[Cite as Francis v. Nickoli, 2011-Ohio-6358.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

RAYMOND E. FRANCIS                                 JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 11-CA-44
SUSAN NICKOLI

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Licking County Court of
                                                Common Pleas, Case No. 09 CV 1473


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                         December 8, 2011


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


JONATHAN A. VELEY                               CHARLES E. TAYLOR
3 South Park Place                              P.O. Box 1730
Newark, Ohio 43055                              Buckeye Lake, Ohio 43008
Licking County, Case No. 11-CA-44                                                    2

Hoffman, P.J.


       {¶ 1} Defendant-appellant Susan Nickoli appeals the March 24, 2011 Judgment

Entry entered by the Licking County Court of Common Pleas in favor of Plaintiff-

appellee Raymond E. Francis.

                          STATEMENT OF THE FACTS AND CASE

       {¶ 2} On May 8, 2005, the parties entered an “Agreement as to Foreclosure and

Sheriff Sale.” The terms of the agreement provided Appellee would bid on property

located at 4394 Refugee Road, Hebron, Ohio at a sheriff sale in exchange for

Appellant’s agreement to subordinate a lien she had on the property to Appellee’s

mortgage lien on the property.     Appellee would then sell the property to Appellant

according to the terms and conditions of a land contract to be executed by the parties

and attached to the agreement. Appellee was the successful bidder at the sheriff sale

of the property.

       {¶ 3} The parties executed the contemplated land installment contract (“Land

Contract”) on April 8, 2005. According to the terms of the Land Contract, Appellant,

who was in possession of the property at the time of execution of the contract, was to

begin making monthly payments to Appellee in the amount of $1,210.71 on May 15,

2006, and continuing thereafter until a closing occurred.

       {¶ 4} Appellee wrote next to his signature on the agreement, “SUBJECT TO

APPROVAL FROM SELLERS ATTORNEY WHICH DEADLINE SHALL NOT EXCEED

TUESDAY 4/12/05.”

       {¶ 5} The Land Contract provided for a balloon payment of principal and interest

on May 15, 2006. Prior to the balloon payment due date, Appellant was in default on
Licking County, Case No. 11-CA-44                                                        3


the Land Contract. Appellant never made any of the required monthly payments, and

only paid one-half of the five thousand dollar required down payment.

       {¶ 6} On March 21, 2006, the parties executed a real estate purchase

agreement with respect to the purchase and sale of the same real estate located at

4394 Refugee Road, Hebron, Ohio (“Purchase Agreement”). The purchase price of the

property was $186,900. Pursuant to the terms of the contract, Appellant had until April

30, 2006, to close on the sale. The agreement included the following language,

       {¶ 7} “paragraph 1.4- eliminate hand written language in this paragraph and add

the following terms and conditions: The closing shall take place on or before April 30,

2006. Until the closing is finalized, Buyer shall comply fully with the terms of the Land

Installment Contract, including the payment of $1,201.71 to the Seller each month until

closing finalized…In the event Buyer fails to pay all or part of each monthly payment,

then such sums shall be added to the sale price and paid to the Seller at time of

closing.”

       {¶ 8} Appellant was unable to secure financing to purchase the property, and

failed to close on the purchase by April 30, 2006. However, Appellant remained in

possession of the premises until she was removed from the premises on August 4,

2010, pursuant to a writ of possession issued by the trial court.

       {¶ 9} Appellant did not make any monthly payments from March 21, 2006, to

August 4, 2010, pursuant to the terms of the parties’ agreement(s).

       {¶ 10} Appellee filed a complaint for forfeiture of land contract and forcible entry

and detainer in the Licking County Municipal Court on June 30, 2009, alleging Appellant

breached the parties’ agreement. On December 1, 2009, Appellee filed an amended
Licking County, Case No. 11-CA-44                                                      4


complaint in the Licking County Court of Common Pleas. Appellant filed an answer and

counterclaim for the imposition of a construction trust, for damages for breach of

contract, and to offset the amount of improvements she made to the property during the

time of her possession.

      {¶ 11} On April 7, 2010, Appellee filed a motion for summary judgment. On May

4, 2010, Appellant filed a cross motion for summary judgment as to her counterclaim.

      {¶ 12} Via Judgment Entry of July 9, 2010, the trial court granted summary

judgment in favor Appellee, and denied Appellant’s motion for summary judgment.

      {¶ 13} Via Judgment Entry of March 24, 2011, the trial court rendered judgment

in favor of Appellee in the amount of $62,956.92, and found Appellant was not entitled

to any setoff for improvements alleged to have been made to the premises.

      {¶ 14} Appellant now appeals, assigning as error:

      {¶ 15} “I.   THE    CONCLUSION     OF    LAW    IV   THAT    ‘THE     PURCHASE

AGREEMENT (EXHIBIT C) WAS EXECUTED LESS THAN TWO MONTHS BEFORE

THE BALLOON PAYMENT WAS DUE ON THE LAND INSTALLMENT CONTRACT

AND AFTER DEFENDANT HAD BEEN IN DEFAULT ON THE LAND INSTALLMENT

CONTRACT FOR NOT MAKING PAYMENTS IS ARBITRARY, CAPRICIOUS AND

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.’

      {¶ 16} “II. THE COURT’S CONCLUSION OF LAW THAT THE CONTRACT 3,

THE REAL ESTATE PURCHASE AGREEMENT, EXTINGUISHED THE LAND

INSTALLMENT CONTRACT AND THAT NICOLI WAS A MERE TENANT AT

SUFFERANCE WAS ERRONEOUS AS A MATTER OF LAW.
Licking County, Case No. 11-CA-44                                                       5


      {¶ 17} “III. THE TRIAL COURT COMMITTED PREJUDICAL ERROR IN FAILING

TO FIND THAT THE RECORD CONTAINED ALL THE ELEMENTS OF A

PROMISSORY FRAUD IN THE INDUCEMENT CAUSE OF ACTION.

      {¶ 18} “IV. THE PLAINTIFF’S FRAUDULENT BAD FAITH CONDUCT GAVE

RISE TO AN ACTION FOR IMPOSITION OF A CONSTRUCTIVE TRUST.”

      {¶ 19} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

      {¶ 20} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)

the moving party is entitled to judgment as a matter of law; and 3) it appears from the

evidence that reasonable minds can come to but one conclusion and viewing such

evidence most strongly in favor of the party against whom the motion for summary

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

      {¶ 21} It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, bears the initial burden of informing the trial
Licking County, Case No. 11-CA-44                                                       6


court of the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no

evidence to prove its case. Rather, the moving party must be able to specifically point to

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.

                                          I., II. and IV.

      {¶ 22} Appellant’s first, second and fourth assigned errors raise common and

interrelated issues; therefore, we will address the arguments together.

      {¶ 23} Appellant asserts the April 8, 2005 Land Contract was not approved by

Appellee’s attorney; therefore, the condition subsequent was never removed. Further,

Appellee never recorded the land contract. As a result, Appellant argues she was

excused from her obligation to tender payments. Appellant also maintains the land

installment contract interest could only be terminated by a foreclosure or judicial sale.

Specifically, Appellant cites O.R.C. 5313.07, which provides:
Licking County, Case No. 11-CA-44                                                     7


       {¶ 24} “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 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.****”

       {¶ 25} Appellant failed to make any payments or to tender any payment other

than an initial deposit of $2,500, which was $2,500 less than the agreed upon $5,000

deposit.     While Appellant claims to have made improvements to the property

contributing to the value of the property, the agreed upon purchase price under both the

Land Contract and the subsequent Purchase Agreement were both less than the

parties’ acknowledged the property to be worth. Appellant had not paid pursuant to the

terms of the Land Contract for a period of five years and had not paid toward the

purchase price a total sum equal to twenty percent of the purchase price. Accordingly,

we find the terms of R.C. 5313.07 are not applicable herein.

       {¶ 26} Appellant’s answer to the amended complaint included the following

paragraph,
Licking County, Case No. 11-CA-44                                                      8


       {¶ 27} “10. The defendant admits the allegations of paragraph 15 that Contract

Two [the Land Contract] did not survive the execution of Contract Three [the Purchase

Agreement] but denies that Contract Two was merged into Contract Three.”

       {¶ 28} Appellee’s counteroffer to the Purchase Agreement, agreed to and

incorporated by the parties, states:

       {¶ 29} “paragraph 1.4- eliminate hand written language in this paragraph and add

the following terms and conditions: The closing shall take place on or before April 30,

2006. Until the closing is finalized, Buyer shall comply fully with the terms of the Land

Installment Contract, including the payment of $1,201.71 to the Seller each month until

closing finalized. The next payment is due on or before April 15, 2066. If the closing is

after April 15, 2006, then the monthly payment shall be prorated to date of closing. In

the event Buyer fails to pay all or part of each monthly payment, then such sums shall

be added to the sale price and paid to the Seller at time of closing.”

       {¶ 30} As Appellant failed to perform on the Purchase Agreement, the parties’

recognized by paragraph 1.4 set forth above, the parties’ would revert to the terms of

the Land Contract previously executed. Therefore, we do conclude the trial court erred

in finding the Purchase Agreement executed by the parties on March 21, 2006,

constituted an accord and satisfaction of the Land Contract previously executed by the

parties.

       {¶ 31} However, as Appellant failed to comply by the terms of the Land Contract

by not making any payments pursuant to the terms thereof, she became a tenant at

sufferance. The trial court did not award Appellee any damages pursuant to the Land

Contract; rather, the court awarded Appellee damages for Appellant’s failure to make
Licking County, Case No. 11-CA-44                                                       9


payments as required under the Purchase Agreement and the reasonable rental value

of the premises. As Appellant failed to comply with the terms of the Land Contract, the

trial court did not err in finding Appellant a tenant at sufferance and awarding damages

accordingly.

       {¶ 32} The first, second and fourth assignments of error are overruled.1

                                               III.

       {¶ 33} In the third assignment of error, Appellant asserts she was fraudulently

“induced to complete her end of the bargain.”         However, a review of the record

demonstrates Appellant has not established she was fraudulently induced to enter into

the March 2006 Purchase Agreement by the fraudulent actions of Appellee. Rather,

Appellant’s arguments relate to the history between the parties occurring over four

years prior to the within action, rendering Appellant’s arguments time-barred.

Accordingly, the third assignment of error is overruled.




1
  As noted supra, though we agree with the Appellant’s argument in his second
assignment of error, we find the error harmless in light of Appellant’s failure to perform
her obligations under the Land Contract.
Licking County, Case No. 11-CA-44                                           10


      {¶ 34} The March 24, 2011 Judgment Entry of the Licking County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur




                                      s/ William B. Hoffman _________________
                                      HON. WILLIAM B. HOFFMAN


                                      s/ Sheila G. Farmer __________________
                                      HON. SHEILA G. FARMER


                                      s/ Patricia A. Delaney _________________
                                      HON. PATRICIA A. DELANEY
Licking County, Case No. 11-CA-44                                                    11


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


RAYMOND E. FRANCIS                         :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
SUSAN NICKOLI                              :
                                           :
       Defendant-Appellant                 :         Case No. 11-CA-44



For the reasons stated in our accompanying Opinion, the March, 24, 2011 Judgment

Entry of the Licking County Court of Common Pleas is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY
