COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70795 PHILLIP E. CLOUD : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION MELVIN C. BALDWIN, SR., ET AL.: : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 13, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-298262 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: DAVID G. FINLEY, ESQ. CASSANDRA BALDWIN 25 Prospect Avenue N.W. #704-L 1490 Crawford Road Cleveland, Ohio 44115 Cleveland, Ohio 44106 - 2 - DYKE, J.: Appellant filed an amended complaint on February 20, 1996 alleging the breach of an oral partnership agreement. Appellant alleged that he had entered into a partnership with Melvin Baldwin, Sr., now deceased, whereby appellant would provide his services and money to rehabilitate a piece of real estate and to purchase any necessary supplies and equipment for the purpose of opening a funeral parlor. In exchange for his services and money, appellant was to receive one half of the profits from the business. Appellant claimed to have advanced money as a deposit to turn on the electricity, had purchased embalming equipment and made a down payment on a hearse. Appellant stated in his complaint that he had hired and paid landscapers, painters, electricians, a roofer and a plumber to make repairs on the building purchased by Baldwin and his wife Cassandra, appellee herein. Appellant further cited specific improvements he had made to the building. Appellant filed his complaint asking for his lost profits from the operation and compensatory damages for his services from Baldwin's estate, his wife, his son and the business, itself. Appellees responded with a motion for judgment on the pleadings, claiming lack of documentation to support appellant's assertions and claiming that the agreement fell within the statute of frauds and was thus unenforceable. The trial court granted appellees' motion for judgment on the pleadings without any further language. Appellant then filed a timely notice of appeal. - 3 - Appellant asserts one assignment of error. No appellees' brief was filed. I THE LOWER COURT ERRED BY GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS. Appellant argues that judgment on the pleadings was not warranted where he alleged sufficient performance to enforce the oral contract under quasi contract or quantum meruit theories. Appellant's argument is well taken. A motion for judgment on the pleadings is governed by Civ.R. 12(C). It is well settled that: The motion is to be granted when, after viewing the allegations and reasonable inferences therefrom in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 63 O.O.2d 262, 297 N.E.2d 113. Brown v. Wood Cty. Bd. of Elections (1992), 79 Ohio App.3d 474, 477. Pursuant to Civ.R. 12(C), the pleadings must be construed liberally and in a light most favorable to the party against whom the motion is made along with the reasonable inferences drawn therefrom. Case Western Reserve Univ. v. Friedman (1986), 33 Ohio App.3d 347, 348, 515 N.E.2d 1004, 1005; and Erie Cty. Bd. of Edn. v. Rhodes (1984), 17 Ohio App.3d 35, 17 OBR 88, 477 N.E.2d 1171. The trial court may only consider the statements contained in the pleadings, and may not consider any evidentiary materials. Home Owners' Service Corp. v. Hadley (1949), 86 Ohio App. 340, 54 Ohio Law Abs. 236, 41 O.O. 377, 84 N.E.2d 314; Conant v. Johnson (1964), 1 Ohio App.2d 133, 30 ).).2d 17, 204 N.E.2d 100; and Hughes v. Robinson Memorial Portage Cty. Hosp. (1984), 16 Ohio App.3d 80, 16 OBR 85, 474 N.E.2d 638. A Civ.R. 12(C) motion presents only questions of law, and it may be granted only when no material factual issues exist, and the movant is entitled to a judgment as - 4 - a matter of law. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 63 O.O.2d 262, 297 N.E.2d 113; Calhoun v. Supreme Court of Ohio (1978), 61 Ohio App.2d 1, 15 O.O.3d 13 399 N.E.2d 559; State ex rel. Brody v. Peltier (1985), 27 Ohio App.3d 20, 23, 27 OBR 21, 24, 499 N.E.2d 910, 913; and Blue Ash Bldg. & Loan Co. v. Hahn (1984), 20 Ohio App.3d 21, 20 OBR 22, 484 N.E.2d 186. Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 402-403. Upon a review of appellant's amended complaint, we find that appellees' Civ.R. 12(C) motion for judgment on the pleadings was improperly granted. Material factual issues do exist as to the extent of appellant's contribution to the funeral home business and as to the terms of the oral agreement. It is not clear that appellees are entitled to judgment as a matter of law, construing the pleadings liberally and in a light most favorable to appellant. Appellant met his burden in filing the amended complaint to set forth a claim for relief based upon a breach of the oral agreement. A pleading which sets forth a claim for relief must contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Civ.R. 8(A). Under this form of "notice pleading," less emphasis is placed on the form of the language in the complaint when the operative grounds underlying the claim are set forth so as to give adequate notice of the nature of the action. Conley v. Gibson (1957), 355 U.S. 41, 47-48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80, 85-86. Generally, a breach of contract action is pleaded by stating (1) the terms of the contract, (2) the performance by the plaintiff of his obligations, (3) the breach by the defendant, (4) damages, and (5) consideration. Harper v. Miller (1957), 109 Ohio App. 269, 11 O.O.2d 17, 164 N.E.2d 754; Haefner v. First Natl. Bank (1942), 70 Ohio App. 293, 25 O.O. 54, 44 N.E.2d 489. Cf. Silberman v. Natl. City Bank (1930), 36 Ohio App. 442, 173 N.E. 16. - 5 - American Sales, Inc. v. Boffo (1991), 71 Ohio App.3d 168. Appellant's complaint states the terms of the contract. Appellant and Baldwin orally agreed to open a funeral parlor together. Appellant would provide money, supplies and services to bring the real estate within the licensing requirements and up to code. Baldwin would then act as the funeral director and the two parties would share the profits. Appellant's pleadings also state that he performed specific obligations in supplying the project with funds and supplies. The failure of Baldwin and his estate to share the profits of the business with appellant is pleaded as the breach of their agreement. Finally, appellant claims that he is entitled to damages as a result of the breach, in the form of lost profits and the recovery of money and services he put into the business. The consideration behind the oral agreement is clearly pleaded as the benefit of a profitable business Baldwin and his estate have garnered at the expense of appellant's efforts to start the business. Appellees attempt to raise several defenses in support of their motion for judgment on the pleadings. They argue that the oral agreement between appellant and Baldwin could not have supported a partnership, as appellant claimed. Appellees also raise the Statute of Frauds as an affirmative defense because, they claimed, the contract could not have been performed within one year and therefore should have been memorialized by a writing. Neither of these defenses to appellant's complaint are well taken. - 6 - R.C. 1775.05(A) defines a "partnership" as "an association of two or more persons to carry on as co- owners a business for profit." Given that broad definition, R.C. 1775.06 sets forth guidelines for determining the existence of a partnership. * * * Therefore, a trial court may consider a deed along with other evidence to determine whether a partnership has been formed, but it may not make that determination based exclusively on the deed. Harvey v. Harvey (1993), 91 Ohio App.3d 404, 411. Since every business relationship is unique, no single fact or circumstance can operate as a conclusive test for the existence of a partnership. In re Estate of Nuss (1994), 97 Ohio App.3d 191, paragraph one of the syllabus. The trial court had sufficient facts alleged in the pleadings to determine whether or not a partnership had been formed. Simply because appellant's name was not on the deed to the property, a court could not find conclusive evidence against the existence of a partnership. It is not at all clear that appellees are entitled to a judgment as a matter of law as to the nonexistence of a partnership, construing the pleadings liberally in a light most favorable to appellant. As to appellees' affirmative defense using the Statute of Frauds, we find that the oral agreement was outside the Statute of Frauds and enforceable. First, the oral agreement could have been performed in less than a year. Secondly, even if the agreement would necessarily have lasted beyond a year, appellant's full performance of his obligations under the agreement took the agreement out of the Statute of Frauds. After proving full - 7 - performance of his obligations, appellant can recover under a theory of quasi contract or quantum meruit. The law in Ohio is well settled that: A contract which is not likely to be fully completed within a year, and which in fact is not completed within a year, does not automatically violate the Statute of Frauds if, at the time the contract is made, there is a possibility in law and in fact that full performance such as the parties intended may be completed before the expiration of a year. Bryan v. Looker (1994), 94 Ohio App.3d 228, 234; Ford v. Tandy Transp., Inc. (1993), 86 Ohio App.3d 364; and, R.C. 1335.05. The agreement that appellant would provide the money, supplies and services to establish a licensed funeral parlor in exchange for one half of the business's profits could have been fully performed on the part of appellant within a year. It was not in fact completed in a year, but this is of no consequence to the application of the Statute of Frauds. The law is only interested in the possibility of completion of the terms of the contract within a year. However, even if we were to find that the contract could not possibly have been performed within a year, the oral agreement is still taken out of the Statute of Frauds due to appellant's full performance. This Court recently held that: [A]n agreement is removed from the Statute of Frauds by virtue of partial performance only where the party relying on the agreement changes his position to his detriment thereby making it impractical or impossible to return the parties to their original status. Weishaar [v. Strimbu (1991), 76 Ohio App.3d 276, 601 N.E.2d 587.] - 8 - Saydell v. Geppetto's Pizza & Ribs (1994), 100 Ohio App.3d 111, 121. Under the pleadings appellant has included such facts from which one could infer that he has changed his position to his detriment making it impossible to return to his original status without enforcement of the agreement or recovery for his services, supplies and financial support of the business. The law in Ohio has always made a distinction between partial performance and full performance under the terms of an agreement. From the facts stated in the pleadings, we can infer full performance under the agreement because appellant states that the business was in fact operating as planned prior to the death of his alleged partner, Baldwin. This Court has held that full performance bars the raising of the Statute of Fraud defense in an employment context. Gathagan v. Firestone Tire & Rubber Co. (1985), 23 Ohio App.3d 16 and Parish & Bingham Corp. v. Jackson (1921), 16 Ohio App. 51. In 1872 Olive Towsley brought an action on the promise of Joseph Moore to pay her for services rendered in his household and kitchen once she attained the age of eighteen. She began working in his house, where she was clothed, boarded and furnished with schooling, at the age of eleven. When she turned eighteen, having completed her seven years of service, Moore refused to pay her the $300.00 for the reasonable worth of those years of service. Olive recovered judgment from the common pleas court, but was reversed at the district court of appeals in Summit County. She took her case - 9 - to the Ohio Supreme Court where the appellate court's decision was reversed. The following directive from the Ohio Supreme Court remains binding law: "Where a verbal contract is completely executed by one party, the consideration can be recovered from the other, notwithstanding the statute of frauds, . . . and where a contract is within the statute, as being not to be performed within one year from the making, but has been fully performed on one side, whether within the year or not, the consideration of that performance, though by the contract not payable until after the expiration of the year, may be recovered by action when the stipulated time arrives." Browne on Frauds, sec. 117. The same author says: "One who has rendered services in execution of a verbal contract, which, on account of the statute, can not be enforced against the other party, can recover the value of the services upon a quantum meruit." Towsley v. Moore (1876), 30 Ohio St. 184, 185-86. The Ohio Supreme Court followed this rule of law when it found that: Even though a contract is unenforceable under the Statute of Frauds because it is not in writing, a plaintiff who has fully performed his part of the contract may maintain an action for money had and received against the other contracting party who is the recipient of a benefit to his unjust enrichment, by the plaintiff's performance, but refused to perform himself; the basis of the liability is the quasi-contractual relation to which the law gives rise. Towsley v. Moore, 30 Ohio St. 184... Hummel v. Hummel (1938), 133 Ohio St. 520, 528. Given our review of the law of Ohio governing oral contracts, we find that the pleadings sufficiently state a cause of action such that the granting of appellees' motion on the pleadings was not warranted. We sustain appellant's assignment of error. The - 10 - trial court's decision to grant appellees' motion for judgment on the pleadings is reversed. This action is remanded to the Court of Common Pleas for further proceedings consistent with this opinion. - 11 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) 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. DAVID T. MATIA, P.J. O'DONNELL, J., CONCUR ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .