[Cite as Parrish v. Beeler,
2023-Ohio-247.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
KRIS M. and DENISE R. PARISH C.A. No. 21CA011810
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
VIVIAN J. BEELER COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee CASE No. 20CV200501
DECISION AND JOURNAL ENTRY
Dated: January 30, 2023
TEODOSIO, Presiding Judge.
{¶1} Kris and Denise Parrish appeal a judgment of the Lorain County Court of Common
Pleas that granted summary judgment to Vivian Beeler on their property damage claim. For the
following reasons, this Court affirms.
I.
{¶2} Ms. Beeler sold a house to the Parrishes. The Parrishes allege that, sometime
between the signing of the purchase agreement and closing, Ms. Beeler removed fixtures from the
house, damaged its walls, and ruined the house’s custom paintjob. The Parrishes sued Ms. Beeler,
asserting damage to real property, trespass to real property, fraud, and conspiracy. After Ms.
Beeler moved for summary judgment, the Parrishes conceded partial summary judgment on their
trespass, fraud, and conspiracy claims. The trial court granted summary judgment to Ms. Beeler
on the damage to real property claim, concluding that the Parrishes could not maintain their tort
action because the parties had a contract involving the house. The court also concluded that the
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Parrishes had not established that Ms. Beeler owed a legal duty to them that was imposed by law
because of their relationship and had not pointed to any evidence that would support a claim for
damage outside of the contract. The Parrishes have appealed, assigning two errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN CONCLUDING THAT HOME PURCHASERS
COULD NOT MAINTAIN A TORT ACTION AGAINST THE HOME SELLER
IN LIGHT OF THE EXISTENCE OF A FULLY-EXECUTED PURCHASE
AGREEMENT FOR THE HOME.
{¶3} In their first assignment of error, the Parrishes argue that the trial court incorrectly
concluded that they could not maintain a tort action against Ms. Beeler because of the contract for
the sale of the property. We do not agree.
{¶4} Appellate review of an award of summary judgment is de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56
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) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse
to the nonmoving party. Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 327 (1977), citing Civ.R.
56(C). A court must view the facts in the light most favorable to the non-moving party and must
resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg,
65 Ohio St.3d 356,
358–359 (1992). A trial court does not have the liberty to choose among reasonable inferences in
the context of summary judgment, and all competing inferences and questions of credibility must
be resolved in the nonmoving party’s favor. Perez v. Scripps–Howard Broadcasting Co.,
35 Ohio
St.3d 215, 218 (1988).
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{¶5} The Parrishes acknowledge that this Court has held that the existence of a contract
generally excludes the opportunity to present the same case as a tort claim. Textron Fin. Corp. v.
Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 151 (9th Dist.1996) (“A tort claim based upon
the same actions as those upon which a claim of contract breach is based will exist independently
of the contract action only if the breaching party also breaches a duty owed separately from that
created by the contract, that is, a duty owed even if no contract existed.”). They argue that they
could not have presented a contract claim in this case, however, because it would have been
prohibited by the doctrine of merger. According to the Parrishes, when a deed is delivered and
accepted without qualification, a cause of action upon the underlying contract cannot exist. Their
only remedy for the destruction Ms. Beeler caused, therefore, was their tort claim for damage to
property. They also argue that the contract does not discuss whether the items at issue in this case
were fixtures, so a breach of contract claim would not have resolved whether Ms. Beeler’s conduct
was permissible, even if the doctrine of merger did not apply.
{¶6} In her motion for summary judgment, Ms. Beeler argued that she did not owe a
duty to the Parrishes outside of the contract and that they, therefore, could not recover against her
in tort. In the Parrishes’ opposition brief, they responded to that argument by asserting that they
became equitable owners of the house after signing the contract. They argued that, as equitable
owners of the house, they had a cause of action against anyone who caused damage to the house,
including Ms. Beeler. They also argued it would not make sense if Ms. Beeler could be immune
from a property damage claim just because she was the seller of the house.
{¶7} The Parrishes did not argue in their opposition brief that they were not permitted to
bring a contract claim against Ms. Beeler because of the doctrine of merger. This Court will not
consider a defense to a motion for summary judgment that is argued for the first time on appeal.
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City of Akron v. Harris, 9th Dist. Summit No. 25993, 2012-Ohio-1713, ¶ 4, citing Morgan v.
Village of Silver Lake, 9th Dist. Summit No. 25148,
2010-Ohio-3581, ¶ 11. Accordingly, we will
not address the Parrishes’ merger argument. For the same reason, the Parrishes have also forfeited
their argument that they should be allowed to pursue a property damage claim because a breach of
contract claim would not resolve whether the items in controversy were fixtures.
Id.
{¶8} The Parrishes have not forfeited their argument that Ms. Beeler owed them the same
duty as any individual not to damage a house of which they had become an equitable owner.
Unlike other individuals, however, Ms. Beeler was the legal owner of the house at the time that
she removed the items from it. Whether something had to remain in the house at the time of
closing was governed by the parties’ contract, which had a specific provision addressing the issue.
The purchase agreement also contained a provision addressing Ms. Beeler’s responsibility to the
Parrishes if any damage occurred to the house before the title transfer. The Parrishes have not
pointed to any injury that they suffered that was outside of the scope of the purchase agreement.
{¶9} Upon review of the record, we conclude that the Parrishes have not established that
they could maintain a property damage claim against Ms. Beeler that was independent of the
contractual relationship between them. The Parrishes’ first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN CONCLUDING THAT THE HOME
PURCHASERS FAILED IN RESPONSE TO HOME SELLER’S SUMMARY
JUDGMENT MOTION TO BRING FORTH ANY EVIDENCE TENDING TO
SHOW THAT THE HOME SELLER OWED THEM A LEGAL DUTY OUTSIDE
THE PURCHASE AGREEMENT, SO THAT SUMMARY JUDGMENT WAS
APPROPRIATE.
{¶10} In their second assignment of error, the Parrishes argue that the trial court
incorrectly concluded that they had not presented any evidence that established that Ms. Beeler
owed them a legal duty outside the purchase agreement. The substance of their brief, however,
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does not focus on this issue. Instead, the Parrishes concentrate on whether the items that Ms. Beeler
removed from the house before closing were fixtures under the analysis set out by the Ohio
Supreme Court in Masheter v. Boehm, 37 Ohio St.2d 68 (1974). The Parrishes refer back to their
first assignment of error in addressing whether Ms. Beeler owed them a duty outside of the
purchase agreement. The Parrishes also argue that they established the extent of the harm they
suffered in their response to Ms. Beeler’s motion for summary judgment.
{¶11} The trial court did not reach the issue of whether the items Ms. Beeler removed
from the house before closing were fixtures because it determined that the Parrishes could not
bring a property damage claim against her because of the existence of the purchase agreement.
The arguments that the Parrishes have made under their second assignment of error do not establish
that there was a genuine issue whether Ms. Beeler owed them a legal duty outside of the existence
of that agreement. Accordingly, we conclude that the Parrishes have not demonstrated that the
trial court incorrectly granted summary judgment to Ms. Beeler. The Parrishes’ second assignment
of error is overruled.
III.
{¶12} The Parrishes’ assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellants.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, J.
SUTTON, J.
CONCUR.
APPEARANCES:
EDWARD F. HERMAN, Attorney at Law, for Appellants.
JOSEPH P. DUNSON, Attorney at Law, for Appellee.
JAY C. MARCIE, Attorney at Law, for Appellee.
