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Fussnecker v. Lamb

Court of Appeals of Ohio, Twelfth District, Brown

November 20, 2017

TOM FUSSNECKER, Plaintiff-Appellant,
v.
DONALD LAMB, Defendant-Appellee.

         CIVIL APPEAL FROM BROWN COUNTY MUNICIPAL COURT Case No. CVF1600078

          Michael P. Kelly, for plaintiff-appellant

          Patrick L. Gregory, for defendant-appellee

          OPINION

          M. POWELL, J.

         {¶ 1} Plaintiff-appellant, Tom Fussnecker, appeals a decision of the Brown County Municipal Court granting a judgment in favor of defendant-appellee, Donald Lamb.

         {¶ 2} For over 20 years and until 2013, Fussnecker rented and farmed a 104.67-acre parcel of land owned by Lamb on U.S. Route 68 in Georgetown, Ohio (the "Rte. 68 Farm"). A portion of the Rte. 68 Farm is woods and not farmable. In the fall of 2012, the parties agreed that Fussnecker would pay to have a portion of the Rte. 68 Farm bulldozed to add farmable acreage to the property. Fussnecker arranged for Earl Barnes to bulldoze the land. On November 7, 2012, Fussnecker paid Barnes $2, 000 for the bulldozing work.

         {¶ 3} The parties contemplated that Fussnecker would continue to rent the Rte. 68 Farm from Lamb in 2013. As they had always done, the parties entered into a verbal lease agreement. Fussnecker would pay Lamb $125 per acre in rent to farm 60 to 70 acres. There was no specific term as to when the rent was due. On February 4, 2013, Fussnecker wrote Lamb a check for $3, 700 to help Lamb pay the real estate taxes for the Rte. 68 Farm.

         {¶ 4} Approximately a month later, Lamb approached Fussnecker about purchasing the Rte. 68 Farm. Pursuant to a written Contract to Purchase Real Estate signed and dated March 13, 2013, Fussnecker bought the Rte. 68 Farm for $500, 000. The contract provided that the sale included fixtures, and that Fussnecker was to be given possession of the Rte. 68 Farm "on or before June 14, 2013." The contract further provided that "any rents due and payable prior to date of closing, to be retained by seller. Any rents due and payable after closing, to be retained by purchaser." The sale closed and Lamb conveyed the Rte. 68 Farm to Fussnecker by deed.

         {¶ 5} Lamb subsequently purchased another farm in Russellville, Ohio (the "Russellville Farm"). Following Lamb's acquisition of the Russellville Farm, the parties agreed that Fussnecker would rent and farm 34 acres of the Russellville Farm for 2013 at $125 per acre for a total rent of $4, 250.

         {¶ 6} Problems arose between the parties when Lamb did not vacate the Rte. 68 Farm by June 14, 2013, as provided in the purchase contract, but remained until July 15, 2013. In addition, when Fussnecker took possession of the property, he discovered that Lamb had removed a car lift from the garage that should have stayed on the property as a fixture.

          {¶ 7} Consequently, Fussnecker filed a complaint against Lamb, seeking (1) $2, 500 for the value of the car lift improperly removed from the Rte. 68 Farm, (2) $900 as rent for the 30 additional days that Lamb stayed on the Rte. 68 Farm, (3) $2, 000 for the bulldozing work on the Rte. 68 Farm, and (4) $3, 700 for the check Fussnecker gave to Lamb in February 2013 to pay the real estate taxes on the Rte. 68 Farm. Regarding the last two items, Fussnecker claimed he was entitled to a $5, 700 credit against his rent of the Russellville Farm. Alternatively, Fussnecker claimed the $3, 700 was "an excess payment to be taken off of the $500, 000.00 purchase price" for the Rte. 68 Farm. Lamb filed an answer and counterclaim against Fussnecker, asserting Fussnecker had not paid the $4, 250 rent for farming 34 acres of the Russellville Farm in 2013.

         {¶ 8} The matter proceeded to a hearing before a magistrate. Fussnecker and Lamb both testified. The parties' testimony differed as to when the rent for the Rte. 68 Farm was typically due and paid. Fussnecker testified he had historically always paid the rent around February because Lamb needed the money to pay the real estate taxes for the property. By contrast, Lamb testified Fussnecker generally paid the rent in the fall after the crops were harvested.

         {¶ 9} Regarding the $2, 000 Fussnecker paid for the bulldozing work on the Rte. 68 Farm and the $3, 700 he paid Lamb in February 2013, Fussnecker testified the parties orally agreed both amounts would be subtracted from either Fussnecker's 2013 rent for the Rte. 68 Farm or his 2013 rent for the Russellville Farm. Fussnecker conceded that when the parties agreed both payments would be subtracted from his 2013 rent for the Russellville Farm, Lamb had not yet purchased the property but had been talking about it. Fussnecker further explained that after he purchased the Rte. 68 Farm, the $2, 000 and $3, 700 payments necessarily had to be subtracted from his 2013 rent for the Russellville Farm because he no longer owed rent to Lamb for the Rte. 68 Farm.

          {¶ 10} Lamb testified that the $3, 700 payment had nothing to do with the Russellville Farm and that it was "for cash rent" for the Rte. 68 Farm before he sold that property to Fussnecker. Lamb further testified that the $2, 000 and $3, 700 payments were never mentioned or discussed at the closing for the ...


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