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Date: 07-02-2022
Case Style:
B&T Business Ventures v. Disi Bros. Land, L.L.C.
Case Number: C-210477
Judge:
Ginger S. Bock
Court:
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
On appeal from The Hamilton County Court of Common Pleas
Plaintiff's Attorney:
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Defendant's Attorney: Stagnaro Saba & Patterson Co. and Christopher R. Jones
Description:
Cincinnati, Ohio - Real Estate lawyer represented Plaintiffs-appellants with appealing summary judgment for defendant for unjust enrichment, constructive trust, and agency.
Disi owned real property located at 2785 Struble Road, Cincinnati, Ohio
(“property”). It leased the property, along with the convenience store and gas station
located on the property, to Kentucky Deal Holdings (“KDH”).
{¶3} In 2016, KDH subleased the property to B&T under a lease-to-own
agreement (“agreement”). B&T had the option to purchase the property by March 1,
2019. Disi was not a party to this agreement.
{¶4} In November 2020, B&T sued Disi, seeking a declaratory judgment, to
quiet title to the property, and for unjust enrichment, constructive trust, and agency.
The complaint alleged that B&T had discovered that the convenience store’s
underground petroleum containers were leaking after it had taken possession of the
property, causing it to spend thousands of dollars on repairs. Then, in June 2019, the
store caught fire, leaving it inoperable. B&T alleged that, although the agreement
excused it from paying rent during the period of inoperability, B&T continued to pay
rent from June 2019 through January 2020. B&T’s insurer paid approximately
$100,000 in repairs.
{¶5} B&T alleged that it had been waiting for the county to complete a
building inspection when KDH posted a notice of eviction in May 2020. Further, KDH
1 Although B&T’s complaint names other defendants, this appeal only involves Disi.
OHIO FIRST DISTRICT COURT OF APPEALS
4
allegedly prevented B&T from retrieving its inventory from inside the store. B&T asked
the court to declare it the owner of the property and sought other legal and equitable
relief. B&T’s complaint did not assert that it had entered into an oral contract involving
the property.
{¶6} Disi sought discovery from B&T. Despite the fact that B&T did not allege
an oral agreement in the complaint, it stated in an answer to a request for admission
that the parties had entered into an oral agreement whereby KDH had represented to
B&T that, if B&T continued making monthly payments for 15 years, it would become
the property’s owner.
{¶7} In June 2021, B&T’s counsel withdrew from representation. About three
weeks later, Disi moved for summary judgment, attaching the lease, affidavits, the
deed to the property, and B&T’s discovery responses. Disi argued that it was the sole
owner of the property, it was not a party to the agreement, B&T failed to exercise the
agreement’s purchase option, Disi was not enriched as B&T never paid rent or any
other money to Disi, the statute of frauds barred any alleged verbal agreement that
B&T claimed existed, and that constructive trust and agency claims are barred because
they are remedies versus causes of action. B&T did not oppose the motion.
{¶8} Approximately five weeks after Disi moved for summary judgment, the
trial court granted Disi’s motion. The court stated that the matter came before the
court on Disi’s motion, which was unopposed, and, “[u]pon duly considering the
matter” and “for good cause shown,” it granted judgment in Disi’s favor.
Law and Analysis
{¶9} We conduct a de novo review of summary-judgment decisions.
Holloman v. Permanent Gen. Assur. Corp., 1st Dist. Hamilton No. C-180692, 2019-
OHIO FIRST DISTRICT COURT OF APPEALS
5
Ohio-5077, ¶ 8. Under Civ.R. 56(C), summary judgment is proper when the moving
party establishes that “(1) no genuine issue of any material fact remains, (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 construing the
evidence most strongly in favor of the nonmoving party, that conclusion is adverse to
the party against whom the motion for summary judgment is made.” Id. at ¶ 7, quoting
State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163,
826 N.E.2d 832, ¶ 9.
The trial court’s judgment was based upon its consideration of the matter
{¶10} B&T’s first assignment of error asserts that the trial court improperly
granted summary judgment based on the motion being unopposed.
{¶11} Civ.R. 56(E) states that when a motion for summary judgment is
appropriately made:
[A]n adverse party may not rest upon the mere allegations or denials *
* * but the party’s response, by affidavit or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue
for trial. If the party does not so respond, summary judgment, if
appropriate, shall be entered against the party.
{¶12} A moving party meets its initial burden by informing the trial court of
the basis for the motion and identifying the portions of the record that demonstrate
that there is an absence of evidence to support the nonmoving party’s case. First Fin.
Bank, N.A. v. Mandenhall, 2017-Ohio-7628, 84 N.E.3d 1113, ¶ 6 (1st Dist.).
{¶13} B&T asserts that “the trial court did not discuss the applicable law, the
facts, or whether [Disi] had presented sufficient evidence to meet the summary
OHIO FIRST DISTRICT COURT OF APPEALS
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judgment standard. Instead, the court addressed only the fact that [B&T] did not file
an opposition * * * and rendered judgment on those grounds.”
{¶14} But the trial court clearly stated that it had “duly consider[ed] the
matter.” Further, it stated that “for good cause shown,” it was granting Disi’s motion.
And a trial court may grant summary judgment without explanation. Robson v.
Quentin E. Cadd Agency, 179 Ohio App.3d 298, 2008-Ohio-5909, 901 N.E.2d 835
(4th Dist.). In Robson, the trial court’s decision read, in its entirety: “Upon motion and
for good cause shown, the Court grants the motion * * * for summary judgment and
dismisses all claims of the plaintiffs. The Court finds there is no just cause for delay.”
Id. at ¶ 7. The reviewing court held that the trial court need only issue a judgment entry
that contains a “clear and concise pronouncement of the Court’s judgment” and “a
sufficient pronouncement of its decision upon which to review the issues raised by
appellants’ appeal.” (Citations omitted.) Id.
{¶15} The trial court’s entry contained a clear pronouncement of the court’s
decision. The trial court did not err by not providing an analysis.
{¶16} B&T also asserts that had the trial court reviewed Disi’s motion, it would
have found that it did not meet Civ.R. 56(C)’s burden of proof. But it does not offer an
argument in support of this assertion—only a conclusory statement that Disi failed to
present evidence in support of its motion.
{¶17} B&T’s first assignment of error is overruled.
The trial court’s judgment was timely
{¶18} In its fourth assignment of error, B&T asserts that the trial court’s
judgment was premature because it was before the close of discovery and denied B&T
the opportunity to oppose the motion.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶19} In Thomas v. Cranley, 1st Dist. Hamilton No. C-010096, 2001 Ohio
App. LEXIS 4853, *13-14 (Nov. 2, 2001), this court held that the trial court correctly
granted summary judgment in favor of two defendants, despite the plaintiffs’ assertion
that further discovery was needed because plaintiffs had “not filed any motions to
compel discovery in this matter, nor [had] they complied with Civ.R. 56(F).” When a
party cannot respond to a summary judgment motion due to inadequate discovery, it
must file a Civ.R. 56(F) affidavit delineating its reasons or waive any challenge to the
adequacy of discovery on appeal. Id. at *14.
{¶20} The record does not reflect that B&T served discovery requests on Disi.
And it failed to file a Civ.R. 56(F) motion and affidavit. Thus, it waived any challenges
to the adequacy of discovery on appeal.
{¶21} B&T contends that it could not file any motions because it did not have
counsel and its nonattorney members could not file on its behalf. B&T’s counsel
withdrew based on communications breaking down and an unreasonable burden on
counsel. As such, the withdrawal of B&T’s counsel and its failure to retain new counsel
were based on B&T’s own actions, not those of the trial court. See State ex rel. Dann
v. Meadowlake Corp., 5th Dist. Stark No. 2006 CA 00252, 2007-Ohio-6798, ¶ 40. The
trial court was not required to wait until B&T secured new counsel to move forward
with this lawsuit. B&T’s fourth assignment of error is overruled.
B&T had no interest in the property
{¶22} B&T’s second assignment of error asserts that the trial court improperly
concluded that Disi was entitled to judgment on B&T’s quiet-title action and
declaratory-judgment claims. It argues that Disi’s summary-judgment motion failed
to address title to the property.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶23} First, as Disi pointed out in its summary-judgment motion, B&T’s
complaint alleges that Disi owns the property.
{¶24} Second, R.C. 1335.04 provides that any interest in land may only be
assigned in writing or “by act and operation of law.” Disi argued in its summaryjudgment motion that B&T had no standing as to the quiet-title action as B&T did not
exercise the purchase option before March 2019 or otherwise create an interest in the
property. The evidence Disi produced met its burden to show it was entitled to
summary judgment. And B&T failed to produce evidence to rebut this evidence.
{¶25} Third, B&T’s argument that the parties made an oral agreement, under
which it would gain title to the property after making payments for 15 years, also fails.
The purported oral agreement was not alleged in the complaint. Moreover, the only
references to the oral agreement in the summary-judgment motion stated that KDH
made representations to B&T, not Disi.
{¶26} Finally, oral contracts involving real property are prohibited by the
statute of frauds. B&T failed to argue below that it was entitled to an exception to the
statute of frauds. Failure to raise an argument in response to a summary-judgment
motion waives that argument for purposes of appellate review. U.S. Specialty Ins. Co.
v. Hoffman, 10th Dist. Franklin Nos. 19AP-189 and 19AP-855, 2020-Ohio-4114, ¶ 20;
see Shutway v. Chesapeake Exploration, LLC, 2019-Ohio-1233, 134 N.E.3d 721, ¶ 57
(7th Dist.), quoting Whitson v. One Stop Rental Tool & Party, 2017-Ohio-418, 84
N.E.3d 84, ¶ 18 (12th Dist.) (“Appellate courts review summary judgment decisions de
novo but the parties are not given a second chance to raise arguments that they should
have raised below.”). As B&T did not raise any argument involving exceptions to the
statute of frauds below, we will not entertain it now.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶27} B&T’s second assignment of error is overruled.
B&T did not confer any benefit on Disi
{¶28} B&T’s third assignment of error asserts that the trial court improperly
granted summary judgment to Disi on B&T’s unjust-enrichment claim. The doctrine
of unjust enrichment allows a party to “recover the reasonable value for its services
rendered in the absence of an express contract if denying recovery would unjustly
enrich the opposing party.” Gilman v. Physna, LLC, 1st Dist. Hamilton No. C-200457,
2021-Ohio-3575, quoting Deffren v. Johnson, 2021-Ohio-817, 169 N.E.3d 370, ¶ 10
(1st Dist.). To recover under a theory of unjust enrichment, B&T must show that (1) it
conferred a benefit to Disi, (2) Disi knew of that benefit, and (3) Disi retaining that
benefit without paying B&T would be unjust. Id.
{¶29} The record reflects that Disi was not a party to the agreement between
KDH and B&T. Disi denied that it had ever received rents or any other financial benefit
from B&T. B&T failed to rebut Disi’s assertion. Accordingly, the trial court properly
granted summary judgment in Disi’s favor. B&T’s third assignment of error is
overruled.
Outcome: Disi met its Civ.R. 56 burden of proof and B&T failed to respond when
the burden shifted. The trial court properly granted summary judgment in favor of
Disi. We affirm the trial court’s judgment.
Judgment affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: