Court of Appeals of Ohio, Fourth District, Vinton
JACK O. ROTHWELL, et al., Plaintiffs-Appellees,
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.
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.
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.
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.
We affirm the summary judgment of the trial court granting
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.
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.
Lawrence did not respond to his brothers' complaint for
partition. Jack and Samuel filed a reply to Mark's
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.
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,
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.
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.
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.
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 ...