Palmer v. Mossbarger

[Cite as Palmer v. Mossbarger, 2015-Ohio-231.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
MARC A. PALMER, :
CASE NO. CA2014-04-011
Plaintiff-Appellant, :
OPINION
: 1/26/2015
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:
JANYTH MOSSBARGER, et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
Case No. CVH20130071
Farthing & Stewart LLP, John H. Farthing and Brian S. Stewart, 233 South Scioto Street,
Circleville, Ohio 43113, for plaintiff-appellant
Kiger & Kiger, James A. Kiger, 132 South Main Street, Washington C.H., Ohio 43160-2275,
for defendant-appellee, Janyth Mossbarger
Richard G. Murray, II, 88 West Mount Street, Columbus, Ohio 43215, for defendant-appellee,
Tamara Moulton
M. POWELL, J.
{¶ 1} Plaintiff-appellant, Marc Palmer, appeals a decision of the Madison County
Court of Common Pleas granting summary judgment to defendant-appellee, Janyth
Mossbarger, in an action for waste regarding a 64-acre farm in Mt. Sterling, Ohio.
{¶ 2} In May 2000, Mossbarger's husband died, leaving her a life estate in the
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property, with remainder to three of his relatives from a previous marriage. Timothy
Mossbarger is one of the relatives and remaindermen. Mossbarger and her husband did not
live on the property, but rather rented the land and the residence. After her husband's death,
Mossbarger continued to cash rent the land and the residence as a source of income.
Mossbarger is 78 years old. In 2011, Palmer offered to cash rent the land for $12,700 a
year. Mossbarger rejected the offer. Subsequently, on August 26, 2011, Palmer purchased
Timothy Mossbarger's one-third remainder interest for $112,500. Upon acquiring his one-
third interest, Palmer began making demands on Mossbarger via two letters from his
attorney.
{¶ 3} First, in September 2011, Palmer requested the name and address of the
tenants, as well as documents regarding the fertility of the soil, harvest and yields from
previous years, written rental agreements, and insurance policies. Palmer also expressed his
desire to purchase Mossbarger's life estate interest. Mossbarger ignored Palmer's requests.
Then, in November 2011, Palmer requested the same documents, again expressed his
desire to purchase Mossbarger's life estate interest, and threatened to sue her for failing to
protect his one-third interest in the property. Once again, Mossbarger ignored Palmer's
demands.
{¶ 4} On March 18, 2013, Palmer filed a complaint against Mossbarger, alleging she
was committing waste to the property by failing, inter alia, to maintain, repair, or demolish
buildings on the property, obtain insurance coverage, inspect the heating, well, and septic
system, and provide Palmer with copies of the written rental agreements, recent soil tests,
yields, and fertilizer invoices. The complaint alleged that Mossbarger's failure to protect and
preserve the property constituted voluntary and permissive waste under R.C. 2105.20 and
consequently sought the forfeiture of Mossbarger's life estate interest.
{¶ 5} Mossbarger moved for summary judgment in February 2014. Attached to her
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motion were, inter alia, an affidavit from her son, Jim East, the purchase agreement between
Palmer and Timothy Mossbarger, and the first page of Palmer's responses to interrogatories.
Palmer filed a memorandum in opposition to Mossbarger's motion for summary judgment.
Attached to his memorandum were photos of the property taken in August 2012 and a Soil
Analysis Report from November 2012. Mossbarger filed a response to Palmer's
memorandum and attached Palmer's responses to interrogatories in their entirety.
Mossbarger's deposition, taken in January 2014, was filed with the trial court on March 6,
2014.
{¶ 6} On March 11, 2014, the trial court granted Mossbarger's motion for summary
judgment. Upon finding that Palmer's interest in the property did not begin until August 26,
2011, when Palmer purchased the property in "as is" condition, the trial court held that:
There is no evidence presented in either * * * pleadings that
would allow reasonable minds to conclude that the condition of
the property has in any way deteriorated from the time that
[Palmer] purchased his remainder interest. [Palmer] is primarily
relying on photos taken sometime prior to August 27, 2012 and
soil samples taken November 7th and analyzed on November 14,
2012. There is nothing in the pleadings or exhibits that would
allow a reasonable person to conclude that the property is in any
different condition today as it was on the date that [Palmer]
purchased his interest. The Court concludes that the doctrine of
caveat emptor applies and therefore [Mossbarger's] motion for
summary judgment is granted.
{¶ 7} Appellant appeals, raising one assignment of error:
{¶ 8} THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION FOR
SUMMARY JUDGMENT.
{¶ 9} Palmer argues the trial court erred in granting Mossbarger's motion for
summary judgment because (1) as the moving party, Mossbarger failed to meet her initial
burden of demonstrating she did not commit any acts of waste; (2) by contrast, Palmer met
his burden of demonstrating there is a genuine issue of material fact as to whether
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Mossbarger committed acts of waste; and (3) the trial court improperly applied the doctrine of
caveat emptor to bar Palmer's claim of waste of a life estate.
{¶ 10} At the outset, we find the trial court erred in applying the doctrine of caveat
emptor to bar Palmer's claim of waste. The doctrine of caveat emptor applies to sales of real
estate relative to conditions open to observation. Kearns v. Huckaby, 12th Dist. Butler No.
CA2005-12-507, 2006-Ohio-5196, ¶ 17. As this court has stated, "[w]here disputed
conditions are discoverable and the purchaser has the opportunity for investigation and
determination without concealment or hindrance by the seller, the purchaser has no just
cause for complaint." Pearson v. Ewing, 12th Dist. Madison No. CA2013-07-026, 2014-Ohio-
645, ¶ 21.
{¶ 11} In the case at bar, Palmer is not alleging the property was in a worse condition
when he purchased the remainder interest in August 2011 than the seller, Mossbarger's
stepson, represented it to be. That is, Palmer is not attacking the condition of the property
prior to or at the time of his purchase. Rather, Palmer challenges the manner in which the
property has been treated since his purchase in August 2011 and alleges Mossbarger has
committed waste to the property and allowed its condition to get worse. While the doctrine of
caveat emptor may apply to what one has purchased, it does not bar a claim of waste for
deterioration subsequent to the purchase caused by a life tenant's acts of waste.
Nonetheless, we find the trial court properly granted Mossbarger's motion for summary
judgment.
{¶ 12} Summary judgment is proper when the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations
of fact, if any, show that (1) there is no genuine issue of any material fact; (2) the moving
party is entitled to judgment as a matter of law; and (3) the evidence submitted can only lead
reasonable minds to a conclusion which is adverse to the nonmoving party. Civ.R. 56(C);
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Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). The moving party
bears the initial burden of informing the court of the basis for the motion and demonstrating
the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293
(1996). Once this burden is met, the nonmoving party has a reciprocal burden to set forth
specific facts showing there is some genuine issue of material fact yet remaining for the trial
court to resolve. Id.{¶ 13} In determining whether a genuine issue of material fact exists, the court must
answer the following inquiry: "Does the evidence present a sufficient disagreement to require
submission to a jury or is it so one-sided that one party must prevail as a matter of law?"
Wilson v. Maple, 12th Dist. Clermont No. CA2005-08-075, 2006-Ohio-3536, ¶ 18. In
determining whether a genuine issue of material fact exists, the evidence must be construed
in favor of the nonmoving party. Walters v. Middletown Properties Co., 12th Dist. Butler No.
CA2001-10-249, 2002-Ohio-3730, ¶ 10. An appellate court reviews a trial court's decision to
grant or deny summary judgment de novo, without any deference to the trial court's
judgment. Bravard v. Curran, 155 Ohio App.3d 713, 2004-Ohio-181, ¶ 9 (12th Dist.).
{¶ 14} R.C. 2105.20 governs actions against a life tenant for waste and provides:
A tenant for life in real property who commits or suffers waste
thereto shall forfeit that part of the property, to which such waste
is committed or suffered, to the person having the immediate
estate in reversion or remainder and such tenant will be liable in
damages to such person for the waste committed or suffered
thereto.
By forbidding the life tenant to commit or suffer waste, "R.C. 2105.20 forbids the tenant for
life from permanently diminishing the property value by acting contrary to how a reasonable
prudent person would act to preserve his own property." Reel v. Reel, 11th Dist. Trumbull
No. 2014-T-0023, 2014-Ohio-5079, ¶ 14.
{¶ 15} "Waste" has been defined as "an unlawful act or omission of duty on the part of
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the tenant which results in a permanent injury to the inheritance." Underwood v. Lowe, 6th
Dist. Sandusky No. S-84-30, 1985 WL 7505, *2 (June 7, 1985). Waste is categorized as
either voluntary or permissive. Id. Voluntary waste is willful waste. Id. Permissive waste
"arises from the neglect, omission, sufferance, or permission of the tenant in failing to
preserve or protect the estate." Reams v. Henney, 88 Ohio App. 409, 410 (2d Dist.1950).
{¶ 16} Because an action under R.C. 2105.20 "is a special statutory proceeding and
forfeitures, generally, are not favored by the law, the evidence must be strictly construed."
Rzeszotarski v. Sanborn, 11th Dist. Geauga No. 96-G-1906, 1996 WL 649111, *6 (June 7,
1996); Folden v. Folden, 90 Ohio Law Abs. 218 (4th Dist.1962). "[N]ot every instance of
waste on the part of the life tenant which results in a permanent injury to the inheritance is
actionable." Underwood at *3. Whether waste has been committed depends on the nature
of the property and the particular facts and circumstances in each case. Id., citing Mohler v.
Mohler, 23 Ohio Law Abs. 138, 1936 WL 2139 (9th Dist.1936).
{¶ 17} We find that Mossbarger met her initial burden of demonstrating there was no
genuine issue of material fact as to whether her management of the property constituted acts
of waste. Attached to her motion for summary judgment was the affidavit of Jim East, her
son. The affidavit states that (1) when Mossbarger's late husband purchased the property,
all the buildings "were in a state of disrepair and in fact should have been torn down, except
the dwelling house, which needed some repair;" (2) Mossbarger's late husband "simply cash
rented the land during the latter years of his life and made no substantial improvements to it;"
and (3) "in the last two years, Mossbarger has through her tenant farmer improved the
residence property and it is currently rented."
{¶ 18} The affidavit further states that the property's average yields for soybeans was
47 bushels per acre for the year 2012-2013, when grown, corn averages 200 bushels per
acre, and the "tenant farmer pays $250 per acre cash rent, which is the average rent in that
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part of Madison County, Ohio." The affidavit also expressed East's belief that the tenant
farmer initially employed by Mossbarger's late husband and later retained by Mossbarger "did
engage in good farming practices, maintained the soils and paid an average amount of cash
rent for the acreage over a number of years to [Mossbarger and her late husband]." We find
that in light of East's affidavit, Mossbarger discharged her initial burden under Civ.R. 56 with
regard to Palmer's claim of waste.
{¶ 19} We further find that the trial court properly granted Mossbarger's motion for
summary judgment. Attached to Palmer's memorandum in opposition to Mossbarger's
motion for summary judgment were photos of the property taken in August 2012 and a Soil
Analysis Report from November 2012.1 Evidence submitted by the parties also includes
Mossbarger's deposition.
{¶ 20} The photos clearly depict the general poor condition of the property, including
broken or cut tree limbs on the ground, and the deteriorated condition of buildings on the
property. According to Palmer, the November 2012 Soil Analysis Report shows that the
property's soil is below average to support farming operations. The report itself is a list of
various numbers and percentages regarding three different soil samples. No written
explanatory document accompanies the report.
{¶ 21} In her deposition, Mossbarger testified that (1) the residence on the property is
1. In his memorandum opposing summary judgment, Palmer states that "in deposition testimony, [his] expert
witness Mike Lower [who analyzed the property soil] testified that the results showed the soil had been allowed to
fall well below average quality for farming operations. See Soil Test Results, attached hereto as Exhibit B." The
deposition referenced by Palmer was never transcribed nor filed with the trial court, and therefore does not
comply with Civ.R. 56(C). There is no evidence the trial court considered the foregoing statement. Likewise, we
will not consider it. See French v. New Paris, 12th Dist. Preble No. CA2010-05-008, 2011-Ohio-1309. We
further note that the photos and the report submitted by Palmer are not sworn, certified or authenticated by
affidavit, and are therefore not proper evidence under Civ.R. 56(C) and (E). See Diaz v. Henderson, 12th Dist.
Butler No. CA2011-09-182, 2012-Ohio-1898. Nonetheless, because Mossbarger did not object to their
admissibility below and because the trial court considered both the photos and the report in granting summary
judgment to Mossbarger, we will likewise consider them despite their noncompliance with Civ.R. 56. French at ¶
12; Ohio City Orthopedics, Inc. v. Med. Billing And Receivables, Inc., 8th Dist. Cuyahoga No. 81930, 2003-Ohio-
1881, ¶ 5, fn. 1.
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currently rented but there is no written lease, (2) she has not been to the house in a few
years and has not been on the property in a couple of years, (3) however, the photos taken in
August 2012 depict what she recalls the condition of the property to be, (4) the property has
been farmed by the same family for a long time, and (5) she received $12,200 in cash rent in
2013 for the property and will receive the same amount in 2014. She also testified that (1)
she has an insurance policy on the property and the residence but not on the other buildings
on the property, (2) she relies on her son and the tenants to keep her informed of the
condition of the property and any needed repairs, (3) whenever she has been told about
needed repairs, she took care of it, (4) the last such repair was in 2013 for the well on the
property, (5) about seven years ago, there were some problems with the residence's heating
system and she had someone make the necessary repairs, and (6) her expenses for the
property include real estate taxes, any repairs for the residence, and insurance.
{¶ 22} Upon carefully reviewing the evidence submitted by the parties, which must be
strictly construed in an action for waste, we find that the evidence is so one-sided that
Mossbarger is entitled to judgment as a matter of law. As stated earlier, waste is defined as
"an unlawful act or omission of duty on the part of the tenant which results in a permanent
injury to the inheritance." Underwood, 1985 WL 7505 at *2. Photos submitted by Palmer
clearly show the poor condition of the property and buildings and the fact that the quality of
maintenance of the property is not of the highest degree. However, most items of disrepair
are the result of fair wear and tear, and other items, such as the tree limbs on the ground,
could easily be removed from the property and do not permanently diminish the value of the
property. There is nothing in the pleadings or exhibits that would allow a reasonable person
to conclude that the property is in any different condition today than it was when managed by
Mossbarger's late husband or on the date Palmer purchased his one-third remainder interest.
There is simply no evidence that would allow reasonable minds to conclude that the condition
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of the property during Mossbarger's life estate has worsened and depreciated.
{¶ 23} Palmer cites a decision of the Fifth Appellate District to support his claim that
Mossbarger's failure to protect and preserve the property constitutes waste. See Durben v.
Malek, 5th Dist. Tuscarawas No. 2013 AP 08 0032, 2014-Ohio-2611. In that case, Roxanne
Malek purchased sight unseen a property from Anita and Bill Durben. The purchase
agreement provided that the Durbens would have a life estate on a portion of the property
and prohibited them from committing waste on the land. When Malek took possession of the
property four years later, the house was in a deplorable condition. The Durbens filed a
complaint against Malek for replevin and conversion; she asserted a counterclaim for waste
of the life estate and sought damages. Following a bench trial, the trial court found in favor of
Malek with regard to her waste claim.
{¶ 24} The Fifth Appellate District upheld the trial court's decision as follows:
While [Malek] admits she does not know the exact condition of
the interior of the house in 2007 when she purchased it, from the
above stated facts including [the Durbens'] own admissions that
they did nothing to try to clean or maintain the property, it is
evident that [the Durbens], even accounting for normal wear and
tear, did not return the building to [Malek] in the condition it was
in when she purchased the property in 2007.
Durben at ¶ 61. In support of its decision, the appellate court noted that according to Malek,
it was apparent by 2009 that the condition of the house and premises were deteriorating and
getting worse and worse, and photos submitted by Malek depicted the deplorable condition of
the house. In addition,
Appellant George Durben readily admitted that the situation had
gotten worse after [Malek] purchased the property. George
Durben testified that they did nothing to prevent the condition of
the property from deteriorating or worsening. He admitted that
they failed to repair the plumbing, the furnace, or anything else
when it broke. He admitted that they never cleaned the sinks or
the bath tubs. He further admitted that outside of a failed
attempt trying to clean the front porch, no repairs were made to
the property.
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Id. at ¶ 56.
{¶ 25} We note that in finding that the Durbens had committed waste to the life estate,
it was significant to the appellate court that the condition of the property has worsened during
the Durbens' life estate and since Malek had acquired her interest in the property. We find
that Durben is factually different from the case at bar. Unlike the Durbens, Mossbarger did
not admit that the property had worsened following Palmer's purchase of his one-third
remainder interest, or that she had failed to take care of or make any repairs to the property.
To the contrary, Mossbarger testified she has made any necessary repairs and that the
property and the residence, but not the other buildings, are covered by insurance.
{¶ 26} Accordingly, Mossbarger is entitled to judgment as a matter of law on the claim
that she violated R.C. 2105.20 by committing waste to the property after Palmer acquired his
one-third remainder interest. The trial court, therefore, did not err in granting her motion for
summary judgment.
{¶ 27} Palmer's assignment of error is overruled.
{¶ 28} Judgment affirmed.
PIPER, P.J., and RINGLAND, J., concur.
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