Danberry Co. v. Nadeau

[Cite as Danberry Co. v. Nadeau, 2020-Ohio-5366.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
The Danberry Co. Court of Appeals No. L-19-1254
Appellee Trial Court No. CI0201801344
v.
Teresa Nadeau DECISION AND JUDGMENT
Appellant Decided: November 20, 2020
*****
James P. Silk, Jr. and Douglas A. Wilkins, for appellee.
Teresa Nadeau, pro se.
*****
MAYLE, J.
{¶ 1} Appellant, Teresa Nadeau, appeals the October 4, 2019 judgment of the
Lucas County Court of Common Pleas granting summary judgment in favor of appellee,
The Danberry Co. (“Danberry”). For the reasons that follow, we affirm the trial court’s
judgment.
I. Background
{¶ 2} On September 26, 2017, the parties entered into a listing agreement whereby
Danberry was engaged to be the exclusive listing agent for the sale of Nadeau’s property
located at 920 Bury Road in Oregon, Lucas County, Ohio. Under that agreement,
Danberry had the exclusive right to list Nadeau’s property for six months. The
agreement stated that Danberry had the right to sell Nadeau’s property for $339,000, “or
to sell or exchange it on any other terms or price, which Owner accepts in writing.” The
agreement further provides that “[i]f an offer is secured on the above terms or an offer is
obtained which [Nadeau] accepts in writing,” Nadeau is obligated to pay Danberry a
commission of $295 plus 5.76 percent of the purchase price.
{¶ 3} Tom Smith and Chris Hall are agents with Danberry who worked with
Nadeau to list her house for sale. According to Hall, after the listing agreement was
signed, the parties agreed to place the sale on hold until repairs from basement flooding
were completed. On November 1, 2017, the house was ready for sale and Smith took
photos of Nadeau’s house. The next day, Smith and Nadeau had a meeting, during which
they changed the date of the already-executed listing agreement to November 2, 2017,
and added handwritten dates to specify that the exclusive six-month listing period would
begin on November 2, 2017, and end on May 2, 2018.
{¶ 4} At that same time, the parties signed a “Graduated Commission Addendum
to the Listing Agreement,” which states that the commission charged on Nadeau’s
property would be $295 plus 7 percent of the first $150,000 of sale price, 6 percent of any
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amount between $150,001 and $200,000, 5 percent of any amount between $200,001 and
$250,000, and 4 percent of any amount over $250,000. Nadeau’s signature is on the
addendum without a date, but the signature on behalf of Danberry—presumably Tom
Smith, although it is not very legible—is dated November 2, 2017. The addendum
further provides, in handwriting, that the addendum applies to the listing agreement dated
“5-2-18.” Although there was no listing agreement dated May 2, 2018, the parties had
specified that the six-month listing period would expire on May 2, 2018.
{¶ 5} Nadeau, however, disputed that she agreed to the Graduated Commission
Addendum, and she claimed that Danberry forged her signature on that document. She
also alleged that Danberry fraudulently changed the date of the listing agreement from
September 26, 2017, to November 2, 2017. She did not, however, dispute that she
entered into the listing agreement with Danberry on September 26, 2017.
{¶ 6} On November 2, 2017, the property became an active listing on the Toledo
Regional Association of Realtors Multiple Listing Service.
{¶ 7} On November 15, 2017, Hall presented Nadeau with an offer from Erik and
Jill Vidra, non-parties to this appeal, to purchase the property for the asking price of
$339,000. Nadeau accepted the offer and she and the Vidras executed a written purchase
agreement on November 22, 2017. Per the terms of the purchase agreement, the parties
were to close on the property on or before January 15, 2018, and Nadeau was required to
give up possession of the property within five days after closing.
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{¶ 8} On January 2, 2018, Hall emailed Nadeau. He reminded her of the
approaching closing date, and asked Nadeau to call him to discuss the possibility of
escrowing certain repair costs at closing. In response, Nadeau informed Hall that she was
not ready to close because the Dundee, Michigan house that she intended to move into
would not be ready until the end of January. Hall then asked Nadeau what she proposed
to do, given that the Vidras were contractually entitled to take possession of the property
five days after closing—which, at that point, was the “20th or 21st” of January, given that
the buyers had already agreed to a January 16 closing date because January 15 was the
Martin Luther King holiday.
{¶ 9} Throughout their subsequent email correspondence, Nadeau expressed her
desire to delay turning over possession of the property—stating that she thought that
“closing would have to occur at the same time my Dundee home would be ready.” Hall
repeatedly reminded Nadeau that the closing date was specified in the contract as January
15, and the closing date could not be changed again unless both parties agreed. Hall
repeatedly asked Nadeau for “something to take back to the purchaser who is expecting
possession on the 21st.” Nadeau did not respond to Hall’s requests for a proposal that he
could take back to the Vidras.
{¶ 10} From the parties’ correspondence, it appears that Hall and Nadeau had a
phone call on or about January 16, 2018—the rescheduled closing date—after which Hall
emailed Nadeau, forwarding all of his previous emails with her, and stated:
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Teresa, attached are the emails I sent you trying to get you to give me a date
to put on the contract for possession the last several weeks. As I said, I
cannot be ambiguous, I must have specific dates. If you want January 31st,
I can propose that, but again remember that is a specific date. On our
phone call you kept repeating that I did not respond to your request to
extend the dates, and I did but I need a specific date. If you still want to
close and have possession till [sic] the 31st, I can propose that to the buyers
[sic] agent.
{¶ 11} Nadeau did not respond to that email, and the closing did not occur on
January 16, 2018, as scheduled.
{¶ 12} According to Hall, Nadeau then attempted to re-negotiate Danberry’s
commission on January 16, 2018. Hall informed Nadeau that he was unwilling to do so,
given that Danberry had fulfilled its obligations under the listing agreement by obtaining
a purchaser who was willing to pay full asking price for the home, and the sale did not
close because Nadeau failed to abide by her own obligations under her purchase
agreement with the Vidras.
{¶ 13} On February 1, 2018, the Vidras and Danberry, acting as co-plaintiffs, filed
a complaint in the Lucas County Court of Common Pleas alleging that Nadeau breached
her contractual obligations to them. The Vidras sought specific performance of the
purchase agreement—namely, possession of the premises—and Danberry sought
payment of its commission in the amount of $295 plus 5.76 percent of the agreed-upon
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sale price (as specified in the listing agreement dated September 26, 2017), for a total of
$19,873.24 in alleged damages.
{¶ 14} On April 7, 2018, Nadeau answered the complaint and filed a counterclaim
against Danberry alleging breach of contract, breach of fiduciary duty, and fraud.
Danberry answered Nadeau’s counterclaims on May 31, 2018, denying all allegations.
The Vidras voluntarily dismissed their claim on September 7, 2018.
{¶ 15} On February 20, 2019, Danberry filed a motion for summary judgment as
to its breach-of-contract claim and Nadeau’s counterclaims. Danberry argued that under
the clear terms of the listing agreement, it was entitled to its commission even though the
sale did not occur. Danberry also argued that it was entitled to judgment on Nadeau’s
counterclaims because it had complied with its obligations under the listing agreement
and assisted Nadeau in good faith throughout the entire purchase process. Danberry’s
motion was supported by Hall’s affidavit and attached exhibits, which included the listing
agreement, the purchase agreement, and emails between he and Nadeau reflecting her
refusal to honor the agreed-upon closing date.
{¶ 16} In her March 8, 2019 opposition, Nadeau argued that her efforts to comply
with the purchase agreement were thwarted by Danberry’s breach of its fiduciary duties
to her. Specifically, she claimed that Hall failed to respond to her requests to renegotiate
the closing date, interfered with her purchase of another residence, and acted in his own
self-interest. Nadeau also argued that the purchase agreement was rendered void and
unenforceable because the closing did not occur. Lastly, Nadeau argued that Danberry
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fraudulently created a new listing agreement by changing the date and forging her
signature on the commission addendum. This forgery, she argued, rendered both listing
agreements unenforceable. In support of her opposition, Nadeau attached her own
affidavit and exhibits including the original listing agreement dated September 26, 2017,
the listing agreement dated November 2, 2017, and the purchase agreement with the
Vidras.
{¶ 17} On May 23, 2019, the trial court granted summary judgment to Danberry
on its claim for breach of contract and on each of Nadeau’s counterclaims. The trial
court determined that Danberry satisfied its obligation to find a buyer and was entitled to
its commission at a rate of $295 plus 5.76 percent of the purchase price as stated in the
listing agreement dated September 26, 2017. The trial court also awarded summary
judgment to Danberry on Nadeau’s counterclaims, finding the absence of a genuine issue
of material fact. The trial court then conducted a damage assessment hearing on
October 3, 2019, and awarded Danberry $19,873.24.
{¶ 18} Nadeau, proceeding pro se, timely appealed and asserts the following errors
for our review:
1. Trial court erred when it granted motion for summary judgment
in favor of appellee despite valid defenses to appellee’s claims and genuine
issues of material fact.
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2. Trial court erred when it granted motion for summary judgment
in favor of appellee despite appellant’s cross-complaint with triable issues
of material fact still in dispute.
3. Trial court erred when it granted motion for summary judgment
in favor of appellee despite appellant’s opposition to motion for summary
judgment and memorandum in opposition which included valid facts and
law in appellant’s favor.
4. Trial court erred when it granted motion for summary judgment
in favor of appellee despite affidavit submitted by appellant which
contradicted affidavit submitted by appellee.
II. Law and Analysis
{¶ 19} We review the grant or denial of a motion for summary judgment de novo,
applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61
Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is
appropriate where (1) no genuine issue as to any material fact exists; (2) the moving party
is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one
conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that
conclusion is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co.,
54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
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{¶ 20} On a motion for summary judgment, the moving party has the burden of
demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio
St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to
some evidence in the record in the form of “pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action[.]” Civ.R. 56(C); Dresher at 292-
293. The burden then shifts to the nonmoving party to provide evidence showing that a
genuine issue of material fact does exist. Dresher at 293. The failure to satisfy this
reciprocal burden warrants judgment against the nonmoving party. Id. at 293.
a. The trial court properly granted summary judgment to
Danberry on its complaint against Nadeau
{¶ 21} In her first assignment of error, Nadeau argues that the trial court erred
when it granted summary judgment to Danberry on its complaint because she had valid
defenses to its breach-of-contract claim. In her third and fourth assignments of error,
Nadeau argues that her affidavit, which was submitted in response to Danberry’s motion
for summary judgment, created genuine issues of material fact and, therefore, the trial
court erred by granting summary judgment in Danberry’s favor. We will address these
assignments of error together.
{¶ 22} To establish a breach of contract claim, the plaintiff must establish “by a
preponderance of the evidence that (1) a contract existed, (2) one party fulfilled his
obligations, (3) the other party failed to fulfill his obligations, and (4) damages resulted
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from that failure.” Blake Homes, Ltd. V. FirstEnergy Corp., 173 Ohio App.3d 230, 2007-
Ohio-4606, 877 N.E.2d 1041, ¶ 77 (6th Dist.).
{¶ 23} Here, Danberry established the following facts in support of its motion for
summary judgment through Hall’s affidavit and attached exhibits: The parties entered
into a listing agreement on September 26, 2017. Although there were some disputes
regarding the subsequent “amendments” of that agreement on November 2, 2017, it was
undisputed that the parties agreed to the September 26, 2017 listing agreement. Under
that contract, Danberry was obligated to seek a purchaser for Nadeau’s property that was
willing to pay $339,000 “or any other * * * price” that Nadeau accepted in writing. On
November 15, 2017, Hall secured an offer from the Vidras to purchase the property for
the full asking price. Nadeau accepted the Vidras’ offer and the parties entered into a
written purchase agreement on November 27, 2017. Nadeau, however, refused to move
forward on the agreed-upon closing date because her new house was not ready and,
therefore, the sale never closed. Under the listing agreement, Danberry is nonetheless
owed a commission in the amount of $295 plus 5.76 percent of the purchase price
because Nadeau accepted the Vidras’ offer in writing. Danberry satisfied its obligations
under the agreement, and Nadeau damaged Danberry by failing to pay the commission
that is owed under the September 26, 2017 listing agreement.
{¶ 24} Because Danberry satisfied its initial burden under Civ.R. 56 by setting
forth these facts—which satisfy all elements of a breach-of-contract claim under Ohio
law—Nadeau was required to bring forth additional evidence to demonstrate a genuine
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issue of material fact that precluded summary judgment. Nadeau attempted to do this
through an affidavit in which she states that Danberry breached the listing agreement by
failing to negotiate a new closing date on her behalf. She also claimed that that she was
willing to close on time but the Vidras refused to close on January 16, 2018, as
scheduled.
{¶ 25} Nadeau’s affidavit, however, simply does not create a genuine dispute of
material fact because her version of events is belied by all of the other evidence in the
record—including her own, prior statements in email correspondence with Hall. That
email correspondence—which was attached to Hall’s affidavit in support of Danberry’s
motion for summary judgment—clearly shows that Nadeau was not willing to close on
the agreed-upon date because her new house in Dundee was not ready for her yet. The
correspondence also shows that Hall repeatedly explained to Nadeau that the January 15
closing date (which was subsequently moved to January 16 by agreement of the parties)
could not be moved without the Vidras’ consent, and Hall repeatedly asked Nadeau to
propose a new closing date that he could bring to the Vidras for consideration—but she
did not respond to those requests.
{¶ 26} Given Nadeau’s own statements in these emails, she cannot create a
question of fact by submitting “[a] self-serving affidavit which baldly contradicts the
evidence offered by the moving party.” Huntington Natl. Bank v. Belcher, 6th Dist.
Wood No. WD-11-055, 2012-Ohio-3731, ¶ 13. That is, Nadeau’s mere denial of the
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clear evidence that was introduced through Hall’s affidavit is insufficient to create a
question of fact regarding her breach of the listing agreement.
{¶ 27} Nadeau also argues that summary judgment should not have been awarded
to Danberry because she has valid defenses to Danberry’s breach-of-contract claim. That
is, on appeal, Nadeau claims that the listing agreement violates Ohio’s Statute of Frauds,
and that her performance under the listing agreement was excused because Danberry
allegedly violated various provisions of the Ohio Revised Code—namely R.C. 1303.04,
1303.50, 1345.03, and 4735.18.
{¶ 28} Initially, we note that Nadeau did not allege any affirmative defenses in her
answer and failed to argue the alleged statutory violations in the trial court. “It is a
cardinal rule of appellate review that a party cannot assert new legal arguments for the
first time on appeal.” Murray v. Auto-Owners Ins. Co., 2015-Ohio-3295, 40 N.E.3d 679,
¶ 26 (6th Dist.), citing Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d
629 (1975). Nadeau has therefore waived those defenses for purposes of appeal. Id.Regardless, Nadeau’s arguments fail as a matter of law.
{¶ 29} The listing agreement is not governed by Ohio’s Statute of Frauds, which is
codified at R.C. 1335.05. “[A] listing agreement is essentially an employment contract
for professional services and does not constitute a contract for the sale or transfer of real
estate as contemplated by the Statute of Frauds.” Crilow v. Wright, 5th Dist. No.
10 CA 10, 2011-Ohio-159, ¶ 36.
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{¶ 30} Similarly, R.C. 1303.04 and 1303.50 apply to negotiable instruments,
which are defined as “an unconditional promise or order to pay a fixed amount of
money[.]” R.C. 1303.03. The listing agreement is a bilateral contract; not a negotiable
instrument. Thus, R.C. 1303.04 and 1303.50 are inapplicable.
{¶ 31} Nadeau also relies upon R.C. 1345.03, which is part of Ohio’s Consumer
Sales Practices Act (“CSPA”) and prohibits suppliers from committing an
“unconscionable act” in connection with a “consumer transaction.” Even if we assume
for purposes of analysis that the CSPA applies to the listing agreement between Nadeau
and Danberry, there are no facts in the record to demonstrate that Danberry committed an
“unconscionable act.” Indeed, Nadeau’s argument is premised upon a
mischaracterization of the contract itself. That is, Nadeau argues that the listing
agreement was “one-sided” because Danberry “only need secure an offer at which time
they are entitled to full commission,” and Danberry deceptively claimed to be entitled to
commission even though commission was to be paid “on the sale of a home.” To the
contrary, the listing agreement clearly states that Danberry earned its commission if “an
offer is obtained which Owner accepts in writing”—which Nadeau did.
{¶ 32} Finally, Nadeau argues that Hall was purportedly disciplined under R.C.
4735.18 for changing the status of her property from “contingent” to “back on the market
(active)” on July 8, 2018, even though the listing agreement had expired on May 2, 2018.
There is no evidence in the record to support this allegation. But, even if true, such
conduct by Danberry—which is alleged to have occurred five months after Nadeau
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refused to close on the property in January 2018—would not “excuse” Nadeau’s prior
breach of the listing agreement.
{¶ 33} For all these reasons, the trial court did not err in granting summary
judgment to Danberry on its breach-of-contract claim against Nadeau. We therefore find
Nadeau’s first, third, and fourth assignments of error not well-taken.
b. The trial court properly granted summary judgment to
Danberry on Nadeau’s counterclaims
{¶ 34} In her second assignment of error, Nadeau argues that the trial court erred
in granting summary judgment to Danberry on her counterclaims for breach of contract,
breach of fiduciary duty, and fraud.
{¶ 35} First, regarding her counterclaim for breach of contract, we have already
determined that Danberry satisfied its obligations to Nadeau under the listing agreement,
and Nadeau failed to honor her obligation to pay Danberry’s commission under that
agreement. Thus, the trial court did not err by granting summary judgment to Danberry
on Nadeau’s counterclaim for breach of contract.
{¶ 36} Second, regarding Nadeau’s counterclaim for breach of fiduciary duty, it is
true that Danberry owed Nadeau the fiduciary duties that are outlined in R.C. 4735.62 as
well as the common law fiduciary duties of a broker-client relationship, which include
disclosure, good faith, and loyalty. Whaley v. Zyndorf/Serchuk, Inc., 6th Dist. Lucas No.
L-01-1295, 2002-Ohio-2640, ¶ 8. Nadeau claims that she was misled and repeatedly
ignored by Hall—in breach of his fiduciary duties to her— which resulted in the sale of
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her property falling through. This allegation, however, is merely a self-serving denial of
the clear evidence that Danberry introduced—which demonstrates that Hall accurately
explained to Nadeau that she was contractually obligated to honor the agreed-upon
closing date (and corresponding relinquishment of possession to the Vidras), but that he
would be willing to seek the Vidras’ agreement to move the closing date if she would
propose an alternative date. Nadeau never proposed an alternative date, despite repeated
requests from Hall. Nadeau’s unsupported statements that she was “misled” and
“ignored” by Hall are therefore insufficient to show a genuine issue of material fact.
Belcher, 6th Dist. Wood No. WD-11-055, 2012-Ohio-3731, at ¶ 13.
{¶ 37} Nadeau also alleges that Danberry breached its fiduciary duties when Hall
“sabotaged” the purchase of her new home in Dundee, Michigan by disclosing
confidential information to the listing agent for that property. Nadeau does not specify
what information was allegedly disclosed or how its disclosure precluded her purchase of
the other property. As the trial court noted, Nadeau’s bald statement—without any other
evidentiary support—is insufficient to create a genuine issue of fact. Belcher at ¶ 13. We
therefore find that the trial court did not err in awarding summary judgment to Danberry
on Nadeau’s counterclaim for breach of fiduciary duty.
{¶ 38} Finally, Nadeau argues that the trial court erred in granting summary
judgment to Danberry on her fraud counterclaim. To establish a claim for fraud, a
plaintiff must demonstrate (1) a representation or, where there is a duty to disclose,
concealment of a fact, (2) which is material to the transaction, (3) made falsely, with
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knowledge of its falsity, or with such utter disregard and recklessness as to its truth or
falsity that knowledge may be inferred, (4) with the intent of misleading another to rely
on it, (5) justifiable reliance upon the representation or concealment, and (6) a resulting
injury proximately caused by the reliance. Russ v. TRW, Inc., 59 Ohio St.3d 42, 49, 570
N.E.2d 1076 (1991).
{¶ 39} Nadeau argues that Danberry committed fraud by changing the date of the
listing agreement from September 26, 2017, to November 2, 2017, and by forging her
signature on the commission addendum to the November 2, 2017 agreement. First, the
date of the listing agreement is immaterial—indeed, the terms of the September 26, 2017
listing agreement and November 2, 2017 listing agreement are otherwise identical—and
Nadeau fails to explain how she relied upon the allegedly-falsified date to her detriment.
Second, Danberry sought to recover commission in the amount of $295 plus 5.76 percent
of the purchase price—as specified in the September 26, 2017 listing agreement—rather
than any additional commission that may have been owed under the November 2, 2017
addendum. And, the trial court awarded damages according to the commission that is
owed under the September 26, 2017 listing agreement—which Nadeau does not dispute
that she signed. Thus, even if we assume that Danberry surreptitiously changed the date
of the listing agreement to November 2, 2017 and also forged her signature on the
November 2, 2017 addendum (which it did not seek to enforce), Nadeau is unable to
show that she suffered any damages as a result. We therefore find that the trial court did
not err in granting Danberry summary judgment on Nadeau’s counterclaim for fraud.
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{¶ 40} For all of these reasons, the trial court properly granted summary judgment
to Danberry on Nadeau’s counterclaims, and Nadeau’s second assignment of error is
found not well-taken.
III. Conclusion
{¶ 41} In conclusion, we find Nadeau’s assignments of error not well-taken. The
trial court properly awarded summary judgment to Danberry on its complaint and
Nadeau’s counterclaims against it. The October 4, 2019 judgment of the Lucas County
Court of Common Pleas is affirmed. Nadeau is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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