[Cite as Davis v. Meyers, 2012-Ohio-1518.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


SARAH B. DAVIS                                :      JUDGES:
                                              :
                                              :      Hon. W. Scott Gwin, P.J.
                       Plaintiff-Appellant    :      Hon. Sheila G. Farmer, J.
                                              :      Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :      Case No. 2011CA00103
DON MEYERS                                    :
                                              :
                                              :
                      Defendant-Appellee      :      OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Canton Municipal Court,
                                                  Case No. 2010 CVF 5225


JUDGMENT:                                         REVERSED AND REMANDED



DATE OF JUDGMENT ENTRY:                           March 27, 2012



APPEARANCES:

For Appellant:                                       For Appellee:

EDMOND J. MACK                                       DANIEL J. FUNK
MARIA C. KLUTINOTY                                   ERIC J. STECZ
Tzangas, Plakas, Mannos & Raies, Ltd.                Baker, Dublikar, Beck, Wiley &
220 Market Ave. S.                                   Mathews
8th Floor                                            400 S. Main St.
Canton, OH 44702                                     North Canton, OH 44720
[Cite as Davis v. Meyers, 2012-Ohio-1518.]


Delaney, J.

        {¶1}     Plaintiff-Appellant Sarah B. Davis appeals the March 25, 2011 judgment

entry of the Canton Municipal Court.

                             FACTS AND PROCEDURAL HISTORY

        {¶2}     Defendant-Appellee Don Meyers owns a tract of land consisting of 3.84

acres in Osnaburg Township, Stark County, Ohio. Meyers’s tract is dissected by U.S.

Route 30, with part located on the north side of the highway and part located on the

south side of the highway. Davis owns a parcel of land adjacent to the northern portion

of Meyers’s land.

        {¶3}     In 2006, Davis’s son approached Meyers to ask if he would sell the

northern portion of his property to Davis. On May 26, 2006, Davis and Meyers met at

Meyers’s home to enter into an agreement for Davis to purchase the northern portion of

Meyers’s property. The parties utilized a pre-printed form entitled “General Agreement.”

The General Agreement lists Meyers as the first party and Davis as the second party.

The General Agreement states, “[i]n consideration of the mutual promises and

agreements herein stated and other good and valuable consideration, the receipt and

sufficiency of which is hereby acknowledged, the parties agree as follows: 1. The First

Party agrees that: * * *. 2. The Second Party Agrees that: * * *.” Meyers and Davis did

not complete this section of the agreement.

        {¶4}     Section 3 of the General Agreement states, “[t]he parties mutually agree

that the following additional terms will be applicable.” Meyers and Davis handwrote the

following: “purchase price $3500; paid ck #3850 $500; balance $3000; on north side of

Rt. 30 (only); seller agrees to pay $400.00 for surveying [sic] by Don Meyer; Aggreeyed
Stark County, Case No. 2011CA00103                                                     3


[sic] by buyer – Sarah Davis.” The General Agreement is signed by Davis and Meyers.

Beneath the signatures of the parties, the parties wrote, “Buyer agrees to pay $410.00;

Seller will pay $200.00 to process paperwork.”      That note is dated “1-4-06” and is

signed by Meyers and Davis.

       {¶5}   Unbeknownst to Davis at the time she entered into the General

Agreement, Meyers’s property was secured by a mortgage from Wells Fargo.

       {¶6}   Shortly thereafter, the parties met with an attorney to assist them in

closing on the property. The attorney told the parties she would only do a quitclaim

deed to transfer the property. Meyers was aware that in order to sell the property, the

mortgage on the property would have to be released. Meyers was willing to try to work

and get the release. However, the parties did not complete the closing at that time.

       {¶7}   At the end of 2006, the parties met with another attorney to assist with

closing.   Davis alleged that Meyers stated he wanted to clear at least $2,000.00,

requiring Davis to pay more in fees and costs. Davis objected to the change in terms

and the closing did not occur at that time.

       {¶8}   While the parties were attempting to close, Davis incurred expenses to

obtain a survey of the property and an appraisal of the property. She incurred expenses

working county and township offices for the transfer of the property.

       {¶9}   In 2009, Davis retained an attorney to close on the property. The attorney

learned there was a mortgage on the property and he made an application for release of

the mortgage.    The attorney, however, could not complete the transaction because

Wells Fargo would not grant a partial release of the mortgage. Davis was not aware
Stark County, Case No. 2011CA00103                                                       4


that even if an application for partial release was made, Wells Fargo could decline to

grant the partial release.

       {¶10} After the deal fell apart a third time, Davis stopped pursuing the real estate

contract and instead filed suit for breach of contract against Meyers in the Canton

Municipal Court requesting as damages the funds she spent in attempting to close on

the property.

       {¶11} The trial court held a bench trial on the matter on March 24, 2011. On

March 25, 2011, the trial court issued its judgment entry finding the General Agreement

did not comply with the Statute of Frauds. Because the contract violated the Statute of

Frauds, there was no binding agreement and therefore, no breach of contract. The trial

court further found if the contract was found to be enforceable, the denial of Wells Fargo

to grant a partial release of the mortgage was a defense to Meyers’s nonperformance of

the contract.

       {¶12} It is from this decision Davis now appeals.

                              ASSIGNMENTS OF ERROR

       {¶13} Davis raises three Assignments of Error:

       {¶14} “I. THE TRIAL COURT ERRED IN FINDING THAT A CONTRACT IS

UNENFORCEABLE FOR FAILING TO STATE THE INTEREST TO BE CONVEYED.

       {¶15} “II. THE TRIAL COURT ERRED IN FINDING THAT THE CONTRACT

WAS UNEFORCEABLE FOR FAILING TO SPECIFY WHAT DUTY THE SELLER HAD

TO OBTAIN A PARTIAL RELEASE OF THE MORTGAGE.

       {¶16} “III. THE TRIAL COURT ERRED IN HOLDING THAT WHERE A PARTY’S

NONPERFORMANCE OF THE CONTRACT IS ATTRIBUTABLE TO A THIRD
Stark County, Case No. 2011CA00103                                                        5


PARTY’S ACTIONS, IT IS A COMPLETE DEFENSE TO A BREACH OF CONTRACT

CLAIM.”

                                        ANALYSIS

                                   Standard of Review

       {¶17} Before we address Davis’s Assignments of Error, we recite the standard of

review applicable to a breach of contract case.

       {¶18} This matter was heard at a trial to the court. As an appellate court, we are

not fact finders; we neither weigh the evidence nor judge the credibility of witnesses.

Our role is to determine whether there is relevant, competent and credible evidence

upon which the fact finder could base his or her judgment. Peterson v. Peterson, 5th

Dist. No. CT2003-0049, 2004-Ohio-4714, ¶ 10, citing Cross Truck v. Jeffries, 5th Dist.

No. CA-5758, 1982 WL 2911(Feb. 10, 1982).

       {¶19} It is a fundamental principle in contract construction that contracts should

“be interpreted so as to carry out the intent of the parties, as that intent is evidenced by

the contractual language.” Skivolocki v. East Ohio Gas Company, 38 Ohio St.2d 244,

313 N.E.2d 374 (1974), paragraph one of the syllabus. A reviewing court should give

the contract's language its plain and ordinary meaning unless some other meaning is

evidenced within the document. Alexander v. Buckeye Pipe Line Company (1978), 53

Ohio St.2d 241, 374 N.E.2d 146 (1978). If the terms of the contract are determined to

be clear and unambiguous, the interpretation of the language is a question of law

reviewed de novo on appeal. State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 628

N.E.2d 1377 (1994). Under a de novo review, an appellate court may interpret the
Stark County, Case No. 2011CA00103                                                    6


language of the contract substituting its interpretation for that of the trial court.

Children's Medical Center v. Ward, 87 Ohio App.3d 504, 622 N.E.2d 692 (1993).

                                         I., II.

      {¶20} In this case, the trial court determined the General Agreement was not in

compliance with the Statute of Frauds. The trial court first found in its March 25, 2011

judgment entry the General Agreement failed to designate the nature of the interest in

the land to be conveyed. The trial court then found the General Agreement was silent

as to Meyers’s duty to obtain a partial release of the mortgage held by Wells Fargo.

Davis argues in her first and second Assignments of Error the trial court erred in its

application of the Statute of Frauds to the General Agreement.

      {¶21} The Statute of Frauds is codified in Chapter 1335 of the Ohio Revised

Code. Pursuant to R.C. 1335.05:

      {¶22} 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.

      {¶23} Courts have struggled with the question of what writing is sufficient to

satisfy the Statute of Frauds. In Hunter v. Green, 5th Dist. No. 09-CA-0010, 2010-Ohio-

1460, ¶ 28, we stated: “A signed memorandum is sufficient to satisfy the Statute of

Frauds so long as it (1) identifies the subject matter of the agreement; (2) establishes

that a contract has been made; and (3) states the essential terms with reasonable

certainty.” Id. quoting Landskroner v. Landskroner, 154 Ohio App.3d 471, 2003-Ohio-
Stark County, Case No. 2011CA00103                                                      7

4945, 797 N.E.2d 1002; See also Doane v. Blood, 5th Dist. No. CA-8579, 1991 WL

242080 (Oct. 21, 1991).

       {¶24} The trial court first found in its judgment entry the General Agreement

violated the Statute of Frauds because the agreement did not state the interest in the

property to be conveyed to Davis, i.e., a lease, easement, life estate, or fee simple.

Upon our de novo review, we find the Statute of Frauds requires identification of the

property, but it is not necessary for compliance with the Statute of Frauds to identify in

the real estate contract the nature of the interest to be conveyed.

       {¶25} The Seventh District Court of Appeals in McGee v. Tobin reviewed the

status of Ohio law as to the sufficiency of a description of property in a real estate

contract necessary to comply with the Statute of Frauds:

              The Ohio Supreme Court has held that the Statute of Frauds does

       not require that real estate “be described with the particularity used in a

       deed or a formal contract. To so hold would render nugatory the provision

       of the statute that ‘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.”’ (Emphasis sic.) Sanders v. McNutt

       (1947), 147 Ohio St. 408, 410, 72 N.E.2d 72. Rather, to comply with the

       statute of frauds, the memorandum “must definitely point out the particular

       land to be conveyed or must furnish the means of identifying it with

       certainty.” Schmidt v. Weston (1948), 150 Ohio St. 293, 82 N.E.2d 284,

       paragraph three of the syllabus.
Stark County, Case No. 2011CA00103                                                        8


              Courts have approved a variety of different ways in which parties

       have chosen to describe property subject to the statute of frauds. For

       instance, identifying the subject of the agreement as “property located at

       4228 New Portage road” without describing the property in any other way

       satisfies the statute of frauds. Id. Likewise, identifying property as “the

       store at Beachwood Place Mall in Beachwood, Ohio known as Sweet

       Temptations” satisfies the statute of frauds. N. Coast Cookies at 349, 476

       N.E.2d 388; see also Mason v. Meyers, 3rd Dist. No. 13-99-13, 1999-

       Ohio-0943 (Identifying property “as the Meyers Woods on TR 183 situated

       in Seneca County, Ohio,” satisfies the statute of frauds); Walkana v.

       Hanna (Oct. 28, 1988), 7th Dist. No. 87 C.A. 174 (Identifying property as

       “10251 Calla Road, Green Township, Salem, Ohio,” satisfies statute of

       frauds). As the Ohio Supreme Court said in Schmidt, these descriptions

       are sufficient because they can be applied and no other information need

       be supplied. Id. at 300, 82 N.E.2d 284.

McGee v. Tobin, 7th Dist. No. 04 MA 98, 2005-Ohio-2119, ¶ 19-20.

       {¶26} In this case, the parties identified the property to be sold as “on north side

of Rt. 30 (only).” (General Agreement, Plaintiff’s Exhibit 5.) The trial court found no

error in this description, nor do the parties argue this description was faulty. As such,

we find the identification of the property complies with the Statute of Frauds.

       {¶27} Meyers agrees the Statute of Frauds does not require every element to be

included in the real estate contract. Meyers does not cite to any case law to support the

trial court’s legal conclusion regarding the identification of the nature of the interest in
Stark County, Case No. 2011CA00103                                                       9


the property to be conveyed, in addition to the identification of the property. Meyers

instead argues the failure to include the nature of the conveyance is not demonstrative

of a violation of the Statute of Frauds, but rather shows there was a defective contract

between Davis and Meyers. Meyers states without an expression of the nature of the

interest of the property to be conveyed to Davis, there was no meeting of the minds

when the parties entered into the General Agreement.            “In order to declare the

existence of a contract, both parties to the contract must consent to its terms; there

must be a meeting of the minds of both parties; and the contract must be definite and

certain.” Sigler v. State, 5th Dist. No. 08-CA-79, 2009-Ohio-2010, ¶ 82, citing Episcopal

Retirement Homes v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369, 575

N.E.2d 134 (1991).

       {¶28} Meyers’s argument fails as a matter of law. In McCarty v. Lingham, 111

Ohio St. 551, 146 N.E. 64 (1924), the Supreme Court of Ohio held, “where a sale of real

estate is made in general terms, without any stipulation as to the character of title which

the purchaser is to get, he is entitled to demand that a marketable title shall be given.”

The Court then described what was a marketable title:

             As to what constitutes a marketable title no hard and fast rule can

       be declared to govern every state of facts which might be presented in the

       numerous controversies which are likely to arise where such a title is

       implied in a sale contract drawn in general terms, and each case is

       therefore sui generis. Some attorneys are more technical than others in

       advising their clients upon the defects of greater or less importance to be

       found in an abstract of title, and some purchasers are more timid than
Stark County, Case No. 2011CA00103                                                    10


      others, and the court can therefore do nothing more than establish a very

      general rule. As a result of the numerous expressions of the courts on this

      subject, it may be conservatively stated that a marketable title is one

      which imports such ownership as insures to the owner the peaceable

      enjoyment and control of the land, as against all others. It has also been

      defined as one which is sufficient to support or defend an action of

      ejectment. It should show a full and perfect right of possession in the

      vendor. It should appear reasonably certain that the title will not be called

      in question in the future, so as to subject the purchaser to the hazard of

      litigation with reference thereto. It must in any event embrace the entire

      estate or interest sold, and that free from the lien of all burdens, charges,

      or incumbrances which present doubtful questions of law or fact.

Id.

      {¶29} While in reference to deeds, R.C. 5302.04 lends support to the description

of a marketable title.   The statute elucidates the inclusive language used in land

conveyances:

      In a conveyance of real estate or any interest therein, all rights,

      easements, privileges, and appurtenances belonging to the granted estate

      shall be included in the conveyance, unless the contrary is stated in the

      deed, and it is unnecessary to enumerate or mention them either

      generally or specifically.

R.C. 5302.04.
Stark County, Case No. 2011CA00103                                                       11


       {¶30} We find then Meyers’s argument there was no enforceable contract due to

the failure to include the nature of the interest in the property to be conveyed is not

supported by law. The facts of the case also support the conclusion the contract does

not fail on this basis. There are no facts in evidence that Meyers did not intend to sell

Davis his property in fee simple.

       {¶31} In order for a real estate contract to comply with the Statute of Frauds, it is

necessary the signed memorandum identify the subject matter, establish a contract has

been made, and state the essential terms with reasonable certainty. The Statute of

Frauds does not require that real estate “be described with the particularity used in a

deed or a formal contract,” which would include the nature of the interest in the property

to be conveyed.

       {¶32} Davis’s first Assignment of Error is sustained.

       {¶33} The trial court next determined the General Agreement violated the

Statute of Frauds because the agreement was silent as to Meyers’s duty to remove any

encumbrances to the property, specifically, a partial release of the Wells Fargo

mortgage. Agreements to discharge or release a mortgage is within the Statute of

Frauds and must be in writing because a mortgage is an interest in the land. Douglas

Co. v. Gatts, 8 Ohio App.3d 186 (11th Dist.1982). However, the facts in the case sub

judice create a different result as that in Douglas Co. v. Gatts.

       {¶34} In Douglas Co. v. Gatts, Gatts sold a parcel of land to the Ravenna Plaza

Associates. The balance due on the property was evidenced by a note and secured by

a mortgage held by Gatts. Ravenna Plaza Associates sold the property to the Douglas

Company. Before the sale, Gatts as mortgagee allegedly made an oral agreement with
Stark County, Case No. 2011CA00103                                                      12


the Douglas Company to discharge the mortgage for $100,000 from the Douglas

Company. The Douglas Company stated it tendered the money and Gatts refused to

discharge the mortgage. The Eleventh District Court of Appeals held an oral agreement

to release or discharge a mortgage, which is an interest in the land, is within the Statute

of Frauds. Id.

       {¶35} The facts in this case can be differentiated from those in Douglas Co. v.

Gatts. In the present case, Wells Fargo holds the mortgage on the property in question

and only Wells Fargo has the authority to release the mortgage. Meyers testified he

knew he had a duty to apply for a partial release of his mortgage from Wells Fargo. If

Wells Fargo agreed to release the mortgage on Meyers’s property, the agreement to

release the mortgage must be in writing pursuant to the Statute of Frauds. As opposed

to Douglas Co. v. Gatts, there was no agreement between Davis and Wells Fargo to

release the mortgage on the property.

       {¶36} As stated above, in order to satisfy the Statute of Frauds, the writing must

identify the subject matter, establish that a contract has been made, and state the

essential terms of the agreement. Davis’s second Assignment of Error raises the issue

of the essential terms of the agreement. Is the duty to apply for a release of a mortgage

an essential term of the agreement so that it complies with the Statute of Frauds? In

McGee v. Tobin, the court answered it was not:

              Because the statute of frauds only requires that the memorandum

       contain the essential terms of the agreement, it need not contain all the

       terms of the agreement. N. Coast Cookies at 349, 476 N.E.2d 388. This

       is similar to the more general rule that parties cannot enter into an
Stark County, Case No. 2011CA00103                                                      13


       enforceable contract unless they come to a meeting of the minds on the

       essential terms of the contract. See Alligood v. Procter & Gamble Co.

       (1991), 72 Ohio App.3d 309, 311, 594 N.E.2d 668. In those cases, courts

       have identified the essential terms of a contract as “the identity of the

       parties to be bound, the subject matter of the contract, consideration, a

       quantity term, and a price term.” Id. This does not change in the statute

       of frauds context. Accordingly, a contract does not violate the statute of

       frauds merely because the writing does not state a specific date for

       performance. N. Coast Cookies at 349, 476 N.E.2d 388; Schafer v. Faylor

       (1944), 74 Ohio App. 533, 539, 60 N.E.2d 339. “A contrary rule would

       require every written contract for the sale of realty interests to contain the

       date for transfer of possession. Common experience rejects such a rule.”

       Id. Likewise, a written contract for a sale of land need not include the

       character of the deed to be executed, specify who should pay taxes on the

       sale, or state whether a mortgage must be given to secure the purchase

       money in order for the contract to comply with the statute of frauds.

       Schafer at 540, 60 N.E.2d 339.

McGee v. Tobin, at ¶ 24.

       {¶37} Further, it has been held that “[a] title need not be free if any possible

claim of defect in order to be marketable, but it must be in a condition as would satisfy a

buyer of ordinary prudence.” G/GM Real Estate Corp. v. Susse Chalet Motor Lodge of

Ohio, Inc., 61 Ohio St.3d 375, 575 N.E.2d 141 (1991), paragraph two of syllabus.
Stark County, Case No. 2011CA00103                                                                   14


        {¶38} Meyers’s argument there was no meeting of the minds as to the duty to

apply for a release of the mortgage is disingenuous. While Davis did not know at the

time of entering into the agreement there was a mortgage on the property, Meyers

testified at the bench trial that he knew he had a duty to apply for a release of the

mortgage. (T. 11.) Davis learned of the mortgage when she worked with her third

attorney to close on the property and they worked to apply for a release of the mortgage

without success.

        {¶39} Davis’s second Assignment of Error is sustained.

                                                  III.

        {¶40} In her third Assignment of Error, Davis argues the trial court erred in

finding even if the General Agreement was enforceable under the Statute of Frauds,

Meyers has a complete defense to the breach of contract because Wells Fargo refused

to partially release the mortgage. Meyers argues this Court need not reach this issue

because Davis’s previous Assignments of Error should be overruled.                       As we have

sustained the first and second Assignments of Error, we find this issue to be ripe for our

review.

        {¶41} It was found Meyers had a defense to a breach of contract because

“[n]onperformance of a condition is excused where performance thereof is prevented by

the other party.” Dynes Corp. v. Seikel, Koly & Co., Inc. 100 Ohio App.3d 620 (8th

Dist.1994). In this case, there is no allegation or evidence Davis prevented Meyers

from obtaining a partial release of the mortgage from Wells Fargo.1


1
  There is an affirmative defense to a breach of contract entitled “impossibility of performance.”
Impossibility of performance occurs where, after the contract is entered into, an unforeseen event arises
rendering impossible the performance of one of the contracting parties. State v. Curtis, 2nd Dist.
No.2008CA22, 2008-Ohio-5643.
Stark County, Case No. 2011CA00103                                                   15


       {¶42} We sustain Davis’s third Assignment of Error based on the facts presented

in this case.

       {¶43} Davis goes on to argue because of the general obligation to convey a

marketable title, Meyers had an obligation to obtain a release of the mortgage from the

property and is therefore in breach of contract. We decline to reach this issue and

remand the matter to the trial court for its determination whether there was a breach of

contract.

                                    CONCLUSION

       {¶44} We sustain Davis’s first, second, and third Assignments of Error. We

therefore remand the matter to the trial court to determine whether there was a breach

of contract and if so, would damages be warranted.

       {¶45} The judgment of the Canton Municipal Court is overruled and the March

25, 2011 judgment is reversed and remanded for further proceedings consistent with

this opinion.

By: Delaney, J.
Gwin, P.J. and
Farmer, J. concur.


                                       HON. PATRICIA A. DELANEY



                                       HON. W. SCOTT GWIN



                                       HON. SHEILA G. FARMER

PAD:kgb
[Cite as Davis v. Meyers, 2012-Ohio-1518.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT

SARAH B. DAVIS                                 :
                                               :
                                               :
                       Plaintiff-Appellant     :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
DON MEYERS                                     :
                                               :
                                               :   Case No. 2011CA00103
                      Defendant-Appellee       :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Canton Municipal Court is reversed and remanded for further proceedings consistent

with this opinion and judgment. Costs assessed to Appellee.




                                             HON. PATRICIA A. DELANEY



                                             HON. W. SCOTT GWIN



                                             HON. SHEILA G. FARMER
