[Cite as Palmer v. Mossbarger, 2015-Ohio-231.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          MADISON COUNTY




MARC A. PALMER,                                  :
                                                       CASE NO. CA2014-04-011
        Plaintiff-Appellant,                     :
                                                              OPINION
                                                 :             1/26/2015
   - vs -
                                                 :

JANYTH MOSSBARGER, et al.,                       :

        Defendants-Appellees.                    :



         CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                            Case No. CVH20130071



Farthing & Stewart LLP, John H. Farthing and Brian S. Stewart, 233 South Scioto Street,
Circleville, Ohio 43113, for plaintiff-appellant

Kiger & Kiger, James A. Kiger, 132 South Main Street, Washington C.H., Ohio 43160-2275,
for defendant-appellee, Janyth Mossbarger

Richard G. Murray, II, 88 West Mount Street, Columbus, Ohio 43215, for defendant-appellee,
Tamara Moulton



        M. POWELL, J.

        {¶ 1} Plaintiff-appellant, Marc Palmer, appeals a decision of the Madison County

Court of Common Pleas granting summary judgment to defendant-appellee, Janyth

Mossbarger, in an action for waste regarding a 64-acre farm in Mt. Sterling, Ohio.

        {¶ 2} In May 2000, Mossbarger's husband died, leaving her a life estate in the
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property, with remainder to three of his relatives from a previous marriage.          Timothy

Mossbarger is one of the relatives and remaindermen. Mossbarger and her husband did not

live on the property, but rather rented the land and the residence. After her husband's death,

Mossbarger continued to cash rent the land and the residence as a source of income.

Mossbarger is 78 years old. In 2011, Palmer offered to cash rent the land for $12,700 a

year. Mossbarger rejected the offer. Subsequently, on August 26, 2011, Palmer purchased

Timothy Mossbarger's one-third remainder interest for $112,500. Upon acquiring his one-

third interest, Palmer began making demands on Mossbarger via two letters from his

attorney.

       {¶ 3} First, in September 2011, Palmer requested the name and address of the

tenants, as well as documents regarding the fertility of the soil, harvest and yields from

previous years, written rental agreements, and insurance policies. Palmer also expressed his

desire to purchase Mossbarger's life estate interest. Mossbarger ignored Palmer's requests.

Then, in November 2011, Palmer requested the same documents, again expressed his

desire to purchase Mossbarger's life estate interest, and threatened to sue her for failing to

protect his one-third interest in the property. Once again, Mossbarger ignored Palmer's

demands.

       {¶ 4} On March 18, 2013, Palmer filed a complaint against Mossbarger, alleging she

was committing waste to the property by failing, inter alia, to maintain, repair, or demolish

buildings on the property, obtain insurance coverage, inspect the heating, well, and septic

system, and provide Palmer with copies of the written rental agreements, recent soil tests,

yields, and fertilizer invoices. The complaint alleged that Mossbarger's failure to protect and

preserve the property constituted voluntary and permissive waste under R.C. 2105.20 and

consequently sought the forfeiture of Mossbarger's life estate interest.

       {¶ 5} Mossbarger moved for summary judgment in February 2014. Attached to her
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motion were, inter alia, an affidavit from her son, Jim East, the purchase agreement between

Palmer and Timothy Mossbarger, and the first page of Palmer's responses to interrogatories.

Palmer filed a memorandum in opposition to Mossbarger's motion for summary judgment.

Attached to his memorandum were photos of the property taken in August 2012 and a Soil

Analysis Report from November 2012.           Mossbarger filed a response to Palmer's

memorandum and attached Palmer's responses to interrogatories in their entirety.

Mossbarger's deposition, taken in January 2014, was filed with the trial court on March 6,

2014.

        {¶ 6} On March 11, 2014, the trial court granted Mossbarger's motion for summary

judgment. Upon finding that Palmer's interest in the property did not begin until August 26,

2011, when Palmer purchased the property in "as is" condition, the trial court held that:

              There is no evidence presented in either * * * pleadings that
              would allow reasonable minds to conclude that the condition of
              the property has in any way deteriorated from the time that
              [Palmer] purchased his remainder interest. [Palmer] is primarily
              relying on photos taken sometime prior to August 27, 2012 and
              soil samples taken November 7th and analyzed on November 14,
              2012. There is nothing in the pleadings or exhibits that would
              allow a reasonable person to conclude that the property is in any
              different condition today as it was on the date that [Palmer]
              purchased his interest. The Court concludes that the doctrine of
              caveat emptor applies and therefore [Mossbarger's] motion for
              summary judgment is granted.

        {¶ 7} Appellant appeals, raising one assignment of error:

        {¶ 8} THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION FOR

SUMMARY JUDGMENT.

        {¶ 9} Palmer argues the trial court erred in granting Mossbarger's motion for

summary judgment because (1) as the moving party, Mossbarger failed to meet her initial

burden of demonstrating she did not commit any acts of waste; (2) by contrast, Palmer met

his burden of demonstrating there is a genuine issue of material fact as to whether


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Mossbarger committed acts of waste; and (3) the trial court improperly applied the doctrine of

caveat emptor to bar Palmer's claim of waste of a life estate.

       {¶ 10} At the outset, we find the trial court erred in applying the doctrine of caveat

emptor to bar Palmer's claim of waste. The doctrine of caveat emptor applies to sales of real

estate relative to conditions open to observation. Kearns v. Huckaby, 12th Dist. Butler No.

CA2005-12-507, 2006-Ohio-5196, ¶ 17.            As this court has stated, "[w]here disputed

conditions are discoverable and the purchaser has the opportunity for investigation and

determination without concealment or hindrance by the seller, the purchaser has no just

cause for complaint." Pearson v. Ewing, 12th Dist. Madison No. CA2013-07-026, 2014-Ohio-

645, ¶ 21.

       {¶ 11} In the case at bar, Palmer is not alleging the property was in a worse condition

when he purchased the remainder interest in August 2011 than the seller, Mossbarger's

stepson, represented it to be. That is, Palmer is not attacking the condition of the property

prior to or at the time of his purchase. Rather, Palmer challenges the manner in which the

property has been treated since his purchase in August 2011 and alleges Mossbarger has

committed waste to the property and allowed its condition to get worse. While the doctrine of

caveat emptor may apply to what one has purchased, it does not bar a claim of waste for

deterioration subsequent to the purchase caused by a life tenant's acts of waste.

Nonetheless, we find the trial court properly granted Mossbarger's motion for summary

judgment.

       {¶ 12} Summary judgment is proper when the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations

of fact, if any, show that (1) there is no genuine issue of any material fact; (2) the moving

party is entitled to judgment as a matter of law; and (3) the evidence submitted can only lead

reasonable minds to a conclusion which is adverse to the nonmoving party. Civ.R. 56(C);
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Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). The moving party

bears the initial burden of informing the court of the basis for the motion and demonstrating

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293

(1996). Once this burden is met, the nonmoving party has a reciprocal burden to set forth

specific facts showing there is some genuine issue of material fact yet remaining for the trial

court to resolve. Id.

       {¶ 13} In determining whether a genuine issue of material fact exists, the court must

answer the following inquiry: "Does the evidence present a sufficient disagreement to require

submission to a jury or is it so one-sided that one party must prevail as a matter of law?"

Wilson v. Maple, 12th Dist. Clermont No. CA2005-08-075, 2006-Ohio-3536, ¶ 18. In

determining whether a genuine issue of material fact exists, the evidence must be construed

in favor of the nonmoving party. Walters v. Middletown Properties Co., 12th Dist. Butler No.

CA2001-10-249, 2002-Ohio-3730, ¶ 10. An appellate court reviews a trial court's decision to

grant or deny summary judgment de novo, without any deference to the trial court's

judgment. Bravard v. Curran, 155 Ohio App.3d 713, 2004-Ohio-181, ¶ 9 (12th Dist.).

       {¶ 14} R.C. 2105.20 governs actions against a life tenant for waste and provides:

              A tenant for life in real property who commits or suffers waste
              thereto shall forfeit that part of the property, to which such waste
              is committed or suffered, to the person having the immediate
              estate in reversion or remainder and such tenant will be liable in
              damages to such person for the waste committed or suffered
              thereto.

By forbidding the life tenant to commit or suffer waste, "R.C. 2105.20 forbids the tenant for

life from permanently diminishing the property value by acting contrary to how a reasonable

prudent person would act to preserve his own property." Reel v. Reel, 11th Dist. Trumbull

No. 2014-T-0023, 2014-Ohio-5079, ¶ 14.

       {¶ 15} "Waste" has been defined as "an unlawful act or omission of duty on the part of

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the tenant which results in a permanent injury to the inheritance." Underwood v. Lowe, 6th

Dist. Sandusky No. S-84-30, 1985 WL 7505, *2 (June 7, 1985). Waste is categorized as

either voluntary or permissive. Id. Voluntary waste is willful waste. Id. Permissive waste

"arises from the neglect, omission, sufferance, or permission of the tenant in failing to

preserve or protect the estate." Reams v. Henney, 88 Ohio App. 409, 410 (2d Dist.1950).

       {¶ 16} Because an action under R.C. 2105.20 "is a special statutory proceeding and

forfeitures, generally, are not favored by the law, the evidence must be strictly construed."

Rzeszotarski v. Sanborn, 11th Dist. Geauga No. 96-G-1906, 1996 WL 649111, *6 (June 7,

1996); Folden v. Folden, 90 Ohio Law Abs. 218 (4th Dist.1962). "[N]ot every instance of

waste on the part of the life tenant which results in a permanent injury to the inheritance is

actionable." Underwood at *3. Whether waste has been committed depends on the nature

of the property and the particular facts and circumstances in each case. Id., citing Mohler v.

Mohler, 23 Ohio Law Abs. 138, 1936 WL 2139 (9th Dist.1936).

       {¶ 17} We find that Mossbarger met her initial burden of demonstrating there was no

genuine issue of material fact as to whether her management of the property constituted acts

of waste. Attached to her motion for summary judgment was the affidavit of Jim East, her

son. The affidavit states that (1) when Mossbarger's late husband purchased the property,

all the buildings "were in a state of disrepair and in fact should have been torn down, except

the dwelling house, which needed some repair;" (2) Mossbarger's late husband "simply cash

rented the land during the latter years of his life and made no substantial improvements to it;"

and (3) "in the last two years, Mossbarger has through her tenant farmer improved the

residence property and it is currently rented."

       {¶ 18} The affidavit further states that the property's average yields for soybeans was

47 bushels per acre for the year 2012-2013, when grown, corn averages 200 bushels per

acre, and the "tenant farmer pays $250 per acre cash rent, which is the average rent in that
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part of Madison County, Ohio." The affidavit also expressed East's belief that the tenant

farmer initially employed by Mossbarger's late husband and later retained by Mossbarger "did

engage in good farming practices, maintained the soils and paid an average amount of cash

rent for the acreage over a number of years to [Mossbarger and her late husband]." We find

that in light of East's affidavit, Mossbarger discharged her initial burden under Civ.R. 56 with

regard to Palmer's claim of waste.

        {¶ 19} We further find that the trial court properly granted Mossbarger's motion for

summary judgment. Attached to Palmer's memorandum in opposition to Mossbarger's

motion for summary judgment were photos of the property taken in August 2012 and a Soil

Analysis Report from November 2012.1 Evidence submitted by the parties also includes

Mossbarger's deposition.

        {¶ 20} The photos clearly depict the general poor condition of the property, including

broken or cut tree limbs on the ground, and the deteriorated condition of buildings on the

property. According to Palmer, the November 2012 Soil Analysis Report shows that the

property's soil is below average to support farming operations. The report itself is a list of

various numbers and percentages regarding three different soil samples.                             No written

explanatory document accompanies the report.

        {¶ 21} In her deposition, Mossbarger testified that (1) the residence on the property is



1. In his memorandum opposing summary judgment, Palmer states that "in deposition testimony, [his] expert
witness Mike Lower [who analyzed the property soil] testified that the results showed the soil had been allowed to
fall well below average quality for farming operations. See Soil Test Results, attached hereto as Exhibit B." The
deposition referenced by Palmer was never transcribed nor filed with the trial court, and therefore does not
comply with Civ.R. 56(C). There is no evidence the trial court considered the foregoing statement. Likewise, we
will not consider it. See French v. New Paris, 12th Dist. Preble No. CA2010-05-008, 2011-Ohio-1309. We
further note that the photos and the report submitted by Palmer are not sworn, certified or authenticated by
affidavit, and are therefore not proper evidence under Civ.R. 56(C) and (E). See Diaz v. Henderson, 12th Dist.
Butler No. CA2011-09-182, 2012-Ohio-1898. Nonetheless, because Mossbarger did not object to their
admissibility below and because the trial court considered both the photos and the report in granting summary
judgment to Mossbarger, we will likewise consider them despite their noncompliance with Civ.R. 56. French at ¶
12; Ohio City Orthopedics, Inc. v. Med. Billing And Receivables, Inc., 8th Dist. Cuyahoga No. 81930, 2003-Ohio-
1881, ¶ 5, fn. 1.
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currently rented but there is no written lease, (2) she has not been to the house in a few

years and has not been on the property in a couple of years, (3) however, the photos taken in

August 2012 depict what she recalls the condition of the property to be, (4) the property has

been farmed by the same family for a long time, and (5) she received $12,200 in cash rent in

2013 for the property and will receive the same amount in 2014. She also testified that (1)

she has an insurance policy on the property and the residence but not on the other buildings

on the property, (2) she relies on her son and the tenants to keep her informed of the

condition of the property and any needed repairs, (3) whenever she has been told about

needed repairs, she took care of it, (4) the last such repair was in 2013 for the well on the

property, (5) about seven years ago, there were some problems with the residence's heating

system and she had someone make the necessary repairs, and (6) her expenses for the

property include real estate taxes, any repairs for the residence, and insurance.

       {¶ 22} Upon carefully reviewing the evidence submitted by the parties, which must be

strictly construed in an action for waste, we find that the evidence is so one-sided that

Mossbarger is entitled to judgment as a matter of law. As stated earlier, waste is defined as

"an unlawful act or omission of duty on the part of the tenant which results in a permanent

injury to the inheritance." Underwood, 1985 WL 7505 at *2. Photos submitted by Palmer

clearly show the poor condition of the property and buildings and the fact that the quality of

maintenance of the property is not of the highest degree. However, most items of disrepair

are the result of fair wear and tear, and other items, such as the tree limbs on the ground,

could easily be removed from the property and do not permanently diminish the value of the

property. There is nothing in the pleadings or exhibits that would allow a reasonable person

to conclude that the property is in any different condition today than it was when managed by

Mossbarger's late husband or on the date Palmer purchased his one-third remainder interest.

There is simply no evidence that would allow reasonable minds to conclude that the condition

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of the property during Mossbarger's life estate has worsened and depreciated.

       {¶ 23} Palmer cites a decision of the Fifth Appellate District to support his claim that

Mossbarger's failure to protect and preserve the property constitutes waste. See Durben v.

Malek, 5th Dist. Tuscarawas No. 2013 AP 08 0032, 2014-Ohio-2611. In that case, Roxanne

Malek purchased sight unseen a property from Anita and Bill Durben. The purchase

agreement provided that the Durbens would have a life estate on a portion of the property

and prohibited them from committing waste on the land. When Malek took possession of the

property four years later, the house was in a deplorable condition. The Durbens filed a

complaint against Malek for replevin and conversion; she asserted a counterclaim for waste

of the life estate and sought damages. Following a bench trial, the trial court found in favor of

Malek with regard to her waste claim.

       {¶ 24} The Fifth Appellate District upheld the trial court's decision as follows:

              While [Malek] admits she does not know the exact condition of
              the interior of the house in 2007 when she purchased it, from the
              above stated facts including [the Durbens'] own admissions that
              they did nothing to try to clean or maintain the property, it is
              evident that [the Durbens], even accounting for normal wear and
              tear, did not return the building to [Malek] in the condition it was
              in when she purchased the property in 2007.

Durben at ¶ 61. In support of its decision, the appellate court noted that according to Malek,

it was apparent by 2009 that the condition of the house and premises were deteriorating and

getting worse and worse, and photos submitted by Malek depicted the deplorable condition of

the house. In addition,

              Appellant George Durben readily admitted that the situation had
              gotten worse after [Malek] purchased the property. George
              Durben testified that they did nothing to prevent the condition of
              the property from deteriorating or worsening. He admitted that
              they failed to repair the plumbing, the furnace, or anything else
              when it broke. He admitted that they never cleaned the sinks or
              the bath tubs. He further admitted that outside of a failed
              attempt trying to clean the front porch, no repairs were made to
              the property.
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Id. at ¶ 56.

       {¶ 25} We note that in finding that the Durbens had committed waste to the life estate,

it was significant to the appellate court that the condition of the property has worsened during

the Durbens' life estate and since Malek had acquired her interest in the property. We find

that Durben is factually different from the case at bar. Unlike the Durbens, Mossbarger did

not admit that the property had worsened following Palmer's purchase of his one-third

remainder interest, or that she had failed to take care of or make any repairs to the property.

To the contrary, Mossbarger testified she has made any necessary repairs and that the

property and the residence, but not the other buildings, are covered by insurance.

       {¶ 26} Accordingly, Mossbarger is entitled to judgment as a matter of law on the claim

that she violated R.C. 2105.20 by committing waste to the property after Palmer acquired his

one-third remainder interest. The trial court, therefore, did not err in granting her motion for

summary judgment.

       {¶ 27} Palmer's assignment of error is overruled.

       {¶ 28} Judgment affirmed.


       PIPER, P.J., and RINGLAND, J., concur.




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