[Cite as Mohn v. Ousley, 2015-Ohio-5402.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

DAVID MOHN                                      JUDGES:
                                                Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      Hon. Sheila G. Farmer, J.
                                                Hon. Craig R. Baldwin, J.
-vs-
                                                Case No. 2015CA00073
STEVEN R. OUSLEY

        Defendant-Appellant                     OPINION




CHARACTER OF PROCEEDING:                     Appeal from the Stark County Court of
                                             Common Pleas, Case No. 2014CV2335


JUDGMENT:                                    Affirmed


DATE OF JUDGMENT ENTRY:                      December 21, 2015


APPEARANCES:


For Plaintiff-Appellee                       For Defendant-Appellant


ROBERT E. SOLES, JR.                         ROBERT W. ECKINGER
KARA DODSON                                  Eckinger Law Officers, Ltd.
Law Offices of Robert E. Soles, Jr. Co.      1611 North Main Street, Suite A
6545 Market Ave. N.                          North Canton, Ohio 44720
North Canton, Ohio 44721
Stark County, Case No. 2015CA00073                                                      2

Hoffman, P.J.


       {¶1}   Defendant-appellant Steven R. Ousley appeals the April 14, 2015

Judgment Entry entered by the Stark County Court of Common Pleas granting a writ of

restitution in favor of Plaintiff-appellee David Mohn.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On or about August 4, 2008, Appellant Steven R. Ousley entered into a

Land Installment Contract with Anthony and Dawn Risaliti (2008 Land Installment

Contract) pursuant to which he agreed to purchase real property located at Swallen

Avenue N.E. in Nimishillen Township, Ohio. The property consisted of 5.249 acres of real

property Ousley agreed to pay a total purchase price of $125,000 for the property,

consisting of a down payment of $30,000 and a balance of $95,000 to be paid in eighty-

four monthly installments at an interest rate of eight percent per annum.

       {¶3}   The Risalitis filed for Chapter 7 Bankruptcy, at which point Ousley had then

paid $37,366.58 on the land installment contract. Ousley had not missed any payments

up to the date of the bankruptcy filing. Ousley and the Bankruptcy Trustee entered into

an agreement under which the remaining unpaid balance of the Land Installment Contract

was discounted from $87,634.42 to $31,000 due to a decrease in the value of the

property. The terms of the agreement were memorialized in a Motion to Compromise

Equity in Real Estate which was filed in Case No. 11-63636 by the Trustee. The motion

stated the value of the property was approximately $59,800.00 as of December 31, 2011.

       {¶4}   Appellee Mohn provided financing to Ousley in the amount of $31,000.00,

and in return received the mineral rights to the property. On May 3, 2012, the Trustee

transferred the Property to Mohn pursuant to a Trustee's Deed recorded in the Stark
Stark County, Case No. 2015CA00073                                                        3


County Recorder's Office. Mohn and Ousley executed a Land Contract Agreement (2012

Land Installment Contract), pursuant to which Ousley was to make monthly payments in

the amount of $469.16. Ousley made nineteen payments to Mohn under the contract,

totaling $9,165.00.

         {¶5}   Ousley missed several payments under the 2012 Land Installment

Contract. Mohn sent Ousley a letter indicating he wished him to come current with

payments by January 1, 2015. Ousley stated he would pay $1,250.00 per month in

September, October, November and December, in order to come current under the terms

of the contract by January 2015. Ousley failed to make the payments as agreed.

         {¶6}   On September 30, 2014, Mohn filed a complaint in the Canton Municipal

Court against Ousley. Ousley filed an answer and a counterclaim seeking damages in

the amount of $25,000. The case was transferred to the Stark County Court of Common

Pleas.

         {¶7}   On November 13, 2014, the trial court conducted a hearing on Mohn's claim

for forcible entry and detainer. A Magistrate's Decision was issued on January 15, 2015

denying the request for writ of restitution.

         {¶8}   Mohn filed an objection to the Magistrate's Decision. On April 14, 2015, the

trial court issued a Judgment Entry vacating the Magistrate's Decision, and issuing a Writ

of Restitution in favor of Mohn.

         {¶9}   Ousley filed a notice of appeal, assigning as error,

         {¶10} “I. THE TRIAL COURT’S JUDGMENT ENTRY VACATING THE

MAGISTRATE’S DECISION AND ISSUING APPELLEE A WRIT OF RESTITUTION WAS
Stark County, Case No. 2015CA00073                                                       4


AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE FACTS AND

CIRCUMSTANCES DO NOT LEND THEMSELVES TO A SUMMARY PROCEEDING.

       {¶11} “II. THE TRIAL COURT’S DETERMINATION THAT R.C. 5313.07 IS NOT

APPLICABLE TO THE FACTS OF THIS CASE WAS CONTRARY TO LAW.”

                                              I. and II.

       {¶12} Ousley’s assigned errors raise common and interrelated issues; therefore,

we will address the arguments together. Ousley asserts the trial court erred in granting

the writ of restitution in favor of Mohn.

       {¶13} Ousley claims he has a purchase money resulting trust, a constructive trust

and an equitable mortgage in the property as a result of the facts and circumstances

herein. He argues he had possession of the property prior to Mohn's ownership interest

and he had some equitable ownership in the property prior to Mohn's ownership interest.

Ousely asserts the beneficial interest of the property is not intended to be enjoyed by

Mohn. Ousley maintains the parties intended for him to beneficially enjoy the property

and to be the equitable owner of the property. Ousley further maintains Mohn would be

unjustly enriched should he retain the property due to Ousley's equity in the property he

gained pursuant to both Land Contracts.

       {¶14} Ousley further maintains the trial court's determination R.C. 5313.07 is

inapplicable to the facts of this case is contrary to law.

       {¶15} R.C. 5313.07 provides,

              If the vendee of a land installment contract has paid in accordance

       with the terms of the contract for a period of five years or more from the date

       of the first payment or has paid toward the purchase price a total sum equal
Stark County, Case No. 2015CA00073                                                     5


      to or in excess of twenty per cent thereof, the vendor may recover

      possession of his property only by use of a proceeding for foreclosure and

      judicial sale of the foreclosed property as provided in section 2323.07 of the

      Revised Code. Such action may be commenced after expiration of the

      period of time prescribed by sections 5313.05 and 5313.06 of the Revised

      Code. In such an action, as between the vendor and vendee, the vendor

      shall be entitled to proceeds of the sale up to and including the unpaid

      balance due on the land installment contract.

             Chapter 5313 of the Revised Code does not prevent the vendor or

      vendee of a land installment contract from commencing a quiet title action

      to establish the validity of his claim to the property conveyed under a land

      installment contract nor from bringing an action for unpaid installments.

             Chapter 5313 of the Revised Code does not prevent the vendor and

      vendee from cancelling their interest in a land installment contract under

      section 5301.331 of the Revised Code.

      {¶16} Ousley asserts had it not been for the payments he made under the 2008

Land Installment Contract, the purchase price of $31,000.00 offered by the Trustee would

not have been made. Accordingly, Ousley argues his previous payments of approximately

$37,366.58 must be counted toward determining whether 20% of the purchase price has

been paid. When considering this sum, Appellant would be over the twenty-percent

threshold needed under R.C. 5313.07.
Stark County, Case No. 2015CA00073                                                        6


      {¶17} Ousley ended the 2008 Land Installment Contract by executing a

Termination of Land Installment Contract Land Contract on July 12 during the bankruptcy

proceeding. The document states in relevant part,

             WHEREAS, it is the intention of Trustee and Ousley to terminate the

      Land Contract,

             NOW, THEREFORE, in consideration of One Dollar and other

      valuable consideration ($1.00 and O.V.C.) the receipt of which is hereby

      acknowledged, Trustee and Ousley do hereby terminate the Land Contract.

      {¶18} The trial court specifically found in its April 14, 2015 Judgment Entry “Ousley

had waived any right to tack time or payments made under the 2008 Land Contract to the

2012 Land Contract to satisfy the requirement of R.C. 5313.07” because of the

termination agreement. We agree.

      {¶19} We do not find the trial court erred as a matter of law in finding Mohn entitled

to the writ of restitution herein. Ousley waived the right to tack payments under the 2008

Land Installment Contract; therefore, Ousley has not demonstrated twenty percent of the

total purchase price of the property and R.C. 5313.07 is inapplicable. Ousley failed to

make the payments as set forth in the 2012 Land Installment Contract, therefore, the trial

court correctly granted Mohn’s claim for forcible entry and detainer.
Stark County, Case No. 2015CA00073                                              7


       {¶20} The April 14, 2015 Judgment Entry of the Stark County Court of Common

Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Baldwin, J. concur
