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Brannon v. Edman

Court of Appeals of Ohio, Ninth District, Summit

January 10, 2018

MICHAEL BRANNON Appellant
v.
DERRICK EDMAN, et al. Appellees

         APPEAL 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.

          COLIN MEEKER, Attorney at Law, for Appellees.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR JUDGE.

         {¶1} Plaintiff-Appellant Michael Brannon appeals from the judgment of the Summit County Court of Common Pleas dismissing his complaint. This Court reverses.

         I.

         {¶2} 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.

         {¶3} Mr. Brannon has appealed, raising three assignments of error for our review, which will be addressed out of sequence to facilitate our analysis.

         II.

         ASSIGNMENT OF ERROR II

         THE 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 DISMISSAL MOTION.

         {¶4} 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.

         {¶5} "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.

         {¶6} 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 below.

         {¶7} 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.

         {¶8} 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 ...


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