Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kertes Enterprises, LLC v. Sanders

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 6, 2019

KERTES ENTERPRISES, LLC, Plaintiff-Appellant,
v.
STEVE SANDERS, ET AL., Defendants-Appellees.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-885535

          Berns, Ockner & Greenberger, L.L.C., Paul M. Greenberger, and Jordan Berns, for appellant

          David J. Horvath, for appellees.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, J.

         {¶ 1} Plaintiff-appellant Kertes Enterprises, LLC ("Kertes"), appeals the decision of the trial court that ruled upon the motions for summary judgment filed by the parties and declared void an agreement executed by Kertes and defendants-appellees Steve Sanders and Mirica Sanders (collectively "the Sanders"). Upon review, we reverse the trial court's decision to grant summary judgment in favor of the Sanders on the counterclaim for declaratory relief. We find the agreement is not void for want of a proper party. Because no cross-appeal was filed, we affirm the trial court's decision to grant summary judgment in favor of Kertes on the remaining counterclaims. Because we determine the trial court erred in declaring the agreement void, the trial court's denial of summary judgment on the breach-of-contract claim is no longer a final, appealable order and is not subject to review. The case is remanded for further proceedings on the breach-of-contract claim.

         Background

         {¶ 2} On or about May 25, 2016, the parties executed an agreement titled "Purchase Agreement - Offer, Receipt and Acceptance" ("the agreement"). The agreement pertains to the purchase of residential property. The property at issue is a newly built, single-family home in Orange Village, Ohio ("the property"). The agreement set forth a purchase price of $685, 000 and required a deposit of $7, 000 as earnest money. The closing date for transfer of the property was to be on or about July 8, 2016. The following additional term and condition appears in handwriting on the agreement: "Parties agree to execute [within] 5 days the builder's purchase agreement [and] addendums[.] (Builders agree to build out basement at builder's cost subject to both parties)[.]"

         {¶ 3} Subsequent to the execution of the agreement, the Sanders paid the earnest money into escrow. The builder's contract was not provided to the Sanders within five days, but was provided several days later, and the Sanders found certain obligations imposed therein objectionable, which they assert included a $3, 000 capital contribution, a $200 per month increase in monthly fees not previously disclosed, and other issues. The Sanders notified Kertes verbally on June 10, 2016, and in an email on June 29, 2016, that they would not be moving forward with the purchase, and they requested a release of the earnest money.

         {¶ 4} At the time the agreement between Kertes and the Sanders was executed, the fee titleholder of the property was Lakes of Orange, LLC. Randy Kertesz, the president of Kertes, stated in an affidavit that the property was transferred to Kertes prior to the closing date set forth in the agreement with the Sanders. Kertes subsequently sold the property months later for a lesser amount than the purchase price set forth in the agreement.

         {¶ 5} On September 6, 2017, Kertes filed a complaint that raised a breach-of-contract claim against the Sanders. Kertes alleged that the parties entered into a purchase agreement under which Kertes agreed to sell and the Sanders agreed to buy real estate and a house located in Orange Village, Ohio, and that the Sanders breached the agreement by refusing to close on the transaction. Kertes sought damages in the amount of $84, 637.92 plus interest, costs, and attorney fees.

         {¶ 6} The Sanders filed an answer in which they admitted entering into the agreement. They raised a number of affirmative defenses, including, among others, that the contract is void for fraudulent representation, that the contract is void because the plaintiff is not the proper party in interest, and want of condition precedent. The Sanders included a counterclaim that raised causes of action for intentional infliction of emotional distress, declaratory relief that the contract be declared void and unenforceable for want of a proper party, fraudulent misrepresentation, and violation of the Ohio Consumer Sales Practices Act.

         {¶ 7} Kertes filed a motion for partial summary judgment seeking judgment in its favor on all of the counterclaims and on its claim for breach of contract, except reserving the issue of damages for trial. Kertes argued that the agreement entered by the parties was legally binding, that Kertes performed its material obligations under the agreement, that the Sanders breached the agreement by refusing to purchase the property, and that it was damaged by the reduced sale price of the property after using commercially reasonable efforts to minimize damages. Kertes also set forth arguments pertaining to the counterclaims.

         {¶ 8} The Sanders also filed a motion for summary judgment. They argued that the agreement was nothing more than a contract to make a contract, that the agreement was intended to be an option contract, and that condition precedents and contingencies were not satisfied and relieved them of performance. They further argued that the contract was unenforceable because Kertes did not own the property at the time the agreement was executed and the agreement was rescinded before Kertes obtained title. They also presented arguments in support of their claims for fraudulent misrepresentation and violation of the Ohio Consumer Sales Practices Act.

         {¶ 9} On the motion for partial summary judgment filed by Kertes, the trial court found Kertes was not entitled to summary judgment on the breach of contract claim and on the counterclaim for declaratory relief. The court granted summary judgment in favor of Kertes on the counterclaims for intentional infliction of emotional distress, fraudulent misrepresentation, and for violations of the Ohio Consumer Sales ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.