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Rothwell v. Rothwell

Court of Appeals of Ohio, Fourth District, Vinton

January 29, 2018

JACK O. ROTHWELL, et al., Plaintiffs-Appellees,
v.
LAWRENCE V. ROTHWELL, et al. Defendants-Appellants,

          William S. Cole and Evan T. Cole, Cole, Kirby, & Associates, Jackson, Ohio, for appellant.

          Jonathan C. Clark and Daniel A. Yarmesch, Clark & Clark and Associates, LLC, Lancaster, Ohio, for appellees.

          Trecia Kimes-Brown, Vinton County Prosecuting Attorney, and William L. Archer, Jr., Vinton County Assistant Prosecuting Attorney, McArthur, Ohio for defendant Vinton County Treasurer.

          DECISION AND JUDGMENT ENTRY

          William H. Harsha, Judge.

         {¶1} The trial court granted summary judgment to the petitioners on their claim for the partition of property they owned jointly with Lawrence and Mark Rothwell. Appellant Mark Rothwell asserts that the trial court erred because his evidence established a genuine issue of material fact concerning the existence of an implied oral agreement between the parties not to partition the property. However, Mark Rothwell's evidence did not raise a genuine issue of fact, and even if it did, an oral contract is unenforceable under the statute of frauds. We reject his assertion.

         {¶2} He also contends that the trial court erred in finding that his claims were barred by the statute of limitations. However, even if the statute of limitations did not apply, his claims were still meritless. First, there was no evidence of an implied-in-fact agreement not to partition the property. Second, there is no viable claim of fraud. And third, the statute of frauds barred his claims, which were premised on a purported oral agreement.

         {¶3} We affirm the summary judgment of the trial court granting the partition.

         I. FACTS

         {¶4} Jack, Samuel, and Lawrence Rothwell are brothers; Mark Rothwell is Lawrence's son. In August 1995, they obtained ownership of two parcels of property in Vinton County. The deed conveyed a joint life estate to the Rothwells with remainder in fee simple going to the ultimate survivor.

         {¶5} Nearly eleven years later in June 2016, Jack and Samuel Rothwell filed a complaint in the Vinton County Court of Common Pleas for the partition of the real property, naming Lawrence, Mark, and the Vinton County Treasurer as defendants. Mark filed an answer and counterclaim, which alleged that when the Rothwells purchased the property in 1995, Jack and Samuel approached him about investing in the real estate upon the promise that title would be vested jointly with the right of survivorship among the parties. And because Mark was significantly younger than the other parties, he would end up owning the entire interest in the property. Mark claimed that these representations were false and that he had relied upon them.

         {¶6} Lawrence did not respond to his brothers' complaint for partition. Jack and Samuel filed a reply to Mark's counterclaim.

         {¶7} Jack and Samuel filed a motion for summary judgment against Mark and for default judgment against Lawrence. They supported their motion with affidavits which stated: (1) Jack, Samuel, Lawrence, and Mark each have an undivided one- fourth interest as survivorship tenants in the real property; (2) neither Jack nor Samuel told Mark that he would eventually own the entire interest in the real property; and (3) neither Jack nor Samuel entered into any written agreement with Mark stating that he would eventually own the entire interest in the real property.

         {¶8} Mark filed a memorandum in opposition, which primarily argued that Jack and Samuel fraudulently misrepresented that he would eventually own the real property. Mark submitted the affidavits of himself, his father, Lawrence, and his brother, Derek.

         {¶9} Mark and Lawrence stated in their affidavits that: (1) they were approached by Jack and Samuel to purchase the real estate; (2) the purchase price of the real estate was $20, 000 and they each paid $5, 000; (3) it was explained that the property would be held in survivorship form, the last person surviving would own the property free from any other person, and the last person "would most likely be" Mark because "he was the youngest of the four owners"; and (4) had they known that one of the owners could force a sale of the property, they never would have invested in it.

         {¶10} Derek stated in his affidavit that: (1) he had been asked to join as a partner in the potential purchase of the property after being told about the "last man standing, " but he declined because he did not have the money; (2) over the years it was explained that the property was to be held in survivorship form, with the last person surviving owning the property free of any other person, and that the last person surviving would most likely be his brother, Mark, because he was the youngest of the four owners; and (3) he had provided material and labor to improve the real property.

         {¶11} The trial court's decision found that because there was no written agreement supporting Mark's claim, it was barred by the statute of frauds. The court granted Jack and Samuel's motion for summary judgment and default judgment, also found that Mark's claims were barred by the applicable statutes of limitation, and determined that Jack and Samuel were entitled to partition the real property. It ordered Jack and Samuel's counsel to prepare and circulate a judgment entry.

         {¶12} During the pendency of the case, Lawrence died, making Jack, Samuel, and Mark sole owners of the real property. The trial court entered judgment issuing a writ ...


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