Document for 13-CV-0312 - AUDREY P CARMEL, TRUSTEE OF THE CARMEL vs. CARMEL, KENNETH R

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IN THE COMMON PLEAS COURT OF WAYNE COUNTY, OHIO

7

SUPPLEMENTAL MOTION FOR PARTIAL

AUDREY P. CARMEL, Trustee of The Carmel Case No. 13-CV-0312

*
Family Revocable Trust dated October 7, 2003 *
*
*

Plaintiff SUMMARY JUDGMENT OF THE
* PLAINTIFF, AUDREY P. CARMEL,
vs. » TRUSTEE OF THE CARMEL FAMILY
, REVOCABLE TRUST DATED OCTOBER
KENNETH R. CARMEL, et al. 7, 2003; SUPPLEMENTAL
* — MEMORANDUM IN SUPPORT OF PRIOR
Defendants * — MOTIONS TO STRIKE AND MOTION TO
+ DEEM THE REQUEST FOR ADMISSIONS
» ADMITTED

Now comes the Plaintiff, Audrey P. Carmel, Trustee of The Carmel Family Revocable Trust dated
October 7, 2003, by and through her counsel, who, pursuant to Rule 56 of the Ohio Rules of Practice,
hereby moves this Court for an order granting partial summary judgment on the allegations set forth in
Counts |, I! and Ill of the Amended Complaint. Plaintiff submits that there are no questions of material fact
pertaining to the claims set forth in Counts |, Il and Ill of the Amended Complaint, and that Plaintiff is
entitled to summary judgment as a matter of law. Count IV of the Amended Complaint addresses the
Plaintiff's damages and the damage issues can be addressed at the time of trial.

Plaintiff submits that this Court's ruling on this Motion for Partial Summary Judgment will address
the prior motions on the questions of law submitted by the Plaintiff. Plaintiff also submits that the prior
motions to strike filed by the Plaintiff and the motion to deem the requests for admissions admitted should
be austaiggd as part of this Court's ruling on this Motion for Partial Summary Judgment.

Plant subthits the following memorandum in support of her position.

e& = 5 Respectfully submitted,
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wo Ss FFICE, LLC.
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= 3S James M, Richard (#0016491)
2

Attorney for Plaintiff, Audrey P. Carmel, Trustee
of The Carmel Family Revocable Trust dated
October 7, 2009

127 E. Liberty Street, Suite 100

P.O. Box 1207

Wooster, Ohio 44691

Tel: 330/262-0034 / Fax: 330/262-0080

Email: james @richardlawoffice.comMEMORANDUM

ARTICLE I. Definitions

A “Trustee” means the Plaintiff, Audrey P. Carmel, Trustee of The Carmel Family Trust
dated October 7, 2013.

B. “Kenneth and Kimberly” means collectively the Defendants, Kenneth R. Carmel and
Kimberly Carmel.
C. “Premises” means the real estate and improvements located at 4517 Young Drive,

Wooster, Ohio 44691, and the Warranty Deed pertaining to the Premises is attached to Trustee's
Complaint as Exhibit 1. A copy of the Warranty Deed is attached to the Affidavit of James M. Richard.

D. “Termination Notice” means the termination of the lease attached to the Complaint as
Exhibit 2, and the Termination Notice is also included in the Affidavit of James M. Richard.

E. “Richard Affidavit” means the Affidavit of James M. Richard attached hereto marked as
Exhibit A.

F. “Swinehart Affidavit” means the Affidavit of Jim Swinehart attached hereto marked as
Exhibit B.
G. “Notice to Leave Premises” means the notice attached to the Complaint as Exhibit 3,

and this notice is also referred to in the Swinehart Affidavit.
H. “Amended Complaint” means the Amended Complaint filed by Trustee on July 17, 2013.

I. “Motion to Strike and Supplemental Motion to Strike” means Trustee’s Motion to Strike
the purported responses to Trustee's discovery request filed on March 23, 2013, as well as the
Supplemental Motion to Strike filed by Trustee on April 30, 2013, copies of those motions and
memorandums, together with the proposed order submitted to the Court at the time of filing, are attached
hereto marked collectively as Exhibit C.

J. “Admissions Motion” means the Motion to Deem Requests for Admissions Admitted by
Kenneth and Kimberly filed with the Court on March 20, 2013. A copy of the motion and memorandum,
together with the proposed order that was submitted to the Court at the time of filing, are attached hereto
marked collectively as Exhibit D.

K. “Order” means the Order directing Kenneth and Kimberly to comply with the discovery
requests and properly respond to the discovery requests. A copy of that order is attached hereto marked
as Exhibit E.~ ~

ARTICLE Il. Status of the Proceedings

Trustee commenced a forcible entry and detainer action in the Wayne County Municipal Court.
Kenneth and Kimberly did not file an answer; however, they did request a jury demand and paid the cost
deposit for the jury demand. The parties appeared in court for the initial hearing on February 6, 2013.
Trustee appeared, having traveled from the state of New Hampshire and Kimberly appeared. Kenneth
failed to appear. The Court required Kimberly to post a bond in the sum of $5,000. The bond was posted.
No objections were filed by Kenneth and Kimberly to this order. On February 8, 2013, this case was
scheduled for final pretrial conference on March 20, 2013 at 1:00 p.m. and a jury trial on April 10, 2013 at
9:00 a.m. Trustee then filed her motion and memorandum seeking rulings on the questions of law, a
motion in limine and a motion to bifurcate. The parties appeared in court on March 20, 2013. Trustee
appeared through counsel and Kimberly appeared, but Kenneth failed to appear. The order issued by the
Court reads, in pertinent part, as follows:

“The defendant is given until March 27, 2013 to respond to plaintiff's motion for ruling on
questions of law...”

Trustee then filed her Admissions Motion due to Kenneth and Kimberly's failure to respond.
Trustee also submitted a proposed order. Kenneth and Kimberly then, without leave of court, filed a
purported response to the discovery request. The response is unsigned and incomplete. Trustee then filed
a motion to strike the purported responses due to their non-compliance with the applicable law on March
27, 2013. On March 27, 2013, Kenneth and Kimberly filed a handwritten document with no attachments
and no affidavits essentially claiming that part performance renders the statute of frauds inapplicable.
Kenneth and Kimberly cited no law to support their position nor did they make reference to or attach any
documents to support what it is they were claiming to be the oral agreement.

This Court then issued its order on April 1, 2013, which reads, in relevant part, as follows:

“In the interest of justice, the court hereby extends the time by which the defendants are to
properly respond to the Plaintiff's pending motion in limine, and to_properly comply with

discovery responses until April 15, 2013.

2It_is highly recommended that the defendants retain counsel immediately.” (Emphasis
added) Exhibit “E”

The jury trial date of April 10, 2013 was then changed to another pretrial conference requiring the parties to
appear on April 10, 2013. On April 10, 2013, Trustee appeared through counsel and Kenneth and Kimberly
appeared. The Honorable Judge Weigand presided over the pretrial conference and issued his order after
the pretrial conference directing Kenneth and Kimberly to respond to all pending motions. Counsel then
appeared on behalf of Kenneth and Kimberly and secured an extension of time to respond.

Trustee then filed a Motion and Memorandum for Partial Summary Judgment. Kenneth and
Kimberly filed a memorandum in opposition. Kenneth and Kimberly then filed a Motion for Leave to File
Amended Answer and Counterclaim Instanter. Trustee opposed this motion. The Court granted Kenneth
and Kimberly's request to file an Amended Answer and Counterclaim. Trustee filed her Reply to the
Counterclaim. The Counterclaim included a claim for damages in excess of the jurisdictional limit of the
Wayne County Municipal Court. This case was then transferred to the Wayne County Court of Common
Pleas.

A status conference was held by this Court on June 27, 2013. Trustee was granted leave to file an
Amended Complaint and Supplemental Motions and Memorandums. Trustee filed here Amended
Complaint on or about July 17, 2013. Kenneth and Kimberly filed their Answer on or about August 7, 2013.
Kenneth and Kimberly and/or their counsel have not filed any responses to the Motion to Strike (Exhibit “C’)
or the Admissions Motion (Exhibit “D’). They have not served Trustee with any supplemental responses as
required by the Rules of Practice and the Order (Exhibit E). They have only delivered to counsel the same
unsigned, incomplete responses which are attached to Trustee's initial Motion to Strike (Exhibit “C’).

Kenneth and Kimberly, through counsel, did file a request for discovery requesting the production

of certain documents. Trustee filed a memorandum in opposition to that request and a motion to stay~ ~

discovery by Kenneth and Kimberly until such time as the Court rules on the pending motions and the
corresponding questions of law.
ARTICLE Ill. Amended Complaint

The Amended Complaint asserts four (4) separate claims for relief. The Amended Complaint was
filed when Trustee discovered, prior to the transfer of this case and after reviewing this matter with New
Hampshire counsel who represented Trustee and the Estate of Richard Carmel, deceased, the signed
lease agreement. That lease agreement is attached to the Amended Complaint as Exhibit 3. Additional
documents attached to the Amended Complaint included the deed confirming ownership of the real estate
by Trustee; the death certificate pertaining to Richard Carmel; the lease agreement signed by Kenneth and
Kimberly; a bill from New Hampshire counsel showing his statement for the preparation of the lease
agreement as requested by Richard Carmel; and the Wayne Mutual Insurance document showing the
securing of rental dwelling insurance by Trustee for the premises in question. The remaining documents
attached to the Amended Complaint are the notices terminating the lease agreement and the subsequent
notices serviced pursuant to R.C. §1923. These documents are identified in the Richard Affidavit (Exhibit
“A’) and Swinehart Affidavit (Exhibit “B"). Authenticated copies are attached to the Amended Complaint.

Count | is a forcible entry and detainer action, Count I is a complaint for declaratory telief, Count III
is a complaint for an immediate order of possession, and Count IV is a claim for damages pursuant to the
terms of the lease agreement.

ARTICLE IV. Applicable Law
A. Summary Judgment Standard:

Under Civ. R. 56, summary judgment is proper when: (1) no genuine issue as to any material fact
remains to be litigation; (2) the moving party is entitled to judgment as a matter of law and (3) it appears
from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most
strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is

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adverse to that party. Trial courts should award summary judgment with caution, being careful to resolve
doubts and construe evidence in favor of the non-moving party. Nevertheless, summary judgment is
appropriate where a plaintiff fails to produce evidence supporting the essentials of its claim. Welco
Industries, Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 617 N.E.2d 1129; Leibreich v. A.J. Refrigeration,
Inc. (1993), 67 Ohio St.3d 266, 617 N.E. 2d 1068; Davis v. Loopco Industries, Inc. (1993), 66 Ohio St.3d
64, 609 N.E. 2d 144.

Civil Rule 56(C) provides that a motion for summary judgment is appropriate when:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is

entitled to judgment as a matter of law; and (3) it appears from the evidence that

reasonable minds can come to but one conclusion, and viewing such evidence most

strongly in the favor of the party against whom the motion for summary judgment is made,

that conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317,

327 (1977).

The moving party bears the initial burden of informing the trial court of the basis for the motion and
pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt,
75 Ohio St.3d 280, 292-93 (1996). Specifically, the moving party must support its motion by pointing to

some evidence in the record indicated in Civ.R. 56(C). /d. Once this burden is satisfied, the non-moving

party bears the burden of offering specific facts to show a genuine issue for trial. /d. at 293; Civ.R. 56(E).

B. Statute of Fraud and Kenneth and Kimberly’s Claim_of an Ownership Interest in the

Premises:

1. Ohio's Statute of Frauds:

Ohio's statute of frauds provides that certain contracts must be in writing to be enforceable. This
includes contracts for the transfer of real property. R.C. 1335.04 provides:

“No lease, estate or interest, either of freehold or terms 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, or his agent thereunto
lawfully authorized, by writing, or by act and operation of law.” (Emphasis added)

Further, R.C. 1335.05 states:~ -~

“No action shall be brought...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.” (Emphasis added)

In addition, R.C. 1335.02(B) addresses loan agreements, and reads, in pertinent part, as follows:

“...No party toa loan agreement may bring an action on a loan agreement unless the

agreement is in writing and is signed by the party against whom the action is brought or by
the authorized representative of the party against_whom the action is brought...”
(Emphasis added)

The statute of frauds as embodied in R.C. Chapter 1335 acts as an evidentiary safeguard requiring
certain agreements to be in writing, including agreements...transferring or creating an interest in land..."
Stonecreek Properties, Ltd. v. Ravenna Sav. Bank 11t Dist. No. 2002-P-0129, 2004-Ohio-3679. The
statute of frauds serves to insure that transactions involving a transfer of real estate are completed with
sufficient solemnity. N. Coast Cookies, Inc. v. Sweet Temptations, Inc., 16 Ohio App.3d 342, 348, 476
N.E.2d 388 (8" Dist. 1984). A signed agreement 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 regarding such interests.
Wells Fargo Bank v. Baldwin, (July 30, 2012), 12 Dist. Court of Appeals, 2012 WL 3064495.

When dealing with a verbal agreement, in order for a verbal agreement to modify a prior
agreement, it must be a valid and binding contract itself, resting on new and distinct consideration.
Thurston v. Ludwig, 6 Ohio St. 1, 6-7 (1856). The terms of the oral agreement must be disclosed and the
agreement must be a valid and enforceable contract. It must include an offer, an acceptance and a
Meeting of the minds. In addition to a meeting of the minds, an enforceable contract must be definite
regarding its essential terms; i.e. the identity of the parties, the subject matter of the contract, and the
consideration. Huntington Nat'l Bank v. R.R. Wellington, Inc., (2002) 983 N.E.2d 941, 2012-Ohio-5935;

Huffman v. Kazak Bros., Inc. (Apr. 12, 2002) 2002-WL-549858 (Ohio 11" Dist.)2. Contract Interpretation and Reformation of Contracts:

A lease agreement, and for that matter, a loan agreement, whether oral or in writing, is governed
by contract law. The purpose of contract construction is to discover and effectuate the intent of the parties.
The intent of the parties is presumed to reside in the language of the instruments they chose to use.
Contract interpretation is normally a question of law. Rongone v. Ohio Mach. Tool & Design, Inc., (Mar. 13,
1991), 9% Dist. No. 14706, 1991 WL 35101. A signed agreement is presumed to be valid. Henke v.
Henkle (1991), 75 Ohio App.3d 732, 735, 600 N.E.2d 791, 793-794. The question of whether or not an
ambiguity exists is a question of law. Casillas v. Stinchcomb, 2005 WL 1845318 (Ohio App. 6" Dist.).

The doctrine of contract reformation only applies when the agreement in question does not express
the intent of the parties. De /fino v. Paul Davies Chevrolet, Inc., 2 Ohio St.2d 282, 286, 209 N.E.2d 194
(1965); Greenfield v. Aetna Cas. & Sur. Co., 75 Ohio App. 122 61 N.E.2d 226 (12! Dist. 1944).

3. Signed Memorandum Exception:

In order to satisfy the statute of frauds, a signed memorandum must 1) identify the subject matter
of the agreement; 2) establish that a contract has been made; and 3) state the essential terms of that
contract with such clearness and certainty that they may be understood from the memorandum itself, or
some other writing to which it refers, without the necessity of resorting to parol evidence and proof. Kling v.
Bordner (1901), 65 Ohio St. 86, 61 N.E. 148, paragraph one of the syllabus; Landskroner v. Landskroner,
154 Ohio App.3d 571, 797 N.E.2d 1002, 2003-Ohio-4945. Beggin v. Ft. Worth Mtge Corp. (1994), 93 Ohio
App. 3d 333, 339, 638 N.E.2d 604; N. Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio
App.3d 342, 348, 476 N.E.2d 388; Salmans v. Bowers (September 3, 1999), 7" Dist. No. 97-CO-31. These
requirements 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 and fraudulent claims about such interests. N. Coast Cookies,Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App.3d 342, 348, 476 N.E.2d 388. Equitable
consideration will not override the Statute of Frauds.

4, Fraud as an Exception to the Statute of Frauds:

In order to establish a fraud claim, each of the following elements must be proven by clear
and convincing evidence: (1) an actual or implied false representation concerning a fact or, where there is a
duty to disclose, concealment of a fact; (2) the fact is material to the transaction; (3) knowledge of the falsity
of the representation or such recklessness or utter disregard for its truthfulness that knowledge may be
inferred; (4) intent to induce reliance on the representation; (5) justifiable reliance; and (6) injury proximately
caused by the reliance. Glazier v. Lehman Bros., Inc. 394 F.3d 444, 459 n.7 (6" Cir. 2004) (citing Davis v.
Sun Ref. & Mktkg. Co. 109 Ohio App.3d 42, 55, 671 N.E. 2d 1049, 1058 (1996)). A valid and enforceable
contract requires an offer, an acceptance, and a meeting of the minds. In addition to a meeting of the
minds, an enforceable contract must be definite regarding its essential terms; i.e., identity of the parties, the
subject matter of the contract, and consideration. Huntington Nat'l Bank, supra.

5. Promissory Estoppel as an Exception to the Statute of Frauds:

Ohio courts have permitted the promissory estoppel doctrine to be an exception to the statute of
frauds. In general, however, the promissory estoppel exception to the statute of frauds defense is
permitted only in narrow circumstances. Beaverpark Associates v. Larry Stein Realty Co. (Aug. 30, 1995),
1995 WL 516469 (Ohio App. 2 Dist No. 14950); Huntington National Bank v. R.R. Wellington Inc. (2012),
984 N.E. 2d 941. In cases involving the statute of frauds, this doctrine is at times addressed when there is
an alleged oral agreement modifying a written loan agreement. McCarthy, Lebit, Crystal & Haiman Co.
LPA v. First Union Mgt, Inc. (1993), 87 Ohio App.3d 613, 622 N.E.2d 1093; R.C.1335.02. Ohio courts
have also determined that the promissory estoppel exception applies only where “either a

misrepresentation leaving the person to believe that the statute of frauds’ requirements have beencomplied with, or a promise to make a memorandum of the agreement sufficient to satisfy the statute.”
McCarthy, supra; Huntington National Bank, supra.

A claim for promissory estoppel arises where there is (1) a clear and unambiguous promise; (2)
reliance upon the promise by the person to whom the promise is made; (3) reliance that is reasonable and
foreseeable; and (4) the party seeking to enforce the agreement is injured as a result of its reliance. Again,
as an exception to the statute of frauds, the doctrine only applies where there is a misrepresentation that
the statute of frauds requirements have been complied with or a promise to make a memorandum
agreement. Beaverpark Associates v. Larry Stein Realty Co. (Aug. 30, 1995), 1995 WL 516469 (Ohio 24
Dist.); Huntington, supra.

The Supreme Court of Ohio has addressed the doctrine of part performance and promissory
estoppel. In Tier v. Singrey, 154 Ohio St. 521, 526, 97 N.E.2d 20 (1951), the Supreme Court held as
follows:

“In an action for specific performance of an oral contract for the sale of land, equity

intervenes to render the statute of frauds inoperative only when a failure to enforce the

contract will result in fraud and injury. To entitle one claiming to have purchased land to
enforce an oral contract for the conveyance thereof, he must, in reliance on the promise

have performed acts which changed his position to his prejudice...” (Emphasis added)

6. Part Performance as an Exception to the Statute of Frauds:

The doctrine of part performance, as an exception to the statute of frauds, is limited to certain
specific situations. Here, we are dealing with a forcible entry and detainer claim, a claim for declaratory
telief declaring the agreement between the parties to be a lease agreement, and a request for an order of
possession. All of these claims address the obligations of the parties under the lease agreement. The
mere fact that a party may enter into possession of certain premises pursuant to a lease agreement does
not constitute part performance of an oral agreement to purchase real estate to avoid the statute of frauds.

Othemise, in virtually every lease agreement, a defendant could assert “possession” under a lease~ ~

agreement as a defense to the termination of the lease and the lease would then remain in effect in
perpetuity.

In order to remove an oral contract for the sale of real estate from the statute of frauds pursuant to
the doctrine of part performance, the party that is relying on the agreement must have undertaken
“unequivocal acts” which are exclusively referable to the agreement and which have changed the position
of the party to their detriment and making it impossible or impractical to place the parties in their status quo.
Spectrum Benefit Options, Inc. v. Med. Mutual of Ohio (2007), 174 Ohio App.3d 29, 880 N.E.2d 926;
Cunningham v. Miller (June 4, 2010), 2010 WL 2245611 (Ohio App. 11 Dist). Further, the part
performance exception can only apply when the failure to enforce the oral agreement would result in fraud,
injury or prejudice passing to the other party. Tier, surpa.

C. Scintilla of Evidence:

Rule 56 addresses the evidence which is competent for summary judgment purposes. It
specifically refers to affidavits and the discovery responses, or the lack thereof. Rule 56(G) addresses
affidavits submitted in bad faith or for the sole purpose of avoiding summary judgment. Such affidavits or
allegations do not constitute competent evidence for summary judgment purposes. At best, such filings
constitute a mere scintilla of evidence which is insufficient for summary judgment purposes. Anderson v.
Liberty Lobby, Inc., (1986), 477 U.S. 242, 247-253; Jackson v. Alert Fire and Safety Equip., Inc. (1991), 58
Ohio St.3d 48.

ARTICLE V. The Motion to Strike (Exhibit “C”) and Admissions Motion (Exhibit “D”

The Motion to Strike, Supplemental Motion to Strike and the Admissions Motion address the
discovery issues, and Kenneth and Kimberly have failed and refused to respond to the order issued by the
Wayne County Municipal Court on April 1, 2013, requiring them to properly respond to the discovery
requests by a date certain (Exhibit “C’, “D’, "E”). Trustee submits that for summary judgment purposes, the

initial discovery responses of Kenneth and Kimberly cannot be considered as competent evidence to create

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a question of fact as those responses are incomplete and incorrect as a matter of law. Trustee again
submits that the Admissions Motion should be sustained and the proposed order included with the
Admissions Motion should be approved by this Court. In addition, Trustee submits that the Motion to Strike
should be sustained and the order submitted with that motion should be signed and approved as the order
of this Court.

At the status conference, counsel for Kenneth and Kimberly again claimed that he had not seen the
order compelling Kenneth and Kimberly to properly respond to the discovery requests. It is certainly the
obligation of counsel to review the Court orders, especially those orders directing counsel's clients to
perform by a date certain. In any event, this order is attached to this memorandum as Exhibit “E”. For
summary judgment purposes, the only reasonable inference or conclusion that can be reached is that
Kenneth and Kimberly, or their counsel, are aware of the frivolous conduct statute and are aware of their
obligations to properly respond to discovery, and the responses submitted, at this point, remain as
responses that are not under oath.

The improper responses by Kenneth and Kimberly merely indicate, with regard to the request that
they provide all of the documents upon which they are relying in support of their purported defenses, or oral
agreement claims, that they are “gathering documents.” Again, the order was issued on April 1, 2013, and
no additional documents have been provided. This action was filed on December 10, 2012. Counsel has
been involved for Kenneth and Kimberly since April, 2013. Yet, they apparently are still “gathering
documents”. It appears to be the position of Kenneth and Kimberly that these documents should be
produced by Trustee. However, this position ignores the fact that Kenneth and Kimberly have the burden
of proof and that they are required as a matter of law to demonstrate all of the essential terms of this oral
loan or oral land installment contract; or the oral agreement to purchase the property and pay cash at
closing. These terms must be disclosed by Kenneth and Kimberly in order to assert than exception to the

statute of frauds applies. The discovery requests submitted by Trustee goes to the issues addressed in the

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Amended Complaint regarding the lease agreement between the parties.! The Trustee must again note
that she filed a motion to stay any further discovery by Kenneth and Kimberly until such time as this Court
ules on the summary judgment motions and the remaining questions of law. Again, it is not disputed that

Kenneth and Kimberly paid rent and/or that they paid for certain improvements.

ARTICLE VI. Summary Judgment and Questions of Law

Kenneth and Kimberly did not file an Amended Counterclaim. It is not known whether they are still
pursuing their claims of a so-called oral contract of sale and corresponding damages on an oral land
installment contract or some other oral purchase agreement. It is not known whether this claimed oral
agreement is a lease agreement with an option to purchase. It is not known whether this claimed
agreement calls for all lease payments to apply one hundred percent (100%) to the principal; or, apply in
some other manner. Kenneth and Kimberly have indicated they are required to pay interest, but they have
not disclosed the rate.

Trustee submits that the facts are not disputed. As set forth in the Amended Complaint, a written
agreement signed by Kenneth and Kimberly evidences the agreement between the parties. The remaining
documents attached hereto clearly confirm that Trustee is the owner of the property; that Richard Carmel is
deceased; that the lease agreement between the parties was properly and timely terminated and the
Kenneth and Kimberly still refused to remove themselves from the premises (Richard Affidavit, Exhibit “A”,
Swinehart Affidavit, Exhibit “B"). Further, the initial memorandum in opposition filed by Kenneth and
Kimberly to Trustee’s Motion for Summary Judgment contained no affidavits or any other competent
evidence for summary judgment purposes. The memorandum merely included arguments dealing with
what Kenneth and Kimberly claimed to be the applicable law.

Kenneth and Kimberly's responses make no reference to a memorandum of agreement and

contains no documents or affidavits to support anything except to allege that they had previously made

1 The bottom line is that Kenneth and Kimberly have no documents except possibly documents showing the payment of rent and
the payment for certain improvements.
12tegular, periodic payments and had paid for certain maintenance and repair or improvement expenses.
Their filing merely reads as follows:

“-We have had possession for 9 plus years.

-We have made regular payments.

-We have made improvements to land and house...”

All of these issues are addressed in the lease agreement. In support of their oral agreement, they
have not alleged a purchase price, the terms of purchase, or the term of the payments; i.e. whether the
agreement calls for payment in cash or payment through a land installment contract over a specific number
of years, together with a specified rate of interest. They have attached no amortization schedule showing
the monthly payments and/or the rate of interest. In earlier filings, Kenneth and Kimberly have indicated
they agreed to pay what Trustee paid for the property ($132,000), plus interest, but they refuse to disclose
the interest rate, the loan term and the current unpaid balance pursuant to the interest rate.2 Again,
Kenneth and Kimberly do not provide anything in support of this oral agreement to purchase the real estate.
Looking at the applicable law, Trustee submits that there is no signed memorandum identifying the subject
matter of the purchase agreement, confirming the purchase agreement and/or disclosing the material terms
as required. Thus, the signed memorandum exception to the Statute of Frauds does not apply.

With regard to “fraud as an exception to the statute of frauds”, there is no evidence of any false
representation by Trustee or the predecessor Co-Trustees, concerning any fact. The exhibits attached to
the Amended Complaint clearly demonstrate the un-rebutted intent of Richard Carmel now deceased, the
father of Kenneth Carmel (one of the defendants herein). Through his counsel, he identified the lease
agreement, its purpose and caused the same to be delivered and executed by Kenneth and Kimberly. The
trust documents speak for themselves, and the entire trust document and death certificate have been

attached and authenticated by affidavit. The deed confirming ownership of the property has been property

2 It appears that they are also arguing that the interest rate they are required to pay is the same as the interest rate
on the loan secured by the Trustee. It does not matter whether the interest is five percent (5%), four percent (4%) or
eight percent (8%). If all of the terms of this oral retail installment contract are disclosed, and any interest rate is
selected, the full principal amount is still due and owing. That is the very reason that Kenneth and Kimberly do not
want to make these disclosures as they do not want to purchase the property for $132,000.

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submitted into evidence and authenticated. The death certificate of Richard Carmel now forms a part of
this record and there is no question of fact that Trustee is the successor trustee (Richard Affidavit, Exhibit
“A’), The additional documents confirm the lease agreement and also confirm the purchase by the
predecessor Co-Trustees of rental insurance for the premises. There is virtually no evidence of any actual
or implied false representation, fraud, concealment, reliance or justifiable reliance. Thus, this exception to
the Statute of Frauds does not apply. Again, the burden of proof imposed upon Kenneth and Kimberly is
clear and convincing evidence in order to demonstrate fraud and injury.

The doctrine of promissory estoppel only applies in very limited and narrow circumstances.
However, regardless and irrespective of what Kenneth and Kimberly claim to be the essential material
terms of the oral agreement, at best, their evidence indicates that they paid rent payments for a period of
years and that Kenneth and Kimberly paid for certain improvements to the property. Such payments are
consistent with the lease agreement and the terms of the lease agreement referred to in the Amended
Complaint.

Kenneth and Kimberly have not demonstrated any fraud, prejudice or harm as a result of the
payments they have made. It is not uncommon for parties to enter into long-term lease agreements.
Parties to lease agreements do not build up equity in the property as the agreement merely calls for the
payment of rent and other expenses. Kenneth and Kimberly can move and rent another property for the
same rental rate. There are homes sitting vacant all over Wooster, Ohio. The tenant paying for certain
improvements is consistent with terms of most lease agreements. Provisions calling for the tenant to mow
the yard, maintain the landscaping and pay for certain maintenance and repair expenses are commonplace
in all lease agreements, including the one attached to the Amended Complaint. Kenneth and Kimberly did
not pay the real estate taxes; they did not pay the homeowner's insurance; they merely made monthly

payments that they were required to pay.

14In order to remove an oral agreement pertaining to real estate from the Statute of Frauds based
upon the doctrine of partial performance, the law requires that Kenneth and Kimberly demonstrate clearly
that they undertook “unequivocal” acts, which are exclusively referable to in this oral agreement and which
have changed their position so drastically that they cannot be restored to the status quo. They must also
show fraud, injury and damage passing to them. Paying rent for a period of eight or nine years is not
unique. The obligation to pay rent does not provide Kenneth and Kimberly with the right to reclassify that
rent as payments of principal and interest and further attempt to build up “equity” in a property during the
entire term of the lease. Kenneth and Kimberly's position, if accepted, would render virtually every lease
agreement meaningless and would constitute a defense to every termination action that is filed. Stated
differently, all tenants would appear in court, claim long-term payments of rent and further allege that they
have the right, because of those payments, to remain at the premises in perpetuity.

Again, in virtually every landlord-tenant situation the tenant enters into “possession” of the
premises. Thus, Kenneth and Kimberly's reliance on the element of “possession” as one of the elements
that could possibly remove this oral agreement from the Statute of Frauds is meaningless. Again, Kenneth
and Kimberly refused to disclose the terms of the purchase agreement, except to admit that interest was
required to be paid. Again, it is the burden of Kenneth and Kimberly to demonstrate clearly the terms of the
agreement with specificity. They also must demonstrate clearly compliance with each and every element of
the doctrine of part performance as an exception to the Statute of Frauds. There is no such evidence
anywhere in this record to support such an argument.

Article Vil. Summary

Trustee must note that the lease agreement was entered into in 2003. At that time, the real estate
market was stable. Since that time, the real estate market has collapsed. We have countless foreclosure
actions pending at this time where people have walked away from properties that they thought were

valuable in 2002, 2003 and 2004, and are not now worth anything close to what is owed on the mortgage.

15Further, everyone is aware of the fact that when we are dealing with a twenty (20) to thirty (30) year loan, or
long term land installment contract, very little or no principal is paid over the first eight (8) to ten (10) years
of the loan. If we ignore the applicable law that applies to the undisputed facts in this case, it is still clear
what the goal is of Kenneth and Kimberly. They do not want to pay the $132,000 purchase price that
Trustee paid for this property because they do not believe it is worth $132,000. They know that the
payments they have paid the last nine or ten years have not reduced the principal at all. They simply want
to stay at this property in perpetuity and continue to pay rent. Alternatively, they desire to purchase the
property for a price far less than what the Trustee paid for the property. Otherwise, they would have
proceeded to buy this property, or an equivalent property, for $132,000. The problem is the law, as it
applies to the facts of this case, prohibits such an approach. There is absolutely no fraud, injury, damage
or harm that has passed to Kenneth and Kimberly by paying for some improvements and paying rent over
the last several years. There are many other people who have paid the same payments under similar
lease agreements.

Kenneth and Kimberly even go to the extent to claim that since the Trustee accepted their monthly
payments, there is no default and the cause of action against them has been extinguished by the
acceptance of the payments by the Trustee. This Motion for Summary Judgment addresses Counts |, Il
and Ill of the Amended Complaint. The Complaint for Declaratory Relief seeks an order of this Court
declaring that the agreement between the parties is a lease agreement and that this lease agreement has
been terminated. The pleadings also request that, as a result of the termination of the lease agreement,
the Trustee is entitled to immediate possession of the property. Apparently, Kenneth and Kimberly are
arguing that the mere acceptance of monthly rental payments due and owing provides them with the right
to continue this lease agreement in perpetuity regardless and irrespective of the fact that the term has
expired. In any event, for summary judgment purposes, such an argument has no weight or credibility as

there is no law to support such a position.

16~~ -~,

Trustee submits that her Motion to Strike and her Admissions Motion should be sustained. In the
alternative, Trustee submits that the limited discovery responses provided by Kenneth and Kimberly do not
constitute competent evidence that creates a material dispute of fact for summary judgment purposes.

Trustee further submits that she should be awarded partial summary judgment on Counts |, ll and
Ill of the Amended Complaint. Trustee submits that her Motion for Summary Judgment should be sustained
as Trustee is entitled to an order and declaratory relief indicating that the agreement between the parties is
a lease agreement which has been terminated and Trustee is entitled to possession of the premises.

Respectfully submitted,
RICRARD LAW OFFICE, LLC.

By:
Jambs M. Richard (#0016491)
Attorney for Plaintiff, Audrey P. Carmel, Trustee
of The Carmel Family Revocable Trust dated
October 7, 2009
CERTIFICATE OF SERVICE

| hereby certify that a true copy of the Supplemental Motion for Summary Judgment was mailed to
Craig R. Reynolds, Attorneys for Defendants, at Reynolds Law Office, 441 West Liberty Street, P.O. Box
958, Wooster, Ohio 44691, this \u™ day of August, 2013, by ordinary U.S. mail.

RIC LAW OFFICE, LLC.

By:

James WM. Richard (#0016491)

Attorney for Plaintiff, Audrey P. Carmel, Trustee
of The Carmel Family Revocable Trust dated
October 7, 2009

17~ ~

IN THE MUNICIPAL COURT OF WAYNE COUNTY, OHIO

AUDREY P. CARMEL, Trustee of the CASE NO. CVG12-12-02188
Carmel Family Revocable Trust dated

October 7, 2003 MAGISTRATE: Jerry S. Packard

Plaintiff AFFIDAVIT
vs.

KENNETH R. CARMEL, et al.

ee

Defendants

STATE OF OHIO )
)ss
COUNTY OF WAYNE )

Affiant, James M. Richard, being first duly sworn, deposes and states the following:
1. That Affiant has personal knowledge of the facts and statements made herein; and

2. That Affiant has served as counsel for the Plaintiff, Audrey P. Carmel, Trustee of the Carmel
Family Revocable Trust dated October 7, 2003, in these proceedings; and

3. That Affiant drafted and mailed the letter to the Defendants, Kenneth Carmel and Kimberly
Carmel, dated September 20, 2012, a copy of which is attached hereto marked as Exhibit 1, by
ordinary U.S. Mail, directed to Kenneth Carmel and Kimberly Carmel at 4517 Young Drive,

Wooster, Ohio 44691; and

4. That the addressed, stamped envelope was not returned at any time to Affiant’s office with an
indication that it had not been delivered; and

5. That the Defendants confirmed receipt of the letter attached hereto marked as Exhibit 1 by a
subsequent communication directly with the Plaintiff as evidenced by the document attached
hereto marked as Exhibit 2; that the remaining paragraphs‘ of this communication from the
Defendant, Kimberly Carmel, to the Plaintiff have been redacted; and

6. That the document attached hereto marked as Exhibit 1 is the same document that is attached
to Plaintiff's Complaint as Exhibit 2; and

7. That Affiant appeared in court as counsel for Plaintiff before Magistrate Packard on February 7,
2013, and the entire trust document identified as the Carmel Family Revocable Trust dated

EXHIBIT

ay A“r ~

October 7, 2003, together with the Pour-Over Will of Richard Carmel, was presented to the
Court labeled as confidentiality documents with complete copies being presented to the
Defendant, Kimberly Carmel, for review; that these documents were returned to counsel for
Plaintiff at the conclusion of the hearing after review by the Court and after review by
Defendant, Kimberly Carmel; and

8. That Richard Carmel is deceased and Audrey P. Carmel is the successor trustee of The
Carmel Family Trust dated October 7, 2003; and

9. That a certified copy of the Warranty Deed evidencing ownership of the real estate located at
4517 Young Drive, Wooster, Ohio 44691, is attached hereto marked as Exhibit 3; that the deed
attached hereto marked as Exhibit 3 is attached to the Complaint as Exhibit 1; and

10. That The Carmel Family Trust dated October 7, 2003, Pour-Over Will and Death Certificate of
Richard Carmel are attached as Exhibit 4, but filed under seal as the constitute confidential

documents.

FURTHER AFFIANT SAYETH NAUGHT.

PAMELA A. WRIGHT
Notary Public, State of Ohio
== My Commission Expires

February 22, 2016RICHARD LAW OFFICE, Lc James M. Richard
Attorney at Law

T (330) 262.0034
F (330) 262.0080

jamesqrichardlawoflice.com

September 20, 2012 P.O. BOX 1207
Wooster, Ohio 44691

Kenneth R. Carmel
Kimberly B. Carmel
4517 Young Drive
Wooster, Ohio 44691

RE: Premises - 4517 Young Drive
Lease Agreement

Dear Mr. and Mrs. Carmel:

As you know, | represent Audrey Carmel and the Carmel Family Revocable Trust dated August 7,

2003, which owns the real estate that you occupy pursuant to a verbal lease agreement. This letter wil
serve as your thirty (30) day written notice of termination of this lease. Following the expiration of the thirty

(30) day period, you will be required to vacate the premises.

Please contact me if you have any questions.

Very truly yours,

James M. Richard

JMRipaw
Cc: Audrey Carmel, Trustee

EXHIBIT

127 East Liberty Street Suite 100 | Wooster, Ohio 44691 | www.richardlawoffice.comwoceeeneee Forwarded message ----------
From: K Carmel 
Date: Sun, Dec 23, 2012 at 1:46 PM

Subject:

To: Audrey Carmel 

Audrey,
The response from your lawyer implies a previous contact attempt. The court documents also

show this single attempted contact. In reality, any solicitation from a lawyer from Sept til

now would have been immediately tossed. Ken and I were in a severe automobile accident. The
barrage of lawyers trying to convince us to sue the woman in the other vehicle was outrageous.
Ina single day we received 22 letters. The calls were endless. Knowing your counsels name
NOW made it possible to fish his recent letter from the pile that would have been recycled.

The solicitations never end. Everyone is eager to sue. It's criminal. While my whiplash was
severe it ebbed and I had no desire to sue a woman consoling a toddler in the back seat.

xz

EXHIBITORGHSS PAE 386

—-_ ~

viate of Ohio, Fepsgo 165156

° cunty of Wy Fi ;
gerd Sc of ayn WIRE Sit icone
Copy Of the axainel os j9 apf of record Ae

in my office 7 *

Liso4 20

42003 At O2:) le

DEED ee °

OR Book 455 Page 1386 - 1387

200300165156
WAYNE COUNTY TITLE AGENCY
PICK UP
uty
WARRANTY DEED. (Spece above tise For seal WWS51,865/10795,
iM Presen
That We,
TIMOTHY S. WALLACE and LISA J. WALLACE
Husband and Wife
the Grantor(s),
330 1895

who claim(s) title by or through instrument recorded in OfficialDeed Records Volume” Page v
County Recorder’s Office, for the consideration of -------Ten Dollars and More------ Dollars
($10.00)received to our full Satisfaction of

RICHARD M. CARMEL, TRUSTEE and AUDREY P. CARMEL, TRUSTEE OF THE
CARMEL FAMILY REVOCABLE TRUST DATED OCTOBER 7, 2003

» the Grantee(s),

whose TAX MAILING ADDRESS will be
4517 Young Drive
Wooster, Ohio 44691

does/do
Give, Grant, Bargain, Sell and Convey unto the said Grantee(s), his/her/their heirs and
assigns, the following described premises:

Situated in the City of Wooster, County of Wayne and State of Ohio:

And known as the northwest part of the Northeast Quarter of Section
22, Township 16, Range 13, more fully described as follows:

COMMENCING at a stone marking the northwest corner of said Quarter;
Thence Kastward along the North line of said Quarter 132.0 feet to a
point in Cleveland Road;

Thence South 10° 18’ west along said road 280.8 feet to a point;
Thence South 87° 09° Kast 455.3 feet to an iron pipe;

Thence South 11° 30’ West 749.6 feet to an iron pipe, the Place of
BEGINNING for the tract of land herein described;

THENCE WITH THE FOLLOWING FOUR (4) couRSsEs:

1) ‘Thence continuing South 11° 30’ West 150.0 feet to an iron pipe;

2) Thence South 89° 13’ East 273.0 feet to an iron pipe;

3) Thence North 3° 04° East 147.5 feet to an iron pipe;

4) Thence North 89° 13’ West 251.0 feet to the PLACE OF BEGINNING
said tract containing 0.88 of an acre, according to a si
made in May, 1952, and recorded in Voluma "0", Page 78 of the
Wayne County Survey Records, be the same more or less, but
subject to all legal highways.

PARCEL NUMBER: 71-00301

be the same more or less, but subject to all legal highways.

TAXMAP PAGE 1 OF 2
Approved By <2 _ EXHI

iv: ~ ~

4

To Have and to Hold the above granted and bargained premises, with the
appurtenances thereof, unto the said Grantee(s), his/her/their/its heirs and assigns
forever.

And TIMOTHY S. WALLACE and LISA J. WALLACE, husband and wife, the said
Grantor(s} do for ourselves and our heirs, executors and administrators, covenant with
the said Grantee(s}, their heirs and assigns, that at and until the ensealing of these
presents, we are well seized of the above described premises, as a good and indefeasible
estate in FEE SIMPLE, and have good right to bargain and sell the same in manner and
formas above written; that the same are free from all encumbrances whatsoever, except
for:

ORouS5 pli 387

Restrictions and conditions of record, if any, easements and rights of way, leases of
record, and taxes and assessments for the year of 2003 and thereafter;

and that we will Warrant and Defend said premises, with the appurtenances thereunto
belonging, to the said Grantee(s), their heirs and assigns, against all lawful claims and
demands whatsoever except as stated above.

And for valuable consideration TIMOTHY S. WALLACE and LISA J. WALLACE,
' husband and wife do hereby remise, release and forever quit-claim unto the
Grantee(s}, their heirs and assigns, all our right and expectancy of DOWER in the
above described premises.

WITNESS our hand(s) this BlaJ-_ day of October 2003.

: a1 wil
: PAE

LISA (ALLACE

28B8SbI2STBe

STATE OF OHIO COUNTY OF WAYNE J ss.

Be it Remembered, that on the 2+ day of __ October . 2003, before me,
the subscriber, a Notary Public in and for said county, personally came
TIMOTHY S. WALLACE and LISA J. WALLACE

| the Grantor(s) in the foregoing Deed, and acknowledged the signing thereof to be their voluntary

act and deed.
In Testimony Whereof, | have hereunto subscribed my name and affixed my official seal on

the day and year last aforesaid.
amr. po_SOt- patel! 1, 2003
: ZARRA CL. UNDERWOOD, AUDITOR ~
: = DEPUTY PUBLIC frolyn Lang Modarelli

“Verto

My Commission Expires: August 14, 2004

This instrument prepared by:
This Conveyance has been examined and th

i Richard M. Keating, Esq. ™
319 202]
Keating Law Offices, LLP oan NaS Ce Ce
141 East Liberty Street FEES oO

1 Wooster, Ohio 44691 EXEMPT

JARRA L, UNDERWOOD, County Auditor

PAGE 2 OF 2~ ~

IN THE MUNICIPAL COURT OF WAYNE COUNTY, OHIG

+
AUDREY P. CARMEL, Trustee of the “CASE NO. CVG12-12-02188
Carmai Family Revocable Trust dated *
October 7, 2003 “MAGISTRATE: Jerry S. Packard
+
Plaintiff * AFFIDAVIT
vs. * .
KENNETH R. CARMEL, et al. *
Defendants *
®
‘STATE OF OHIG j
7388

COUNTY OF WAYRE =)

Affiant, dim Swinehari, being first duly sworn, deposes and siaiss the following:
4. Thai Aifiant nas personal knowisdge of ine facis and statements made herein: and

ihat Aifant was retained by Audiey Caimel, ifustse of the Carnet Family Kevocabie frist dated

Osiober 7, 2003, io serve a Three (3) Day Nolice io Vacaia the premises identified as 4517 Young

Brive, Wooster, Ghio 44691; and

3 That Affiant served the Thres (3 Day Notice, a copy of which is attached hereio marked as Exhioit 1, at
i