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Lowry v. Buroker

Court of Appeals of Ohio, Second District, Champaign

December 29, 2017

WILLIAM MATTHEW LOWRY, et al. Plaintiffs-Appellees
WILLIAM BUROKER Defendant-Appellant

         Civil Appeal from Common Pleas Court No. 2016-CV-149

          DARRELL L. HECKMAN, Atty. Reg. No. 002389, Attorney for Plaintiffs-Appellees

          JON L. JENSON, Atty. Reg. No. 0072492, Attorney for Defendant-Appellant


          FROELICH, J.

         {¶ 1} William Buroker appeals from a judgment of the Champaign County Court of Common Pleas, which granted summary judgment to Plaintiffs William Lowry and Brittany Buroker on their claim for specific performance of a land contract and denied William Buroker's cross-motion for summary judgment. For the following reasons, the trial court's judgment will be affirmed.

         I. Factual and Procedural History

         {¶ 2} Plaintiff Brittany Buroker is the daughter and only child of Defendant William Buroker. [1] According to Brittany's undisputed affidavit, in 2015, she and her boyfriend, Lowry, spoke with her father about buying his land on Pisgah Road in Champaign County, Auditor's Parcel No. K41-11-11-03-00-010-00. At that time, Buroker wanted money, and he had concerns about the mortgage on the property through The Peoples Savings Bank, which was approximately $1, 400 per month. The property was also subject to two judgment liens. Plaintiffs agreed to buy the property from Buroker for the pay-off amount on the mortgage, which was then $208, 016.11.

         {¶ 3} On May 11, 2015, Plaintiffs executed a land contract with Buroker. As the parties had discussed, the agreement, which was prepared by Buroker's attorneys, generally provided that Plaintiffs would pay $208, 016.11, plus interest, for the property in monthly payments over the course of five years. The agreement further provided that "the obligation evidenced by this contract can be prepaid by Buyer at any time."

         {¶ 4} Brittany stated in her affidavit that the transaction between the parties was not an investment for her father, who had no equity in the property and earned no interest from the land contract. In accordance with the contract, all payments were made directly to The Peoples Savings Bank. Brittany further stated that the parties "contemplated completing the land contract as soon as [her] father took care of removing the two (2) judgment liens on the property." Because of the judgment liens, Buroker was unable to provide a clean title for the property and Plaintiffs were unable to obtain financing.

         {¶ 5} On September 13, 2016, Plaintiffs filed a complaint in common pleas court, alleging that they had been approved for financing to pay off the land contract, but that Buroker had "anticipatorily breached the land contract by advising Plaintiffs that he will not sign a deed to the Plaintiffs without receipt of money over and above the amount due under the land contract." Plaintiffs sought specific performance of the land contract, which they attached to their complaint as Exhibit 1.

         {¶ 6} Buroker, pro se, filed an answer. He admitted that Exhibit 1 was the land contract between the parties and that the trial court had jurisdiction to order specific performance, but he denied Plaintiffs' additional allegations. Buroker stated, as affirmative defenses, that there was a "failure of consideration" and that Plaintiffs were in default of the land contract due to their failure to pay the fire and casualty insurance in a timely manner. Buroker subsequently retained counsel.

         {¶ 7} Brittany's affidavit indicated that, in 2017, Plaintiffs were able to obtain financing from The Peoples Savings Bank after they agreed to pay off one judgment lien, even though it was not their responsibility, and the other judgment lienholder agreed to subordinate his judgment lien to The Peoples Savings Bank.[2] Brittany stated that Plaintiffs attended the closing, where they tendered "the entire purchase price due, but Mr. Buroker did not attend the closing and has refused to accept the proceeds and sign the deed."

         {¶ 8} On May 30, 2017, Plaintiffs moved for summary judgment. They argued that Buroker breached the land contract by refusing to accept the pay-off amount and to tender a deed. Plaintiffs supported their motion with Brittany's affidavit.

         {¶ 9} The following day, May 31, 2017, Buroker filed a motion for summary judgment, claiming that Plaintiffs were not entitled to specific performance of the land contract, because the contract "does not contain any provision permitting the acceleration of the contract or prepayment of the entire balance before the end of the five (5) year term." He argued that Plaintiffs had not complied with the terms of the land contract, because they had not paid 60 monthly installments. Buroker further argued he did not breach the agreement and that, because Plaintiffs continue to have possession of the property, they could not show that ...

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