[Cite as Smith v. Williams, 2013-Ohio-1228.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




MARTIN N. SMITH                                :    JUDGES:
                                               :    Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                     :    Hon. Sheila G. Farmer, J.
                                               :    Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :
AGATHA MARTIN WILLIAMS                         :    Case No. 2012CA00117
                                               :
        Defendant-Appellant                    :    OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Canton Municipal
                                                    Court, Case No. 2012 CVG 2349



JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   March 28, 2013




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN BOGGINS                                        ROBERT E. SOLES, JR.
1428 Market Avenue North                            KARA DODSON
Canton, OH 44714                                    6545 Market Avenue North
                                                    North Canton, OH 44721
Stark County, Case No. 2012CA00117                                                        2

Farmer, J.

        {¶1}   In May of 2006, appellant, Agatha Martin Williams, and appellee, Martin

Smith, entered into a land installment contract wherein appellant agreed to purchase a

property from appellee for $350,000.00. Appellant was to make a down payment and

monthly interest payments thereafter. The purchase was to be completed by June 1,

2008.

        {¶2}   Because appellant could not obtain financing in 2008, the parties

renegotiated the contract and entered into a second land installment contract in April

2008. The purchase price was still $350,000.00, but appellant was required to pay

another $5,000.00 and then make the monthly interest payments. The purchase was to

be completed by April 30, 2009.

        {¶3}   Again, appellant could not obtain financing in 2009.            The parties

renegotiated the contract and entered into a third land installment contract in July 2009.

Appellant was required to make principal payments in addition to the monthly interest

payments. The purchase was to be completed by June 30, 2011.

        {¶4}   On August 1, 2011, the parties renegotiated again and entered into a final

land installment contract.

        {¶5}   On April 12, 2012, appellee filed a complaint for forcible entry and detainer

against appellant. On May 4, 2012, appellant filed a motion to dismiss under R.C.

5313.07 as she had paid on the land contract for over five years and therefore the

appropriate action was a foreclosure proceeding.           The matter was heard by a

magistrate. By report filed May 24, 2012, the magistrate denied the motion to dismiss,

found R.C. 5313.07 did not apply, and granted a writ of restitution of the property to
Stark County, Case No. 2012CA00117                                                         3


appellee. The trial court approved and confirmed the decision the same day. Appellant

filed objections.   By judgment entry filed June 12, 2012, the trial court denied the

objections.

       {¶6}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶7}   "THE TRIAL COURT ERRED AS A MATTER OF LAW IN ALLOWING

PLAINTIFF-APPELLEE TO REGAIN POSSESSION OF THE SUBJECT PROPERTY

BY WAY OF A FORCIBLE ENTRY AND DETAINER ACTION RATHER THAN A

FORECLOSURE PROCEEDING AS REQUIRED BY OHIO REV. CODE §5313.07 AS

DEFENDANT-APPELLANT HAD PAID IN ACCORDANCE WITH THE TERMS OF THE

LAND INSTALLMENT CONTRACT FOR A PERIOD OF FIVE YEARS OR MORE

FROM THE DATE OF THE FIRST PAYMENT."

                                             I

       {¶8}   Appellant claims the trial court erred in granting a writ of restitution of the

property via a forcible entry and detainer action rather than a foreclosure proceeding

under R.C. 5313.07 because she had paid on the land installment contract for over five

years. We disagree.

       {¶9}   R.C. 5313.07 states the following:



              If the vendee of a land installment contract has paid in accordance

       with the terms of the contract for a period of five years or more from the

       date of the first payment or has paid toward the purchase price a total sum
Stark County, Case No. 2012CA00117                                                       4


       equal to or in excess of twenty per cent thereof, the vendor may recover

       possession of his property only by use of a proceeding for foreclosure and

       judicial sale of the foreclosed property as provided in section 2323.07 of

       the Revised Code. Such action may be commenced after expiration of the

       period of time prescribed by sections 5313.05 and 5313.06 of the Revised

       Code. In such an action, as between the vendor and vendee, the vendor

       shall be entitled to proceeds of the sale up to and including the unpaid

       balance due on the land installment contract.



       {¶10} Appellant's position is that the original land installment contract negotiated

in May 2006 is the start date for the "date of the first payment" regardless of the

subsequent re-negotiations and new contracts entered into by the parties in 2008 and

2009, culminating in the final contract on August 1, 2011. The language of the August

1, 2011 land installment contract specifically states, "[t]his contact supersedes and

takes the place of a certain land contract between the parties dated July 1, 2009 and

recorded July 1, 2009, under Instrument No. 200907010027037, which former contract

the parties declare void and of no further effect."

       {¶11} It is appellant's position that the acknowledged language in the August 1,

2011 land installment contract refers back to the three prior land installment contracts.

The final land installment contract, which appellant argues commenced in May 2006,

states, "[t]he Vendee has paid $40,489.84 down payment prior to the execution of this

contract, the receipt of which Vendor acknowledges."
Stark County, Case No. 2012CA00117                                                      5


        {¶12} Appellant does not contest that she was forced to renegotiate the original

May 2006 land installment contract because she failed to fulfill the conditions, thereby

entering into additional contracts in 2008 and 2009, with the final contract on August 1,

2011.

        {¶13} In its decision filed May 24, 2012, approved and confirmed by the trial

court, the magistrate found the provisions of R.C. 5313.07 had not been met because

appellant had not been paying on the land installment contract for five years. It is

undisputed that the 20% purchase price provision was not fulfilled.       The trial court

determined the language of the August 1, 2011 land installment contract specifically

stated all previous contracts were null and void, forfeited the land contract, and ordered

the writ of restitution of the property.

        {¶14} Upon review, we concur with the trial court's evaluation.

        {¶15} The sole assignment of error is denied.
Stark County, Case No. 2012CA00117                                            6


      {¶16} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                      _s/ Sheila G. Farmer_______________



                                      s/ W. Scott Gwin__________________



                                      s/ Patricia A. Delaney_______________

                                                   JUDGES



SGF/sg 315
[Cite as Smith v. Williams, 2013-Ohio-1228.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



MARTIN N. SMITH                                :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
AGATHA MARTIN WILLIAMS                         :
                                               :
        Defendant-Appellant                    :        CASE NO. 2012CA00117




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

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                               _s/ Sheila G. Farmer_______________



                                               s/ W. Scott Gwin__________________



                                               s/ Patricia A. Delaney_______________

                                                           JUDGES
