[Cite as Erwin v. Wanda E. Wise Revocable Trust, 2013-Ohio-952.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                     SCIOTO COUNTY

CARY ERWIN, et al.,                    :                           Case No. 12CA3501
                                       :
    Plaintiffs-Appellants,             :
                                       :                           DECISION AND
    v.                                 :                           JUDGMENT ENTRY
                                       :
WANDA E. WISE REVOCABLE TRUST, et al., :
                                       :                           RELEASED 03/04/13

     Defendants-Appellees.            :
______________________________________________________________________
                            APPEARANCES:

Robert A. Cassity, Alexandria, VA, for appellants.

Stephen C. Rodeheffer, Portsmouth, OH, for appellees.
______________________________________________________________________
Harsha, J.

        {¶1}    Cary Erwin and his wife Alicia (“the Erwins”) appeal the trial court’s

decision to grant Wanda Wise, the Wanda E. Wise Revocable Trust, and Gary Erwin

summary judgment on the Erwins’ claims against them. The Erwins contend that Wise

(Cary’s mother) orally promised that if the couple moved from California to care for her

and manage her trailer park, she would give the property to them when she died.1 After

the Erwins moved to Ohio and began to fulfill their end of the bargain, Wise transferred

the property to her revocable trust. The Erwins filed this action several years later when

the trust listed the property for sale. The trial court dismissed the Erwins’ claims after

finding they were: 1.) barred by R.C. 2107.04, which requires that an agreement to
1
  The exact terms of this alleged oral agreement are unclear. For instance, in their complaint and
affidavits, the Erwins suggest Wise agreed to give them both the entire property when she died.
However, at his deposition, Cary claimed that he was to get free rent and utilities at the park while Wise
was alive, and he would only get half the property and the right to live in the house on the property when
she died. His brother Gary was supposed to receive the other half of the property and the right to live in
Wise’s trailer but not the house.
.
Scioto App. No. 12CA3501                                                                    2


make a bequest or devise by will be in writing; and 2.) were filed outside the applicable

statute of limitations.

       {¶2}    The Erwins claim the doctrine of part performance and the “family member

exception” render R.C. 2107.04 inoperative in an action to enforce an oral agreement to

make a devise of real estate by will. However, because there are no exceptions to the

statutory rule, such an agreement is not enforceable under any circumstances unless it

is in writing. Therefore, we reject their argument.

       {¶3}    The Erwins suggest that R.C. 2107.04 does not apply to quantum meruit

claims. However, they failed to assign that issue as error or provide any argument in

support of their position. Therefore, we reject this argument summarily under the

appellate rules. And because we affirm the court’s finding that R.C. 2107.04 bars the

Erwins’ claims, the Erwins’ additional arguments that their claims were filed within the

applicable statute of limitations and that summary judgment evidence supports the

elements of their quantum meruit claims are moot.

                                         I. Facts

       {¶4}    In May 2011, the Erwins filed suit against Wise, the Wanda E. Wise

Revocable Trust, and Gary Erwin. The Erwins alleged they moved to Ohio in

September 2001 “at the request of * * * Wise who requested that the Plaintiffs move to

care for her and manage her property and the property owned by the Wanda E. Wise

Revocable Trust.” (Compl. ¶ 8.) They claimed that Wise promised to “bequeath the

property located at 4546 Old Scioto Trail, Portsmouth, OH” to them “in return for their

moving to the property to care for her and manage the property * * *.” (Compl. ¶ 9.)

The Erwins alleged that they left “valuable careers and other assets in California.”
Scioto App. No. 12CA3501                                                                    3


(Compl. ¶ 10.) They cared for Wise approximately 10 years and cared for and managed

the property, which contained a trailer park. The Erwins claimed they also made

“significant improvements to the property” and contributed “vast amounts of labor”

based on Wise’s promise. (Compl. ¶ 13.) They alleged that Wise broke her promise by

listing the property for sale around March 2011. The Erwins alleged causes of action

for: 1.) breach of an oral contract against Wise; 2.) quantum meruit against Wise and

the trust; 3.) promissory estoppel against Wise; 4.) fraud against Wise; and 5.) tortious

interference with contract against Gary, for allegedly persuading Wise to breach her

contract with the Erwins.

       {¶5}   The defendants filed a motion for summary judgment. They argued that

the Erwins’ claims were barred by R.C. 2704.04, which the defendants referred to as

the “Statute of Frauds.” In addition, they argued that the Erwins’ claims for breach of

contract, quantum meruit, and promissory estoppel were barred by the statute of

limitations in R.C. 2305.07. The defendants also claimed that Alicia lacked standing. In

response, the Erwins argued in part that R.C. 2704.04 did not apply because of the

doctrine of part performance and the “family exception doctrine.”

       {¶6}   The trial court granted the motion for summary judgment, finding:

                The Court having reviewed the entire file herein finds that Plaintiff’s
       [sic] actions are barred by the statute of frauds. The Court finds further
       that it [sic] is barred by the statute of limitations for oral contracts.
       Inasmuch as pursuant to section 2107.04 (No agreement to make a will,
       or to make a devise or bequest by will shall be enforceable unless it is in
       writing. The agreement shall be signed by the maker or by some other
       person at the maker’s express direction. If signed by a person other than
       the maker, the instrument shall be subscribed by two or more competent
       witnesses who heard the maker acknowledge that it was signed in the
       maker’s direction.)

              The Court finds this has not happened in this matter and therefore
Scioto App. No. 12CA3501                                                                      4


       finds Defendant’s [sic] motion to be well taken and therefore sustained.
       This matter is hereby being dismissed. * * *

       {¶7}   This appeal followed.

                                 II. Assignments of Error

       {¶8}   The Erwins assign the following errors for our review:

       I.     The Trial Court Erred in finding the [Appellants’] claims were
              barred by the Statute of Limitations.

       II.    The Trial Court Erred in finding the [Appellants’] claims were
              barred by the Statute of Frauds.

       III.   The Trial Court Erred in failing to consider [Appellants’] non-
              contractual claims.

       {¶9}   In their brief, the Appellees attempt to raise the following “cross-

assignment of error”:

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FINDING
       THAT APPELLANT [ALICIA ERWIN] HAD REQUISITE STANDING TO
       MAINTAIN HER LAWSUIT WHERE SHE WAS NOT A PARTY TO THE
       ALLEGED AGREEMENT NOR AN INTENDED THIRD PARTY
       BENEFICIARY.

       {¶10} However, App.R. 3(C)(1) provides: “A person who intends to defend a

judgment or order against an appeal taken by an appellant and who also seeks to

change the judgment or order or, in the event the judgment or order may be reversed or

modified, an interlocutory ruling merged into the judgment or order, shall file a notice of

cross appeal within the time allowed by App.R. 4.” The Appellees never filed a notice of

cross appeal. Therefore, we disregard the cross-assignment of error. However, we

note that contrary to what the Appellees argue, the court never found that Alicia Erwin

had standing. The court made no findings on standing, presumably because the court

disposed of the case on other grounds and did not have to reach that issue.
Scioto App. No. 12CA3501                                                                         5


                                   III. Standard of Review

       {¶11} When reviewing a trial court’s decision on a motion for summary

judgment, we conduct a de novo review governed by the standard set forth in Civ.R. 56.

Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Summary

judgment is appropriate when the movant has established: 1.) there is no genuine issue

of material fact; 2.) reasonable minds can come to but one conclusion, and that

conclusion is adverse to the nonmoving party, with the evidence against that party being

construed most strongly in its favor; and 3.) the moving party is entitled to judgment as a

matter of law. Bostic v. Connor, 37 Ohio St.3d 144, 146, 524 N.E.2d 881 (1988), citing

Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978)

(per curiam). See Civ.R. 56(C).

       {¶12} The burden of showing that no genuine issue of material fact exists falls

upon the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280,

294, 662 N.E.2d 264 (1996). To meet its burden, the moving party must specifically

refer to “the pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action,” that affirmatively demonstrate the non-moving party has no evidence to

support the non-moving party’s claims. Civ.R. 56(C). See Hansen v. Wal–Mart Stores,

Inc., 4th Dist. No. 07CA2990, 2008-Ohio-2477, ¶ 8. Once the movant supports the

motion with appropriate evidentiary materials, the non-moving party “may not rest upon

the mere allegations or denials of the party’s pleadings, but the party’s response, by

affidavit or as otherwise provided in [Civ.R. 56], must set forth specific facts showing

that there is a genuine issue for trial.” Civ.R. 56(E). “If the party does not so respond,
Scioto App. No. 12CA3501                                                                                       6

summary judgment, if appropriate, shall be entered against the party.” Id.

                                            IV. R.C. 2107.04

        {¶13} Because it is dispositive of this appeal, we address the second

assignment of error initially. The trial court found that all of the Erwins’ claims were

barred by the “statute of frauds.” In their second assignment of error, the Erwins

contend that the trial court erred because two exceptions “take the case outside the

realm of the statute of frauds.” Initially, we must clarify the terminology used by the

court and parties.

        {¶14} In their motion for summary judgment, the Appellees argued that the

Erwins’ claims were barred by R.C. 2107.04 and characterized that code section as the

“Statute of Frauds.” In their response to this motion, the Erwins used the same

characterization, and in its order, the court also appears to refer to R.C. 2107.04 as the

“Statute of Frauds.” However, “[i]n Ohio, the Statute of Frauds is embodied in R.C.

Chapter 1335.” Ed Schory & Sons, Inc. v. Francis, 75 Ohio St.3d 433, 438, 662 N.E.2d

1074 (1996). The Statute of Frauds requires that certain agreements, such as real

estate contracts, be in writing. See R.C. 1335.04; R.C. 1335.05. R.C. 2107.04 is

similar, yet distinct from the Statute of Frauds. It appears under the Revised Code

chapter on wills and provides:

        No agreement to make a will or to make a devise or bequest by will shall
        be enforceable unless it is in writing. The agreement shall be signed by
        the maker or by some other person at the maker’s express direction. If
        signed by a person other than the maker, the instrument shall be
        subscribed by two or more competent witnesses who heard the maker
        acknowledge that it was signed at the maker’s direction.2


2
 The trial court quoted the current version of the statute in its decision. At the time the parties made the
alleged oral contract, i.e., spring 2001, the statute similarly provided:
Scioto App. No. 12CA3501                                                                         7



Therefore, in this assignment of error we address R.C. 2107.04 – not the “statute

of frauds” as embodied in R.C. Chapter 1335. See generally Brannan v. Fowler,

100 Ohio App.3d 577, 654 N.E.2d 434 (4th Dist.1995), treating each statute in

accordance with this distinction.

       {¶15} The Erwins do not dispute the fact that R.C. 2107.04, if applicable, bars

their claims. In other words, they implicitly concede that their claims involve an alleged

agreement to make a will or to make a devise or bequest by will and that under R.C.

2107.04, that agreement is not enforceable because it is not in writing. Instead, the

Erwins argue that R.C. 2107.04 does not apply because the doctrine of part

performance and the “family exception doctrine” remove the alleged oral agreement

from the operation of R.C. 2107.04.

       {¶16} “In an action for specific performance, part performance is an equitable

doctrine that renders the Statute of Frauds inoperative.” Bumgarner v. Bumgarner, 4th

Dist. No. 09CA22, 2010-Ohio-1894, ¶ 26. As the Supreme Court of Ohio explained: “In

an action for specific enforcement of an oral contract for the sale of land, equity

intervenes to render the statute of frauds inoperative only when a failure to enforce the

contract will result in fraud and injury. To entitle one claiming to have purchased land to

enforce an oral contract for the conveyance thereof, he must, in reliance on the

promise, have performed acts which changed his position to his prejudice.” Tier v.

Singrey, 154 Ohio St. 521, 526, 97 N.E.2d 20 (1951).


       No agreement to make a will or to make a devise or bequest by will shall be enforceable
       unless it is in writing. Such agreement must be signed by the maker or by some other
       person at such maker’s express direction. If signed by a person other than such maker,
       the instrument must be subscribed by two or more competent witnesses who heard such
       maker acknowledge that it was signed at his direction.
Scioto App. No. 12CA3501                                                                                 8


        {¶17} However, although the doctrine of part performance renders the statute of

frauds inoperative, it does not render R.C. 2107.04 inoperative in an action to enforce

an oral agreement to make a devise of real estate by will. The Supreme Court of Ohio

addressed this issue in Sherman v. Johnson, 159 Ohio St. 209, 112 N.E.2d 326 (1953).

In Sherman, the Court actually interpreted former G.C. 10504-3a, which is substantially

similar to the modern version of the statute codified in R.C. 2107.04.3 The Court

rejected the argument that part performance of an agreement could render G.C. 10504-

3a inoperative. The Court found that by enacting G.C. 10504-3a, the legislature clearly

expressed its intent to require, without exception, that agreements to make a will or

devise or bequest by will be in writing. Therefore, the Court held that “[b]y virtue of

Section 10504-3a, General Code, an agreement to make a will or to make a devise or

bequest by will is not enforcible under any circumstances unless it is in writing.”

Sherman at paragraph four of the syllabus.

        {¶18} Because R.C. 2107.04 is virtually unchanged from its predecessor, G.C.

10504-3a, we conclude the holding in Sherman also applies to R.C. 2107.04. In other

words, under R.C. 2107.04, an agreement to make a will or to make a devise or

bequest by will is not enforceable under any circumstances unless it is in writing. Thus,

the doctrine of part performance does not render R.C. 2107.04 inoperable, and we must

reject the Erwins’ argument.

        {¶19} The Erwins also contend that the “family exception doctrine” removes the

alleged oral agreement from R.C. 2107.04. Specifically, they claim that the “statute of


3
 G.C. 10504-3a provided: “No agreement to make a will or to make a devise or bequest by will shall be
enforceable unless such agreement is in writing, signed by the party making it or by some other person
by his express direction, in which latter case the instrument must be subscribed by two or more
competent witnesses who heard such party acknowledge that it was so signed by his direction.”
Scioto App. No. 12CA3501                                                                      9


frauds does not invalidate this contract because it was made between family members.”

They argue:

       In Estoppel in Property Law, 77 Neb. L. Rev. 756 (1998), Professor Sterk
       states:

              “Courts generally assume that a reasonable person would
              not make expenditures on land owned by stranger in
              reliance on the stranger’s oral promise to convey the land . .
              . The situation is somewhat different when family members
              are involved. Social norms may lead a family
              member/promisee to forego a writing even though the same
              promisee would never forego a writing when entering into a
              land sale transaction with a stranger . . . Where the
              supposed promise [sic] can prove not only expenditures
              made on the property, but also a contemporaneous transfer
              of money or other legal rights to the family member who is
              the property’s record owner, courts have little difficulty
              finding, and enforcing, the family member’s promise.” Id. [a]t
              764-66. See also Melanie Leslie, Enforcing Family
              Promises: Reliance, Reciprocity and Relational Contract, 77
              N.C. L. Rev. 551 (1991).

In addition, the Erwins claim that “this Court applied a family exception to the statute of

frauds in a similar case involving land wherein a father sued his child and grandchild for

the right to live on land pursuant to an oral agreement. Ratliff v. Waughtel, Scioto

County Case 04-CIH-111 (2004).”

       {¶20} However, from the broad holding in Sherman, it is clear no exception

exists that would remove an agreement to make a will or to make a devise or bequest

by will from the operation of R.C. 2107.04. See Sherman, 159 Ohio St. 209, 112 N.E.2d

326, at paragraph four of the syllabus. Moreover, law review articles are not binding

authority. Reygaert v. Palmer, 2d Dist. No. 9296, 1986 WL1340, *4 (Jan. 29, 1986).

Even if they were, the language the Erwins quote makes no reference to a “family

exception doctrine” for R.C. 2107.04.
Scioto App. No. 12CA3501                                                                     10

       {¶21} In addition, contrary to the Erwins’ claim, the Ratliff case is not from “this

Court.” It is a common pleas court case, which is also not binding authority. See

Rumberg v. Rumberg, 7th Dist. No. 96CA156, 1998 WL 896334, *4 (Dec. 16, 1998).

The Appellees argue that Ratliff does not stand for the proposition for which the Erwins

cite it. But because the Erwins failed to attach a copy of this case to their appellate brief

and we are unaware of a URL address where the case is accessible, we cannot

evaluate the parties’ competing interpretations. See App.R. 16(E) (“If determination of

the assignments of error presented requires the consideration of legal authority not

generally accessible through online legal research databases but available through

another online resource, the citation in the brief to the authority should include the

internet URL address where the authority is accessible. If determination of the

assignments of error presented requires the consideration of legal authority not

accessible through any online resource, the relevant parts shall be reproduced in the

brief or in an addendum at the end or may be supplied to the court in pamphlet form.”).

Therefore, the Erwins failed to provide us with any Ohio case to support the existence of

a “family exception doctrine” to R.C. 2107.04. For the foregoing reasons, we reject the

Erwins’ claim that such a doctrine renders R.C. 2107.04 inoperable in this case.

       {¶22} Because the doctrine of part performance and the “family exception

doctrine” do not apply to R.C. 2107.04, we overrule the second assignment of error.

       {¶23} In their first assignment of error, the Erwins challenge the court’s finding

that they filed their claims outside the applicable statute of limitations. In their third

assignment of error, the Erwins contend that the trial court erred “in failing to consider

Appellant’s [sic] non-contractual claims.” The Erwins argue:
Scioto App. No. 12CA3501                                                                  11


       [T]he trial court granted Appellee[s] summary judgment citing the statute
       of limitations and statute of frauds, but apparently did not consider
       Appellants’ non-contractual claims. In addition to its [sic] contractual
       claims, Appellant[s] brought claims of unjust enrichment which could not
       have been properly barred by the statute of frauds and/or statute of
       limitations. The trial court’s brief judgment entry granting summary
       judgment did not address these claims nor explain how these claims
       would be barred at summary judgment.

       In Arguendo, the quantum meiriut [sic], or unjust enrichment claim should
       survive even if one or more of the other claims of action were defeated.

Then, the Erwins list the elements of an unjust enrichment claim and argue that they

submitted summary judgment evidence to prove each of those elements.

       {¶24} Contrary to the Erwins’ assertion in their third assignment of error, the trial

court did address their quantum meruit or unjust enrichment claims in its judgment – the

court dismissed all of the Erwins’ claims based on R.C. 2107.04 and failure to file within

the applicable statute of limitations. From the statements in their third assignment of

error, it appears the Erwins believe that R.C. 2107.04 simply does not apply to quantum

meruit claims. However, instead of assigning that issue as error and providing any

argument to support their position, the Erwins vaguely assert those claims “could not

have been properly barred by the statute of frauds and/or statute of limitations.”

Therefore, we reject this argument summarily under the provisions of App.R. 12(A)(2)

and App.R. 16(A)(7).

       {¶25} Again, the trial court dismissed all of the Erwins claims based on R.C.

2107.04 and failure to file within the applicable statute of limitations. The only assigned

error relating to the court’s R.C. 2107.04 finding is the second assignment of error,

which we already rejected. Therefore, the trial court’s decision must stand based on its

R.C. 2107.04 finding. The Erwins’ first assignment of error regarding the court’s
Scioto App. No. 12CA3501                                                                   12


alternative finding that the applicable statute of limitations also bars the claims is moot.

See App.R. 12(A)(1)(C). Likewise, the third assignment is moot to the extent it focuses

on the merits of the quantum meruit claims. Id. Therefore, we need not address those

issues. Accordingly, we affirm the trial court’s judgment.

                                                                  JUDGMENT AFFIRMED.
Scioto App. No. 12CA3501                                                                  13


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED and that Appellants shall pay
the costs.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.



                                         For the Court


                                         BY: ____________________________
                                             William H. Harsha, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
