FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
WAYNE, OHIO CASE No. 2015-CVC-H-000118
GALLICK, Attorney at Law, for Appellant.
DOUGLAS DRUSHAL and ERIC T. MICHENER, Attorneys at Law, for
DECISION AND JOURNAL ENTRY
James Burr appeals a judgment of the Wayne County Court of
Common Pleas that ordered specific performance of a real
estate purchase agreement. For the following reasons, this
In October 2014, David Klossner entered into a real estate
purchase agreement with Mr. Burr concerning six acres of land
on which Mr. Klossner wanted to build a manufacturing
facility. Because the land was not next to the road, the
agreement also granted Mr. Klossner a permanent easement on
more of Mr. Burr's land so that he could build an
entrance to the facility. The agreement was contingent on the
parties obtaining the zoning variances needed for the
facility from the township where the land is located.
After the parties signed the agreement, Mr. Klossner started
seeking the zoning variances. During the process, he learned
that the driveway would have to be 100 feet wide, instead of
the 60 feet provided for in the purchase agreement. He
emailed Mr. Burr about modifying the agreement, and Mr. Burr
agreed to the change. Next, he learned that the township
wanted the facility moved farther away from nearby housing,
so he asked Mr. Burr if they could move everything over 75
feet. Mr. Burr agreed to that change too.
A couple of weeks after the second modification, Mr. Klossner
learned that there was a leach field under some of the land
where he intended to build the driveway. The leach field was
part of the septic system of a building on adjacent property.
Although no one was exactly sure of the leach field's
layout, the county health department was concerned that Mr.
Klossner's project would damage it. Mr. Klossner told Mr.
Burr about the issue and suggested that he take legal action
against the neighboring land owner. He also asked Mr. Burr if
they could add 15 feet to the south side of the easement on a
temporary basis, so that he could begin construction of the
facility before the leach-field issue was resolved. Mr. Burr
responded by email that Mr. Klossner could have a temporary
Mr. Klossner continued working on the project through
February 2015. At one point he offered to buy all of Mr.
Burr's land, but Mr. Burr found his proposal laughable.
On March 7, Mr. Klossner emailed Mr. Burr, explaining that he
could not get a septic permit for his facility because the
health department feared that the temporary easement might
expire before the leach-field issue was resolved. He,
therefore, asked Mr. Burr if the temporary easement could
become permanent if the neighboring landowner ended up being
able to keep the leach field in place. Mr. Burr did not reply
to the message. A couple of days later, the health department
approved the construction of the driveway, however, based on
additional assurances from Mr. Klossner about the leach
Over the following 10 days, Mr. Klossner sent updates to Mr.
Burr, but Mr. Burr did not send any replies. On March 17, Mr.
Klossner emailed Mr. Burr that there was a good chance that
they would be able to close their deal on March 20. Mr. Burr
answered that he thought Mr. Klossner had "jumped the
gun" because they still had not worked out a definition
of "temporary" and the definition that Mr.
Klossner's lawyer had proposed was unacceptable. Mr. Burr
also explained that he felt as if Mr. Klossner had put him in
the position where he had to hire his own lawyer. After
receiving a letter from Mr. Klossner's lawyer on March 20
that threatened him with legal action if he did not proceed
to closing, Mr. Burr stopped communicating with Mr. Klossner.
In April 2015, Mr. Klossner filed a complaint for specific
performance against Mr. Burr, and the matter proceeded to a
bench trial. Following the trial, each party submitted
proposed findings of fact and conclusions of law. The court
adopted Mr. Klossner's proposal and entered a judgment
that conveyed title of the property to him along with a
permanent and temporary easement. Mr. Burr has appealed,
assigning as error that the trial court abused its discretion
when it ordered specific performance.