[Cite as Rose v. Jones, 2012-Ohio-1726.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
SANDRA D. ROSE                                :   William B. Hoffman, P.J.
                                              :   John W. Wise, J.
                        Plaintiff-Appellant   :   Julie A. Edwards, J.
                                              :
-vs-                                          :   Case No. 2011CA00076
                                              :
                                              :
OMAR E. JONES, et al.,                        :   OPINION

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                           Civil Appeal from Massillon Municipal
                                                   Court, Stark County, Ohio, Case No.
                                                   2010CVF1747

JUDGMENT:                                          Reversed and Remanded

DATE OF JUDGMENT ENTRY:                            April 16, 2012

APPEARANCES:

For Plaintiff-Appellant                            For Defendants-Appellees

KEVIN R. L’HOMMEDIEU                               AMANDA M. PAAR
53 W. Case Drive                                   220 Market Avenue South, 8th Floor
Hudson, Ohio 44236                                 Canton, Ohio 44702
[Cite as Rose v. Jones, 2012-Ohio-1726.]


Edwards, J.

        {¶1}    Plaintiff-appellant, Sandra Rose, appeals from the March 2, 2011, Order of

the Massillon Municipal Court.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}    On October 5, 2006, appellees Omar E. Jones and Nancy J. Mathias

signed a land installment contract to purchase specified property in Massillon, Ohio from

appellant Sandra Rose fka Sandra Gehring, appellee Jones’ sister, for $85,000.00.

Previously, the two had rented the house from appellant. The land installment contract

stated, in part, that appellees “will not make any structural change or remodel the

existing building or add any new building thereon without first securing written

permission of the Vendor herein,…”

        {¶3}    On July 21, 2010, appellant filed a complaint against appellees seeking

forfeiture of the land installment contract. Appellant, in her complaint, alleged that

appellees had violated the land installment contract by removing part of the kitchen wall,

removing and replacing kitchen cabinets, and turning a bedroom into a laundry room

and running plumbing throught the floors of such room. Appellant further alleged that

appellees had violated the contract by creating an apartment in the basement and

adding a pocket door to the entrance to the kitchen, removing a living room closet and

replacing it with shelving and converting the house from a 3 bedroom house into a 2

bedroom house.

        {¶4}    Appellees, on August 19, 2010, filed an answer and counterclaim.

Appellees, in their counterclaim, alleged that since the execution of the land contract

and with appellant’s knowledge, they had replaced water damaged kitchen cabinets,
Stark County App. Case No. 2011CA00076                                                   3


adding plumbing fixtures in a wall outlet in one bedroom to facilitate a washer and dryer

in that bedroom, and added removable shelving to a living room closet because the

doors of the closet were falling off. Appellees maintained that the above were non-

structural improvements and that appellant had filed suit against them in order to regain

possession of the house in order to finance the purchase of a recreational vehicle.

Appellees further alleged that, prior to the land installment contract, they had created an

apartment in the basement and added a pocket door to the kitchen with appellant’s

knowledge. Appellees alleged abuse of process and frivolous conduct pursuant to R.C.

2323.51 as well as unjust enrichment.

      {¶5}    On December 9, 2010, appellees filed a Motion for Summary Judgment.

Appellees, in their motion, alleged that the changes mentioned in appellant’s complaint

were not structural changes, were made prior to the inception of the land contract

and/or were made with appellant’s knowledge. In support of their motion, they attached

appellant’s deposition and the affidavit of appellee Omar E. Jones. Appellant filed a

response to such motion on December 30, 2010. Appellant, in her response, alleged

that it was premature for the court to find, as a matter of law, that there had been no

structural damages to the subject real estate and argued that she was entitled to

provide expert testimony as to such issue.

       {¶6}   As memorialized in an Order filed on January 4, 2011, the trial court

ordered appellant to provide the court, by January 31, 2011, with evidence from an

expert witness that the subject property had been diminished in value, that there had

been structural damage due to appellees’ remodeling and “to what extent in monetary

terms the property has been damaged due to Defendants’ actions.”
Stark County App. Case No. 2011CA00076                                                  4


       {¶7}   On January 18, 2011, appellant, with leave of court, filed an amended

complaint for forfeiture of the land installment contract and breach of contract.

       {¶8}   Appellant, on January 27, 2011, filed a response to the trial court’s

January 4, 2011, order. Appellant, in her response, stated that a home improvement

contractor retained by her had reported that there had been no structural damage done

to the property as a result of appellees’ remodeling. However, appellant attached an

affidavit to her response in which she stated that appellees had not obtained her written

permission prior to the remodeling.

       {¶9}   A bench trial was set for March 2, 2011. Pursuant to an Order filed on

March 2, 2011, the trial court granted appellees’ Motion for Summary Judgment prior to

the commencement of trial. The trial court, in its Order noted that no damages had been

submitted to the trial court. In a separate Order filed the same day, the trial court

granted appellees’ Motion for Summary Judgment, finding that there were no structural

damages or diminished value of the subject property. With respect to appellees’

counterclaim, the trial court awarded appellees $4,000.00 in attorney fees, plus interest,

paid to defend the frivolous conduct.

       {¶10} Appellant now raises the following assignments of error on appeal:

       {¶11} “I. BECAUSE THE LAND INSTALLMENT CONTRACT PROHIBITED

JONES FROM MAKING ‘ANY STRUCTURAL CHANGE OR REMODEL’ TO THE

HOME, THE COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR JONES

BECAUSE IT FOUND THAT THE CHANGES JONES MADE DID NOT ALSO

‘DAMAGE’ THE PROPERTY OR ‘DIMINISH’ ITS VALUE.
Stark County App. Case No. 2011CA00076                                                   5


       {¶12} “II. THE COURT ERRED IN AWARDING ATTORNEY FEES TO JONES

BECAUSE ROSE’S CLAIMS HAD MERIT, WERE NOT FRIVOLOUS, AND SHOULD

HAVE BEEN ALLOWED TO PROCEED TO TRIAL.”

                                                I

       {¶13} Appellant, in her first assignment of error, argues that the trial court erred

in granting appellees’ Motion for Summary Judgment. We agree.

       {¶14} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As

such, we must refer to Civ.R. 56(C) which provides, in pertinent part:

       {¶15} “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case and written stipulations of fact, if any, timely filed in the

action, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. * * * A summary judgment shall not be

rendered unless it appears from the evidence or stipulation, and only from the evidence

or stipulation, that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence or stipulation construed most

strongly in the party's favor.”

       {¶16} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion
Stark County App. Case No. 2011CA00076                                                     6


and identifying those portions of the record that demonstrates the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates the non-moving party cannot support its

claim. If the moving party satisfies this requirement, the burden shifts to the non-moving

party to set forth specific facts demonstrating there is a genuine issue of material fact for

trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d 1164, citing

Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662 N.E.2d 264.

       {¶17} As is stated above, the trial court, in its March 2, 2011, Order, granted

summary judgment to appellees on the basis that there was no structural damage to the

subject property and because the subject property was not diminished in value due to

appellees’ actions. Appellees now contend that the changes they made were not

structural and cite to Lakes v. Mayo, 12th Dist. No. CA2006-01-003, 2006-Ohio-6072 in

support of their argument.

       {¶18} In Lakes, the court held that an interior door to an apartment building

created by cutting into a wall was not a structural change. In such case, the parties’ land

installment contract prohibited structural changes to the property without the vendor’s

written consent, but did not define such term. In Lakes, the court held, in relevant part,

as follows: “The contract does not define “structural.” Webster's Third New International

Dictionary provides two relevant definitions of “structural.” Definition “1 a” provides as

follows: “of or relating to structure or a structure; affecting structure; used in building

structures; constructional [.]” Webster's Third New International Dictionary (1993), 2266.

Definition “1 b” provides as follows: “of or relating to the load-bearing members or
Stark County App. Case No. 2011CA00076                                                      7

scheme of a building as opposed to the screening or ornamental elements[.]” Id.

Definition “1 b” gives the following examples of structural elements: “floor joists, rafters,

wall and partition studs, supporting columns ... foundations [.]” Id.

         {¶19} “According to the municipal court, Lakes failed to prove that the creation of

the doorway was a “structural” change. The court apparently interpreted “structural”

consistent with definition “1 b” above. We find no error in that interpretation. Definition “1

a” is extremely broad, and likely does not reflect what the parties intended. Applying the

“1 b” definition, the record supports the municipal court's decision that the Mayos did not

materially breach the contract's provision regarding “structural changes.” In his

testimony, Shelby Mayo described the wall he altered as a “partition wall.” Lakes, the

only other witness to testify, did not testify that the wall was a load-bearing wall, or was

otherwise “structural” within the meaning of definition “1b.” Accordingly, we reject

appellant's argument regarding the Mayos' alleged structural change.” Id at paragraphs

10-11.

         {¶20} However, in addition to prohibiting structural changes without appellant’s

written consent, the land installment contract in the case sub judice prohibited appellees

from “remodeling” the existing building without first securing written permission from

appellant. The word “remodel” is defined as “to alter the structure of.” See Merriam-

Webster’s Collegiate Dictionary (Tenth Edition 1983).         The word “remodel” usually

connotes alteration to a structure which could include changes to the load bearing

members as well as lesser changes to the structure.           And, we find that “remodel”

connotes lesser changes to a structure in the contract sub judice because of its use in

the sentence in addition to the “structural change” language.           As is stated above,
Stark County App. Case No. 2011CA00076                                                    8


appellant, in her complaint, alleged that appellees had violated the land installment

contract by removing part of the kitchen wall, removing and replacing kitchen cabinets,

turning a bedroom into a laundry room and running plumbing through the floors of such

room, creating an apartment in the basement and adding a pocket door to the entrance

to the kitchen, removing a living room closet and replacing it with shelving and

converting the house from a 3 bedroom house into a 2 bedroom house. Appellant, in an

affidavit filed with the trial court, stated that appellees had not obtained her written

permission prior to the remodeling.

       {¶21} During her deposition, appellant, when asked when appellees removed

the kitchen wall, testified that she did not know. She further testified that the wall was

not removed during the time when appellees were renting the house from her, but had

no documentation to prove such assertion. During her deposition, she further testified

that changes to the basement were made while appellees were renting from her and

that the pocket door was installed right after the contract. She subsequently testified

that she did not know exactly when the pocket door was installed. Appellee Jones, in his

affidavit, stated that they partially removed a kitchen wall prior to entering into the land

contract. In his affidavit, he further stated that the pocket door was installed prior to

entering into the land contract and that the basement apartment was installed prior to

signing of the land contract.

       {¶22} The changes to the basement were completed before execution of the

land installment contract and thus could not have been done in violation of the land

installment contract.   While the pocket door and removal of the kitchen fall within the

definition of “remodeling” because they altered the existing structure, we find that there
Stark County App. Case No. 2011CA00076                                                9


is a dispute of fact as to when such changes were made. While appellant testified that

the kitchen wall was not removed while appellees were renting from her, appellee

Jones, in his affidavit, indicated that the kitchen wall was removed prior to the land

installment contract.   While, in his affidavit, he indicated that the pocket door was

installed prior to entering into the land installment contract, appellant, during her

deposition, testified otherwise. We find, on such basis that there are genuine issues of

material fact as to when such changes were made and, that the trial court erred in

granting summary judgment in favor of appellees.

      {¶23} Appellant’s first assignment of error is, therefore, sustained.

                                            II

      {¶24} Appellant, in her second assignment of error, argues that the trial court

erred in awarding attorney fees to appellees for defending the “frivolous conduct.”
Stark County App. Case No. 2011CA00076                                             10


      {¶25} Based on our disposition of appellant’s first assignment of error, we find

resolution of such issue to be premature.

      {¶26} Accordingly, the judgment of the Massillon Municipal Court is reversed

and this matter is remanded for further proceedings.



By: Edwards, J.

Hoffman, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                             JUDGES

JAE/d1130
[Cite as Rose v. Jones, 2012-Ohio-1726.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


SANDRA D. ROSE                                   :
                                                 :
                           Plaintiff-Appellant   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
OMAR E. JONES, et al.,                           :
                                                 :
                      Defendants-Appellees       :       CASE NO. 2011CA00076




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Massillon Municipal Court, Stark County, Ohio, is reversed and this

matter is remanded to the Massillon Municipal Court for further proceedings. Costs

assessed to appellees.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
