[Cite as Cairelli v. Brunner,

.]

COURT OF APPEALS FRANKLIN COUNTY, OHIO TENTH APPELLATE DISTRICT

SANDRA K. CAIRELLI JUDGES: Hon. Sheila G. Farmer, P. J. Hon. John W. Wise, J. Plaintiff-Appellee Hon. Craig R. Baldwin, J.

-vs- (Fifth Appellate District Judges Sitting by Supreme Court Assignment) RICHARD L. BRUNNER, et al. Case No. 15 AP 854

Defendants-Appellants NUNC PRO TUNC1 OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 14 CV 7770

JUDGMENT: Affirmed

DATE: August 25, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendants-Appellants

ROBERT G. KENNEDY PETER A. CONTRERAS 4924 B-Reed Road BRUNNER QUINN Columbus, Ohio 43220 35 North Fourth Street, Suite 200 Columbus, Ohio 43215 B. CASEY YIM 18201 Von Karman, Suite 1100 Irvine, California 92612

1 Because the heading of this court's August 10, 2016 opinion mistakenly referenced the Fifth Appellate District rather than the Tenth Appellate District, said opinion is replaced, nunc pro tunc. . [Cite as Cairelli v. Brunner,

.]

Wise, J.

{¶1} Appellants Richard and Jennifer Brunner appeal the February 6, 2015,

and August 16, 2015, decisions entered in the Franklin County Court of Common Pleas

granting judgment on the merits on Appellee Sandra K. Cairelli’s cause of action for

quiet title.

STATEMENT OF THE FACTS AND CASE

{¶2} The facts as presented to the trial court are as follows:

{¶3} In June, 1984, Appellants Richard and Jennifer Brunner and Appellee

Sandra K. Cairelli entered into a lease agreement for the real property commonly known

as 1318 Ashland Avenue, Columbus, Ohio, 43212, owned by Appellee. Appellants

leased the property until approximately October of 1987. At the time the parties entered

the lease agreement, Appellants were granted a right of first refusal (ROFR) to

purchase the property.

{¶4} A "Memorandum of Lease" was filed with the Franklin County Recorder

which recites that Appellees were granted a right of first refusal "upon certain terms and

conditions set forth in an independent and self-sustaining covenant contained in the

aforementioned now unrecorded lease agreement." In June, 2014, Appellee entered

into a purchase agreement with Andrew and Deidre Allman for the sale of the Ashland

Avenue property for $276,000: $275,000 to be paid by the buyers and $500 each from

the real estate agents for the parties. The Allmans agreed to purchase the property “as

is”. The title search revealed the above-referenced 1984 Memorandum as a cloud on

the title. Franklin County, Case No. 15 AP 854 3

{¶5} On or about July 2, 2014, Appellee contacted Appellants above releasing

the recorded Memorandum, but they refused.

{¶6} On July 15, 2014, Appellee sent Appellants a “Mitigation Offer” to allow

them to purchase the property. Appellants did not accept the offer.

{¶7} On July 25, 2014, Appellee filed a Complaint to Quiet Title, For Injunctive

Relief, Slander of Title, Tortious Interference with Contract and Fraud. Appellee also

filed a Motion for Temporary Restraining Order and Preliminary Injunction, seeking to

have the Memorandum of Lease and Right of First Refusal removed from the Franklin

County Recorder’s Office to clear the title so that she could sell the property.

{¶8} On July 27, 2014, a hearing was held on the Motion for Temporary

Restraining Order.

{¶9} On July 30, 2014, the trial court conducted a status conference with the

parties.

{¶10} By Judgment Entry filed July 31, 2014, the trial court denied the motion for

a temporary restraining order. As reflected in the trial court's Entry, neither party had

been able to locate and/or produce the Lease Agreement, ROFR or “surrender of

possession” documents. The trial court ordered the parties to produce these

documents within 14 days. The trial court also set another status conference for August

19, 2014.

{¶11} On August 7, 2014, Appellee renewed her Motion for a Temporary

Restraining Order. This renewed Motion stated that it was “premised upon the August 1,

2014 Supplemental Brief in Support of Motion for Temporary Restraining Order and

Preliminary Injunction, which incorporated the affidavits of BC Yim and Kiki Street Franklin County, Case No. 15 AP 854 4

Kullman and affirmatively established that Defendants Brunner have rejected the ability

to 'meet or beat' the existing terms and conditions of the Allman's proposed purchase of

real property commonly known as 1318 Ashland Avenue, Grandview Heights, Ohio.”

{¶12} On August 22, 2014, a hearing was held on Appellee’s Motion for

Temporary Restraining Order. At the beginning of the hearing, the trial court stated the

purpose of the hearing was to determine whether or not a right of first refusal exists in

this case, and if so, what terms of such ROFR needed to be applied to this situation.

{¶13} The trial court heard testimony from Andrew Allman and Richard Brunner.

Mr. Allman testified to the terms of the offers and subsequent negotiations between him

and Appellee for the purchase of 1318 Ashland Avenue and to establish that Appellee

allegedly complied with any right of first refusal because the Appellants were eventually

offered "the purchase contract as it existed" on July 15th, 2014, with the Allmans,

almost one (1) month after being entered and after various waivers and contingencies

were satisfied. (T. at 5).

{¶14} Appellee Cairelli did not testify as she now lives in Orange County,

California. No objection was raised to the hearing proceeding without Appellee.

Appellee was, however, subject to cross-examination during her deposition conducted

in November, 2014.

{¶15} On August 26, 2014, the parties filed post-hearing briefs.

{¶16} On February 6, 2015, the trial court filed its Judgment Entry Quieting Title

in Plaintiff’s Favor and Denying as Moot Plaintiff’s Renewed Motion for Temporary

Restraining Order and Preliminary Injunction. Franklin County, Case No. 15 AP 854 5

{¶17} Appellants now appeal to this Court, assigning the following errors for

review:

ASSIGNMENTS OF ERROR

{¶18} “I. THE TRIAL COURT ERRED IN CONSOLIDATING A PRELIMINARY

INJUNCTION HEARING WITH A TRIAL ON THE MERITS OF APPELLEE'S FIRST

CAUSE OF ACTION WITHOUT PROPER NOTICE UNDER CIV.R. 65(B)(2), BEFORE

APPELLANTS' ANSWER WAS DUE OR DISCOVERY COMPLETED, AND BEFORE

APPELLEE HAD PROVIDED ANY TESTIMONY UNDER OATH AND WHERE SHE

FAILED TO APPEAR AT THE HEARING AS EXPRESSLY ORDERED BY THE

COURT.

{¶19} “II. THE TRIAL COURT ERRED IN GRANTING APPELLEE A

MANDATORY, PERMANENT INJUNCTION AND IN ESSENTIALLY SUA SPONTE

GRANTING SUMMARY JUDGMENT ON THE REMAINDER OF APPELLEE'S FIRST

CAUSE OF ACTION (A) BY UTILIZING THE STATUTE OF FRAUDS TO GRANT

AFFIRMATIVE RELIEF TO APPELLEE TO UNDO HER OWN CONVEYANCE AND

HOLDING THE RECORDED MEMORANDUM IS AN INSUFFICIENT WRITING

UNDER THAT STATUTE, (B) BY FINDING THERE WAS NOT A SUFFICIENT

MEMORANDUM UNDER 1335.05 AND THE APPELLANTS WERE NOT ENTITLED

UNDER THEIR RIGHT OF FIRST REFUSAL TO THE SAME TERMS AND

CONDITIONS AS THE PRIOR OFFER RECEIVED BY APPELLEE, (C) BY FINDING

APPELLEE COMPLIED WITH HER OBLIGATION UNDER THE RIGHT OF FIRST

REFUSAL BY OFFERING APPELLANTS THE PROPERTY AFTER HAVING

ACCEPTED THE PRIOR OFFER, AND (D) WHERE APPELLEE NEVER MOVED FOR Franklin County, Case No. 15 AP 854 6

SUMMARY JUDGMENT AND APPELLANTS WERE NOT REQUIRED TO ANSWER

THE COMPLAINT FOR ANOTHER TWENTY-SEVEN (27) DAYS.

{¶20} “III. THE TRIAL COURT ERRED IN REFUSING TO ALLOW

APPELLANTS TO LATER SUPPLEMENT THE RECORD UPON WHICH THE FIRST

CAUSE OF ACTION WAS DECIDED WITH EVIDENCE OBTAINED IN DISCOVERY

WHERE THE CONSOLIDATED HEARING WAS HELD ONLY TWENTY-TWO (22)

DAYS AFTER THE CASE WAS FILED, AND WHERE APPELLEE HAD NOT YET

TESTIFIED OR EVEN SUBMITTED AN AFFIDAVIT IN SUPPORT OF THE RELIEF

GRANTED SUA SPONTE PURSUANT TO THE AUGUST 22, 2014 HEARING IN

QUESTION, AND WHERE EVIDENCE OF APPELLEE'S EFFORTS TO COMMIT

FRAUD UPON APPELLANTS HAD NOT YET BEEN DISCOVERED.

{¶21} “IV. THE TRIAL COURT ERRED IN NOT PERFORMING ANY ANALYSIS

TO DETERMINE WHETHER APPELLEE'S ATTORNEY COULD SERVE AS BOTH

LAWYER AND WITNESS PRIOR TO ALLOWING COUNSEL TO APPEAR WHEN THE

ONLY EVIDENCE IN SUPPORT OF APPELLEE'S PENDING MOTION WAS THE

AFFIDAVIT OF COUNSEL.”

I.

{¶22} In their First Assignment of Error, Appellants argue that the trial court

erred in consolidating the preliminary injunction hearing with a hearing on the merits

without proper notice. We disagree.

{¶23} Civ.R. 65(B)(2) provides:

Consolidation of hearing with trial on merits. Before or after the

commencement of the hearing of an application for a preliminary Franklin County, Case No. 15 AP 854 7

injunction, the court may order the trial of the action on the merits to be

advanced and consolidated with the hearing of the application. Even when

this consolidation is not ordered, any evidence received upon an

application for a preliminary injunction which would be admissible upon

the trial on the merits becomes part of the record on the trial and need not

be repeated upon the trial. This subdivision (B)(2) shall be so construed

and applied as to save to the parties any rights they may have to trial by

jury.

{¶24} Under Civ.R. 65, a court has discretionary power to advance a trial on its

merits and consolidate the trial with a hearing on a preliminary injunction to prevent two

hearings and save time and expense for the court and parties. Civ.R. 65(B)(2); staff

notes, Civ.R. 65. However, “it is generally improper to dispose of a case on the merits

following a hearing for a preliminary injunction without consolidating that hearing with a

trial on the merits or otherwise giving notice to counsel that the merits would be

considered.” Seasonings Etcetera, Inc. v. Nay (Feb. 23, 1993), Franklin App. No.

92AP1056, citing George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc. (1982),

; Turoff v. Stefanac (1984),

. “Before consolidation, the

parties should normally receive clear and unambiguous notice of the court's intent to

consolidate the trial and the hearing either before the hearing commences or at a time

which will still afford the parties a full opportunity to present their respective cases.” Bd.

of Edn. Ironton City Schools v. Ohio Dept. of Edn. (June 29, 1993), Lawrence App. No.

CA92-39, citing Univ. of Texas v. Camenisch (1981),

, 395,

;

Warren Plaza v. Giant Eagle, Inc. (June 15, 1990), Trumbull App. No. 88-T-4122, Franklin County, Case No. 15 AP 854 8

jurisdictional motion allowed,

, appeal dismissed (1992),

{¶25} There is some authority that a trial court acts properly without notice of

consolidation if, after an extensive hearing, the evidence does not reveal any conflict of

material fact that justifies a full trial on the merits. See George P. Ballas Buick-GMC,

Inc. v. Taylor Buick, Inc. (1982),

.

{¶26} “The manifest purpose and proper application of the rule is to conserve

the time and resources of the court and of litigants where, in an action whose only

ultimate objective is a permanent injunction, the same evidence will be applicable in

both the preliminary and merit stages of the cause. See McCormac, Ohio Civil Rules

Practice (1970) 350, Section 14.10. The rule is not intended to permit a trial court to

advance, consolidate, and try claims and issues that differ from those which are unique

to the application for a preliminary injunction. Hershhorn v. Viereck,

,

(10th Dist. 1985)

{¶27} “And, even where the sole, ultimate issue is entitlement to a permanent

injunction, it is improper to enter judgment on the merits, immediately following a

consolidated hearing, if the time has not yet expired for the defendant to answer. The

rule permits use of the evidence produced at the consolidated hearing to determine the

merits of the case; unless the answer raises issues which were not addressed by that

evidence, the trial court will be in a position to render judgment once the defendant has

had an opportunity to answer.”

{¶28} In the instant case, the parties were notified by the trial court that the

August 22, 2014, hearing would determine whether a right of first refusal existed and Franklin County, Case No. 15 AP 854 9

whether injunctive relief would be granted. The trial court, in its Decision and Entry on

Defendants’ Motion for Clarification, stated that during several status conferences held

in Chambers, it advised the parties that the key issue in this case was whether or not a

right of first refusal existed. (J.E. 8/16/15 at 6). The trial court stated in said entry that

based on the conversations with counsel in Chambers, counsel was “sufficiently

advised that the August 22nd hearing was to include evidence on the merits of the right

of first refusal issue.”

Additionally, prior to the commencement of the August 22nd

hearing, the trial court again explained the intended purpose of the hearing on the

record. (Id. at 6-7). Counsel for both parties proceeded with the hearing without

objection and presented the “Court with evidence on the issue of whether a right of first

refusal exists.” (Id. at 7). Further, the trial court allowed post-hearing briefs on the issue

and then waited until Appellants filed their Answers to Appellee’s Complaint before

issuing its decision on February 6, 2015.

{¶29} Based on the foregoing, we find that the trial court did not abuse its

discretion in consolidating the preliminary injunction hearing with the hearing on the

merits as the facts and evidence presented at the August 22nd hearing would be

identical to those issues to be considered on Appellant’s cause of action for quiet title.

{¶30} Appellants’ First Assignment of Error is overruled.

II.

{¶31} In their Second Assignment of Error, Appellants argue the trial court erred

in granting a permanent injunction in this matter. We disagree.

{¶32} The standard of review for this Court regarding the granting of an

injunction by a trial court is whether the trial court abused its discretion. Perkins v. Franklin County, Case No. 15 AP 854 10

Quaker City,

, 125,

(1956). In an action for a

temporary or permanent injunction, the plaintiff must prove his or her case by clear and

convincing evidence. Franklin Cty. Dist. Bd. of Health v. Paxon,

, 2003–Ohio–1331,

(10th Dist.).

{¶33} Appellants herein argue that the trial court erred in its application of the

Statute of Frauds.

{¶34} The Statute of Frauds as embodied in R.C. Chapter 1335, particularly

R.C. §1335.04 and §1335.05, state, respectively, in pertinent part as follows:

{¶35} “No lease, estate, or interest, either of freehold or term of years, or any

uncertain interest of, in, or out of lands, tenements, or hereditaments, shall be assigned

or granted except by deed, or note in writing, signed by the party assigning or granting it

* * *.”

{¶36} “No action shall be brought whereby to charge * * * a person * * * upon a

contract or sale of lands, tenements, or hereditaments, or interest in or concerning them

* * * unless the agreement upon which such action is brought, or some memorandum or

note thereof, is in writing and signed by the party to be charged therewith or some other

person thereunto by him or her lawfully authorized.”

{¶37} In the case sub judice, Appellants have affirmatively asserted that they

have a ROFR, thereby attempting to prevent Appellee from selling her home to a third

party, but have failed to present any such writing which sets forth those terms which

they allege were agreed to by themselves and Appellee. The only document presented

to the trial court was the Memorandum of Lease which references same but does not

create a valid ROFR. Franklin County, Case No. 15 AP 854 11

{¶38} As set forth above, the plain language of R.C. §1335.04 requires any

interest in real estate to be in writing. As stated by the 9th District Court of Appeals, in

Michel v. Bush, (2001)

:

Taking the plain language of the statute, it is clear that a claim

regarding any interest in land, e.g., a right of first refusal, cannot be

brought, as a matter of law, unless the agreement pertaining thereto was

reduced to writing, signed by the party to be charged, and produced. See

Palmentera v. Marino (Oct. 15, 1997), Summit App. 18202, unreported, at

7,

(affirming the grant of summary judgment in favor of a

defendant when plaintiff failed to produce written evidence of an alleged

interest in property); see, also, Salmons v. Bowers (Sept. 3, 1999),

Columbiana App. No. 97-CO-31, unreported,

, at 7 (“The

Statute of Frauds provides that certain agreements, by statute, must be

evidenced by a writing signed by the parties sought to be bound.”)

Moreover, it is important to note the purpose of the Statute of

Frauds: “This statute serves to ensure that transactions involving a

transfer of realty interests are commemorated with sufficient solemnity. A

signed writing provides greater assurance that the parties and the public

can reliably know when such a transaction occurs. It supports the public

policy favoring clarity in determining real estate interests and discourages

indefinite or fraudulent claims about such interests.” N. Coast Cookies,

Inc. v. Sweet Temptations, Inc. (1984),

, 16 OBR

391,

. Franklin County, Case No. 15 AP 854 12

{¶39} Appellants alternatively argue that the recorded Memorandum of Lease

satisfies the Statute of Frauds. However, the Memorandum fails to contain the essential

terms of the agreement. A memorandum satisfies the Statute of Frauds if it (1) identifies

the subject matter, (2) establishes that a contract has been made, and (3) states the

essential terms with reasonable certainty. N. Coast Cookies, Inc. v. Sweet Temptations,

Inc.,

, 348–49,

(8th Dist. 1984); Kling v.

Bordner (1901),

,

, paragraph one of the syllabus; Jacobs v.

Joseph E. Copp Co. (1930),

,

; 1 Restatement

of the Law 2d, Contracts (1981), Section 131; 2 Corbin, Contracts (1950), Section 499.

{¶40} As a general rule, parties cannot enter into an enforceable contract unless

they come to a meeting of the minds on the essential terms of the contract. Alligood v.

Proctor & Gamble Co. (1991),

. The essential terms of a contract

have been identified as “the identity of the parties to be bound, the subject matter of the

contract, consideration, a quantity term and a price term.”

{¶41} Here, the Memorandum of Lease states only that “certain terms and

conditions” exist in “an independent and self-sustaining covenant.” The Memorandum

does not contain the necessary essential terms as to consideration, price, or duration of

the right of first refusal.

{¶42} Even assuming arguendo a valid ROFR did exist, we agree with the trial

court that based on the evidence presented, Appellants failed to properly exercise their

ROFR when they were presented with an offer to purchase the property. The only

differences between the offer made to Appellants and the agreement with the Allmans

were appraisal, financing and inspection rights, none of which were substantial or Franklin County, Case No. 15 AP 854 13

significant to Appellants. Appellants stated that they did inspect the property, and that

they would not need to seek financing.

{¶43} Finally, again assuming a ROFR existed in this matter, the trial court found

that Appellants claims fail for lack of consideration. Appellants argue that they never

terminated the lease agreement but failed to locate or provide the trial court with the

“surrender of possession” document. Appellants also admit that they have paid no

consideration to Appellee since relinquishing possession of the property almost 30

years ago. While it may be true that during their tenancy they paid somewhat higher

rent payments in consideration of the ROFR, it was admitted that they paid nothing over

the past 30 years. The trial court found that absent some ongoing consideration, other

than that which Appellants paid between 1984 thru 1987, no right of first refusal still

remains. This Court will not disturb the findings of the lower court.

{¶44} With regard to Appellants’ argument that the trial court erred in granting

“summary judgment” prior to Appellants filing their Answer in this case, we find same

not well-taken. The trial court did not grant summary judgment to Appellee, it made its

decision pursuant to Civ.R. 65(B), and it did so after Appellants filed their Answer. The

trial court’s Decision specifically states therein that it “waited until Defendants answered

the Complaint before issuing its decision.” (Aug. 16, 2015 J/E at 3).

{¶45} Based on the foregoing, we do not find that the trial court erred in granting

a permanent injunction in this matter.

{¶46} Appellants’ Second Assignment of Error is overruled.

III. Franklin County, Case No. 15 AP 854 14

{¶47} In their Third Assignment of Error, Appellants argue that the trial court

erred in refusing to allow them to supplement the record. We disagree.

{¶48} Specifically, Appellants argue that the trial court should have granted their

June 22, 2015, motion to supplement the record with evidence that Appellee “tried to

devise a secret scheme with her realtor whereby she would fraudulently inflate the

purchase price with the Allmans so that the Appellants would be unable or unwilling to

purchase the overpriced property.” (Appellants’ Brief at 51).

{¶49} It is well established that the trial court, in maintaining reasonable control

over the mode and presentation of evidence, has wide discretion to permit evidence to

be offered out of order. State v. Bayless (1976),

,

,

, paragraph three of the syllabus. This includes the decision to allow a party

to reopen its case to present additional proof. Columbus v. Grant (1981),

, 1 OBR 399, 399-400,

. Thus, a decision by the trial

court to allow a party to reopen its case to offer additional evidence will be reversed only

upon a showing of an abuse of discretion.

An abuse of discretion, “connotes more

than an error of law or judgment; it implies that the court's attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore (1983),

.

When applying the abuse of discretion standard, an appellate court may not substitute

its judgment for that of the trial court. See State v. Nerren, Wayne App. No. 05CA0052,

. State v. Howard, 12th Dist. Warren No. CA2009-11-144, 2010-

Ohio-2303, ¶ 12

{¶50} Upon review, we find that such evidence was not relevant to the trial

court’s determination that Appellants claims based on a ROFR were barred by the Franklin County, Case No. 15 AP 854 15

Statute of Frauds, or in the alternative lacked consideration. Further, regardless of what

may or may not have transpired in e-mail correspondence between Appellee and her

realtor, the offer submitted to Appellants was in fact substantially the same as the

purchase agreement between Appellee and the Allmans.

{¶51} We therefore find the trial court did not abuse its discretion in denying

Appellants’ motion to supplement the record filed four months after the trial court’s

Decision/Entry.

{¶52} Appellants’ Third Assignment of Error is overruled.

IV.

{¶53} In their Fourth and final Assignment of Error, Appellants argue that the trial

court erred in failing to perform an analysis as to whether counsel for Appellee could

serve both as an attorney and a witness in this matter. We disagree.

{¶54} Appellants argue that the trial court erred in denying their October 1,

2014, motion to disqualify Attorney Casey Yim, and his Affidavit, who they claim was the

sole witness who testified to Appellee’s claim of compliance with the ROFR.

{¶55} Disqualification of counsel pursuant to Ohio’s “Lawyer as Witness” rule is

set forth in Prof.Cond.R. 3.7 is captioned “Lawyer as Witness” and provides that:

(a) A lawyer shall not act as an advocate at a trial in which the

lawyer is likely to be a necessary witness unless one or more of the

following applies:

(1) the testimony relates to an uncontested issue;

(2) the testimony relates to the nature and value of legal services

rendered in the case; Franklin County, Case No. 15 AP 854 16

(3) the disqualification of the lawyer would work substantial

hardship on the client. (Emphasis in original.)

{¶56} The rule is stated as an imperative; that is, counsel is not permitted by the

rule to be both an advocate and a witness unless one of the exceptions applies.

{¶57} Upon review, we find that the content of Attorney Yim’s affidavit dealt with

an uncontested issue; that being the rejection of the Mitigation Offer sent to him by

Appellants’ counsel. Further, Appellant Richard Brunner himself testified at the TRO

hearing as to the same facts set forth in said Affidavit.

{¶58} We find that the trial court did not err in not disqualifying Atty. Yim and

further find no prejudice to Appellants as a result of same.

{¶59} Appellants’ Fourth Assignment of Error is overruled.

{¶60} For the foregoing reasons, the judgment of the Court of Common Pleas of

Franklin County, Ohio, is affirmed.

Wise, J., Farmer, P. J., and Baldwin, J., of the Fifth Appellate District, sitting by assignment in the Tenth Appellate District.