COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60702 DORIS MARCHMAN : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JAMES CLARK : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 2, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 167,577 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: JANET R. BURNSIDE Attorney at Law 1300 East Ninth Street Cleveland, Ohio 44114 DORIS MARCHMAN 11626 Imperial Avenue Cleveland, Ohio 44120 For defendant-appellant: MICHAEL L. BELCHER Attorney at Law 75 Public Square, Suite 1210 Cleveland, Ohio 44113 - 1 - ECONOMUS, J.: Defendant-appellant, James Clark, appeals the trial court's granting of appellee's motion to correct an omission in the sum- mary judgment entered on October 24, 1990. For the reasons set forth below, we reverse and remand the judgment of the trial court for proceedings in foreclosure. Plaintiff-appellee, Doris Marchman, filed a complaint against appellant on April 6, 1989 alleging breach of a land installment contract. Appellee requested a judgment ordering a forfeiture of the land contract, restoring to appellee the right of possession to the property, and repayment of unpaid property taxes to appellee. Appellee filed a motion for summary judgment on the complaint, which was granted by the trial court in favor of appellee and against appellant on November 8, 1989. On June 7, 1990, appellant filed a Civ. R. 60(B)(3) motion to vacate the summary judgment, which was denied by the trial court on August 9, 1990. Appellee subsequently filed a motion to correct an omission in the summary judgment entry. This motion sought to have the relief requested in appellee's complaint and motion for summary judgment specifically stated in the entry. - 2 - The trial court granted appellee's motion and, on October 17, 1990, entered a corrected summary judgment entry stating the relief appellee is entitled to under the previously entered grant of summary judgment. Appellant filed his notice of appeal from the corrected entry on October 24, 1990. Appellant raises three assignments of error for our review. ASSIGNMENT OF ERROR I WHETHER THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE'S UNCONTESTED MOTION FOR SUMMARY JUDGMENT WHERE THE MOTION FOR SUMMARY JUDGMENT IN AND OF ITSELF ADMITS THAT THE DEFENDANT-APPELLANT HAD MET THE NECESSARY REQUIREMENTS TO ESTABLISH THE ACTION TO BE ONE OF FORECLOSURE AND NOT AN ACTION FOR FORFEITURE AS PRAYED FOR. ASSIGNMENT OF ERROR II WHETHER THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT'S MOTION TO VACATE SUM- MARY JUDGMENT WHERE SAID MOTION TO VACATE FULLY SET OUT FACTS WHICH ESTABLISHED THAT THE PLAINTIFF-APPELLEE HAD PROCEEDED IN A MANNER CONTRARY TO LAW. ASSIGNMENT OF ERROR III WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT AND DENYING APPELLANT'S MOTION TO VACATE WHERE THE FACTS WITHIN PLAINTIFF- APPELLEE'S MOTION FOR SUMMARY JUDGMENT CLEAR- LY ESTABLISH THAT PLAINTIFF-APPELLEE HAD COM- MENCED THE WRONG LEGAL ACTION TO OBTAIN POS- SESSION OF REAL PROPERTY UNDER LAND CONTRACT AND WHERE THE RECORD DISCLOSES THAT THE DEFENDANT-APPELLANT'S ATTORNEY FAILED TO RENDER PROPER REPRESENTATION TO APPELLANT WITHOUT ANY SHOWING OF JUST CAUSE. - 3 - Appellant contends the trial court erred in ordering for- feiture of the land installment contract since appellant paid over twenty percent of the purchase price to appellee. This argument has merit. R.C. 5313.07 provides as follows: If the vendee of a land installment contract has paid in accordance with the terms of the contract for a period of five years or more from the date of the first payment or has paid toward the purchase price a total sum equal to or in excess of twenty per cent thereof, the vendor may recover possession of his property only by use of a proceeding for foreclosure and judicial sale of the fore- closed property as provided in section 2323.07 of the Revised Code. Such action may be commenced after expiration of the period of time prescribed by sections 5313.05 and 5313.06 of the Revised Code. In such an action, as between the vendor and vendee, the vendor shall be entitled to proceeds of the sale up to and including the unpaid balance due on the land installment contract. (Emphasis added.) This section excludes a proceeding in for- feiture where twenty percent or more of the purchase price has been paid by the vendee. Smith v. Blackburn (1987), 31 Ohio App. 3d 252. In the present case, the evidence is undisputed that appel- lant paid four thousand dollars as a down payment toward the total purchase price of twelve thousand dollars. Appellant also made nine hundred dollars in installment payments. Thus, pursu- ant to R.C. 5313.07, appellee is excluded from obtaining a for- feiture remedy since appellant paid an amount in excess of twenty percent of the purchase price of the contract. The only remedy - 4 - available to appellee for possession of her property was an action in foreclosure pursuant to R.C. 2323.07. Hence, it was error to order forfeiture of the land contract upon the appel- lee's motion for summary judgment since summary judgment shall be granted only "if appropriate." Civ. R. 56(E). Accordingly, we vacate the judgment of the trial court entered on October 17, 1990, Vol. 1303, p. 84, and reverse and remand this action for proceedings in foreclosure. Assignments of Error I, II and III are sustained. Judgment reversed and remanded for proceedings consistent with this opinion. - 5 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J, JOHN F. CORRIGAN, J. CONCUR JUDGE PETER ECONOMUS* *Sitting by Assignment: Peter Economus, Judge of the Mahoning County Court of Common Pleas. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .