appeal from the Stark County Court of Common Pleas, Case
Reversed and Remanded
Plaintiffs-Appellants JON TROYER
Defendant-Appellee ALETHA CARVER
JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
Appellants appeal the January 8, 2019 and the January 15,
2019 judgment entries of the Stark County Court of Common
& Procedural History
On July 17, 2018, appellants Robert Barton
("Barton") and L.C.F., Incorporated filed a
complaint for breach of contract against appellee Joe Miller.
In the complaint, Barton alleges he and appellee entered into
an oral contract in 2009 related to appellee's purchase
of Gorant Chocolatier, LLC. Appellants aver appellee agreed
to pay Barton a finder's fee of $80,500 upon successful
completion of appellee's purchase of Gorant and a 5% fee
on any future sale of real estate obtained by appellee in the
purchase of Gorant. Appellants allege the purchase of Gorant
was completed on October 9, 2009, and while appellee made
partial payments in 2009 and 2010, he failed to make further
payments on the remaining balance. Appellants aver appellee
made a written acknowledgment via letter dated April 9, 2010
indicating a desire to pay the remaining balance through the
summer of 2010 and argue this letter constitutes a written
contract, the breach of which is within the eight-year
statute of limitations. Appellants further allege Barton
agreed to extend appellee's deadline for payment of the
balance of the finder's fee until the end of the summer
of 2012 and the breach of such modification is within the
six-year statute of limitations for oral contracts.
Appellee filed an answer to the complaint on September 7,
2018. On December 14, 2018, appellee filed a motion for
judgment on the pleadings. Appellee argues he is entitled to
judgment on the pleadings because appellants' complaint
is barred by the statute of limitations.
On January 7, 2019, appellee filed a motion for leave to file
a first amended answer. Appellee sought to amend his answer
to assert counterclaims against appellants.
The trial court issued a judgment entry granting
appellee's motion for judgment on the pleadings on
January 8, 2019. The trial court noted appellants did not
respond to the motion for judgment on the pleadings. The
trial court found appellants' claim is based solely upon
an oral breach of contract and is thus barred by the
applicable statute of limitations. The trial court included
Civil Rule 54(B) language and stated the judgment entry dated
January 8, 2019 is a final appealable order.
On January 15, 2019, the trial court issued a nunc pro tunc
entry granting appellee's motion for judgment on the
pleadings. The trial court stated as follows:
This judgment entry is being filed as a nunc pro tunc entry
in order to delete the final appealable order language
contained in the previous filing. The basis for this deletion
is that on January 7, 2019, defendant filed a motion for
leave to file first amended answer which asserts
counterclaims against plaintiffs. The court was not aware
that the motion ...