[Cite as Marion v. Hoffman, 2010-Ohio-4821.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             MARION COUNTY




CITY OF MARION,

        PLAINTIFF-APPELLANT,                           CASE NO. 9-10-23

        v.

TOM HOFFMAN,                                           OPINION

        DEFENDANT-APPELLEE.




                        Appeal from Marion Municipal Court
                           Trial Court No. CRB 09 01091

                      Judgment Reversed and Cause Remanded

                           Date of Decision: October 4, 2010




APPEARANCES:

        Steve E. Chaffin for Appellant

        Jeff Ratliff for Appellee
Case No. 9-10-23


PRESTON, J.

          {¶1} Plaintiff-appellant, the City of Marion (hereinafter “the City”),

appeals the Marion Municipal Court’s judgment entry dismissing the complaint

filed against defendant-appellee, Tom Hoffman (hereinafter “Hoffman”).        We

reverse.

          {¶2} On March 9, 2008, a fire damaged a house owned by Hoffman

located at 312 Andrews Court in Marion, Ohio. (D’s Ex. 1); (Oct. 22, 2009 Tr. at

7, 27).

          {¶3} On February 10, 2009, Judy Rawlins, the Marion City Zoning

Inspector, sent Hoffman a certified letter notifying him that the house, which had

not been repaired since the fire, was in violation of Marion City Code Sections

1360.01(A),(C), (F), & (G). (Oct. 22, 2009 Tr. at 6-8, 13); (P’s Ex. A). Rawlins

informed Hoffman that the house was a nuisance and, if he failed to repair the

house or take other appropriate remedial action within sixty (60) days, the City

would demolish it. (Oct. 22, 2009 Tr. at 6-8); (P’s Ex. A).

          {¶4} On April 27, 2009, Rawlins inspected the house and filed a report

noting that Hoffman had failed to take remedial action and was past the sixty-day

deadline. (D’s Ex. 1); (Oct. 22, 2009 Tr. at 15, 20).

          {¶5} On May 13, 2009, Rawlins filed a complaint in the Marion

Municipal Court alleging that Hoffman was in violation Marion Municipal Code



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Section 1360.99 by failing to abate the nuisance; to wit: the fire-damaged house at

312 Andrews Court. (Doc. No. 1); (Oct. 22, 2009 Tr. at 23).

      {¶6} On June 2, 2009, Hoffman entered a written plea of not guilty to the

violation. (Doc. No. 4). A pre-trial hearing was scheduled for June 22, 2009, and,

thereafter, trial was set for October 1, 2009. (Doc. Nos. 5, 8). Trial was later

rescheduled for October 22, 2009. (Doc. No. 9).

      {¶7} On August 13, 2009, Hoffman and the City entered into an

“agreement,” which provided the following:

      This agreement reached on this 13th day of August 2009[]
      between Tom and Dorothy Hoffman owners of the property at
      312 Andrews Ct. and the City of Marion.

      Hoffman’s agree to release and forfeit $250.00 of any monies
      being held by the City for the remediation of the property
      located at 312 Andrews Ct. and related to the civil matter. This
      does not include any costs involved with the criminal side.

      In addition, Hoffman’s agree to and will provide verification
      that the property will be demolished and upon obtaining the
      proper permits the land cleared of all debris and graded and
      reseed and sewer inspected by City Engineers within 45 days.
      [T]he city engineer will promptly inspect on the same day or the
      next day after first being called by Mr. Hoffman.

      In exchange the City will dismiss any civil and criminal actions
      now pending.

(D’s Ex. 4); (Oct. 22, 2009 Tr. at 31, 39, 48). The document was signed by Tom

and Dorothy Hoffman but not signed by the City prosecutor. (D’s Ex. 4.).




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       {¶8} On September 14, 2009, the City zoning inspector issued a permit

for the demolition of 312 Andrews Ct. to Randy Kramer (hereinafter “Kramer”),

Hoffman’s contractor. (D’s Ex. 3); (Magistrate’s Decision, Doc. No. 18). On

October 1, 2009, Hoffman purchased grass seed for Kramer to reseed the property.

(D’s Ex. 5); (Oct. 22, 2009 Tr. at 41, 44). The post-demolition sewer inspection

was completed on October 2, 2009. (D’s Ex. 3); (Magistrate’s Decision, Doc. No.

18); (Oct. 22, 2009 Tr. at 20).

       {¶9} On October 22, 2009, a trial on the complaint proceeded before a

magistrate. The magistrate allowed Hoffman to present evidence at trial that he

complied with the August 13th agreement. The City objected to the presentation

of this evidence on the basis that it was an offer of compromise and irrelevant as to

whether Hoffman violated the Marion Municipal Code. (Oct. 22, 2009 Tr. at 31-

38). At the close of the evidence, the magistrate took the matter under advisement

and allowed the parties to submit post-trial briefs on the relevancy and affect of

the August 13th agreement that was admitted into evidence. (Id. at 67-68);

(Magistrate’s Order, Doc. No. 11).

       {¶10} On November 16, 2009, Hoffman filed a motion for leave to file a

motion to dismiss with the trial court. (Doc. No. 13). On November 17, 2009, the

trial court granted the motion for leave, and Hoffman filed his motion to dismiss

that same day. (Doc. Nos. 14-15).



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      {¶11} On December 10, 2009, the magistrate issued a decision finding that

the agreement was properly admitted over the City’s objections and

recommending that the trial court dismiss the complaint against Hoffman because

he detrimentally relied upon the agreement. (Doc. No. 18).

      {¶12} On December 15, 2009, the City filed its objections to the

magistrate’s decision. (Doc. No. 19).    On February 16, 2010, the trial court

overruled the objections, adopted the magistrate’s recommendation, and dismissed

the complaint against Hoffman. (Doc. Nos. 20-21).

      {¶13} On February 25, 2010, the City filed a notice of appeal. (Doc. No.

22). The City now appeals raising one assignment of error for our review.

                         ASSIGNMENT OF ERROR

      THE TRIAL COURT ERRED TO THE PREJUDICE OF
      PLAINTIFF-APPELLANT BY DISMISSING THE CHARGES
      BASED UPON INAPPLICABLE LEGAL CONCEPTS.

      {¶14} In its sole assignment of error, the City argues that the trial court

erred in dismissing the complaint against Hoffman by relying upon Santobello v.

New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, which it argues is

inapplicable here since Hoffman did not enter a plea of guilty. Hoffman, on the

other hand, argues that the trial court did not err by relying upon Santobello.

Hoffman also contends that the City was in breach of the agreement, and the

City’s promise to dismiss the complaint should be upheld since he fulfilled the



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terms of the agreement. We conclude that the trial court did err in dismissing the

complaint against Hoffman.

         {¶15} The procedural posture of this case merits some discussion. At trial,

Hoffman asserted his purported compliance with the terms of the parties’

agreement to settle as an affirmative defense. (Oct. 22, 2009 Tr. at 4). Although

the City objected to the relevance1 of the agreement to the merits of the case, the

City did acknowledge that the parties had an “agreement” and admitted that the

complaint should be dismissed if Hoffman complied with the terms of the

agreement. (Id. at 31, 36-37). Alternatively to its relevance argument, the City

asserted that Hoffman had not complied with the terms of the agreement. (Id. at

35). After hearing the evidence, the magistrate took the matter under advisement

and allowed the parties to file post-trial briefs on the relevance and effect of the

parties’ agreement. (Id. at 67-68). Several days after the trial, the trial court

granted Hoffman leave to file a motion to dismiss, and the trial court apparently2

granted this motion in order to dismiss the complaint. (See Doc. Nos. 13-14, 18,

20-21). In light of this unique procedural history, it appears as though the trial

court treated the trial on the merits as a quasi-evidentiary/motion hearing for



1
  Although the City objected to the relevance of the purported agreement at trial, the City failed to object to
the magistrate’s decision on this basis; and therefore, has waived all but plain error related to the admission
of this evidence for purposes of appeal. Civ.R. 53(D)(3)(b)(iv). The City has not argued plain error with
respect to the trial court’s admission of this evidence on appeal.
2
  We say “apparently” because neither the magistrate nor the trial court references the motion to dismiss in
their decision or judgment entry, respectively. (See Doc. Nos. 18, 20-21).


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purposes of reviewing Hoffman’s subsequently filed motion to dismiss.

        {¶16} Therefore, this appeal stems from the trial court’s decision to dismiss

a complaint after hearing evidence regarding an alleged breach of an agreement

between the prosecution and a criminal defendant. In order to reach its decision,

the trial court made both factual and legal determinations. As an appellate court,

we must defer to the trial court’s findings of fact if they are supported by

competent, credible evidence. State v. Stanley, 7th Dist. No. 99-C.A.-55, 2002-

Ohio-3007, ¶39, citing State v. Williams (1986), 23 Ohio St.3d 16, 19, 490 N.E.2d

906 and State v. Rossiter (1993), 88 Ohio App.3d 162, 166, 623 N.E.2d 645.

However, we review the trial court’s conclusions of law de novo. Id., citing

Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm (1995), 73 Ohio St.3d 107,

108, 652 N.E.2d 684. See, also, State v. Johnson, 2010 Ark. 77, 2010 WL 565243.

        {¶17} Agreements3 between the prosecution and a suspect, an accused, or a

criminal defendant4 are reviewed using general principles of contract law. State v.

Small (1987), 41 Ohio App.3d 252, 255, 535 N.E.2d 352; Stanley, 2002-Ohio-

3007, at ¶50; State v. Reimsnyder II (May 2, 1997), 6th Dist. No. E-96-006, at *11;

State v. Crosby (Apr. 25, 1995), 5th Dist. No. 93-CA-57, at *2. A trial court’s




3
  The cases cited herein involve non-prosecution agreements (a.k.a. cooperation agreements or cooperation-
immunity agreements) or informal immunity agreements. While we recognize that the agreement here is
neither a non-prosecution agreement nor an informal immunity agreement, we believe that the agreement is
analogous to those types of agreements for purposes of this case.
4
  Whether one is a suspect, an accused, or a criminal defendant depends upon when the agreement is made.


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decision to dismiss a criminal case as a remedy for the prosecution’s breach of

such an agreement is reviewed for an abuse of discretion. U.S. v. Johnson (C.A. 8,

1988), 861 F.2d 510, 512, citing Santobello, 404 U.S. at 263; Com. v. Sluss

(1999), 14 Va.App. 601, 606, 419 S.E.2d 263; State v. Lummus (1989 Iowa App.),

449 N.W.2d 95, 96. See, also, State v. Busch (1996), 76 Ohio St.3d 613, 669

N.E.2d 1125 (trial court’s decision to dismiss sua sponte under Crim.R. 48(B) is

reviewed for an abuse of discretion). An abuse of discretion implies that the

court’s decision was unreasonable, arbitrary, or unconscionable, and not merely an

error of judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840

N.E.2d 1032, ¶130, citations omitted. When applying an abuse of discretion

standard, an appellate court may not substitute its judgment for that of the trial

court. State v. Herring (2002), 94 Ohio St.3d 246, 255, 762 N.E.2d 940.

       {¶18} With the applicable standard of review in mind, we now examine the

evidence presented at trial (or quasi-evidentiary/motion hearing) relevant to the

parties’ agreement. Hoffman testified that, under the terms of the agreement, he

was required to demolish the house, fill in the basement, level the property, and

plant grass seed all within forty-five (45) days of signing the agreement. (Oct. 22,

2009 Tr. at 38-39). The parties agreed that the agreement was signed on August

13, 2009. (Id. at 39, 59); (D’s Ex. 4). Hoffman admitted, however, that the

property had not yet been reseeded and that there were a “couple pieces” of debris



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that were “probably” on his property. (Id. at 39). Concerning the debris, Hoffman

testified that his contractor, Kramer, was also demolishing the neighbor’s house,

and Kramer pushed some debris from the neighbor’s house onto his property. (Id.

at 43). Hoffman also identified defendant’s exhibit two (2) as a photograph of the

property, which photograph demonstrated that: the house had been demolished,

the basement had been filled in, and the property had been roughly leveled. (Id. at

42); (D’s Ex. 2). However, a stack of straw bales and a pile of debris along the

property’s back fence were also visible in the picture. (D’s Ex. 2).

       {¶19} Hoffman’s wife, Dorothy, identified defendant’s exhibit two (2) as a

photograph of 312 Andrews Court that she took the morning before trial (Oct. 22,

2009). (Id. at 54-55). Dorothy further testified that her husband had complied with

the terms of the agreement, “other than the grass seed.” (Id. at 56-57). Dorothy

testified that the agreement required all of the work to be completed within forty-

five (45) days after they signed the agreement on August 13, 2009. (Id. at 59).

Dorothy, again, admitted that the property had not been reseeded as of the day of

the trial, even though the agreement required that the property to be reseeded by

the end of September 2009. (Id.).

       {¶20} Judy Rawlins, the Marion City zoning inspector, testified that she

conducted a further inspection of Hoffman’s property the day of or the day before

trial. (Id. at 10). Rawlins testified about that inspection as follows:



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       Q: Now, and as of today I believe, or yesterday, did you
       conduct an additional inspection --
       A: Yes.
       Q: -- of the property? And there’s been some testimony that
       the property -- that the structure’s now been demolished, is that
       true?
       A: Yeah.
       Q: But are there other matters that still remain to be done with
       this property?
       A: As part of our demolition specs, I believe it’s Part G on that
       first page, it’s how they have to grade the property, make sure
       any other debris has been removed, no rutting, it needs to be
       seeded.
       THE COURT:          I’m sorry, would you repeat that last
       statement?
       A: That it needs to be seeded.
       THE COURT:          Okay.
       Q: And that hasn’t been done, has it?
       A: No, they’ve been working on the grading it appears, but it’s
       not totally done. [T]here’s still some piles of debris towards the
       back of the lot.
       Q: So, as of April 27th there have been [sic] no demolition
       whatsoever, and as of today there’s still additional items that
       remain to be done to be in full compliance, is that correct?
       A: Yes.

(Id. at 10-11).

       {¶21} After reviewing the evidence, we conclude as a matter of law that

Hoffman materially breached the agreement by failing to completely level the

property, remove all debris, and reseed the property within forty-five (45) days

after the agreement was signed. Stonehenge Land Co. v. Beazer Homes Invests.,

L.L.C., 177 Ohio App.3d 7, 19, 893 N.E.2d 855, quoting Luntz v. Stern (1939),

135 Ohio St. 225, 237, 20 N.E.2d 241 (“when the facts presented in a case are



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undisputed, whether they constitute performance or a breach of the contract, is

question of law for the court.”).

       {¶22} Generally, the time of performance is not of the essence. Brown v.

Brown (1993), 90 Ohio App.3d 781, 784, 630 N.E.2d 763, citing Lake Ridge

Academy v. Carney (Oct. 16, 1991), 9th Dist. No. 91CA005063, at *10, citing

Kirby v. Harrison (1853), 2 Ohio St. 326. Some courts have found that time is of

the essence when a contract specifies a date for performance. Domigan v.

Domigan (1933), 46 Ohio App. 542, 546, 189 N.E. 860; Lindamood v. Clark (June

18, 1981), 2nd Dist. No. CA-7123; Newman v. Hurni (Dec. 30, 1993), 6th Dist.

No. 92WM000022; Calabrese v. Vukelic (Dec. 14, 1995), 7th Dist. No. 94-J-37.

But see Brown, 90 Ohio App.3d at 785. Furthermore, the nature of the contract

itself or the circumstances under which it was negotiated can make time of the

essence. Brown, 90 Ohio App.3d at 784, citing Lake Ridge Academy, supra;

Green, Inc. v. Smith (1974), 40 Ohio App.2d 30, 317 N.E.2d 227; Juratovac v.

Gerl (Oct. 2, 1980), 8th Dist. No. 41841. See, also, Wilson v. Uwaydah, 3d Dist.

No. 15-01-19, 2002-Ohio-2735, ¶18, citing Stults & Associates, Inc. v. United

Mobile Homes, Inc. (Oct. 14, 1998), 3d Dist. No. 9-97-66. When time is of the

essence, any delay in performance is generally viewed as a material breach. See,

e.g., Klausing v. Chef Solutions, Inc., 3d Dist. No. 1-07-34, 2007-Ohio-6014, ¶7,




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Case No. 9-10-23


citing Morton Bldgs., Inc. v. Correct Custom Drywall, Inc., 10th Dist. No. 06AP-

851, 2007-Ohio-2788, ¶30.

      {¶23} Here, the agreement not only specified that performance be

completed within forty-five (45) days after Hoffman signed the agreement, the

nature and circumstances under which the agreement was formed indicates that

time was of the essence. At its core, the agreement provided that the prosecutor

would dismiss the complaint against Hoffman and forgo trial if Hoffman abated

the nuisance at 312 Andrews Court. (D’s Ex. 4). Although the trial was not

actually held until October 22, 2009, when the parties negotiated the agreement on

August 13, 2009, trial was set for October 1, 2009. (Doc. No. 8). September 27,

2009 was forty-five (45) days after the agreement was signed, which is only a few

days prior to the originally scheduled trial date. Under these circumstances, we

find that time was of the essence and, as such, Hoffman’s failure to perform within

the agreement’s specified time period was a material breach.          Aside from

Hoffman’s admitted failure to perform within the time period provided by the

agreement, Hoffman failed to perform even after the date for performance passed,

but prior to the date of trial (24 days later). As such, Hoffman not only failed to

perform on time, he frustrated the essential purposes of the agreement—to abate

the nuisance, avoid trial, and settle the case—and therefore, Hoffman has not

substantially performed. Hansel v. Creative Concrete & Masonry Constr. Co., 148



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Ohio App.3d 53, 2002-Ohio-198, 772 N.E.2d 138, ¶12 (“For the doctrine of

substantial performance to apply, the part unperformed must not destroy the value

or purpose of the contract.”).    Hoffman’s material breach of the agreement

nullifies the prosecution’s agreement to dismiss the charges and forgo prosecution.

Small, 41 Ohio App.3d at 255, citing U.S. v. Wood (C.A. 11, 1986), 780 F.2d 929,

cert. denied, (1986), 479 U.S. 824, 107 S.Ct. 97, 93 L.Ed.2d 48; U.S. v. Castaneda

(C.A. 5, 1998), 162 F.3d 832, 836; U.S. v. Fitch (C.A. 6, 1992), 964 F.2d 571,

575; U.S. v. Brown (C.A. 8, 1986), 801 F.2d 352, 354.

      {¶24} Both the magistrate and the trial court implicitly acknowledged in

their decisions that Hoffman failed to comply with the terms of the agreement but

found that the City should, nonetheless, be bound by its promise to dismiss the

complaint because of Hoffman’s detrimental reliance. (Doc. Nos. 18, 20). We

disagree.

      {¶25} To begin with, Hoffman’s failure to comply with the terms of the

agreement amounted to a material breach of the agreement for the reasons

aforementioned. Detrimental reliance is an element of the equitable doctrine of

promissory estoppel. See, e.g., Karnes v. Doctors Hosp. (1990), 51 Ohio St.3d

139, 142, 555 N.E.2d 280. Estoppel, however, may be nullified if the party

asserting it has “unclean hands.” Collins v. Moran, 7th Dist. No. 02 CA 218, 2004-

Ohio-1381, ¶21. “The maxim, ‘he who comes into equity must come with clean



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hands,’ requires only that the [party invoking equity] must not be guilty of

reprehensible conduct with respect to the subject matter of [the] suit.” Marinaro v.

Major Indoor Soccer League (1991), 81 Ohio App.3d 42, 45, 610 N.E.2d 450,

citing Kinner v. Lake Shore & M.S. Ry. Co. (1904), 69 Ohio St. 339, 69 N.E. 614,

paragraph one of the syllabus. Hoffman as the breaching party did not have clean

hands. To force the City, the non-breaching party, to dismiss the complaint when

it was denied the benefit of its bargain—the abatement of the nuisance, forgoing

trial, and settling the case—is inequitable.

       {¶26} Additionally, the trial court’s finding that Hoffman detrimentally

relied upon the City’s promise to dismiss the complaint is not supported by

competent, credible evidence and is contrary to law. As an initial matter, Hoffman

did not enter a plea of guilty thereby giving up substantial constitutional rights in

reliance upon the prosecution’s promise like the defendant in Santabello, 404 U.S.

257. Hoffman was afforded all of his constitutional rights and does not claim

otherwise on appeal. Furthermore, the record fails to demonstrate detrimental

reliance. Specifically, the record fails to demonstrate that, but for the City’s

promise to dismiss the complaint, Hoffman would not have demolished his house.

See 4 AMJUR POF2d 641 (“Detrimental reliance is often denoted as a change of

position or status * * * that is, his acting or refraining from acting in such a

manner and to such an extent as to change his position or status from that which he



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would otherwise have occupied.”). In fact, Hoffman testified at trial that his

decision to demolish the house was due to the fact that his former tenants, who

allegedly incurred damages from the fire, reached an agreement with his insurance

company to seek damages equal to or less than Hoffman’s liability insurance on

the house. (Oct. 22, 2009 Tr. at 49-50). Hoffman explained:

       There was a lawsuit against me and the liability insurance was
       handling, I wasn’t given a whole lot of information unless I
       called and asked for it. I did not want to destroy any evidence
       that could be used to my benefit or their benefit either way. And
       they’re suing me for everything I own. It would be stupid to tear
       it up. It was still, even when I was done it it [sic] was still stupid
       to tear it up. When you got a lawsuit pending against you[,] you
       don’t tear up the evidence. But Jay talked to ‘em and said that
       the attorney made some kind of agreement with ‘em that it
       wouldn’t run over the amount of liability insurance that I had,
       that I didn’t have to worry about it, go ahead and tear it down.

(Id.). When the prosecutor insisted that Hoffman agreed to demolish the house

only after the complaint was filed, Hoffman disagreed and testified, “[w]hen he

told me the liability wouldn’t go beyond my liability insurance, that I didn’t have

to worry about the lawsuit, I agreed to tear it down.” (Id. at 50). Hoffman

consistently insisted throughout cross-examination that he decided to demolish the

house based on the agreement between the parties in the civil suit against him. (Id.

at 51, 52). Under these circumstances, Hoffman has not detrimentally relied upon

the City’s promise to dismiss the complaint.




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       {¶27} Finally, the trial court’s finding of detrimental reliance is contrary to

law. “Estoppel cannot be based upon a promise which only induces the promisee

to do that which he is already legally bound to do.” Northern State Const. Co. v.

Robbins (1969), 76 Wash.2d 357, 362, 457 P.2d 187, citing Western Land Ass’n of

Minnesota v. Banks (1900), 80 Minn. 317, 83 N.W. 192; 28 Am.Jur.2d Estoppel

and Waiver (1966) §77; and 31 C.J.S. Estoppel (1964) §72. See, also, Prentice v.

UDC Advisory Services, Inc. (1995), 271 Ill.App.3d 505, 514, 648 N.E.2d 146;

Barnett v. Kemp (1914), 258 Mo. 139, 167 S.W. 546, 551; Pirkey v. Williams

(C.A. D.C. 1917), 45 App.D.C. 590, 593-94.            According to the city zoning

inspector, Marion City Code required Hoffman to “grade the property, make sure

any other debris has been removed, no rutting, it needs to be seeded” in addition to

simply demolishing the house to abate the nuisance. (Oct. 22, 2009 Tr. at 11).

Since Hoffman was already legally obligated to perform the actions agreed to, the

trial court’s use of equitable estoppel was contrary to law in this case.

       {¶28} For all these reasons, we find that the trial court abused its discretion

by dismissing the complaint against Hoffman. The City was not required to fulfill

its promise to dismiss the complaint since Hoffman materially breached the

agreement. Furthermore, the trial court’s finding of detrimental reliance is not

supported by competent, credible evidence and is contrary to law in this case.




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That being said, nothing in this opinion should be construed as limiting the trial

court’s discretion to do substantial justice with regard to its sentence in this case.

       {¶29} The City’s assignment of error is, therefore, sustained.

       {¶30} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                              Judgment Reversed and
                                                                   Cause Remanded

ROGERS and SHAW, J.J., concur.

/jlr




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