[Cite as Thies v. Wheelock, 2017-Ohio-8605.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                      MIAMI COUNTY

 PAUL D. THIES                                       :
                                                     :
         Plaintiff-Appellee                          :   C.A. CASE NO. 2017-CA-8
                                                     :
 v.                                                  :   T.C. NO. 14-CV-06
                                                     :
 KENNETH WHEELOCK                                    :   (Civil Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                         Rendered on the 17th day of November, 2017.

                                                ...........

JONATHAN S. ZWEIZIG, Atty. Reg. No. 0069381, 18 East Water Street, Troy, Ohio
45373
      Attorney for Plaintiff-Appellee

ANDREW H. JOHNSTON, Atty. Reg. No. 0088008, 215 W. Water Street, Troy, Ohio
45373
      Attorney for Defendant-Appellant

                                               .............
                                                                                          -2-


FROELICH, J.

       {¶ 1} Kenneth Wheelock appeals from a judgment of the Miami County Court of

Common Pleas, which found that he had breached an oral contract with Paul Thies to

negotiate jointly for the purchase of certain parcels of real property, ordered Wheelock to

transfer the disputed parcels to Thies in specific performance on the contract, ordered

Thies to pay Wheelock $180,000 for the property, and placed the parcels in a constructive

trust until the transfer could be effectuated. For the following reasons, the judgment of

the trial court will be affirmed.

       {¶ 2} On October 14, 2013, Thies and Wheelock attended a real estate auction

in Miami County. Five parcels were for sale, and bids could be made on all of the

properties or any combination of them. Thies represented Waterwheel Farms, Inc., at

the auction, a company owned by Thies and his son. Wheelock was interested in

purchasing all of the properties, but Thies was interested only in parcels 4 and 5.

       {¶ 3} After the bidding had started, Wheelock approached Thies about submitting

a joint bid. Pursuant to their conversation, Thies, who had made bids on parcels 4 and

5, stopped bidding, and Wheelock bid on all five parcels, with the understanding that

Thies would set the amount he was willing to pay for parcels 4 and 5, and Wheelock

would factor this amount into his bid for the five parcels. If the joint bid were successful,

Thies would take title to parcels 4 and 5, and Wheelock would take title to parcels 1, 2,

and 3. No specifics as to the payment of closing costs or the manner of transferring title

and payment were discussed.

       {¶ 4} Wheelock was ultimately the successful bidder on the five parcels, at a price

of $330,000. However, at the end of the auction, Wheelock denied that he had bid on
                                                                                               -3-


parcels 4 and 5 on Thies’s behalf, and Wheelock entered a contract with the sellers to

purchase all five of the parcels in his own name. Wheelock later offered to sell parcels

4 and 5 to Thies, but at a higher price than what Thies had agreed to pay.

       {¶ 5} On January 10, 2014, Thies filed a complaint against Wheelock for specific

performance and damages. He twice amended his complaint and added a claim for

imposition of a constructive trust. On January 14, 2015, the matter was tried to the

bench. The parties also filed post-trial briefs.

       {¶ 6} On April 5, 2017, the trial court entered judgment in favor of Thies. The trial

court found Thies’s version of events to be credible and found Wheelock to be “[a]t the

other end of the credibility spectrum.” (The parties’ testimonies and the other evidence

offered at trial is discussed in more detail below.) The trial court found that the parties

had entered into an oral contract that Thies would refrain from bidding and that Wheelock

would bid on all five parcels, with the understanding that, if Wheelock were the successful

bidder on the parcels, Thies would pay Wheelock $180,000 for the rights to parcels 4 and

5.1

       {¶ 7} The court rejected Wheelock’s argument that the statute of frauds prevented

enforcement of the parties’ agreement; the court concluded that the agreement was not

one for the sale of land (as would fall within the statute of frauds), but for the “right to enter

into a contract for the purchase of real estate from a third party at a specific price.” The

court also rejected Wheelock’s argument that Thies lacked standing to bring the action in

his personal capacity, because he had been at the auction in his capacity as a



1The initial agreement was that Thies would pay $160,000 for parcels 4 and 5 but,
during the course of the auction, Thies authorized an increase to $180,000.
                                                                                        -4-


representative of Waterwheel Farm, Inc. Although the trial court determined that Thies’s

monetary damages were $144,000, “[i]n the alternative to the judgment for damages,” it

granted specific performance on the contract. Further, the court imposed a constructive

trust on parcels 4 and 5 until they were transferred to Thies.

       {¶ 8} Wheelock raises four assignments of error on appeal. We begin with his

first assignment, particularly his argument that Thies lacked standing to bring his claims,

because it presents a threshold issue. We will address the other assignments in an order

that facilitates our discussion.

       Standing

       {¶ 9} Wheelock contends that Thies did not have standing to bring his claim in his

personal capacity, because Thies attended the auction and initially registered to bid and

bid on the parcels in question as a representative for Waterwheel Farms. (Waterwheel

Farms was not a party in this case.)       The trial court acknowledged that Thies had

registered for the auction and initially bid on the parcels as the president of Waterwheel

Farms, and that he did not make any bids in his individual capacity. Nonetheless, it

concluded that he had standing to bring a claim against Wheelock.

       {¶ 10} Article IV, Section 4(B) of the Ohio Constitution provides: “The courts of

common pleas and divisions thereof shall have such original jurisdiction over all

justiciable matters and such powers of review of proceedings of administrative officers

and agencies as may be provided by law.” (Emphasis added.) “ ‘Whether a party has

a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of

that controversy is what has traditionally been referred to as the question of standing to

sue.’ ” Fed. Home Loan Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-
                                                                                       -5-

5017, 979 N.E.2d 1214, ¶ 21, citing Cleveland v. Shaker Hts., 30 Ohio St.3d 49, 51, 507

N.E.2d 323 (1987). 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. Id.

at ¶ 22-23; Gaither v. Wall & Assoc., Inc., 2017-Ohio-765, 79 N.E.3d 620, ¶ 60 (2d Dist.),

citing Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040,

¶ 19.

        {¶ 11} The trial court found that Thies’s agreement with Wheelock was for Thies

to cease bidding on parcels 4 and 5 on behalf of Waterwheel Farm. The court noted that

Thies was acting under the authority of a corporate resolution when he went to the auction

to bid on parcels 4 and 5. Because he did not have express authority to enter into a

separate agreement with Wheelock to negotiate for the properties jointly, Thies entered

his agreement with Wheelock in his own name, with the intention of later conveying or

leasing the property to Waterwheel Farms if he and Wheelock were successful in their

bidding. The trial court concluded that Thies’s “status as a corporate representative did

not preclude him from entering into the agreement in his own name with Wheelock,” and

that “[n]othing in the oral agreement established that Thies was acting on behalf of

Waterwheel [Farms] in the formation of the agreement.”

        {¶ 12} We agree with the trial court’s conclusion. The fact that Thies initially

intended to bid and did bid on the parcels as a representative of Waterwheel Farms did

not preclude him from entering into an oral contract with Wheelock in his personal

capacity. Because Thies entered the oral agreement in his personal capacity, he was

entitled to enforce it in his personal capacity. As such, Thies did not lack standing to

bring an action to enforce the oral contract.
                                                                                             -6-


          Contract Formation

          {¶ 13} Under the first assignment of error, Wheelock also challenges the trial

court’s conclusion that the parties had formed an oral contract; he claims that there was

no meeting of the minds.

          {¶ 14} We defer to the trial court’s findings of fact, but we review the court’s legal

conclusions de novo. Kidd v. Alfano, 2016-Ohio-7519, 64 N.E.3d 1052, ¶ 29 (2d Dist.),

citing Boyd v. Moore, 184 Ohio App.3d 16, 2009-Ohio-5039, 919 N.E.2d 283, ¶ 9 (2d

Dist.).    As we address Wheelock’s argument that the trial court’s judgment was not

supported by the evidence, this court reviews the entire record, weighs the evidence and

all reasonable inferences, considers the credibility of witnesses and determines whether,

in resolving conflicts in the evidence, the trial court clearly lost its way and created such

a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); Buckeye

Retirement Co., LLC v. Busch, 2017-Ohio-4009, 82 N.E.3d 66 (2d Dist.)

          {¶ 15} The trial court made the following findings regarding what transpired at the

auction and the testimony of the witnesses. We quote a portion of the trial court’s

judgment directly, because it reflects the trial court’s weighing of the evidence.

                 The bidding commences at 10:14 am. After some initial bidding by

          Wheelock and another bidder, Dan Garber, Thies2 submitted a bid at 10:26



2 The trial court’s judgment spells the plaintiff’s name as both Theis and Thies. Thies is
the correct spelling, and we have corrected other spellings in this excerpt. We have
also corrected a couple of instances where the trial court referred to Wheelock as
Wheeler.
                                                                                 -7-


a.m. on behalf of Waterwheel for parcels 4 and 5 in the amount of $160,000.

After the Thies bid, Wheelock came over to the table where Thies was

located and discussed with him the merits of Wheelock submitting bids on

behalf of both parties.   [Thies] agreed to forgo further bidding and for

Wheelock to bid on all five parcels without additional bids by [Thies]. It was

clearly understood that, if Wheelock was the successful bidder, [Thies]

would end up with parcels 4 and 5, and Wheelock with parcels 1, 2 & 3.

       As the bidding progressed, parcels 1, 2 and 3 were the subject of

increased bids, but there were no higher bids on 4 and 5 until bidder number

one, Dan Garber, bid $170,000 at 11:28. This bid made Garber’s total bids

for all five parcels to be $310,000. Garber’s bid was $5,000 higher than

the previous bid by Wheelock of $305,000. At that point, Thies walked over

to the table where Wheelock was seated and handed him a piece of paper

increasing the amount Thies would pay for parcels 4 and 5 to $180,000.

       At 11:34, a little over five minutes from the last Garber bid, Wheelock

increased his bid to $315,000.     At 11:37, Garber increased his bid on

parcels 1, 2 and 3 to $155,000, which, combined with his earlier bid of

$170,000 on parcels 4 & 5 resulted in a total bid of $325,000. Less than

two minutes later, Wheelock entered the winning bid for $330,000. From

the time of the single bid by [Thies on behalf of Waterwheel], which was

about 11 minutes after the start of the auction, until the winning bid an hour

and 13 minutes later, Waterwheel did not make any additional bid on

parcels 4 and 5.
                                                                                  -8-


       At the conclusion of the auction, Wheelock would not agree that he

had bid on parcels 4 and 5 on behalf of [Thies], and entered into a contract

with the seller to purchase all five parcels in his name for the winning bid.

During discussions with Thies, Wheelock did tell [Thies] he would sell him

parcels 4 and 5 but it would be for more than $180,000.

       During the trial, the plaintiff’s witnesses were Jerry Stichter, the

auctioneer, Don Leis, a realtor, the defendant, Kenneth Wheelock, and the

plaintiff, Don Thies.   Kenneth Wheelock testified for the defense.          In

reaching this decision and verdict, the court has taken into account the

credibility of the witnesses. In particular, the court felt that testimony of

Don Leis was the most credible of all witnesses who testified for either party.

His testimony was thoughtful, honest and frank when answering questions.

When cross examined about how he could recall the events of the auction

fifteen months earlier, Leis testified that he went home after the auction and

wrote down his recollection of everything that happened because he

anticipated that he would someday be asked about the auction.

       At the other end of the credibility spectrum was the defendant,

Kenneth Wheelock.       Mr. Wheelock’s credibility suffered because his

testimony at trial was different than his testimony at a deposition, and even

different from his testimony earlier in the trial. The credibility issue was

decisive when it came to the difference in accounts of the events at the

auction. For example, Wheelock testified that, during the auction, he went

to the table occupied by Thies and Leis for a second conversation. Both
                                                                                           -9-


       [Thies] and Leis were adamant that Wheelock only came to their table one

       time early on in the auction. Wheelock testified that he came over to

       [Thies’s] table to see if Thies would increase the amount he would pay on

       parcels 4 & 5 beyond $180,000. Wheelock testified that Thies told him that

       he should “use your own judgment” when Thies did not agree to increase

       his contribution to the bid. Wheelock said he took that conversation to

       mean that their agreement for joint bidding was terminated. However, the

       court does not believe that Wheelock came to [Thies’s] table a second time

       and as a consequence does not believe the conversation took place.

       {¶ 16} A contract is generally defined as a promise, or a set of promises,

actionable upon breach.       The essential elements of a contract include an offer,

acceptance, contractual capacity, consideration (the bargained for legal benefit and/or

detriment), a manifestation of mutual assent, and legality of object and of consideration.

The parties must have a “meeting of the minds” as to the essential terms of the contract

in order to enforce the contract. Younce v. Heartland of Centerville, 2016-Ohio-2965, 65

N.E.3d 192, ¶ 38 (2d Dist.)

       {¶ 17} Wheelock argues that the trial court erred in finding that the parties had a

meeting of the minds, but the evidence – and the trial court’s view of its credibility –

support the conclusion that the parties had come to an agreement. The fact that the

parties had not discussed all of the specifics, such as the mechanics of the transfer of title

and who would pay closing costs, did not preclude the court from concluding that there

had been a meeting of the minds. Wheelock does not assert that any of the other

elements of a contract were missing.
                                                                                             -10-


       {¶ 18} Based on our review of the evidence presented at trial, we cannot conclude

that the trial court clearly lost its way or created a manifest miscarriage of justice in finding

that there had been a meeting of the minds and that an oral contract had been entered.

       Statute of Frauds

       {¶ 19} Wheelock’s final argument under his first assignment of error is that the trial

court erred in finding that the statute of frauds did not apply to the parties’ agreement,

which involved “real estate interests.” He asserts that, even if there were a meeting of

the minds, the parties’ agreement was unenforceable because it was not in writing.

       {¶ 20} Ohio’s statute of frauds, R.C. 1335.05, provides: “No action shall be brought

whereby to charge the defendant * * * upon a contract or sale of lands * * * 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 * * *.” Similarly, 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 * * *.” See Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio

St.3d 433, 662 N.E.2d 1074 (1996) (recognizing both R.C. 1335.04 and R.C. 1335.05 as

setting forth Ohio’s statute of frauds).

       {¶ 21} The statute of frauds is “an evidentiary rule” intended to prevent

misunderstandings regarding the sale of land; “to some extent, it can override the intent

of the parties.” Jackson v. Force, 2d Dist. Miami No. 2014-CA-6, 2014-Ohio-3167, ¶ 40.

       The purpose of the statute of frauds is to prevent “frauds and perjuries.”

       Wilber v. Paine (1824), 1 Ohio 251, 255. The statute does so by informing

       the public and judges of what is needed to form a contract and by
                                                                                         -11-


       encouraging parties to follow these requirements by nullifying those

       agreements that do not comply. “[T]he statute of frauds is supposed both

       to make people take notice of the legal consequences of a writing and to

       reduce the occasions on which judges enforce non-existent contracts

       because of perjured evidence.” Kennedy, Form and Substance in Private

       Law Adjudication (1976), 89 Harv.L.Rev. 1685, 1691. “In every case, the

       formality means that unless the parties adopt the prescribed mode of

       manifesting their wishes, they will be ignored. The reason for ignoring

       them, for applying the sanction of nullity, is to force them to be self

       conscious and to express themselves clearly * * *.” Id. at 1692.

Olympic Holding Co., L.L.C. v. ACE Ltd., 122 Ohio St.3d 89, 2009-Ohio-2057, 909 N.E.2d

93, ¶ 33.

       {¶ 22} The question in this case is whether the parties’ agreement to bid on the

property jointly constituted an agreement “upon a contract or sale of lands” or pertaining

to an “interest in” land, so as to come within the requirements of the statute of frauds.

The parties’ agreement, in itself, did not cause any land or interest therein to be

transferred; in fact, when the agreement was made, the parties’ had not yet acquired, and

were not sure that they would acquire, any interest in the parcels that were being

auctioned. Rather, they agreed to bid on the parcels collectively. However, the effect

of the successful bid was to obtain the right to transfer title, which is the stage at which

the dispute between Thies and Wheelock arose.

       {¶ 23} Thies relies on Regan v. Paxton, 6th Dist. Lucas No. L-01-1205, 2002 WL

126077 (Feb. 1, 2002), in support of his argument that the statute of frauds did not apply;
                                                                                            -12-

Wheelock contends that Regan is distinguishable. In Regan, plaintiff-insurance agents

entered into an agreement with defendant-insurance agents to form a new business entity

“for the express purpose of owning, renovating, managing, renting, leasing, depreciating,

dividing, and disposing of property,” and the new entity would own and operate from a

property that was about to be auctioned. The agreement for the formation of the new

business entity was “a partially express and partially implied contract.” Id. at * 3. When

the auction of the property in question was held, the plaintiff-agents were present, but

they did not bid, in reliance on the agreement with the defendant-agents, who were the

successful bidders. The defendant-agents then formed their own business entity, which

took title to the auctioned property. The plaintiff-agents sued for breach of contract

(seeking specific performance), fraud, and tortious interference with a business

relationship. The trial court dismissed the breach of contract claim because the parties’

agreement regarding the property was not in writing.

       {¶ 24} The Sixth District reversed the trial court’s judgment. It found that an “oral

agreement [to] * * * transfer or promise to transfer real property, already owned,” from

one partner or partnership to another, is distinguishable from a claim that “hinges on the

allegation that [one partner was] to purchase the property on behalf of the partnership

and failed to do so.” (Emphasis added.) Id. at * 5. The court held that the statute of

frauds applied to the former type of agreement, but not to the latter.

       {¶ 25} Regan is analogous to Thies’s case because, in both cases, the agreement

at the heart of the breach of contract claim was an agreement to negotiate on behalf of

the other party for the right to have the title transferred to him/it in a separate transaction,

not for the transfer of title itself. In both cases, the party alleged to have breached the
                                                                                          -13-


contract did not hold title to the disputed property when the agreement was entered, and

thus was not yet in a position to enter an agreement to transfer an interest in the property.

       {¶ 26} Thies argues that cases involving options to purchase real property are also

analogous; he cites In re Estate of Stevens, 2d Dist. Champaign No. 2011 CA 26, 2012-

Ohio-1860, ¶ 29. In Stevens, we stated that the exercise of an option to purchase

farmland did “not assign or grant an interest in land, but merely establish[ed] [the] right to

compel performance of the sale,” and thus that the statute of frauds did not apply. Id. at

¶ 29. However, in Stickney v. Tullis-Vermillion, 165 Ohio App.3d 480, 2006-Ohio-842,

847 N.E.2d 29, ¶ 22 (2d Dist.), we held that options to purchase real property do fall within

the statute of frauds. The Sixth District Court of Appeals has also held that options to

purchase real property fall “squarely within the statute of frauds.” Ridge Stone Builders

& Developers, Ltd. v. Gribbin, 6th Dist. Wood No. WD-03-009, 2003-Ohio-5188, ¶ 23,

citing Hubbard v. Dillingham, 12th Dist. Butler No. CA 2002-02-045, 2003-Ohio-1443, ¶

21.

       {¶ 27} In Stevens, the estate owned the property and an heir wanted to exercise

an option granted to him in the will to purchase property. In Stickney, the trust owned the

property and a beneficiary sought to extend the time in which he could exercise an option

to purchase it.

       {¶ 28} This case is much closer to Regan.          It does not involve an option to

purchase real estate that one of the parties to the agreement already owns. Rather, the

essence of agreement in this case and in Regan was that one of the parties would attempt

to purchase property for both of them. Indeed, the subsequent transaction involving the

actual transfer would be within the statute of frauds. But when parties merely enter into
                                                                                          -14-


an agreement which concerns real property, but neither owns the property in question at

the time the agreement is entered, the agreement cannot reasonably be interpreted as

one that is for the sale of land or relates to an interest in land. Under such circumstances,

any potential transfer of the interest in question is contingent on other intervening events,

over which the parties may have limited control, and which may never come to pass at

all. Such an agreement might create a right to compel a subsequent transfer of interest

in real property and may impact future interests in land, but it does not, itself, “charge”

one of the parties “upon a contract or sale of lands” or “assign” or “grant” and interest in

land.

        {¶ 29} We also find this case to be distinguishable from cases in which the statute

of frauds was applied to an oral agreement for the transfer of real property, where a

prerequisite, related sale of real property was in writing, and the alleged oral agreements

conflicted with the written agreements. Such is not the case under the facts of this case.

See Watson v. Erb, 33 Ohio St. 35 (1877) (involving straw man purchase to conceal the

identity of a prospective buyer); Kilbury v. Bennett, 5th Dist. Delaware No. 98-CA-39,

1999 WL 436742 (June 2, 1999) (where purchase agreement, general warranty deed,

and title affidavit executed related to a sale of land that the parties had orally agreed to

partition at a later date made no mention of such an agreement and conflicted with the

alleged oral agreement.)

        {¶ 30} Further, even if we were to find that the statute of frauds applied in this

case, an exception exists where the contract has been partially performed. Mishler v.

Hale, 2014-Ohio-5805, 26 N.E.3d 1260, ¶ 26 (2d Dist.). In order to establish partial

performance, a party asserting it must have undertaken acts that “changed his position
                                                                                          -15-


to his detriment and make it impossible or impractical to place the parties in status

quo.” Lowe v. Phillips, 2d Dist. Montgomery No. 20590, 2005-Ohio-2514, ¶ 20, quoting

Beaverpark Assoc. v. Larry Stein Realty Co., 2d Dist. Montgomery No. 14950, 1995 WL

516469 (Aug. 30, 1995); Delfino v. Paul Davies Chevrolet, Inc., 2 Ohio St.2d 282, 287,

209 N.E.2d 194 (1965) (addressing statute of conveyances, R.C. 5301.01). Thus, a

party seeking to avoid the statute of frauds by virtue of the doctrine of partial performance

must establish, by clear and convincing evidence, that he or she performed acts (1) which

were exclusively referable to the oral agreement to convey land, and (2) which changed

his or her position to his or her prejudice. Geiger v. Geiger, 2d Dist. Montgomery No.

13841, 1993 WL 476247, *2, *4 (Nov. 16, 1993).

       {¶ 31} Partial performance “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,” making it impossible or impractical to place the

parties in status quo; “[i]f the performance can reasonably be accounted for in any other

manner or if plaintiff has not altered his position in reliance on the agreement, the case

remains within the operation of the statute.” Delfino at 287.

       {¶ 32} Thies partially performed his part of the agreement by foregoing his

opportunity to bid on parcels 4 and 5 in his own name and/or on behalf of Waterwheel

Farms. He presented evidence that he changed his position to his detriment based on

his reliance on the parties’ agreement, and Wheelock did not refute this evidence. As

such, even if the trial court had found that the statute of frauds applied, it could also have

reasonably concluded that Thies’s partial performance removed the parties’ oral

agreement from the statute of frauds.
                                                                                       -16-


      {¶ 33} Wheelock’s first assignment of error is overruled.

      Specific Performance

      {¶ 34} In his third assignment of error, Wheelock asserts that the trial court erred

and showed its “hypocrisy” in finding that Thies was “entitled to the extraordinary remedy

of specific performance.”

      {¶ 35} We have recognized “the legal principle that an interest in land is unique;

different locations are not interchangeable.”   Outback/Buckeye-II, Ltd. Partnership v.

Lofino Grandchildren’s Trust, 2d Dist. Greene Nos. 06-CA-2 and 06-CA-44, 2007-Ohio-

577, ¶ 64, citing Sholiton Industries, Inc. v. Wright State Univ., 2d Dist. Greene No. 95-

CA-101, 1996 WL 531587, * 5 (Sept. 20, 1996); see also Holstein v. Crescent

Communities, Inc., 10th Dist. Franklin No. 02AP-1241, 2003-Ohio-4760, ¶ 16 (“real estate

is almost always unique”); A-C Group, Inc. v. Rabe, 5th Dist. Stark No. 5710, 1981 WL

6586, * 2 (Dec. 14, 1981) (because real estate is unique, a buyer is entitled to specific

performance).

      {¶ 36} Specific performance is generally only available where there is no

adequate remedy at law, and courts have recognized the uniqueness of real property, as

discussed above. As such, where real property is involved, the usual duty to prove that

there is no adequate legal remedy where specific performance is sought does not apply.

“[W]here land is the subject matter of the agreement, the jurisdiction of equity to grant

specific performance does not depend upon the existence of special facts showing the

inadequacy of a legal remedy in the particular case. Contracts involving interests in land

* * * generally are specifically enforced because of the clear inadequacy of damages at

law for breach of contract.” (Internal citations omitted.) Gleason v. Gleason, 64 Ohio
                                                                                           -17-


App.3d 667, 672, 582 N.E.2d 657 (4th Dist.1991).

       {¶ 37} Although we have found that the parties’ oral agreement did not involve an

“interest in land” so as to bring it within the statute of frauds, Wheelock’s breach of that

agreement had the effect of depriving Thies of an opportunity to purchase an interest in

land, an interest which Wheelock did acquire. Under these circumstances, we agree

with the trial court that specific performance is an appropriate remedy, and we reject

Wheelock’s argument that Thies was required to show the inadequacy of damages as a

legal remedy.

       {¶ 38} Wheelock’s third assignment of error is overruled.

       Constructive Trust

       {¶ 39} In his fourth assignment, Wheelock contends that the trial court erred in

imposing a constructive trust on parcels 4 and 5.          Specifically, he asserts that the

constructive trust is “moot” because equitable remedies (other than specific performance)

were available and because the court’s finding that Thies was entitled to parcels 4 and 5

upon the payment of $180,000, pursuant to the parties’ oral agreement, was against the

manifest weight of the evidence.

       {¶ 40} The Supreme Court of Ohio has defined a constructive trust as follows:

       * * * [A] trust by operation of law which arises * * * against one who, by fraud,

       actual or constructive, by duress or abuse of confidence, by commission of

       wrong, or by any form of unconscionable conduct, artifice, concealment, or

       questionable means, or who in any way against equity and good

       conscience, either has obtained or holds the legal right to property which he

       ought not, in equity and good conscience, hold and enjoy. It is raised by
                                                                                            -18-


       equity to satisfy the demands of justice. * * * When property has been

       acquired in such circumstances that the holder of the legal title may not in

       good conscience retain the beneficial interest, equity converts him into a

       trustee. * * *

Ferguson v. Owens, 9 Ohio St.3d 223, 225-26, 459 N.E.2d 1293 (1984), citing 76

American Jurisprudence 2d 446, Trusts, Section 221 (1975) and Beatty v. Guggenheim

Exploration Co., 225 N.Y. 380, 386, 389, 122 N.E. 378 (1919).

       {¶ 41} The trial court reasonably concluded that a constructive trust was

appropriate, because Wheelock obtained title to parcels 4 and 5 through fraud, abuse of

confidence, or other unconscionable conduct. Wheelock’s argument that a constructive

trust was inappropriate is premised on his arguments under other assignments of error

that the trial court erred in finding that 1) the parties had an oral agreement, and 2) specific

performance was an appropriate remedy. Because we have rejected these arguments,

we likewise reject his argument that the constructive trust was inappropriate.

       {¶ 42} Wheelock’s fourth assignment of error is overruled.

       Damages

       {¶ 43} Finally, Wheelock argues in his second assignment of error that the trial

court improperly calculated damages in the amount of $144,000.

       {¶ 44} In its judgment entry, the trial court stated that there was “credible

testimony that, at the time of the auction, parcels 4 and 5 had a fair market value of

$324,000. [Wheelock’s] failure to have the seller of the real estate title these parcels in

the name of [Thies] in exchange for Thies’s payment to Wheelock of $180,000, has

resulted in damages in the loss of value to [Thies] in the amount of $144,000.” The court
                                                                                       -19-


then proceeded to address Thies’s claim for specific performance, finding that he was

entitled to specific performance.   It was clear from Thies’s complaint and from his

testimony at trial that he favored specific performance over damages, and the court

described specific performance as an award “[i]n the alternative to the judgment for

damages.” The court ordered Thies to pay Wheelock $180,000 (the amount the trial

court found Thies had offered to pay for parcels 4 and 5 when he and Wheelock were

negotiating jointly) when Wheelock tendered the deed for parcels 4 and 5, pursuant to the

order of specific performance, in accordance with the parties’ agreement at the auction.

In light of the court’s award of specific performance, its determination of an amount of

damages, in the alternative, was superfluous, and Wheelock was not prejudiced by it.

      {¶ 45} The second assignment of error is overruled.

      {¶ 46} The judgment of the trial court will be affirmed.



                                       .............

HALL, P.J. and DONOVAN, J., concur.

Copies mailed to:

Jonathan S. Zweizig
Andrew H. Johnston
Hon. Christopher Gee
