FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CV-2016-10-4593
WILLIAM LOVE, II, Attorney at Law, for Appellant.
MEEKER, Attorney at Law, for Appellees.
DECISION AND JOURNAL ENTRY
J. CARR JUDGE.
Plaintiff-Appellant Michael Brannon appeals from the judgment
of the Summit County Court of Common Pleas dismissing his
complaint. This Court reverses.
In October 2016, Mr. Brannon filed a complaint against
Defendants-Appellees Derrick and Nancy Edman ("the
Edmans") asserting claims for breach of contract and
fraud concerning an alleged contract for the sale of real
property. The Edmans filed a motion to dismiss asserting that
the breach of contract claim violated the statute of frauds
and that the fraud claim was not stated with particularity.
Thereafter, Mr. Brannon moved to amend the complaint
asserting that, while he believed the complaint would
withstand a motion to dismiss, the amended complaint would
provide more specificity and resolve the issues raised by the
Edmans. In addition, he filed a response to the motion to
dismiss arguing that the complaint contained allegations of
partial performance which removed the contract from the
statute of frauds and that he had pleaded fraud with the
necessary particularity. Without specifically referring to
Mr. Brannon's motion to amend or his fraud claim, the
trial court granted the Edmans' motion to dismiss the
complaint. The trial court appeared to conclude that the
statute of frauds was applicable and that Mr. Brannon's
failure to attach a written contract to the complaint
warranted dismissal of the complaint.
Mr. Brannon has appealed, raising three assignments of error
for our review, which will be addressed out of sequence to
facilitate our analysis.
OF ERROR II
TRIAL COURT ERRED BY GRANTING THE EDMANS' MOTION TO
DISMISS BECAUSE BRANNON'S ALLEGATIONS EXHIBITED PART
PERFORMANCE BY BRANNON AND PART PERFORMANCE OF AN ORAL
AGREEMENT TO TRANSFER REAL PROPERTY SHOULD WITHSTAND SUCH A
Mr. Brannon argues in his second assignment of error that the
trial court erred in dismissing the complaint because the
allegations of the complaint supported that Mr. Brannon
partially performed the contract, thereby removing the
contract from the statute of frauds.
"An appellate court reviews a trial court order granting
a motion to dismiss pursuant to Civ.R. 12(B)(6) under a de
novo standard of review." Hudson v. Akron, 9th
Dist. Summit No. 28011, 2017-Ohio-7590, ¶ 8, citing
Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,
2004-Ohio-4632, ¶ 5. "In reviewing whether a motion
to dismiss should be granted, an appellate court must accept
as true all factual allegations in the complaint and all
reasonable inferences must be drawn in favor of the nonmoving
party." Hudson at ¶ 9, citing
Rossford at ¶ 5. "To prevail on a Civ.R.
12(B)(6) motion to dismiss, it must appear on the face of the
complaint that the plaintiff cannot prove any set of facts
that would entitle him to recover." (Internal quotations
and citations omitted.) Hudson at ¶ 9.
We begin by noting that the trial court appears to have
dismissed the entire complaint on the basis that the statute
of frauds prevented Mr. Brannon's recovery. However, the
Edmans did not argue in their motion to dismiss that the
fraud claim was barred by the statute of frauds. Even if we
were to assume that it could be appropriate under these
circumstances for the trial court to dismiss the fraud claim
on the basis of the statute of frauds, because there are
allegations of partial performance that would remove the
agreement from the application of the statute of frauds,
dismissal on that basis was error, as will be discussed
In their motion to dismiss, the Edmans argued that Mr.
Brannon's breach of contract claim was barred by the
provisions of the statute of frauds that require that an
agreement concerning the transfer of an interest of land be
in writing and signed by the party to be charged as Mr.
Brannon's complaint failed to allege the existence of a
written agreement. Mr. Brannon opposed the motion to dismiss
arguing that the court could enforce the oral agreement to
transfer real estate because there were allegations of
partial performance that would remove the contract from the
application of the statute of frauds.
The Edmans relied on the following provisions in support of
their motion: R.C. 1335.04 and 1335.05. R.C. 1335.04 provides
that "[n]o lease, estate, or interest, either of
freehold or term of years, or any uncertain interest of, in,
or out of lands, tenements, or hereditaments, shall be
assigned or granted except by deed, or note in writing,
signed by the party assigning or granting it, or his agent
thereunto lawfully authorized, by writing, or by act and
operation of law." R.C. 1335.05 provides, in relevant
part, that "[n]o action shall be brought whereby to
charge the defendant * * * upon a contract or sale of lands,
tenements, or hereditaments, or interest in or concerning
them * * * unless the agreement upon which such ...