[Cite as Sode v. Muskingum Cty. Court of Common Pleas, 2019-Ohio-4647.]


                                     COURT OF APPEALS
                                 MUSKINGUM COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


JERRY and BRENDA SODE                           :           JUDGES:
                                                :
        Petitioners                             :           Hon. John W. Wise, PJ.
                                                :           Hon. Patricia A. Delaney, J.
                                                :           Hon. Earle E. Wise Jr., J.
-vs-                                            :
                                                :
MUSKINGUM COUNTY COURT                          :           Case No. CT2019-0044
OF COMMON PLEAS, et al.                         :
                                                :
                                                :
        Respondent                              :           OPINION



CHARACTER OF PROCEEDING:                                    Writ of Prohibition



JUDGMENT:                                                   DISMISSED


DATE OF JUDGMENT ENTRY:                                     November 7, 2019



APPEARANCES:

For Petitioner:                                             For Respondent:

Peter D. Traska                                             D. Michael Haddox
Michelle L. Traska                                          Prosecuting Attorney
Traska Law Firm, LLC                                        Muskingum County
4352 Pearl Road, Suite A                                    Mark A. Zanghi
Cleveland, Ohio 44109                                       Assistant Prosecuting Attorney
                                                            P.O. Box 189
                                                            27 North 5th Street, Suite 201
                                                            Zanesville, Ohio 43702-0189
Delaney, J.

       {¶1}    On May 24, 2019, Petitioners, Jerry and Brenda Sode, filed a Complaint in

Prohibition against Respondents, Muskingum County Court of Common Pleas; Judge

Mark C. Fleegle; and Matthew J. Lutz, Muskingum County Sheriff (“Respondents”). The

Sodes seek an order from this Court vacating Respondent, Judge Fleegle’s April 24, 2019

order of sale that for the third time ordered for sale the four parcels of property that are

the subject of this writ. The Sodes also ask this Court to order the subject parcels forfeited

to the state of Ohio in accordance with R.C. 5723.01(A)(1)-(3). The Muskingum County

Prosecutor, on behalf of Respondents, has moved to dismiss the Sodes’ Complaint for

Writ of Prohibition under Civ.R. 12(B)(6).

       {¶2}   The purpose of a Civ.R. 12(B)(6) motion is to test the sufficiency of the

complaint. State ex rel. Boggs v. Springfield Loc. School Dist. Bd. of Edn., 72 Ohio St.3d

94, 95, 647 N.E.2d 788 (1995). In order for a case to be dismissed for failure to state a

claim, it must appear beyond doubt that, even assuming all factual allegations in the

complaint are true, the nonmoving party can prove no set of facts that would entitle that

party to the relief requested. Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884

N.E.2d 1067, ¶10. Further, in considering a motion to dismiss under Civ.R. 12(B)(6), a

court is permitted, under Civ.R. 10, to consider written instruments if they are attached to

the complaint. (Citations omitted.) Natl. City Mtge. Co. v. Wellman, 174 Ohio App.3d 622,

2008-Ohio-207, 883 N.E.2d 1122, ¶17 (4th Dist.).

       {¶3}   Under this standard, we now turn to the facts of this case. The Sodes own

real property located at 1619 Pershing Road, Zanesville, Ohio. Respondent, Judge

Fleegle, is currently presiding over a tax foreclosure action concerning four parcels of
property adjacent to the Sodes’ property. The four parcels are vacant land formerly owned

by National Plumbing Pottery. The foreclosure action pertaining to these four parcels of

land commenced on May 1, 2018 (Case No. CV 2018-0044). Muskingum County

obtained default judgment on July 30, 2018, and ordered the statutorily required sheriff’s

sales the same day. Thereafter, sheriff’s sales were conducted on October 18, 2018, and

November 8, 2018, but the parcels never sold. The sheriff subsequently returned the

order on November 14, 2018 indicating “NO BID / NO SALE.”

        {¶4}    On November 16, 2018, the trial court issued several notices to potentially

interested parties as required by R.C. 5723.01(A)(1)-(3). The notified parties included a

political subdivision, school district, and county land reutilization corporation. None of the

notified parties petitioned for forfeiture of the parcels. On December 14, 2018, the

Muskingum County Prosecutor moved for forfeiture to the state of Ohio. Respondent,

Judge Fleegle, denied the motion for forfeiture to the state on March 29, 2019, and

thereafter on April 24, 2019 ordered the parcels for sale again. Respondent, Sheriff

Matthew Lutz, scheduled the four parcels for sale on May 30, 2019. This Court issued a

Judgment Entry on May 28, 2019 staying the scheduled sheriff’s sale during the pendency

of this writ.

        {¶5}    The   Sodes    allege   Respondent,      Judge    Fleegle,   “patently   and

unambiguously lacked jurisdiction to order a third sale.” Complaint in Prohibition, ¶22.

They maintain under R.C. 5723.01(A)(2), the court was required to forfeit the property to

the state and therefore, Respondent, Judge Fleegle, lacked jurisdiction to enter the third

sale order on April 24, 2019. Id. The Sodes further allege they have an interest in the four

parcels at issue because they became the subject of a purchase agreement between
them and the Muskingum County Land Reutilization Corporation (“MCLRC”) in April 2018,

which the Sodes assert is reflected in its meeting minutes from April 24, 2018. Id. at ¶9.

These minutes provide:


        New Submittals:


        1. Jerry and Brenda Sode DBA A-One Towing of 1619 Pershing Rd.

              submitted a bid of $5,000.00 for 10 parcels making up the former

              National Plumbing and Pottery property. They plan to clean up

              property and fence in to secure for business use. Foreclosure process

              has been started on this property. J. Porter made a motion to move

              to (sic) treasurer at high priority for foreclosure process, acquire the

              property and sell to Jerry and Brenda Sode when land bank has

              possession. J. Huey seconded the motion All were in favor. Motion

              carried.


       {¶6}     The Sodes further point out that on December 11, 2018, the

MCLRC affirmed its intent to sell the property to them once the MCLRC obtained

title. The minutes indicate:


        Dustin Daniels of 4901 Old Coopermill Rd, Zanesville, submitted an offer

        of $80,000 for the National Plumbing property at 1730 Dearborn St.

        Parcel #62-28-02-01-000; 62-29-01-01-000; 62-29-01-07-000; 83-01-05-

        07-000 for industrial development. The Board decided to honor the

        previous motion to accept the offer on April 24, 2018 from Jerry & Brenda

        Sode (A-One Towing) for $5,000.
       {¶7}   The Sodes maintain that based on the MCLRC meeting minutes and their

efforts to clean-up and rehab the four parcels in question, they are entitled to the relief

requested in their Complaint in Prohibition.

                                 Statute of Frauds and Standing

       {¶8}   We will not address the merits of the Sodes’ Complaint in Prohibition as we

find they do not have standing to bring this original action. The Sodes’ request for relief

is based on the underlying premise that they have a purchase agreement with the

MCLRC. However, the documents attached to the Sodes’ Complaint in Prohibition

indicate that is not the case. The Sodes have no written purchase agreement with the

MCLRC and the MCLRC does not currently own the four parcels in dispute. Instead, the

Sodes rely on minutes from the April 24, 2018 MCLRC meeting wherein it is noted that

foreclosure had commenced on the four properties and once the MCLRC acquired the

properties it would sell the properties to the Sodes. See Complaint in Prohibition, ¶9.

       {¶9}   The law is well-established in Ohio that an oral agreement to sell real estate

is not enforceable under the statute of frauds, with a few equitable exceptions, such as

partial performance and/or the doctrine of promissory estoppel. (Citations omitted.)

Hunter v. Green, 5th Dist. Coshocton No. 12-CA-2, 2012-Ohio-5801, ¶¶27, 31. The

purpose of the statute of frauds is to provide “greater assurance that the parties and the

public can reliably know when * * * a transaction occurs[,]” because it has been reduced

to a writing and is signed.” N. Coast Cookies, Inc. v. Sweet Temptations, Inc., 16 Ohio

App.3d 342, 348, 476 N.E.2d 388 (8th Dist.1984). Ohio’s statue of frauds codified in R.C.

1335.05 requires certain agreements to be in writing and states:
            No action shall be brought whereby to charge the defendant * * * upon

            a contract or sale of lands, tenements, or hereditaments, or interest in

            or concerning them, * * * 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 or some other person

            thereunto by him or her lawfully authorized.

Further, R.C. 1335.04 states that “[n]o lease, estate, or interest * * * in, or out of lands,

tenements, or hereditaments, shall be assigned or granted except by deed, or note in

writing.”

       {¶10} Here, it is undisputed no written purchase agreement exists between the

Sodes and the MCLRC. Thus, the Sodes oral agreement reflected in the MCLRC’s

minutes does not satisfy the statute of frauds. However, the Sodes make an equitable

argument and maintain they relied on the fact that at the MCLRC’s December 2018

meeting, the MCLRC again reiterated its commitment to obtain the four parcels and sell

them to the Sodes. Affidavit Jerry Sode at ¶7. Further, after the county moved for forfeiture

to the state of Ohio, the Sodes undertook extensive efforts to clear the four lots of

overgrowth, trash, and to improve access to the properties. Id. at ¶8. Mr. Sode estimated

the value of these improvements totaled approximately $14,000. Id. Thus, the question

becomes whether these actions remove this transaction from the statute of frauds.

       {¶11} In Delfino v. Paul Davies Chevrolet, Inc., 2 Ohio St.2d 282, 209 N.E.2d 194

(1965), paragraph four of the syllabus, the Ohio Supreme Court addressed the issue of

part performance and the statute of frauds explaining:
        Part performance to be sufficient to remove an agreement from the

        operation of the statute of [frauds] * * * must consist of unequivocal acts

        by the party relying upon the agreement, which are exclusively referable

        to the agreement and which have changed his position to his detriment

        and make it impossible or impractical to place the parties in statu quo.

       {¶12} Further, to be entitled to enforce an oral contract for the sale of land, the

one claiming to have purchased the land must have performed acts which changed his

position to his prejudice in reliance on that promise. Tier v. Singrey, 154 Ohio St. 521, 97

N.E.2d 20 (1951), paragraph two of the syllabus. Thus, possession of land does not

remove the sale of that land from the operation of the statute of frauds. Id. at 526. Only

“[p]art performance of the contract may constitute a ground for relief from the statute of

frauds, of which possession is usually an element.” Id.

       {¶13} Admittedly, the Sodes made improvements to the four parcels relying on

the MCLRC’s promise to sell the land to them. However, there is no evidence the Sodes

partially performed the alleged contract with the MCLRC, which is required to take this

matter outside the operation of the statute of frauds. Because the cleaning up of the four

parcels and improved access to them were not contract terms between the Sodes and

the MCLRC, the Sodes’ improvements to the property do not equate to part performance

of the contract. The improvements the Sodes made to the four parcels benefited them,

on the belief that someday they would own the parcels. The improvements were not done

as part performance of any contractual obligations to the MCLRC.

       {¶14} Promissory estoppel also does not take this matter outside the statute of

frauds. “Courts generally apply the promissory-estoppel exception to the statute of frauds
defense ‘only in narrow circumstances.’ ” HAD Ents. v. Galloway, 192 Ohio App.3d 133,

145, 2011-Ohio-57, 948 N.E.2d 473, ¶26 (4th Dist.), citing Beaverpark Assoc. v. Larry

Stein Realty Co., 2nd Dist. Montgomery No. 14950, 1995 WL 516469, *5 (Aug. 30, 1995).

In order for promissory estoppel to apply, there must be “either a misrepresentation that

the statute of fraud’s requirements have been complied with or a promise to make a

memorandum of        the   agreement.” Id. Neither applies here. There was                  no

misrepresentation that the statute of frauds’ requirements had been satisfied. The

MCLRC knew it could not enter into the required purchase agreement to satisfy the statute

of frauds because it did not own the four parcels. Further, the MCLRC never made a

promise, in its minutes to enter into a memorandum of its agreement with the Sodes.

       {¶15} Therefore, because the Sodes do not have an enforceable purchase

agreement, under the statute of frauds, they lack standing to pursue their Complaint in

Prohibition. “Standing” is defined as “[a] party’s right to make a legal claim or seek judicial

enforcement of a duty or right.” Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio

St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶27, citing Black’s Law Dictionary 1442 (8th

Ed.2004). A party must establish standing to sue before a court can consider the merits

of a legal claim. Ohio Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320, 643 N.E.2d 1088

(1994). “Standing ‘relates to whether a party has a personal stake in the outcome’ of a

case, and a lack of standing may require a court to dismiss an action.” (Citations omitted.)

Thies v. Wheelock, 2017-Ohio-8605, 100 N.E.3d 903, ¶10 (2d Dist.).

       {¶16} “ ‘[A] party lacks standing to invoke the jurisdiction of the court unless he

has, in an individual or representative capacity, some real interest in the subject matter

of the action.’ ” (Emphasis sic.) Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio
St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶22, quoting State ex rel. Dallman v.

Franklin Cty. Court of Common Pleas, Franklin Cty., 35 Ohio St.2d 176, 179, 298 N.E.2d

515 (1973).

       {¶17} Thus, in order for the Sodes to establish standing, they must show they

suffered “(1) an injury that is (2) fairly traceable to the defendant’s allegedly unlawful

conduct, and (3) likely to be redressed by the requested relief.” Moore v. City of

Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶22, citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

These three factors comprise the constitutional minimum for standing. Lujan at 560.

Finally, “[i]t is well settled that standing does not depend on the merits of the [petitioners’]

contention that particular conduct is illegal or unconstitutional. Rather, standing turns on

the nature and source of the claim asserted by the [petitioners.]” Moore at ¶ 23, citing

Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

        {¶18} Here, the MCLRC’s April 24, 2018 minutes reflect the Sodes have an oral

agreement with the MCLRC to purchase the four parcels at issue once the MCLRC

obtains ownership of the properties. Because this oral promise from the MCLRC to the

Sodes does not constitute a valid purchase agreement, under the statute of frauds, the

Sodes have no personal stake in the outcome of the forfeiture proceedings. That is, they

have no purchase agreement to enforce and therefore, have no standing to challenge

Judge Fleegle’s decision to schedule a third auction for the sale of the four parcels. We

therefore grant Respondents’ Motion to Dismiss under Civ.R. 12(B)(6) because the Sodes

can prove no set of facts entitling them to the relief requested in their Writ of Prohibition.
       {¶19} Finally, we note the Sodes have not been denied the opportunity to

purchase the four parcels. They can still do so at the third sheriff’s sale, although the price

of the four parcels may be in excess of what the MCLRC indicated it would sell the parcels

for once it obtained ownership.

       {¶20} For the foregoing reasons, we grant Respondents’ Motion to Dismiss under

Civ.R. 12(B)(6). The stay issued by the Court on May 28, 2019, is hereby lifted.

       {¶21} MOTION GRANTED.

       {¶22} CAUSE DISMISSED.

       {¶23} COSTS TO PETITIONERS.

       {¶24} IT IS SO ORDERED.



By, Wise, John, P.J.

Delaney, J. and

Wise, Earle, J. concur.
