[Cite as Watts v. Fledderman,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

LOUISE E. WATTS, : APPEAL NO. C-170255 TRIAL NO. A-1603834 Plaintiff-Counterclaim : Defendant-Appellee, : O P I N I O N. vs. : ANNE M. FLEDDERMAN, Executor of the Estate of : Thomas A. Fledderman, Deceased, : and : ANNE M. FLEDDERMAN, : Defendants-Counterclaim Plaintiffs-Appellants, :

and :

ANNE M. FLEDDERMAN, : Escrow Agent, et al., : Defendants. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 13, 2018

G. Robert Hines, for Plaintiff-Counterclaim Defendant-Appellee,

Anne M. Fledderman, for Defendants-Counterclaim Plaintiffs-Appellants. OHIO FIRST DISTRICT COURT OF APPEALS

D ETERS , Judge.

{¶1} This appeal involves a dispute over the proceeds of a parcel of real

property that was sold in April 2016. Plaintiff-counterclaim defendant-appellee

Louise Watts filed a claim for a declaratory judgment asserting that she was entitled

to the sale proceeds because she was the record owner of the property when it was

sold. Defendants-counterclaim plaintiffs-appellants Anne M. Fledderman,

individually and in her capacity as the executor of the estate of the decedent, Thomas

A. Fledderman, filed an answer and two counterclaims.

{¶2} Fledderman asserted that the decedent Thomas Fledderman was the

equitable owner of the property by virtue of an oral land contract that Watts and her

deceased husband, John Watts, had entered into with Thomas Fledderman on March

11, 1998. Alternatively, she argued that if the decedent Thomas Fledderman had

resided in the property as a tenant from March 1998 until October 2015, the Wattses

had breached what she claimed was a residential lease agreement by collecting

payments in excess of the lease agreement and by charging the decedent for expenses

and obligations that were the Wattses’ statutory responsibility under R.C. Chapter

5321, Ohio’s Landlord-Tenant Act. Following a bench trial, the trial court rendered

judgment in favor of Watts on her claim and Fledderman’s counterclaims.

{¶3} Fledderman raises five assignments of error, contending that the trial

court erred by (1) denying her motion for default judgment on her counterclaims and

granting Watts’s motion to file her answer out of time, (2) adopting verbatim Watts’s

proposed findings of fact and conclusions of law, (3) dismissing her counterclaims

with prejudice, and (4) admitting hearsay evidence and rendering a judgment for

Watts that was contrary to manifest weight of the evidence. Finding none of her

assignments of error meritorious, we affirm the judgment of the trial court.

2 OHIO FIRST DISTRICT COURT OF APPEALS

Background

{¶4} In 1998, Thomas Fledderman was operating an antique furniture and

antique art pottery retail business in Mt. Healthy. When his landlord demanded

possession of the retail space and the second-floor apartment that Thomas

Fledderman had occupied, Thomas Fledderman attempted to purchase a commercial

storefront building located on Spring Grove Avenue in the city of Cincinnati, Ohio.

When Fledderman lacked he creditworthiness to do so, his good friend, John Watts

offered to purchase the building and rent the building it to Thomas Fledderman so

that he could continue operating his business.

The Wattses’ Purchase of the Property

{¶5} In February 1998, John Watts entered into a purchase contract for the

property with Paul G. Schoenharl for $60,000. John and Louise Watts obtained a

$48,000 mortgage from the North Side Bank and Trust Company using their own

credit and an unsecured $20,000 interest-free loan from Thomas Fledderman’s

parents, Raymond and Betty Fledderman. The $20,000 interest-free loan from

Raymond and Betty Fledderman to John and Louise Watts was memorialized by a

promissory note dated February 12, 1998, which stated,

1. Payment of [the] principal shall be made only upon the sale of the

real property located at 3940 Spring Grove Avenue, Cincinnati, Ohio

45223 and only if the property is sold to someone other than Thomas

A. Fledderman. It is the intention of the Makers and the Payees of this

note that Thomas A. Fledderman shall purchase the within described

real estate at some future date from Makers for the sum of $40,000.00

at which time and upon which occurrence this note shall become void.

3 OHIO FIRST DISTRICT COURT OF APPEALS

{¶6} On March 9, 1998, the real estate closing for the property was held at

North Side Bank and Trust. Paul Shoenharl’s deed to John and Louise Watts, in

survivorship, was recorded on March 11, 1998.

The Commercial Lease Agreement

{¶7} On March 26, 1998, John and Louise Watts, as lessors, and Thomas

Fledderman, as lessee, entered into a lease agreement for the entire commercial

storefront building located on the property. The lease agreement was executed at

North Side Bank and Trust and witnessed by two bank employees. Under the terms

of the lease agreement, Thomas Fledderman agreed to pay rent in the amount of

$650 per month.

{¶8} Paragraph 4 of the lease contained a right to purchase the property for

the sum of $40,000.00 that was nearly identical to that contained in the Wattses’

promissory note to Raymond and Betty Fledderman:

4. Lessee shall have the right to purchase the real estate at 3940

Spring Grove Avenue, Cincinnati, Ohio 45223 from Lessor for the sum

of $40,000.00 at any time during the term of this agreement. Should

Lessee decide to exercise his right to purchase the real estate for the

sum of $40,000.00, then it is understood by the parties hereto that a

promissory note in the sum of $20,000.00 between Lessor (John F.

Watts and Louse E. Watts) and [(] Raymond A. Fledderman and Betty

Fledderman) shall become void.

Lessor retains the right to sell the real estate to any other

prospective purchaser at any time during the terms of this lease. If

Lessor receives an offer to purchase the premises during the term of

the Lease, or any renewal thereof, Lessee shall have the first right to

4 OHIO FIRST DISTRICT COURT OF APPEALS

purchase said property for the sum of $40,000.00. In addition, if

Lessor grants an option to purchase, at such time, Lessee may elect to

proceed under the right of first refusal to purchase the Premises for the

sum of $40,000.00. Lessee shall have fifteen (15 days) from receipt of

said offer in which to signify his intention to exercise his right of

refusal to purchase the Premises, otherwise he waives such right.

{¶9} The lease itself used terms consistent with commercial activity such as

business and merchandise and it referred to the lessee’s continued operation at the

leased premises. Additionally, in paragraphs 5 through 11, and 14 of the lease

agreement, Thomas Fledderman, as lessee, assumed obligations consistent with a

commercial lease. As lessee he was required to fully maintain the premises at his

sole expense, including the driveways and public walkways included in or adjacent to

the premises, and to keep them free of all obstructions, including merchandise. As

the lessee he was also required to pay for all utilities and rubbish removal, to carry

insurance on the premises, including “plate glass” insurance and public liability

insurance of not less than $1 million, and to obtain all licenses necessary to conduct

his business. The lease further provided that any expansion of the lessee’s facilities

or any new services acquired by the lessee would be installed at the lessee’s expense

and that the lessee needed to obtain the lessor’s permission before making any

structural alterations to the premises with the exception of trade fixtures, machinery,

equipment, and furniture the lessee owned.

Thomas Fledderman’s Commercial Tenancy

{¶10} Immediately thereafter, Thomas Fledderman began operating his

business selling antique furniture and antique art pottery on the first floor of the

building. The business operated by appointment only. It was compliant with the B-4

5 OHIO FIRST DISTRICT COURT OF APPEALS

business zoning of the area, which permitted a second-floor apartment to be

operated within the commercial building, which Thomas Fledderman occupied

himself.

{¶11} After Thomas Fledderman took sole occupancy of the property, the

Wattses deposited all of Thomas Fledderman’s rental payments into a “management

account” at Northside Bank and Trust Company, out of which the mortgage

payment, real-estate taxes, and insurance premiums were paid. Despite it being

Fledderman’s obligation, the Wattses also paid other maintenance expenses out of

this account. The landlord-tenant arrangement between the Wattses and Thomas

Fledderman continued without any problems. In 2003, the Wattses applied for and

received a $20,000 grant made available to commercial buildings by the city of

Cincinnati through the Northside Community Council, which they used to

completely renovate the exterior of the building by installing a new façade and

windows.

{¶12} John Watts died on September 12, 2012. His interest in the real estate

passed to Louise Watts under the survivorship deed. Louise Watts continued to

manage the property and to act as Thomas Fledderman’s landlord by handling the

receipt of all the rents and the payment of all the expenses in the same fashion as

John Watts had undertaken for the previous 14 years. At no point during this time

period did Thomas Fledderman exercise his right under the commercial lease

agreement to purchase the property for $40,000.

Louise Watts’s Sale of the Property and the Ownership Dispute

{¶13} On October 5, 2015, Thomas Fledderman died. His sister, Anne

Fledderman, as the executor of his estate, began inspecting and removing the entire

inventory from his business operations and his personal property from the building.

6 OHIO FIRST DISTRICT COURT OF APPEALS

At the same time, Louise Watts began renovations and repairs preliminarily to listing

the real estate for sale. In early 2016, Louise Watts listed the property with Comey &

Shepherd Realtors. On March 10, 2016, she accepted a contract to purchase the

property from South Block Properties, Ltd., for the sale price of $65,000.

{¶14} In late March 2016, during a title examination that was completed

preliminarily to the sale of the property to South Block Properties, Ltd., it was

discovered that on February 16, 2016, Anne Fledderman, individually, had recorded

pursuant to R.C. 5301.25 an affidavit asserting that Thomas Fledderman and

consequently, Anne Fledderman, as his successor, owned an equitable interest in the

property under an oral land contract with John and Louise Watts.

{¶15} To complete the sale of the property with South Block Properties, Ltd.,

Louise Watts entered into an escrow agreement with Anne Fledderman, as executor

of the estate of Thomas A. Fledderman, deceased. The escrow agreement provided

that deeds be delivered at the April 13, 2016 closing both from Louise Watts and

from Anne Fledderman in her two separate capacities, and that the net proceeds

from the closing be escrowed until a declaratory judgment action could determine

the person entitled to the monies. The sale of the property to South Block Properties

closed on April 13, 2016. Louise Watts deposited the net sale proceeds of $52,949.85

with Martha C. Dourson and Anne M. Fledderman, as escrow agents, in an account

at North Side Bank and Trust Company.

{¶16} On June 10, 2016, Anne Fledderman, as executor of the estate of Betty

C. Fledderman, sent a letter to Louise Watts demanding immediate payment of the

$20,000.00 principal amount due under the February 12, 1998 promissory note,

which Anne Fledderman claimed had been triggered by the April 13, 2016 sale of the

property. Louise Watts authorized Martha Dourson and Anne Fledderman, the

7 OHIO FIRST DISTRICT COURT OF APPEALS

escrow agents, to pay to Anne Fledderman, being both the duly appointed executor

of the estate of Betty Fledderman and the nominated administrator and

commissioner of the estate of Raymond Fledderman, two separate $10,000 checks

from the escrow account, in full payment of all the obligations under the February 12,

1998 promissory note. Anne Fledderman and Martha Dourson held the remaining

$32,949.85 net sale proceeds from the sale of the property in the Northside Bank

escrow account.

The Lawsuit

{¶17} On July 5, 2016, Louise Watts filed her complaint for declaratory

judgment and money, asserting that she was entitled to the remaining $32,949.85 in

proceeds from the sale of the real property. Fledderman filed an answer and a

counterclaim demanding similar declaratory relief. Fledderman asserted the right to

the sale proceeds under an oral land contract between Thomas Fledderman and the

Wattses. Alternatively, she sought a money judgment for amounts collected by John

and Louise Watts in contravention of what she claimed was a residential lease

agreement and for alleged statutory violations of Ohio’s Landlord-Tenant Act.

{¶18} Following a case management conference with the court, Fledderman

subsequently filed a motion for default judgment on her counterclaims. Watts filed a

motion for leave to answer out of time. The trial court granted Watts’s motion for

leave to answer out of time and denied Fledderman’s motion for default judgment.

The parties’ claims were then tried to the court.

{¶19} Thereafter, the trial court granted judgment in favor of Louise Watts

on her claim and dismissed Fledderman’s counterclaims with prejudice. Fledderman

filed a request for findings of fact and conclusions of law. The trial court asked

Watts, as the prevailing party, to submit proposed findings of fact and conclusions of

8 OHIO FIRST DISTRICT COURT OF APPEALS

law. Fledderman filed objections to Watts’s proposed findings of fact and

conclusions of law. Following a hearing on the objections, the trial court adopted

Watts’s findings of fact and conclusions of law. For ease of discussion, we address

Fledderman’s assignments of error out of order.

Findings of Fact and Conclusions of Law

{¶20} In her second assignment of error, Fledderman argues that the trial

court erred by adopting verbatim Watts’s proposed findings of fact and conclusions

of law without a thorough review and without regard to whether the findings were

accurate or met the applicable standard.

{¶21} As an initial matter, we note that Watts’s proposed findings of fact and

conclusions of law were not filed with the trial-court clerk or attached to

Fledderman’s objections. Thus, we cannot determine from the record if the trial

court adopted them verbatim as Fledderman claims or made minor changes as Watts

contends.

{¶22} Nonetheless, Civ.R. 52 does not prohibit a trial court from adopting

verbatim a party’s proposed findings of fact and conclusions of law, as long as the

court “has thoroughly read the document to ensure that it is completely accurate in

fact and law.” Hinkston v. The Finance Co., 1st Dist. Hamilton No. C-980972,

, *2 (May 12, 2000). Given that the trial court held a hearing on

Fledderman’s objections to the proposed findings of fact and conclusions of law

before adopting them, and the proposed findings of fact and conclusions accurately

reflected the record and the law, we cannot say the trial court erred by adopting

them. See In re Norris, 4th Dist. Athens Nos. 00CA038 and 00CA041,

, *6 (Dec. 12, 2000). We, therefore, overrule the second assignment of

error.

9 OHIO FIRST DISTRICT COURT OF APPEALS

Fledderman’s Counterclaim for Oral Land Contract

{¶23} In her third assignment of error, Fledderman argues that the trial

court erred by dismissing with prejudice her counterclaim for a declaratory judgment

that Thomas Fledderman had entered into an oral land contract with the Wattses

upon their purchase of the building.

{¶24} An agreement concerning the sale of an interest in real estate generally

falls within R.C. 1335.05, Ohio’s statute of frauds, and must be memorialized in

writing. See Ed Schory & Sons, Inc. v. Soc. Natl. Bank,

,

(1996). Notwithstanding the statute of frauds, Ohio courts have

held that it is possible in certain cases to establish the existence of “an oral land

contract” under the doctrine of part performance. Roth v. Natl. City Bank, 1st Dist.

Hamilton No. C-100216,

, ¶ 14. A party seeking to enforce an oral

land contract must establish both the contract and the applicability of the doctrine of

part performance by clear and convincing evidence. See Geiger v. Geiger, 2d Dist.

Montgomery No. 13841,

, *2 (Nov. 16, 1993). In order to establish

part performance, the party asserting it must have undertaken acts that (1) were

exclusively referable to the oral agreement to convey land and (2) changed his

position to his prejudice. Id. at *4; Alban v. Schnieders,

,

(1st Dist. 1940).

{¶25} Fledderman claims that she established the existence of an oral land

contract under the doctrine of part performance because she presented clear and

convincing evidence that Thomas Fledderman had occupied the building for 17½

years with the approval of the Wattses, he had made rental payments in excess of the

value of the property, which the Watts had used to pay the mortgage on the property,

and he paid all the maintenance expenses for the property. We disagree.

10 OHIO FIRST DISTRICT COURT OF APPEALS

{¶26} Here, the clear and unambiguous terms of the February 12, 1998

promissory note and the commercial lease agreement reflect that the Wattses were

the owners of the property, and that Thomas Fledderman was a tenant of the

property. The Wattses retained the right to sell the property, and if they decided to

exercise that right, then Thomas Fledderman had a right of first refusal to purchase

the property for $40,000. Fledderman’s reliance on the doctrine of part

performance is misplaced as these written documents are presumed to contain the

terms of the parties’ agreement. See Marion Prod. Credit Assn. v. Cochran,

,

(1988), paragraph three of the syllabus (holding that “an

oral agreement cannot be enforced in preference to a signed writing which pertains

to exactly the same subject matter, yet has different terms”). Thomas Fledderman’s

actions during the 17½ years he resided in the property were not based on any oral

agreement between himself and the Wattses, but on his obligations as a lessee of the

property.

{¶27} Because Fledderman’s position that Thomas Fledderman had entered

into an oral land contract with the Wattses is totally inconsistent with the clear and

unambiguous terms of the promissory note and the lease agreement, the trial court

properly dismissed her counterclaim with prejudice. As a result, we overrule the

third assignment of error.

Fledderman’s Counterclaim for Breach of Residential Lease Agreement

{¶28} In the fourth assignment of error, Fledderman argues that the trial

court erred by dismissing her counterclaim for breach of a residential lease

agreement and for reimbursement of amounts paid by Thomas Fledderman during

the tenancy that the Wattses had been required to pay.

11 OHIO FIRST DISTRICT COURT OF APPEALS

{¶29} At trial, Fledderman contended that the lease agreement executed

between the Wattses and Thomas Fledderman on March 26, 1998, violated the

provisions of the Ohio Landlord-Tenant Act set forth under R.C. Chapter 5321. She

claimed that because the lease had lacked a purpose clause, and because Thomas

Fledderman had lived in an apartment on the second floor and used the basement

and first floor for storage, the commercial building was actually a “residential

premises,” and that certain provisions of the Ohio Landlord-Tenant Act had been

continually violated from March 1998 until Thomas Fledderman’s death.

Generally, courts presume that the intent of the parties to a contract

resides in the language they chose to employ in the agreement. * * *

Only when the language of a contract is unclear or ambiguous, or when

the circumstances surrounding the agreement invest the language of

the contract with a special meaning will extrinsic evidence be

considered in an effort to give effect to the parties’ intentions. * * *

When the terms in a contract are unambiguous, courts will not in

effect create a new contract by finding an intent not expressed in the

clear language employed by the parties.

Shifrin v. Forest City Ent., Inc.,

,

(1992); see

F & R Ent. v. Phillips, 2d Dist. Montgomery No. CA 11711,

, *2 (May

21, 1990).

{¶30} Here, the trial court concluded that the clear and unambiguous terms

in the March 26, 1998 lease agreement evidenced that it was a commercial lease

agreement for the entire commercial property. For example, the lease agreement

used terms consistent with commercial activity, such as merchandise, inventory,

trade fixtures, furniture, equipment, and machinery, and it referenced Thomas

12 OHIO FIRST DISTRICT COURT OF APPEALS

Fledderman’s continued operation at the leased premises. Thomas Fledderman,

furthermore, undertook duties consistent with a commercial tenant. For example, he

agreed to maintain public liability and “plate glass” insurance on the premises, to

obtain all required licenses to conduct his business, and to fully maintain the

premises at his own expense. The court further found that Louise Watts’s testimony,

the lease provisions, photographs of the real estate, and the façade grant awarded to

the Wattses for improving North Side commercial buildings, constituted persuasive

evidence that the real estate had been used for commercial purposes, and that

incidental and secondary to that use was Thomas Fledderman’s permissive use of the

second-floor apartment within the commercial building.

{¶31} R.C. Chapter 5321 does not apply to landlords and tenants of

commercial property. And the rent and maintenance obligations that Thomas

Fledderman undertook were consistent with his duties under the commercial lease

agreement. Thus, the trial court properly concluded that Fledderman’s counterclaim

for statutory landlord-tenant violations was meritless. See, e.g., Maggiore v.

Kovach,

,

,

(holding that R.C.

Chapter 5321 encompasses only tenants and landlords of residential properties). As

a result, we overrule the fourth assignment of error.

Weight of the Evidence

{¶32} In her fifth assignment of error, Fledderman argues that the trial

court’s judgment was against the manifest weight of the evidence and that the court

abused its discretion in admitting hearsay into evidence.

{¶33} In a manifest-weight-of the evidence challenge, this court must weigh

the evidence and all reasonable inferences, consider the credibility of the witnesses, and

determine whether in resolving conflicts in the evidence, the trial court clearly lost its

13 OHIO FIRST DISTRICT COURT OF APPEALS

way and created such a manifest miscarriage of justice that its judgment must be

reversed and a new trial ordered. Eastley v. Volkman,

, 2012-Ohio-

2179,

, ¶ 20. “[I]n weighing the evidence, [we] must always be mindful

of the presumption in favor of the finder of fact,” particularly when the trial court has

issued findings of fact and conclusions of law pursuant to Civ.R. 52. See Busch Bros.

Elevator Co., Inc. v. Unit Bldg. Servs.,

,

,

(1st Dist.).

{¶34} Here, the trial court, sitting as the trier of fact, heard testimony from

Louise Watts, Anne Fledderman, and Fledderman’s two witnesses, Mark Ireton and

Susan Thompson, and it reviewed numerous documents relating to the property.

Fledderman maintains that the trial court lost its way in choosing to accord more

weight to Watts’s testimony than to the testimony of herself and her witnesses that

Thomas Fledderman had used the property as his residence and to store the pottery,

antiques, furniture, computers, and other items that he had collected. She

additionally claims that the trial court erred in admitting hearsay in the form of a

1999 report from the Northside Business Association naming Thomas Fledderman’s

business as the Business of the Month. But any error in admitting that document

was harmless, when the trial court had sufficient evidence independent of that

document to support its conclusion that Thomas Fledderman had operated a

business on the premises. Here, the trial court’s decision rested primarily on the

clear and unambiguous language in the promissory note and commercial lease

agreement which conclusively established the issue. Watts’s testimony was

consistent with that documentary evidence. Based upon our review of the record, we

cannot say that the trial court’s decision is contrary to the weight of the evidence.

We, therefore, overrule the fifth assignment of error.

14 OHIO FIRST DISTRICT COURT OF APPEALS

Default Judgment

{¶35} In her first assignment of error, Fledderman argues that the trial court

erred by denying her motion for a default judgment on her counterclaims and by

permitting Watts to file her answer out of time.

{¶36} “A trial court’s decision to either grant a default judgment in favor of a

moving party or to allow the defending party to file a late answer pursuant to Civ.R. 6(B)

upon a finding of excusable neglect will not be reversed absent an abuse of discretion.”

Huffer v. Cicero,

,

(4th Dist. 1995). An abuse

of discretion involves more than an error of law or of judgment; it connotes an

attitude on the part of the court that is unreasonable, unconscionable or arbitrary.

Rock v. Cabral,

,

(1993).

{¶37} Civ.R. 6(B)(2) allows for an extension of time to file a late pleading

within the trial court’s discretion “upon motion made after the expiration of the

specified period * * * where the failure to act was the result of excusable neglect * *

*.” The “test for excusable neglect under Civ.R. 6(B)(2) is less stringent than that

applied under Civ.R. 60(B).” State ex rel. Lindenschmidt v. Bd. of Commrs. of

Butler Cty.,

,

(1995). In determining

whether neglect is excusable or inexcusable, courts “must take into consideration all

the surrounding facts and circumstances and * * * be mindful * * * that cases should

be decided on their merits, where possible, rather than procedural grounds.”

Under the plain language of Civ.R. 55, a default judgment is appropriate only where a

party has failed to plead or otherwise defend.

{¶38} Based on our review of the record, we cannot conclude that the trial

court abused its discretion by denying Fledderman’s motion for a default judgment

and granting Watts’s motion for leave to answer out of time given the unusual

15 OHIO FIRST DISTRICT COURT OF APPEALS

procedural posture of this case, the admonition that cases should be decided on the

merits, and the less stringent standard for excusable neglect in Civ.R. 6(B)(2).

{¶39} Here, Fledderman’s counterclaims demanded the opposite declaratory

relief that Watts had already sought in her declaratory judgment claim. Thus,

Fledderman cannot demonstrate any prejudice from the court’s permitting Watts to

file her answer out of time. Judicial economy, moreover, warrants litigating all

issues surrounding the property in a single action. Watts filed her combined motion

in response to Fledderman’s motion for a default judgment and she moved to file an

answer to the counterclaim within nine days of being served with the motion for a

default judgment. Thus, Watts’s counsel cannot be said to have flagrantly

disregarded the civil rules. Consequently, we cannot say the trial court abused its

discretion by granting Watts’s motion to answer out of time or in denying

Fledderman’s motion for a default judgment. See Stumpff v. Harris, 2d Dist.

Montgomery No. 23354,

, *5. As a result, we overrule the first

assignment of error and affirm the judgment of the trial court.

Judgment affirmed.

MYERS, P.J., and MILLER, J., concur.

Please note:

The court has recorded its own entry this date.

16