mezhers have appealed.

                                  Standard of Review

       {¶7}   In two assignments of error, the Mezhers argue that the trial court

erred in granting the Schrands’ motion for summary judgment, and the trial court

should have ruled in favor of the Mezhers on their motion for summary judgment.

We apply a de novo review of a trial court’s decision under Civ.R. 56(C). First Fin.

Bank, N.A. v. Cooper, 2016-Ohio-3523, 67 N.E.3d 140, ¶ 9 (1st Dist.). Summary

judgment is proper only where no genuine issues of material fact remain, the moving

party is entitled to judgment as a matter of law, and it appears from the evidence that

reasonable minds can come to but one conclusion, and with the evidence construed

most strongly in favor of the nonmoving party, that conclusion is adverse to that

party. Civ.R. 56(C).


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                                     Statute of Frauds

       {¶8}    Ohio’s statute of frauds with respect to the sale of land, R.C. 1335.05,

provides in relevant part: “No action shall be brought whereby to charge the

defendant * * * upon a contract or sale of lands * * * 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 * * *.” A writing satisfies the statute

of frauds if it (1) identifies the subject matter, (2) establishes that a contract has been

made, and (3) states the essential terms with reasonable certainty. LHPT Columbus,

L.L.C. v. Capitol City Cardiology, Inc., 2014-Ohio-5247, 24 N.E.3d 712, ¶ 22 (10th

Dist.). As to essential terms, the essential terms of a contract are “the identity of the

parties to be bound, the subject matter of the contract, consideration, a quantity

term, and a price term.” Alligood v. Procter & Gamble Co., 72 Ohio App.3d 309, 311,

594 N.E.2d 668 (1st Dist.1991). “Because the statute of frauds only requires the

memorandum contain the essential terms of the agreement, it need not contain all

the terms of the agreement.” Fairfax Homes, Inc. v. Blue Belle, Inc., 5th Dist.

Licking No. 05-CA-110, 2006-Ohio-2261, ¶ 28. Therefore, a contract to transfer land

does not violate the statute of frauds because it fails to provide, for example, a closing

date. Id.; McGee v. Tobin, 7th Dist. Mahoning No. 04 MA 98, 2005-Ohio-2119, ¶ 25.

       {¶9}    The trial court granted summary judgment to the Schrands on the

basis that the September 29-30 email exchange regarding the sale of the property did

not satisfy the statute of frauds, because the property subject to the purported

agreement was not described with enough particularity.            We disagree, and the

Schrands concede that this specific argument was not advanced to the trial court.

Nevertheless, the Schrands contend that the trial court’s decision should be affirmed


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on a different basis. See State ex rel. Carter v. Schotten, 70 Ohio St.3d 89, 92, 637

N.E.2d 306 (1994) (a reviewing court cannot reverse a correct judgment on the sole

basis that the trial court provided erroneous reasons to support its judgment).

       {¶10} In their motion for summary judgment, the Schrands rely on the terms

of the October 5 document to argue that the September 29-30 email exchange failed

to contain the essential terms of the agreement, such as the identity of the buyer, sale

of items within the home, such as appliances and chandeliers, and the scope of the

home inspection. However, as the Mezhers argue, the email exchange identified the

sellers as Karri and Jeff Schrand and the buyer as Mike Mezher. The exchange

identified the property as the Schrands’ home on Fort View, as stated in the subject

line of the email chain. The exchange contained a sale price of $982,500. Finally,

the emails contained an electronic signature of the parties to be charged. See R.C.

1306.06(C) (where the law requires a signature of the party to be charged, an

electronic signature suffices). But, the parties’ email exchange contemplated that the

parties would sign a formal document. Thus, in determining whether the statute of

frauds is satisfied, the question becomes whether the parties intended to enter into a

contract at the time of the email exchanges.

       {¶11} An agreement can be specifically enforced even where the parties

contemplated execution of a formal written document, so long as the parties have

manifested an intent to be bound and their intentions are sufficiently definite.

Normandy Place Assoc. v. Beyer, 2 Ohio St.3d 102, 105-106, 443 N.E.2d 161 (1982).

In determining whether the parties intended to be bound, courts can look at the

circumstances surrounding the parties’ discussion. 26901 Cannon Rd. LLC v. PSC

Metals, Inc., 8th Dist. Cuyahoga No. 80986, 2002-Ohio-6050, ¶ 17. Moreover, the


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question of whether the parties intended a contract is a factual question for the

finder of fact. Normandy Place at 105, citing Arnold Palmer Golf Co. v. Fuqua

Indus., Inc., 541 F.2d 584, 588 (6th Cir.1976) (applying Ohio law).

       {¶12} In this case, once the parties had agreed upon a purchase price, Mike

Mezher stated, “we can get a simple contract drafted Monday and have it signed by

us Tuesday with the earnest money cashier check to you upon acceptance of contract

by Tuesday.” The Schrands responded, “We accept.” Even though this language

indicated that both parties anticipated executing a formal document, neither party

expressly indicated that a formally-executed document was necessary before the

parties could be bound by the sale.

       {¶13} When the Mezhers presented the Schrands with a formal document on

October 5, the identity of the buyer had changed from Mike Mezher to Christine

Mezher. According to Ms. Schrand’s affidavit, she had not been made aware of

Christine’s involvement until October 5. Mike Mezher’s affidavit does not address

why the buyer had changed in the October 5 document. The October 5 document

also contained other terms of the sale that had not been expressly agreed upon by the

parties prior to that time, according to Ms. Schrand, including sale of items within

the home, such as appliances and chandeliers, and the scope of the inspection

contingency.

       {¶14} According to Ms. Schrand, at the October 5 meeting, Mike Mezher’s

wife had stated to her that the Mezhers were “considering” buying the property. Ms.

Schrand also averred that she had not received any earnest money at this meeting.

According to Mike Mezher, he had the earnest money in the form of a $10,000 check

at the October 5 meeting. Ms. Schrand further averred that the email exchange had


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lacked many items that she had deemed customary or standard for a real-estate

purchase agreement.

       {¶15} Given the circumstances surrounding the parties’ email exchange and

later discussions, including that other terms of the sale had yet to be agreed upon, an

issue of fact exists as to whether the parties had a present intention to be bound at

the time of the email exchange, or whether the parties did not intend to be bound

until execution of the more formal contract. Thus, the trial court erred in granting

summary judgment to the Schrands, because a genuine issue of material fact exists

as to whether a contract had been made. As a corollary, the trial court did not err in

denying the Mezhers’ motion for summary judgment.

                                         Standing

       {¶16} The Schrands argue that Mike and Joseph Mezher lack standing to

pursue a breach-of-contract claim, because the October 5 document identified

Christine Mezher as the buyer. This assertion lacks merit. As a general rule, “a

particular party’s standing, or lack thereof, does not affect the subject-matter

jurisdiction of the court in which the party is attempting to obtain relief.” Bank of

Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 23.

Except for subject-matter jurisdiction, issues not raised to the trial court cannot be

raised for the first time on appeal. See Greenwood v. Taft, Stettinius & Hollister, 105

Ohio App.3d 295, 302, 663 N.E.2d 1030 (1st Dist.1995). Moreover, the complaint

alleged that the email exchange created a binding contract between the Schrands and

Mike Mezher, not Christine. The complaint alleged that Joseph Mezher owned the

Fort View building next door, subject to the demolition permit, which allegedly

started the feud between the Schrands and the Mezhers. Joseph Mezher had a


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particularized need for the sidewalk on the Schrands’ property to aid in construction,

and therefore the Mezhers sought specific performance as a remedy.

                                         Conclusion

       {¶17} We sustain the Mezhers’ first assignment of error, and overrule the

Mezhers’ second assignment of error. We reverse the judgment of the trial court and

remand the cause for further proceedings.


                                                Judgment reversed and cause remanded.


ZAYAS, P.J., and MYERS, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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