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Barton v. Miller

Court of Appeals of Ohio, Fifth District, Stark

August 12, 2019

ROBERT BARTON, ET AL Plaintiffs-Appellants
v.
JOE MILLER Defendant-Appellee

          Civil appeal from the Stark County Court of Common Pleas, Case No.2018CV01385

         JUDGMENT: Reversed and Remanded

          For Plaintiffs-Appellants JON TROYER

          For Defendant-Appellee ALETHA CARVER

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.

          OPINION

          GWIN, P.J.

         {¶1} Appellants appeal the January 8, 2019 and the January 15, 2019 judgment entries of the Stark County Court of Common Pleas.

         Facts & Procedural History

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 ...

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