JAD Rentals of Youngstown, L.L.C. v. Cox ( 2021 )

[Cite as JAD Rentals of Youngstown, L.L.C. v. Cox, 2021-Ohio-304.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
JAD RENTALS OF YOUNGSTOWN, LLC,
Plaintiff-Appellee,
v.
SHARON L. COX,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0096
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2018 CV 878
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. Alden Chevlen , 5202 Nashua Drive, Youngstown, Ohio 44512, for Plaintiff-
Appellee and
Atty. John Ams, 134 Westchester Drive, Youngstown, Ohio 44515, for Defendant-
Appellant.
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Dated: January 27, 2021
D’Apolito, J.
{¶1} Appellant, Sharon L. Cox, appeals from the judgment of the Mahoning
County Court of Common Pleas overruling her objection and adopting the magistrate’s
decision awarding Appellee, JAD Rentals of Youngstown, LLC, specific performance on
a breach of a real estate purchase contract. On appeal, Cox asserts the trial court abused
its discretion in adopting the magistrate’s decision. Cox specifically alleges the trial
court’s judgment applies the incorrect legal standard of “substantial hardship” for
determining whether specific performance is the appropriate remedy and fails to cite case
law to support its conclusion. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} This matter involves a breach of contract based upon an executed, written
agreement for the purchase and sale of property located at 324 North Fruit Street,
Youngstown, Mahoning County, Ohio, 44506, Permanent Parcel No. 53-026-0-044-00.0.
JAD Rentals (as buyer) and Cox (as seller) entered into and executed the written
agreement on February 12, 2018 (Exhibit B; Plaintiff’s Exhibit 1). Cox agreed to sell and
JAD Rentals agreed to buy the subject premises for $41,000. JAD Rentals remitted and
Cox accepted a $50 deposit in connection with and in consideration of the parties’
execution of the purchase agreement. An agreed upon closing date was set for March
14, 2018.
{¶3} Specifically, the parties’ agreement, dated February 12, 2018, states:
On this day JAD Rentals of Youngstown LLC, Anita Dintino as Manager and
Sharon Cox agree To a Sell (sic) of her properties at 324 Albert St
Youngstown Ohio and Lot across the Street for the sale of the Properties a
$50.00 Deposit was giving (sic) and the price of the sale of said Properties
is $41,000.00[.] Sharon is to set up closing on property With a Title
guarantee Within 30 days.
Case No. 19 MA 0096
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(2/12/2018 Purchase Agreement; Exhibit B; Plaintiff’s Exhibit 1)
{¶4} The foregoing language is typed and both parties’ signatures appear on the
agreement. (Id.) In printed handwriting directly underneath the typed paragraph, which
is initialed by Cox, it states: “properties taxes payed in full and water bill payed in full.”
(Id.) In addition, as the typed street name is incorrectly listed, the corrected address is
contained in the agreement in printed handwriting, which is both initialed and signed by
Cox, and states: “property address[,] property is listed as 324 North Fruit[,] Yo., Ohio
44506[.]” (Id.)
{¶5} JAD Rentals attempted to tender the purchase price to Cox. However, Cox
has failed and refused to accept the tender, refused to make the conveyance, refused to
proceed to closing, and refused to furnish a title guarantee for the subject premises to
JAD Rentals in accordance with the terms of the purchase agreement.
{¶6} As a result, on April 4, 2018, JAD Rentals filed a “Complaint for Specific
Performance and Damages” against Cox. JAD Rentals alleges that the subject property
is unique and valuable and that monetary damages alone are inadequate. On April 27,
2018, Cox filed an answer. On May 23, 2018, Cox filed a motion for summary judgment,
which the trial court denied on March 25, 2019.
{¶7} A trial was held before the magistrate on March 27, 2019.
{¶8} Anita Dintino is the manager of JAD Rentals. (3/27/2019 Trial T.p. 9).
Dintino testified for JAD Rentals on direct examination that she has been a licensed
cosmetologist for over 25 years and has owned two beauty salons. (Id. at 10). Dintino
saw a “For Sale” sign at the subject property. (Id. at 9). Dintino made numerous attempts
via telephone over a two-week period to express her interest. (Id.) Her calls were not
returned. (Id. at 12). Dintino thereafter went to the property and directly expressed her
interest in person to Cox. (Id. at 12-14). Dintino likes this particular property because
JAD Rentals owns a concession trailer and she can operate the trailer outside of the
beauty shop. (Id. at 22).
{¶9} Dintino and Cox later had a discussion regarding the sale of the property.
(Id. at 13). Dintino offered $41,000 cash, “all inclusive[,]” including “[t]he real estate, the
buildings, equipment, et cetera,” and prepared the purchase agreement. (Id. at 15, 18,
20; Plaintiff’s Exhibit 1). The contract stated 30 days for closing, there were no
Case No. 19 MA 0096
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contingencies, and the building was “as-is.” (Id. at 15, 19; Plaintiff’s Exhibit 1). Cox
signed the contract agreeing to all terms. (Id. at 16; Plaintiff’s Exhibit 1). After the
execution of the agreement, and within the 30-day closing period, Dintino contacted Cox
to check on the status of the sale after not hearing back from her. (Id. at 20).
{¶10} On cross-examination, Dintino testified that although the purchase
agreement did not specifically state “buyer and seller,” it was obvious who the buyer and
seller of the property are. (Id. at 27-28; Plaintiff’s Exhibit 1). Dintino stated the agreement
includes the purchase price, the property address, and that a $50 deposit was given. (Id.
at 28; Plaintiff’s Exhibit 1). Dintino said there was a meeting of the minds. (Id. at 29).
After signing the agreement, the parties discussed title work, which Dintino agreed to pay.
(Id. at 29-32). A verbal argument subsequently ensued over the telephone and Cox
stopped speaking to Dintino. (Id. at 36).
{¶11} On re-direct, Dintino testified that the language “On this day” in the
agreement refers to February 12, 2018, the date the contract was executed by the parties.
(Id. at 39; Plaintiff’s Exhibit 1). The agreement was prepared that day and they met that
afternoon to sign it. (Id.) Dintino indicated it is clear that Cox owns the property, thereby
making her the “seller.” (Id. at 40).
{¶12} Frank Naypaver also testified for JAD Rentals. Naypaver helps his friend,
Dintino, on occasion. (Id. at 45). Naypaver accompanied Dintino to the beauty salon to
inspect the building. (Id. at 45-46). Naypaver witnessed both Dintino and Cox sign the
agreement but did not hear any discussion regarding its specific terms. (Id. at 47).
{¶13} Cox testified on direct examination that when Dintino came into her shop
indicating that she wanted to purchase the building, Cox initially told her that it was not
for sale. (Id. at 56). There was a “For Sale” sign in the front yard with a phone number
listed for a Tracfone. (Id. at 57). Cox said the building was for sale about two or three
months before Dintino’s inquiry. (Id.) Cox did not remove the “For Sale” sign due to the
snowy weather. (Id.) According to Cox, Dintino was persistent in her efforts to buy the
property and offered cash. (Id. at 59). Cox felt “threatened.” (Id. at 60). The two
exchanged phone numbers and Dintino left. (Id. at 61).
{¶14} Dintino thereafter called Cox several times and ultimately offered her
$41,000 cash. (Id. at 62, 64). Cox called Dintino back and said, “your offer is good.” (Id.
Case No. 19 MA 0096
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at 64). Cox said Dintino asked her to write a little slip of paper stating that Cox wanted to
sell the property to Dintino. (Id. at 66). Dintino also asked if she could see the basement.
(Id. at 67).
{¶15} The parties met again in person in the afternoon on February 12, 2018. (Id.
at 68). Naypaver accompanied Dintino to the salon and performed an inspection. (Id. at
69). Cox forgot to bring her paper. (Id. at 68). However, Dintino brought hers and she
and Cox signed the purchase agreement. (Id. at 54-55; Plaintiff’s Exhibit 1). Cox testified
that the deal did not get done within 30 days due to her health issues. (Id. at 74). Cox
claimed she did not know that the piece of paper she had signed was a contract. (Id. at
76).
{¶16} On cross-examination, Cox testified she received the building from her
mother, Georgia Cox, in 1997. (Id. at 80; Exhibit A). Cox personally paid “nothing” for
the building. (Id. at 81; Exhibit A). Cox said the property was not for sale at the time of
Dintino’s inquiry, although the “For Sale” sign was still outside. (Id.) Cox also said she
had several open houses and some fliers printed with a listed asking price of $49,500,
“Negotiable to $40,000.” (Id. at 82-83). Cox stated she had taken two real estate classes
in the past. (Id. at 85).
{¶17} There was no re-direct, and the parties proceeded to closing arguments.
(Id. at 88-99).
{¶18} On June 4, 2019, the magistrate filed a decision awarding JAD Rentals
specific performance and ordering Cox to arrange for closing on the property within 30
days. Cox filed an objection to the magistrate’s decision on June 18, 2019. JAD Rentals
filed an objection to Cox’s objection to the magistrate’s decision ten days later. On August
12, 2019, the trial court overruled Cox’s objection and affirmed and adopted the
magistrate’s decision.
{¶19} Cox filed a timely notice of appeal and raises one assignment of error.1
1On October 30, 2019, this court determined that the trial court’s August 12, 2019 judgment entry was not
a final, appealable order because it adopted the magistrate’s decision without ever stating the rights, duties,
and obligations of the parties. As a result, this court held the premature appeal in abeyance for a period of
30 days and issued a limited remand to the trial court for the sole purpose of entering a final, appealable
order. Pursuant to this court’s limited remand, the trial court filed a final, appealable order on December
13, 2019, and Cox filed an amended notice of appeal ten days later.
Case No. 19 MA 0096
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ASSIGNMENT OF ERROR
THE TRIAL COURT’S DECISION APPLIES THE INCORRECT LEGAL
STANDARD OF “SUBSTANTIAL HARDSHIP” FOR DETERMINING
WHETHER SPECIFIC PERFORMANCE IS THE APPROPRIATE
REMEDY AND CITES NO LAW TO SUPPORT ITS CONCLUSION.
{¶20} “An appellate court reviews the trial court’s adoption of
a magistrate’s decision under an abuse of discretion standard. Proctor v. Proctor, 48
Ohio App.3d 55, 548 N.E.2d 287 (3d Dist.1988). The trial court’s determination will only
be reversed where it appears the trial court’s action was unreasonable or arbitrary. Id.”
Kurilla v. Basista Holdings, LLC, 7th Dist. Mahoning No. 16 MA 0101, 2017-Ohio-9370, ¶
17.
In order to establish a breach of contract claim, a plaintiff must demonstrate
by a preponderance of the evidence that: (1) a contract existed, (2) the
plaintiff fulfilled its obligations, (3) the defendants failed to fulfill their
obligations, and (4) damages resulted from this failure. Fed. Natl. Mtge.
Assn. v. Brown, 7th Dist. Columbiana No. 16 CO 0008, 2017-Ohio-9237, ¶
26. A preponderance of the evidence “is evidence which is of greater weight
or more convincing than the evidence which is offered in opposition to it;
that is, evidence which as a whole shows that the fact sought to be proved
is more probable than not (* * *) or evidence which is more credible and
convincing to the mind.” Alazaus v. Haun, 7th Dist. Carroll No. 740, 2001-
Ohio-3230, quoting Black’s Law Dictionary (6th Ed. Abr. 1991) 819.
Snyder v. Lawrence, 7th Dist. Carroll No. 19 CA 0938, 2020-Ohio-3358, ¶ 26.
{¶21} “‘(R)eal estate is almost always unique, and specific performance of a
written contract for its sale is a common remedy for a breach of that contract.’” Shrock v.
Mullet, 7th Dist. Jefferson No. 18 JE 0018, 2019-Ohio-2707, ¶ 60, quoting Holstein v.
Crescent Communities, Inc., 10th Dist. Franklin No. 02AP-1241, 2003-Ohio-4760, ¶ 16.
{¶22} In its December 13, 2019 judgment, the trial court stated:
Case No. 19 MA 0096
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In the case at bar, the Court finds that a contract existed. The parties agree
that Ms. Dintino made an offer of $41,000.00; Ms. Cox accepted the offer;
there was a meeting of the minds with regard to the essential terms; Ms.
Dintino gave Ms. Cox $50.00 as consideration for the sale of the property;
and there was certainty as to the essential terms, including the description
of the property. See Walkana v. Hanna, 1988 Ohio App. LEXIS 4357(finding a property address was a sufficient description, and if further
description was necessary parole evidence could be offered to better
describe the property.)
Further, the Court finds that Defendant breached the contract. A contract
existed; Plaintiff fulfilled her obligation by paying the agreed upon deposit
to Defendant; Defendant failed to fulfill her obligations by scheduling the
closing within 30 days of the date of the Agreement; and Plaintiff was
damaged by said failure. Specifically, Plaintiff was out the deposit and the
property she had chosen because of the beauty shop and vacant land that
would accommodate her trailer.
In the action herein, Plaintiff seeks specific performance of the contract, or
in the alternative, monetary damages. Ms. Dintino testified that she
selected this particular property because it had both a hair salon (she is a
cosmetologist) and an open area of land to accommodate her concession
trailer. Thus, Plaintiff is desirous of acquiring this particular parcel that fits
its needs. Defendant testified that she suffers from some physical ailments
that have caused her ongoing issues and inconvenience; however, she
presented no evidence that specific performance would present a
substantial hardship to her. Essentially, she characterized Ms. Dintino as
annoying and even harassing with her constant prodding with respect to the
purchase of the property. Nonetheless, the evidence suggests that she
voluntarily entered into the contract for the sale of the property. Further, the
Court finds JAD is ready, willing and able to perform. Accordingly, this Court
Case No. 19 MA 0096
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finds the only appropriate remedy in the case at bar is specific performance
of the contract.
(12/13/2019 Judgment Entry, p. 2-3).
{¶23} Cox mainly argues that no contract exists because the written agreement is
ambiguous. Dintino, on the other hand, stresses that the contract language is clear.
Based on the record before us, this court does not find that the trial court abused its
discretion in determining that a contract exists. Clearly, there was an offer, acceptance,
and consideration. See, e.g., Sugar v. Blum, 7th Dist. Mahoning No. 02 CA 234, 2004-
Ohio-1384, ¶ 14. There is nothing in the agreement which is uncertain, ambiguous, or
fraudulent. Although the contract is very simple, it contains the necessary elements to be
binding.
{¶24} Parole evidence was introduced merely in response to Cox’s attack on the
use of the pronouns and the legality of the contract. However, one can easily discern
from the contract language that Cox is the seller, as “Cox agree[d] To a Sell (sic) of her
properties[.]” (2/12/2018 Purchase Agreement; Exhibit B; Plaintiff’s Exhibit 1). One can
also easily discern that JAD Rentals is the buyer, as there are only two parties to the
contract, Cox and JAD Rentals, and the contract language provides: “JAD Rentals of
Youngstown LLC, Anita Dintino as Manager and Sharon Cox agree To a Sell (sic) of her
properties[.]” (Id.) The testimony of Dintino, Naypaver, and Cox at the trial before the
magistrate further corroborates that Cox is the seller and JAD Rentals is the buyer.
{¶25} Although the typed street name is incorrectly listed, the corrected address
is contained in the agreement in printed handwriting, which is both initialed and signed by
Cox, and states: “property address[,] property is listed as 324 North Fruit[,] Yo., Ohio
44506[.]” (Id.) The agreement clearly sets forth the purchase price, “$41,000.00” and a
deposit amount of “$50.00.” (Id.) The agreement also includes the time for performance:
“Sharon is to set up closing on property With a Title guarantee Within 30 days.” (Id.)
Although Cox alleges there was no “meeting of the minds,” she and Dintino both
voluntarily signed the agreement on February 12, 2018. In fact, Cox initialed the
agreement two times and also signed it two times. (Id.)
{¶26} In support of her position that the trial court erred in granting specific
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performance to JAD Rentals, Cox cites to Roth v. Habansky, 8th Dist. Cuyahoga No.
82027, 2003-Ohio-5378. Our Sister Court indicated that a contract must be “free from
any misrepresentation or misapprehension, fraud or mistake, imposition or surprise; not
an unconscionable or hard bargain; and its performance not oppressive upon the
defendant[.]” Id. at ¶ 16. Roth stressed that “[i]t is well established that specific
performance will not be granted where it will cause unreasonable hardship, loss or
injustice to the party in breach.” Id. at ¶ 19. The court held that the purchasers were not
entitled to specific performance of a real estate contract, concluding that enforcement of
the contract would be “oppressive” because of “hardship” to the sellers. Id. at ¶ 19-20.
{¶27} Unlike Roth, there is no misrepresentation, fraud, surprise, or mistake
regarding the agreement at issue in the case at bar. Although Cox found Dintino’s
demeanor to be annoying and overbearing at times, there is no evidence that Cox was
coerced into signing the contract. There is also no evidence that Cox would incur any
hardship by selling the property to JAD Rentals.
{¶28} The trial court relied on the plain language of the contract, which was closely
examined during trial, and upheld the contract as written and understood by both parties.
The property here is unique in that JAD Rentals seeks a beauty salon with additional land,
zoned commercial, on which it may operate a second business, a food concession trailer.
Dintino testified that she had been looking for a property with the foregoing, specific
characteristics for quite some time and that Cox’s property met that criteria. (3/27/2019
Trial T.p. 22). Dintino conducted the necessary due diligence and was willing to pay a
premium for the property. (Id. at 22-23).
{¶29} This court does not find that the trial court committed error in determining
that Cox’s property is unique and, thus, subject to specific performance. See Shrock,
supra, at ¶ 60. There is no evidence in the record that the “common remedy” of specific
performance will cause Cox any hardship or injustice. Id. Upon consideration, the trial
court did not abuse its discretion in overruling Cox’s objection and adopting the
magistrate’s decision.
CONCLUSION
{¶30} For the foregoing reasons, Cox’s sole assignment of error is not well-taken.
Case No. 19 MA 0096
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The judgment of the Mahoning County Court of Common Pleas adopting the magistrate’s
decision and awarding JAD Rentals specific performance on the real estate purchase
contract is affirmed.
Waite, J., concurs.
Robb, J., concurs.
Case No. 19 MA 0096
[Cite as JAD Rentals of Youngstown, L.L.C. v. Cox, 2021-Ohio-304.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.